Tanveer Ahmad vs State

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 15 of 2024 (The State Vs. Tanveer Ahmad)

Criminal Appeal No. 209-J of 2024 (Tanveer Ahmad Vs. The State .)

Date of hearing: 01.04.2026

Appellant by: Hafiz Shahid Nadeem , Advocate.

State by: Mr. Muhammad Riaz Khan, Deputy Prosecutor General.

Complainant by : Mr. Zeeshan Haider, Advocate.

JUDGMENT.

SADIQ MAHMUD KHURRAM, J.– Tanveer Ahmad son of Foji Muhammad Asghar (convict) was tried along with Zaheer Ahmad son of Foji Muhammad Asghar, since acquitted, by the learned Additional Sessions Judge, /Model Criminal Trial Court ,Bahawalnagar in the case instituted upon the private complaint titled “Shamim Akhtar Vs. Tanver Ahmad and another” filed in respect of offences under sections 302 and 34 P.P.C. (related to the F.I.R. No. 472 of 2023 dated 10.07.2023 at the Police Station Minchinabad, District Bahawalnagar), for committing the Qatl-i-

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Amd of Muhammad Ramiz son of Muhammad Ashraf(deceased). The learned trial court, vide judgment dated 30.03.2024, convicted Tanveer Ahmad son of Foji Muhammad Asghar (convict) and sentenced him as infra:

Tanveer Ahmad son of Foji Muhammad Asghar:

Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Ramiz son of Muhammad Ashraf(deceased) and directed to pay Rs.1,000,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

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

Zaheer Ahmad son of Foji Muhammad,the co-accused of the convict, was however, acquitted by the learned trial court.

2.Feeling aggrieved, Tanveer Ahmad son of Foji Muhammad Asghar lodged the Criminal Appeal No.209-J of 2024 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.15 of 2024 under section 374 Cr.P.C., seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar. We intend to dispose of the Criminal Appeal No. 209-J of 2024 and Murder Reference No.15 of 2024 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Sarfraz Ahmad (PW-2), the eye witness of the incident, are as under:- “States that on 10.07.2023 at about 08:25PM, I alongwith Muhammad Ashraf was proceeding towards market from our houses. At about 08:25PM, we reached near Ghazi Dug Service. Rameez

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(deceased) was proceeding to his house. Suddenly a car 125 stopped nearby Rameez boarded by Tanveer Ahmad and Zaheer Ahmad, accused present before the court. Accused raised lalkara against Rameez. Accused raised lalkara and then brought out pistols 30-bore. Firstly, Tanveer Ahmad, accused made two consecutive fire shot at Rameez which landed at his head and chest. Zaheer Ahmad, accused made two fire shots with his pistol which landed at Rameez at his abdomen and right arm. After receiving fire shots Rameez fell down. I and Muhammad Ashraf witnessed the occurrence. We de- boarded our car and attended Rameez in injured condition, accused while uttering abuses and causing firing fled from the spot. Tanveer Ahmad, accused fled from the spot boarding car motorcycle 125, Zaheer Ahmad accused fled in the nearby street taking advantage of darkness. We boarded Rameez in injured condition in car and took him to THQ. Hospital, Minchinabad where he succumbed to injuries. Two days earlier to this occurrence, some altercation occurred between accused and a boy named Ahmad Raza, where accused was beating him where Rameez (deceased), I and Ashraf, PW intervened. When Rameez (deceased) rescued said boy Ahmad Raza. accused uttered him abuses but we patched up the matter at the spot. Due to said grudge, accused murdered Rameez (deceased) making fire shots at him. I informed Mst. Shameem Akhtar, mother of deceased about occurrence She came at hospital. She got written application which was moved to police for registration of FIR. Police also came at hospital and received application.

In my presence, police visited place of occurrence. Investigating officer collected blood-stained soil from spot, made it into sealed parcel and secured it through recovery memo (Exh.PC) witnessed and signed by me and Muhammad Ashraf. During spot inspection, investigating officer also collected six empties, made them into sealed parcel and secured empties through recovery memo (Exh.PD) witnessed and signed by me and Muhammad Ashraf. Investigating officer recorded our statements in this regard.”

