IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
PRESENT: 
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE QAZI FAEZ ISA 
MR. JUSTICE FAISAL ARAB 
  
Criminal Appeal No.176/2012 
(On appeal from the judgment dated 
12.3.2010 passed by the Lahore High 
Court, Lahore in Crl.A.No.174-J/2004 and 
MR.639/2004). 
 
 
Muhammad Asif  
 
 
 
 
 
…Appellant 
VERSUS 
 
The State  
 
 
 
 
 
 
...Respondent  
 
For the appellant: 
 
Mr. Muhammad Akram Gondal, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
For the State: 
 
  
Ch. Muhammad Waheed Khan, Addl.PG. Pb. 
 
Date of hearing:  
 
18.1.2017 
 
 
 
 
  
 
ORDER  
 
 
 
Dost Muhammad Khan, J-.  Leave to appeal was granted 
vide order dated 6.2.2012 to make reappraisal of the entire evidence 
including unnatural conduct of the eye witnesses and when two co-
accused (real brothers) of the appellant have been acquitted by the 
trial court, disbelieving the prosecution witnesses, whether the same 
evidence without independent corroboratory evidence could be acted 
upon awarding capital punishment to the present appellant.  
 
 
 
We have heard learned ASC for the appellant and 
Ch. Muhammad Waheed Khan, learned Additional Prosecutor General, 
Punjab. 
 
Crl. A. 176 / 2012 
2 
2. 
 
The trial court at the conclusion of the trial vide judgment 
dated 31.5.2004 acquitted the two co-accused (real brothers) of the 
appellant while he was awarded death sentence and to pay 
Rs.200,000/- (two lac) to the legal heirs of the deceased.  
3. 
 
On appeal and Murder Reference sent by the trial court, 
the Judges of the learned Lahore High Court, Lahore held that the FIR 
was promptly lodged and two eye witnesses have given a consistent 
statement on material aspects of the case; they are truthful witnesses 
and corroborated by the medical evidence and that the parties are 
closely related thus, there was no reason to falsely implicate the 
appellant. However, due to single stab wound attributed to the 
appellant and because the motive was not established, therefore, the 
death sentence was converted into life imprisonment and murder 
reference was answered in negative.  
4. 
 
The case set up by the prosecution in the FIR lodged by 
Mst. Sughran Bibi aged 50/51 years was to the effect that on 2.6.2003 
at about 8.30 pm she along with her husband Nazar Hussain and other 
sons and daughters were present in their house when Iftikhar son of 
Abdul Sattar and Tajammal Shah son of Mehmood Shah, the friends of 
her son i.e. deceased namely Muhammad Akram came there (house) 
and took him out to go for a round and chitchat. The complainant 
claimed that she alongwith her husband followed them and when the 
deceased and his companions reached ‘metal road near (Aara)-saw 
machine’ of one Aazan Sain, she saw that the appellant-Muhammad 
Asif armed with a dagger, Ashiq Hussain and Muhammad Abbas empty 
handed. The latter two caught hold of the deceased while Muhammad 
Crl. A. 176 / 2012 
3 
Asif inflicted a single dagger blow on the chest of the deceased after a 
brief brawl. Motive for the crime was that prior to the occurrence the 
deceased and Muhammad Asif quarreled with each other in the house 
of her daughter at Narowal, however, the matter was compromised 
and settled once for all.  
5. 
 
During the course of investigation, the two co-accused, 
mentioned above were found innocent and were not recommended for 
trial, however, they were put to trial but at the conclusion they were 
acquitted on the basis of same set of evidence. However, the appellant 
was convicted and sentenced as above which was modified by the 
learned High Court.  
6. 
 
In this case we are entertaining considerable amount of 
doubt about the presence of the alleged two eye witnesses namely 
Mst. Sughran Bibi (PW-8) and Nazar Hussain/her husband (PW-9) at 
the crime spot on the fateful day of occurrence. We deem it 
appropriate to mention that the appellant and acquitted two co-
accused were real brothers.  
7. 
 
