2026 P Cr. L J 105

 2026 P Cr. L J 105

[Lahore (Rawalpindi Bench)]

Before Sardar Akbar Ali, J

SAEED AKHTAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1096 of 2024, decided on 26th June, 2025.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of

evidence---Benefit of doubt---Delay of about nine hours and twenty-

five minutes in lodging the FIR---Consequential---Accused was

charged for committing murder of the husband of complainant by

firing---According to the prosecution's perspective the occurrence

took place on 06.11.2021 at 11:00 a.m. and was alleged to have been

seen by complainant and her nephew but the matter was reported

to the police on the same day at 08:25 p.m. i.e. with delay of about

nine hours and twenty-five minutes, despite the fact that police

station was just fifteen kilometers from the place of occurrence---In

such a situation if those witnesses were present at the place of

occurrence and also witnessed the scene of occurrence then such an

inordinate and unexplained delay in lodging the FIR would never

have occurred---Circumstances established that the prosecution had

failed to prove its case against the appellant beyond the shadow of

doubt---Appeal against conviction was allowed, accordingly.

Mehmood Ahmed and others v. The State and another 1995 SCMR

127; Muhammad Nawaz and another v. The State and others 2024

SCMR 1731 and Zafar Ali Abbasi and another v. Zafar Ali Abbasi and

others 2024 SCMR 1773 rel.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of

evidence---Benefit of doubt---Presence of the eye-witnesses at the

spot doubtful---Accused was charged for committing murder of the

husband of complainant by firing---After the occurrence which took

place at 11:00 a.m. the said witnesses remained at the spot with the

dead body till 07:00 p.m.---If complainant was having mobile phone

at the time of occurrence then she should have immediately made

call to 1122 or 15 service after the occurrence instead of making call

to a given up witness and waiting for his commands---Furthermore,

during the cross-examination both the eye-witnesses claimed that

they shifted the deceased to the hospital on an ambulance/vehicle but they did not disclose the registration number of the

ambulance/vehicle or name of the driver of that ambulance/vehicle

which also made the presence of both the eye-witnesses at the place

of occurrence doubtful---Complainant during her cross-examination

deposed that the dead body was initially shifted out of the forest on

a cot as the main road was at a distance from the alleged place of

occurrence and a car/vehicle could not reach at said place but

admittedly neither blood stained clothes of the witnesses nor cot

were taken into possession by the Investigation Officer and no

explanation in his behalf had been advanced by the prosecution,

hence testimonies of complainant and her nephew were not only

improbable, but also got no support from the record---Furthermore,

the presence of the eye-witnesses became doubtful on perusal of the

postmortem report as well---Post mortem report transpired that the

eyes of the deceased were found half open, which could not happen

in the presence of eye-witnesses---Said fact was also mentioned in

inquest report that the eyes and mouth were half opened---Had the

eye-witnesses present at the crime scene, they would have shut the

eyes of the deceased, while taking them to the hospital and

thereafter---Moreover, both the witnesses of ocular account

deposed that immediately after the occurrence they informed a

given up witness and stayed at the place of occurrence till his

arrival and waited for his commends---During cross-examination on

complainant it surfaced that brother of said given up witness was

murdered by brother-in-law of the appellant, thus, it could safely be

inferred that complainant party might have falsely implicated the

appellant on the asking of given up witness---In such situation, the

prosecution had failed to prove a plausible justification for

presence of eye-witnesses at the time and place of occurrence,

hence ocular account furnished by them being chance witnesses

replete with contradictions and improvements due to their

unnatural conduct was not free from doubt and could not be relied

upon---Circumstances established that the prosecution had failed to

prove its case against the appellant beyond the shadow of doubt---

Appeal against conviction was allowed, accordingly.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015

SCMR 1142; Nadeem alias Kala v. The State and others 2018 SCMR 153;

Muhammad Bilal and 2 others v. The State 2023 YLR 2051; Mansab Ali

and another v. The State 2024 PCr.LJ 617; Zafar Ali Abbasi and another

v. Zafar Ali Abbasi and others 2024 SCMR 1773; Zahir Yousaf and

another v. The State and another 2017 SCMR 2002 and Shaukat

Hussain v. The State through PG Punjab and another 2024 SCMR 929

rel.

