The State . Vs Gulbaz alias Moon

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.193-J of 2023 (Gulbaz alias Moon v. The State) and Murder Reference No.27 of 2023 (The State v. Gulbaz alias Moon)

JUDGMENT

Date of hearing: 30.04.2026 Appellant by:

Syed Badar Raza Gillani, Advocate.

Complainant by:

Mr. Muhammad Zubair Khalid Ch., Advocate.

State by: Rana Ahsan Aziz, Additional Prosecutor General with Afzaal SI.

ABHER GUL KHAN, J. The appellant Gulbaz alias Moon along with co-accused Sharafat Ali was tried by learned Additional Sessions Judge, Chichawatni in a private complaint titled as Zakir Ali v. Gulbaz alias Moon & another for the offences punishable under Sections 302,109 & 34 PPC arising out of case FIR No.193/2022 dated 18.08.2022 registered under Sections 302, 109 & 34 PPC at Police Station Ghaziabad, District Sahiwal. Trial court vide judgment dated 28.01.2023 acquitted the aforementioned co-accused, however convicted and sentenced the appellant in the following terms:- Under Section 302(b) PPC to suffer death sentence for qatl-i-amd of the deceased Muhammad Mohsin. He was further directed to pay Rs.5,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. which was ordered to be recoverable as arrears of land revenue and in default thereof to undergo simple imprisonment for six months.

Aggrieved by his conviction and sentence the appellant Gulbaz alias Moon preferred Criminal Appeal No.193-J of 2023, whereas the trial court sent Murder Reference No.27 of 2023 under Section 374 Cr.P.C. seeking confirmation or otherwise of the death sentence awarded to the convict/appellant Gulbaz alias Moon. Both the aforementioned matters are being disposed of through this single judgment.

2.The prosecution case, as projected by the complainant Zakir Ali (PW.1) in FIR (Exh.CW-1/A) is that on 18.08.2022 at about 12:15

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

a.m., his paternal cousin Muhammad Mohsin was present in the Dera of Lala Muhammad Umair Bhatti, resident of Chak No.175/9-L. In the meantime, an altercation ensued between the appellant Gulbaz alias Moon and one Moazam Ali, which escalated into a scuffle accompanied by exchange of threats. The situation, however, was defused with the intervention of the deceased Muhammad Mohsin and other persons present there. The appellant Gulbaz alias Moon, while raising lalkara, proclaimed that Muhammad Mohsin be ready as he would be done to death. Thereafter, the appellant allegedly made successive fire shots with pistol which hit the right bicep and right flank of the deceased Muhammad Mohsin. The appellant continued firing while reiterating his threat to kill the deceased. On hearing the hue and cry, the complainant along with witnesses Muhammad Naeem and Nabeel (PW.2) reached the place of occurrence, who observed that Muhammad Mohsin was lying on the ground in a pool of blood and the appellant while brandishing his weapon fled away from the crime scene. The injured was then shifted by the complainant, along with Umair Akbar and Mudassar Shehzad, to DHQ Hospital, Sahiwal, where he succumbed to the injuries. Allegedly, the appellant committed the crime at the instigation of his father Sharafat Ali (since acquitted).

3.On 18.08.2022, upon receipt of information regarding the occurrence, Tahir Hussain, SI (CW.10), proceeded to DHQ Hospital, Sahiwal, where the complainant Zakir Ali (PW.1) submitted a written application (Exh.PA). On the basis thereof, necessary police proceedings were incorporated and the same was dispatched to the police station through Muhammad Usman 20/C for the registration of a formal FIR. Tahir Hussain SI (CW.10) thereafter prepared the injury statement (Exh.CW-3/C), the inquest report (Exh.CW-3/D) and deputed Muhammad Ali Noman 787/C for conducting the postmortem examination of the deceased. Subsequently, Tahir Hussain SI (CW.10) visited the place of occurrence situated at Chak No.175/9-L and summoned the Crime Scene Unit of PFSA, Sahiwal. In pursuance thereof, Waleem Afzal, Junior Forensic Scientist (CW.5), inspected

