Kashif @ Kashi Vs The State

Stereo. H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Murder Reference No.250 of 2022 (The State versus Haroon, etc)

Crl. Appeal No.40664-J of 2022 (Kashif alias Kashi versus The State, etc.)

Crl. Appeal No.40665-J of 2022 (Haroon versus The State, etc.)

JUDGMENT

Date of hearing: 09.03.2026.

Appellants by: Mr. Muhammad Ahsan Bhoon, Advocate for the appellants.

State by: Mr. Muhammad Akhlaq, Additional Prosecutor General.

Complainant by: M/s Muhammad Abid Saqi and Rana Shujaa Farooq, Advocates.

AALIA NEELUM, C.J:- Kashif alias Kashi son of Bashir Ahmad (the appellant in Crl. Appeal No.40664-J of 2022), and Haroon son of Saif-ullah (the appellant in Crl. Appeal No.40665-J of 2022), both Churairah by Caste, residents of Khurram Churairah, police station, Saddar Pindi Bhatti, have assailed their convictions and sentences recorded by the learned Additional Sessions Judge, (MCTC), Pindi Bhattian, vide judgment dated 16.06.2022 in case FIR No.311 of 2019, dated 14.07.2019, offences under sections 302, 109, 148, 149 of P.P.C, registered at the police station, Saddar Pindi Bhattian, whereby the trial court convicted the appellants under Section 302 (b) PPC and sentenced them to Death each as Tazir for committing Qatl-e-Amd of Mansab Ali and Shehram Zafar, with the direction to pay compensation of

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Rs.5,00,000/- each as envisaged under section 544-A of Cr.P.C, and in case of default thereof, to undergo 06-months S.I each.

2.Feeling aggrieved by the judgment of the trial court, Kashif alias Kashi and Haroon, the appellants, have assailed their convictions and sentences by filing separate appeals bearing Criminal Appeal No.40664-J of 2022 and Criminal Appeal No.40665-J of 2022. The trial court also sent M.R. No. 250 of 2022 (The State vs. Haroon, etc.) to confirm the death sentence awarded to the appellants, Haroon and Kashif alias Kashi. All the matters arising from the same judgment of the trial court are being disposed of through a single judgment.

3.The prosecution's story as alleged in the F.I.R (Ex. PX) lodged on the application (Ex.PA) of Mansab Ali (PW-1)-the complainant is that on 14.07.2019, at about 07:00 p.m, before sunset, the complainant (PW-1), along with Muhammad Younas (PW-2), Waris Ali (given up PW), and Mansab Ali, son of Shameer (deceased), were sitting at the dera of Muhammad Younas, where suddenly two 125 motorcycles came. One motorcycle was driven by Sikandar, son of Muhammad Nawaz (co-accused since acquitted), while Imtiaz Hussain (co-accused since acquitted), armed with a rifle, and Kashif alias Kashi (the appellant in Crl. Appeal No.40664-J of 2022), armed with a 30-bore pistol, were sitting on the rear seat of said motorcycle. The other motorcycle was driven by Adnan (co-accused since acquitted), while Umer Daraz (co-accused since acquitted), armed with a 12-bore rifle, and Haroon (the appellant in Crl. Appeal No.40665-J of 2022), armed with a 30-bore pistol, were sitting on the rear seat of said motorcycle. In the meanwhile, Imtiaz Hussain (co-accused) raised a lalkara, that the complainant party should have been murdered, whereupon the accused/appellant-Kashif alias Kashi made a fire shot, which hit Mansab Ali, son of Shameer (deceased), on the left side of his shoulder, who fell down and succumbed to the injury at the spot. After that, Imtiaz Hussain (co-accused) fired at Muhammad Younas (PW-2), but he was fortunately saved. All the accused persons rushed towards the cattle shed, Dera of Zafar Ahmad, while making aerial firing. The complainant chased the accused. As soon as the accused

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persons reached the southern Bazar of Chowk Khurram Churrerah, Shehram Zafar (since dead) was going there. On seeing Shehram Zafar (since dead), Umer Daraz (co-accused) raised a lalkara that he should have also been murdered, whereupon the accused, Ghulam Rasool, caught hold of Shehram Zafar (since dead) from his collar/Gariban, and the appellant, Haroon, fired with his pistol, 30-bore, which landed on his right cheek, who fell down and succumbed to the injury. The complainant (PW-1), Riaz, and Imtiaz (PW-3) witnessed the occurrence. After that, the accused persons decamped from the place of occurrence while making aerial firing. After the occurrence, Munir (PW-7) and Sana Ullah (PW-6) visited the complainant and told him that they heard and saw Nazir, Saif, Abdul Jabbar, and Tabassum (all co-accused since acquitted) in a mutual discussion that their revenge would be completed if they would murder two members of the Sipra family. The motive behind the occurrence was the long-lasting enmity.

