Muhammad Waseem etc. vs State

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Criminal Appeal No. 243-J of 2025 (Muhammad Waseem and two others Vs. The State .)

Criminal Revision No. 104 of 2025 .

(Muhammad Fazil Vs. The State and three others.)

Petition for Special Leave to Appeal No.25 of 2025.

(Muhammad Fazil Vs. Muhammad Altaf and another.)

Date of hearing: 11.03.2026.

Appellants by: Mr. Asim Ali Bukhari, Advocate.

State by: Mr. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Mr. Muhammad Azam, Advocate.

JUDGMENT

SADIQ MAHMUD KHURRAM, J.– Muhammad Waseem son of

Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad (convicts) were tried alongwith Muhammad Altaf son of Allah Ditta(since acquitted), the co-accused of the convicts by the learned Additional Sessions Judge, Chishtian in the case instituted upon the private complaint titled “Muhammad Fazil Vs. Muhammad Waseem and four others” lodged in respect of offences under sections 302 , 311,148 and 149 P.P.C. for committing the Qatl-i-Amd of Muhammad Imran son of Muhammad Fazil (deceased)(relating to F.I.R. No. 166 of 2024 dated 29.04.2026 registered at Police

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Station Shehr Farid, District Bahawalnagar). The learned trial court vide judgment dated 22.05.2025 convicted Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad (convicts) and sentenced them as infra:

Muhammad Waseem son of Muhammad Waris:-

Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Fazil (deceased) and directed to pay Rs.10,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo two years of simple imprisonment.

Muhammad Waseem son of Muhammad Waris (convict) was however acquitted of the charge under section 311 P.P.C. by the learned trial court .The benefit available under Section 382 B of the Code of Criminal Procedure, 1898 was extended to the convict by the learned trial court.

Muhammad Munir son of Mang Ali:-

Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Fazil (deceased) and directed to pay Rs.10,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo two years of simple imprisonment.

Muhammad Munir son of Mang Ali (convict) was however acquitted of the charge under section 311 P.P.C. by the learned trial court .The benefit available under Section 382 B of the Code of Criminal Procedure, 1898 was extended to the convict by the learned trial court.

Muhammad Iqbal son of Dur Muhammad:-

Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Fazil (deceased) and directed to pay Rs.10,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo two years of simple imprisonment.

Muhammad Iqbal son of Dur Muhammad (convict) was however acquitted of the charge under section 311 P.P.C. by the learned trial court.The benefit available under

Criminal Appeal No.243-J of 2025 Criminal Revision No. 104 of 2025 Petition for Special Leave to Appeal No.25 of 2025

Section 382 B of the Code of Criminal Procedure, 1898 was extended to the convict by the learned trial court.

Muhammad Altaf son of Allah Ditta, the co-accused of the convict, was acquitted by the learned trial court.

2.Feeling aggrieved, Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad (convicts) lodged the Criminal appeal No.243-J of 2025, assailing their convictions and sentences. Muhammad Fazil, the complainant of the case filed Criminal Revision No. 104 of 2025 seeking the enhancement of the sentences awarded to the convicts namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad under section 302(b) P.P.C. The complainant of the case namely Muhammad Fazil filed Petition for Special Leave to Appeal No.25 of 2025 seeking permission to file an appeal against the acquittal of Muhammad Altaf son of Allah Ditta, the co-accused of the convicts, since acquitted. We intend to dispose of the Criminal Appeal No.243-J of 2025, the Petition for Special Leave to Appeal No.25 of 2025 and the Criminal Revision No. 104 of 2025 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as stated by Muhammad Fazil (PW-1), the complainant of the case, are as under:- “ Stated that I am a farmer. I have two sons and four daughters. In village Noran Balochan, I have taken 32-Acre land on lease. Wheat crop was sowed by me at said land. On 29.04.2024, I was busy in threshing my wheat crop. Hafiz Imran deceased of this case and nephew Fiaz were present. At about 01:00 P.M through telephone I called to Fiaz. Fiaz who told to me that Imran had gone to house. Imran had not come to house. I waited for some time then. I took Qari Ikram my son and Hafiz Ahmad

Criminal Appeal No.243-J of 2025 Criminal Revision No. 104 of 2025 Petition for Special Leave to Appeal No.25 of 2025 Yaar alongwith me. Through motorcycle we reached at Noran Balochan Wala thresher work was in progress. Persons present thereon were asked by me about the Imran. Imran was not present there. Imran was also searched hither and thither. Then we moved back towards city. At a short distance towards city there is tube well of Jahangir Khan. When we reached near said tubewell, we heard hue and cry. We slowed down our motorcycle and thereby stopped. After when we stopped motorcycle, by dismounting from motorcycle we rushed towards tubewell. I witnessed that four persons were beating to Imran. I recognized to them. Accused Muhammad Altaaf was armed with Sota. Waseem was armed with hatchet. Iqbal was armed with Sota. Munir was armed with Sabal (iron bar). Three unknown armed persons were also present at the place of occurrence. All accused persons, while seeing us, raising lalkara, fled away from the place of occurrence. I saw Imran lying on ground. He was severely injured. He had died at the spot due to injuries. By then it was 04:30 or 04:45 Α.Μ.