4.The accused were summoned to face trial in the case instituted upon the private complaint titled “Shamim Akhtar Vs. Tanver Ahmad and another” filed in respect of offences under sections 302 and 34 P.P.C.

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(related to the F.I.R. No. 472 of 2023 dated 10.07.2023 at the Police Station Minchinabad, District Bahawalnagar), for committing the Qatl-i-Amd of Muhammad Ramiz son of Muhammad Ashraf(deceased). The learned trial court framed the charge against the accused on 24.02.2024, 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 four witnesses. The ocular account of the case was furnished by Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3).

Muhammad Arshad (PW-4) stated that on 10.07.2023, he identified the dead body of the deceased at the time of post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police official.

6.The learned trial court recorded the statements of as many as seven court witnesses. Farhat Ali, SI (CW-1) stated that on 10.07.2023, he got recorded the formal F.I.R. (CW-1/A). Muhammad Ikram 1683/C (CW-2) stated that on 10.07.2023, 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 Tayyab Hussain 1550/HC (CW-3) stated that on 11.07.2023, the Investigating Officer of the case handed over to him sealed parcels and on 17.07.2023, he handed over the said sealed parcels to Muhammad Ali, SI (CW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 30.07.2023, the Investigating Officer of the case handed over to him a sealed parcel said to contain a pistol which on

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01.08.2023, he handed over to Muhammad Ali, SI (CW-5) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore .

Muhammad Din Abid draftsman (CW-6) prepared the scaled site plan of the place of occurrence (Exh.CW-6/A). Muhammad Ali, SI (CW-5) investigated the case from 10.07.2023 till 17.08.2023, arrested the appellant on 23.07.2023 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

7.The learned trial court also recorded the statement of Dr. Muhammad Ibrahim (CW-4) who on 10.07.2023 was posted as Medical Officer at the THQ hospital Minchinabad and on the same day had conducted the post mortem examination of the dead body of Muhammad Ramiz son of Muhammad Ashraf (deceased). On conducting the post mortem examination of the dead body of Muhammad Ramiz son of Muhammad Ashraf (deceased), Dr. Muhammad Ibrahim (CW-4) observed as under :- “1-A. A lacerated wound measuring 1cm X 1cm X brain deep with black, smoked inverted margin on left side of head interiorly.

1-B. A lacerated wound measuring 4cm X 1cm X brain matter coming out on left side of head posteriorly. (Exit)

2-A. A lacerated wound measuring 1cm X 1cm X muscle deep on left side of lower abdomen. The margins were inverted and smoked.

2-B. A lacerated wound measuring 5cm X 1cm with everted margins on right side of lower abdomen 6cm from umbilicus (exit of 2-A).

3-A. A lacerated wound measuring lcm X lcm on dorsal surface distil part of right forearm. The margins inverted and smoked.

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3-B. A lacerated wound measuring 2cm X 1cm with everted margins on ventral surface of digital right forearm (Exit of 3-A).

4.A lacerated wound measuring 2cm X 1cm with everted margins on right side of chest posteriorly near shoulder.

5.A lacerated wound measuring 1cm X 1cm X DNP with inverted smoked margins on left side of chest laterally 8cm from axially.

On exploration of No.1-A left skull bone fractured, brain matter tered and blood coming out.

On exploration of No.5 right and left lungs injured and blood in both chest cavities.

REMARKS OF MEDICAL OFFICER:-

After complete external and internal postmortem

examination, I was of the opinion that death occurred due to injuries No.1 and 5, that caused damage to brain and lungs which were vital organs and death occurred. All injuries were ante mortem in nature and caused by fire arm from within 06-feet.”

8.On 11.03.2024, the counsel for the complainant gave up the prosecution witnesses namely Umar Daraz and Nadeem Akhtar as being unnecessary. On 25.03.2024, the learned tendered in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PH).

