PLJ 2025 Cr.C. 813
[Lahore High Court Lahore]
Present: Abher Gul Khan, J.
AMEER AFZAL--Appellant
versus
STATE--Respondent
Crl. A. No. 64856 of 2019, decided on 4.8.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
ایسے اہم گواہ کو نظر انداز کرنا، اندراجِ مقدمہ کی بروقت اور مناسب رجسٹریشن کے حوالے سے استغاثہ کے بیان پر شک پیدا کرتا ہے۔ عدالت کے لیے یہ غیر معقول اور غیر منصفانہ ہوگا کہ وہ اہم گواہ کو جان بوجھ کر پیش نہ کرنے پر استغاثہ کے دعوے کو وقت اور اندراجِ مقدمہ کے طریقہ کار کے بارے میں تسلیم کرے، جب کہ وہ گواہ اس دعوے کی تصدیق کر سکتا تھا۔ اس سلسلے میں، سپریم کورٹ آف پاکستان نے پہلے ہی ایک تاریخی فیصلے میں اسی طرح کے مسئلے سے نمٹا ہے۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Omission of such a vital witness casts doubt on prosecution’s narrative regarding timely and proper registration of FIR--It would be unreasonable and unjustified for Court to accept prosecution’s claim about timing and procedure of FIR registration without questioning deliberate withholding of an important witness who could have substantiated that very claim--In this regard, Supreme Court of Pakistan has already addressed a similar issue in landmark judgment. [P. 819] A
2019 SCMR 326.
Pakistan Penal Code, 1860 (XLV of 1860)--
چیلنج تا--طبی شہادت--فیصلے کی قانونی حیثیت--انہوں نے انکوائری رپورٹ کی تیاری کے وقت مرحوم کی شناخت کر لی ہوتی--ایسا کرنے میں ان کی ناکامی جائے وقوعہ پر ان کی موجودگی پر اور اس کے نتیجے میں استغاثہ کے پورے بیان پر گہرے شک کے بادل ڈالتی ہے--یہ واضح تضاد استغاثہ کے مقدمے کو نمایاں طور پر کمزور کرتا ہے اور اس مفروضے کی تائید کرتا ہے کہ عینی شاہدین کو بعد میں پیش کیا گیا ہو گا یا وہ اپنے بیان میں سچے نہیں تھے--ایمبولینس ڈرائیور اور ریسکیو-1122 کا کوئی اہلکار دورانِ ٹرائل بطور گواہ پیش نہیں کیا گیا--مزید برآں، ریسکیو-1122 کا کوئی دستاویزی ثبوت یا ریکارڈ اس دعوے کو ثابت کرنے کے لیے پیش نہیں کیا گیا--جب جرح کے دوران ان سے سوال کیا گیا تو دونوں متعلقہ عینی شاہدین اس واضح کوتاہی کی مناسب وضاحت دینے میں ناکام رہے یا کوئی ایسا جواب دینے میں ناکام رہے جو استغاثہ کے مقدمے پر اعتماد پیدا کر سکے--اس مادی غفلت سے استغاثہ کا بیان نمایاں طور پر کمزور ہوتا ہے--فیصلہ: یہ ایک مسلمہ اصول ہے کہ استغاثہ کے ثبوت میں کسی بھی شک یا کمی کو محض الزام کی سنگینی کی وجہ سے نظر انداز نہیں کیا جا سکتا--مستحکم قانونی اصول یہ بتاتے ہیں کہ ہر معقول شک کا فائدہ ملزم کو دیا جانا چاہیے، جس کا عملی طور پر مطلب بری ہونا ہے--نتیجتاً، فوری طور پر دائر فوجداری اپیل منظور کی جاتی ہے۔
----Ss. 302(b), 324, 337-F(iii), 109 & 34--Qatl-e-amd--Conviction and sentence--Challenge to--Medical evidence--Validity of judgment--They would have identified deceased at time of preparation of inquest report--Their failure to do so casts a long shadow of doubt over their presence at scene and consequently over prosecution’s entire narrative--This glaring inconsistency significantly weakens prosecution’s case and supports inference that eye-witnesses may have been introduced later or were not truthful in their account--Neither ambulance driver nor any official from Rescue-1122 was produced as a witness during trial--Moreover, no documentary evidence or record from Rescue-1122 was submitted to substantiate this claim--When questioned during cross-examination, both related eye-witnesses failed to adequately explain this glaring omission or provide any response that might inspire confidence in prosecution’s case--This material lapse significantly undermines prosecution’s version--Held: It is a well-settled principle that any doubt or deficiency in prosecution’s evidence cannot be overlooked or disregarded merely because of seriousness of charge--The established legal principles dictate that every reasonable doubt must be resolved in favour of accused, which in practical terms translates into a verdict of acquittal--Consequently, instant criminal appeal is hereby allowed. [Pp. 823, 825 & 827] B, C & F
