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Petitioner: Zahoor Hussain VS Respondent: StateHonorable Justice Sadiq Mahmud KhurramMuhammad Farooq
2026 Y L R 293 [Lahore (Multan Bench)] Before Sadiq Mahmud Khurram, J Zahoor Hussain---Appellant Versus The State---Respondent Criminal Appeal No. 698-J of 2020, heard on 25th June, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of witnesses at the time and place of occurrence---Chance witnesses, evidence of---Accused was charged for committing murder of the brother and nephew of the complainant by firing---Ocular account of the incident was narrated by the three prosecution witnesses---Relationship of the said prosecution witnesses with each other and with the deceased was admitted on record---Deceased N was the brother of two prosecution witnesses and the cousin of other prosecution witness, whereas deceased W was the son of deceased N ---Admitted fact that the prosecution witnesses were not the residents of the place of occurrence, as the occurrence had taken place on a road---According to the statements of the prosecution witnesses, on the night of occurrence they were returning from DIK after closing their shops and were proceeding to their houses when the incident took place on the road---Complainant admitted during cross-examination that his house was at a distance of 17 kilometers from his shop, whereas the road/place of occurrence was between his house and his shop---Other witness gave the distance between his house and the place of the occurrence as three kilometers---Another witness gave the distance between his house and the place of the occurrence as three kilometers---In this manner, the prosecution witnesses could be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place and time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same---Said witnesses failed to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place---Perusal of the statements of the said witnesses revealed that the reason given by them for following the deceased to the place of occurrence was that they all were returning to their houses from their shops, however the shops of the witnesses were never either shown to the Investigating Officer of the case nor were visited by the Investigating Officer of the case to verify their existence---No person appeared during the investigation of the case or before the Trial Court to prove the existence of any shops of the prosecution witnesses, from which shops they were returning when they happened to arrive at the place of the occurrence---Neither the place of occurrence was near the houses nor the shops of the prosecution witnesses nor the claimed existence of the shops of the prosecution witnesses was proved---In that manner, the prosecution witnesses were badly exposed with regard to the fact there did not exist any reason for their arrival at the place and time of occurrence---Complainant even admitted that he had not mentioned the reason for the presence of the prosecution witnesses in his statement given to the police---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Non-production of motorcycle used by alleged witnesses---Accused was charged for committing murder of the brother and nephew of the complainant by firing---Though it was claimed by the prosecution witnesses that they had gone to the place of occurrence on one motorcycle, however, during the course of the investigation as well as before the Trial Court, the said motorcycle, allegedly used by the witnesses to arrive at the place of occurrence, was not produced---Police Officer and the Investigating Officers of the case, came to the place of occurrence after the occurrence and remained at the said place for a considerable time---During the course of their stays at the place of occurrence, said official witnesses did not take into possession the motorcycle allegedly used bythe said prosecution witnesses to arrive at the place of occurrence, along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officers during their visits at the place of the occurrence, if the same was available---Said motorcycle, which was allegedly used by said witnesses to arrive at the place of occurrence, was not even produced during the entire period of investigation, nor was it produced before the Trial Court---Non-production of the motorcycle used by the prosecution witnesses to arrive at the place of occurrence and the failure of said witnesses as well as the Investigating Officers of the case to produce the same before the Trial Court led to only one conclusion and that being that no such motorcycle was available---Had a motorcycle been used by the prosecution witnesses to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of official witnesses and the same would necessarily have been taken into possession by the Investigating Officers of the case, but it was not and it proved that a false claim was made by the prosecution witnesses that they had arrived at the place of occurrence on a motorcycle---In that manner, the prosecution witnesses failed to prove that they had indeed arrived at the place of occurrence, at the time when the same was happening---Appeal against conviction was allowed, in circumstances. Muhammad Ali v. The State 2015 SCMR 137 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light not proved---Accused was charged for committing murder of the brother and nephew of the complainant by firing---Eye-witnesses claimed that they had identified the accused with the help of the light of the motorcycle which they were riding upon when the occurrence took place and otherwise it was dark at the time of the occurrence---Despite admitting