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

the spot, collected evidence, made it into three sealed parcels and handed over the same to Tahir Hussain SI (CW.10) which were taken into possession vide memo (Exh.PE). Tahir Hussain SI (CW.10) also inspected the site and prepared the rough site plan (Exh.CW-10/A). During the course of inspection, he collected blood-stained earth, five crime empties of .30 bore pistol (P.1/1-5) and two electric bulbs (P.6/1-2), which were taken into possession through recovery memos (Exh.PC, Exh.PD, and Exh.PF), respectively. The appellant Gulbaz alias Moon was arrested on 24.08.2022. During interrogation on 02.09.2022, the appellant made a disclosure leading to the recovery of a .30 bore pistol (P.2) along with two live bullets (P.3/1-2), which were taken into possession vide memo (Exh.CW-2/A). During the course of investigation, the co-accused Sharafat Ali was found to be not involved in the commission of the offence. Upon completion of the investigation, the case file was submitted on 25.09.2022 to the SHO, Police Station Ghaziabad, for preparation and submission of the report under Section 173 Cr.P.C.

4.Being aggrieved of the manner in which the investigation was conducted, the complainant Zakir Ali (PW.1) instituted a private complaint (Exh.PB), pursuant whereto the trial was conducted. In order to substantiate the charge against the appellant and his co- accused, the prosecution produced Dr.Faisal Imran (CW.3), who conducted the postmortem examination of the deceased Muhammad Mohsin on 18.08.2022 at about 4:50 p.m. and furnished the postmortem report (Exh.CW-3/A) along with the pictorial diagram (Exh.CW-3/B). Dr.Syed Ali Raza Shah (CW.4) deposed that he performed the surgical operation of the injured on 18.08.2022 at about 1:00 a.m. and produced the certified copy of surgical notes (Exh.CW- 4/A/1-12). Likewise, Dr.Zeeshan Ahmad (CW.7) conducted the medico-legal examination of the deceased Muhammad Mohsin on 18.08.2022 at about 12:45 a.m. and issued the MLC (Exh.CW-7/A). The ocular account was furnished by the complainant Zakir Ali (PW.1) and Nabeel (PW.2), whereas Tahir Hussain, SI (CW.10), appeared as the investigating officer. The remaining prosecution and

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

court witnesses are formal in nature and were examined to prove various ancillary aspects relating to the investigation and prosecution of the case. Upon conclusion of the prosecution evidence, the statement of the appellant under Section 342, Cr.P.C. was recorded, wherein all incriminating pieces of evidence appearing against him were put to him. The appellant denied the allegations in toto, professed his innocence, and alleged false implication. However, he neither opted to make statement on oath under Section 340(2), Cr.P.C., nor did he produce any evidence in his defence. At the culmination of the trial, the learned trial Court found the appellant guilty of the charge, convicted and sentenced him accordingly. Hence, the instant criminal appeal along with murder reference.

5.Learned counsel for the appellant contends that the FIR in the instant case was lodged with an unexplained delay of more than eight hours, which casts a serious doubt upon the veracity of the prosecution version. The ocular account furnished by the alleged eyewitnesses is materially at variance with the medical evidence, thereby creating inherent inconsistencies and undermining the prosecution case. The postmortem examination of the deceased was conducted with a delay of about fifteen hours from the time of occurrence, which circumstance suggests that the eyewitnesses were not present at the spot and were subsequently introduced during the course of investigation. The recovery of .30 bore pistol at the instance of the appellant is devoid of evidentiary value, particularly in view of the fact that the crime empties secured from the place of occurrence were transmitted to the office of PFSA after the arrest of the appellant, thus rendering the recovery highly doubtful. On the strength of the foregoing submissions, learned counsel maintains that the prosecution has failed to establish its case against the appellant beyond reasonable doubt and, consequently, the appellant is entitled to acquittal as of right.

6.Conversely, learned counsel for the complainant, ably assisted by the learned Additional Prosecutor General, contended that immediately after the occurrence the foremost priority of the

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

complainant was to shift the injured to the hospital for medical treatment, thus, the delay, if any, in the registration of the FIR is quite natural and stands sufficiently explained. The ocular account furnished by the two eyewitnesses before the learned trial Court is confidence-inspiring, consistent, and worthy of reliance. According to the learned counsel, the same finds full corroboration from the medical evidence available on record. The recovery of .30 bore pistol effected at the instance of the appellant, which, as per the report of the PFSA, has been positively matched with the crime empties secured from the place of occurrence, thereby lending further corroboration to the prosecution case. On the strength of the aforesaid submissions, it is urged that the prosecution has successfully established its case against the appellant beyond reasonable doubt, therefore, the appellant does not merit any leniency or indulgence from this Court.

