3/11/25, 12:31 AM 2024 Y L R 841

2024 Y L R 841
[Lahore (Multan Bench)]
Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ
MUHAMMAD SHARIF and another---Appellants
Versus
The STATE and others---Respondents
Criminal Appeals Nos. 282, 580 and Murder Reference No. 45 of 2018, heard on
24th October, 2022.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---Unnatural behavior of accused---Accused were charged for
committing murder of the brother of the complainant by firing and also causing
firearm injury to the owner of the sound system---Motive behind the occurrence
was that the complainant went to forbid the accused persons from aerial firing---
Prosecution case revolved around the statements of complainant/ brother and
paternal uncle of the deceased---Eye-witness stated that only complainant went to
forbid the accused persons from aerial firing---In said circumstances, the
complainant should have also been the target of the assailants---Furthermore,
according to the eye-witnesses, the complainant was in clear view, at a meager
distance, from the assailants and unarmed whereas the accused, as many as six in
total, were allegedly armed with various firearm weapons---Neither there was any
dearth of ammunition nor that of intent and opportunity on the part of the accused
or his co-accused for coming away with the complainant, who at the time of
occurrence, was allegedly present at the place of occurrence and there did not exist
any obstacle in the line of the sight of the accused and the place where the
complainant was present---In such scenario, it was hard to believe that the
complainant would have been shown the courtesy of not being harmed at all when
he should have also been the target of the assailants---In the midst of firing by so
many accused persons, the complainant did not receive even a single scratch on his
body during the whole occurrence---If the complainant had been present in the
view of the assailants, then he would not have been spared---Blessing the
complainant, with such an incredible consideration and showing them such favour,
the persons with whom the assailants had a direct dispute with, was implausible and
opposed to natural behaviour of any accused---Circumstances established that the
prosecution failed to prove its case against the accused beyond shadow of doubt---
Appeal was allowed accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---Unnatural conduct of witnesses---Accused were charged for

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 1/30
3/11/25, 12:31 AM 2024 Y L R 841

committing murder of the brother of the complainant by firing and also causing
firearm injury to the owner of the sound system---Complainant stated that when
firing was made, they laid down on the ground, however the accused persons did
not come near them and did not make firing on them---If the prosecution witnesses
were laying and cowering on the ground to save themselves from the bullets being
fired, then how they were able to observe the firing made by each of the assailants
and the consequential hitting of the deceased by one of the bullets---When
according to the prosecution witnesses they were ducking and recoiling to save
their lives during the occurrence, then there did not exist any possibility that they
would have been able to witness and observe the maker of the fatal shot at the
deceased---Hence, the prosecution witnesses did not witness the occurrence---
Circumstances established that the prosecution failed to prove its case against the
accused beyond shadow of doubt---Appeal was allowed accordingly.
Tariq Mehmood v. The State and others 2019 SCMR 1170; Rohtas Khan v. The
State 2010 SCMR 566; Muhammad Farooq and another v. The State 2006 SCMR
1707 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596
rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---Night time occurrence---Source of light not established---
Accused were charged for committing murder of the brother of the complainant by
firing and also causing firearm injury to the owner of the sound system---According
to the prosecution witnesses, the occurrence took place at about 11.00 p.m. on a
cold winter night on 07.12.2013---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 Trial Court---
Prosecution witnesses claimed that they had witnessed the occurrence in the light
of the electric bulbs which were lit at the place of occurrence---However, the said
electric bulbs, which were allegedly lit at the place of occurrence and in the light of
which the prosecution witnesses allegedly had witnessed the occurrence, were
neither produced by the prosecution witnesses to the Investigating Officer of the
case nor the Investigating Officer of the case, during his visit to the place of
occurrence, took into possession any such electric bulbs---Non-production of the
electric bulbs which were allegedly lit at the place of occurrence, at the time of
occurrence was all the more a matter of disquiet for the reason that according to the
prosecution witnesses the assailants were standing at a distance of as much as 18
karams from where the electric bulbs were allegedly lit---In that manner, according
to the prosecution witnesses, the assailants were standing at a place 18 karams
away from the stage and the availability and range of the electric bulbs lit at the
place of the occurrence to have an effect at such a large distance was also not
proved---In the 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 the Investigating
Officer of the case, the presence of any light source lit at the place of occurrence

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 2/30
3/11/25, 12:31 AM 2024 Y L R 841

had not been marked---Prosecution witnesses failed to establish the fact of such
availability of light source and in absence of their ability to do so, the existence of
such a light source could not be presumed---Absence of any light source had put
the whole prosecution case in doubt---Circumstances established that the
prosecution failed to prove its case against the accused beyond shadow of doubt---
Appeal was allowed accordingly.
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.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---
Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons,
unlawful assembly---Appreciation of evidence---Benefit of doubt---Non-production
of material witnesses---Effect---Accused were charged for committing murder of
the brother of the complainant by firing and also causing firearm injury to the
owner of the sound system---Both the prosecution witnesses admitted the presence
of other witnesses, who had arrived at the place of occurrence to attend the
marriage function---However, none of the said witnesses appeared before the Trial
Court in support of the prosecution case---Due to failure of the prosecution to
produce the said persons who had witnessed the occurrence, it could be presumed
that had they been produced before the Trial Court, they would not have supported
the prosecution case---Even the person whose marriage was being celebrated at the
time of occurrence, was not produced before the Trial Court and was given up as an
unnecessary witness---Similarly, the person who was injured during the occurrence
also did not appear before the Trial Court in support of the prosecution case against
the accused---Article 129(g) of the Qanun-e-Shahadat, 1984 provided that if any
evidence available with the parties was not produced then it would be presumed
that had that evidence been produced the same would have gone against the party
producing the same---Circumstances established that the prosecution failed to
prove its case against the accused beyond shadow of doubt---Appeal was allowed
accordingly.
Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---Presence of eye-witnesses at the spot not proved---Accused were
charged for committing murder of the brother of the complainant by firing and also
causing firearm injury to the owner of the sound system---Record showed that the
names of both the eye-witnesses were neither mentioned in column No.4 nor at
page 4 of the inquest report prepared with regard to deceased as being the witnesses
who were present near the dead body at the time of preparation of the inquest
report---Said fact also evidenced the absence of the eye-witnesses at the place of
occurrence, at the time of occurrence---More grave was the fact that admittedly in

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 3/30
3/11/25, 12:31 AM 2024 Y L R 841

the inquest report the role of the accused that it was his fire that had hit the
deceased was not mentioned---Eye-witnesses, though claimed that after the
occurrence deceased was taken to the hospital by the Emergency Service, Rescue
1122, however, neither during the investigation nor during the course of the trial,
any proof was brought on record to support the said claim of the prosecution
witnesses---Circumstances established that the prosecution failed to prove its case
against the accused beyond shadow of doubt---Appeal was allowed accordingly.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---FIR lodged after due deliberation---Accused were charged for
committing murder of the brother of the complainant by firing and also causing
firearm injury to the owner of the sound system---According to the Investigating
Officer of the case, the time of getting the information of the occurrence by the
police was mentioned as 11.00 p.m. on 07.12.2013 in the inquest report, whereas
the oral statement of complainant was recorded by Investigating Officer at Grid
Chowk at 01.10 a.m. on 08.12.2013---Furthermore, the oral statement of complainant
was recorded by Investigating Officer at Grid Chowk while he was on his way to
the Police Station---FIRs which were not recorded at the police station suffered
from the inherent presumption that the same were recorded after due deliberation---
Circumstances established that the prosecution failed to prove its case against the
accused beyond shadow of doubt---Appeal was allowed accordingly.
Arshad Khan v. The State 2017 SCMR 564; Mst. Rukhsana Begum and others v.
Sajjad and others 2017 SCMR 596; Muhammad Asif v. The State 2008 SCMR 1001
and Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel.
(g) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---Delay of twelve hours and forty five minutes in conducting
postmortem---Consequential---Accused were charged for committing murder of the
brother of the complainant by firing and also causing firearm injury to the owner of
the sound system---Occurrence took place at about 11.00 p.m. on 07.12.2013, the
post-mortem examination of the dead body of the deceased was conducted after
much delay at about 11.45 a.m. on 08.12.2013---According to Medical Officer, he
on 08.12.2013 at about 11.45 a.m. conducted the post-mortem examination of the
dead body of deceased after about 12 hours and 45 minutes of the occurrence---No
explanation was offered to justify the said delay in conducting the post-mortem
examination of the dead body---Not only the post-mortem examination of the dead
body was delayed by as many as 12 hours and 45 minutes, but also the dead body
was brought to the hospital at 11.35 a.m. on 08.12.2013---Inordinate and
unexplained and substantial delay in the post-mortem examination of the dead body
and submission of the police papers to the Medical Officer clearly established that
the witnesses claiming to have seen the occurrence or having seen the accused
escaping from the place of occurrence had not seen the occurrence and were not
present at the time of occurrence and the delay in the post-mortem examinations

