2026 M L D 420
2026 M L D 420
[Lahore (Bahawalpur Bench)]
Before Sadiq Mahmud Khurram, J
MUHAMMAD ZAFAR IQBAL---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 671-J of 2019, heard on 8th September, 2025.
(a) Criminal trial---
----Maxim: "falsus in uno, falsus in omnibus"---Applicability---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
could not be used either for convicting accused or acquitting some
of them facing trial in the same case---Such proposition is enshrined
in the maxim falsus in uno-falsus in omnibus .
Criminal Miscellaneous Application No. 200 of 2019 in Criminal
Appeal No. 238-L of 2013 PLD 2019 SC 527 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
common intention---Appreciation of evidence---Co-accused
acquitted on same set of witnesses---Accused were charged for
committing murder of the brother of complainant by firing and also
causing fire arm injuries to the complainant---Perusal of the
statements of eye-witnesses clearly revealed that the acquitted co-
accused of the appellant, injured the eye-witness/complainant by
firing at him with a rifle .44-bore and hitting him on his right wrist,
however the witnesses were adjudged to have deposed falsely
against acquitted accused by the Trial Court---Thus, no independent
corroboration of the prosecution case was found against the
appellant and court was unable to distinguish the case of the
appellant from the case of acquitted co-accused persons as the
prosecution evidence with regard to the appellant and regarding
his co-accused persons was similar, being based on the statements
of the eye-witnesses---No reason was found to believe the
statements of eye-witnesses with regard to the appellant in the
absence of any reason to do so---Lying on the part of the witnesses
with regard to acquitted accused persons had vitiated the trust of
this Court in them---Thus, the evidence of the eye-witnesses had no
worth and was to be rejected outright---Witness who had been
disbelieved with regard to his statement about an accused who had injured the said witness could not be believed with regard to his
statement about the other accused---Appeal against conviction was
allowed, in circumstances.
Munir Ahmed and others v. The State and others 2019 SCMR 2006;
Safdar Abbas and others v. The State and others 2020 SCMR 219 and
Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR
305 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
common intention---Appreciation of evidence---No justification for
the presence of eye-witnesses at the time and place of occurrence---
Accused were charged for committing murder of the brother of
complainant by firing and also causing fire arm injuries to the
complainant---According to the statements of both the eye-
witnesses, they were residents of places which were at a distance of
10-15 kilometers from the place of occurrence, however they had no
reason to be present at the place and time of occurrence---Most
importantly, the occurrence took place in front of the house of
acquitted accused, the co-accused of the appellant and according to
the statements of both the eye-witnesses, they themselves
proceeded to the house in front of which the occurrence took place-
--Being conscious of that fact that there did not exist any justifiable
reason for the said prosecution witnesses for having proceeded to
the house of acquitted accused, the co-accused of the appellant, in
front of which house the incident took place, the prosecution
witnesses came up with a stance that they had received a telephonic
call from said acquitted co-accused of the appellant, to come to his
house and take away the wife of deceased who had been sent to the
house of acquitted co-accused of the appellant by the appellant
after having given her a beating and it was only after receiving the
said call from acquitted co-accused that the prosecution witnesses
along with other witnesses proceeded to the said place---During
cross-examination, both the eye-witnesses made such statements
proving that the said reason for their proceeding to the house of
acquitted co-accused of the appellant was absolutely false---In the
first instance, complainant admitted during cross-examination that
acquitted co-accused of the appellant had not called him, however,
had called his brother/deceased, deviating from the stance taken by
him in his examination in-chief wherein he had specifically stated
that it was he who had received the call from acquitted co-accused--
-Investigating Officer of the case also admitted during cross-
examination that during investigation it was not proved that
acquitted co-accused had made any call either to the eye-witnesses or even the deceased asking them to come to his house to take away
wife of deceased---In this manner, the eye-witnesses were exposed
to having fashioned out a false reason for their proceedings to the
house of acquitted co-accused on the day of the incident---If there
was no dispute between the appellant and the eye-witnesses or the
deceased prior to the incident then the eye-witnesses should have
explained as to why they proceeded to the house of acquitted co-
accused on the day of the incident---More importantly, Mst. S
neither appeared during the investigation of the case nor was
summoned by the Trial Court as a witness to determine the fact as
to whether Mst. S was ever married to the deceased on the day
when the incident took place or whether the Mst. S had ever taken
refuge in the house of acquitted co-accused on the day of the
incident and whether Mst. S had been given a beating by the
appellant---Failure to produce Mst. S as a witness had fatal
consequences for the prosecution's case and presently the same was
not only highly doubtful but also mired in uncertainties---Very
inception of the prosecution case was put in doubt due to the
identified flaws of the prosecution case---In this manner, both the
eye-witnesses failed miserably to establish the reason for their
departure to the place of occurrence and their subsequent presence
at the place and time of occurrence---Appeal against conviction was
allowed, in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
common intention---Appreciation of evidence---Accused were
charged for committing murder of the brother of complainant by
firing and also causing fire arm injuries to the complainant---
Complainant, though initially claimed that the appellant had
developed an illicit relationship with the wife of the deceased and
had also enticed her away, five six months prior to the occurrence---
However, during cross-examination, complainant even denied that
his brother/deceased was married to Mst. S and even denied that he
had any knowledge about the marriage of Mst. S with deceased---
Statement of complainant that it was incorrect that deceased was
married to Mst. S opened up a gaping flaw in the prosecution's case
in the manner that if Mst. S was not married to deceased then why
the eye-witnesses had proceeded to the house of acquitted co-
accused, on the day of the incident, ostensibly to bring back Mst. S ,
who had arrived at the said house after having been beaten by the
appellant---Said sole statement of complainant that Mst. S was not
even the wife of his brother made the whole prosecution case
completely doubtful and the circumstances in which the eye-
witnesses proceeded to the house of acquitted co-accused, on the day of the incident, very sinister---Other eye-witness came up with
another version regarding the relationship of deceased and Mst. S
and claimed that the relationship between deceased and Mst. S was
very cordial and furthermore deceased had never reported the
matter of enticing away of Mst. S by the appellant to the police---
Such statement of said eye-witness created a fatal flaw in the
prosecution's case as to why the eye-witnesses proceeded to the
house of acquitted co-accused on the day of the incident, if Mst. S
was living a happy matrimonial life with deceased, as claimed by
eye-witness himself---Investigating Officer also admitted during
cross-examination that there was no dispute between the appellant
and the eye-witnesses or the deceased prior to the incident---Appeal
against conviction was allowed, in circumstances.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
common intention---Appreciation of evidence---Benefit of doubt---
Deceased s marriage with the alleged wife of accused not proved---
Accused were charged for committing murder of the brother of
complainant by firing and also causing fire arm injuries to the
complainant---Appellant produced the certified copy of the
judgment and decree passed in the suit filed by Mst. S seeking
dissolution of marriage against deceased and also produced the
certified copy of the Nikahnama dated 08.06.2015 of Mst. S , with
himself and the said documents were never even challenged by the
complainant or the witnesses---In this manner, when Mst. S had
already been married to the appellant since 08.06.2015 and was
residing with him as his validly wedded wife, then the story of the
eye-witnesses that they had gone to the place of occurrence to bring
Mst. S back, was absolutely false and improbable---On 06.08.2015,
the day of occurrence, deceased as well as the eye-witnesses had no
relationship with Mst. S and therefore there existed no reason for
deceased as well as the eye-witnesses to have proceeded to the
place of occurrence on the pretext of bringing Mst. S back---Said
facts also created an incurable and fatal flaw in the prosecution's
case---Appeal against conviction was allowed, in circumstances.