(c) Penal Code (XLV of 1860) Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of

evidence---Benefit of doubt---Unnatural conduct of eye-witnesses---

Accused was charged for committing murder of the husband of

complainant by firing---Record showed that deceased died at the

spot but it was not understandable that if the eye-witnesses were

present at the spot at the relevant time then why they did not

immediately shift deceased to hospital which according to

Investigating Officer was situated at a distance of 45/47 minutes of

travelling from the place of occurrence---Circumstances established

that the prosecution had failed to prove its case against the

appellant beyond the shadow of doubt---Appeal against conviction

was allowed, accordingly.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of

evidence---Benefit of doubt---Medical evidence contradicting ocular

account---Accused was charged for committing murder of the

husband of complainant by firing---Medical evidence produced by

the prosecution, according to which on 06.11.2021 at 08:30 p.m.

Medical Officer conducted autopsy on the dead body of deceased

and noted "Injury No. l: multiple small penetrating wound (more

than 50 in numbers) measuring almost 1 mm x 1 mm, involving

front of neck, front of chest and right shoulder, up to xiphisternum,

blackening present on all wounds ---Some pellets were retrieved

and sent to Forensic Science Agency for Ballistic Expert opinion---

According to scaled site plan, inter-se distance between Point-1

(where deceased was standing at the time of occurrence) and Point-

2 (from where appellant made fire shot upon the deceased) was 2-

karams i.e. 10/11 feet---With such a distance between the victim and

the assailant, there was no probability that the fire would have left

the blackening around the wounds---Medical Officer further stated

that probable time that elapsed between injury and death was one

hour while between death and post mortem was 5 to 7 hours---Time

of death and post mortem given by Medical Officer did not coincide

with the time of occurrence given in FIR---Such conflict between the

medical and the ocular account also belied the presence of

prosecution witnesses at the site---Circumstances established that

the prosecution had failed to prove its case against the appellant

beyond the shadow of doubt---Appeal against conviction was

allowed, accordingly.

Mansab Ali and another v. The State 2024 PCr.LJ 617 and

Muhammad Zaman v. The State 2018 YLR Note 177 rel.

(e) Penal Code (XLV of 1860) Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of

evidence---Benefit of doubt---Contradictions in the statements of

witnesses---Accused was charged for committing murder of the

husband of complainant by firing---Record showed that there was

contradiction in the statements of Moharrar Malkhana, who stated

that he handed over parcel of cartridge to Investigating Officer on

07.11.2021, while Investigating Officer deposed that he took the

parcel of cartridge on 08.11.2021---Moreover, no justification was

given by the Investigating Officer as to why he kept the parcel with

him for one day---Investigating Officer deposed that appellant was

arrested on 06.07.2022, who, in the presence of witnesses, got

recovered rifle/gun 12-bore and one live bullet on 12.7.2022 vide

recovery memo---Moharrar Malkhana deposed that on 12.7.2022,

Investigating Officer handed over one sealed parcel said to contain

rifle 12-bore and one live cartridge, which he kept intact in

Malkhana and on 18.7.2022, he handed over the same to

Investigating Officer for its onward transmission to Forensic

Science Agency---While, Investigating Officer deposed that on

18.7.2022, he took the parcel of 12 bore gun/rifle from Moharrar

Maalkhana and deposited the same into office of Forensic Science

Agency, intact---There was again contradiction in the statement of

Investigating Officer with respect to name of Moharrar Malkhana---

Circumstances established that the prosecution had failed to prove

its case against the appellant beyond the shadow of doubt---Appeal

against conviction was allowed, accordingly.

(f ) Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of

evidence---Benefit of doubt---Safe custody of recovered weapon of

offence not proved---Accused was charged for committing murder

of the husband of complainant by firing---Moharrar Malkhana

stated that he handed over the sealed parcel said to contain rifle 12-

bore with one live bullet on 12.7.2022 to Investigating Officer, while

Investigating Officer deposed that he took the parcel of 12-bore

gun/rifle from other Moharrar Malkhana while appearing in

witness box also stated that he was handed over one sealed parcel

said to contain 12-bore gun along with one live cartridge for

keeping in safe custody, which he handed over to Investigating

Officer on 18.7.2022---Both the witnesses i.e. Moharrars Malkhana

had stated that they were handed over one sealed parcel said to

contain 12-bore gun/rifle along with one live cartridge for keeping

in safe custody on 18.7.2022, which they had handed over to

Investigating Officer on 18.7.2022, hence, in the wake of that fact,

the positive report received from the Forensic Science Agency was

of no use to the prosecution because the chain of safe custody was missing, which created serious doubt about the recovery of the .12

bore gun/rifle alleged to be used as a weapon at the crime scene---

Circumstances established that the prosecution had failed to prove

its case against the appellant beyond the shadow of doubt---Appeal

against conviction was allowed, accordingly.

