Taj Din vs The State etc.

Stereo HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Crl. Appeal No.318 of 2022 Taj Din vs The State, etc.

JUDGMENT

Date of hearing 29.04.2026.

Appellant by: Hafiza Mehnaz Nadeem Abbasi, Advocate/Defence counsel on State expenses.

State by: Mr. Shahid Farid, Assistant District Public Prosecutor.

Complainant by: Nemo.

MUHAMMAD AMJAD RAFIQ, J:- After the trial of Taj Din, appellant/accused in FIR No. 266/85 dated 28.10.1985 registered at Police Station Khanpur, District Rahim Yar Khan, under Sections 302/307 of the Pakistan Penal Code 1860 (“PPC”), the learned Additional Sessions Judge, Khanpur, vide judgment dated 25.11.2017, convicted and sentenced him under Section 302(b) PPC to imprisonment for life. That conviction was challenged through Criminal Appeal No. 93 of 2018 before this Court. Upon examination, the judgment was found defective, as it omitted sentencing with respect to both the deceased and the charge under Section 172 PPC relating to the accused’s abscondence. Consequently, through judgment dated 07.02.2022, this Court remanded the matter for re-writing of the judgment.

2.Upon re-writing of the judgment on 21.03.2022, the learned Additional Sessions Judge, Khanpur, sentenced the appellant to imprisonment for life on two counts under Section 302(b) of the PPC for committing qatl-i-amd of Akhtar Ali and Riaz Din. He was further directed to pay compensation of Rs. 100,000 for each deceased, with a corresponding sentence of six months’ simple imprisonment in case of default. Additionally, the appellant was

convicted under Section 172 of the PPC and sentenced to six months’ simple imprisonment along with a fine of Rs. 3,000. All sentences were ordered to run concurrently, with the benefit of Section 382-B of the Code of Criminal Procedure 1898 (“the Code”). The present appeal, bearing No. 318-2022, has been filed against the said judgment.

3.As per FIR, the complainant Muhammad Bilal stated that the accused, Taj Din, had been persistently trying to persuade his brother, Riaz Din, to return home. However, Riaz Din, estranged from his brother, had been living with Muhammad Tufail (the complainant’s father) as an employee for the past five months. On the morning of 28.10.1985, when Riaz Din once again refused to reconcile, an altercation broke out between Taj Din and Akhtar Ali (the complainant’s brother). During this quarrel, Akhtar Ali struck Taj Din with his shoe, humiliating him. Enraged, Taj Din left the dera. Later that day, at around 5:00 p.m., while Muhammad Tufail, Sharif Masih, Akhtar Ali, Riaz Din, and Muhammad Bilal were loading sugarcane onto a bull cart, Taj Din returned armed with a 12-bore gun. Shouting a lalkara to avenge his morning humiliation, he opened fire. The first shot struck Akhtar Ali in the chest, causing him to collapse onto the bull cart. As Riaz Din rushed forward to protect him, Taj Din fired again, hitting Riaz Din in the chest. When Muhammad Tufail and Sharif Masih attempted to intervene, they too were shot and injured. Akhtar Ali and Riaz Din succumbed to their injuries on the spot. Taj Din then fled the scene with his weapon.

4.For an occurrence dating back to 1985, the criminal process culminated in a report under section 173 of the Code recommending proceedings under section 512 of the Code against the accused/ appellant, who had neither been arrested nor participated in the investigation. Acting upon this report, the court recorded the statements of 18 prosecution witnesses in the absence of the accused and consigned the case to the record until his formal arrest or participation in trial proceedings. The accused was eventually arrested on 2 October 2015 and thereafter put to trial.

