Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2023-05-22, officially reported as 2024 PCRLJ 82. In this matter between The State , Ali Ahsan alias Sunny, Muhammad Khalid and Ali Ahsan alias Sunny, The State, etc, The State, etc, 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.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Aalia Neelum, Muhammad Amjad Rafiq Title:The State , Ali Ahsan alias Sunny, Muhammad Khalid vs Ali Ahsan alias

Sunny, The State, etc, The State, etc Case No.:Murder Reference No.164 of 2018, Crl. Appeal No.193932 of 2018, Crl. Appeal No.206624 of 2018 Date of Judgment:2023-05-22 Reported As: 2023 LHC 2869, 2024 PCRLJ 82 Result:Murder Reference Answered in Negative, Appeal 193932 Accepted, Appeal 206624 Dismissed Judgment Judgment: AALIA NEELUM, J:- The appellant-Ali Ahsan alias Sunny, son of Anwar Hussain, Caste Balouch, resident of Basti Mai Roshan Tehsil Kallur Kot, District Bhakkar, along with his co-accused, was involved in the case F.I.R. No.227 of 2017, dated 15.07.2017, registered under Sections 302, 34 P.P.C., at the police station, Kallur Kot, District Bhakkar and was tried by the learned Additional Sessions Judge, Kallur Kot, District Bhakkar. The trial court seized with the matter in terms of the judgment dated 30.03.2018, convicted Ali Ahsan alias Sunny (the appellant) under Section 302(b) PPC as Tazir and sentenced to Death for committing Qatl-e-Amd of Saddam Khalid (the deceased), with the direction to pay compensation of Rs.5,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06-months S.I further. The benefit of Section 382-B of Cr.P.C was also extended in favour of the accused. 2. Feeling aggrieved by the trial court's judgment, Ali Ahsan alias Sunny, the appellant, has assailed his conviction and sentence by filing the instant appeal bearing Criminal Appeal No.193932 of 2018. The trial court also referred M.R. No.164 of 2018 (The State. Vs. Ali Ahsan alias Sunny) to confirm the death sentence awarded to the appellant-Ali Ahsan alias Sunny. Whereas the complainant also filed Crl. Appeal No.206624 of 2018 against the acquittal of respondent No.2, namely Touseef. All the matters arising from the same judgment of the trial court are being disposed of through a single judgment.

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3. The prosecution story, as alleged in the F.I.R (Ex.PF/1) lodged on the statement (Ex.PF) of Muhammad Khalid (PW-8)-the complainant, is that on 15.07.2017, at about 06:15 p.m., the complainant (PW-8) along with Arsalan (given up-PW) and Nadir Ali (PW-9) was standing near Masjid Jafaria, Village Basti Mai Roshan, whereas son of the complainant namely Saddam Khalid (deceased) was coming towards his house from the cattle shed of his "Mamoo" Nasir Hussain and when he reached near the masjid Jafaria, the accused, Ali Ahsan alias Sunny (the appellant) along with his co-accused while equipped with their respective weapons emerged there and raised lalkara not to spare Saddam Khalid; after that, they all started to give fist blows upon the person of Saddam Khalid; then the accused, Touseef (co-accused since acquitted), Zaheer Abbas (co- accused since P.O) and Yawar Abbas (co-accused since P.O) caught hold of Saddam Khalid (the deceased) and Ali Ahsan alias Sunny (the appellant) made a knife blow which hit Saddam Khalid (deceased) on his chest. After that, Ali Ahsan alias Sunny (the appellant) made a second knife blow, which landed upon the left flank of Saddam Khalid (deceased). After receiving said injuries, Saddam Khalid (the deceased) fell, whereas the accused, Ali Ahsan alias Sunny (the appellant), decamped from the place of occurrence after brandishing a knife; after that, the complainant (PW-8) along with Arsalan (given up-PW) and Nadir Ali (PW-9) shifted Saddam Khalid (deceased) in injured condition to Tehsil Headquarter Hospital, Kallur Kot, who succumbed to the injuries. The motive behind the occurrence was that, two days back, an altercation occurred between Saddam Kahlid (the deceased) and Ali Ahsan alias Sunny, etc.; due to that grudge, the accused murdered Saddam Khalid (the deceased). 4. After the incident, the complainant reported the matter to the police through his oral complaint (Ex. PF), and after that, formal F.I.R (Exh.PF/1) was chalked out by Khan Muhammad A.S.I (PW-6). After the registration of the case, the investigation of this case was entrusted to Sajjad Hussain S.I/H.I.U (PW-11), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C., and sent the same to the court of competent jurisdiction. On 16.10.2017, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as eleven (11) witnesses. 5. Ocular account, in this case, has come out from the statements of Muhammad Khalid (PW-8)- the complainant, and Nadir Ali (PW-9)-the eye witness, whereas Dr. Mahmood Ali Raza (PW-4), who conducted the postmortem examination of Saddam Khalid (the deceased) found the following injuries on his person: INJURIES 1) A stab wound measuring 1.5 x 1 cm on the left side of the front of the chest, 12 cm below the nipple, and 2 cm lateral to the sternum with corresponding holes on Kameez and Bunyan. 