2022 PLP 19 (YLRN)

SADIQ MAHMUD KHURRAM, J.

Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (convicts) were tried along with Muhammad Khan, Nazar Muhammad and Muhammad Yasin (all since acquitted) by the learned Additional Sessions Judge, Haroonabad in case instituted upon the private complaint titled "Mehboob Ali v. Muhammad Ahmad alias Baggi and 10 others" (relating to FIR No. 278 of 2015 dated 07.06.2015 registered at Police Station Faqirwali District Bahawalnagar) in respect of offences under sections 302, 148, 149 and 109, P.P.C. for committing the Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased). The learned trial court vide judgment dated 29.09.2017, convicted Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (convicts) and sentenced them as infra: Muhammad Ahmad alias Baggi son of Nazar Muhammad: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. Muhammad Sabir son of Ghulam Muhammad alias Goman: Imprisonment for life under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 Muhammad Khan, Nazar Muhammad and Muhammad Yasin, the co-accused of the convicts were acquitted by the learned trial court.

2. Feeling aggrieved, Muhammad Ahmad alias Baggi son of Nazar Muhammad (convict) lodged Criminal Appeal No.485-J of 2017 through jail assailing his conviction and sentence. Feeling aggrieved, Muhammad Sabir son of Ghulam Muhammad alias Goman lodged Criminal Appeal No.486-J of 2017 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.33 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad. We intend to dispose of the Criminal Appeal No. 485-J of 2017, Criminal Appeal No. 486-J of 2017 and Murder Reference No.33 of 2017 through this single judgment.

3. Precisely the facts necessary, as divulged in the statement of Mehboob Ali (PW-1) are as under:- "Stated that about 21 months prior Muhammad Irfan and Abdul Hameed PWs told me that at about noon time they were sitting in a hotel of Ezaffi Basti 118/6-R where Nazar Muhammad, Dost Muhammad (since dead), Muhammad Yasin and Muhammad Ameen (Since dead) were also present there, they were talking with each other than Waqar Ahmad (deceased of this case) had got murdered Muhammad Azam and Muhammad Nazim sons of Nazar Muhammad and that the revenge be taken from Waqar Ahmad deceased I narrated the said conspiracy to Waqar Ahmad deceased at his shop. On the same day at about 3/4 p.m. I along with Waqar Ahmad deceased were sitting at the shop of Waqar Ahmad situated in Lahori Bazar Faqirwali where Ghulam Hussain and Maqsood Ahmad PWs also attracted there at about 5.15 p.m. (before the occurrence), and we were talking with each other in the meanwhile three motorcyclists were came there and out of the said motorcyclists Muhammad Ahmad alias Baggi armed with pistol, 30 bore. Muhammad Khan armed with pistol 30/bore, Muhammad Ikram armed with pistol 30/bore, Shah Nawaz armed with pistol 30/bore, Sabir Hussain armed with pistol repeater 12/bore, Naseer Ahmad armed with repeater 12/bore and two unknown accused persons armed with firearms weapons. The said accused person namely Muhammad Ahmad alias Baggi present in the court made a lalkara and at the same moment he fired with his pistol 30/bore which hit on chest of Waqar Ahmad deceased, then Muhammad Ikram made a fire with his pistol 30/bore which hit on right flank of Waqar Ahmad, then Sabir Hussain made third fire with his repeater 12/bore which hit on right arm of Waqar Ahmad, later on Naseer Ahmad also made a fire with his repeater 12/bore which hit on abdomen of Waqar Ahmad on which Waqar Ahmad fell down and then Shah Nawaz made a fire with his pistol 30/bore which hit on back of Waqar Ahmad, then Muhammad Khan made a fire with his pistol 30/bore hitting Waqar Ahmad, the rest of the accused persons also made aerial firing and fled away from the spot with their respective weapons. We attended Waqar Ahmad deceased who died at the spot due to the injuries. After living the PWs near the dead body I went to the police station where I submitted application Exh. PA which is signed by me and on the basis of said application formal FIR No.278/2015 was registered at P/S Faqirwali. As the accused persons are influential persons, therefore, due to influence of the accused persons the police did not investigate the case properly, therefore, I filed the present complaint Exh.PB which was read over to me and I signed the same as token of its correctness. The accused persons Muhammad Ahmad alias Baggi etc mentioned above committed the murder of Waqar Ahmad on the abetment and instigation of Muhammad Ameen, Dost Muhammad (since dead persons). Muhammad Yasin and Nazar Muhammad, the accused persons present in the court."

4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Mehboob Ali v. Muhammad Ahmad alias Baggi and 10 others" (relating to FIR No. 278 of 2015 dated 07.06.2015 registered at Police Station Faqirwali District Bahawalnagar) in respect of offences under sections 302, 148, 149 and 109, P.P.C. for committing the Qatl-i-Amd of Waqar Ahmad son of Ghulam Rasool (deceased). The learned trial court framed the charge against the appellant on 07.02.2017, to which the appellant pleaded not guilty and claimed trial.

5. The complainant in order to prove its case got recorded statements of as many as five witnesses. The ocular account of the case was furnished by Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2). Muhammad Irfan (PW-3) stated that he heard Nazar Muhammad and Muhammad Yasin (both since acquitted) conspiring to murder the deceased and that he also identified the dead body of the deceased at the time of its post mortem examination. Akhtar Ali (PW-4) stated that the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad led to the recovery of the pistol (P-3) in his presence. Ghulam Hussain (PW-5) stated that he was also an eye-witness of the case and in his presence the police took into its possession blood stained earth through recovery memo (Exh.PE), four empties of 30-bore (P-4/1-4), two empties of 12-bore (P-5/1-2) and a cot (P-6) from the place of occurrence.

