Muhammad Farooq Vs The State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

JUDICIAL DEPARTMENT

Cr. A No. 1274-P of 2019

Muhammad Farooq

Vs

Maroof Khan & others

Date of hearing: 31.03.2026

Mr. Shabbir Hussain Gigyani, Advocate, for the appellant.

Mr. Ayub Zaman, AAG, for the State.

Mr. Hussain Ali, Advocate, for the respondents.

JUDGMENT

SAHIBZADA ASADULLAH, J-. Through the instant criminal appeal, the appellant Muhammad Farooq has called in question the judgment dated 08.10.2019, handed down by the learned Additional Sessions Judge-IV, Mardan, whereby the respondents/accused were acquitted of the charge in case FIR No.1607 dated 14.12.2016, registered under Sections 302/324/353/34 PPC r/w 15-AA at Police Station City Mardan, by extending to them the benefit of doubt.

2.The prosecution case, as set forth in the murasila submitted by Inspector Bakhsheed Khan,

is that on 14.12.2016 at about 10:10 a.m., he, along with a contingent of police officials, was performing routine duty for provision of security at the District Courts situated on Mall Road, Mardan.

During the course of such duty, they suddenly heard indiscriminate firing emanating from the vicinity of the court premises. Inspector Bakhsheed Khan, accompanied by the police party, immediately rushed to the spot where they found one person lying dead. The deceased was later identified as Sarfaraz son of Nawaz Khan, originally resident of Village Toru Mayar, District Mardan, and stated at the relevant time to be residing in Village Sarband, Peshawar. It was further reported that two persons, both armed with pistols, were seen fleeing from the scene of occurrence. The police party pursued them, whereupon the fleeing accused allegedly resorted to firing upon the police officials with intent to deter them from effecting their arrest. The police officials, in exercise of the right of private defence and in discharge of their official duties, retaliated.

As a result of the exchange of fire, one of the fleeing persons sustained firearm injuries. Despite their attempt to escape, both were overpowered and apprehended at the spot. The injured accused

was identified as Maroof, while the other was identified as Subhanullah; both are sons of Itebar Khan and residents of Afsar Mal Kalay, Toru, District Mardan. Upon personal search of accused Maroof, the police recovered one 9 mm pistol along with a fixed magazine containing one live round. The dead body of the deceased was thereafter shifted to the District Headquarters Hospital, Mardan, for medico-legal examination.

During the preliminary investigation, the motive for the occurrence was disclosed to be an existing blood feud between the parties. On the basis of the aforesaid murasila, the ibid FIR was registered against the accused.

3.On completion of investigation, challan was submitted before the competent Court. The accused were summoned, copies of the police report and allied documents were supplied in compliance with Section 265-C, Cr.P.C., and formal charge was framed, to which they pleaded not guilty and claimed trial. In order to substantiate the accusation, the prosecution examined ten (10) witnesses. Thereafter, the statements of the accused under Section 342, Cr.P.C. were recorded, wherein they denied the prosecution allegations in toto and professed innocence. They neither opted

to appear as witnesses in their own defence under Section 340(2), Cr.P.C. nor produced any evidence in rebuttal. Upon conclusion of the trial and after evaluating the material brought on record, the learned trial Court, vide the impugned judgment, acquitted the respondents by extending to them the benefit of doubt.

4.We have heard the learned counsel for the parties as well as the worthy AAG for the State and have gone through the entire record with their able assistance.

5.The occurrence in question was, indeed, a tragic one, for it resulted in the loss of a human life. The prosecution case, in brief, is that upon hearing the reports of gunfire, the police party immediately rushed towards the place of occurrence, where the dead body of the deceased was found lying. It is the prosecution’s own case that two of the accused persons, namely the respondents, were found present on the spot in a suspicious posture and were immediately chased by the police party. According to the prosecution, during the chase the accused persons resorted to firing upon the police party, compelling the police officials to retaliate in exercise of the right of

private defence, whereafter one of the accused, namely Marooff, was apprehended in an injured condition, and from his possession a pistol of 9- MM bore was allegedly recovered. The co- accused, Subhanullah, was also arrested from the spot, though concededly nothing incriminating was recovered from his possession. The machinery of investigation was thereafter set into motion. The complainant prepared the injury statement and the formal report, whereafter the dead body was dispatched for post-mortem examination, while the injured accused was shifted to the hospital, where his medico-legal examination was conducted and the medical certificate was prepared accordingly. It has further come on record that the Investigating Officer secured ten crime empties from one point of the place of occurrence and nine empties of 7.62 bore from another point. Subsequently, the statements of the ocular witnesses were recorded, though admittedly not on the day of occurrence.

