Full Judgment Text & Judicial Ruling

2026 M L D 221 [Lahore] Before Aalia Neelum, C.J and Abher Gul Khan, J Ihsan Illahi alias Shani---Appellant Versus The State and another---Respondents Criminal Appeal No. 67614 of 2019 and Murder Reference No. 33 of 2020, decided on 3rd April, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of 31 hours in lodging the FIR---Consequential---Accused were charged for committing murder of the son of complainant by firing---Occurrence took place on 01.11.2017 at about 2:00 p.m. in a Mauza situated at a distance of 4-kilometers from Police Station---Law regarding that occurrence was set into motion through written application of complainant presented before Police Officer on 02.11.2017 at about 9:30 p.m. in the police station which was transformed into formal FIR---From this aspect, it manifested that the matter was reported to police with the delay of about 31 hours---Nothing was found to explain such an unwarranted delay in the registration of FIR---Prosecution though made an endeavour to cover this delay by portraying that firstly deceased in injured condition was taken to DHQ Hospital, for the purpose of medical treatment from where he was referred to General Hospital, L-(Lahore), thus the delay in reporting the matter to the police was ignorable---However, in this regard, it was noticed that when deceased in injured condition was shifted to DHQ Hospital, he was given medical treatment by Medical Officer and according to Medical Officer, the injured was brought by Head Constable on 01.11.2017 at about 3:20 p.m.---To bring the injured to the hospital by a Police Official showed that the matter had already come in the knowledge of the police within 1-hour and 20-minutes---However, it was not the case of prosecution that the complainant tried to get recorded his statement to police who refused to reduce it into writing to set the criminal law into motion---Apart from the statement of injured who gave the medical history to Medical Officer regarding the criminal assault by two unknown persons till filing of complaint, no version was recorded by the complainant to police while nominating the accused with specification---Claim of the prosecution was that two eye-witnesses saw the incident and they informed it to the complainant---Question in such circumstances arose that what made the eye-witnesses to keep mum for about 31-hours in reporting the crime to the police---Moreover, complainant during cross-examination categorically admitted that he got drafted the application from an individual from district Court/Katchari---Name of the such person was not found on record from whom the complainant got drafted the complaint---Furthermore, neither the scribe of the complaint was produced before the Investigating Officer nor at trial stage to prove that he drafted the complaint at the dictation of the complainant---Admittedly the complainant was not an eye-witness of the incident and whatever he mentioned in the complaint was told to him by the alleged two eye-witnesses---In these circumstances, the delay of 31-hours in chalking out the FIR raised eyebrow regarding the authenticity of the prosecution case---Delay in reporting the matter to the police gave rise to possibility of concoction and fabrication of facts mentioned in the crime report warranting more cautious approach from the Court---Appeal against conviction was allowed, in circumstances. Wajahat Ahmed and others case v. The State and others 2016 SCMR 2073 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by eye-witnesses---Accused were charged for committing murder of the son of complainant by firing---Ocular account in the case was furnished by two eye-witnesses---Statements of the two eye-witnesses showed that while appearing before the Trial Court, both of them made dishonest improvements and omissions in their statements---According to eye-witness, he along with his brother/other eye-witness was standing outside the shop---Said eye-witness further stated that after the occurrence he and his brother informed their father about the incident and all the three escorted deceased in injured condition to hospital---Such stance of eye-witness was confronted with his police statement where it was not so recorded---Contrarily, other eye-witness during cross-examination took the stance that he along with his brother was present at the shop of his brother/deceased---During cross-examination said witness also stated that in his statement, he took the stance that five fire shots hit on left side of abdomen, left wrist, thigh of left leg, left foot and upper side of knee of right leg of deceased---However, when such portion of cross-examination was confronted with his police