Kamal Din alias Kamala v. The State 2018 SCMR 577 rel.

(g) Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of

evidence---Benefit of doubt---Motive not proved---Accused was

charged for committing murder of the husband of complainant by

firing---Motive asserted by the prosecution was registration of an

earlier case due to land dispute against deceased by one AZ thus

complainant suspected that said persons and others abetted the

occurrence but while appearing in the dock complainant admitted

that they did not have any rivalry/enmity with the appellant---Even

otherwise, complainant stated that they had suspicion about the

involvement of accused persons in the instant case, so, he initially

nominated them and now he had been satisfied that they had

nothing to do with that occurrence---In the absence of proof of

motive, the real cause behind the murder remained shrouded in

mystery and it could not be ascertained that what actually had

happened at the spot which prompted the accused/appellant to take

life of an innocent person, with whom apparently he was not

carrying any grudge or grouse---Circumstances established that the

prosecution had failed to prove its case against the appellant

beyond the shadow of doubt---Appeal against conviction was

allowed, accordingly.

(h) Criminal trial---

----Absconsion---Scope---Mere abscondence of an accused by itself is

not sufficient to maintain his conviction and sentence in absence of

other reliable evidence.

Muhammad Masood alias Mithu v. The State and others 2025 SCMR

888; Rohtas Khan v. The State 2010 SCMR 566 and Muhammad Khan v.

The State 1999 SCMR 1220 rel.

Sh. Ahsan-ud-Din and Azhar Hameed for Appellant.

Khawaja Sohil Iqbal, District Public Prosecutor with Abuzar

Assistant Sub-Inspector for the State.

Nemo for the Complainant.

Date of hearing: 26th June, 2025. JUDGMENT

SARDAR AKBAR ALI, J.---Saeed Akhtar (appellant) was tried in case

FIR No.437, dated 06.11.2021, registered at Police Station Saddar

Attock, District Attock, in respect of offences under sections 302/109/34

P.P.C and vide impugned judgment dated 12.11.2024, passed by learned

Additional Sessions Judge, Attock, he (appellant) has been convicted

and sentenced as under:-

Under section 302(b) P.P.C to imprisonment for life as Tazir. He was

also ordered to pay Rs.250,000/- to the legal heirs of the deceased

as compensation under section 544-A of Cr.P.C. and in default

thereof to further undergo six months simple imprisonment.

Benefit of section 382-B Cr.P.C was also extended to the appellant.

2. Succinctly stated story of the FIR (Ex.PA) registered on the basis of

statement of Mst. Momina Bibi (PW-11) recorded by Atif Hussain,

Inspector (PW-13) are that she is resident of District Mansehra and

now she along with her husband and children is residing at the Dera

of Muhammad Ashraf (given up PW) situated in village Surag, Dhok

Jhamra, Attock for the last 20/22 years. They used to keep goats. Her

nephew, namely Faiz Muhammad son of Gull Amber (PW-9) also used

to live with the complainant (PW-11). On 06.11.2021 as per routine

complainant s husband, namely Number Khan and nephew Faiz

Muhammad (PW-9) took goats to government forest and when reached

at Partki Point, in the meanwhile at about 11:00 a.m. Saeed Akhtar

(appellant) armed with .12 bore gun along with one unknown person,

who could be identified by the complainant (PW-11) and her nephew

(PW-9) on coming before them and within their view appellant made a

straight fire with .12 bore gun (P-6) on the husband of complainant for

committing his murder which landed on the neck and front of chest of

Number Khan, husband of the complainant, who fell down.

Complainant party arranged vehicle and shifted Number Khan to

hospital, who succumbed to the injuries.

Motive behind the occurrence was that due to dispute of land

earlier one Anwar Zaib lodged hurt case against the deceased thus

complainant (PW-11) suspected that Muhammad Sharif, Muhammad

Wahab, Haji Qasim, Anwar Zaib, Muhammad Shafiq and Najam-ul-Haq

abetted the occurrence.

