Full Judgment Text & Judicial Ruling

2025 Y L R 1187 [Lahore] Before Aalia Neelum, C.J Shafqat Ali---Appellant Versus The State and others---Respondents Criminal Appeal No. 10245, Criminal Revision No. 28168 and P.S.L.A No. 28166 of 2022, decided on 24th March, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of four hours and fifty five minutes in lodging the FIR---Not fatal to the prosecution case---Accused were charged for committing murder of his wife/daughter of complainant by inflicting hatchet blows---As per the prosecution case, the incident took place on 05.03.2021 at 04:00 a.m. in the house of acquitted accused situated in the area of Kand Stop---Distance between the place of occurrence and the police station was 10 kilometers---It was duly mentioned in the police proceedings incorporated at the bottom of Fard Bayyan that on the intimation regarding the occurrence of the incident the Investigating Officer reached at Kanda Stop on 05.03.2021 and upon reaching Kanda Stop, the complainant met him and the Investigating Officer recorded that the statement of the complainant based on which the FIR was registered on 05.03.2021 at 08:55 a.m.---Police proceedings revealed that the statement of the complainant was recorded at Kanda Stop---Similarly, eye-witness deposed that the police reached the place of occurrence at 07:30/7:45 a.m.---Court witness/Police Constable deposed that they reached the place of occurrence at the time of Azan of Fajar---Incident took place on 05.03.2021 at about 04:00 a.m., and the timing of Fajar was between 5:00 a.m. and 06:15 a.m.---Team of the crime scene unit also reached the place of occurrence---Thus, the place of the incident was far from the village, so there was no undue delay in reporting the incident---According to the Investigating Officer, he met the complainant at 07:00/7:30 in the morning and wrote his statement---Time for writing the statement started at 07:00/7:30, and after writing it, it was written at the bottom of the document as 8:50, proving that he took that time to write the statement---Delay, if any, in registration of the FIR in question, had been explained by the defence itself during the cross-examination conducted upon the prosecution witnesses and was, therefore, not fatal to the case of the deceased---Circumstances established that the prosecution had proved its case against the appellant---Appeal against conviction was dismissed accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Place of incident---Scope---Accused were charged for committing murder of his wife/daughter of complainant by inflicting hatchet blows---Defence plea was that the incident had taken place at a barren house and on the following morning the people of the locality intimated the police about the presence of the dead body, whereupon the police recovered the dead body---Defence itself brought the fact on the record through cross-examination that the complainant was residing next to the house where the incident occurred---Defence itself proved that the place of occurrence was not a barren house, but rather the incident of the murder of deceased took place in the house of co-accused (since acquitted), who was the father of the appellant---In that regard, the draftsman was not questioned---Rather, as per the draftsman, the house was owned by (co-accused since acquitted)---So, the prosecution proved that the incident had not occurred at the deserted house but rather the place of occurrence shown in the scaled site plan was the place wherefrom the dead body was recovered and witnesses witnessed the incident---Contention of the defence was also untenable as the Investigating Officer secured the blood with the cotton from the room of appellant and the house of acquitted accused---Circumstances established that the prosecution had proved its case against the appellant---Appeal against conviction was dismissed accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Plea of alibi not proved---Accused were charged for committing murder of his wife/daughter of complainant by inflicting hatchet blows---Appellant alleged that he was at L-(Lahore) on the day of the incident and did not commit the incident---However, the appellant had not produced any material evidence or witnesses to establish his plea---Rather the complainant specifically deposed during examination-in-chief that on 04.03.2021, he, given up witness and eye-witness visited the house of accused etc.; they remained busy in talking with each other, while sitting in the courtyard of the house of accused etc; they conversed with the appellant to pacify and cool down the situation---Thereafter, the complainant, given up witness and eye-witness left the house of the appellant and went to their houses---On the following morning i.e. 05.03.2021 at about 04:00 a.m. of the same night, the complainant, given up witness and eye-witness were attracted to the house of accused persons on hearing hue and cry, where they witnessed the incident---Defence had not denied these facts---Instead, the defence asked specific questions about the presence of complainant and eye-witness and about the presence of the dead body, to which both witnesses replied---Statements of said witnesses were consistent on that point---Circumstances established that the prosecution had proved its case against the appellant---Appeal against conviction was dismissed accordingly. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Burden to prove---Accused were charged for committing murder of his wife/daughter of complainant by inflicting hatchet blows---Offence took place inside the house of the appellant---When the inmates of the house were present at the time of incident, it would be obligation of the appellant being husband of the deceased to explain the circumstances leading to her death---In the instant case, the defence had failed to establish that the appellant or his family members reported the incident of the murder of the deceased to police---Soon after the incident, the appellant did not come forward to report the incident, nor did he claim that he received the dead body of the deceased or that he and his family took part in the last rites/funeral ceremonies---Husband had to explain how the wife received injuries or had to offer acceptable explanation in that regard---From the said circumstances, prosecution succeeded in leading evidence that the crime was committed in the home of the accused and husband could not offer any explanation that how the wife received injuries, which would go against the defence plea---Circumstances established that the prosecution had proved its case against the appellant---Appeal against conviction was dismissed accordingly. Rai Muhammad Naeem Kharal for Appellant. Rana Ahsan Aziz, Additional Prosecutor General for the State. Muhammad Basharat, Vice Counsel for the Complainant. Date of hearing: 24th March, 2025. Judgment Aalia Neelum, C.J.---The appellant-Shafqat Ali son of Mushtaq Ahmad, Caste Bhutta, resident of Kanda Stop 13/KB, Tehsil and District, Pakpattan has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge/Judge MCTC, Pakpattan vide judgment dated 29.01.2022 in a private complaint filed under sections 302, 34 P.P.C Police Station, Kalyana, District Pakpattan whereby the learned trial court convicted the appellant-Shafqat Ali under section 302(b) P.P.C and sentenced him to undergo imprisonment for life with the direction to pay Rs.3,00,000/- as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C and in case of default in payment thereof, to undergo 06-months S.I further. The benefit of section 382-B Cr.P.C was also extended in favor of the appellant. 2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence by filing the instant appeal bearing Criminal Appeal No.10245 of 2022. It is pertinent to mention here that the complainant also filed Crl. Rev. No.28168/2022 for enhancement of sentence awarded to the appellant and P.S.L.A. No.28166/2022 against acquittal of respondents Nos.2 to 4. As all the matters arise from the same judgment of the trial court, these are being disposed of through consolidated judgment. 3. Briefly, the prosecution story as alleged in the private complaint (Ex. PB) of Tariq Mehmood (PW-1)-the complainant is that the accused, Shafqat Ali and Maqsood Ahmad, were real brothers inter-se along with their parents, Mushtaq Ahmad and Shamshad Bibi alias Shado, who were involved in this case. The accused, Shafqat Ali, was the husband of Mst. Humaira Bibi (deceased) and son-in-law of complainant (PW-1). The accused, Shafqat Ali, was married to Mst. Humaira Bibi (deceased) in 2016 and out of wedlock, two sons and a daughter were born. About 4/5 months prior to the occurrence, gold ornaments of Mst. Humaira Bibi (deceased) were stolen, and she suspected her mother-in-law Shamshad alias Shado and Maqsood Ahmad that they had committed said theft, whereupon relations between Mst. Humaira Bibi (deceased) and her in-laws became strained. The accused, Shafqat Ali and his family members, used to torture Mst. Humaira Bibi (deceased), who left the house of her in-laws and came to her parents. About 15 days before the occurrence, the accused, Shafqat Ali, visited the complainant's house and requested Mst. Humaira Bibi (deceased) to come to his house, whereupon the complainant pacified the situation and sent Mst. Humaira Bibi (deceased) with the accused, Shafqat Ali. On 04.03.2021, the complainant, along with Shaukat Ali and Mazhar Shahid, PWs, visited the house of the accused, Shafqat Ali, etc., and they remained busy talking with each other while sitting in the courtyard of the house of Shafqat Ali, the accused. On 05.03.2021, at about 04:00 a.m. (morning), the complainant and PWs were attracted