2025 PLP 1803 (MLD)

Muhammad Jawad Zafar, J.

Through this single judgment, we intend to dispose of Crl. Appeal No. 80283 of 2022 filed by Khitab Ullah, Muhammad Azhar, Muhammad Asif, Shahzad Mehmood and Muhammad Amir against their convictions and sentences, Criminal P.S.L.A. No. 80831 of 2022 filed by Mukhtar Ahmad, complainant of the case (PW-3) and Criminal Revision No. 80810 of 2022 filed by Mukhtar Ahmad, complainant of the case (PW-3) for enhancement of sentence, whereas Murder Reference No. 321 of 2022 has also been transmitted by learned Trial Court for confirmation or otherwise of death sentences of Khitab Ullah and Muhammad Azhar, appellants under section 374 of the Code of Criminal Procedure, 1898 ("Code" or "Cr.P.C"), all the matters being originated from the same judgment dated 12.11.2022 passed by learned Addl. Sessions Judge, Nowshera Virkan, District Gujranwala ("Trial Court") in the private complaint (Exh.PC) under sections 302, 324, 336, 337-F(iii), 337-F(vi), 148 and 149 P.P.C emanated from case FIR No.664 dated 01.08.2020, under Sections 302, 324, 148, 149 P.P.C registered at Police Station Tatlay Aali, Gujranwala whereby, at the conclusion of the trial in the said case, the learned Trial Court, while acquitting the co-accused persons Muhammad Waris and Waseem Nasar, convicted and sentenced the appellants as under: Khitab Ullah son of Muhammad Waris:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to death as ta'zir with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced to ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Muhammad Azhar son of Mehmood Ahmad:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to death as ta'zir with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000 in default whereof, the convict shall undergo S.I for two months. Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Muhammad Asif son of Riasat Ali: Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to rigorous imprisonment for life as ta'zir and with direction to pay Rs.7,00,000/-as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Shahzad Mehmood son of Mehmood Ahmad:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to rigorous imprisonment for life as ta'zir and with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Muhammad Amir son of Amanat Ali:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to rigorous imprisonment for life as ta'zir and with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Benefit of Section 382-B Cr.P.C. is extended in favour of the accused persons. All the sentences shall run concurrently.

2. The prosecution story as given in the judgment of the Trial Court reads as under: "On 01.08.2020 at 07:00 am, the complainant (Pw.3) along with Muhammad Arshad brother (since given up), Muhammad Hashim son of Muhammad Arshad (injured Pw.4), Muhammad Amir (deceased), Muhammad (injured Pw.5) both sons of Qamar, Hamza Mukhtar (Pw.6) son of complainant, went to Eid-Gaah situated on the north-western side of the village to offer Eid-Prayer. People from the village including Muhammad Waris (accused) along with his relatives were also present there for Eid-Prayer. After Eid-Prayer, at about 07:45 am, Muhammad Waris along with his relatives went to the village, whereas, the complainant party went to the graveyard, adjacent to the Eid-Gaah, to offer Fateh-Khawani for their deceased persons. After Fatch-Khawant, the complainant party left the graveyard and were going towards the village. Muhammad Nadeem (injured Pw.5) was boarded on his motorcycle GAL-8550, Honda 125, Model 2020 (PS), Muhammad Hashim (injured Pw.4) and Muhammad Amir (deceased) were boarded on motorcycle Metro 70-CC (P-6) Model 2020, Applied for. Amir was driving the motorcycle, while Hashim sitting on its rear seat, were going slowly towards the village, ahead of the complainant, Arshad and Hamza Mukhtar who were following them on foot. When, at about 08:30 am, the complainant party reached near the house of Kashif son of Khushi Muhammad, Muhammad Waris armed with kalashnikov, Muhammad Asif armed with kalashnikov, Khitabullah armed with kalashnikov, Azhar Mehmood armed with rifle, Shahzad armed with rifle, Amir armed with rifle and Waseem armed with rifle, all present in court with their mutual consultation, already present at the old DERA of Muhammad Waris, suddenly, emerged from there on the mettled road and blocked their passage. Accused Muhammad Waris raised a lalkara not to let Muhammad Amir and others alive. On this, Khitabullah made a straight burst with his kalashnikov to Amir which hit him on left side of his neck, on the different parts of his chest and on the left side of his face. Amir fell down from his motorcycle. Muhammad Waris made a burst with his kalashnikov on the person of Muhammad Amir who was already fallen on the ground which hit on left side of Amir's back, on the middle of his back, on the back side of his left shoulder and on the right side of his back. Azhar son of Mehmood made repeated fire shots with his rifle which hit on the right side of abdomen of Amir and on his left flank. Shahzad son of Mehmood made a fire shot with his rifle which hit on the front of right thigh of Hashim. Muhammad Amir son of Amanat made a fire shot with his rifle which hit on the-front of Hashim's left thigh. Waseem son of Nasar made repeated fire shots with his rifle on the person of Muhammad Nadeem which hit on his belly near his hila and on his right ribs. Accused Muhammad Asif son of Riasat Ali made fires with his firearm weapon on the person of Muhammad Nadeem which hit on his left arm, right thigh and left leg. Accused persons while making firing and raising lalkaras fled away from the spot. The complainant along with his companions took Muhammad Nadeem, Hashim and Amir to the civil hospital Nowshera Virkan on two private vehicles. Muhammad Amir succumbed to the injuries on the way. Besides the complainant, the occurrence was witnessed by Muhammad Nadeem (injured/PW.5), Hashim (injured/PW.6). Hamza Mukhtar (Pw.6) and Muhammad Arshad. The complainant along with Hamza Mukhtar and Muhammad Arshad witnessed the occurrence while taking shelter of the street and saved their lives. Motive behind the occurrence is their previous enmity with accused Muhammad Waris and others due to which they omitted the occurrence. While leaving Abdul Aziz and Mehboob am with the dead body of Amir, the complainant went to P.S Tat lay Aali, for registration of FIR......"

