PLJ 2026 Cr.C. 278
[Lahore High Court, Multan Bench]
Present: Sardar Akbar Ali, J.
versus
STATE and others--Respondents
Crl. A. Nos. 1566-J, 1567-J of 2019, Crl. Rev. No. 469 of 2019,
decided on 26.1.2026.
Pakistan Penal Code, 1860 (XLV of 1860)--
ایس ایس ۔ 302 (ب)/34-- ایف آئی آر میں تاخیر-قانون کی مشینری کو متحرک کرنے میں بے حد تاخیر استغاثہ کے بیان کی صداقت کے خلاف بات کرتی ہے ۔
----Ss. 302(b)/34--Qatl-e-amd--Conviction and sentence--Delay in FIR--Inordinate delay in setting machinery of law in motion speaks volumes against veracity of prosecution version. [P. 281] A
1995 SCMR 127.
Pakistan Penal Code, 1860 (XLV of 1860)--
ایس ایس ۔ 302 (ب)/34- - چیلنج-- ایف آئی آر میں تاخیر - - گواہ کی گواہی - - عام ارادہ - - طبی ثبوت - - شک کا فائدہ - - قانون کے تحت مفروضہ جرم کے مقام سے اس کی غیر موجودگی کے بارے میں کام کرے گا - موقع گواہ کی گواہی پر بھروسہ کیا جا سکتا ہے ، بشرطیکہ کچھ قابل اعتماد وضاحتیں پیش کی جائیں جو ایک سمجھدار دماغ کو جرم کے مقام پر اس کی موجودگی کی اپیل کرتی ہیں ، جب واقعہ پیش آیا بصورت دیگر اس کی گواہی مشتبہ ثبوت کے زمرے میں آتی ہے اور اسے چٹکی بھر نمک کے بغیر قبول نہیں کیا جا سکتا ۔ - مذکورہ چشم دید گواہ کے ایسے خون کے داغ والے کپڑوں کو تفتیشی افسر کے سامنے محفوظ یا پیش نہیں کیا گیا تھا کیونکہ اگر انہیں کیمیائی معائنہ کار کے پاس جانچ پڑتال اور متوفی کے خون کے داغ والے کپڑوں کے ساتھ گروپ کرنے کے لیے بھیجا جاتا تو یہ اس چشم دید گواہ کی گواہی کی سب سے مضبوط تصدیق فراہم کرتا ۔ - یہ غلطی استغاثہ کے مقدمے کی جڑوں پر حملہ کرتی ہے اور مذکورہ گواہوں کے بے ایمان اور جھوٹے دعوے کے بارے میں بہت کچھ بتاتی ہے - - طبی شواہد کا تعلق ہے ، یہ مشاہدہ کرنے کے لیے کافی ہے کہ یہ صرف ایک معاون ثبوت ہے اور صرف اس صورت میں متعلقہ ہے جب آکولر اکاؤنٹ اعتماد کو متاثر کرتا ہے جو اس معاملے میں صورتحال نہیں ہے ۔ آکولر اکاؤنٹ کے ساتھ ساتھ بازیابی پر یقین نہ کرنے کے بعد ، طبی شواہد کو صرف ثبوت کا مصدقہ ٹکڑا ہونے کی وجہ سے ، ریکارڈ کرنے یا سزا کو برقرار رکھنے کی بنیاد نہیں بنایا جا سکتا کیونکہ طبی شواہد صرف لوکل ، طول و عرض ، استعمال شدہ ہتھیار کی قسم ، چوٹ اور طبی معائنے کے درمیان کی مدت یا موت اور پوسٹ مارٹم وغیرہ کے بارے میں تفصیلات دے سکتے ہیں ۔ لیکن کبھی بھی حقیقی حملہ آور کی شناخت نہ کریں - - طبی معائنے اور پوسٹ مارٹم میں تاخیر نے پہلے ہی استغاثہ کے مقدمے میں رکاوٹ پیدا کر دی ہے - استغاثہ ملزم/اپیل کنندگان کے خلاف شک کے سائے سے بالاتر الزام قائم کرنے میں بری طرح ناکام رہا ہے ۔ - سپریم کورٹ آف پاکستان نے فیصلہ دیا ہے کہ کسی ملزم کو شک کا فائدہ دینے کے لیے ملزم کے جرم کے بارے میں سمجھدار ذہن میں معقول شک پیدا کرنے والا ایک ہی حالات اسے اس طرح کے فائدے کا حقدار بنانے کے لیے کافی ہے ، جبکہ موجودہ معاملے میں متعدد شکوک و شبہات ثبوت میں داخل ہو گئے ہیں جس سے استغاثہ کی پوری عمارت ناقابل اعتماد ہو گئی ہے-استغاثہ ملزم/اپیل گزاروں کے خلاف جرم کو گھر لانے میں مکمل طور پر ناکام رہا ہے ۔
