PLJ 2026 Cr.C. 255
[Lahore High Court, Lahore]
Present: Abher Gul Khan, J.
versus
STATE and others--Respondents
Crl. A. Nos. 67701-J, 67702-J of 2020 & Crl. Rev. No. 2533 of 2021, decided on 28.1.2026.
Pakistan Penal Code, 1860 (XLV of 1860)--
- - چیلنج کریں - - طبی ثبوت آکولر اکاؤنٹ سے متصادم - - یہ طبی فقہ کا ایک اچھی طرح سے طے شدہ اصول ہے کہ جب ایک شاٹ سے گولی چلائی جاتی ہے ۔ تین فٹ سے کم فاصلے سے 30 بور یا. 9 ملی میٹر پستول ، داخلے کے زخم میں عام طور پر سیاہ ہونا ظاہر ہوتا ہے - - مبینہ طور پر فائرنگ کم از کم چھ فٹ کے فاصلے سے کی گئی ہے - - ڈاکٹر PW.7 کی طرف سے مشاہدہ کے طور پر ، مذکورہ زخموں کے ارد گرد سیاہ ہونے کی موجودگی ، پراسیکیوشن ورژن کے ساتھ متضاد ہے - استغاثہ نے واقعہ سے تین دن قبل متوفی اور اپیل گزاروں کے درمیان جھگڑے کا الزام لگایا ، جس کے دوران متوفی نے مبینہ طور پر ان کے خلاف گالی گلوچ کا استعمال کیا - - اگرچہ دونوں چشم دید گواہوں نے مبینہ محرک کے بارے میں گواہی دی لیکن اس کے باوجود تاریخ ، وقت یا جگہ کی وضاحت نہیں کی جہاں محرک کا واقعہ پیش آیا - - کراس امتحان کے دوران شکایت کنندہ (PW.8) نے کہا کہ مبینہ مقصد کے واقعے کے وقت ، متوفی اکیلا تھا ، جبکہ ملزم پارٹی دو افراد پر مشتمل تھی - - ریکارڈ سے یہ بھی ثابت نہیں ہوا ہے کہ شکایت کنندہ اور دیگر مبینہ چشم دید گواہوں کو مبینہ مقصد کے واقعے کے بارے میں کیسے پتہ چلا - - ان حالات میں ، استغاثہ اپیل گزاروں کے خلاف واقعہ کا مقصد قائم کرنے میں بھی ناکام رہا ہے - استغاثہ اپیل گزاروں کے خلاف مقدمہ ثابت کرنے کے اپنے بوجھ کو شک کے ذرا بھی سائے سے بالاتر کرنے میں ناکام رہا ہے ۔ - شواہد کی تعریف کو کنٹرول کرنے والے اچھی طرح سے طے شدہ اصولوں کے مطابق ، ہر معقول شک کا فائدہ ہمیشہ ملزم کو دیا جانا چاہیے - موجودہ معاملے میں ، اس طرح کا شک واضح طور پر موجود ہے اور اپیل گزاروں کو بری کرنے کا حق دیتا ہے-مجرمانہ اپیلوں کی اجازت ہے ۔
----S. 302(b)--Medical evidence--Qatl-e-amd--Conviction and sentence--Challenge to--Medical evidence contradiction to ocular account--It is a well-settled principle of medical jurisprudence that when a shot is fired from a .30 bore or .9 mm pistol from a distance of less than three feet, entry wound ordinarily exhibits blackening--Firing is alleged to have been made from a distance of not less than six feet--Presence of blackening around aforesaid injuries, as observed by Dr. PW.7, is inconsistent with prosecution version--Prosecution alleged a quarrel between deceased, and appellants three days prior to occurrence, during which deceased allegedly used abusive language against them--Although both eye-witnesses deposed about alleged motive but nonetheless did not specify date, time, or place where motive incident occurred--During cross-examination complainant (PW.8) stated that at time of alleged motive incident, deceased was alone, whereas accused party comprised of two persons--It is also not borne out from record as to how complainant and other purported eye-witness came to know about alleged motive incident--In these circumstances, prosecution has also failed to establish motive for occurrence against appellants--Prosecution has failed to discharge its burden of proving case against appellants beyond even slightest shadow of doubt--In accordance with well-settled principles governing appreciation of evidence, benefit of every reasonable doubt must invariably be extended to accused--In present case, such doubt clearly exists and entitles appellants to an acquittal--Criminal Appeals are allowed.
