2026 M L D 466

 2026 M L D 466

[Lahore]

Before Sardar Akbar Ali, J

AMEER HUSSAIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 246877 and Criminal Revision No. 244726 of 2018,

decided on 29th September, 2025.

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

----Ss. 302(b), 452, 427, 109, 148 & 149---Qatl-i-amd, house-trespass

after preparation for hurt, assault, or wrongful restraint, causing

damage or loss of fifty rupees or more through mischief, abetment,

rioting armed with deadly weapons, unlawful assembly---

Appreciation of evidence---Delay of 11-hours and 35-minutes in

conducting the postmortem examination on the dead body of the

deceased---Consequential---Accused was charged that he along with

his co-accused persons committed murder of the father of

complainant---Although as per contents of the FIR, the occurrence

took place on 18.12.2007 at 06:30 p.m. and was alleged to have been

seen by witnesses and the matter was reported to the police on the

same day at 08:00 p.m., however, postmortem examination on the

dead body of deceased was conducted on the next day i.e.

19.12.2007 at 06:05 a.m. i.e., with the delay of about 11 hours and 35

minutes---In the postmortem report of deceased, Medical Officer,

who conducted postmortem examination on the dead body, had

mentioned probable time between injuries and death as immediate

and between death and postmortem as within 12 hours---Thus,

there was a delay of 11 hours and 35 minutes in conducting autopsy

on the dead body of deceased---Complainant was son of the

deceased and eye-witness was paternal nephew of the complainant

and both the said witnesses of ocular account were the residents of

the same vicinity---In such a situation if the said witnesses were

present at the place of occurrence and also witnessed the scene of

occurrence then such an inordinate and unexplained delay would

never have occurred---So it was a case of delayed postmortem,

which casted serious doubt and the inference could be drawn that

the intervening period was consumed in fabricating the prosecution

story after the preliminary investigation, otherwise there was no

justification for sending the police papers on the next day---There

was no explanation at all available on record for what happened during the intervening period which delayed the postmortem

examination for about 11 hours and 35 minutes---Such noticeable

delay in post mortem examination of the dead body was generally

suggestive of a real possibility that time had been consumed by the

police in procuring and planting eye-witnesses before preparing

police papers necessary for the same---Appeal against conviction

was allowed, in circumstances.

Irshad Ahmed v. The State 2011 SCMR 1190; Muhammad Rafique

alias Feeqa v. The State 2019 SCMR 1068 and Iftikhar alias Kharoo v.

The State 2024 SCMR 1449 rel.

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

----Ss. 302(b), 452, 427, 109, 148 & 149---Qatl-i-amd, house-trespass

after preparation for hurt, assault, or wrongful restraint, causing

damage or loss of fifty rupees or more through mischief, abetment,

rioting armed with deadly weapons, unlawful assembly---

Appreciation of evidence---Motive not proved---Accused was

charged that he along with his co-accused persons committed

murder of the father of complainant---As per prosecution's own

case, on 18.12.2007 at about 04:00 p.m. when the son of complainant

was affixing election banners, acquitted co-accused forbade him,

upon which an altercation took place between them and thereafter

at 06:30 p.m. after about two hours and thirty minutes, the

occurrence took place---Altercation took place between the son of

the complainant and one of the co-accused but it was very

surprising as well as not understandable that instead of murdering

said son of complainant, the accused persons committed the qatl-e-

amd of father of complainant, aged about 70/75 years, the

grandfather of said son of complainant with whom no ill-will or any

enmity had been brought on the record by the prosecution, whereas

at the time of occurrence, complainant was also at the mercy of the

accused persons who did not cause him even a single scratch to

him---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 452, 427, 109, 148 & 149---Qatl-i-amd, house-trespass

after preparation for hurt, assault, or wrongful restraint, causing

damage or loss of fifty rupees or more through mischief, abetment,

rioting armed with deadly weapons, unlawful assembly---

Appreciation of evidence---Dishonest improvements made by

witnesses in their statements---Accused was charged that he along

with his co-accused persons committed murder of the father of

complainant---Entire case of the prosecution relied on the ocular

account furnished by complainant, who was son of the deceased and an eye-witness, who was paternal nephew of the complainant---