----Ss. 302(b)/34--Qatl-e-amd--Conviction and sentence--Challenge to--Delay in FIR--Testimony of witness--Common intention--Medical evidence--Benefit of doubt--Presumption under law would operate about his absence from crime spot--testimony of chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on crime spot are put forth, when occurrence took place otherwise his testimony would fall within category of suspect evidence and cannot be accepted without a pinch of salt--No such blood stained clothes of said eye-witness had been secured or produced before Investigating Officer because if these were sent to Chemical Examiner for examination and grouping with that of blood stained clothes of deceased, same would have provided strongest corroboration to testimony of this eye-witness--This omission strikes at roots of case of prosecution and speaks volumes about dishonest and false claim of said witnesses--Medical evidence is concerned, suffice it to observe that same is only a supporting piece of evidence and relevant only if ocular account inspires confidence which is not situation in this case--After disbelieving ocular account as well as recovery, medical evidence only being corroborative piece of evidence, cannot be made basis to record or sustain conviction because medical evidence could only give details about locale, dimension, kind of weapon used, duration between injury and medical examination or death and autopsy, etc. but never identify real assailant--Delay in medical examinations and autopsy already has created dents in prosecution case--The prosecution has miserably failed to establish charge against accused/appellants beyond any shadow of doubt--The Supreme Court of Pakistan has held that for giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit, whereas, in present case numerous doubts have crept into evidence making whole edifice of prosecution unreliable--Prosecution has squarely failed to bring home guilt against accused/appellants. [Pp. 283, 284, 288 & 290] B, D, E & F
2024 SCMR 1427; 2026 SCMR 47; 2015 SCMR 1142; 2020 SCMR 319; 2024 SCMR 1773; PLD 1993 SC 251; 2024 SCMR 51 &
2024 SCMR 1731.
Pakistan Penal Code, 1860 (XLV of 1860)--
ایس ایس ۔ 302 (ب)/34-گواہی کا بیان-بے ایمان بہتری - سزا اور سزا-اب تک یہ طے ہو چکا ہے کہ استغاثہ کے مقدمے کی صداقت کے بارے میں ذات کے سنگین شکوک و شبہات کو مضبوط کرنے کے لیے ایک گواہ کی طرف سے اپنے بیان میں کی گئی بے ایمان بہتری اور اسی کو ناقابل اعتبار اور ناقابل اعتماد بنا دیتی ہے ۔
----Ss. 302(b)/34--Statement of witness--Dishonest improvements--Qatl-e-amd--Conviction and sentence-- It is settled by now that dishonest improvements made by a witness in his statement to strengthen prosecution case caste s serious doubt about veracity of his statement and makes same untrustworthy and unreliable.
[P. 285] C
2024 SCMR 1310; 2025 SCMR 1408 & 2025 SCMR 662.
Chaudhary Umar Hayat, Advocate along with Appellant (in Crl. Appeal No. 1566 of 2019).
