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Official Citation: 2025 LHC 656
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-02-28
Parties: Fida Hussain and another vs The State and another
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-02-28, officially reported as 2025 LHC 656. In this matter between Fida Hussain and another and The State and another, 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 2025LHC656
Court Name: Lahore High Court Judge(s): Muhammad Jawad Zafar Title: Fida Hussain and another vs The State and another Case No.: Criminal Appeal No. 1035 of 2023 Date of Judgment:2025-02-28 Reported As: 2025 LHC 656 Result: Appeal Accepted
JUDGMENT
JUDGMENT Muhammad Jawad Zafar, J.: Through this criminal appeal No. 1035 of 2023, filed under Section 410 of the Code of Criminal Procedure 1898 ("Code" or "Cr.P.C"), the appellants, namely, Fida Hussain, son of Nazu Khan, and Muhammad Shan, son of Abdul Sattar, both residents of Mouza Murad Pur Shumali, Tehsil Jatoi, District Muzaffargarh ("appellants"), who were tried in crime report bearing FIR No. 767/2021 dated 23.10.2021 at or about 05:55 pm, for offences under Sections 302, 109 and 34 of the Pakistan Penal Code 1860 ("PPC"), registered with police station Jatoi, District Muzaffargrah ("Crime Report" or "FIR") by the learned Additional Sessions Judge, Jatoi, District Muzaffargarh ("Trial Court") on allegations of committing the qatl-e-amd of Haji Allah Bakhsh and Khan Muhammad. On conclusion of the trial, vide judgment dated 27.10.2023, both the appellants were convicted and sentenced, as infra: Under Section 302(b) PPC, sentenced to life imprisonment and to pay Rs.10,00,000/- (ten Lac) each as compensation under section 544-A Cr.P.C to the legal heirs of Haji Allah Bakhsh and Khan Muhammad (both deceased) and the compensation, if not paid, shall be recoverable under section 544-A(2) C.P.C, as arrears of land revenue. Notably, benefit of Section 382-B of the Code was not extended to the appellants (hereinafter referred to as the "impugned judgment"). Pertinently, co-accused persons, namely, Chand, Osama, Muhammad Ramzan, Shakil, Ghulam Shabbir, Raheem Bakhsh, and Muhammad Waseem, nominated via supplementary statement dated 12.03.2022, after unexplained delay of about four months and eighteen days, were saddled with allegations of, inter alia, conspiracy and supply of weapons,[1] were acquitted vide impugned judgment.
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2. The synoptical facts and circumstances, as delineated in the Crime Report, relevant, yet shorn of unnecessary details, giving rise to this appeal, as are, or may be, necessary for the disposal of the same are that on 23.10.2021, at or about 5.00 pm, complainant Faiz Rasool, Abdul Rasheed Khan, Khan Muhammad, Allah Bakhsh, Safdar Ghafoor, along with others proceeded to the office of DSP Jatoi with regards to investigation of case FIR No.227/2021 registered with police station Shaher Sultan for providing defense of accused of said case FIR. After conclusion of investigation proceedings, they were returning home in the following composition: complainant Faiz Rasool and Abdul Rasheed were riding on the first motorcycle, whereas Khan Muhammad, Haji Allah Bakhsh and Safdar Ghafoor were riding on the second motorcycle. At or about 5 pm, when they reached near Masha Allah petrol station situated at Permit road, accused persons Muhammad Ramzan alias Dadu, Fida Hussain and Muhammad Waseem, who were purportedly chasing the complainant and others on a motorcycle being driven by accused Waseem, closed up on them. Once near, Fida Hussain fired a shot which missed Safdar Ghafoor and hit the windowpane of the petrol station, another fire was shot by Fida Hussain which hit Haji Allah Bakhsh on the right side of the chest. Then Ramzan alias Dadu (later on substituted by appellant Muhammad Shan) fired a shot which hit Khan Muhammad on the right side of the chest. Due to sustaining fire-shots on their persons, Khan Muhammad and Haji Allah Bakhsh fell to the ground from the motorcycle, as a consequence whereof, other riders of the other motorcycle, namely, complainant Faiz Rasool and Abdul Rasheed also fell and sustained injuries on their persons. In the meantime, the appellants, along with accused Waseem, succeeded in fleeing from the scene of the crime. Motive was attributed to Rahim Bakhsh, who, prior to the occurrence, cautioned the complainant party from attending the investigation, and on their participation, with common intention and while aiding and abetting, the appellants, along with Rahim Bakhsh and Waseem, committed the commission of qatl-e-amd. Consequently, the Crime Report got registered. 