Before one year of this occurrence, in the same area I had taken agricultural land on lease from Aslam Lakhwaira. Munir suspected that Muhammad Imran was having illicit relationship with her daughter namely Sadia Bibi. All accused persons while sharing common object had murdered to Imran. I moved application Exh-PA before concerned SHO for registration of case. Exh-PA/A bears my thumb impressions. (Exh-PA Removed from report U/S:173 Cr.P.C and annexed with private complaint). registration of case investigation was carried out. Accused Altaaf was declared innocent by police. This was done only in order to demolish my true story. Due to this act of police, I instituted private complaint Exh-PB which bears my thumb-impression Exh-PB/1.”

4.The accused were summoned to face trial in the case instituted upon the private complaint titled “Muhammad Fazil Vs. Muhammad Waseem and four others” lodged in respect of offences under sections 302 , 311,148 and 149 P.P.C.

for committing the Qatl-i-Amd of Muhammad Imran son of Muhammad Fazil (deceased)(relating to F.I.R. No. 166 of 2024 dated 29.04.2026 registered at Police Station Shehr Farid, District Bahawalnagar). The learned trial court framed the

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charge against the accused on 03.12.2024, to which the accused pleaded not guilty and claimed trial.

5.The complainant of the case in order to prove his case got recorded statements of as many as six witnesses. The ocular account of the case was furnished by Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2). Ahmad Yar (PW-3) stated that on 29.04.2024, the Investigating Officer of the case took into possession the motorcycle (P-1) present near dead body of the deceased.

Khuda Bakhsh (PW-4) stated that on 29.04.2024, Crime Scene Investigation Unit visited the place of the incident and collected evidence from the same and he also identified the dead body of the deceased at the time of the post mortem examination and on 15.06.2024, the Investigating Officer of the case took into possession the Call Data Record (CDR) of the mobile phone device under the use of the deceased, the accused and one Sadia Bibi through the recovery memo (Exh.PG). Hafiz Muhammad Aslam (PW-5) stated that on 29.04.2024, the Investigating Officer of the case collected evidence from the place of incident and on 21.05.2024, the appellant namely Muhammad Munir got recovered the iron subble (P-5). Muhammad Shafique (PW-6) stated that on 08.05.2024, the complainant of the case handed over the torch (P-6) to the Investigating Officer of the case and on 15.05.2024, the Investigating Officer of the case took into possession the mobile phone device of Sadia Bibi (P-8) and on 21.05.2024, the appellant namely Muhammad Waseem got recovered the hatchet (P-9) and on the same day the appellant namely Muhammad Iqbal got recovered a wooden stump

(P-10).

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6.The learned trial court recorded the statements of as many as seven court witnesses. Muhammad Shafique SI (CW-2) stated that on 29.04.2024, he got recorded the formal F.I.R. (CW-2/A). Muhammad Sajid 690/HC (CW-3) stated that on 29.04.2024, the Investigating Officer of the case handed over to him a sealed parcels and on 06.05.2024, he handed over the said sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 21.05.2024, the Investigating Officer of the case handed over to him three sealed parcels which on 31.05.2024 he gave to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Muhammad Ashraf 60/C (CW-4) stated that on 29.04.2024 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 Javed Iqbal Patwari (CW-7) prepared the scaled site plan of the place of occurrence (CW-7/B). Nasir Mahmood SI (CW-6) investigated the case from 29.04.2024 till 12.01.2025, arrested the appellants namely Muhammad Waseem, Muhammad Munir and Muhammad Iqbal and on 12.05.2024 and detailed the facts of the investigation conducted by him in his statement before the learned trial court.

6.The learned trial court also recorded the statement of Dr. Muhammad Mamoon Azhar (CW-1) who stated that on 29.04.2024, he was posted as Medical Officer at THQ hospital Chishtian and on the same day he conducted the post mortem examination of the dead body of Muhammad Imran (deceased). On

Criminal Appeal No.243-J of 2025 Criminal Revision No. 104 of 2025 Petition for Special Leave to Appeal No.25 of 2025 conducting the post mortem examination of the dead body of Muhammad Imran (deceased), Dr. Muhammad Mamoon Azhar (CW-1) observed as under:- “ Description of Injuries:

Injury No.1.