M/s. Ch. Muhammad Arshad Gujjar and Rana Muhammad Nadeem Kanjoo, Advocates for Appellant (in Crl. Appeal No. 1567 of 2019).
Mr. Tanvir Haider Buzdar, ADPP for State.
Ch. Akbar Ali, Advocate for Complainant.
Date of hearing: 26.1.2026.
Judgment
Allah Ditta and Ijaz Ahmad (appellants) were tried by the learned Additional Sessions Judge, Rajanpur Model Criminal Trial Court, in a case FIR No. 298/ 2019 dated 13.05.2019, offences under Sections 302/ 394/ 34, PPC registered at Police Station Fazilpur, District Rajanpur, for committing the Qatal-e-Amd of Ghulam Akbar (deceased) and vide judgment dated 12.12.2019 passed by the learned trial Court, the appellants were convicted and sentenced as under:
“Convicted under Section 302 (b)/ 34, PPC each and sentenced to imprisonment for life as Ta’zir each for committing the Qatal-e-Amd of Ghulam Akbar (deceased) with the further direction to pay compensation of Rs. 200,000/- each to legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in default whereof to further undergo simple imprisonment for six months each. They were also extended the benefit of Section 382-B, Cr.P.C.”
2. Aggrieved by their conviction and sentence, Allah Ditta (appellant) filed Criminal Appeal No. 1566-J of 2019 and Ijaz Ahmad (appellant) has filed Crl. Appeal No. 1567-J of 2019 whereas Bashir Ahmad (complainant) has filed Crl. Revision No. 469 of 2019 for enhancement of sentence of both the Appellants. Since all the three matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
3. The facts of the case, as enumerated in paragraph No. 02 of the impugned judgment of the learned trial Court, are that:
“Facts, in brief, as unfurled from the complaint (Ex.P-A) are that on 13.05.2019 at about 8.15 p.m complainant alongwith Ghulam Akbar were going towards their house on a motorcycle Unique without registration number and when they reached in the area of Mauza Ragba Nabi Shah, all of sudden three persons armed with fire arm weapons came in front of them at about 8.20 p.m and attempted to snatch the motorcycle from Ghulam Akbar who made resistance upon which one person made fire shot with his pistol which hit Ghulam Akbar on his left thigh. On receipt of fire shot Ghulam Akbar fell down. P.Ws Khuda Bakhsh and Muhammad Amin also witnessed the occurrence. Accused persons fled away. Ghulam Akbar was shifted to DHQ hospital through 1122. Police reached there and recorded statement of complainant Ex.P-A. Ghulam Akbar was referred to Sheikh Zayad Hospital but he succumbed to the injury in the way.”
4. On arrest of the accused/ appellants and completion of investigation, report under Section 173, Cr.P.C. was submitted against them before the learned trial Court, where they were formally charge sheeted to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as thirteen witnesses. After closure of the prosecution’s evidence, statements of the accused/ appellants were recorded under section 342, Cr.P.C. wherein they denied the prosecution’s allegation and professed their innocence. Both the appellants opted not to be examined themselves as their own witness on oath as required under Section 340(2), Cr.P.C. Allah Ditta, appellant opted not to adduce evidence in his defence but Ijaz Ahmad, appellant produced attested copies of report under Section 173 Cr.P.C. along with statements of witnesses (Exh.DA) in his defence evidence and the trial ended in the terms as detailed in opening paragraph of this judgment.
5. I have heard arguments of learned counsels for the parties as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely.
6. According to the prosecution’s perspective the occurrence took place on 13.05.2019 at 08:20 p.m whereas the matter was reported to the police on the same day at 10:30 p.m. with the delay of about two hours and ten minutes, despite the fact that police station was at a distance of five kilometers from the place of the occurrence. Nowhere in the entire evidence the prosecution has explained the reason for such delay in reporting the matter to the police. The delayed FIR shows dishonesty on the part of the complainant and that it was lodged with deliberation and consultation. Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. In the case of “Mehmood Ahmed & 3 others v s. The State & another” (1995 SCMR 127), it was observed by the Hon’ble Supreme Court of Pakistan that:
“Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate.”