that the occurrence had taken place when it was dark, still the source of light, the bulb of the motorcycle, which allowed the witnesses to observe the occurrence, was not produced---During the course of the investigation and even before the Trial Court, the motorcycle used by the prosecution witnesses to get to the place of occurrence and also used as a source light to witness theoccurrence, was not produced, therefore, it could not be claimed that the said witnesses had witnessed the occurrence in the light of the said motorcycle---Non-production of any light source, available and lit at the place of occurrence, at thetime of occurrence and the failure of the witnesses as well as the Investigating Officers of the case to produce the same before the Trial Court led to only one conclusion and that being that no such source of light was available with the witnesses or available at the place of occurrence which could have enabled the eye-witnesses to have identified the assailant and also spectate the role of the assailant as acted by him during the occurrence---Absence of any light source had put the whole prosecution case in the murk---It was admitted by the witnesses themselves that it was a dark night and as the prosecution witnesses failed to prove the availability of any light source, their statements with regard to them identifying the assailant could not be relied upon---Failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence, had repercussions, entailing the failure of the prosecution case---Appeal against conviction was allowed, in circumstances. Gulfam and another v. The State 2017 SCMR 1189; Hameed Gul v. Tahir and 2 others 2006 SCMR 1628; Basar v. Zulfiqar Ali and others 2010 SCMR 1972; Azhar Mehmood and others v. The State 2017 SCMR 135 and Arshad Khan v. The State 2017 SCMR 564 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Inquest report lacking details of complainant and eye-witnesses---Accused was charged for committing murder of the brother and nephew of the complainant by firing---Record showed that none of the prosecution witnesses were mentioned either in column No. 4 and at page 4 of the inquest report related to deceased N and W as being the witnesses who had identified the dead bodies of the deceased at the time of preparation of the inquest report related to both deceased---Said fact also pointed towards the absence of the witnesses at the place of occurrence, at the time of preparation of the inquest report by the Investigating Officer of the case and also pointed towards the absence of the prosecution witnesses in the hospital at the time of preparation of the inquest report related to deceased W by the Investigating Officer of the case---Said witnesses made no effort to take the deceased W to the hospital when he was injured---Such conduct of the witnesses, where they failed to take the deceased to the hospital in an injured condition, revealed their absence at the place of occurrence---Appeal against conviction was allowed, in circumstances. Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155; Zaheer Sadiq v. Muhammad Ijaz and others 2017 SCMR 2007 and Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Recovery of pistol, mobile phone device and a broken lock from the accused---Inconsequential---Non-association of private witnesses---Accused was charged for committing murder of the brother and nephew of the complainant by firing---Regarding the recovery of the pistol and the recoveries of the mobile phone device and a broken lock from the appellant, the same could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol and the recoveries of the mobile phone device and a broken lock from the appellant which was in clear violation of S.103, Cr.P.C---Recovery witness admitted during cross-examination that Investigating Officer did not call any private person to become the witness of recovery proceedings---Investigating Officer did not call any village headman, councillor etc.---Provisions of S.103 Cr.P.C, unfortunately, were honoured more in disuse than compliance---Furthermore, Investigating Officer also admitted that the place from where the pistol was recovered was accessible to all and not in theexclusive possession of the appellant---Moreover, the mobile phone device and a broken lock were recovered from the chowbara of one MI , however, the said person never appeared as a witness either before the Investigating Officer of the case or the Trial Court---Therefore, the evidence of the recovery of the pistol and the recoveries of the mobile phone device and a broken lock from the appellant could not be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence---All these facts denuded the effort made by the Investigating Officer of the case to prop up the failing prosecution case by showing sham recoveries of the pistol and the mobile phone device and a broken lock---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the brother and nephew of the complainant by firing---Motive of the occurrence as stated by the prosecution witnesses was that the appellant had developed illicit relations with female Z since acquitted, who was the wife of deceased and therefore he murdered both the deceased---Perusal of the statements of the prosecution witnesses revealed that they failed to prove the motive of the occurrence as narrated by them in their statements before the Trial Court---Prosecution witnesses admitted that they had not mentioned the existence of the motive in their previous statements recorded by the police during the investigation of the case---Complainant during cross-examination, admitted that in complaint, he did not mention any motive of