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Official Citation: 2025 LHC 1544
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-01-21
Parties: The State, Waqar Ali vs Waqar Ali, The State
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-01-21, officially reported as 2025 LHC 1544. In this matter between The State, Waqar Ali and Waqar Ali, The State, 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 2025LHC1544
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Sultan Tanvir Ahmad Title: The State, Waqar Ali vs Waqar Ali, The State Case No.: Murder Reference No.10 of 2021, Criminal Appeal No. 587-J of 2021 Date of Judgment:2025-01-21 Reported As: 2025 LHC 1544 Result: Murder Reference Answered in Negative
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.-Waqar Ali son of Waris Khan (convict) was tried by the learned Additional Sessions Judge/Model Criminal Trial Court, Attock in case F.I.R. No. 169 of 2019 dated 23.06.2019 registered at Police Station Hazro, District Attock in respect of offences under sections 302,452,354,337-F(i) and 337-F(ii) P.P.C. for committing the Qatl-i-Amd of Sajida Bibi wife of Liaquat (deceased). The learned trial court vide judgment dated 06.01.2021, convicted Waqar Ali son of Waris Khan (convict) and sentenced him as infra: Waqar Ali son of Waris Khan: - i) Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Sajida Bibi wife of Liaquat (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment. ii) Rigorous Imprisonment for two years under section 354 PPC. iii) Rigorous Imprisonment of one year under section 337- F(i) PPC and directed to pay Daman of Rs.50,000/- to Nida Bibi (PW-11) iv) Rigorous Imprisonment of three years under section 337- F(ii) PPC and directed to pay Daman of Rs.80,000/- to Nida Bibi (PW-11). v) Rigorous Imprisonment of seven years under section 452 PPC and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to undergo further six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
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All the sentences awarded to the convict were ordered to run concurrently by the learned trial court. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was also extended to the convict by the learned trial court. 2. Feeling aggrieved, Waqar Ali son of Waris Khan (convict) lodged Criminal appeal No.587-J of 2021 through jail assailing his conviction and sentences. The learned trial court submitted Murder Reference No.10 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Waqar Ali son of Waris Khan. We intend to dispose of the Criminal Appeal No. 587-J of 2021 and Murder Reference No.10 of 2021 through this single judgment. 3. Precisely the necessary facts of the prosecution case, as narrated by Nida Bibi (PW-11), the injured witness of the case, are as under: - "Stated that on 23.06.2019, at about 03:00 AM, I alongwith my brother Usama and my mother Sajida Bibi were sleeping bulbs in our house. Inside and outside of bulbs of our house, were lighting at that time. In the meanwhile, Waqar Ali son of Waris Khan (accused present in the court) who is our relative, scaled over the wall of our house. He awoke me and tried to outrage my modesty and I resisted. He was holding Churri in his hand. He injured me while inflicting Churri blows on my hands and leg. On my shouting, my brother Usama and mother Sajida Bibi were awaked and they tried to apprehend the accused. As accused was armed with Churri, therefore, my mother became frightened and entered into bathroom in fear. Accused followed her and also went into bathroom. He caught hold my mother Sajida Bibi and gave consecutive blows of Churri on her body who fell down on the floor of bathroom in injured condition. Then accused decamed from the spot while brandishing Churri. In the meanwhile, my maternal uncle Muhammad Refan came there and I narrated whole the occurrence to him. Accused entered into our house with bad intention, tried to outrage my modesty and also injured me and my mother. Thereafter, I and my mother were brought to THQ Hospital Hazro where our medical examinations were conducted. Police also arrived there and recorded statements u/sec. 161 Cr.P.C.." 4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused was sent to face trial. The learned trial court framed the charge against the accused on 19.12.2019, 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 thirteen witnesses recorded. The ocular account of the case was furnished by Nida Bibi (PW-11). Muhammad Refan (PW-10) stated that on the