Tasawar Hussain vs State

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 10 of 2024 (The State Vs. Tasawar Hussain)

Criminal Appeal No. 96-J of 2024 (Tasawar Hussain Vs. The State)

Date of hearing: 22.01.2026.

Appellants by: Mr. Umair Mohsin, Advocate.

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

Complainant by: Mr. Zeeshan Haider, Advocate.

JUDGMENT

SADIQ MAHMUD KHURRAM, J.–Tasawar Hussain son of Muhammad Arshad Ali (convict) was tried along with Abdul Rehman (since acquitted ), the co-accused of the convict, by the learned Additional Sessions Judge, Fortabbas in case F.I.R No. 407 of 2022 dated 16.08.2022 registered in respect of offences under sections 302, 324, 337-F(i) and 34 P.P.C. at the Police Station Fortabbas, District Bahawalnagar for committing the Qatl-i-Amd of Shahzaib Khan son of Fiaz Akhtar (deceased). The learned trial court vide judgment dated 22.02.2024, convicted Tasawar Hussain son of Muhammad Arshad Ali (convict) and sentenced him as infra:

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Tasawar Hussain son of Muhammad Arshad Ali :

Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Shahzaib Khan son of Fiaz Akhtar (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Shahzaib Khan son of Fiaz Akhtar (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.

The convict was however extended the benefit available under Section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court.

Abdul Rehman, the co-accused of the convict, was however, acquitted by the learned trial court.

2.Feeling aggrieved, Tasawar Hussain son of Muhammad Arshad Ali (convict) lodged Criminal Appeal No. 96-J of 2024, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.10 of 2024 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Tasawar Hussain son of Muhammad Arshad Ali. We intend to dispose of the Criminal Appeal No. 96-J of 2024 and Murder Reference No.10 of 2024 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as stated by Fiaz Akhtar (PW-1), the complainant of the case, are as under:- “Stated that 16.08.2022, I along with my son shahzaib aged about 16/17 years were coming to City on motorcycle for purchasing some grocery articles. At about 01:00 p.m, when we reached at pholra road, meanwhile the accused persons Tasawar Hussain armed with pistol, Abdul Rehman armed with pistol, Rao Fazal and Rao Talha in prosecution of their common objectiori were present there and they

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forcibly stopped us and started beating by saying that they would take the revenge of beating to Abdul Rehman by Shahzaib. Meanwhile, the PWs Zafar Iqbal S/o Muhammad Amin, Caste Maher, R/o Pholra, Faisal Mehmood Case Maher, R/o Pholra attracted at the spot. Accused Tasawar Hussain & Abdul Rehman started firing and accused Tasawar Hussain climbed over the roof of his house while committing firing, accused Abdul Rehman and Rao Talha, dragged my son Shahzaib near to wall of their house. Rao Fazal caught hold me, in the meanwhile, accused Tasawar Hussain made fire from the roof of his house in order to commit Qatal-e-Amd of my son Shahzaib, which hit in front of right side of his chest near the right shoulder. Accused Abdul Rehman made firing upon my son Shahzaib with intention to commit his murder, which hit Rao Talha who caught hold my son Shahzaib and he severely injured. Accused Abdul Rehman again fired in order to Qatal-e-Amd of Zafar Iqbal, which hit him on right knee (goda). In the meanwhile, many people of the locality gathered there, the accused persons fled away along with their respective weapons. I along with Faisal Mehmood and respectable of locality attended injured Zafar Iqbal and Shahzaib but my son Shahzaib succumbed to the injuries due to above said firing. We took Zafar Iqbal and Shahzaib to THQ Hospital Fortabbas. Motive behind the occurrence is that there was dispute between Abdul Rehmaan etc. and my son Shahzaib. People of the locality patched up the matter. while Abdul Rehman etc. had grudge in their mind and they committed the occurrence. I submitted the application Exh.P.A for registration of case, which bears my thumb impression and signatures Exh.P.A/1.”

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 03.01.2023, to which the accused pleaded not guilty and claimed trial.

5.The prosecution, in order to prove its case, got statements of as many as twelve witnesses recorded. The ocular account of the case was furnished by

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prosecution witnesses namely Fiaz Akhtar (PW-1) , Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3). Muhammad Ijaz (PW-4) stated that on 16.08.2022 , he identified the dead body of the deceased at the time of post mortem examination and in his presence, the Medical Officer handed over the last worn clothes of the deceased to the police and furthermore, on the same day, the Crime Scene Unit visited the place of the incident and seized articles and on 03.10.2022, Abdul Rehman (since acquitted), the co-accused of the appellant, got recovered the pistol (P.17). Saif Ullah ASI (PW-7) stated that on 16.08.2022, he got recorded the formal F.I.R. (Exh.PN). Ghulam Mustafa 578/C (PW-9) stated that on 16.08.2022 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Ameen tracer (PW-11) prepared the scaled site plan of the occurrence (Exh.PS).

