2026 PLP 1171 (YLR)

Sadiq Mahmud Khurram, J.

Tahir Mahmood son of Fazal Karim, Arshad Mahmood son of Fazal Karim and Abdul Rehman son of Muhammad Khan (convicts) were tried along with Muhammad Farooq (since acquitted), the co-accused of the convicts by the learned Additional Sessions Judge, Pind Dadan Khan in the case instituted upon the private complaint titled Ghulam Haider v. Tahir Mahmood and 3 others (relating to FIR No. 125 of 2020 dated 27.07.2020 registered at Police Station Lilla, District Jhelum) in respect of offences under sections 302, 201,114 and 34 P.P.C. for committing the Qatl-i-Amd of Nosherwan son of Ghulam Haider (deceased). The learned trial court vide judgment dated 25.07.2023 convicted Tahir Mahmood son of Fazal Karim, Arshad Mahmood son of Fazal Karim and Abdul Rehman son of Muhammad Khan (convicts) and sentenced them as infra: Tahir Mahmood son of Fazal Karim :- i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Nosherwan son of Ghulam Haider (deceased) and directed to pay Rs. 10,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to undergo simple imprisonment of six months. ii) Rigorous imprisonment of seven years under section 201 P.P.C. and directed to pay fine of Rs.100,000/- and in default of payment of fine to undergo simple imprisonment of six months. The convict was ordered to be hanged by his neck till death. Arshad Mahmood son of Fazal Karim:- i) Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Nosherwan son of Ghulam Haider (deceased) and directed to pay Rs. 5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to undergo simple imprisonment of six months. ii) Rigorous imprisonment of seven years under section 201 P.P.C. and directed to pay fine of Rs.100,000/- and in default of payment of fine to undergo simple imprisonment of three months. Abdul Rehman son of Muhammad Khan:- Rigorous imprisonment of seven years under section 201 P.P.C. and directed to pay fine of Rs.100,000/- and in default of payment of fine to undergo simple imprisonment of three months. The convicts namely Tahir Mahmood son of Fazal Karim, Arshad Mahmood son of Fazal Karim and Abdul Rehman son of Muhammad Khan were however extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court. Muhammad Farooq, the co-accused of the convict, was however acquitted by the learned trial court.

2. Feeling aggrieved, Tahir Mahmood son of Fazal Karim (convict) lodged the Criminal Appeal No.839-J of 2023, assailing his conviction and sentence. Feeling aggrieved, Arshad Mahmood son of Fazal Karim (convict) lodged the Criminal Appeal No.838-J of 2023, assailing his conviction and sentence. Feeling aggrieved, Abdul Rehman son of Muhammad Khan (convict) lodged the Criminal Appeal No.555 of 2023, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.73 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Tahir Mahmood son of Fazal Karim (convict). We intend to dispose of the Criminal Appeal No.839-J of 2023, the Criminal Appeal No.838-J of 2023, the Criminal Appeal No.555 of 2023 and the Murder Reference No.73 of 2023 through this single judgment.

3. Precisely, the necessary facts of the prosecution case, as stated by Abid Hussain (PW-3), the eye-witness of the incident, are as under:- States that Muhammad Nosherwan deceased was real son of complainant. On 27.07.2020, real son of complainant namely Nosherwan along with me as well as complainant Ghulam Haider was going to offer prayer at mosque "Jameya Ghosia Lilla Hindwana" at Maghreb time. After offering prayer, deceased son Nosherwan of complainant on his motorcycle bearing registration No.7145-RID (CD-70) was going towards house of Asad Mahmood son of Ahmad Khan for giving religious education to children there, while I along with complainant Ghulam Haider riding on another motorcycle, were behind him. When Nosherwan reached near the house of Nasir Khan near street of Fuji Foundation and near to the house of Faiz Ali at about 07:45 p.m. Arshad Mahmood (armed with Toka) on his motorcycle with Muhammad Farooq (empty handed) and Tahir Mahmood (armed with Toka) sitting behind him, came there, where accused Tahir Mahmood who was armed with Toka caused his Toka blow at his son namely Nosherwan at his forehead. On this, he fell face down. Tahir Mahmood, Arshad Mahmood and Muhammad Farooq came down from said motorcycle. Muhammad Farooq caught hold son of complainant from his legs whereas accused Tahir Mahmood inflicted him six repeated Toka blows landed at his neck, backside of head, right shoulder and his waist, whereafter Arshad Mahmood inflicted his four Toka blows at his left eye, left chin, chick, neck and front of chest. On this, I and Ghulam Haider raised hue and cry. On this, accused fled away from the place of occurrence. While fleeing from place of occurrence, Toka in the hand of Tahir Mahmood accused fell down at the spot. I and Ghulam Haider witnessed the occurrence whereas son of complainant namely Nosherwan succumbed to the injuries at the spot. Motive of occurrence is previous enmity of murder. All the accused in furtherance of their common intention has committed murder of son of complainant..