Similar view has been taken by the Hon’ble Supreme Court of Pakistan in the cases of “Zafar Ali Abbasi and another vs. Zafar Ali Abbasi and others” (2024 SCMR 1773), “Manzar Abbas and another vs. The State” (2025 SCMR 1024) and “Muhammad alias Ahmad vs. The State” (2025 SCMR 2052).
7. Initially, on 13.05.2019 the FIR (Exh.PA/1) was lodged under Section 394, PPC on the complaint/ statement (Exh.PA) got recorded by Bashir Ahmad, complainant (PW-09) and subsequently through Rappat No. 39 (Exh.PP) offences under Section 302, PPC was added to the FIR. I have further noticed that the FIR was lodged against three unknown persons. Hidayat Ullah, SI (PW-08) in his examination-in-chief stated that on 15.06.2019, he arrested both the appellants under Section 54, Cr.P.C. and sent them to judicial lock up for their identification parade and the identification parade of both the appellants was held in the jail premises on 22.06.2019. As regards third accused, on 01.07.2019 Bashir Ahmad, complainant (PW-09) got recorded his supplementary statement in which he nominated Muhammad Asif co-accused.
8. The ocular account in this case was furnished by Bashir Ahmad, complainant (PW-09) who was paternal cousin of Ghulam Akbar, deceased whereas deceased was cousin of father of Muhammad Amin (PW-10) and Khuda Bakhsh (PW-11) was second cousin of the deceased. I have noticed certain discrepancies, improvements and contradictions in the statements of all the three PWs. Bashir Ahmed (PW-09) in his cross-examination admitted that his house was about one acre from the house of Ghulam Akbar, deceased and that he and the deceased assembled at Kotla Nasir on the day of occurrence. He further admitted that the PWs met him before the occurrence in the evening but he could not remember the time but no reason or justification has been explained by him of his arrival at the place of occurrence while accompanying the deceased. Muhammad Amin (PW-10) stated that his house was at a distance of about one acre from the house of the deceased and they proceeded from their land near Kotla Nasir to the place of occurrence and that their land was about half kilometer towards east from the place of occurrence. He further admitted that he was about 11 feet when he for the first time saw the accused persons, victim and the complainant. He further admitted that the place of occurrence was paved road and remained busy. I have perused un-scaled Site Plan (Exh.PN) and scaled Site Plan (Exh.PR/1) wherein mattled road is mentioned instead of paved road where the occurrence had allegedly taken place and there was no house surrounding the place of occurrence. Likewise, Khuda Bakhsh (PW-11) in his cross-examination admitted that they proceeded from their leased lands at Kotla Nasir to the place of occurrence and their lands were about half kilometer from Chowk Kotla Nasir. He further admitted that his house was about three kilometers from their lands and that the motorcycle was being driven by him. Muhammad Amin (PW-10) and Khuda Bakhsh (PW-11) also failed to explain or justify their acclaimed presence at the relevant time at the place of occurrence as they failed to produce on record any proof of their leased lands from where they were coming back.