6. The learned trial court also examined as many as ten witnesses as court witnesses. Muhammad Azam, 419/C (CW-4) stated that on 24.06.2015 Muhammad Yaqoob 368/HC (CW-7) handed over to him one sealed parcel said to contain blood stained earth for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Safdar Hussain 94/C (CW-5) stated that non bailable warrants of arrest (Exh. CW-5/C) of the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad were entrusted to him.Ghulam Yasin draftsman (CW-6) prepared the scaled site plan of the place of occurrence (Exh.CW-6/A). Naseer Ahmad 1279/C (CW-8) stated that on 07.06.2015 he escorted the dead body of the deceased for post mortem examination and the Medical Officer handed over him to last worn clothes of the deceased. Saqib Murtaza 112/HC (CW-9) stated that on 09.12.2015 Mehmood Ahmad, SI (CW-2) handed over to him a sealed parcel said to contain a pistol which he, on the same day, handed the parcel back to Mehmood Ahmad, SI (CW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Saqib Murtaza 112/HC (CW-9) further stated that on 21.02.2016 Kashif Iqbal, ASI (CW-1) handed over to him a sealed parcel said to contain a gun 12-bore which he, on the same day, handed over parcel to Kashif Iqbal, ASI (CW-1) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Nasir Ali Saqib DSP/SDPO Fortabbas (CW-10) investigated the case from 04.12.2015 till 06.12.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Kashif Iqbal, ASI (CW-1) investigated the case from 26.12.2015 till 15.03.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Mehmood Ahmad, SI (CW-2) investigated the case from 07.06.2015 till 27.11.2015, arrested the appellant namely Mehmood Ahmad alias Baggi son of Nazar Muhammad on 18.11.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

7. The learned trial court also examined Dr. Ahmad Raza (CW-3) who on 07.06.2015 was posted as Medical Officer at RHC Faqirwali and on the same day conducted the postmortem examination of Waqar Ahmad son of Ghulam Rasool (deceased). Dr. Ahmad Raza (CW-3) on examining the dead body of Waqar Ahmad son of Ghulam Rasool (deceased) observed as under: "DESCRIPTION OF INJURIES. Injury No 1. 1- A lacerated wound 2 X 1 cm with inverted edges on postero lateral part of right chest with inverted edges. Injury No. 2 A lacerated wound 3 X2 cm on front of left shoulder with everted edges. Injury No. 3 A lacerated wound 2 X 1 cm with inverted edges on back of right upper chest. Injury No.

4. A lacerated wound 2 X 1 cm with on back of right chest with inverted edges. Injury No 5 A lacerated wound 2 X 1 cm with inverted edges on lateral part of right chest. Injury No:6 Two lacerated wounds 3 X 2 cm with everted edges on left upper chest Posteriorly. Injury No.

7. A lacerated wound 8 X 5 cm on right forearm and wrist joint with inverted edges on lateral and everted edges on medial side. Injury No

8. Multiple (08) lacerated wounds on anterior part of abdomen, skin deep. All injuries were mussel(sic) deep and ante-mortem and Blackening were present. OPINION In my opinion, the death in this case was occurred due ta excessive bleeding and damaged vital organs (lungs) due to injuries Nos.1 to 6 caused by firearm."

8. On 18.04.2017, the learned Assistant District Public Prosecutor, on the instructions of the complainant of the case, gave up witness namely Abdul Hameed as being unnecessary. On 20.06.2017, the learned Assistant District Public Prosecutor, on the instructions of the complainant of the case, gave up witnesses namely Ghulam Hussain and Abdul Hameed as being unnecessary and closed the prosecution evidence after tendering in evidence, the report of Punjab Forensic Science Agency, Lahore (Exh.PH) and the report of Punjab Forensic Science Agency, Lahore (Exh.PJ).

9. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, each of them replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman opted not to get themself examined under section 340(2), Cr.P.C and did not adduce any evidence in their defence.

10. On the conclusion of the trial, the learned Additional Sessions Judge, Haroonabad convicted and sentenced the appellant as referred to above.

11. The primary contention of the learned counsel for the appellants is that the whole case is 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 statements of Mehboob Ali (PW-1) and Maqsood Ali (PW-2) were not worthy of any reliance. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants submitted that the learned trial court, while disbelieving the same evidence, had acquitted Muhammad Khan, Nazar Muhammad and Muhammad Yasin, the co-accused of the appellants and the conviction awarded to the appellants, on the basis of same evidence, was not justified. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt.

12. On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2). They further argued that the recovery of the pistol (P-3) from the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of appeal.

