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Petitioner: Qalab Abbas VS Respondent: State Honorable Justice Aalia Neelum, C.J and Abher Gul Khan Saqib Akram Gondal
CITATION: 2026 PCrLJ 1008 CASE: 2026L3035 TITLE: Qalab Abbas VS State Honorable Justice Aalia Neelum, C.J and Abher Gul Khan Saqib Akram Gondal COURT: LAHORE-HIGH-COURT-LAHORE YEAR: 2026 JOURNAL: PCrLJ ============================================================
305 2026 P Cr. L J 1008 [Lahore] Before Aalia Neelum, C.J and Abher Gul Khan, J Qalab Abbas ---Appellant Versus The State
and another---Respondents Criminal Appeals Nos. 15460, 15997, PSLA No. 17975 and Murder Reference No. 67 of 2020, decided on 22nd April, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about 03-hours and 10-minutes in lodging the FIR---Consequential---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---Record showed that the case in hand had emerged from an unfortunate incident which took place on 22.05.2017 at about 06:20 p.m.---However, the information regarding the incident was imparted to the police by the complainant at 9:30 p.m. on 22.05.2017 i.e. after the delay of about 3-hours and 10-minutes of the incident by submitting a written application before Police---Record revealed that injured witness was shifted to DHQ Hospital at 7:45 p.m.---Perusal of Medico-Legal Certificate of injured revealed that he was brought to the hospital by Head Constable---In this way, it could easily be derived that the matter had already been brought to the notice of police much before 7:45 p.m. but the FIR was chalked out at 9:45 p.m.---In this view of the matter, FIR in this case had been chalked out with a considerable delay and that too after due consultation and deliberation---Appeal against conviction was allowed, in circumstances. Muhammad Jahangir and another v. The State and others 2024 SCMR 1741 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions and improvements made by witnesses to bring the case inline with medical evidence---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---Record showed that at the time of registration of FIR complainant alleged that appellant fired a shot from his weapon which hit deceased at his right armpit, whereas on the same day complainant by making a supplementary statement changed the seat of injury from right armpit to left armpit which later on proved to be fatal and took the life of deceased as was obvious from the statement of Medical Officer---Admittedly, complainant died prior to recording of his statement and said FIR was produced in the Court but he was not cross-examined in order to explain the said contradiction---In such eventuality, the FIR could not be used as a corroborative piece of evidence for upholding the conviction and sentence of the appellants especially in the case of capital charge---Complainant died after filing the private complaint, therefore, the ocular account in this case was furnished by two witnesses---Both the eye-witnesses made material contradictions regarding the place of occurrence, the nature of injuries received by deceased as well as the manner/mode in which the incident occurred---In that regard, the role assigned to appellant by both the eye-witnesses during the course of trial was that he fired a shot from his weapon which hit deceased at the left armpit---Such stance of both the witnesses was confronted with their statements recorded under S.161 Cr.P.C., wherein it was not so recorded rather the right armpit was mentioned---Improvement so made by both the eye-witnesses was to bring the case of prosecution in line with the medical evidence---Through such dishonest improvement, eye-witnesses compromised their integrity which left a question mark upon theintrinsic worth of the depositions made by them---Appeal against conviction was allowed, in circumstances. Muhammad Ramzan v. The State 2025 SCMR 762 and Muhammad Nasir Butt and 2 others v. The State and others 2025 SCMR 662 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Statement of injured witness doubtful---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---Record showed that one person of complainant party received firearm injury on his right thumb during the occurrence, hence the said injury was considered as stamp of his presence at the place of occurrence---However, said injured witness failed to establish the injury on his person through cogent and reliable evidence---In this regard, it was observed that neither any Medico-Legal Certificate of injured witness was produced during the course of trial nor oral evidence established the place where he was examined by the Medical Officer---Moreover, no Medical Officer was examined in proof of the injury that he sustained on his thumb at the hands of accused---Similarly, Investigating Officer categorically admitted during cross-examination that the story of the prosecution to the extent of sustaining injury by injured witness was found not correct---Thus, the version of the complainant to the extent of injured witness with reference to the nature of firearm injury was not supported by the medical evidence---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Time of the occurrence doubtful---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---Injured witness during cross-examination stated that he firstly met the police in the hospital after the occurrence at about 12:00p.m. (Noon) on 22.05.2017, whereas time of occurrence was claimed by the prosecution as 06:20 p.m. on 22.05.2017---Conversely, the postmortem report contained the time of death of deceased as 6:20 p.m. who as per