9. The case of the prosecution was that Ghulam Akbar deceased was escorted to DHQ Hospital, Rajanpur through the ambulance of Rescue-1122. Bashir Ahmad, complainant (PW-09) in his cross-examination admitted that he could not tell who informed 1122 but it was someone from the gathered people and the rescue 1122 service arrived in 20/25 minutes after the occurrence. He further admitted that he did not inform the police before arrival of 1122. Likewise, Muhammad Amin (PW-10) in his cross-examination admitted that he did not know that who informed 1122 regarding the occurrence and that one Dr. Asad had informed the police regarding the occurrence. He further admitted that Rescue 1122 arrived at the place of occurrence after about an hour of the occurrence and he was present when 1122 arrived there. He further admitted that Bashir Ahmad, complainant (PW-09) accompanied the victim in the ambulance of 1122 and that DHQ Hospital, Rajanpur was at a distance of about seven kilometers from the place of occurrence. I have perused the Injury Statement (Exh.PD/1) and MLC (Exh.PD) of Ghulam Akbar (deceased), the then injured which show that Muhammad Saeed, 78-C who was posted at Police Khidmat Counter, DHQ Hospital, Rajanpur got medically examined Ghulam Akbar, deceased and he drafted the injury statement at 22:11:30 p.m. but in both the documents, it is nowhere mentioned that who escorted the dead body of the deceased to the hospital and if the Rescue 1122 or the complainant party had escorted the dead body of the deceased then the presumption would be that there would be the entry of the officials of the Rescue-1122 but there is no entry. Even otherwise, the conduct of all the three PWs is quite unnatural as well as lethargic for the reason that if they were present at the relevant time at the place of occurrence, they should have informed the police as well as the Rescue-1122 or the complainant but they did nothing which act of the PWs makes the prosecution story doubtful.
10. I have further noted that the presence of Bashir Ahmad, complainant (PW-09), Muhammad Amin (PW-10) and Khuda Bakhsh (PW-11) on the spot at the place and at the time of incident is highly doubtful in nature because they did not make an abortive attempt to save the deceased from the clutches of Appellants, or to intervene in the incident which conduct of the PWs is wholly unnatural.
11. In view of the above, I am constrained to hold that all the three PWs were chance witnesses and their presence at the relevant time at the place of occurrence is not established from the record. Admittedly, 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as “Mst Shazia Parveen vs. The State” (2014 SCMR 1197), “Muhammad Rafique vs. The State” (2014 SCMR 1698), “Naveed Asghar and 2 others vs. The State” (PLD 2021 SC 600), “Abdul Khaliq vs. The State” (2021 SCMR 325), “Muhammad Hassan and another vs. The State and others” (2024 SCMR 1427) and “Imran vs. The State” (2026 SCMR 47).
12. The case of the prosecution is that on 13.05.2019 at about 08:20 p.m. three unknown assailants while armed with lethal weapons halted the complainant and the deceased and out of them, one made a fire shot which hit the deceased on his left thigh but I have also noticed with grave concern that neither in the complaint/ statement (Exh.PA) nor in the FIR (Exh.PA/1) or before the learned trial Court, the complainant and the PWs neither gave any feature nor any description of any of the accused and even they did not state that out of the three accused, who made fire shot at the deceased. Furthermore, I have also observed that in the complaint/ statement (Exh.PA) as well as FIR (Exh.PA/1), it was the case of the prosecution that three unknown accused persons while armed with lethal weapons on gun point stopped the complainant as well as the deceased and tried to snatch the motorcycle but contrary to this, all the three eye-witnesses Bashir Ahmad, complainant (PW-09), Muhammad Amin (PW-10) and Khuda Bakhsh (PW-11) while appearing before the learned trial Court in their examination-in-chief, have improved their statements in lien with each other:
“Accused Allah Ditta was also identified as accused who had demanded the motorcycle from Ghulam Akbar at the time of occurrence. He had pistol in his hand and had fought with Ghulam Akbar and fled away after the occurrence.”
From the aforesaid statement, it reflects that appellant Allah Ditta demanded motorcycle from Ghulam Akbar, deceased and also had a fight with him but in the complaint as well as the FIR, common role of snatching the motorcycle from the deceased is attributed to all the assailants.