8 lacerated wounds on his head largest one measuring 6cm x 1.5 cm x all bone deep.

Injury No.2.

Lacerated wound on his forehead measuring 5 cm x 1.5cmx bone deep.

Injury No.3.

Lacerated wound on lateral aspect of right eye brow measuring 3cm x 1 cm x bone exposed.

Injury No.4.

C shaped lacerated wound just later to left eye measuring 10 Cm x 2 CM bone exposed plus fracture (zygomatic bone). Left eye congested.

Injury No.5.

Star shape (3 pointed) lacerated wound just below his nose, extending into right nasal cavity measuring 4 cm x 1 cm muscle deep.

Injury No.6.

Multiple bruises plus abrasions on his whole back largest one measuring 10cm x 3 cm.

Injury No.7.

Three bruises on lateral and posterior side of his right arm, largest one measuring 6cm x 3 cm.

Injury No.8.

There are three bruises on his right buttock largest one measuring 10cm x 2.5 cm on lateral side of right buttock.

Injury No.9.

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There are multiple abrasions on lateral side of left buttock largest one measuring 10 cm x 2.5 cm.

Injury No.10.

There is a bruise on his left scrotum measuring 5cm x 5 cm. left testy seems crushed taken and sent to PFSA Lahore for histopathology.

Injury No.11.

Multiple abrasions on both thighs largest one measuring 10 cm x 2 cm.

Final Opinion:

After thorough internal and external examination of dead body and after receiving reports of histopathology and toxicology from PFSA Lahore, I am of the opinion that physical trauma is the cause of death. Injury No.01-h, 1- e & 1-F are the specific injuries leading to his death. Presence of skull fractures underneath and presence of subdural haematomas in right parital and inter parital area and Histopathological report from PFSA, Lahore indicates that brain injury due to physical trauma is cause of death.”

7.On 11.04.2025, the learned counsel for the complainant gave up the prosecution witnesses namely Hafiz Muhammad Nadeem, Allah Ditta and Muhammad Akram, as being unnecessary and on the same day, the learned Deputy District Public Prosecutor closed the prosecution evidence.

8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad and under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, they replied that they were innocent and had been falsely involved in the case. The appellants namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad opted not to get themselves examined under section

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340(2) Cr.P.C however, the appellant namely Muhammad Munir produced the document (Exh.DA) as evidence in his defence.

9.At the conclusion of the trial, the learned Additional Sessions Judge, Chishtian, convicted and sentenced the appellants as referred to above.

10.The contention of the learned counsel for the appellants namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad precisely was that the whole case was fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence.

Learned counsel for the appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also submitted that the recoveries of the weapons made from the appellants namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad, were full of procedural defects, of no legal worth and value, and were the result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.

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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 appellants. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the eye witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recoveries of the weapons made from the appellants namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad 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 substitute the real offenders 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 appellants namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad. The learned counsel for the complainant also argued that the Petition for Special Leave to Appeal No.25 of 2025, assailing the acquittal of Muhammad Altaf son of Allah Ditta by the learned trial court from the charges also merited acceptance.

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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 most vital point in the case attracting our attention as well as grave concern is the fact that the written application (Exh.PA) of Muhammad Fazil (PW-1) was received by Nasir Mahmood SI (CW-6), the Investigating Officer of the case, at the place of the occurrence at 03.45 p.m on 29.04.2024 whereas the occurrence had taken place on 29.04.2024 at about 4.00-5.00 a.m in the morning .

In this manner, it is admitted that the written application (Exh.PA) was submitted by Muhammad Fazil (PW-1) to Nasir Mahmood, SI (CW-6), the Investigating Officer of the case, at the place of the incident, after about eleven hours of the occurrence. This fact alone that the written application (Exh.PA) was submitted by Muhammad Fazil (PW-1) after about eleven hours of the occurrence, in itself is sufficient to prove that the incident was not witnessed by anyone and the delay in the submission of the written application (Exh.PA) and the delay in the subsequent registration of the formal F.I.R. (Exh.CW-2/A) happened only for the fact that the killing of the deceased had not been witnessed by anyone and therefore such huge stretch of time was required before the submission of the written application (Exh.PA) and the registration of the formal F.I.R. (Exh.CW-2/A). More worrying is the fact that according to the statements of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2), after the incident had taken place at about 04.30 a.m in the morning of 29.04.2024, the police arrived at the place of incident within an hour of the happening of the same, however,

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despite the arrival of the police at the place of incident within an hour, the written application (Exh.PA) was submitted at 03.45 p.m. In his statement recorded by the learned trial court , the prosecution witness namely Muhammad Fazil (PW-1) stated as under:-

“ I saw Imran lying on ground. He was severely injured. He had died at the spot due to injuries. By then it was 04:30 or 04:45 Α.Μ.