(f ) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
common intention---Appreciation of evidence---Night time
occurrence---Identification of the accused by eye-witnesses
doubtful---Accused were charged for committing murder of the
brother of complainant by firing and also causing fire arm injuries
to the complainant---According to the eye-witnesses, occurrence
took place at about 08.00 p.m. on the night of 06.08.2015---However, admittedly, no source of light, which could have enabled the
witnesses to have rightly identified the accused and also allowed
the witnesses to have noted the individual roles of each and every
accused present at the place and time of occurrence, was produced
by the witnesses during the investigation of case or even before the
Trial Court---Eye-witnesses in their statements recorded by the Trial
Court, did not even mention the presence of any source of light
which could have enabled them to correctly identify not only the
accused but also the other various facts of the incident---Failure of
the eye-witnesses even to mention any source of light in their
statements recorded by the Trial Court led to only one conclusion,
and that being that no such source of light was available at the
place of occurrence which could have enabled the eye-witnesses to
have identified the assailants and also witnessed the individual
roles of the assailants as acted by them during the occurrence---
According to the prosecution evidence, the Investigating Officer of
the case visited the place of occurrence after the occurrence, still,
he did not observe or take into possession any source of light which
was allegedly available and lit at the place and time of occurrence---
Scaled site plan of the place of occurrence as prepared by Patwari
and the rough site plan of the place of occurrence as prepared by
Investigating Officer, also did not mention the presence of any
source of light at the place of occurrence---Eye-witnesses failed to
establish the fact of such availability of a light source and in the
absence of their ability to do so, this Court could not presume the
existence of such a light source---Absence of any light source had
put the whole prosecution case in the dark---It was admitted by the
witnesses themselves that it was a dark night and as the
prosecution witnesses failed to prove the availability of any light
source, their statements with regard to them identifying the
assailants, including the appellant, could not be relied upon---
Failure of the prosecution witnesses to prove the presence of any
light source at the place and time of occurrence had repercussions,
entailing the failure of the prosecution's case---Appeal against
conviction was allowed, in circumstances.
Imtiaz Hussain Shah alias Tajjay Shah and another v. The State and
others 2025 SCMR 1110; Gulfam and another v. The State 2017 SCMR
1189; Hameed Gul v. Tahir and 2 others 2006 SCMR 1628; Basar v.
Zulfiqar Ali and others 2010 SCMR 1972; Azhar Mehmood and others v.
The State 2017 SCMR 135 and Arshad Khan v. The State 2017 SCMR 564
rel.
(g) Penal Code (XLV of 1860) ..
Ss. 302(b), 324 & 34---Criminal Procedure Code (V of 1898), S.103--
-Qatl-i-amd, attempt to commit qatl-i-amd, common intention---
Appreciation of evidence---Recovery of weapon of offence from
accused---Non-association of private witnesses during recovery---
Accused were charged for committing murder of the brother of
complainant by firing and also causing fire arm injuries to the
complainant---Record showed that rifle .44-bore was recovered
from the appellant---However, such recovery could not be relied
upon as the Investigating Officer of the case did not join any
witness of the locality during the recovery of the rifle .44-bore from
the appellant, which action of his was in clear violation of the
provisions of the S. 103, Cr.P.C and therefore the evidence of the
recoveries could not be used as incriminating evidence against the
appellant, being evidence which was obtained through illegal
means and hence hit by the exclusionary rule of evidence---
Provisions of S.103, Cr.P.C unfortunately, were honoured more in
disuse than compliance---In this manner, the recovery of the rifle
.44-bore from the appellant could not be proved and could not be
considered as a relevant fact for proving any fact in issue---
Moreover, according to the report of Forensic Science Agency, the
empty shells of the bullets taken into possession from the place of
the incident, when compared with the rifle .44-bore recovered from
the appellant were found not to have been fired from the same---
Said fact also proved the claim of the appellant with regard to his
false involvement in the incident---Appeal against conviction was
allowed, in circumstances.
Muhammad Ismail and others v. The State 2017 SCMR 898 rel.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,
common intention---Appreciation of evidence---Motive not proved---
Accused were charged for committing murder of the brother of
complainant by firing and also causing fire arm injuries to the
complainant---Motive behind the occurrence of this case, as stated by
the eye-witnesses in their statements before the Trial Court, was that
Mst. S the wife of deceased was enticed away by the appellant,
however, thereafter disputes arose between the appellant and Mst. S
whereafter the appellant left Mst. S , after beating her---Perusal of the
record revealed that the said Mst. S , never even joined the
investigation of the case and moreover the eye-witnesses made
contradictory statements with regard to the marital status of Mst. S ---
Investigating Officer of the case did not collect any evidence with
regard to the motive of the occurrence---Eye-witnesses failed to
provide evidence enabling the Court to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling
that it could have led the appellant to have committed the qatl-i-amd
of the deceased---There were haunting contradictions with regard to
the minutiae of motive alleged---No independent witness was
produced by the prosecution to prove the motive as alleged---
Moreover, it was an admitted rule of appreciation of evidence that
motive was only a corroborative piece of evidence and if the ocular
account was found to be unreliable, then motive alone could not be
made the basis of conviction---Even otherwise, a tainted piece of
evidence could not corroborate another tainted piece of evidence---
Appeal against conviction was allowed, in circumstances.
Muhammad Javed v. The State 2016 SCMR 2021 rel.
(i) Criminal trial---
----Benefit of doubt---Principle---If the prosecution fails to prove its
case against an accused person, then the accused person is to be
acquitted.
Azhar Iqbal v. The State 2013 SCMR 383 rel.
(j) Criminal trial---
----Medical evidence---Scope---Medical evidence by its nature and
character cannot recognize a culprit in case of an unobserved
incident---Where all the other pieces of evidence relied upon by the
prosecution have been disbelieved and discarded by the Court, the
conviction of accused cannot be upheld on the basis of medical
evidence alone.
Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed
Asghar and 2 others v. The State PLD 2021 SC 600 rel.
(k) Criminal trial---
----Benefit of doubt---Principle---If only a single circumstance
creating reasonable doubt in the mind of a prudent person is
available then such benefit would be extended to an accused not as
a matter of concession but as of right.
Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah
v. The State 2021 SCMR 736 rel.
Syed Asim Ali for Appellant.
Riaz Ahmad Khan, Deputy Prosecutor General for the State.
Imran Pasha for the Complainant.
Date of hearing: 8th September, 2025. JUDGMENT
SADIQ MAHMUD KHURRAM, J.---Muhammad Zafar Iqbal son of
Muhammad Sadiq (convict)was tried along with Muhammad Amin
alias Latif, Muhammad Nadeem and Khadim Hussain (all since
acquitted), the co-accused of the convict, by the learned Additional
Sessions Judge, Chishtian in the case instituted upon the private
complaint titled Muhammad Nawaz v. Muhammad Zafar Iqbal and 3
others. (relating to case FIR No.260 of 2015, dated 02.08.2015,
registered at police station Bakhshan Khan, District Bahawalnagar)
lodged in respect of offences under sections 302, 324 and 34, P.P.C. for
committing the Qatl-i-Amd of Mumtaz son of Muhammad Hussain
(deceased). The learned trial court vide judgment dated 31.10.2019,
convicted Muhammad Zafar Iqbal son of Muhammad Sadiq (convict)
and sentenced him as infra:
Muhammad Zafar Iqbal son of Muhammad Sadiq:-
Imprisonment for life under section 302(b)m P.P.C for committing
the Qatl-i-Amd of Mumtaz son of Muhammad Hussain (deceased)
and directed to pay compensation of Rs.200,000/- under section
544-A of the Code of Criminal Procedure,1898 and in case of
default thereof to further undergo simple imprisonment for six
months.