Syed Aamir Abbas, SI (PW-10) investigated the case from 16.08.2022 till 11.10.2022, arrested the appellant on 01.09.2022 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Abdul Jabbar Bhatti (PW-5) examined, who on 16.08.2022 was posted as THQ hospital Fortabbas and on the same day conducted the post mortem examination of the dead body of the deceased namely Shahzaib Khan son of Fiaz Akhtar. Dr. Abdul Jabbar Bhatti (PW-5),on examining the dead body of the deceased namely Shahzaib Khan son of Fiaz Akhtar, observed as under:-

“Description of Injuries (including findings on dissection) Injury No.1

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A circular wound measured 01.7cmx01cm with black inverted margins, 03cm below right mid clavicle, 09 cm from hyoid bone extending to left 4th intercostal space is found.

Final opinion:

After thorough external and internal examination, it is concluded that death happened due to damage of pulmonary vessels causing massive bleedings (sic) due to fire arm injury. The entry of bullet is from at below right mid clavicle and bullet found at 4th left inter costal space. So, fire seems from upper right lateral side that is homicidal and ante mortem in nature” The prosecution also got Dr. Sheheryar Aamir (PW-6) examined, who on 16.08.2022 was posted as THQ hospital Fortabbas and on the same day medically examined the injured namely Zafar Iqbal (PW-3) and observed as under:-

“Injury No.1.

A lacerated wound about 2cmx1.5cm in size was present approximately 6cm above knee joint on right thigh, the wound was at latero posterior aspect of knce joint. On anterior aspect of wound a laceration of approximately 4cm was present. Two others (sic) small injuries was also present, one was in popliteal fossa and second was 4inches posterior to knce. The patient was referred to BVH Bahawalpur for further management and expert opinion.

Final opinion:

According to the surgical opinion of Bahawalpur. multiple wound on right knee and right leg. The diagnosis was gunshot wound according to BVH Bahawalpur discharge slip. The injuries lied in Jurrah Ghayer Jaifah Damihah.”

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7.On 16.05.2023, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Sajid Mehmood as being unnecessary. On 26.09.2023, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Ghazanfar Ali 1382/C as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh. PT. and Exh. PU.).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Tasawar Hussain son of Muhammad Arshad Ali 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, he replied that he had been falsely involved in the case and was innocent. The appellant namely Tasawar Hussain son of Muhammad Arshad Ali opted not to get himself examined under section 340(2) Cr. P.C and did not adduce any evidence in his defence.

09.At the conclusion of the trial, the learned Additional Sessions Judge, Forabbas convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant namely Tasawar Hussain son of Muhammad Arshad Ali 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 appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it,

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was highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance.

The learned counsel for the appellant also submitted that the recovery of the pistol (P-12) from the appellant namely Tasawar Hussain son of Muhammad Arshad Ali was full of procedural defects, of no legal worth and value, and was result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.

11.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 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 appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the eye witnesses.

The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the pistol (P-12) from the appellant namely Tasawar Hussain son of Muhammad Arshad Ali also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to

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substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Tasawar Hussain son of Muhammad Arshad Ali.

12.We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.

13.The learned Deputy Prosecutor General has vehemently argued that as the prosecution witness namely Zafar Iqbal (PW-3) was injured during the occurrence, therefore, his statement could not be doubted in any manner. The stamp of injuries on the person of a witness may be proof of his presence at the place of occurrence, at the time of occurrence, however the same can never guarantee a truthful deposition. Injuries received by a witness during an incident do not warrant acceptance of his evidence without scrutiny. At the most, such traumas can be taken as an indication of his presence on the spot, but still, his evidence is to be scrutinized on the benchmark of principles laid down for the appraisal of evidence. It is not a given that a witness who suffered injuries during the occurrence will depose nothing but the truth. Even otherwise, it is not the simple presence of a witness at the crime scene but his credibility, which makes him a reliable witness. It has been held by the august Supreme Court of Pakistan repeatedly that the facts that an injured witness narrates are not to be implicitly accepted; rather, they are to be attested and

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appraised on the principles applied for the appreciation of evidence of any prosecution witness, regardless of whether he is injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR

527)where at page 534 the august Supreme Court of Pakistan , was pleased to hold as under:

“It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth”.

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), wherein the august Supreme Court of Pakistan was pleased to hold that the presence of injuries does not stamp a witness to be a truthful one and observed as under :-.

“12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:--

"It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not s h o w that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye- witnesses mentioned in the F.I.R. namely,Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."

In the case of Mehmood Hayat supra at page 1417, it has been observed as under:--

"10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony."

In the case of Mehmood Ahmed supra, this Court at page 7 observed as under:

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"For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."

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.”

