Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2022-10-17, officially reported as 2024 YLR 94. In this matter between Jan Muhammad Alias Jan and 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.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Jan Muhammad Alias Jan vs The State Case No.: Criminal Appeal No. 817-J and Murder Reference No. 126 of 2019 Date of Judgment:2022-10-17 Reported As: 2024 YLR 94 Result: Appeal allowed

JUDGMENT

JUDGMENT SADIQ MAHMUD KHURRAM, J. Jan Muhammad alias Jani son of Kaloo (convict) was tried along with Shah Dost son of Ali Murad (also convicted by the learned trial court, however, he has died since) by the learned Sessions Judge, Rajanpur in the case instituted upon the private complaint titled "Abdul Sattar v. Bilal Ahmad and 3 others" (relating to FIR No. 190 of 2010 dated 04.06.2010 registered at Police Station Dajal, District Rajanpur) in respect of offences under sections 302, 460 and 34 P.P.C. for committing the Qatl-i-Amd of Mushtaq Ahmad son of Karim Bakhsh (deceased). The learned trial court vide judgment dated 28.08.2019, convicted Jan Muhammad alias Jani son of Kaloo (convict) and sentenced him as under:- Jan Muhammad alias Jani son of Kaloo: i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Mushtaq Ahmad son of Karim Bakhsh (deceased and directed to pay Rs.400,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Mushtaq Ahmad son of Karim Bakhsh (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous Imprisonment for ten years under section 460, P.P.C. Shah Dost son of Ali Murad, the co- accused of the convict, was also convicted by the learned trial court, however, he has died since. 2. Feeling aggrieved, Jan Muhammad alias Jani son of Kaloo (convict), lodged the Criminal Appeal No.817-J of 2019 through jail, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.126 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant, namely Jan Muhammad alias Jani

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son of Kaloo as well as Shah Dost son of Ali Murad (also covicted and sentenced to death by the learned trial court, however, Shah Dost soft of Ali Murad has died since and the Criminal Appeal No.816-J of 2019 lodged by Shah. Dost son of Ali Murad, stands abated in terms of section 431 Code of Criminal Procedure, 1898). We intend to dispose of the Criminal Appeal No. 8174 of 2019 and the Murder Reference No.126 of 2019 through this 'single judgment. 3. Precisely, the necessary facts of the prosecution case, as stated by Abdul Sattar (PW-1), the complainant of the case, are as under:- "On 04.06.2010 I along with Mushtaq Ahmad deceased and Hafiz Muhammad Ismail with Azhar house members were sleeping and woke up at 01.00 a.m on the hue and cry of Mushtaq Ahmad deceased. At that time, Abdul Ghaffar also came there and in the light of electric bulb we saw that Shah Doast and Jan Muhammad both accused present before the court armed with Kalashnikovs, Bilal Ahmad armed with pistol 12-bore and Haq Nawaz armed with Kalashnikov were there. Shah Doast and Jan Muhammad accused present before the court were taking away motorcycle towards door of the Haveli while Mushtaq Ahmad deceased was pulling said motorcycle by holding it from the backside. The door of the Haveli was opened. At that moment Bilal Ahmad co-accused raised Lalkara to Mushtaq Ahmad deceased to leave the said motorcycle otherwise they will not left him alive because he had lodged an FIR about kidnapping of the girl against them. Then Haq Nawaz fired with Kalashnikov which hit on the chest of Mushtaq Ahmad deceased while Bilal accused made a fire with his pistol 12-bore which also hit on the chest of deceased Mushtaq Ahmad Shah. Dost and Jan Muhammad accused persons present in court left the motorcycle and fired at Mushtaq Ahmad deceased with their Kalashnikovs which hit on the chest and arms of Mushtaq Ahmad. Hariz Ismail P.W caught hold Kalashnikov of Haq Nawaz accused that left Kalashnikov and ran away while other accused persons also ran away with their respective weapons. Bilal accused also took away the mobile phone (Nokia 1680 with camera) of Mushtaq Ahmad deceased. We moved forwarded but Bilal accused raised Lalkara that if we came close we will also be dealt with the same as has been done with Mushtaq Ahmad deceased. Accused persons left the motorcycle of Mushtaq Ahmad deceased and escaped. Motive behind the occurrence was that accused Bilal kidnapped one Mst. Mehtab Bibi daughter of Munir Ahmad for committing Zina and in this regard Mushtaq Ahmad deceased got lodged an FIR against Bilal accused and parents at police station Dajal. Due to influence of Mushtaq Ahmad deceased said abductee was returned back and due to this grudge all the accused persons entered in our house and committed murder of my brother Mushtaq Ahmad in furtherance of their common intention while making the excuse of theft of motorcycle. Thereafter, I went to police station while leaving Hafiz Ismail and Abdul Ghaffar PWS with the dead body. I was in the way to police station, when police met me at Turrki road to whom I got recorded my statement but they did not read over the same to me and got affixed my thumb impression. The police came at the place of occurrence and collected the evidence i.e blood stained earth, arms etc and sent the dead body for postmortem and handed over the dead body to us after postmortem. After many days, when proceedings started in our case and we engaged a counsel then we came to know that our FIR was registered against some un-known persons and police did this dishonestly. So I filed instant private complaint Ex.P-A. Shah Doast accused present in court was arrested on 29.05.2016 as he was P.O in this case. Police investigated from him. I and Abdul Ghaffar P.W joined the investigation at police station where during interrogation Shah Dost accused present in court made disclosure in our presence that he could get recovered. Kalashnikov weapon offence with which he fired at Mushtaq Ahmad deceased and he along with us and police in pursuance of disclosure led to the place of recovery of weapon of offence i.e Kalashnikov from his tent which was installed at the Eastern bank of Dajal canal which was taken into possession by Thanedar vide recovery memo Ex.P-B. I and Abdul Ghaffar P.W attested the same by affixing our thumb impressions. I.O also recorded my statement in this regard. There after accused was asked to point out the place of

