PLJ 2024 Cr.C. (Note) 99
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Farooq Haider, JJ.
versus
STATE--Respondent
Crl. A. No. 66509-J & M.R. No. 214 of 2019, heard on 5.9.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-i-amd--Conviction and sentence--Challenge to--Medical evidence--Motive--Said dispute and informed complainant about same in morning was not produced during trial, hence, said “cause” could not be proved--Evidence of all aforementioned cited eyewitnesses, who could not explain/establish any valid reason/cause regarding their presence at “time and place” of occurrence, is “suspect” evidence and cannot be accepted without pinch of salt--Particularly when it is not case of prosecution that appellant was equipped with any sophisticated firearm weapon rather he was having a knife (چھری) and it was very easy for them to intervene/catch hold/apprehend accused and rescue deceased when appellant became angry during conversation or took out knife (چھری) from his Dub (ڈب) or was giving blow of knife (چھری) or even fleeing away/running away after inflicting injury but they did not do so rather remained there as silent spectators; in this regard-- In view of above-discussed factors, ocular account furnished by prosecution is neither confidence inspiring nor truthful; hence, same cannot be relied and is hereby discarded--When accused was having sufficient time circumstances/when to destroy alleged weapon of offence and knife (چھری) was allegedly not recovered from exclusive possession of appellant rather from joint possession as discussed above, then said recovery is not reliable rather doubtful-- So motive could not be proved by prosecution and even otherwise it is always double edged and can also be considered a reason for false implication of appellant--Prosecution has been failed to prove its case against appellant; therefore, there is no need to discuss defence version. [Para 7 & 8] B, C, E, F, I & J
2015 SCMR 1142, 2015 SCMR 315 and PLJ 1996 SC 139.
First Information Report--
----By now it is well settled that First Information Report lays foundation of criminal case and when it has not been promptly recorded rather with delay as stated above and no reasonable explanation regarding its delayed recording has come on record, then it is fatal for case of prosecution. [Para 7] A
2019 SCMR 1068, 2019 SCMR 1170, 2019 SCMR 1391,
2019 SCMR 1978, 2021 SCMR 16 and 2021 SCMR 542.
Witness--
---- By now it is also well settled that witness who introduces dishonest improvement or omission for strengthening case, cannot be relied.
[Para 7] D
2019 SCMR 631 & 2021 SCMR 810.
Medical Evidence--
----As far as medical evidence is concerned, it is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of assailant who caused injury. [Para 7] G
2019 SCMR 872.
Eye-witness--
----It is trite law that eyewitness cannot corroborate himself and corroboration must come from evidence of other witness. [Para 7] H
2015 SCMR 1142 and 2017 SCMR 596.
Mr. Kamran Javed Malik, Advocate for Appellant.
Mr. Munir Ahmad Sayal, Deputy Prosecutor General for State.
Rao Tanveer Ahmed Khan, Advocate for Complainant.
Date of hearing: 5.9.2023.
Judgment
Farooq Haider, J.--This single judgment will dispose of Crl. Appeal No. 66509-J/2019 filed by Mudassar Khursheed (appellant) against his “conviction & sentence” and Murder Reference No. 214/2019 sent by trial Court, as both the matters have arisen out of one and the same judgment dated: 05.07.2019 passed by Addl. Sessions Judge, Sambrial/trial Court.
