Full Judgment Text & Judicial Ruling

2025 M L D 1803 [Lahore] Before Muhammad Tariq Nadeem and Muhammad Jawad Zafar, JJ Khitab Ullah and others---Appellants Versus The State---Respondent Criminal Appeal No. 80283-J, Murder Reference No. 321, Criminal P.S.L.A. No. 80831 and Criminal Revision No. 80810 of 2022, decided on 14th May, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of 10-hours and 20-minutes in lodging the FIR---Consequential---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---Record showed that the unfortunate occurrence, whereby the deceased lost his life and two persons were injured, took place at or about 08:30 am on 01.08.2020 while the matter was reported to the police on the same day at 06:50 pm, with an inordinate delay of about 10 hours and 20 minutes despite the police station being merely 2 kilometers away from the place of occurrence---In column No. 3 of the inquest report, the date and time when police got information about the death was scribed as 01.08.2020 at 08:30 a.m.---Such belated lodging of the crime report shattered the sanctity of the same and reflected that the time was consumed in fabricating, deliberating, consulting and concocting a false story---No plausible justification or adequate explanation was furnished by the prosecution for that delay---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of 13 hours and 45 minutes in conducting the postmortem examination upon the dead body of the deceased---Consequential---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---It was evinced from the perusal of the Post-Mortem Examination Report of the deceased, that the dead body was received in the dead house at 10:00 am on 01.08.2020, whereas complete documents from Police were also received at 10:00 pm on 01.08.2020---Medical Officer conducted the autopsy of the deceased at 10:15 p.m., after a lapse of 13 hours and 45 minutes---Medical Officer admitted in his cross-examination that he received the written application to conduct the postmortem examination of the deceased by the police at 10.00 pm---Prosecutor and complainant were unable to point any justifiable reason for the said delay from the entire record---Such unexplained delay in the Post-Mortem Examination of a deceased would surely put a prudent mind on guard to very cautiously access and scrutinize the prosecution's evidence---In such circumstances, the most natural inference would be that the delay so caused was for preliminary investigation and prior consultation to nominate the accused persons and plant eye-witnesses of the crime---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Discrepancies in the prosecution case---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---As per record, acquitted co-accused "W" fired with his Kalashnikov at the already fallen deceased, striking him on the left side of his back, on the middle of his back, and on the backside of his left shoulder and the right side of his back---All those injuries inflicted by said acquitted co-accused were declared fatal shots by Medical Officer who conducted the autopsy of the deceased---Said acquitted co-accused repeatedly fired his rifle at one of the injured persons, hitting him near the umbilicus and on his right ribs---Said injured in his examination-in-chief had not assigned any role to said acquitted co-accused "W" of causing any firearm injury to the deceased and consequently the Trial Court acquitted him of the charge---Likewise to the extent of acquitted co-accused "W", whose attribution of injuries was substituted by the complainant in paragraph No. 4 of the private complaint, such discrepancies were detrimental to the prosecution's case, primarily affecting the credibility of the evidence presented---Appellants' case was grounded on the same evidence and the roles assigned to them were similar to those of the co-accused who were acquitted---Sudden shift in the Court's findings, based on essentially the same facts, coupled with the modifications in the verdict, compelled to disbelieve the evidence of prosecution to the extent of present appellants---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay in recording the statements of injured witnesses---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---Record showed that the statement of the injured witnesses were recorded by First Investigating Officer on 03.08.2020, two days after the lodging of FIR and on 04.08.2020, three days after the lodging of FIR, respectively---Said material aspect of the prosecution's case regarding the delay in recording the statements of injured witnesses under S.161, Cr.P.C., not only diminished the evidentiary value of their statements but also raised a reasonable doubt concerning the mode of injuries they received, especially when their Medico Legal Examination Certificate showed that they were conscious at the time of admission in the THQ Hospital---Unexplained delay of one or two days in recording the statement of eye-witnesses would be detrimental and testimony of such witnesses should be taken with a pinch of salt---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. Amin Ali and another v. The State 2011 SCMR 323 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of three