Through motorcycle, from place of occurrence to Police Station, Shahar Fareed, it takes about 25 minutes.

I call to police through 15 at about sun rise. It was half hour of death of Muhammad Imran when I called. Police reached at place of occurrence after one hour” (emphasis supplied)

Similarly, the prosecution witness namely Muhammad Ikram (PW-2) also admitted during cross-examination as under:-

“Police reached at the place of occurrence after half an hour or in 45-minutes.

Police of Police Station, Shahar Fared reached at the place of occurrence ” (emphasis supplied)

Khuda Bakhsh (PW-4) also admitted during cross-examination, as under:- “ On the day of occurrence, I had reached at place of occurrence at about 06/07:00 A.M. When I reached at place of occurrence, police of Police Station Shahar Fareed, Chishtian was present at the place of occurrence.

FIR of case was registered at about 04 or 04:30 P.M.” (emphasis supplied)

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Muhammad Shafique SI (CW-2) who got recorded the formal F.I.R. (CW-2/A) was questioned by the learned counsel for the complainant and replied as under:- “It is correct that on complaint Exh-PA bears time as 03:45 P.M. It is correct that FIR was lodged at 06:25 P.M. ” (emphasis supplied) Sami Ullah 1485/C (CW-5) who had taken the written application (Exh.PA) to the police station from the place of incident also admitted that the written application (Exh.PA) was handed over to him at 03.45 p.m after he had arrived at the place of the incident with the Investigating Officer of the case at 05.00 a.m. During cross- examination, Sami Ullah 1485/C (CW-5) explained as under:- “ Written complaint for registration of case was handed over to me at about 03:45 P.M of 29.04.2024. From 05:00 A.M to 03:45 P.M I remained at place of occurrence. Investigating Officer also remained at place of occurrence from 05:00 A.M to 03:45 P.M. It is in my knowledge that formal case was got registered at 06:25 P.M on 29.04.2024” (emphasis supplied) Nasir Mahmood, SI (CW-6) , the Investigating Officer of the case, also claimed that he had arrived at the place of the incident on 29.04.2024 at 05.15 a.m, however, the written application (Exh.PA) was submitted to him on 29.04.2024 at 03.45 p.m. During cross-examination, Nasir Mahmood, SI (CW-6) , the Investigating Officer of the case, admitted as under:-

“ I reached at place of occurrence on 29.04.2024 at 05:15 A.M.

First application about this occurrence was submitted to me at 03:45 P.M on 29.04.2024. It is correct that before 03:45 P.M neither complainant nor any eye

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witness had recorded his statement before me with regard to respective occurrence.” (emphasis supplied)

The prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) not only admitted to the delayed submission of the written application (Exh.PA) regarding the incident, despite the arrival of the Investigating Officer of the case at the place of the incident as early as at 05.15 a.m, but they also admitted that their statements were not recorded for many hours after the arrival of the police. During cross-examination, Muhammad Fazil (PW-1) stated as under:-

“I recorded my statement after evening of day of occurrence. My statement was recorded after when dead body was present in T.H.Q Hospital, Chishtian for post mortem. I was present in Hospital with dead body. My statement was recorded in Hospital. Nasir SI had also come in Hospital. I did not record any other statement to police on the day of occurrence ” (emphasis supplied) Similarly, the prosecution witness namely Muhammad Ikram (PW-2) also stated that his statement was recorded by the Investigating Officer of the case after about 4 to 5 hours of the arrival of the Investigating Officer of the case at the place of the incident. During cross-examination, Muhammad Ikram (PW-2) stated as under:- “Police recorded my statement after 4/5 hours of their arrival. My statement was recorded at the place of occurrence. ” (emphasis supplied) No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one because according to the prosecution case as a

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result of injuries suffered by Muhammad Imran (deceased), he died at the place of occurrence and the same fact was also confirmed by the witnesses, however the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) never got recorded their statements regarding the incident for as many as eleven hours. This aspect of the prosecution case has left no doubt in our minds that the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) had not witnessed the occurrence and the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) were called from their homes to become witnesses. There must be some plausible reason for this failure of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) of not narrating the incident to the police for as many as eleven hours despite the presence the police, however none is available and hence, doubts have arisen regarding the very presence of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) at the place of occurrence, at the time of occurrence . An inference hostile to the claimed presence of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) at the place of the incident, at the time of the incident, has to be drawn. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:-

“As per contents of F.I.R., the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrence at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances,

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chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out.”