4.After the occurrence, the complainant (PW-1) reported the incident at the police station through a written complaint (Exh-PA) to Safdar Ali S.I (not produced), on the same day, i.e., 14.07.2019 at 09:00 p.m, based on which a formal FIR (Exh-PX) was chalked out at 09:00 p.m by Safdar Ali S.I. After registration of the case, the investigation of this case was conducted by Imdad- Ullah, S.I. (PW-13), who arrested the accused persons, and having found them guilty, prepared a challan under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction while placing the names of all accused persons in Column No.3 of the challan. On 24.09.2020, the trial court formally charge- sheeted the appellants, to which they pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as fourteen (14) witnesses.

5.After the closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C., wherein neither they opted to appear as their own witnesses in terms of Section 340 (2) Cr.P.C., nor opted to produce any evidence in their defence. In response to a particular question that why this

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case was against them and why the PWs had deposed against them, the appellants made the following depositions: - Appellant-Kashif alias Kashi.

“It was an unseen occurrence which is also reflected from the delayed postmortem. I was driver of Rana family since long. I have no rivalry with the complainant party. I used to visit police station with Rana family in their last case and I was also looking after the agricultural land of Rana family which is very much in the knowledge of complainant party. Complainant party was having grudge against me due to the above reason they booked me in this false and concocted story. Deceased Mansab Ali was a layman and a ricksha driver. I have no nexus with the crime and even I was not present at both the spots at the relevant time. I also have no grudge or enmity against deceased Mansab Ali. All the private PWs are closely related with each other and having grudge against me, therefore, they have deposed falsely against me. I am innocent.”

Appellant-Haroon.

“It was a blind occurrence. After knowing about the occurrence, the local police took dead bodies of both the deceased and shifted the same before the doctor at THQ hospital Pindi Bhattian where doctor after receiving the dead bodies place the same in the dead house at 8:30 p.m, on the alleged day of occurrence. Complainant party is inimical towards me due to previous enmity. The complainant party in connivance with the police got lodged this false case against me and my co-accused after concocting a fake story. I have no previous enmity with both the deceased as deceased Mansab Ali was “Moin” of the village. All the private PWs are interse related with each other, therefore, they have deposed falsely against me due to previous enmity. I am innocent.”

6.After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellants’ conviction in the afore-stated terms.

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7.We have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.

8.According to the prosecution, the incident occurred on 14.07.2019 at 07:00 pm at the Dera of Muhammad Younas (PW-2) situated at Khurram Churrerah Tehsil Pindi Bhattian, District Hafizabad, within the territorial jurisdiction of police station Saddar Pindi Bhattian, District Hafizabad, which is at a distance of 08 miles from the place of the incident. Mansab Ali (PW-1), the complainant, reported the incident at the police station through a written complaint (Exh-PA) to Safdar Ali, S.I. (not produced, being paralyzed and unable to give evidence), and Muhammad Zakria, S.I. (PW-14), appeared on his behalf in secondary evidence. The incident was reported on the same day, i.e., 14.07.2019 at 09:00 p.m, based on which a formal FIR (Exh-PX) was chalked out at 09:00 p.m by Safdar Ali S.I. Mansab Ali (PW-1), the complainant took two hours to report the incident to the police. The F.I.R. (Exh. PX) was got lodged by Mansab Ali (PW-1), the complainant, after a considerable delay of two hours without explaining the said delay. The evidential value of the First Information Report will be reduced if it is made after an unexplained delay, particularly when it raises suspicion that the informant had sufficient opportunity to concoct and fabricate a story and falsely implicate the accused. Therefore, an adequate explanation for the delay would depend on various circumstances. In the present case, the prosecution has not provided a reason for the delay in lodging the First Information Report (Exh. PX). It can be found from the FIR (Ex.PX) that it was not mentioned therein that he (PW-1) went to the police station to report the incident, nor was it mentioned that, on hearing about the incident, the police reached the spot and he (PW-1) reported the incident to the police. The complainant (PW-1) has not mentioned in the application for registration of the case that he has come to report the incident, leaving the witnesses to guard the bodies. The relevant part of the written application (Ex.PA) is as follows:- ن مرادمحودلحتفریش اورانثاہللودلدمحمونازاوقامرپسااسانکےئدہہیریمےپاسآےئ ووقہع ےکوفرادعب ی نن فیس ودل امالہ اوقام ی-2 اور اتب یپا ہک مہ ےن ایمسمن ن یذیر ودل اہسوا دبعاابجلر ودل دمحم ویسن وقم،وچریرہ مسبتریشودلریشدمحماہمکروکپامہوشمرہرکےتداھکیاورانسےہہک مہاریدینمشاکدبہلیھبتوپرا،راوپجت

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وہ اگ ارگ مہرپساوقم ےک دوولوگں وک اجن ےس ہن امر دںی وہج انعد رپاین دینمشےہ۔ زلمامن ذتمرکہےک ۔ .الخفدقمہمدرجرکےکقراروایعقزسادیاجےئ۔نیعونازشوہیگ

The above part of the written complaint (Ex.PA) became more significant when the complainant's testimony revealed that before the FIR was registered, he met with the police. The investigating officer inquired about the incident. He was asked to write an application, and he did so, indicating that a partial investigation was conducted before registering the FIR and that it was not registered immediately after the incident without any deliberation. The relevant portion of the cross-examination of Mansab Ali (PW-1), the complainant, is as under:- “Police station Saddar Pindi Bhattian is at a distance of 14 kilometers from the place of occurrence. At about 8:00 pm I made departure along with three persons namely Riaz, Imtiaz and Younas for registration of FIR. I reached in police station at about 8:30/8:45 PM along with alleged eyewitnesses.

