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Official Citation: 2025 LHC 1627
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: The State and others vs Muhammad Rafi alias Muhammad Rafique and JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2025 LHC 1627. In this matter between The State and others and Muhammad Rafi alias Muhammad Rafique and JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025LHC1627
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Sultan Tanvir Ahmad Title:The State and others vs Muhammad Rafi alias Muhammad Rafique and
JUDGMENT
Reported As: 2025 LHC 1627 Result: Murder Reference Answered in Negative Judgment
JUDGMENT SADIQ MAHMUD KHURRAM, J. - Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz (convicts) were tried by the learned Sessions Judge, Attock in case F.I.R. No. 85 of 2020 dated 25.05.2020 registered at Police Station Rango, District Attock in respect of offences under sections 302, 324, 337-F(iii) and 34 P.P.C. for committing the Qatl-i-Amd of Muhammad Idrees son of Abdul Shakoor (deceased). The learned trial court vide judgment dated 21.07.2022, convicted Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz (convict) and sentenced them as infra: Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz : - Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Idrees son of Abdul Shakoor (deceased) and directed to pay Rs.300,000/- 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. The convict was ordered to be hanged by his neck till death. Muhammad Shafique son of Muhammad Nawaz : - i) Rigorous imprisonment of five years under section 324 P.P.C. and directed to pay fine of Rs. 30,000/- and in default of payment of fine to undergo further three months of Simple Imprisonment.
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ii) To pay Daman of Rs.30,000/- under section 337-F(iii) P.P.C. to the injured namely Muhammad Arslan (PW-6) The convict namely Muhammad Shafique son of Muhammad Nawaz was also extended the benefit available under Section 382- B of Code of Criminal Procedure, 1898 by the learned trial court. 2. Feeling aggrieved, Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz (convict) lodged Criminal appeal No.576 of 2022 assailing his conviction and sentence. Feeling aggrieved, Muhammad Shafique son of Muhammad Nawaz (convict) lodged Criminal appeal No.518 of 2022 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.49 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz . We intend to dispose of the Criminal Appeal No. 576 of 2022, Criminal Appeal No. 518 of 2022 and Murder Reference No.49 of 2022 through this single judgment. 3. Precisely the necessary facts of the prosecution case, as narrated by Muhammad Rawaid (PW- 7) , the complainant of the case , are as under: - "On 25.05.2020, I along with my nephew Muhammad Arslan and my son Rameez Khan went to the house of my brother Muhammad Idrees (deceased) on the second day of Eid, at village Malho. After having meeting with my brother Muhammad Idrees, 1 along with my son Rameez Khan and my nephew Muhammad Arslan came out from the house at about 09:45am. My brother Muhammad idrees also came out from the house in the street. Both accused Muhammad Rafique alias Rafi and Muhammad Shafique (present in Court both armed with their respective pistols also came there. Accused Muhammad Shafique raised Lalkara to his brother Muhammad Rafi while saying that they will teach us a lesson for previous enmity. Thereafter, accused Muhammad Rafique alias Rafi made successive fire shots from his pistol which landed on my brother Muhammad Idrees on his different body parts. My brother Muhammad Idrees on sustaining fire shots fell on the ground. Accused Muhammad Shafique also fired at my nephew Muhammad Arslan, by his pistol in order to commit his murder, which landed on his left foot. My nephew Arslan also fell on the ground. Thereafter, we raised hue and cry upon which both accused persons while brandishing their respective pistols, decamped from the spot. We shifted my brother Muhammad Idrees and nephew Muhammad Arslan to RHC Rango for medical treatment where I came to know about the death of my brother Muhammad Idrees. Motive behind the occurrence is the previous enmity due to which both accused present in Court committed murder of my brother Muhammad Idrees and injured my nephew Muhammad Arslan with the intention to commit his murder. Police reached at RHC Rango, where my statement under section 154 Cr. PC Exh. PK was recorded, which was read over to me and I signed the same in token of its correctness. Thereafter, I along with my son Rameez came at the spot in the company of Atif Hussain SI. The said Sl inspected the spot on our pointation and prepared rough site plan. Thereafter, he during spot inspection collected five crime empties of pistol 30-bore P-14/1-5 from one place and one crime empty of pistol 30-bore P-15 from another place, made the same into independent two sealed parcels and secured vide recovery memo Exh. PL, attested by me and my son Muhammad Rameez. Atif Hussain SI during spot inspection also collected blood through cotton from the place of murder of my brother Muhammad Idrees, made the same into a sealed parcel and secured vide recovery memo Exh. PM attested by me and my son Rameez. I.O recorded our statements at the spot u/sec. 161 Cr. PC. Thereafter, I along with police and my son Muhammad Rameez came at THQ Hospital Hazro, where I received dead body of my brother Muhammad Idrees in lieu of receipt Exh. PN, attested by me.