5.During the trial, the learned court summoned PW-1 to PW-7 afresh and recorded their statements anew. These included, for the ocular account, Muhammad Bilal (complainant, PW-1), Sharif Masih (injured, PW-2), Muhammad Arif (PW-3, also witness to spot recoveries). Witness to recovery of gun, Sajjad Ahmad (PW-4). Rao Muhammad Farooq DSP, the first investigator, appeared as PW-5; Javed Ahmad, Halqa Patwari, as PW-6; and Muhammad Rasheed SI, who ultimately arrested the accused, as PW-7. However, the remaining eleven witnesses, whose statements had earlier been recorded in chief during proceedings under section 512 of the Code, were not summoned again, either due to their death, non-availability, or being deemed unnecessary. Most significantly, Dr. Abdul Hameed (PW-13), who had conducted the medico-legal examination of Sharif Masih and Muhammad Tufail (injured) as well as the postmortem examinations of Akhtar Ali and Riaz Din, did not enter appearance, nor was any other doctor examined on his behalf to prove the medical evidence. Similarly, Muhammad Rafiq SHO/Inspector (PW-5) and Imam Bakhsh FC No. 273 (PW-7), who had obtained warrants of arrest and proclamations under section 87 of the Code and executed them against the accused, were also not examined during trial.

6.The learned trial court neither directed the prosecution to produce secondary evidence for the eleven witnesses, nor did the prosecution itself move any application to that effect. Furthermore, the prosecution failed to tender certified copies of their statements during trial so as to treat them as previous statements, nor were such copies supplied to the accused/appellant under section 265C of the Code, thereby depriving him of the opportunity to prepare his defence against the charge framed on the basis of those statements. These were the preliminary arguments advanced by learned counsel for the appellant before opening the case on merits. She went on to challenge the prosecution’s case on the basis of inconsistencies between the ocular account and the medical evidence, contending that the case was riddled with deficiencies and could not sustain conviction or sentence against the accused/appellant. According to

her, the two injured witnesses Sharif Masih (PW-2) and Muhammad Tufail were the most natural witnesses by virtue of their alleged injuries. Yet Muhammad Tufail did not appear due to his death, while Sharif Masih failed to specify the locale of his injuries during testimony. In support of his injuries, the doctor who examined him also did not appear in court, nor were the oral contents of his medico-legal report proved through secondary evidence. The unexplained delay of sixteen hours in conducting the postmortem examination of the deceased further casts doubt on the presence of the alleged eyewitnesses. Recovery was inconsequential, and the motive remained unproved. Collectively, these shortcomings render the prosecution’s case deficient and unreliable.

7.On the other hand, the learned Assistant District Public Prosecutor, while referring to sections 509 and 512 of the Code with cross-reference to Articles 47, 92, 102, and 154 of the Qanun-e- Shahadat Order 1984 (“the Order 1984”), contended that documentary evidence in the form of medico-legal reports of the injured and postmortem reports of the deceased excludes the necessity of oral testimony by the doctor. He argued that section 509 of the Code makes it optional to summon the medical witness, and in this case, the testimony of the doctor had already been recorded under section 512 of the Code in the absence of the accused. Therefore, such statement, being relevant under Article 47, could be treated as a proved statement and rightly relied upon by the Court for corroboration of the facts in issue, as envisaged by Article 154 of the Order 1984. In his view, medical evidence could not be excluded from consideration in the present case.

8.Heard; record perused.

9.Section 512 of the Code is a special provision, carved out as a deviation from the ordinary regime of recording evidence, and rests on the principle that an absconder forfeits certain normal rights. Evidence recorded in his absence may be treated as admissible, but only if the prosecution first establishes that the witness whose testimony is sought to be relied upon is either dead, incapable of

giving evidence, or that his attendance cannot be procured without unreasonable delay, expense, or inconvenience in the circumstances of the case. This safeguard is expressly reiterated in Rule-2 of Chapter 15, Part-B, Volume-III of the High Court Rules & Orders. Likewise, Rule-4 of the same Chapter mandates that in cases where the crime has resulted fatally, or where medical evidence would ordinarily be required at trial, the testimony of the medical officer regarding the cause of death or the injuries inflicted must invariably be recorded.