2. Mudassar Khursheed (appellant) along with his co-accused persons namely Khursheed Ahmad and Fozia Khursheed was tried in case arising out of F.I.R. No. 14/2016 dated: 02.02.2016 registered under Section 302, PPC (subsequently offence under Section 109, PPC was added during investigation of the case) at Police Station: Airport, District: Sialkot; however, during trial of the case, aforementioned Fozia Khursheed (one of co-accused) died on 21.11.2018 and to her extent proceedings were abated by the trial Court vide order dated: 04.01.2019 (copy whereof is available at Page No. 62 of the paper book) whereas trial Court after conclusion of the trial, vide impugned judgment dated: 05.07.2019 while acquitting Khursheed Ahmad (aforementioned co-accused), has convicted and sentenced the appellant as under:
Conviction | Sentence |
Under Section | “Death” with payment of compensation of He was also extended benefit of Section: 382-B, Cr.P.C. |
3. Brief facts, as per application (Ex.PA) moved by Niamat Ali (complainant/PW-1) to Shabbir Hussain A.S.I. (PW-6) at Police Station: Airport, District: Sialkot on 02.02.2016 for registration of the case are that real son of the complainant namely Liaquat Ali aged about 45/46 years was married in Mouza Lopowali, who had shifted to his in-laws village Lopowali after receiving his share of the property from his ancestral land about six months prior to the occurrence, residing there and was doing business of sale/ purchase of cattle heads along with 10-cattle heads and Rs. 700,000/- with his brother-in-law namely Mudassar Khursheed; now for last about two months, dispute had arisen between Liaquat Ali and Mudassar Khursheed over further continuation of joint business and Liaquat Ali was thinking about shifting his residence back to his village Jamkay Cheema; on the morning of occurrence, after hearing the dispute between Liaqat Ali and Mudassar Khursheed, complainant along with Muhammad Amin and Qaiser Mehmood came to the house of Liaquat Ali on 02.02.2016 at about 09:00 a.m.; Mudassar Khursheed was also present there and during conversation became angry and while taking out knife (چھری) from his Dub (ڈب) gave straight blow at the chest of Liaqat Ali (son of the complainant), who after receiving injury fell down and died; accused fled away from the spot; all the occurrence was seen by the witnesses.
On the basis of application (Ex.PA), F.I.R. (Ex.PA/1) was chalked out by Shabbir Hussain A.S.I. (PW-6).
Thereafter, Niamat Ali (complainant/PW-1) also moved another application (Ex.PB) before the police while nominating Fozia Khursheed and Khursheed Ahmad as accused persons of abetment.
After completion of investigation, challan report under Section: 173, Cr.P.C. was submitted in the Court; appellant and his co-accused persons were formally charge sheeted but they pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, appellant and his co-accused were examined under Section: 342, Cr.P.C. but they refuted the allegations levelled against them; they neither opted to appear as their own witnesses under Section 340(2), Cr.P.C. nor produced any evidence in their defence.
Trial Court after conclusion of trial has convicted and sentenced the appellant as mentioned above through the impugned judgment dated: 05.07.2019.
4. Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ of the case; ocular account is neither trustworthy nor corroborated/supported by any other independent evidence; prosecution has remained unable to prove its case. Learned counsel for the appellant finally prayed for acquittal of the appellant.
5. Learned Deputy Prosecutor General and learned counsel for the complainant have supported the impugned judgment and prayed for dismissal of the appeal.
6. Arguments heard. Record perused.
7. As per case of the prosecution, occurrence took place at about 09:00 a.m. on 02.02.2016 and reported to the police station by Niamat Ali (complainant/PW-1/father of Liaquat Ali (deceased of the case)) through application (Ex.PA) whereas First Information Report (F.I.R./Ex.PA/1) was recorded at 10:30 a.m. on 02.02.2016. Prima-facie, it appears as promptly lodged/recorded F.I.R., however, close scrutiny of the record/evidence reveals that dead body of the deceased was received in dead house of the hospital at 10:00 a.m. on 02.02.2016, documents for post-mortem examination were received at 12:45 a.m. (night) on 03.02.2016 and autopsy over dead body of the deceased was conducted at 01:00 a.m. (night) on 03.02.2016 i.e. after delay of about 16-hours of the occurrence; in this regard, relevant portions of statement of Dr. Muhammad Waqas Anjum (PW-5) are hereby reproduced:
“Post mortem was performed by me at 01:00 am (night)”
“Dead body was brought in dead house at 10:00 a.m. on 02.02.2016. F.I.R. application for autopsy, injury statement and consent of family of deceased is required for start of autopsy. All the documents were received by me at 12:45 a.m. on 03.02.2016.