On 09.02.2011 examination-in-chief of complainant was recorded

but he could not be cross-examined as he was murdered---Other

eye-witness appeared in the witness box and admitted in his cross-

examination that he stated before the police that at 06:30 p.m. on

hearing hue and cry and firing he along with AR went inside Daira

of deceased and had seen that all the accused were already present

inside the Daira---Said witness further admitted that he stated

before police that appellant after breaking the door entered into the

room and made second fire which hit deceased who was already

present inside the Baithak---Said witness further admitted that he

had not tried to save himself when he saw assailants---He further

alleged that he was not apprehending any danger from accused

persons and that at the time of occurrence, the door of room was

not broken---Said witness admitted that he did not raise any hue

and cry when he saw the assailants---In such circumstances, it

appeared that their statements could safely be termed as dishonest

improvements---Appeal against conviction was allowed, in

circumstances.

(d) Criminal trial---

----Dishonest improvements made by witness---Scope---When a

witness improves his statement to strengthen the prosecution case

and the moment it is concluded that improvements were made

deliberately and with mala fide intention, the testimony of such

witness becomes unreliable.

Khalid Mehmood and another v. The State 2021 SCMR 810; Rafaqat

Ali v. The State 2022 SCMR 1107; Muhammad Akhtar v. The State 2025

SCMR 45 and Muhammad Nasir Butt and 2 others v. The State and

others 2025 SCMR 662 rel.

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

----Ss. 302(b), 452, 427, 109, 148 & 149---Qatl-i-amd, house-trespass

after preparation for hurt, assault, or wrongful restraint, causing

damage or loss of fifty rupees or more through mischief, abetment,

rioting armed with deadly weapons, unlawful assembly---

Appreciation of evidence---Presence of witnesses at the relevant

time doubtful---Accused was charged that he along with his co-

accused persons committed murder of the father of complainant---

Investigating Officer, in his cross-examination, admitted that he

had shown presence of eye-witness outside the gate in rough site

plan---Said witness further admitted that the place of occurrence

was a haveli and occurrence took place inside a room of that haveli

and when he visited the place of occurrence, the door of room was closed and he noticed that holes on the door occurred as a result of

firing---Said witness further deposed that deceased was inside the

room when firing was made and the assailants made firing from

outside the door of that room---Said witness further admitted that

from inspection of crime scene it appeared that firing hit deceased

while passing through the door of the room---Investigating Officer

did not find any broken door at the place of occurrence---Scaled site

plan showed that the occurrence took place in the room whereas

the accused were shown to be present in the veranda and eye-

witness allegedly witnessed the occurrence on the other corner of

the Dera which was at a distance of ninety feet---Thus, it was not

believable that eye-witness who was standing at a distance of

ninety feet outside the main gate of the Dera coupled with the fact

that it was night time, how he witnessed the occurrence inside the

room and even with detailed description of the accused with their

specific names and roles---From the statements of both the said

witnesses, the presence of both the said witnesses at the place of

occurrence on the date and relevant time was doubtful in nature

because they did not receive even a scratch during the incident---

Said witnesses did not make an abortive attempt to save the

deceased from the clutches of appellant and his co- accused---

Moreover, both the said witnesses had utterly failed to bring

anything on the record establishing their claimed presence with the

deceased at the relevant time at the place of occurrence---Eye-

witness stated that he lifted the deceased from place of occurrence

and put him in a mini jeep---At that time, his clothes became stained

with blood and he produced those clothes before the Investigating

Officer---Admittedly, neither any blood was collected from the jeep

nor blood stained clothes of that witness were taken into possession

by the Investigating Officer and no explanation in that behalf had

been advanced by the prosecution---Stance of this witness was not

only improbable, but also got no support from the record, thus, the

prosecution had failed to prove the presence of the eye-witness at

the time and place of the occurrence---Appeal against conviction

was allowed, in circumstances.

Khalid Mehmood and others v. The State 2011 SCMR 664; Sajjad

Hussain v. The State and others 2022 SCMR 1540 and Zafar Ali Abbasi

and another v. Zafar Ali Abbasi and others 2024 SCMR 1773 rel.