3. Appellant Fida Hussain was arrested on 05.11.2021 and on his disclosure and pointation, rifle 30 bore (P-24) and four live bullets (P-25/1-4) were recovered, the same were taken into possession via recovery memo (Exh.P-X). Appellant Muhammad Shan was subsequently arrested on 15.03.2022, and based on disclosure made by him, a pistol 30 bore (P-5) and three live bullets (P- 6/1-3) were recovered on 27.03.2022, the same were taken into possession via recovery memo (Exh.P-E). After completion of the investigation, police report/challan under Section 173 of the Code was submitted before the learned Trial Court and formal charge was framed against the appellants and other co-accused persons, to which they pleaded not guilty and claimed trial. To prove its case, prosecution produced as many as 13 witnesses. Ocular account was furnished by complainant Faiz Rasool (PW-3) and eyewitness Safdar Ghafoor (PW-6); Investigation of the case was conducted by Sajid Hussain (PW-11), Rana Umar Hayat (PW-12) and Muhammad Tariq (PW-13); Autopsies were conducted by Dr. Muhammad Saad Rasool (PW-9); site plan was prepared by draftsman patwari Nasir Masood (PW-4); and, Moharrar Abdul Aziz appeared and deposed as PW- 5. Remaining of the prosecution witnesses ("PWs") were more or less formal in nature. Prosecution, gave up witnesses, namely, Ghulam Yaseen, Abdul Rasheed, Rabnawaz, Ghulam Akbar, Naseer, and Haq Nawaz, and after tendering the following documents, id est: Histopathology Report bearing No. 0000739868 of Khan Muhammad (Exh.P-SS); Histopathology Report bearing No. 0000739837 of Allah Bakhsh (Exh.P-AB); Report of Audio visual Analysis bearing No. 0000729466 (Exh.P-UU): Reports of firearms and tool marks pertaining to Fida Hussain and Waseem bearing No. 0000744744 (Exh:P-VV), No. 00001029705 (Exh.P-WW), No. 00001025965 (Exh.P-XX), No. 0000888616 (Exh.P-YY); and, Forensic and Serology Analysis report No.000099136 (Exh.P-ZZ), closed its evidence. Thereafter, the appellants denied the charges levelled against them in their statements under Section 342 of the Code, but they did not opt to appear as their own witnesses in terms of Section 340(2) of the Code nor produce any defense evidence. On conclusion of trial, the learned Trial
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Court found the case against the appellants to have been proved, thus, convicted and sentenced them as detailed above. 4. Learned counsel for the appellants, amongst others contentions, averred that the name of the appellant namely Muhammad Shan was substituted after inordinate delay with deliberation via supplementary statement which has not intrinsic value in the eyes of law; dishonest improvements were made by the eyewitnesses, rending their testimony unsafe to rely upon; rigor mortis could not have developed if time when crime report got registered is taken at face value; witnesses failed to explain their presence at the venue of occurrence; PFSA report lost its evidentiary value because guidelines laid down by the Honorable Supreme Court of Pakistan were not followed, thus could not be relied upon to convict the appellants; and co-accused persons of the appellants have already be acquitted. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant vociferously defended the impugned judgment and argued that the discrepancies in ocular account are minor in nature; PFSA report is positive and supports substitution of appellant Muhammad Shan along with confession of accomplice, namely, co- accused Muhammad Ramzan, which is protected when Article 16 and 43 of the Qanun-e- Shahadat 1984 ("QSO") are read together; witnesses had no motive to falsely implicate the appellants; and, role of co-accused persons was different from that of present appellants, therefore, their acquittal has no bearing on the case of prosecution qua present appellants. 5. Heard, perused. 6. It is discernible from perusal of the material available on record that neither the occurrence took place in the mode and manner as stated by the purported eyewitnesses, nor did it take place at the time mentioned by them. Reason being that the time of occurrence in the Crime Report is 5:00 pm on 23.10.2021, whereas perusal of the post-mortem report, duly supported by the deposition of Dr. Muhammad Saad Rasool (PW-9), provides that the autopsy of Haji Allah Bakhsh deceased was conducted at 12:15 am on 24.10.2021, wherein the difference between injury and death is scribed as 'Within minutes' while the difference between death and post mortem is stated as between '8 to 10 hours'. It is evident from the above that the time of death as narrated in the Crime Report stands contradicted by the testimony of Dr. Muhammad Saad Rasool (PW-9) and post-mortem report. Alfred Swaine Taylor in "The Principles of Medical Jurisprudence" states 'Rigor Mortis commences 2 to 4 hours and reaches a peak in about 12 hours and starts to disappear after another 12 hours' (Emphasis supplied). Considering that the time between post-mortem examination and demise of the deceased is 7 hours and 15 minutes, if calculated from the Crime Report, it is mind-boggling how rigor mortis could fully develop within such a short span of time.[2] In other words, time of demise of the deceased is not in consonance with the time of occurrence as disclosed in the Crime Report. To this end, the inquest report was also examined, and the time when police found out about the occurrence in column No. 3 is conspicuously missing. Record is completely silent qua memos of identification of the deceased persons before conducting post-mortem examinations, as is evident from the testimony of the investigating officer and eyewitness Safdar Ghafoor (PW-6). Who escorted the then injured to the hospital is shrouded in mystery for the obvious reason that had said witnesses of ocular account been present at the time and place of occurrence, then said witnesses were supposed to have escorted the injured to the hospital[3] and although to substantiate their presence the purported eyewitnesses produced bloodstained clothes before the investigating officer, however, no serologist and DNA report of PFSA is available to this end for matching their blood with that collected from the scene of the crime[4]. The vehicle, which was used to transport the injured and deceased to the hospital and mortuary was never produced.