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occurrence who expressed his consent. Then he pointed out the place of occurrence which was our house in which I and deceased were residing together and I.O. prepared the memo of pointation of place of occurrence Ex.P-C which was attested by me and Abdul Ghaffar by affixing our thumb impressions. I.O also recorded our statements in this regard. On 23.10.2018 I along with Hafiz Muhammad Ismaeel went to police station, where accused Jan Muhammad alias Jani was already in police custody. In our presence, the accused Jan Muhammad alias Jani that he could get recovered Kalashnikov, weapon of offence. In pursuance of said disclosure we along with police and accused went to the residence of accused which was in the shape of tent. Then the accused Jan Muhammad alias Jan got recovered Kalashnikov from an iron box. The same was taken into possession through recovery memo Ex.P-D. I and Hafiz Ismaeel attested the recovery memo. I.O recorded my statement in this regard." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Abdul Sattar v. Bilal Ahmad and 3 others" (relating to FIR No. 190 of 2010 dated 04.06.2010 registered at Police Station Dajal, District Rajanpur) in respect of offences under sections 302, 460 and 34 P.P.C. for committing the Qatl-i-Amd of Mushtaq Ahmad son of Karim Bakhsh (deceased). The learned trial court framed the charge against the accused on 18.12.2018, to which the accused pleaded not guilty and claimed trial. 5. The complainant of the case in order to prove its case got recorded statements of as many as seven witnesses. The ocular account of the case was furnished by Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2). Sharif Ahmad (PW-3) stated that on 04.06.2010, he identified the dead body of the deceased at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case in his presence. Altaf Hussain, SI (PW-5) investigated the case from 21.10.2018 till 31.10.2018 and detailed the facts of his investigation in his statement before the learned trial court. Abdul Rauf 676/HC (PW-6) stated that on 23.10.2018, the Investigating Officer of the case handed over to him a sealed parcel said to contain a Kalashnikov rifle which on 30.10.2018, he handed over the said parcel to the Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Noor Hassan, ASI (PW-7) stated that on 04.06.2010, he recorded the formal FIR (Exh.PL). 6. The learned trial court also examined as many as seven witnesses as court witnesses. Ghulam Yaseen, Patwari (CW-1) prepared the scaled site plan of the place of occurrence (Exh.CW-1/1). Muhammad Sadiq 210/C (CW-2) stated that on 08.06.2014, he was handed over non-bailable warrants of arrest of the appellant for execution, upon which his report was Exh.CW-2/1 and on 02.07.2014, he was handed over the proclamation (Exh.CW-2/3) under section 87 of the Code of Criminal Procedure, 1898 for its publication. Ijaz Ahmad, ASI (CW-3) stated that on 04.06.2010, the Investigating Officer of the case handed over to him sealed parcels said to contain blood stained earth, a Kalashnikov, an empty shell of a bullet and empty cartridges for keeping them in safe custody and on 13.07.2010, he handed over all the said parcels to Haq Nawaz 27/C for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Rasheed Ahmad 325/C (CW-4) stated that on 04.06.2010, he escorted the dead body of the 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. Allah Diwaya, SI (CW-5) conducted the investigation of the case from 16.10.2018 till 19.10.2018, arrested the appellant on 16.10.2018 and detailed the facts of his investigation in his statement before the learned trial court. Riaz Hussain Bukhari, SI (CW-6) conducted the investigation of the case from 23.05.2016 till 20.08.2016 and detailed the facts of his investigation in his statement before the learned trial court. Inayat Ullah 170/HC (CW-7) stated that on 18.08.2016, he handed over a sealed parcel said to contain a Kalashnikov rifle to Riaz Hussain Bukhari, SI (CW-6) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore.