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

14. The whole prosecution case revolves around the statements of Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2). These witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) were related to each other. Their relationship with the deceased is also on record. The deceased namely Waqar Ahmad was the brother in-law (Sala) of Mehboob Ali (PW-1) and the brother in-law (Behnoi) of Maqsood Ahmad (PW-2). Mehboob Ali (PW-1) during cross-examination admitted as under:- "Both the PWs Maqsood Ahmad and Ghulam Hussain are my cousins. Both the PWs came there of their own consent as Maqsood PW is brother in-law of Waqar Ahmad deceased whereas Ghulam Hussain is also phophizad of Waqar Ahmad deceased." It is an admitted fact that both of the prosecution witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) did not have their residences or their houses at or around the place of occurrence. They were both "chance witnesses". We have noted that the houses or the place of work or any land of both the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) has not been shown at or around the place of occurrence in the scaled site plan of the place of occurrence (Exh. CW-6/A) as prepared by Ghulam Yasin draftsman (CW-6) or the rough site plan of the place of occurrence (Exh. CW-2/B) as prepared by Mehmood Ahmad, SI (CW-2), the Investigating Officer of the case. In this manner, both the witnesses were under a duty to prove as to why they had come to the place of occurrence, just prior to the occurrence, when they had no business to be there in the normal course of their routine. Maqsood Ahmad (PW-2) in his statement before the learned trial court did not give any reason for his sudden arrival at the place of occurrence, the shop of the deceased, which shop was under construction during the days of the occurrence. Maqsood Ahmad (PW-2) during cross-examination stated as under:- "I reached there about 1-1-1/2 minutes prior to the occurrence. I and Ghulam Hussain witness came at the place of occurrence together." Maqsood Ahmad (PW-2) was under a duty to explain as to why he came to the place of occurrence just prior to the happening of the same when he had no reason to be present there at that time. Mehboob Ali (PW-1) stated that his reason for the presence at the place of occurrence was that he had been told by Muhammad Irfan (PW-3) that he had heard Nazar Muhammad and Muhammad Yasin (both since acquitted) conspiring to murder the deceased and on being told the same by Muhammad Irfan (PW-3) he went to the shop of Waqar Ahmad (deceased). Mehboob Ali (PW-1) did not state as to when Muhammad Irfan (PW-3) had told him about the said conspiracy and furthermore Mehboob Ali (PW-1) also did not state as to since when he was present at the shop of Waqar Ahmad (deceased). Mehboob Ali (PW-1) admitted during cross-examination that he never reported the said information given to him by Muhammad Irfan (PW-3) regarding the planning of the co-accused of the appellants and also admitted that there was an intervening period of 4-5 hours between the two events. Mehboob Ali (PW-1) during cross-examination stated as under:- "About the conspiracy of murder of Waqar Ahmad, said Waqar Ahmad did not move any application to the police. It is correct that 4-5 hours consumed between conspiracy and murder of Waqar Ahmad. The place of occurrence was situated about one half kilometer from the police station Faqirwali". In this manner, Mehboob Ali (PW-1) failed in his endeavour to prove the reason for his presence at the place of occurrence, at the time of occurrence. Furthermore, the statement of Muhammad Irfan (PW-3) was disbelieved and both Nazar Muhammad and Muhammad Yasin, the co-accused of the appellants who had been heard by Muhammad Irfan (PW-3) planning to murder the deceased, were acquitted. The acquittal of both the said Nazar Muhammad and Muhammad Yasin, the co-accused of the appellants, was assailed by Mehboob Ali (PW-1) through Petition for Special Leave to Appeal No.52 of 2017, however the same was dismissed by this Court on 12.02.2020 and the matter was not assailed further. In this manner, the acquittal of both the said Nazar Muhammad and Muhammad Yasin, the co-accused of the appellants, has attained finality. In this manner, the very reason due to which Mehboob Ali (PW-1) had come to the shop of the deceased prior to the occurrence has been proved not to be existing. Therefore, Mehboob Ali (PW-1) miserably failed to prove as to why he was present at the shop of the deceased prior to the occurrence. In this manner, both the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) failed to prove their stated reason for their presence at the place of occurrence, at the time of occurrence. We have also noted that the alleged eye-witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) were not mentioned in column No.4 or the Page 4 of the inquest report (Exh. CW-2/D) as being the ones who were shown to have been present at the time of preparation of the said inquest report (Exh. CW-2/D) by the investigating officer though the same was prepared at the place of occurrence. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem examination of the same. We have also noted that both the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) claimed that after the occurrence they attended to the deceased. In such a scenario the clothes of both Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) should have been smeared with blood however Mahmood Ahmad, SI (CW-2), the Investigating Officer of the case, did not take any such blood-stained clothes of the witnesses in possession. Guidance is sought from the cases of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142), Mst. Mir Zalai v. Ghazi Khan and others (2020 SCMR 319) and the case of Nadeem alias Kala v. The State and others (2018 SCMR 153). All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the place of the occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant, Ghulam Farid and Manzoor Ahmed,who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and the said eye-witnesses were, thus, chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."

