IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
PRESENT: 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
MR. JUSTICE ATHAR MINALLAH 
 
 
CRIMINAL APPEAL NO. 560 OF 2020 
(Against the judgment dated 24.01.2017 passed by the 
Lahore High Court, Lahore in Criminal Appeal No. 288-
J/2013 and Murder Reference No. 304/2013) 
 
Sarfraz, and 
Allah Ditta 
 
…Appellant(s) 
VERSUS 
The State  
 
…Respondent(s) 
 
For the Appellant(s): 
Mr. Sagheer Ahmed Qadri, ASC 
 
 
For the State: 
Mirza Muhammad Usman, DPG 
 
 
For the Complainant: 
Nemo 
 
 
Date of Hearing: 
02.01.2023 
 
JUDGMENT 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants were tried by the 
learned Additional Sessions Judge, Pindi Bhattian, pursuant to a case 
registered vide FIR No. 170 dated 13.06.2011 under Sections 302/34 PPC 
at Police Station Sukheke, Hafizabad for committing murder of Haq Nawaz 
and his wife Mst. Tharri Bibi, cousin and sister-in-law of the complainant. 
The deceased were also parents of appellant Sarfraz. The learned Trial 
Court vide its judgment dated 11.09.2013 convicted the appellants under 
Section 302(b) PPC and sentenced them to death on two counts. They 
were also directed to pay compensation amounting to Rs.300,000/- to the 
legal heirs of each deceased or in default whereof to further undergo SI for 
six months on each count. In appeal the learned High Court maintained 
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the conviction and sentence of death awarded to the appellants by the 
learned Trial Court. The amount of compensation and the sentence in 
default whereof was also maintained. Being aggrieved by the impugned 
judgment, the appellants filed Jail Petition No. 81/2017 before this Court 
wherein leave was granted by this Court vide order dated 09.09.2020 and 
the present appeal has arisen thereafter.  
2. 
 
The prosecution story as given in the impugned judgment 
reads as under:- 
“2. Brief facts of the case as narrated in the FIR recorded on the written 
application (Ex PA) filed by Muhammad Bashir son of Rasheed Ahmad are 
that I am resident of Nawan Maneka and is agriculturist by profession. On 
13.6.2011, my cousin Haq Nawaz son of Muhammad Hussain, caste 
Maneka Bhatti, resident of Deh informed me through telephone that his 
son Sarfraz is giving threats to him that he would kill him if land is not given 
to him. On which, I along with Muhammad Khan son of Saif Ali, caste 
Bhatti, resident of Deh came at Dera of Haq Nawaz (deceased), where he 
was present on roof. We sat at roof along with Haq Nawaz and his wife 
Tharri Bibi, when we were discussing the matter at about 12.30 night, 
Sarfraz Ahmad son of Haq Nawaz Bhatti, Allah Ditta alias Mangu son of 
Allah Yar, Muslim Sheikh and one unknown person came at roof of the 
Dera. Sarfraz demanded land from Haq Nawaz who refused and replied 
that you had already taken your share of land and sold the same and now 
you had no share in the land. On this, Sarfraz brought out pistol from his 
Shalwar and fired a burst hitting on head of Haq Nawaz who succumbed to 
injuries at the spot. Then Allah Ditta inflicted a hatchet blow on face of my 
Bhabi Tharri Bibi wife of Haq Nawaz, which cut left side of her mouth. 
Tharri Bibi also succumbed to injuries at the spot. Sarfraz committed 
murder of my cousin and Bhabi on abetment of his brothers-in-law Altaf 
Hussain, Ikram Hussain sons of Munawar and Munawar son of unknown, 
caste Maneka Bhatti, resident of Chak Qadir, Tehsil & District Hafizabad 
who told the accused that if he would murder his parents he could get the 
whole land. This occurrence was witnessed by me, Muhammad Khan and 
Arslan son of Haq Nawaz, when we tried to rescue the deceased, accused 
also gave threats to us and fled away from the spot; hence, this FIR.”  
 
3. 
 