Reliance is also placed on the case of “MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others” (2017 SCMR 199) wherein the august Supreme Court of Pakistan was pleased to hold as under:

“The hospital is closely situated to the Police Station but neither the complainant nor P.W.s took a little pain to report the matter, nor the staff of the hospital including the treating doctor took initiative.”

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Zafar vs. The State and others” (2018 SCMR

326)where the august Supreme Court of Pakistan was pleased to hold as under:- “It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the F.I.R. or while appearing before the learned trial Court qua the delay in lodging the F.I.R. or for that matter the belated postmortem of the deceased.”

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “G. M. NIAZ Vs. The State” (2018 SCMR 506) the august Supreme Court of Pakistan was pleased to hold as under:

“An FIR in respect of the alleged occurrence had been lodged after about seven hours and forty minutes which by itself was a circumstance doubting the claimed availability of the above mentioned eye-witnesses with the deceased at the time of occurrence.”

Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of “Abdul Jabbar and another Vs. The State” (2019 S C M R

129)and “Muhammad Shafi alias Kuddoo Vs. The State and others” (2019 S C M

R 1045).

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14.It is also an admitted fact that both the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) were not the residents of the place of occurrence. According to the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2), both of them had their residence at at a distance of about 3.5 kilometers from the place of the incident, as the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) were the residents of Basti Shamoran Wali, whereas the incident took place in the land of Jahangir Khan Lakhwera. The prosecution witness Muhammad Fazil (PW-1) explained during cross-examination as under:- “ Land of Jahangir Khan Lakhwaira is one and half kilometer away from Police Station, Shahar Fareed. Basti Shamoran Wali is three kilometer away from land of Jahangir Khan Lakhwaira..” (emphasis supplied) Similarly, the prosecution witness namely Muhammad Ikram (PW-2) during cross-examination admitted that his house was at a 3.5 kilometers from the police station and stated as under:-

“My palace (sic) of residence i.e. Basti Shamoran Wali is three and half kilometer away from Police Station Shahar Fared..” (emphasis supplied) We have also perused the scaled site plan of the occurrence (Exh.CW-7/B) as prepared by Muhammad Javed Iqbal Patwari (CW-7) and the rough site plan of the place of occurrence (Exh.CW-6/A) as prepared by Nasir Mahmood, SI (CW-6) ,the Investigating Officer of the case and in both the site plans (Exh.CW-7/B and Exh.CW-6/A) the residences or places of work of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) have not been shown. In this manner, both the prosecution witnesses namely Rab Nawaz (PW-1)

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and Allah Ditta (PW-2) can be validly termed as “chance witnesses” and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. In order to prove their presence at the place of occurrence, at the time of occurrence, the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) claimed that as the deceased did not return to his own residence, therefore, the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) started a search for him and initially asked people present at the place where the wheat was being harvested regarding the presence of the deceased and thereafter when they were proceeding back to their residence, they saw the incident which was taking place in the land of one Jehangir Khan Lakhwera. It is an admitted part of the prosecution's case that neither Jehangir Khan Lakhwera ever joined the investigation of the case nor appeared before the learned trial court.

During cross-examination, Muhammad Fazil (PW-1) stated that his deceased son had a friend called Nangi who used to reside at the tubewell room constructed on the land of one Jehangir Khan Lakhwera, however, Muhammad Fazil (PW-1) admitted that the said friend called Nangi also was not cited as a witness. During cross-examination, Muhammad Fazil (PW-1) admitted as under:-

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“Friend of deceased called as Nangi used to reside at the tube well of Jahangir Khan Lakhwaira. He is not witness of the occurrence as well of my complaint ” Furthermore, the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) did not produce any evidence during the investigation of the case or before the learned trial court so as to prove that the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) had made any inquiry from any person regarding the whereabouts of the deceased on the day of the incident. Nasir Mahmood, SI (CW-6), the Investigating Officer of the case, also did not collect any evidence that the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) had arrived at the place of the incident during a search by them for the deceased. The very inception of the prosecution case is put in doubt due to the said failure of the prosecution.

15.Another fact that raises huge doubts regarding the whole narrative of the incident is the fact that the dead body of the deceased was found without any clothes at the place of the incident and moreover when Dr. Muhammad Mamoon Azhar, (CW-1) conducted the post mortem examination of the dead body, he also observed as under:-

“ Examination of Clothes:

Not wearing any clothes.

It is correct that I have observed in my post mortem report that dead body was not having any sort of clothing on it and he was totally naked” (emphasis supplied)

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In column No.7 of the inquest report (Exh. CW-1/C), this fact was also recorded that the dead body of the deceased had no clothes on it. As mentioned above, the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) remained present at the place of the incident for more than eleven hours and still did not cover the dead body of the deceased with any clothes. This fact also proves the absence of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2).