The I.O lodged FIR after inquiring from me about the occurrence. He did not ask anything about occurrence from the alleged eye witnesses. I.O asked me to get reduced into writing application. I went for writing application and then I returned in police station after getting reduced into writing application for registration of FIR. When I.O asked me about the occurrence for registration of FIR at that time alleged witnesses were not with me, at that time they were outside the police station.”

From the above deposition of Mansab Ali (PW-1), the complainant, it appears that one hour after the incident, he proceeded to the police station to report it, and that, after the investigating officer's inquiry, he did so. Contrary to the above deposition of Mansab Ali (PW-1)-the complainant, Imdad Ullah S.I. (PW-13)-the investigating officer deposed during examination-in-chief that:- “That on 14.07.2019, I was posted at P.S. Saddar Pindi Bhattian. On the same day investigation of this case was entrusted to me and I proceeded to the place of occurrence alongwith other police officials, then I went to the Havely of Muhammad Younas where dead body of deceased Mansab Ali was lying and cordoned off the place.”

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Mansab Ali (PW-1)-the complainant deposed during cross-examination that the prosecution witnesses accompanied him to the police station before registration of FIR, and after registration of FIR, he informed them that he assigned specific roles to each accused in the FIR. It is relevant to mention here that till then, the statements under section 161 of Cr.P.C. of the prosecution witnesses were not recorded. In this regard, the relevant portion of the cross-examination of Mansab Ali (PW-1)-the complainant is reproduced as under:- “I brought the alleged witnesses alongwith me due to having my enmity with the rival party. The alleged eye witnesses were equipped with fire arms. When I came outside police station alleged eye witnesses met with me and I told them that I got lodged the FIR against the accused persons nominated in FIR. I told the alleged eye witnesses that I mentioned the specific roles of each accused in FIR.”

Contrary to the deposition of Mansab Ali (PW-1)-the complainant, Muhammad Younas (PW-2), paternal uncle of Shehram Zafar (the deceased), deposed during cross-examination that:- “Mansab complainant came to us at my dera at about 9:30 pm after registration of FIR. I asked complainant Mansab who replied that he had got lodged the FIR against accused persons nominated in FIR. I.O arrived at my dera alongwith complainant Mansab Ali at about 09:30 pm. Two/Three officials were also accompanied with the I.O at that time. I.O send the dead body of deceased Mansab Ali for autopsy at about 10:15 pm.”

Whereas Imtiaz Hussain (PW-3) deposed during cross-examination that:- “Police reached the place of second occurrence at 10/10:15 pm. Then I went to police station for registration of FIR alongwith complainant. From the second place of occurrence I and Mansib straightly went to police station for registration of FIR at 8:00

PM.”

The deposition of Mansab Ali (PW-1), the complainant, reveals that after a partial investigation, the FIR was registered. Mansab Ali (PW-1) also deposed during cross-examination that:-

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“At the place of occurrence some other official investigating Agency also visited the place of occurrence.”

The deposition of Mansab Ali (PW-1), the complainant, casts doubt on the timing of the reporting of the incident. A delay in registering the FIR often leads to embellishment and exaggeration, which are the result of afterthought. A delayed report increases the risk of a fabricated story due to the time for deliberations and consultations, thereby casting serious doubt on its accuracy. Thus, FIR is to be filed more promptly, and if there is any delay, the prosecution must furnish a satisfactory explanation for the same, for the reason that in case the foundation of the evidence provided by the complainant or the informant is found to be unreliable, the prosecution's case has to be rejected in its entirety. Mansab Ali (PW-1), the complainant, deposed that the incident took place in two parts. In the first part of the incident, which took place at the “Dera of Younas,” where Mansab Ali, son of Shameer, was murdered, and the second part of the incident took place at the Southern Bazar of Chowk Khurram Churrerah, where Shehram Zafar, aged about 10 years, was murdered. After the murder of Shehram Zafer, Mansab Ali (PW-1), the complainant reported the incident to the police at the police station. But Imdad Ullah S.I. (PW-13), the investigating officer, deposed that he went to Muhammad Younas's Haveli and cordoned off the crime scene. The dead body was lying there on the cot. The inquest reports (Exh.PO/4 and Exh. PR/4) reveal that dead bodies were lying on cots. According to the prosecution's version, the dead bodies were at the scenes when Mansab Ali (PW-1), the complainant, went to report the incident. The deposition of Imdad Ullah S.I. (PW-13), the investigating officer, reveals that after being entrusted with the investigation, he proceeded to the place of the incident with police officials. He went to Muhammad Younas's haveli and cordoned off the crime scene. Whereas Mansab Ali (PW-1), the complainant, deposed during examination-in-chief that he, along with Muhammad Younas (PW-2), Waris Ali (who has given up), and Mansab Ali s/o Shameer (deceased), were sitting at Muhammad Younas's dera when the incident took place. During cross-examination, Mansab Ali (PW-1) admitted that the Dera is

