2026 PLP 766 (YLR)

Sadiq Ali, J.

Handed down to life imprisonment with a fine of Rs. 5,00,000/- or in default to suffer one (01) year simple imprisonment with benefit of Section 382-B Cr.P.C by the learned Additional Sessions Judge-VI, Mansehra in case FIR No. 338 dated 19.05.2020 registered under Section 302 P.P.C at Police Station Shinkiari District Mansehra, after having been found guilty for committing murder of his real brother (Abdul Sattar), the appellant (Dildar son of Daud Khan) has filed the instant appeal under Section 410 Cr.P.C against his conviction and sentence.

2. On 19.05.2020 at 19:30 hours complainant namely, Mst. Yasmeen Bibi (PW-07) while reporting the crime to Syed Rehman Shah, ASHO (PW-05) in the Emergency Ward of RHC Shinkiari alleged that her husband Abdul Sattar (deceased then alive) and brother-in-law Dildar (appellant) used to quarrel frequently in the house owing to land dispute. On the fateful day at 18:45 hours she and her husband were present in the house when in the meanwhile appellant had knocked at the door and asked her husband to come out. The complainant alleged that both the appellant and deceased had gone towards link road, situated at the back of her house, thus, she along with her son also went after them. According to complainant, the appellant was abusing her husband when in the meanwhile her another brother-in-law (Iftikhar) had also arrived at the spot. During conversation, the appellant had statedly took out his pistol and started firing upon her husband, as a result of which, he sustained injuries on different parts of his body and died at the spot. The occurrence was stated to have also been witnessed by her son (Hasnain) and her brother-in-law (Iftikhar) besides her. Motive for the crime was dispute over the landed property. Report of the complainant was reduced into murasila (Ex.PW-5/1), on the basis of which the abovementioned FIR (Ex.PA) was registered.

3. After conclusion of investigation, challan was submitted before the learned trial court, formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution produced nine (09) witnesses, whereafter accused was examined under Section 342 Cr.P.C., wherein he denied the allegations and professed innocence, however, he neither opted to be examined on oath nor produced evidence in his defence. At the conclusion of trial, the learned trial Judge convicted and sentenced the appellant vide impugned judgment as mentioned above. Aggrieved from the judgment of learned trial court, the appellant has filed the instant appeal.

4. Dissatisfied with the findings delivered by learned trial court vide same impugned judgment, complainant namely, Mst. Yasmeen Bibi, has also filed Cr. Revision No. 08-A/2023 for enhancement of sentence of the appellant from life imprisonment to the normal penalty of death, therefore, in order to avoid repetition of facts and findings, we deem it appropriate to decided both these matters through this single judgment.

5. We have heard arguments of learned counsel for the parties as well as learned Assistant Advocate General and gone through the record with their valuable assistance.

6. Perusal of record reveals that the appellant stands accused of the heinous offence of committing the murder of his real brother, namely Abdul Sattar. The alleged motive behind the occurrence, as brought on record by the prosecution, appears to be a dispute pertaining to the ownership and possession of landed property. The complainant, who happens to be a close relative of both the appellant and deceased, has stated in her first information report that she witnessed the incident with her own eyes and has reiterated the same story before the learned trial court during the course of her examination-in-chief. However, it is a well-settled principle of law that while exercising powers under appellate jurisdiction, this Court is duty-bound to reappraise and re-evaluate the entire evidence available on the record with utmost care and caution. This duty assumes even greater importance in the instant case where, on the one hand, a precious human life has been lost, and on the other hand, the fundamental rights to life and liberty of the appellant are at stake. It is, therefore, incumbent upon this Court to strike a delicate balance between the two competing considerations and to ensure that justice is not only be done but manifestly seen to have been done.