4. The accused were summoned to face trial in the case instituted upon the private complaint titled Ghulam Haider v. Tahir Mahmood and 3 others (relating to FIR No. 125 of 2020 dated 27.07.2020 registered at Police Station Lilla, District Jhelum) in respect of offences under sections 302,201,114 and 34 P.P.C. for committing the Qatl-i-Amd of Nosherwan son of Ghulam Haider (deceased). The learned trial court framed the charge against the accused on 08.05.2021, to which the accused pleaded not guilty and claimed trial.

5. The prosecution in order to prove its case got recorded statements of as many as ten witnesses. The ocular account of the case was furnished by Abid Hussain (PW-3). Muhammad Ikram 822/C (PW-2) stated that on 28.07.2020, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post-mortem examination of the dead body of the deceased and on 10.09.2020, the appellant got recovered the motorcycle (P-5) and also pointed out the place where he changed his clothes after the occurrence. Muhammad Nawaz 54/HC (PW-4) stated that on 27.07.2020, the Investigating Officer of the case handed over to him four sealed parcels and on 30.07.2020, he handed over the said sealed parcels to Shahbaz Ahmad, SI (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 16.08.2020, he received the CDR of the mobile phone devices and handed over the same to Shahbaz Ahmad, SI (PW-8). Irfan Atta, SI (PW-5) stated that on 27.07.2020, he got recorded the formal FIR (Exh.PG). Asif Akhtar Naqash, Draftsman (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PN). Yasir Rabbani, Inspector (PW-10) investigated the case from 01.10.2020 till 04.11.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Shahbaz Ahmad, SI (PW-8) investigated the case from 27.07.2020 till 03.10.2020, arrested the appellant namely Tahir Mahmood in this case on 07.09.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6. The complainant also got Dr. Khalid Mahmood Farooqi (PW-1) examined, who on 28.07.2020 was posted as APMO at THQ hospital Pind Dadan Khan and on the same day conducted the post-mortem examination of the dead body of the deceased, namely Nosherwan son of Ghulam Haider. Dr. Khalid Mahmood Farooqi (PW-1) on examining the dead body of the deceased namely Nosherwan son of Ghulam Haider , observed as under:-

1. A large sharp edge wound size of 12x3 c.m. was present on the back of neck. Wound was deep up to the wound (cervical vertebrae). Cervical vertebrae were found fractured and spinal cord was found damage. 2.A sharp edge wound size of 6x1.5 c.m was transversely was present on the back of neck, wound beneath the bone was exposed and sharp cut mark was present beneath the bone. 3.A sharp edge wound size of 8x2 c.m. was present on the back of skull, bone beneath the bone was exposed and sharp cut mark was present beneath the bone. 4.A sharp edge wound size of 5x2 c.m. was present on the right side of neck, just below the right ear. 5.A sharp edge wound size of 9x2 c.m. was obliquely present on the left frontal region of skull, bone beneath the bone was exposed and sharp cut mark was present beneath the bone.

6. A small skin deep wound was present just below the right eye.

7. A sharp edge wound size of 5x2 c.m. was present on the left cheek.

8. A sharp edge wound size of 8x2 c.m. was present on the chin just below the lower lip... 9. 6 line of small punctured wound skin deep were present in front of neck distance was equal in between punctured wound. Sign of inflammation was present.

10. A line of small punctured wound skin deep was present in front of right shoulder distance was equal in between punctured wound.

11. A straight line of small punctured wound skin deep was present in front of chest distance was equal in between punctured wound. Total numbers of punctured wound was fifteen.

12. A straight line of small punctured wound skin deep was present on the right scapula region distance was equal between punctured wound.

13. A straight line of small punctured wound skin deep was present just behind the right shoulder . OPINION In my opinion, all injuries were ante-mortem and were caused by heavy sharp weapon except injuries Nos.10, 11, 12 and

13. Death occurred due to extensive head injury, brain and spinal cord damages, which was sufficient to cause death in ordinary course of life.

7. On 15.07.2023, the learned counsel for the complainant closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PU and Exh.PV), certified copy of FIR No. 82 of 2016 (Exh.PW), certified copy of FIR No. 101 of 2016 (Exh.PX), and copies of judgments (Exh.PY and Exh.PZ).

8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Tahir Mahmood son of Fazal Karim, Arshad Mahmood son of Fazal Karim and Abdul Rehman son of Muhammad Khan under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Tahir Mahmood son of Fazal Karim, Arshad Mahmood son of Fazal Karim and Abdul Rehman son of Muhammad Khan opted not to get themselves examined under section 340(2) Cr.P.C. however the appellant namely Tahir Mahmood produced documents (Mark DA and Mark DB) as evidence in his defence.

