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Official Citation: 2025 LHC 1099
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: The State, Muhammad Saleem vs Muhammad Saleem, The State & JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2025 LHC 1099. In this matter between The State, Muhammad Saleem and Muhammad Saleem, The State & JUDGMENT, 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 2025LHC1099
Court Name: Lahore High Court Judge(s): Syed Shahbaz Ali Rizvi, Muhammad Jawad Zafar Title:The State, Muhammad Saleem vs Muhammad Saleem, The State &
JUDGMENT
Reported As: 2025 LHC 1099 Result: Order Accordingly Judgment
JUDGMENT MUhAMMAD JAWAD ZAFAR, J.: Muhammad Saleem, son of Muhammad Ismail, caste Bhatti, resident of Gulistan Colony Street No.2, Old Bahawalpur Road, Multan ("Appellant") was tried in crime report bearing FIR No. 110/2019 dated 04.07.2019 for offences under Sections 302 & 324 of the Pakistan Penal Code 1860 ("PPC"), registered with police station Bohar Gate, Multan ("Crime Report" or "FIR") by the learned Additional Sessions Judge, Model Court-II, Multan ("Trial Court") on the allegations of committing murder of wife of complainant Mst. Shahina Bibi (deceased), as well as launching a murderous assault on the son of the deceased, namely, Muhammad Shoaib/Injured Child Witness (PW-10). On conclusion of Trial, vide judgment dated 07.01.2020, the Appellant was convicted and sentenced as under: * Under Section 302(b), PPC, sentenced to death as ta'zir with direction to pay Rs.4,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered from the arrears of land revenue and in case of default in payment thereof, to further undergo S.I. for six months. * Under Section 324, PPC, sentenced to rigorous imprisonment of 5 years and fine of Rs.50,000/-. * Under Section 337-F(ii), sentenced to daman of Rs.50,000/- to be paid to injured Shoaib. 2. Being aggrieved by the judgment of the learned Trial Court, the Appellant has challenged his conviction and sentence through Criminal Appeal No. 18-J of 2020 by impugning judgment dated 07.01.2020 ("impugned judgment"), whereas the learned Trial Court has sent Murder Reference No. 09 of 2020 for confirmation or otherwise of the Appellant's sentence in terms of Section 374 of the
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Code of Criminal Procedure 1898 ("Code" or "Cr.P.C"). Both these matters, due to arising out of the same impugned judgment, are being decided through this single judgment. 3. The prosecution story as documented in the Crime Report (Ex.PA/1), registered on the complaint (Ex.PA) of Muhammad Saeed complainant (PW-9), is that on the intervening night of 04.07.2019, the complainant, along with his family members, was present at his residence when Muhammad Hassan and Muhammad Naveed (PW-11) also arrived. At approximately 10:00 p.m., Muhammad Shoaib (PW-10), the son of the complainant, answered a knock at the door. At that moment, the Appellant Muhammad Saleem, armed with a churri, forcibly entered the house and raised lalkara that his former wife, and the current wife of the complainant, namely, Mst. Shahina, since deceased, would be done to death. In the presence of witnesses, the Appellant inflicted multiple stab wounds on the neck, back, and both shoulders of Mst. Shahina Bibi. In the meantime, Muhammad Shoaib (PW-10) and others attempted to apprehend the Appellant, however, he stabbed Muhammad Shoaib (PW-10) in the abdomen. While the rest were attending to the injured Muhammad Shoaib (PW-10), the Appellant while brandishing the churri (P-1) and extending threats of dire consequences decamped. Mst. Shahina Bibi succumbed to her injuries at the scene, while Muhammad Shoaib (PW-10) remained under medical treatment at Nishtar Hospital, Multan. Motive behind the incident was that the deceased, Mst. Shahina Bibi, was previously married to the Appellant, Muhammad Saleem. Following her divorce, she subsequently married to the complainant (PW-9), which led the Appellant to commit the the overt act of qatl-e-amd. The complainant (PW-9) witnessed the incident under the illumination of an electric bulb. Consequently, this FIR was registered. 4. The investigation of the case was entrusted to Abdul Razzaq SI (PW-13), who, upon receiving information through wireless, arrived at Mohallah Walwat/Sutriwat - the crime scene - accompanied by Muhammad Sharif 418/C (not produced) and Muhammad Nazik 4681/C (PW-3). Upon arrival, Investigating Officer (PW-13) sent the istighasa (Ex.PA) through Muhammad Shareef 441/C (not produced) for formal registration of FIR (Ex.PA/1), after incorporating police proceedings therein (Ex.PA/3). By that time, the Injured Child Witness (PW-10) had already been escorted to Nishtar Hospital by Aqib Muneer (PW-12) and Khuram Shahzad (not produced). Investigating Officer (PW-13) proceeded to secure the deceased's blood via a recovery memo (Ex.PM). The last- worn clothes of the deceased - a green Qameez (P-8), green trousers (P-9), and a green Dupatta (P-10), all bloodstained - were seized through recovery memo (Ex.PD). The injury statement (Ex.PH) and inquest report (Ex.PN) were prepared, and an application for post-mortem (Ex.PM/1) was scribed. The statement of the Injured Child Witness (PW-10) was recorded under Section 161 of the Code. The Crime Scene Unit collected three live rounds P5/1-3 for caliber determination by Firearm and Tool marks expert. The Crime Scene Unit also collected two nail swabs and buccal swabs of the deceased for DNA analysis. On 05.07.2019, Draftsman Irfan Hayat (PW-4) inspected the crime scene, took rough notes and prepared scaled site plan (Ex.PF). The Injured Child Witness (PW-10) was examined and MLC No. 1462/2019 (Ex.PK) was issued by Dr. Nasir Javed APMO (PW-6). On 07.07.2019, Investigating Officer (PW-13) apprehended the Appellant, recovered a 30-bore pistol (P- 5) with five live bullets (P-6/1-5) during a personal search, which was secured via recovery memo (Ex.PC). A separate FIR was lodged under the Punjab Arms Ordinance 1965, and the pistol was handed over to the Moharrar. On 09.07.2019, bloodstained clothes of the Injured Child Witness (PW- 10) - light blue jeans pant (P-6) and an orange shirt (P-7) - were secured vide recovery memo (Ex.PL), along with the clothes of complainant (PW-9) - Shalwar (P-2) and Qameez (P-3) - via recovery memo (Ex.PN). The Ward Report (Ex.PJ/PJ-1), prepared on 04.07.2019, was obtained by the Investigating Officer (PW-13) on 10.07.2019. Following the Appellant's disclosure, murder weapon - churri (P-1), wrapped in a shopper - was recovered on 11.07.2019 from Hassan Perwana Graveyard via recovery memo (Ex.PB), and site plan of recovery (Ex.PP) was prepared. A separate FIR No.
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116/2019 was lodged regarding the weapon's recovery. On 15.07.2019, the 30-bore pistol and five live bullets were submitted to the Crime Scene Unit, Multan. The bloodstained churri (P-1) was sent via road certificate No. 246 on 16.07.2019. On 17.07.2019, Investigating Officer (PW-13) collected three envelopes prepared for DNA and chemical analysis from the Moharrar, submitted them to PFSA, Lahore, via road certificates No. 247 and No. 248. The Ward Report (Ex.PJ/PJ-1) of the Injured Child Witness (PW-10) was obtained on 25.07.2019. Upon completion of the investigation, the Investigating Officer (PW-13) found the Appellant guilty and submitted the challan/police report under Section 173 of the Code before the Trial Court. 5. Formal charge was framed on 30.09.2019, to which the Appellant pleaded not guilty and claimed trial. In order to prove the charge, prosecution produced as many as 13 witnesses. The Ocular account was furnished by complainant Muhammad Saeed (PW-9), Injured Child Witness Muhammad Shoaib (PW-10) and Muhammad Naveed (PW-11); Abdul Razzaq SI (PW-13) is the investigating officer in this case. Autopsy was conducted by Dr. Nighat Noreen (PW-7), while Dr. Nasir Javed APMO (PW-6) and Dr. Muttiullah Majid (PW-8) were produced to substantiate the injury on the person of Injured Child Witness (PW-10). Remaining of the prosecution witnesses ("PWs") were more or less formal in nature. 6. Autopsy of Mst. Shahina Bibi (deceased) was conducted by Dr. Nighat Noreen (PW-7) on 05.07.2019 and she observed twenty two injuries on the body of the deceased. According to the opinion of the doctor, all injuries were ante-mortem in nature, inflicted by sharp edged weapon. Injury No. 1, 2, 10, and 11 individually and rest all collectively could cause death of a person in ordinary course of nature by damaging 1 and 2 blood vessels, hemorrhage, shock, 10 by damaging vital organ heart. 11 by damaging lungs. She further indicated that the duration between injuries and death was immediate while the time between death and postmortem examination was estimated to be 12 to 24 hours. 7. Prosecution gave up Muhammad Saeed 4322/C Telephone operator being unnecessary and after tendering the following documents in evidence, namely, Forensic DNA & Serology Analysis Report bearing No.0000625390 (Exh.PQ) and No.0000625391 (Exh.PR), Forensic DNA & Serology Analysis Report bearing No.0000528893 (Exh.PS), certified copy of PFSA report (Exh.PT), certified copy of Firearm & Toolmark Examination Report bearing No.000584279 (Exh.PU), certified copy of FIR No.114/19 (Exh.PV), attested copy of divorce deed (Exh.PW), certified copy of plaint (Exh.PX), certified copy of judgment dated 04.01.2017 (Mark-H) and decree sheet (Mark-I), attested copy of application moved by Saleem (Exh.PY), certified copy of petition under Section 22-A of the Code (Exh.PZ), certified copy of judgment dated 19.03.2018 (Exh.PZI), certified copy of complaint (Exh.PZ2), Certified copy of judgment dated 19.10.2019 (Exh.PZ3), closed prosecution evidence. 