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9.After the closure of prosecution evidence, the learned trial court examined the appellant, namely Tanveer Ahmad son of Foji Muhammad Asghar under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Tanveer Ahmad son of Foji Muhammad Asghar opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.

10.On the conclusion of the trial, the learned Additional Sessions Judge, /Model Criminal Trial Court Bahawalnagar convicted and sentenced the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar as referred to above.

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

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12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recoveries of the Pistol (P-3) and the motorcycle (P-5) from the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal.

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

14.It is an admitted fact of the case of the complainant that the prosecution witness namely Shameem Akhtar (PW-1) had not herself

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witnessed the incident rather, she was told about the same by the witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) at the THQ hospital Michinabad, where she arrived after getting information regarding the death of her son namely Muhammad Ramiz (deceased).

15.A perusal of the evidence produced by the complainant of the case reveals that the whole case of the complainant of the case as against the appellant is based on the statements of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3). The relationship of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), with the deceased is on record. Muhammad Ramiz (deceased) was the maternal nephew of the prosecution witness namely Muhammad Ashraf (PW-3) and the cousin of Sarfraz Ahmad (PW-2). The prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), both of them had their residences at a distance from the place of occurrence. During cross-examination, Shameem Akhtar (PW-1), the complainant of the case, admitted as under:- “Sarfraz, PW is my nephew. Distance between place of occurrence and house of Sarfraz. PW is one and half acre. Sarfraz, PW runs pesticide business .

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Ashraf, PW is my real brother. Ashraf, PW is resident of Gangapur.

Distance between Gangapur and place of occurrence is about 4/5 kilometers.”(emphasis supplied)

The prosecution witness namely Sarfraz Ahmad (PW-2), during cross- examination, stated as under:-

“Rameez (deceased) is my cousin. Distance between place of occurrence and house of Rameez (deceased) is about one and half acres. My house is also at same distance from place of occurrence.

Distance between my shop and place of occurrence is abou 5/6 acres..”

(emphasis supplied)

During cross-examination, the prosecution witness namely Muhammad Ashraf (PW-3), stated as under:-

“Shameem Bibi complainant is my mother-in-law. My village Ganga Pur is at a distance of about 4/5 kilometers from the place of occurrence.”

(emphasis supplied)

In this manner, the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) can be validly termed as “chance witnesses” and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) failed miserably to provide any consistent evidence as to the reason for their

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arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. The prosecution witness namely Sarfraz Ahmad (PW-2) stated that the reason for the arrival of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) at the place of occurrence was that they had proceeded from their house to the market for purchasing some goods, however, on their way, they witnessed the incident. During cross-examination, the prosecution witness namely Sarfraz Ahmad (PW-2) also claimed that they had started from their house at 08.22 p.m on the night of the incident. During cross- examination, Sarfraz Ahmad (PW-2) stated as under:-

“At the time of occurrence, I and Muhammad Ashraf. PW were proceeding for shopping in the market to purchase house hold articles. We left our house at about 08:22PM. ” (emphasis supplied)

The above said reason given by the prosecution witness namely Sarfraz Ahmad (PW-2) for the arrival of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) at the place of the incident was not supported by the prosecution witness namely Muhammad Ahsraf (PW-3) and Muhammad Ashraf (PW-3) made no such statement that on the night of incident, he and Sarfraz Ahmad (PW-2) had left their house for the market to purchase some goods. Moreover, the reason given by Sarfraz Ahmad (PW-2) for the arrival of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) at the place of the incident is even otherwise not plausible for the fact that both the prosecution

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witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) had different residences, which residences were separated by a distance of as much of 4-5 kilometers and in this manner this claim of Sarfraz Ahmad (PW-2) that he and Muhammad Ashraf (PW-3) left their house together at 08.22 p.m is not proved. The prosecution witness namely Muhammad Ashraf (PW-3) did not even claim that on the night of occurrence, he had left in the company of Sarfraz Ahmad (PW-2) from the house of Sarfraz Ahmad (PW-2) and also did not make any statement regarding his reason for travelling with Sarfraz Ahmad (PW-2). The proven failure of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) to provide a reason for their arrival at the place of occurrence, on the night of the incident, has repercussions, proving that there was no reason actually for the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) to be visiting the place of occurrence. The very inception of the prosecution case is thus put in doubt due to the said abject failure of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3).