3. After recording cursory statements of the complainant and PWs, the appellants and acquitted co-accused were summoned to face trial. Learned trial court, after observing all the pre-trial codal formalities, framed charge under sections 302, 324, 336, 337-F3, 337-F6, 148 and 149 P.P.C against the appellants along with their acquitted co-accused on 18.06.2021, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 16 PWs and 03 witnesses were examined as CWs. Mukhtar Ahmad, complainant of the case, testified as PW-3; Muhammad Hashim, injured witness, appeared as PW-4; Muhammad Nadeem, injured witness, deposed as PW-5; Hamza Mukhtar, eye-witness of the occurrence, testified as PW-6; Naveed Akhtar ASI who registered the FIR (Exh.PA/1) through computer operator on the basis of written complaint (Exh.PA) submitted by the complainant (PW-3) appeared as PW-1; Dr. Ghulam Sarwar Cheema, medical officer, who conducted the postmortem examination of Muhammad Amir, deceased, at THQ hospital Nowshera Virkan and issued his postmortem report (Exh.PP) with pictorial diagrams comprising of two pages (Exh.PQ/1-2) appeared as PW-8; Adeel Ahmad 1929/C, recovery witness of 223-bore rifle (P.10) along with four live rounds (P.11/1-4) which were taken into possession through recovery memo (Exh.PV), appeared as PW-9; Ibrar Ahmad JFS, who collected eighteen cartridge cases and three deformed bullets from the place of occurrence, appeared as PW-10; Zahid 128/C, being witness of recovery proceedings, attested recovery memos (Exh.PD and Exh.PE) containing blood stained clothes of injured PWs (P1-P4) and attested the recovery memo (Exh.PL) containing lead bullet along with last worn clothes of the deceased (P7-P9), appeared as PW-11; Muhammad Awais 2754/C, the recovery witness of rifle 222-bore (P.12) along with two live bullets (P.13/1-2) taken into possession vide recovery memo (Exh.PW) appeared as PW-12; Muhammad Khalid SI, who collected 13 crime empties of kalashnikov and one crime empty of rifle 222-bore from the crime scene and presented the same to Javed Chaudhary SI, first investigating officer of the case (CW-2), appeared as PW-13; Ahsanullah 2762/C, witness of recovery proceedings, who attested the recovery memo (Exh.PX) regarding the recovery of rifle (P.14) along with three live rounds (P.15/1-3) from the possession of accused Shahzad by the I.O appeared as PW-15; Ikramullah 3899/C, being witness of recovery proceedings, he attested the recovery memo (Exh.PY) regarding the recovery of rifle 223-bore (P.16) along with five live bullets (P.17/1-5) from the possession of the accused Waseem Nasar by the I.O, appeared as PW-16; Tariq Mehmood SI, second investigation officer, appeared as CW-1; Javed Chaudhary, first investigation officer, appeared as CW-2 and Akhlaq Ahmad ASI who prepared injury statements (Exh.PS and Exh.PU) regarding the injuries on the persons of injured PWs Muhammad Nadeem (PW-5) and Muhammad Hashim (PW-4) appeared as CW-3. The remaining witnesses produced by the prosecution were formal in nature. The prosecution gave up Zufiqar Ali 69/C PW and Ijaz Ahmad 291/C PW being unnecessary and after tendering the reports of the Punjab Forensic Science Agency, Lahore ("PFSA") (Forensic DNA and Serology Analysis Report (Exh.PAA), Firearms and Toolmarks Examination Report (Exh.PBB) and Firearms and Toolmarks Examination Report (Exh.PCC)) closed its evidence.