to the house of the accused, Shafqat Ali, who was quarreling with Mst. Humaira Bibi (deceased). The accused persons were equipped with their respective weapons, and the co-accused, Shamshad Bibi alias Shado, raised a lalkara that Mst. Humaira Bibi (deceased) should have been taught a lesson for levelling false allegations, upon which, the accused, Mushtaq Ahmad, gave a Toka blow, which landed on the right shoulder near the neck of Mst. Humaira Bibi (deceased), Maqsood Ahmad inflicted a hatchet blow, which landed on the left side of the head of Mst. Humaira Bibi (deceased), who fell, and then the accused, Shafqat Ali, gave a hatchet blow, which landed in front of the neck of Mst. Humaira Bibi (deceased). The complainant (PW-1), Shaukat Ali, and Mazhar Shahid, PWs, witnessed the occurrence in the light of an electric bulb. After the alleged occurrence, all the accused persons fled away from the place of occurrence, whereas Mst. Humaira Bibi (deceased) succumbed to the injuries. 4. The motive behind the occurrence was that gold ornaments of Mst. Humaira Bibi (deceased) was robbed at her in-laws ' house, and she suspected that said gold ornaments were stolen by the accused, Shamshad Bibi alias Shado and Maqsood Ahmad, due to which the incident occurred. 5. The complainant, Tariq Mehmood (PW-1), reported the incident through "Fard bayan" (Ex.PA), whereupon a formal FIR (Ex.CW4/A) was chalked out by Shamas Din 67/H.C (CW-4). After registration of case, the investigation of this case was conducted by Ihsan Ahmad, S.I. (CW-8), who having found the accused/appellant guilty, prepared report under section 173 of Cr.P.C. Being dis-satisfied with the result of investigation, as the investigating officer being in league with the accused did not investigate the matter properly and declared co-accused of the appellant innocent, the complainant was constrained to file private complaint (Ex.PB) and after recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of offence, so they all were summoned to face the charge. Thereafter, the learned trial court formally charge sheeted the appellant on 31.07.2021 to which he pleaded not guilty and claimed trial. In support of its version, the complainant produced as many as eight (08) witnesses. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he did not opt to appear as his own witness in terms of section 340(2) but also refused to adduce any evidence in his defence. In response to a particular question of why this case was against him and why the PWs deposed against him, the appellant, Shafqat Ali, made the following deposition: - "The complainant party got registered this false case against me, my brother, my father and my mother, who were co-accused due to ulterior motive and due to suspicion. The story of the complainant party was disbelieved by the police and my brother, my mother and my father co-accused were declared not involved in this occurrence during the unchallenged investigation. I was married with Humaira Bibi deceased in year 2016, out of the wedlock of Humaira Bibi two sons and one daughter were born. I shifted to Lahore after my marriage along with my family. I used to run a rickshaw in Lahore. Meanwhile my wife Humaira Bibi deceased used to visit the house of her parents in our village and she developed illicit relations with some person of our village and she refused to live with me in Lahore. Six months prior to this occurrence she left my house situated in Lahore and came to the house of her parents after an altercation with me. I do not know who committed her murder, however, I was present in Lahore on the fateful night and it came into my knowledge on the morning of 05.03.2021 that her dead body was found lying in a barren house of our village. The people of the village informed the police upon which I.O, visited the spot and he prepared the site plan of said place in inquest report Ex.CW1/D. Thereafter, the I.O got registered this false case against me, my brother, my father, and my mother, who were co-accused being in league with the complainant party and then prepared another fake site plan Ex.CW8/A while showing the place of occurrence as the house of my father. All the PWs are interested witnesses as they are close relative of each other and at a same time they are inimical against me and my co-accused due to reason that complainant party conceded that I pushed out Humaira Bibi from my residence at Lahore. Due to this reason they have falsely deposed against me and my co-accused persons." 6. After recording evidence and evaluating the evidence available on record considering arguments advanced from both sides, the learned trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction and sentence in the afore-stated terms. 7. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file. 8. As per the prosecution case, the incident took place on 05.03.2021 at 04:00 a.m in the house of Mushtaq Ahmad (since acquitted), situated in the area of Kanda Stop, 13/K.B, falling within the territorial jurisdiction of Police Station Kalyana, District Pakpattan, wherein Shamshad Bibi (since acquitted), Mushtaq Ahmad (since acquitted), Maqsood Ahmad (since acquitted), and Shafqat Ali (the appellant) quarreled with Mst. Humaira Bibi, daughter of Tariq Mehmood (PW-1), the complainant. After that, Mushtaq Ahmad (since acquitted), Maqsood Ahmad (since acquitted), and Shafqat Ali (the appellant) murdered Mst. Humaira Bibi, daughter of Tariq Mehmood (PW-1), the complainant, by inflicting hatchet and toka blows which landed the right shoulder just near the neck, left side of head and on the front of neck of Mst. Humaira Bibi, the deceased, respectively. The distance between the place of occurrence and the police station was 10 kilometers. It has been duly mentioned in the police proceedings incorporated at the bottom of Fard Bayyan (Ex. PA) that on the intimation regarding the occurrence of the incident Ehsan Ahmad S.I (CW-8)-the investigating officer reached at Kanda Stop, 13/K.B, on 05.03.2021 and upon reaching Kanda Stop, 13/K.B, Tariq Mehmood (PW-1)-the complainant met him (CW-8) and Ehsan Ahmad S.I (CW-8)-the investigating officer recorded the statement (Ex. PA) of Tariq Mehmood (PW-1)-the complainant based on which the FIR (CW-4/A) was registered on 05.03.2021 at 08:55 a.m. The police proceedings reveal the statement of Tariq Mehmood (PW-1)-the complainant was recorded at Kanda Stop, 13/K.B. Ehsan Ahmad S.I (PW-8)-the investigating officer deposed during examination-in-chief that: - "On 05.03.2021, I was posted at Police Station Kalyana. On the same day, I got the information of this occurrence when I was on patrolling duty with other police officials. After receiving the information, I proceeded to the place of occurrence, when I reached near Adda Kanda Stop, complainant of this case met me there and got recorded his statement Ex-PA which was read over to him and he signed the same. I sent the Ex-PA to Police Station through Bashir Ahmad Shakir 81/C for registration of case." Ehsan Ahmad S.I. (CW-8)-the investigating officer also deposed during cross-examination that: - "I received the information at about 07/07:30 AM through telephonic call but I don't know who made call to me. I was on the way to place of occurrence when complainant met me at Kanda Stop which is at a distance of about one KM from the place of occurrence. The complainant met me at about 07:45 AM and I recorded his statement till 08:25 AM. I remained present at Kanda Stop for about 40 minutes along with complainant. I reached the place of occurrence at about 08:30 AM. First of all, I recorded the statements of Bashir Ahmad Shakir 81/C and Muhammad Asif 337/C. The crime scene unit team met me at Karmanwala Chowk when I was proceedings towards the place of occurrence. The crime scene unit team met me before the registration of case and the said team had inspected the place of occurrence before that." Mazhar Shaid (PW-2) deposed during the cross-examination that: - "13/KB village is big village. Volunteered we used to reside at Kanda stop separately near village 13/KB." Tariq Mehmood (PW-1)-the complainant deposed during cross-examination that: - "Police Station Kalyana is at a distance of 10/12 KMs from the place of occurrence. -------------------The police reached the place of occurrence at about 07/07:30 AM. When police came to the place of occurrence I was present there and I immediately got recorded my statement to the police." Similarly, Mazhar Shaid (PW-2) deposed that the police reached the place of occurrence at 07:30/7:45 a.m. Muhammad Asif 337/C (CW-3) deposed that they reached the place of occurrence at the time of Azan of Fajar. The incident took place on 05.03.2021 at about 04:00 a.m., and the timing of Fajar was between 5:00 a.m. and 06:15 a.m. The team of the crime scene unit also reached the place of occurrence. Thus, the place of the incident was far from the village13/K.B., so there was no undue delay in reporting the incident. Mazhar Shaid (PW-2) deposed during cross-examination that: - "The police did not interrogate about the occurrence from anyone." According to Tariq Mehmood (PW-1), the complainant, he met the complainant at 07:00/7:30 in the morning and wrote his statement. The time for writing the statement starts at 07:00/7:30, and after writing it, it is written at the bottom of the document as 8:50, proving that he took this time to write the statement. The delay, if any was, in registration of the FIR in question, same has been got explained by the defence itself during the cross-examination conducted upon the prosecution witnesses and is, therefore, not fatal to the case of the deceased. It is only to be proved by the prosecution beyond a preponderance of probabilities as distinguished from beyond a reasonable doubt. 