night of occurrence he saw the appellant coming out of the house of the deceased while armed with a Churri and was told about the details of the occurrence by Nida Bibi (PW-11). Waqar Ali (PW-12) stated that on 23.06.2019, he identified the dead body of the deceased at the time of its post mortem examination and on 05.07.2019, the appellant got recovered Churri (P-9). Asif Mahmood, ASI (PW-2) stated that on 23.06.2019, he got recorded the formal F.I.R. (Exh.PD). Muhammad Yaseen 2170/HC (PW-3) stated that on 23.06.2019, he escorted Nida Bibi (PW-11) and Sajida Bibi (then injured later deceased) to the hospital and received the last worn clothes of Nida Bibi (PW-11) from the Woman Medical Officer and handed them over to the Investigating Officer of the case. Shaila Bibi 679/LHC (PW-5) stated that on 23.06.2019, she escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Woman Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Irfan 1836/HC (PW-8) stated that on 23.06.2019, the Investigating Officer of the case handed him over one sealed parcel said to contain blood stained cotton swab, last worn clothes of Nida Bibi (PW-11) and Sajida Bibi (deceased) and on 02.07.2019, he handed over the sealed parcels said to contain the blood stained cotton swab to Anjam Sohail (PW-13) for its
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onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 05.07.2019, the Investigating Officer of the case handed over to him a sealed parcel said to contain a Churri which on 14.07.2019 , he handed over to the Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Bashir Ahmad Awan, draftsman (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PP). Sahib Khan, SI (PW-6) investigated the case on 23.06.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Anjum Sohail, SI (PW-13), the Investigating Officer of the case, investigated the case from 23.06.2019 till 28.08.2019, arrested the appellant in this case on 23.06.2019 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. Huma Ikram (PW-1) examined, who on 23.06.2019 was posted as Woman Medical Officer at the THQ Hospital, Hazro and on the same day conducted the post mortem examination of the dead body of the deceased. Dr. Huma Ikram (PW-1) after conducting the post mortem examination of the dead body of the deceased namely Sajida Bibi wife of Liaquat, observed and opined as under: - "Description Of Injuries 1. An incised wound 1.8cm approximately in size about 8.5cm below the clavicle and 3.5cm to the left of lateral border of sternum. 2 Incised wound 1.8cm in size about 14cm to the left/posterior to the nipple of left breast. 3. Incised wound about 8cm posterior to the left anterior axillary fold. 4. A wound 1cm approximately in size about 5cm below and 10cm to left of nipple of left breast. 5. Incised wound 1.5cm in size at the back of patient on left side about 4cm away from the mid line and 10 cm above the iliac crest. 6. Incised wound 1.5cm in size about 14.5cm above the olecranon process of left elbow on extensor surface of arm. 7. An incised wound 1cm in size approximately 4cm away from the sixth wound. 8. A lacerated wound approximately 1.5cm x 1.5cm in size on the little finger of left hand. 9. An abrasion 1cm x 1cm on right arm on extensor surface just below olecranon process. 10. An incised wound Icm in size at lower border of left patella ................ Opinion In my opinion, cause of death was cardiopulmonary arrest due to hypovolemic shock resulting from injury No. 1 to 4." The prosecution also got Dr. Shajar Abbas (PW-4) examined, who on 23.06.2019 was posted as Woman Medical Officer at the THQ Hospital, Hazro and on the same day conducted the medical examination of Nida Bibi (PW-11). Dr. Shajar Abbas (PW-4) on examining Nida Bibi (PW-11) observed as under: - "Description of Injuries: On examination, I found following injuries on the person of injured: 1. A small.1cm x 1cm incised wound on the base of left index finger. All the movements at joint are intact. 2. 2cm x 1cm lacerated wound, 5cm away from right popliteal fossa on lateral aspect. No active bleeding and all the movements at joint are intact. No swelling or bruise at the time of examination." On 23.06.2019 Dr. Shajar Abbas (PW-4) also conducted the medical examination of Sajida Bibi (then injured later deceased). Dr. Shajar Abbas (PW-4) on examining Sajida Bibi (then injured later deceased) observed as under: - "1. 2cm x 1cm wound on left anterior side of chest 16cm away from left shoulder's joint (laceration).