[Pp. 263 & 265] A, B & C
2014 SCMR 749
M/s. Rai Bashir Ahmad and Saika Javed, Advocates assisted by Syed Hassan Mehdi Rizvi, Advocate appointed at State expenses.
Mian Ijaz Yousaf, Advocate for Complainant.
Ms. Sadia Arif, Deputy District Public Prosecutor for State.
Date of hearing: 28.1.2026.
Judgment
The appellants, Muhammad Irfan son of Shameer, Muhammad Farhan, Muhammad Irfan son of Zafar Iqbal, and Sajid Hussain, who were involved in case FIR No. 108/2018 dated 15.03.2018 registered under Sections 302 & 34, PPC at Police Station City Jauharabad, were tried by the learned Additional Sessions Judge, Khushab. The trial Court vide its judgment dated 12.11.2020, convicted and sentenced the appellants as follows:
Under Section 302(b) read with Section 34, PPC to suffer imprisonment for life for committing qatl-i-amd of Muhammad Shehzad as ta’zir. They were further directed to pay Rs. 400,000/-each as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C., in default whereof to further undergo six months’ simple imprisonment each and the compensation amount was also ordered to be recoverable as arrears of land revenue. Benefit of Section 382-B, Cr.P.C. was, however, extended to the appellants.
Challenging their conviction and sentence, the appellants Muhammad Irfan son of Shameer, Muhammad Farhan, Muhammad Irfan son of Zafar Iqbal and Sajid Hussain filed Criminal Appeal No. 67701-J of 2020, while the appellant Muhammad Irfan son of Zafar Iqbal filed Criminal Appeal No. 67702-J of 2020. Similarly, the complainant, Maalik Dad filed Criminal Revision No. 2533 of 2021 seeking enhancement of the sentence awarded to Muhammad Irfan son of Shameer, Muhammad Farhan, Muhammad Irfan son of Zafar Iqbal and Muhammad Irfan son of Zafar Iqbal (respondents No. 1 to 3). All these matters are being adjudicated through this consolidated judgment.
2. The prosecution case, as stated by the complainant Maalik Dad (PW.8), is that he is a resident of Sarfraz Colony, Jauharabad. On 15.03.2018, at about 9:30 a.m., his nephew Muhammad Shehzad aged about 23/24 years came to the barber shop of Zamin Abbas situated in the market of his brother Haji Ahmad Iqbal, for shaving. At that time, the complainant along with Zulqarnain (PW.9) and Muhammad Riaz (given up PW) was sitting on a bench outside the barber shop. After shaving, Muhammad Shehzad sent the barber to bring tea from a nearby hotel and remained seated inside the shop. Meanwhile the accused Muhammad Irfan son of Shameer armed with a .9-mm pistol, Muhammad Farhan son of Shameer armed with a .30-bore pistol, Muhammad Irfan son of Zafar Iqbal armed with a .9-mm pistol and Muhammad Sajid armed with a .30-bore pistol arrived at the spot while raising lalkara. The shutter of the barber shop was open. Muhammad Irfan son of Shameer fired a shot at Muhammad Shehzad, hitting him on the front of his abdomen. Muhammad Farhan fired a shot which struck him on his testicles. When Muhammad Shehzad turned around, Muhammad Irfan son of Zafar Iqbal fired shot hitting him in the middle of his back, followed by Muhammad Sajid, who also fired shot which hit at his back. Thereafter, all the accused made successive fires with their respective weapons, causing injuries to Muhammad Shehzad at his left wrist, right buttock, back, left shoulder, right thigh, and its outer side. As a result, Muhammad Shehzad fell to the ground, while the accused fled away towards the western side while continuing firing. The complainant and the other witnesses saw the occurrence but could not intervene due to fear. Muhammad Shehzad was shifted in an injured condition to DHQ Hospital, Jauharabad in a private vehicle but he succumbed to his injuries while being taken to the hospital. The motive behind the occurrence was an altercation that had taken place three days earlier between Muhammad Shehzad and the accused, during which he allegedly abused them, and due to said grudge the accused in furtherance of their common intention committed his murder.
