Fazal Rahman Vs The State

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TADGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A No.356-M/2022 Fazal Rehman son of Said Akbar Khan....................(Appellant) The state & another.............:j:.. .....(Respondents) Present: Muhammad Yar (Malezai), Advocate, for the o accused/appellant.

Khwaja Salah-ud-Din, Addl: A.G, for the State.

Mr. Aurangzeb, Advocate, for the respondent/ complainant.

Cr.A No.369-M/2022 $'* Mst. Shaukat Bibi widow of Sher Bahadar Khan.. (Appellant) v/s Fazal Rahman & another................ ......Respondents) Present: Mr. Aurangzeb, Advocate, for the appellanV complainant.

Muhammad Yar (Malezai), Advocate, for the accused/respondent.

-? Khwaja Salah-ud-Din, Addl: A.G, for the State.

Criminal Revision No. 78-M/2022

Yll: 11T:: ::: ::::: :: :T: ::::&-,#:i v/s Fazal Rahman & another................ ...(Respondents) Present: Mr. Aurangzeb, Advocate, for the petitioner/ complainant.

Muhammad Yar (Malezai), Advocate, for the accused/respondent.

Khwaja Salah-ud-Din, Addl: A.9, for the State.

Dates of hearing: 06.12.2023

TUDGMENT

SHAHID KHAN. J.- Through the subject

single judgment, the Court shall decide the N"*"U<O-A)[ffi Hon'ble Mr. Justice Shahid Khan

!r ! captioned criminal appeal No. 356-M of 2022 Titled ('Fazal Rohman v/s The State & Another" coupled with the connected criminal appeal No. 369-IW2022 Titled KMst. Shaukat Bihi v/s Fazal. & another" and criminal revision No. 78-IW2022 Titled "Mst Shaukat Bibi v/s Fazal Rahman & another", as both the subject appeals & criminal revision are by-product of one & the strme impugned order/judgment passed by the learned Additional Sessions Judge-II/ Judge Model Criminal Trial Court, Dir Upper, dated 24.1.2022, in respect of case FIR No. 68 dated -'. 23.02.2021, U/Ss 30213241337-F (iii) PPC, R/W Section 19-AA, P.S, Dir, District, Dir Upper.

2.Reportedly, the local police under the commmd & supervision of SHO, P.S, Dir, during routine patrolling of the area received information in respect of an offence of murder committed opposite to the office of Benazir Income Support Program ("BISP'), therefore, he, in the company of other police officials proceeded to the venue of crime in the govemment vehicle/pick-up. Adjacent to the place of occurrence, they spotted a person duly Nawab @.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

\# armed with pistol decamping from the spot. He was apprehended with the help of police party and from his personal possession the police recovered a pistol bearing No. 33001041 along with charger having 02 live rounds of 30 bore, one bandolier ldtl ar.+) & two magazines having 15 live rounds of 30 bore. He disclosed his name as Fazal Rehman, the accused/ appellant herein. The recovered pistols along with ammunitions were taken into possession and the accused was arrested on the spot. At the spot, the police parfy found the dead body the deceased, Sher Bahadar, aged about 53154 f yeaxs, the minor injured, Muhammad aged about 5/6 months. At the place of occurrence, the complainant, Mst. Shaukat Bibi reported the subject event to the visiting party of local police in terms that on the fateful day, date & time, she, in the company of her deceased husband, Sher Bahadar, minor daughter Kainat and minor son, Muhammad (injured) were gone to the BISP Office in connection with renewal of their BISP card. On their way back, when the complainant-party reached to the place of occurrence, in the meanwhile, the accused/ Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

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V appellant, Fazal Rehman (while being duly equipped with pistol) emerged and started firing at them. Due to firing of the accused, her husband got hit and died on the spot, whereas, her minor son, Muhammad also sustained firearm injury. Likewise, the complainant and her minor daughter, Kainat escaped un-hurt. In addition to the complainant-party, the occurrence was claimed to have been witressed by many people present on the spot. Motive for the commission of the offence was stated to be previous blood feud enmity between the parties.