(emphasis added)
Any valid/plausible reason could not be brought on the record by the prosecution to explain that when dead body was brought in the dead house of the hospital at 10:00 a.m. on 02.02.2016, then why post-mortem examination was conducted at 01:00 a.m. on the next day i.e. 03.02.2016. Answer is very simple that police papers were yet not prepared, same were completed with delay, produced before doctor (PW-5) at 12:45 a.m. on 03.02.2016 and therefore autopsy was conducted at 01:00 am. On 03.02.2016. This state of affairs clearly suggests that none of the cited eyewitnesses including the complainant was present at the “time and place” of occurrence, time was consumed for engaging/procuring witnesses, tailoring story for prosecution, then getting the case registered in its present form and completing police papers for post-mortem examination. It further reflects that First Information Report (F.I.R.) was not recorded at the stated time rather with much delay however ante-time was shown in the record in this regard; therefore, neither any sanctity nor evidentiary value can be attached to the First Information Report (F.I.R.) in the case and it cannot provide any corroboration to the case of prosecution against the appellant rather it has lost its efficacy and smashed the case of prosecution; in this regard, guidance has been sought from the case of “Haroon Shafique versus The State and others” (2018 SCMR 2118). By now it is well settled that First Information Report lays foundation of the criminal case and when it has not been promptly recorded rather with delay as stated above and no reasonable explanation regarding its delayed recording has come on the record, then it is fatal for the case of prosecution; in this regard, guidance has been sought from the case of “Muhammad Rafique alias Feeqa versus The State” (2019 SCMR 1068), “Tariq Mehmood versus The State and others” (2019 SCMR 1170), “Tariq Ali Shah and another versus The State and others” (2019 SCMR 1391), “Safdar Mehmood and others versus Tanvir Hussain and others” (2019 SCMR 1978), “Muhammad Adnan and another versus The State and others” (2021 SCMR 16) and “Ghulam Mustafa versus The State” (2021 SCMR 542).
Ocular account in the case produced by prosecution comprises of statements of Niamat Ali (complainant/PW-1), Muhammad Amin (PW-2) and Qaisar Mehmood (PW-3). Niamat Ali (complainant/PW-1) is father of Liaquat Ali (deceased of the case), Muhammad Amin (PW-2) is paternal cousin of the deceased whereas Qaisar Mehmood (PW-3) is son-in-law of the complainant. Occurrence took place in the area of Union Council No. 29-Rodus Village Lopowali falling within the territorial jurisdiction of Police Station: Airport, District: Sialkot and admittedly, all three aforementioned eyewitnesses including the complainant are neither residents of the house nor village of the occurrence rather Niamat Ali (complainant/PW-1) and Muhammad Amin (PW-2) are residents of Jamkay Cheema situated in Tehsil: Daska, District: Sialkot whereas Qaisar Mehmood (PW-3) is resident of village Peelo Mahar, Tehsil: Daska, District: Sialkot and it is relevant to mention here that it takes 01-hour and 45-minutes on motorcycle for reaching from Jamkay Cheema to village Lopowali whereas about 01-hour from Jamkay Cheema to Bheelo Mahar; in this regard, relevant portion of statement of Niamat Ali (complainant/PW-1) is reproduced as under:
“We all three persons came on motorcycle from Jamke Cheema to Lopowali and it took 01 hour, 45 minutes. It takes approximately one hour to reach Bheelo Mahar from Jamke.”
So, all three eyewitnesses produced in this case by the prosecution including the complainant were chance witnesses and thus they were required to explain and establish plausible as well as valid reason regarding their presence at the “time & place” of occurrence. Though in the application (Ex.PA), Niamat Ali (complainant/PW-1) mentioned that on morning of day of occurrence, hearing about dispute between Liaquat Ali and Mudassar Khursheed, on 02.02.2016 at about 09:00 a.m., complainant (PW-1) alongwith Muhammad Amin (PW-2) and Qaisar Mehmood (PW-3) came to the house of Liaquat Ali where Mudassar Khursheed was also present and during conversation, he became annoyed and while taking out knife (چھری) from his Dub (ڈب), gave straight blow at the chest of Liaquat Ali, meaning thereby that the sole cause of going of witnesses including complainant to place of occurrence and their presence at the “time & place” of occurrence was that they heard about aforementioned dispute in the morning, however, how and from whom, complainant heard about said dispute is neither mentioned in the application (Ex.PA) nor brought on record during trial and any witness who heard or saw said dispute and informed complainant about the same in the morning was not produced during trial, hence, said “cause” could not be proved. So, evidence of all aforementioned cited eyewitnesses, who could not explain/establish any valid reason/cause regarding their presence at the “time and place” of occurrence, is “suspect” evidence and cannot be accepted without pinch of salt; guidance in this regard has been sought from the case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and relevant portion from paragraph No. 14 of said case law is hereby reproduced:
“14. A chance witness, in legal parlance is the one who claims That he was present on the crime spot at the fateful time, albeit, his Presence there was a sheer chance as in the ordinary course of Business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”
Further guidance on the subject has been sought from the case of “G.M. Niaz versus The State” (2018 SCMR 506), “Muhammad Ashraf alias Acchu versus The State” (2019 SCMR 652), “Sufyan Nawaz and another versus The State and others” (2020 SCMR 192), “Mst. Mir Zalal versus Ghazi Khan and others” (2020 SCMR 319), “Ibrar Hussain and another versus The State” (2020 SCMR 1850) and Sarfraz and another versus The State” (2023 SCMR 670).