16.We have also noted that though it was claimed by the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) that they had gone to the place of occurrence on a motorcycle, however, during the course of the investigation as well as before the learned trial court, the said motorcycle allegedly used by the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) to arrive at the place of occurrence was not produced. In his statement recorded by the learned trial court, Muhammad Fazil (PW-1) stated as under:-

“When we reached near said tubewell, we heard hue and cry. We slowed down our motorcycle and thereby stopped. After when we stopped motorcycle, by dismounting from motorcycle we rushed towards tubewell. I witnessed that four persons were beating to Imran.” (emphasis supplied) The prosecution witness namely Muhammad Ikram (PW-2) stated as under:- “ In search of Muhammad Imran all three of us left through motorcycle.”

As mentioned above, Nasir Mahmood,SI (CW-6), the Investigating Officer of the case, visited the place of occurrence, after the occurrence and remained there for a

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considerable time. During the course of his stay at the place of occurrence, Nasir Mahmood,SI (CW-6), the Investigating Officer of the case did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) to arrive at the place of occurrence along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence, if the same was available. The said motorcycle, which was used by the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) was not even produced during the entire period of investigation nor was produced before the learned trial court. The perusal of the scaled site plan of the occurrence (Exh.CW-7/B) as prepared by Muhammad Javed Iqbal Patwari (CW-7) and the rough site plan of the place of occurrence (Exh.CW-6/A) as prepared by Nasir Mahmood, SI (CW-6) ,the Investigating Officer of the case reveals that in both the site plans (Exh.CW-7/B and Exh.CW-6/A) , the presence of any motorcycle used by the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) to arrive at the place of occurrence has not been marked. The non-production of the motorcycle used by the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) to arrive at the place of occurrence and the failure of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such motorcycle was available.

Had a motorcycle been used by the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) to arrive at the place of occurrence,

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then the same must have been available at the place of occurrence, at the time of arrival of Nasir Mahmood,SI (CW-6), the Investigating Officer of the case and the same would necessarily have been taken into possession by Nasir Mahmood,SI (CW-6), the Investigating Officer of the case but it was not and it proves that a false claim was made by the prosecution witnesses namely Muhammad Fazil (PW-

1)and Muhammad Ikram (PW-2) that they had arrived at the place of occurrence on a motorcycle. Reliance in this regard is placed on the case of “Muhammad Ali Vs. The State” (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:-

“The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material.”

In this manner, both the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence and the mode through which they arrived at the place of occurrence. The prosecution was under a bounden duty to establish not only that the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) had a reason to proceed to the place of occurrence but also to prove the mode through which the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) arrived at the place of occurrence. The failure of the prosecution to prove the said facts has vitiated our trust in the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) as being truthful

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witnesses. In this respect, reliance is placed on the cases of “Muhammad Rafiq v.

State” (2014 SCMR 1698), “Usman alias Kaloo v. State” (2017 SCMR 622) and “Nasrullah alias Nasro v. The State” (2017 SCMR 724) .

17.We have also noted another flaw in the prosecution case in the manner that, as mentioned above, the written application (Exh.PA) was submitted by Muhammad Fazil (PW-1) at the place of incident to Nasir Mahmood, SI (CW-6) the Investigating Officer of the case on 29.04.2024 at 03.45 p.m, however, according to the statement of Dr. Muhammad Mamoon Azhar (CW-1) , the dead body had already arrived at the hospital on 29.04.2024 at 03.10 p.m . In his statement recorded by the learned trial court, Dr. Muhammad Mamoon Azhar (CW-1) stated as under:-

“On the same day at about 03:10 P.M dead body of deceased Hafiz Muhammad Imran was received in Death-House duly identified by Khuda Bakhash son of Nazar Muhammad having I.D card No.31102-0632861-5 (uncle of deceased) and Hafiz Nadeem son of Allah Bakhash having I.D card No.36603-8984911-1 (cousin of deceased), brought by Nasir Mehmood Sub Inspector and Muhammad Ashraf 60/C, Police Station Shahar Fareed, Chishtian.” (emphasis supplied)

In this manner we have arrived at an irresistible conclusion that both prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) were not present at the place of occurrence and did not even know how the dead body had arrived at the hospital, much before the submission of the written application (Exh.PA) of Muhammad Fazil (PW-1) at the place of incident itself.

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18.We have also noted with disquiet that despite the fact that the occurrence took place at about 04.30 a.m (morning) on 29.04.2024, the post-mortem examination of the dead body of the deceased was conducted after much delay.