After completion of the investigation, report under Section 
173 Cr.P.C. was submitted before the Trial Court. The prosecution in order 
to prove its case produced eleven witnesses. In their statements recorded 
under Section 342 Cr.P.C, the appellants pleaded their innocence and 
refuted all the allegations leveled against them. However, they did not opt 
to appear as their own witness on oath as provided under Section 340(2) 
Criminal Appeal No. 560/2020 
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Cr.P.C in disproof of the allegations leveled against them. They also did not 
produce any documentary evidence.  
4. 
 
At the very outset, learned counsel for the appellants argued 
that it was an unseen occurrence and the prosecution witnesses of the 
ocular account were not present at the spot. Contends that there are 
glaring contradictions and dishonest improvements in the statements of 
the eye-witnesses, which escaped the notice of the learned courts below. 
Contends that the prosecution witnesses were not residents of the place 
where the occurrence had taken place and they have not given any 
plausible explanation for their presence at the spot at the relevant time. 
Contends that the prosecution witnesses are interested, therefore, their 
evidence has lost its sanctity and the conviction cannot be based upon it. 
While reiterating the arguments at the time of grant of leave, he 
submitted that Arslan, son of the deceased, who was inmate of the house 
was given up and thus the prosecution withheld best evidence by not 
producing him. Contends that the prosecution has not been able to prove 
motive as alleged, which causes serious dent in the prosecution case. 
Contends that the occurrence took place in the dark hours of the night but 
no source of light has been mentioned by the prosecution. Contends that 
the recoveries of weapon of offence from the appellants are 
inconsequential and cannot be made basis to sustain conviction of the 
appellants. Lastly contends that the reasons given by the learned High 
Court to sustain conviction of the appellants are speculative and artificial 
in nature, therefore, the impugned judgment may be set at naught. 
5. 
 
On the other hand, learned Law Officer vehemently opposed 
this appeal on the ground that the eye-witnesses had no enmity with the 
appellants to falsely implicate them in this case. It has been contended 
that the eye-witnesses have reasonably explained their presence at the 
spot at the relevant time, which is quite natural and probable and the 
medical evidence is also in line with the ocular account, therefore, the 
appellants do not deserve any leniency from this Court.  
Criminal Appeal No. 560/2020 
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6. 
 
We have heard learned counsel for the parties at some 
length and have perused the evidence available on the record with their 
able assistance.  
7. 
 
It is cardinal principle of criminal jurisprudence that each 
criminal case has its own facts, which has to be dealt with according to its 
peculiar facts and circumstances. The present case is the glaring example 
of the same wherein the complainant of this case, who was not the inmate 
of the house rather was cousin of the deceased Haq Nawaz, had to lodge 
the crime report when admittedly he was residing six kilometers away 
from the place of occurrence. Prior to taking into consideration the 
contents of the crime report, few aspects of the case qua, (i) motive, (ii) 
time of occurrence, (iii) manner of occurrence, and (iv) subsequent events, 
are essential for their determination to arrive at a just conclusion in the 
interest of safe administration of criminal justice. Besides, as per contents 
of the crime report, the occurrence had taken place at 12:30 am on 
13.06.2011 whereas the FIR was lodged at 01:30 am, which clearly reflects 
that the same was registered without any inordinate delay. Perusal of the 
crime report reflects that the aforesaid crime report was incorporated in 
response to Rapat No. 32 dated 13.06.2011, which was lodged in response 
to an application received by Arif Ishaq, ASI/Duty Officer of Police Station 
Sukheki on 13.06.2011. During the course of proceedings before the Trial 
Court, the complainant Muhammad Bashir (PW-1) stated before the Court 
that he moved an application (Ex.PA) for registration of case, which bears 
his signature, without disclosing time and the name of the subscriber of 
the application. He further stated before the Court that he proceeded 
towards Police Station on a motorbike along with Muhammad Khan (PW-
2) and reached there within 15 minutes after the occurrence i.e. 
approximately at 01:30 am. It is not mentioned anywhere that where and 
when this application was drafted when it is an admitted fact that the 
“Police Karvai” was conducted in Police Station. The whole proceedings 
narrated by Muhammad Bashir (PW-1) are squarely contradicted by 
Muhammad Khan (PW-2) as according to him Police arrived at the place of 
occurrence and completed every aspect of investigation i.e. (i) collection 
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of crime empties, (ii) blood stained earth from both places where 
deceased were done to death, (iii) recorded statements of PWs including 
Muhammad Khan (PW-2) at the spot by the Investigating Officer. 
Muhammad Sahara, Investigating Officer while appearing as PW-11 stated 
in the court that he visited the place of occurrence and performed “Police 
Karvai” as per rules. He also assigned Sikandar Hayat, Constable, to escort 
the dead bodies to mortuary for conducting post-mortem examination. All 
these statements are contradictory to each other on salient features, 
which creates dent in the genuineness of prosecution version, especially 
when it is an admitted fact that complainant is a distant relative residing at 
a distance of 6 kilometers while real son of deceased namely Arsalan who 
was inmate of the same house is absent in every material aspect of the 
case, which is a serious lapse. All this makes it clear that the complainant 
was not present at the place of occurrence at the relevant time. This Court 
being the Court to do complete justice under Article 187 of the 
Constitution of Islamic Republic of Pakistan, 1973, is under bounden duty 
to scrutinize each and every bit of “crime report”. At the same time, it is 
the duty of this Court to scrutinize other aspects surfaced during the 
course of proceedings before the Trial Court to decide the lis to avoid any 
injustice to either of the party. There is no denial to this fact that the 
occurrence had taken place in the odd hours of the night. However, no 
source of light has been mentioned by the Investigating Officer either in 
the FIR, rough site plan, scaled site plan or even during the course of 
proceedings before the Trial Court.  
8. 
 