Perusal of Column No. 8 of the Inquest Report (Ex.PQ) reflects that mouth of the deceased was open (منہ کھلا) and statement of Dr. Muhammad Waqas Anjum (PW-5) also reveals that mouth of the deceases was semi-open: said state of affairs also raises eyebrows regarding presence of complainant and cited eyewitnesses at the “time and place” of occurrence particularly when they are closely related to the deceased i.e. Niamat Ali complainant/PW-1) is father of the deceased, Muhammad Amin (PW-2) is paternal cousin of the deceased whereas Qaisar Mehmood (PW-3) is son-in-law of the complainant; had they been present at the place of occurrence, at the relevant time, then they would have definitely closed the mouth of the deceased; while observing so, guidance has been sought from the case of Muhammad Asif versus The State” (2017 SCMR 486) and “Muhammad Rafique alias Feeqa versus The State” (2019 SCMR 1068).
Conduct of Niamat Ali (complainant/PW-1/father of deceased), Muhammad Amin (PW-2/paternal cousin of the deceased) and Qaisar Mehmood (PW-3/son-in-law of the complainant) is also very unnatural for the Reason that they were three in number but did not attempt to intervene at the time of occurrence particularly when it is not case of prosecution that Mudassar Khursheed (appellant) was equipped with any sophisticated firearm weapon rather he was having a knife (چھری) and it was very easy for them to intervene/catch hold/apprehend the accused and rescue the deceased when the appellant became angry during conversation or took out knife (چھری) from his Dub (ڈب) or was giving blow of knife (چھری) or even fleeing away/running away after inflicting injury but they did not do so rather remained there as silent spectators; in this regard, relevant portion of statement of Niamat Ali (complainant/PW-1) is reproduced as under:
“We did not attempt to catch the accused when he committed the occurrence due to tension of the occurrence. We did not raise any hue & cry about the occurrence.”
Similarly, relevant portion of statement of Qaisar Mehmood (PW-3) is also reproduced:
“None of our three persons tried to apprehend the accused when he allegedly gove blow of “Churri”.
said conduct of aforementioned cited eyewitnesses including the complainant farsifies their presence at the place of occurrence; in this regard, guidance has been sought from the dictum laid down by the Supreme Court of Pakistan in the case of “Pathan versus The State” (2015 SCMR 315) and “Zafar versus The State and others” (2018 SCMR 326); relevant portion from the latter case law is being reproduced:
“7. The conduct of the witnesses of ocular account also deserves some attention. According to complainant, he along with Umer Daraz and Riaz (given up PW) witnessed the whole occurrence when their father was being murdered. It is against the normal human conduct that the complainant, Umer Daraz and Riaz (PW since given up) did not make even an abortive attempt to catch hold of the appellant and his co-accused particularly when the complainant himself has stated in the FIR and before the learned trial Court that when they raised alarm, the accused fled away. Had they been present at the relevant time, they would not have waited for the murder of their deceased father and would have raised alarm the moment they saw the appellant and his co-accused standing near the cot of their father.”