15. Another grave flaw in the prosecution case is that Ghulam Hussain (PW-5) was stated to be present at the place of occurrence, at the time of occurrence and was narrated to have witnessed the same, however, while appearing before the learned trial court Ghulam Hussain (PW-5) though claimed that he was an eye-witness of the case, however did not narrate any details of the same and furthermore did not identify the appellants present in the learned trial court as being those who had committed the occurrence. Ghulam Hussain (PW-5) in his examination in chief stated as under:- "Stated that on 07-06-2015 Waqar Ahmad deceased of this case was murdered. I was an eye-witness of said occurrence. After registration of case, the police came at the spot and I joined the investigation. The police inspected the place of occurrence and secured blood stained earth from the spot, made it into a sealed parcel and took the same into possession through recovery memo Exh PE attested by me as well as Abdul Hameed son of Bhoor Khan, IO recorded our statements under section 161 of Cr.P.C in this respect. The IO also secured 04 crime empties of pistol 30/bore P-4/1-4, 02 crime empties of repeater 12/bore 15/1-2 and made the same into a sealed parcel and took the same into possession through recovery memo Exh.PF duly attested by me as well as Abdul Hameed son of Bhoor Khan and IO recorded our statements under section 161, of Cr.P.C in this respect. The IO also took into possession a cot P-6 (blood stained) through recovery memo Exh.PG duly attested by me as well as Abdul Hameed son of Bhoor Khan and IO recorded our statements under section 161 of Cr.P.C in this respect." (emphasis supplied) This utter and complete failure of Ghulam Hussain (PW-5) to narrate the details of the occurrence and to identify the appellants as being those who had committed the occurrence, has repercussions entailing nurturing of substantial doubt with respect to the prosecution case against the appellants. Ghulam Hussain (PW-5) also did not state that Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) were also present at the place of occurrence, at the time of occurrence and that both the said witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) had even seen the occurrence. Ghulam Hussain (PW-5) was not declared hostile by the prosecution nor he was re-examined nor any application was submitted for his further examination and the evidence of Ghulam Hussain (PW-5) was admitted as true by the prosecution. No reason existed which could have persuaded Ghulam Hussain (PW-5), the alleged eye-witness of the occurrence and the paternal cousin (Phuphizad) of the deceased, for not naming the appellants as accused in his statement before the learned trial court. When Ghulam Hussain (PW-5), the alleged eye-witness of the occurrence did not saddle the appellants with the responsibility of committing the occurrence, we cannot presume the same. This unchallenged statement of Ghulam Hussain (PW-5) wherein he neither named the appellants present before the learned trial court as accused nor named the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) as being present at the place of occurrence, at the time of occurrence, is in itself sufficient to put the entire prosecution case in the realm of obscurity. Thus we have reached the irresistible conclusion that the prosecution witnesses, who claimed to be eye-witnesses of the occurrence, were worthy of no reliance as they failed miserably to prove any fact in issue.

16. We have also noted that the witness namely Mehboob Ali (PW-1) admitted during cross-examination that enmity existed between him, his son and Ghulam Hussain (PW-5) and the appellants. Mehboob Ali (PW-1) during cross-examination stated as under:- "It is correct that Sabir Hussain and Naseer Ahmad accused persons of this case were cited as witnesses of case of murder of Muhammad Nazim alias Taidi, the brother of deceased Muhammad Azam alias Kali. . It is correct that Waqar Ahmad deceased was not accused of case of murder of Nazim alias Taidi. It is correct that allegation against Waqar Ahmad deceased in case of murder of Muhammad Azam alias Kali was to the extent of conspiracy (109 P.P.C.). .. The accused Irfan of case FIR No.537/2014 regarding the murder of Muhammad Azam alias Kali (my cousin/phophizad) and awarded to death sentence. It is correct that I and my son Faizan Mehboob are nominated accused persons in case of murder of Muhammad Nazim alias Taidi and other accused, the other accused are relatives of Waqar Ahmad but not of mine. It is incorrect to suggest that I am deliberately suppressing the relationship with other accused of case of murder of Muhammad Nazim alias Taidi. It is correct that Khadim Hussain and Ghulam Hussain are the real brothers of Muhammad Hussain, father of convicted accused Muhammad Irfan. It is correct that Khadim Hussain is nominated accused in Case FIR No.226/2015 and Tanzeel was nominated through supplementary statement. It is also correct that Imran son of Ghulam Hussain is nominated accused of case FIR No. 226/2015 under section 302, P.P.C. Police Station Faqirwali." (emphasis supplied) The above referred portion of the cross-examination fully reveals that Mehboob Ali (PW-1) and Ghulam Hussain (PW-5), should have been the prime targets of the assailants whereas the deceased, by their own admission, was not even accused of the case of murder of Nazim alias Taidi. Furthermore, according to the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2), they were in clear view, at a meagre distance, from the assailants and unarmed whereas the appellants were allegedly armed with firearm weapons whereas their co-accused were also armed with various weapons. Both the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) claimed that they were sitting on a single cot along with the deceased when the occurrence took place. Maqsood Ahmad (PW-2) during cross-examination stated as under:- "I had got recorded before the police in my statement under section 161 of Cr.P.C that we were sitting on one cot." Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellants or their co-accused for not doing away with the witnesses namely Mehboob Ali (PW-1) and Ghulam Hussain (PW-5), their main adversaries. In this scenario, it is hard to believe that the witnesses namely Mehboob Ali (PW-1) and Ghulam Hussain (PW-5) would have been shown the courtesy of being not fired at all when they should have been the prime targets of the assailants. Furthermore, it was the claim of the prosecution witnesses that as many as eight accused in total fired from weapons of different bores at the time of occurrence and in the midst of this indiscriminate firing, the witnesses namely Mehboob Ali (PW-1), Maqsood Ahmad (PW-2) and Ghulam Hussain (PW-5) did not receive even a single scratch on their persons during the whole occurrence. If the witnesses namely Mehboob Ali (PW-1), Maqsood Ahmad (PW-2) and Ghulam Hussain (PW-5) had been present in the view of the assailants, then they would not have been spared. Both Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) claimed that they did not receive any injury because they had hidden themselves behind the pillars available at the place of occurrence, however this claim of theirs was also denuded as they admitted that no marks of bullets were present on the said pillars. Mehboob Ali (PW-1) during cross-examination stated as under"- "All the accused persons who made fires upon Waqar Ahmad were standing at the same parallel. They were standing at about 4/5 feet away from Waqar Ahmad deceased. .. PWs were hiding behind the pillars when accused persons were firing, one piller (sic) is at a distance of 4/5 feet from cot and the second pillar was at a distance of about ten feet. It is correct that both the pillars were in front of cot. There were no signs of firing on said pillars. Similar was the position of back wall of the shop". (emphasis supplied) Similarly, Maqsood Ahmad (PW-2) admitted during cross-examination as under:- "There was no sign of firing on the pillars as well as back wall of the shop." We have noted with grave concern that it was claimed by the prosecution witnesses that they namely Mehboob Ali (PW-1), Maqsood Ahmad (PW-2) and Ghulam Hussain (PW-5) were miraculously saved in the midst of the firing. Blessing them with such an incredible consideration and showing them such favour is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellants and their co-accused did not cause any injury to them. Such behaviour, on part of the accused, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailants, as deposed to by the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2), was opposed to the common course of natural events and human conduct. Hence, we are holding that both Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) were not present at the place of occurrence, at the time of occurrence and did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses were not present at the place of occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report." The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence." The august Supreme Court of Pakistan in the case of Muhammad Farooq and another v. The State (2006 SCMR 1707) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased." We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."