2) A stab wound measuring 1.5 cm x 1 cm in the left loin region 10 cm above the iliac crest with corresponding holes in clothes. After conducting the postmortem examination, the doctor opined that the death was caused by hemorrhage and shock as a result of injuries No.1 & 2, which caused damage to the vital organs of the body; these injuries were grievous and sufficient to cause death in the ordinary course of nature. All injuries were anti-mortem and enough to cause death by sharp-edged weapons. The probable time between injuries and death was half an hour, whereas between death and postmortem was about three hours. 6. The learned Assistant District Public Prosecutor gave up PWs Arsalan, Ahmad Nawaz, Shah Nawaz 209/HC, and Muhammad Rafi, SI/HIU as being unnecessary and after tendering reports of Punjab Forensic Science Agency (Ex. PN and Ex. PO) closed the prosecution evidence. 7. 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) Cr.P.C.; however, he produced Mark D.A to

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Mark D.D in his defence evidence. In response to a particular question about why this case was against him and why the PWs deposed against him, the appellant made the following deposition: - "This case was falsely registered against myself as well as against the co-accused persons. So far as the PWs are concerned they are related inter se, they hence deposed falsely against me. Infact, on the day of occurrence, Saddam Khalid deceased was playing Cricket with some youngsters in the play ground of village Basti Mai Roshan and during the said match a sudden fight erupted in between the two groups. Saddam Khalid deceased was hard headed, street criminal and he used to remain indulged in nefarious activities, so during the said open fight sustained injuries mysteriously by some unidentified culprits, but the complainant involved me in this case falsely after due deliberation and hectic consultation on account of party factions in the village. Even otherwise, I was present on my duty at southern railway crossing Bhakkar City as being railway employee at the time of alleged occurrence. Neither complainant nor alleged PWs witnessed the occurrence. Neither I nor my co-accused persons were present at the spot. Muhammad Khalid complainant was called from his house and he got registered this false case against me and other co-accused persons, after due deliberation and consultation and with padding. I am innocent, I have been involved in this case merely on suspicion; I am a poor person and only bread earner of my whole family. I cannot even think to commit murder of my whole family. I have became pauper due to this false case." 8. After evaluating the evidence available on record in light of arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction and sentence in the above terms. 9. We have given our anxious and most thoughtful consideration to both sides' rival submissions. We have minutely gone through the evidence on record. 10. The incident took place on 15.07.2017 at 06:15 p.m. near Masjid Jafria situated in village Basti Mai Roshan, within the area of Police Station, Kallur Kot, District Bhakkar, which is at a distance of 25/26 kilometers from the place of occurrence. Muhammad Khalid Khan (PW-8) the complainant reported the incident through oral complaint (Exh. PF) to Sajjad Hussain, S.I./H.I.U. (PW-11) at 07:45 p.m. at THQ Hospital, Kallur Kot, who reached the hospital upon receiving information of the incident and he (PW-11) incorporated police proceedings at the bottom of the oral complaint (Exh. PF) and referred the same through Ahmad Sher 412/C (not cited as PW) to the police station, based on which, formal F.I.R. (Exh. PF/1) was chalked out on the same day at 07:55 p.m. by Khan Muhammad A.S.I (PW-6). Muhammad Khalid Khan (PW-8)-the complainant, took one hour and forty minutes to report the incident to the police. 11. As per the prosecution case, Saddam Khalid-the deceased (then injured), was taken to THQ Hospital, Kallur Kot, for treatment, and Saddam Khalid-the deceased (then injured) scummed to the injuries. The deposition of Dr. Mahmood Ali Raza (PW-4) reveals that the dead body of Saddam Khalid (the deceased) was produced before him on 15.07.2017 at 06:50 p.m. He (PW-4) deposed during cross-examination that: "The dead body was produced before me at 6.50 P.M on 15.07.2017. When the dead body was produced before me, I examined it and after examining I recorded the time of death in the relevant column as 6.53 P.M." Muhammad Khalid Khan (PW-8)-the complainant deposed during cross-examination that: "We almost consumed half an hour to reach in the hospital. When doctor reached to check the deceased Sadam Khalid, he after examining the injured informed us that he had expired. The deceased was un-conscious after receiving the injuries. The deceased at the spot was un- conscious and he did not expire at the spot. We shifted the deceased from the place of occurrence in injured condition."