With this principle of appreciation of evidence in our minds that an injured witness cannot be presumed to be also a truthful witness, we have proceeded to examine the statement of the prosecution witness namely Zafar Iqbal (PW-

3). We have noted with concern that despite the claim of the prosecution witnesses namely that the prosecution witness namely Zafar Iqbal (PW-3) was very much conscious after receiving the injury and the said injury was also declared to be of the kind of Jurh Ghayr-Jaifah Damiyah , however still his statement was not recorded by the Investigating Officer of the case on the day of the incident . In this regard, the prosecution witness namely Fiaz Akhtar (PW-1) admitted during cross-examination as under:-

“Zafar Iqbal PW was referred to Bahawalpur Hospital round about 01:45 p.m.

Zafar Iqbal PW remained in his conscious during the THQ examination as well as at the time of referral to BVH Bahawalpur.”

The claim of Zafar Iqbal (PW-3) also remained that he was well oriented in time and space after the incident and stated before the learned trial court as under:-

“I remained round (sic) about 30 minutes to hospital, doctor gave first aid and I was referred to BVH. I remained in conscious and then I was referred to BVH Bahawalpur.”

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Syed Aamir Abbas, SI (PW-10), the Investigating Officer of the case, admitted that the statement of the prosecution witness namely Zafar Iqbal (PW-3) was not recorded on the day of the occurrence , rather it was recorded on 23.08.2022 i.e after six days of the occurrence. Syed Aamir Abbas, SI (PW-10), the Investigating Officer of the case, stated before the learned trial court as under:-

“ On 23.08.2022, Zafar Iqbal the then injured witness of this case joined the investigation of this case and I recorded his statement U/S. 161 Cr.P.C..”

Even during cross-examination ,Syed Aamir Abbas, SI (PW-10), the Investigating Officer of the case could not explain as to why the statement of Zafar Iqbal (PW-3) was not recorded on the day of the occurrence , rather was recorded on 23.08.2022 i.e after six days of the occurrence and admitted during cross-examination as under:-

“ I did not record the statement of Zafar Iqbal injured on 16.08.2022 on the date of occurrence because he was referred to BVH Bahawalpur. I did not record his statement at BVH Bahawalpur. Zafar Iqbal injured was discharged from BVH Bahawalpur on 17.08.2022. Zafar Iqbal injured is resident of Basti pholra Fortabbas. Zafar Iqbal injured did not appear before me on 17.08.2022 for recording his statement, neither I went to see him for recording his statement on the said date. I received the MLC of injured Zafar Iqbal on 23.09.2022 and I have perused the same. As per MLC of Zafar Iqbal, he was fully conscious at the time of his examination.”

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Even the prosecution witness namely Zafar Iqbal (PW-3) himself admitted that he got recorded his statement on 23.08.2022 i.e after six days of the occurrence and stated before the learned trial court as under:- “On 23.08.2022 I.O Aamir Abbas SI recorded my statement u/s 161Cr.P.C.”

It is trite that the delayed recording of the statement of a prosecution witness under section 161 of the Code of Criminal Procedure, 1898 reduces its value to nothing unless there is a plausible explanation for such delay. No explanation, much less plausible, has been given by the prosecution witness namely Zafar Iqbal (PW-3) for not getting his statement under section 161 of the Code of Criminal Procedure, 1898 recorded immediately and therefore no value can be attached to his statement. The august Supreme Court of Pakistan in the case of “Abdul Khaliq Vs. The State” (1996 SCMR 1553) has held as under:

“It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay”.

The august Supreme Court of Pakistan in the case of “Muhammad Khan Vs.

Maula Bakhsh” (1998 SCMR 570) has held as under:

“It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C is recorded with delay without offering any plausible explanation”.

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The august Supreme Court of Pakistan in the case of “Syed Saeed Muhammad Shah and another Vs. The State” (1993 SCMR 550) at page 571 has held as under:

“In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation”.

14.We have also noted with grave concern that when the prosecution witness namely Zafar Iqbal (PW-3) appeared before Dr. Sheheryar Aamir (PW-6),who medically examined him on 16.08.2022 at the THQ hospital Fortabbas, Zafar Iqbal (PW-3) never made any statement regarding the details of the incident or the names of the accused or even the fact as how and at whose hand he himself had received the injury. During cross-examination Dr.

Sheheryar Aamir (PW-6) stated as under :-

“It is correct that the injured Zafar Iqbal did not mention the name of any person, who made the fire on him.”

Even Zafar Iqbal (PW-3) himself admitted during cross-examination that he had not made any statement regarding the details of the incident or the names of the accused or even the fact as how and at whose hand he himself had received the injury and admitted as under:-

“I did not inform the doctor regarding the history of occurrence as well as arm”

There was no reason for Zafar Iqbal (PW-3) not making any statement regarding the details of the incident or the names of the accused or even the

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fact as how and at whose hand he himself had received the injury while narrating the brief history before Dr. Sheheryar Aamir (PW-6). The admitted failure of Zafar Iqbal (PW-3) in making any statement regarding the details of the incident or the names of the accused or even the fact as how and at whose hand he himself had received the injury before Dr. Sheheryar Aamir (PW-6), proves that Zafar Iqbal (PW-3) had no idea of the said details and created the narrative subsequently and thus, mires the case of the prosecution in ambiguity.