9. So far as the defence plea that the incident had taken place at a barren house and on the following morning the people of the locality intimated the police about the presence of the dead body, whereupon the police recovered the dead body, is concerned, lengthy cross-examination was conducted upon Tariq Mehmood (PW-1)-the complainant and Mazhar Shaid (PW-2) by the defence. The defence itself brought the fact on the record through cross-examination that Tariq Mehmood (PW-1)-the complainant resides next to the house where the incident occurred. The relevant portion of the cross-examination upon Tariq Mehmood (PW-1)-the complainant is as under: - "My house is situated one house next to the house of accused Mushtaq. ------------ Mazhar Shahid PW is my Phoophizad whose sister is my wife. It is incorrect that house of Mazhar Shahid PW is half kilometer from the house of accused Mushtaq. Volunteered stated that his house is third house from the house of accused Mushtaq." Similarly, Mazhar Shaid (PW-2) deposed during cross-examination that:- "My house is situated after 3/4 houses of complainant's house toward west. The intervening houses are owned by Haji Akhter, Mukhtar, Shaukat and Irshad. The house of accused Mushtaq is toward east from my house. The aforesaid neighbourers did not proceed to the place of occurrence at the time of occurrence." The defence itself proved that the place of occurrence was not a barren house, but rather the incident of the murder of Mst. Humaira Bibi took place in the house of co-accused Mushtaq Ahmad (since acquitted), who is the father of the appellant. In this regard, Ghulam Mustafa (CW-2), the draftsman, was not questioned. Rather, as per Ghulam Mustafa (CW-2), the draftsman, the house was owned by Mushtaq (co-accused since acquitted). Ghulam Mustafa (CW-2), the draftsman, deposed during cross-examination that: - "The PWs and complainant have correctly shown their presence at point No.6 and 5 at the time of my visit. The occurrence was taken place at point No.7 which is inside the room. The said place was not visible from point No.6 and 5 where the PWs and complainant were allegedly present at the time of occurrence. ------------- I have shown the houses of people who lived in the surroundings of the place of occurrence." So, the prosecution proved that the incident had not occurred at the deserted house but rather the place of occurrence shown in the scaled site plan (Exh.CW-2/A and Exh.CW-2/B), is the place wherefrom the dead body was recovered and witnesses witnessed the incident. The contention of the learned defence counsel is also untenable as Ehsan Ahmad S.I. (CW-8)-the investigating officer secured the blood with the cotton vide memo. (Ex. PC) from the room of Shafqat Ali and the house of Mushtaq Ahmad (since acquitted). 10. The learned counsel for the appellant contends that the appellant was at Lahore on the day of the incident and did not commit the incident. However, the appellant has not produced any material evidence or witnesses to establish his plea. Rather Tariq Mehmood (PW-1)-the complainant specifically deposed during examination-in-chief that on 04.03.2021, he (PW-1)-the complainant, Shaukat Ali (given up PW), Mazhar Shaid (PW-2) visited the house of Shafqat Ali accused etc.; they remained busy in talks with each other, while sitting in the courtyard of the house of Shafqat Ali accused etc; they conversed with Shafqat Ali (the appellant) to pacify and cool down the situation, thereafter, he (PW-1)-the complainant, Shaukat Ali (given up PW) and Mazhar Shahid (PW-2) left the house of Shafqat Ali (the appellant) and went to their houses; on the following morning i.e. 05.03.2021 at about 04:00 a.m of the same night, Tariq Mehmood (PW-1)-the complainant, Shaukat Ali (given up PW) and Mazhar Shaid (PW-2) attracted the house of accused persons on hearing hue and cry, where they witnessed the incident. The defence has not denied these facts, even by suggesting any suggestions to the prosecution witnesses, i.e., Tariq Mehmood (PW-1), the complainant, and Mazhar (PW-2). Instead, the defence asked specific questions about the presence of Tariq Mehmood (PW-1)-the complainant and Mazhar (PW-2) and about the presence of the dead body, to which both witnesses replied. Their statements were consistent on this point. Tariq Mehmood (PW-1)-the complainant deposed during cross-examination that: - "The dead body was laying at the place of occurrence till arrival of the police. -------------------the dead body of my deceased daughter was laying inside the residential room when police arrived there. The police conducted all the proceedings while remaining present inside the said room. -------------------------------------- I, Shaukat Ali and Mazhar PW attracted at the house…

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