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

----Ss. 302(b), 452, 427, 109, 148 & 149---Qatl-i-amd, house-trespass

after preparation for hurt, assault, or wrongful restraint, causing

damage or loss of fifty rupees or more through mischief, abetment,

rioting armed with deadly weapons, unlawful assembly Appreciation of evidence---Night time occurrence---Source of light

doubtful---Accused was charged that he along with his co-accused

persons committed murder of the father of complainant---

Prosecution had introduced the source of light as bulb---Draftsman

had shown a bulb at a specific point in scaled site plan but at the

same time, the electric bulb was not taken into possession by the

Investigating Officer---In such a background, the very identity of the

assailants remained fishy---Furthermore, it was also observed that

the appellant was found innocent during three successive

investigations---Appeal against conviction was allowed, in

circumstances.

Haroon Shafique v. The State and others 2018 SCMR 2118 and Sardar

Bibi and others v. Munir Ahmed and others 2017 SCMR 344 rel.

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

----Ss. 302(b), 452, 427, 109, 148 & 149---Qatl-i-amd, house-trespass

after preparation for hurt, assault, or wrongful restraint, causing

damage or loss of fifty rupees or more through mischief, abetment,

rioting armed with deadly weapons, unlawful assembly---

Appreciation of evidence---Co-accused acquitted on same set of

evidence---Accused was charged that he along with his co-accused

persons committed murder of the father of complainant---Record

showed that on the basis of same set of evidence, ten co-accused

persons stood acquitted vide the same judgment---One of the co-

accused was charged for abetting his co-accused for commission of

murder of deceased and he was acquitted of the charge levelled

against him by extending him benefit of doubt---Said ten co-accused

were also charged under S.427, P.P.C, for causing damage to the car

owned by the complainant and they were acquitted of the charge

under S.427, P.P.C as the prosecution badly failed to prove the said

charge against them because the prosecution evidence in that

regard was full of doubts and contradictions---Furthermore, the

prosecution also badly failed to prove the presence of said ten co-

accused at the spot at the relevant time and their taking part in the

occurrence through confidence inspiring evidence---Appeal against

conviction was allowed, in circumstances.

Pervaiz Khan and another v. The State 2022 SCMR 393 and

Muhammad Iqbal v. The State and another 2024 SCMR 1133 rel.

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

----Ss. 302(b), 452, 427, 109, 148 & 149---Qatl-i-amd, house-trespass

after preparation for hurt, assault, or wrongful restraint, causing

damage or loss of fifty rupees or more through mischief, abetment,

rioting armed with deadly weapons, unlawful assembly Appreciation of evidence---Medical evidence---Inconsequential

when ocular account doubtful---Accused was charged that he along

with his co-accused persons committed murder of the father of

complainant---Medical Officer, who conducted autopsy on the dead

body of deceased, observed many injuries on his dead body---Said

injuries were not in line with the specific roles attributed to the

appellant---Medical evidence was only asupporting piece of

evidence and relevant only if the ocular account inspired

confidence which was not the situation in the case and the murder

in issue had remained un-witnessed---Thus, the medical evidence

could not point an accusing finger towards the appellant implicated

in this case---Appeal against conviction was allowed, in

circumstances.

Muhammad Saleem v. Shabbir Ahmad and others 2016 SCMR 1605

rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance

which created doubt regarding the prosecution case, the same

would be sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230; Abdul Samad v. The

State 2025 SCMR 639 and Muhammad Aslam v. The State 2025 SCMR

1240 rel.

Burhan Moazzam Malik, Mian Tabassum Ali, Khakan Moazzam

Ali and Kamran Rasool Malik along with Appellant on bail.

Abdul Rauf Wattoo, Deputy Prosecutor General for the State.

Abdul Razzaq Younas, Mehram Ali Bali and Faisal Munir Malik

for the Complainant.

Date of hearing: 29th September, 2025.