4. Thereafter the statements of the appellants and their co-accused under section 342 Cr.P.C. were recorded wherein they refuted the allegations levelled against them and professed their innocence. The appellants neither opted to appear as their own witnesses on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation levelled against them, nor produced any defence evidence except accused Muhammad Waris, who tendered attested copy of FIR No.50/04, dated 18.02.2004, under section 302 P.P.C, P.S Tatlay Aali, District Gujranwala (Exh.DJ) and attested copy of FIR No.335/05, under sections 302, 429, 148 and 149 P.P.C read with sections 6 and 7 ATA, dated 04.05.2005, P.S Satellite Town, Gujranwala (Exh.DK) as his defence evidence.

5. The learned trial court vide judgment dated 12.11.2022 found the appellants guilty, convicted and sentenced them as mentioned above, however, acquitted their co-accused namely Muhammad Waris and Waseem Nasar through the same judgment by extending them the benefit of doubt, hence, the Criminal Appeal, Criminal P.S.L.A., Criminal Revision and connected Murder Reference before us.

6. We have heard the arguments of the learned counsel for the appellants and learned Deputy Prosecutor General assisted by learned counsel for the complainant meticulously and also scanned the record minutely with their able assistance.

7. It emerges from wade through the record that the unfortunate occurrence, whereby the deceased namely Amir lost his life, Muhammad Hashim (PW-4) and Muhammad Nadeem (PW-5) were injured, took place at or about 08:30 am on 01.08.2020 while the matter was reported to the police on the same day at 06:50 pm, with an inordinate delay of about 10 hours and 20 minutes despite the police station being merely 2 kilometers away from the place of occurrence. According to column No. 3 of the inquest report (Exh.PN), the date and time when police got information about the death is scribed as 01.08.2020 at 08:30 am. Such belated lodging of the Crime Report (Exh.PA/1) shatters the sanctity of the same and reflects that the time was consumed in fabricating, deliberating, consulting and concocting a false story, as no plausible justification or adequate explanation is furnished by the prosecution for this delay.

8. Along the same lines, it evinces from the perusal of the Post-Mortem Examination Report of the deceased (Exh.PP), the dead body was received in the dead house at 10:00 am on 01.08.2020, whereas complete documents from Police were also received at 10:00 pm on 01.08.2020. Dr. Ghulam Sarwar Cheema (PW-8) conducted the autopsy of the deceased at 10:15 p.m., after a lapse of 13 hours and 45 minutes. He admitted in his cross-examination that he received the written application (Exh.PO) to conduct the postmortem examination of the deceased by the police at 10.00 pm. The relevant excerpt of his cross-examination is infra: "I conducted the postmortem examination of deceased Amir on the written application (Ex.PO) submitted by the police. Said application was received to me at 10:00 pm and the same is mentioned on the application by me. No request made to me for postmortem examination before 10:00 pm. The body of deceased was brought to the hospital by the police at 10:00 am. I could not conduct the postmortem examination of deceased till the receipt of application till 10:00 pm....." When the learned Deputy District Public Prosecutor and learned counsel for the complainant were confronted to explain the delay in carrying out the Post-Mortem Examination of the deceased, they were unable to point any justifiable reason for the same from the entire record. Such unexplained delay in the Post-Mortem Examination of a deceased would surely put a prudent mind on guard to very cautiously access and scrutinize the prosecution's evidence. In such circumstances, the most natural inference would be that the delay so caused was for preliminary investigation and prior consultation to nominate the accused persons and plant eye-witnesses of the crime.