13. From the above narrations, admissions, contradictions as well as dishonest improvements of Bashir Ahmad, complainant (PW-09), Muhammad Amin (PW-10) and Khuda Bakhsh (PW-11), I am of the view that if these PWs of ocular account were present on the spot at the relevant time then they should not have to make dishonest improvements in their statements in such a manner to strengthen the prosecution case. The aforesaid flaws, contradictions and improvements in the statements of aforesaid PWs create doubts in the prosecution story. It is settled by now that dishonest improvements made by a witness in his statement to strengthen the prosecution case caste s serious doubt about veracity of his statement and makes the same untrustworthy and unreliable. Reliance may be made to a case titled Mst. Saima Noreen and another vs. The State (2024 SCMR 1310), “Fateh Khan vs. The State and others” 2025 SCMR 1408) and “Muhammad Nasir Butt and 2 others vs. The State and others” (2025 SCMR 662).
14. The identification parade of the appellants was conducted under the supervision of Athar Hussain, Magistrate 1st Class, Rajanpur (PW-06). I have noticed that the test identification parade was held only to the extent of Ijaz Ahmed and Allah Ditta, appellants who were shown as accused/ assailants but none of them was nominated by the complainant and even their description or features were not given. On the arrest of appellants on 15.06.2019, they were put to test identification parade on 22.06.2019 and the identification report was brought on the record as (Exh.PG). During the test identification parade of appellant Ijaz Ahmed, Bashir Ahmad, complainant (PW-09) stated that “alleged culprit is not present amongst the persons before him” and thus, he failed to identify Ijaz Ahmed, appellant but during the cross-examination he admitted that:
“It is correct that I filed FIR No. 678/2018 P.S. City Rajanpur u/S. 392/411, PPC on 01.12.2018 where I nominated Ijaz Ahmed present in Court as armed with Kalashnikov in that occurrence. Said case is still pending before Magistrate. I and PWs have deposed against Ijaz in that case.”
Surprisingly, if Bashir Ahmad, complainant (PW-09) had already known about Ijaz Ahmed, appellant then why he did not identity Ijaz Ahmed, appellant during the occurrence of this case as well as at the time of lodging of FIR and even before the learned Magistrate (PW-06) during the test identification parade. Similarly Muhammad Ameen (PW-10) during the test identification parade attributed the role to Ijaz Ahmed, appellant in the following manner:
“that the accused Ijaz fired upon Ghulam Akbar, deceased.”
Muhammad Ameen (PW-10) in the aforesaid statement has simply ascribed the role to Ijaz Ahmad, Appellant of causing fire arm injury upon deceased, Ghulam Akbar but he has not ascribed him specific role of causing fire arm injury on left thigh of the deceased.
Khuda Bakhsh (PW-11) during the test identification parade attributed the role to Ijaz Ahmed, appellant in the following manner:
“that the accused Ijaz Ahmed made fire on Ghulam Akbar.”
Likewise, Khuda Bakhsh (PW-11) in the aforesaid statement has also simply ascribed the role of causing fire arm injury to Ijaz Ahmed, appellant but has not ascribed him specific role of causing fire arm injury on left thigh of the deceased.
15. So far as the identification parade conducted regarding Allah Ditta, appellant is concerned, Bashir Ahmad, complainant (PW-09) while identifying him deposed in the following manner:
“Allah Ditta accused had just demanded motorbike from Ghulam Akbar at the time of occurrence.”
Khuda Bakhsh (PW-11) during the test identification identified Allah Ditta, appellant and deposed as under:
“that at the time of occurrence the accused, Allah Ditta was fighting with his cousin, Ghulam Akbar. Although the accused had pistol in his hand but he did not make fire.”
Muhammad Ameen (PW-10) during the test identification parade attributed the role to Allah Ditta, which is reproduced herein below:
“that when he (witness) reached at the spot, the accused Allah Ditta alngwith co-accused were fleeing away. He further states that the accused Allah Ditta had not made any fire”.