2024 SCMR 1449 & PLJ 2003 Cr.C. (Quetta) 157 (DB).
Pakistan Penal Code, 1860 (XLV of 1860)--
طبی شہادت کا جائزہ - یہ قانون کا ایک مسلمہ اصول ہے کہ طبی شہادت بنیادی طور پر تائیدی شہادت کے طور پر کام کرتی ہے۔ یہ زخموں کی نوعیت، تعداد اور مقام، استعمال شدہ ہتھیار کی قسم، اور موت اور پوسٹ مارٹم کے درمیان گزرے ہوئے وقت جیسے پہلوؤں کی تصدیق کر سکتی ہے۔ تاہم، طبی شہادت، اپنی نوعیت کے اعتبار سے، جرم کے مرتکب کی شناخت نہیں کرتی ہے۔
----Ss. 302(b), 324, 337-F(iii), 109 & 34--Qatl-e-amd--Examination of medical evidence-- It is a well-established principle of law that medical evidence serves primarily as corroborative evidence--It can confirm aspects such as nature, number, and location of injuries, type of weapon used, and time elapsed between death and postmortem examination--However, medical evidence, by its nature, does not identify perpetrator of crime. [P. 825] D
PLD 2009 SC 53 & 2008 SCMR 1103.
Pakistan Penal Code, 1860 (XLV of 1860)--
خاص محرک - یہ ایک مسلمہ اصول ہے کہ جب استغاثہ ایک خاص محرک پیش کرتا ہے اور اسے ثابت کرنے میں ناکام رہتا ہے، تو استغاثہ کا مقدمہ اس سے کمزور ہو جاتا ہے۔
----Ss. 302(b), 324, 337-F(iii), 109 & 34--Qatl-e-amd--Specific motive--It is a well-settled principle that when prosecution puts forth a specific motive and fails to substantiate it, case of prosecution is thereby weakened. [P. 826] E
2023 SCMR 670.
Mr. Mudassar Ali Awan, Advocate/Defence Counsel at State expenses with Appellant.
Ms. Sumara Shafi, Deputy District Public Prosecutor for State.
Date of hearing: 4.8.2025.
Judgment
The appellant, Ameer Afzal, through the Superintendent of District Jail Bhakkar, has filed the present criminal appeal challenging the validity of the judgment dated 25.06.2019 whereby learned Additional Sessions Judge Khushab, upon conclusion of the trial in case FIR No. 413/2015 dated 15.09.2015, registered under Sections 302, 324, 337-F(iii), 109, & 34, PPC at Police Station Khushab, acquitted the co-accused Muhammad Saleem, Muhammad Afzal, and Sher Hussain, however, the appellant was held guilty under Section 302(b), PPC and sentenced to life imprisonment. Additionally, he was ordered to pay compensation of Rs. 500,000/-to the legal heirs of the deceased, Muhammad Ashraf, under Section 544-A, Cr.P.C., with a default clause of six months’ further simple imprisonment. The amount of compensation was ordered to be recoverable as arrears of land revenue.