15.We have also noticed that according to the statements of the prosecution witnesses, the police were not present at the time when Dr.

Sheheryar Aamir (PW-6) had examined Zafar Iqbal (PW-3) and Fiaz Akhtar (PW-1) admitted during cross-examination as under:-

“ The police was not present at the time of medical examination of Zafar Iqbal PW. The police reached at the hospital after the examination of Zafar Iqbal PW at about 03:00 p.m. The police reached at the hospital after the referral of Zafar Iqbal PW to Bahawalpur.”

It is also a fact that on the injury statement (Ex.PN/2) prepared with regard to Zafar Iqbal (PW-3), Dr. Sheheryar Aamir (PW-6) mentioned that at the time of the medical examination of Zafar Iqbal (PW-3), the said injury statement (Ex.PN/2) was not produced before him. During the course of the trial, the prosecution got Saifullah ASI (PW-7) examined who stated that on 16.08.2022, he had prepared the injury statement (Ex.PN/2) with regard to Zafar Iqbal (PW-3) however, Syed Aamir Abbas, SI (PW-10), the Investigating Officer of the case admitted during cross-examination that the

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case was never investigated by Saifullah ASI (PW-7) .During cross- examination, Syed Aamir Abbas, SI (PW-10) stated as under:- “I did not prepare the injury statement of Zafar Iqbal injured rather Saif- Ullah ASI prepared his injury statement, who also reached there. The investigation of the case remained with me from the date of occurrence till 22.10.2022. Saif-Ullah ASI was never the I.O of the case. ” (emphasis supplied)

In this manner, the prosecution failed to prove that Zafar Iqbal (PW-3) was injured in the same incident and he was medically examined with reference to receiving the injuries in the incident. Coupled with this is the fact that the blood stained Shalwar (P.16) of Zafar Iqbal (PW-3) was produced before the Investigating Officer of the case only on 11.09.2022, when the incident had taken place on 16.08.2022 and no explanation was offered as to why the said blood stained Shalwar (P.16) of Zafar Iqbal (PW-3) was produced before the Investigating Officer of the case with such delay. Because of the delay in the production of the said blood stained Shalwar (P.16) of Zafar Iqbal (PW-3), it does not offer any support of the prosecution's case. Moreover, it was also brought on record that the said blood stained Shalwar (P.16) of Zafar Iqbal (PW-3) had no corresponding holes to prove that it was the same shalwar which Zafar Iqbal (PW-3) was wearing when he suffered the injury. In this regard, Dr. Sheheryar Aamir (PW-6), who had medically examined Zafar Iqbal (PW-3) on 16.08.2022, admitted during cross-examination as under:- “I did not mention the corresponding holes over the blood stained clothes of the injured Zafar Iqbal”

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A similar admission was made by Syed Aamir Abbas, SI (PW-10), the Investigating Officer of the case, who also admitted that he had not mentioned the presence of any corresponding holes in the blood stained Shalwar (P.16) of Zafar Iqbal (PW-3) produced before him on 11.09.2022 and stated as under:-

“ It is correct that I did not mention the corresponding holes over the shalwar of Zafar Iqbal injured in my investigation as well as in recovery memo.

Doctor did not mention the corresponding holes over the shalwar of the injured Zafar Iqbal”

For all the above identified reasons, we have arrived at an irresistible conclusion that the statement of Zafar Iqbal (PW-3) is not worthy of being relied upon.

16.We have also noticed that all the three prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) were not only related to each other but also to the deceased very closely. Shahzaib Khan (deceased) was the real son of Fiaz Akhtar (PW-1) and the nephew of Faisal Mehmood (PW-2) and related to Zafar Iqbal (PW-3). It was also admitted by the three prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) that their residences were at a distance of 1.5 kilometers from the place of the incident. During cross- examination, the prosecution witness namely Fiaz Akhtar (PW-1) admitted as under:-

“ Faisal PW is my brother in law. Zafar Iqbal PW is my relative and belongs to same tribe. Muzammal Hussain S/o Khan Muhammad is my cousin. Sajid Mehmood S/o Muhammad Akram is my maternal nephew. Zafar Iqbal is the

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resident of Basti Pholra and round about 1 1/2 kilometre away from the place of occurrence and his house is situated on the southern side from place of occurrence. House of Faisal is also situated round about 1 2 kilometre away on the southern side of the place of occurrence. I am also resident of Basti Pholra and my house is also situated round about 1 2 kilometre away from the place place of occurrence.”