7. First, we would like to debate upon the eye-witness account furnished by complainant (PW-07). She while recording first information report (Ex.PA) purported to have seen the occurrence with her own eyes as to how the appellant had called her husband from the house and took him towards the link road and how in presence of her son (Hasnain) and brother-in-law (Iftikhar) appellant had opened firing with his pistol upon her husband, who sustained injuries on different parts of his body and died at the spot. Surprisingly, while appearing in the witness box as PW-07 the complainant twisted the story by deposing that after receiving injuries by the deceased then alive he died after half an hour. Similarly, during the course of her cross-examination the complainant (PW-07) deposed that while going from the place of occurrence to RHC Shinkiari, Police Station was falling on the way but neither she nor any other relative had gone to Police Station for lodging report. In her report, the complainant stated that after receipt of injuries her husband had died at the spot while during her examination-in-chief she deposed that her husband died after half an hour of receiving injuries, however, when confronted with the ibid discrepancy she admitted to have not disclosed in her initial report about aliveness of her husband for half an hour. The contradiction in the statement of star witness raising finger towards his presence at the crime spot. Besides, during the course of her cross-examination when questioned, she admitted to have in knowledge that during the life time of her husband, he lodged a report in police station qua dispute over the piece of land, but neither she could produce copy of said report or investigation to the police nor before the court in order to substantiate her version. So far as aliveness of the deceased for half an hour at the crime spot is concerned, suffice it to note that during the course of her cross-examination the complainant admitted that her brother-in-law (Iftikhar) was having a vehicle with him at the time of commission of the offence, if so then what for they remained at the crime spot for such a long time i.e. half an hour and did not opt to shift the injured to the hospital within time instead of waiting till last breath of the deceased at the crime spot, is a question looking askance. Furthermore, the complainant also admitted that place of occurrence was situated on link road, which was a public place, however, astonishingly except her and the two alleged PWs none else was present at the spot, moreso, when the occurrence was stated to have been taken place in the broad day light. Besides, she herself had negated her ibid stance in the next line of her cross-examination by deposing that many people had gathered at the crime spot after the occurrence and when questioned she admitted as correct that none of them could be produced at the trial, thus, possibility of her being a chance witness cannot be ruled out of consideration. This witness further stated to have shifted the dead body of deceased to hospital in a taxi cab, which was driven by one Abdul Manan. At this juncture, a question would arise that how in presence of personal vehicle of Iftikhar PW, the dead body was shifted to hospital in a taxi cab also creates reasonable doubt. Furthermore, the complainant admitted as correct that she had not specified the locales of injuries in her report and even in the court while recording her statement. All the ibid discrepancies and contradictions in the statement of complainant creates reasonable doubt in the prosecution case rather certainty of her being not witnessed the occurrence cannot be ruled out. From the ibid. discussed scenario it has become crystal clear that the abovementioned witness was chance witness and had not actually accompanied the deceased at the time of occurrence, therefore, it is well settled that if testimony of the witnesses of ocular account, who were chance witness, remained uncorroborated, then it is highly unsafe to rely upon their testimony. The Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Mst. Rukhsana Begum and others v. Sajjad and others" reported as 2017 SCMR 596 has held as under: - "A single doubt reasonably showing that a witness/witnesses' presence on the crime spot was doubtful when a tragedy takes place would be sufficient to discard his/their testimony as a whole. This principle may be pressed into service in cases where such witness/witnesses are seriously inimical or appears to be a chance witness because judicial mind would remain disturbed about the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system."

8. Apart from the above, the complainant alleged in her initial report rather reiterated in her court statement that the occurrence was also witnessed by her son (Hasnain) and brother-in-law (Iftikhar) but astonishingly the former was abandoned while the latter was won-over by the prosecution, thus, presumption under Article 129 (g) of the Qanun-e-Shahadat Order, 1984 was to be drawn to the effect that had these two witnesses been produced at the trial, they would have not supported the prosecution version. Reliance in this respect may here be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Muhammad Akhtar and others v. The State and others" reported as 2025 SCMR 45.

9. Now, we would like to discuss the medical evidence. According to initial report the deceased alleged to have received multiple injuries on different parts of his body without specifying that on which parts of his body he had received injuries, however, the doctor while conducting autopsy on the dead body of the deceased had found seven (07) firearm entry wounds with six (06) corresponding exits; while the Investigating Officer had statedly recovered five (05) empties from the spot. According to site plan position the distance between the deceased and the appellant was show to have been five (05) feet away from each other, however, a glance over the postmortem report divulges that no charring marks were found on none of the injuries, which aspect of the case creates reasonable doubt about commission of the offence. Besides, the medical officer (Dr. Waleed Khan) while appearing in the witness as PW-04 admitted as correct that blackening could be found within the range of six (06) feet. Besides, there is also inconsistency between the inquest report (Ex.PW-5/2) and the postmortem report (Ex.PW-4/1) as according to the inquest report, duly endorsed by the medical officer, total nine (09) injuries were found on the body of deceased while according to postmortem report, conducted by Dr. Waleed Khan, Medical Officer, thirteen (13) injuries were found on the body of deceased. All the ibid discrepancies when taken in juxtaposition with the contents of first information report creates reasonable doubt, benefit of which shall have to be extended to the appellant.