2. The brief facts as narrated by the complainant, Muhammad Yousaf (PW.10), in the FIR (Exh.PO) are that on 15.09.2015, he, along with his sons Muhammad Ashraf and Ashiq Mustafa, went to the cattle market in Khushab to sell goats but remained unsuccessful. They, along with two others, namely, Asif son of Mureed Hussain and Atta Muhammad son of Ghaus Muhammad were returning from the market. At about 3:00 p.m., they reached near Sandral Morr and at that time Muhammad Ashraf (deceased) was walking a few steps ahead of others. Suddenly, accused Meer Afzal (Ameer Afzal), Muhammad Afzal, and an unidentified person all armed with .30 bore pistols emerged there. Accused Muhammad Afzal raised a Lalkara that they had come to take revenge for the murder of Muhammad Azam. Muhammad Afzal then fired a shot that struck Muhammad Ashraf at his right eye. Immediately thereafter, Meer Afzal (Ameer Afzal) fired at Muhammad Ashraf which landed on his left cheek, causing him to fall. Subsequently, all the accused opened fires directly at Muhammad Ashraf with their respective weapons, inflicting injuries on his nose, chest, left flank, abdomen, left thigh, and left arm. In the crossfire, Muhammad Asif sustained injuries at the front of his thigh, thumb and middle finger of his left hand. Atta Muhammad was also injured, with shots hitting his left ankle and heel of the left foot. The complainant and his son Ashiq Mustafa raised an alarm, drawing the attention of Fateh Muhammad son of Haji Ghulam Rasool, who was nearby and witnessed the incident. The accused then fled away from the scene of crime on motorcycle, brandishing their weapons, towards Sandral Morr. Muhammad Ashraf succumbed to his injuries at the spot, while the injured Muhammad Asif and Atta Muhammad were shifted to Civil Hospital, Khushab, on rescue-1122 for medical treatment. The motive behind the occurrence was rooted in an incident pertaining to year 2012, where Muhammad Azam, the real brother of Muhammad Afzal, was murdered. Muhammad Yousaf, the complainant, along with the deceased Muhammad Ashraf and others, were undergoing trial in relation to that case.
3. Upon receiving information about the incident, Rafi Ullah SI (PW.17), accompanied by other police officials, visited the scene on 15.09.2015. He recorded the statement/Fard Bian (Exh.PV) of the complainant, Muhammad Yousaf, which was read over to him for confirmation of its accuracy and then forwarded to the police station through Muhammad Riaz 106/C for the formal registration of the FIR. At the spot, he prepared a rough site plan based on the directions given by witnesses, through memo. Exh.PEE. He collected blood samples using cotton from the murder site of Muhammad Ashraf, as noted in memo. Exh.PFF. Additionally, he seized one crime empty of a .30 bore pistol and three empty cartridges of a .9 MM pistol from the spot, as recorded in memos Exh.PGG and Exh.PHH respectively. Rafi Ullah SI also drafted the inquest report (Exh.PA), the injury statement (Exh.PC) of Muhammad Ashraf (deceased), and arranged for the dead body to be escorted by Gulzar Ahmad 447/C to the hospital for autopsy. Subsequently, he visited Civil Hospital Khushab to prepare injury statements (Exh.PII & Exh.PJJ) for the injured, namely, Atta Muhammad and Asif. On 23.12.2015, he obtained warrants for the arrest of accused Muhammad Afzal (Exh.PR) and Ameer Afzal (Exh.PS) and handed these over to Saif Ullah 613/C for execution. Later, on 02.01.2016, he issued proclamations (Exh.PT & Exh.PU) against both accused and again entrusted Saif Ullah 613/C with their service. On 11.01.2016, Muhammad Afzal was arrested. Although he was implicated in the case, yet found to be unarmed at the time of incident. Rafi Ullah SI subsequently submitted the investigation report under Section 173, Cr.P.C. against Muhammad Afzal, and filed a report under Section 512, Cr.P.C. regarding accused Ameer Afzal, through the SHO.
4. This case was also investigated by Muhammad Nawaz SI (PW.16), who arrested the appellant, Ameer Afzal, on 16.10.2017. At that time, Ameer Afzal was in custody in another case and was being produced by Muhammad Saleem ASI at the District Courts Complex, Jauharabad. On 26.10.2017, the appellant made a disclosure, which led to the recovery of a .30 bore pistol (P.5), subsequently taken into possession vide memo. Exh.PZ. During further interrogation, Ameer Afzal also disclosed that the unknown accused named in the FIR was Sher Hussain. Following this, Sher Hussain was arrested on 15.01.2018. On 19.01.2018, a Honda motorcycle 125 (P.7) was recovered from him, which was seized through memo. Exh.PAA. After recording statements of witnesses under Section 161, Cr.P.C., Muhammad Nawaz SI submitted report under Section 173, Cr.P.C. against both appellant Ameer Afzal and Sher Hussain.
5. The prosecution produced a total of seventeen witnesses to establish its case against the appellant and his co-accused. Dr. Khurram Shahzad (PW.2) conducted the postmortem examination of the deceased, Muhammad Ashraf, and prepared the postmortem report (Exh.PA). He also performed the medico-legal examinations of the injured, Muhammad Asif and Atta Muhammad, while issuing their respective medical legal certificates (Exh.PD & Exh.PJ). The complainant, Muhammad Yousaf (PW.10), and Ashiq Mustafa (PW.11) provided the ocular account of the incident. The investigation was carried out by Muhammad Nawaz SI (PW.16) and Rafi Ullah SI (PW.17). The remaining witnesses primarily played formal roles, assisting the investigation process in accordance with legal procedure.