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2. 1cm x 1cm on left side of chest below axilla 21cm from left shoulder's joint (laceration). 3. 1.5cm x 1cm wound on left side of chest below axilla 23cm from left shoulder's joint (laceration). 4. 2cm x 1cm wound on left back side of chest 20cm from left shoulder's joint (laceration). 5. 2cm x 1cm wound on left little finger (laceration). 6.5cm x.5cm incised wound 2cm away from patella left leg" 7. On 05.11.2020, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Usama and Liaquat Ali as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PU). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Waqar Ali son of Waris Khan under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Waqar Ali son of Waris Khan opted not to get himself examined under section 340(2) Cr.P.C however got Kamran Ali 998/HC examined who produced the copies of documents (Exh.DA and Exh.DB). 9. On the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court, Attock, convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant was that the whole case was fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statement of Nida Bibi (PW-11) was not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt. 11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statement of Nida Bibi (PW-11). The learned Deputy Prosecutor General further argued that the recovery of the Churri (P-9) and the report of Punjab Forensic Science Agency, Lahore (Exh.PU) also corroborated the ocular account. The learned Deputy Prosecutor General further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General prayed for the rejection of the appeal. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance have perused the record and evidence recorded during the trial. 13. The learned Deputy Prosecutor General has vehemently argued that as the prosecution witness namely Nida Bibi (PW-11) was injured during the occurrence, therefore, her statement could not be doubted in any manner. The stamp of injuries on the person of a witness may be proof of her presence at the place of occurrence, at the time of occurrence, however the same can never guarantee a truthful deposition. Injuries received by a witness during an incident do not warrant acceptance of her evidence without scrutiny. At the most, such traumas can be taken as an indication of her presence on the spot, but still, her evidence is to be scrutinized on the benchmark of principles laid down for the appraisal of evidence. It is not a given that a witness who suffered injuries during the occurrence will depose nothing but the truth. Even otherwise, it is not the simple presence of a witness at the crime scene but his credibility, which makes him a reliable witness. It has been held by the august Supreme Court of Pakistan repeatedly that the facts which an injured
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witness narrates are not to be implicitly accepted rather, they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under: "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth". Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that the presence of injuries does not stamp a witness to be a truthful one and observed as under:-. "12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not s h o w that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the F.I.R. namely Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused." In the case of Mehmood Hayat supra at page 1417, it has been observed as under:- "10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony." In the case of Mehmood Ahmed supra, this Court at page 7 observed as under: "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness." 13. From the above evidence of the P. Ws, they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence." With this principle of appreciation of evidence in our minds that an injured witness cannot be presumed to be also a truthful witness, we have proceeded to examine the statement of the prosecution witness namely Nida Bibi (PW-11) , the only witness produced by the prosecution who stated that she had witnessed the occurrence. In this regard we have noticed that though the prosecution witness namely Nida Bibi (PW-11) claimed that the appellant had inflicted blows upon her with a knife and Dr. Shajar Abbas (PW-4) when examined Nida Bibi (PW-11) observed the presence of two injuries on her body, however, Dr. Shajar Abbas (PW-4) herself declared that the possibility of fabricating the said injuries could not be ruled out. Dr. Shajar Abbas (PW-4), after examining Nida Bibi (PW-11), stated as under:- "Possibility of Fabrication: Cannot be ruled out" It is also a fact that Sahib Khan, SI (PW-6) and Anjum Sohail, SI (PW-13), the Investigating Officers of the case, did not take any blood stained cotton swabs from the place of occurrence where Nida
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Bibi (PW-11) was present and had suffered the injuries which also proves the absence of Nida Bibi (PW-11). Furthermore, according to Nida Bibi (PW-11), on the night of the occurrence she, along with her minor children, the deceased and her brother namely Usama were sleeping in the one room of the house where the occurrence took place on cots. Nida Bibi (PW-11) during cross-examination stated as under:- "Three cots were lying in the compound" A perusal of the scaled site plan of the place of occurrence (Exh.PP) as prepared by prepare by Bashir Ahmad draftsman (PW-9) and the rough site plan of the place of occurrence (Exh.PM) as prepared by Sahib Khan, SI (PW-6) reveals that no such cots have been marked in the said site plans (Exh.PP and Exh.PM) as being present in the said site plans at the place of occurrence. It is also a fact that during the course of investigation, Sahib Khan, SI (PW-6) and Anjum Sohail, SI (PW- 13), the Investigating Officers of the case, did not take any such cots into possession on which cots Nida Bibi (PW-11) along with her minor children and her brother namely Usama were sleeping on the night of occurrence. All these facts prove the absence of Nida Bibi (PW-11) at the place of occurrence, at the night of the occurrence. 