Muhammad Atif etc. vs The State etc.

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 02 of 2024 (The State Vs. Muhammad Atif)

Criminal Appeal No. 62 of 2024 (Muhammad Atif and another Vs. The State and another.)

Date of hearing: 20.01.2026

Appellant by: Mr. Zeeshan Haider, Advocate.

State by: Mr. Asghar Ali Gill, Deputy Prosecutor General.

Complainant by : Mr. Muhammad Umair Mohsin, Advocate.

JUDGMENT.

SADIQ MAHMUD KHURRAM, J.– Muhammad Atif son of

Ghulam Farid and Jamal son of Daleel Khan (convicts) were tried along with Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi, their co-accused, all since acquitted, by the learned Additional Sessions Judge, Chishtian in the case instituted upon the private complaint titled “Sikandar Ali Vs. Atif and seven others “ filed in respect of offences under sections 302,324,148 and 149 P.P.C. (related to the F.I.R. No. 310 of 2022 dated 10.07.2022 at the Police Station Dharanwala, District Bahawalnagar), for committing the Qatl- i-Amd of Hafiz Shahid Lateef son of Abdul Lateef(deceased). The learned trial court, vide judgment dated 23.01.2024, convicted Muhammad Atif son of

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Ghulam Farid and Jamal son of Daleel Khan (convicts) and sentenced them as infra:

Muhammad Atif son of Ghulam Farid:

Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Hafiz Shahid Lateef son of Abdul Lateef(deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

Jamal son of Daleel Khan:-

Imprisonment for Life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Hafiz Shahid Lateef son of Abdul Lateef(deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was however, extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898.

Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi,the co-accused of the convicts, were however, acquitted by the learned trial court.

2.Feeling aggrieved, Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan(convicts) lodged Criminal Appeal No.62 of 2024 assailing their convictions and sentences. The learned trial court submitted Murder Reference No.02 of 2024 under section 374 Cr.P.C., seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Atif son of Ghulam Farid. We intend to dispose of the Criminal

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Appeal No. 62 of 2024 and Murder Reference No.02 of 2024 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Sikandar Ali (PW-1), the complainant of the case are as under:- “ It is stated that I run a general store with the name of Pehnawa store at Dahranwala Chishtian. On 10.07 2022, at about 06.00 PM I alongwith my cousin Shahid Lateef, Muhammad Waheed Arshad and Muhammad Irfan were going on Shehzore Dala bearing No. MLM- 4564 to load animal hides and skins of Eid-ul-Adha at Dahranwala. When we reached near Government High School Chak No. 167/Murad Chishtian all of sudden the accused persons while riding three motorcycles came in front of our Dala stopped us. All the accused persons while boarding their respective motorcycles gathered at the left side of our Dala, said accused persons namely-Muhammad Atif armed with Pistol, Muhammad Arif armed with pistol, Muhammad Jamal armed with Pistol, Muhammad Bilal, Ghulam Nabi, Ayaz Farid, Waqas Fareed (present in court) and two unknown accused persons empty handed. All the accused persons raised Lalkara to Hafiz Shahid Lateef (deceased) that they will taught a lesson today to him for supporting Furqan Arshad. Accused Muhammad Atif made pistol fire shot which landed upon left arm of Hafiz Shahid Lateef he made again pistol fire shot which landed on left side of ribs of Hafiz Shahid Lateef. Accused Jamal made pistol fire shot which landed upon inner side of upper Arm (Dola) of Hafiz Shahid Lateef. Accused Muhammad Arif made pistol fire shot which Landed upon left upper arm (Dola) of Hafiz Shahid Lateef who fell down in injured condition in Dala. We all Muhammad Irfan and Waheed Arshad rescued, shifted him at RHC, Dahranwala. Local police also reached there. Injured Hafiz Shahid Lateef (deceased) was not able to get record his statement. Upon my statement Exh.P.A FIR was registered. Injured Hafiz Shahid Lateef was referred to BVH. Hospital Bahawalpur due to his critical condition. I.O accompanied us at the place of occurrence. Hafiz Shahid Lateef during treatment in the same night at about 06.00 AM succumbed to the injuries. I.O got conducted the post mortem examination of deceased and recorded our statements.

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During investigation, SHO, DSP circle Chishtian being in league with the accused persons managed duty of Muhammad Aamir Mehmood ASI (I.O) in matter of flood affectees and handed over the investigation of the instant case to one Muhammad Ayoub SI, who conducted dishonest partial and against the facts and law investigation. Muhammad Ayoub SI only in order to favor and to save the skin of the accused person nominated in FIR from the expected punishment nominated accused Muhammad Siraj upon his own in place of unknown accused persons and recorded his afterthought, concocted extra judicial confession upon his own and produced him before the learned Area Magistrate and submitted application for recording the statement u/s 164 Cr.P.C but said Siraj refused to get record statement u/s 164 Cr.P.C and application was dismissed. I.O Muhammad Ayoub SI again being in league with-accused-persons got submitted application for recording the statement U/S 164 Cr.P.C through private counsel but the same was again dismissed by the learned Area Magistrate. I.O Muhammad Ayoub Sl remained consistent for giving benefits to the accused person nominated-in-FIR and in this regard he planted fake recovery of pistol upon said Siraj showing from the house of the accused Muhammad Jamal and declared accused Muhammad Jamal none to be involved in the commission of occurrence. I appeared before Magistrate court and submitted my written affidavit maintaining therein that said Siraj neither was nominated by me nor he is my accused, rather local police planted him in my case in order to favour the real accused persons, learned court advised me to approach high ups of police upon which I submitted application before RPO, Bahawalpur against the act and conduct of L.O. RPO got conducted inquiry and concluded that Muhammad Ayoub SI conducted dishonest and partial investigation and recommended change of investigation. Muhammad Ayoub Sl while concluded the investigation declared Muhammad Atif, Muhammad Bilal and planted one Siraj to be involved in commission of occurrence and rest of accused persons not to be involved in the commission of the occurrence.