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 4/30
3/11/25, 12:31 AM 2024 Y L R 841

was used to procure their attendance and formulate a dishonest account of the
occurrence, after consultation and planning---Circumstances established that the
prosecution failed to prove its case against the accused beyond shadow of doubt---
Appeal was allowed accordingly.
Khalid alias Khalidi and 2 others v. The State 2012 SCMR
327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR
956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068
rel.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---Recovery of weapon of offence and live bullets on the pointation
of accused---Inconsequential---Accused were charged for committing murder of the
brother of the complainant by firing and also causing firearm injury to the owner of
the sound system---Recovery of the Kalashnikov rifle and five live bullets from the
accused could not be relied upon as the Investigating Officer did not join any
witness of the locality during the said recovery, which action of his was in clear
violation of the provisions of the S. 103, Cr.P.C and therefore the evidence of the
recovery of the Kalashnikov rifle and five live bullets could not be used as
incriminating evidence against the accused, being evidence which was obtained
through illegal means and hence hit by the exclusionary rule of evidence---
Moreover, the recovered Kalashnikov rifle and five live bullets were never sent to
the office of the Forensic Science Agency, for their comparison with the empties
collected from the place of occurrence---Moreover, even report of the Forensic
Science Agency was not brought on record that the recovered Kalashnikov rifle and
five live bullets were indeed a weapon in working condition and that bullets could
be fired in the same---In that manner, the recovery of the Kalashnikov rifle and five
live bullets from the accused did not prove any fact in issue or relevant fact---
Circumstances established that the prosecution failed to prove its case against the
accused beyond shadow of doubt---Appeal was allowed accordingly.
Muhammad Ismail and others v. The State 2017 SCMR 898 rel.
(i) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting
armed with deadly weapons, unlawful assembly---Appreciation of evidence---
Benefit of doubt---Motive not proved---Accused were charged for committing
murder of the brother of the complainant by firing and also causing firearm injury
to the owner of the sound system---Motive of the occurrence as stated by the eye-
witnesses was that after the complainant had an altercation with the accused over
stopping the accused and his companions from firing at the place of occurrence, the
assailants fired at the witnesses, however, it hit the deceased---After scrutinizing
the statements of the prosecution witnesses, the motive as alleged could not be
proved---It was admitted by the prosecution witnesses themselves that the accused
had no motive to commit the qatl-i-amd of the deceased, rather his altercation had

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 5/30
3/11/25, 12:31 AM 2024 Y L R 841

taken place with the complainant---During the whole occurrence, despite the
presence of six armed assailants, the complainant was not even injured---Had the
motive being true, then the complainant would not have been let off---Prosecution
witnesses failed to provide evidence to determine the truthfulness of the motive
alleged and the fact that the said motive was so compelling that it could have led
the accused to have committed the qatl-i-amd of the deceased---Thus, there was an
evocative muteness in the prosecution case with regard to the motive alleged---No
independent witness was produced by the prosecution to prove the motive as
alleged---Circumstances established that the prosecution failed to prove its case
against the accused beyond shadow of doubt---Appeal was allowed accordingly.
Muhammad Javed v. The State 2016 SCMR 2021 rel.
(j) Criminal trial---
----Absconsion---Scope---Abscondence of an accused can be used as a
corroborative piece of evidence, which can not be read in isolation but it has to be
read along with the substantive pieces of evidence.
Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal
Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632;
Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304;
Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985
SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another
v. The State 2006 SCMR 1707; Nizam Khan and 2 others v. The State 1984 SCMR
1092 and Rohtas Khan v. The State 2010 SCMR 566 rel.
(k) Penal Code (XLV of 1860)---
----S. 302---Qatl-i-amd--- Admission of accused---Scope---If the prosecution fails
to prove its case against an accused person then the accused person is to be
acquitted even if he has taken a plea and has thereby admitted killing the deceased.
Azhar Iqbal v. The State 2013 SCMR 383 rel.
(l) Criminal trial---
----Medical evidence--- Conviction---Scope---Conviction can not 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.
(m) Criminal trial---
----Benefit of doubt---Principle---For giving the benefit of the doubt it is not
necessary that there should be 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.
Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The
State 2021 SCMR 736 rel.
(n) Criminal Procedure Code (V of 1898)---

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 6/30
3/11/25, 12:31 AM 2024 Y L R 841

----S. 417---Appeal against acquittal---Presumption---Once an acquittal is recorded

in favour of accused facing criminal charge he enjoys double presumption of
innocence, therefore, the court competent to interfere in the acquittal order should
be slow in converting the same into conviction, unless and until the said order is
patently illegal, shocking, based on misreading and non-reading of the record or is
perverse.
Muhammad Inayat v. The State 1998 SCMR 1854 and Mst. Sughran Begum and
another v. Qaiser Pervaiz and others 2015 SCMR 1142 rel.
James Joseph for Appellants.
Muhammad Ali Shahab, Deputy Prosecutor General for the State.
Muhammad Usman Sharif Khosa for the Complainant.
Date of hearing: 24th October, 2022.
JUDGMENT
SADIQ MAHMUD KHURRAM, J.---Muhammad Sharif son of Raheem
Bakhsh (convict) was tried along with Allah Bakhsh son of Karim Bakhsh and
Muhammad Akhtar alias Baddo son of Lal Khan (both since acquitted), the co-
accused of the convict, by the learned Additional Sessions Judge, Dera Ghazi Khan
in the case FIR No. 334 of 2013 dated 08.12.2013 registered in respect of offences
under sections 302,324, 148 and 149, P.P.C. at the Police Station Shah Saddar Din,
District Dera Ghazi Khan for committing the Qatl-i-Amd of Awais Bashir son of
Bashir Ahmad (deceased). The learned trial court vide judgment dated 21.03.2018,
convicted Muhammad Sharif son of Raheem Bakhsh (convict) and sentenced him
as infra:
Muhammad Sharif son of Raheem Bakhsh:-
Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Awais
Bashir son of Bashir Ahmad (deceased) and directed to pay Rs.200,000/- as
compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased
and in case of default thereof, the convict
was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal
Khan, the co-accused of the convict, were, however acquitted by the learned trial
court.
2. Feeling aggrieved, Muhammad Sharif son of Raheem Bakhsh (convict) lodged
Criminal Appeal No.282 of 2018, assailing his conviction and sentence. The
learned trial court submitted Murder Reference No.45 of 2018 under section 374,
Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the
appellant namely Muhammad Sharif son of Raheem Bakhsh. The complainant of
the case namely Shahid Bashir filed Criminal Appeal No.580 of 2018 against the
acquittal of the accused namely Allah Bakhsh son of Karim Bakhsh and
Muhammad Akhtar alias Baddo son of Lal Khan. We intend to dispose of the