3. On 15.03.2018 Abdul Jabbar SI (PW.11) upon receipt of information regarding the incident reached DHQ Hospital, Jauharabad and recorded the statement of Maalik Dad (Exh.PL) which was handed over to Muhammad Akhtar 527/C for taking the same to the police station for registration of the formal FIR. He examined the dead body, prepared the injury statement (Exh.PJ), the inquest report (Exh.PK) and also took into possession a currency note of Rs. 50/-(P.13) and a metallic kara (P.14) through memo. Exh.PM. Thereafter, he visited the place of occurrence and collected blood samples through cotton swabs vide memo. Exh.PN. He also secured the barber’s chair containing firing marks (P.15) through memo. Exh.PO. From the spot, he recovered eight crime empties of a .9 mm pistol (P.16/1-8) and five crime empties of a .30 bore pistol (P.17/1-5) through memo. Exh.PP. The accused Muhammad Irfan son of Muhammad Shameer and Muhammad Farhan were arrested on 05.04.2018, while the accused Sajid Hussain and Muhammad Irfan son of Zafar Iqbal were arrested on 23.04.2018 and 04.05.2018, respectively. During the investigation, the accused Muhammad Irfan son of Muhammad Shameer, Muhammad Farhan, Sajid Hussain, and Muhammad Irfan son of Zafar Iqbal made separate disclosures, which led to the recovery of a .9 mm pistol (P.3) with two live bullets (P.4/1-2), a .30 bore pistol (P.5) with live bullets (P.6/1-3), another .30 bore pistol (P.7) with three live bullets (P.8/1–3), and a .9 mm pistol (P.9) with two live bullets (P.10/1–2) through memos. Exh.PC, Exh.PD, Exh.PE and Exh.PF respectively. After recording the statements of the relevant witnesses and complying with all codal formalities he submitted the report under Section 173, Cr.P.C.
4. The prosecution in order to substantiate its case against the appellants examined a total of eleven witnesses. Among them, Dr. Hassan Saqib (PW.7) conducted the post-mortem examination of the deceased, Muhammad Shahzad on 15.03.2018 at 12:45 p.m. and issued the post-mortem report (Exh.PH). The complainant Maalik Dad (PW.8) and Zulqarnain (PW.9) testified as eye-witnesses of the incident. Abdul Jabbar Sub-Inspector (PW.11), conducted the investigation of the case. After the prosecution closed its evidence, the trial Court recorded the statements of the appellants under Section 342, Cr.P.C., putting to them all incriminating material appearing on record. The appellants denied the allegations, pleaded innocence and claimed false implication. They neither opted to make a statement under Section 340(2), Cr.P.C. nor produced any defence evidence. Upon conclusion of the trial, the trial Court convicted and sentenced the appellants, hence the present criminal appeals and criminal revision.
5. Arguments heard. Record perused.
6. It is discernible from the perusal of the record that the present case arises out of an incident which occurred on 15.03.2018 at about 9:30 a.m. in an area known as Market Sarfraz Colony, Jauharabad, located about three kilometers from Police Station City Jauharabad. According to the prosecution, the appellants Muhammad Irfan son of Muhammad Shameer, Muhammad Farhan, Muhammad Irfan son of Zafar Iqbal, and Muhammad Sajid allegedly arrived at the spot while armed with firearms and fired shots with the sole intention of causing the death of the deceased, Muhammad Shahzad, who sustained multiple pistol shot injuries and succumbed to them upon reaching Civil Hospital, Jauharabad. The record further reveals that information about the crime was reported to the police by the complainant, Maalik Dad (PW.8) through an oral statement recorded before Abdul Jabbar, SI (PW.11) at THQ Hospital, Jauharabad, at 11:10 a.m. On this basis, the learned DDPP and counsel for the complainant argued that the matter was reported to the police within one hour and forty minutes of the incident and therefore the FIR was registered promptly. However, upon careful scrutiny of the record, I am of the view that this argument carries no weight. It is noteworthy that according to the prosecution both purported eye-witnesses Maalik Dad (PW.8) and Zulqarnain (PW.9) were allegedly present with the deceased Muhammad Shahzad when the appellants arrived and opened fires. Admittedly, the complainant Maalik Dad (PW.8) was in possession of his mobile phone (0307-4864663) at the time of the occurrence, as reflected in Column No. 2 of the FIR. This is a material fact because, according to the complainant, the information regarding the occurrence was conveyed to the police by Muhammad Ameer Azam (PW.1) who was not an eye-witness of the incident. In this context, it is considered appropriate to reproduce a relevant portion of the cross-examination of the complainant Maalik Dad (PW.8) as follows:
“Matter was reported to police through phone by uncle of deceased namely Ameer Azam. Said Ameer Azam was not present at the place of occurrence on relevant time. The cell number 0307-4864663 as mentioned in crime report was with me at time of instant occurrence.”