The second investigation was conducted by DSP, circle Minchinabad who conducted the investigation, I alongwith my witnesses produced oral as well as documentary evidence to prove my version. Said I.O concluded that nothing is available in shape of incriminating material against said Siraj and he challan the accused

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persons Muhammad Atif, Bilal and Muhammad Jamal in commission of occurrence however, he also declared rest of the accused persons not be involved in the commission of occurrence however, he did not conduct any criminal proceedings against Muhammad Ayoub SI being sub-ordinate. I being aggrieved filed the instant private complaint Exh.P.B. The accused persons of my complaint case are real culprits may kindly be punished as per law.”

4.The accused were summoned to face trial in the case instituted upon the private complaint titled “Sikandar Ali Vs. Atif and seven others “filed in respect of offences under sections 302,324,148 and 149 P.P.C. (related to the F.I.R. No. 310 of 2022 dated 10.07.2022 at the Police Station Dharanwala, District Bahawalnagar), for committing the Qatl-i-Amd of Hafiz Shahid Lateef son of Abdul Lateef(deceased). The learned trial court framed the charge against the accused on 02.09.2023, to which the accused pleaded not guilty and claimed trial.

5.The complainant of the case in order to prove his case got recorded statements of as many as five witnesses. The ocular account of the case was furnished by Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3). Muhammad Saeed Akhtar (PW-4) stated that on 09.07.2022, Ayyaz Farid (since acquitted), the co-accused of the convicts, threatened him that the deceased would be done to death. Muhammad Azam (PW-5) stated that on 10.07.2022, he had seen Arif and Ghulam Nabi (both since acquitted)the co-accused of the convicts, riding on a motorcycle going towards Chak 170/Murad.

6.The learned trial court recorded the statements of as many as thirteen court witnesses. Ehtsham Ali 1019/C (CW-1) stated that on 10.07.2022, he

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took the written application (Exh.PA) to the police station. Arshad Ali 841/C (CW-2) stated that on 10.07.2022, he got Hafiz Shahid Latif, then injured later deceased, examined by the Medical Officer. Muhammad Arshad 812/HC (CW-3) stated that on 10.07.2022, the Investigating Officer of the case handed over to him two sealed parcels said to contain empty shells of bullets and the shirt of the deceased and also a vehicle and on 20.07.2022, the Investigating Officer of the case handed over to him a sealed parcel said to contain a bullet and on 27.07.2022, he handed over the sealed parcels said to contain empty shells of bullets and the shirt of the deceased to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Farooq draftsman (CW-6) prepared the scaled site plan of the place of occurrence (Exh.CW-6/A). Shahenshah Ahmad Chandio, DSP (CW-10) investigated the case from 12.11.2022 till 10.02.2023 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Muhammad Ayyub SI (CW-11) investigated the case from 25.08.2022 till 20.10.2022, arrested the appellant namely Muhammad Atif on 07.09.2022, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Amir Mahmood, ASI (CW-12) investigated the case from 10.07.2022 till 25.08.2022 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

7.The learned trial court also recorded the statement of Dr. Ali Hasnain (CW-9) who on 10.07.2022 was posted as Medical Officer at the RHC Dahranwala and on the same day had conducted the medical examination of Hafiz Shahid Lateef son of Abdul Lateef (then injured later deceased). On

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examining Hafiz Shahid Lateef son of Abdul Lateef (then injured later deceased), Dr. Ali Hasnain (CW-9) observed as under:- “Description of injuries:

Injury No. 01.

Lacerated wound of 5cm x2.5 cm flesh exposed. Blood coming out of the wound. About 15 cm distal to left shoulder joint and 2.5 cm proximal left elbow joint. Advice x-ray left arm AP/LT.

Injury No. 02.

Firearm 1 (entry wound) of 1.6 cmx 1.5 cm about 7.5 cm distal to the left acromion of left arm. Blood coming out of wound. Collar abrasion present with inverted margins. Advice x-ray left arm AP/LT.

2 (exit wound) of 2 cm x 2 cm about 5 cm from the left acromion of left arm. Everted margins. Blood coming out of it. Advice x-ray left arm AP/LT.

Injury No. 03

Firearm 1 (entry wound) of 1x1 cm about 5 cm from the left elbow joint. Inverted margin. Collar abrasion present. Blood coming out of the wound.

2 (exit wound) 2cm x 2cm everted margins about 3 cm from left elbow joint. Advice x-ray left arm AP/LT.

Injury No.04

Firearm 1 (entry wound) of 2 cm x 2 cm with Inverted margins. Collar abrasion present in mid axillary line on the chest left

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sided at the level of nipple blood coming out of it. Advice x-ray chest

AP/LT.