8. After completion of the prosecution evidence, statement of the Appellant under Section 342 of the Code was recorded and he was asked why this case has been registered against you, to which he respondent, as infra: 'Firstly, I am innocent because I was not present at the place of occurrence but due to previous enmity with Saeed Ahmad complainant, he falsely involved me in this false case. It is most important thing that Saeed Ahmad was not present at the time of occurrence rather he was present in his office. According to my information the murder of Shahina Bibi was committed by Muneer Hussain who is step father of Shahina Bibi. Two PWs are close relatives of Saeed Ahmad, one is his brother and other is nephew'. Appellant tendered three photographs (Mark-A/1-3), mobile phone data of SIM No. 0300-6338604 of complainant as (Mark-B/1-5), two photocopies of one is private complaint under Section 468, 471 & 420 of the PPC (Mark-C) and second copy of application under Section 22-A of the Code against Shahina Bibi etc (Mark-D) and one affidavit from Muhammad Anees son of Muneer Ahmad (Ex.D1) as evidence in his defence, he was asked if he would like to appear on oath as his own
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witness envisaged under Section 340(2) of the Code, but the Appellant opted not to do so. Upon conclusion of trial, the learned Trial Court found the case against the Appellant to have been proved beyond reasonable shadow of doubt, thus, convicted and sentenced him as detailed above. 9. Arguments heard; record perused. 10. Perusal of the Crime Report reflects that the unfortunate occurrence, whereby the deceased lost her life and PW-10 sustained injuries, took place at or about 10:00 PM on 04.07.2019 while the matter was reported to the local police on the same night within the short span of 1 hour and 30 minutes, leading to chalking out of formal Crime Report at or about 11:30 PM despite the police station being at some distance. The promptness with which the Crime Report got lodged, especially considering the existence of Injured Child Witness (PW-10), not only confirms the presence of PWs at place of occurrence but prompt recourse to law straight at the police station also excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case and also rules out the possibility of mistaken identity or substitution. In similar circumstances, the Honourable Supreme Court of Pakistan, in the case of "Aqil v. The State" (2023 SCMR 831), held that: 'A bare perusal of the record shows that the unfortunate incident, wherein the mother and sister of the complainant lost their lives, took place on 05.10.2011 at 07:30 a.m. whereas the FIR was registered on 08:55 a.m. i.e. just after one hour and 25 minutes of the occurrence. The distance between the place of occurrence and the Police Station was 25 kilometers. Thus, it can safely be said that FIR was lodged with promptitude. Promptness of FIR shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. There was hardly any time with the complainant or other witnesses to fabricate a false story'. Reliance is also placed on "Shaheen Ijaz alias Babu v. The State" (2021 SCMR 500). In addition thereto, the Crime Report was lodged by the complainant (PW-9), inmate of the house where the occurrence took place along with the stamp of injuries on the person of Injured Child Witness (PW- 10), are conclusive proof of their presence at the venue of occurrence, as a consequence thereof, the so-called delay as averred by the learned counsel for the Appellant, is out of question, especially considering the ratio decidendi laid down in the aforementioned cases, in as well as the case of "Sheraz Asghar v. The State"(1995 SCMR 1365), wherein it was held that '[b]esides, delay in lodging F.I.R. is not per se fatal to a case. It neither washes away nor torpedoes trustworthy and reliable ocular or circumstantial evidence. F.I.R. in this case has been lodged with an eye-witness. It contains the names of the eye-witnesses, the names of the assailant with arms carried by them, active role played by each assailant'. Even otherwise, the honourable Supreme Court of Pakistan observed in "Zar Bahadur v. The State" (1978 SCMR 136) that mere delay does not wash away the reliability of the ocular account or trustworthiness of the same. Relevant excerpt is reproduced infra: 'Two hours and 15 minutes time might had been consumed by the complainant in arranging conveyance and despatching the dead body to hospital at Jhelum. Arranging conveyance for himself and covering the distance of 9/10 miles for reaching at police station. Such delay in detail has been explained by the complainant in the trial Court during cross examination. There lies no fault on the part of complainant in lodging the FIX with such delay. Besides, delay in lodging F.I.R. is not per se fatal to a case. It neither washes away nor torpedoes trustworthy and reliable ocular or circumstantial evidence. F.I.R. in this case has been lodged by an eye witness. It contains the names of the eye witnesses, the names of the assailant with arms carried by them, active role played by each of the assailant. The prompt lodging of the F.I.R. with details excludes possibility, of deliberations, consultations, manoeuvring and false implication'.