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 7/30
3/11/25, 12:31 AM 2024 Y L R 841

Criminal Appeal No. 282 of 2018, Criminal Appeal No.580 of 2018 and the Murder
Reference No.45 of 2018 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Shahid
Bashir (PW-1), the complainant of the case are as under:-
"States that during the night between 7/8-12-2013, there was a musical
programme in the marriage ceremony of my cousin Javed Iqbal There was
arrangements of lightning in the place of function. At about 11.00 P.M, the
accused present in court Muhammad Sharif armed with Kalashnikov and
pistol, Allah Bakhsh armed with and Akhter Aias (sic) Bido accused were
also armed with Kalashnikovs along with three unknown accused armed
with fire arms came at the marriage ceremony and started ariel (sic) firing. I
along with my father Basheer Ahmad, Abdul Latif maternal uncle, Ghulam
Fareed uncle and my brother Awais Bashir strictly restrained them not to
make ariel (sic) firing. Upon this hot- words were exchanged and then
scuffle took place between me and accused Sharif. The accused persons
extended threats us to that they would teach him a lesson for insulting them.
In the meanwhile, the accused persons made straight firing upon us with
their respective weapons. We save (sic) our lives while laying on the
ground, however, a fire made by Muhammad Sharif accused hit on the back
of head of my younger brother Awais Bashir aged about 12/13 years, who
fell down on the earth after receiving the injury and another fire hit Irshad
Hussain son of Muhammad Ramzan the owner of Sound System. The
accused persons fled away from the spot through their motorcycles, while
making firing. The accused persons left a motorcycle Honda 125/C.G.
bearing registration No. 1051 DGN in ditch of a water while fleeing away
from the spot. We proceeded to D.H.Q. Hospital DG.Khan for his medical
treatment while boarding the injured in a private vehicle but in the way
Rescue 1122 met us, we shifted the injured on vehicle of Rescue 1122, and
reached the Trauma Center. The injured Muhammad Irshad himself went to
R.H.C. Shahsaddar Din for his treatment. The doctors in the Trauma Center
attempted to save life of Awais Bashir while taking him first aid, who died
succumbing to the injuries in the Trauma Center. We took the dead body of
Awais Bashir and reached our houses. We deputed my father Bashir Ahmad
and other relatives for guarding the dead body and I along with Ghulam
Fareed PW proceeding to Police Station for reporting the matter. The police
met us near Grid Chowk I got recorded my statement Ex-PA before the
Police. The police read over the same to me and I signed the same in token
of its correctness.
The motive behind the occurrence was that I along with P.W.s restrained the
accused persons from making ariel (sic) firing in the marriage ceremony,
due to this grudge, the accused Sharif committed murder of my brother
Awais Bashir and other accused persons with their common intention
injured Irshad.."
4. After the formal investigation of the case report under section 173 of the Code
of Criminal Procedure, 1898 was submitted before the learned trial court and the

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 8/30
3/11/25, 12:31 AM 2024 Y L R 841

accused were sent to face trial. The learned trial court framed the charge against the
accused on 02.02.2017 to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as
thirteen witnesses recorded. The ocular account of the case was furnished by
Shahid Bashir (PW-1) and Ghulam Farid (PW-2). Muhammad Kaleem Kamran
Patwari (PW-3) prepared the scaled site plan of the place of occurrence (Exh. P.B.).
Shameem Abbas, A.S.I. (PW-8) stated that on 08.12.2013, Muhammad Ayyub, SI
(PW-6) handed over to him one sealed parcel said to contain the blood stained
earth, one sealed parcel said to contain four empty shells of bullets of 30-bore and
one sealed parcel said to contain sixteen empty shells of bullets of Kalashnikov
rifle collected from the place of occurrence and on 01.01.2014, he handed over the
said parcels to Zahid Iqbal 800/C (PW-5) for their onward transmission to the
office of the Punjab Forensic Science Agency, Lahore. Abdul Rehman SI (PW-9)
stated that on 08.12.2013, he recorded the formal FIR (Exh. PA/1). Muhammad
Ishfaq, (PW-13) stated that on 08.12.2013, he identified the dead body of the
deceased at the time of its post mortem examination and the Medical Officer
handed over the last worn clothes of the deceased to the Investigating Officer of the
case in his presence. Muhammad Ayyub, SI (PW-6) investigated the case from
08.12.2013 till 14.01.2014 and detailed the facts of the investigation as conducted
by him in his statement before the learned trial court. Moazzam Mahmood Abbas,
SI (PW-12) investigated the case from 10.06.2016 till 17.08.2016 and detailed the
facts of the investigation as conducted by him in his statement before the learned
trial court. Munir Ahmad, SI (PW-10) investigated the case from 28.08.2016 till
21.11.2016, arrested the appellant on 16.09.2016, and detailed the facts of the
investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Gull Hassan Shah (PW-7) examined, who on
08.12.2013 was posted as Medical Officer R.H.C. Shah Saddar Din and on the
same day, conducted the post-mortem examination of the dead body of Awais
Bashir son of Bashir Ahmad (deceased). Dr. Gull Hassan Shah (PW-7), on
examining the dead body of Awais Bashir son of Bashir Ahmad (deceased)
observed as under:-
" Injury No.1
A contused firearm lacerated wound of 1.5 cm x 1.5 cm circular in shape with
margins inverted wound was going deep on the back of the right side of the
head just about and slightly behind to the top of the right ear. (wound of
entrance). Wound had blood clots in it. Skull membrane was injured.
Injury No. 2
Another contused firearm lacerated wound of nearly 2.5 cm obliquely horizontal
on the left of the front of forehead at the level of left eyebrow and the
middle of the left eyebrow level. It was 1 cm. Wound was going deep and
there was fracture of frontal and orbital bone. Margins of the wounds were
inverted. It was a wound of exit. No blackening and burning was found.
..
Opinion

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 9/30
3/11/25, 12:31 AM 2024 Y L R 841

In my opinion, both the injuries i.e. 1 and 2 were ante mortem injuries and both
are on head and were entrance and exit wound. There were grievous one and
they had injured skull and brain and brain matter and membrance of brain.
Causing injury to brain matter leading to neurogenic shock and hemorrhagic
leading to the failure of the brain, failure of the heart and then death.
Probable duration between the injury and death was within few minutes and
between death and postmortem was within 12 hours."
On the same day, Dr. Gull Hassan Shah (PW-7), also medically examined
Muhammad Irshad (given up P.W.). Dr. Gull Hassan Shah (PW-7), on examining
Muhammad Irshad (given up P.W.) observed as under:-
"Injury No.1
A contused firearm lacerated wound of 1.5 cm x 1 cm obliquely horizontal on
the front of the middle of the left upper arm with margin of the wound
inverted (wound of entrance). Wound was going deep. No blackening and no
burning was seen. Injured was complaining of severe pain in the left upper
arm and also on the front side of the left side of the chest. Injured was
feeling dyspnea. X-ray of left upper arm and X-rays of chest all views were
advised."
7. On 02.03.2018, the learned Assistant District Public Prosecutor gave up the
prosecution witness, namely Irshad Hussain as being won over by the accused as
well as being settled outsdide Pakistan and gave up the prosecution witnesses,
namely Abdul Latif, Javed Iqbal, Bashir Ahmad and Shoaib as being unnecessary
and closed the prosecution evidence after tendering in evidence the report of Punjab
Forensic Science Agency, Lahore (Exh. P.O.).
8. After the closure of prosecution evidence, the learned trial court examined the
appellant namely Muhammad Sharif son of Raheem Bakhsh 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 Sharif son of Raheem Bakhsh,
opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce
any evidence in his defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Dera
Ghazi Khan convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the
whole case is 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 witnesses, on the face of it, is 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 submitted that the recovery of the Kalashnikov rifle (P-6) and
five bullets (P-7/1-5) was full of procedural defects, of no legal worth and value,
and was the result of fake proceedings. The learned counsel for the appellant also
argued that the appellant had been involved in the occurrence only on suspicion.