According to Dr.Muhammad Mamoon Azhar (CW-1), he conducted the post- mortem examination of the dead body of the deceased namely Muhammad Imran at 08.30 p.m on 29.04.2024 i.e. after about 16 hours of the occurrence and after 05 hours of the presentation of the written application (Exh.PA) by Muhammad Fazil (PW-1) to Nasir Mahmood,SI (CW-6). Dr.Muhammad Mamoon Azhar (CW- 1), who conducted the post-mortem examination of the dead body of Muhammad Imran (deceased) and prepared the post-mortem examination report (Exh. CW- 1/A), gave the time between death and post-mortem examination as being 15-16 hours. Dr. Muhammad Mamoon Azhar (CW-1) also explained that as he had received the papers ,from the police at about 08.00 p.m on 29.04.2024. During cross-examination, Dr. Muhammad Mamoon Azhar (CW-1), explained as under:- “It is correct that dead body was received in the dead house at about 03:10 P.M on 29.04.2024. Whereas the relevant papers, essential for the postmortem examination were received from the police at 08:P.M on 29.04.2024 and I have mentioned the same in my post mortem report as well as on my inquest report.” (emphasis supplied)

The reason which is apparent for the delayed conducting of the post-mortem examination of the dead body of Muhammad Imran son of Muhammad Fazil (deceased) is that by that time the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion a false narrative of the occurrence. These facts clearly establish that the witnesses claiming to have seen the occurrence were not present at the time of

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occurrence and the delay in the post-mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post-mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further 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”.

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

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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.”

19.The learned Deputy Prosecutor General and the learned counsel for the complainant, have submitted that on 21.05.2024, the appellant namely Muhammad Munir got recovered the iron subble (P-5) and on 21.05.2024, the appellant namely Muhammad Waseem got recovered the hatchet (P-9) and on the same day the appellant namely Muhammad Iqbal got recovered a wooden stump (P-10) and the said recoveries offered sufficient corroboration of the statements of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2). Regarding the recoveries of the iron subble (P-5) on 21.05.2024 from the appellant namely Muhammad Munir and the hatchet (P-9) on 21.05.2024 from the appellant namely Muhammad Waseem and the wooden stump (P-10) on 21.05.2024 from the appellant namely Muhammad Iqbal , the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recoveries of the iron subble (P-5) on 21.05.2024 from the appellant namely Muhammad Munir and the hatchet (P-9) on 21.05.2024 from the appellant namely Muhammad Waseem and the wooden stump (P-10) on 21.05.2024 from the appellant namely Muhammad Iqbal which was in clear

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violation of section 103 Code of Criminal Procedure, 1898. During cross- examination, Muhammad Shafique (PW-6) admitted as under:- “During recovery proceedings, police had not summoned any Lumberdar, notable or any MPA for recovery.”

The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are 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 recoveries of the iron subble (P-5) on 21.05.2024 from the appellant namely Muhammad Munir and the hatchet (P-9) on 21.05.2024 from the appellant namely Muhammad Waseem and the wooden stump (P-10) on 21.05.2024 from the appellant namely Muhammad Iqbal, 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.”

Another admitted fact of the case is that the appellants were kept in illegal and undeclared custody by the Investigating Officer of the case as both the prosecution

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witnesses namely Hafiz Muhammad Aslam (PW-5) and Muhammad Shaifque (PW-6) claimed that the appellants were arrested on 29.04.2024 whereas Nasir Mahmood (CW-6) the Investigating Officer of the case showed the arrest of the appellant on 12.05.2024. During cross-examination ,Hafiz Muhammad Aslam (PW-5) stated as under:-

“Munir Ahmad was arrested on the day of occurrence.” (emphasis supplied) During cross-examination ,Muhammad Shaifque (PW-6) stated as under:- “Accused Waseem and Iqbal were arrested on the day of occurrence from their homes.” (emphasis supplied)

Contradicting both the prosecution witnesses namely Hafiz Muhammad Aslam (PW-5) and Muhammad Shaifque (PW-6) regarding the date of the arrest of the appellants, Nasir Mahmood, SI (CW-6) ,the Investigating Officer of the case stated as under:-

“On 12-05-2024 accused persons namely Muhammad Munir, Muhammad Waseem and Muhammad Iqbal were arrested.” (emphasis supplied) Therefore, the recoveries of the iron subble (P-5) on 21.05.2024 from the appellant namely Muhammad Munir and the hatchet (P-9) on 21.05.2024 from the appellant namely Muhammad Waseem and the wooden stump (P-10) on 21.05.2024 from the appellant namely Muhammad Iqbal, do not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recoveries of the iron subble (P-5) on 21.05.2024 from the appellant namely Muhammad Munir and the hatchet (P-9) on 21.05.2024 from the appellant namely Muhammad Waseem and the wooden stump (P-10) on 21.05.2024 from

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the appellant namely Muhammad Iqbal are not proved and the same cannot be used as a circumstance against the appellants. Even otherwise, as we have disbelieved the ocular account in this case, hence the evidence of recoveries would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a supportive piece of evidence and if the ocular account is found to be unreliable, then the recovery has no evidentiary value.