The benefit of Section 382-B of the Code of Criminal Procedure, 1898
was extended to the appellant by the learned trial court .
Muhammad Amin alias Latif, Muhammad Nadeem and Khadim
Hussain, the co-accused of the convict, were however, acquitted by the
learned trial court.
2. Feeling aggrieved, Muhammad Zafar Iqbal son of Muhammad
Sadiq (convict) lodged the instant Criminal Appeal No. 671-J of 2019
through Jail, assailing his conviction and sentence.
3. Precisely, the necessary facts of the prosecution case, as stated by
Muhammad Nawaz (PW-1), the complainant of the case, are as under:-
My brother Mumtaz was married with Mst. Shumaila Bibi 7/8 years
prior to the occurrence and one daughter was born from this
wedlock. Accused Zafar Lohar was friend of my brother who
used to visit our house. Accused Zafar Lohar developed illicit
relations with Mst. Shumaila Bibi and took her with him about
5/6 months prior to occurrence. On 08-06-2015 at about 7:00PM
accused Khadim Hussain son of Kher Muhamnad called me and
my brother that accused Zafar had given beating to Mst.
Shumaila Bibi who is in his house and asked us to take her. I
along with my brother Mumtaz, Riaz Ahmed son of Budhan and Razzaq Hussain went there on motorcycles. At about 8:00PM
when we entered in the house of Khadim, persons complained
against Zafar, Latif both Lohar by caste, Nadeem dadpotra and
one unknown person while armed with firearm weapons were
present there. Accused Zafar Lohar caused fire with rifle .44-
bore which hit outside the left thigh of my brother Mumtaz
passed through it and hit on the right thigh. Accused Nadeem
fired with his rifle .44-bore which hit me on my right wrist and
went through and through. Accused Latif Lohar and one
unknown also caused fired upon us. Riaz and Razzaq PWs save
themselves by hiding behind the wall and witnessed the
occurrence. The occurrence took place on the abetment of
accused Khadim who called us through telephone. PWs took us
to hospital. My statement was recorded which is Exh-PC. I
thumb marked the same upon which present case was
registered. On my statement FIR No.260/2015 under sections
324/34/109, P.P.C. was chalked out at PS Bakhshan Khan. Doctor
referred my brother to BVH, Bahawalpur who succumbed to
the injuries on the way. I took dead body of my brother to Civil
Hospital, Chishtian where his postmortem was conducted and
after postmortem I received dead body of my brother through
receipt. After that offence under section 302, P.P.C. was added.
During investigation IO held accused person Khadim Hussain
and Muhammad Amin alias Latif innocent and involved
accused Nadeem but exonerated him to the extent of fire upon
me. 10 in connivance with accused Nadeem did not recover
weapon from him. I filed various applications before high ups
of police but all in vain. Being aggrieved from the conduct of
police I filed this private complaint Exh-PD which bears my
thumb impression as Exh-PD/1. Persons complained against are
real, culprits, they be punished accordingly.
4. The accused were summoned to face trial in the case instituted
upon the private complaint titled Muhammad Nawaz v. Muhammad
Zafar Iqbal and 3 others. (relating to case FIR No.260 of 2015, dated
02.08.2015, registered at Police Station Bakhshan Khan, District
Bahawalnagar) lodged in respect of offences under sections 302, 324
and 34, P.P.C. for committing the Qatl-i-Amd of Mumtaz son of
Muhammad Hussain (deceased). The learned trial court framed the
charge against the accused on 27.04.2017, to which the accused
pleaded not guilty and claimed trial.
5. The complainant of the case in order to prove his case, got
recorded statements of as many as three witnesses. The ocular account
of the case was furnished by Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2). Examination in-Chief of Riaz Ahmad (PW 3) was also recorded, however, the complainant of the case got
recorded his statement on 04.03.2019 that he did not want to produce
Riaz Ahmad (PW-3) for the purpose of cross-examination, therefore,
the statement of Riaz Ahmad (PW-3) was discarded by the learned trial
court.
6. The learned trial court recorded statements of eleven witnesses as
Court witnesses. Ijaz Ahmad Kamboh Patwari (CW-1) prepared the
scaled site plan of the place of occurrence (CW-1/A). Muhammad Riaz
769/C (CW-6) stated that on 07.08.2015, he escorted the dead body of
the deceased to the hospital and received the last worn clothes of the
deceased from the Medical Officer after the post mortem examination
of the dead body of the deceased. Nazir Ahmad, SI (CW-8) stated that
on 06.08.2015, he recorded the formal FIR (CW-8/A). Razzaq Ahmad , SI
(CW-11) stated that he had been working with Muhammad Nawaz, SI
(since dead) who investigated the case from 20.12.2015 till 01.02.2016.
Nasir Mahmood, SI (CW-3) stated that he investigated the case from
06.08.2015 till 30.11.2015 and narrated the facts of the investigation
conducted by him in his statement recorded by the learned trial
court.Razzaq Ahmad, SI (CW-4), stated that he investigated the case
from 10.10.2016 till 04.04.2017, arrested the appellant on 12.12.2016
and narrated the facts of the investigation conducted by him in his
statement recorded by the learned trial court.
7. The learned trial court also recorded the statement of Dr.
Ghazanfar Mahmood (CW-2), who on 07.08.2015 was posted as Medical
Officer at THQ hospital Chishtian and on the same day conducted the
post-mortem examination of the dead body of the deceased, namely
Mumtaz. Dr. Ghazanfar Mahmood (CW-2) on examining the dead body
of the deceased namely Mumtaz, observed as under:-
Injury No. 1.
A lacerated wound measuring 2 cm X 1.5 cm X deep going with
inverted margins on lateral side of left thigh, 20 cm below left
iliac spine. There was no burning or blanking present on wound
or clothes, Corresponding hole was present on clothes. Injury
No.1 was entry wound. On exploration skin, soft vessels tissues,
mussels, damaged. nerves and blood
Injury No.2.
A lacerated wound measuring 4.00 cm X 2.00 cm X deep going with
everted margins on medial side of left thigh at the level of injury
No.1. There was no burning or blackening present on clothes or
wound. Corresponding hole present on clothes. Injury No.2 is
exit wound.
Injury No.3. A lacerated wound 2.5 cm X 2 cm X deep going with inverted
margins on medial side of right thigh at the level of injury No.2.
Corresponding hole was present on clothes. There was no
burning or blackening present on clothes or wound. Injury No.3
was entry wound. On exploration soft tissues, mussels (sic) and
blood vessels damaged. A bullet recovered from wound, sealed
and handed over to police.
..
OPINION. After thorough external and internal postmortem
examination I was of the opinion that injuries Nos. 1, 2 and 3
were collectively cause of death leading to severe hemorrhage,
shock, cardiopulmonary arrest leading to death. These injuries
were ante mortem in nature and were caused by firearm.
On 06.08.2015,Dr. Ghazanfar Mahmood (CW-2) had medically
examined Muhammad Nawaz (PW-1) and observed as under:-
Injury No.01-A
A lacerated wound of 6cm X 2cm X deep going with inverted
margins on lateral aspect of right wrist. Injury No.01-A is entry
wound.
Injury No.01-B
A lacerated wound of 7.5cm X 2.5cm X deep going with everted
margins on medial aspect of right wrist. Injury No.01-B is exit
wound. Distal neurovascular status was intact. Advised X-Ray
right wrist A/Plateral view.
Dr. Ghazanfar Mahmood (CW-2) further stated that on 06.08.2015,
he had examined Mumtaz (deceased) in an injured condition and had
observed the same injuries as observed by him at the time of the post
mortem examination of the dead body of Mumtaz (deceased).