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Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer deposed during examination in chief that: - "On 15.07.2017 I was posted as SI/HIU circle Kallur Kot. On the same day, after receiving the information, regarding the occurrence, I reached at THQ Kallur Kot, where Muhammad Khalid Khan complainant of this case met me and I recorded his statement Exh.PF which is in my hand and bears my signatures. Exh.PF was read over to Muhammad Khalid Khan complainant and he signed the same as a token of correctness. I sent the complaint for registration of case through Ahmad Sher 412/C." The oral complaint (Exh.PF) shows that Muhammad Sajjad Hussain, S.I./H.I.U. (PW-11)-investigating officer incorporated police proceedings at the bottom of the oral complaint (Exh. PF) at 07:45 p.m. at THQ Hospital, Kallur Kot. He (PW-11)-the investigating officer referred the same through Ahmad Sher 412/C (not cited as PW) to the police station, based on which formal F.I.R. (Exh. PF/1) was chalked out on the same day at 07:55 p.m. by Khan Muhammad A.S.I (PW-6). Whereas, per the prosecution case, the incident occurred at 06:15 p.m. on 15.07.2017. Dr. Mahmood Ali Raza (PW-4) deposed that the dead body of Saddam Khalid (the deceased) was produced before him on 15.07.2017 at 06:50 p.m. and in the column of post-mortem report (Exh. PC), he entered the time of death at 06:53 p.m. Whereas Muhammad Sajjad Hussain, S.I./H.I.U. (PW-11) investigating officer deposed during cross-examination that: - "I do not remember the exact time when I received the information regarding the occurrence. I reached at THO Kallur Kot at about 6.50 P.M. As soon as I reached in THO Kallur Kot, I recorded the statement of complainant Muhammad Khalid Khan. Many persons were available with the complainant at that time, but I cannot tell as to whether the eye witnesses were present or not at that time Instead, the fact that Saddam Khalid (the deceased) expired due to injuries came to the surface at 6:53 p.m. on 15.07.2017. During cross-examination, Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer deposed that: - "I consumed about 55 minutes in recording the statement of the complainant and preparing inquest report etc." In view of the deposition of Sajjad Hussain S.I/H.I.U. (PW-11) the investigating officer, it reveals that he took 55 minutes to record the complainant's statement, prepare the inquest report, etc. After the preparation of the inquest report, etc. (etc. was not explained), within 55 minutes, he (PW-11)- the investigating officer, sent the oral complaint (Ex.PF) to the police station for the recording of FIR. It reveals that before the registration of the FIR, the investigating officer conducted a partial investigation. Admittedly, a statement under section 154 Cr.P.C. of Muhammad Khalid Khan (PW- 8)-the complainant was not incorporated in the register for FIRs registration. Khan Muhammad A.S.I (PW-6) deposed during examination-in-chief that on receiving the oral complaint (Ex. PF), endorsed and dispatched by Sajjad Hussain SI/HIU (PW-11) through Ahmad Sher 412/C, he (PW-6) dictated the FIR (Exh.PF/1) to the Computer Operator, who typed it without any addition or deletion. The prosecution has not produced the Computer Operator to whom dictation was given by Khan Muhammad A.S.I. (PW-6), and he typed the FIR (Exh.PF/1). According to Rule 24.5 of Police Rules 1934, the F.I.R. shall be filled in the printed Form in Form 24.5 (1) with pages serially numbered with three carbon copies (each of the four pages of the register bearing the same serial number) since the oral complaint (Ex.PF) was not recorded in the first information report register it throws doubt on the time of reporting the incident to the police. The copy of the FIR entered in the first information report register is not being exhibited by the prosecution. Whenever an information regarding cognizable offence is lodged with the police officer, he is obliged to take the same down in writing if it is made orally or receive the complaint in writing and straightaway proceed to enter the substance of it in the book/register kept for that purpose in terms of Section 154 of the Criminal Procedure Code. The First Information Report was not entered into the register, suggesting that F.I.R.