JUDGMENT

SARDAR AKBAR ALI, J.---Ameer Hussain, appellant along with his

co-accused Faqeer Hussain, Khizar Hussain, Irfan, Dastgeer alias

Bhola, Anees, Muhammad Tanvir alias Chhami, Saif Ullah, Sarwar,

Ahsan, Razaq Ali Imran and Muhammad Nawaz faced trial in a private

complaint titled Muhammad Nawaz Khan alias Tariq v. Ameer Hussain

and others under sections 302/109/ 452/ 427/ 148/ 149, P.P.C emanated

from case FIR No.1299/ 2007 dated 18.12.2007 under sections 302/ 109/

452/ 427/ 148/ 149, P.P.C registered at Police Station Factory Area,

District Sheikhupura for committing Qatl-e-Amd of Haji Asad Ullah

Khan. Vide judgment dated 29.09.2018 passed by the learned trial Court, the appellant (Ameer Hussain) has been convicted and

sentenced as under:

Convicted under Section 302(b), P.P.C and sentenced to

imprisonment for life as Ta zir for committing Qatl-e-Amd of

Asad Ullah Khan (deceased) with a further direction to pay

Rs.300,000/- (rupees three lakh) as compensation under Section

544-A, Cr.P.C. to the legal heirs of the deceased which was

ordered to be recovered as arrears of land revenue and in

further default whereof to further undergo simple

imprisonment for six months.

Convicted under section 452, P.P.C and sentenced to 7 years S.I. with

fine of Rs.50,000/- and in default whereof to further undergo

simple imprisonment for one month.

Both the sentences were ordered to run concurrently with benefit of

section 382-B, Cr.P.C.

Through the same judgment, Faqeer Hussain, Khizar Hussain, Irfan,

Dastgeer alias Bhola, Anees, Muhammad Tanvir alias Chhami, Saif

Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz, co-

accused of the appellant were acquitted of the charges by extending

them benefit of doubt. However, Ahsan and Imran were declared as

proclaimed offenders.

2. Aggrieved by his conviction and sentence, Ameer Hussain

(appellant) filed Criminal Appeal No.246877 of 2018 whereas

complainant Khalid Mahmood Khan filed Crl. Revision No.244726 of

2018 for enhancement of sentence awarded to the appellant/

respondent. Since both the matters have arisen out of the same

judgment, therefore, are being decided together through this single

judgment.

3. The facts of the case, as enumerated in paragraph No.2 of the

impugned judgment of the learned trial Court, are that:-

Brief facts as narrated in complaint Ex.PB are that on 18.12.2007, at

about 06.30 p.m. complainant along with his father Haji Asad

Ullah Khan were sitting in a room of their Daira situated in

village Messon, P.S. Factory Area, District Sheikhupura, when

accused Ameer Hussain and Imran Mubarak armed with

Kalashinkovs, Faqeer Hussain, Irfan and Anees armed with Guns

.12-bore, Khizar Hussain and Dastgeer alias Bholla armed with

Rifles .44-bore, Tanvir alias Chhimmi, Saif Ullah, Sarwar, Arsalan

Mubarak and Mustafa alias Phani while armed with Sotas, Ehsan

Mubarak armed with pistol and Razzaq Ali Imran entered the

Daira through main gate. Accused Ehsan Mubarak raised Lalkara that they be taught a lesson for displaying banners and

they be done to death. Ameer Hussain made a burst fire with his

Kalashinkov which hit the door of room as a result of which,

door was broken. Ameer Hussain made second burst with his

Kalanshinkov which hit Haji Asad Ullah, who fell down on the

ground. Thereafter, Imran Mubarak accused made a burst with

his Kalashinkov which hit Haji Asad Ullah. The other accused

persons indulged in reckless firing. A car bearing Registration

No.LEF/1682 was parked inside the Daira and accused persons

who were armed with Dandas broke the glasses and lights of the

said car with their Dandas. Malik Kaleem Ullah and Abdul

Rasheed who were standing outside Daira witnessed the

occurrence in the lights of bulbs. Accused fled away while

raising lalkars. Injured was shifted to Hospital where he

succumbed to the injuries. This occurrence was committed on

the abetment of Muhammad Nawaz. Motive of occurrence was

placement of election banners.

