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Petitioner: Muhammad Arshad VS Respondent: StateHonorable Justice Shakil AhmadKhurshid Anwar Bhindar
2026 Y L R 410 [Lahore] Before Shakil Ahmad, J Muhammad Arshad and others---Appellants Versus The State---Respondent Criminal Appeal No. 24464-J of 2021, heard on 6th June, 2024. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of complainant at the spot not established--- Accused were charged for committing murder of the son of complainant after kidnapping him---Initial lines of the FIR as well as private complaint mentioned that deceased was shown to be returning from L-(Lahore) on 07.08.2014 and was unable to find any conveyance from MA-(Mandi Ahmadabad) due to his late arrival there; that he decided to proceed by foot towards the house of his sister situated at C-(Chah Doney-wala) and reached at Head D-(Doney-wala) at about 09:00 pm; that accused persons and two unknown persons arrived duly armed with firearms on motorcycles and encircled the deceased; that deceased raised noises---Whole evidence of the prosecution was silent narration as to from which source and mode such narration came into the know ledge of complainant when from the bare reading of application for registration of FIR or even the contents of private complaint it stood established that he did not either witness those happenings nor he claimed to have received information qua pre-abduction happenings from anyone including the abductee either personally or through any telephonic message/conversation---In this backdrop, the mentioning of the said hinted narration in the FIR, appeared to be a cock and bull story or to say the least, a fictional account---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Occurrence doubtful---Accused were charged for committing murder of the son of complainant after kidnapping him---As per the case put forth by complainant, deceased was going by foot to the house of his sister at C from M and when he reached ahead of Head D , five persons armed with firearms came there on motorcycles and they encircled deceased and the latter raised noise to save his life, whereupon two witnesses were attracted there having torches and on seeing them, accused persons abducted deceased with intention to kill him and took him on a motorcycle towards A-(Attari)---Said witnesses claimed to have informed the complainant, whereupon the complainant convened Punchayat for recovery of his son from the accused persons but they delayed the matter and did not return son of complainant---Undeniably, the complainant having received so called information qua abduction of his son, did not report the matter to police and instead he claimed to have convened Punchayat---Non-reporting of the matter by complainant to police was simply beyond one's comprehension---If complainant's son in fact was abducted in the way as detailed in the FIR and private complaint, normal and natural course available to complainant was to immediately report the matter to police in order to save the life of his son particularly when as per complainant's own version there existed previous enmity between the parties---Nothing plausible had been put forth by the complainant for not resorting to the appropriate mode of approaching the police for the recovery of his son---Explanation so put forth by complainant qua convening of Punchayat hardly furnished any plausible and reasonable ground for not reporting the matter to police---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions and improvements made by the witnesses---Accused were charged for committing murder of the son of complainant after kidnapping him---As per record, one of the witnesses of the kidnapping was very close relative of the complainant whereas other was from his brotherhood---Both the said witnesses made certain improvements in their statements which were alien to their earlier narrations before police---Improvements made by those witnesses were duly confronted to them during cross-examination---Contents of complaint nowhere indicated that in the entire episode of abduction of deceased, he was subjected to physical torture by the accused persons---One of the witnesses in his cross-examination, however, stated that deceased abductee was also tortured by the accused persons---Said witness stated that deceased abductee was being beaten up by the accused for around four minutes and he also introduced a new stance by stating that sota blows and butt blows were received by abductee---Such whole narration qua physical torture on abductee by accused persons during his alleged abduction, at one hand was in conflict with the contents of complaint and on the other a weapon like sota had also been introduced which nowhere found mention in the complaint---According to the contents of complaint, when witnesses attracted to the spot, on seeing them accused persons abducted the son of complainant and took him towards A ---However, complainant in his examination-in-chief introduced an altogether strange version that witnesses identified the accused persons and warned them whereupon accused persons extended them threats---According to the contents of complaint, complainant when received information from witnesses qua abduction of his son, he convened Punchayat for recovery of his son---In his examination-in-chief, complainant however introduced a different version by stating that he demanded return of his son from A in presence of said witnesses and he four times demanded return of his son from accused persons through Punchayat---As per prosecution's case, said witnesses were shown to have attracted to the spot when abducttee raised noise to save his life as he was encircled by five duly armed accused persons owing to previous enmity---Venue reflected by the prosecution as the place where abducttee was abducted by the accused persons, as per own showing of witnesses, was at a distance of around three acres from the abode of witnesses---Undeniably, 20-25 houses of other people were also situated near the place of alleged abduction but strangely enough, nobody except two witnesses, related to complainant was shown to have attracted to the spot on hearing the noise raised by abducttee---In view of the discrepant version of the complainant and witnesses, the first episode of crime introduced in this case qua abduction of abducttee by the accused persons on 07.08.2014 in presence of witnesses was a highly doubtful affair and was not proved through confidence inspiring evidence---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant and witnesses---Accused were charged for committing murder of the son of complainant after kidnapping him---Matter qua alleged abduction of complainant's son was not reported to police prior to 12.08.2014---Claimed by the complainant that on 12.08.2014, he received a clue that his son was confined in house of HN , one of the accused, whereupon he along with witnesses reached