The event was reduced into in writing in the ,f shape of 'Murasila', (Ex. PW-7/1) followed by the ibid FIR (Ex. PW-4/1), registered against the accused/ appellant at P.S concerned.

3.Upon arrest of the accused"/

appellant followed by completion of the investigation, challan was drawn and was sent- up for trial to the leamed trial Court. Accused/ appellant was confronted with the statement of allegations through a formal charge-sheet to which he pleaded not guilty and claimed trial.

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Hon'ble Mr. Justice Shahid Khan

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4.To substantiate the guilt of the accused/appellant, the prosecution furnished its account consist of the statements of ten (10) witnesses. The accused was confronted with the evidence so furnished through statement of accused within the meaning of section 342 Cr.P.C.

5.On conclusion of the proceedings/ trial, in view of the evidence so recorded and the assistance so rendered by the learned counsel for the accused/appellant and the learned counsel for the complainant/learned r State counsel, the learned trial Court arrived at the conclusion that the prosecution has successfully brought home charge against the appellant/accused through cogent & worttr reliable evidence, as such, the accused was convicted & sentenced as follows;- I. U/S 302 (b) PPC to life imprisonment as Tazir, with compensation of Rs. 500,000/-, U/S 544-A Cr.P.C payable to the legal heirs of the deceased. The compensation shall be recoverable as arrears of the land revenue. In default of compensation, the accused/ appellant shall further suffer six months, simple imprisonment.

II. U/S 337-F (iii) PPC to one-year rigorous imprisonment, with fine of Rs. 80,000/- as Daman within the Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

meaning of Section 337-y,ppc, in lieu of the firearm injury caused to the injured/minor, Muhammad, payable to the complainant being guardian of the minor/injured.

III. U/S 19-AA to pay fine of Rs. 2,0001- or in default thereof to suffer lO-days, simple imprisonment.

IV. Benefit of section 382-8, Cr.P.C has also been extended to the accused/ appellant.

6.It obliged the appellant/accused to approach this Court through the subject criminal appeal, whereas, the complainant/ petitioner has also filed the connected criminal appeal No. 369-M of 2022, whereby, she has challenged the findings of the learned trial Court in respect of acquittal of the ? accused/respondent, Fazal Rehman U/S 324 PPC as well as the criminal revision No. 78- M/2011 for enhancement of the conviction & sentence awarded to the accused/respondent.

7.Learned counsel for the parties as well as the learned Addl: A.G have been heard at a length and the record gone through with their valuable assistance.

8.The record so furnished would divulge and as evident from the contents of the initial report of the complainant in the Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeern Anwar Hon'ble Mr. Justice Shahid Khan

V shape of 'Murasila' followed by the fbrd FIR that there are certain pieces of evidence in the field against the accused/appellant which he has to overcome in order to earn his acquittal in the subject event. For instance, it was stance of the prosecution that on the fateful day i.e. on23.02.2021 at 12:00 hours as a first responder, Muhammad Riaz Khan, SHO, PW-7 received prior information with respect to an offence of murder committed opposite to BISP Office, Dir Upper. Actin on such information, he, with other police party ? rushed to the venue of crime and spotted a person duly equipped with the pistol fleeing- away from the spot. He was allegedly apprehended by the police party under the command & supervision of the SHO

concerned. Due search of the accused/ appellant led to the recovery of weapon of offence i.e. a 30 bore pistol along with two chargers etc. At the spot, the visiting party of police also found the dead body of the deceased husband of the complainant. On the venue of crime, the complainant, Mst.