17. We have also noted that according to the prosecution witness namely Maqsood Ahmad (PW-2), the place of occurrence was situated in a thickly populated area and was surrounded by shops and houses. Maqsood Ahmad (PW-2) during his statement recorded by the learned trial court stated as under:- "Many other persons also attracted at the spot. . It is correct that the place of occurrence is surrounded by other shops and houses and it is thickly populated area. " We have also noted that according to the rough site plan of the place of occurrence (Exh. CW-2/B) as prepared by Mehmood Ahmad, SI (CW-2), the Investigating Officer of the case, near and around the place of occurrence, there were shops and houses constructed. None of those who had their houses or their shops around the place of occurrence joined the investigation of the case and also did not appear before the learned trial court to support the prosecution case. The prosecution was under a bounden duty to produce the witnesses who were the residents of the place of occurrence. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under: - "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled "Nadeem alias Nanha alias Billa Sher v. The State" (2010 SCMR 949) wherein it has been observed as under: - " .. further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."

18. We have also noted with anxiety that Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2), the eye-witnesses of the occurrence, made dishonest improvements to their previous statements. Both the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) were duly confronted with their previous statements. Mehboob Ali (PW-1) during cross-examination admitted as under:- "I did not mention in Exh.PA the name of Muhammad Ahmad alias Baggi that he raised lalkara however I mentioned that the accused persons made lalkara. It is incorrect to suggest that I have deliberately attributed lalkara to Muhammad Ahmad alias Baggi in my chief to crate (sic) gravity against him. It is correct that I had mentioned in my application Exh.PA that Sabir Hussain accused made fire with repeater 12/bore which hit on arm of Waqar Ahmad confronted with Exh.PA where it is mentioned that Sabir Hussain accused made fire with his repeater 12/bore which hit on right hand of Waqar Ahmad." (emphasis supplied) Similarly, Maqsood Ahmad (PW-2) was cross-examined and the learned trial court observed as under:- "I got recorded in my statement under section 161 of Cr.P.C that after arrival of accused persons, Muhammad Ahmad alias Baggi made lalkara confronted with Exh.DB where it is recorded that accused persons raised a lalkara. I had mentioned before the police that Sabir made fire with repeater which hit Waqar on right hand confronted with Exh DB where it is not so recorded however it is recorded that Sabir and unknown persons made aerial firing." (emphasis supplied) We have also observed that during course of investigation of the case, Mehboob Ali (PW-1), the complainant of the case moved an application (Exh.DA) naming one Hidayat Ullah son of Shahab Din (since acquitted) as the person who had committed the occurrence and murdered the deceased. As a consequence of the application moved by Mehboob Ali (PW-1), the said Hidayat Ullah son of Shahab Din (since acquitted) was arrested and recovery of Repeater gun (P-7) was also made from him. Though Mehboob Ali (PW-1) denied making the application (Exh.DA), however the learned trial court allowed the same to be brought on record. During the cross-examination of Mehboob Ali (PW-1) it was recorded by the learned trial court as under:- "It is incorrect to suggest that I had submitted an application before IO nominating the accused Hadayait Ullah son of Shahab Din Caste Mashki resident of Chak No.118/6-R Ezaffi Basti in which I had mentioned that Hadayat Ullals accused should be nominated in my case FIR No.278/2015 and repeater should be recovered from him as Hadayait Ullah had murdered Waqar Ahmad through his repeater. At this stage signatures on application shown to PW who refused to own it volunteered to add that the police of its own prepared the said application by affixing my fake signatures upon it however I did not submit any application in this regard. It is incorrect to suggest that I am deliberately suppressing the above said facts. Application is available in the police file and the same be detached and annexed as Exh.DA in the case in hand. It is correct that I had not submitted any application against IO regarding false preparation of said false application before high ups of the police preparation of said false application before high ups of the police. It is correct that from the date of arrest of the accused Hadayat Ullan, he is confined in District Jail Bahawalnagar till today." (emphasis supplied) Kashif Iqbal, ASI (CW-1), one of the Investigating Officer of the case also stated that the application with regard to the involvement of Hidayat Ullah son of Shahab Din (since acquitted) was submitted to him. Kashif Iqbal, ASI (CW-1) in his statement before the learned trial court stated as under:- "Stated that on 26-12-2015 the investigation of this case was entrusted to me and on 31.12.2015. I recorded the supplementary statements of the complainant and that of witnesses under section 161 of Cr.P.C in which the complainant and witnesses nominated the accused namely Hadayait Ullah (since acquitted). . It is correct that on 31-12-2015 1 got recorded the statement of the complainant Mehbob Ali without any addition or deletion and also got recorded the same as per narration of Mehboob Ali. It is correct that the complainant narrated in his statement that he along with PWs Ghulam Hussain and Abdul Hameed started search of unknown persons not (sic) it has come into his knowledge that Waqar was murdered by Hadayat Ullah by firing upon him. It is correct that I also got recorded the corroborate statements of Ghulam Hussain and Abdul Hameed PWs under section 161 of Cr.P.C in which both the PWs also narrated hat Hadayat Ullah son of Shahab Din has murdered Waqar Ahmad by making fire upon him. It is correct that no further statement or affidavit of complainant was come on record in which the complainant has stated that the accused Hadayat Ullah is innocent. It is also correct that I had also conducted the recovery against Hadayat Ullah" The said improvements made by Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statements, Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) impeached their own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: - "