8. On 28.10.2019, the learned Assistant District Public Prosecutor
closed the prosecution evidence after tendering in evidence the
reports of Punjab Forensic Science Agency, Lahore (Exh.PJ and
Exh.PK).
9. After the closure of prosecution evidence, the learned trial court
examined the appellant namely Muhammad Zafar Iqbal son of
Muhammad Sadiq under section 342, Cr.P.C. and in answer to the
question why this case against you and why the P.W.s have deposed
against you, he replied that he had been involved in the case falsely
and was innocent. The appellant namely Muhammad Zafar Iqbal son
of Muhammad Sadiq opted not to get himself examined under section 340(2), Cr.P.C and produced (Exh.DB, Exh.DB/1 and Exh.DC) as evidence
in his defence.
10. At the conclusion of the trial, the learned Additional Sessions
Judge, Chishtian convicted and sentenced the appellant as referred to
above.
11. The contention of the learned counsel for the appellant precisely
was that the whole case was fabricated and false and the prosecution
remained unable to prove the facts in issue and did not produce any
unimpeachable, admissible, and relevant evidence. Learned counsel
for the appellant further contended that the story of the prosecution
mentioned in the statements of the prosecution witnesses namely
Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2), on the face
of it, was highly improbable. Learned counsel for the appellant further
contended that the statements of the prosecution witnesses were not
worthy of any reliance. The learned counsel for the appellant also
argued that the appellant had been involved in the occurrence only on
suspicion. The learned counsel for the appellant finally submitted that
the prosecution had totally failed to prove the case against the accused
beyond the shadow of a doubt.
12. On the other hand, the learned Deputy Prosecutor General and
the learned counsel for the complainant contended that the
prosecution had proved its case beyond shadow of doubt by
producing independent witnesses. The learned Deputy Prosecutor
General and the learned counsel for the complainant further argued
that the deceased died as a result of injuries suffered at the hands of
the appellant. The learned Deputy Prosecutor General and the learned
counsel for the complainant further contended that the medical
evidence also corroborated the statements of the prosecution
witnesses namely Muhammad Nawaz (PW-1) and Muhammad Razzaq
(PW-2). The learned Deputy Prosecutor General also argued that the
recovery of rifle .44-bore (P-4) also supported the prosecution's case.
The learned Deputy Prosecutor General and the learned counsel for
the complainant 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 for the
complainant prayed for the rejection of the appeal as lodged by the
appellant namely Muhammad Zafar Iqbal son of Muhammad Sadiq.
13. I have heard the learned counsel for the appellant, the learned
counsel for the complainant ,the learned Deputy Prosecutor General
and with their able assistance, perused the record and evidence
recorded during the trial. 14. The learned Deputy Prosecutor General has vehemently argued
that as the prosecution witness namely Muhammad Nawaz (PW-1) was
injured during the occurrence, therefore, his statement could not be
doubted in any manner. The stamp of injuries on the person of a
witness may be proof of his presence at the place of occurrence, at the
time of occurrence, however the same can never guarantee a truthful
deposition. Injuries received by a witness during an incident do not
warrant acceptance of his evidence without scrutiny. At the most, such
traumas can be taken as an indication of his presence on the spot, but
still his evidence is to be scrutinized on the benchmark of principles
laid down for the appraisal of evidence. It is not a given that a witness
who suffered injuries during the occurrence will depose nothing but
the truth. Even otherwise, it is not the simple presence of a witness at
the crime scene but his credibility, which makes him a reliable
witness. It has been held by the august Supreme Court of Pakistan
repeatedly that the facts that an injured witness narrates are not to be
implicitly accepted rather, they are to be attested and appraised on the
principles applied for the appreciation of evidence of any prosecution
witness, regardless of him being injured or not. Guidance is sought
from the principle enunciated by the august Supreme Court of
Pakistan in the case of Nazir Ahmad v. Muhammad Iqbal and another
(2011 SCMR 527) where at page 534 the august Supreme Court of
Pakistan, was pleased to hold as under:
It is settled law that injuries of P.W. are only indication of his
presence at the spot but are not affirmative proof of his
credibility and truth .
Guidance is also 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 hold that the presence of injuries does not stamp a
witness to be a truthful one and observed as under :-.
12. Certainly, the presence of the injured witnesses cannot be
doubted at the place of incident, but the question is as to
whether they are truthful witnesses or otherwise, because
merely the injuries on the persons of P.Ws. would not stamp
them truthful witnesses. It has been held in the case of Said
Ahmed supra as under:--
"It is correct that the two eye-witnesses are injured and the injuries
on their persons do indicate that they were not self-suffered. But
that by itself would not show that they had, in view of the
aforenoted circumstances, told the truth in the Court about the
occurrence; particularly, also the role of the deceased and the
eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-
witnesses mentioned in the FIR namely, Abdur Rashid and Riasat
were not examined at the trial. This further shows that the
injured eye-witnesses wanted to withhold the material aspects
of the case from the Court and the prosecution was
apprehensive that if independent witnesses are examined, their
depositions might support the plea of the accused."
In the case of Mehmood Hayat supra at page 1417, it has been
observed as under:--
"10. There is no cavil with the proposition laid down in the case of
Zaab Din and another v. The State (PLD 1986 Peshawar 188) that
merely because the P.Ws. had stamp of firearm injuries on their
person was not per se tantamount to a stamp of credence on
their testimony."
In the case of Mehmood Ahmed supra, this Court at page 7 observed
as under:
"For an injured witness whose presence at the occurrence is not
disputed it can safely be concluded that he had witnessed the
incident. But the facts he narrates are not to be implicitly
accepted merely because he is an injured witness. His testimony
is to be tested and appraised on the principles applied for
appreciation of any other prosecution witness."
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.
With this principle of appreciation of evidence in mind that an
injured witness cannot be presumed to be also a truthful witness, I
have proceeded to examine the statements of the prosecution
witnesses namely Muhammad Nawaz (PW-1) and Muhammad Razzaq
(PW-2). I have already mentioned that along with the appellant, his co-
accused, namely Muhammad Amin alias Latif, Muhammad Nadeem
and Khadim Hussain, since acquitted by the learned trial court, were
also tried. The learned trial court acquitted the above mentioned co-
accused of the charges. I 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, who have stated that the acquittal of Muhammad Amin alias
Latif, Muhammad Nadeem and Khadim Hussain, since acquitted by the
learned trial court, had attained finality as neither the State nor the
complainant or any other aggrieved person had filed an appeal against
the acquittal of Muhammad Amin alias Latif, Muhammad Nadeem and
Khadim Hussain , the co-accused of the appellant. The question for determination before this Court now is that whether the evidence
which has been disbelieved qua the acquitted co-accused of the
appellant can be believed against the appellant namely Muhammad
Zafar Iqbal son of Muhammad Sadiq. 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
repeatedly 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. I 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 unofalsus 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 SC 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, I have examined the prosecution evidence. I have scrutinized
the statements of the prosecution witnesses namely Muhammad
Nawaz (PW-1) and Muhammad Razzaq (PW-2). The prosecution
witness namely Muhammad Nawaz (PW-1) in his statement before the
learned trial court, stated as under:-
On 08-06-2015 at about 7:00 PM accused Khadim Hussain son of
Kher Muhamnad called me and my brother that accused Zafar
had given beating to Mst. Shumaila Bibi who is in his house and
asked us to take her. I along with my brother Mumtaz, Riaz
Ahmed son of Budhan and Razzaq Hussain went there on
motorcycles. At about 8:00 PM when we entered in the house of
Khadim, persons complained against Zafar, Latif both Lohar by
caste, Nadeem dadpotra and one unknown person while armed
with firearm weapons were present there. Accused Zafar Lohar
caused fire with rifle .44-bore which hit outside the left thigh of
my brother Mumtaz passed through it and hit on the right thigh.