statement, the specifications of locale and seat of injuries were not found therein---Besides said omissions, the statements of the two eye-witnesses were further found polluted with numerous other improvements and omissions---By doing so, eye-witnesses compromised their integrity thereby leaving a big question mark over their credibility---Appeal against conviction was allowed, in circumstances. Ibrar Hussain and others 2007 SCMR 605 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot not proved---Accused were charged for committing murder of the son of complainant by firing---As per statement of Medical Officer, the injured was brought to hospital by Head Constable, however the name of none of the eye-witness was mentioned in the Medico-Legal Certificate---Said feature made it clear that had any of the eye-witness been present at the place of occurrence his name would have been reflecting in the Medico-Legal Certificate prepared by Medical Officer---Both the eye-witnesses along with the complainant in their examination-in-chief stated that they shifted the injured to hospital in injured condition---However, during the course of cross-examination, all the three witnesses took a somersault by stating that the injured was shifted to hospital through Rescue-1122---Furthermore, neither the driver of ambulance nor that of Rescue-1122 appeared in the witness box during trial---Likewise, no documentary evidence or record from Rescue-1122 was presented during trial---During cross-examination all the said three witnesses miserably failed to address the said shortcoming and did not give any answer, which might have inspired confidence---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence belying ocular account---Accused were charged for committing murder of the son of complainant by firing---Perusal of the Medico-Legal Certificate unfolded that Medical Officer noted four entry wounds on left side of abdomen, left forearm, right knee joint and left upper leg of deceased---However, said witness in examination-in-chief stated that deceased in injured condition was brought by Head Constable with the "history of fight, firearm injury hit by two persons"---Said witness also stated that the injured was "vitally stable well oriented in time and space"---According to the Medical Officer, the injured received injuries as a result of fight and not due to the criminal assault launched by anybody---Secondly, as per prosecution's own case the complainant had already got registered two FIRs against the appellant who was none other than paternal cousin of the deceased---Thus, there was no question of mistaken identity but the injured did not disclose the name of the appellant before the Medical Officer---Even said Medical Officer during cross-examination admitted that had the injured told the name of any person he would have mentioned the same in brief history---After the incident deceased remained alive for almost 18-days and according to Medical Officer, he was stable but no application was moved by any of the Investigating Officer to record his statement---Such conduct of the Investigating Officer also made the prosecution case highly doubtful---Medical Officer while conducting postmortem examination of the deceased noted four entry wounds in Medico-Legal Certificate, however, during cross-examination he categorically admitted the variation and location of injuries between the Medico-Legal Certificate and Post Mortem Report on the body of the deceased---In such circumstances, the medical evidence was also of no help to the prosecution---Appeal against conviction was allowed, in circumstances. (e) Criminal trial--- ----Medical evidence---Scope---Medical evidence served as a form of corroborative piece of evidence---Medical evidence could validate the version of the prosecution regarding the location and nature of injury, the type of weapon involved in the incident and the time elapsed between death and postmortem examination---However, it did not establish the identity of the perpetrator. Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the son of complainant by firing---Record showed that the motive was canvassed as the registration of two criminal cases i.e. FIR No.116/2014 under Ss.324,109 & 34, P.P.C, and FIR No.297/2017 under S.324, P.P.C, both registered, against the appellant and in both the cases he was proclaimed offender---In that regard, it was observed that in support of projected motive, except oral assertion, no material was placed on record---Registration of previous criminal cases, purportedly registered against the appellant, could easily be proved by tendering in evidence the copies of FIRs---What to talk of placing on record the copies of said FIRs, the witnesses failed to give its particulars while appearing before the Trial Court---Furthermore, complainant during cross-examination admitted that the appellant was not convicted in any of the criminal cases registered against him---Complainant further admitted that while lodging the FIR, he mentioned that he got registered the two FIRs, however one was registered by him and the other was got registered by his son---During the course of cross-examination, the complainant admitted that the sister of the appellant was the wife of son of complainant who kicked her out along with children and she filed a petition under S.491, Cr.P.C., whereby she obtained the custody of her children from Sessions Judge---In such circumstances, the petition under S.491, Cr.P.C., filed against complainant's son could also be considered a factor for the false implication of the appellant in the instant case---Motive on occasions provides corroboration to the case of prosecution and often becomes a root cause for the false implication of an accused and for that reason is always considered as a double-edged weapon---Appeal against conviction was allowed, in circumstances. Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot doubtful---Accused were charged for committing murder of the son of complainant by firing---Record showed that a pistol was recovered from the appellant which matched with five crime empties secured from the spot---Complainant as well as the two eye-witnesses during their respective cross-examination specifically admitted that on 01.11.2017 police prior to the registration of FIR visited the crime scene, however no crime empty was secured from the spot at the time of first visit of police---According to the first Investigating Officer, he visited the spot on 02.11.2017 and took into possession blood stained cotton and five crime empties of .30 bore pistol through recovery memos---In that regard, Investigating Officer also prepared site plan, the perusal of which unfolded that he collected five crime empties from Point-D which was a thoroughfare situated in front of the shop of the deceased---Admittedly, Investigating Officer visited the spot after more than one and a half day of the incident and the place of recovery of crime empties was a thoroughfare---Hence, it seemed not plausible that the crime empties remained lying at the spot, which were not taken into notice by police on 01.11.2017 and nobody removed the same in spite of free public movement---Appeal against conviction was allowed, in circumstances. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Safe custody of weapon of offence, crime empties and blood stained cotton and its safe transmission to the laboratory not established---Accused were charged for committing murder of the son of complainant by firing---Prosecution produced Head Constable who deposed that on 02.11.2017 Investigating Officer handed over to him two sealed parcels said to contain blood stained cotton and crime empties of pistol.30 bore which he kept the same in safe custody in Malkhana and on 08.12.2017 he handed over the said parcel to Police Official for depositing the same in the office of Forensic Science Agency---However, said Police Official did not utter a single word regarding the fact that on 02.11.2017 he handed over the parcel of crime empties to Head Constable and took the said parcel from him on 08.11.2017 for depositing the same in the office of Forensic Science Agency---In the wake of this fact, the positive report received from the Forensic Science Agency was of no use to the prosecution because the chain of safe custody was missing, which created serious doubt about the recovery of .30 bore pistol alleged to be used as a weapon at the crime scene---Appeal against conviction was allowed, in circumstances. Kamal Din alias Kamala v. The State 2018 SCMR 577 rel. (i) Criminal trial--- ----Absconsion of accused---Scope---Abscondment of an accused is a corroborative piece of evidence and in cases where direct evidence fails, corroborative piece of evidence is of no avail. Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 rel. Criminal trial--- ----Benefit of doubt---Principle---Single factor that raises doubt qua the prosecution case is considered sufficient for the acquittal of accused. Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel. Ch. Tariq Mahmood Ghumman and Muhammad Shahzad Saeed, assisted by Maqbool Ahmad Qureshi Defence Counsel at State expenses for Appellant. Fahad-ur-Rehman for the Complainant. Rana Ahsan Aziz, Additional Prosecutor General for the State. Date of hearing: 3rd April, 2025. Judgment Abher Gul Khan, J.