At the trial the complainant admitted that she had two 
adult daughters who were present in the house when the deceased 
was taken out, however, this fact was neither disclosed before the 
police in the course of investigation nor they were produced to 
corroborate her version. This lady was aged about 50/51 years, while 
her husband was 70 years of age and when the two eye witnesses not 
produced at the trial namely Iftikhar and Tajammal, were close friends 
of the deceased then why she being an aged lady and her husband, 
who was at the advanced age of his life followed them. If they were 
Crl. A. 176 / 2012 
4 
apprehending something abnormal, they would have conveniently told 
the above two friends of the deceased that being late dark night time, 
it was not advisable to take the deceased outside. No convincing and 
plausible reason has been advanced as to why they both followed the 
deceased and his two friends and what was the object behind it. The 
conduct of both these alleged eye witnesses runs counter to normal 
human behaviour and habit in the given circumstances and in the 
absence of plausible explanation, no prudent mind would believe such 
fantastic story which appears to be the hand-Art of the local police 
because in a night occurrence of this nature, remaining un-witnessed, 
the police imprudently indulges in such like tactics to mislead the court 
of law and justice.  
8. 
 
The two independent witnesses who were close friends of 
the deceased and were on frequent visiting terms were not produced 
at the trial. The note appearing on the relevant page with regard to 
not producing them as PWs is that both are un-necessary. 
9. 
 
In 
our 
considered 
opinion, 
these 
two 
independent 
witnesses could provide the first degree of evidence of reliable nature, 
thus, adverse inference has been drawn that because they were not 
supporting the prosecution case so set up, therefore, they were 
dropped at the trial. In this way, the best evidence, independent in 
nature, was withheld from the court for obvious reasons. This fact by 
itself is sufficient to discard the evidence of the interested and related 
witnesses because their evidence is not only of the second degree but 
also for the reason given above due to their unnatural conduct. 
Crl. A. 176 / 2012 
5 
10. 
 
We fail to understand that in the presence of the two close 
friends accompanying the deceased and parents, how such tragedy 
with a son could happen without any intervention on their part to 
come to rescue of the deceased when they were not far away as 
shown in the site plan.  
11. 
 
Both these two eye witnesses have been disbelieved by the 
investigating agency qua the acquitted two co-accused/the real 
brothers of the appellant. It is a trite principle of law and justice that 
once prosecution witnesses are disbelieved with respect to a co 
accused then, they cannot be relied upon with regard to the other co 
accused unless they are corroborated by corroboratory evidence 
coming from independent source and shall be unimpeachable in nature 
but that is not available in the present case.  
 
 
In this regard reference can be made to case of Ghulam 
Sikandar and another Vs. Mamaraz Khan and others (PLD 1985 
S.C.11). The view held in the above case/reference is reproduced 
below:- 
 
“Appreciation of evidence-----Principle of indivisibility of credibility-----
--Maxim: Falsus in uno falsus in omnibus—Application of principle---Witness 
found false with regard to implication of one accused about whose 
participation he had deposed on oath---Credibility of such witness regarding 
involvement of other accused in same occurrence when shaken---Where it 
was found that a witness has falsely implicated one accused person, 
ordinarily he would not be relied upon with regard to other accused in same 
transaction but if testimony of such witness was corroborated by very strong 
and independent circumstances regarding each one of other accused, 
reliance might then be placed on such witness for convicting other accused 
when principle of indivisibility of credibility as laid down in Muhammad Faiz 
Bakhsh v. The Queen is to be ignored”. 
Crl. A. 176 / 2012 
6 
 
12. 
 
According to the FIR the occurrence allegedly took place at 
8.30 pm in the dark night. Masood Ahmad Bhatti, Draftsman, (PW-1) 
has confirmed all the distances and points given in the scaled site 
plan. According to the same the distance shown between the deceased 
and the accused is twenty feet. How, in a dark night the witnesses 
were able to identify a dagger in the hands of the appellant and the 
appellant from such a distance. This site plan was prepared on the 
pointation of the alleged eye witnesses which has been tendered in 
evidence as Ex-PQ and has never been denied by the prosecution.  
13. 
 
Yet there is another glaring aspect of the case, the autopsy 
on the dead body was conducted at 11.15 am on 3.6.2003, the 
following day while the duration between death and postmortem 
examination is given 12-18 hours, thus, if the maximum time is taken 
into consideration, the one favourable to the accused, the time of 
occurrence would be round about 7.00 pm, thus, the medical evidence 
does not support in any manner the time of death of the deceased or 
to say the time of occurrence. The Medico Legal Officer (MLO) has 
further stated that the dead body was forwarded on 3.6.2003, while on 
the other hand, the Investigating Officer has falsely shown the 
forwarding of the dead body to the mortuary on 2.6.2003 
14. 
 