16.We have also noted that though it was claimed by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) that they had gone to the place of occurrence on a car owned and driven by Sarfraz Ahmad (PW-2) however, during the course of the investigation as well as before the learned trial court, the said car, allegedly used by prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), to arrive at the place of occurrence, was not produced. The

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car used by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) to arrive at the place of occurrence was not taken into possession by the Investigating Officer of the case. During cross- examination, the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) admitted that the car used by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) to arrive at the place of occurrence was not handed over to the police. During cross-examination, Muhammad Ashraf (PW-3), admitted as under:- “ In my presence, Sarfraz, PW did not produce said car to police during investigation. ” (emphasis supplied)

Muhammad Ali, SI (CW-5), the Investigating Officer of the case also admitted during cross-examination that no car used by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) on the night of occurrence to arrive at the place of occurrence and also to transport the deceased in an injured condition to the THQ hospital Minchinabad was produced before him or taken into possession during the investigation of the case. During cross-examination , Muhammad Ali SI (CW-5), the Investigating Officer of the case, stated as under:- “ During whole investigation PWs did not produce to me any car having blood stain.”

The non-production and the non-availability of the car used by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) to arrive at the place of occurrence and the failure of prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad

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Ashraf (PW-3) to produce the same before the Investigating Officer of the case, leads to only one conclusion and that being that no such vehicle was available. Had such a vehicle been used by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Muhammad Ali, SI (CW-5), the Investigating Officer of the case and the same would necessarily have been taken into possession by the Investigating Officer of the case but it was not and it proves that a false claim was made by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) that they had arrived at the place of occurrence on a car. In this manner, the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) failed miserably to prove that they had indeed arrived at the place of occurrence, prior to the incident. 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.”

The prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence and the mode through which they arrived at the place of occurrence. The prosecution was under a

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bounden duty to establish not only that the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) had a reason to proceed to the place of occurrence but also to prove the mode through which the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) 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 Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) as being truthful 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 noticed that despite the claim of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) that their clothes were stained with the blood of the deceased still the said clothes were never taken into possession by the Investigating Officer of the case. Muhammad Ashraf (PW-3) also admitted during cross-examination as under:-

“ Sarfraz, PW was driving car when we shifted Rameez to hospital. I was having Remeez in my lap. My clothes as well as car were stained with blood. I did not produce my blood stained clothes and afore referred car to police.”(emphasis supplied)

During cross-examination, Muhammad Ali SI (CW-5), the Investigating Officer of the case, stated as under:-

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“They also did not produce to me any blood stained clothes of PWs and same were not shown to me as well.”

If Muhammad Ali, SI (CW-5), the Investigating Officer of the case had taken the clothes of the prosecution witnesses namely Sarfraz Ahmad (PW-

2)and Muhammad Ashraf (PW-3), which clothes according to the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the prosecution witnesses namely prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), but now the omission creates a doubt of equal magnitude. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 S C M R 1142) wherein it has been held as under:-

“20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses.”

The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 S C M R 319) has held as under:-

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“Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced”.

The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 S C M R 153) has held as under:- “For the following reasons the prosecution case against the appellant is doubtful in nature:-

(a)........

(b)The presence of both the witnesses of the ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination, the complainant stated that Maqsood Ahmad (deceased) in injured condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross- examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police.”