Although the complainant stated that the aforesaid Ameer Azam was not an eye-witness of the incident yet the inquest report (Exh.PK) shows that the dead body of the deceased Muhammad Shehzad was identified by him (Ameer Azam PW.1) and Haji Muhammad Yaqoob (given up PW) at DHQ Hospital, Jauharabad. Upon perusal of the statement of Muhammad Ameer Azam (PW.1), it is observed that he came to know about the occurrence on 15.03.2018 at 9:45 a.m. from the complainant, meaning thereby that the complainant informed him within approximately fifteen minutes of the incident. However, the complainant himself did not immediately make contact with police through any possible mean. Furthermore, it is difficult to accept that both eye-witnesses were allegedly present at the hospital with the deceased, yet did not witness the identification of the dead body. All these facts collectively lead this Court to a single conclusion that the FIR was not registered in the manner portrayed by the prosecution.
7. In the light of the above, I have carefully examined the statements of both eye-witnesses, namely Maalik Dad (PW.8) and Zulqarnain (PW.9). Regarding Maalik Dad (PW.8), it is noted that he is the maternal uncle of the deceased Muhammad Shahzad, claims to be a resident of Sarfraz Colony, Jauharabad and is a cultivator by profession. In his examination-in-chief, Maalik Dad (PW.8) stated that on 15.03.2018, the deceased Muhammad Shahzad went to the barber shop of Zamin Abbas, located in the market of his brother Haji Ahmad Iqbal, for shaving. He further deposed that he along with Zulqarnain (PW.9) and Muhammad Riaz (given up PW), was sitting on a bench outside the said barber shop and when the deceased sent the barber Zamin Abbas to fetch tea at around 9:30 a.m., the appellants, armed with firearms, arrived at the spot and fired upon the deceased, who subsequently succumbed to his injuries while being transported to the hospital. In these circumstances, both eye-witnesses appear to be chance witnesses, as they have not provided any plausible explanation for their presence at the crime scene. It is a well-established principle that a witness who by reason of residence or occupation, would not ordinarily be expected to be at the place of occurrence but claims to have been there by chance, must be treated with caution. The testimony of such a witness cannot be accepted unless a satisfactory and convincing explanation is offered for his presence at or near the scene at the relevant time. Applying this principle, I have examined the statements of both eye-witnesses with careful scrutiny. In this context, it is considered appropriate to reproduce a relevant portion of the cross-examination of Maalik Dad (PW.8) as follows:
“I did not mention any specific reason for my presence outside the barber shop sitting on a bench ……”
Likewise, during cross-examination, the complainant Maalik Dad (PW.8) admitted that Zulqarnain (PW.9) and Muhammad Riaz (given up PW) were residents of Awan Town and Bhoola Village, respectively. He further acknowledged that no reason was disclosed for their presence alongside him at the relevant time. In this context, the relevant portion of the cross-examination of Maalik Dad (PW.8), for ease of reference, is reproduced below:-
“Zulqairnan PW is the resident of Awan Town whereas Muhammad Riaz PW is the resident of Bhoola village. I have not get recorded the specific reasons of presence of both above witnesses with me at the time of occurrence.”
Similarly, the other purported eye-witness, Zulqarnain (PW.9), although while appearing before the trial Court deposed in line with the testimony of the complainant Maalik Dad (PW.8), yet he was admittedly a resident of Awan Town No. 1, Jauharabad which is situated at a distance of about one kilometer from the place of occurrence. In this context, the relevant portion of the cross-examination of Zulqarnain (PW.9) is reproduced hereunder:-
“I am resident of Awan Town. Crime venue of instant occurrence situates at far distance from my place of occurrence. Again said its about one kilometer.”
Furthermore, the presence of Zulqarnain (PW.9) at the spot becomes doubtful from his own statement because according to the prosecution, the occurrence took place on 15.03.2018 at about 9:30 a.m. However, during his cross-examination, Zulqarnain (PW.9) admitted that he joined the investigation before the Investigating Officer on 15.03.2018 at about 9:30 a.m. at Sarfraz Colony, and that at that time Maalik Dad (PW.8) and Muhammad Riaz (given up PW) were present with him. When this statement is examined in the context of the deposition of Abdul Jabbar, SI (PW.11), who categorically stated that upon receipt of information regarding the incident, he reached DHQ Hospital, Jauharabad, at about 10:30 a.m. and recorded the oral statement (Exh. PL) of the complainant, Maalik Dad (PW.8), at about 11:10 a.m. on the same day, the version put forth by Zulqarnain (PW.9) does not inspire confidence and appears to be unreliable. In these circumstances, I am not reluctant in holding that both the eye-witnesses failed to prove their presence at the spot.