the occurrence---Other witness admitted during cross- examination that in his statement to the police he did not mention the motive of illicit relations between Z and accused appellant---Another witness admitted during cross-examination that he did not mention the motive of illicit relations between Z and appellant---Such portions of the statements of prosecution witnesses clearly proved that the prosecution witnesses failed to provide evidence enabling this Court to determine the truthfulness of the motive alleged---Said witnesses failed to prove the fact that the said motive was so compelling that it could have led the appellant to have committed the qatl-i-amd of the deceased---There was a haunting silence with regard to the minutiae of motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Moreover, it was an admitted rule of appreciation of evidence that motive was only a supportive piece of evidence and if the ocular account was found to be unreliable then motive alone could not be made basis of conviction---Even otherwise a tainted piece of evidence could not corroborate another tainted piece of evidence---Appeal against conviction was allowed, in circumstances. Muhammad Javed v. The State 2016 SCMR 2021 rel. (g) Criminal trial--- ----Medical evidence---Scope---Medical evidence by its nature and character cannot recognize a culprit in case of an unobserved incidence. Hashim Qasim and others v. The State 2017 SCMR 986 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel. (h) Criminal trial--- ----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person is available, then such benefit would be extended to an accused not as a matter of concession but as of right. Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The State 2021 SCMR 736 rel. Muhammad Farooq for Appellant. Umar Farooq Khan, Additional Prosecutor General for the State. Date of hearing: 25th June, 2025. Judgment Sadiq Mahmud Khurram, J.---Zahoor Hussain son of Manzoor Hussain (convict) was tried along with Zakia Bibi (since acquitted), the co-accused of the convict by the learned Additional Sessions Judge, Bhakkar, in case FIR No. 464 of 2018 dated 09.10.2018 registered in respect of offences under sections 302 and 109 P.P.C. at the Police Station Saddar Bhakkar District Bhakkar for committing the Qatl-i-Amd of Nazar Hussain son of Ranjhu (deceased) and Waqar son of Nazar Hussain (deceased). The learned trial court vide judgment dated 28.02.2019, convicted Zahoor Hussain son of Manzoor Hussain (convict) and sentenced him as infra: Zahoor Hussain son of Manzoor Hussain : Imrisonment for Life on two counts under section 302(b) P.P.C as Tazir for committing Qatl-i-Amd of Nazar Hussain son of Ranjhu (deceased) and Waqar Hussain son of Nazar Hussain (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased and in case of default, the convict was ordered to further undergo six months of simple imprisonment for each default. Zakia Bibi, the co-accused of the convict, was however acquitted by the learned trial court. 2. Feeling aggrieved, Zahoor Hussain son of Manzoor Hussain (convict) lodged the instant Criminal Appeal No.698-J of 2020 assailing his conviction and sentence. 3. Precisely, the necessary facts of the prosecution case, as stated by Ehsan Ullah (PW-17), the eye-witness of the case, are as under: - Stated that I used to run a peter workshop in Dera Ismail Khan while Nazar Hussain deceased my brother was used to run a shop of spare parts in Dera Ismail Khan City. On 09.10.2018 at sham waila after closing our shops we were coming back towards our house from Dera Ismail Khan on motorcycles. Nazar Hussain my brother was on motorcycle No. 7759/BKK driven by him and Waqar his minor son was sitting behind on rear seat of sald motorcycle. While I, Aman Ullah and Allah Ditta PWs were on another motorcycle. Nazar Husain deceased my brother and Waqar my nephew were going ahead from us on motorcycle at some distance. On the same day at about 06:25 p.m when we reached at Jhanda Ramp Kotla Dera Road, in the meantime Zahoor Hussain accused present in the court armed with pistol emerged from left side suddenly. Within our view Zahoor Hussain stopped the motorcycle of Nazar Hussain and made fire shots of his pistol upon Nazar Hussain and Waqar. First fire shot was received to Waqar in front of his mouth and outer side of his left thigh. Waqar fell down. In the meantime Nazar Hussain tried to run away towards right side of the road then Zahoor Hussain accused fired with his pistol on back of his head. Zahoor Hussain also repeated the fire shot hitting him on his head. In this process Zahoor Hussain accused made fire with the pistol on Nazar Hussain deceased which hit him on his left shin. After receiving the fire shot Nazar Hussain also fell on the road towards right side. I, Allah Ditta and Aman Ullah witnessed the occurrence in the light of motorcycle. Zahoor Hussain accused fled the scene on motorcycle. We took care of Nazar Hussain and Waqar Hussain and Nazar Hussain succumbed to the injuries at the spot while Waqar was in critical condition and he was shifted to DHQ Hospital Bhakkar on private vehicle but later said Waqar was also succumbed to the injuries. Motive behind the occurrence is that Zahoor Hussain developed illicit relations with the wife of his uncle Nazar Hussain deceased. Nazar Hussain deceased was hurdle in the way of their illicit relations because said Zahoor Hussain wanted to marry with Zakia Bibi his co-accused. Due to this reason Zahoor Hussain and Mst. Zakia Bibi made a plan for committing the murder of Nazar Hussain. So in compliance of their illicit task and design Zahoor Hussain committed the