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Petitioner: Mazhar Hussain Shah VS Respondent: StateHonorable Justice Farooq HaiderMuhammad Aslam Bhatti
2025 Y L R 1986 [Lahore] Before Farooq Haider and Ali Zia Bajwa, JJ Mazhar Hussain Shah and another---Appellants Versus The State---Respondent Criminal Appeal No. 80490-J of 2021 and Murder Reference No. 03 of 2022, decided on 5th May, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 &34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Delay in lodging the FIR---Scope---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---As per application for registration of FIR, occurrence took place at 7:55 a.m. on 03.10.2019 at a Chowk, which was situated at a distance of one and half Kilometers from the Police Station as per column No.4 of the FIR---Mentioned in the FIR that deceased of the case succumbed to the injuries at the spot, however, matter was not reported to the police promptly---Even it was not mentioned in the application for registration of the case as well as in the FIR that complainant and cited eye-witnesses shifted the dead body of the deceased to the hospital, however, even then as per case of the prosecution, application for registration of the case was written at 11:00 p.m. on 03.10.2019 i.e. after the delay of about three hours and five minutes of the occurrence and FIR was recorded at 12:05 p.m. on 03.10.2019---Office of Deputy Superintendent of Police/Sub-Divisional Police Officer was located just at a distance of one and half acres from the place of occurrence---In such circumstances, matter had not been reported to the police promptly rather with considerable delay for which any plausible explanation had not been offered by the prosecution, which led to the conclusion that none of the cited witnesses including complainant was present at the time and place of occurrence---Time was consumed for procuring, engaging and introducing witnesses, tailoring story for the case of prosecution and then registering the case in its present form---Perusal of postmortem examination report revealed that it had been mentioned in the same that as per police papers, time of death was at 07:45 a.m. on 03.10.2019---Medical Officer stated that on 03.10.2019 at 07:45 a.m. Police Constable brought dead body of deceased in the hospital---Police Constable stated that Investigating Officer escorted dead body of deceased from place of occurrence and reached hospital at 07.45 a.m.---Such state of affairs clearly reflected that when police brought dead body from the place of occurrence at 07:45 a.m., then occurrence was brought in the notice/knowledge of Investigating Officer and Police Constable before 07:45 a.m.---Such fact on the one hand negated that occurrence took place at 7:55 a.m. and on the other hand also reflected that occurrence took place before 07:55 a.m. and it was in the knowledge/notice of the police---Even then case was registered at 12:05 p.m. for which no plausible, convincing and cogent reason could be rendered by the complainant---In such circumstances, FIR, which was cornerstone of the case of the prosecution, could not provide any support to the case of prosecution and superstructure i.e. case of prosecution raised on the basis of such sort of FIR was bound to fall---Circumstances established that the prosecution had failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly. Haroon Shafique v. The State and others 2018 SCMR 2118; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Adnan and another v. The State and others 2021 SCMR 16 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Confliction---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---As per case of prosecution, deceased received three firearm injuries---Whereas, as per Postmortem Examination Report, the deceasedreceived four firearm wounds and one exit wound---However, fourth injury could not be explained by the complainant as well as eye-witnesses---Circumstances established that the prosecution had failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Co-accused acquitted on same set of evidence---Effect---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---Record showed that co-accused who was attributed equally effective role of causing firearm injury to deceased of the case had been acquitted of the charge in the case while disbelieving evidence of the prosecution witnesses through the same impugned judgment---Said acquittal was still holding the field and the same had even not been challenged uptill now---Thus, said evidence could only be relied and used against present appellants if same was strongly corroborated by the independent evidence---Circumstances established that the prosecution had failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly. Munir Ahmad and another v. The State and others 2019 SCMR 79; Altaf Hussain v. The State 2019 SCMR 274; Muhammad Idrees and another v. The State and others 2021 SCMR 612; Pervaiz Khan and another v. The State 2022 SCMR 393; Rafaqat Ali v. The State 2022 SCMR 1107 and Sajjad Hussain v. The State and others 2022 SCMR 1540 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---In the crime report, it was mentioned that motive behind the occurrence was murder of "MS", FIR was registered in said regard against brother of the complainant who was confined in jail---Complainant and his brother were pursuing said case and on the day of occurrence, complainant and deceased of the case were going to Katchery on date of hearing in said case whereas brother of the complainant and other were also following them on motorcycle---Complainant mentioned in the FIR that he and his deceased brother were pursuing said case, meaning thereby that if it was grudge of committing that occurrence by the accused persons, then it was also equally attributable to the complainant because he was also pursuing said case along with his brother---As per statement of prosecution witness that deceased of the case and his brothers, complainant and eye-witness were accused of the murder case of "MS" deceased---Such state of affairs further showed that complainant and eye-witness, who had appeared as eye-witnesses in this case along with other persons, were accused in murder case of "MS"---If it was motive for the occurrence, then it was equally alleged against complainant and eye-witness but then why they had been spared and not targeted by the accused persons---Circumstances established that the prosecution had miserably failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Presence of complainant and eye-witnesses at the time and place of occurrence not proved---Scope---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---Statement of Police Constable and Medical Officer clearly showed that complainant and other cited eye-witnesses did not bring dead body of the deceased from the place of occurrence to the hospital rather Police Constable along with Investigating Officer of the case brought the same there---Complainant and other cited witnesses did not try to immediately report the matter to the police despite the fact that Police Station was just at a distance of 1 kilometers from the place of occurrence whereas office of Deputy Superintendent of Police was just at a distance of one and half acres from the place of occurrence---Such fact raised question mark regarding presence of the complainant as well as other cited eye-witnesses at the relevant time at the place of occurrence---Any bloodstained clothes of complainant and other cited witnesses were neither produced during investigation nor during trial of the case---Circumstances established that the prosecution had miserably failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of eye-witnesses at the time and place of occurrence---Chance witnesses---Scope---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---Ocular account produced by prosecution comprised of statements of complainant and eye-witness---Admittedly, said witnesses were not residents of the place of occurrence rather they were residents of other place---Complainant's residence was at distance of about 02-kilometers from the place of occurrence---Eye-witness stated that he was resident of a village, which was situated at a distance of 2 kilometers from the place of occurrence---Therefore, said witnesses were chance witnesses and were thus required to establish valid and acceptable reason to prove their presence at the time and place of occurrence---Prosecution case was that both said witnesses were going to Katchery on the date of hearing but any Cause List or any other document to show that on the day of occurrence of instant case, it was the date of hearing fixed in said case, had not been brought on the record---Therefore, reason claimed by the complainant and other cited eye-witnesses regarding their presence/availability at the relevant "time & place" of occurrence could not be established---As per case of prosecution, complainant was sitting behind the deceased of the case on the motorcycle, accused persons came from behind and resorted to firing, fire shots had hit at behind ear and shoulder of the deceased but surprisingly complainant did not receive any firearm injury---Furthermore, it was case of prosecution that complainant and deceased fell from the motorcycle but complainant did not receive even a single scratch due to said falling---In such scenario, evidence of both said cited witnesses, who could not explain/establish any valid reason/cause regarding their stated presence at the stated time, at the place of occurrence, was suspect evidence and could not be accepted without pinch of salt---Circumstances established that the prosecution had miserably failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly. Muhammad Rafique v. The State 2014 SCMR 1698; Arshad Khan v. The State 2017 SCMR 564; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Mst. Mir and another v. The State 2020 SCMR 1850 and Sarfraz and another v. The State 2023 SCMR 670 rel. (g) Criminal trial--- ----Medical evidence---Scope---Medical evidence is mere supportive/confirmatory type of evidence---Medical evidence can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same neither can provide any corroboration nor was of any help to the prosecution in peculiar facts and circumstances of the case---Appeal against conviction was allowed, accordingly. Akbar Ali v. The State 2007 SCMR 486; Sajjan Solangi v. The State 2019 SCMR 872 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapons of offence from accused---Scope---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---Record showed that 30-bore pistols were recovered from the accused persons---As per report of Forensic Science Agency, pistol allegedly recovered from appellant was only found in working condition and empties secured from the place of occurrence were not found as having been fired from the same---Hence said recovery was of no help to the case of prosecution---Circumstances established that the prosecution had miserably failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly. Liaqat Ali and another v. The State and others 2021 SCMR 780 rel. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148, 149 & 34---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Safe custody of the recovered pistols and crime empties not proved---Scope---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died---Investigating Officer stated in categorical terms that on 18.11.2019, Moharrar handed over to him the parcels of pistols and live bullets for onward transmission to the office of Forensic Science Agency, which were deposited by him in the said office---However, it was strange and alarming to mention here that as per report of Forensic Science Agency, parcels regarding pistols submitted in Forensic Science Agency in this case were not mentioned as having any live bullets in the same---So it was crystal clear that according to case of prosecution, pistol along with two live bullets statedly recovered from the possession of appellant were sealed into parcel and similarly pistol along with two live bullets allegedly recovered from other appellant were sealed into parcel---If said parcels were deposited in the office of Forensic Science Agency, then it must have been mentioned in the report that said parcels were containing live bullets also, however it was not mentioned so in said report---Meaning thereby that said parcels were not those parcels which were prepared at the time of recovery of pistols containing bullets as well---Hence, safe custody of parcels of pistols had been compromised and not proved, which had ultimately made report of Forensic Science Agency as inconclusive as well as inconsequential and of no help to the case of prosecution---Circumstances established that the prosecution had miserably failed to establish its case against the appellants beyond reasonable doubt---Appeal against conviction was allowed, accordingly.