Significantly, neither did they themselves report the occurrence at the earliest point of time; rather, the report was lodged by one Bakshad Khan (PW- 4), S.I. The recovered weapon and the collected empties were subsequently transmitted to the Firearms Expert, who returned a positive report.

Upon completion of investigation, the accused were sent up to face trial; however, on conclusion thereof, they were acquitted of the charge by the learned trial Court. Hence, the present criminal appeal against the impugned judgment of acquittal.

6.The foremost question requiring determination before this Court is whether the learned trial Court was justified in extending the benefit of doubt to the respondents, and whether the evidence brought on record was appreciated in its true legal and factual perspective. Allied thereto is the question whether the prosecution succeeded in establishing, through independent and confidence-inspiring evidence, that the occurrence had in fact taken place in the manner alleged. There is no denial to this fact that the accused persons were shown to have been arrested at or near the place of occurrence, and that one of them had sustained firearm injuries. Likewise, it stands reflected in the prosecution version itself that during their attempted escape, the accused allegedly fired at the police party, and in retaliation the police party opened fire in exercise of the right of private defence, resulting in injuries to one of the accused.

It is also the prosecution case that the pistol recovered from the injured accused was the

weapon of offence, and that the ballistic report connected the same with the crime empties recovered from the spot. Yet, the mere factum of arrest of an accused from the vicinity of the place of occurrence, or even the fact that he sustained injuries in the same transaction, cannot by itself be eminent to proof of culpability. Injuries may explain presence; they do not, by themselves, establish participation. Presence and participation are two distinct legal concepts, and the prosecution, before fixing criminal liability, is under the legal obligation to bridge that gap through unimpeachable evidence. It is precisely in this backdrop that the presence of the ocular witnesses assumes decisive significance. Unless the prosecution satisfactorily establishes that the witnesses were naturally present at the place of occurrence, had occasion to witness the incident, and that their account inspires confidence, the entire edifice of the prosecution case becomes susceptible. The peculiar factual backdrop of the present case casts serious doubt upon this aspect. It has come on record that one of the witnesses, namely Irfanullah (PW-6), had travelled from Lahore and was allegedly required to appear before the Court of the learned Additional Sessions

Judge in connection with his pre-arrest bail application, whereas the other witnesses had come from Peshawar. This circumstance, instead of strengthening the prosecution case, raises material questions: at what exact time did these witnesses reach the premises; for what reason did they leave the judicial premises before conclusion of the matter; what occasioned their movement towards the place of occurrence; and under what circumstances did they happen to be present there at the relevant time? These are not peripheral questions but strike at the root of the prosecution’s narrative. The prosecution has remained conspicuously silent on these material aspects. The unexplained movements of the witnesses and the unnatural sequence of events materially impair the evidentiary worth of their testimony. It is by now well-settled that where the presence of a witness at the place of occurrence itself becomes doubtful, the testimony flowing therefrom cannot be accepted without independent corroboration of sterling quality. In order, therefore, to properly appreciate the attending circumstances of the case and to ensure that justice is not sacrificed at the altar of conjecture, this Court deems it imperative to examine, with utmost judicial caution, the

ocular account, the recoveries, the medical evidence, and the surrounding circumstances, so as to ascertain whether the prosecution has succeeded in discharging its burden beyond reasonable doubt, or whether the acquittal recorded by the learned trial Court warrants interference.

8.The prosecution case further demands scrutiny on another crucial aspect, i.e. the true genesis of the occurrence and the precise manner in which the accused came to sustain injuries in the same transaction. This aspect assumes significance because the injuries suffered by an accused during the course of the same occurrence are never an inconsequential circumstance; rather, they constitute a material feature of the prosecution case, requiring a truthful and convincing explanation. It is, therefore, incumbent upon this Court to examine whether the injuries sustained by the accused were the result of lawful retaliatory fire by the police in exercise of private defence, as alleged by the prosecution, or whether the same occurred in circumstances inconsistent with the prosecution narrative. Put differently, the pivotal inquiry is whether the accused persons were, in fact, firing at the police party at the time when the latter attempted to apprehend them, or whether the

firing emanated solely from the police side under circumstances yet to be satisfactorily explained.