4. During course of three consecutive investigations, the appellant

was found innocent. Being dissatisfied by the police investigation, the

complainant filed private complaint titled Muhammad Nawaz Khan

alias Tariq v: Ameer Hussain, etc . The learned trial court after

recording cursory evidence summoned all the accused to face trial.

When charge sheeted, the accused/appellant pleaded not guilty and

claimed to be tried, whereupon, the prosecution examined nine PWs

and one CW. After recording the cursory statements of the

complainant as well as his witnesses, the appellant and his co-accused

were summoned to face trial. On closure of prosecution case, the

appellant was examined under section 342, Cr.P.C. who refuted the

prosecution evidence. However, he opted to appear in the witness box

as required by section 340(2), Cr.P.C. and also to produce evidence in

his defence and the trial ended in the terms as detailed in opening

paragraph of this judgment.

5. I have heard arguments of learned counsel for the parties as well

as the learned Law Officer for the State at a considerable length and

have also gone through the record very minutely.

6. Although as per contents of the FIR, the occurrence took place on

18.12.2007 at 06:30 p.m. and was alleged to have been seen by

witnesses namely Muhammad Nawaz Khan, complainant (PW-01) and

Malik Kaleem Ullah (PW-02) and the matter was reported to the police

on the same day at 08:00 p.m., but postmortem examination on the

dead body of Asad Ullah Khan, deceased was conducted on the next

day i.e. 19.12.2007 at 06:05 a.m. i.e., with the delay of about 11 hours

and 35 minutes. In the postmortem report (Exh.PM) of Asad Ullah Khan) Dr. Sohail Abid (PW-09) who conducted postmortem

examination on the dead body had mentioned probable time between

injuries and death was immediate and between death and postmortem

was within 12 hours. Thus, there was a delay of 11 hours and 35

minutes in conducting autopsy on the dead body of Asad Ullah Khan

(deceased). Keeping in mind that Muhammad Nawaz Khan,

complainant (PW-01) was son of the deceased and Malik Kaleem Ullah

(PW-02) was paternal nephew of the complainant and also the fact that

both these witnesses of ocular account were the residents of the same

vicinity, 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 would never have occurred. So it

was also a case of delayed postmortem, which casts serious doubt and

the inference can be drawn that the intervening period was consumed

in fabricating the prosecution story after the preliminary

investigation, otherwise there was no justification for sending the

police papers on the next day and what happened during the

intervening period which delayed the postmortem examination for

about 11 hours and 35 minutes. There is no explanation at all available

on record for such delay. Such noticeable delay in post mortem

examination of the dead body is generally suggestive of a real

possibility that time had been consumed by the police in procuring

and planting eye-witnesses before preparing police papers necessary

for the same. I may refer here the case of Irshad Ahmed v. The State

(2011 SCMR 1190), wherein the Hon ble Supreme Court of Pakistan has

observed as under:-

We have further observed that the post-mortem examination of the

deadbody of Shehzad Ahmed deceased had been conducted with

a noticeable delay and such delay is generally suggestive of a

real possibility that time had been consumed by the police in

procuring and planting eye-witnesses and in cooking up a story

for the prosecution before preparing police papers necessary for

getting a post-mortem examination of the dead body conducted.

Similar view was also reiterated by the Hon'ble Supreme Court of

Pakistan in cases titled as Muhammad Rafique alias Feeqa v. The State

(2019 SCMR 1068) and Iftikhar alias Kharoo v. The State (2024 SCMR

1449).

7. As per prosecution s own case, on 18.12.2007 at about 04:00 p.m.

when Qamar Nawaz, the son of Muhammad Nawaz Khan, complainant

(PW-01) was affixing election banners, Muhammad Anees (since

acquitted co-accused) forbid him, upon which an altercation took

place between them and thereafter at 06:30 p.m. after about two hours

and thirty minutes, the occurrence took place. As stated above that an altercation took place between Qamar Nawaz, the son of the

complainant and Muhammad Anees, one of the co-accused since

acquitted but it is very surprising as well as not understandable that

instead of murdering said Qamar Nawaz, the accused persons

committed the Qatl-e-Amd of Asad Ullah Khan, aged about 70/ 75

years, the grandfather of said Qamar Nawaz with whom no ill-will or

any enmity has been brought on the record by the prosecution,

whereas at the time of occurrence Muhammad Nawaz Khan,

complainant (PW-01) was also at the mercy of the accused persons

who did not cause him even a single scratch to him.