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(Exh.PF/1) was not chalked out as stated. The evidential value of the First Information Report will be reduced if it is made after the unexplained delay, particularly when the same was not entered in the printed Form 24.5 (1) of Police Rules 1934. 12. The prosecution failed to prove the time and place where Saddam Khalid (the deceased) took his last breath. Reading together the above deposition of Dr. Mahmood Ali Raza (PW-4), Muhammad Khalid Khan (PW-8)-the complainant, and Sajjad Hussain SI/HIU (PW-11) first gave an impression that the first information report was promptly lodged, and the investigation commenced without delay. However, scrutiny of the depositions of the three witnesses above would reveal that the first information report was ante-timed, and the investigation was tainted, fictitious, and wholly unreliable. Police proceedings incorporated at the bottom of the oral complaint (Exh.PF) by Muhammad Sajjad Hussain, S.I./H.I.U. (PW-11)-investigating officer, reveals that Muhammad Sajjad Hussain, S.I./H.I.U. (PW-11)-investigating officer on receiving information reached the mortuary of THQ Hospital, Kallur Kot, where the dead body of Saddam Khalid (the deceased) was lying and Muhammad Khalid Khan (PW-8)-the complainant got recorded his oral complaint (Ex.PF). The dead body of Saddam Khalid (the deceased) was referred for postmortem examination to THQ Hospital, Kallur Kot. Police proceedings incorporated at the bottom of the oral complaint (Exh. PF) by Muhammad Sajjad Hussain, S.I./H.I.U. (PW-11)-investigating officer read as under: - On perusal of the inquest report (Exh.PE), in column No.24, it was mentioned that the dead body was lying in the mortuary. This creates doubt about the testimonies of Dr. Mahmood Ali Raza (PW- 4), Muhammad Khalid (PW-8)-the complainant, Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer, and Falak Sher 767/C (PW-3), about the time when Saddam Khalid, the deceased, succumbed to the injuries, brought to the hospital. After that, the dead body was sent to the mortuary. So, the dead body of Saddam Khalid (the deceased) was produced before Dr. Mahmood Ali Raza (PW-4) by Falak Sher 767/C (PW-3) on 15.07.2017 at 06:50 p.m. At the cost of repetition, we have reproduced the relevant part of the deposition of Dr. Mahmood Ali Raza (PW-4), which reads as under: "The dead body was produced before me at 6.50 P.M on 15.07.2017. When the dead body was produced before me, I examined it and after examining I recorded the time of death in the relevant column as 6.53 P.M." The only document, Dr. Mahmood Ali Raza (PW-4) prepared was the postmortem report (Ex.PC). At the same time, he conducted a post-mortem examination of the dead body of Saddam Khalid- the deceased, at 10:00 p.m. on 15.07.2017. Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer admitted that on receiving information about the incident, he (PW-11) reached THQ Hospital, Kallur Kot, at 06:55 p.m. Besides, in column No.3 of the inquest report (Ex. PE), the date and time of receiving information about the death was mentioned as "15.07.2017 at 06:55 p.m." and in column No.2 relating to the distance between the police station and the place where the death took place or where the dead body was recovered, was mentioned as "01-kilometer". Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer deposed during cross-examination that: - "THQ Kallor Kot is at a distance of about one km towards south west direction from the building of P.S. Kallur Kot. Place of occurrence is at a distance of 25/26 kms from P.S. Kallur Kot." Muhammad Khalid Khan (PW-8)-the complainant deposed during examination-in-chief that he (PW-8), Muhammad Arslan (given up PW), and Nadir Ali (PW-9) brought Sadam Khalid in injured condition to THQ Hospital Kallur Kot, where he succumbed to the injuries. In similar lines, Nadir Ali (PW-9)-the eyewitness, stated. Admittedly, Saddam Khalid-the deceased (then injured), was accompanied by Muhammad Khalid Khan (PW-8)-the complainant, Nadir Ali (PW-9)-the eye witness, and Muhammad Arslan (given up PW) to THQ Hospital Kallur Kot, and none of them reported the incident to the police, whereas the police station was at a distance of 01-kilometer