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 10/30
3/11/25, 12:31 AM 2024 Y L R 841

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.
11. On the other hand, the learned Deputy Prosecutor General along with the
learned counsel for the complainant, contended that the prosecution has proved its
case beyond the shadow of doubt by producing independent witnesses. The learned
Deputy Prosecutor General along with the learned counsel for the complainant,
further argued that the deceased died as a result of injuries suffered at the hands of
the appellant namely Muhammad Sharif. The learned Deputy Prosecutor General
along with the learned counsel for the complainant, further contended that the
medical evidence also corroborated the statements of Shahid Bashir (PW-1) and
Ghulam Farid (PW-2). The learned Deputy Prosecutor General along with the
learned counsel for the complainant, further argued that the recovery of the
Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) also corroborated the ocular
account. The learned Deputy Prosecutor General along with 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 along with the
learned counsel for the complainant prayed for the rejection of the appeal. The
learned counsel for the complainant also argued that the Criminal Appeal No.580 of
2018, assailing the acquittal of Allah Bakhsh son of Karim Bakhsh and Muhammad
Akhtar alias Baddo son of Lal Khan by the learned trial court, also merited
acceptance.
12. We have heard the learned counsel for the appellant, the learned counsel for
the complainant, the learned Deputy Prosecutor General and perused the record
with their able assistance.
13. The whole prosecution case revolves around the statements of the
prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the
eye-witnesses of the occurrence. The relationship of the prosecution witnesses
namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), with the deceased, is on
record. Awais Bashir (deceased) was the brother of Shahid Bashir (PW-1), and the
paternal nephew of the prosecution witness namely Ghulam Farid (PW-2). The
prosecution witness namely Ghulam Farid (PW-2), during cross-examination,
explained as under:-
"I am paternal uncle of the complainant and the deceased. "
We have also noted that according to the prosecution witnesses namely Shahid
Bashir (PW-1) and Ghulam Farid (PW-2), the occurrence happened after the
prosecution witness namely Shahid Bashir (PW-1) had an altercation with the
appellant over him stopping the appellant and his companions from firing at the
place of occurrence. The prosecution witness namely Shahid Bashir (PW-1) in his
statement before the court stated as under:-
"Upon this hot words were exchanged and then scuffle took place between to me
and accused Sharif.
When we forbade the accused persons from making aerial firing in the marriage
function, due to which, altercation of hot wards occurrence between me and
Sharif accused; all the accused persons were carrying fire arms at said time.

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 11/30
3/11/25, 12:31 AM 2024 Y L R 841

.
When firing was made by the accused persons on me, I was present at the
distance of 9 karams from them. "
The prosecution witness namely Ghulam Farid (PW-2) in his statement before the
court stated as under:-
"Only Shahid complainant went to forbid the accused persons from aerial
firing." (emphasis supplied)
In these circumstances, the prosecution witness namely Shahid Bashir (PW-1)
should have also been the target of the assailants. Furthermore, according to the
prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the
prosecution witness namely Shahid Bashir (PW-1) was in clear view, at a meagre
distance, from the assailants and unarmed whereas the accused, as many as six in
total, were allegedly armed with various firearm weapons. Neither there was any
dearth of ammunition nor that of intent and opportunity on the part of the appellant
or his co-accused for not doing away with the prosecution witness namely Shahid
Bashir (PW-1), who at the time of occurrence, was allegedly present at the place of
occurrence and there did not exist any obstacle in the line of the sight of the
accused and the place where the prosecution witness namely Shahid Bashir (PW-1)
was present. In this scenario, it is hard to believe that the prosecution witness
namely Shahid Bashir (PW-1) would have been shown the courtesy of not being
harmed at all when he should have also been the target of the assailants. In the
midst of firing by so many accused persons, the prosecution witness namely Shahid
Bashir (PW-1) did not receive even a single scratch on his body during the whole
occurrence. If the prosecution witness namely Shahid Bashir (PW-1) had been
present in the view of the assailants, then he would not have been spared. Blessing
the prosecution witness namely Shahid Bashir (PW-1), with such an incredible
consideration and showing them such favour, the persons with whom the assailants
had a direct dispute with, is implausible and opposed to the natural behaviour of
any accused.
14. We have also noted with concern that the prosecution witnesses namely
Shahid Bashir (PW-1) and Ghulam Farid (PW-2) failed to prove that in what
circumstances the deceased came to be hit by a bullet at the place of occurrence as
according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam
Farid (PW-2), they had got down from the stage, along with the deceased, to stop
the assailants from making celebratory firing at the place of occurrence and the
assailants did stop, however, subsequently, they fired at the prosecution witness
namely Shahid Bashir (PW-1) when he was at a distance of nine karams from the
stage whereas at that moment the deceased was standing near the said stage. The
prosecution witness namely Shahid Bashir (PW-1) also claimed during cross-
examination that when he along with the other witnesses was laying on the ground,
dodging the bullets being fired by as many as six assailants, none of the assailants
attempted to make any firing directly at the witnesses. It was also claimed by the
prosecution witness namely Shahid Bashir (PW-1) that the deceased was hit by a
bullet at a distance of 18 karams from the assailants, whereas the prosecution
witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) were at a

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 12/30
3/11/25, 12:31 AM 2024 Y L R 841

distance of only nine karams from the assailants. The prosecution witness namely
Shahid Bashir (PW-1) during cross-examination stated as under:-
"When the accused persons were making aerial firing, we alighted from the
stage, went closer to the accused persons and asked them to stop the aerial
firing. When we asked the accused persons to stop the aerial firing, they
stopped the aerial firing and immediately did not made fire on us. When
firing was made by the accused persons on me, I was present at the distance
of 9 karams from them. At said time, Awais my brother was present near the
stage, however my father Bashir Ahmad, Ghulam Fareed my uncle and
Abdul Latif were present with me. At that time, stage was towards south
west from us at the distance of 9 karams. When firing was made, we laid
down on the ground, however the accused persons did not came near to us
and did not make firing on us, when we were lying on the ground. When
Awais reached near the stage and firing was made, only two persons namely
Awais himself and Irshad were present on the stage. When physical
altercation between the accused persons and us occurred and firing was
made, all the persons sitting at the stage including Mansoor Malangi left the
stage. Awais Bashir received bullet shots from the distance of 18 karams."
(emphasis supplied)
The above referred portion of the cross-examination of the prosecution witness
namely Shahid Bashir (PW-1) also brings into question that if the prosecution
witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) were laying and
cowering on the ground to save themselves from the bullets being fired, then how
they were able to observe the firing made by each of the assailants and the
consequential hitting of the deceased by one of the bullets. When according to the
prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2)
themselves they were ducking and recoiling to save their lives during the
occurrence, then there did not exist any possibility that they would have been able
to witness and observe the maker of the fatal shot at the deceased. Such behaviour,
on part of the accused, as deposed by the prosecution witnesses namely Shahid
Bashir (PW-1) and Ghulam Farid (PW-2), runs counter to natural human conduct
and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts
to presume the existence of any fact, which it thinks likely to have happened,
regard being had to the common course of natural events and human conduct in
relation to the facts of the particular case. We, thus, trust the existence of this fact,
by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct
of the assailants, as deposed to by prosecution witnesses namely Shahid Bashir
(PW-1) and Ghulam Farid (PW-2) was opposed to the common course of natural
events and human conduct. Hence, we are holding that the prosecution witnesses
namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), did not witness the
occurrence. The august Supreme Court of Pakistan, in its binding judgments, has
repeatedly held that in a scenario where the motivation was against the complainant
or the witnesses, but the accused did not cause any harm to them, notwithstanding
being within the range of their firing, would reveal that the said witnesses had not
witnessed the occurrence. The august Supreme Court of Pakistan, in case Tariq
Mehmood v. The State and others (2019 SCMR 1170), has observed as under:

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 13/30
3/11/25, 12:31 AM 2024 Y L R 841

"First sight cannot escape preponderance of evidence, however on a closer view,

emerges a picture incompatible with the events, narrated in the crime report.
The accused mounted assault, as per prosecution's own case to settle score
with Muhammad Usman, PW for his alleged affair with the lady related to
the appellant; it is disgrace that brought the assailants, face to face, with
Muhammad Usman, PW, well within their view and reach it is astonishing
that while being merciless without restraint upon others they spared prime
target of assault. There can be no other inference that either Muhammad
Usman was not present at the scene or the occurrence took place in a
backdrop other than asserted in the crime report."
The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010
SCMR 566) at page 571 observed as under:
"The alleged motive was against the complainant, but it is noted that the
appellant did not cause any injury to the complainant, though he was present
within the range of firing, thus it supports the contention of the learned
counsel of appellant that P.Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq and
another v. The State (2006 SCMR 1707) at page 1712 held as under:--
"Had P.W.9 been present on the spot, he was not likely to be spared because the
number of injuries on the person of deceased show that at least eighteen
rounds were fired. It only shows the degree of venom the killer had for the
deceased."
We are also guided by the binding judgment of the august Supreme Court of
Pakistan passed in the case of Mst. Rukhsana Begum and others v. Sajjad and
others (2017 SCMR 596) where at page 601 it was observed as under:-
"Another intriguing aspect of the matter is that, according to the FIR, all the
accused encircled the complainant, the PWs and the two deceased thus, the
apparent object was that none could escape alive. The complainant being
father of the two deceased and the head of the family was supposed to be the
prime target. In fact he has vigorously pursued the case against the accused
and also deposed against them as an eye-witness. The site plan positions
would show that, he and the other P.Ws. were at the mercy of the assailants
but being the prime target even no threat was extended to him. Blessing him
with unbelievable courtesy and mercy shown to him by the accused knowing
well that he and the witnesses would depose against them by leaving them
unhurt, is absolutely unbelievable story. Such behavior, on the part of the
accused runs counter to natural human conduct and behavior explained in
the provision of Article 129 of the Qanun-e-Shahadat Order, 1984, therefore,
the court is unable to accept such unbelievable proposition."
15. We have noted that according to the prosecution witnesses namely Shahid
Bashir (PW-1) and Ghulam Farid (PW-2), the occurrence took place at about 11.00
p.m. on a cold winter night of 07.12.2013, 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

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 14/30
3/11/25, 12:31 AM 2024 Y L R 841

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 Shahid Bashir (PW-1) and Ghulam Farid
(PW-2) claimed that they had witnessed the occurrence in the light of the electric
bulbs which were lit at the place of occurrence, however, the said electric bulbs,
which were allegedly lit at the place of occurrence and in the light of which the
prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2)
allegedly had witnessed the occurrence, were neither produced by the prosecution
witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) to the
Investigating Officer of the case nor the Investigating Officer of the case, during
his visit to the place of occurrence, took into possession any such electric bulbs.
The non-production of the electric bulbs which were allegedly lit at the place of
occurrence, at the time of occurrence is all the more a matter of disquiet for the
reason that according to the prosecution witnesses namely Shahid Bashir (PW-1)
and Ghulam Farid (PW-2) the assailants were standing at a distance of as much as
18 karams from where the electric bulbs were allegedly lit. Muhammad Ayyub SI
(PW-6),the Investigating Officer of the case, stated during cross-examination as
under:-
"According to rough site plan prepared by me, at point No.4 there were the
accused and at the distance of 18 karams from point No.4 at point No.3
there were the witnesses towards southwest and at point No.1 at a distance
of 9 karams from point No.3, there was deceased towards southwest. At
point No.5 towards north from point No.4, the crime empties were lying and
I did not mention the distance between points Nos.4 and 5."
In this manner, according to the prosecution witnesses namely Shahid Bashir (PW-
1) and Ghulam Farid (PW-2), the assailants were standing at a place 18 karams
away from the stage and the availability and range of the electric bulbs lit at the
place of the occurrence to have an affect at such a huge distance was also not
proved. The failure of the complainant of the case to produce the same before 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. As mentioned above, no such
electric bulb out of the many which were allegedly lit at the place of occurrence
was taken into possession by the Investigating Officer. According to the
prosecution evidence, the Investigating Officer of the case, visited the place of
occurrence after the occurrence, still, the electric bulbs, which were allegedly
available and lighted at the place of occurrence, at the time of occurrence, were not
taken into possession at the spot by the Investigating Officer along with the other
recoveries, though there was no occasion for the said electric bulbs not to have
been present at the place of occurrence or they being not produced by the witnesses
before the Investigating Officer or they being not taken into possession by the
Investigating Officer during his visit at the place of occurrence. The joint failure of
Shahid Bashir (PW-1), the complainant of the case and Muhammad Ayyub, SI (PW-
6), the Investigating Officer, to produce the electric bulbs allegedly present at the
place of occurrence and lighted up at the time of occurrence, proves that none was

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 15/30
3/11/25, 12:31 AM 2024 Y L R 841

available and only an invented and false claim of such electric bulbs being
available was made by the said witnesses. We have also perused the scaled site plan
of the place of occurrence (Exh. P.B.) as prepared by Muhammad Kaleem Kamran,
Patwari (PW-3) and the rough site plan of the place of occurrence (Exh. P.D.) as
prepared by Muhammad Ayyub, SI (PW-6), the Investigating Officer of the case,
and have noted that the presence of any light source lit at the place of occurrence
has not been marked in both the site plans (Exh. P.B. and Exh. P.D.). The
prosecution witnesses failed to establish the fact of such availability of light source
and in absence of their ability to do so, we cannot presume the existence of such a
light source. The absence of any light source has put the whole prosecution case in
dark. It was admitted by the witnesses themselves that it was a dark night and they
had used the light of the electric bulbs lit at the place of occurrence, never
produced, to identify the assailants during the occurrence and as the prosecution
witnesses failed to prove the availability of such a light source, their statements
with regard to them identifying the assailants 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 case. 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.

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 16/30
3/11/25, 12:31 AM 2024 Y L R 841

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 F.I.R. 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 F.I.R. 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."
16. Another grave fact of the prosecution case is that both the prosecution
witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) admitted the
presence of other witnesses, those who had arrived at the place of occurrence to
attend the marriage
function of Javed Iqbal, (given up PW), however, none of the said witnesses
appeared before the learned trial court in support of the prosecution case. The
prosecution witness namely Shahid Bashir (PW-1) during cross-examination stated
as under:-
"The marriage ceremony of Javed Iqbal was being held on the day of
occurrence. About 300/350 people were present at the time and place of
occurrence. Invitees of marriage function as well as uninvited persons were
present there because of musical program of marriage function. Singer
Mansoor Mailnagi performed in the musical function.
We did not ask Mansoor Malangi to become our witness. Volunteered, when
police arrived at the place of occurrence Mansoor Malangi was present
there.."
Similarly, the prosecution witness namely Ghulam Farid (PW-2) during cross-
examination stated as under:-
"Many other persons were also present in the marriage function uninvited.."
Even Muhammad Ayyub, SI (PW-6) admitted during cross-examination that he did
not record the statement of any person who at the time of occurrence was attending
the marriage function and stated as under:-

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 17/30
3/11/25, 12:31 AM 2024 Y L R 841