6. After the prosecution concluded its evidence, Ameer Afzal (appellant) was examined under Section 342, Cr.P.C., during which he was questioned on material arising from the prosecution’s case. He denied nearly all the allegations, maintaining his innocence and asserting that he was falsely implicated. The appellant chose not to make a statement under Section 340(2), Cr.P.C., but he produced Muhammad Hanif (DW.1) as a witness in his defence. Upon the conclusion of the trial, the appellant was convicted and sentenced as stated above, hence the present criminal appeal.
7. Arguments heard. Record perused.
8. From a careful examination of the record, it emerges that the case before the Court stems from an incident that occurred on 15.09.2015, at about 3:00 p.m., at Sandral Morr, which is situated at a distance of two kilometers from Police Station, Khushab. During the incident the appellant, Ameer Afzal, along with Muhammad Afzal (since acquitted) and another unknown accused later identified as Sher Hussain (also acquitted), were reportedly armed with .30 bore pistols. At the time of the incident, while raising Lalkara, Muhammad Afzal fired a shot that hit Muhammad Ashraf at his right eye. Shortly thereafter, a second shot fired by Ameer Afzal hit Muhammad Ashraf on his left cheek. Following these shots, the accused allegedly discharged their pistols indiscriminately, causing multiple injuries to Muhammad Ashraf on various parts of his body. It is further alleged that Muhammad Asif and Atta Muhammad also sustained firearm injuries during the same incident. The legal process related to this incident was initiated on the basis of an oral statement/Fard Bian (Exh.PV), made by Muhammad Yousaf (PW.10) before Rafi Ullah SI (PW.17) at the crime scene at about 4:30 p.m. This statement was then communicated to the police station through a constable named Riaz 106/C for the registration of an FIR. Consequently, the FIR was officially recorded at 4:45 p.m. While the prosecution asserts that the information about the incident was promptly conveyed to the police without any undue delay, the defence challenges this claim, arguing that the FIR was actually registered belatedly. The defence further contends that the police attempted to conceal this delay by manipulating the Station Diary to give the appearance of a timely registration. In order to resolve this discrepancy, a thorough review of the record was conducted, which reveals that the contention of the defence holds considerable force. Firstly, it is notable that although the incident occurred at approximately 3:00 p.m., the inquest report (Exh.PB) indicates that the police was informed at the same time i.e. 3:00 p.m. This raises a serious question about the subsequent delay of one hour and thirty minutes before the complainant’s statement was documented, especially given the close proximity of the police station, which was only two kilometers away from the scene of the occurrence. Such a delay strongly suggests the possibility of foul play. Secondly, the record shows that two individuals, namely Muhammad Asif and Atta Muhammad were injured during the incident and, following medical examination, Dr. Khurram Shahzad (PW.2) issued their MLCs (Exh.PD and Exh.PJ). The MLCs indicate that both injured persons were brought to the hospital by a police official, Umar Yaqoob 446/C, at around 4:30 p.m. Furthermore, in his testimony, Rafi Ullah SI (PW.17) stated that after preparing the inquest report and injury statement of Muhammad Ashraf (deceased), he sent the body for autopsy at the hospital. He also mentioned that the injury statements of Muhammad Asif and Atta Muhammad were prepared at the Civil Hospital Khushab. This raises an important issue that if the injured were already in police custody and the police was aware of the incident, it remains unclear why the injury statements were not prepared immediately at the crime scene rather than at the hospital, thereby further indicating a delay in recording the incident. Thirdly, the inquest report of Muhammad Ashraf (Exh.PB) reveals that his dead body was identified by Muhammad Ameer (given up PW) and Muhammad Aslam (PW.5). This fact contradicts the prosecution’s claim, based on Muhammad Yousaf’s statement (PW.10), that the formal FIR was registered immediately upon his statement at the spot because the evidence clearly suggests otherwise. Taking into account all these facts, it becomes abundantly clear that the FIR was not registered at the time claimed by the prosecution, instead, it appears that the police deliberately delayed the registration and later manipulated Registers Nos. 1 and 2, commonly known as the First Information Report Register and Station Diary to create the false impression of a prompt FIR registration. This casts serious doubt on the credibility of the prosecution’s timeline and raises concerns about possible delinquency during the initial stages of the investigation. Lastly and most importantly, it has come to light that the complaint/Fard Biyan (Exh.PV) was prepared at the scene of