Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2024 YLR 841
Court / Jurisdiction: Lahore High Court
Year of Decision: 2022
Decision Date: 2022-10-24
Parties: Muhammad Sharif and another vs The State and others
Ruling Summary: This decision was rendered by the Lahore High Court on 2022-10-24, officially reported as 2024 YLR 841. In this matter between Muhammad Sharif and another and The State and others, 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 2024 YLR 841
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Muhammad Sharif and another vs The State and others Case No.: Criminal Appeals Nos. 282, 580 and Murder Reference No. 45 of 2018 Date of Judgment:2022-10-24 Reported As: 2024 YLR 841 Result: Order accordingly
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Sharif son of Raheem Bakhsh (convict) was tried along with Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan (both since acquitted), the' co-accused of the convict, by the learned Additional Sessions Judge, Dera Ghazi Khan in the case FIR No. 334 of 2013 dated 08.12.2013 registered in respect of offences under sections 302,324, 148 and 149, P.P.C. at the Police Station Shah Saddar Din, District Dera Ghazi Khan for committing the Qatl-i-Amd of Awais Bashir son of Bashir Ahmad (deceased). The learned trial court vide judgment dated 21.03.2018, convicted Muhammad Sharif son of Raheem Bakhsh (convict) and sentenced him as infra: Muhammad Sharif son of Raheem Bakhsh:- Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Awais Bashir son of Bashir Ahmad (deceased) and directed to pay Rs.200,000/- as compensation under section 544A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan, the co- accused of the convict, were, however acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Sharif son of Raheem Bakhsh (convict) lodged Criminal Appeal No.282 of 2018, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.45 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Sharif son of Raheem Bakhsh. The complainant of the case namely Shahid Bashir filed Criminal Appeal No.580 of 2018 against the
---
## Page 2
acquittal of the accused namely Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan. We intend to dispose of the Criminal Appeal No. 282 of 2018, Criminal Appeal No.580 of 2018 and the Murder Reference No.45 of 2018 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as narrated by Shahid Bashir (PW-1), the complainant of the case are as under:- "States that during the night between 7/8-12-2013, there was a musical programme in the marriage ceremony of my cousin Javed Iqbal There was arrangements of lightning in the place of function. At about 11.00 P.M, the accused present in court Muhammad Sharif armed with Kalashnikov and pistol, Allah Bakhsh armed with and Akhter Aias (sic) Bido accused were also armed with Kalashnikovs alpg with three unknown accused armed with fire arms came at the marriage ceremony and started ariel ^c) firing, I along with my father Basheer Ahmad, Abdul Latif maternal uncle, Ghulam Fareed uncle and my brother Awais Bashir strictly restrained them not to make ariel (sic) firing. Upon this hot- words were exchanged and then scuffle took place between me and accused Sharif. The accused persons extended threats us to that they would teach him a lesson for insulting them. In the meanwhile, the accused persons made straight firing upon us with their respective weapons. We save (sic) our lives while laying on the ground, however, a fire made by Muhammad Sharif accused hit on the back of head of my younger brother Awais Bashir aged about 12/13 years, who fell down on the earth after receiving the injury and another fire hit Irshad Hussain son of Muhammad Ramzan the owner of Sound System. The accused persons fled away from the spot through their motorcycles, while making firing. The accused persons left a motorcycle Honda 125/C.G. bearing registration No. 1051 DGN in ditch of a water while fleeing away from the spot. We proceeded to D.H.Q. Hospital DG.Khan for his medical treatment while boarding the injured in a private vehicle but in the way Rescue 1122 met us, we shifted the injured on vehicle of Rescue 1122, and reached the Trauma Center. The injured Muhammad Irshad himself went to R.H.C. Shahsaddar Din for his treatment. The doctors in the Trauma Center attempted to save life of Awais Bashir while taking him first aid, who died succumbing to the injuries in the Trauma Center. We took the dead body of Awais Bashir and reached our houses. We deputed my father Bashir Ahmad and other relatives for guarding the dead body and I along with Ghulam Fareed FW proceeding to Police Station for reporting the matter. The police met us near Grid Chowk I got recorded my statement Ex-PA before the Police. The police read over the same to me and I signed the same in token of its correctness. The motive behind the occurrence was that I along with P.W.s restrained the accused persons from making ariel (sic) firing in the marriage ceremony, due to this grudge, the accused Sharif committed murder of my brother Awais Bashir and other accused persons with their common intention injured Irshad." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 02.02.2017 to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as thirteen witnesses recorded. The ocular account of the case was furnished by Shahid Bashir (PW-1) and Ghulam Farid (PW-2). Muhammad Kaleem Kaman Patwari (PW-3) prepared the scaled site plan of the place of occurrence (Exh. P. B.). Shameem Abbas, A.S.I. (PW-8) stated that on 08.12.2013, Muhammad Ayyub, SI (PW-6) handed over to him one sealed parcel said to contain the blood stained earth, one sealed parcel said to contain four empty shells of bullets of 30-bore and one sealed parcel said to contain sixteen empty shells of bullets of Kalashnikov rifle collected from the place of occurrence and on 01.01.2014, he handed over the said parcels to Zahid Iqbal 800/C (PW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Abdul Rehman SI (PW-9)
---