"I did not record statement under section 161 of Cr.P.C. of any participants of
the marriage function except the witnesses mentioned by the complainant."
The failure of the prosecution to produce the said persons who had witnessed the
occurrence, according to prosecution witnesses namely Shahid Bashir (PW-1) and
Ghulam Farid (PW-2), has convinced us that had they been produced before the
learned trial court, they would not have supported the prosecution case. Even Javed
Iqbal, the person whose marriage was being celebrated at the time of occurrence,
was not produced before the learned trial court and was given up as an unnecessary
witness. Similarly, Irshad Hussain, the person who was injured during the
occurrence, also did not appear before the learned trial court in support of the
prosecution case against the appellant. Article 129 of the Qanun-e-Shahadat, 1984
provides that if any evidence available with the parties is not produced then it shall
be presumed that had that evidence been produced the same would have been gone
against the party producing the same. Illustration (g) of the said Article 129 of the
Qanun-e-Shahadat Order, 1984 reads as under:-
"(g) that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it."
The Investigating Officer was under a binding duty to collect evidence and his
failure has to be taken as a circumstance belying the prosecution case. The purpose
of the trial is the discovery of truth. As long as men keep lying the only causality
would be the reality. The prosecution case suffers from inherent defects which are
irreconcilable as they are. Compounding the failures of the prosecution is the fact
that the persons admittedly present at the place of occurrence, at the time of
occurrence, were not produced as witnesses. Guidance is sought from the binding
decision of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha
alias Billa Sher v. The State (2010 SCMR 949) wherein it has been observed as
under:-
" .further that no independent witness of the locality where the incident took
place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal
principle of Criminal Jurisprudence that any genuine doubt arising out of the
circumstances of the case should be extended to the accused as of the right
and not as concession. It is difficult to say that prosecution has proved its
case beyond shadow of doubt."
17. We have also noted that the names of both the prosecution witnesses namely
Shahid Bashir (PW-1) and Ghulam Farid (PW-2) were neither mentioned in column
No.4 nor at page 4 of the inquest report (Exh.PC/1) prepared with regard to Awais
Bashir (deceased) as being the witnesses who were present near the dead body at
the time of preparation of the inquest report (Exh.PC/1). This fact also evidences
the absence of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam
Farid (PW-2) at the place of occurrence, at the time of occurrence. More grave is
the fact that admittedly in the inquest report (Exh.PC/1) the role of the appellant
that it was his fire that had hit the deceased was not mentioned. Muhammad Ayyub,
SI (PW-6), the Investigating Officer of the case, admitted during cross-examination
as under:-

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 18/30
3/11/25, 12:31 AM 2024 Y L R 841

"According to facts mentioned in Ex-PC/1, it is not written that fire made by

Sharif accused hit the deceased. Volunteered the said facts in Ex-PC/1 were
in fact summary of Ex-PD, the statement of the complainant Shahid Bashir,
written for the assistance of the doctor. It is correct that it is not written in
Ex-PC/1 about kind of weapon causing injury on the body of the deceased."
(emphasis supplied)
18. We have also noted with concern that the prosecution witnesses namely
Shahid Bashir (PW-1) and Ghulam Farid (PW-2), though claimed that after the
occurrence Awais Bashir (deceased) was taken to the hospital by the Punjab
Emergency Service, Rescue 1122, however, neither during the investigation nor
during the course of the trial, any proof was brought on record to support the said
claim of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid
(PW-2). Muhammad Ayyub, SI (PW-6), the Investigating Officer of the case, during
cross-examination admitted as under:-
"It is correct that neither Rescue 1122 informed me about bringing as well as
admission of the deceased in injured condition in Trauma Center, D.G. Khan
nor any doctor nor complainant party nor participant of the marriage
ceremony informed me about the said incident.
.
I did not collect any record from Trauma Center D.H.Q. D.G. Khan regarding
arrival of the deceased in injured condition there, his treatment and his death
in the hospital."
We have also noted that according to the prosecution witness namely Ghulam Farid
(PW-2), the dead body of the deceased was brought to the house after he was
declared to be dead by the doctors at the hospital and thereafter the prosecution
witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) went to the
Police Station for reporting the matter, however, met the prosecution witness
namely Muhammad Ayyub, SI (PW- 6) at Grid Chowk, where the oral statement
(Exh. P.A.) of Shahid Bashir (PW-1) was recorded. The prosecution witness namely
Ghulam Farid (PW-2) during cross-examination stated as under:-
"I and Shahid went to call the police on my motorcycle after about two hours of
the occurrence. After the occurrence we went to the hospital boarding Awais
in injured condition to the hospital through a private car which situated at
the distance of 30 kilometers from the place of occurrence. We remained in
the hospital for 10/15 minutes. At about 12:30 AM we returned to our house
along with the dead body of deceased. Neither we ourselves informed the
police instantly after the occurrence nor asked any of our relative or any
other person to do so. "
Contradicting the statement of the prosecution witness namely Ghulam Farid (PW-
2) that the dead body of the deceased was brought to the house, both the
prosecution witnesses namely Shahid Bashir (PW-1) and Muhammad Ayyub, SI
(PW- 6), the Investigating Officer of the case, stated that the dead body was
escorted from the place of occurrence to the hospital. The prosecution witness
namely Shahid Bashir (PW-1), during cross-examination stated as under:-

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 19/30
3/11/25, 12:31 AM 2024 Y L R 841

"The police reached at the place of occurrence after 01:15 A.M. in the night.
Police inquired all the persons present at the place of occurrence including
Mansoor Malangi. I and my uncle Ghulam Fareed went to the Police
Station. Volunteered, police met us in the way, then we brought them to the
place of occurrence, while one police official went to the police station for
registration of the case and the other came at the place of occurrence. Police
remained at the place of occurrence for 35 to 40 minutes and first of all
police sent the dead body to the Hospital for autopsy." (emphasis supplied).
Muhammad Ayyub, S.I. (PW-6), Investi-gating Officer of the case, in his statement
before the learned trial court, stated as under:-
"Afterwards, I proceeded to the place of occurrence, where the dead body of the
deceased Awas Bashir was being on the cot.
I sent dead body of the deceased for the purpose of postmortem examination on
a private vehicle/dalla from the place of occurrence a little bit later after my
arrival there."
19. We have also observed with grave concern that according to Muhammad
Ayyub, SI (PW-6), the Investigating Officer of the case, the time of getting the
information of the occurrence by the police was mentioned as 11.00 p.m. on
07.12.2013 in the inquest report (Exh.PC/1), whereas the oral statement (Exh. P.A.)
of Shahid Bashir (PW-1) was recorded by Muhammad Ayyub, SI (PW- 6) at Grid
Chowk at 01.10 a.m on 08.12.2013. The prosecution witness namely Muhammad
Ayyub, SI (PW- 6), during cross-examination admitted as under:-
"It is also correct that in column No.3 of inquest report Ex-PC/1, time of 11.00
PM dated 07.12.2013 is mentioned about receiving of information about the
occurrence."
Reliance in this regard is placed on the case of "Arshad Khan v. The State" (2017
SCMR 564) wherein the august Supreme Court of Pakistan observed as under:-
"According to the prosecution the occurrence had taken place at 05.00 a.m. and
the police had been informed about the incident at 06.30 a.m. but
surprisingly in column No. 3 of the Inquest Report the time of death of the
deceased becoming known was recorded as 05.15 a.m."
Furthermore, the oral statement (Exh. P.A.) of Shahid Bashir (PW-1) was recorded by
Muhammad Ayyub, S.I. (PW-6) at Grid Chowk while he was on his way to the
Police Station. We have noted that despite the disapproval of the August Supreme
Court of Pakistan, the same method was adopted in this case also that when
Muhammad Ayyub, SI (PW- 6), the Investigating Officer of the case, was present at
Grid Chowk on patrolling, the prosecution witness namely Shahid Bashir (PW-1)
appeared before him and got recorded his oral statement (Exh. P.A.). The August
Supreme Court of Pakistan in the case of "Mst. Rukhsana Begum and others v.
Sajjad and others" (2017 SCMR 596) observed at page 601 as under:-
"In the ridder to the FIR, the Investigating Officer has mentioned that the
complainant Muhammad Faazil met him somewhere in the way while
proceeding to the police station. In past, it had become routine practice of