Nawab @.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

Shaukat Bibi, in the company of her minor/injured son, Muhammad as well as daughter, Kainat reported the subject event to the local police with regard to murder of her deceased husband as well as causing firearm injury to her minor son, in the mode &.

manner as highlighted in the preceding Para of this judgment. She has also advanced a specific motive which was stated to be previous blood feud enmity between the parties

9.First of all, the Court will

? determine the pivotal point of the subject case in the light of evidence produced by the prosecution, m particular that of the complainant/respondent in terms that as to whether the accused/appellant was apprehended at the spot red-handed along with the alleged recovery of weapon of offence i.e. a 30 bore pistol. The second question for determination of the Court would be that why the accused/appellant allegedly remained at the spot and waited for arrival of the police party despite of the fact that as per Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

i/ stance of the complainant/prosecution he was alleged to have committed the murder of the deceased husband of the complainant relatively in a thickly populated area i.e. in front of the BISP Office in presence of numerous people/shopkeepers. In order to answer the aforesaid queries, the ocular- account furnished by the complainant would be of paramount importance. On her own turn, she appeared in the witness-box as PW-6. In her examination-in-chief she almost reiterated the same facts as advanced by her in r her initial report in the shape of 'Murasila' followed by the ibid FIR, however, her examination-in-cross qua the mode & manner of the alleged occurence is worth perusal. In her examination-in-cross, she deposed as under;-

t!n r,b.t,)x L u i l "Qy' *3,., o.f/ ar,gfr BISP e9$ o, / ) r rt sft:.t /'>E$ 0 fu, i ) g i,, 4 r, (etp t t sN - t t 3 3:

Ltt L,-r" st 1,,Qy' .-a$P f : i :'<-V -2,, / 3 \ql ,,r!-,? L,I ,f -fusi't -& J"*-g{t'3tv-?/, $x j,t .)t ( e.v up, /, )r, Ju, ,tt 31v s, c)t-Z Lv ili ,:4it/,,L,r{ /() u$4,J ayrJu./ r,Ln-llv-{ n {'" 6,t r,t Ld L I Luvr -Lz-n6' Ji ,'t gt.,rt$ Nawab @.B) Hon'ble Mr. Justice Muharnmad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

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-,f t "l -6,,g?,4drr,uG .Qy't 6lP-,f 6"**V The aforesaid narration of the star witress of the prosecution is in total contrast with the story put-forward by the prosecution.

It was stance of the prosecution that the accused/appellant was apprehended by the visiting party of police duly equipped with the alleged weapon of offence i.e. a 30 bore pistol, however, as per deposition of the complainant it was she who had caught-hold of the accused with the help & facilitation of r other private shopkeepers and people of the locality gathered on the spot. She further deposed that from the main road BISP Office can be covered within a span of 213 minutes, which is not only surrounded by many shops but numerous people have also been usually present in & around the place of occurred, however, it is also part of the record that no private persons from the locality or for that matter none of shopkeepers have been examined in Court in order to further authenticate & substantiate the stance of the Nawab @.8) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

v complainant qua the red-handed arrest of the accused/appellant on the spot along with the alleged recovery of weapon of offence i.e. a 30 bore pistol. She also stated in her cross- examination that on the event of making of six fire shots by the accused/appellant and his escape from the venue of crime, round about 15 minutes would have been spent. She also stated that the dead body of her deceased husband was lying on the spot for 20 minutes, however, it is not appealable to common sense or sanity that a person who has .-F allegedly not only committed a murder of the deceased but also caused a firearm injury to the minor aged about 516 months would remain at the spot and would wait for arrival of the police party, therefore, the very conduct & demeanor of the complainant/sole eyewitness of the occuffence is unnatural and against basic nonns of human conduct. There is also uncertainty that how the police party came to know about the commission of the alleged offence and who had informed them at first instance, as the complainant stated in her Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

v cross-examination that it might be the private persons who could have informed the police.