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separate from the residence. In this regard, Mansab Ali (PW-1), the complainant, admitted during cross-examination that:- “Dera of Younas is double story but his residence is separate. ------------ It is correct that in Exh. P.A. I did mention any reason about my presence at that place of occurrence. ------------- I did not tell to I.O that I placed the dead body on cot. I also did not mention this fact in my application. ” Muhammad Younas (PW-2) deposed during cross-examination that:- “My dera is situated at main road. My dera is double story. It is incorrect to suggest that my residence is at my dera. -------- At the time of occurrence we were sitting at my dera behind us there were doors and walls of the dera.”

Imtiaz Hussain (PW-3) deposed during cross-examination that he was not a witness to the first part of the incident. Similarly, Muhammad Younas (PW-2) deposed during cross-examination that:- “I did not witness the occurrence of deceased Shehram Zafar. ------- I did not get recorded my statement regarding the occurrence of Shehram Zafar. Confronted with Ex.DA where the story of occurrence of Shehram Zafar is recorded.” Imdad Ullah S.I. (PW-13)-the investigating officer deposed during cross- examination that:- “On my first visit to the place of deceased Mansab, his dead body was lying on a cot in the courtyard of the dera of Younas. It is correct that according to my investigation the courtyard was not the place where the deceased received firearm injuries. No person appeared before me during investigation who had verified that he has lifted the dead body of deceased Mansab and placed it in the courtyard. On my first visit I did not collect any blood etc. from veranda to verify that the place of occurrence is veranda. When I reached the place of occurrence blood was oozing from the dead body of deceased Mansab. I did not mention in my investigation about any blood trail leading from veranda to courtyard. I did not collect any blood beneath the cot to verify that the dead body was lying over there. I did not take into possession said cot. It is not mentioned in the inquest report

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Ex.P.O of deceased Mansab that the place of lying of dead body is different and place of receiving firearm injury is different. It is correct that inquest report Ex.P.O does not bear any number. I did not make any inquiry about shifting of dead body from veranda (place of receiving firearm injury) and veranda (place of lying of dead body).”

It remains unexplained who shifted the dead body of Mansab Ali, s/o Shameer, from the Dera of Muhammad Younas to his Haveli.

9.Even otherwise, the documentary evidence in the shape of postmortem reports of Mansab Ali s/o Shameer and Shehram Zafar (Exh.PO and Exh. PR respectively) reveals that the dead bodies of both the deceased were received in the dead house at 08:30 p.m. on 14.07.2019. It is the case of the prosecution that FIR (Ex.PX) was registered at 09:00 p.m. on 14.07.2019. After that, Imdad Ullah (PW-13), the investigating officer, reached the place of occurrence at 09:30 p.m. Firstly, he (PW-13)-the investigating officer, conducted proceedings on the dead body of Mansab Ali s/o Shameer (the deceased) and after sending the dead body of Mansab Ali s/o Shameer alongwith witnesses Khan Muhammad (PW-4) and Ahmad Ali (given up PW) to THQ Hospital, Pindi Bhattian, he proceeded to the second place, where the dead body of Shehram Zafar was lying on the cot. It is pertinent to reproduce the relevant portion of the depositions of prosecution witnesses, i.e., Mansab Ali (PW-1)-the complainant, Muhammad Younas (PW-2), and Imtiaz Hussain (PW-3). Mansab Ali (PW-1)-the complainant deposed during cross- examination that:-

“Police Station Saddar Pindi Bhattian is at a distance of 14 kilometers from the place of occurrence. At about 8:00 pm I made departure alongwith three persons namely Riaz, Imtiaz and Younas for registration of FIR. I reached in police station at about 08:30/8:45 pm alongwith alleged eye witnesses.- ------------ I remained in police station for about 30/45 minutes and we reached to our village at about 8:45 pm. Again said we reached our village at about 9:45 pm. From police station we came straight to the dead body of deceased Mansab Ali. I.O came alongwith us

