Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2025 LHC 3133
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Muhammad Ejaz alias Mithoo Shah and others vs The State & others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2025 LHC 3133. In this matter between Muhammad Ejaz alias Mithoo Shah and others and The State & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025LHC3133
Court Name: Lahore High Court Judge(s): Aalia Neelum, Abher Gul Khan Title: Muhammad Ejaz alias Mithoo Shah and others vs The State & others Case No.:Criminal Appeal No.57018 of 2021, Criminal Appeal No.57020 of 2021,
JUDGMENT
Reported As: 2025 LHC 3133 Result: Appeal Dismissed Judgment
JUDGMENT Abher Gul Khan, J. Muhammad Ejaz alias Mithoo Shah and Muhammad Zulqarnain alias Zulli (appellants) along with two others, namely, Aamir Shahzad alias Asif and Mulazim Hussain involved with case FIR No.523/2019 dated 28.12.2019 registered under Sections 302, 324, 148 & 149 PPC at Police Station Bhera District Sargodha, were tried by learned Additional Sessions Judge, Bhalwal, District Sargodha. Trial Court vide judgment dated 24.08.2021 while acquitting accused Aamir Shahzad alias Asif and Mulazim Hussain convicted and sentenced the appellants as under:- 1.Muhmmad Ejaz alias Mithoo Shah (appellant) Under Section 302(b) PPC to suffer death sentence as to'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 deceased which was ordered to be recovered as arrears of land revenue. 2.Muhammad Zulqarnain alias Zulli (appellant) Under Section 302(b) PPC to suffer imprisonment for life 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 deceased which was ordered to be recovered as arrears of land revenue. Benefit of Section 382-B Cr.P.C., however, was extended to him. Challenging their conviction and sentence, Muhammad Ejaz alias Mithoo Shah and Muhammad Zulqarnain alias Zulli (appellants) filed two separate appeals i.e. Criminal Appeal No.57018 of 2021 & Criminal Appeal No.57020 of 2021 respectively, whereas Syed Muhammad Sibtain Shah
---
## Page 2
(complainant) filed Criminal Appeal No.32181 of 2023 against the acquittal of Aamir Shahzad alias Asif & Mulazim Hussain (respondents No.1 & 2) and Criminal Revision No.32182 of 2023 for enhancement of sentence of Zulqarnain alias Zulli (respondent No.2). Likewise, trial court forwarded a reference which was numbered as Murder Reference No.146 of 2021 under Section 374 Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Muhammad Ejaz alias Mithoo Shah. All the matters are being decided through this single judgment. 2. Precisely stated the facts of the prosecution case as unfolded by Syed Muhammad Sibtain Shah in FIR (Exh.PM/1), chalked out on the basis of his written complaint (Exh.PM) are that on 28.12.2019 at about 02:15 p.m., Rizwan Haider (son of the complainant) and his friends Mudassar Abbas, Zia-ur- Rehman and Jani were going on two motorcycles to the house of Mudassar Abbas. When they reached at Noor Khanewala Nala near the Dera of Muhammad Khan, accused Ejaz Shah alias Mithoo Shah armed with pistol, Zulqarnain alias Zulli armed with pistol 30-bore, Aamir Shahzad alias Asif armed with rifle .44 bore and Mulazim Hussain armed with pistol along with two unknown accused, who were ambushed in the water channel (Nala), emerged there. Accused Zulqarnain exhorted to stop the motorcycles and made a fire shot with his pistol hitting on the right shin of Rizwan Haider. The second fire shot made by accused Ejaz Shah alias Mithoo Shah with his pistol hit Rizwan Haider at his back near left shoulder, whereas the fire shot made by accused Mulazim Hussain hit at the right heel of Zia-ur-Rehman. On hearing the sound of firing, Mazhar Hussain Shah and Syed Tehzeeb-ul-Husnain Shah, who were also behind them on their motorcycles arrived at the spot and witnessed the occurrence, upon which all the accused decamped therefrom. Motive behind the occurrence, as stated by the complainant, was that on the fateful day at about 01:00 p.m. an altercation took place between Mudassar Abbas and the accused through a mobile phone call. 3. On 28.12.2019 Syed Muhammad Sibtain Shah (complainant) presented an application (Ex.PM) before Fida Muhammad, ASI (PW.7) at Police Station Bhera, on the basis of which he got composed the FIR (Exh.PM/1) through computer operator. On the same day, Rana Muhammad Yousaf, SI/IO (PW.11) visited the place of occurrence, prepared inquest report (Exh.PF), drafted application (Exh.PE) for postmortem examination and handed over the dead body of Rizwan Haider to Husnain Ali, 854/C (PW.3) for escorting the same to mortuary of THQ Hospital, Bhera for autopsy. He prepared the rough site plan of the place of occurrence (Exh.PT), collected the blood stained earth from the place of murder of the deceased and secured the same through recovery memo Exh.PN. He further collected four crime empties of .30 bore pistol (P.11/1-4) through memo Exh.PP and took into possession motorcycle bearing No.1723-GTL through recovery memo Exh.PQ. On 29.12.2019 injured