8. The entire case of the prosecution relies on the ocular account

furnished by Muhammad Nawaz Khan, complainant (PW-01) who was

son of the deceased and Malik Kaleem Ullah (PW-02) was paternal

nephew of the complainant. On 09.02.2011 examination-in-chief of

Muhammad Nawaz Khan, complainant was recorded as (PW-01) but

he could not be cross-examined as he was murdered. Malik Kaleem

Ullah, the other eye-witness appeared in the witness box as (PW-02).

He was when confronted with (Exh.DA), he deposed as under:

I stated before the police that car bearing Registration No.LEF-1682

was parked inside the Daira. Confronted with Ex.DA where it is

not recorded. I stated before police that this occurrence was

witnessed by me Abdul Rasheed and Haji Nawaz in the light of

electric bulbs. Confronted with Ex.DA where it is not recorded I

stated before the police that Ameer Hussain made burst with his

Kalashnikov which hit the door of Baithak, as a result of which

the door was broken. Confronted with Ex.DA where it is

recorded, that Ameer Hussain has made fire with Kalashnikov

on the door of Baithak and entered the room after breaking the

door. I stated before the police that Ameer Hussain made second

burst with his Kalashnikov which hit Haji Asad Ullah and he fell

on the ground Confronted with Ex.DA where second burst has

not been mentioned. I have stated before the police that

deceased Haji Asad Ullah was present inside the Baithak.

Confronted with Ex.DA where it is not so recorded.

He further admitted in his cross-examination that he stated before

the police that today at 06:30 p.m. on hearing hue and cry and firing he

along with Abdul Rasheed went inside daira of Asad Ullah Khan and

saw that all the accused were already present inside the daira. He

further admitted that he stated before police that Ameer Hussain

appellant after breaking the door entered into the room and made

second fire which hit Asad Ullah Khan, deceased who was already

present inside the Baithak. He further admitted that he had not tried

to save himself when he saw assailants. Volunteer that he was not apprehending any danger from them and that at the time of

occurrence, the door of room was not broken. He further admitted that

he did not raise any hue and cry when he saw the assailants. In view

of the above statements of the eye-witnesses, it appears that their

statements can safely be termed as dishonest improvements.

9. There is no cavil to the proposition that when a witness improves

his statement to strengthen the prosecution case and the moment it is

concluded that improvements were made deliberately and with mala

fide intention, the testimony of such witness become unreliable. The

Supreme Court of Pakistan has observed in a plethora of judgments

that the witnesses who make dishonest improvements in their

statements on material aspects of the case in order to fill the lacunas

of the prosecution case or to bring their statements in line with other

prosecution evidence are not worthy of reliance. Reference in this

respect may be placed on the judgments reported as Khalid Mehmood

and another v. The State (2021 SCMR 810) and Rafaqat Ali v. The State

(2022 SCMR 1107), Muhammad Akhtar v. The State (2025 SCMR 45) and

Muhammad Nasir Butt and 2 others v. The State and others (2025

SCMR 662).

10. Ch. Zia-ud-Din Chishti, Draftsman who appeared as (PW-08)

stated in the cross-examination that he had shown the presence of

accused in the Baithak situated in the veranda and marks of fires were

present on the walls of Baithak.

11. Ghulam Shabbir, Inspector (CW-01) in his cross-examination

admitted that he had shown presence of Malik Kaleem Ullah (PW02)

outside the gate in rough site plan. He further admitted that the place

of occurrence was a haveli and occurrence took place inside a room of

that haveli and when he visited the place of occurrence, the door of

room was closed and he noticed holes on the door occurred as a result

of firing. He further deposed that Asad Ullah Khan deceased was

inside the room when firing was made and the assailants made firing

from outside the door of that room. He further admitted that from

inspection of crime scene it appeared that firing hit deceased while

passing through the door of the room. It is also noticed that the

Investigating Officer did not find any broken door at the place of

occurrence. Scaled Site Plan (Exh.PG) shows that the occurrence took

place in the room whereas the accused were shown to be present in

the veranda and Malik Kaleem Ullah (PW-02) allegedly witnessed the

occurrence on the other corner of the dera which was at a distance of

ninety feet.