Accordingly, before the statement of any witness or medical officer can be used, it is essential that the prosecution first prove that such witness is dead, incapable of giving evidence, or that his attendance cannot reasonably be procured. Only then may certified copies of their depositions earlier recorded under section 512 of the Code be produced for proof of their testimony before a Court of law or vice versa, if the court permits. Absent compliance with these requirements, reliance on such depositions cannot be sustained. Such requirement is supported by Article 131 of the Order 1984; which is as under;

131.Judge to decide as to admissibility of evidence.—(1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant, and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant and not otherwise.

(2)If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last- mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

(3)If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. Illustrations

(a)It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Article 46.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b)It is proposed to prove, by a copy, the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c)A is accused of receiving stolen property knowing it to have been stolen.

It is proposed to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved or permit the denial of possession to be proved before the property is identified.

(d)It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact- in-issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact-in-issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

(Emphasis supplied)

10.Burden of proof in such situation is on prosecution to prove the death or other disability circumstances as mentioned in section 512 of the Code as commanded by Article 120 of the Order 1984, which is as under;

120.Burden of proving fact to be proved to make evidence admissible.— The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Illustrations

(a)A wishes to prove a dying declaration by B. A must prove B’s death.

(b)A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

The prosecution neither proved the death of the witnesses, including the medical officer, through the proper legal course, nor tendered certified copies of their depositions recorded under section 512 of the Code before the trial court. In an adversarial system, the court cannot, of its own accord, requisition such evidence unless requested by a party. Moreover, the Code of Criminal Procedure contains no provision analogous to Order XIII Rule 10 of the Code of Civil Procedure, 1908, which empowers a civil court to call for records on its own initiative; which is as under;

10.Court may send for papers from its own records or from other Courts.__ (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.

(2)Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.

(3)Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.

Consequently, in the absence of proper proof and tendering of certified depositions, the prosecution’s reliance on such evidence is legally untenable

11.As regards the contention of the learned Assistant District Public Prosecutor that the deposition of the medical officer, recorded under section 512 of the Code, is admissible without requiring his appearance before the trial court in view of section 509 of the Code and Article 47 of the Order 1984, it suffices to state that both provisions of law unequivocally stipulate that such statements are admissible only if recorded in the presence of the accused party. The safeguard of presence is a mandatory requirement, ensuring the accused’s right to confrontation and cross-examination. Without compliance with this condition, the deposition cannot be treated as admissible evidence.

Section 509 of the Code and Article 47 of the Order 1984, make it clear that admissibility hinges upon the accused party being present at the time of recording. In the absence of such compliance, reliance on these provisions is misplaced. For reference section 509 of the Code & Article 47 of the Order 1984 are as under;

509.Deposition of medical witness.__(1) The deposition of a Civil Surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness.

(2)Power to summon medical witness. The Court may, if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition.

(Emphasis supplied)

47.Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated .– Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided that– the proceeding was between the same parties or their representatives-in-Interest;

the adverse party in the first proceeding had the right and opportunity to cross-examine;

the questions in issue were substantially the same in the first as in the second proceeding.

Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.

(Emphasis supplied)

12.No doubt, under Article 92 of the Order 1984, a presumption of genuineness attaches to documents maintained under law, and by virtue of Article 102 of the Order 1984, documentary evidence ordinarily excludes oral testimony. Yet, in the present case, the record of postmortem and medico-legal reports was never requisitioned by the Court from the concerned hospital. Consequently, the genuineness of such reports cannot be presumed automatically. Furthermore, Article 71 of the Order 1984 stipulates that when a fact relates to an opinion or to the grounds on which such opinion is based, the evidence must be given by the person who holds that opinion. In the present case, the actual doctor was not available, and the prosecution failed to produce any other medical officer to testify in court regarding the medicolegal or postmortem reports. As a result, the oral account of these reports could not be admitted as secondary evidence.