Muhammad Saleem v. Shabbir Ahmed and others 2016 SCMR 1605 and Kamal Din alias Kamala v. The State 2018 SCMR 577 rel. (j) Criminal trial--- ----Motive---Scope---Motive is a double-edged weapon, it cuts both the ways, it can also be a reason for false implication---When substantive evidence is discarded, then motive loses its significance and becomes immaterial for conviction. (k) Criminal trial--- ----Benefit of doubt---Principle---Single dent/circumstance in case of prosecution is sufficient for acquittal. Abdul Ghafoor v. The State 2022 SCMR 1527 rel. Muhammad Aslam Bhatti, Vice counsel for the Appellants. Ms. Nuzhat Bashir, Deputy Prosecutor General for the State. Syed Tahir Abbas for the Complainant. Date of hearing: 5th May, 2025. Judgment Farooq Haider, J.---This single judgment will dispose of Crl. Appeal No.80490-J/2021 filed by Mazhar Hussain Shah and Tauqeer Haider Shah (appellants) against their "convictions and sentences" and Murder Reference No.03/2022 sent by trial court, as both the matters have arisen out of one and the same judgment dated: 14.12.2021 passed by learned Addl. Sessions Judge, Shahpur, District Sargodha/trial court. 2. Mazhar Hussain Shah and Tauqeer Haider Shah (appellants) along with their co-accused persons namely Tassadaq Hussain Shah, Muhammad Hussain Shah, Muhammad Ali Shah, Khadim Hussain Shah, Muneer Hussain Shah, Abid Hussain Shah and Ali Naqi Shah were tried in case arising out of FIR No.286/2019 dated: 03.10.2019 registered under Sections: 302, 109, 148, 149 P.P.C (during investigation offences under Sections: 148, 149 P.P.C were deleted whereas offence under Section: 34 P.P.C was added) at Police Station: Shahpur Saddar, District Sargodha and after conclusion of the trial, while acquitting aforementioned co-accused persons namely Tassadaq Hussain Shah, Muhammad Hussain Shah, Muhammad Ali Shah, Khadim Hussain Shah, Muneer Hussain Shah, Abid Hussain Shah and Ali Naqi Shah vide impugned judgment dated:14.12.2021, trial court has convicted and sentenced the appellants as under: -
Conviction
Sentence
Under Section: 302 (b) P.P.C read with Section 34 P.P.C
"Death" (for committing Qatl-i-Amd of Munawar Abbas) with payment of compensation Rs.2,00,000/- each to the legal heirs of the deceased under Section: 544-A Cr.P.C. recoverable as arrears of land revenue and in default of payment of compensation amount to further undergo S.I. for one year each.
3. Brief facts, as per application (Ex.PL) moved by Tasawar Hussain Shah (complainant/PW-10) to Muhammad Azam, ASI of Police Station: Shahpur Saddar, District Sargodha (PW-4) for registration of the case are that he is resident of Salimabad, Tehsil Shahpur, District Sargodha; on 03.10.2019 at about 7:55 a.m., complainant and his brother Munawar Shah were going to Shahpur Saddar Katchery on motorcycle Honda CD/70 SKG/669 in connection with date of hearing of their brother Qamar Abbas whereas their brother Murtaza Shah and Zameer Shah son of Nazeer Shah were coming behind them on motorcycle; when they reached Kulyan Chowk, accused persons Mazhar Shah son of Sabir Shah armed with pistol .30-bore, Tauqeer Shah son of Tassadaq Shah armed with pistol .30-bore, Muhammad Ali Shah son of Sajjad Shah armed with pistol .30-bore came from behind on motorcycle; Mazhar Shah raised lalkara to teach them a lesson for committing murder of Mowdat Shah; Tauqeer Shah fired straight shot with pistol .30-bore with intent to kill, which hit Munawar Shah, who was driving the motorcycle, below right shoulder, second straight shot with intent to kill was fired by Mazhar Shah with pistol .30-bore, which landed towards right side of Munawar Shah at back of ear and exited from the other side, third straight shot with intent to kill was fired by Muhammad Ali Shah, which landed towards right side below shoulder of Munawar Shah; complainant and his brother fell down from the motorcycle and Munawar Shah (brother of the complainant) succumbed to the injuries; all the accused persons with intent to kill made straight firing at Murtaza Shah and Zameer Shah who had come from behind but they luckily remained safe and fires hit on the wall of the school and tree, they too fell down; Muneer Shah son of Mazhar Shah armed with pistol .30-bore along with two unknown armed with firearms, who could be identified on coming across, remained standing at some distance in order to safeguard aforesaid accused persons and took away the accused with them; chaos spread at thoroughfare due to firing of accused persons. Motive behind the occurrence was that brother of Tauqeer Shah namely Mowdat Shah was murdered and false FIR was registered