8. This Court has noticed that the alleged occurrence took place in the barber shop of one Zamin Abbas. The Investigating Officer, Abdul Jabbar, SI (PW.11), in his examination-in-chief, stated that he took into possession the barber’s chair (P-15) vide memo Exh. PO. In these circumstances, the said Zamin Abbas was a material and important witness. However, he was neither associated during the course of investigation nor produced during the trial. Furthermore, the stance taken by both eye-witnesses that the deceased, Muhammad Shehzad, had sent the aforesaid barber to fetch tea from a nearby tea stall stands contradicted from the statement of Abdul Jabbar, SI (PW.11), who during cross-examination admitted that the tea stall was situated at a far distance from the place of occurrence and that he did not associate the shop owner in the investigation to corroborate the version of the complainant, Maalik Dad (PW.8). The prosecution’s failure to examine such material witnesses leads this Court to an inevitable conclusion that had they been produced during the trial, their testimony would not have supported the prosecution’s version. In drawing this inference, the Court is guided by Illustration (g) of Article 129 of the Qanun-e-Shahadat Order, 1984, which provides as follows:
“129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
The Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State and others (PLJ 2011 Supreme Court 191) held as under:-
“that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution”.
In another case reported as Lal Khan v. The State (2006 SCMR 1846), the Supreme Court while dealing with the omission of the prosecution in not producing a material witness held as under:
“The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused.”
9. The medical evidence in the case was furnished by Dr. Hassan Saqib (PW.7), who conducted the postmortem examination of the deceased, Muhammad Shehzad on 15.03.2018 at about 12:45 p.m. He noted a total of twenty injuries on the body of the deceased, comprising fifteen entry wounds and five exit wounds. The doctor observed blackening around Injury Nos. 1, 2, 5, 7, 9, 12, 14, 16, 19 & 20. It has further come on record that all the appellants were armed with .30 bore and .9 mm pistols. According to the scaled site plan (Exh.PA), Muhammad Irfan Niazi, Muhammad Irfan Musla, Muhammad Farhan and Muhammad Sajid fired at the deceased from Points Nos. 3, 4, 5 and 6 respectively while using their .9 mm and .30 bore pistols, while standing at distances of approximately 6, 7, 8 and 9 feet. According to the prosecution case at the time of the incident, the deceased was sitting on a barber’s chair, which was subsequently taken into possession by Abdul Jabbar, SI (PW.11) bearing firing marks (P.15). It is a well-settled principle of medical jurisprudence that when a shot is fired from a .30 bore or .9 mm pistol from a distance of less than three feet, the entry wound ordinarily exhibits blackening. In the present case, however, the firing is alleged to have been made from a distance of not less than six feet. Therefore, the presence of blackening around the aforesaid injuries, as observed by Dr. Hassan Saqib (PW.7), is inconsistent with the prosecution version. It is also pertinent to note that two different weapons, namely .9 mm and .30 bore pistols, were allegedly used in the occurrence. Needless to mention here that .9 mm pistol operates at a maximum pressure of approximately 35,000 PSI (pound-force per square inch), whereas a .30 bore pistol uses comparatively higher-pressure loads, up to about 50,000 PSI. Despite this difference in pressure, blackening of wounds cannot occur from the distances alleged by the prosecution. As per Modi’s Medical Jurisprudence, blackening is only possible when firing with .30 bore pistol takes place from a distance of less than three feet. In this regard, reliance is placed upon the case reported as Amin Ali and another v. The State (2011 SCMR 323) wherein the Supreme Court of Pakistan gave the following observation:
“All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi’s Medical Jurisprudence.”
In another case reported as Muhammad Zaman v. The State and others (2014 SCMR 749), the Supreme Court of Pakistan, while dealing with the matter in issue, held as under:
“Let us assume that F.I.R., whose maker passed away before his examination in the Court, cannot be looked into for any purpose yet the prosecution version neither rings true nor inspires confidence when a firearm entry wound found on the person of P.W. No. 5 caused by a shot fired from a distance of 12 feet was accompanied by blackening which is not possible beyond 3 feet. Especially when it has never been the case of the P.W. that any of the assailants fired at him from a close or contact range. In Modi’s Medical Jurisprudence and Toxicology (21st Edition) at page 354, it has been held that “Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet”.”