10. According to Investigating Officer, five (05) empties of 30-bore pistol were statedly recovered from the crime spot on 19.05.2020 and the appellant was arrested on 20.05.2020 along with crime weapon i.e. 30-bore pistol, whereafter both the recovered empties and weapon were sent to FSL for forensic analysis on 21.05.2020. A glance over the FSL report divulges that no doubt report in respect of the recovered crime empties and weapon of offence i.e. 30-bore pistol was found in positive, however, intriguing aspect of the matter is that the crime empties were shown to have been recovered from the spot on 19.05.2020, followed by weapon of offence from possession of the appellant on 20.05.2020, whereafter the I.O drafted application for sending the same to FSL on 21.05.2020, however, interestingly the crime empties and weapon were shown to have been received in the FSL, on 29.07.2020 i.e. after considerable delay of more than two (02) months. In such eventuality a question of safe custody of the case property would also arise that where the same were lying during the intervening period, for which no explanation whatsoever could be offered by the prosecution. In support, case law reported as "Muhammad Younus Khan v. The State" 1992 SCMR 545, "Jehangir v. Nazer Farid and another" 2002 SCMR 1986 and "Ghulam Akbar and another v. The State" 2008 SCMR 1064 can well be referred. It is also well settled that delayed sending of case property to FSL would depreciate the evidentiary value of such piece of evidence and unsafe to be relied upon, therefore, no reliance can be placed on the positive FSL report as the possibility of substitution of the empties as well as crime weapon cannot be ruled out. Delay of more than two (02) months in sending the empties and weapon of offence to FSL. definitely destroyed the evidentiary value of the recoveries. In such like situation the Hon'ble Supreme Court of Pakistan while delivering its judgment in the case of "Ali Sher and others v. The State" reported as 2008 SCMR 707 has held: - "The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony.' Further reliance in this respect may also be placed on the judgment delivered in the case of "Mir Ahmad Shah v. The State and another" reported as 2013 YLR 982.

11. So far as motive for the crime is concerned, suffice it to say that no doubt the complainant while lodging report alleged that motive for the crime was constituted due to dispute over landed property but the same cannot be proved at the trial despite giving her opportunity of producing even the copy of report or investigated conducted in the matter, thus, the prosecution has also miserably failed to establish the motive through confidence inspiring evidence. Reliance in this respect may here be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Muhammad Hassan and another v. The State and another" reported as 2024 SCMR 1427 where it was held: - "Motive was a double edged weapon, which could be used either way and by either side i.e., for real or false involvement. So, the motive asserted by the prosecution indicated that there was an enmity of murder between the parties and the said motive, being double edge could be the reason for the false implication of the petitioner."

12. From the above discussed scenario, it has become crystal clear that case of the prosecution is full of doubts and/while acquitting an accused even a single reasonable doubt is sufficient. Reliance in this respect may here be placed on the judgments delivered by the Hon'ble Supreme Court of Pakistan in the cases reported as 1997 SCMR 449 and 2007 SCMR 1825. Further reliance in this respect may also be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Muhammad Akram v. The State" reported as 2009 SCMR 230 where it has been held; "The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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." In this respect further guidance may also be taken from the recent judgments delivered by Hon'ble Supreme Court of Pakistan in the cases of "Kashif Ali alias Kalu v. The State and another" reported as 2022 SCMR 1515, "Saghir Ahmad v. The State and others" reported as 2023 SCMR 241 and "Mst. Hajira Bibi alias Seema and others v. Abdul Qaseem and another" reported as 2023 SCMR 870.

13. Judge considered from all angles, we feel no hesitation to hold that the prosecution has failed to bring home charge against the appellant beyond any shadow of doubt, thus, the instant appeal is allowed. Conviction and sentence of the appellant recorded by the learned trial Judge vide impugned judgment dated 06.12.2022 are set-aside and he is acquitted of the charges, levelled against him. He be set at liberty forthwith, if not required in any other case.

14. So far as Cr. Revision No. 08-A/2023 filed by complainant (Mst. Yasmeen Bibi) for enhancement of sentence of the appellant from life imprisonment to normal penalty of death is concerned, as we have disbelieved the prosecution evidence against the appellant, hence, the criminal revision, having become infructuous, is hereby dismissed. These are detailed reasons for our short order of even date. JK/185/P Appeal allowed.