---Ihsan Ilahi alias Shani (appellant) involved with case FIR No.391/2017 dated 02.11.2017 registered under Sections 302,324 and 34, P.P.C at Police Station Ganda Singh Wala, District Kasur, was tried by learned Additional Sessions Judge/Judge MCTC, Kasur. Trial court vide judgment dated 02.11.2019 convicted and sentenced the appellant in the following terms:- Under Section 302(b), P.P.C to suffer death sentence as ta zir. He was also directed to pay compensation of Rs.5,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of Muhammad Sufian (deceased) and in default of payment of compensation to undergo simple imprisonment for six months. Challenging his conviction and sentence, Ihsan Ilahi alias Shani (appellant) filed Criminal Appeal 67614 of 2019 whereas trial court forwarded a reference which was numbered as Murder Reference No.33 of 2020 under Section 374, Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Ihsan Ilahi alias Shani. Both these matters are being decided through this single judgment. 2. Epitomized facts of the case of the prosecution put forward in the shape of complaint (Exh.PD) presented by Shaukat Ali (PW.7) on the basis of which FIR (Exh.PA) was registered are that he is resident of Mauza Burj Kalan and serving in Health Department as Naib Qasid. On 01.11.2017 at about 2:00 p.m., his son Muhammad Sufian was sitting on his grocery shop. Meanwhile Ihsan Illahi along with an unknown accused armed with pistols suddenly emerged there. Ihsan Ilahi in order to kill Sufian made five straight fire-shots which landed on his right side of abdomen, left wrist, right knee, left buttock and left foot. The unknown accused continued making firing just to create terror. The occurrence was witnessed by his sons Akram and Ghazanfar Ali. The motive behind the occurrence was that the complainant had already got registered two FIRs i.e. 116/2014 under Sections 324,109 and 34, P.P.C and 297/2017 under Section 324, P.P.C at Police Station Ganda Singh Wala and in the said cases Ihsan Ilahi was declared proclaimed offender. 3. After the incident Shaukat Ali complainant (PW.7) presented application (Exh.PD) before Mohsin Raza SI (PW.1) on the basis of which FIR (Exh.PA) was chalked out. Subsequent thereto, the investigation of the instant case was entrusted to Naseer Ahmad ASI (PW.13) who on 02.11.2017 along with other police officials reached at the place of occurrence and inspected the spot. He recorded the supplementary statement of the complainant to the effect that Akram and Ghazanfar who were eye-witnesses informed him about the incident. From the spot, he secured blood stained swabs through memo. Exh.PH. He collected five crime empties of .30 bore pistol vide memo. Exh.PG. He also prepared unscaled site plan (Exh.PR). Thereafter he visited DHQ Hospital, Kasur where medical officer handed over to him wearing clothes of the injured Sufian which were secured vide memo. Exh.PJ. On 15.11.2017 he obtained non-bailable warrants of arrest of the appellant (Exh.PP) and handed over to Ashraf Constable for execution. On 19.11.2017 Sufian injured succumbed to the injuries and the task of investigation was assigned to Iftikhar Ahmad SI (PW.12). On 19.11.2017 he visited DHQ Hospital, Kasur inspected the dead body, prepared inquest report (Exh.PM), drafted application for postmortem examination (Exh.PN), prepared injury statement (Exh.PO) and handed over the corpse to Akhtar Hussain Constable along with relevant documents for autopsy. The non-bailable warrants of arrest of the appellant already entrusted to Muhammad Ashraf Constable for execution were received, which again were entrusted to Akhtar Hussain Constable for execution on 22.11.2017. On 15.01.2018 Akhtar Hussain returned to him non-bailable warrants of arrest of the appellant un-executed on the basis of which on 13.03.2018 he obtained proclamation (Exh.PQ). On 18.01.2019 the appellant was nabbed in another case by Shafqat Ali ASI and on the same day he formally arrested him in the instant case. On 30.01.2019 the appellant made disclosure and in pursuance thereof led to the recovery of pistol (P.1) which was taken into possession through memo. Exh.PF. On 20.02.2019 he handed over the file to SHO for preparation of report under Section 173, Cr.P.C. 4. The prosecution produced 14 witnesses in total to prove its case against the appellant. Dr.Mohsan Raza Shirazi (PW.6) and Dr.Sami Ullah furnished the medical evidence, Shaukat Ali complainant (PW.7) narrated the tale of occurrence as per contents of the FIR, Ghazanfar Ali (PW.8) and Muhammad Akram (PW.9) entered appearance in the witness box as witnesses of ocular account, whereas, Iftikhar Ahmad SI (PW.12) and Naseer Ahmad SI (PW.13) investigated this case. The remaining PWs were more or less formal and acted according to the law to aid and support the investigation. 