the incident. This document was then sent to the concerned Police Station for the formal registration of the FIR through Muhammad Riaz 106/C. Given his role in this crucial chain of events, Muhammad Riaz was a key witness whose testimony could have directly corroborated the promptness and authenticity of the FIR registration process. However, the prosecution neither listed Muhammad Riaz as a witness nor made any effort to summon him to testify in Court. In such circumstances, the omission of such a vital witness casts doubt on the prosecution’s narrative regarding the timely and proper registration of the FIR. It would be unreasonable and unjustified for the Court to accept the prosecution’s claim about the timing and procedure of FIR registration without questioning the deliberate withholding of an important witness who could have substantiated that very claim. In this regard, the Supreme Court of Pakistan has already addressed a similar issue in the landmark judgment reported as Minhaj Khan v. The State (2019 SCMR 326) emphasizing that failure to produce the police constable who carried the written complaint to the police station undermines the prosecution’s case with the following observation:
“……… the non-production of Constable Jehanzeb Khan who took the written complaint and was an eye-witness of the occurrence and of the recovery memorandums; and the inexplicable conduct of the Complainant PW-2 in not proceeding to the police station himself to register the FIR are matters of concern and collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable doubt, or, at worst, that the petitioner was involved in a false case for ulterior reasons.”
From the factual narration provided above, it becomes absolutely clear that the FIR was not registered at the time asserted by the prosecution. On the contrary, the record suggests that the FIR was registered after an unjustified delay and only once the routine documentation processes specifically, Register Nos. 1 & 2, commonly known as the FIR Register and Station Diary had been deliberately kept on hold. This deliberate delay and manipulation of standard police procedure not only casts serious doubt on the prosecution’s version of events but also undermines the element of promptness and spontaneity that is typically associated with the lodging of a genuine FIR. The halting of these registers implies that the FIR may have been recorded retrospectively, possibly after deliberation or consultation, which compromises its credibility and raises the possibility of afterthought or fabrication. In criminal jurisprudence, such procedural irregularities strike at the root of the prosecution’s case, especially where the timing and sequence of events are critical to the truth of the matter in issue.
9. Once it has been established that the FIR was not registered at the time claimed by the prosecution, it becomes the Court’s duty to scrutinize the remaining evidence against the appellant with great caution. This is particularly necessary in light of the fact that two co-accused, who were also implicated in the FIR and were specifically alleged to have caused firearm injuries to the deceased, were acquitted by the learned trial Court not challenged by the complainant and notably, on the very same set of evidence later relied upon against the present appellant. In the peculiar circumstances of this case, it is also significant to observe that during the occurrence, two bystanders Muhammad Asif and Atta Muhammad reportedly sustained firearm injuries. These injuries were duly confirmed through medical examination. However, despite being victims themselves, both individuals chose not to participate in the investigative process nor did they appear during trial proceedings. Consequently, the appellant was never held accountable for the injuries inflicted upon them. This non-cooperation from the injured bystanders weakens the prosecution’s narrative and raises questions about the credibility of the alleged facts. Moreover, the incident was said to have been witnessed by three individuals, namely, Muhammad Yousaf (PW.10), Ashiq Mustafa (PW.11), and Fateh Muhammad (PW.12). Out of them, the first two witnesses who were closely related to the deceased as his father and brother, respectively gave statements in support of the prosecution’s version. However, the third witness, Fateh Muhammad, although produced by the prosecution as an eye-witness, did not corroborate their case. Instead, he retracted from the prosecution narrative and was consequently declared hostile. In this context, a crucial legal question arises: Can the conviction of the appellant be sustained solely on the basis of the testimonies of two related prosecution witnesses, when an independent witness who was expected to lend objective support declined to endorse the prosecution’s story? This issue assumes paramount importance, particularly when the overall evidence is not free from material discrepancies and the benefit of doubt has already led to the acquittal of co-accused on identical grounds.