All injuries are KUO and referred to BVH, Hospital

Bahawalpur for further management and surgical notes. Patient was critical. Firearm injuries No. 2, 3, 4 and blunt weapon injury No.1. No fabrication and probable duration of injuries within six hours. I also singed diagram of injuries regarding seat of injuries as Exh.CW-9/Α/1.”

The learned trial court also recorded the statement of Dr. Muhammad Shoaib Abdullah (CW-8) who on 10.07.2022 was posted as Medical Officer at the Bahawal Victoria Hospital, Bahawalpur and on the same day had conducted the medical examination of Hafiz Shahid Lateef son of Abdul Lateef (then injured later deceased) and observed the same injuries as were observed by Dr. Ali Hasnain (CW-9). The learned trial court also recorded the statement of Muhammad Asim (CW-7) who on 11.07.2022 (inadvertently mentioned as 11.10.2022 in the statement of Dr. Muhammad Asim (CW-7), had conducted the post mortem examination of the dead body of Hafiz Shahid Lateef son of Abdul Lateef (deceased) and observed the same injuries present on the dead body of Hafiz Shahid Lateef (deceased) as were observed by Dr. Ali Hasnain (CW-9) and gave his final opinion as under:-

“OPINION.

After thorough external and internal examination MLC notes and treatment notes from BVH, Bahawalpur I am of the opinion that above mentioned injuries are anti mortem in nature and caused by firearm weapon these injuries damage vital organs of body which leads massive blood loss, hemorrhagic shock and cardiopulmonary arrest and ultimately death. I issued PMR No.27/22 dated 11.10.2022 Exh.CW-7/A which is carbon copy

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of original and in my hand writing and bears my signatures. I also signed injury statement Exh.CW-7/B and inquest report Exh.CW-7/C. ”

8.On 26.10.2023, the counsel for the complainant gave up the prosecution witnesses namely Tahir Mahmood and Muhammad Saleem as being unnecessary. On 09.12.2023, the learned counsel for the complainant closed the prosecution evidence after tendering in evidence the attested copy of application for recording statement under section 164 Cr.P.C dated 08.09.2022 and order dated 08.09.2022 (Exh.P.E/1 and Exh.P.E/2), the attested copy of application for recoding statement under section 164 Cr.P.C and order dated 12.09.2022 (Exh.P.F and Exh.P.F/1), the attested copy of application for initiation of legal action against Muhammad Ayyoub SI (Exh.P.G), the attested copy of Writ Petition No. 4861-22( Exh.P.H) and orders dated (20.06.2022 Exh.P.H/1), the attested copy of private complaint titled "Gulnaz Bano vs. Lal Khan etc" and order sheet as (Exh.P.I) , the attested copy of statement of Gulnaz Bano dated 21.11.2022 (Exh.P.I/1),the attested copy of Crim. Misc No. 4197-H-22 titled "Sughran Bibi vs.. SHO etc" (Exh.P.J) and order dated 23.11.2022 (Exh.P.J/1), copy of affidavit of the complainant (Mark-A), copy of application against SHO and I.O before RPO (Mark-B), copy of inquiry report as (Mark-B/1), copy of Nikahnama of Furqan Arshad with Gulnaz Bano (Mark-C), application for registration of case titled "Waheed Arshad vs. Jamal etc" (Mark-D), copy of habeas petition titled Sughran Bibi vs. SHO City Hasilpur (Mark-E), copy of orders dated 06.07.2022 (Mark-E/1), copy of FIR No.. 309/22 (Mark-F) and copy of FIR No. 354/22 (Mark-G).

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9.After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.

10.On the conclusion of the trial, the learned Additional Sessions Judge, Chishtian convicted and sentenced the appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan as referred to above.

11.The contention of the learned counsel for the appellants precisely was that the whole case was fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence due to suspicion alone. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.

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12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellants. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3).

The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the Pistol (P-4) from the appellant namely Muhammad Atif son of Ghulam Farid and the recovery of the motorcycle from the appellant namely Jamal also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, they prayed for the rejection of the appeal.

13.We have heard the learned counsel for the appellants, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance, perused the record and evidence recorded during the trial.

14.At the very outset, we have noted with grave concern that the prosecution witness namely Sikandar Ali (PW-1), in his statement as recorded

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by the learned trial court, claimed that he had also witnessed the occurrence , however, his such claim was exposed to be false when not only he himself but the other witnesses were also confronted with their previous statements wherein no such claim was made by them that Sikandar Ali (PW-1) had also witnessed the incident. During cross-examination, Sikandar Ali (PW-1) was confronted with this improvement made by him that he had also witnessed the occurrence with his written application (Exh.PA) as submitted by him to Amir Mahmood, ASI (CW-12) and the learned trial court observed as under:- “ I got recorded in my statement Exh.P.A that I alongwith my cousin Shahid Latif, Muhammad Waheed Arshad and Muhammad Arfan were present at the spot at the time of occurrence. Confronted with Exh.P.A where the words 'I alongwith my witnesses' is (sic) not mentioned.