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at the place of dead body of Mansab Ali. Almost 50/60 male female gathered alongwith the dead body of Mansab Ali and I.O took the dead body of Mansab Ali into possession by dispersing them. It took about 20/25 for recording statements of Younas and Waris and then I.O sent the dead body of Mansab for autopsy on Tractor Trolley at 10:00 pm. It usually took one hour to reach THQ Hospital Pindi Bhattian from our village. I.O after sending the dead body of Mansab immediately went to the place where dead body of Shahram Zafar was lying and he took into possession dead body of Shahram after dispersing the males and females who were gathered there. I.O sent the dead body of deceased Shahram Zafar to THQ Hospital Pindi Bhattian at about 10:15 pm after recording the statements of pws u/s 161 Cr.P.C.-------- ------- I reached the place of occurrence alongwith police at 09:30 pm after submitting the application Exh.PA. When I reached the place of occurrence dead body was placed on cot. I myself placed the dead body on cot. I placed the dead body on cot after commission of second occurrence. --------------- I did not tell the I.O that I placed the dead body on cot. I also did not mention this fact in my application Exh.PA.” Muhammad Younas (PW-2) deposed during cross-examination that:- “Mansab complainant came to us at my dera at about 9:30 pm after registration of FIR. I asked complainant Mansab who replied that he had got lodged the FIR against accused persons nominated in FIR. I.O arrived at my dera alongwith complainant Mansab Ali at about 9:30 pm. Two/three officials were also accompanied with the I.O at that time. I.O send the dead body of deceased Mansab Ali for autopsy at about 10:15 pm.”

Imtiaz Hussain (PW-3) deposed during cross-examination that:- “I mentioned in my statement recorded u/s 161 Cr.P.C. that Mansib was present and he also witnessed the occurrence alongwith me, where it is not so recorded. ------------- I did not get recorded my statement to the I.O about first occurrence.” Contrary to the above, Mazhar Hussain 43/C (PW-9), who escorted the dead body of deceased Shahram Zafar to THQ Hospital Pindi Bhattian, deposed during his examination-in-chief that:-

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“Stated that on 14.07.2019 I was posted at P.S. Saddar Pindi Bhattian. On the same day, I.O handed over to me dead body of deceased Shahram Zafar alongwith police papers for postmortem. I alongwith witnesses of identification of dead body escorted the dead body to THQ Hospital Pindi Bhattian.”

Whereas, during cross-examination, Mazhar Hussain 43/C (PW-9) admitted that they were present at Bairanwala village, from where they proceeded to the place of occurrence at 06:15 p.m., and reached the place of occurrence at about 6:30/7:00 pm, and they left the place of occurrence alongwith dead body of deceased Shahram Zafar to THQ Hospital Pindi Bhattian at about 7:30 pm and reached THQ Hospital Pindi Bhattian at about 8:00 pm. The relevant portion of cross-examination of Mazhar Hussain 43/C (PW-9) is as under:- “I was present alongwith Imdad Ullah S.I at Bairanwala village where we proceeded to the place of occurrence at 06:15 pm and reached at the place of occurrence at about 6:30/7:00 pm. We left the place of occurrence alongwith dead body of deceased Shahram Zafar to THQ Hospital Pindi Bhattian at about 7:30 pm and reached THQ Hospital Pindi Bhattian at about 8:00 pm.”

Qamar Abbas 464/C (PW-10), who escorted the dead body of Mansab Ali (the deceased) to THQ Hospital, Pindi Bhattian, deposed during cross-examination that:- “I alongwith Mazhar Hussain constable and I.O were present at police station from where at about 4:45 pm we proceeded to the place of occurrence. We reached the dead body of deceased Mansab Ali at about 05:45 pm from where we shifted the dead body at about 6:30 to THQ Hospital Pindi Bhattian. I do not know the name of the said constable who handed over the copy of FIR to Imdad Ullah S.I/I.O. I do not remember the time when FIR was handed over to the I.O before our departure from the police station. ------ ---------- I reached at THQ Hospital Pindi Bhattian alongwith dead body of deceased Mansab Ali at about 8:30 pm.---------- Imdad Ullah S.I came to the hospital at about 10:00 pm and I do not remember for how much time he remained there.---------- On 15.07.2019 at about 7:30 am the dead body of Mansab Ali

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deceased was handed over to me after postmortem examination.”

The statements of Mazhar Hussain 43/C (PW-9) and Qamar Abbas 464/C (PW-10) reveal that they reached the place of occurrence before 07:00 p.m. on 14.07.2019, whereas, as per the prosecution case, the incident occurred at 07:00 p.m. on 14.07.2019 and was deposed by prosecution witnesses. Contrary to the depositions of aforesaid witnesses, i.e., Mazhar Hussain 43/C (PW-9) and Qamar Abbas 464/ (PW-10), Imdad Ullah S.I. (PW-13)-the investigating officer deposed during cross-examination that:- “I was near Tahli Goriya Patrol Pump at the time of 9:30 pm when the FIR about the occurrence was received to me. Constable Saqib handed over to me FIR of this case. I did not record the statement of said constable about handing over that FIR to me. I reached the place of occurrence at about 9:50 pm and I firstly visited the place where the dead body of deceased Mansab Ali was lying. I remained there for about half an hour. I sent the dead body for postmortem on Dalla and distance from place of occurrence to THQ Hospital Pindi Bhattian is about 8/9 miles. I reached the place where dead body of deceased Shahram Zafar was lying at about 10:25 pm. After 30 minutes of my arrival I dispatched the dead body of deceased Shahram Zafar to THQ Hospital Pindi Bhattian for postmortem. ----------- It is incorrect to suggest that on 14.07.2019 at 8:30 pm Mazhar Hussain 43/C had handed over the dead bodies to medical officer who kept both the dead bodies in mortuary.”