[5] On a related note, the delay of 7 hours and 15 minutes in conducting the post-mortem, which remained unexplained, points out towards a real possibility that time was consumed in order to procure and plant eyewitnesses for concocting a false story of prosecution before preparing police
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papers necessary for getting post-mortem examination conducted. Complainant Faiz Rasool (PW- 3) could not justify his presence, rather he candidly admitted that he and all other witnesses reside about eighteen kilometers away from the place of occurrence, and the reason provided for their presence in the Crime Report finds no corroboration as neither the attendance sheet of the office of DSP Jatoi with regards to investigation of crime report bearing FIR No. 227/2021 registered with police station Shaher Sultan nor record of crime report bearing FIR No. 227/2021 were brought on record. All the said omissions are conspicuous by their absence and in absence of physical proof or the reason for the presence of the witnesses at the crime scene, their presence at the venue of occurrence at the time of commission of offence becomes highly doubtful and the same cannot be relied upon. Consequently, the purported eyewitnesses were, at best, chance witnesses.[6] It is trite that a single doubt reasonably shaking the credibility of the presence of a witness at the venue of the crime suffices to discard the testimony of said witness in its entirety.[7] Furthermore, Mr. Rabnawaz, in whose defense the complainant and witnesses purportedly went to office of DSP Jatoi and sustained injuries on the way back, was withheld by the prosecution, meaning thereby that he did not support the prosecution version. Illustration (g) of Article 129 of the Qanun-e- Shahadat 1984 ("QSO") provides that if any best piece of evidence available with the parties is not produced by them, then it shall be presumed that had that evidence been produced, the same would have gone against the party producing the same.[8] 7. Witnesses of ocular account, namely, complainant Faiz Rasool (PW 3) and Safdar Ghafoor (PW- 6), deposed in unison with the version put forth by prosecution in the Crime Report that only a single firearm injury was caused by appellant Fida Hussain on the person of the deceased Haji Allah Bakhsh, whereas their testimony is at odds and at a stark derogation with medical evidence in the shape of deposition of Dr. Muhammad Saad Rasool (PW-9) and post-mortem report, wherein two firearm injuries were observed on the person of the deceased Haji Allah Bakhsh. Similarly, a single firearm injury was caused by co-accused Muhammad Ramzan (later substituted with the appellant Muhammad Shan) on the person of deceased Khan Muhammad per the Crime Report, whereas in the post-mortem report, two firearm wounds were observed by Dr. Muhammad Saad Rasool (PW-9). Notably, the time duration between injury and medical examination of complainant Faiz Rasool (PW-3) (who allegedly fell from Motor Cycle at the time of occurrence) was stated in the MLC as '6 to 7 hours', which is in conflict with the time difference between injury and post-mortem examination and the MLC of the complainant. Had the deceased persons and complainant Faiz Rasool (PW-3) sustained injuries on their persons, the duration between injury and occurrence would have been the same as in the post-mortem report. When the aforementioned number of injuries and time lapse(s) are put in juxtaposition, it becomes rather obvious that there was no plausible explanation as to why the autopsy was conducted with the delay[9] and there is an apparent conflict between medical and ocular accounts due to which no other opinion could be formed but to hold that the incident did not occur at the time as stated by the witnesses of the ocular account and the occurrence remained unwitnessed.[10] In "Nasir Ali and others v. Sajjad Hussain and others" (PLD 2006 Supreme Court 560), it was held that: 'The learned High Court had given finding of fact against the petitioner after proper appreciation of evidence with ocular testimony directly in conflict with medical evidence. It is a settled principle of law that in case of conflict between the ocular and medical evidence, then medical evidence is to be preferred. See Bagh Ali's case (1983 SCMR 1292) and Muhammad Aslam's case (1969 SCMR 462). It is pertinent to mention here that statement of eye-witnesses in respect of nature and seat of injuries could not connect the respondents as their statements are not in consonance with medical evidence and this finding was duly considered/noted by the High Court after reappraisal of eye-witnesses and the medical evidence in minutely'.