3. On receipt of information about the occurrence Atif Hussain,

Inspector (then SI) (PW-13) reached at DHQ, Hospital, Attock where he

recoded oral statement of complainant namely Mst. Momina Bibi (PW-

11), inspected the dead body of deceased Number Khan, prepared

injury statement (Ex.PO), inquest report (Ex.PP), got conducted post-

mortem of dead body of the deceased, transmitted complaint to police station through Muhammad Awais 1032/C (PW-3) for registration of

FIR to the Police Station Saddar Attock, recorded supplementary

statement of Mst. Momina, complainant (PW-11), took into possession

last worn clothes of deceased i.e. Banyan (P-1), Qameez (P-2), Shalwar

(P-3) and Shoes (P-4/1-2) along with parcel of envelope sent and sealed

by doctor, postmortem report (Ex.PM) and other police papers. Then

he proceeded to the place of occurrence, inspected the spot with the

help of torches, collected blood stained earth from the place of murder

of deceased Number Khan and took the same into possession vide

recovery memo. (Ex.PD), collected one crime empty of cartridge and

took the same into possession vide recovery memo. (Ex.PC), attested by

Moazzam Khan and Muhammad Awais constables. Anwar Zaib,

Muhammad Shafiq and Najam-ul-Haq joined investigation and to their

extent separate report under section 173 of Cr.P.C. was submitted.

Muhammad Sharif, co-accused joined investigation, who was declared

innocent and his name was placed in column No.2 of report under

section 173 of Cr.P.C. After adopting all modes of service including

proclamation under sections 87/88 of Cr.P.C. Saeed Akhtar appellant,

Muhammad Wahab and Haji Qasim, co-accused were declared

proclaimed offenders after due course of law; subsequently after

withdrawal of pre-arrest bail of the appellant, he was arrested on

06.07.2022, the appellant during investigation led to the recovery of

riffle/gun .12 bore and one live bullet (P-6) from an iron box under the

beddings in his house, prepared site plan (Ex.PU) of place of recovery,

got prepared scaled site plan, sent the case property to the concerned

offices, recorded statements of all the witnesses under section 161

Cr.P.C. Dr. Aizaz Afzal (PW-6) conducted autopsy on the dead body of

Number Khan, deceased. Ms. Momina Bibi, complainant (PW-11) and

Fiaz Muhammad (PW-9) furnished ocular account. Rest of the

witnesses are formal in nature and would be discussed in later part of

this judgment.

4. After completion of investigation by the police, the challan was

prepared and submitted before the learned trial Court. The learned

trial Court, after observing legal formalities, as provided under the

Code of Criminal Procedure, 1898 framed charge against the appellant

on 05.10.2022, to which he pleaded not guilty and claimed trial. In

order to prove its case, the prosecution produced thirteen witnesses

during the trial. The prosecution also produced documentary evidence

in the shape of (Ex.PA) to (Ex.PX). The statement of the appellant under

section 342 Cr.P.C, was recorded, wherein he denied the allegations

levelled against him. The appellant did not opt to appear as his own

witness on oath as provided under Section 340(2) of the Code of

Criminal Procedure, 1898 in disproof of the allegations levelled against

him. However, he produced attested copies of report under section 173

of Cr.P.C. of case FIR No.71, dated 03.04.1992 registered at Police Station Saddar Attock (Ex.DB) and Nikahnama of Qamar Abbas

(Ex.DC).

The learned trial Court vide its judgment dated 12.11.2024, found

the appellant guilty, convicted and sentenced him as mentioned and

detailed above.

5. Abuzar, ASI submits that complainant was telephonically

informed who apprised that her counsel would appear in this case but

no one has turned up on behalf of the complainant despite repeated

calls. Even otherwise, it is a State case and learned District Public

Prosecutor for the State is ready to argue the same, therefore, I

proceed to decide the instant appeal after hearing arguments of

learned counsel for the appellant, learned District Public Prosecutor

for the State and perusing the record.

6. Arguments heard. Record perused.

7. Prosecution story as set forth in Fard Bayan (Ex.PS), on the basis

of which the formal FIR (Ex.PA) was chalked out has already been

reproduced in para No.3 of this judgment therefore, there is no need to

repeat the same.