12.1. Moreover, the requirement of Article 47 of the Order 1984, which governs the admissibility of depositions of deceased

witnesses, was not complied with by the prosecution. Since these witnesses were never subjected to cross-examination, no question of proving further matters to corroborate or contradict their statements arises, as mandated by Article 154 the Order 1984. I am mindful of the judgments reported as “ARBAB TASLEEM Versus THE STATE” (PLD 2010 Supreme Court 642) & “RIFFAT HUSSAIN and another versus ZAHIDA BIBI and another” [PLJ 2026 SC (Cr.C.) 81] which delineate the scope of Section 512 of the Code and Article 47 of the Order 1984. However, the factual situations in those cases were entirely distinct.

12.2. In Arbab Tasleem, the statements-in-chief of witnesses were recorded in the presence of the accused, who repeatedly sought adjournments to cross-examine them. Before the defence could exercise its right of cross-examination, those witnesses were murdered. Their testimonies were therefore accepted as admissible.

12.3. In Riffat Hussain, during the trial of co-accused, witnesses were examined and duly cross-examined. When the absconding accused was later arrested and tried, one witness earlier recorded as PW-8 had died. The Supreme Court, while interpreting Article 47 of the Order 1984 held that such testimony is relevant for proving matters in a subsequent judicial proceeding or at a later stage of the same proceeding as it was between the same parties. By contrast, no such circumstances exist in the present case, and therefore the principles laid down in those precedents are inapplicable.

13.In light of these deficiencies, the contention advanced by the learned Assistant District Public Prosecutor is devoid of merit. Accordingly, the depositions of all witnesses who did not enter appearance during the trial in the presence of the accused are rejected in toto.

13.1. From the foregoing discussion, it emerges that the prosecution has failed to establish through medical evidence that the deceased persons were killed by firearm injuries and that the witnesses also sustained injuries in the same manner. Further, the alleged abscondence of the accused was not proved, as neither any order

under section 87(3) of the Code was tendered in evidence nor did the relevant witnesses appear before the court to substantiate this claim. Consequently, the prosecution’s case rests entirely upon the ocular account, the credibility of which has already been assailed by the learned defence counsel. It is therefore imperative to examine closely what the witnesses actually brought before the court.

14.The accused-appellant stood charged with the murder of his own brother, Riaz Din, as well as his brother’s employer, Akhtar Ali. Notably, Muhammad Tufail—the father of Akhtar Ali and the actual employer of Riaz Din—was present at the time of the incident and even sustained injuries, yet he chose not to lodge the complaint himself. Instead, he placed the responsibility on his younger son to initiate and steer the prosecution.

14.1. The prosecution’s case was built around two episodes. The first episode, alleged to have occurred on the morning of 28 October 1985, was meant to establish motive. It was claimed that Akhtar Ali forbade the accused from taking his unwilling brother and family home, leading to an altercation during which Akhtar allegedly beat the accused. However, this account lacked credibility. The complainant admitted during cross-examination that he was a school-going child at the time, with school starting at 8:00 a.m. and requiring half an hour’s travel. Though he claimed to have witnessed the altercation at 7:15 a.m. while washing his face, he made no mention of any beating. Even when the defense raised the issue of shoe beatings, the complainant conceded he could not specify where such blows were delivered. Furthermore, neither Sharif Masih (PW-

2)nor Muhammad Arif (PW-3) claimed to be present during this alleged episode. Crucially, the FIR and statements under section 161 of the Code made no mention of the timing of this first occurrence, leaving the motive unsubstantiated.

14.2. The second episode, far more serious, took place at 5:00 p.m. when the accused allegedly killed both Akhtar Ali and Riaz Din and injured Muhammad Tufail and Sharif Masih. Yet, despite the gravity of the incident, the matter was reported to the police only after a

delay of more than one and a half hours. The FIR was registered at 7:10 p.m., even though the police station was merely six kilometers away. This delay cast significant doubt on the prosecution’s version. If the complainant had truly been present, the injured witnesses would not have waited so long to report the matter. The silence suggested either that the complainant was absent at the time of occurrence or that he was influenced by his father, Muhammad Tufail, who may have taken time to consult and concoct a narrative to implicate the accused. Courts often view such delays in lodging FIRs with suspicion, considering them indicative of afterthought.