In these circumstances, the medical evidence stands in clear contradiction to the ocular account furnished by Maalik Dad (PW-8) and Zulqarnain (PW-9).
10. This Court has further observed that, during the course of investigation, the appellants, namely Muhammad Irfan son of Muhammad Shameer, Muhammad Farhan, Sajid Hussain and Muhammad Irfan son of Zafar Iqbal made separate disclosures and in pursuance whereof led to the recovery of a .9 mm pistol (P.3) along with two live bullets (P.4/1-2), a .30 bore pistol (P.5) along with live bullets (P.6/1-3), another .30 bore pistol (P.7) along with three live bullets (P.8/1-3) and a .9 mm pistol (P.9) along with two live bullets (P.10/1-2) through recovery memos Exh.PC, Exh.PD, Exh.PE and Exh.PF, respectively. Similarly during spot inspection Abdul Jabbar, SI (PW.11) secured eight crime empties of .9 mm pistol (P.16/1-8) and five crime empties of .30 bore pistol (P.17/1-5) through memo Exh.PP. All the recovered pistols and crime empties were subsequently sent to the Punjab Forensic Science Agency (PFSA) for comparison. According to PFSA report (Exh.PT), cartridges C1 and C5 were opined to have been fired from the pistol recovered from appellant Muhammad Farhan, whereas cartridges C8, C9, C11, and C13 were stated to have been fired from the pistol recovered from appellant Muhammad Irfan son of Muhammad Shameer. Likewise, PFSA report (Exh.PV) reflects that cartridge cases C2, C3, and C4 were identified as having been fired from the .30 bore pistol recovered from appellant Sajid Hussain, while cartridge cases C6, C7, C10, and C12 were identified as having been fired from .9 mm pistol recovered from appellant Muhammad Irfan son of Zafar Iqbal. As noted earlier, the recovered pistols were allegedly secured along with alive bullets by Abdul Sattar, SI (PW.11). However, the PFSA reports (Exh.PT and Exh.PV) are completely silent regarding the presence of those alive cartridges with the pistols at the time of forensic comparison. The absence of any reference to the alive cartridges before the PFSA expert casts serious doubt and suggests that the weapons sent for forensic examination were not the same as those allegedly recovered from the appellants. Moreover, where the ocular account is inconsistent with the medical evidence, a positive forensic report alone cannot form a safe basis for maintaining the conviction and sentence of the appellants. In these circumstances, the PFSA reports are also of no help to the prosecution.
11. With regard to motive, it has been observed that the prosecution alleged a quarrel between the deceased, Muhammad Shahzad, and the appellants three days prior to the occurrence, during which the deceased allegedly used abusive language against them. In this respect, although both eye-witnesses Maalik Dad (PW.8) and Zulqarnain (PW.9) deposed about the alleged motive but nonetheless did not specify the date, time, or place where the motive incident occurred. Moreover during cross-examination the complainant Maalik Dad (PW.8) stated that at the time of the alleged motive incident, the deceased Muhammad Shehzad was alone, whereas the accused party comprised of two persons. It is also not borne out from the record as to how the complainant and the other purported eye-witness came to know about the alleged motive incident. In these circumstances, the prosecution has also failed to establish the motive for the occurrence against the appellants.
12. In view of the foregoing discussion, the prosecution has failed to discharge its burden of proving the case against the appellants beyond even the slightest shadow of doubt. In accordance with the well-settled principles governing the appreciation of evidence, the benefit of every reasonable doubt must invariably be extended to the accused. In the present case, such doubt clearly exists and entitles the appellants to an acquittal. Consequently, Criminal Appeal No. 67701-J of 2020 and Criminal Appeal No. 67702-J of 2020 are allowed. The conviction and sentence of the appellants, namely Muhammad Irfan son of Shameer, Muhammad Farhan, Muhammad Irfan son of Zafar Iqbal and Sajid Hussain are hereby set aside, and they are acquitted of the charge. The appellants who are presently in custody shall be released forthwith if not required to be detained in connection with any other case.
13. For the reasons stated above, Criminal Revision No. 2533 of 2021 seeking enhancement of sentence of respondents No. 1 to 3 is found to be without merit and is hereby dismissed.
(A.A.K.) Appeals allowed
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