opinion of Medical Officer died within 30 minutes to 1 hour of the occurrence---In that scenario, the time of occurrence was highly doubtful and led to the conclusion that the incident did not take place as alleged by prosecution---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Justification for the presence of eye-witnesses at the time and place of occurrence not proved---Chance witness, evidence of---Scope---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---During the trial injured witness was found to be a chance witness as he failed to justify his presence at the time and place of occurrence---Injured witness during cross-examination admitted that he was not resident of village of occurrence having no residence or land or business near or around the place of occurrence---During cross-examination, other witness admitted that injured witness was not accompanying him in the hospital---Besides that, the non-presence of injured witness at the place of occurrence was also found from the evidence of said witness---Furthermore, as per record the dead body of deceased was identified by two persons at THQ Hospital---Both those persons were neither cited in challan case nor produced in the complaint by the complainant party---Perusal of the record depicted that the occurrence was statedly witnessed by three witnesses, complainant, eye-witness and injured witness but the inquest report did not contain the name of any of those persons---Had any eye-witness been present in the Hospital, the Investigating Officer would have incorporated his name and associated him to identify the dead body---In these circumstances, the presence of both the alleged eye-witnesses was highly doubtful who were not proved to be natural witnesses---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Blood stained earth and its report---Inconsequential---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---As per record the blood stained earth of both the deceased was taken into possession from the place of occurrence and reports of Forensic Science Agency although contained the fact that both samples of soil secured from the spot were identified as human blood, yet the samples of soil were deposited in the office of Forensic Science Agency on 29.05.2017, whereas the evidence of Moharrar who handed over the parcels stated to be blood stained earth and Investigating Officer who deposited the same in Forensic Science Agency were in absolute negation with each other---Head Constable deposed that on 31.05.2017 he handed over the sealed parcel of blood stained earth to Investigating Officer for onward transmission to the office of Forensic Science Agency---On the other hand, Investigating Officer deposed that on 29.05.2017 he deposited the parcel of blood stained earth in the office of Forensic Science Agency---In the given circumstances as emerging from the evidence, the parcel of blood stained earth could not be considered as related to the case in hand---Thus, the positive reports of Forensic Science Agency could not be used as a corroborative piece of evidence against the appellants---Appeal against conviction was allowed, in circumstances. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---Motive as alleged behind the registration of the incident was that on the day of incident at about 11:00 a.m., the complainant party was fixing pipe in the street for the supply of drainage where appellant and other accused stopped the complainant party not to fix the pipe and a petty dispute took place inter se the parties---Said dispute was got patched up by the respectable and again at 6:20 p.m. when the complainant party was fixing pipe the incident in question took place---In that regard, both the eye-witnesses in their respective examination-in-chief deposed in support of the motive---However, eye-witness at the time of his cross-examination admitted that during investigation the police did not take into possession any Kassi, Khudal, sand or concrete---Said witness further showed ignorance as to whether the pipe was taken into possession by the police---Similarly, Investigating Officer, during cross-examination deposed that he had not collected any pipe from the place of occurrence nor he showed any pipe at the place of occurrence in site plan---Said witness stated that he had not taken into possession any Kassi, Khudaal, etc. from the place of occurrence---Admittedly, the Investigating Officer did not record the statement of any mason or labourer at the place of occurrence and the complainant party had also not produced any construction material or any other thing linked with the construction before him---Said facts clearly demonstrated that the prosecution failed to prove the motive---Appeal against conviction was allowed, in circumstances. (h) Criminal trial--- ----Motive---Scope---Once the motive is set up by the prosecution and the same is not proved, the prosecution shall suffer. Sarfraz and another v. The State 2023 SCMR 670 rel. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the instance of accused---Inconsequential---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---As per case of prosecution appellants were arrested on 13.08.2017 and they led to the recovery of Kalashnikovs on 27.08.2017---Both the weapons were dispatched to Forensic Science Agency for analysis but only the weapon recovered from QA (appellant) matched with two cartridge cases recovered from the spot as was evident from the Forensic Science Agency Report---In that regard, after the occurrence, Investigating Officer visited the spot and seized two crime empties of .12 bore gun but he did not mention in his statement that as to when he handed it over to Moharrar for safe custody and only mentioned during examination-in-chief that on his return to police station he deposited the case property with Moharrar---Moharrar cleared that fact while appearing before the Trial Court that the case property taken into possession on 22.05.2017 was handed over to him on 23.05.2017 for safe custody in Malkhana---Moharrar further deposed that on 31.05.2017 the parcel said to contain crime empties was handed over to Investigating Officer for its onward transmission to Forensic Science Agency---Said fact was absolutely nullified by Investigating Officer who deposed that he deposited the parcel said to contain crime empties of .12 bore gun on 29.05.2017 along with parcel of blood stained earth i.e. twodays prior to its handing over to him by Moharrar---On the other hand, the reports showed that the parcels of blood stained earth and that of crime empties were received in the office of Forensic Science Agency on 29.05.2017---On this score also, the positive report received from the Forensic Science Agency did not rescue the case of prosecution because the deposited parcels were not the same secured from the crime scene relating to deceased---Appeal against conviction was allowed, in circumstances. Kamal Din alias Kamala v. The State 2018 SCMR 577 rel. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(i), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dying declaration---Accused were charged that they made firing upon the complainant party, due to which two persons died while one was injured---As per record, appellants were implicated in the case on the basis of statement of injured than deceased recorded under S.161 Cr.P.C. on 24.05.2017---Since that statement was canvassed by the prosecution as dying declaration, thus a pressing need was to dilate upon it in-depth---Firstly, it was observed that as per stance of Investigating Officer, he for the first time met injured than deceased on 22.05.2017 at about 9:30 p.m. who was handed over to Head Constable to escort him for his medical examination along with police papers to DHQ Hospital---However, Investigating Officer during the course of his evidence miserably failed to justify through cogent explanation why he did not record the statement of injured than deceased on 22.05.2017 when he was stable and fit to make his statement as per law which was evident from the statement of Medical Officer who appeared on behalf of original Medical Officer (died on 01.10.2019) and had prepared Medico-Legal Certificate of injured than deceased---As per Medico-Legal Certificate, injured than deceased was conscious, oriented in time, place and person at the time of his medical examination on 22.05.2017 at about 7:45 p.m.---Question as to why the statement of the injured was not recorded on 22.05.2017 wasshrouded in mystery and made the case of prosecution highly doubtful---Appeal against conviction was allowed, in circumstances. (k) Qanun-e-Shahadat (10 of 1984)--- ----Art. 46---Dying declaration---Acceptability---Dying declaration only attains acceptability if firstly it is proved to have been made by the deceased; secondly it is free from tutoring; thirdly the maker of such statement is having full control over his faculties so as to make a lucid statement and to exclude all hypothesis that the same is not made by him under whispering of death and fourthly the statement must be attested or endorsed either by a Magistrate or by the Medical Officer. Mst. Zahida Bibi v. The State PlD 2006 SC 255 rel. (l) Criminal trial--- ----Benefit of doubt---Principle---Case of heinous nature---If any doubt arises from the prosecution s case, no reason exists to withhold its benefit on the ground that the case is of a heinous nature. Syed Nadeem Ibrar, assisted by Maqbool Ahmad Qureshi, defence counsel at State expenses for Appellant (In Criminal Appeal No. 15460 of 2020). Saqib Akram Gondal for Appellant (in Criminal Appeal No. 15997 of 2020). Muhammad Junaid for the Complainant. Muhammad Akhlaq, Deputy Prosecutor General for the State. Date of hearing: 22nd April, 2025. Judgment Abher Gul Khan, J .--- Qalab Abbas and Amjad Pervaiz (appellants) along with two others, namely, Umar Hayat and Faheem Ashraf were tried by learned Additional Sessions Judge, Malakwal, District Mandi Bahauddin in a private complaint titled as Fateh Muhammad v. Qalab Abbas and 3 others for the offences under Sections 302,324,337-F (i),148 and 149 P.P.C, which has arisen out of FIR No.192/2017 dated 22.05.2017 registered under Sections 302,324,337-F(i), 148 and 149 P.P.C at Police Station Miana Gondal. Trial court vide judgment dated 29.02.2020 while acquitting the afore-said two co-accused convicted and sentenced the appellants as under:- 1.Qalab Abbas (appellant) (i).Under Section 302(b) read with Section 34 P.P.C to suffer death sentence as ta zir on two counts. He was also directed to pay compensation of Rs.10,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of both deceased Umar Hayat and Tahir Imran again on two counts and in default of payment of compensation to undergo simple imprisonment for six months. (ii). Under Section 324 read with Section 34 P.P.C to suffer rigorous imprisonment for 07-years along with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for six months. (iii). Under Section 337-F(i) read with Section 34 P.P.C to suffer rigorous imprisonment for 01-year along with payment of Daman of Rs.100,000/- to injured Mazhar Iqbal and in default whereof to further undergo simple imprisonment for six months. 