9. Another striking feature about the prosecution case is that according to the FIR (Exh. PA/1), Khitab Ullah, appellant, fired a burst with his Kalashnikov at Amir, deceased, hitting him on the left side of the neck, various parts of his chest and the left side of his face. Muhammad Waris (acquitted co-accused), subsequently fired with his Kalashnikov at the already fallen Amir, deceased, striking him on the left side of his back, the middle of his back, the backside of his left shoulder and the right side of his back; importantly all these injuries inflicted by Muhammad Waris (acquitted co-accused), were declared fatal shots by Dr. Ghulam Sarwar Cheema (PW-8) who conducted the autopsy of the deceased. Azhar, appellant, fired multiple rounds from his rifle, hitting Amir, deceased, on the right side of his abdomen and on his left flank. Shahzad, appellant, shot his rifle, hitting Muhammad Hashim (PW-4) on the front of his right thigh. Muhammad Amir, appellant, fired a shot that struck Muhammad Hashim (PW-4) on the front of his left thigh. Waseem (acquitted co-accused), repeatedly fired his rifle at Muhammad Nadeem (PW-5), hitting him near the umbilicus and on his right ribs. Muhammad Asif, appellant, fired with his firearm at Muhammad Nadeem (PW-5), hitting him on the left arm, right thigh, and left leg. We noted that Muhammad Nadeem (PW-5) in his examination-in-chief had not assigned any role to Muhmmad Waris (acquitted co-accused) of causing any firearm injury to the deceased and consequently the learned Trial Court acquitted him of the charge. Likewise to the extent of acquitted co-accused namely Waseem Nasar, whose attribution of injuries was substituted by the complainant in paragraph No. 4 of the private complaint (Exh. PC), it is noted that he was also acquitted of the charge by the learned Trial Court. Such discrepancies are detrimental to the prosecution's case, primarily affecting the credibility of the evidence presented. The appellants' case is grounded on the same evidence, and the roles assigned to them are similar to those of the co-accused who were acquitted. The sudden shift in the court's findings, based on essentially the same facts, coupled with the modifications in the verdict, compel us to disbelieve the evidence of prosecution to the extent of present appellants. This is not granted as a matter of grace but as a matter of right, given the inconsistencies and the precariousness of the evidence linking them to the crime.

10. In addition thereto, we have also noted that the statement of the injured witnesses Muhammad Hashim (PW-4) and Muhammad Nadeem (PW-5) were recorded by Javed Chaudhry SI, First Investigating Officer (CW-2) on 03.08.2020, two days after the lodging of FIR (Exh.PA/1) and on 04.08.2020, three days after the lodging of FIR (Exh.PA/1), respectively. The relevant excerpt of his examination-in-chief is infra: "....On 03.08.2020, Pw Hashim appeared before me, whereupon I recorded his statement under section 161 Cr.P.C..... On 04.08.2020, I recorded the statement of Ibrar Ahmad JFS of PFSA Crime Scene Unit. I also visited DHQ hospital, Gujranwala and submitted an application (Ex.CW-2/B) for permission to record the statement of injured Nadeem, whereupon concerned medical officer opined regarding the fitness of the injured witness to record his statement. I recorded the statement of injured Nadeem....." The above material aspect of the prosecution's case regarding the delay in recording the statements of Muhammad Hashim (PW-4/injured witness) and Muhammad Nadeem (PW-5/injured witness) under Section 161 Cr.P.C. not only diminishes the evidentiary value of their statements but also raises a reasonable doubt concerning the mode of injuries they received, especially when their Medico Legal Examination Certificate shows they were conscious at the time of admission in the THQ Hospital Nowshera Virkan. It is a settled principle that unexplained delay of one or two days in recording the statement of eye-witnesses would be detrimental and testimony of such witnesses should be taken with a pinch of salt. The contention of learned counsel for the complainant that truthfulness of the injured witness, supported by the medical evidence is sufficient proof of the guilt of the appellants is not tenable. Albeit, the presence of the injured witnesses cannot be doubted at the scene of the incident; however, the question remains whether they are truthful witnesses. Merely the fact that they sustained injuries does not automatically establish their credibility. The alleged injuries will not stamp them to be rithful witnesses because of the above and other material discrepancies. Reliance in this respect is being made to the case titled as "Amin Ali and another v. The State" (2011 SCMR 323), wherein the Hon'ble Supreme Court of Pakistan observed as under: "Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:-"It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self suffered. But that by itself would not show that they had, in view of the afore noted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the FIR namely, Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eye-witnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."