14.3 The prosecution’s story also appeared implausible. If the accused had indeed killed Akhtar Ali, there was little reason for him to then murder his own brother, whom he had been urging to return home to strengthen family ties. The defense advanced an alternative theory: that Akhtar Ali was killed by Riaz Din after catching him in a compromising situation with his wife, and that the complainant’s party, in retaliation, murdered Riaz Din and shifted the blame onto the accused-appellant. This possibility suggested that something mysterious transpired at the crime scene, and to conceal the true events, Muhammad Bilal was put forward as the complainant to frame the accused.

15.The ocular testimony furnished by Muhammad Bilal (complainant, PW-1), Sharif Masih (PW-2), and Muhammad Arif (PW-3) reveals that Taj Din, the accused-appellant, armed with a 12- bore single-barrel gun, fired upon Akhtar Ali, striking him in the chest and causing him to collapse onto the cart loaded with sugarcane. Riaz Din likewise received a gunshot wound to the chest and fell to the ground. In the same incident, Muhammad Tufail (since deceased), father of the complainant, along with Sharif Masih, also sustained firearm injuries. However, none of the three witnesses specified the exact location of injuries on the person of injured in their testimony, leaving a critical gap in the prosecution’s narrative.

15.1. According to the FIR and subsequent police proceedings, the complainant, accompanied by the injured Muhammad Tufail and

Sharif Masih, proceeded to the police station to lodge the report. Yet, they were intercepted at Adda Chak No. 4 by a police officer, who recorded the complainant’s statement, prepared injury memos for the wounded, and dispatched them to the civil hospital for medical examination through Constable Ahmad Bakhsh (No. 634/C). Strikingly, Ahmad Bakhsh never appeared before the court, nor did the doctor who conducted the medico-legal examination testify to verify these facts. This omission deprived the defence of its lawful right to cross-examine both the constable and the medical officer regarding the circumstances observed at or near the time of examination an essential safeguard guaranteed under the provisions of the Order 1984, which is as under;

152.Questions tending to corroborate evidence of relevant fact admissible. — When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. Thus, Prosecution has failed to establish a link that injured had received injuries at the relevant time and during the occurrence.

16.The presence of the complainant and other witnesses at the time and place of occurrence is highly doubtful. Muhammad Tufail, the father of the complainant, though claiming to have sustained injuries, did not assume the role of complainant. Instead, a 16-year-old boy, a student of the 8th class, was put forward before the police—an apparent attempt to conceal facts that might have surfaced had Tufail himself led the case.

16.1. Both PW-1 and PW-2 admitted that the place of occurrence was situated at a distance of 21⁄2 to 3 acres from their dera, while the house of Arif (PW-3) was also at a similar distance. Their claim that sugarcane was being loaded at the time of the incident finds no corroboration from the spot recovery: neither the bullock cart was taken into possession, nor were any implements for cutting sugarcane found at the scene. PW-1 further deposed that a tractor trolley was parked at the place of occurrence, yet this too was not seized by the police.

16.2. PW-1’s testimony during cross-examination was inconsistent. At one point, he stated that he transported the dead bodies on the tractor trolley, met Rao Farooq ASI at Chak No. 4, and accompanied the bodies to the hospital, remaining there until 9:00 p.m. before returning home. Contradictorily, he later claimed that the dead bodies remained at the dera throughout the night and were only shifted to THQ Hospital Khanpur the following morning. These contradictions strongly suggest that the witnesses were not present at the scene.