Zia-ur-Rehman joined the investigation and he prepared his injury statement (Exh.PH) and got conducted the medical examination of injured through Husnain Ali 854/C (PW.3). He arrested all the four accused on 21.01.2020. On 31.01.2020, accused Muhammad Ejaz alias Mithoo Shah made disclosure and got recovered pistol .30 bore (P.12) which was secured vide recovery memo Exh.PR. Accused Mulazim Hussain also got recovered pistol .30 bore (P.14) which was taken into possession through memo Exh.PR. Accused Zulqarnain got recovered pistol .30-bore (P.8) (P.9/1-2) which was seized vide memo Exh.PK, whereas, accused Aamir Shahzad alias Asif got recovered rifle .8 mm (P.10) which too was secured through memo Exh.PL. After complying with all the codal formalities Investigating Officer submitted report under Section 173 Cr.P.C against accused through concerned SHO. 4. During trial, prosecution in order to prove its case against the appellants and their co-accused produced Dr. Fawad Munawar (PW.4) and Dr. Shahid Mehmood Sial (PW.5) who furnished the medical evidence, Mazhar Hussain Shah (PW.8) and Tehzeeb-ulHusnain (PW.9) entered appearance in the witness box as witnesses of ocular account. Investigating Officer Rana
---
## Page 3
Muhammad Yousaf, S.I. was examined as PW.11 and the remaining PWs were more or less formal who acted according to the law to aid and support the investigation. 5. Dr. Shahid Mehmood (PW.5) on 28.12.2019 at about 09:45 p.m. conducted the autopsy of Rizwan Haider and noted the following injuries:- (i). A firearm wound of entrance 1 cm x 1 cm on left side of backside, 4 cm from midline with blackening. (ii). A firearm wound of entrance 1 cm x 1 cm on posterior aspect of right leg, 14.5 cm from lateral malleolus. (iii). A firearm wound of exit 2.5 cm x 1 cm on outer aspect of right left, 14.5 cm from medial malleolus. (iv). A firearm wound of entrance 1 cm x 1 cm on right foot, 3 cm from lateral malleolus. (v). A firearm wound of exit 2.5 cm x 1 cm, 2 cm away from wound of entry. In his opinion, death in this case occurred due to shock and hemorrhage because of collective effect of all the injuries, which were ante-mortem, caused by firearm and sufficient to cause death in ordinary course of nature. The doctor described the probable time elapsed between injuries and death as immediate and between death and postmortem about eight hours. Dr.Shahid Mehmood Sial (PW.5) on 29.12.2019 at about 10:00 a.m. medically examined Aziz-ul- Rehman (injured) and noted the following injury:- A lacerated wound of 2 cm x 1 cm on the edge of heel of right side of foot about 11 cm from medial malleolus. No gun powder seen. Dr. Fawad Munawar (PW.4) on 01.02.2020 examined the injured Zia-ur-Rehman and after removing the foreign body from his injury issued MLC (Exh.PC). 6. After the conclusion of prosecution evidence, Muhammad Ejaz alias Mithoo Shah and Muhammad Zulqarnain alias Zulli (appellants) were examined under section 342 Cr.P.C. during which they were asked the questions arising out of the prosecution evidence but they denied almost all those questions while pleading their innocence and false implication with the case. Appellants neither opted to appear as of their own witness under Section 340(2) Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, both the appellants were convicted and sentenced as afore-stated, hence the instant criminal appeals, criminal revision and murder reference. 7. It is contended on behalf of the appellants that the FIR in this case was registered with a considerable delay but while tampering with the record it was looked to be chalked out promptly. The eyewitnesses who appeared before the trial court in support of the ocular account are chance witnesses, thus their statements cannot be relied upon for maintaining the convictions awarded to the appellants. The eyewitnesses made dishonest improvements in order to bring the case of the prosecution in line with the medical evidence. The medical evidence contradicts the ocular account. The recovery of pistols affected at the instance of the appellants was foisted upon them just to strengthen the weak prosecution case. The motive set out in the FIR remained unproved throughout the trial. In these circumstances, learned counsel argued that the convictions and sentences awarded to the appellants are liable to be set-aside warranting their clean acquittal. 8. On the other hand, learned Deputy Prosecutor General well assisted by learned counsel for the complainant submitted that the matter was reported to the police within a reasonable time. The eyewitnesses properly explained their presence at the spot and they while appearing before the trial court narrated the stance of the prosecution in a very natural manner. The medical evidence is in line with the ocular account. The prosecution also sought corroboration from the recovery of pistols at the instance of the appellants as well as duly proved motive. It was thus prayed that the convictions and sentences awarded to the appellants be maintained.