7.Arguments heard. Record perused.

8.A careful perusal of the record reveals that the instant case arises out of an occurrence which took place on 18.08.2022 at about 12:15 a.m. in Chak No.175/9-L, situated at a distance of about 21- kilometers from Police Station Ghaziabad, District Sahiwal. During the said occurrence, the deceased Muhammad Mohsin sustained firearm injuries allegedly inflicted by the appellant Gulbaz alias Moon. It further transpires from the record that immediately after the incident, the injured was shifted to DHQ Hospital, Sahiwal, where he succumbed to the injuries at about 7:50 a.m. on the same day. The complainant Zakir Ali (PW.1) reported the matter to the police by submitting a written application (Exh.PA) at about 8:45 a.m. on 18.08.2022, pursuant whereto the formal FIR (Exh.CW-1/A) was registered at 10:10 a.m. It is also borne out from the record that during the course of investigation conducted by Tahir Hussain, SI (CW.10), the co-accused Sharafat Ali was found to be not involved in the occurrence. Being dissatisfied with the said conclusion, the complainant instituted a private complaint (Exh.PB) on 06.10.2022, in consequence whereof the trial was held.

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

9.In the backdrop of the facts noted hereinabove, it is noticed that there is a delay of about eight hours and thirty minutes in reporting the occurrence to the police. Learned counsel for the complainant has tried to explain the said delay by contending that immediately after the incident, the foremost concern of the complainant Zakir Ali (PW.1) was to save the life of the injured Muhammad Mohsin and, therefore, after shifting him to the hospital, the written application was submitted to the police officer who arrived there. However, we are not persuaded to accept the said explanation. In this regard, it is significant to note that the complainant, at the bottom of the written application (Exh.PA), has mentioned his mobile number, yet no effort was made to inform the police through Emergency-15 regarding the occurrence. Moreover, the medico-legal certificate (Exh.CW-7/A) reflects that the injured was brought to DHQ Hospital, Sahiwal at about 12:15 a.m. and was medically examined at 12:45 a.m. The MLC (Exh.CW-7/A) further reveals that the injured was accompanied by Muhammad Akram, ASI. The presence of the said police official at the hospital at the relevant time clearly indicates that the matter had already come to the knowledge of the police, which fact appears to have been deliberately withheld, suggesting an attempt to improve or fabricate the prosecution version. This inference is further fortified by the admission of the Investigating Officer, Tahir Hussain, SI (CW.10), during cross-examination that Muhammad Akram, ASI, was posted at Chowki Khoin, Police Station Ghaziabad, at the relevant time. Although the said witness feigned ignorance regarding the reporting of the occurrence to Muhammad Akram, ASI, vide Rapat No.18, yet he conceded that the injury statement (Exh.CW-7/B) prepared by the said ASI was produced before him. However, he neither associated Muhammad Akram ASI in the investigation nor made any effort to verify the said Rapat, thereby leaving a material lacuna in the prosecution case. Furthermore, Tahir Hussain SI (CW.10) admitted during cross-examination that he was informed by a spy about the shifting of the injured to DHQ Hospital, Sahiwal, situated at a distance of about 60 kilometers from the police station but this fact

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

does not find mention in the case diary, which omission further detracts from the credibility of the investigation. It is also noteworthy that although the written application (Exh.PA) forms the basis of the FIR, yet the prosecution has failed to disclose the identity of its scribe. Additionally, while the complainant (PW.1) stated during cross- examination that the injured was shifted to the hospital in a car belonging to one Bhatti of Chak No.177/9-L, allegedly arranged by Nabeel (PW.2), however neither the complete identity of the said person nor the particulars of the vehicle, such as its make, model, or registration number have been brought on record at any stage of the proceedings. The cumulative effect of the circumstances discussed above leads to the inescapable conclusion that the delay of more than eight hours in lodging the FIR has remained unexplained and appears to have been utilized for deliberation and consultation. Consequently, the FIR (Exh.CW-1/A) cannot be said to have been recorded promptly and spontaneously, and such delay puts this Court on guard to examine the prosecution evidence with utmost care and caution.