This distinction is not merely academic; it goes to the very root of the prosecution case. For if the prosecution fails to establish the exact sequence of firing, the origin of the injuries, and the role attributed to each accused, the chain of circumstances sought to be built against them becomes materially fractured. Equally important is the question whether the prosecution succeeded in collecting any independent evidence in support of its version. It is an admitted position that the occurrence allegedly took place at a place where the possibility of availability of independent witnesses could not be ruled out, yet no independent person was associated either at the time of arrest, at the time of recovery, or during the subsequent investigative process. The omission to secure such evidence, without plausible explanation, is a circumstance which cannot be lightly brushed aside. It is a settled principle of law that although the testimony of official witnesses is not to be discarded merely because of their official status, yet where the entire prosecution case rests substantially upon official witnesses, and where circumstances giving rise to doubt are already

present on the record, the absence of independent corroboration assumes considerable significance.

Thus, this Court is required to examine, with exacting judicial scrutiny, whether the prosecution has succeeded in presenting a coherent, confidence-inspiring, and legally sustainable account of the occurrence, particularly with regard to the injuries sustained by the accused and the absence of independent corroborative evidence, for these aspects strike at the very foundation of the prosecution case and bear directly upon the question whether the acquittal recorded by the learned trial Court suffers from any legal infirmity warranting interference.

9.In order to properly appreciate the peculiar factual backdrop of the present case, this Court deems it necessary to examine, in their proper sequence, the place of occurrence, the time of occurrence, the relationship inter se the parties, and, above all, the circumstances in which the deceased and the ocular witnesses had come to the Court premises on the day of occurrence. It has come on record that their presence there was allegedly to facilitate one of the witnesses in obtaining an early recording of his statement before the Court of competent jurisdiction. This

circumstance, though apparently innocuous, assumes significance in determining the naturalness of their presence and the sequence of events that unfolded thereafter. Equally material is the question as to why the deceased left the Court premises when, admittedly, the proceedings had not yet concluded, and what occasioned the ocular witnesses to follow him, and for what purpose.

These are not inconsequential matters; rather, they are circumstances intimately connected with the prosecution narrative and are required to be satisfactorily explained, for they bear directly upon the credibility of the ocular account. To examine whether the occurrence had, in fact, taken place in the manner alleged, this Court finds it imperative to advert to the site plan prepared by the Investigating Officer, as well as the recoveries effected from the place of occurrence. The site plan depicts two distinct points of relevance. From point “A”, the Investigating Officer allegedly secured ten crime empties, stated to have been fired by the accused at the deceased. From point “B”, however, nine empties of 7.62 bore were recovered, which, according to the prosecution itself, were fired by the police party while exercising their right of private defence during the

subsequent chase. What renders the prosecution case vulnerable is the striking omission that from the place where the accused allegedly took shelter, were chased, and fired at the police party, no empties whatsoever were recovered, neither those allegedly fired by the accused during the second episode, nor those allegedly fired by the police in retaliation. This omission is not a mere irregularity of investigation; it strikes at the very heart of the prosecution narrative.

10.In order to appreciate whether the occurrence unfolded in the manner alleged, this Court considers it appropriate to first examine the testimony of the complainant himself, who appeared as PW-4. His position in the case is of peculiar significance. On one hand, he is the author of the initial report and the complainant of the case; on the other, he is the principal police witness who claims to have participated in the chase, arrest, and recovery. A careful reading of his report and his testimony leaves no room for ambiguity. His case is that while performing official duty, he, along with other police officials, heard gunshots, whereupon they immediately rushed towards the place of occurrence. On reaching there, they found the dead body of the

deceased lying on the spot and, after satisfying themselves that he had expired, they proceeded to chase the accused persons who were allegedly decamping. It was during this chase, according to the complainant himself, that the accused opened fire at the police party, whereafter the police retaliated in exercise of private defence, resulting in firearm injuries to accused Maroof, who was then arrested. If this version is accepted as correct, an inherent improbability emerges. The complainant admitted that he and the police party were present at a distance of hardly 100 to 110 paces from the place where the deceased was lying. If, on hearing the gunshots, they first rushed to the dead body, inspected it, and only thereafter commenced the chase, then admittedly no firing by the police had taken place before they reached the dead body. This gives rise to a serious question:

how, then, could nine empties of 7.62 bore, allegedly fired by the police, be found at point “B”, if, by the complainant’s own showing, the retaliatory firing had not yet commenced at that stage? This contradiction is neither minor nor cosmetic. It directly conflicts with the physical evidence collected from the spot and materially shakes the credibility of the prosecution narrative.