From the aforesaid statements of the PWs recorded during the test identification parade, I am of the view that Bashir Ahmad, complainant (PW-09) and Khuda Bakhsh (PW-11) had ascribed Allah Ditta different roles whereas Muhammad Amin (PW-10) has not ascribed him any specific role rather he only stated that he only saw Allah Ditta, appellant fleeing away from the place of occurrence. From the perusal of Identification parade (Exh.PG), it reflects that Ijaz Ahmed, appellant had raised objections before Athar Hussain, Magistrate 1st Class, Rajanpur (PW-06) prior to the identification parade proceedings that he was arrested by the police in the month of Ramzan, one month prior. During the period of arrest, the police officials had captured his pictures and also some private persons saw and identified him. Furthermore, the PWs during identification parade dishonestly improved their statements. So, in these circumstances, the test identification of the appellants has also lost its relevancy and such piece of evidence cannot be relied upon as evidence against the appellants. Reliance is placed upon the case reported as “Abdul Qadeer vs. The State” (2024 SCMR 1146) and “Tahseen Ullah and another vs. The State” (2025 SCMR 2018).
16. It is also noteworthy that the eye-witnesses namely Bashir Ahmad, complainant (PW-09), Muhammad Amin (PW-10) and Khuda Bakhsh (PW-11) being the close relatives, should have to escort the then injured/ deceased Ghulam Akbar to the hospital but in this case they are not identifying witnesses of dead body of Ghulam Akbar (deceased) at the time of his postmortem. Similarly their names are not reflecting in column 4 of Inquest Report (Exh.PF) about the identification of the dead body rather in both the documents, the names of Noor Muhammad and Asad Ullah are mentioned and prosecution has subsequently introduced them as the eye-witnesses just to make it a case of direct evidence. If they were present at the place of occurrence then their names should have been written in the postmortem examination report as well as inquest report. I have further noticed that as per injury statement of the then injured/ deceased Ghulam Akbar, he was brought to the hospital at 22:11:39 with the delay of two hours and eleven minutes. Dr. Muhammad Zeeshan Aziz (PW-05) in his statement stated that probable time that elapsed between injury and death was about three hours. It means that Ghulam Akbar, deceased remained alive for three hours and no one including the PWs bothered to escort him immediately to the nearby hospital to save his life whereas Muhammad Amin (PW-10) in his cross-examination admitted that DHQ Hospital was about seven kilometers from the place of occurrence. Had the PWs were present at the relevant time at the place of occurrence, the life of the deceased must be secured. In the light of above mentioned facts I am quite confident to hold that evidence of above mentioned witnesses is not reliable and confident inspiring. Reliance is placed upon the case law reported as Abdul Hayee and Abdullah alias Ghazali and another versus The State and others (2025 SCMR 281).
17. Another crippling feature of the prosecution case is that Bashir Ahmed, complainant (PW-09) did not produce his blood stained clothes to the Investigation Officer. In this regard, he in his cross-examination asserted as follows:
“My clothes and also clothes of others received blood stains. We did not produce our clothes to police.”
18. Admittedly no such blood stained clothes of said eye-witness had been secured or produced before the Investigating Officer because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of this eye-witness. This omission strikes at the roots of the case of the prosecution and speaks volumes about the dishonest and false claim of the said witnesses. Reliance in this regard is placed upon the cases reported as “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142), “Mst. Mir Zalai vs. Ghazi Khan and others” (2020 SCMR 319) and “Zafar Ali Abbas and another vs. Zafar Ali Abbasi and others” (2024 SCMR 1773).
19. As it was a night occurrence but I have noticed that the prosecution has failed to bring on record any source of light in which the PWs allegedly witnessed the occurrence, thus, it can safely be held that it was a blind occurrence and none had witnessed the occurrence.
20. So far as medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case. After disbelieving the ocular account as well as the recovery, the medical evidence only being corroborative piece of evidence, cannot be made basis to record or sustain conviction because medical evidence could only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. but never identify the real assailant. In the instant case, as discussed above, delay in medical examinations and autopsy already has created dents in the prosecution case. In the case “Munawar Ali alias Munawar Hussain versus The State” (PLD 1993 SC 251) the Hon’ble Supreme Court of Pakistan held that:
“Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries can never name the accused, that is, from the injuries alone it cannot be said who had inflicted those injuries.