She also contradicted earlier assertions in terms that the police reached to the spot within 2/3 minutes. If the police party allegedly reached to the venue of crime with such promptitude then why a need arise for complainant and other private persons to take a risk and caught-hold a person/assailant duly equipped with a pistol. It is also strange to observe that a mother i.e. the complainant herein who was having an injured minor son r in her lup (.i) would take a risk and tried to apprehend or caught-hold of the assailant who was having a loaded pistoJ in his hand, therefore, the very claim & assertion of the complainant i.e. the sole eyewitness of the occulrence is not appealable to sanity. Even otherwise, the aforesaid stance of the complainant was negated by the marginal witness to the recovery memo, Ex. PW-1/1, Farid Ullah, who appeared in the Court as PW-l. Through the aforesaid recovery, the alleged weapon of offence i.e. a 30 bore pistol Nawab @.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justicc Shahid Khan

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v along with fixed charger and live rounds etc were recovered from the accused/appellant.

PW-l stated in his examination-in-chief that it was the police party who had apprehended the accused/appellant duly equipped with a pistol, however, it shall be kept in mind that the complainant deposed in her cross-examination that it was she who had caught-hold of the accused/appellant with the help & facilitation of other shopkeepers of the area. PW-l also stated in his cross-examination that at the time of alleged arrest of the accused/appellant he ? was neither wearing police uniform nor he was equipped with any official weapon. He has also shown his inability to produce the order of the SHO concerned, vide which, the accused/appellant was arrested. He also deposed that in and around the place of occurrence numerous people were present as the same place situated adjacent to BISP Office. He funher stated that government officials were present inside the premises of the BISP Office, then why a need arise for a chance witness in the form of PW-l to Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

-t4- \, apprehend and arrest the accused/appellant instead of government officials duly equipped with government weapons qua the alrest of the accused/appellant. He also stated that when the police party reached to the spot nobody was present with the dead body of the deceased nor any crime empties have been recovered from the venue of crime in his presence. Same was the case with the testimony of the first responder i.e. Riaz Khan, SHO, who appeared in the Court as PW-7. He also contradicted the stance of the complainant in terms that it was the visiting 8\f I party of the police who had apprehended the accused/appellant on the spot. In the opening line of his cross-examination, he made an admission to the effect that there is prima facie a delay of 20 minutes qua the 'Murasila' report and the exact time of occuffence. The presence of these alleged witnesses at the relevant time & place appears to be highly unreasonable and unnatural and thus the prosecution has not been able to prove the presence of these PWs at the scene of Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

\J occurrence at the relevant time, hence, their evidence could not be relied upon for the purpose of conviction of the accused/ appellant. In a situation, akin to the present one, in case titled "Sarfaraz & another v/s The State" reported as 2023 SCMR 670, the Apex Court has held as under;-

Not a single person from the inmates of the house where occurrence took place or from surrounding inhabitants appeared in support of the prosecution version and the whole prosecution case was silent about this aspect of the matter. Record clearly reflected that the prosecution witnesses were not present at the place of occurrence, rather they managed to appear as witnesses after due consultation and deliberation. Record further showed that the complainant was inimical towards the deceased. In such circumstances, it seemed impossible that deceased would have invited an -f inimical person for his help before his death. Prosecution had failed to prove its case beyond any reasonable shadow of doubt Similarly, in case titled "Li@.

,4li and another u/s The State and otherstt reported as 2021 SCMR 780, the Apex Court has recorded a somewhat similar observations by holding that;-

AII the circumstances highlighted above lead us to a delinite conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt.

10.Even otherwise, it was boundan

duty of the prosecution to associate independent or impartial witnesses qua the Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

w alleged arrest of the accused/appellant relatively from a thickly populated place surrounded by the many shops and as per stance of the complainant it was the local inhalants in the form of shopkeepers who had help her to arrest the accused along with the alleged recovery of weapon of offence, however, surprisingly except the complainant no independent or impartial witnesses have been examined in Court especially keeping in sight the peculiar facts & circumstances of the subject event. In case titled "Zafar v/s The State" reported as 2019 P Cr. LJ 164, it was

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held that circumstances suggested that no serious effons were made by the Investigation Officer to associate such independent persons of the locality as mashirs. It was further held that police persons were the good witnesses as like anyone good from the public but in presence of the independent persons of the atea, it was mashir of the recovery proceedings only to obtain himself from any adverse or animosity ought to be occurred on his part but that had not been done by the Police Officer. Similarly, in case titled "Rsia Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

V Munir Ahmad & 02 others u/s The State,' reported as 2019 P Cr. LJ 40, it was held by the Federal Shariat Court that where witnesses, were not of the locality, the Court was to cautiously examine their statements.