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11. Prosecution case hinges upon the ocular account, medical evidence, recovery and motive. Insofar as the ocular account is concerned, it is observed that complainant (PW-9), Injured Child Witness (PW-10) and eye-witness Muhammad Naveed (PW-11) deposed in line with the Crime Report and reiterated the same while appearing in the dock of the Court unflinchingly supported the prosecution case on all material points and despite best efforts, the witnesses of ocular account remained firm and consistent on all material aspects of the incident qua the date, time, place, mode and manner of the occurrence, name of the appellant, weapon of offence and the role played by him for committing murder of the deceased and the defence could not shatter their credibility on material points. Learned counsel objected to the testimony of Injured Child Witness (PW10) and its admissibility due to tender age (eight years old) of said witness and further pointed out that the post-mortem examination got conducted with a delay of at least twelve hours and there is considerable conflict between the number of injuries alleged against the Appellant in the ocular account, injuries observed on the person of the deceased by the investigating agency, and the number of injuries found in the post-mortem examination report. 12. We deliberate upon these submissions in turn. At the outset, it is observed that Article 17 of the Qanun-e-Shahadat 1984 ("QSO") does not spell the number of witnesses required to prove a fact in issue in a case under Section 302 of the PPC in terms of Article 18 of QSO. The Supreme Court of India in "State of U.P v. Krishna Masters & Ors" (2010 (12) Supreme Court Cases 324) observed that: 'Section 134 of the Indian Evidence Act specifically provides that no particular number of witnesses shall, in any case, be required for the proof of any fact. It is well known principal of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. The time-honoured rule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where, the court finds that the testimony of solitary witness is neither wholly reliable nor wholly unreliable, it may, in given set of facts, seek corroboration but to disbelieve reliable testimony of a solitary witness on the ground that others have not been examined is to do complete injustice to the prosecution'. This view finds support from the jurisprudence laid down by superior courts of the land that it is the quality, and not the quantity, of witnesses that matters and an accused facing trial for offence of qatl-e-amd can be convicted based on solitary testimony of a single witness. In "Qasim Shahzad and another v. The State and others" (2023 SCMR 117), it was held that: 'As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of evidence. It is not that who is giving evidence and making statement. What is relevant is what statement has been given and it is not the person but the statement of that person which is to be seen and adjudged. In Niaz-ud-Din v. The State (2011 SCMR 725), it was held that conviction in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable and it is the quality of evidence and not the quantity which matters. The same was the view of this Court in Asim v. The State (2005 SCMR 417), Lal Khan v. The State (2006 SCMR 1846) and Muhammad Sadiq v. The State (2022 SCMR 690)'. Reliance is also placed upon "Sajid Mehmood v. The State" (2022 SCMR 1882). 13. Under the law, a child as young as eight is fully competent to depose as a witness, because said child has the capacity and intellect to depict and comprehend what he is deposing about. Rationality test is invoked by the courts of law as a means of determining whether a child is a competent witness or otherwise. Said test stems from the combined reading of Article 3 and Article
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17 of the Qanun-e-Shahadat 1984 ("QSO") after conducting voir dire. It is trite that voir dire constitutes a sort of inquiry conducted within a trial to determine ancillary issues that are essential for adjudication and it falls within the discretion of the learned Trial Court to assess the competence of a child witness by posing various questions, based on which questions, it is deciphered whether the child witness has passed the rationality test and is deemed to be a competent witness or otherwise. In "Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another" (PLD 2020 Supreme Court 146) the Honourable Supreme Court, after deliberating upon the scope of Articles 3 and 17 of QSO in relation to a child witness, observed as infra: '45. A close reading of the above provisions reveals that the essential conditions for a child, or for that matter any person, to appear and testify as a witness, is that the child or the person must have the capacity and intelligence of