As far as ocular account furnished by Muhammad Bashir, 
complainant (PW-1) and Muhammad Khan (PW-2) is concerned, 
admittedly, both these witnesses were not residents of the locality and 
were residing at a distance of 5/6 kilometers away from the place of 
occurrence. It is an apathy to point out that not a single person from the 
inmates of the house or from surrounding inhabitants appeared in support 
of the prosecution version and the whole prosecution case is silent about 
this aspect of the matter. It is claim of Muhammad Bashir, complainant, 
that he had received telephonic call from the deceased at 05:00 pm that 
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his son i.e. appellant Sarfraz is demanding his share of land from 
inheritance in the lifetime of his father. He also threatened him that if he 
did not do so he would kill him. Thereafter, the complainant informed 
Muhammad Khan (PW-2) at about 06:00/06:15 pm and reached the 
dera/house of said Muhammad Khan at about 06:30 pm. As Muhammad 
Khan was taking meal, the complainant remained present at his house for 
about half an hour and then both of them went to the residence of 
deceased Haq Nawaz on a motorbike and reached there at 8/8:30 PM. We 
have noticed that the time consumed by them in approaching the place of 
occurrence could be hardly half an hour. However, according to 
complainant’s own showing, he reached the residence of the deceased 
after one and half hour. The whole record is silent as to what the PWs 
remained doing in the residence of the deceased during the interregnum 
period, which clearly reflects that they were not present at the place of 
occurrence, rather they managed to appear as witnesses after due 
consultation and deliberation. No record of either the deceased making 
the call or the complainant receiving the call was produced on record. 
During cross-examination, the complainant admitted that his sister was 
married with one Nasar and a dispute took place between the said Nasar 
and Haq Nawaz deceased over the property. The said Nasar had also 
caused firearm injury to the deceased and pertaining to said occurrence, 
FIR was also registered. He also admitted that in the said case, he had 
supported said Nasar and the occurrence had taken place due to his cause. 
The admission of the complainant clearly makes it essential that he was 
inimical towards the deceased Haq Nawaz. In such circumstances, it seems 
impossible that deceased would have invited an inimical person for his 
help.  
9. 
 