---
## Page 4
9. We have gone through the case file, heard pro and contra arguments of the learned counsel for the parties well assisted by the Deputy Prosecutor General, and perused the record. 10. It divulges from the scrutiny of record that the case in hand is arising out of an incident which took place on 28.12.2019 at about 2:15 p.m. at Noor Khanewala Nala, near the Dera of Muhammad Khan situated within the territorial jurisdiction of Police Station Bhera. During the incident allegedly Zulqarnain (appellant) fired a pistol shot which hit at the right shin of Rizwan Haider, whereas the fire shot made by Ejaz Shah alias Mithoo Shah (appellant) from his pistol landed at the back of Rizwan Haider (deceased), who after the receipt of injuries fell on the ground and took his last breath. We have also observed that Mulazim Hussain (since acquitted) also fired a shot from his pistol which hit at the right heel of Zia-ur-Rehman (injured). In the wake of facts mentioned hereinabove we have observed that though FIR in this case was registered within 02-hours & 25- minutes of the incident and this aspect is canvassed before us as the strong point of prosecution but the perusal of record sheds doubt upon the acclaimed time of imparting information of crime to police. In this regard, firstly it is noticed that after the incident Investigating Officer, namely Rana Muhammad Yousaf SI (PW.11) visited the spot, prepared inquest report (Exh.PF) and in its column No.3 mentioned only the date of incident as 28.12.2019 and did not describe the time of occurrence. This fact was admitted by Rana Muhammad Yousaf SI (PW.11) during his cross-examination with the following words:- "Column No.3 of the inquest report is meant for mentioning the date and time when the information regarding the death is received. In inquest report Ex.PF in column No.3 I have only mentioned the date and no time is mentioned." From above, it can conveniently be held that by the time the inquest report was prepared by the Investigating Officer, the time of incident was not known to him. Secondly, it is observed that despite the information of crime having been conveyed to police before 4:40 p.m. still the autopsy of deceased was conducted at 9:45 p.m. The intervening duration of about 8-hours between the time of incident and autopsy since remained unexplained, thus gives an indication that the FIR was not registered at the time mentioned in the relevant column. Furthermore, Dr.Shahid Mehmood Sial (PW.5) who performed autopsy upon the body of Rizwan Haider (deceased) in his examination-in- chief stated that the police papers were received by him at 9:30 p.m. The unexplained delay in submission of police papers to the Medical Officer and holding autopsy is always considered fatal for the prosecution case and leads us to conclude that the story of the prosecution was cooked up after procuring the attendance of false eyewitnesses. Reliance in this context may be placed upon the case reported as Muhammad Ilyas v. Muhammad Abid alias Billa (2017 SCMR 54) wherein the Supreme Court of Pakistan held as under:- "Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that the time had been consumed by the local police and complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution." 11. In addition to above, as per complaint (Exh.PM) Syed Muhammad Sibtain Shah (complainant) narrated the tale of incident in a way to give impression that he along with PWs Mazhar Hussain Shah and Syed Tehzeeb-ul-Husnain saw the occurrence but nowhere mentioned that he was not present at the spot and whatever he narrated in the complaint was on the asking of someone. Perusal of record further shows that Mazhar Hussain Shah (PW.8) in his examination-in-chief stated that the deceased and the injured were shifted to THQ Hospital Bhera where Syed Muhammad Sibtain Shah (complainant) reached and the entire occurrence was narrated to him. The occurrence took place at 2:15 p.m. and FIR was chalked out at 4:40 p.m. and what precluded Mazhar Hussain Shah (PW.8) and other eye-witnesses from reporting the matter directly to police regarding a broad daylight occurrence, makes the prosecution case highly doubtful. Moreover
---