In order to address the critical question raised above, I have first carefully examined the statements of Muhammad Yousaf (PW.10) and Ashiq Mustafa (PW.11). Upon close scrutiny, I find that their evidence does not meet the high standard of reliability and credibility required to uphold a conviction, especially one carrying the ultimate punishment. Focusing initially on Muhammad Yousaf (PW.10), it is significant to note that at the time of recording his testimony, he was around 85/86 years of age. Although he appeared to support the prosecution’s case and reiterated the stance he had taken earlier before the Investigating Officers, namely Muhammad Nawaz SI (PW.16) and Rafi Ullah SI (PW.17), yet certain critical admissions made during his cross-examination cast serious doubt on the reliability of his account. Most notably, Muhammad Yousaf (PW.10) candidly acknowledged that his eyesight and hearing had substantially deteriorated over the preceding 5 to 6 years. This admission is crucial because it suggests that even at the time of the incident which occurred more than three years and six months before his testimony was recorded he was already suffering from significant sensory limitations. Such physical impairments would have materially affected his ability to observe the incident clearly, let alone accurately assign specific roles to each of the accused. Furthermore, during his cross-examination, the complainant admitted that although the police had recorded his statement, he was unaware of the contents of what was actually documented by the Investigating Officer. This lack of awareness further weakens the evidentiary value of his statement, as it creates a disconnection between what was allegedly narrated and what was formally recorded in the course of the investigation. Given the importance of this aspect, the relevant portion of cross-examination of Muhammad Yousaf (PW.10) is mentioned hereunder:
“The police recorded my statement Ex.PV, however, I do not know what was written by IO.”
From the foregoing discussion, a strong inference can be drawn that the complaint (Exh.PV) may not have been prepared strictly on the basis of the explicit statement of the complainant, Muhammad Yousaf (PW.10), rather, it appears plausible that the complaint was drafted by the police official himself, who attributed its contents to the complainant, thereby creating an impression that it reflected the complainant’s own narrative. Further examination of the record reveals another significant aspect that during the course of investigation, the accused Muhammad Afzal (since acquitted) was not found responsible for causing injuries to any individual. This important fact was also acknowledged by the Investigating Officer, Rafi Ullah SI (PW.17), during his cross-examination, wherein he candidly admitted as follows:
“As per my investigation, neither Muhammad Afzal was armed with any weapon or he made any fire upon the deceased or any injured.”
It is, however, observed with concern that the aforementioned finding of Rafi Ullah SI (PW.17) that Muhammad Afzal (since acquitted) was not found involved in causing injuries to anyone during the investigation, was never challenged by the complainant, Muhammad Yousaf (PW.10), at any stage or forum. This unexplained silence on the part of Muhammad Yousaf strongly suggests that he had not actually witnessed the occurrence himself and was unaware of the true assailants. His lack of contestation shows an implied acceptance of the outcome of investigation, likely stemming from his own uncertainty regarding the identity of the actual culprits. Turning to the testimony of Ashiq Mustafa (PW.11), it is important to highlight that at the time of the incident, he was admittedly a student of Class-III at Government Primary School Bachran Wala. Although during his cross-examination he claimed to be 14½ years old, this assertion appears to be exaggerated, especially when considered in light of the school grade he was attending. His educational level at the time casts doubt on the accuracy of his stated age and, by extension, the reliability of his testimony as a witness of sufficient maturity. Furthermore, Ashiq Mustafa (PW.11) during cross-examination admitted that the appellant, Ameer Afzal, was residing in Karachi at the time of the incident. This admission has significant bearing on the defence’s claim of false implication, and the relevant portion of his testimony in this regard reads as follows:
“Ameer Afzal accused was residing at Karachi in connection with his labour during the days of occurrence.”
In view of the admission of Ashiq Mustafa (PW.11) discussed above, the prosecution’s claim that the occurrence was committed by the appellant, Ameer Afzal, loses its footing. Additionally, the credibility of both alleged eye-witnesses, who claimed to have witnessed the incident, is seriously undermined upon examination of the inquest report (Exh.PB), prepared by Rafi Ullah SI (PW.17). As previously noted, the inquest report (Exh.PB) clearly states that the dead body of Muhammad Ashraf (deceased) was identified not by the alleged eye-witnesses, but by Muhammad Ameer (given up PW) and Muhammad Aslam (PW.5). This omission raises a serious and fundamental question that if Muhammad Yousaf (PW.10) and Ashiq Mustafa (PW.11) had truly been present at the scene of the crime, as they claim, it is only natural and expected that they would have identified the deceased at the time of the preparation of the inquest report. Their failure to do so casts a long shadow of doubt over their presence at the scene and consequently over the prosecution’s entire narrative. This glaring inconsistency significantly weakens the prosecution’s case and supports the inference that the eye-witnesses may have been introduced later or were not truthful in their account. In this regard, valuable guidance can be sought from the judgment of the Supreme Court of Pakistan in the case of Iftikhar Hussain alias Kharoo v. The State (2024 SCMR 1449), wherein the Court observed as follows:
“This fact also finds corroboration from the fact that perusal of postmortem report and inquest report reveal that dead body was brought to hospital at 11:00 PM by the Police and was identified by the Yasir Abbas and Ali Raza (PW.14). Thus, eye-witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. In absence of physical proof qua presence of the witnesses at the crime scene, the same cannot be relied upon.”