Likewise, PW-l has stated in his examination- in-cross that on the day of occurrence he was neither dressed in the police uniform nor was having any official weapon coupled with the fact that at the relevant time he was present in his carpenter shop, therefore, on all stretch of imaginations he was a chance witness. In case r titled "Nazeer Ahmad u/s The State & others" reported as 2019 SCMR 594 it was held by the Apex Court that eye-witnesses of the said dragging were both chance witnesses besides being very closely related to the deceased. Said witness had been brought by the complainant to the place of occurrence after the murder had already been committed.

Likewise, in case titled "Naveed Asshar & 02 others v/s The State" reported as PLD 2021 Supreme Court 600, the same rational was reiterated by the Apex that chance witness was witness who in view of his place of Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

Y residence or occupation and in the ordinary course of events was not supposed to be present at the place of the occurrence but claimed to be there by chance. Testimony of such witress required cautious scrutiny and was not accepted unless he gave satisfactory explanation of his presence at or near the place of the occuffence at the relevant time.

In context of the case in hand, it was nobody else but PW- 1 himself who stated in his examination-in-cross that at BISP Office govemment officials were present at the relevant time who were also duly

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equipped with official weapons, therefore, it was responsibility of those government officials to would have apprehended and arrested the accused/appellant .and no justification whatsoever exist for a chance witness like PW-l to jump in, in the matter in hand.

11.The ocular-account furnished in the case in hand by the sole eyewitness of the occurence is not confidence inspiring qua the guilt of the accused/appellant coupled with Nawab @.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

Y the alleged mode & manner of the occurrence especially the arrest of the accused/appellanl on the spot, as referred to above, and the case of the prosecution against the appellant/ accused is wholly based on the circumstantial evidence i.e. the recovery of the alleged weapon of offence i.e. a 30 bore pistol along with fixed charger and live cartridges bearing No. 33001041, allegedly recovered from the accused/appellant vide recovery memo, Ex.

PW- 1/1 at the time of his arrest on the spot of .r occurrence. At first instance, it would not be out of place to mention here that there exist a glaring contradiction, inter-se, amongst the statements of the complainant and that of official witnesses in terms that as to whether the accused/appellant was apprehended & arrested on the spot by the visiting party of the police or it was the complainant herself who with the help & facilitation of local inhabitants of the locality in the form of shopkeepers had caught-hold of the accused/ appellant along with the alleged recovery of weapon of offence, therefore, when the very Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

\t arest of the accused/appellant on the spot is prima facie doubtful then of course the probative worth or evidentiary value of the alleged recovery of weapon of offence would be of no help to the prosecution qua the guilt of the accused/appellant. The marginal witness to the recovery memo, Ex. PW- l/1, Farid Ullah (PW-l) was admittedly neither dressed in the official uniform nor he was having any official weapon rather he could be termed as a chance witness. In his examination-in-cross, he deposed about the "? presence of other marginal witress at the scene of occurrence as under;-

t{ ( L'r it c)r 6 -Att,,fe"r 7 ( -i fi.v L ttf! / f ) o: v

tt f j*,!rt;,tt / eltctr 3-a{* lS) t-o'd fic -G rrt{,,t/1,-/ gb <- h g, *L S fiJt ;,' 1 e- 7 From the aforesaid admissions of PW-l, it is crystal clcar that the accused/ appellant was not only apprehended by the local inhabitants of the area but there is also uncertainty about the presence of other alleged marginal witness to the recovery memo i.e. Sardar Khan. Perhaps for this reason, the other alleged marginal witness to Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shghid Khan