9. On the conclusion of the trial, the learned Additional Sessions Judge, Pind Dadan Khan convicted and sentenced the appellants as referred to above.

10. The primary contention of the learned counsel for the appellants was that the whole case was fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statement of the sole eye-witness namely Abid Hussain was not worthy of any reliance. The learned counsel for the appellants also argued that nothing incriminating was recovered from the appellants during the investigation of the case. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the appellants beyond the shadow of doubt.

11. On the other hand, the learned Deputy Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased was murdered by the appellants and reliance could be placed on the statement of the prosecution witness namely Abid Hussain (PW-3) as he had proved to be a truthful witness. The learned Deputy Prosecutor General and the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. The learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeals as lodged by the appellants.

12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General, the learned counsel for the complainant and with their assistance carefully perused the record and evidence recorded during the trial.

13. It is a fact of the case that the complainant of the case died prior to recording of his evidence by the learned trial court and only one eye-witness namely Abid Hussain (PW-3) appeared before the learned trial court. We are also conscious of the rule of the appreciation of evidence that it is the quality and not the quantity of the witnesses which is to be considered by us for arriving at a correct decision. The ocular account of the incident was narrated by the prosecution witness namely Abid Hussain (PW-3). The relationship of the said witness with the deceased is on record. Nosherwan (deceased) was the brother in law of the prosecution witness namely Abid Hussain (PW-3). The prosecution witness namely Abid Hussain (PW-3), during cross-examination, stated as under:- It is correct that I am son-in-law of the complainant. The prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) were also admittedly not the residents of the place of occurrence. According to the prosecution witness namely Abid Hussain (PW-3) , both, he and Ghulam Haider (since dead), had their residences at a distance from the place of occurrence. The prosecution witness namely Abid Hussain (PW-3) also admitted that neither he had any residence nor any business set up near the place of the occurrence. The prosecution witness namely Abid Hussain (PW-3), during cross-examination stated as under:- It is correct that I have no business, shop, property, house or any interest near the alleged place of occurrence In this manner, the prosecution witness namely Abid Hussain (PW-3) can be validly termed as a chance witness and therefore was under a bounden duty to provide a convincing reason for his presence at the place of occurrence, at the time of occurrence and were also under a duty to prove his presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witness namely Abid Hussain (PW-3) failed miserably to provide any consistent evidence as to the reason for his arrival at the place of occurrence and his presence at the place of occurrence when the same was taking place. According to the prosecution witness namely Abid Hussain (PW-3), the reason for their arrival at the place of occurrence was that after offering prayers at the mosque ,the deceased started for the house of Asad to impart teaching of the Holy Quran to his children, whereas the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) decided to follow the deceased on their own motorcycle and it was while following the deceased that they came to the place of the occurrence and then witnessed the same. It was admitted by the prosecution witness namely Abid Hussain (PW-3) that he had no reason at all to follow the deceased to the house of Asad. During cross-examination Abid Hussain (PW-3) candidly admitted as under:- It is correct that we did not mention any reason to follow Nosherwan deceased in my cursory statement, before police and even today. (emphasis supplied) Shabaz Ahmad SI (PW-8), the Investigating Officer of the case also admitted during cross-examination as under :- During my whole investigation, complainant and PW Abid never disclosed any reason allegedly following the deceased This very candid admission of the prosecution witness namely Abid Hussain (PW-3) that he had no reason to follow the deceased denudes the falsity of his claim that he had witnessed the occurrence. Then Abid Hussain (PW-3) also claimed that after offering prayers at the mosque, the deceased started for the house of Asad to impart teaching of the Holy Quran to his children however admitted that the said Asad never appeared before the Investigating Officer of the case to verify this claim. Abid Hussain (PW-3) admitted during cross-examination as under :- It is correct that deceased Nosherwan teaches Holy Quran to the children of one Asad who did not turn up to support our version before police. It is correct that neither Asad nor I have made any attempt to produce him before the police in support of our version. During cross-examination Shabaz Ahmad SI (PW-8) ,the Investigating Officer of the case stated as under:- One Asad Mahmood son of Ahmad Khan resident of Lilla Bharwana, never verified the stance of complainant throughout my investigation. It is correct that above said Asad never stated that Nosherwan deceased teaches Quran to his children. (emphasis supplied) Furthermore, it was also claimed by the prosecution witness namely Abid Hussain (PW-3) that on the day of the occurrence he had offered prayers at the Ghosia Mosque with the deceased however also admitted that the said mosque was quite far from his house whereas another mosque where he normally offered prayers was close to his house at a meagre distance. During cross-examination Abid Hussain (PW-3) stated as under :- It is correct that Ghosia Mosque is situated on the western side of house of complainant Ghulam Haider. Said mosque is located at the distance of 40/50 meters from the house of the complainant. It is incorrect to suggest that my house is 4/5 kilometers away from Ghosia Mosque. Volunteered that mosque is situated less than half kilometer from my house. .. Further stated that mosque Chishtian Nezamiyan is close to my house. The mosque Chishtian Nezamiyan is houses away from my house. All the above mentioned mosques belong to Sunni sect. It is correct that in the mosque Chishtian Nezamiyan, prayers are offered five times in a day. I have not disclosed any reason during investigation that instead of mosque Chishtian Nezamiyan why I went to mosque Ghosia on the fateful day. Additionally it was admitted by Abid Hussain (PW-3) that no person appeared before the Investigating Officer of the case to support the claim of the prosecution witness namely Abid Hussain (PW-3) that on the day of the occurrence he had offered prayers at the Ghosia Mosque with the deceased. Abid Hussain (PW-3) admitted during cross-examination as under:- It is correct that I have not made any request or in writing to the police to visit the mosque and inquire the other person (Nemazi) that complainant party entered in the mosque, offered the prayer and left, together. It is correct that neither any Nemazi nor Imam Masjid has verified this fact before police that I and Ghulam Haider came to the mosque on motorcycle and offered prayer. It is incorrect to suggest that numbers of shops are present near Ghosia mosque. Further stated that only one shop is present 8-10 houses away from the mosque. Haji Riaz Barreyar (late) was owner of the shop. It is correct that Haji Riaz Barreyar did not appear before the police to state that he has seen PW-03 and Ghulam Haider while going on motorcycle to the mosque. It is correct that nobody from the mosque/shops are (sic) from houses disclosed before the police that they have seen Nosherwan leaving mosque after Maghreb prayer and going towards alleged place of occurrence. (emphasis supplied) Even Shabaz Ahmad SI (PW-8), the Investigating Officer of the case, admitted that no one verified the presence of Abid Hussain (PW-3) at the mosque on the eve of the occurrence. During cross-examination Shabaz Ahmad SI (PW-8), the Investigating Officer of the case stated as under :- I have not verified from mosque Juma Ghosia the fact that either PWs or deceased offered prayer in that mosque. Complainant and PWs never produced Imam Masjid, Moazzan, Chowkidar and other Nemazi before me in support of their version. It is correct that above said persons never verified the stance of the complainant before me. It is correct that I did not take into possession the C.C.T.V of the Jameya Masjid Ghosia. In this manner, the prosecution witness Abid Hussain (PW-3) failed to prove the stated reason for him and Ghulam Haider (since dead) leaving their residences on the day of occurrence and their subsequent arrival at the place of occurrence. The prosecution witness namely Abid Hussain (PW-3) was badly exposed in this regard and the very foundation upon which the whole edifice of the prosecution case had been built, being that the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) had arrived at the place of occurrence while following the deceased, is shattered resulting in the collapse of the whole prosecution case built upon the said fractured foundation.