8. As shall be seen from the narration of above facts, according to

the prosecution s perspective the occurrence took place on 06.11.2021

at 11:00 a.m. and was alleged to have been seen by Ms. Momina Bibi,

complainant (PW-11) and Faiz Muhammad (PW-9) but the matter was

reported to the police on the same day at 08:25 p.m. i.e. with delay of

about nine hours and twenty-five minutes, despite the fact that police

station was just fifteen kilometers from the place of occurrence. In

such a situation if these witnesses were present at the place of

occurrence and also witnessed the scene of occurrence then such an

inordinate and unexplained delay in lodging the FIR would never have

occurred. In the case Mehmood Ahmed and others v. The State and

another (1995 SCMR 127), it was observed by the Supreme Court of

Pakistan that:-

Delay of two hours in lodging the FIR in the particular

circumstances of the case had assumed great significance as the

same could be attributed to consultation, taking instructions and

calculatedly preparing the report keeping the names of the

accused open for roping in such persons whom ultimately the

prosecution might wish to implicate .

Similar view has been taken by the Hon ble Supreme Court of

Pakistan in the case of Muhammad Nawaz and another v. The State

and others (2024 SCMR 1731) and Zafar Ali Abbasi and another v. Zafar

Ali Abbasi and others (2024 SCMR 1773). Thus, in the facts and

circumstances of the instant case, the element of delayed registration of FIR (Ex.PA) is clear indicator of the fact that in fact it was a blind

murder and inference can be drawn that the intervening period was

consumed in fabricating the prosecution story after the preliminary

investigation and the delay was result of deliberation and consultation

thus false involvement of the appellant cannot be ruled out.

9. The ocular account of the prosecution was furnished by Ms.

Momina Bibi, complainant (PW-11) and Faiz Muhammad (PW-9). Ms.

Momina Bibi, complainant (PW-11) is wife of the deceased whereas

Faiz Muhammad (PW-9) is her nephew. Both these witnesses have

contradicted each other on material aspects of the case and their

conduct being close relative of deceased is unnatural because they

immediately did not remove Number Khan to hospital to save his life.

Both these witnesses of ocular account are residents of District

Mansehra. Therefore, these witnesses can safely be termed as chance

witnesses and there is plethora of case law on the point that

statements of such witnesses may be believed but only when

convincing explanation about their presence at the place of

occurrence at the relevant time is brought on the record, otherwise,

their testimonies would remain as suspect evidence. In this respect I

am guided by the case law reported as Mst. Sughra Begum and another

v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Supreme

Court of Pakistan while dealing with a case of chance witness observed

as under:-

"A chance witness, in legal parlance is the one who claims that he

was present on the crime spot at the fateful time, albeit, his

presence there was a sheer chance as in the ordinary course of

business, place of residence and normal course of events, he was

not supposed to be present on the spot but at a place where he

resides, carries on business or runs day to day life affairs. It is in

this context that the testimony of chance witness, ordinarily, is

not accepted unless justifiable reasons are shown to establish

his presence at the crime scene at the relevant time. In normal

course, the presumption under the law would operate about his

absence from the crime spot. True that in rare cases, the

testimony of chance witness may be relied upon, provided some

convincing explanations appealing to prudent mind for his

presence on the crime spot are put forth, when the occurrence

took place otherwise, his testimony would fall within the

category of suspect evidence and cannot be accepted without a

pinch of salt."

Moreover, both these PWs stated that at the time of occurrence the

complainant (PW-11) was having mobile phone with her and that they

remained at place of occurrence till 07:00 p.m. Relevant portions of

their statements are reproduced below: 

Ms. Momina Bibi, complainant (PW-11)

I called Ashraf after the occurrence through telephone... ..

I cannot tell the time when we remained at the alleged place of

occurrence. Volunteer stated that we reached at hospital at

about 07:00 p.m . ..

Faiz Muhammad (PW-9)

..The complainant Mst. Momina Bibi was having mobile phone with

her at the time of occurrence. .

..We remained at the spot till 07:00 pm .

The above depositions of the PWs depict their unnatural conduct. It

is astonishing that after the occurrence which took place at 11:00 a.m.

the said PWs remained at the spot with the dead body till 07:00 p.m. If

complainant (PW-11) was having mobile phone at the time of

occurrence then she should have immediately make call to 1122 or 15

after the occurrence instead of making call to Muhammad Ashraf

(given up PW) and waiting for his commands.