18.We have also observed that the prosecution witnesses namely Sarfraz Ahmad (PW-2)) and Muhammad Ashraf (PW-3) claimed that the occurrence took place exactly at the same time when they had arrived at the place of occurrence. This narrative of the prosecution witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence, who were visiting the said place at night and thereafter committed the same only in the view of the witnesses is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence. Such behaviour, on the

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part of the accused, as deposed by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human conduct, we are holding that the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence. In this regard, reliance is placed on the case of “STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others” ( 2019 S C M R 1154) wherein the august Supreme Court of Pakistan held as under:-

“Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case.”

Reliance is also placed on the case of Muhammad Imran Vs. The State ( 2020 S C M R 857) wherein the august Supreme Court of Pakistan held as under:-

“These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself.”

19.We have also noted with grave concern that neither in column No.4 of the inquest report (Exh. CW-5/B.) nor at page 4 of the inquest report (Exh.PL/3.), the names of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), were mentioned as being the

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persons present at the place of occurrence. In column No.4 of the inquest report (Exh. CW-5/B.) and at page 4 of the inquest report (Exh. CW-5/B.), the names of Muhammad Arshad (PW-4) and Umar Daraz have been mentioned. This fact also fully denudes the fact that at the time of the preparation of the inquest report (Exh. CW-5/B.), the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), were not present and therefore, their names were also not mentioned in the inquest report (Exh. CW-5/B.).

20.We have also noted that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants, was taken into possession by the Investigating Officer namely Muhammad Ali, SI (CW-5), despite the fact that as per prosecution’s own claim the occurrence had taken place at about 08.25 p.m. (night) on 10.07.2023. The prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) did not even explain as to how they were able to witness the incident at night, without the help of any light source. The prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) also never claimed that there was any light source available at the place of the incident. Admittedly, no source of light was taken into possession by the Investigating Officer of the case during the investigation of the case. According to the prosecution evidence, Muhammad Ali, SI (CW-5) , the Investigating Officer of the case, visited the place of occurrence after the occurrence but no source of light, which was allegedly available and lit at the place of occurrence, at the time of

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occurrence, was taken into possession at the spot by the said Investigating Officer alongwith other recoveries, though there was no occasion for the said source of light not to have been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer or it being not taken into possession by the Investigating Officer during his visit to the place of occurrence. Muhammad Ali, SI (CW-5), the Investigating Officer of the case, also admitted during cross-examination that he had not mentioned any point in the rough site plan of the place of occurrence (Exh.CW-5/C) as prepared by him where the said source of light was present and stated as under:-

“In my unscaled site plan. I did not show specific points of presence of lights. In inspection note, I did not mention presence of lights. ” Similarly, Muhammad Din Abid draftsman (CW-6) also admitted during cross-examination that he had not marked the presence of any light source in the scaled site plan of the place of occurrence (Exh.CW-6/A) as prepared by him and stated as under:-

“ I did not give specific identical point about presence of lights in my scaled site plan. I had not specifically shown presence of lights at Ghazi Dug Service, City poshish House and Al-Makkah Autos. I had also not shown light on the road. In the workshop of Younas denter, I had also not shown presence of light”

The non-production of the light source which was lit at the place of occurrence, is all the more a matter of disquiet for the reason that if the said source of light was indeed available, then the complainant of the case or the

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witnesses could have easily produced the same before the learned trial court.

The failure of the complainant of the case and the witnesses to produce the same before the learned trial court leads to only one conclusion and that being that no such source of light was available at the place of occurrence which could have enabled the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) to have identified the assailants during the occurrence. As mentioned above, no such electric bulb, which was lit at the place of occurrence, was taken into possession by the Investigating Officer in the light of which the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) could have witnessed the occurrence . The joint failure of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) and Muhammad Ali, SI (CW-5), to produce the a light source allegedly present at the place of occurrence and lit up at the time of occurrence, proves that none was available and only an invented and false claim of such a light source being available was made by the said witnesses. The prosecution witnesses failed to establish the fact of such availability of a light source and in the absence of their ability to do so, this Court cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in the dark. It was admitted by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) that it was a dark night and as the prosecution witnesses failed to prove the availability of such light source, the statements of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), identifying the assailants cannot be relied upon. The failure of the prosecution witnesses