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On 05.06.2020, I visited the P.S and handed over attested copy of FIR No.98/19 u/sec. 377/511 PPC Exh. PO (under objection by the learned defence counsel) to Tariq Mahmood SI/10, who secured the same into his possession vide recovery memo Exh. PP, attested by me. I.O recorded my statement u/sec. 161 Cr. PC.." 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 were sent to face trial. The learned trial court framed the charge against the accused on 16.09.2020, 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 nine witnesses recorded. The ocular account of the case was furnished by Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6). Muhammad Rashid HC (PW-1) stated that on 25.05.2020, Atif Hussain, SI, (PW-9) handed over to him three sealed parcels and lost worn clothes of the deceased and on 31.05.2020 he handed over the three sealed parcels to Tariq Mehmood, SI, (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and 07.06.2020 Tariq Mehmood, SI, (PW-8) handed over to him two sealed parcels said to contain pistols and on 12.06.2020, he handed over the said parcels to Tariq Mehmood, SI, (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Kafeel (PW- 3) stated that on 25.05.2020 identified the dead body of the deceased at the time of its post mortem examination. Naseem Khan 14/C (PW-4) stated that on 25.05.2020 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 and on 03.06.2020 the appellants were arrested by the Investigating Officer of the case and on 07.06.2020 the appellant namely Muhammad Rafi alias Muhammad Rafique got recovered the pistol (P-9) and the appellant namely Muhammad Shafiq got recovered the pistol (P-12). Tariq Mehmood, SI, (PW-8) investigated the case from 31.05.2020 till 12.06.2020, arrested the appellants on 03.06.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Atif Hussain SI (PW-9) investigated the case from 25.05.2020 till 05.06.2020, 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. Sahibzada Aziz Noor (PW-2) examined, who on 25.05.2020 was posted as Medical Officer at the THQ hospital, Hazro and on the same day conducted the post mortem examination of the dead body of the deceased namely Muhammad Idrees son of Abdul Shakoor. Dr. Sahibzada Aziz Noor (PW-2) on conducting the post mortem examination of the dead body of the deceased namely Muhammad Idrees son of Abdul Shakoor observed as under: - "The following injuries were noted on the body. i) A firearm entry wound with inverted margins measuring approx 0.6 x 0.6 cm into going 02cm with probe with no resistance on back of the flank, no blackening tattooing charring present. ii) An exit wound with everted margins measuring approx 01 x 01cm on front of left flank. iii)A firearm entry wound measuring approx 1.5 x 1.5 cm going in 3cm inside the abdominal cavity with no resistance. There was no exit wound of injury No.3 and then X Ray taken revealed that the bullet was stuck in right iliac fossa and radiological evidence were handed (over to police, blackening and tattooing seen of the wound. iv) A firearm entry wound on the back of left upper thigh measuring approx 1.8 x 1.8 cm ) A firearm exit wound measuring about 2 x 2 cm on the lateral aspect of the left thigh. vi) A firearm injury wound measuring about 1 x 1 the posterior aspect of left lower thigh. vii) A firearm exit wound measuring about 02cmx02cm on the left lateral upper side of thigh viii) A firearm entry wound measuring about 1.5 x 1.5 cm on the medial upper aspect of right thigh. ix) A firearm exit wound measuring 1 x 1 cm on the medial upper right gluteal region.