Furthermore, during the cross-examination both the eye-witnesses

claimed that they shifted the deceased to the hospital on an

ambulance/vehicle but they did not disclose the registration number of

the ambulance/vehicle or name of the driver of that

ambulance/vehicle which also makes the presence of both these eye-

witnesses at the place of occurrence doubtful. Reliance in this respect

is placed on case titled Nadeem alias Kala v. The State and others (2018

SCMR 153), Muhammad Bilal and 2 others v. The State (2023 YLR 2051)

and Mansab Ali and another v. The State (2024 PCr.LJ 617). It is

noteworthy that complainant (PW-13) during her cross-examination

deposed that the dead body was initially shifted out of the forest on a

cot as the main road was at a distance from the alleged place of

occurrence and a car/vehicle cannot reach at said place but admittedly

neither blood stained clothes of the witnesses nor cot were taken into

possession by the Investigation Officer (PW-13) and no explanation in

his behalf has been advanced by the prosecution, hence testimonies of

complainant (PW-11) and Faiz Muhammad (PW-9) are not only

improbable, but also got no support from the record. Reliance in this

respect is placed on the case titled Zafar Ali Abbasi and another v.

Zafar Ali Abbasi and others (2024 SCMR 1773).

According to their depositions the alleged occurrence took place on

06.11.2021 at 11:00 a.m. in government forest situated near village

Surag Salar where they used to reside at the Dera of Ashraf (given up

PW). They further deposed in line with the story of FIR (Ex.PA) and

Fard Bayan (Ex.PS) that Number Khan, deceased was shifted to

hospital where he succumbed to the injuries. In Fard Bayan (Ex.PS) as well as FIR (Ex.PA) complainant (PW-11) herself has mentioned as

under:-

But while appearing in the dock both these witnesses contradicted

the narration of FIR (Ex.PA) and Fard Bayan (Ex.PS) in the following

manner:-

Ms. Momina Bibi, complainant (PW-11)

..The dead body was shifted to the Ambulance along with the police.

We called the police and informed about the occurrence. The

police officials also accompanied the dead body to the hospital. ..

Faiz Muhammad (PW-9)

..We took the dead body to the hospital in the ambulance which was

arranged by Muhammad Ashraf .

From the above excerpts it is crystal clear that Number Khan,

deceased died at the spot but it is not understandable that if these

witnesses were present at the spot at the relevant time then why they

did not immediately shift Number Khan to hospital which according to

PW-13 was situated at a distance of 45/47 minutes of travelling from

the place of occurrence. Relevant portion of statement of Atif Hussain,

Inspector (then SI) is reproduced for the sake of convenience:-

..We went to the alleged place of occurrence for spot inspection via

Surag Salar village. It consumed around 25 minutes in travelling

from DHQ, Hospital, Attock to the village Surag Salar and 20/22

minutes were consumed in travelling from village Surag Salar to

the alleged place of occurrence

Besides above, Faiz Muhammad (PW-9) the witness of ocular

account has made dishonest improvements in his statement. PW-9

stateed as under:-

My statement was recorded by the police in the police station. I got

mentioned in my statement under section 161 Cr.P.C. that we left

our home at about 08:00 a.m. Confronted with Ex.DA where it is

not so recorded .I got mentioned in my statement under section

161 Cr.P.C. that Muhammad Ashraf came at the time when my

statement was being recorded by the police. Confronted with

Ex.DA where it is not so recorded .

Furthermore, the presence of the eye-witnesses becomes doubtful

on perusal of the postmortem report (Ex.PM) as well. The post mortem

report (Ex.PM) transpires that the eyes of the deceased were found

half open, which cannot happen in the presence of eye-witnesses. This

fact is also mentioned in inquest report (Ex.PP) that the eyes and mouth were half opened. Had the eye-witnesses present at the crime

scene, they would have shut the eyes of the deceased, while taking

them to the hospital and thereafter. The Hon ble Supreme Court of

Pakistan while being confronted in a similar situation in the case of

Zahir Yousaf and another v. The State and another (2017 SCMR 2002)

had granted acquittal in favour of the accused.