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 20/30
3/11/25, 12:31 AM 2024 Y L R 841

the police that indeed in such like crimes, the FIR/ written complaints were
being taken on the crime spot after preliminary investigation, however, after
this court had disapproved this practice, they have invented a new way of
misleading the court of law because invariably in every second or third case,
same and similar practice is adopted but with newly invented methodology."
The august Supreme Court of Pakistan in the case of "Muhammad Asif v. The
State" (2008 SCMR 1001) has observed as under:
"The FIRs which are not recorded at the police station suffer from the inherent
presumption that the same were recorded after due deliberations."
The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v.
The State" (2017 SCMR 1155) has observed as under:
"An FIR in respect of the incident in issue had not been lodged at the local
Police Station giving rise to an inference that the F.I.R. had been chalked
out after deliberations and preliminary investigation at the spot."
20. We have also noted with disquiet that despite the fact that the occurrence
took place at about 11.00 p.m. on 07.12.2013, the post-mortem examination of the
dead body of the deceased was conducted after much delay at about 11.45 a.m. on
08.12.2013. According to Dr. Gull Hassan Shah (PW-7), he on 08.12.2013 at about
11.45 a.m. conducted the post-mortem examination of the dead body of Awais
Bashir son of Bashir Ahmad i.e., after about 12 hours and 45 minutes of the
occurrence. Dr. Gull Hassan Shah (PW-7) also opined that the time which had
elapsed between the death of the deceased and the post mortem examination of the
dead body of the deceased was about 12 hours. No explanation was offered to
justify the said delay in conducting the post-mortem examination of the dead body.
Not only the post-mortem examination of the dead body was delayed by as many as
12 hours and 45 minutes, but also the dead body was brought to the hospital at
11.35 a.m on 08.12.2013. Dr. Gull Hassan Shah (PW-7) stated during cross-
examination as under:-
"It is correct that dead body was received in dead house on 08.12.2013 at 11.35
A.M. It is correct that necessary documents were delivered to Muhammad
Ejaz (PW-2) on 08.12.2013 by the police."
The inordinate and unexplained and substantial delay in the post-mortem
examination of the dead body and submission of the police papers to the Medical
Officer clearly establishes that the witnesses claiming to have seen the occurrence
or having seen the appellant escaping from the place of occurrence had not seen the
occurrence and were not present at the time of occurrence and the delay in the post-
mortem examinations was used to procure their attendance and formulate a
dishonest account of the occurrence, after consultation and planning. It has been
repeatedly held by the august Supreme Court of Pakistan that such delay in the
post-mortem examination is reflective of the absence of witnesses and the sole
purpose of causing such delay is to procure the presence of witnesses and to further
advance a false narrative to involve any person.The august Supreme Court of
Pakistan in the case of

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 21/30
3/11/25, 12:31 AM 2024 Y L R 841

"Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327) has held as
under:
"The incident in the instant case took place at 2.00 a.m., FIR was recorded at 4/5
a.m, Doctor Muhammad Pervaiz medically examined the injured person at
4.00 a.m. but conducted the post mortem examination of the deceased at
3.00 p.m i.e. after about ten hours, which fact clearly shows that the F.I.R.
was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian Sohail Ahmed and
others v. The State and others" (2019 SCMR 956) has held as under:
"According to the Doctor (PW-10), who did the post-mortem examination, the
dead-body of the deceased was brought to the mortuary at 11:15 a.m. on
01.9.2006 and the post-mortem examination took place at 12 noon after a
delay of 15 hours. This delay in the post-mortem examination, when the
occurrence was promptly reported at 8:45 p.m. and formal F.I.R. was
registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the
incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias
Feeqa v. The State" (2019 SCMR 1068) has held as under:
"More importantly, the only person who can medically examine the dead body
during the said police custody of the dead body is the medical officer, and
that too, when the same is handed over to him by the police for its
examination. For the purposes of the present case, it is crucial to note that,
at the time of handing over a dead body by the police to the medical officer,
all reports prepared by the Investigating Officer are also to be handed over
in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following
essential steps follow: firstly, there is a complete chain of police custody of
the dead body, right from the moment it is taken into custody until it is
handed over to the relatives, or in case they are unknown, then till his burial;
secondly, post mortem examination of a dead person cannot be carried out
without the authorization of competent police officer or the magistrate;
thirdly, post mortem of a deceased person can only be carried out by a
notified government Medical Officer; and finally, at the time of handing
over the dead body by the police to the Medical Officer, all reports prepared
by the Investigating Officer are also to be handed over to the said medical
officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are
required to be handed over to the medical officer along with the dead body,
that result in the consequential delay of the post mortem examination of the
dead person. To repel any adverse inference for such a delay, the
prosecution has to provide justifiable reasons therefor, which in the present
case is strikingly wanting."

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 22/30
3/11/25, 12:31 AM 2024 Y L R 841

21. The learned Deputy Prosecutor General and the learned counsel for the
complainant have also relied upon the recovery of the Kalashnikov rifle (P-6) from
the appellant namely Muhammad Sharif and have submitted that the said recovery
from the appellant offered sufficient corroboration of the ocular account of the
occurrence as furnished by prosecution witnesses namely Shahid Bashir (PW-1)
and Ghulam Farid (PW-2). The recovery of the Kalashnikov rifle (P-6) and five live
bullets (P-7/1-5) from the appellant namely Muhammad Sharif cannot be relied
upon as the Investigating Officer of the case did not join any witness of the locality
during the said recovery, 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 recovery of the Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) 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."
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."
Moreover, the recovered Kalashnikov rifle (P-6) and five live bullets (P-7/1-5)
were never sent to the office of the Punjab Forensic Science Agency, Lahore for
their comparison with the empties collected from the place of occurrence.
Moreover, even no report of the Punjab Forensic Science Agency, Lahore was not
brought on record that the recovered Kalashnikov rifle (P-6) and five live bullets
(P-7/1-5) were indeed a wapon in working condition and bullets which could be
fired in the same. In this manner, the recovery of the Kalashnikov rifle (P-6) and
five live bullets (P-7/1-5) from the appellant does not prove any fact in issue or
relevant fact.
22. The learned Deputy Prosecutor General and the learned counsel for the
complainant have also relied upon the evidence of motive and submitted that it
corroborated the ocular account. The motive of the occurrence as stated by the
prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2),
was that after the prosecution witness namely Shahid Bashir (PW-1) had an
altercation with the appellant over him stopping the appellant and his companions
from firing at the place of occurrence, the assailants fired at the witnesses,
however, hit the deceased. We have scrutinized the statements of the prosecution
witnesses and find that the motive as alleged could not be proved. It is admitted by
the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2)