It is also worth mentioning here that Niamat Ali (complainant/PW-1) Introduced dishonest improvement in his statement which is reproduced for ready reference:
“I have narrated in my application Ex. P-A moved to the police that when we reached in village lopowali and standing in veranda accused Mudassar Khursheed and deceased Liaquat Ali were exchanging hot words and accused Mudassar took out a ‘churi’ from his ‘dub and inflicted blow with the ‘churi’ on the heart of Liaquat Ali confronted with Ex. P-A where it is not so recorded that accused Mudassar Khursheed and Liaquat were abusing each other and accused Mudassar gave blow of churi on heart of Liaquat Ali. Confronted with Ex P-A where it is not so recorded.”
furthermore, complainant/PW-1 though introduced improvement while stating that Liaquat Ali told him about the dispute; relevant portion of his statement is as under:
“Liaquat Ali told me about the dispute when I was in village Jamke Cheema, Liaquat told me on Sunday just two days before the occurrence as it took place on Tuesday, Liaquat Ali returned to village Lopowali on the same day i.e. Sunday. No other person told me between Sunday and Tuesday about the dispute.”
yet question does arise here that if Liaquat Ali (deceased of the case) told to his father about the dispute two days prior to the occurrence, then why he did not mention this fact in the application for registration of case (Ex.PA) and why he allowed to Liaquat Ali to return alone to village Lopowali from Jamkey Cheema even after coming to know about the dispute; so, it was an afterthought stance and not appealing to common prudence.
Muhammad Amin (PW-2) stated in his examination-in-chief that he along with Niamat Ali (complainant/PW-1) and Qaisar Mehmood (PW-3) went to the village Lopowali to settle their personal dispute and relevant portion of his statement is reproduced as under:
“It is stated that on 02.02.2016, at about 09:00 am. I along with Chacha Niamat and Qaisar Mehmood came to village Lopowali to settle our personal dispute.”
However, in his entire statement, he did not explain said personal dispute rather stated as under:
“When we reached in the house of the accused there were no person was present there. During our stay, no one came there. We remained present in the said house at the most 15/20 minutes. (The witness is not replying to the question put by the learned defence counsel that where did they go after passing 15/20 minutes of their stay at the place of occurrence Despite repeated question).
(emphasis added)
He also introduced dishonest improvements in his statement and relevant portions of the same are hereby reproduced for ready reference:
“I did not depose to the police u/s 161, Cr.P.C. that we came at the place of occurrence to settle personal dispute as the police was itself aware of it.”
“I stated to the police that accused Mudassar Khursheed was abusing Liaquat when we reached at the place of occurrence. Confronted with Ex. D-A where it is not so recorded. I stated to the police that accused Mudassar Khursheed gave a blow of ‘churri’ on the heart of Liaquat Confronted with Ex.D-A where word heart is not recorded”
Qaisar Mehmood (PW-3) also introduced dishonest improvements in his statement with respect to cause regarding going to the place of occurrence as well as motive and relevant portions of the same are hereby reproduced:
“We went there to settle the dispute of accounts of accused Mudassar and Liaquat Ali deceased.”
“It was stated by me to police that we came at village Lopowali to settled the financial dispute between accused Mudassar and deceased, Confronted with Ex.D-B wherein it is not recorded.”
During his statement before the Court, PW-3 introduced further dishonest improvements and relevant portions of the same are reproduced as under:
“It was stated by me to police that when we reached at village Lopowali, thereafter, accused Mudassar Khursheed came there and he started to abuse us. Confronted with Ex. D-B wherein it is not so recorded. It was not stated by me before police that when we reached at village Lopowali accused Mudassar Khursheed and deceased Liaquat Ali were already present in the house. Confronted with Ex. D-B wherein it is so recorded.”
By now it is also well settled that witness who introduces dishonest improvement or omission for strengthening the case, cannot be relied; in this regard, case of “Muhammad Arif versus The State” (2019 SCMR 631) and “Khalid Mehmood and another versus The State and others” (2021 SCMR 810.) can be advantageously referred.
In view of above-discussed factors, ocular account furnished by the prosecution is neither confidence inspiring nor truthful; hence, same cannot be relied and is hereby discarded.