Moreover, both the witnesses of ocular account deposed that

immediately after the occurrence they informed Ashraf (given up PW)

and stayed at the place of occurrence till his arrival and waiting for his

commands. During cross-examination on complainant (PW-11) it

surfaced that brother of said Ashraf (given up PW) was murdered by

brother-in-law of the appellant, thus, it can safely be inferred that

complainant party might have falsely implicated the appellant on the

asking of Ashraf (given up PW).

It is also noteworthy that Ashraf (PW) who statedly reached at the

spot after the occurrence and on whose Dera in village Surag Salar,

District Attock these PWs and the deceased were statedly residing was

given up without any cause and justification, which further reflects

adverse presumption against the prosecution. Reliance in this respect

is placed on case titled Shaukat Hussain v. The State through PG

Punjab and another (2024 SCMR 929).

In view of above discussion, the prosecution has failed to prove a

plausible justification for presence of PW-9 and PW-11 at the time

and place of occurrence, hence ocular account furnished by them

being chance witnesses replete with contradictions and

improvements due to their unnatural conduct is not free from doubt

and cannot be relied upon.

10. Medical evidence was produced by the prosecution, according to

which on 06.11.2021 at 08:30 p.m. Dr. Aizaz Afzal (PW-6) conducted

autopsy on the dead body of Number Khan, deceased and noted Injury

No.1: multiple small penetrating wound (more than 50 in numbers)

measuring almost 1 mm x 1 mm, involving in front of neck, front of

chest and right shoulder, upto xiphisternum, blackening present on all

wounds. Some pellets were retrieved and sent to PFSA for ballistic

expert opinion . According to scaled site plan (Ex.PB) inter-se distance

between Point-1 (where deceased was standing at the time of

occurrence) and Point-2 (from where appellant made fire shot upon

the deceased) was 2-karams i.e. 10/11 feet. With such a distance

between the victim and the assailant, there was no probability that the

fire would have left the blackening around the wounds. Reliance is

placed on the cases reported as Mansab Ali and another v. The State

(2024 PCr.LJ 617) and Muhammad Zaman v. The State (2018 YLR Note

177). This PW further stated that probable time that elapsed between injury and death was one hour while between death and post mortem

was 5 to 7 hours. Time of death and post mortem given by PW-6 does

not coincides with the time of occurrence given in FIR (Ex.PA). This

conflict between the medical and the ocular account also belies the

presence of prosecution witnesses at the site.

11. Insofar as the positive report of PFSA (Ex.PX) is concerned, it is

observed that after the registration of FIR (Ex.PA), Atif Hussain,

Inspector (PW-13) was entrusted with the investigation of this case,

who visited the spot on 06.11.2021 and collected one crime empty of

cartridge of 12-bore from the place of occurrence and this article was

taken into possession vide memo. (Ex.PC). He handed over the crime

empty to Ahmed Nawaz Moharrar Malkhana 389/HC (PW-4) for safe

custody in Malkhana. While appearing before the trial court, Ahmed

Nawaz 389/HC (PW-4) deposed that on 07.11.2021, he handed over

parcel of blood-stained earth, cartridge, Jar and brown envelope to

Atif Hussain, Inspector (PW-13) for its onward transmission to the

office of PFSA. When the Investigating officer (Atif Hussain, Inspector

PW-13) appeared before the trial court, he stated that he took the

parcels of blood-stained earth, crime empty, sealed envelope on

08.11.2021. It is interesting to notice that there is contradiction in the

statements of PW-4 (Ahmed Nawaz 389-HC Moharrar Malkhana), who

stated that he handed over parcel of cartridge to Atif Hussain,

Inspector (then S.I) (PW-13) on 07.11.2021, while Atif Hussain,

Inspector/I.O (PW-13) deposed that he took the parcel of cartridge on

08.11.2021. Moreover, no justification was given by the I.O (Atif

Hussain, Inspector PW-13) as to why he kept the parcel with him for

one day. Investigating Officer/Atif Hussain S.I (PW-13) deposed that

Saeed Akhtar appellant was arrested on 06.07.2022, who, in the

presence of witnesses, got recovered rifle/gun 12-bore and one live

bullet on 12.7.2022 (P.7) vide recovery memo. Ex.PT. Ahmad Nawaz

389-HC Moharrar Malkhana (PW-4) deposed that on 12.7.2022, Atif

Hussain S.I (PW-13) handed over one sealed parcel said to contain

rifle 12-bore and one live cartridge, which he kept intact in Malkhana

and on 18.7.2022, he handed over the same to Atif Hussain S.I/I.O

(PW-13) for its onward transmission to PFSA, Lahore. While, Atif

Hussain S.I/I.O (PW-13), deposed that on 18.7.2022, I took the parcel of

12 bore gun/rifle from Moharrar Maalkhana Ibrar Ahmed/HC and

deposited the same into office of PFSA, Lahore intact. There is again

contradiction in the statement of Atif Hussain, Inspector/I.O (PW-13)