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7. The learned trial court also examined Dr. Muhammad Rashid (PW-4), who on 04.06.2010 was posted as Senior Medical Officer at R.H.C. Dajal and on the same day conducted the post mortem examination of the dead body of the deceased, namely Mushtaq Ahmad son of Karim Bakhsh. Dr. Muhammad Rashid (PW-4) on examining the dead body of the deceased namely Mushtaq Ahmad son of Karim Bakhsh, observed as under:- "DESCRIPTION OF INJURIES 1) A fire arm wound 1 cm x 1 cm going deep, margins inverted, burning, blackening present, situated on left side of chest 8 cm above from left nipple. 2) A fire arm wound of 1 cm x 1 cm going deep, margins inverted, burning, blackening present situated on left side of chest, medial to injury No. 1. 3) A fire arm wound of 1 cm x 1 cm going deep, margins inverted, burning blackening present situated on left side of chest, on left lateral aspect of left nipple 7 c.m from left nipple. 4) Four fire arm wounds of 1 c.m x 1 c.mx skin, burning blackening present situated on left side of chest on lateral aspect of left nipple and one on nipple 5) SA fire arm wound of 1 cm x 1 c.m going deep, margins inverted, burning and blackening present situated on right arm anterio lateral aspect 11 c.m above from right elbow joint. (entry). 6) A lacerated wound of 9 cm x 6 cm margins everted, blackening not present situated on posterior aspect of right arm, 7 cm lateral to right armpit (exit) 7) Four fire arms wounds of 1 cm x 1 cm skin deep burning and blackening present situated on medial aspect of left arm 24 c.m below from 3rd on anterior medial aspect 16 cm below from left shoulder. 8) A fire arm wound of 1 cm x 1 cm going deep, margins inverted, burning blackening present situated on posterior aspect on left forearm 24 c.m below from left elbow joint (entry). 9) A lacerated wound of 1 1/2 cm x 11/2 cm margins everted, burning blackening not present, shaft of left radius fractured situated on anterior aspect of left forearm 11 cm from wrist joint (exit). 10) Two fire arm wounds of 1 cm x 1 cm skin deep burning blackening present situated on posterior aspect of left forearm 24 c.m below from left elbow joint. ......... Remarks All the injuries were ante-mortem and caused by fire arm weapon. Death occurred due to haemorrhage and shock and injury to the Vital organ (left lung and heart). So the injuries Nos. 1, 2 and 3 proved fatal which were sufficient to cause death in ordinary course of nature. Probable time between injury and death was immediate and between death and postmortem was 10 to 11 hours." 8. On 16.05.2019, the learned counsel for the complainant gave up, the witnesses namely Abdul Ghaffar and Allah Bachaya as being unnecessary. On 23.05.2019, the learned counsel for the complainant gave up the witnesses namely Rab Nawaz and Muhammad Ramzan as being unnecessary. On 25.06.2019, the complainant of the case closed the prosecution evidence after tendering the report of the Punjab Forensic Science Agency, Lahore (Exh.PN) and the copies of the statements of Haq Nawaz 27/C (since dead) (Exh.PO) and Syed Akhtar Hussain, SI (since dead) (Exh.PP). 9. After the closure of prosecution evidence, the learned trial court examined the appellant, namely Jan Muhammad alias Jani son of Kaloo under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant, namely Jan Muhammad alias Jani son of Kaloo, opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence. 10. At the conclusion of the trial, the learned Sessions Judge, Rajanpur convicted and sentenced the appellant as referred to above.