11.Another aspect, equally intriguing and incapable of being ignored, is that if the accused had, after firing at the deceased, fled from the place of occurrence and were subsequently apprehended from a ditch nearby after an exchange of fire with the police, then the natural consequence would have been the recovery of empties from the place of that second encounter. If the accused had fired at the police, empties from their weapons ought to have been present there.

Likewise, if the police had fired in retaliation, the empties from their official weapons should also have been found at that place. Yet, conspicuously, no such empties were recovered. The prosecution has offered no explanation for this glaring omission. The place of occurrence, as reflected in the site plan, is a street area, and there is nothing on record to suggest such public congestion or movement as could reasonably explain the disappearance or loss of such material evidence.

The absence of these recoveries, therefore, materially weakens the prosecution version. This circumstance becomes even more significant when considered alongwith the time factor. If the complainant and the police party first covered a distance of over 100 paces, then paused to inspect

the dead body, and only thereafter commenced the chase, the accused would naturally have had sufficient opportunity to escape to a considerable distance. Yet, interestingly, they were apprehended from a nearby ditch. This sequence, viewed in its natural course, does not appeal to prudent judicial conscience. Had the prosecution case been that immediately on hearing the gunshots, the police party fired at the fleeing accused from the place where they stood, the recovery of nine empties from point “B” might have aligned with probability. But that is not the prosecution case.

The complainant’s own testimony negates such a possibility. These are not mere discrepancies arising from lapse of memory; they are material contradictions striking at the root of the prosecution version and disturbing the continuity and coherence of the alleged occurrence. Yet another circumstance of considerable significance is that according to the complainant himself, both accused persons had fired at the police party during the chase. If that be so, and both accused were apprehended on the spot without any substantial interval, then the natural and expected consequence would have been the recovery of weapons from both of them.

12.However, the prosecution claims recovery of only one pistol, allegedly from the injured accused, while no weapon whatsoever was recovered from the co-accused. This omission assumes greater significance because, according to the prosecution itself, the accused had no reasonable opportunity to dispose of, conceal, or part with the alleged weapon during the chase and arrest. This circumstance, too, materially impairs the prosecution version and renders the alleged manner of arrest and recovery doubtful. When all these circumstances are examined cumulatively, they do not merely create isolated doubts; rather, they disturb the very equilibrium and smooth flow of the prosecution case. The complainant, no doubt, attempted to present a coherent account of the occurrence, the chase, the retaliatory firing, and the arrest of the accused, but when his testimony is tested against the physical evidence and surrounding circumstances, the prosecution version loses its naturalness and coherence. This Court, therefore, is constrained to hold that the occurrence did not take place in the manner and sequence alleged by the prosecution, and that the arrest of the accused, as projected by the complainant, is equally shrouded in serious doubt.

13.Another circumstance of considerable significance, and one which materially impacts the prosecution case, is the alleged presence of the ocular witnesses with the deceased at the time of occurrence and at the time when the police party reached the place of incident. The prosecution has attempted to project that the eyewitnesses were accompanying the deceased and had witnessed the occurrence. Yet, the conduct of the Investigating Officer and the complainant is wholly inconsistent with such a claim. It is an admitted position that despite the alleged presence of these eyewitnesses, who according to the prosecution, were not only natural witnesses, but were also acquainted with the accused, the Investigating Officer did not deem it appropriate to afford either of them the opportunity to lodge the report or formally nominate the accused. Rather, it was the complainant himself who prepared the initial report and assumed the role of informant, notwithstanding the fact that, according to the prosecution itself, the eyewitnesses were available and fully aware of the identity of the assailants.

This conduct is neither natural nor in accord with ordinary human behavior. Had the eyewitnesses actually been present at the scene and witnessed

the occurrence, the most natural course would have been for them to immediately disclose the names of the assailants and to become the primary source of the prosecution narrative. At the very least, their presence ought to have found reflection in the earliest version of the occurrence, either as informants, attesting witnesses, or persons consulted at the time of preparation of the report, but the record reveals otherwise. The complainant, for reasons best known to himself, neither cited them as witnesses to the report nor associated them in its preparation. This omission assumes added significance in light of the testimony of one of the eyewitnesses, namely Muhammad Farooq, who appeared before the learned trial Court as PW-7.