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from THQ Hospital, Kallur Kot. The matter remained shrouded in mystery about who informed the police about the incident. Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer stated that he reached THQ Hospital, Kallur Kot, on receiving information about the incident at 06:55 p.m. Sajjad Hussain S.I/H.I.U (PW-11)-the investigating officer deposed during cross-examination that:- "I do not remember the exact time when I received the information regarding the occurrence. I reached at THQ Kallur Kot at about 6.50 P.M. As soon as I reached in THQ Kallur Kot, I recorded the statement of complainant Muhammad Khalid Khan. Many persons were available with the complainant at that time, but I cannot tell as to whether the eye witnesses were present or not at that time. Complainant did not point out about the presence of eye witnesses in THQ Kallur Kot. Had the eye witnesses met me at that time, then I would have recorded their statements u/s 161 Cr.P.C." The inquest report (Ex.PE) also revealed that any eyewitness or complainant did not sign the same. We have noted that the contents of F.I.R. (Ex.PF/1) were re-produced ad verbatim in the inquest report (Ex.PE). Muhammad Khalid Khan (PW-8)-the complainant, deposed during cross- examination that: - "We did not inform the police while shifting the deceased from the place of occurrence in the hospital. Police reached in the THQ hospital Kallur Kot after 5/10 minutes of our reaching in the hospital." Nadir Ali (PW-9)-the eye witness deposed during cross-examination that: - "We did not call police, i.e. at 15 or Rescue 1122. We did not approach to police at Police chowki Maibal Sharif, volunteered that as the injured was in serious condition, so our first target was to save his life." In the instant case, the prosecution has not given a reason for the delay in lodging the first information report (Exh.PF/1). The deposition of Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer doubts the presence of witnesses, i.e., Nadir Ali (PW-9) and Muhammad Arslan (given up PW) at THQ Hospital, Kallur Kot. At the same time, the prosecution witnesses were not present at THQ Hospital, Kallur Kot. Sajjad Hussain S.I/H.I.U (PW-11)-the investigating officer deposed in his examination-inchief that after referring the oral complaint (Exh.PF) to police station through Ahmad Sher 412/C for registration of formal FIR, he (PW-11) prepared injury statement (Exh.DD) and inquest report (Exh.PE) of Saddam Khalid-the deceased. Then he handed over the dead body for post-mortem examination to Falak Sher 767/C (PW-3). Falak Sher 767/C (PW-3) deposed in his examination-in-chief that the dead body was handed over to him by Sajjad Hussain S.I/H.I.U. (PW- 11)-the investigating officer for postmortem examination. He (PW-3) did not state a single word about wherefrom the dead body was handed over to him. Rather, he (PW-3) had deposed during cross-examination that they reached THQ Hospital at 07:00 p.m. and at 8:30 p.m./9:00 p.m. post- mortem examination started. Dr. Mahmood Ali Raza (PW-4) deposed during examination-in-chief that: - "The post mortem was conducted at 10.00 P.M, and according to the information given by the police injuries were caused by knife." All this leads us to look into the medical evidence brought on the record by the prosecution through Dr. Mahmood Ali Raza (PW-4) and the postmortem report (Exh.PC). On external examination, Dr. Mahmood Ali Raza (PW-4) observed that rigor mortis was developed, and this fact is also mentioned in the postmortem report (Exh. PC). Dr. Mahmood Ali Raza (PW-4) deposed during cross-examination that: - "The rigor mortus process almost starts in acute summer season within about 2.30/3 hours." The doctor opined that there is probably three hours lapse between death and postmortem. If the incident occurred at the time as alleged by the prosecution witnesses and Saddam Khalid-the deceased, expired between 6:50 p.m. and 07:00 p.m., possibility of rigor mortis on the dead body of

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the deceased would not be present. The inquest report (Ex. PE) also showed that the complainant or any eyewitnesses did not sign the same. Although Nadir Khan (PW-9) had deposed during examination-in-chief that he, along with Muhamad Khalid Khan (PW-8) and Muhammad Arsalan (given up PW), took Saddam Khalid-the deceased, to THQ Hospital Kallur Kot. During cross- examination, he stated that Doctor informed them that Saddam Khalid-the deceased, had expired. If Sajjad Hussain S.I/H.I.U. (PW11)-the investigating officer reached THQ Hospital Kallur Kot at 06:50 p.m. then should have met with Nadir Khan (PW-9) or if Nadir Khan (PW-9) was present at the time of arrival of Sajjad Hussain S.I/H.I.U. (PW-11)-the investigating officer, his name and signatures should be available on the inquest report (Ex.PE). All the above facts throw a cloud of doubt and reveal that the prosecution took time to manage the witnesses. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still rudimentary and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultation and was then ante-timed to provide it with a color of promptly lodged FIR. Whether FIR was registered at the time as stated or not? The same could be checked from an external check; equally important is sending the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in a rudimentary state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-time to give it the color of a promptly lodged FIR. It gets support from the recovery memo of last worn clothes (Ex.PB), recovery memo of blood-stained earth (Ex.PI), and un-scaled site plan (Ex.PK), from which it…

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