## Page 3
stated that on 08.12.2013, he recorded the formal FIR (Exh. PA/1). Muhammad Ishfaq, (PW-13) stated that on 08.12.2013, he identified the dead body of the deceased at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case in his presence. Muhammad Ayyub, SI (PW-6) investigated the case from 08.12.2013 till 14.01.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Moazzam Mahmood Abbas, SI (PW-12) investigated the case from 10.06.2016 till 17.08.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Munir Ahmad, SI (PW-10) investigated the case from 28.08.2016 till 21.11.2016, arrested the appellant on 16.09.2016, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Gull Hassan Shah (PW-7) examined, who on 08.12.2013 was posted as Medical Officer R.H.C. Shah Saddar Din and on the same day, conducted the post-mortem examination of the dead body of Awais Bashir son of Bashir Ahmad (deceased). Dr. Gull Hassan Shah (PW-7), on examining the dead body of Awais Bashir son of Bashir Ahmad (deceased) observed as under:- "Injury No.1 A contused firearm lacerated wound of 1.5 cm x 1.5 cm circular in shape with margins inverted wound was going deep on the back of the right side of the head just about and slightly behind to the top of the right ear; (wound of entrance). Wound had blood clots in it. Skull membrane was injured. Injury No. 2 Another contused firearm lacerated wound of nearly 2.5 cm obliquely horizontal on the left of the front of forehead at the level of left eyebrow and the middle of the left eyebrow level. It was 1 cm. Wound was going deep and there was fracture of frontal and orbital bone. Margins of the wounds were inverted. It was a wound of exit. No blackening and burning was found. .................................. Opinion In my opinion, both the injuries i.e. 1 and 2 were ante mortem injuries and both are on head and were entrance and exit wound. There were grievous one and they had injured skull and brain and brain matter and membrance of brain. Causing injury to brain matter leading to neurogenic shock and hemorrhagic leading to the failure of the brain, failure of the heart and then death. Probable duration between the injury and death was within few minutes and between death and postmortem was within 12 hours." On the same day, Dr. Gull Hassan Shah (PW-7), also medically examined Muhammad Irshad (given up P.W.). Dr. Gull Hassan Shah (PW-7), on examining Muhammad Irshad (given up P.W.) observed as under:- "Injury No.1 A contused firearm lacerated wound of 1.5 cm x 1 cm obliquely horizontal on the front of the middle of the left upper arm with margin of the wound inverted (wound of entrance). Wound was going deep. No blackening and no burning was seen. Injured was complaining of severe pain in the left upper arm and also on the front side of the left side of the chest. Injured was feeling dyspnea. X-ray of left upper arm and X-rays of chest all views were advised." 7. On 02.03.2018, the learned Assistant District Public Prosecutor gave up the prosecution witness, namely Irshad Hussain as being won over by the accused as well as being settled outsdide Pakistan and gave up the prosecution witnesses, namely Abdul Latif, Javed Iqbal, Bashir Ahmad and Shoaib as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh. P. O.).
---
## Page 4
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Sharif son of Raheem Bakhsh under section 342, Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Sharif son of Raheem Bakhsh, opted not to get himself .examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.. 9. At the conclusion of the trial, the learned Additional Sessions Judge, Dera Ghazi Khan convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the Kalashnikov rifle.(P-6) and five bullets (P-7/1- 5) was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Muhammad Sharif. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that medical evidence also corroborated the statements of Shahid Bashir (PW-1) and Ghulam Farid (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal. The learned counsel for the complainant also argued that the Criminal Appeal No.580 of 2018, assailing the acquittal of Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan by the learned trial court, also merited acceptance. 12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance. 13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), with the deceased, is on record. Awais Bashir (deceased) was the brother of Shahid Bashir (PW-1), and the paternal nephew of the prosecution witness namely Ghulam' Farid (PW-2). The prosecution witness namely Ghulam Farid (PW-2), during cross-examination, explained as under:- "I am paternal uncle of the complainant and the deceased." We have also noted that according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the occurrence happened after the prosecution witness namely Shahid Bashir (PW-1) had an altercation with the appellant over him stopping the appellant and his
---
## Page 5
companions from firing at the place of occurrence. The prosecution witness namely Shahid Bashir (PW-1) in his statement before the court stated as under:- "Upon this hot words were exchanged and then scuffle took place between to me and accused Sharif. .................. When we forbade the accused persons from making aerial firing in the marriage function, due to which, altercation of hot wards occurrence between me and Sharif accused; all the accused persons were carrying fire arms at said time. .................. When firing was made by the accused persons on me, I was present at the distance of 9 karams from them. " The prosecution witness namely Ghulam Farid (PW-2) in his statement before the court stated as under:- "Only Shahid complainant went to forbid the accused persons from aerial firing." (emphasis supplied) In these circumstances, the prosecution witness namely Shahid Bashir (PW-1) should have also been the target of the assailants. Furthermore, according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the prosecution witness namely Shahid Bashir (PW-1) was in clear view, at a meagre distance, from the assailants and unarmed whereas the accused, as many as six in total, were allegedly armed with various firearm weapons. Neither there was any dearth of ammunition nor that of intent and opportunity on the part of the appellant or his co-accused for not doing away with the prosecution witness namely Shahid Bashir (PW-1), who at the time of occurrence, was allegedly present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the prosecution witness namely Shahid Bashir (PW-1) was present. In this scenario, it is hard to believe that the prosecution witness namely Shahid Bashir (PW-1) would have been shown the courtesy of not being harmed at all when he should have also been the target of the assailants. In the midst of firing by so many accused persons, the prosecution witness namely Shahid Bashir (PW-1) did not receive even a single scratch on his body during the whole occurrence. If the prosecution witness namely Shahid Bashir (PW-1) had been present in the view of the assailants, then he would not have been spared. Blessing the prosecution witness namely Shahid Bashir (PW-1), with such an incredible consideration and showing them such favour, the persons with whom the assailants had a direct dispute with, is implausible and opposed to the natural behaviour of any accused. 