14. We have noted that the prosecution witness namely Abid Hussain (PW-3) also claimed that he and Ghulam Haider (since dead) had been following the deceased on a motorcycle. The prosecution witness namely Abid Hussain (PW-3) stated as under:- .deceased son Nosherwan of complainant on his motorcycle bearing registration No.7145-RID (CD-70) was going towards house of Asad Mahmood son of Ahmad Khan for giving religious education to children there, while I along with complainant Ghulam Haider riding on another motorcycle, were behind him. (emphasis supplied) Abid Hussain (PW-3) also candidly admitted that he never produced the said motorcycle before the Investigating Officer of the case. Abid Hussain (PW-3) admitted during cross-examination as under :- It is correct that the motorcycle, on which, I and Ghulam Haider were travelling, was not presented before the police during investigation. (emphasis supplied) Shabaz Ahmad SI (PW-8), the Investigating Officer of the case, visited the place of occurrence, after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence. Shabaz Ahmad SI (PW-8), the Investigating Officer of the case did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) to arrive at the place of occurrence, along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence if the same was available. The said motorcycle which was allegedly used by the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) was not even produced during the entire period of investigation nor was produced before the learned trial court. The non-production of the motorcycle used by the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) to arrive at the place of occurrence and the failure of Abid Hussain (PW-3) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such motorcycle was available. Had a motorcycle been used by the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Shabaz Ahmad SI (PW-8), the Investigating Officer of the case and the same would necessarily have been taken into possession by Shabaz Ahmad SI (PW-8), the Investigating Officer of the case but it admittedly was not and it proves that a false claim was made by the prosecution witness namely Abid Hussain (PW-3) that he and Ghulam Haider (since dead) had arrived at the place of occurrence on a motorcycle. In this manner, the prosecution witness namely Abid Hussain (PW-3) failed miserably to prove that he had indeed arrived at the place of occurrence, at the time when the same was happening. Reliance in this regard is placed on the case of Muhammad Ali v. The State (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:- The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material.