against brother of the complainant namely Qamar Shah and brother of the complainant is in jail in said case; complainant along with his brother Munawar Shah had been pursuing the case, due to which grudge, instant occurrence was committed at the abetment and conspiracy of accused persons Tassadaq Hussain Shah, Muhammad Hussain Shah, Khadim Hussain Shah; conspiracy hatched by the accused persons was heard by Zulqarnain Shah son of Akbar Shah at about 8:00 p.m. on 02.10.2019 at the dera of Muhammad Hussain Shah; on finalizing the conspiracy, aerial firing was also made by the accused persons. On the basis of application (Ex.PL), FIR (Ex.PE) was chalked out by Muhammad Azam, A.S.I. (PW-4). 4. After completion of investigation, challan report under Section: 173 Cr.P.C. was submitted in the Court against the appellants by placing their names in column No.3 of the same; appellants were formally charge sheeted, however, they pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; prosecution during trial examined twelve (12) witnesses, out of which, medical evidence was furnished by Dr. Zain Safdar, Medical Officer (PW-1), ocular account was furnished by Tasawar Hussain Shah (complainant/PW-10) and Ghulam Murtaza Shah (PW-11) whereas detail of investigation of the case was deposed by Muhammad Iqbal Shah, Sub-Inspector/Investigating Officer (PW-12); prosecution after giving up Zameer Hussain Shah, Sajid Hussain Shah, Haider Ali, 1872/C, Dr. Nasir Iqbal Ranjha and Dr. Ghulam Shabbir (PWs) as being unnecessary and tendering reports of Punjab Forensic Science Agency, Lahore (Ex.PU and Ex.PV) closed its evidence; after recording of prosecution evidence, appellants were examined under Section: 342 Cr.P.C. but they refuted the allegations levelled against them; they neither opted to appear as their own witnesses under Section: 340(2) Cr.P.C. nor produced any evidence in their defence. Trial Court after conclusion of trial has convicted and sentenced the appellants as mentioned above through the impugned judgment dated: 14.12.2021. 5. Learned counsel for the appellants has submitted that convictions recorded against and sentences awarded to the appellants through impugned judgment are against the 'law and facts' and result of non-reading/misreading of evidence, therefore, same are not sustainable in the eyes of law. Learned counsel for the appellants finally prayed for acquittal of the appellants. 6. Conversely, learned Deputy Prosecutor General and learned counsel for the complainant have supported the impugned judgment and prayed for dismissal of the appeal. 7. Arguments heard. Record perused. 8. It is cardinal principle of law that each criminal case has its own peculiar facts and circumstances and that has to be weighed on the judicial parlance while taking into consideration as it is brought-forth. It has been noticed that as per case of prosecution, machinery of law was brought into motion by Tasawar Hussain Shah (complainant/PW-10) by way of moving application for registration of the case (Ex.PL). It has been mentioned by Muhammad Azam, ASI (PW-4) that case No.286/2019 dated: 03.10.2019 under Sections: 302, 109, 148, 149 P.P.C, Police Station: Shahpur Saddar, has been registered, report is submitted and relevant portion from the same is hereby scanned below:- which prima facie shows that said application was addressed to Station House Officer, Police Station: Shahpur Saddar and submitted in the Police Station, on which case (Ex.PE) was registered because any other proceedings conducted by any other police official to show that same was submitted by complainant to some other police official at any else place i.e. at the place of occurrence or on the way to the hospital and said police official after receipt of application, send the same to the Police Station for registration of the case is not mentioned on said application. It is astonishing to note that FIR No.286/2019 (Exh.PE) was recorded on the basis of aforesaid application and it has been mentioned in karwai police in the FIR that Muhammad Iqbal, Sub-Inspector of Police Station: Shahpur Saddar, after receiving information regarding the occurrence reached at THQ Hospital, Shahpur Saddar, found dead body of Munawar Abbas lying there, after apparent examination of the dead body, applications for postmortem examination and inquest report were prepared, dead body was being sent in the custody of Taqi Haider, 670/C and in these circumstances as well as application of complainant, offence under Sections: 302, 109, 148, 149 P.P.C have been found and application…
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