He categorically disclosed during his testimony that on reaching the hospital, he intended to report the matter to the police, but was informed that the report had already been lodged and, therefore, his version could not be recorded. This statement, rather than strengthening the prosecution case, fundamentally undermines it. For if the witness was genuinely present at the place of occurrence and had witnessed the murder, there was no conceivable reason for his version not to be recorded at the earliest point of time. More

importantly, this circumstance strongly suggests that the witness had, in fact, reached the hospital only after learning about the occurrence and was not present at the place of incident at the relevant time. This circumstance, in the considered view of this Court, materially dents the prosecution’s claim regarding the presence of the ocular witnesses.

14.It is true that the statements of the eyewitnesses were subsequently recorded under Section 164 of the Code of Criminal Procedure on the following day. However, the mere recording of such statements does not, by itself, sanctify their evidentiary worth. The true test lies in their consistency and their conformity with the version subsequently deposed before the trial Court. A comparative reading of their statements recorded under Section 164 Cr.P.C. and their depositions before the learned trial Court reveals substantial contradictions on material particulars. More significantly, there are visible improvements in their Court statements, improvements which are not merely elaborative, but materially alter the complexion of the prosecution case. Such improvements, when touching the core of the occurrence, cannot be treated as innocent omissions; rather, they assume the character of

dishonest embellishments. It is settled beyond controversy that where a witness improves his version on material facts, particularly after having already made a judicial statement, the credibility of such testimony becomes seriously impaired. Apart from the foregoing, even if it is assumed for the sake of argument that the witnesses were present with the deceased at the Court premises, their subsequent conduct remains wholly unexplained.

They claimed that the deceased left the premises for the purpose of obtaining photocopies and that they followed him. Yet neither witness could satisfactorily explain why the deceased left the Court premises before conclusion of the judicial proceedings, what specific documents required photocopying at that stage, and for what compelling reason they deemed it necessary to accompany him. These unanswered questions materially affect the naturalness of their conduct.

15.The cumulative effect of these circumstances irresistibly leads to the conclusion that the eyewitnesses were not present at the place of occurrence at the relevant time and that their subsequent introduction into the prosecution case appears to be an afterthought designed to strengthen an otherwise fragile case. This

conclusion gains further strength when the site plan and the complainant’s own report are examined together. The physical features of the place of occurrence, the recoveries made therefrom, and the complainant’s version regarding hearing the gunshots, rushing to the dead body, chasing the accused, and the subsequent exchange of fire, do not align with each other in a coherent or natural sequence. Rather, the physical evidence belies the oral account. And where the physical evidence contradicts the oral testimony, it is the latter which must yield. Once the prosecution fails to establish, with confidence, the true manner in which the occurrence unfolded, the subsequent arrest of the accused, the recoveries allegedly effected from them, and even the positive forensic report lose much of their evidentiary force. For it is by now a settled principle that recoveries and forensic corroboration are corroborative in character; they cannot, in isolation, become substantive proof of guilt where the initial prosecution story itself has become doubtful. It may well be that the accused had some connection with the occurrence. It may even be possible that they were involved in the commission of the offence. But criminal jurisprudence does not

proceed on possibilities; it proceeds on proof.

Suspicion, however grave, cannot substitute proof.

And where the prosecution itself conceals material facts, presents a version inconsistent with the physical evidence, and relies on witnesses whose presence at the place of occurrence is doubtful, the possibility of malafide on the part of the investigating agency, the complainant, and the introduced witnesses cannot altogether be excluded. It is this concealment of material facts, coupled with the visible infirmities in the prosecution case, which compels this Court to draw an inference favourable to the accused and against to the prosecution, for the benefit of doubt is not a concession; it is a substantive right flowing from the fundamental principle that it is better that the guilty escape than that an innocent be condemned.

16.This Court is yet to examine another essential aspect of the case, i.e. the alleged motive between the parties and its bearing on the conduct of the ocular witnesses and the deceased at the relevant time. The prosecution has attempted to establish that there existed prior enmity between the accused and the deceased, and that the eyewitnesses, being closely associated with the

deceased, were conscious of such hostility. One of the eyewitnesses, in his deposition before the learned trial Court, went to the extent of stating that he followed the deceased out of fear of the accused, apprehending danger to his person. This explanation, when tested on the touchstone of ordinary human conduct, does not inspire confidence. If, indeed, the witnesses and the deceased were fully conscious of the presence of the accused, and if there existed such a serious and live enmity between the parties, then the conduct attributed to them appears wholly unnatural.