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OPINION In my opinion, cause of death is firearm wounds causing hypovolumic shock, resulting in cardiopulmonary arrest. All injuries from 01 to 09 are fatal in nature but injury No. 1, 2 and 3 can cause death in ordinary course of nature. All injuries were ante mortem in nature." The prosecution also got Dr. Shaheer Ashfaq (PW-5) examined, who on 25.05.2020 was posted as Medical Officer at the THQ hospital, Hazro and on the same day medically examined Muhammad Arslan (PW-6). Dr. Shaheer Ashfaq (PW-5) on examining the injured namely Muhammad Arslan (PW-6) observed as under: - "i) 0.8 cm x 0.7cm firearm entry wound, 5cm distal to left ankle joint and 7cm proximal to left little toe, on anterior dorsal surface of left foot without any exit wound. At the time of medical examination, the patient was referred for Radiological and surgical opinion and nature of injury was kept under observation at that time. Exh. PH is the correct carbon copy of MLR of injured Muhammad Arslan whereas Exh. PH/1 is the pictorial diagram of injury which are in my hand writing and bears my signature. Application submitted by the police for medical examination Exh. PJ was seen and signed by me. The probable duration of injuries and medical examination was observed by me as half an hour to one hour. On 02.09.2020, I received the report of Orthopedic Surgeon according to which X-Ray was showing foreign body (bullet) in left foot near calcaneum; No bony injury was seen; Bullet was removed under local anesthesia and bullet (foreign body) was handed over to police Constable bearing No.C/777 and patient was advised for anti biotic and analgesic and sent home." 7. On 28.02.2022, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Rameez Khan as being unnecessary. On 07.06.2022, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Khurram Shahzad constable and Ghaffar Khan as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh.PU and Exh.PV). 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz 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, they replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz opted not to get themselves examined under section 340(2) Cr. P.C and did not adduce any evidence in their defence. 9. At the conclusion of the trial, the learned Sessions Judge, Attock, convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants was that the whole case was fabricated and false. The learned counsel for the appellants 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 appellants further contended that the statements of Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were not worthy of any reliance. The learned counsel for the appellants 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 appellants finally submitted that the prosecution had totally failed to prove the case against the appellants beyond the shadow of doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned
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counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Muhammad Rafi alias Muhammad Rafique. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) . The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recoveries from the appellants and the report of the Punjab Forensic Science Agency, Lahore (Exh. PU) 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 appeals. 12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6). These prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were related to each other and the deceased. Their relationship with the deceased is also on record. The deceased namely Muhammad Idrees was the brother of Muhammad Rawaid (PW-7) and the maternal uncle of Muhammad Arslan (PW-6). Both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) explained their presence at the place of occurrence categorically. We have noted that both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) in a very natural and forthright manner, narrated the occurrence and gave each and every feature of the same with consistency. The presence of the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) at the place of occurrence was quite probable and natural. The occurrence in the present case took place just outside the house of the deceased namely Muhammad Idrees. Both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) explained that on the day of occurrence, they had gone to the house of the deceased as it was the second day of the Eid and it was customary for them to visit the house of the deceased, the brother of prosecution witness namely Muhammad Rawaid (PW-7) and the maternal uncle of the prosecution witness namely Muhammad Arslan (PW-6). Both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were cross-examined at length with regard to their arrival at the place of occurrence and both the said prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) gave consistent and unswerving evidence in this regard. Muhammad Arslan (PW-6) during cross- examination explicated as under:- "My uncle Muhammad Rawaid and his son Rameez Khan came to my house, at about 08:30am and we all went to the house of my uncle Muhammad Idrees deceased, at about 09:00am, on the day of occurrence. House of my uncle Muhammad Idrees deceased and my house are situated in the same street. We remained present for about 45-minutes in the house of my uncle Muhammad Idrees deceased. On the day of occurrence, we did not visit the house of any other person. The occurrence of present case was occurred just after about 1/2 minutes after our coming out from the house of Muhammad Idrees deceased. The occurrence of this case was taken place on the front of door of the house of Muhammad Idrees deceased" (emphasis supplied) The prosecution witness namely Muhammad Rawaid (PW-7) explained with detail during cross- examination as under:-