10.We have observed that the ocular account in the instant case has been furnished by the complainant Zakir Ali (PW.1) and Nabeel (PW.2). Admittedly, the former is related to the deceased as his paternal cousin, while the latter though not related to either the complainant or the deceased, yet is a close associate of the complainant. It is noteworthy that the complainant, while lodging the FIR, filing the private complaint, and deposing before the learned trial Court, projected himself as an eyewitness of the entire occurrence. However, a careful and critical appraisal of the statements of the aforesaid witnesses reveals that such assertion is not borne out from the record. At the cost of repetition, it may be noted that in his written application (Exh.PA), the complainant stated that an altercation had taken place between the appellant Gulbaz alias Moon and one Moazam Ali at the Dera of Lala Muhammad Umair Bhatti, situated in Chak No.175/9-L, which was pacified by the deceased Muhammad Mohsin and others present there. Thereafter, the appellant allegedly raised a lalkara, exhorting the deceased to get ready as he would kill

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

him, and made successive fire shots from pistol, which according to the complainant, struck the right bicep and right flank of the deceased. However, during cross-examination the complainant Zakir Ali (PW.1) made material admissions which detract from his claim of having witnessed the occurrence. The complainant Zakir Ali (PW.1) conceded that he did not own any agricultural land in Chak No.175/9- L and further admitted that the Dera of Lala Muhammad Umair Bhatti was, in fact, a cattle shed situated on agricultural land at a distance of about 50/60 feet from the metalled road, where no one ordinarily resided. The complainant Zakir Ali (PW.1) also acknowledged that he had not specified in the FIR, private complaint, or his statements recorded during investigation and trial the exact place from where he allegedly heard the hue and cry. The complainant further admitted that Mudassar Shehzad is the brother of Moazam Ali and that he had neither cited Mudassar Shehzad nor Umair Akbar who allegedly shifted the deceased to the hospital as witnesses in the case. In view of the importance of these aspects, a relevant portion of the cross- examination of the complainant Zakir Ali (PW.1) is reproduced hereunder:- “It is correct that I have no mentioned the place of our presence in FIR, private complaint, cursory statements and statements recorded before this Court where we heard hue and cry. Mudassar Shehzad is brother of Moazzam Ali. It is correct that I have not cited Mudassar Shehzad and Umair Akbar as witnesses who taken Mohsin deceased to DHQ Hospital.”

In addition to the foregoing, it has been observed that, according to the contents of the FIR as well as the private complaint, the alleged occurrence took place in the Dera of Lala Muhammad Umair Bhatti, stemming from an altercation between the appellant Gulbaz alias Moon and Moazzam Ali. However, the complainant Zakir Ali (PW.1) neither disclosed the names of the persons who were allegedly present in the said Dera at the relevant time, nor did he cite as witnesses those individuals who, according to the prosecution version, intervened and separated the appellant and Moazzam Ali. These omissions assume significance and cast a shadow of doubt on the veracity of the prosecution case. In this context, it is considered appropriate to

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

reproduce the relevant portion of the cross-examination of Zakir Ali (PW.1), which reads as under:- “According to the contents of FIR and private complaint, alleged occurrence taken place at the Dera of Lala Muhammad Umair Bhatti. According to contents of my private complaint, alleged occurrence taken place over grappling of accused Gulbaz with Moazzam Ali. It is correct that I have not cited the persons as witnesses of the alleged occurrence who had separated Moazzam Ali and accused Gulbaz except Mohsin deceased. It is correct that I had not disclosed the names of other persons except Mohsin deceased who had separated accused Gulbaz and Moazzam on grappling.”

It is further observed that during the course of cross-examination, the complainant Zakir Ali (PW.1) candidly admitted that he had not specified, either in the written application (Exh.PA), the private complaint (Exh.PB), or in his statements recorded before the Court, that with whom and at what time the deceased Muhammad Mohsin had arrived at the Dera of Lala Muhammad Umair Bhatti on the day of occurrence, nor did he disclose the purpose of the deceased’s presence there. This omission pertains to a material aspect of the prosecution case and assumes considerable significance. Accordingly, a relevant portion of the cross-examination of Zakir Ali (PW.1) is reproduced hereunder:- “It is correct that I have no mentioned in application Exh.PA, private complaint Exh.PB, cursory statements recorded before court that with whom and when Mohsin deceased came to the Dera of Lala Muhammad Umair Bhatti on the fateful day and what was purpose of his presence there.”