Another 
very 
material 
aspect, 
which 
requires 
its 
interpretation because it can hit the root of prosecution case is that 
Arsalan, who was son of the deceased and was stated to have witnessed 
the occurrence, was given up at the time of trial. In view of the above, the 
claim of the defence that it was an unseen occurrence and the appellants 
have been made scapegoat with mala fide intention to grab the whole 
Criminal Appeal No. 560/2020 
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ancestral property belonging to the deceased carries much weight. Article 
129 of the Qanoon-e-Shahadat Order, 1984, empowers the court to 
presume the existence of any fact, which it thinks likely to have happened 
with regard to common course of natural events, human conduct and 
public and private business, in their relation to the facts of the particular 
case. In Mst. Zarsheda Vs. Nobat Khan (PLD 2022 SC 21), it was held that 
“adverse inference for non-production of evidence is one of the strongest 
presumptions known to law and the law allows it against the party who 
withholds the evidence”. In Muhammad Naeem Khan Vs. Muqadas Khan 
(PLD 2022 SC 99), this Court while relying on Article 129 of the Qanoon-e-
Shahadat Order candidly held that “where a party keeps hold of the 
witnesses, the presumption would be that if such witnesses were 
produced, their testimony must be against him, therefore, adverse 
inference of withholding evidence goes against the party who failed to call 
the concerned person engaged in the transaction, who was in a better 
position to give firsthand and straight narrative of the matter in 
controversy”. In Mst. Shahnaz Akhtar Vs. Syed Ehsan ur Rehman (2022 
SCMR 1398) this Court observed that “presumption is a rule of law that 
ascribes a straightforward probative denomination to accurate statistics 
and fosters a high degree of probability unless upset and annulled by 
evocative proof to the satisfaction of the Court and in the event of two 
equal presumptions, the Court may prefer that which best accords to the 
facts and circumstances of the case”. Reliance is also placed on 
Muhammad Jabran Vs. The State (2020 SCMR 1493) & Muhammad Sarwar 
Vs. Mumtaz Bibi (2020 SCMR 276).  
10. 
 
As far as motive part of the prosecution story is concerned, 
appellant Sarfraz had been given his share of the land from inheritance by 
his father i.e. the deceased Haq Nawaz, which was allegedly sold out by 
him but still he was claiming his share. Perusal of the record clearly reveals 
that no details of the property, which was inherited by the deceased 
father and the share of the land which was earlier given to the appellant, 
has been given. It is now well established that if a specific motive has been 
alleged by the prosecution then it is duty of the prosecution to establish 
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the said motive through cogent and confidence inspiring evidence. 
Otherwise, the same would go in favour of the accused. Admittedly, the 
Investigating Officer had collected one crime empty from the place of 
occurrence on 13.06.2011. The weapon of offence i.e. .30 bore pistol was 
allegedly recovered on the pointation of the appellant Safraz on 
28.06.2011. Thereafter, both the crime empty and the weapon of offence 
were sent to Punjab Forensic Science Agency together. This Court in a 
number of cases has held that if the crime empty is sent to the Forensic 
Science Laboratory after the arrest of the accused or together with the 
crime weapon, the positive report of the said Laboratory looses its 
evidentiary value. Sending the crime empties together with the weapon of 
offence is not a safe way to sustain conviction of the accused and it 
smacks of foul play on the part of the Investigating Officer simply for the 
reason that till recovery of weapon, he kept the empties with him for no 
justifiable reason. Blood stained hatchet was also allegedly recovered on 
the pointation of appellant Allah Ditta from his house after 15 days of the 
occurrence. Such recovery is not worth believing as it was not expected 
from the accused to keep blood stained weapon at his house as there was 
ample time to destroy or washout the said weapon. Even otherwise, 
admittedly the said house was a joint house wherein the other members 
of the appellant’s family were also residing. In these circumstances, the 
recoveries are inconsequential.  
11. 
 
Mere heinousness of the offence if not proved to the hilt is 
not a ground to punish an accused. It 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. The peculiar facts and circumstances of 
the present case are sufficient to cast a shadow of doubt on the 
prosecution case, which entitles the appellants 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 go to the accused. This 
Court in the case of Mst. Asia Bibi Vs. The State (PLD 2019 SC 64) while 
Criminal Appeal No. 560/2020 
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relying on 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 (1995 SCMR 1345) and Ayub Masih v. The State 
(PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar vs. 
State (2019 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. The 
conviction must be based on unimpeachable, trustworthy and reliable 
evidence. Any doubt arising in prosecution case is to be resolved in favour 
of the accused. However, as discussed above, in the present case the 
prosecution has failed to prove its case beyond any reasonable shadow of 
doubt. 
 
12. 
 
For what has been discussed above, this appeal is allowed 
and the impugned judgment is set aside. The appellants are acquitted of 
the charge. They shall be released from jail unless detained/required in 
any other case. The above are the detailed reasons of our short order of 
even date.  
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
2nd of January, 2023 
Approved For Reporting 
Khurram 