months and 29 days in filing the complaint---Consequential---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---Record showed that the complainant of the case being dissatisfied with the police investigation, while changing the prosecution version, filed a private complaint on 30.11.2020 with the delay of almost 03 months and 29 days of the occurrence---Complainant had not given any plausible reasoning qua such delay meaning that the private complaint had been filed after due deliberation and consultation just to fill up the lacunas left in the FIR---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. Muhammad Azad v. Ahmad Ali and 2 others PLD 2003 SC 14 rel. (f) Criminal trial--- ----Ipse dixit of police---Scope---Ipse dixit of the police is not binding on the Courts, yet it can be considered if it is found on some cogent and convincing evidence. Khalid Mehmood and others v. The State 2011 SCMR 664 and Sajjad Hussain v. The State and others 2022 SCMR 1540 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of complainant at the spot not proved---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---According to the prosecution's account, the complainant of the case, along with his companions, allegedly escorted the deceased and the injured persons to the Civil Hospital---However, complainant was not listed as a witness of the identification of the dead body in the inquest report---Furthermore, if complainant was present at the hospital, the question aroseas to why he did not identify deceased's dead body at the time of the Post-Mortem Examination---Such inconsistency led to conclude that the complainant was not present at the time and place of the occurrence---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recoveries of crime weapons on the disclosure of accused---Inconsequential---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---Record showed that the appellants were arrested on 26.08.2020, who led to the recoveries on the basis of disclosures made by them on 07.09.2020---As per record, from one appellant, a 223-bore rifle along with four live bullets was recovered from another appellant, 222-bore rifle along with two live bullets was recovered from another appellant, rifle along with three live bullets was recovered; and a rifle along with five live bullets were recovered from acquitted accused, which were deposited to the office of Forensic Science Agency on 14.09.2020 for comparison with the crime empties already secured from the place of occurrence---Firearm and Toolmarks Examination Report in that regard was negative---Consequently, the evidentiary value of those recoveries remained inconclusive and could not be regarded as substantive proof---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 336, 337-F(iii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, ghayr-jaifah-mutalahimah, causing grievous hurt, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged that they made firing upon the complainant party, due to which one person died whereas two sustained firearm injuries---Prosecution specifically alleged that the motive behind the occurrence was a previous enmity between the parties---Alleged motive rested solely on the oral assertion of the complainant as no corroborative evidence was presented by the prosecution to substantiate its claim---Prosecution is not obligated to prove motive in every murder case but it is equally established that once the prosecution sets up a specific motive, it assums the burden of proving it---Failure to discharge that burden operates to the detriment of the prosecution, not the accused---Circumstances established that the prosecution had failed to prove its case through cogent, reliable and trustworthy evidence---Appeal of accused persons against conviction was allowed, accordingly. (j) Criminal trial--- ----Benefit of doubt---Principle---Single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Muhammad Ahsan Bhoon, Muhammad Mushtaq Chaudhry, Iftikhar Ahmad Bittu, Irfan Riaz Gondal, Ch. Zulfiqar Abrar, Mustansar Nazar Ghagh and Mohsin Raza Bhatti for Appellants. Ijaz Ahmad Pannu, Deputy District Public Prosecutor for the State. Barrister Salaman Safdar, Barrister Hamza Shehram Sarwar and Asad Zaman Tarrar for the Complainant. Date of hearing: 14th May, 2025. judgment Muhammad Jawad Zafar, J.---Through this single judgment, we intend to dispose of Crl. Appeal No. 80283 of 2022 filed by Khitab Ullah, Muhammad Azhar, Muhammad Asif, Shahzad Mehmood and Muhammad Amir against their convictions and sentences, Criminal P.S.L.A. No. 80831 of 2022 filed by Mukhtar Ahmad, complainant of the case (PW-3) and Criminal Revision No. 80810 of 2022 filed by Mukhtar Ahmad, complainant of the case (PW-3) for enhancement of sentence, whereas Murder Reference No. 321 of 2022 has also been transmitted by learned Trial Court for confirmation or otherwise of death sentences of Khitab Ullah and Muhammad Azhar, appellants under section 374 of the Code of Criminal Procedure, 1898 ("Code" or "Cr.P.C"), all the matters being originated from the same judgment dated 12.11.2022 passed by learned Addl. Sessions Judge, Nowshera Virkan, District Gujranwala ("Trial Court") in the private complaint (Exh.PC) under sections 302, 