understanding the questions put to him, and also be able to rationally respond thereto. This threshold has been referred to as passing the "rationality test", and the practice that has developed with time in our jurisdiction is for the same to be carried out by the presiding Judge prior to recording the evidence of the child witness'. In the present lis, it is noticed from the deposition of Injured Child Witness (PW-10) that the learned Trial Court did conduct voir dire. Relevant excerpt of the testimony reads as follows: 'Question: Where are you standing at this time? Ans: I am standing in the Court. Question: Why you have come to the Court? Ans: I have come to the Court to record my statement regarding the occurrence of murder of my mother and about my injury. Witness Muhammad Shoaib is of tender age. He is ask about his age and few questions are put to him, which he answered rationing witness understands the questions. He is able to record his evidence. So, his evidence be recorded'. Based on the excerpt reproduced, it can safely be stated that Injured Child Witness (PW-10) passed the rationality test and was a competent witness. Furthermore, the testimony of Injured Child Witness (PW-10) is in line with and finds independent corroboration from the depositions of complainant (PW-9) and eye-witness Muhammad Naveed (PW-11), and despite lengthy cross-examination, nothing advantageous could be extracted by the defence, rather, the Injured Child Witness (PW-10) remained firm and shunned away any suggestion that the Appellant is not the culprit. Therefore, the challenge to the testimony of Injured Child Witness (PW-10) is without any substance. 14. Insofar as the aspect of delay of almost 11 hours and 30 minutes in conducting post-mortem examination, it is observed that one person lost her life while Injured Child Witness (PW-10) was evacuated to the hospital as a means to save his person. Possibility of time being consumed in transportation might led to delay in postmortem examination which was still fairly good as the doctor has opined approximately that it ranges from twelve to twenty four hours. In similar circumstances, where the FIR was lodged with promptness but the autopsy was conducted with delay, the Honourable Supreme Court of Pakistan has held, in "Muhammad Asif and another v. Mehboob Alam" (2020 SCMR 837), that '[i]n a country where the medical facility cum availability of paramedics for the job assigned is not an easy task, the consumption of such a time seems to be quite reasonable hence, the prosecution evidence cannot be brushed aside on this score alone to extend the benefit of doubt as claimed'. Therefore, this contention is repelled. This may be examined from a different lens. The rationale behind the contention of delayed post-mortem is that time was consumed to concoct a frivolous and vexatious narrative against the accused person and said time was used to procure the attendance of witnesses. In the present lis, it is evident from the perusal of the Autopsy that the mouth and eyes of the deceased were closed. PW's, being close relatives of the deceased have, through closing of eyes and mouth, along with
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eyewitnesses of the Crime Report being witnesses in the Autopsy and Inquest Report, establishes that they were present at the venue of occurrence at the relevant time, therefore, plea of delay in post mortem examination loses its significance. Besides, this argument of learned counsel also fails to acknowledge that, as already observed hereinabove, the complainant (PW-9) and Injured Child Witness (PW-10) were natural witnesses as they were, in the ordinary course, resident of the house of occurrence and stamp of injury on the person of Injured Child Witness (PW-10), duly corroborated and fully supported by the medical evidence, clearly proved his presence at the place of occurrence. Argument that no one came to rescue fails on the score that when one person came to rescue the deceased, he was injured and said injury is grievous in nature, as such, the witnesses became fearful for their lives and did not intervene, as is evident from cross- examination of eye-witness Muhammad Naveed (PW11). Further, contention that name of father of injured was wrongly mentioned in MLC No. 1462/19 (Ex.PK/III) as such injured was not present loses credence when the matter was taken at the earliest and correction was made after receiving Court order dated 12.07.2019 as is evident from the testimony of PW-6 and name is correctly mentioned by PW-8, who gave ward report (Ex.PJ) in his deposition and presence of Injured Child Witness (PW-10) was not disputed during cross-examination. Reliance is placed upon "Ansar and otters v. The State and others" (2023 SCMR 929); and, "Ali Taj and another v. The State" (2023 SCMR 900).…
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