15. We have also observed that the prosecution witness namely Abid Hussain (PW-3) claimed that the deceased was riding a motorcycle when he was struck by the first blow and thereafter the deceased fell from his motorcycle. In such an eventuality the motorcycle of the deceased must have been found damaged due to the crash and laying on the place of the incident however Abid Hussain (PW-3) claimed that the motorcycle of the deceased was parked on its stand at the place of the occurrence. Abid Hussain (PW-3) stated during cross-examination as under:- It is correct that after the alleged occurrence, the motorcycle of the deceased Nosherwan was standing on its stand at the place of occurrence and it was not blood stained. Even Shahbaz Ahmad SI (PW-8), the Investigating Officer of the case on his arrival at the place of the occurrence , found the motorcycle of the deceased was parked on its stand. Shahbaz Ahmad SI (PW-8) stated during cross-examination as under:- As per unscaled site plan Exh.PM/1, the motorcycle was found park (sic) at the alleged place of occurrence This fact of the case also denudes the fact that Abid Hussain (PW-3) had not witnessed the incident.

16. We have noted with grave concern and disquiet that the alleged prosecution witnesses, namely Abid Hussain (PW-3) and Ghulam Haider (since dead) made no effort either to save the deceased. Both Abid Hussain (PW-3) and Ghulam Haider (since dead) were closely related to the deceased. It is unnatural and unbelievable that Abid Hussain (PW-3) and Ghulam Haider (since dead), did not even move a limb to protect their near and dear one. It is strange and rather unbelievable that the accused still succeeded to inflict so many injuries to the deceased in the presence of Abid Hussain (PW-3) and Ghulam Haider (since dead). Abid Hussain (PW-3) and Ghulam Haider (since dead) did not act in any manner to save the life of Nosherwan (deceased). It is vexing to imagine that in what circumstances the accused succeeded in killing the deceased in the presence of Abid Hussain (PW-3) and Ghulam Haider (since dead), without facing any resistance from Abid Hussain (PW-3) and Ghulam Haider (since dead). During the whole episode wherein, the deceased was done to death, Abid Hussain (PW-3) and Ghulam Haider (since dead), kept watching the accused and did not interfere at all. No person with ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or apprehend the assailant. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Abid Hussain (PW-3) and Ghulam Haider (since dead) had been present, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailants and no one was there to save him. Such behaviour, on the part of the witnesses, runs counter to natural human conduct and behaviour. We thus, trusts the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by Abid Hussain (PW-3), was opposed to the common course of natural events, human conduct and that the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead), had not witnessed the occurrence. The august Supreme Court of Pakistan has enunciated binding principles for the appreciation of evidence in such circumstances. Reliance is placed on the case of Zulifqar Ali v. The State (2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under:- Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself a young female with average-built could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causing the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot. Further reliance is placed on the case of Shahzad Tanveer v. The State (2012 SCMR 172) at page-176 wherein the august Supreme Court of Pakistan observed as infra:- It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot. Reliance is also placed on the case of Liaquat Ali v. The State (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under: He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.

17. We have also been vexed by the conduct of Abid Hussain (PW-3) and Ghulam Haider (since dead) that they made no effort to take the deceased to a hospital despite the fact that according to the opinion of Dr. Khalid Mahmood Farooqui (PW-1), the deceased remained alive after receiving the injuries for about 30 minutes. We have also noted that the clothes of the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) were not stained or smeared with the blood of the deceased. Shahbaz Ahmad SI (PW-8), the Investigating Officer of the case ,stated during cross-examination as under :- I have not seen any stain of blood on clothes of Ghulam Haider and Abid Hussain. If Abid Hussain (PW-3) and Ghulam Haider (since dead) had been present, they would have definitely have at least handled the deceased or made an effort to save his life but they did nothing ,exposing the fact the deceased was alone at the time of the occurrence.

18. We have also noted that both the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) were not mentioned either in column No.4 of the inquest report (Exh.PC) as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report (Exh.PC) nor were mentioned at page 4 of the inquest report (Exh.PC) as witnesses who were present at the place of occurrence at the time of preparation of the inquest report (Exh.PC). During cross-examination Shahbaz Ahmad SI (PW-8), the Investigating Officer of the case admitted as under :- It is correct that in application for post mortem, FIR number, offence, name of complainant or any accused person and time of preparation is not mentioned. Same is the case with inquest report (Exh.PC). This fact also points towards the absence of the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) at the place of occurrence, at the time of preparation of the inquest report (Exh.PC) by Shahbaz Ahmad SI (PW-8), the Investigating Officer of the case.

19. Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police. The prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) did not leave the place of occurrence to report the matter to the police themselves but rather kept waiting at the place of occurrence and Shahbaz Ahmad SI (PW-8), the Investigating Officer of the case, arrived at the place of occurrence on his own ,without either of the prosecution witnesses namely Abid Hussain (PW-3) and Ghulam Haider (since dead) having approached the police. Abid Hussain (PW-3) admitted during cross-examination as under :- Police station is located half kilometer from the alleged place of occurrence. It is correct that I did not go to the police station personally to inform the alleged occurrence. Shahbaz Ahmad SI (PW-8), the Investigating Officer of the case, also stated that the written application (Exh.PM) for the registration of the FIR was given to him on his arrival at the spot and the complainant of the case did not mention any reason for the failure to report the matter to the police on his own. Shahbaz Ahmad SI (PW-8) explained during cross-examination as under:- It is correct that information of the case was not received by me through any medium from complainant or his PWs before reaching at the place of occurrence. It is correct that I received (Exh.PM) at about 09:15 pm at the place of occurrence. It is correct that FIR of this case was lodged with the delay of 1:30 hours. Throughout my investigation, complainant and his PWs did not explain any reason behind delay in registration of FIR. (emphasis supplied) The august Supreme Court of Pakistan has already enunciated the principle of appreciation of evidence that the reports of the incidents which are made to the police at the place of incident are necessarily a result of deliberations and consultations and therefore, not worthy of any reliance. The august Supreme Court of Pakistan in the case of Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1155) has observed as under: An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot.

20. We have also noted with disquiet that despite the fact that the occurrence took place at about 07.45 p.m. on 27.07.2020, the postmortem examination of the dead body of the deceased was conducted after much delay. According to Dr. Khalid Mahmood Farooqui (PW-1), he conducted the post mortem examination of the dead body of the deceased on 28.07.2020 at 06.00 a.m. i.e. after as many as ten hours after the death of Nosherwaan (deceased). According to the statement of Dr. Khalid Mahmood Farooqui (PW-1) the dead body of the deceased was brought to the hospital at 05.30 a.m. on 28.07.2020. Moreover, according to Dr. Khalid Mahmood Farooqui (PW-1) and the entries made in the post mortem examination report (Exh.P.A.), the complete police papers were received by Dr. Khalid Mahmood Farooqui (PW-1) at 05.40 a.m. on 28.07.2020. Dr. Khalid Mahmood Farooqui (PW-1), in his statement before the learned trial court, stated as under:- Dead body was received in dead house at 05:30 am.Complete police documents were received at 05:40 a.m. I started conducting autopsy at 06:00 am. (emphasis supplied) Dr. Khalid Mahmood Farooqui (PW-1), who conducted the post mortem examination of the dead body of Nosherwan (deceased) and prepared the post mortem examination report (Exh. P.A.), gave the time between death and post mortem examination as being within ten hours. The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Nosherwan (deceased) is that by that time the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion out a false narrative of the occurrence. No explanation was offered to justify the said delay in conducting the post mortem examination and the delay in escorting the dead body of the deceased to the hospital itself and the delay in submitting the complete papers. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327) has held as under: The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time . The august Supreme Court of Pakistan in the case of Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) has held as under: According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution The august Supreme Court of Pakistan in the case of Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068) has held as under: More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.

10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.

11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting.

21. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witness namely Abid Hussain (PW-3) was previous enmity. A perusal of the statement of the prosecution witness namely Abid Hussain (PW-3) reveals that he failed to prove the motive of the occurrence as narrated by him in his statement before the learned trial court. Abid Hussain (PW-3) admitted during cross-examination as under :- It is correct to suggest that I have no previous enmity with the accused party The perusal of the statement of Abid Hussain (PW-3) clearly proves that he failed to give any evidence enabling us to determine the truthfulness of the motive alleged. The prosecution witnesses failed to prove the fact that the said motive was so compelling that it could have led the appellants to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Moreover, it is an admitted rule of appreciation of evidence that motive is only a corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under: The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.

22. The learned Deputy Prosecutor General submitted that the recovery of the motorcycle (P-5) from the appellant namely Tahir Mahmood son of Fazal Karim offered sufficient corroboration of the statement of the prosecution witness namely Abid Hussain (PW-3). Regarding the recovery of the motorcycle (P-5) from the appellant namely Tahir Mahmood son of Fazal Karim, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the motorcycle (P-5) from the appellant namely Tahir Mahmood son of Fazal Karim which was in clear violation of section 103 Code of Criminal Procedure, 1898. Furthermore, Muhammad Ikraam 822/C (PW-2), the witness of the recovery, also admitted that the place from where the was recovered was inhabited by other people and was not in the exclusive possession of the appellant namely Tahir Mahmood son of Fazal Karim. Muhammad Ikraam 822/C (PW-2) admitted during cross-examination, as under:- Motorcycle like recovered one is easily available in market. It is correct that place of recovery is not house of accused nor was residing prior to recovery .. Lumberdar or Chowkidar did not join investigation regarding aforementioned recovery in my presence. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. Therefore, the evidence of the recovery of the motorcycle (P-5) from the appellant namely Tahir Mahmood son of Fazal Karim cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others v. The State (2017 SCMR 898) at page 901 has held as under:- 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. Furthermore, Abid Hussain (PW-3) admitted that he had not mentioned the registration number, make, colour or even the maker of the motorcycle used by the appellants on the day of the incident in his statements. Abid Hussain (PW-3) admitted during cross-examination as under:- It is correct that I have not disclosed the registration number, colour, model or any particular of the motorcycle used by the accused persons before police. When Abid Hussain (PW-3) had not mentioned any details like the registration number, make, colour or even the maker of the motorcycle used by the appellants on the day of the incident then the recovered motorcycle (P-5) cannot be said to be the same which was under the use of the assailants on the eve of the incident.