It has further come to my attention that during the course of the incident, two individuals Asif and Atta Muhammad also sustained injuries, and their MLCs were duly prepared by Dr. Khurram Shehzad (PW.2). However, it is an admitted fact that despite being injured eye-witnesses, neither of these individuals participated in the investigation nor appeared before the trial Court to support the prosecution’s version of events. This crucial omission was candidly acknowledged by the complainant Muhammad Yousaf (PW.10) with the following admission:
“The witnesses namely Asif and Atta Muhammad refused to depose before the Court.”
Whereas, the other alleged eye-witness Ashiq Mustafa (PW.11) during his cross-examination deposed as follows:
“It is correct that Asif and Atta Muhammad PWs do not support our version ……. They never joined the investigation before police in this case.”
Similarly, the Investigating Officer, Muhammad Nawaz SI (PW.16), during his cross-examination, admitted that although Muhammad Asif, Atta Muhammad, and Fateh Muhammad were named in the FIR as eye-witnesses of the occurrence, none of them participated in the investigation nor were they formally summoned for that purpose. Recognizing the significance of this point, the relevant excerpt from the cross-examination of Muhammad Nawaz SI (PW.16) is reproduced below:
“It is correct that according to the facts narrated in the FIR, Muhammad Asif, Atta Muhammad (injured witnesses) and Fateh Muhammad were mentioned as eye-witnesses of the case. It is correct that during the course of my investigation, neither the above mentioned witnesses joined the investigation of this case nor I summoned them to join into investigation. I did not arrange any confrontal meeting of above said witnesses with the accused persons.”
From the foregoing, it can reasonably be inferred that if the aforementioned witnesses had appeared during the investigation, they likely would not have supported the prosecution’s case.
Another aspect of the prosecution’s case relates to the deposition of Fateh Muhammad (PW.12), who allegedly witnessed the occurrence. He appeared before the Court and, during his examination-in-chief, stated that the crime was committed by two unknown individuals whose faces were covered. For ease of reference, the exact testimony given by Fateh Muhammad (PW.12) is reproduced below verbatim:
“On 15.9.2015 I along with Muhammad Ashraf had come to Mandi Mawaishian Khusab to sale the goats. After selling my goats, I was present at a tall of fodder. On the same day, at about 2:30/3:00 p.m., I was present at Sandral Morr. In the meantime, two unknown persons muffled faces came there and made firing, which hit to Muhammad Ashraf (deceased) and two other persons were also injured. At this the witness does not recognize the accused persons present in the Court as the same are those persons who made firing.”
During cross-examination, Fateh Muhammad (PW.12) also acknowledged that he had been friend of the deceased, Muhammad Ashraf, for approximately 10 to 15 years prior to the incident, and that they were engaged together in the business of buying and selling goats. He further admitted that he did not know whether Muhammad Yousaf (PW.10) and Ashiq Mustafa (PW.11) were present at the scene of the occurrence, as he himself did not see them there. In light of these admissions, the statement of Fateh Muhammad (PW.12) serves as the final blow to the prosecution’s claim regarding eye-witnesses who allegedly witnessed the incident. When considered alongside the other inconsistencies and contradictions, the totality of the evidence strongly suggests that the incident was, in fact, an unseen occurrence. It appears that the prosecution has attempted to implicate the appellant by presenting fabricated or planted eye-witnesses. This conclusion is further reinforced by the fact that, according to the FIR (Exh.PO) and the statements of complainant Muhammad Yousaf (PW.10) and Ashiq Mustafa (PW.11), the injured individuals, Asif and Atta Muhammad, were transported to the hospital by Rescue-1122. However, neither the ambulance driver nor any official from Rescue-1122 was produced as a witness during the trial. Moreover, no documentary evidence or record from Rescue-1122 was submitted to substantiate this claim. When questioned during cross-examination, both the related eye-witnesses failed to adequately explain this glaring omission or provide any response that might inspire confidence in the prosecution’s case. This material lapse significantly undermines the prosecution’s version. In this regard, reliance is placed upon the case reported as Qadir Bakhsh and another v. State and another [PLJ 2003 Cr.C. (Quetta) 157 (DB)], wherein a learned Division Bench of the Quetta High Court acquitted the accused on the ground that the person who brought the deceased to the hospital was not produced during the trial, observing as follows:
“It had come on record that Abdul Sattar who took the deceased in Suzuki Pick Up informed the complainant about the said incident; Abdul Sattar is a very material and important witness but he has not been examined which further creates a dent in the prosecution case and presumption would be that had he appeared, he would not have supported the prosecution version.”