151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him: (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit. (2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence. (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted." As Muhammad Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf v. State" (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle: "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence". The august Supreme Court of Pakistan in the case reported as Muhammad Arif v. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."

19. We have also noted that the ocular account of the occurrence as furnished by Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) is flawed as it is contrary to the medical evidence available on record. Both the witnesses namely by Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) made detailed statements with regard to the each and every injury observed on the dead body of the deceased namely Waqar Ahmad however failed to mention that the deceased had also received an injury on the back of his chest, which injury was mentioned as injury No.4 by Dr. Ahmad Raza (CW-3) in the post mortem examination report (Exh. CW-3/A). Dr. Ahmad Raza (CW-3) stated that he observed a lacerated wound of the dimension of 2cm x1 cm present on the back of right chest of the dead body of the deceased, which injury had been caused by a firearm weapon and blackening was also present around the wound. There is no explanation of the presence of the said injury No. 4 observed by Dr. Ahmad Raza (CW-3) on the dead body of the deceased in the statements of both the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2). Moreover, Mehboob Ali (PW-1) in the written application (Exh.PA) submitted by him for the registration of FIR had got recorded in the same that Muhammad Khan (since acquitted), the co-accused of the appellants, while armed with pistol 30-bore fired at Waqar Ahmad deceased hitting him on his left shoulder. Dr. Ahmad Raza (CW-3) stated that he observed two lacerated wounds of the dimension 3 cm x 2 cm on the left upper chest posteriorly however the said wounds were exit wounds. In this manner, Mehboob Ali (PW-1) had attributed causing of exit wounds to Muhammad Khan (since acquitted), the co-accused of the appellants. The contradictions in the ocular account of the occurrence, as narrated by Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) and the medical evidence as furnished by Dr. Ahmad Raza (CW-3), clearly establish that the prosecution has miserably failed to prove the charge against the appellants. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Amin Ali and another v. The State" (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- "

11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution. ..

13. From the above evidence of the P.Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence." Reliance is also placed on the case of "Muhammad Ashraf v. The State" (2012 SCMR 419) where the august Supreme Court of Pakistan was pleased to hold as under "Both the eye-witnesses are not natural witnesses and they claimed that they had seen the incidence but had failed to explain two injuries caused with blunt weapon on the forehead and below the left eye of the deceased and had only attributed one injury to the appellant at the back of his ear." Reliance is also placed on the case of Usman alias Kaloo v. The State (2017 SCMR 622) where the august Supreme Court of Pakistan was pleased to hold as under:- "Some of the above mentioned eye-witnesses had maintained that the deceased had received only one injury at the hands of the appellant but the Post-mortem Examination Report shows that the deceased had received as many as 8 injuries on different parts of his body." Reliance is also placed on the case of Muhammad Hussain v. The State (2008 SCMR 345) where the august Supreme Court of Pakistan was pleased to hold as under:- "Only one fire-arm injury was attributed to Muhammad Hussain petitioner but according to the post-mortem report there was another injury on the person of deceased caused with blunt weapon." Reliance is also placed on the case of Irfan Ali v. The State (2015 SCMR 840) where the august Supreme Court of Pakistan was pleased to hold as under:-

11. The most striking feature of the case is that in the FIR complete photographic narration of the entire tragedy has been given so much so, Muhammad Khan acquitted accused and the appellant were attributed causing specific injuries with the fire shots of 30-bore pistols at the deceased. With such degree of accuracy each and every detail of the incident was given however, it was not due to mental disorientation that the dagger blows inflicted on the deceased found during the autopsy on the dead body, could not be noticed by the complainant. This doubt of reasonable nature and substance would strongly suggest that the complainant and the other eye-witnesses were not present at the spot, otherwise, lodging the report after more than 3 hours and spending 1-1/2 hour at the spot with the dead body, no room was left for this glaring omission. This omission is very fatal to the prosecution case and it is established that crime was an unwitnessed one".