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to prove the presence of any light source at the place of occurrence, at the time of occurrence, has repercussions, entailing the failure of the prosecution's case. The august Supreme Court of Pakistan in the case of “IMTIAZ HUSSAIN SHAH alias Tajjay Shah and another vs. The State and others” (2025 SCMR 1110) has held as under:

“Had there been any source of light, the Investigating Officer would have taken the same into possession or the alleged eye- witnesses would have pointed out the same to him. Given this context, identification of the accused is doubtful. This Court has repeatedly held that in the absence of the source of light having been mentioned in the FIR and recovery of such source, the identification of the accused becomes questionable.”

Reliance is placed on the case of “Azhar Mehmood and others v. The State” (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:-

“It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case.” (emphasis supplied)

Reliance is also placed on the case of “Gulfam and another v. The State” (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a

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medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised” Reliance is also placed on the case of “Hameed Gul v. Tahir and two others” (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:-

“Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along.”

Reliance is also placed on the case of “Basar Vs. Zulfiqar Ali and others” (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:-

“7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.

8.Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.”

Reliance is also placed on the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer.”

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21.We have also observed that according to the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), the incident of firing at the deceased took place in a market, frequented by many people.

Sarfraz Ahmad (PW-2) during cross-examination stated as under:- “ Occurrence took pace at road side. Place of occurrence is a public thoroughfare were (sic) traffic runs round the clock.

Persons of vicinity i.e. shopkeepers also witnessed the occurrence.”

During cross-examination, Muhammad Ashraf (PW-3) also stated as under:- “ Place of occurrence is public thoroughfare where traffic runs all the time.

Nearby shopkeeper also witnessed the occurrence.”

Admittedly none of the said shopkeepers who had their shops at and around the place of occurrence, as mentioned by the eye witnesses themselves, appeared as prosecution witnesses before the learned trial court during the trial to support the prosecution case. It is further an admitted aspect of the case that the statements under section 161 of the Code of Criminal Procedure, 1898 of no one else, other than the related witnesses, were recorded by the Investigating Officer during the investigation of the case.

This failure of the prosecution to get the said shopkeepers examined as witnesses by the learned trial court reflects poorly upon the veracity of the

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prosecution's case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:- “(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

The failure of the prosecution to produce the shopkeepers who had their shops at an around the place of occurrence and who had also witnessed the incident, according to the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) themselves and the most natural witnesses, before the learned trial court, has convinced this Court that had they been produced before the learned trial court they would not have supported the prosecution's case. In this manner, the prosecution case suffers from inherent defects which are irreconcilable. The purpose of the trial is the discovery of truth. As long as men keep lying the only casualty would be reality. The prosecution's case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State (2010 SCMR 949) wherein it has been observed as under:-

“....further that no independent witness of the locality where the incident took place, a ‘Bazar’ joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt.”

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22.We have already mentioned that along with the appellant his co- accused, namely Zaheer Ahmad son of Foji Muhammad Asghar, since acquitted by the learned trial court, was also tried. The learned trial court acquitted the above mentioned co-accused of the charges. We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co-accused, who have stated that the acquittal of Zaheer Ahmad son of Foji Muhammad Asghar, since acquitted by the learned trial court, had attained finality as the petition seeking special leave to file an appeal against his acquittal bearing PSLA No.22 of 2024 was dismissed by this Court on 04.09.2024 and the matter was not pursued further . The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has repeatedly held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was

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wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting the accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: -

“The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.

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

21.We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also

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directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury.”

Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3). In his statement recorded by the learned trial court, Sarfraz Ahmad (PW-2) stated as under:-

“Zaheer Ahmad, accused made two fire shots with his pistol which landed at Rameez at his abdomen and right arm.” (emphasis supplied)

Similarly, the prosecution witness namely Muhammad Ashraf (PW-3) claimed in his statement recorded by the learned trial court as under:- “Thereafter, Zaheer Ahmad, accused made two fire shots with his pistol which landed at abdomen and right arm of Rameez.”