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 23/30
3/11/25, 12:31 AM 2024 Y L R 841

themselves that the appellant had no motive to commit the Qatl-i-Amd of the
deceased, rather his altercation had taken place with the prosecution witness
namely Shahid Bashir (PW-1). During the whole occurrence, despite the presence
of six armed assailants, the prosecution witness namely Shahid Bashir (PW-1) was
not even injured. As discussed above, had the motive being true, then the
prosecution witness namely Shahid Bashir (PW-1) would not have been let off. The
prosecution witnesses failed to provide evidence enabling us 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 Sharif to have
committed the Qatl-i-Amd of the deceased namely Awais Bashir son of Bashir
Ahmad. There is an evocative muteness in the prosecution case with regard to the
minutiae of the motive alleged. No independent witness was produced by the
prosecution to prove the motive as alleged. 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."
Even otherwise it is an admitted rule of appreciation of evidence that motive and
recovery are only corroborative pieces of evidence and if the ocular account is
found to be unreliable, then motive and recovery have no evidentiary value and lost
their significance.
22. The learned Deputy Prosecutor General and the learned counsel for the
complainant have also laid much premium on the abscondence of the appellant
namely Muhammad Sharif son of Raheem Baksh as proof of his guilt. The fact of
abscondence of an accused can be used as a corroborative piece of evidence, which
cannot be read in isolation but it has to be read along with the substantive piece of
evidence. The august Supreme Court of Pakistan has held in the case of Asadullah
v. Muhammad Ali (PLD 1971 SC 541) that both corroborative and ocular evidence
are to be read together and not in isolation. As regards abscondence, the august
Supreme Court of Pakistan has held in the case of Rasool Muhammad v. Asal
Muhammad (1995 SCMR 1373) that abscondence is only a suspicious
circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632)
the august Supreme Court of Pakistan observed that abscondence itself has no value
in the absence of any other evidence. It was also held in the case of Muhammad
Khan v. State (1999 SCMR 1220) that abscondence of the accused can never
remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999
SCMR 304) it was observed by the august Supreme Court of Pakistan that
abscondence per se is not sufficient to prove the guilt but can be taken as a
corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali
(1992 SCMR 814), Pir Badshah v. State (1985 SCMR 2070) and Amir Gul v. State
(1981 SCMR 182) it was observed that conviction on abscondence alone cannot be
sustained. In the present case, substantive piece of evidence in the shape of ocular
account has been disbelieved, therefore, no conviction can be based on
abscondence alone. Reliance is also placed on the cases of "Muhammad Farooq and
another v. The State" (2006 SCMR 1707) and "Nizam Khan and 2 others v. The
State" (1984 SCMR 1092) and Rohtas Khan v. The State (2010 SCMR 566).

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 24/30
3/11/25, 12:31 AM 2024 Y L R 841

23. The learned Deputy Prosecutor General and the learned counsel for the
complainant have also laid much stress upon the stance taken by the learned
counsel representing the appellant namely Muhammad Sharif son of Raheem
Bakhsh at the time of cross-examination of the prosecution witness namely Munir
Ahmed SI (PW-10), another Investigating Officer of the case. It was suggested by
the learned counsel representing the appellant namely Muhammad Sharif son of
Raheem Bakhsh to Munir Ahmed SI (PW-10), another Investigating Officer of the
case that during the occurrence the deceased died as a result of being hit by a stray
bullet. Furthermore, the learned Deputy Prosecutor General has referred to the
statement of the appellant wherein it had been recorded that the appellant had
received injuries during the occurrence. The learned Deputy Prosecutor General has
argued that this statement of the appellant proved the presence of the appellant at
the place of occurrence, at the time of occurrence. It is admitted that the appellant
was never examined by any Medical Officer. In absence of any opinion of any
Medical Officer regarding the presence of any injury on the person of the appellant,
no presumption can be drawn that he must have been injured during the occurrence.
Moreover, the onus to prove the facts in issue never shifts and always lies on the
prosecution. 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, which at
least is not the case in this particular matter. The suggestions as put by the learned
counsel representing the accused, hardly provide any substantiation to the
prosecution 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."
24. The only other piece of evidence left to be considered by us is the medical
evidence with regard to the injuries observed on the dead body of the deceased by
Dr. Gull Hassan Shah (PW-7) 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 incidence. As all the other pieces of evidence relied upon by the

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 25/30
3/11/25, 12:31 AM 2024 Y L R 841

prosecution, in this case, have been disbelieved and discarded by us, 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 Supreme Court 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 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."
25. Considering all the above circumstances, we entertain serious doubt in our
minds regarding the involvement of the appellant namely Muhammad Sharif son of
Raheem Bakhsh 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

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 26/30
3/11/25, 12:31 AM 2024 Y L R 841

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 in
the case of 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 pre-eminent 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 this Court has
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."
26. For what has been discussed above Criminal Appeal No.282 of 2018 lodged
by the appellant namely Muhammad Sharif son of Raheem Bakhsh is allowed and
the conviction and sentence of the appellant awarded by the learned trial court
through the impugned judgment dated 21.03.2018 are hereby set-aside. The
appellant namely Muhammad Sharif son of Raheem Bakhsh is ordered to be
acquitted by extending him the benefit of the doubt. The appellant namely
Muhammad Sharif son of Raheem Bakhsh is in custody and is directed to be
released forthwith if not required in any other case.
27. The complainant of the case namely Shahid Bashir (PW-1) filed Criminal
Appeal No.580 of 2018 against the acquittal of the accused namely Allah Bakhsh

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 27/30
3/11/25, 12:31 AM 2024 Y L R 841

son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan. We
have observed that the learned trial court rightly acquitted the said accused. Allah
Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan,
both since acquitted, were alleged to had also fired at the place of occurrence,
during the occurrence, however, admittedly no one was injured due to their firing.
Moreover, nothing was recovered from their possession during the investigation of
the case. Admittedly, both Allah Bakhsh son of Karim Bakhsh and Muhammad
Akhtar alias Baddo son of Lal Khan were also not having any motive to commit the
Qatl-i-Amd of deceased. It is important to note that according to the established
principle of the criminal administration of justice once an acquittal is recorded in
favour of accused facing criminal charge he enjoys double presumption of
innocence, therefore, the courts competent to interfere in the acquittal order should
be slow in converting the same into conviction, unless and until the said order is
patently illegal, shocking, based on misreading and non-reading of the record or
perverse. The said principle has been enunciated by the august Supreme Court of
Pakistan in the judgment reported as Muhammad Inayat v. The State (1998 SCMR
1854) wherein it has been held as under:
"The Court would not interfere with acquittal merely because on reappraisal of
the evidence it comes to the conclusion different from that of the Court
acquitting the accused provided both the conclusions are reasonably
possible. If, however, the conclusion reached by that Court was such that no
reasonable person would conceivably reach the same, and was impossible
then this Court would interfere in exceptional cases on overwhelming proof
resulting in conclusion and irresistible conclusion; and that too with a view
only to avoid grave miscarriage of justice and for no other purpose. The
important test visualised in these cases, in this behalf was that the finding
sought to be interfered with, after scrutiny under the foregoing searching
light, should be found wholly as artificial, shocking and ridiculous."
The august Supreme Court of Pakistan in the case of "Mst. Sughran Begum
and another v. Qaiser Pervaiz and others" (2015 SCMR 1142) has held as under:
"On acquittal, an accused person earns twofold innocence particularly, in the
case when there are concurrent findings to that effect by the trial Court and
the Court of First Appeal (High Court), is the bedrock principle of justice. In
a case of acquittal, the standard and principle of appreciation of evidence is
entirely different from that in a case of conviction. Unless the concurrent
findings of the two Courts below are found perverse, fanciful, arbitrary and
are based on misreading and non-reading of material evidence causing
miscarriage of justice, the Supreme Court would not lightly disturb the same
because on reappraisal, another view might be possible therefore, sanctity is
attached under the law to such concurrent findings in ordinary course."
Pursuant to the discussion made and conclusions arrived at above, the Criminal
Appeal No.580 of 2018, lodged by the complainant of the case namely Shahid
Bashir, assailing the acquittal of the accused namely Allah Bakhsh son of Karim

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 28/30
3/11/25, 12:31 AM 2024 Y L R 841

Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan (both since acquitted
by the learned trial court), is hereby dismissed.
28. Murder Reference No.45 of 2018 is answered in Negative and the sentence
of death awarded to Muhammad Sharif son of Raheem Bakhsh is Not Confirmed.
JK/M-12/L Order accordingl

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 29/30
3/11/25, 12:31 AM 2024 Y L R 841

https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2024L4037 30/30