The prosecution witnesses are not testifying to the complete truth. Dr. Muneeb Afsar (PW-12) deposed during cross-examination that:- “According to the column regarding receiving of dead body in the dead house both dead bodies received at 8:30 pm. According to the postmortem reports No.30 & 31 documents received at 6:45 am on 15.07.2019. On both postmortem reports time of conducting of autopsy is 7:15 am. It is correct that no document was received to me in respect of this case before 6:45 am.”

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The above-mentioned depositions of the prosecution witnesses reveal that dead bodies were sent to the THQ Hospital at 08:30 pm before registration of the case. All the above facts and circumstances cast doubt on the timing of the incident and the reporting. A man may lie, but a document cannot.

10.There is another aspect of the case, which also creates doubt on the depositions of prosecution witnesses, i.e., Mansab Ali (PW-1)-the complainant, Muhammad Younas (PW-2), Imtiaz Hussain (PW-3), and Imdad Ullah S.I. (PW- 13)-the investigating officer. After the FIR was registered on 07/14/2019 at 9:00 pm, both deceased were examined by Dr. Muneeb Afsar (PW-12) on 07/15/2019 at 7:15 a.m., as he stated during his examination-in-chief. This was more than ten hours and fifteen minutes after the FIR registration and twelve hours and fifteen minutes after the alleged incident. Dr. Muneeb Afsar (PW-12) deposed during his examination in chief that:-

“Stated that on 15.07.2019 at 07:15 am I also conducted postmortem of deceased Shahram Zafar s/o Zafar, aged 11 years, caste Sapra r/o Khurram Churera. The dead body was brought by police. The dead body was identified by Mushtaq Ahmad s/o Noor Muhammad and Muhammad Mumtaz s/o Shair Muhammad.”

However, during cross-examination, Dr. Muneeb Afsar (PW-12) admitted that:- “It is correct that in postmortem reports No.30 & 31 in column regarding time of death 7:00 p.m. is written.”

The same details are mentioned in the post-mortem reports (Ex. PO & Ex. PR). Dr. Muneeb Afsar (PW-12) has stated that the probable duration between death and post-mortem was approximately 10 hours. If we consider that the autopsy was conducted at 07:15 a.m. on 15.07.2019, even then, the duration between death and postmortem becomes 12 hours and 15 minutes. The duration between death and postmortem provided by the medical officer also casts doubt on the timing of the incident.

The original postmortem report (Ex.PR) of Shahram Zafar, available on record, has been reviewed, which states that the autopsy was

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performed on 15.07.2019 at 07:15 p.m. We have observed that the postmortem examination reports (Ex. PO & Ex. PR) for Mansab Ali, s/o Shameer, and Shahram Zafar were issued with specific PMR (Post mortem report) numbers. The postmortem report of Mansab Ali S/o Shameer is PMR No. 31/19, while that of Shahram Zafar is PMR No. 30/19. The time of the postmortem examination of Shahram Zafar's body was mentioned as 07:15 p.m. on 15.07.2019 in the postmortem register as PMR No.30/19, whereas the time of the autopsy of Mansab Ali s/o Shameer was mentioned as 07:15 a.m. on 15.07.2019 in the postmortem examination register as PMR No.30/19 on 15.07.2019. This discrepancy raises questions about the timing of Mansab Ali's postmortem examination.

Even, Dr. Muneeb Afsar (PW-12) deposed during examination-in- chief that at the time of postmortem examination, which was conducted on the following day i.e. 15.07.2019, he endorsed the application for postmortem examination (Ex.PO/3), inquest report (Ex.PO/4), injury statement (Ex.PO/5) of Mansab Ali (the deceased) and application for postmortem examination (Ex.PR/3), inquest report (Ex.PR/4) and injury statement (Ex.PR/5) of Shahram Zafar. It suggests that until the postmortem examination was conducted, the FIR was not in the picture. It further casts doubt on the prosecution's story, suggesting that after arranging the complainant and witnesses, and after due deliberation and consultation, the FIR was registered. Mansab Ali (PW-1) deposed that after the first part of the incident, he chased the accused persons, and at that time, shops were open, and he was at a distance of 75/80 feet, when he saw the occurrence of Shahram Zafar’s murder. Mansab Ali (PW-1) deposed during cross-examination that:-

“Place of occurrence of deceased Shahram Zafar is situated at a distance for 2 1⁄4 acres from the dera of Younas. The road on which I was chasing the accused had shops and houses of different people. I cannot tell whether the people of the village seen me while chasing the accused persons. At that time the shops were opened. I was at a distance of 75/80 feet away when I saw the occurrence of deceased

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Shahram Zafar. -------------- After the occurrence of Shahram Zafar I did not chase the accused persons in the apprehension of some other incident for the commission of murder of my some other relatives.”