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the recovery memo, Ex. PW-l/1, Sardar Khan was not produced by the prosecution in support of their case and was abandoned being unnecessary, as such, he, being an important witness of the prosecution would have been in a better position to clearly depose about the alleged recovery of weapon of offence from the personal possession of the accused/appellant, but he was abandoned and thus the prosecution in all eventualities has withheld the best available evidence,

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therefore, under Article 129 (g), the Qanun-e- Shahadat Order, 1984 an adverse inference has to be drawn that had the said PW been produced he would have not supported the case of prosecution. The Apex Court in case titled "Lal Khan u/s State" reported as 2006 SCMR 1846 has held that;-

A material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid consequence.

Similarly, in case titled "Mandoos Khan v/s The State" reported as

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Hon'ble Mr. Justice Shahid Khan

v 2003 SCMR 884 it was observed by the Apex Court that;-

Prosecution must produce best kind of evidence to establish accusation against accused facing trial but simultaneously it has no obligation to produce a good number of witnesses because it has an option to produce as many as witnesses which in its consideration are sufficient to bring home guitt against the accused, following the principle of law that to establish accusation, indeed it is not the quantity but quality ofthe evidence, which gets preference.

12.There is no second opinion at all

that the circumstantial alone cannot be made basis for conviction of an accused person especially when the ocular account is gone bagging out of the window in the subject case.

In cases like the presQrrt one that rests entirely ? on circumstantial evidence, it is imperative that the circumstances should be assessed with due care & caution so as to arrive at the correct conclusion of the case. A high quality of evidence is, therefore, required to prove the facts & circumstances from which the

inference of the guilt of the accused person is to be drawn. The circumstantial evidence, in a murder case, should be like an unbroken

chain, one end of it shall touch the dead body of the deceased while the other neck of the accused. Chain of such facts and

circumstances has to be well connected to

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Hon'blo Mr. Justice Shahid Khan

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establish the guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable for the subject event, conviction cannot be safely recorded, especially on a capital charge. It is otherwise well settled that when substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, ,f corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution's case.

Hon'ble Supreme Court of Pakistan while rendering its judgment in case titled vs. The State and others" reported as 2!!2.

SCMR 639 has also expressed almost a similar view in para-L2 of its judgment, which is reproduced hereunder for ready reference;

(After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that Nawab (D.B) Hon'ble Mr. Justico Muhammad Naeern Anwar Hon'ble Mr. Justice Shahid Khan

V unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be.tt Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Imran raf&Tothersv/s The Stateu reported as 2001 SCMR 424, has also observed;

"Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion.tt In support of same ratio, further reliance may also be placed on the judgment reported as 2007 SCMR 1427.

,f 13. So far as the medical evidence is concerned, needless to highlight that the medical evidence may confirm the direct or ocular account, if any, with regard to the set of injuries, kind of weapon allegedly used in the commission of offence and at least the nature of injuries, however, in the subject case when the occurrence is undoubtedly not up to the requires standard, then evidentiary value of medical evidence qua the guilt of the appellant as a sole piece of corroboratory evidence cannot be given much weight. Reliance in this regard is placed on the case titled uAbdul (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'blc Mr. Justice Shahid Khan

v Rashid u/s The State" reported as 2019 p Cr.

LJ 1456, whereby, it has been held that;- (The medical evidence in this case has been furnished by PW-4 Dr. Nasreen Ahmad Tareen, Medical Officer, who has confirmed the unnatural death of deceased. However, the fact remain that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability. Reliance in this regard can be placed on the case of "Muhammad Sharif & another v/s The state" (1997 SCMR 866t.

In context of the case in hand, the medical evidence has been furnished by Dr.