with respect to name of Moharrar Malkhana as Ahmad Nawaz 389-HC

Moharrar Malkhana (PW-4) stated that he handed over the sealed

parcel said to contain rifle 12-bore with one live bullet on 12.7.2022

to Atif Hussain, Inspector (PW-13), while PW-13/I.O deposed that he

took the parcel of 12-bore gun/rifle from Moharrar Malkhana Ibrar Ahmed 1851-HC (PW-8) while appearing in witness box also stated

that he was handed over one sealed parcel said to contain 12-bore

gun along with one live cartridge for keeping in safe custody, which

he handed over to Atif Hussain, Inspector/I.O on 18.7.2022. Both the

witnesses i.e. Ahmad Nawaz 389-HC Moharrar Malkhana (PW-4) and

Moharrar Malkhana Ibrar Ahmed 1851-HC (PW-8) have stated that

they were handed over one sealed parcel said to contain 12-bore

gun/rifle along with one live cartridge for keeping in safe custody on

18.7.2022, which they had handed over to Atif Hussain S.I/I.O (PW-13)

on 18.7.2022, hence, in the wake of this fact, the positive report

received from the PFSA is of no use to the prosecution because the

chain of safe custody is missing, which creates serious doubt about

the recovery of the .12 bore gun/rifle alleged to be used as a weapon

at the crime scene. Reference in this context may be made to the case

reported as Kamal Din alias Kamala v. The State (2018 SCMR 577)

wherein the Supreme Court of Pakistan discarded the positive report

of FSL.

12. As regards motive asserted by the prosecution was registration

of earlier hurt case due to land dispute against Number Khan deceased

by one Anwar Zaib thus complainant (PW-11) suspected that

Muhammad Sharif, Muhammad Wahab, Haji Qasim, Anwar Zaib,

Muhammad Shafiq and Najam-ul-Haq abetted the occurrence but

while appearing in the dock complainant (PW-11) admitted that they

do not have any rivalry/enmity with the appellant. Even otherwise, in

view of following deposition of complainant (PW-11) the entire story

of motive falls to the ground:-

Volunteer stated that we have suspicion about the involvement of

Muhammad Shareef and others in the instant case, so, I initially

nominated them. Now I am satisfied that they have nothing to

do with this occurrence.

In the absence of proof of motive, the real cause behind the murder

remains shrouded in mystery and it cannot be ascertained that what

actually had happened at the spot which prompted the

accused/appellant to take life of an innocent person, with whom

apparently he was not carrying any grudge or grouse.

13. Although it has been argued by learned District Public

Prosecutor that Saeed Akhtar (appellant), remained an absconder in

this case for a considerable period and his abscondance corroborates

the prosecution case against him but it is by now well settled that

when a person is named as a murderer, whether rightly or wrongly,

he usually becomes scared and tries to conceal himself in order to

avoid possible police torture and detention, therefore, mere

abscondence of an accused by itself is not sufficient to maintain his conviction and sentence in absence of other reliable evidence.

Reliance in this respect may be placed on the judgments reported as

Muhammad Masood alias Mithu v. The State and others (2025 SCMR

888), Rohtas Khan v. The State (2010 SCMR 566) and Muhammad Khan

v. State (1999 SCMR 1220).

14. In the light of above discussion, I am of the view that the

prosecution has failed to prove its case against the appellant beyond

the shadow of doubt, therefore, I accept Criminal Appeal No.1096 of

2024 filed by Saeed Akhtar appellant, set aside his conviction and

sentence acquit him of the charge by extending him the benefit of

doubt. The appellant Saeed Akhtar is in custody, he be released from

the jail forthwith, if not required to be detained in any other case. Case

property be disposed of in accordance with law.

JK/S-50/L Appeal allowed.