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The medical and ocular conflict,[11] when culminated with the difference between the time of death and lack of justification qua presence at the scene of the alleged occurrence, lends credence to the view that the purported eyewitnesses were neither present when the deceased sustained injuries nor did they witness the occurrence and the narration of the FIR version, due to delayed post-mortem examinations,[12] is nothing but an afterthought, benefit whereof would go to the appellants. In "Muhammad Riaz v. Khurram Shehzad and another" (2024 SCMR 51), it was held that: 'Thus, even in this respect the ocular account was contradicted by the medical evidence. It is a settled exposition of law that when the presence of eye-witnesses on the spot is doubtful then, in such situations, the ocular testimony should be excluded from consideration. The contradictions, if any, in the ocular evidence and medical evidence originates doubts and improbabilities in the prosecution case and, in such a situation, the benefit of doubt would obviously be extended to the accused'. 8. All the same, the recovery of weapons supposedly effected from the appellant does not, in any way, shape or form, lend support to the prosecution case as the weapon purportedly used for commission of offence was a pistol 30 bore and not a rifle. Beyond that, the recovery of rifles from the appellants is inconsequential as substantive evidence has failed in the present lis.[13] In addition thereto, the said witnesses of the ocular account substituted one of the principal accused Muhammad Ramzan for the present appellant Muhammad Shan vide supplementary statement dated 12.03.2022, after an inordinate delay of four months and eighteen days. To circumvent this, recourse was taken to: (a) the fact that co-accused Muhammad Ramzan on 23.01.2022 joined investigation before PW-12 and while becoming a so-called accomplice, he confessed that appellant Fida Hussain and Muhammad Waseem were accompanied by appellant Muhammad Shan; and, (b) forensic report of CCTV footage acquired via USB from DVR on 08.01.2022 and the same was submitted in the office of PFSA on 11.01.2022 who after conducting analysis, vide PFSA report stated that CCTV footage was not tampered or forged. In view thereof, it was averred by the learned Deputy Prosecutor General that statement of Muhammad Ramzan before the Investigating Officer has evidentiary value, in the light of the Articles 16 and 43 of the Qanun-e-Shahadat 1984 ("QSO") and that the plea of appellants qua dishonestly substituting the name of co-accused Muhammad Ramzan with appellant Muhammad Shan is misconceived. This contention fails to take into consideration due to the following: a. Firstly, it is an admitted fact that appellant Muhammad Shan was not nominated in the Crime Report. His nomination through an affidavit on 12.03.2022 is nothing but a supplementary statement, and such statements have always been considered to be afterthoughts carrying no evidentiary value;[14] b. Secondly, there is a stark difference between a statement of an accomplice and a confession of a co-accused. The statement of an accomplice has to be recorded under Section 164 of the Code for it to be used, and such an accomplice has to depose in terms of subsection (2) of Section 337 of the Code;[15] a mere statement before the police simpliciter cannot be considered as such;[16] c. Thirdly, albeit under Article 16 of Qanun-e-Shahadat 1984 ("QSO") an accomplice[17] is a competent witness; however, illustration (b) to Article 129 provides a rider 'that an accomplice is unworthy of credit unless he is corroborated in material particulars'. Since, the evidence of an approver being that of an accomplice is prima facie of a tainted character, it should be scrutinised with utmost care and accepted with caution and to this end, Rule 5 of Chapter 14, Volume-III, of the Rules and Orders of the Lahore High Court stipulates that 'As a matter of law, pure and simple, a conviction is not bad merely because it proceeds upon the uncorroborated testimony of an accomplice (vide *[Article 16 of the Qanun-e-Shahadat 1984]. But it has now become almost a universal rule ***[...J not to base a conviction on the testimony of an accomplice unless it is