11. We have further noted that Mukhtar Ahmad, complainant of the case (PW-3) being dissatisfied with the police investigation, while changing the prosecution version, filed a private complaint (Exh.PC) on 30.11.2020 with the delay of almost 03 months and 29 days of the occurrence. The complainant has not given any plausible reasoning qua such delay meaning that the private complaint (Exh.PC) has been filed after due deliberation and consultation just to fill up the lacunas left in the FIR. We fortify our view from the dictum laid down in case law titled as "Muhammad Azad v. Ahmad Ali and 02 others" (PLD 2003 SC 14) wherein the Supreme Court of Pakistan has held as under:- "S.302__Constitution of Pakistan (1973), Art.185__Appeal against acquittal__Private complaint suffered from an unexplained delay of three months and four days which apparently had been filed after due deliberation, consultation and in consonance with the injuries shown in the postmortem report

Complainant and eye-witnesses had improved the prosecution case by exaggerating the matter beyond the contents of the FIR registered earlier by the complainant, in order to bring the case in consonance with the medical evidence..."

12. Another important aspect of this case is that Khitab Ullah, appellant, was declared innocent during the course of investigation. Tariq Mehmood S.I, Investigation Officer, (CW-1) has stated in his cross-examination as infra:- "As per my investigation proceedings, the presence of accused persons was not proved elsewhere then the place of occurrence. Volunteered that no role of accused persons Khatabullah and Asif was found during the occurrence....." Although it is generally established principle of law that ipse dixit of the police is not binding on the courts, yet it can be considered if it is found on some cogent and convincing evidence. A reference in this respect may be made to the case tilted as "Khalid Mehmood and others v. The State" (2011 SCMR 664) wherein it has been held infra:- "Adverting to the case of Abid Hussain appellant, it may be observed that no weapon of offence has been effected from his possession. He was found innocent by different police agencies including Ch. Akhtar Hussain, DSP, CIA, Sheikhupura and got discharged from the Court of the Magistrate, which order was not challenged by the complainant. We entertain serious doubt in our minds, regarding participation of appellant Abid Hussain in the commission of crime. The evidence of the complainant and Nasir Ahmad P.Ws. qua appellant Abid Hussain is not credible and trustworthy." Similar view has also been taken in the case reported as "Sajjad Hussain v. The State and others" (2022 SCMR 1540).

13. An important dimension to examine in this case that cannot be overlooked is that, according to the prosecution's account, Mukhtar Ahmad, the complainant of the case (PW-3), along with his companions, allegedly escorted the Amir (deceased), injured Muhammad Hashim (PW-4) and Muhammad Nadeem (PW-5) to the Civil Hospital, Nowshera Virkan. However, he is not listed as a witness of the identification of the dead body in the inquest report (Exh.PN). Furthermore, if he was present at the hospital, the question arises as to why he did not identify Amir's dead body at the time of the Post-Mortem Examination. This inconsistency leads us to conclude that Mukhtar Ahmad, the complainant (PW-3), was not present at the time and place of the occurrence.

14. Additionally, we have observed that the FIR (Exh.PA/1) contains a detailed photographic narration of the entire incident, explicitly attributing specific firearm injuries to the appellants and the acquitted co-accused. The account is presented with such precision that every element of the incident is perfectly specified. This degree of specificity raises a substantial doubt as to the authenticity of the account, strongly suggesting that the complainant may have fabricated the entire narrative as set forth in the FIR (Exh.PA/1).