23. The learned Deputy Prosecutor General submitted that the Toka (P-9) recovered from the place of the occurrence was left there by the appellant Tahir Mahmood and this fact also supported the case of the prosecution as against the appellant Tahir Mahmood. Though it was stated by Asif Iqbal 947/C (PW-6) the Toka (P-9) was taken into possession from the place of the incident however according to the reports of Punjab Forensic Science Agency, Lahore (Exh.PU and Exh.PV) a KNIFE was sent for the analysis. Obviously, KNIFE and TOKA are entirely different articles. The prosecution could not prove with any degree of certainty as what was recovered from the place of the occurrence and what was sent to the Punjab Forensic Science Agency, Lahore. We have also noted that according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PV), none of the items submitted to the Punjab Forensic Science Agency, Lahore for DNA analysis generated the DNA profile of the appellant namely Tahir Mahmood. Had the appellant namely Tahir Mahmood handled the Toka (P-9) then his DNA profile must have been obtained from the items sent for analysis to Punjab Forensic Science Agency, Lahore but it was not which also proves that the appellant namely Tahir Mahmood had not handled the Toka (P-9). Moreover according to the report of Punjab Forensic Science Agency, Lahore (Exh.PU), no fingerprints of the appellant namely Tahir Mahmood were lifted from the knife sent for analysis to the Punjab Forensic Science Agency, Lahore. All these facts denude the effort made by the Investigating Officer of the case to prop up the failing prosecution case by showing sham recoveries of the Toka (P-9) and the motorcycle (P-5).

24. The learned Deputy Prosecutor General has vehemently argued that the disclosures of the appellant namely Arshad Mahmood made at the time he pointed out the place where he met the appellant namely Tahir Mahmood and as contained in the memo (Exh. PQ) and made at the time he pointed out the place where the appellant namely Tahir Mahmood changed his clothes after the occurrence and as contained in the relevant memo (Exh.PR) and made at the time he pointed out the place where the appellant namely Arshad Mahmood threw the blood stained clothes of the appellant Tahir Mahmood and as contained in the relevant memo (Exh.PS) were admissible and relevant and amounted to a confession of guilt under the provisions of Article 40 of the Qanun-e-Shahadat Order, 1984. The discovery of any fact on the information of the accused in custody of Police is admissible under article 40 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order'), which reads as under:- "

40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." A perusal of above Article 40 of the Qanun-e-Shahadat Order, 1984 reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. It comes into operation only if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody. Thus, in order to apply Article 40 of the Qanun-e-Shahadat, 1984, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source. According to the prosecution case itself, no new fact was discovered as a consequence of the disclosures of the appellant namely Arshad Mahmood on 03.11.2020. Hence, the alleged statements of the appellant namely Arshad Mahmood made in police custody at the time he pointed out the various places on 03.11.2020 cannot be read in evidence and would remain inadmissible. The august Supreme Court of Pakistan in the case of Fazal Subhan and another v. The State and others (2019 SCMR 1027) has enunciated the following principle:- Memo of pointing out of place of occurrence cannot be equated with disclosure within the contemplation Article 40 of the Qanun-e-Shahadat Order, 1984. Reliance in this regard is placed on the case of Hayatullah v. The State (2018 SCMR 2092) wherein the august Supreme Court of Pakistan took an exception to the recording of such statements of the accused made in police custody by the learned trial court and observed as under:-