16.3. The delayed postmortem further reinforces this inference, indicating that no one had actually witnessed the occurrence and that time was consumed in procuring witnesses to support the prosecution’s version. This suspicion is compounded by the fact that the injuries allegedly sustained by Sharif Masih and Muhammad Tufail were never medically proved, nor did the prosecution witnesses specify the exact locale of those injuries. Collectively, these circumstances cast serious doubt on the veracity of the prosecution’s case.

17.Although the prosecution presented Sharif Masih (PW-2) as its star witness on account of his alleged injuries, his credibility is questionable. He was an employee of Muhammad Tufail, father of the complainant, while Muhammad Arif (PW-3) was Tufail’s cousin both therefore qualify as interested witnesses whose testimony must be scrutinized with caution. In his examination-in-chief, Sharif Masih did not specify the exact location of his injuries, initially claiming that he remained hospitalized for 21 days, but later asserting that his treatment continued for two years. Despite portraying him as severely injured, the prosecution failed to produce any medical record to substantiate this claim. Sharif Masih further alleged that the accused-appellant fired three shots from a considerable distance, reloading and unloading cartridges at the spot. Yet, despite this prolonged assault, none of the witnesses attempted to flee or save themselves. Such unnatural conduct casts serious doubt on their actual presence at the scene of occurrence. Taken

together, the absence of medical evidence, contradictions in testimony, and implausible behavior of the witnesses undermine the reliability of the prosecution’s case.

18.Investigating Officer PW-5 deposed contrary to PW-1 regarding the dispatch of dead bodies to the hospital. According to him, he reached the place of occurrence, inspected the dead bodies, and sent them to the mortuary within one hour. He further stated that he did not record the statement of injured Sharif Masih when he met him at Adda Chak No. 4 along with the complainant. Although he claimed to have requested the medical officer to record the statement of Sharif Masih, he himself never recorded it, as the investigation was entrusted to SI Ayyub Khan on 29.10.1985. However, Ayyub Khan did not appear in the witness box to confirm who recorded the statement of Sharif Masih under Section 161 of the Code. PW-5’s inspection of the crime scene also remains questionable, as he failed to mention requisite details in the site plan and admitted that electricity was not installed at the complainant’s dera at the time of occurrence. His assertion of arranging artificial lights is unsupported by any entry in the official record. The prosecution has not produced any investigating officer who completed even partial investigation with an opinion that the accused had committed the offence. Subsequently, upon the arrest of the accused/appellant by SI Rasheed (PW-7) on 02.10.2015, only a 12-bore gun was allegedly recovered on the lead of the accused. PW-7 submitted a report under Section 173 of the Code which was not exhibited in Court through statement of any investigator by expressing any opinion regarding the culpability of the accused/appellant. Thus, the prosecution case is devoid of investigative support and remains fundamentally weak.

19.The recovery of the Gun was allegedly effected from the accused/appellant, said to have been concealed underground in an open area. However, PW-7 admitted that the weapon was never sent to the Punjab Forensic Science Agency (PFSA) for testing. He further deposed that he was unaware whether the empty cartridges were ever forwarded to the forensic laboratory. In the absence of a

functionality test of the recovered gun and without any ballistic matching report linking it to the empty cartridges, the recovery remains inconsequential and fails to lend support to an already discredited prosecution case.

20.The prosecution alleged noticeable abscondence of the accused/appellant; however, such abscondence was neither proved on record through the testimony of relevant witnesses nor supported by any order under Section 87(3) of the Code, which is as under;

(3)A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

Copies of warrants of arrest and proclamation were likewise not tendered in evidence. It was further alleged that the accused/appellant was an army official, in which case it was incumbent upon the prosecution to adopt the proper mechanism for service through the commanding officer of the concerned unit, either to secure his presence or to obtain his discharge order from service. This omission explains why, when questioned about his alleged abscondence in his statement under Section 342 of the Code, the accused/appellant simply denied any knowledge of such proceedings. Consequently, the prosecution’s claim of abscondence remains unsubstantiated and devoid of evidentiary support.