Accused Nadeem fired with his rifle .44-bore which hit me on my
right wrist and went through and through. Accused Latif Lohar
and one unknown also caused fired upon us. (emphasis
supplied)
The prosecution witness namely Muhammad Razzaq (PW-2) in his
statement before the learned trial court, stated as under:-
Accused Zafar Lohar fired with rifle .44-bore which hit outside the
left thigh of deceased Mumtaz and went through and hit on the right thigh. Accused Nadeem fired with his rifle .44-bore which
hit on Nawaz right wrist and passed through it and through.
Accused Latif Lohar and one unknown also fired upon us.
(emphasis supplied)
The perusal of the above-mentioned portions of the statements of
the prosecution witnesses namely Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2) clearly reveals that according to the said
eye-witnesses, Muhammad Nadeem , the acquitted co-accused of the
appellant, injured the prosecution witness namely Muhammad Nawaz
(PW-1) by firing at him with a rifle 44-bore and hitting him on his right
wrist, however the prosecution witnesses namely Muhammad Nawaz
(PW-1) and Muhammad Razzaq (PW-2) were adjudged to have deposed
falsely against Muhammad Nadeem ( since acquitted) by the learned
trial court . I am unable to find any independent corroboration of the
prosecution case against the appellant namely Muhammad Zafar Iqbal
son of Muhammad Sadiq and I am unable to distinguish the case of the
appellant from the case of acquitted co-accused namely Muhammad
Amin alias Latif, Muhammad Nadeem and Khadim Hussain (since
acquitted) as the prosecution evidence with regard to the appellant
namely Muhammad Zafar Iqbal son of Muhammad Sadiq and
regarding his co-accused namely Muhammad Amin alias Latif,
Muhammad Nadeem and Khadim Hussain (all since acquitted), is
similar, being based on the statements of the prosecution witnesses
namely Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2). I
find no reason to believe their statements with regard to the appellant
in the absence of any reason to do so. This lying on the part of the
witnesses with regard to Muhammad Amin alias Latif, Muhammad
Nadeem and Khadim Hussain ( all since acquitted) has vitiated the
trust of this Court in them. I am thus satisfied that the evidence of the
prosecution witnesses namely Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2) has no worth and is to be rejected outright.
A witness who has been disbelieved with regard to his statement about
an accused who had injured the said witness cannot be believed with
regard to his statement about the other accused. Reliance in this
regard is 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 P.W.s; 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.
Reliance is also placed on the case of Muhammad Ilyas and another
v. Ameer Ali and another (2020 SCMR 305) wherein the august
Supreme Court of Pakistan has held as under: -
8. It is crystal clear that the case of the prosecution, against the
appellant and his co-accused/co-convict Shahbaz to the extent of
murder of Ijaz Ahmed (deceased) was on the same pedestal. At
the cost of reiteration, it has been observed by us that
significantly one injury was attributed to the appellant on the
chest of Ijaz Ahmed, whereas two injuries were attributed to
Shahbaz on the chest and neck of deceased and as per doctor all
the three injuries contributed towards the death of Ijaz Ahmed.
Since the prosecution failed to bring on record any strong and
independent corroboration to distinguish the case of appellant
from that of his co-accused Shahbaz, therefore, in the
circumstances of the case, it can safely be held that case of
prosecution against the appellant for the murder of Ijaz Ahmed
(deceased) is not proved beyond reasonable doubt.
14. Another grave flaw of the prosecution case is that according to
the statements of both the eye-witnesses namely Muhammad Nawaz
(PW-1) and Muhammad Razzaq (PW-2), they were residents of places
which were at a distance of 10-15 kilometres from the place of
occurrence, however they had no reason to be present at the place of
occurrence at the time of occurrence . Muhammad Nawaz (PW-1)
admitted during cross-examination, as under:-
The house of accused Khadim Hussain i.e. place of occurrence is at a
distance of about 10/15 kilometer from my house. (emphasis
supplied)
Most importantly, the occurrence took place in front of the house of
Khadim Hussain( since acquitted) , the co-accused of the appellant and
according to the statements of both the eye-witnesses namely
Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2), they
themselves proceeded to the house in front of which the occurrence took place. Being conscious of this fact that there did not exist any
justifiable reason for the said prosecution witnesses namely
Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2) for having
proceeded to the house of Khadim Hussain (since acquitted) , the co-
accused of the appellant, in front of which house the incident took
place, the prosecution witnesses namely Muhammad Nawaz (PW-1)
and Muhammad Razzaq (PW-2) came up with a stance that they had
received a telephonic call from Khadim Hussain (since acquitted) , the
co-accused of the appellant, to come to his house and take away Mst.
Shomila, the wife of Mumtaz (deceased) who had been sent to the
house of Khadim Hussain( since acquitted) , the co-accused of the
appellant by the appellant after having given her a beating and it was
only after receiving the said call from Khadim Hussain (since
acquitted) , the co-accused of the appellant that the prosecution
witnesses namely Muhammad Nawaz (PW-1) and Muhammad Razzaq
(PW-2), along with other witnesses proceeded to the said place. During
cross-examination, both the prosecution witnesses namely
Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2) made such
statements proving that the said reason for their proceeding to the
house of Khadim Hussain (since acquitted), the co-accused of the
appellant, was absolutely false. In the first instance, Muhammad
Nawaz (PW-1) admitted during cross-examination that Khadim
Hussain (since acquitted) , the co-accused of the appellant had not
called him, however, had called his brother Mumtaz (deceased),
deviating from the stance taken by him in his examination in-chief
wherein he had specifically stated that it was him who had received
the call from Khadim Hussain (since acquitted) , the co-accused of the
appellant.During cross-examination, Muhammad Nawaz (PW-1)
claimed as under:-
Khadim Hussain did not call me however he called my brother
Muhammad Mumtaz (deceased). I did not get recorded in Exh-PC
that accused Khadim Hussain called me on 06-08-2015 at
07:00PM. Confronted with Exh-PC where it is so recorded.
(emphasis supplied)
Nasir Mahmood, SI (CW-3) , the Investigating Officer of the case also
admitted during cross-examination that during investigation it was
not proved that Khadim Hussain (since acquitted) , the co-accused of
the appellant had made any call either to the prosecution witnesses
namely Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2) or
even the deceased asking them to come to his house to take away Mst.
Shomila Bibi. Nasir Mahmood, SI (CW-3) explained during cross-
examination, as under: It is further correct that the message of said torture through phone
call made by accused Khadim Hussain to complainant party was
also not proved.
In this manner, the prosecution witnesses namely Muhammad
Nawaz (PW-1) and Muhammad Razzaq (PW-2) were exposed to having
fashioned out a false reason for their proceeding to the house of
Khadim Hussain (since acquitted) , the co-accused of the appellant, on
the day of the incident.
15. This Court has also noted with grave concern that the
prosecution witness namely Muhammad Nawaz (PW-1), though
initially claimed that the appellant had developed an illicit
relationship with Mst. Shomila, the wife of the deceased and had also
enticed away Mst. Shomila, five six months prior to the occurrence,
however, during cross-examination, Muhammad Nawaz (PW-1) even
denied that his brother Mumtaz (deceased) was married to Mst.