## Page 5
despite careful scrutiny of record we failed to find out the name of a person from whom the complainant got drafted the complaint. Neither the scriber of the complaint was produced before Rana Muhammad Yousaf SI/Investigating Officer (PW.11) nor at trial stage to prove that he drafted the complaint at the dictation of complainant. Admittedly complainant Syed Muhammad Sibtain Shah died prior to recoding of his evidence before the Court, though, in such circumstances, FIR could be brought on record through secondary evidence, yet it could not be termed as a corroboratory piece of evidence keeping in view the nonappearance of the complainant, who did not appear in the witness box and was not subjected to cross-examination. While holding so, we rely upon the case reported as Ghaus Muhammad alias Ghausa and another v. The State (1979 SCMR 579) wherein the Supreme Court of Pakistan has held that:- "The maker of the FIR has died. It cannot be used as corroboration of the testimony of another person, namely, Nur Muhammad P.W. At best the prosecution can use it for showing that the name of Nur Muhammad is mentioned in the FIR but that by itself would not advance the prosecution case." Further reference on the subject can also be made to the recent pronouncement of the Supreme Court of Pakistan reported as Muhammad Ramzan v. The State (2025 SCMR 762) wherein it is held that: "It is settled law that FIR by itself is not a substantive piece of evidence unless its contents are affirmed on oath in the witness box by its maker and its maker is subjected to the test of cross- examination. In view of Articles 140 and 153 of the QSO, FIR being a previous statement can only be used for contradicting its maker but unless the same is not proved through its maker, cannot be used as a substantive piece of evidence in favour of the prosecution's case." 12. As stated above the complainant died prior to recording of his statement before the Court, so the ocular account in this case was furnished by Mazhar Hussain Shah (PW.8) and Syed Tehzeeb- ul-Husnain (PW.9), out of them the former was the maternal uncle of deceased whereas the latter was not related to deceased, rather was from his brotherhood. While examining the evidence of eye-witnesses in a case of homicide the question of foremost importance relates to their acclaimed presence at the spot. In the instant case, we have straightaway observed that both the PWs were residents of Nabi Shah Bala situated at a distance of 15/16 kilometers from the place of occurrence whereas the incident took place at Noor Khanewala Nala, near the Dera of Muhammad Khan. This fact was admitted by Mazhar Hussain Shah (PW.8) during his cross-examination, a relevant portion of which is reproduced hereunder:- "I and Tehzeeb-ul-Husnain PW are residents of Nabi Shah Bala which is at a distance of 15/16 kilometers from the place of occurrence. The place of occurrence is situated within the jurisdiction of PS Bhera whereas our village falls within the limits of PS Saddar Bhalwal." Moreover, both the eyewitnesses while appearing before the trial court have failed to give any plausible explanation for their presence at the spot, rather simply claimed to be in the company of deceased and uttered not a single word for their reason of being so. The presence of both the PWs at the spot, in the manner they claimed, makes them chance witnesses and their depositions suspect evidence. As a necessary corollary, the depositions of Mazhar Hussain Shah (PW.8) and Syed Tehzeeb-ul-Husnain (PW.9) are to be discarded from consideration. In the case reported as Naveed Asghar and two others v. The State (PLD 2021 Supreme Court 600), the Supreme Court of Pakistan, while dealing with the evidence of a chance witness, held as under: - ".....chance witness: a witness who in view of his place of residence or occupation and in the ordinary course of events is not supposed to be present at the place of the occurrence but claims to be there by chance. Testimony of such witness requires cautious scrutiny and is not accepted
---
## Page 6
unless he gives satisfactory explanation of his presence at or near the place of occurrence at the relevant time...". Further reference in this regard is made to the cases reported as Mst.Mir Zalai v. Ghazi Khan and others (2020 SCMR 319) and Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652). 13. There is yet another factor which cast doubt about the truth of story advanced by both the eyewitnesses. Mazhar Hussain Shah (PW.8) and Tehzeeb-ul-Husnain Shah (PW.9) during evidence stated that they were going to village Bathunni to inspect a tractor. Both the PWs further stated that they shifted the dead body and injured to THQ Hospital Bhera, Sibtain Shah complainant came to THQ Hospital and thereafter they informed him about the occurrence. However, when they were confronted with their police statements (Exh.DA & Exh.DB) wherein the above-mentioned aspects were not so recorded. The relevant portions of statements of both the eyewitnesses on account of their relevancy are reproduced hereunder:- Mazhar Hussain Shah (PW.8) "I had stated in my statement before police that I and Tehzeeb-ul-Husnain were going to village Bathunni to inspect a tractor. Confronted with Ex.DA copy of the statement of the witness where it is not so