20. We have already mentioned that along with the appellants their co-accused namely Muhammad Khan son of Nazar Muhammad (since acquitted) was also tried. The learned trial court acquitted the above mentioned co-accused namely Muhammad Khan son of Nazar Muhammad of the charges. Furthermore, we have also noted that Shah Nawaz son of Sharaf Din,Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain, the co-accused of the appellants were tried by way of a separate trial and acquitted by the learned trial court vide judgment dated 07.03.2019.We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co-accused of the appellants, who have stated that the acquittal of Muhammad Khan son of Nazar Muhammad, Shah Nawaz son of Sharaf Din, Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain had attained finality. The learned counsel for the complainant submitted that the acquittal of Muhammad Khan son of Nazar Muhammad was assailed by Mehboob Ali (PW-1),the complainant of the case, through Petition for Special Leave to Appeal No.52 of 2017, however the same was dismissed and the matter was not assailed further. With regard to the acquittal of Shah Nawaz son of Sharaf Din, Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain, the co-accused of the appellants who were also acquitted by the learned trial court vide judgment dated 07.03.2019 after a separate trial, had also attained finality as neither the State nor the complainant or any other aggrieved person had filed any appeal against the acquittal of the said co-accused of the appellants. The question for determination before this Court now is that whether the evidence of the prosecution witnesses which has been disbelieved qua the acquitted co-accused of the appellants can be believed against the appellants. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: - "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments. Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids.

21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury." Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2), the eye-witnesses of the occurrence. Mehboob Ali (PW-1) during his statement before the learned trial court got recorded as under:- "Muhammad Ikram made a fire with his pistol 30/bore which hit on right flank of Waqar Ahmad, then Sabir Hussain made third fire with his repeater 12/bore which hit on right arm of Waqar Ahmad, later on Naseer Ahmad also made a fire with his repeater 12/bore which hit on abdomen of Waqar Ahmad on which Waqar Ahmad fell down and then Shah Nawaz made a fire with his pistol 30/bore which hit on back of Waqar Ahmad, then Muhammad Khan made a fire with his pistol 30/bore hitting Waqar Ahmad." (emphasis supplied) Similarly, Maqsood Ahmad (PW-2) in his statement before the learned trial court stated as under:- "Muhammad Ikram fired with his pistol 30/bore which hit on the right flank of Waqar Ahmad (deceased), Muhammad Sabir made fire with his repeater 12/bore which hit on Waqar Ahmad at his right hand. Naseer Ahmad alias Shammi made a fire from his repeater 12/bore which hit on abdomen of Waqar Ahmad and Waqar Ahmad fell down on the ground then Shah Nawaz made a fire with his pistol 30/bore which his on back of Waqar Ahmad. Then Muhammad Khan accused made a fire with his pistol 30/bore hitting Waqar Ahmad." (emphasis supplied) Both the prosecution witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) attributed causing of firearm injuries to the deceased by Muhammad Khan son of Nazar Muhammad (tried along with the appellants and since acquitted) and by Shah Nawaz son of Sharaf Din, Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain, the co-accused of the appellants who were also acquitted by the learned trial court vide judgment dated 07.03.2019 after a separate trial, however both the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) were found to have made false statements with regard to Muhammad Khan son of Nazar Muhammad, Shah Nawaz son of Sharaf Din, Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain, the co-accused of the appellants. We are unable to find any independent corroboration of the prosecution case against the appellants and we are unable to distinguish the case of the appellants from the case of the acquitted co-accused namely Muhammad Khan son of Nazar Muhammad, Shah Nawaz son of Sharaf Din, Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain as the prosecution evidence with regard to the appellants and with regard to their co-accused namely Muhammad Khan son of Nazar Muhammad, Shah Nawaz son of Sharaf Din, Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain (all since acquitted), is similar. We find no reason to believe the statements of the witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) with regard to the appellants in absence of any reason to do so. This lying on part of the witnesses with regard to Muhammad Khan son of Nazar Muhammad, Shah Nawaz son of Sharaf Din, Muhammad Ikram son of Nazar Muhammad and Naseer Ahmed alias Shami son of Muhammad Hussain, the co-accused of the appellants, has vitiated our trust in them. We are thus satisfied that the evidence of Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) has no worth and deserves outright rejection. Reliance in this regard is placed on the case of Tariq v. The State (2017 SCMR 1672) wherein the august Supreme Court of Pakistan has held as under: - "So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant." Reliance in this regard is also placed on the case of Munir Ahmed and others v. The State and others (2019 SCMR 2006) wherein the august Supreme Court of Pakistan has held as under: - "Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity, it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the deceased and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitioners and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case." Reliance is also placed on the case of Safdar Abbas and others v. The State and others (2020 SCMR 219) wherein the august Supreme Court of Pakistan has held as under: - "Petitioners' father, namely, Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-accused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case."

21. The learned Deputy Prosecutor General has also relied upon the recovery of the pistol (P-3) made from the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad. With regard to the recovery of the pistol (P-3) from the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad it is observed that the said recovery has no evidentiary value in the eyes of law as the same was made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The said recovery of the pistol (P-3) from the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad cannot be used as incriminating evidence against the appellant, being evidence which was attained through illegal means and hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the pistol (P-3) from the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad, to witness the recovery of the same. 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, a perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PH) reveals that the pistol (P-3) recovered from the possession of the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad was deposited in the office of the Punjab Forensic Science Agency, Lahore on 10.12.2015 by Mehmood Ahmad, SI (CW-2) whereas the four empties (P-4/1-4) recovered from the place of occurrence were deposited in the office of the Punjab Forensic Science Agency, Lahore on 25.06.2015 by Mehmood Ahmad, SI (CW-2). Saqib Murtaza 112/HC (CW-9) stated that on 09.12.2015 Mehmood Ahmad, SI (CW-2) handed over to him a sealed parcel said to contain a pistol which he, on the same day, handed the parcel back to Mehmood Ahmad, SI (CW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. According to Mehmood Ahmad, SI (CW-2), the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad led to the recovery of the pistol (P-3) on 26.11.2015. In this manner, it is proved that Mehmood Ahmad, SI (CW-2), kept the recovered pistol (P-3) in his own custody for as many as thirteen days and handed over the same to Saqib Murtaza 112/HC (CW-9) only on 09.12.2015. This conduct of Mehmood Ahmad, SI (CW-2), the Investigating Officer of the case, opens up the possibility of fabrication on his part. Therefore, the recovery of the pistol (P-3) from the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad does not further the case of the prosecution in any manner and the same cannot be used as a circumstance against the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.