Shomila and even denied that he had any knowledge about the
marriage of Mst. Shomila with Mumtaz (deceased). Contradicting
himself, Muhammad Nawaz (PW-1) stated during cross-examination,
as under:-
It is incorrect to suggest that Shumaila Bibi was wife of my deceased
brother Muhammad Mumtaz. I did not participate even the
marriage of my brother deceased Muhammad Mumtaz
solemnized with Shumaila Bibi. I did not even visit the in laws of
my brother Muhammad Mumtaz deceased (emphasis supplied)
The statement of Muhammad Nawaz (PW-1) that it was incorrect
that Mumtaz (deceased) was married to Mst. Shomila opens up a
gaping flaw in the prosecution's case in the manner that if Mst.
Shomila was not married to Mumtaz (deceased) then why the
prosecution witnesses namely Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2) had proceeded to the house of Khadim
Hussain (since acquitted) , the co-accused of the appellant, on the day
of the incident, ostensibly to bring back Mst. Shomila, who had arrived
at the said house after having been beaten by the appellant. This sole
statement of Muhammad Nawaz (PW-1) that Mst. Shomila was not
even the wife of his brother makes the whole prosecution case
completely doubtful and the circumstances in which the prosecution
witnesses namely Muhammad Nawaz (PW-1) and Muhammad Razzaq
(PW-2) proceeded to the house of Khadim Hussain (since acquitted) ,
the co-accused of the appellant , on the day of the incident, very
sinister.
16. This Court has also considered the statement of Muhammad
Razzaq (PW-2) who came up with another version regarding the relationship of Mumtaz (deceased) and Mst. Shomila and claimed that
the relationship between Mumtaz (deceased) and Mst. Shomila was
very cordial and furthermore Mumtaz (deceased) had never reported
the matter of enticing away of Mst. Shomila by the appellant to the
police. During cross-examination, Muhammad Razzaq (PW-2) claimed
as under:-
Deceased Muhammad Mumtaz and Shumaila had no strained
relations with each other prior to this occurrence.
..
Deceased Mumtaz neither filed any criminal case against accused
Zafar nor he filed any petition under section 22-A, Cr.P.C. for
registration of case against accused Zafar prior to this
occurrence regarding alleged abduction of Shumaila Bibi by
accused Zafar Iqbal.
The above referred statement of Muhammad Razzaq (PW-2) also
creates a fatal flaw in the prosecution's case as to why the prosecution
witnesses namely Muhammad Nawaz (PW-1) and Muhammad Razzaq
(PW-2) proceeded to the house of Khadim Hussain (since acquitted),
the co-accused of the appellant on the day of the incident, if Mst.
Shomila was living a happy matrimonial life with Mumtaz (deceased),
as claimed by Muhammad Razzaq (PW-2) himself. Nasir Mahmood, SI
(CW-3) also admitted during cross-examination that there was no
dispute between the appellant and the prosecution witnesses namely
Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2) or the
deceased prior to the incident. During cross-examination, Nasir
Mahmood, SI (CW-3) stated as under:-
It is further correct that the complaint of torture by accused Zafar
Lohar upon his wife was also not proved during investigation. It
is further correct that the message of said torture through phone
call made by accused Khadim Hussain to complainant party was
also not proved. It is correct that as per my investigation accused
party never ever committed the occurrence with premeditation
however it is proved during my investigation that it was the
complainant party who came at the place of occurrence upon
their own and occurrence took place.
..
It is correct that there is nothing in Exh-PC about the quarrel of
complainant party and accused party prior to firing. It is correct
that there is nothing in statement of witnesses Riaz and Razzaq
under section 161, Cr.P.C. about the quarrel of complainant party
and accused party prior to firing. It is correct that I recorded the statement under section 161, Cr.P.C. of complainant and
witnesses and Exh-PC according to their version without any
addition, omission or deletion on my part. It is correct that
complainant did not give any supplementary statement about
the dispute between the parties before firing. It is correct that in
my whole investigation no one from locality appeared before me
and said about the dispute between the parties before firing.
(emphasis supplied)
If it is true that there was no dispute between the appellant and the
prosecution witnesses namely Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2) or the deceased prior to the incident then
the prosecution witnesses namely Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2) should have explained as to why they
proceeded to the house of Khadim Hussain (since acquitted), the co-
accused of the appellant on the day of the incident. More importantly,
Mst. Shomila neither appeared during the investigation of the case nor
was summoned by the learned trial court as a witness to determine the
fact as to whether Mst. Shomila was ever married to the deceased on
the day when the incident took place or whether the Mst. Shomila had
ever taken refuge in the house of Khadim Hussain( since acquitted) ,
the co-accused of the appellant on the day of the incident and whether
Mst. Shomila had been given a beating by the appellant . The failure to
produce Mst. Shomila as a witness has fatal consequences for the
prosecution's case and presently the same is not only highly doubtful
but also mired in uncertainties. The very inception of the prosecution
case is put in doubt due to the identified flaws of the prosecution case.
In this manner, both the eye-witnesses namely Muhammad Nawaz
(PW-1) and Muhammad Razzaq (PW-2) failed miserably to establish
the reason for their departure to the place of occurrence and their
subsequent presence at the place of occurrence, at the time of
occurrence.
17. Another fact which proves that there was no reason for the
prosecution witnesses namely Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2) to have proceeded to the place of incident
is that the appellant produced the certified copy of the judgment and
decree (Exh.DB and Exh.DB/1) passed in the suit as filed by Mst.
Shomila seeking dissolution of marriage as against Mumtaz (deceased)
and also produced the certified copy of the Nikahnama (Exh.DC) dated
08.06.2015 of Mst. Shomila, with himself and the said documents, were
never even challenged by the complainant or the witnesses. In this
manner, when Mst. Shomila had already been married to the appellant
since 08.06.2015 and was residing with him as his validly wedded wife,
then the story of the prosecution witnesses namely Muhammad Nawaz
(PW-1) and Muhammad Razzaq (PW-2) that they had gone to the place of occurrence to bring Mst. Shomila Bibi back, is absolutely false and
improbable. On 06.08.2015, the day of occurrence , Mumtaz (deceased)
as well as the prosecution witnesses namely Muhammad Nawaz (PW-
1) and Muhammad Razzaq (PW-2) had no relationship with Mst.
Shomila and therefore there existed no reason for Mumtaz (deceased)
as well as the prosecution witnesses namely Muhammad Nawaz (PW-
1) and Muhammad Razzaq (PW-2) to have proceeded to the place of
occurrence on the pretext of bringing Mst. Shomila Bibi back. These
facts also create an incurable and fatal flaw in the prosecution's case.
18. I have also noted that according to the prosecution witnesses
namely Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2),
the occurrence took place at about 08.00 p.m. on the night of
06.08.2015, however, admittedly, no source of light, which could have
enabled the witnesses to have rightly identified the accused and also
allowed the witnesses to have noted the individual roles of each and
every accused present at the place of occurrence, at the time of
occurrence, was produced by the witnesses during the investigation of
case or even before the learned trial court. The prosecution witnesses
namely Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2) , in
their statements recorded by the learned trial court, did not even
mention the presence of any source of light which could have enabled
them to correctly identify not only the accused but also the other
various facts of the incident. The failure of the prosecution witnesses
namely Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2)
even to mention any source of light in their statements recorded by
the learned trial court leads to only one conclusion, and that being
that no such source of light was available at the place of occurrence
which could have enabled the eye-witnesses to have identified the
assailants and also witness the individual roles of the assailants as
acted by them during the occurrence. According to the prosecution
evidence, the Investigating Officer of the case, visited the place of
occurrence after the occurrence, still, he did not observe or take into
possession any source of light which was allegedly available and lit at
the place of occurrence at the time of the occurrence. The scaled site
plan of the place of occurrence (Exh.CW-1/A) as prepared by Ijaz
Ahmad Kamboh Patwari (CW-1) and the rough site plan of the place of
occurrence (EXh.CW-3/A) as prepared by Nasir Mahmood, SI (CW-3),
also do not mention the presence of any source of light at the place of
occurrence. The prosecution witnesses failed to establish the fact of
such availability of a light source and in the absence of their ability to
do so, this Court cannot presume the existence of such a light source.