In column No.8-of the inquest report, the eyes and mouth 
of the deceased were found open, thus, if the parents, witnesses, and 
the two close friends were present then, at least after the death as is a 
consistent practice of such close relatives, they would have closed 
eyes and mouth of the deceased on his expiry. This fact by itself 
Crl. A. 176 / 2012 
7 
indicates that none was present with the deceased till his death and 
why his eyes and mouth remained open and were not set right by any 
one and his dead body was discovered late in the night.  
15. 
 
In a case of close relationship between the complainant 
party/ deceased and the accused, motive for murder crime assumes 
considerable importance because no nearer and dearer would like to 
kill his close relative without strong impulse by taking him into a 
boiling point wherefrom, the retraction is impossible but in the case in 
hand the motive set up was not only weak and feeble but also not 
established because the girl (daughter) of the complainant in whose 
presence the quarrel took place between the deceased and the 
appellant, was not produced at the trial. Again there is another 
doubtful aspect of the case because Nazar Hussain (PW-9), the father 
of the deceased who according to the FIR was stated to be guarding 
the dead body, on arrival of the local police to the spot, however, in 
the very examination in chief at page/20 of the paper book he has 
squarely stated that he joined the investigation after one month and 
one 
day 
after 
the 
occurrence. 
There 
is 
a 
long 
line 
of 
authorities/precedents of this court and the High Courts that even one 
or two days unexplained delay in recording the statement of eye 
witnesses would be fatal and testimony of such witnesses cannot be 
safely relied upon.  
16. 
 
The recovery of the crime knife/dagger speaks volumes 
about the true nature of the same because no evidence has been 
brought on record that the shop, wherefrom, it was recovered, was in 
an exclusive possession and ownership of the appellant. Again there is 
Crl. A. 176 / 2012 
8 
another intriguing aspect of the case that the shop was locked, nothing 
has been brought on record that who was in possession of the key and 
who unlocked the same. 
17. 
 
It is, normal practice and conduct of culprits that when 
they select night time for commission of such crime, their first anxiety 
is to conceal their identity so that they may go scot free unidentified 
and in that course they try their level best to conceal or destroy each 
piece of evidence incriminating in nature which, might be used against 
them in the future thus, human faculty of prudence would not accept 
the present story rather, after committing crime with the dagger, the 
appellant could throw it away anywhere in any field, water canals, well 
or other place and no circumstances would have chosen to preserve it 
in his own shop if believed so because that was susceptible to recovery 
by the police. 
18. 
 
Before parting with this judgment, we deem it essential to 
point out that, mere sending the crime weapons, blood stand to the 
chemical examiner and serologist would not serve the purpose of the 
prosecution nor it will provide any evidence to inter link different 
articles.  
19. 
 
We have noticed that the Punjab Police invariably indulge 
in such a practice which is highly improper because unless the blood 
stained earth or cotton and blood stained clothes of the victim are not 
sent with the same for opinion of serologist to the effect that it was 
human blood on the crime weapons and was of the same group which 
was available on the clothes of the victim and the blood stained 
earth/cotton, such inconclusive opinion cannot be used as a piece of 
Crl. A. 176 / 2012 
9 
corroboratory evidence. Therefore, copy of this judgment be sent to 
the Prosecutor General, Punjab, and Chief- Incharge of Investigation, 
Punjab Provincial Police to issue instructions to the investigating 
agencies in this regard. 
 
 
Accordingly, for the above reasons this appeal is allowed 
and the appellant is acquitted. These are the detailed reasons for our 
short order dated 18.1.2017, which is reproduced below:-  
 
 “For reasons to be recorded later, this appeal is allowed, 
the conviction and sentence awarded by the learned High 
Court through the impugned judgment dated 12.03.2010 
are set aside and the appellant is acquitted of all the 
charges. He be set free forthwith, if not required in any 
other case. “ 
 
 
Judge  
 
 
 
 
Judge  
 
 
 
 
Judge  
Islamabad, the   
18th January, 2017 
Sarfraz /-‘  
 
 
 
 
 
 
‘Approved for reporting’ 