Similarly, the other alleged eyewitness Nabeel (PW.2) during his cross-examination made material admissions which seriously erode the credibility of his testimony. He admitted that no person resides at the Dera of Lala Muhammad Umair Bhatti where on the day of occurrence only cattle were present and that neither the deceased Muhammad Mohsin nor Moazam Ali had any residence or business connection with Lala Muhammad Umair Bhatti. The said witness further conceded that he had not stated, at any stage of the proceedings, the purpose for which the deceased Muhammad Mohsin was present at the Dera on the fateful day. Nabeel (PW.2) also admitted that he did not disclose in his statement as to when and with

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

whom the deceased had come to the said place. Likewise, Nabeel (PW.2) conceded that he had not specified in his statement under Section 161, Cr.P.C., nor in his deposition before the Court, the exact place from where he, along with the complainant, allegedly heard the hue and cry. In view of these omissions and inconsistencies, the testimonies of both the alleged eyewitnesses appear to be nothing but a confused and disjointed account, lacking coherence and confidence. It is further pertinent to note that Dr. Zeeshan Ahmad (CW.7) initially conducted the medico-legal examination of the injured Muhammad Mohsin on 18.08.2022 at about 12:45 a.m. and issued the MLC (Exh.CW-7/A). According to MLC, the injured was brought to DHQ Hospital at about 12:15 a.m. and medically examined within about thirty minutes of the occurrence. It is significant to mention that DHQ Hospital, Sahiwal, is situated at a distance of about sixty kilometers from Police Station Ghaziabad. This fact was also admitted by Tahir Hussain, SI (CW.10), in categorical terms as under:- “DHQ, Hospital, Sahiwal is at the distance of 60km from police station Ghaziabad.”

Admittedly, the occurrence is stated to have taken place at 12:15 a.m. on 18.08.2022. However, it appears highly improbable, if not practically impossible, that the injured could have been shifted to DHQ Hospital, Sahiwal at the very same time after traversing a distance of about sixty kilometers from the place of occurrence. Be that as it may, it is further noticed that at the time of medical examination, the injured Muhammad Mohsin disclosed before Dr.Zeeshan Ahmad (CW.7) that a quarrel had taken place on 17.08.2022 at Chak No.175/9-L, though he did not disclose the name of the assailant. This significant aspect was candidly acknowledged by Dr.Zeeshan Ahmad (CW.7) during his cross-examination in the following terms:- “I correctly recorded brief history of deceased Mohsin then injured as per statement of injured, fight taken place on 17.08.2022 at Chak No.175/9.L. He did not disclose name of culprit.”

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

We have further noted that Dr. Syed Ali Raza Shah (CW.4) conducted the surgical operation of the injured Muhammad Mohsin on 18.08.2022 at about 1:00 a.m. and produced the surgical notes (Exh.CW-4/A/1-12). During his cross-examination, the said witness stated that, as per permission letter (Exh.CW-4/A/6), one Faisal Nadeem son of Muhammad Akram, bearing CNIC No.36501- 1899613-5 had granted permission for the surgery of the injured Muhammad Mohsin and his thumb impression was duly affixed thereon. However, the complainant Zakir Ali (PW.1), during cross- examination, expressed ignorance with regard to the said Faisal Karim son of Muhammad Akram, resident of his village, bearing CNIC No.36501-1899613-5, who had admittedly signed the requisite document (Exh.CW.4/A) permitting to the medical treatment of the deceased at about 5:45 a.m. on 18.08.2022 at DHQ Hospital, Sahiwal. Similarly, Nabeel (PW.2) also professed complete ignorance about the said person. The circumstance that permission for surgical intervention was allegedly granted by a person other than the claimed eyewitnesses, coupled with their ignorance about the said individual, gives rise to a reasonable inference that both the alleged eyewitnesses were not, in fact, present with the deceased at the relevant time. Had they been present, they would have ordinarily been in a position to extend consent for medical treatment.