I got recorded in my statement Exh PA that I and my witnesses attended Hafiz Shahid Latif and shifted him at RHC, Dahranwala. Confronted with Exh.P.A where the word 'I' is not mentioned.”(emphasis supplied)

The fact that Sikandar Ali (PW-1) had not been mentioned as a witness who was present at the place of occurrence and had also seen the incident was confronted with from the prosecution witness namely Waheed Arshad (PW-

2)and during the cross-examination of Waheed Arshad (PW-2), the learned trial court observed as under:-

“ I got recorded in Exh.D.A my statement u/s 161 Cr.P.C that complainant was also with us. Confronted with Exh.D.A where it is not so recorded” (emphasis supplied)

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Muhammad Riaz SI (CW-13), who had recorded the formal F.I.R. (Exh.CW- 13/A) on 10.07.2022, frankly admitted that Sikandar Ali (PW-1) was not mentioned as an eye witness in the formal F.I.R. (Exh.CW-13/A). During cross-examination, Muhammad Riaz, SI (CW-13), stated as under: - “I perused the written complaint. I recorded FIR as per contents of written It is correct that bear perusal of FIR does not reveal presence of complainant ”

The above referred admission of Muhammad Riaz SI (CW-13), who had recorded the formal F.I.R. (Exh.CW-13/A) on 10.07.2022, that Sikandar Ali (PW-1) was not mentioned as a witness in the formal F.I.R. (Exh.CW-13/A) who had seen the occurrence conclusively proves that Sikandar Ali (PW-1) made a very sinister effort to claim himself as an eye witness of the incident, however, he was exposed in this regard. The perusal of the written application (Exh.PA) as submitted by the Sikandar Ali (PW-1) to Amir Mahmood ASI (CW-12) itself makes it clear that Sikandar Ali (PW-1), at the time of submission of the written application (Exh.PA), had not claimed that he was a witness who had seen the occurrence, rather only informed the police of the incident. In this manner, the prosecution witness namely Sikandar Ali (PW-

1)himself impeached his credit when he improved upon his statement and claimed to have witnessed the occurrence in his statement before the learned trial court , contrary to his own written application (Exh.PA) wherein it had not been mentioned that Sikandar Ali (PW-1) had also witnessed the incident or was even present at the time of the incident. Article 151 of the Qanun-e- Shahadat Order 1984 provides as under:

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“151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:

(1)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;

(2)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(3)by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;”

As the prosecution witness namely Sikandar Ali (PW-1) introduced dishonest, blatant and substantial improvements to his previous statement and was duly confronted with his written application (Exh.PA), hence his credit stands impeached and the prosecution witness namely Sikandar Ali (PW-1) cannot be relied upon, being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of “Muhammad Ashraf Vs. State” (2012 SCMR 419) took serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of the prosecution witness namely Sikandar Ali (PW-1) has no intrinsic worth and is to be rejected outright. The august Supreme Court of Pakistan in a recent case reported as “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence”.

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The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle:

“It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.”

Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Amin Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- “11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution.

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13.From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence.”

14.We have also gone through the statements of Waheed Arshad (PW-2) and Muhammad Irfan (PW-3), the eye witnesses of the occurrence and have arrived at irresistible conclusion that both Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) could not prove their presence at the place of incident, at the time of the incident. The relationship of the said witnesses with the deceased is on record. Hafiz Shahid Latif (deceased) was the cousin of Waheed Arshad (PW-2) and Muhammad Irfan (PW-3). It is also an admitted fact that both the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) were not the residents of the place of occurrence.

According to the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3), both of them had their residences within different localities, away from the place of occurrence. The prosecution witness namely Sikandar Ali (PW-1) explained during cross-examination as under:- “ My residence is at distance of about 1.5 acre from the place of occurrence.

I and deceased were living in the same house. Residence of Saeed Akthar PW is in the same street in which my residence situated at distance of 5/6 houses.”

Similarly, the prosecution witness namely Muhammad Irfan (PW-3) during cross-examination admitted as under:-

“Tahir PW is my real brother. I am neighbourer of deceased.”

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The houses of both the prosecution witnesses namely Waheed Arshad (PW-

2)and Muhammad Irfan (PW-3) have also not been mentioned in the rough site plan of the place of occurrence (Exh.CW-12/A) as prepared by Amir Mahmood, ASI (CW-12) and in the scale site plan of the place of occurrence (Exh.CW-6/A) as prepared by Muhammad Farooq draftsman (CW-6). In this manner, both the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) can be validly termed as “chance witnesses” and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. In order to prove their presence at the place of occurrence, at the time of occurrence, the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) claimed that they were the passengers of the vehicle bearing registration No. MLM-4564 (exhibited as P-4 and P-8 ) , whereupon hides of animals were being transported by them to Dahranwala and which vehicle was being driven by one Tariq. During cross-examination Waheed Arshad (PW-2) stated as under:- “I collected 4/5 hide and skin of animals from my house and from the family members and kept the same in the house of deceased. Only Tariq driver came at dala. About 10 minutes we stayed at the house of deceased. We proceeded on dala towards the house of one Naveed for taking hide and skin

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of animal. We, before our departing loaded all the hide and skin of animal on dala from the house of deceased. After taking last hide and skin from house of Naveed we proceeded towards Dahranwala.” (emphasis supplied)

Similarly, the prosecution witness namely Muhammad Irfan (PW-3) also claimed that they were the passengers of the vehicle bearing registration No.