Despite the admission of the prosecution witnesses namely Fiaz Akhtar (PW- 1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) that their houses were at a distance of 1.5 kilometers from the place of the incident , still they never offered any explanation as to why they were found present at the place of occurrence, at the time of the incident, especially when the incident had taken place on a road outside the house of the appellant. The failure of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) to offer any explanation for their presence at the place of occurrence, also raises a huge doubt with regard to the reliability of their statements. Moreover, Syed Amir Abbas (PW-10), the Investigating Officer of the case also admitted during cross-examination that the prosecution witness namely Fiaz Akhtar (PW-1) was not even present at the time when the deceased was hit by a bullet and stated as under:- “It is correct that when Shahzaib deceased was shifted to hospital, the complainant Fiaz Akhter received the call regarding the death of Shahzaib deceased then he made again fire over Talha deceased.” (emphasis supplied)

17.We have also noticed that according to the statements of prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar

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Iqbal (PW-3), the deceased was hit by a bullet when he was grappling with Rao Talha (another deceased of the case, relative of the appellant) and naturally the concentration of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) must have been upon the deceased and Rao Talha (another deceased of the case, relative of the appellant). During cross-examination, Zafar Iqbal (PW-3) explained as under:-

“ Talha deceased grappled Shahzaib deceased towards the house of accused and they were grappling in face to face at that time.” (emphasis supplied) In the face of this statement of Zafar Iqbal (PW-3) that when the deceased was hit by a bullet , he was grappling with Rao Talha (another deceased of the case, relative of the appellant), naturally the concentration of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) would have been on the deceased and Rao Talha (another deceased of the case, relative of the appellant) and in that scenario how the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) were attracted towards the presence of the appellant and saw the appellant, who was present on the roof of his own house, firing at the deceased, has not been explained. Furthermore, according to the statement of Zafar Iqbal (PW-3), at the time of being hit by the bullet, the deceased and Rao Talha (another deceased of the case, relative of the appellant) were grappling with each other, “face to face”, then it would not have been possible that the bullet would have directly hit the chest of the deceased without passing through the body of Rao Talha (another deceased of the case, relative of the appellant) but this remained the claim of the prosecution witnesses

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namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-

3)which also proves that the prosecution witnesses namely Fiaz Akhtar (PW- 1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) had not witnessed the incident.

18.We have also noted that despite the claim of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-

3)that the appellant had fired at the deceased while standing on the roof of his own house and the distance between the place where the appellant was standing and the place where the deceased was hit by the bullet was determined to be 84-feet, however, Dr. Abdul Jabbar Bhatti (PW-5) observed the presence of blackening around the injury present on the dead body of the deceased , which fact also runs counter to the narrative of the occurrence as given by the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3). The prosecution witness namely Fiaz Akhtar claimed during cross-examination that he himself had referred to all the places marked in the unscaled site plan of the place of occurrence (Exh.PP) as prepared by Syed Amir Abbas SI (PW-10), the Investigating Officer of the case and stated as under:-

“I have explained all the facts regarding the place of occurrence, presence of accused & presence of the PWs to the I.O at the time of spot inspection ” The prosecution witness namely Faisal Mehmood (PW-2) also gave the details regarding the presence of the deceased and stated during cross-examination as under:-

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“He was present on the northern side from place of occurrence, which leads from Fortabbas to Pholra Basti. The height of the wall is 10/11 eleven feet near which Shahzaib deceased was standing. The inter-se distance between the wall as well as the road is 6/7 feet. The main mettled road is round about 16 feet wide. ” The distance between the place where the appellant was standing and the place where the deceased was hit by the bullet was determined to be 84-feet by Syed Amir Abbas SI (PW-10), the Investigating Officer of the case , who then prepared the unscaled site plan of the place of occurrence (Exh.PP) on the directions of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3). During cross-examination,Syed Amir Abbas SI (PW-10) explained as under:-

“ Intervening distance of point No.2 to 1 is 84 feet”

Similarly, Muhammad Ameen tracer (PW-11), who prepared the scaled site plan of the occurrence (Exh.PS) also stated that the distance between the place where the appellant was standing and the place where the deceased was hit by the bullet was 84-feet and during cross-examination, stated as under:- “The straight distance between point No.1 & 2 is about 84 feet and I measured it with scale tap (Pheeta). ”

We have ourselves examined the scaled site plan of the place of occurrence (Exh.PS) as prepared by Muhammad Ameen tracer (PW-11) and the rough site plan of the place of occurrence (Exh.PP) as prepared by Syed Amir Abbas SI (PW-10), the Investigating Officer of the case and find that in both the site plans (Exh.PS and Exh.PP), the distance between the place where the appellant was standing and the place where the deceased was hit by the bullet was determined

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to be 84-feet . Contrary to this claim of the prosecution witnesses that the pistol had been fired by the appellant when he was present at a distance of as much as 84 feet from the deceased , as mentioned above, Dr. Abdul Jabbar Bhatti (PW-

5)observed the presence of blackening around the injury present on the dead body of the deceased . Dr. Abdul Jabbar Bhatti (PW-5) in his statement before the learned trial court clearly stated that blackening was observed around the wound which he found present on the dead body of the deceased and also opined that according to his estimation, the deceased had been hit by the bullet fired at him from a distance of not more than 10-feet. During cross-examination, Abdul Jabbar Bhatti (PW-5) explained as under:-