Prudence would have demanded caution, preparedness, and, at the very least, avoidance of unnecessary exposure to danger. Instead, the prosecution asks this Court to believe that despite apprehending danger from armed adversaries, the deceased and the witnesses proceeded unarmed and exposed themselves to a foreseeable threat.

Such conduct does not align with normal human probabilities.

17.Equally significant is the fact that the witnesses failed to state with certainty whether they had seen the accused immediately prior to the occurrence, nor could they satisfactorily explain the precise manner in which the police party

arrived at the place of occurrence after hearing the gunshots. These omissions are not minor in nature;

they touch the very genesis of the occurrence. The prosecution case suffers further erosion from the inconsistency in the statements of the witnesses regarding their own connection with the pending litigation for which they had allegedly come to the Court premises, as well as their relationship with the deceased and the role each of them was performing at the relevant time. A particularly striking circumstance is their admission regarding the presence of one Tehseenullah, who, according to them, was accompanying them in Court on that day. Surprisingly, however, the said witness was never produced to support the prosecution case, nor was any satisfactory explanation furnished for his non-production. The explanation subsequently offered that upon their return to Peshawar he went to the house and was later seen there, does little to remove the doubt; rather, it aggravates it. The withholding of a natural witness, who was allegedly present throughout the relevant events, entitles the Court to draw an adverse inference against the prosecution. When these circumstances are cumulatively viewed, this Court finds no difficulty in holding that the witnesses are

admittedly closely related to the deceased and are, therefore, interested witnesses. It is, no doubt, a settled proposition of law that mere relationship with the deceased is not by itself a ground to discard testimony. Relationship does not render a witness incompetent, nor does it necessarily make his testimony unworthy of reliance. However, where such relationship is coupled with material contradictions, unnatural conduct, visible improvements, doubtful presence, and conscious attempts to fit the prosecution narrative into the available circumstances, the Court is under a duty to subject such testimony to stricter judicial scrutiny. And where, upon such scrutiny, the testimony fails to inspire confidence, the relationship assumes significance in assessing the possibility of false implication. In the present case, the consistent effort of the witnesses to portray themselves present at the place of occurrence, despite surrounding circumstances suggesting otherwise, coupled with their attempt to strengthen the prosecution case after the arrest of the accused by the police, materially affects their credibility.

This Court is, therefore, persuaded to hold that the ocular witnesses were not present at the place of occurrence at the relevant time and that their

subsequent nomination of the accused appears to be a consequence of the arrests already made by the police, rather than a natural and spontaneous disclosure by persons who had actually witnessed the occurrence. Consequently, the relationship of the witnesses with the deceased, when read alongwith the material inconsistencies and improbabilities in their testimony, becomes a relevant circumstance adversely affecting their credibility. Resultantly, this Court finds it unsafe to place implicit reliance on their testimony, and the same is, therefore, excluded from consideration for the purpose of sustaining criminal liability against the respondents. In this regard reliance is placed on the judgment of the Apex Court 2024 SCMR 1085 titled “Muhammad Ramzan vs Khizar Hayat & another” wherein, it has been held as under:

“As to the two eye-witnesses (PW-7 and PW-8), they are also interested witnesses due to their close relationship with the Deceased. The testimony of an interested witness should be scrutinized with care and caution.

Independent corroborating

evidence is essential to test the validity and credibility of the testimonies of interestedwitnesses. Capital punishment cannot be given on the testimony of an interested witness uncorroborated by any independent evidence. As to the testimony of interested witnesses, the rule is well-established by this Court in the case titled Nazir vs the State. (PLD