2.Amjad Pervaiz (appellant) (i).Under Section 302(b) read with Section 34 P.P.C to suffer imprisonment for life as ta zir on two counts. He was also directed to pay compensation of Rs.10,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of both deceased Umar Hayat and Tahir Imran again on two counts and in default of payment of compensation to further undergo simple imprisonment for six months. (ii). Under Section 324 read with Section 34 P.P.C to suffer rigorous imprisonment for 07-years along with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for six months. (iii). Under Section 337-F(i) read with Section 34 P.P.C to suffer rigorous imprisonment for 01-year along with payment of Daman of Rs.100,000/- to injured Mazhar Iqbal and in default whereof to further undergo simple imprisonment for six months. All the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was also extended to both the convicts. Challenging their convictions and sentences, Qalab Abbas and Amjad Pervaiz (appellants) filed two separate appeals i.e. Criminal Appeal No.15460 of 2020 and Criminal Appeal No.15997 of 2020 respectively, whereas Fateh Muhammad (complainant) through his son Nazam Hussain filed PSLA No.17975 of 2020 against the acquittal of Umar Hayat and Faheem Ashraf (respondents Nos.2 and 3). Likewise, trial court forwarded a reference which was numbered as Murder Reference No.67 of 2020 under Section 374 Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Qalab Abbas. All the three matters are being decided through this single judgment. 2. Precisely stated the facts of the prosecution case as unfolded by Fateh Muhammad in FIR (Exh.CW.3/A) are that he was resident of Bar Mussa where after purchasing land he had constructed a house and even the street is owned by him. On 22.05.2017 at about 11:00 a.m., when the complainant-party was there to fix the pipe for the supply of the drainage-water in the street, Qalab Abbas and his co-accused stopped them for doing so due to which a trifle dispute took place between the parties, however the same was got patched up due to the intervention of respectables of the area. On the same day, at about 6:20 p.m. when the complainant along with Umar Hayat, Tahir Imran and Nazim Hussain was fitting pipe in Bosal Sukha Street, Qalab Abbas, Pervaiz son of Muhammad Hussain, Pervaiz son of Sardar Ali equipped with firearms, Umar Hayat empty handed and four unknown accused emerged on the scene. The accused raised Lalkara to the effect that Umar Hayat and others be taught a lesson for fitting the pipe. Qalab Abbas fired shot from his weapon which hit Umar Hayat beneath the right armpit, Pervaiz son of Sardar fired a shot from his weapon which landed Umar Hayat the right side of chest. Qalab Abbas again fired shot which landed Tahir Imran at the left flank. Pervaiz son of Muhammad Hussain fired shot which landed at the left bicep of Tahir Imran. Qalab Abbas fired shot which landed at the left side of chest of Umar Hayat. Pervaiz son of Muhammad Hussain fired shot which hit at the left thumb of Mazhar Iqbal. The unknown accused while pointing their weapons towards the complainant-party continued raising Lalkaras that if anybody came near he would also be done to death. Umar Hayat and Tahir Imran after being injured fell on the ground. Upon the hue and cry of the complainant party, many men and women attracted to the spot. The complainant and Nazim Hussain PW took Umar Hayat, Tahir Imran and Mazhar to DHQ Hospital Mandi Bahauddin. Umar Hayat upon reaching the hospital succumbed to the injuries while Tahir Imran was referred to ABS Hospital, Gujrat. 3. On 22.05.2017 Sajjad Azam SI (CW.8) was present along with other police officials at Miana Gondal Chowk where Fateh Muhammad (complainant) presented an application which was sent to Police Station through Zafar Iqbal 305/C for the registration of FIR after incorporating necessary proceedings. Tahir Imran injured was dispatched to DHQ Hospital Mandi Bahauddin under the escort of Falak Sher 767/HC for medical treatment/examination. Subsequently, he visited THQ Hospital Malakwal and prepared injury statement (CW.7/A), inquest report (CW.7/B), application for postmortem examination (CW.7/C) and dispatched the dead body of Umar Hayat under the escort of Munawar Iqbal 1001/C for autopsy. Meanwhile, the complainant again appeared before Sajjad Azam SI and presented application nominating Faheem Ashraf as one of the accused mentioned in the FIR as unknown. Thereafter, he visited the place of occurrence, drafted unscaled site plan (Exh.CW.7/D), secured blood stained earth and two crime empties of .12 bore gun through memos Exh.PE and Exh.PF respectively. He also prepared injury statement (CW.7/E) of Mazhar Iqbal and dispatched him to THQ Hospital Malakwal through Shahid Imran 806/C for medical examination. On 29.05.2017 he after the receipt of information regarding the death of Tahir Imran reached at THQ Hospital Malakwal, inspected the dead body, prepared injury statement (Exh.CW.7/G), inquest report (Exh.CW.7/H), drafted application for postmortem examination (Exh.CW.7/J) and entrusted the dead body to Munawar Iqbal 1001/C for autopsy. He joined the accused Umar Hayat, Pervaiz Akhtar, Amjad Pervaiz and Faheem with investigation who were on pre-arrest bail. He also got issued proclamation of accused Qalab Abbas from the concerned Area Magistrate on 01.07.2017 and on 17.07.2017 he was transferred from HIU Circle Malakwal. 4. Thereafter the investigation of the case was entrusted to Saqib Shahzad SI…
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