murder of his real uncle Nazar Hussain and his minor son Waqar barbarically and brutally. After the occurrence police reached at the spot and I made my statement Ex.PE to Thanadar and I put my signature below my statement Ex.PE/2. After the occurrence because I was in perplexed condition, so could not nominate the accused Zahoor Hussain in my statement Ex.PE but on the same time and place I recorded my supplementary statement Ex.PP to I.O regarding the nomination of accused Zahoor Hussain. On the same night Mukhtiar Hussain and Fiaz Hussain PWS also met to 10 at the spot in my presence and they also stated before 10 that they had seen accused Zahoor Hussain while riding on motorcycle on link read towards south. On following day i.e 10.10.2018 Abdul Ghafoor and Allah Ditta PWs also met me at my house and they stated before me that Zahoor Hussain accused confessed his guilt before them. So I took the above said PWs before I.O at Police Station Saddar Bhakkar and presented written application Ex.PQ for nomination of accused Zakia Bibi widow of Nazar Husain deceased. On the same day IO also recorded the statements of Abdul Ghafoor and Allah Ditta PWs regarding the extra judicial confession of accused. IO also recorded my statement under section 161 Cr.P.C in this behalf. On 31.10.2018 I joined the investigation with the IO. Zahoor Hussain was on physical remand and he was under interrogation by the IO at Police Station Saddar Bhakkar. In my presence as well in the presence of Ghazanfer Abbas 780/C Zahoor Hussain accused made disclosure that he can get recovered the mobile phone of Nazar Hussain deceased. On the basis of his disclosure he led to the place of recovery and got recovered the mobile phone Nokia Company Model RM-1136 P-17 black in colour from iron box under the cot which was lying in the chobara/room of Muhammad Iqbal Dhap after breaking the lock of stairs. Said mobile phone was wrapped in green coloured shopper and IO took it into possession along with broken lock P-18 vide recovery memo Ex.PK attested by me and Ghazanfer Abbas constable. I.O recorded my statement in this regard. 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 19.12.2018, to which the accused pleaded not guilty and claimed trial. 5. The prosecution, in order to prove its case, got statements of as many as twenty-one witnesses recorded. The ocular account of the case was furnished by Ehsan Ullah (PW-17), Aman Ullah (PW-18) and Allah Ditta (PW-19). Fiaz Hussain (PW-10) and Mukhtiar Hussain (PW-11) stated that on 09.10.2018 at 06.30 p.m they had also seen the appellant on a motorcycle after the incident. Allah Ditta (PW-15) and Abdul Ghafoor (PW-16) stated that on 10.10.2018, the appellant confessed to his guilt in their presence, while in the custody of the police. Nazar Hussain 55/C (PW-2) stated that on 09.10.2018, he escorted the dead body of Nazar Hussain (deceased) to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Inayat Ullah Moharrir (PW-3) stated that on 09.10.2018, the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained earth and one sealed parcel said to contain empty shells of bullets and on 17.10.2018, he handed over the said parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 04.11.2018, the Investigating Officer of the case handed over to him a sealed parcel said to contain a pistol and on 06.11.2018 he handed over the said parcel to Ameer Hussain, ASI (PW-5), for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Shah Jahangir, ASI (PW-4) stated that on 09.10.2018, he got recorded the formal FIR (Exh.PF). Sami Ullah 769/C (PW-6) stated that on 09.10.2018, he escorted the dead body of Waqar (deceased) to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Shafique Khan, draftsman (PW-7) prepared the scaled site plan of the place of occurrence (Exh.PH).Muhammad Hayat Khan, SI (PW-20), the Investigating Officer of the case, investigated the case from 09.10.2018 till 07.12.2018, arrested the appellant namely Zahoor Hussain on 26.10.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Amir Sohail (PW-1) examined, who on 09.10.2018 was posted as Medical Officer at DHQ hospital Bhakkar and on the same day conducted the post mortem examination of the dead body of Nazar Hussain son of Ranjhu (deceased). Dr. Amir Sohail (PW-1), on conducting the post mortem examination of the dead body of Nazar Hussain son of Ranjhu (deceased) observed as under: -
Injury No. 1-a A fire arm wound of entry 1/2 cm x 1/2 cm on back of head, 05 cm from posterior hair line, 12 cm from right ear. Injury No.1-b. Exit wound of 1-A of 01 cm x 01 cm on right eyebrow, brain matter was coming out of it, margins were everted Injury No.2-a. A fire arm entry wound of 1/2 cm x 1/2 cm on right side of head, 03 cm fram right ear. Injury No.2-b. Exit wound of 2-A was on forehead of 01 cm x 01 cm, 02 cm from right eyebrow. Margins were outward. Injury No.3-a. A fire arm entry wound of 1.5 cm x 1.5 cm on anterolateral side of left leg. 07 cm from left medial melleolus. Injury No.3-b. Exit wound of injury 03-A was on medial side of left leg 02 cm x 0.5 cm of size, 04 cm from left medial melleolus, with outward margins. .. According to my opinion cause of death is injury Nos.01 and 02 which resulted into massive brain damage and death. These are ante mortem in nature and can cause death in normal course of life. The prosecution also got Dr. Ihsan Ullah (PW-12) examined, who on 09.10.2018 was posted as Medical Officer at DHQ hospital Bhakkar and on the same day conducted the post mortem examination of the dead body of Waqar son of Nazar Hussain (deceased). Dr. Amir Sohail…
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