15. So far as question of recoveries is concerned, it is noted by us that the appellants namely, Shahzad, Azhar Mehmood, Waseem Nasar and Amir Zaman were arrested on 26.08.2020, who led to the recoveries on the basis of disclosures made by them on 07.09.2020; from Azhar, appellant, a 223-bore rifle (P.10) along with four live bullets (P.11/1-4); from Amir, appellant, 222-bore rifle (P.12) along with two live bullets (P.13/1-2); from Shehzad, appellant, rifle (P.14) along with three live bullets (P.15/1-3); and, a rifle (P.16) along with five live bullets (P.17/1-5) from Waseem, appellant, which were deposited to the office of PFSA, Lahore on 14.09.2020 for comparison with the crime empties already secured from the place of occurrence. The Firearm and Toolmarks Examination Report (Exh.PCC) in this regard is negative. Consequently, the evidentiary value of these recoveries remains inconclusive and cannot be regarded as substantive proof.

16. By the same token, the prosecution specifically alleged that the motive behind the occurrence was a previous enmity between the parties. We have observed that the alleged motive rests solely on the oral assertion of the complainant as no corroborative evidence was presented by the prosecution to substantiate its claim. It is well-settled in criminal jurisprudence that the prosecution is not obligated to prove motive in every murder case but it is equally established that once the prosecution sets up a specific motive, it assumes the burden of proving it. Failure to discharge this burden operates to the detriment of the prosecution, not the accused. Consequently, we have no hesitation in concluding that the prosecution has failed to prove the motive behind the unfortunate incident.

17. In view of the aforementioned deliberation, it cannot be stated with any degree of certainty that the prosecution had succeeded in establishing its case against the appellants beyond any reasonable doubt, as adumbrate thereto, the prosecution has failed to prove its case through cogent, reliable and trustworthy evidence. To this end, it is trite that it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right.

18. The upshot of the discussion made hereinabove is that the Criminal Appeal No. 80283 of 2022 is accepted and the conviction and sentences of the appellants are hereby set aside and the appellants are acquitted of the charges against them under Sections 302, 324, 336, 337-F(iii), 337-F(vi), 148 and 149 of the P.P.C by extending them the benefit of doubt. Consequently, Murder Reference No. 321 of 2022 is answered in negative and the death sentence awarded to the appellants namely Khitab Ullah and Muhammad Azhar is not confirmed. The appellants, namely Khitab Ullah, Muhammad Azhar and Muhammad Asif, being in custody, are ordered to be released forthwith if their custody is no longer required by jail authorities in any other custody case whereas the appellant Shahzad is on bail, his bail bonds are hereby cancelled and his surety is discharged from any future liability.

19. After accepting the appeal of respondent No. 1 and setting aside the impugned judgment, this Criminal Revision No. 80810 of 2022 is found bereft of merits and is hereby dismissed.

20. Insofar as the Petition for Special leave to Appeal against acquittal bearing P.S.L.A. No. 80831 of 2022 is concerned, it is observed that, Muhammad Nadeem (PW-5/Injured Witness) had not assigned any role of firearm injury to Muhmmad Waris (Respondent No. 1) in his testimony when he deposed before the learned trial court, likewise to the extent of Waseem Nasar (Respondent No.2), his attribution of injuries was substituted by the petitioner/Complainant in paragraph No. 4 of the private complaint (Exh. PC). Nonetheless as mentioned above, it is noted by this Court that no evidence was led by the prosecution to substantiate the charges against Muhmmad Waris (Respondent No.1) and Waseem Nasar (Respondent No.2). In this context, the impugned judgment has been examined with the utmost caution and we find no reason to differ from the conclusions reached by the learned trial court regarding the acquittal of the respondents. It is well-established that an acquittal verdict confers a presumption of innocence on the accused, which can only be disturbed under exceptional and extraordinary circumstances. So, instant P.S.L.A. being devoid of any merits is hereby dismissed. Consequently, leave is refused. JK/K-13/L Appeal allowed.