The absence of any light source has put the whole prosecution case in
the dark. It was admitted by the witnesses themselves that it was a
dark night and as the prosecution witnesses failed to prove the availability of any light source, their statements with regard to them
identifying the assailants, including the appellant, cannot be relied
upon. The failure of the prosecution witnesses to prove the presence
of any light source at the place of occurrence, at the time of
occurrence, has repercussions, entailing the failure of the
prosecution's case. The august Supreme Court of Pakistan in the case
of Imtiaz Hussain Shah alias Tajjay Shah and another v. The State and
others (2025 SCMR 1110) has held as under:
Had there been any source of light, the Investigating Officer would
have taken the same into possession or the alleged eye--
witnesses would have pointed out the same to him. Given this
context, identification of the accused is doubtful. This Court has
repeatedly held that in the absence of the source of light having
been mentioned in the FIR and recovery of such source, the
identification of the accused becomes questionable.
Reliance is placed on the case of Gulfam and another v. The State
(2017 SCMR 1189) wherein the august Supreme Court of Pakistan
observed as under:-
The occurrence in this case had taken place at about 11.45 p.m.
during the fateful night and the source of light at the spot had
never been established by the prosecution. It had been
presumed by the courts below that as the occurrence had taken
place at a medical store, therefore, some electric light must be
available at the spot. The courts below ought to have realized
that presumptions have very little scope in a criminal case
unless such presumption is allowed by the law to be raised
Reliance is also placed on the case of Hameed Gul v. Tahir and 2
others (2006 SCMR 1628) wherein the august Supreme Court of
Pakistan observed as under:-
Next is the identification of the accused on the spot. The torch in the
light of which the accused were identified, was produced before
the Investigating Officer sixteen days after the occurrence. The
one Haid Akbar who produced the same before he Investigating
Officer was never produced at the trial and hence there is no
satisfactory evidence that the torch produced in the given
circumstances was the same, available at the time of occurrence.
It was never found on the spot along with other recoveries
though there was no occasion for the injured and the deceased
to have carried it along.
Reliance is also placed on the case of Basar v. Zulfiqar Ali and others
(2010 SCMR 1972) wherein the august Supreme Court of Pakistan
observed as under: 7. It is also alleged by the prosecution that the witnesses had
identified the culprits on torch lights. The complainant and P.Ws.
did not produce the torches before the police immediately but
the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the
prosecution has failed to prove the case against the respondents
beyond any reasonable doubt.
Reliance is also placed on the case of Azhar Mehmood and others v.
The State (2017 SCMR 135) wherein the august Supreme Court of
Pakistan observed as under:-
It has straightaway been noticed by us that the occurrence in this
case had taken place after dark and in the FIR no source of light
at the spot had been mentioned by the complainant. Although in
the site-plan of the place of occurrence availability of an electric
bulb near the spot had been shown yet no such bulb had been
secured by the Investigating Officer during the investigation of
this case.
Reliance is also placed on the case of Arshad Khan v. The State (2017
SCMR 564) wherein the august Supreme Court of Pakistan observed as
under:-
The occurrence in this case had taken place before Fajar prayers at
about 05.00 a.m. and according to the FIR the occurrence in issue
had been witnessed by the eye-witness in the light of an electric
bulb but during the investigation no such electric bulb had been
secured by the investigating officer.
19. The learned Deputy Prosecutor General has also relied upon the
recovery of the Rifle .44-bore (P-4) from the appellant namely
Muhammad Zafar Iqbal and has submitted that the said recovery from
the appellant offered sufficient corroboration of the ocular account of
the occurrence as furnished by the prosecution witnesses namely
Muhammad Nawaz (PW-1) and Muhammad Razzaq (PW-2).The
recovery of the Rifle .44-bore (P-4) from the appellant namely
Muhammad Zafar Iqbal cannot be relied upon as the Investigating
Officer of the case did not join any witness of the locality during the
recovery of the Rifle .44-bore (P-4) from the appellant namely
Muhammad Zafar Iqbal, which action of his was in clear violation of
the provisions of the section 103 Code of Criminal Procedure, 1898 and
therefore the evidence of the recoveries cannot be used as
incriminating evidence against the appellant, being evidence which
was obtained through illegal means and hence hit by the exclusionary
rule of evidence. The provisions of section 103 Code of Criminal Procedure, 1898 , unfortunately, are honoured more in disuse than
compliance. To appreciate it better, this section is being reproduced:-
"103.--(1) Before making a search, under this chapter, the officer or
other person about to make it shall call upon two or more
respectable inhabitants of the locality in which the place to be
searched is situate to attend and witness the search and may
issue an order in writing to them or any of them so to do.
Therefore the evidence of the recovery of the Rifle .44-bore (P-4)
from the appellant namely Muhammad Zafar Iqbal cannot be used as
incriminating evidence against the appellant, being evidence which
was obtained through illegal means and hence hit by the exclusionary
rule of evidence. The august Supreme Court of Pakistan in the case of
Muhammad Ismail and others v. The State (2017 SCMR 898) at page 901
has held as under:-
For the above mentioned recovery of weapons the prosecution had
failed to associate any independent witness of the locality and,
thus, the mandatory provisions of section 103, Cr.P.C. had
flagrantly been violated in that regard.
In this manner, the recovery of the Rifle .44-bore (P-4) from the
appellant namely Muhammad Zafar Iqbal could not be proved and
cannot be considered as a relevant fact for proving any fact in issue.
Moreover, according to the report of Punjab Forensic Science Agency,
Lahore (Exh.PK), the empty shells of the bullets taken into possession
from the place of the incident, when compared with the Rifle .44-bore
(P-4) recovered from the appellant namely Muhammad Zafar Iqbal,
were found not to had been fired in the same. This fact also proves the
claim of the appellant with regard to his false involvement in the
incident.
20. The learned Deputy Prosecutor General has also relied upon the
evidence of motive and submitted that it corroborated the ocular
account. The motive behind the occurrence of this case, as stated by
the prosecution witnesses namely Muhammad Nawaz (PW-1) and
Muhammad Razzaq (PW-2) in their statements before the learned trial
court was that Mst. Shomila, the wife of Mumtaz (deceased) was
enticed away by the appellant, however, thereafter disputes arose
between the appellant and Mst. Shomila, whereafter the appellant left
Mst. Shomila, after beating her. A perusal of the record reveals that the
said Mst. Shomila, never even joined the investigation of the case and
moreover the prosecution witnesses namely Muhammad Nawaz (PW-
1) and Muhammad Razzaq (PW-2) made contradictory statements with
regard to the marital status of Mst. Shomila. The Investigating Officer
of the case did not collect any evidence with regard to the motive of the occurrence. The prosecution witnesses failed to provide evidence
enabling this Court to determine the truthfulness of the motive
alleged, and the fact that the said motive was so compelling that it
could have led the appellant, namely Muhammad Zafar Iqbal son of
Muhammad Sadiq to have committed the Qatl-i-Amd of the deceased.
There are haunting contradictions with regard to the minutiae of
motive alleged. No independent witness was produced by the
prosecution to prove the motive as alleged. Moreover, it is an admitted
rule of appreciation of evidence that motive is only a corroborative
piece of evidence and if the ocular account is found to be unreliable,
then motive alone cannot be made the basis of conviction. Even
otherwise, a tainted piece of evidence cannot corroborate another
tainted piece of evidence. The august Supreme Court of Pakistan has
held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as
under:
The said related and chance witnesses had failed to receive any
independent corroboration inasmuch as no independent proof
of the motive set up by the prosecution had been brought on the
record of the case.