14. We have also noted with concern that the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) failed to prove that in what circumstances the deceased came to be hit by a bullet at the place of occurrence as according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), they had got down from the stage, along with the deceased, to stop the assailants from making celebratory firing at the place of occurrence and the assailants did stop, however, subsequently, they fired at the prosecution witness namely Shahid Bashir (PW-1) when he was at a distance of nine karams from the stage whereas at that moment the deceased was standing near the said stage. The prosecution witness namely Shahid Bashir (PW-1) also claimed during cross-examination that when he along with the other witnesses was laying on the ground, dodging the bullets being fired by as many as six assailants, none of the assailants attempted to make any firing directly at the witnesses. It was also claimed by the prosecution witness namely Shahid ,Bashir (PW-1) that the deceased was hit by a bullet at a distance of 18 karams from the assailants, whereas the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) were at a distance of only nine karams from the assailants. The prosecution witness namely Shahid Bashir (PW-1) during cross-examination stated as under:-
---
## Page 6
"When the accused persons were making aerial firing, we alighted from the stage, went closer to the accused persons and asked them to stop the aerial firing. When we asked the accused persons to stop the aerial firing, they stopped the aerial firing and immediately did not made fire on us. When firing was made by the accused persons on me, I was present at the distance of 9 karams from them. At said time, Awais my brother was present near the stage, however my father Bashir Ahmad, Ghulam Fareed my uncle and Abdul Latif were present with me. At that time, stage was towards south west from us at the distance of 9 karams. When firing was made, we laid down on the ground, however the accused persons did not came near to us and did not make firing on us, when we were lying on the ground. When Awais reached D near the stage and firing was made, only two persons namely Awais himself and Irshad were present on the stage. When physical altercation between the accused persons and us occurred and firing was made, all the persons sitting at the stage including Mansoor Malangi left the stage. Awais Bashir received bullet shots from the distance of 18 karams." (emphasis supplied) The above referred portion of the cross-examination of the prosecution witness namely Shahid Bashir (PW-1) also brings into question that if the prosecution witnesses namely Shahid Bashir (PW- 1) and Ghulam Farid (PW-2) were laying and cowering on the ground to save themselves from the bullets being fired, then how they were able to observe the firing made by each of the assailants and the consequential hitting of the deceased by one of the bullets. When according to the prosecution witnesses namely Shahid Bashir.(PW-1) and Ghulam Farid (PW-2) themselves they were ducking and recoiling to save their lives during the occurrence, then there did not exist any possibility that they would have been able to witness and observe the maker of the fatal shot at the deceased. Such behaviour, on part of the accused, as deposed by the prosecution witnesses. namely Shahid Bas'iir (PW-1) and Ghulam Farid (PW-2), runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it th, aks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We, thus, trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailants, as deposed to by prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) was opposed to the common course of natural events and human conduct. Hence, we are holding that the prosecution witnesses namely Shahid Bashir (PW- 1) and Ghulam Farid (PW-2), did not witness the occurrence. The august Supreme Court of Pakistan, in its binding judgments, has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses, but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses had not witnessed the occurrence. The august Supreme Court of Pakistan, in case Tariq Mehmood v. The State and others (2019 SCMR 1170), has observed as under: "First sight cannot escape preponderance of evidence; however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report." The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under:
---
## Page 7
"The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P. Ws. were not present at the place of occurrence." The august Supreme Court of Pakistan in the case of Muhammad Farooq and another v. The State (2006 SCMR 1707) at page 1712 held as under:-- "Had P. W. 9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased." We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596) where at page 601 it was observed as under: - "Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other P. Ws. were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e- Shahadat Order, 1984, therefore, the court is unable to acceptsuch unbelievable proposition." 15. We have noted that according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the occurrence took place at about 11.00 p.m. on a cold winter night of 07.12.2013, however, admittedly, no source of light, which could have enabled the witnesses to have rightly identified the accused and also allowed the witnesses to have noted the individual roles…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.