Mansab Ali (PW-1) deposed during cross-examination that he mentioned in the application (Ex.PA) that he alongwith Riaz and Imtiaz, witnessed the incident, which was got confronted by the defence as under:- “In my application Exh. P.A. I mentioned that I alongwith Riaz and Imtiaz witnessed the occurrence, confronted with Exh.P.A, where it is not recorded that I alongwith Riaz and Imtiaz witnessed the occurrence.”

According to the prosecution, during the second part of the incident, when the complainant chased the accused person, the shops were open, but surprisingly, no shopkeeper was examined. Even during the investigation, Imdad Ullah S.I. (PW-13), the Investigating Officer, did not join them. Even the prosecution witnesses did not explain the reason for their presence at the place of occurrence. Imdad Ullah S.I. (PW-13)-the investigating officer deposed during cross-examination that:- “During investigation Mansab and Waris witnesses did not give my any explanation about to their visit to the Havely of Younas. During investigation no person from the locality appeared before me to verify the presence of Mansab and WAris at the Havely of Younas. It is correct that neither deceased Mansab has any relation with complainant party nor he has any enmity with the accused party.------------- Witness Riaz and Imtiaz did not give any reason why and from what time they were sitting in that open place.--- --------------- During investigation no person from the locality had recorded their statements to the effect that they had seen these persons while riding on motorcycles and Mansab complainant was chasing them. I inquired from the people of locality to verify this fact but due to existing of enmity between the parties none of them joined the investigation.” Thus, it becomes clear that the testimonies of Mansab Ali (PW-1)- the complainant, Muhammad Younas (PW-2), and Imtiaz Hussain (PW-3)

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contain significant contradictions and when it has become clear that there are major contradictions in the statements of witnesses, then their testimonies become doubtful, and the story narrated by the prosecution witnesses becomes wholly unbelievable, and such witnesses cannot be relied. In addition, on perusal of the inquest reports (Ex.PO/4 & Ex.PR/4) of Mansab Ali and Shahram Zafar, respectively, it reveals that Imdad Ullah S.I (PW-13)-the investigating officer prepared the inquest reports (Ex.PO/4 & Ex.PR/4) at 09:00 p.m, while he (PW-13)-the investigating officer himself deposed during cross-examination that he reached the place of occurrence at 09:30 p.m. Even, on perusal of postmortem reports (Ex.PO & Ex.PR) it reveals that the dead bodies were received in the mortuary at 08:30 p.m. and the doctor also endorsed the application for postmortem examination (Ex.PO/3), inquest report (Ex.PO/4), injury statement (Ex.PO/5) of Mansab Ali (the deceased) and application for postmortem examination (Ex.PR/3), inquest report (Ex.PR/4) and injury statement (Ex.PR/5) of Shahram Zafar. On perusal of Exh.PO/3, Exh.PO/4, Exh.PO/5, Exh.PR/3, Exh.PR/4 & Exh.PR/5 it reveals that particulars of the FIR were mentioned thereon. Whereas the FIR was registered at 09:00 p.m. and the dead bodies were received in the mortuary at 08:30 p.m. It appears that before registering the FIR, the investigating officer prepared all the documents, whereupon the particulars of the FIR were mentioned, bodies were sent to THQ Hospital, they waited for the witnesses, and after that the FIR was registered. We have reviewed the entire evidence of persecution and found that the prosecution has suppressed the genesis and the original of the occurrence and thus has not presented the true version. In these circumstances, it is difficult to accept the testimonies of the prosecution witnesses, i.e., Mansab Ali (PW-1), the complainant, Muhammad Younas (PW-2), and Imtiaz Hussain (PW-3).

11.So far as the motive is concerned, the trial court has already disbelieved the motive part of the evidence. In addition, Mansab Ali (PW-1) also admitted during cross-examination that:-

“Mansib Ali s/o Shamir was neither cited as witness nor accused in our previous litigation. It is also correct that Mansib Ali s/o Shamir never joined

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investigation in our previous litigation from either side. Mansib Ali s/o Shamir has one son and two daughters, his wife is also alive. ------ Any family member of Shamir is not cited as witness in this case.

------------- Before this occurrence there was no enmity between the family of accused Kashif and Mansib Ali s/o Shamir. Before this occurrence there was no enmity between the Mansib Ali (deceased) and Rana Family.”

So, the prosecution has failed to establish the motive for the incident.