(emphasis supplied)

The perusal of the statements of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) clearly reveals that, according to the said eye witnesses, they had seen Zaheer Ahmad (since acquitted) firing with the pistol carried by him and hitting the deceased on the abdomen and right arm .The prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) were adjudged to have deposed falsely against Zaheer Ahmad son of Foji Muhammad Asghar (since acquitted). We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish

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the case of the appellant from the case of acquitted co-accused namely Zaheer Ahmad son of Foji Muhammad Asghar (since acquitted) as the prosecution evidence with regard to the appellant and his co-accused namely Zaheer Ahmad son of Foji Muhammad (since acquitted), is similar, being based on the statements of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3). We find no reason to believe their statements with regard to the appellant in the absence of any reason to do so. This lying on the part of the witnesses with regard to Zaheer Ahmad son of Foji Muhammad Asghar (since acquitted) has vitiated our trust in them. We are thus satisfied that the evidence of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) has no worth and is to be rejected outright. Reliance in this regard is placed on the case of “Tariq Vs. The State” (2017 S C M R 1672) wherein the august Supreme Court of Pakistan has held as under:- “So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant.”

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

“Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a

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

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

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

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distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case.”

23.The learned Deputy Prosecutor General and the learned counsel for the complainant, have submitted that as Shameem Akhtar (PW-1) had submitted the written application (Exh.PA) for the registration of the F.I.R.

to Muhammad Ali, SI (CW-5) at the THQ hospital Minchinabad at about 08.55 p.m on 10.07.2023, therefore, the promptitude in reporting the matter to the police proved the case of the complainant as against the appellant, however, we have noticed that Shameed Akhtar (PW-1) herself admitted that the written application (Exh.PA) was a bogus and invented document and no reliance could be placed upon. During cross-examination, Shameem Akhtar (PW-1) admitted that she herself had not written the written application (Exh.PA) rather, Muhammad Ali SI, (CW-5), the Investigating Officer of the case , already had the written application (Exh.PA) with him and he just got Shameem Akhtar (PW-1) to thumb mark a blank piece of paper. During cross-examination, Shameem Akhtar (PW-1) admitted as under:- “ I went straight to hospital. I reached at hospital within 2/3 minutes.

Muhammad Ali, police official had written application. (Exh.PA). He had got my thumb impression on blank paper” (emphasis supplied) The above referred portion of the cross-examination of Shameem Akhtar (PW-1) conclusively proves that the written application (Exh.PA) was a

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bogus document and therefore could not be considered proof of any fact in issue or even a relevant fact.

24.The learned Deputy Prosecutor General and the learned counsel for the complainant, have submitted that the recoveries of the Pistol (P-3) and the motorcycle (P-5) from the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar offered sufficient corroboration of the statements of the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3). Regarding the recovery of the motorcycle (P-5) from the appellant, the said recovery offers no support of the prosecution case as neither the registration number nor the colour nor the make of the motorcycle under the use of the accused at the time of the incident were mentioned by the prosecution witnesses namely Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3), therefore, the recovered motorcycle (P-5) cannot be said to be the same which was under the use of the accused at the time of the incident. Regarding the recovery of the Pistol (P-3) from the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the Pistol (P-3) from the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar which was in clear violation of section 103 Code of Criminal Procedure, 1898. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than in compliance. To appreciate it better, this section is being reproduced:-

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"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 Pistol (P-3) and motorcycle (P-5) from the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:-

“For the above-mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

25.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 Shameem Akhtar (PW-1) in her written application (Exh.PA) was that as an altercation had taken place two days before the incident between the appellant and one Ahmad Raza during which altercation Muhammad Ramiz (deceased) had rescued the said Ahmad Raza,