11.The depositions of both the alleged eyewitnesses stand further discredited from another important circumstance. According to the prosecution case, the occurrence took place at the Dera of Lala Muhammad Umair Bhatti, thereafter the injured was shifted to the hospital in a vehicle allegedly arranged through one Bhatti, accompanied by Muhammad Akram, ASI, who is also stated to have prepared the injury statement (Exh.CW.7/B). Likewise, at the time of surgical intervention, the permission letter (Exh.CW-4/A) was purportedly signed by one Faisal Nadeem. It is, however, noteworthy that all the aforesaid persons, despite being material and natural witnesses to the occurrence and its immediate aftermath, were neither associated during the course of investigation nor produced before the

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

learned trial Court. The withholding of such material witnesses gives rise to an adverse inference in terms of Article 129, Illustration (g) of the Qanun-e-Shahadat Order, 1984, to the effect that had they been produced, they would not have supported the prosecution version. For ready reference, the relevant provision is reproduced hereunder:- “129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.

Illustrations

The court may presume:

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

The Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under:- “.....that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e- Shahadat Order can fairly be drawn that if PW Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution.”

Moreover, the inquest report (Exh.CW-3/D) reflects that Saif Ullah and Imanat Ullah were the persons who identified the dead body of the deceased Muhammad Mohsin. In these circumstances, a reasonable inference can safely be drawn that had the complainant Zakir Ali (PW.1) and Nabeel (PW.2) been present at the hospital at the relevant time along with the dead body, their names would have naturally found mention in the said inquest report. It is also pertinent to observe that, as per the inquest report (Exh.CW-3/D), Tahir Hussain, SI (CW.10), though mentioned in column No.3 the date on which he received information regarding the death of the deceased, yet omitted to mention the exact time of receipt of such information. Such omissions and lapses on the part of the prosecution create serious doubts and cast a shadow of uncertainty on the authenticity and credibility of the prosecution case.

12.The record of the case further reveals that the postmortem examination on the dead body of the deceased Muhammad Mohsin

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

was conducted by Dr.Faisal Imran (CW.3) on 18.08.2022 at about 4:50 p.m. The postmortem report (Exh.CW-3/A) reflects that the deceased had expired in the hospital at about 7:50 a.m. on the same day, whereas the police papers were received in the mortuary at about 4:20 p.m., and the autopsy was conducted at about 4:50 p.m. It is further noted that during his cross-examination, Dr.Faisal Imran (CW.3) candidly admitted that there is no mention in the postmortem report regarding the time of receipt of the dead body in the mortuary. Thus, there appears to be a delay of about nine hours between the death of the deceased and conducting of postmortem examination, which remains unexplained on the part of the prosecution. The postmortem report further discloses that the deceased sustained six injuries, out of which injury Nos.1 and 4 were entry wounds, injury No.2 was a glancing firearm wound, injury No.3 was the exit wound corresponding to injury No.1, while injury Nos.5 and 6 were drain wounds. The dimensions of these injuries also vary. Injury No.1 measured 2 cm x 1 cm, injury No.2 measured 1 cm x 1 cm, and injury No.4 measured 4 cm x 4 cm. The doctor, during cross-examination, also conceded that the said injuries were of different measurements. From this medical evidence, an inference can be drawn that injuries of different nature and dimensions suggest the use of more than one weapon in the occurrence, which further weakens the prosecution version regarding the presence of the alleged eyewitnesses at the spot. Be that as it may, since the prosecution has failed to satisfactorily establish the presence of both alleged eyewitnesses at the place of occurrence, the medical evidence, by itself, is not sufficient to bring home the guilt of the appellant Gulbaz alias Moon. It is well-settled that medical evidence, at best, serves as corroborative evidence. It may support the ocular account with regard to the nature, seat, and duration of injuries as well as the kind of weapon used, but it does not identify the assailant. Reliance is placed upon the case reported as Muhammad Tasaweer v. Hafiz Zulkarnain and two others (PLD 2009 Supreme Court 53) wherein the Supreme Court of Pakistan held as under:-

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

“It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.”