5. On 01.11.2017 Dr.Mohsan Raza Shirazi (PW.6) at about 3:20 p.m. conducted the medico legal examination of Muhammad Sufian and noted the following injuries:- (i) An entry wound measuring 0.5 cm x 0.5 cm margin inverted present on left side of abdomen DNP. Advice x-ray abdomen. (ii) A. An entry wound measuring 0.5 cm x 0.5 cm margin inverted present on outer side of left forearm. 5 cm from wrist joint. Advice x-ray left forearm. B. An exit wound margin everted margin 2 cm x 1 cm present on inner side of left forearm. Advice x-ray left forearm. AP let view. (iii) An entry wound measuring 0.5 cm x 0.5 cm margin inverted present on inner side right knee joint. Advice x-ray right knee joint. (iv) A. an entry wound measuring 0.5 cm x 0.5 cm margin inverted present on outer side of left upper leg 7 cm from knee joint. Advice x-ray left upper leg. B. An exit wound measuring 1.5 cm x 1.5 cm margin everted present on back side of left upper leg 8 cm from knee joint. Advice x-ray left upper leg. (v) A grazing wound measuring 2 cm x 1 cm present on outer and inner side of left foot muscle injured. The doctor declared injury No.5 as 337-F(iii), P.P.C i.e. ghyr-jaifah-mutalahimah and rest of the injuries were KUO for x-ray and operation notes. The doctor opined that there was no possibility of fabrication. 6. On 19.11.2017 at about 7:30 p.m. Dr.Sami Ullah (PW.11) conducted the autopsy of Sufian and observed the following injuries:- 1. An entry wound measuring .5 x .5 cm with inverted margins present on left side of abdomen. 2-A. An entry wound measuring .5 x .5 cm present on inner and front side of left forearm. 2-B. A stitched wound measuring 3 x .5 cm present on back side of the forearm. 3-A. An entry wound 1 x .5 cm present on outer side of left thigh. 4-A. An entry wound measuring .5 x .5 cm present on lateral side of right lower leg. 4-B. An exit wound measuring 3 x 1 cm present on inner side or right knee joint. According to the opinion of the doctor, the cause of death was shock and haemorrhage and injuries to vital organs. The doctor described the duration between injuries and death was within 19-days and between death and postmortem was within 5-8 hours. 7. After the conclusion of prosecution evidence, Ihsan Ilahi alias Shani (appellant) was examined under section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false implication with the case. Appellant opted not to make statement under Section 340(2) of Cr.P.C., however produced certain documentary evidence in his defence. On the conclusion of trial, Ihsan Ilahi (appellant) was convicted and sentenced as afore-stated, hence the instant criminal appeal and murder reference. 8. It is contended by learned counsel for the appellant that there is a delay of about 31-hours in lodging the FIR for which no plausible explanation was tendered by the prosecution. The witnesses who entered appearance before the Court to narrate the ocular account are chance witnesses and they failed to prove their presence at the place of occurrence. The eye-witnesses made material improvements with dishonest intention in order to strengthen the prosecution case. There are glaring contradictions between the medical and ocular account. The motive set out in the FIR remained unproved. The recovery of pistol is also of no use for the prosecution as the same was foisted upon the appellant in violation of provisions of Section 103, Cr.P.C. In the said circumstances, it was argued that since the prosecution could not prove its case against the appellant beyond scintilla of any doubt, hence the conviction and sentence awarded to the appellant are liable to be set-aside. 9. On the other hand, learned law officer well assisted by learned counsel for the complainant argued with vehemence that after the occurrence the foremost priority for the complainant was to save the life of his son, thus the delay occasioned in the registration of FIR was due to shifting the injured to the hospital. The eye-witnesses successfully proved their presence at the place of occurrence. The medical evidence is in line with the ocular account. After the occurrence the appellant remained absconder for a long period and such conduct of the appellant is sufficient to establish his guilt. The motive in this case is well established. The positive report of PFSA through which the crime empties secured from the spot were matched with the weapon recovered from the appellant is yet another factor to establish his culpability. In such situation, it was urged that the conviction and sentence awarded to the appellant need no interference from this Court. 10. We have gone through…

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