MLM-4564(exhibited as P-4 and P-8 ), whereupon hides of animals were being transported by them to Dahranwala and which vehicle was being driven by one Tariq and stated during cross-examination as under:- “ Shehzor Dala reached at the house of deceased at about 05.30 p.m. We collected 4/5 hide and skin of animals from my house and from the family members and kept the same in the house of deceased. Only Tariq driver came at dala. About 10 minutes we stayed at the house of deceased. We proceeded on dala towards the house of one Naveed for taking hide and skin of animal. We, before our departing loaded all the hide and skin of animal on dala from the house of deceased. After taking last hide and skin from house of Naveed we proceeded towards Dahranwala. Just after 2/3 minutes of occurrence.” (emphasis supplied) Despite this claim of the prosecution witnesses namely Waheed Arshad (PW-

2)and Muhammad Irfan (PW-3) that they were the passengers of the vehicle bearing registration No. MLM-4564(exhibited as P-4 and P-8 ), whereupon hides of animals were being transported by them to Dahranwala, when the Investigating Officer of the case took into possession the said vehicle bearing registration No. MLM-4564 (exhibited as P-4 and P-8 ), he did not find the presence of any such hides of animals. During cross-examination, Amir

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Mahmood, ASI (CW-12), the Investigating Officer of the case, admitted as under:-

“ It is correct that no recovery memo regarding taking into possession skin and hide of animals is available in police”

As mentioned above, Amir Mahmood, ASI (CW-12), the Investigating Officer of the case, visited the place of occurrence after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Amir Mahmood, ASI (CW-12), the Investigating Officer of the case did take the possession of the vehicle bearing registration No.

MLM-4564 (exhibited as P-4 and P-8 ), however, did not find any hides of the dead animals which were being transported by the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3), though there was no occasion for the said hides of the dead animals not to have been present inside the vehicle bearing registration No. MLM-4564 (exhibited as P-4 and P-8 ) or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence, if the same were available. The said hides of the dead animals which were being transported by the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) were not even produced during the entire period of investigation nor were produced before the learned trial court. The non-production of the hides of the dead animals which were being transported by the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) and the failure of Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) to produce the same before the learned trial court leads to only one conclusion and that being that no such hides of the dead animals were being transported by the prosecution

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witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) and a false claim had been made in this regard by the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) to justify their presence at the place of the incident. In this manner, both the eye witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence and the mode through which they arrived at the place of occurrence. The prosecution was under a bounden duty to establish not only that the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) had a reason to proceed to the place of occurrence but also to prove the mode through which the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) arrived at the place of occurrence. The failure of the prosecution to prove the said fact has vitiated our trust in Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) as being truthful witnesses.

15.We have also noted that though the prosecution witnesses namely Sikandar Ali (PW-1) ,Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) admitted that the vehicle bearing registration No. MLM-4564 (exhibited as P- 4 and P-8 ) in which the deceased suffered the injuries was being driven by one Tariq, however, the said Tariq was never produced as a witness during the investigation of the case or even before the learned trial court, though his presence was admitted by the prosecution witnesses namely Sikandar Ali (PW-1) ,Waheed Arshad (PW-2) and Muhammad Irfan (PW-3). During cross- examination, Sikandar Ali (PW-1) admitted as under:-

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“Name of driver of dala was Tariq. ”

Similarly, during cross-examination the prosecution witness namely Waheed Arshad (PW-2) admitted as under:-

“Only Tariq driver came at (sic) dala.”

Muhammad Irfan (PW-3) also stated as under:-

“Only Tariq driver came at (sic) dala.”

During cross-examination,Shahenshah Ahmad Chandio, DSP (CW-10), the Investigating Officer of the case admitted that he did not record the statement of Tariq, driver of the vehicle, riding upon which the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) claimed to had arrived at the place of the occurrence and stated as under:- “Tariq Driver and Ghulam Mustafa helper were also present with deceased who did not appear before me.”

Muhammad Ayyub, SI (CW-11), another Investigating Officer of the case also admitted during cross-examination as under:-

“During my investigation, in first cabin of Shahzor Dala there persons were sitting. During investigation it was also established that Tariq, driver of Dala and Mustafa helper were also present with deceased hafiz Shahid Latif at the time of alleged occurrence. As per statement of Mustafa recorded by me, one motorcycle came in front of Dala upon which three persons were ride and out of which one person opened pistol.

Both said persons did not disclose the name of any accused person before me.” (emphasis supplied)

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The purpose of the trial is the discovery of truth. As long as men keep lying, the only casualty would be reality. This failure of the prosecution to produce the said Tariq, the driver of the vehicle, as a witness has repercussions, which entail the failure of the prosecution's case against the appellants. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:-

“(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

The failure of the prosecution to produce the said Tariq, the driver of the vehicle of which the deceased was the passenger, sitting on the front seat and the most natural witnesses ,before the learned trial court , has convinced us that had Tariq been produced before the learned trial court he would not have supported the prosecution's case. Reliance in this matter is placed on the cases of SHAMSHAD versus THE STATE (1998 SCMR 854 also cited as 1999 SCMR 2844) ,Lal Khan versus THE STATE (1996 SCMR1846) , USMAN alias KALOO versus THE STATE (2017 SCMR 622) , Muhammad Irshad Vs.

Allah Ditta and others (2017 SCMR 142) and G. M. NIAZ Vs. The State”

(2018 SCMR 506).