6. While going through the evidence adduced by the prosecution, we observe, with great concern, that inadmissible evidence has been brought on the record in the shape of admission of the appellant before police, memos of pointing out of place of occurrence and place from where the motorcycle was recovered which were already known to the police and the complainant party. Such inadmissible pieces of evidence, according to law, should not be brought on the record. Astonishingly, the whole disclosure was incorporated/ dictated by the trial court when witnesses were giving evidence. Neither the prosecutor nor the defence made any objection upon bringing the said inadmissible pieces of evidence on record. The trial court while recording the statement of police officials, who recorded the confession of the appellant Hayatullah about the commission of the crime, had totally ignored Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984 according to which this type of evidence was inadmissible as no new facts were discovered on the admission/disclosure of the appellant. The pointing out of the place of incident and the place of recovery of motorcycle cannot be termed as discovery as a consequence of information received from the appellant within the meanings of Article 40 of the Qanun-e-Shahadat Order, 1984 as the said places were already in the knowledge of the police and the complainant party so it was also inadmissible evidence. The memos about pointing out of place of occurrence without recovery prepared by the investigating officer should not be allowed by the trial court to bring on the record but unfortunately such pieces of evidence were allowed to be brought on the record although were inadmissible. A heavy responsibility lies upon the court as well as the prosecution and defence counsel to be alert so that inadmissible evidence should not come on the record. If any party tender such evidence during the trial the other party should immediately raise objection to the admissibility of such evidence and the court should decide the same then and there before proceeding further and prevent it from coming on the record if it is found to be inadmissible in evidence. It is the duty of the trial judge to check such evidence without waiting for any such objection from either side because the judge is required to be vigilant and to play an active role while recording the evidence of witnesses. It is the duty of the court to make distinction between admissible and inadmissible evidence and only admissible evidence should be allowed to come on record. If any inadmissible evidence is brought on the record then it will expose the ability and knowledge of law of the prosecutor and defence counsel. If the trial judge allows to bring the inadmissible evidence on record then it must reflect adversely regarding the knowledge of law and the ability of said Judge. We have observed that in certain cases the case files were found filled with inadmissible evidence which is ultimately to be discarded. It is the duty of the court to stop the witness at the moment he utters inadmissible evidence and should not allow to bring on record such inadmissible evidence.

25. The prosecution has also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the appellants. No voice call data or text messages record or any transcript of the conversations made by the appellants using the mobile phone devices under their use and recovered from them was collected by the Investigating Officer of the case. It is stressed that in the absence of any voice call data or text messages record or any transcript of the conversations made, simply the production of the Call Data Record without the disclosure of the details of the conversation is not relevant to prove any fact supporting the prosecution case against the appellants. Considering the above-mentioned facts in the given circumstances discussed above, doubt is created in the prosecution case, the benefit of which cannot be denied to the appellant. Reliance is placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), wherein, it has been held as under:- The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner.

26. The only other piece of evidence left to be considered is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Khalid Mahmood Farooqi (PW-1) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellants convictions cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled Hashim Qasim and another v. The State (2017 SCMR 986) has enunciated the following principle of law: The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit. The august Supreme Court of Pakistan in its binding judgment titled Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) has enunciated the following principle of law:

31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.

27. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Tahir Mahmood son of Fazal Karim, Arshad Mahmood son of Fazal Karim and Abdul Rehman son of Muhammad Khan in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather, if only a single circumstance creating reasonable doubt in the mind of a prudent person is available, then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)." Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Najaf Ali Shah v. the State" (2021 SCMR 736) in which it has been held as infra: "

9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.

28. For what has been discussed above, the Criminal Appeal No.839-J of 2023 lodged by Tahir Mahmood son of Fazal Karim (appellant) is allowed. The conviction and sentence of Tahir Mahmood son of Fazal Karim (appellant) awarded by the learned trial court through the impugned judgment dated 25.07.2023 are hereby set-aside. The Criminal Appeal No.838-J of 2023 lodged by Arshad Mahmood son of Fazal Karim (appellant) is also allowed. The conviction and sentence of Arshad Mahmood son of Fazal Karim (appellant) awarded by the learned trial court through the impugned judgment dated 25.07.2023 are hereby set-aside. The Criminal Appeal No.555 of 2023 lodged by Abdul Rehman son of Muhammad Khan (appellant) is also allowed. The conviction and sentence of Abdul Rehman son of Muhammad Khan (appellant) awarded by the learned trial court through the impugned judgment dated 25.07.2023 are hereby set-aside. The appellants namely Tahir Mahmood son of Fazal Karim, Arshad Mahmood son of Fazal Karim and Abdul Rehman son of Muhammad Khan are ordered to be acquitted by extending them the benefit of doubt. The appellants namely Tahir Mahmood son of Fazal Karim and Arshad Mahmood son of Fazal Karim are in custody and he is directed to be released forthwith if not required in any other case. The sentence of the appellant namely Abdul Rehman son of Muhammad Khan was suspended by this Court vide order dated 12.09.2023 and he is present before the Court. The sureties of the appellant shall stand discharged from their liability and the bail bonds submitted by the appellant namely Abdul Rehman son of Muhammad Khan are hereby cancelled.

29. Consequently, the Murder Reference No. 73 of 2023 is answered in Negative and the sentence of death awarded to Tahir Mahmood son of Fazal Karim, is Not Confirmed. JK/T-14/L Appeals allowed.