“ The blackening was present on the firearm injury No.1. Blackening was also present on the entry wound if it is hit when the fire is hit within less than ten feet distance”

Had the firing at the deceased been made from a distance of 84 feet, as suggested by the prosecution witnesses, then blackening on the wound could not have been observed by Dr. Abdul Jabbar Bhatti (PW-5). Dr. Abdul Jabbar Bhatti (PW-5), in his statement before the learned trial court , clearly stated that he had observed blackening around the entry wound of the dead body of the deceased . Dr. Abdul Jabbar Bhatti (PW-5) was not cross-examined by the prosecutor concerned and his testimony with regard to his opinion regarding observation of blackening around the entry wound which he found present on the dead body of the deceased remained unchallenged. This opinion of Dr. Abdul Jabbar Bhatti (PW-5) proves that no reliance can be placed on the statements of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) .

In such a case, the ocular account is to be rejected as being contrary to the

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medical evidence. Reliance is placed on the case of “Tajamal Hussain Shah Vs.

The State and another” (2022 S C M R 1567) wherein it has been observed as infra: -

“The ocular account in this case is furnished by Zulfiqar Ahmed (PW-18) and Muhammad Daraz (PW-19). According to these PWs of the ocular account, the petitioner while armed with .30 bore pistol made a straight fire shot on Muhammad Sajjad, deceased, which landed on his chest, due to which he fell down and ultimately succumbed to the injury. However, this stance is contradicted by the medical evidence. According to Dr. Raheem Khan (PW-15), who conducted postmortem examination of the deceased Muhammad Sajjad, the injury on the chest, just above the nipple of the deceased, was an exit wound and the margins of the wound were black whereas the entry wound was on the back of the deceased i.e. at thoracic spine. The blackening around the wound shows that the fire shot would have been made from a close range but according to the site plan, the petitioner was shown standing at a distance of 18 steps away from the deceased. This major discrepancy raises serious doubts on the credibility of the prosecution witnesses of the ocular account.” (emphasis supplied) Reliance is also placed on the case of “Zahir Yousaf and another Vs. The State and another “(2017 S C M R 2002) wherein it has been observed as infra: - “According to the scaled site plan (Exh. P.A.) distance between the place were corpse of Ghulam Sarwar (point 1) was lying and where the appellant and his cc-accused were present (point 2) was sixteen feet. Dr. Ghulam Abbas Zafar (PW.11) who conducted autopsy upon the dead body of Ghulam Sarwar (deceased) while appearing before the learned trial court in his examination-in-chief stated that injury No.1 was with burnt inverted margins. In the last line of his cross examination, the said doctor stated that blackening occurred on the injury if fired from six feet and burning, if fired from few inches. Therefore, the medical evidence does not support the ocular account.” (emphasis supplied)

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:- “As regards injuries on the person of Mst. Maqbool Bibi, the Medical

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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.”(emphasis supplied)

Reliance is placed on Barkat Ali Vs. Muhamad Asif and others (2007 SCMR 1812) wherein it has been observed as infra: -

“It is an admitted fact that eye-witnesses had stated that the deceased was hit by the respondents at about 30/35 feet whereas according to the medical report, there was burning and blackening as is evident from the statement of P.W.2, therefore, ocular account furnished by the two eye- witnesses is not in consonance with the medical evidence which clearly contradicts the statement of the eye-witnesses. It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali’s case 1980 SCMR 889, Bagh Ali’s case 1983 SCMR 1292, Sain Dad’s case 1972 SCMR 74 and Zardshad’s case 1969 SCMR 644.”

Reliance is also placed on Muhammad Zaman Vs. The State and others (2014 S C M R 749) wherein it has been observed as under: - “Let us assume that F.I.R., whose maker passed away before his examination in the court, cannot be looked into for any purpose yet the prosecution version neither rings true nor inspires confidence when a firearm entry wound found on the person of P.W. No.5 caused by a shot fired from a distance of 13 feet was accompanied by blackening which is not possible beyond 3 feet. Especially when it has never been the case of the P.W. that any of the assailants fired at him from a close or contact range. In Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 354, it has been held that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet". Improvements and afterthoughts introduced to bring the ocular account in tune with the medical evidence which too tend to damage evidentiary worth of the evidence.”

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Reliance is also placed on the case of Faiz meeran vs. Muhammad Khan and others (2016 S C M R 1456) wherein it has been observed as under: - “The said allegation leveled against respondents Nos. 1 and 2 was not supported by the medical evidence because according to the eyewitnesses produced by the prosecution respondents Nos. 1 and 2 had fired at and injured Muhammad Arif (PW7) from a distance of thirty-five feet but the medical evidence had shown availability of burning on the relevant injuries which was not possible from a distance of thirty-five feet.”