Junaid. He appeared in the witness-box as PW-9 & APW-9, respectively, who had examined the -? dead body of the deceased as well as the minor injured son of the complainant i.e. Muhammad. In his examination-in-cross, he deposed as under;- There were total five entry wounds present on the dead body. It is not mentioned in my report about the margins of the wound that whether it were averted or inverted. Self-stated that the entry wounds are inverted and exit wounds were averted. According to my PM report probable duration from injury and death is about one hour and between injury and PM is 3 to 4 hours.

Likewise, in respect of the minor

injured, he stated in his cross-examination as under;-

Charring marks were not present. I advised X-ray and referred the injured to the radiologist opinion to see bullet and fracture but till date, the radiologist opinion is not provided. I have not answer the second question on injury sheet about distance of firing. Self-stated that I cannot say about the distance.

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Hon'ble Mr. Justice Shahid Khan

Thus, the medical evidence furnished by the doctor concerned is in direct conflict with the ocular-account furnished by the complainant/sole eyewitness of the occturence especially when the doctor has shown probable time between the injury and PM is 3 to 4 hours, however, the available record shows that the alleged occurrence has taken place on23.02.2021 at t2:00 hours, whereas, the dead body of the deceased as well as the injured were received by the doctor at 12:50 p.m, therefore, it prima facie f

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shows that the alleged occuffence might have been taken place much earlier in time than the reported one, as such, the medical evidence would be of no help to the prosecution qua the guilt or otherwise of the accused/appellant.

14.In view of the above, when neither any direct nor any circumstantial evidence is available on the face of the record, as such, the case of prosecution is full of doubt all-around; therefore, the accused/appellant has to be extended its benefit.

15.It is well settled, it is not essential at all to place reliance on multiple doubts Nawab @.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

V coupled with multiple grounds to extend the benefit of doubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz u/s The Stateu reported as 1995 SCMR 1345 , the Apex Court has held as under;-

That the concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benelit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.

Further reliance is placed on the

case law cited as "Daniel boyd (Muslim name Saifullahl vs the Stale" reported as 1992 SCMR 19C', where the following

observations were recorded by the Apex Court;-

Nobody is to be punished unless proved guilty on the basis of reliable or true evidence. Benefit of everT reasonable doubt is to go to the accused.

Nawab (D.B) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

V This view also reflects in the

judgment of the apex Court titled as "Ghulam Oadir and 2 others vs the State" reported as 2008 SCMR 1221, wherein it was observed that:-

"Benefit of doubt. Principle of applicability. For the purpose of benefit of doubt to an accused, more than one inlirmity is not required. Single infirmity creates reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. " In support of the same rational,

further reliance is placed on the judgment of -P the august Supreme Court of Pakistan cited as "Muhammod Zaman v.s. the Stateu (2014 SCMR 7491, wherein it was held that;- Even a single doubt if found reasonable' was enough to warrant acquittal of the accused.

16.For what has been discussed

above, this Court is of the firm view that the prosecution has failed to prove its case against the accused/ appellant, Fazal Rehman beyond reasonable doubt, as such, his conviction cannot be maintained Resultan$r, while extending him the benefit of the doubt the subject criminal appeal is Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan

L

a-, v allowed and the impugned order/judgment of conviction and sentence dated 24.11.2022 recorded by the leamed trial Court is set aside and consequently the appellant named above is acquitted of the charges leveled against him. He be released fonhwith from the Jail, if not required in any other case.

17.Since we have allowed the

appeal filed by the appellanVaccused against his conviction & sentence, therefore, the connected criminal appeal bearing No. 369- M of 2022 and criminal revision bearing No.

78-M12022 (filed by the complainant/ petitioner against acquittal of the accused/respondent UIS 324 PPC as well as for enhancement) have become infructuous;

hence, the same are also dismissed.

18.These are reasons for our short order of even date.

Date of announcement

DL06.12.2023

JUDGE

-F

Nawab @.8) Hon'ble Mr. Justice Muhammad Naeem Anwar Hon'ble Mr. Justice Shahid Khan I{'rak