10. A careful examination of the medical evidence brought on record by Dr. Khurram Shahzad (PW.2) reveals that Muhammad Ashraf (deceased) sustained seventeen injuries in total, nine of which were firearm entry wounds. This significant number of injuries, on the one hand, undermines the prosecution’s case, and on the other, does not align with the alleged number of assailants involved. As noted earlier, the appellant, Ameer Afzal, was alleged to have caused only a single firearm injury to the deceased. Given that the prosecution’s case has been disbelieved in respect of two co-accused who were purportedly responsible for causing significant injuries, and considering the reasonable doubts highlighted earlier regarding the appellant’s guilt, it would be unsafe to uphold the conviction of the appellant solely based on the medical evidence. It is a well-established principle of law that medical evidence serves primarily as corroborative evidence. It can confirm aspects such as the nature, number, and location of injuries, the type of weapon used, and the time elapsed between death and postmortem examination. However, medical evidence, by its nature, does not identify the perpetrator of the crime. Reference is made to the cases reported as Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53) and Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103). The relevant extract from the former cited case is being reproduced hereunder:
“It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.”
11. In an effort to find further corroboration, I have also examined the aspect of motive as presented in the prosecution’s case. It was consistently maintained at the time of registration of the FIR (Exh.PO) and throughout the trial that the alleged motive stemmed from a prior incident in 2012, wherein Muhammad Azam, the real brother of Muhammad Afzal, was murdered. It was further asserted that Muhammad Yousaf, the complainant, along with Muhammad Ashraf, the deceased, and others were formally challaned in connection with the murder of Muhammad Azam. However, a frank admission of the fact was made by the complainant, Muhammad Yousaf (PW.10) during cross-examination which for the sake of clarity is reproduced as under:
“It is correct that Muhammad Afzal and Ameer Afzal accused persons were neither the complainant nor the witnesses in motive case.”
This admission by the complainant carries significant weight, as it raises substantial doubt in the version of prosecution regarding the alleged motive. Consequently, the motive set forth in the FIR remains unestablished. It is a well-settled principle that when the prosecution puts forth a specific motive and fails to substantiate it, the case of the prosecution is thereby weakened. Reliance is placed upon the case reported as Sarfraz and another v. The State (2023 SCMR 670) wherein the Supreme Court of Pakistan held as under:
“It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the same would go in favour of the accused.”
12. A further examination of the record reveals that on 26.10.2017, following his arrest, Ameer Afzal (appellant) got a pistol of .30 bore (P.5) recovered from his possession, which was taken into possession through memo. Exh.PZ. In addition, on the day of the incident, Rafi Ullah SI, the Investigating Officer (PW.17), visited the crime scene and seized one empty cartridge of a .30 bore pistol along
with three empty cartridges of a 9-mm pistol, through memos Exh.PGG & Exh.PHH respectively. However, according to the PFSA report (Exh.PLL), due to distinct individual characteristics, the cartridge labeled C1 could not have been discharged from the pistol marked P1. Consequently, the recovery of the .30 bore pistol at the instance of the appellant holds no substantive value and does not strengthen the prosecution’s case.
13. In light of the foregoing discussion, it is evident that the prosecution has failed to discharge its burden of proving the case against the appellant beyond a reasonable doubt. It is a well-settled principle that any doubt or deficiency in the prosecution’s evidence cannot be overlooked or disregarded merely because of the seriousness of the charge. The established legal principles dictate that every reasonable doubt must be resolved in favour of the accused, which in practical terms translates into a verdict of acquittal. Consequently, the instant criminal appeal is hereby allowed. The conviction and sentence awarded to Ameer Afzal (appellant) are set aside, and he is acquitted of the charge. The appellant is presently on bail, his bail bonds and sureties are accordingly discharged.
(A.A.K.) Appeal allowed
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