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"My father was having five sons. Muhammad Idrees deceased was youngest son of my father. I and my son reached in the house of PW Arslan, at about 08:30am, on the day of occurrence. We remained present in the house of Arslan PW for about 30 minutes. We stayed in the house of deceased Muhammad Idrees and had taken tea and then we departed. We came out from the door of the house of Muhammad Idrees deceased. .......... As per our custom, the younger used to visit to the elders to see them on the occasion of Eids During the course of the investigation, Atif Hussain, SI, (PW-9), the Investigating Officer of the case, also collected the blood with a swa b of cotton from the place of occurrence and took the same into possession through the recovery memo (Exh. PM). The report of the Punjab Forensic Science Agency, Lahore (Exh. PV) establishes that the said blood-stained swab of cotton taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site plan of the place of occurrence (Exh. PS) as prepared by Atif Hussain, SI, (PW-9) and the scaled site plan of the place of occurrence (Exh. PT) as prepared by Bashir Ahamd Awan, draftsman (since dead). The perusal of the said rough site plan of the place of occurrence (Exh. PS) as prepared by Atif Hussain, SI, (PW-9) and the scaled site plan of the place of occurrence (Exh. PT) as prepared by Bashir Ahamd Awan, draftsman (since dead) clearly shows that the house of the deceased namely Muhammad Idress is clearly marked in the same and has been shown on the northern side of the place of occurrence at a meagre distance from the same. The defence failed to prove the fact that the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) had no reason for their arrival at the place of occurrence rather during the course of the recording of evidence, the reason for the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) to visit the deceased was proved, therefore, their arrival at the place of occurrence and them witnessing the same cannot be looked at with any degree of doubt. During the cross-examination, the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) remained consistent with regard to the sequence of the occurrence and also explained their arrival at the place of occurrence, prior to the occurrence. The prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were subjected to extensive cross-examination but the defence had failed to make any crack in their deposition and the veracity of their statements was established. Hence, in view of the above facts, the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) by no stretch of the imagination, can be declared as chance witnesses. We have also appreciated the fact that according to the column No.8 of the inquest report (Exh. PC), at the time of preparation of the same, the eyes and mouth of the deceased were also closed and had the deceased met his death in absence of the witnesses, then his eyes and mouth would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes and mouth of the deceased further proves the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. Additionally, prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) being close relatives of the deceased, had no reason to falsely implicate the appellants in the commission of the offences or substitute the appellants, letting off the real culprits. 14. There is no such material available on record that would indicate the substitution of the appellants in the case with the real culprits. Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others (PLD 1996 SC 138). The appellants namely Muhammad Rafi alias Muhammad Rafique and Muhammad Shafique have not been able to
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establish any animosity of the prosecution witnesses for their false involvement in the case. Prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6), in a forthright manner, held the appellant namely Muhammad Rafi alias Muhammad Rafique responsible for the murder of Muhammad Idrees (deceased) and held the appellant namely Muhammad Shafique responsible for causing the injury to the prosecution witness namely Muhammad Arslan (PW-6) . The mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony. In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v. The State (2009 SCMR 99) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him." Reference is made to the judgment in the case titled as Ghulam Murtaza v. The State (2021 SCMR 149) wherein the August Supreme Court of Pakistan was pleased to observe as under:-- "Although the deceased-Mst. Saima Bibi is the daughter-in-law of the eye-witness Mst. Rukhsana (PW.7) but it has been settled by this Court that mere relationship of a witness with the victim would not discard her/his evidence if it is otherwise confidence inspiring and trustworthy." Furthermore, in the incident in issue, the weapons had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the present appellants, who were well known to all of them. There is no evidence on record that the said prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were motivated by any enmity to depose against the appellants. We have scrutinized the evidence of the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements. 15. Furthermore, the presence of the prosecution witness namely Muhammad Arslan (PW-6) at the place of occurrence cannot be doubted as he had the stamp of injuries on his body suffered at the hands of the appellant namely Muhammad Shafique. The prosecution got Dr. Shaheer Ashfaq (PW-5) examined, who on 25.05.2020 was posted as Medical Officer at the THQ hospital, Hazro and on the same day medically examined Muhammad Arslan (PW-6). Dr. Shaheer Ashfaq (PW-5) on examining the injured namely Muhammad Arslan (PW-6)…
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