16.We have also noted another flaw in the statements of prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) in the manner that they both stated that the deceased had suffered the injuries

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while remaining inside the vehicle bearing registration No. MLM-4564 (exhibited as P-4 and P-8 ) and even after sustaining the injuries he fell inside the vehicle; however, no blood stained article was seized by the Investigating Officer of the case from inside the said vehicle. The prosecution witness namely Sikandar Ali (PW-1) claimed in his statement recorded by the learned trial court as under:-

“Accused Muhammad Arif made pistol fire shot which Landed upon left upper arm (Dola) of Hafiz Shahid Lateef who fell down in injured condition in Dala ” (emphasis supplied)

Similarly, the prosecution witness namely Waheed Arshad (PW-2) claimed in his statement recorded by the learned trial court as under:- “Accused Muhammad Arif made pistol fire shot which Landed upon left upper arm (Dola) of Hafiz Shahid Lateef who fell down in injured condition in Dala ” (emphasis supplied)

Muhammad Irfan (PW-3) claimed in his statement recorded by the learned trial court as under:-

“Accused Muhammad Arif made pistol fire shot which Landed upon left upper arm (Dola) of Hafiz Shahid Lateef who fell down in injured condition in Dala ” (emphasis supplied)

Despite this claim of the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) that the deceased had suffered the injuries while remaining inside the vehicle and even after sustaining the injuries, he fell inside the vehicle, no blood stained article was seized by the Investigating Officer of the case from inside the said vehicle and

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only the blood stained shirt of the deceased was produced before the Investigating Officer of the case. In this regard, Muhammad Ayyub, SI (CW- 11), the Investigating Officer of the case admitted during cross-examination as under:-

“During the whole investigation, none produced before me any blood stained cloth, except of deceased . ”

Moreover, the said vehicle bearing registration No. MLM-4564 (exhibited as P-4 and P-8 ) was never taken to the Punjab Forensic Science Agency, Lahore for analysis. In this manner, the claim of the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) that the deceased had suffered the injuries inside the vehicle bearing registration No. MLM-4564 (exhibited as P-4 and P-8 ) was not proved.

17.We have also noted that it was admitted by the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) that at the time of the incident, only the deceased and Tariq, the driver of the vehicle bearing registration No. MLM-4564 (exhibited as P-4 and P-8), were present in the front part of the vehicle, whereas the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) were standing on the back of the vehicle, in its carriage part. During cross-examination, Sikandar Ali (PW-1) explained as under:- “Two persons i.e driver and deceased Hafiz Shahid Latif were present in front side cabin of Dala at the time of occurrence. ” (emphasis supplied)

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In the rough site plan of the place of occurrence (Exh.CW-12/A) as prepared by Amir Mahmood, ASI (CW-12), at point No.6 , it was mentioned that the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) were present on the back of the vehicle, in its carriage part. When this fact was brought on record by the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) themselves that they were present on the back of the vehicle, in its carriage part, then their statements that they had seen the bullets hitting on the specific parts of the body of the deceased becomes highly doubtful,unlikely and implausible as it would not have been possible for any person standing in the carriage part of the vehicle to have seen the seats of injuries inflicted by the accused upon the deceased who was sitting inside the front part of the vehicle.

18.The statements of the prosecution witnesses namely Sikandar Ali (PW-1) , Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) suffer from further flaw in the manner that they claimed that they had taken the deceased in an injured condition to the hospital, whereas Arshad Ali 841/C (CW-2) stated that it was him who had got the deceased in an injured condition examined by the Medical Officer at RHC Dahranwala. In this statement recorded by the learned trial court, Arshad Ali 841/C (CW-2) stated as under:- “ Stated that on 10.07.2022, I was posted at police station Dahranwala.

On the same day, I.O Aamir Mehmood ASI handed over to me injury statement of injured Hafiz Shahid Lateef (deceased) in order to get his medical examination. I produced injured Hafiz Shahid Lateef alongwith injury statement to M.O RHC, Dahranwala. After medical

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examination M.O handed over to me worn Qameez Boski color blood stained P.1.” (emphasis supplied)

Arshad Ali 841/C (CW-2) was not even cross examined by the learned counsel for the complainant and his statement was admitted, which proves that the injured was taken to the hospital by Arshad Ali 841/C (CW-2) and not the prosecution witnesses namely Sikandar Ali (PW-1) , Waheed Arshad (PW-2) and Muhammad Irfan (PW-3).

19.We have also noted that the ocular account of the incident as narrated by the prosecution witnesses namely Sikandar Ali (PW-1) , Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) was proved to be inconsistent with the medical evidence. According to the statements of the prosecution witnesses namely Sikandar Ali (PW-1) , Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) , the deceased had been fired upon by the accused with pistols carried by them however according to the statement of Dr. Ali Hasnain (CW-9) , who on 10.07.2022 was posted as Medical Officer at the RHC Dahranwala and on the same day had conducted the medical examination of Hafiz Shahid Lateef son of Abdul Lateef (then injured later deceased), on examining Hafiz Shahid Lateef son of Abdul Lateef (then injured later deceased), Dr. Ali Hasnain (CW-9) observed a lacerated wound of the dimension of 5cm x2.5 cm, with flesh exposed, and blood coming out of the wound the wound,present about 15 cm distal to the left shoulder joint and 2.5 cm proximal of the left elbow joint , which injury had been caused by means of a blunt edged weapon. In this manner, the prosecution witnesses namely Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) failed to explain the presence of the injury inflicted by use of a blunt edged weapon on the body of the deceased which

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was observed by Dr. Ali Hasnain (CW-9), who had medically examined the deceased in an injured condition. Furthermore, according to the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) ,the deceased had suffered three bullet injuries on his left arm ,whereas according to Dr. Ali Hasnain (CW-9), the deceased had suffered only two injuries on his left arm caused by bullets. The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Sikandar Ali (PW-1) , Waheed Arshad (PW-

2)and Muhammad Irfan (PW-3) and the medical evidence as furnished by Dr. Ali Hasnain (CW-9), sound the death knell for the prosecution case against the appellants and proves to be the cause of its sad demise. The prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) were proved not to have deposed truthfully with regard to the appellants. Reliance is placed on the case of “Muhammad Ashraf Vs. The State” (2012 S C M R 419) where the august Supreme Court of Pakistan was pleased to hold as under:-

“Both the eye-witnesses are not natural witnesses and they claimed that they had seen the incidence but had failed to explain two injuries caused with blunt weapon on the forehead and below the left eye of the deceased and had only attributed one injury to the appellant at the back of his ear.”