20.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 Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) was that the appellant namely Muhammad Munir suspected that the deceased had developed an illicit relationship with his daughter namely Sadia A perusal of the statements of the prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) reveals that they failed to prove the motive of the occurrence as narrated by them in their statements before the learned trial court. The prosecution witness namely Muhammad Fazil (PW-1) admitted during cross-examination that he had never submitted any application against the appellant namely Muhammad Munir in respect to his suspicion and threat to the deceased . The prosecution witness namely Muhammad Fazil (PW-1) during cross-examination, admitted as under:-

“ Munir had not submitted any application against my deceased similarly I had not submitted any application to police against Munir before occurrence.”

Nasir Mahmood, SI (CW-6) ,the Investigating Officer of the case also could not collect any evidence in proof of the motive. Obviously, Sadia was not produced as

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a witness. The prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) failed to provide evidence enabling us to determine the truthfulness of the motive alleged. The prosecution witnesses failed to prove 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. Moreover, it is an admitted rule of appreciation of evidence that motive is only a supportive piece of evidence and if the ocular account is found to be unreliable, then motive alone cannot be made basis of conviction. 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.”

21.The only other piece of evidence left to be considered is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Muhammad Mamoon Azhar (CW-1) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by this Court, therefore, the appellant’s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

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“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”

The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court 600) has enunciated the following principle of law:

“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”

22.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad (appellants) 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

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Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle:

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

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

"9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a 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 Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

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23.For what has been discussed above, Criminal Appeal No.243-J of 2025 lodged by Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad (appellants) is allowed.

The convictions and sentences of Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad (appellants) awarded by the learned trial court through the impugned judgment dated 22.05.2025 are hereby set-aside. Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad (appellants) are ordered to be acquitted by extending them the benefit of doubt. The appellants namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad are in custody and they are directed to be released forthwith if not required in any other case.

24.The complainant of the case filed a Petition for Special Leave to Appeal No.25 of 2025 seeking permission to file an appeal against the acquittal of Muhammad Altaf son of Allah Ditta (since acquitted). We have observed that the learned trial court has rightly acquitted the said accused. We have scrutinized the statements of the prosecution witnesses and have come to the irresistible conclusion that the prosecution witnesses could not prove the facts in issue. The prosecution witnesses namely Muhammad Fazil (PW-1) and Muhammad Ikram (PW-2) could not prove their presence at the place of the occurrence ,at the time of the occurrence . It is important to note that according to the established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of

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innocence, therefore, the courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as “Ghulam Sikandar and another Versus Mamaraz Khan and Others” (P L D 1985 Supreme Court 11) wherein it has been held as under:

“The Court would not interfere with acquittal merely because on re- appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however. the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.”

Reliance is also placed on the judgment reported as Muhammad Inayat Versus The State ( 1998 SCMR 1854) wherein it has been held as under:

“The judgment of acquittal qua Muhammad Yousaf, Muhammad Sated and Muhammad Nawaz cannot, in the given situation, be termed as perverse or foolish inasmuch as the view having been taken by the High Court can possibly be taken for acquitting them in the peculiar facts and circumstances of this case. It cannot be said that the impugned judgment of the High Court acquitting Muhammad Yousaf and two others is fanciful, artificial, shocking or ridiculous. 1t is based on convincing reasons”."

The august Supreme Court of Pakistan in the case of “Mst. Sughran Begum and another Vs. Qaiser Pervaiz and others” (2015 SCMR 1142) has held as under:

“On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent

Criminal Appeal No.243-J of 2025 Criminal Revision No. 104 of 2025 Petition for Special Leave to Appeal No.25 of 2025

findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course.”

Pursuant to the discussion made and conclusions arrived at above, the Petition for Special Leave to Appeal No.25 of 2025 as filed by the complainant, seeking permission to file an appeal against the acquittal of Muhammad Altaf son of Allah Ditta (since acquitted), is hereby dismissed.

25.Pursuant to the discussion made and conclusions arrived at above, the Criminal Revision No. 104 of 2025, seeking the enhancement of the sentences awarded to the accused namely Muhammad Waseem son of Muhammad Waris, Muhammad Munir son of Mang Ali and Muhammad Iqbal son of Dur Muhammad under section 302(b) P.P.C., is also dismissed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel Approved for Reporting

JUDGE