19.Though the learned Deputy Prosecutor General and the learned counsel for the complainant have argued that the matter was reported to the police with the promptitude, however, we have noticed that post mortem examination of the dead body was conducted with much delay, exposing the fact that the time of recording of the formal F.I.R. (Exh.PN) had been manipulated so as to pad up a failing prosecution case. According to the Post-Mortem Examination Report (Exh.PL), Dr. Abdul Jabbar Bhatti (PW-5), conducted the post-mortem examination of the dead body of the deceased at 08.00 pm on 16.08.2022 i.e.

after about 7 hours of the occurrence. Dr. Abdul Jabbar Bhatti (PW-5), who conducted the post-mortem examination of the dead body the deceased and prepared the post-mortem examination report (Exh. PL), gave the time between death and post-mortem examination as being seven hours. During cross- examination, Dr. Abdul Jabbar Bhatti (PW-5) explained that the delay in the post mortem examination of the dead body was occasioned due to the belay in the submission of the police papers and he had to wait till 07.20 p.m. for the said police papers. During cross-examination, Dr. Abdul Jabbar Bhatti (PW-5) stated as under:-

“ I received the dead body in dead house at about 04:00 p.m. Complete documents were not produced at that time. It is correct that if the

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complete document were received within time, then there was no chance of delay. I inquired from the police about complete documents, but the police did not produce the complete documents by saying that same were not prepared yet. It is correct that complete documents were produced at about 07:20 p.m. it is correct that after receiving the complete documents, I mentioned the time at the same movement. ” (emphasis supplied)

This explanation of Dr. Abdul Jabbar Bhatti (PW-5) that it was the police itself who stated that the documents had not been prepared proves that the time of recording of the formal F.I.R. (Exh.PN) had been manipulated .The reason which is apparent for the delayed conducting of the post-mortem examination of the dead body of the deceased was that, by that time, the details of the occurrence were not known and the said time was used to fashion a false narrative of the occurrence. No explanation was offered to justify the delay in conducting the post-mortem examination. These facts clearly establish that the delay in the post-mortem examination was used to formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that the sole purpose of causing such delay in post mortem examination is to advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

“The incident in the instant case took place at 2.00 a.m, F.I.R. was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the F.I.R. was not lodged at the given time”.

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The august Supreme Court of Pakistan in the case of “Mian SOHAIL AHMED and others vs. The State and others” (2019 SCMR 956) has held as under:

“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal F.I.R. was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution” The august Supreme Court of Pakistan in the case of “Muhammad Rafique alias Feeqa vs. The State” (2019 SCMR 1068) has held as under:

“More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.

10.Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.

11.It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting.”

20.We have already mentioned that along with the appellant his co-accused, namely Abdul Rehman, since acquitted by the learned trial court, was also tried. The learned trial court acquitted the above mentioned co-accused of the appellant of the charges. We have queried the learned Deputy Prosecutor

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General regarding the filing or otherwise of an appeal against the acquittal of the said co-accused, who has stated that the acquittal of Abdul Rehman, since acquitted by the learned trial court, was assailed by the complainant of the case ,who had filed an appeal against the acquittal of Abdul Rehman , the co- accused of the appellant before this Court but the same was dismissed. 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 namely Tasawwar Hussain son of Muhammad Arshad Ali. 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 accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in unofalsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No.

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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.”

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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 Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) The prosecution witness namely Fiaz Akhtar (PW-1) in his statement before the learned trial court, stated as under:- “Accused Abdul Rehman again fired in order to Qatal-e-Amd of Zafar Iqbal, which hit him on right knee (goda). ”

The prosecution witness namely Faisal Mehmood (PW-2) in his statement before the learned trial court, stated as under:-

“Accused Abdul Rehman again fired in order to Qatal-e-Amd of Zafar Iqbal, which hit him on right knee (goda).”

The prosecution witness namely Zafar Iqbal (PW-3) in his statement before the learned trial court, stated as under:-

“Accused Abdul Rehman again fired in order to commit my Qatal-e-Amd, which hit on my right knee ( گوڈا ) and I became injured.

The perusal of the above-mentioned portions of the statements of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) clearly reveals that according to the said eye witnesses, Abdul Rehman, the acquitted co-accused of the appellant, had fired at and injured the prosecution witness namely Zafar Iqbal (PW-3) however the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) were adjudged to have deposed falsely against Abdul Rehman ( since acquitted) by the learned trial court . We are unable to find any independent corroboration of the prosecution case against the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali and we are unable to distinguish the case of the appellant from the case of acquitted

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co-accused namely Abdul Rehman (since acquitted) as the prosecution evidence with regard to the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali and regarding his co-accused namely Abdul Rehman ( since acquitted), is similar, being based on the statements of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3). We find no reason to believe their statements with regard to the appellant in the absence of any reason to do so. This lying on the part of the witnesses with regard to Abdul Rehman ( since acquitted) has vitiated our trust in them. We are thus satisfied that the evidence of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) has no worth and is to be rejected outright. A witness who has been disbelieved with regard to his statement about an accused who had injured the said witness cannot be believed with regard to his statement about the other accused. Reliance in this regard is 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: - “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

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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 P.W.s; 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 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.”