Reliance is also placed on the case of USMAN alias KALOO Vs. The State (2017 S C M R 622) where the august Supreme Court of Pakistan was pleased to hold as under:-

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“Some of the above mentioned eye-witnesses had maintained that the deceased had received only one injury at the hands of the appellant but the Post-mortem Examination Report shows that the deceased had received as many as 8 injuries on different parts of his body.”

Reliance is also placed on the case of Muhammad Hussain Vs. The State (2008 S C M R 345) where the august Supreme Court of Pakistan was pleased to hold as under:-

“Only one fire-arm injury was attributed to Muhammad Hussain petitioner but according to the post-mortem report there was another injury on the person of deceased caused with blunt weapon.”

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Amin Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- “11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had

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four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution.

13.From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence.”

Reliance is also placed on the case of Irfan Ali Vs. The State (2015 S C M R

840)where the august Supreme Court of Pakistan was pleased to hold as under:-

11.The most striking feature of the case is that in the F.I.R. complete photographic narration of the entire tragedy has been given so much so, Muhammad Khan acquitted accused and the appellant were attributed causing specific injuries with the fire shots of 30-bore pistols at the deceased. With such degree of accuracy each and every detail of the incident was given however, it was not due to mental disorientation that the dagger blows inflicted on the deceased found during the autopsy on the dead body, could not be noticed by the complainant. This doubt of reasonable nature and substance would strongly suggest that the complainant and the other eye-witnesses were not present at the spot, otherwise, lodging the report after more than 3 hours and spending 1-1/2 hour at the spot with the dead body, no room was left for this glaring omission. This omission is very fatal to the prosecution case and it is established that crime was an un- witnessed one”.

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20.We have already mentioned that along with the appellants their co- accused, namely Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi, since acquitted by the learned trial court, were also tried. The learned trial court acquitted the above mentioned co-accused of the charges. We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co-accused, who has stated that the acquittal of Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi, since acquitted by the learned trial court, had attained finality as the petition seeking special leave to file an appeal against their acquittal was dismissed and the matter was not pursued further . The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has repeatedly held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting the

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accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: - “The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.

Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids.

21.We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury.”

Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad

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(PW-2) and Muhammad Irfan (PW-3). In his statement recorded by the learned trial court, Sikandar Ali (PW-1) stated as under:- “Accused Muhammad Arif made pistol fire shot which landed upon left upper arm (Dola) of Hafiz Shahid Lateef who fell down in injured condition in Dala ” (emphasis supplied)

Similarly, the prosecution witness namely Waheed Arshad (PW-2) claimed in his statement recorded by the learned trial court as under:- “Accused Muhammad Arif made pistol fire shot which landed upon left upper arm (Dola) of Hafiz Shahid Lateef who fell down in injured condition in Dala ” (emphasis supplied)

Muhammad Irfan (PW-3) claimed in his statement recorded by the learned trial court as under:-

“Accused Muhammad Arif made pistol fire shot which landed upon left upper arm (Dola) of Hafiz Shahid Lateef who fell down in injured condition in Dala ” (emphasis supplied)

The perusal of the statements of the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) clearly reveals that, according to the said eye witnesses, they had seen Arif (since acquitted) firing with the pistol carried by him and hitting the deceased on the deltoid area of his left arm .The prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) were adjudged to have deposed falsely against Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi (all since acquitted). We are unable to find any independent corroboration of the prosecution case against the appellants and

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we are unable to distinguish the case of the appellants from the case of acquitted co-accused namely Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi (all since acquitted) as the prosecution evidence with regard to the appellants and their co-accused namely Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi (all since acquitted), is similar, being based on the statements of the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3). We find no reason to believe their statements with regard to the appellants in the absence of any reason to do so. This lying on the part of the witnesses with regard to Arif, Bilal, Ayyaz Farid, Waqas Farid and Ghulam Nabi (all since acquitted) has vitiated our trust in them. We are thus satisfied that the evidence of the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) has no worth and is to be rejected outright.

Reliance in this regard is placed on the case of “Tariq Vs. The State” (2017 S C M R 1672) wherein the august Supreme Court of Pakistan has held as under:-

“So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant.”

Reliance in this regard is also placed on the case of MUNIR AHMED and others Vs. the State and others (2019 S C M R 2006) wherein the august Supreme Court of Pakistan has held as under: -

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“Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity, it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the deceased and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitioners and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case.”

Reliance is also placed on the case of SAFDAR ABBAS and others Versus The STATE and others (2020 S C M R 219) wherein the august Supreme Court of Pakistan has held as under: -

“Petitioners' father, namely, Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-accused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential. Complainant

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abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case.”