14. More importantly, we have noticed with grave concern that the statement of Nida Bibi (PW-11) was in direct contradiction to the opinion and observations of Dr. Shajar Abbas (PW-4). In this regard, it is observed that according to the prosecution witness namely Nida Bibi (PW-11), the appellant had used a Churri to inflict the various injuries upon her as well as the deceased. Obviously, a Churri is a sharp edged weapon and any injury inflicted by using the same would result in causing incised wounds. In Chapter 25, 'INJURIES BY MECHANICAL VIOLENCE', from page 615 to page 620 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), it has been discoursed as under:- "Lacerated wounds are tears or splits produced by blows from blunt objects and missiles, by violent falls on hard projecting surfaces, by machinery and railway accidents, by the wheels of a vehicle causing a grinding compression by their weight resulting in avulsion of the skin. They can also be caused by the claws, teeth or horns of animals and by projecting nails, or by over stretching of the skin over broken bones. These wounds do not generally correspond in shape or size to the weapon producing them. Their edges are torn, jagged, irregular and swollen or contused. The tissues are torn and the skin beyond the seat of injury is ecchymosed and the underlying bones are likely to be fractured, while the internal organs may be injured. Foreign bodies, such as earth, grease, machine oil, cinders, hair, or fibres of clothing are frequently found in the wound and hence they are also predisposed to infection. When produced by a blunt weapon, such as a club (lathi), crowbar, stone, or brick, a lacerated wound is usually accompanied by a considerable amount of bruising of the surrounding and underlying tissues, and has inverted and irregular edges. When a heavy weight like a wheel of a heavy cart of a truck passes over any extremity, by its shearing and grinding force, it tears the skin from the underlying tissues and crushes the muscles and soft parts beneath it, releasing considerable blood and fat in them. Crush syndrome or fat emboli may occasionally follow. The direction of the shelving of the margins of a lacerated wound indicates the direction of the blow applied to cause the wound. External haemorrhage in lacerated wounds is, as a rule, not extensive, owing to the fact that the arteries are not cut evenly, but are torn across irregularly so as to facilitate clotting of the blood. But internal haemorrhage from ruptured viscera may be severe and fatal. In lacerated wounds of the scalp, the temporal arteries often spurt as freely and forcefully as when cut cleanly. These arteries being firmly bound are unable to contract, and may therefore, spurt and continue to bleed for a long time. ......................
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Incised or Slash Wounds. An incised or slash wound is defined as orderly solution of skin and tissue by a sharp cutting weapon drawn across the skin. It may either be produced by light sharp cutting instruments such as knife, razor, scissors, or heavy sharp cutting weapons such as sword, gandasa (chopper), axe, hatchet, scythe, kookri or any object such as a broken piece of glass or metal which has a sharp, cutting pointed or linear edge and are mostly intentionally inflicted. The cutting edge of a knife may be completely or partly sharp and partly blunt and the other edge may be blunt, serrated, scalloped or hollow, all these variations affect the shape of the wound. Character of an Incised or Slash Wounds. An incised or slash wound is always broader than the edge of the weapon causing it owing to the retraction of the divided tissues. It is somewhat spindle-shaped and gaping, its length being greater than its width and depth. This gaping is greater in deep wounds when the muscle fibres have been cut transversely or obliquely. Its edges are smooth, even, clean-cur, well-defined and usually everted. The edges may be inverted, if a thin layer of muscular fibres is closely united to the skin, as in the scrotum. They may be irregular in cases where the skin is loose as in axilla and abdominal wall or the cutting edge of the weapon is blunt, as the skin will be puckered in front of the weapon before it is divided. The length of the incised wound has no relation to the length of the cutting edge of the weapon, but it may give some idea of the depth of penetration. The edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, or razor and may show signs of contusion. Such a wound is, as a rule, associated with extensive injuries to deep underlying structure or organs. A curved weapon, such as a scythe or sickle, first produces a stab or puncture and then an incised wound; sometimes the intervening skin may be left intact." (emphasis supplied) In this manner, if the statement of Nida Bibi (PW-11) was correct that the appellant had used a Churri to inflict the injuries upon her and the deceased, then not only she but the deceased must have suffered from smooth incised wounds without any signs of contusion, however, according to the statement of Dr. Shajar Abbas (PW-4), the injuries suffered by the deceased as well as Nida Bibi (PW-11) included lacerated wounds. Dr. Shajar Abbas (PW-4) on 23.06.2019 conducted the medical examination of Nida Bibi (PW-11) and observed as under: - "Description of Injuries: On examination, I found following injuries on the person of injured: 1. A small.1cm x 1cm incised wound on the base of left index finger. All the movements at joint are intact. 2.…
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