324, 336, 337-F(iii), 337-F(vi), 148 and 149 P.P.C emanated from case FIR No.664 dated 01.08.2020, under Sections 302, 324, 148, 149 P.P.C registered at Police Station Tatlay Aali, Gujranwala whereby, at the conclusion of the trial in the said case, the learned Trial Court, while acquitting the co-accused persons Muhammad Waris and Waseem Nasar, convicted and sentenced the appellants as under: Khitab Ullah son of Muhammad Waris:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to death as ta'zir with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced to ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Muhammad Azhar son of Mehmood Ahmad:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to death as ta'zir with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000 in default whereof, the convict shall undergo S.I for two months. Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Muhammad Asif son of Riasat Ali: Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to rigorous imprisonment for life as ta'zir and with direction to pay Rs.7,00,000/-as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Shahzad Mehmood son of Mehmood Ahmad:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to rigorous imprisonment for life as ta'zir and with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I. for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Muhammad Amir son of Amanat Ali:- Under Section 302(b), P.P.C read with Section 149 P.P.C, sentenced to rigorous imprisonment for life as ta'zir and with direction to pay Rs.7,00,000/- as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment thereof, to further undergo S.I for six months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Nadeem and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months. Under Section 324 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for ten years for attempt to commit qatl-i-amd of Muhammad Hashim and with the fine of Rs.50,000/- in default whereof, the convict shall undergo S.I for two months Under Section 336 P.P.C read with Section 149 P.P.C sentenced with rigorous imprisonment for seven years causing injury No.3 on the person of Muhammad Nadeem. Under Section 337-F(vi) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah) and is sentenced with rigorous imprisonment for five years and to pay Rs.200,000/- as daman to injured Muhammad Hashim. Under Section 337-F(iii) P.P.C read with Section 149 P.P.C (for jurh-ghayr-jaifah and mutalahimah) and is sentenced with rigorous imprisonment for two years and to pay Rs.50,000/- as daman to injured Muhammad Nadeem. Under Section 148 P.P.C and is sentenced with rigorous imprisonment for two years. Benefit of Section 382-B Cr.P.C. is extended in favour of the accused persons. All the sentences shall run concurrently. 2. The prosecution story as given in the judgment of the Trial Court reads as under: "On 01.08.2020 at 07:00 am, the complainant (Pw.3) along with Muhammad Arshad brother (since given up), Muhammad Hashim son of Muhammad Arshad (injured Pw.4), Muhammad Amir (deceased), Muhammad (injured Pw.5) both sons of Qamar, Hamza Mukhtar (Pw.6) son of complainant, went to Eid-Gaah situated on the north-western side of the village to offer Eid-Prayer. People from the village including Muhammad Waris (accused) along with his relatives were also present there for Eid-Prayer. After Eid-Prayer, at about 07:45 am, Muhammad Waris along with his relatives went to the village, whereas, the complainant party went to the graveyard, adjacent to the Eid-Gaah, to offer Fateh-Khawani for their deceased persons. After Fatch-Khawant, the complainant party left the graveyard and were going towards the village. Muhammad Nadeem (injured Pw.5) was boarded on his motorcycle GAL-8550, Honda 125, Model 2020 (PS), Muhammad Hashim (injured Pw.4) and Muhammad Amir (deceased) were boarded on motorcycle Metro 70-CC (P-6) Model 2020, Applied for. Amir was driving the motorcycle, while Hashim sitting on its rear seat, were going slowly towards the village, ahead of the complainant, Arshad and Hamza Mukhtar who were following them on foot. When, at about 08:30 am, the complainant party reached near the house of Kashif son of Khushi Muhammad, Muhammad Waris armed with kalashnikov, Muhammad Asif armed with kalashnikov, Khitabullah armed with kalashnikov, Azhar Mehmood armed with rifle, Shahzad armed with rifle, Amir armed with rifle and Waseem armed with rifle, all present in court with their mutual consultation, already present at the old DERA of Muhammad Waris, suddenly, emerged from there on the mettled road and blocked their passage. Accused Muhammad Waris raised a lalkara not to let Muhammad Amir and others alive. On this, Khitabullah made a straight burst with his kalashnikov to Amir which hit him on left side of his neck, on the different parts of his chest and on the left side of his face. Amir fell down from his motorcycle. Muhammad Waris made a burst with his kalashnikov on the person of Muhammad Amir who was already fallen on the ground which hit on left side of Amir's back, on the middle of his back, on the back side of his left shoulder and on the right side of his back. Azhar son of…

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