21.The occurrence took place on 28 October 1985. In the FIR, the complainant’s age was recorded as 17/18 years, yet evidence suggests he was only 16 at the time. This is corroborated by the fact that when his statement was recorded before the court in 2017, his age was noted as 48 years, and during cross-examination he himself stated his birth year as 1969. His elder brother, Akhtar Ali (deceased), was 21/22 years old, while Taj Din, the accused-appellant, was approximately 45 years of age calculated from his actual age of 87 years noted in 2017 when his examination under section 342 of the Code was conducted. The alleged motive that Akhtar Ali, a young man of 21/22 years, physically beat Taj

Din, a 45-year-old Army official does not withstand scrutiny. It is implausible to suggest that a much younger man could overpower an experienced and physically trained soldier, particularly when Taj Din was not even employed under Akhtar Ali. The claim of “exchange of hot words” preceding such a beating further underscores the improbability of the prosecution’s version. Given the relative ages, positions, and physical capacities of the individuals involved, the notion that Taj Din could not avert a mere shoe beating is unreasonable. Thus, the alleged motive is weak and fails to inspire confidence in its entirety.

22.Upon careful examination of the evidence on record, it is evident that the prosecution has failed to satisfy the requirements of Section 512 of the Code and Article 47 of the Order 1984. Consequently, the deposition recorded in the absence of accused/appellant cannot be read for corroboration under Article 154 of the Order 1984. Likewise, Section 509 of the Code has no application in the present case. The non-appearance of the doctor, and the police official who accompanied the injured persons deprived the prosecution of the opportunity to invoke Article 152 of the Order 1984, which permits questioning such witnesses regarding other circumstances surrounding the fact in issue. The medical evidence available on file is deficient and does not lend support to the ocular account. The inconsistencies between the testimony of the injured witness and the alleged eye-witnesses further undermine the credibility of the prosecution’s case, which was already weak in respect of motive and recovery of the gun. In view of these deficiencies, the prosecution has failed to prove the charge against the accused/appellant and the prosecution case is fraught with doubt. It is a settled principle of criminal jurisprudence that the benefit of doubt must always go to the accused. Importantly, it is not necessary that such doubt should arise from a multitude of circumstances; even a single reasonable doubt, if found sufficient to shake the foundation of the prosecution case, entitles the accused to acquittal not as a matter of grace but as of right. Accordingly, the charge against the appellant has not been proved beyond reasonable doubt. The

appellant is, therefore, acquitted of the charge by extending him the benefit of doubt. Reliance is placed on the cases reported as “RASHEED AHMAD alias Seeda Versus The STATE” (2026 SCMR 798), “MUHAMMAD SIDDIQUE and another Versus The STATE and others” (2026 SCMR 783), “LAIQ SHAH Versus The STATE” (2026 SCMR 257), “MUSHTAQ AHMED Versus The STATE” (2026 SCMR 60) “MAQSOOD ALAM and another Versus The STATE and others” (2024 SCMR 156), “ABDUL QADEER Versus The STATE” (2024 SCMR 1146), “MUHAMMAD IMTIAZ BAIG and another Versus The STATE through Prosecutor General, Punjab, Lahore and another” (2024 SCMR 1191), “MUHAMMAD HASSAN and another Versus The STATE and others” (2024 SCMR 1427), “KHIAL MUHAMMAD Versus The STATE” (2024 SCMR 1490) and “MUHAMMAD IJAZ alias BILLA and another Versus The STATE and others” (2024 SCMR 1507). Consequently, the titled appeal is allowed and Taj Din (accused/appellant) is acquitted of the charge. He is confined in jail, shall be released forthwith if not required in any other case. The case property if any shall be disposed of as directed by the trial court and the record of the trial court be sent back immediately.

(Muhammad Amjad Rafiq) Judge

Approved for Reporting:

Judge

Reserved on 29.04.2026:

Announced in open Court on 09.06.2026

Judge

M. Azhar*