recorded. I had stated in my statement before the police that we shifted the dead body and injured to THQ Hospital Bhera. Confronted with Ex.DA where it is no so recorded. I had stated before the police that Sibtain Shah complainant came to THQ hospital thereafter and we informed him about the occurrence. Confronted with Ex.DA where it is no so recorded." Tehzeeb-ul-Husnain Shah (PW.9) "I had stated in my statement before the police that I and Mazhar Shah PW were going to village Bathunni to inspect a tractor for him. Confronted with Ex.DB copy of the statement of the witness where it is not so recorded. I had stated in my statement before the police that we shifted the dead body and injured to THQ hospital Bhera. Confronted with Ex.DB where it is no recorded. I had stated before the police that Sibtain Shah complainant came in THQ hospital thereafter and we informed him about the occurrence. Confronted with Ex.DB where it is not so recorded. I had not got recorded in my statement before the police that we were attracted to the spot on hearing gunshot report. Confronted with Ex.DB where it is so recorded." The improvements so made by both the PWs are material in nature and were made by them just to strengthen the prosecution case. It is settled principle laid down for the appraisal of evidence that a witness who pollutes his evidence through dishonest improvements indeed compromises his own integrity which renders him unworthy of any credence. Reliance is placed upon the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) wherein the Supreme Court of Pakistan has observed as under:- "the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses." Further reference on the subject can also be made to the recent pronouncement of the Supreme Court of Pakistan reported as Muhammad Nasir Butt and 2 others v. The State and others (2025 SCMR 662) wherein it was held as under:- "...........dishonest improvements for assigning specific role to each accused, which creates serious doubt about the veracity of their testimony and it is not safe to place reliance on their statements." The depositions of both the eyewitnesses are further falsified from the fact that as per prosecution case during the incident one Zia-ur-Rehman received a firearm injury at the right heel allegedly caused by Mulazim Hussain (since acquitted). Admittedly, as per FIR (Exh.PM/1) the occurrence took place on 28.12.2019 at 2:15 p.m., however no MLC of injured Zia-ur-Rehman of 28.12.2019 is available on the record. According to statement of Dr.Shahid Mehmood Sial (PW.5), he on 29.12.2019 at about 10:00 a.m. after conducting medico legal examination of the injured issued MLC (Exh.PG) and noted
---
## Page 7
a lacerated wound 2 cm x 1 cm on the edge of heel of right side of foot. However, we have observed that afore-said Zia-ur-Rehman did not appear before the trial court in support of the injury received by him and to explain delay in conducting his medical examination despite receiving firearm injury. No attempt on part of the prosecution to call him as court witness is oozing from the perusal of record. The legitimate inference which can be drawn from the withholding of such important piece of evidence is in accordance with Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984 which is to the effect that had Zia-ur-Rehman appeared in the witness box, he would not have supported case of prosecution. The foregoing provision for reference sake is being reproduced hereunder:- "129. Court may presume existence of certain facts. The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and the public and private business, in their relation to the facts of the particular case. Illustrations The court may presume: (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." The Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under:- ".....that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e- Shahadat Order can fairly be drawn that if PW Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution." Moreover, in the inquest report (Exh.PF) the names of Zeeshan Haider and Ali Abbas have been mentioned as witnesses who identified the dead body of Rizwan Haider. In these circumstances, a safe inference can be drawn that had the complainant or the two eyewitnesses (PW.8 & PW.9) been present at hospital along with the dead body, their names should have been incorporated in the inquest report. It is also worth mentioning here that according to complaint (Ex.PM), the occurrence took place at 02:15 p.m., but in the postmortem report (Exh.PD) the time of death of the deceased has been mentioned as 01:30 p.m. on 28.12.2019 i.e. 45 minutes before happening of the alleged occurrence. These lacunas…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.