12. It is not believable that Malik Kaleem Ullah (PW-02) who was

standing at a distance of ninety feet outside the main gate of the dera

coupled with the fact that it was night time, how he witnessed the occurrence inside the room and even with detailed description of the

accused with their specific names and roles.

13. From the above statements of both the PWs, I have come to the

conclusion that the presence of both these PWs at the place of

occurrence on the date and relevant time is doubtful in nature

because they did not receive even a scratch during the incident. They

did not make an abortive attempt to save the deceased from the

clutches of appellant and his co-accused. Moreover, both the above

said PWs have utterly failed to bring anything on the record

establishing their claimed presence with the deceased at the relevant

time at the place of occurrence.

14. So far as the source of light in this case is concerned, the

prosecution has introduced the source of light as bulb. Ch. Zia-ud-Din

Chishti, Draftsman who appeared as (PW-08) has shown a bulb at

point-G in scaled Site Plan (Exh.PG) but at the same time, I have

noticed that the electric bulb was not taken into possession by the

Investigating Officer. In such a background, the very identity of the

assailants remains fishy. Reliance is placed on the cases reported as

Haroon Shafique v. The State and others (2018 SCMR 2118). The

Supreme Court of Pakistan in the case Sardar Bibi and others v. Munir

Ahmed and others (2017 SCMR 344) has held as under:-

. The source of light i.e. bulbs etc. was not taken into possession

during investigation to establish that the witnesses who were

allegedly at the distance of more than 100 feet could identify the

assailants. So the identification of the assailants was also

doubtful.

15. Furthermore, it is also observed that the appellant was found

innocent during three successive investigations. Reliance in this

regard is placed upon the cases reported as Khalid Mehmood and

others v. The State (2011 SCMR 664) and Sajjad Hussain v. The State

and others (2022 SCMR 1540).

16. Malik Kaleem Ullah (PW-02) in his cross-examination admitted

that:

I lifted the deceased from place of occurrence and put him in a mini

Pajero Jeep. At that time, my clothes became stained with blood.

I produced those clothes before the I.O.

Admittedly, neither any blood was collected from the jeep nor blood

stained clothes of this PW were taken into possession by the I.O and no

explanation in this behalf had been advanced by the prosecution. The

stance of this PW was not only improbable, but also got no support

from the record, thus, the prosecution has failed to prove the presence of the eye-witness at the time and place of the occurrence. Reliance in

this behalf may be placed upon case titled Zafar Ali Abbasi and

another v. Zafar Ali Abbasi and others (2024 SCMR 1773).

17. The disturbing part of the ocular account is that on the basis of

the same set of evidence Faqeer Hussain, Khizar Hussain, Irfan,

Dastgir alias Bhola, Anees, Muhammad Tanvir alias Chhami, Saif

Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz, co-

accused stood acquitted vide the same judgment. Muhammad Nawaz,

co-accused was charged for abetting his co-accused for commission of

murder of Asad Ullah, deceased and he was acquitted of the charge

levelled against him by extending him benefit of doubt. Faqeer

Hussain, Khizar Hussain, Irfan, Dastgir alias Bhola, Anees,

Muhammad Tanvir alias Chhami, Saif Ullah, Sarwar, Ahsan, Razaq Ali

Imran and Muhammad Nawaz, co-accused were also charged under

section 427, Cr.P.C. for causing damage to the car owned by the

complainant and they were acquitted of the charge under section

427, Cr.P.C. as the prosecution badly failed to prove the said charge

against them because the prosecution evidence in this regard was full

of doubts and contradictions. Furthermore, the prosecution also

badly failed to prove the presence of Faqeer Hussain, Khizar Hussain,

Irfan, Dastgir alias Bhola, Anees, Muhammad Tanvir alias Chhami,

Saif Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz,

co-accused at the spot at the relevant time and their taking part in the

occurrence through confidence inspiring evidence. Reliance in this

regard is placed on the cases reported as Pervaiz Khan and another v.