12.Regarding the recoveries of the weapons of offence, namely pistol (P-3) along with four live bullets (P-4/1-4) on the pointing of Kashif alias Kashi (the appellant in Crl. Appeal No. 40664- J of 2022) on 25.07.2019, and pistol (P-

5)with five live bullets (P 6/1-5) on the pointing of Haroon (the appellant in Crl. Appeal No. 40665- J of 2022) on 29.07.2019, along with the positive report of the Punjab Forensic Science Agency (Ex. PZ), the prosecution states that the appellants were arrested on 22.07.2019. After Kashif alias Kashi's disclosure, on 25.07.2019, Imdad Ullah, S. I. (PW- 13), the investigating officer, recovered a pistol (P-3) with four live bullets (P-4/1- 4) from his (Kashif alias Kashi's) house, secured through a recovery memo (Ex. PF). Similarly, on 29.07.2019, on the pointing of Haroon a pistol (P- 5) and five live bullets (P-6/1-5), also recovered from his house, and a recovery memo (Ex.PG) was prepared. The incident reportedly occurred on 14.07.2019. According to Imdad Ullah S.I. (PW-13), after completing the on-site proceedings, he searched the accused's houses but did not find them. They then continued searching for the accused persons. Witnesses Mansib Ali (PW- 1), Muhammad Younas (PW- 2), and Imtiaz Hussain (PW- 3) testified that the accused fled after the incident. When the accused fled, and the search continued, it's unreasonable to assume they would return to their houses and leave the weapons (P-3 & P-5) there for the officers to find upon their arrest, as they could have easily disposed of the pistols. The Punjab Forensic Science Agency's report (Ex.PZ) indicates that two sealed parcels containing a 30-caliber pistol with a magazine were received; however, it does not mention whether the magazine contained bullets or if

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bullets were present in the magazine. The prosecution's case does not suggest the officer secured bullets in the magazine. The investigating officer prepared two sealed parcels (Exh. PF and PG) containing pistols along with live bullets. But the parcels received by the forensic agency included pistols with magazines, yet no live bullets were recovered. Therefore, the parcels sent were not the same as those prepared by Imdad Ullah S.I. (PW-13), the investigating officer. We have also noted that Dr. Muneeb Afsar (PW-12), who conducted the postmortem on the dead body of the deceased Mansab Ali s/o Shameer, recovered a bullet from the right side of the chest at the 6th intercostal space, sealed it in a bottle, and handed it over to the concerned constable. We have noted that the said bullet was not sent to the Forensic Science Laboratory for comparison with the 30-bore pistol (P-3 and P-5) recovered on the pointing of the appellants, nor was the same exhibited in evidence of the prosecution. Thus, it was established from the evidence of Dr. Muneeb Afsar (PW-12) that bullet was recovered and the same was handed over to the police, therefore, an adverse inference is to be drawn within the meaning of Article 129 (g) of Qanun-e-Shahadat, 1984 that had the bullet sent to Forensic Science Laboratory for its comparison then the said report would have been unfavorable to the prosecution. Reliance is placed on the case reported as “The State and others v. Abdul Khaliq and others” (PLD 2011 SC 554). So, the recoveries of the weapons from the accused persons are of no consequence.

13.As it is difficult to rely upon the testimonies of Mansab Ali (PW- 1)-the complainant, Muhammad Younas (PW-2) and Imtiaz Hussain (PW-3), and for other reasons enumerated hereinbefore, we are persuaded to hold that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt as there were many dents in the prosecution story. The conviction and sentence recorded by the trial court cannot be sustained. It is held in the case of “Muhammad Akram v. The State” (2009 SCMR 230) that: - “The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the

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benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

14.Considering the above discussion, we affirm that the prosecution has failed to prove its case against the appellants beyond any shadow of a doubt. Therefore, we accept both appeals, i.e., Criminal Appeal No. 40664-J of 2022 and Crl. Appeal No.40665-J of 2022, filed by Kashif alias Kashi and Haroon-appellants, set aside their conviction and sentence recorded by the learned Additional Sessions Judge (MCTC), Pindi Bhattian vide judgment dated 16.06.2022 and acquit them of the charges in case FIR No.311 of 2019, dated 14.07.2019, offences under sections 302, 109, 148, 149 of P.P.C, registered at the police station, Saddar Pindi Bhattian. The appellants, Kashif alias Kashi and Haroon, are ordered to be released forthwith, if not required in any other case.

15.Murder Reference No.250 of 2022, forwarded by the trial court for confirmation of the sentence of death inflicted upon the convicts, Kashif alias Kashi and Haroon, fails, which is answered in the negative, and the death sentence is not confirmed.

(Abher Gul Khan) (Aalia Neelum) Judge Chief Justice Approved for reporting

Judge Chief Justice This judgment was dictated, pronounced on 9th March 2026, and signed after its completion on 16th March, 2026.

Ikram*