21. The learned Deputy Prosecutor General and the learned counsel
for the complainant have also laid much stress upon the stance taken
by the appellant namely Muhammad Zafar Iqbal while questioning the
prosecution witnesses and making answers to the questions posed to
him during his examination under section 342 of the Code of Criminal
Procedure, 1898. Suffice it to observe that the onus to prove the facts
in issue never shifts and always lies on the prosecution. The law is
quite settled by now that if the prosecution fails to prove its case
against an accused person, then the accused person is to be acquitted,
even if he had taken a plea and had thereby admitted killing the
deceased which at least was not the plea of the appellant Muhammad
Zafar Iqbal in this case. Reliance is placed on the case of Azhar Iqbal v.
The State (2013 SCMR 383) wherein the august Supreme Court of
Pakistan has held as under:--
It had not been appreciated by the learned courts below that the law
is quite settled by now that if the prosecution fails to prove its
case against an accused person then the accused person is to be
acquitted even if he had taken a plea and had thereby admitted
killing the deceased. A reference in this respect may be made to
the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR
1139). The law is equally settled that the statement of an accused
person recorded under section 342, Cr.P.C. is to be accepted or
rejected in its entirety and where the prosecution's evidence is
found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be
excluded from consideration then the inculpatory part of the
accused person's statement may be read in support of the
evidence of the prosecution. This legal position stands amply
demonstrated in the cases of Sultan Khan v. Sher Khan and
others (PLD 1991 SC 520), Muhammad Tashfeen and others v.
The State and others (2006 SCMR 577) and Faqir Muhammad and
another v. The State (PLD 2011 SC 796). It is unfortunate that the
Lahore High Court, Lahore had failed to apply the said settled
law to the facts of the case in hand.
22. The only other piece of evidence left to be considered is the
medical evidence with regard to the injuries observed on the dead
body of the deceased by Dr. Ghazanfar Mahmood (CW-2) but the same
is of no assistance in this case as medical evidence by its nature and
character, cannot recognize a culprit in case of an unobserved
incident. As all the other pieces of evidence relied upon by the
prosecution in this case have been disbelieved and discarded by this
Court, therefore, the appellant s conviction cannot be upheld on the
basis of medical evidence alone. The august Supreme Court of Pakistan
in its binding judgment titled Hashim Qasim and another v. The State
(2017 SCMR 986) has enunciated the following principle of law:
The medical evidence is only confirmatory or of supporting nature
and is never held to be corroboratory evidence, to identify the
culprit.
The august Supreme Court of Pakistan in its binding judgment titled
Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) has
enunciated the following principle of law:
31. The prosecution has attempted to complete the chain of
circumstantial evidence by medical evidence relating to the post
mortem examinations of the deceased persons. This evidence
proves only the factum that death of the deceased persons was
caused by cutting their throats through some sharp edge
weapon; it does in no way indicate who had cut their throats
and with what particular weapon. Medical evidence is in the
nature of supporting, confirmatory or explanatory of the direct
or circumstantial evidence, and is not "corroborative evidence"
in the sense the term is used in legal parlance for a piece of
evidence that itself also has some probative force to connect the
accused person with the commission of offence. Medical
evidence by itself does not throw any light on the identity of the
offender. Such evidence may confirm the available substantive
evidence with regard to certain facts including seat of the injury,
nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death,
and presence of an injured witness or the injured accused at the
place of occurrence, but it does not connect the accused with the
commission of the offence. It cannot constitute corroboration for
proving involvement of the accused person in the commission of
offence, as it does not establish the identity of the accused
person.
32 Therefore, the medical evidence is of little help to the
prosecution for bringing home the guilt to the petitioners.
23. Considering all the above circumstances, this Court entertains
serious doubt regarding the involvement of the appellant namely
Muhammad Zafar Iqbal son of Muhammad Sadiq in the present case.
It is a settled principle of law that for giving the benefit of the doubt it
is not necessary that there should be so many circumstances rather if
only a single circumstance creating reasonable doubt in the mind of a
prudent person is available then such benefit is to be extended to an
accused not as a matter of concession but as of right. The august
Supreme Court of Pakistan in the case of Muhammad Mansha v. The
State (2018 SCMR 772) has enunciated the following principle:
Needless to mention that while giving the benefit of doubt to an
accused it is not necessary that there should be many
circumstances creating doubt. If there is a circumstance which
creates reasonable doubt in a prudent mind about the guilt of
the accused, then the accused would be entitled to the benefit of
such doubt, not as a matter of grace and concession, but as a
matter of right. It is based on the maxim, "it is better that ten
guilty persons be acquitted rather than one innocent person be
convicted". Reliance in this behalf can be made upon the cases of
Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2
others v. The State (2008 SCMR 1221), Muhammad Akram v. The
State (2009 SCMR 230) and Muhammad Zaman v. The State (2014
SCMR 749).
Reliance is also placed on the judgment of the august Supreme Court
of Pakistan Najaf Ali Shah v. The State (2021 SCMR 736) in which it has
been observed as infra:
9. Mere heinousness of the offence if not proved to the hilt is not a
ground to avail the majesty of the court to do complete justice.
This is an established principle of law and equity that it is better
that 100 guilty persons should let off but one innocent person
should not suffer. As the preeminent English jurist William
Blackstone wrote, "Better that ten guilty persons escape, than
that one innocent suffer." Benjamin Franklin, who was one of
the leading figures of early American history, went further
arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted
by the learned High Court are sufficient to cast a shadow of
doubt on the prosecution's case, which entitles the petitioner to
the right of benefit of the doubt. It is a well settled principle of
law that for the accused to be afforded this right of the benefit of
the doubt it is not necessary that there should be many
circumstances creating uncertainty and if there is only one
doubt, the benefit of the same must got to the petitioner. This
Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64)
while relying on the the earlier judgments of We have
categorically held that "if a single circumstance creates
reasonable doubt in a prudent mind about the apprehension of
guilt of an accused, then he/she shall be entitled to such benefit
not as a matter of grace and concession, but as of right.
Reference in this regard may be made to the cases of Tariq
Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The
State (PLD 2002 SC 1048)." The same view was reiterated in
Abdul Jabbar v. State (2010 SCMR 129) when this court observed
that once a single loophole is observed in a case presented by
the prosecution, such as conflict in the ocular account and
medical evidence or presence of eye-witnesses being doubtful,
the benefit of such loophole/lacuna in the prosecution's case
automatically goes in favour of an accused.
24. For what has been discussed above, the instant Criminal Appeal
No.671-J of 2019 lodged by the appellant namely Muhammad Zafar
Iqbal son of Muhammad Sadiq is allowed and the conviction and
sentence of the appellant awarded by the learned trial court through
the impugned judgment dated 31.10.2019 are hereby set-aside. The
appellant namely Muhammad Zafar Iqbal son of Muhammad Sadiq is
ordered to be acquitted by extending him the benefit of the doubt. The
appellant namely Muhammad Zafar Iqbal son of Muhammad Sadiq is
in custody and is directed to be released forthwith if not required in
any other case. The sentence of the appellant was suspended by this
Court vide order dated 17.12.2021 and he was released from custody,
however, the learned counsel for the appellant has reported that the
appellant now stands convicted in another case FIR No. 259 of 2024
registered at the police station City B-Division Chishtian District
Bahawalnagar vide judgment dated 12.06.2025, passed by the learned
Additional Sessions Judge , Chishtian and is confined in jail in lieu of
undergoing the sentence in the said case, therefore, the sureties of the
appellant in the instant case are discharged from the liabilities.
JK/M-7/L Appeal allowed.
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