The State (2022 SCMR 393) and Muhammad Iqbal v. The State and

another (2024 SCMR 1133).

18. So far as medical evidence is concerned, Dr. Sohail Abid (PW-09)

who conducted autopsy on the dead body of Asad Ullah Khan,

observed following injuries on his dead body:

INJURIES:

Injury No.1:0.8. x 0.8 cm penetrating wound on the back of right

lower chest, 2-cm lateral to midline, 30-cm below the right

scapular margin.

Injury No.2. 2 x 1.5 cm lacerated wound on front of left chest, 2-cm

lateral to left nipple.

Bullet piercing the skin, soft tissues, muscles, rupturing the

mediastinum, rupturing the lower part of heart, left pleura, lung

and crossing through and through and exited out through injury

No.2. Fracture of posterior 11th and 12th ribs and anterior 4th

and 5th left ribs were noted. Injury No.3:1.5 x 1 cm punctured wound on the medial part of upper

thigh.

Injury No.4: 6 x 1.5 cm lacerated wound on the front of left upper

thigh.

Injury No.3 was an entry wound while injury No.4 was exist wound.

Track was in the muscular part, no bone damage occurred.

Injury No.5: 0.8 x 0.8 cm punctured wound (entry wound) on medial

part of left lower thigh.

Injury No.6:2 x 2 cm lacerated wound on the lateral part of left

upper thigh. (Exit wound).

Fracture of shaft of left femur bone. Tattooing found on front of left

thigh.

Injury No.7: 4 x 1.5 cm grazing wound on front of left middle thigh.

(Skin deep only).

The aforesaid injuries are not in line with the specific roles

attributed to the appellant. Suffice it to observe that medical evidence

is only a supporting piece of evidence and relevant only if the ocular

account inspires confidence which is not the situation in this case

and the murder in issue had remained un-witnessed and thus, the

medical evidence could not point an accusing finger towards the

appellant implicated in this case. Reliance is placed on case law titled

as Muhammad Saleem v. Shabbir Ahmad and others (2016 SCMR

1605).

19. As regards recovery of crime weapon from the appellant is

concerned, during investigation nothing was recovered from his

possession, therefore, recovery in this case is of no avail to the

prosecution.

20. The motive in this case was a dispute over affixing of election

banner by the complainant s son but as regards the motive, the

prosecution has not produced any evidence to prove the same.

21. As far as the defence plea taken by the appellant in his statement

under Section 342, Code of Criminal Procedure is concerned, since the

prosecution evidence is doubtful in nature, therefore, there is no need

to discuss the same which is exculpatory in nature.

22. I have considered all the pros and cons of this case and have

come to this irresistible conclusion that the prosecution could not

prove its case against the appellant beyond any shadow of doubt. It

is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its

own legs and it cannot take any benefit from the weaknesses of the

case of the defence. In the instant case, the prosecution remained

failed to discharge its responsibility of proving the case against the

appellant. It is also well established that if there is a single

circumstance which creates doubt regarding the prosecution case,

the same is sufficient to give benefit of doubt to the accused, whereas,

the instant case is replete with number of circumstances which have

created serious doubt about the prosecution story. Reliance may be

placed on the case law reported as Muhammad Akram v. The State

(2009 SCMR 230), Abdul Samad v. State (2025 SCMR 639) and

Muhammad Aslam v. The State (2025 SCMR 1240).

23. For the foregoing reasons, Criminal Appeal No.246877 of 2018

filed by Ameer Hussain (appellant) is allowed, conviction and sentence

awarded to the appellant vide judgment dated 29.09.2018 passed by

the learned trial court are set aside and he is acquitted of the charges

levelled against him while extending him benefit of doubt. Appellant

Ameer Hussain is present on bail. His surety is discharged from the

liability owned by him.

24. So far as Crl. Revision No.244726 of 2018 is concerned, the same

is hereby dismissed being devoid of any merit.

JK/A-88/L Appeal allowed.