13.In order to ascertain whether any further corroboration is available, we have carefully examined the positive report of PFSA (Exh.PH) according to which the five crime empties recovered from the place of occurrence were found to be matched with .30 bore pistol allegedly recovered from the appellant Gulbaz. In this regard, it is pertinent to note that, as per the prosecution case, the crime empties were secured from the spot by Tahir Hussain, SI (CW.10) on the date of occurrence i.e. 18.08.2022, whereas the appellant was arrested on 24.08.2022 and the alleged recovery of pistol was effected on 02.09.2022. However, the parcel containing the said crime empties was received in the office of PFSA on 26.08.2022, i.e. two days after the arrest of the appellant. In these circumstances, the possibility that the crime empties were manipulated after the arrest of the appellant cannot be ruled out. Consequently, the evidentiary value of the PFSA report (Exh.PH) is significantly weak and the same cannot be safely relied upon as a conclusive piece of corroboration in support of the prosecution case.

14.We have further observed that, both in the FIR (CW.1/A) as well as in the private complaint (Exh.PB), it has been alleged that an altercation took place between the appellant Gulbaz alias Moon and Moazzam Ali at the Dera of Lala Muhammad Umair Bhatti, wherein, amongst others, the deceased Muhammad Mohsin had intervened and brought about a reconciliation between the parties. It is further alleged that immediately thereafter, the appellant Gulbaz alias Moon took out a pistol and while making successive fire shots, caused the death of Muhammad Mohsin. From the sequence of events so narrated, no plausible or discernible motive has been brought on record which could reasonably justify the appellant to commit the murder of the deceased Muhammad Mohsin who according to the prosecution itself had in fact acted as a peacemaker. Furthermore, the person with whom an altercation took place i.e. Moazam Ali was neither joined

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

with investigation nor cited as witness in the private complaint (Exh.PB) leaving an impression that the motive was not real but an imaginary story to justify the occurrence. Even otherwise, neither during the course of investigation nor at the trial stage the prosecution has been able to establish any motive or circumstance which could have impelled the appellant to take the life of Muhammad Mohsin. In these circumstances, we are left with no hesitation in holding that the prosecution has miserably failed to establish any motive or compelling circumstance connecting the appellant with the commission of the offence.

15.The resume of the foregoing discussion leads to the conclusion that the prosecution has failed to establish its case against the appellant Gulbaz alias Moon. The alleged eyewitnesses have failed to satisfactorily prove their presence at the place of occurrence, the delay of more than eight hours in the registration of FIR remains unexplained, the deceased did not disclose the name of the assailant to the attending medical officer at the earliest opportunity, the positive report of the PFSA, in the circumstances of the case, is of no evidentiary value and the motive has also not been proved. Even otherwise, it is a settled principle of criminal jurisprudence that if a single circumstance gives rise to a reasonable doubt regarding the prosecution case, the benefit thereof must necessarily be extended to the accused. In the present case, the prosecution evidence is replete with material contradictions, inconsistencies, and unexplained lacunae, which collectively cast serious doubt on the veracity of the prosecution version. Reliance is placed upon the cases reported as Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 230). In the former cited judgment, the Supreme Court of Pakistan acquitted an accused with the following observation:- “The concept of benefit of doubt to an accused person is deep- rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused

Criminal Appeal No.193-J of 2023 & Murder Reference No.27 of 2023

will be entitled to the benefit not as a matter of grace and concession but as a matter of right.”

16.For the reasons mentioned hereinabove, we allow Criminal Appeal No.193-J of 2023 while giving benefit of doubt in favour of the appellant Gulbaz alias Moon, set-aside his conviction and sentence and as a necessary corollary he stands acquitted of the charge. He shall be released forthwith if not required to be detained in any other criminal case. Resultantly, Murder Reference No.27 of 2023 is answered in the NEGATIVE and death sentence awarded to Gulbaz alias Moon (convict) is NOT CONFIRMED.

(AALIA NEELUM) (ABHER GUL KHAN)

CHIEF JUSTICE JUDGE

APPROVED FOR REPORTING

(AALIA NEELUM) (ABHER GUL KHAN)

CHIEF JUSTICE JUDGE

The order was announced on 30.04.2026, the judgment has been dictated, prepared and signed on 06.05.2026 Najum*