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Reliance is also placed on the case of “Muhammad Ilyas and another VersusAmeer Ali and another” (2020 S C M R 305) wherein the august Supreme Court of Pakistan has held as under: -

“8. It is crystal clear that the case of the prosecution, against the appellant and his co-accused/co-convict Shahbaz to the extent of murder of Ijaz Ahmed (deceased) was on the same pedestal. At the cost of reiteration, it has been observed by us that significantly one injury was attributed to the appellant on the chest of Ijaz Ahmed, whereas two injuries were attributed to Shahbaz on the chest and neck of deceased and as per doctor all the three injuries contributed towards the death of Ijaz Ahmed. Since the prosecution failed to bring on record any strong and independent corroboration to distinguish the case of appellant from that of his co- accused Shahbaz, therefore, in the circumstances of the case, it can safely be held that case of prosecution against the appellant for the murder of Ijaz Ahmed (deceased) is not proved beyond reasonable doubt.”

21.The learned Deputy Prosecutor General and the learned counsel for the complainant, have submitted that the recovery of the Pistol (P-12) from the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali offered sufficient corroboration of the statements of the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3).

Regarding the recovery of the Pistol (P-12) from the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali, 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-12) from the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali which was in clear violation of section 103 Code of Criminal Procedure, 1898. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are

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honoured more in disuse than 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-12) from the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali 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.”

It is also a fact of the prosecution case itself that the Pistol (P-12) recovered from the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali, was recovered from a place which was not in the exclusive possession of the appellant, rather it was recovered from the house of which his brother was also a resident of. During cross-examination, Syed Amir Abbas SI (PW-10), the Investigating Officer of the case admitted as under:- “It is correct that other brother of Tasawar Hussain also residing in his house.”

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Therefore, the recovery of the Pistol (P-12) from the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali does not further the case of the prosecution in any manner. In view of the above mentioned facts, the recovery of the Pistol (P-12) from the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali is not proved and the same cannot be used as a circumstance against the appellant.

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 the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3) was that prior to the incident, the deceased had an altercation with Abdul Rehman (since acquitted), which then led to the incident. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. No date, time and place of the alleged altercation between the deceased and Abdul Rehman (since acquitted) was mentioned by the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3). Moreover, the altercation had taken place between the deceased and Abdul Rehman (since acquitted) and even according to the prosecution witnesses namely Fiaz Akhtar (PW-1), Faisal Mehmood (PW-2) and Zafar Iqbal (PW-3), the appellant had no concern with the same. Furthermore, during the course of the investigation, the Investigating Officer of the case did not collect any evidence to establish that there was any grievance developing in the heart of the appellant as against the deceased which motivated him to act in the manner in which he did. The prosecution witnesses failed to provide evidence enabling

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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 appellant to have committed the Qatl-i-Amd of the deceased . There is a haunting silence with regard to the minutiae of 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.”

Moreover, it is an admitted rule of appreciation of evidence that motive is only supporting piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction.

23.The learned Deputy Prosecutor General and the learned counsel for the complainant have also laid much stress upon the stance taken by the appellant namely Tasawwar Hussain son of Muhammad Arshad Ali while questioning the prosecution witnesses and making answers to the questions posed to him during his examination under section 342 of the Code of Criminal Procedure, 1898. Suffice it to observe that the onus to prove the facts in issue never shifts and always lies on the prosecution. The law is quite settled by now that if the prosecution fails to prove its case against an accused person, then the accused person is to be acquitted, even if he had taken a plea and had thereby admitted killing the deceased which at least was not the plea of the appellant Tasawwar Hussain son of Muhammad Arshad Ali in this case. Reliance is

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placed on the case of Azhar Iqbal Vs. The State (2013 SCMR 383) wherein the august Supreme Court of Pakistan has held as under:-

“It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand.”

24.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Tasawar Hussain son of Muhammad Arshad Ali in the present case. 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

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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 observed 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 We have categorically held that "if a 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 AyubMasih 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.”

25.For what has been discussed above Criminal Appeal No.96-J of 2024 lodged by the appellant namely Tasawar Hussain son of Muhammad Arshad Ali is allowed and the conviction and sentence of the appellant namely Tasawar Hussain son of Muhammad Arshad Ali awarded by the learned trial court through the impugned judgment dated 22.02.2024 are hereby set-aside.

The appellant namely Tasawar Hussain son of Muhammad Arshad Ali is ordered to be acquitted by extending him the benefit of the doubt. The

Criminal Appeal No.96-J of 2024

appellant namely Tasawar Hussain son of Muhammad Arshad Ali is in custody and is directed to be released forthwith if not required in any other case.

26.Murder Reference No.10 of 2024 is answered in Negative and the sentence of death awarded to Tasawar Hussain son of Muhammad Arshad Ali is Not Confirmed.

(MUHAMMAD WAHEED KHAN) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

Judge