22. The learned Deputy Prosecutor General along with the learned counsel for the complainant has 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 witnesses namely Mehboob Ali (PW-1) and Maqsood Ahmad (PW-2) was that Muhammad Azam alias Kali and Muhammad Nazim alias Taidi, two sons of Nazar Muhammad (since acquitted), the co-accused of the appellants had been murdered and the deceased was involved in the said murder so Nazar Muhammad (since acquitted) and Muhammad Yasin (since acquitted) planned the murder of the deceased. As mentioned above, both Nazar Muhammad and Muhammad Yasin, the co-accused of the appellants, were acquitted by the learned trial court and their acquittal has attained finality for the fact that Petition for Special Leave to Appeal No.52 of 2017 filed by Mehboob Ali (PW-1), the complainant of the case, assailing the acquittal of Nazar Muhammad and Muhammad Yasin has already been dismissed by this Court and the matter was not assailed further. Furthermore, the two deceased namely Muhammad Azam alias Kali and Muhammad Nazim alias Taidi were brothers of the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad and were the brothers in law of Muhammad Sabir son of Ghulam Muhammad alias Goman and the father and the brother of the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad were the complainants of the cases lodged with regard to the murders of Muhammad Azam alias Kali and Muhammad Nazim alias Taidi, whereas the appellant namely Muhammad Sabir son of Ghulam Muhammad alias Goman was a witness in the case registered with regard to the murder of Muhammad Nazim alias Taidi. Mehboob Ali (PW-1) admitted during cross-examination that he and his son were the nominated accused in the murder case of Muhammad Nazim alias Taidi. In this manner, there exists a clear possibility that the appellants were got involved in this case due to their above mentioned relationship and their enmity with Mehboob Ali (PW-1), the complainant of the case. It is settled law that motive is a double-edge weapon, which can cut either way; if it is the reason for the appellants to murder the deceased, it equally is a ground for the complainant to falsely implicate them in this case. The august Supreme Court of Pakistan has held in the case of Muhammad Ashraf Alias Acchu v. The State (2019 SCMR 652) as under:- "

7. The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse." Reliance is also placed on the case of "Liaqat Ali and 11 others v. The State" (1992 SCMR 372) wherein it Haji Saeed Ahmad (PW-1) been held as under:-- "In this behalf, it may be observed that the motive is a double.edged weapon which could be one of the reasons for false implication as well as has been held by the Supreme Court in the case of Allah Bakhsh and another v. The State (PLD 1978 SC 171)." Moreover, it is an admitted rule of appreciation of evidence that motive is only corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction.

23. The learned Deputy Prosecutor General has also laid much premium on the abscondence of the appellant namely Muhammad Ahmad alias Baggi son of Nazar Muhammad, who was arrested during the investigation of the case on 18.11.2015, whereas the occurrence had taken place on 07.06.2015 as proof of his guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of "Asadullah v. Muhammad Ali" (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case "Rasool Muhammad v. Asal Muhammad" (1995 SCMR 1373) that abscondence is only a suspicious circumstance. In the case of "Muhammad Sadiq v. Najeeb Ali" (1995 SCMR 1632) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of "Muhammad Khan v. State" (1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of "Gul Khan v. State" (1999 SCMR 304) it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of "Muhammad Arshad v. Qasim Ali" (1992 SCMR 814), "Pir Badshah v. State" (1985 SCMR 2070) and "Amir Gul v. State" (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone. Reliance is also placed on the cases of "Muhammad Farooq and another v. The State" (2006 SCMR 1707) and "Nizam Khan and 2 others v. The State" (1984 SCMR 1092) and Rohtas Khan v. The State (2010 SCMR 566).

24. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (appellants) in the present case. It is 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), Muqarab Khan 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 Muhammad Akram v. The State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

25. For what has been discussed above, Criminal Appeal No.485-J of 2017 lodged by Muhammad Ahmad alias Baggi son of Nazar Muhammad (appellant) is allowed. Criminal Appeal No. 486-J of 2017 lodged by the appellant namely Muhammad Sabir son of Ghulam Muhammad alias Goman is allowed. The conviction and sentences of Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (appellants) awarded by the learned trial court through the impugned judgment dated 29.09.2017 are hereby set-aside. Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (appellants) are ordered to be acquitted by extending them the benefit of doubt. Muhammad Ahmad alias Baggi son of Nazar Muhammad and Muhammad Sabir son of Ghulam Muhammad alias Goman (appellants) are in custody and they are directed to be released forthwith if not required in any other case.

26. Consequently, the Murder Reference No. 33 of 2017 is answered in Negative and the sentence of death awarded to Muhammad Ahmad alias Baggi son of Nazar Muhammad is Not Confirmed. JK/M-128/L Appeals allowed.