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therefore, the appellant was annoyed over the said intervention of Muhammad Ramiz (deceased) and hence the incident took place. We have perused the statements of the prosecution witnesses namely Shameem Akhtar (PW-1), Sarfraz Ahmad (PW-2) and Muhammad Ashraf (PW-3) and find that they failed to prove the motive of the occurrence as stated by them. The said Ahmad Raza himself never appeared as a witness either during the investigation of the case or during the course of the trial so as to support the motive of the incident. Moreover, Shameem Akhtar (PW-1), complainant of the case, admitted that neither she had witnessed the incident regarding the intervention of Muhammad Ramiz (deceased) to save Ahmad Raza nor the said Ahmad Raza ever joined the investigation of the case.

Shameem Akhtar (PW-1) admitted during cross-examination , as under:- “ I am not witness of altercation between accused and my son two days earlier to occurrence. I did not report to Police Station about earlier altercation between deceased and accused. I have no previous enmity with accused persons. Altercation having taken place two days earlier to occurrence took place because Tanveer, accused was quarreling with a boy and Rameez, my son had restrained him. I did not produce said boy in investigation with whom Tanveer, accused was quarreling. I did not mention in my application (Exh.PA) that Tanveer, accused was quarreling with a boy where my son intercepted”(emphasis supplied) Similarly, the prosecution witness namely Sarfraz Ahmad (PW-2) also admitted during cross-examination that in his statement recorded by the Investigating Officer of the case, it was not mentioned that the altercation between the deceased and the appellant had taken place over the rescue of

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Ahmad Raza and also admitted that the said Ahmad Raza never joined the investigation of the case. Sarfraz Ahmad (PW-2) admitted during cross- examination, as under:-

“I had mentioned to police that two days earlier to occurrence, a boy named Ahmad Raza had altercation with accused where Rameez (deceased) intervened and accused utter abuses to him for his interference. Volunteered that police had not recorded this fact in my statement. I had also mentioned that I and Ashraf were also present at the spot at that time and we patched up the mater. Volunteered that police had not recorded this fact as well in my statement. I did not mention in my statement before police merely an altercation in my statement before police. (Confronted with Exh.DA where it is so recorded). Ahmad Raza did not join investigation. Tarveer and Zaheer accused has no previous enmity with Rameez (deceased). ” (emphasis supplied)

Muhammad Ashraf (PW-3) changed his version regarding the motive of the incident and during cross-examination stated that the altercation between the deceased and the appellant had taken place one day prior to the incident and not two. During cross-examination, Muhammad Ashraf (PW-3) stated as under:-

“I did not mention in my statement before police that Tanveer, accused and Ahmad Raza had altercation with each other. I had mentioned in my statement that one day earlier to occurrence, Rameez (deceased) had altercation. ”(emphasis supplied)

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Muhammad Ali, SI (CW-5) the Investigating Officer of the case, also did not collect any evidence with regard to the different motive of the incident as narrated by the prosecution witnesses. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a poignant hush with regard to the particulars of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise, a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

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

26.The only other piece of evidence left to be considered by this Court is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Muhammad Ibrahim (CW-4) 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

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Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

“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.”

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27.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances; rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

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

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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 Ayyoub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye- witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused.”

28.For what has been discussed above, Criminal Appeal No.209-J of 2024 lodged by the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar is allowed and the conviction and sentence of the appellant namely Tanveer Ahmad son of Foji Muhammad Asghar awarded by the learned trial court through the impugned judgment dated 30.03.2024 are hereby set-aside. The appellant namely Tanveer Ahmad son of Foji Muhammad Asghar is ordered to be acquitted by extending him the benefit of the doubt.The appellant namely Tanveer Ahmad son of Foji Muhammad Asghar is in custody and is directed to be released forthwith if not required in any other case.

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29.Murder Reference No.15 of 2024 is answered in Negative and the sentence of death awarded to Tanveer Ahmad son of Foji Muhammad Asghar is Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

JUDGE