1962 SC 269)”

18.Even if, for the sake of argument, it is accepted that one of the respondent sustained firearm injuries at the hands of the police during the same transaction, allegedly in consequence of retaliatory firing after he had fired at the police party, the crucial question still remains unanswered: under what precise circumstances, at what exact place, and in what sequence did he receive those injuries. This aspect remains shrouded in uncertainty. The prosecution has failed to present a coherent and confidence-inspiring account in this regard. The ocular witnesses, whose presence at the place of occurrence has already been found doubtful, could not

satisfactorily establish their own presence at the relevant time, much less explain the manner in which the second episode of firing allegedly unfolded. Likewise, the complainant, who is himself projected as a witness to the aftermath and the subsequent chase, failed to furnish a convincing explanation regarding the exact circumstances in which he claims to have reached the place of occurrence, pursued the accused, and engaged in the alleged exchange of fire. Thus, even if the injury on the person of the respondent is accepted as an established fact, the prosecution version regarding the manner in which such injury was caused cannot be accepted as truthful or free from doubt. When the prosecution itself remains unable to explain the exact circumstances in which the occurrence unfolded, the alleged spot arrest of the accused loses much of its evidentiary significance. More so when the witnesses substantially contradict one another regarding the manner of arrest, the sequence of events, and the role attributed to the accused. The arresting officer, too, failed to present a clear, coherent, and legally sustainable account of the occurrence, while the physical evidence collected from the spot does not reconcile with the oral account presented by the

prosecution. These are not isolated discrepancies.

They are foundational infirmities which strike at the root of the prosecution case. This Court is under the legal obligation to examine such infirmities with utmost care, particularly in a case involving a charge of capital nature, where the consequences of an erroneous conviction are irreversible.

19.The prosecution has also failed to prove motive. Though motive was alleged as the underlying cause of the occurrence, no independent or substantive evidence was brought on record to establish its existence. The Investigating Officer failed to collect relevant documentary material indicating the prior dispute or inter se enmity between the parties. No convincing material was produced to show that there existed such enmity as would reasonably impel the accused to commit the occurrence. The alleged motive, therefore, remained a mere assertion unsupported by proof. Another aspect which cannot escape judicial notice is that if the prosecution version is accepted that the deceased was accompanied by his sons and the accused were armed with deadly weapons, then the complete absence of injury to the accompanying witnesses

appears wholly unnatural. Ordinarily, in such a hostile encounter, where armed assailants are allegedly determined to eliminate the deceased, the presence of accompanying persons would expose them to equal danger. Their remaining entirely unhurt is a circumstance which, in the peculiar facts of this case, adds further doubt to their claim of presence. Thus, on one hand, the presence of the ocular witnesses remains doubtful; on the other, the motive remains unproved. These circumstances, taken cumulatively, materially weaken the prosecution case. Reliance is placed on the judgment of apex Court in case titled “Ghulam Murtaza Vs. The State” (2021 SCMR 149), which reads as follows:-

4.We have observed that there is lack of motive in the case in hand and what happened prior to the scene of occurrence or what prompted the appellant to take away the life of the deceased-Mst.

Saima Bibi are the circumstances which have rightly been considered by the Courts below as mitigating circumstances and thus, the appellant has rightly been dealt with by the Courts below”.

20.It is a cardinal principle of criminal jurisprudence that every accused is presumed innocent until proven guilty through evidence of unimpeachable character. This presumption is not merely a procedural formality; it is the foundational guarantee of a fair criminal trial. And once an accused has been acquitted by a Court of competent jurisdiction, that presumption of innocence does not remain static, it is reinforced and strengthened into a double presumption of innocence. To dislodge such presumption, the appellate Court must find glaring misreading of evidence, non-reading of material evidence, arbitrariness, or perversity of such magnitude as would render the acquittal wholly unsustainable.

No such circumstance exists in the present case.

Reliance in this context is placed on the judgment of Hon’ble Supreme Court of Pakistan reported as 2008 SCMR 329 titled “Muhammad Shafi vs.

Muhammad Raza and another” wherein, it has been held that:

"An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and

there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."

21.Having examined the evidence in its entirety, the surrounding circumstances, the physical evidence, the conduct of the witnesses, and the reasoning assigned by the learned trial Court, this Court is satisfied that the learned trial Court rightly appreciated the evidence in its true perspective and arrived at a conclusion fully supported by the record. The view taken by the learned trial Court is not only a possible view, but, in the peculiar circumstances of the case, appears to be the correct one. No illegality, irregularity, misreading, or non-reading of evidence has been pointed out which may warrant interference by this Court in exercise of appellate jurisdiction against acquittal. Consequently, this appeal, being devoid

of substance and lacking in merit, fails and is hereby dismissed. The impugned judgment of

acquittal is maintained.

Announced

*Ihsan PS*

JUDGE

JUDGE

(DB)Mr. Justice Sahibzada Asadullah & Mr. Justice Inam Ullah