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11. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy, of any reliance. The learned counsel for the appellant also submitted that the recoveries made in the case were full of procedural defects, of no legal worth and value, and were the. Result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt. 12. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Jan Muhammad alias Jani. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recoveries also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal. 13. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance. 14. The whole prosecution case revolves around the statements of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2), with the deceased, is on record. Mushtaq Ahmad (deceased) was the brother of both the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2). The prosecution witness namely Abdul Sattar (PW-1) also admitted during cross- examination that his house was at a distance of as much as 5/6 acres from the place of occurrence. The prosecution witness namely Abdul Sattar (PW-1), during cross-examination stated as under:-"In the night of occurrence I was at the place of occurrence with my mother. My house is at a distance of 5/6 acres from the place of occurrence. "(Emphasis supplied) The prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) did not explain as to why and in what circumstances, the prosecution witness namely Abdul Sattar (PW-1), who had his house at a distance of as much as 5/6 acres from the place of occurrence, came to be present at the place of occurrence, at the time of occurrence. 15. We have also noted that according to the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2), the occurrence took place in the dead of night at about 01.00 a.m in the balmy 4th night of the month of June, 2010, however, admittedly no source of light, which could have enabled the witnesses to have rightly identified the accused and also allowing the witnesses to note the individual roles of each and every accused present at the place of occurrence, at the time of occurrence, was produced by the witnesses during the investigation of case or even before the learned trial court. The prosecution witnesses namely Abdul Sattar (PW-1)

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and Hafiz Muhammad Ismail (PW-2) claimed that they had witnessed the occurrence in the light of an electric bulb which was lit at the place of occurrence, however, the said electric bulb, which was allegedly lit at the place of occurrence and in the light of which the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) allegedly witnessed the occurrence, was neither produced by the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) to the Investigating Officer of the case nor the Investigating Officer of the case, during his visit to the place of occurrence, took into possession any such electric bulb. The non- production of the electric bulb which was allegedly lit at the place of occurrence, at the time of occurrence is all the more a matter of disquiet for the reason that the trial of the case was conducted in a private complaint and if the said source of light was indeed available then the complainant of the case could have easily produced the same before the learned trial court. The failure of the complainant of the case to produce the same before the learned trial court leads to only one conclusion, and that being that no such source of light was available at the place of occurrence which could have enabled the eye-witnesses to have identified the assailants and also witness the individual roles of the assailants as acted by them during the occurrence. As mentioned above, no such electric bulb which was lit at the place of occurrence was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence. According to the prosecution evidence, the Investigating Officer of the case, visited the place of occurrence after the occurrence but the electric bulb, which was allegedly available and lighted at the place of occurrence, at the time of occurrence, was not taken into possession at the spot by the Investigating Officer along with other recoveries though there was no occasion for the said electric bulb not to have been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer or it being not taken into possession by the Investigating Officer during his visit at the place of occurrence. The joint failure of Abdul Sattar (PW- 1), the complainant of the case and the Investigating Officer, to produce the electric bulb allegedly present at the place of occurrence and lighted up at the time of occurrence, proves that none was available and only an invented and false claim of such an electric bulb being available was made by the said witnesses. We have noted that according to the record of the case, during the course of investigation a torch light was produced by Muhammad Ramzan, a witness who had stated that he had seen the accused coming from the place of occurrence in the light of the said torch light, however, during the course of trial of the appellant, the said witness namely Muhammad Ramzan was given up as an unnecessary witness by the complainant of the case on 23.05.2019. Besides, it was never the claim of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) that they had used the torch light available with Muhammad Ramzan (given up prosecution witness) to identify the assailants. The prosecution witnesses failed to establish the fact of such availability of light source and in absence of their ability to do so; we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in the dark. It was admitted by the witnesses themselves that it was a dark night and they had used the light of an electric bulb, never produced, to identify the assailants during the occurrence and as the prosecution witnesses failed to prove the availability of such a light source, their statements with regard to them identifying the assailants cannot be relied upon. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some

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electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised "Reliance is also placed on the case of "Hameed Gul v. Tahir and 2 others" (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The One Haid Akbar who produced the same' before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along." Reliance is also placed on the case of "Basar v. Zulfiqar Ali and others" (2010 SCMR 1972) wherein the august Supreme Court of Pakistan…

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