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corroborated in material particulars. As to the amount of corroboration which is necessary, no hard and fast rule can be laid down. It will depend upon various factors, such as the nature of the crime, the nature of the approver's evidence, the extent of his complicity, and so forth. But, as a rule, corroboration is considered necessary not only in respect of the general story of the approver, but in respect of facts establishing the prisoner's identity and his participation in the crime.]',[18] which is squarely lacking in this lis, as explained hereinbelow; d. Fourthly, if the argument is accepted and the statement is considered as a confession, then it would have no intrinsic evidentiary value for being an extra-judicial confession given to police because co-accused Muhammad Ramzan was never taken to any Magistrate for recording of his confession in terms of Section 164 of the Code;[19] e. Fifthly, the value of a statement made to police with regard to the niceties of Articles 38, 39 and 40 of QSO has already been enunciated in exceptional detail by the honourable Supreme Court of Pakistan in "Akhtar v. Khwas Khan and another" (2024 SCMR 476) in the following words: 'the niceties of Article 38 of the Qanun-e-Shahadat Order, 1984 are quite lucid that no confession made to a police officer shall be proved as against a person accused of any offence, while Article 39 emphasizes that, subject to Article 40, no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Seemingly, a confession made before the police is not made admissible by dint of the aforesaid provisions of the Qanun-e-Shahadat Order, 1984 in order to preserve and safeguard the philosophy of safe administration of criminal justice and is also based on public policy';[20] f. Sixthly, notwithstanding its lack of evidentiary value, the so-called confession does not support the prosecution case as it is trite that confession of a co-accused could not be used against another accused.[21] It is clarified that Article 43 of QSO pertains to confession, not statements of co-accused or accomplice, and the Article itself provides that in clause (b) thereof, the confession of co-accused will be considered as a mere circumstantial piece of evidence against such other person. Meaning thereby that the same cannot be a stand-alone reason to convict someone; rather, it would require corroboration. Furthermore, it is settled by now that two corroborative pieces of evidence cannot corroborate each other, but corroboration must come from an independent source;[22] g. Lastly, if all of these factors are taken out of consideration, even then the statement of co- accused Muhammad Ramzan merely states that appellant Muhammad Shan was with the others, and not for a moment states that the appellant committed the commission of qatl-e-amd. As a consequence thereof, this contention is repelled. 8. In the same vein, the averment of learned law officer that corroboration existed in the shape of CCTV footage and contention that the substitution in the name of the culprit was done after watching of CCTV footage, unfortunately, is misconstrued in light of the fact that Safdar Ghafoor (PW-6) admitted during cross-examination that the accused persons were his relatives and further stated that someone from his baradari disclosed the name of appellant Muhammad Shan to him. Based on the above, the question of misidentification does not arise and it does not appeal to reason that complainant Faiz Rasool (PW-3) would be oblivious to the name of his own relative and require someone, whose identity was not disclosed, to inform him the name of his relative, and that too after a considerable time lapse. The complainant Faiz Rasool (PW-3) himself produced five snaps (P-22/1-5) before the investigating officer, wherein the accused persons were boarded on a motorcycle on 10.11.2021. This means that complainant Faiz Rasool (PW-3) knew who the suspects were, however, he stayed mum without any reasonable justification until CCTV footage was acquired and forensic analysis of the same was conducted. Additionally, despite having the pictures of the assailants, he did not recognize his own relative in order to provide the investigating
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agency with the correct name. It makes no sense as it is not the case of the prosecution that the assailants were wearing mufflers to conceal their identity. In "Maqsood Alam and another v. The State and others" (2024 SCMR 156), the testimony of eyewitnesses was discarded based on the following observation: 'There is no denial to this fact that the eye-witnesses are closely related to each other and even the relationship with the accused is not denied, which has been admitted by them. The PWs were acquainted with the accused being the co-villagers. In view of the fact that the parties were known to each other, non-mentioning the name of the co-accused Fawad Alam in the crime report shifted the burden on the shoulder of the prosecution to assign justiciable reasons for non- identification of Fawad Alam at the time of occurrence vis-a-vis the non-mentioning of his name in the crime report, especially when it is an admitted fact that it is not the case of prosecution that the…
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