21.The learned Deputy Prosecutor General and the learned counsel for the complainant, have submitted that the recovery of the Pistol (P-4) from the appellant namely Muhammad Atif son of Ghulam Farid and the motorcycle from the appellant namely Jamal offered sufficient corroboration of the statements of the prosecution witnesses namely Sikandar Ali (PW-1) , Waheed Arshad (PW-2) and Muhammad Irfan (PW-3). Regarding the recovery of the motorcycle (P-3) from the appellant namely Jamal, the said recovery offers no support of the prosecution case as neither the registration number nor the colour nor the make of the motorcycle under the use of the accused at the time of the incident were mentioned by the prosecution witnesses namely Sikandar Ali (PW-1) , Waheed Arshad (PW-2) and Muhammad Irfan (PW-3), therefore, the recovered motorcycle (P-3) cannot be said to be the same which was under the use of the accused at the time of the incident. Regarding the recovery of the Pistol (P-4) from the appellant namely Muhammad Atif son of Ghulam Farid, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the Pistol (P-4) from the appellant namely Muhammad Atif son of Ghulam Farid which was in clear violation of section 103 Code of Criminal Procedure, 1898. The provisions of section 103 Code of Criminal

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Procedure, 1898, unfortunately, are honoured more in disuse than in compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Therefore, the evidence of the recovery of the Pistol (P-4) from the appellant namely Muhammad Atif son of Ghulam Farid cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs.

The State ( 2017 SCMR 898) at page 901 has held as under:- “For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Moreover, the pistol (P-4), which was allegedly recovered from the possession of the appellant namely Muhammad Atif on 19.09.2022 was transmitted to the Punjab Forensic Science Agency, Lahore on 19.12.2023, for which delay no explanation was offered, making the report of the Punjab Forensic Science Agency, Lahore of no value. In this manner, the recovery of the Pistol (P-4) from the appellant namely Muhammad Atif son of Ghulam Farid and the motorcycle from the appellant namely Jamal do not progress the case of the prosecution at all.

Criminal Appeal No. 62 of 2024

22.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Sikandar Ali (PW-1) in his written application (Exh.PA) was that as the deceased had supported Furqan Arshad, therefore, he was being done to death.

We have perused the statements of the prosecution witnesses namely Sikandar Ali (PW-1), Waheed Arshad (PW-2) and Muhammad Irfan (PW-3) and find that they failed to prove the motive of the occurrence as stated by them. The said Furqan Arshad himself never appeared as a witness either during the investigation of the case or during the course of the trial so as to support the motive of the incident. Moreover, Sikandar Ali (PW-1) admitted that Furqan Arshad was the real brother of Waheed Arshad (PW-2) but Waheed Arshad (PW-2) was not proceeded against at all by the accused and the deceased, who prima facie, had no connection with the claimed dispute of Furqan Arshad and the accused, was murdered. Furthermore, the complainant of the case also got examined Muhammad Saeed Akhtar (PW-4) who gave an entirely different motive of the incident in his statement. Muhammad Saeed Akhtar (PW-4) stated as under:-

“Stated that on 09.07.2022, I alongwith Tahir Mehmood were present in the barber shop of Muhammad Arshad near police station Morh Dahranwala, Ayaz Farid person complaint against, was already present there who, was getting shave, after shave he stated to me that last day, Zain Mehmood got registered a FIR against them and I was also supported him. In reply, I said to him that I was present there but I know nothing about the registration of case. Whereupon, Ayaz Farid accused again asked to me that Hafiz Shahid Latif (deceased) got registered

Criminal Appeal No. 62 of 2024

FIR against him on false and frivolous facts and if, we did not solemnize Eid in our houses then Hafiz Shahid Latif would also be not spared to solemnize Eid at his house. He further asked to me that his message be conveyed to Hafiz Shahid I did not reply him, he went away from the shop by giving threats of dire consequences. ” As mentioned above, Ayyaz Farid was acquitted by the learned trial court. In this manner, the prosecution itself remained confused with regard to what was the motive of the incident. The several Investigating Officers of the case also did not collect any evidence with regard to the two different motives of the incident as narrated by the prosecution witnesses. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellants to have committed the Qatl-i-Amd of the deceased.

There is a poignant hush with regard to the particulars of the motive alleged.

No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

“The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.”

23.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan, in the present case.

Criminal Appeal No. 62 of 2024

It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances; rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been held as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, “Better that ten guilty persons escape, than that one innocent suffer.” Benjamin Franklin, who was one of the leading figures of early American history, went further arguing “it is better a hundred guilty persons should escape than one innocent person should suffer.” All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution’s case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that “if a

Criminal Appeal No. 62 of 2024

single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayyoub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused.”

24.For what has been discussed above, Criminal Appeal No.62 of 2024 lodged by the appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan is allowed and the convictions and sentences of the appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan awarded by the learned trial court through the impugned judgment dated 23.01.2024 are hereby set-aside. The appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan are ordered to be acquitted by extending them the benefit of the doubt.The appellants namely Muhammad Atif son of Ghulam Farid and Jamal son of Daleel Khan are in custody and are directed to be released forthwith if not required in any other case.

25.Murder Reference No.02 of 2024 is answered in Negative and the sentence of death awarded to Muhammad Atif son of Ghulam Farid is Not Confirmed.

(MUHAMMAD WAHEED KHAN) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

Judge

Criminal Appeal No. 62 of 2024