So far as recovery of knife (Churi/P-8) at the alleged pointing out of the appellant from the Dera is concerned, suffice it to say that according to the statement of recovery witness i.e. Arshad Mehmood (PW-9), it was not got recovered from the exclusive possession of the appellant rather other relatives of the appellant were also present over there and the door of said room was also opened by said relatives: in this regard, relevant portion of his statement is as under:
“I do not remember as to whether the door of the room was locked from outside or not. I do not remember the distance between me, Investigating Officer and accused when we reached the door of the room. I could see the door of the room. The door of the room was bolted however I do not remember whether it was locked or not. Other relatives of accused were also present on that Dera. I do not know who were they and what were their ages. The door of that room was opened by the relatives of the accused persons.”
whereas Naseer Khan ASI (another recovery witness/PW-10) deposed that room was bolted from outside and they themselves opened the door and then said that accused opened the bolt of the door, relevant portion of his statement is as under:
“The door of the room (Kurh/کڑھ) was bolted from outside. We ourselves opened the door of the room (Kurh/کڑھ). The accused himself opened the bolt of the door. My both statements are correct.”
In such circumstances, when accused was having sufficient time to destroy alleged weapon of offence and knife (چھری) was allegedly not recovered from the exclusive possession of the appellant rather from joint possession as discussed above, then said recovery is not reliable rather doubtful and in this regard, case of “Basharat and another versus State” (PLJ 1996 SC 139) can be referred; relevant portion from the same is hereby reproduced:
“11. The occurrence took place on 20-4-1988. Basharat appellant was arrested on 28-4-1988. The blood-stained churri was allegedly recovered from his house on 30-4-1988. It is not believable that he would have kept blood-stained churri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it.”
It is also relevant to mention here that washing and cleaning of aforementioned knife (چھری) was also deposed by the recovery witness i.e. Arshad Mehmood (PW-9); relevant portion of his statement is reproduced:
“Investigating Officer read over the statement U/S 161, Cr.P.C to me. It is in my statement U/S 161, Cr.P.C. that the “Churri” which was produced to the Investigating Officer by the accused had been washed and cleaned with water by the accused.”
Naseer Khan A.S.I. (PW-10) also categorically deposed in his statement before the Court that in his statement under Section: 161 Cr.P.C. he did not mention that knife (چھری) was blood stained; in this regard, relevant portion of his statement is as under:
“In my statement U/S 161, Cr.P.C. I have not mentioned that “CHURRI” was blood stained.”
In view of statements of witnesses regarding washing and cleaning of said knife (چھری) and not mentioning that it was blood stained, availability of human blood on said knife (چھری) as per report of Punjab Forensic Science Agency, Lahore (Ex.PS), is also a question mark and raises eyebrows regarding evidentiary value of the same. So, this piece of evidence i.e. recovery of knife (چھری) is neither reliable nor helpful to the case of prosecution.
As far as medical evidence is concerned, it is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in peculiar facts and circumstances of the case, in this regard, case of “Sajjan Solangi versus The State” (2019 SCMR 872) can be safely referred.
As far as motive is concerned, as per claim of the complainant mentioned in the application for registration of case (Ex.PA), there was joint business about sale and purchase of cattle between Mudassar Khursheed (appellant) and Liaquat Ali (deceased of the case), for the last two months, dispute had arisen between them regarding further continuation of said joint business and Liaquat Ali was thinking about shifting his residence back to his village Jamkay Cheema, however, any document or independent witness was not produced by the prosecution during investigation or trial of the case to prove that there was any such joint business or dispute regarding said business; complainant and other cited eyewitnesses in their statements before the Court introduced dishonest improvements in this regard (as discussed above) but could not prove the same; furthermore, motive has only been deposed by the eyewitnesses including the complainant and not by any independent witness. It is trite law that eyewitness cannot corroborate himself and corroboration must come from evidence of other witness; in this regard case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and “Mst. Rukhsana Begum and others vs. Samjad and others” (2017 SCMR 596), can be referred. So motive could not be proved by the prosecution and even otherwise it is always double edged and can also be considered a reason for false implication of the appellant.
8. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellant; therefore, there is no need to discuss defence version.
In view of, what has been discussed above, Criminal Appeal No. 66509-1/2019, filed by Mudassar Khursheed (appellant), is allowed; conviction recorded and sentence awarded to the appellant through impugned Judgment dated 05.07.2019 is hereby set aside. Appellant is acquitted of the charge, he shall be released from the jail forthwith, if not required in any other case.
10. Resultantly, death sentence awarded to Mudassar Khursheed (appellant) is NOT CONFIRMED and Murder Reference (M.R. No. 214 of 2019) is answered in NEGATIVE.
(A.A.K.) Appeal allowed
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