Reliance is also placed upon the case reported as “Muhammad Jahangir and another vs. The State and others” (2024 SCMR 1741) is also to the same effect.
21. As regards recovery of crime weapons i.e. .30 bore pistol P-7 on the led of accused/ appellant Ijaz Ahmed and .30 bore pistol P-8 on the lead of accused/appellant Allah Ditta is concerned, although the report of PFSA (Exh.PT) regarding the matching of the aforesaid recovered weapons from the appellants with the crime empties recovered from the place of occurrence is in the positive but at the same time, I have noticed with grave concern that no private witness was associated in the recovery proceedings and the witnesses were the police officials, thus, the said recoveries cannot be relied upon for the reason that Investigating Officer of the case did not join any witness of the locality during the recovery of such .30 bore pistols on the lead of accused/appellants, which is clear violation of Section 103 of Code of Criminal Procedure, 1898. Therefore, the evidence of such recovery cannot be used as incriminating evidence against the accused/appellants, being evidence that was obtained through illegal means and hence hit by the exclusionary role of evidence. The Supreme Court of Pakistan in the case reported as “Muhammad Ismail and others versus The State” (2017 SCMR 713), held:
“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard.”
Reliance is also placed to the cases reported as “Gul Dast Khan versus The State” (2009 SCMR 431), “Muhammad Hussain versus The State” (2011 SCMR 1127) and “Muhammad Nasir Butt and 2 others vs. The State and others” (2025 SCMR 662).
22. So far as the motive part in this case is concerned, no motive has been alleged by the prosecution in this case.
23. As far as the defence plea taken by the appellants in their statements under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.
24. To sum up the above findings, it is noted that the eye-witness are chance witnesses and they have also made dishonest improvements in their testimonies; features not given in the FIR; appellants took objections that their photographs were taken and they were also seen by the private persons which has no evidentiary value; the medical evidence is of no avail to the prosecution as the prosecution has failed to prove the ocular account; no source of light has been introduced by the prosecution; recovery is ineffective and is of no consequence; the motive behind the occurrence is far from being proved and almost non-existent, and the lack of any cogent and reliable evidence adduced by the prosecution in support of the reason advanced for their presence by the complainant are all strong circumstances which create a serious dent in the prosecution’s case qua the presence of the eye-witnesses at the time and place of occurrence.
25. For what has been discussed above, I have no doubt to hold that here in this case the prosecution has miserably failed to establish the charge against the accused/appellants beyond any shadow of doubt. In the cases of “Muhammad Riaz vs . Khurram Shehz ad and another” (2024 SCMR 51) & “Muhammad Nawaz and another vs. The State and others” (2024 SCMR 1731), the Supreme Court of Pakistan has held that for giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit, whereas, in present case numerous doubts have crept into the evidence making whole edifice of prosecution unreliable. Thus, the prosecution has squarely failed to bring home the guilt against the accused/appellants.
26. For the foregoing reasons, Criminal Appeal No. 1566-J of 2019 filed by Allah Ditta, appellant and Crl. Appeal No. 1567-J of 2019 filed by Ijaz Ahmed, appellant are allowed, conviction and sentence awarded to the appellants vide judgment dated 12.12.2019 passed by the learned trial Court are set aside and they are acquitted of the charges levelled against them while extending them benefit of doubt. Both the appellants Allah Ditta and Ijaz Ahmed are in jail. They shall be released forthwith if not required to be detained in any other case.
27. So far as Crl. Revision No. 469 of 2019 filed by Bashir Ahmad, complainant (PW-09) for enhancement of sentence of the appellants is concerned, the same being devoid of any merit stands dismissed.
(A.A.K.) Appeal allowed
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