the said place at Fajar time and saw that accused persons had overpowered his son and they were torturing him whereas one accused had strangulated abductee with a cloth---Entire case of prosecution was silent as to from where the complainant received information that his son was confined in the house of accused HN---Likewise, none of the accused was shown to have been armed with any kind of weapon when they were inflicting torture and ultimately murdered the deceased---No attempt whatsoever was shown to be made by the complainant or the witnesses, who undeniably were closely related to the deceased, to save the life of abductee by practically restricting assailants or to the least making any sort of earnest supplication to the accused persons---Strange to note that when complainant as per his own version was aware of the fact qua the abduction of his son by the accused persons with whom he had previous animosity and he came to know about the presence of his son at a certain place, why did he not report the matter to police to take Police Officials with him to rescue his son---This was a question that at one hand remained in mystery and on the other, reflected that the story qua witnessing of the occurrence in the result of which abductee was done to death, was an after-thought idea to show presence of complainant and witnesses at the spot---Whole conduct of the complainant and prosecution witnesses could conveniently be counted as pathetic one and same ran counter to the natural human conduct and behavior in the ordinary course of events---Appeal against conviction was allowed, in circumstances. Pathan v. The State 2015 SCMR 315 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of assailants---Accused were charged for committing murder of the son of complainant after kidnapping him---According to prosecution story, son of complainant was abducted by the accused persons on 07.08.2014 and accused persons started beating him in their house at Fajar time on 12.08.2014 when complainant and his witnesses who claimed to have reached at the spot---However, it would be hard to believe that assailants would have waited for arrival of witnesses so as to enable them to witness the occurrence and on their arrival they started causing injuries on the person of deceased---Such behavior on the part of assailants was not in consonance with the natural human behavior and it could very conveniently be inferred that witnesses were not present at the spot and they had merely been introduced as witnesses of ocular account after due deliberations and consultation---Appeal against conviction was allowed, in circumstances. The State through Advocate General Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others 2019 SCMR 1154 and Muhammad Imran v. The State 2020 SCMR 857 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the son of complainant after kidnapping him---Motive for commission of crime as asserted in the FIR was that there was enmity between complainant side and accused over a murder case---Complainant in his examination in chief, stated the motive that accused persons had enmity with them for the murder of R ---In cross-examination, complainant provided certain details of the criminal cases against both the parties---According to complainant, he was implicated by the accused side in a criminal case for the offence under S. 324, P.P.C, through supplementary statement---Complainant, however, admitted it correct during cross-examination that no FIR was got registered by accused persons against his deceased son---Version of complainant during cross-examination was that the accused persons being inimical to him murdered his son---Accused persons did not have any specific motive against the deceased, rather their hostility was with the whole kinfolk of complainant---If it was believed that the accused persons had criminal rivalry with the complainant's clan, then prime target of the assailants should have been complainant and witnesses and not the deceased but strangely enough, the accused were shown to have targeted son of the complainant opting not to cause any sort of harm to complainant and witnesses---Motive set up by the complainant even if taken as gospel truth there was no explanation on the record as to why only deceased from the complainant's side was targeted by the accused when the complainant against whom they had grudge, was also available at the place of occurrence along with his real brother---It was also highly unlikely that accused persons would have spared the witnesses of ocular account for allowing them to become witnesses and depose against them for sending them to gallows---So, the conduct of accused persons during the occurrence ran counter to natural human conduct---Appeal against conviction was allowed, in circumstances. Zahir Yousaf and another v. The State and another 2017 SCMR 2002 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.
(g) Criminal trial--- ----Motive---Scope---Motive is always considered as a double edged weapon which cuts both ways---Motive could be used by the accused to take revenge and at the same time could be a tool used by the complainant for false charge as well. (h) Criminal trial--- ----Motive---Scope---Lack of motive, its weakness or even its non-proving is never fatal to prosecution case qua awarding conviction if a case otherwise stands proved through direct evidence with regard to the occurrence. (i) Criminal trial--- -----Motive---Scope---Motive is always considered a corroborative piece of evidence---Even if same is proved, it above could not be made basis for conviction of an accused on capital charge particularly where evidence of ocular account is totally disbelieved inasmuch as in such eventuality worth of evidence of motive would stand reduced to nil. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of 08-hours in lodging the FIR---Consequential---Accused were charged for committing murder of the son of complainant after kidnapping him---As per the contents of private complaint, occurrence took place around Fajar time on 12.08.2014 whereas written application was claimed to have been moved at 01:05 pm---In that way, crime alleged to have taken place around Fajar time (04:30 am to 05:30 am), was reported to police with delay of around 08 hours---No explanation whatsoever had been put forward by the prosecution for such inordinate delay---Said fact being so, there could have been no reason for moving of application at 01:05 pm, except preliminary investigation and prior consultation to nominate the accused and plant eye-witnesses of the crime---Appeal against conviction was allowed, in circumstances. (k) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about 17-hours in conducting the autopsy of the dead body of deceased---Consequential---Accused were charged for committing murder of the son of complainant after kidnapping him---Autopsy in this case was conducted at 10:00 pmi.e. after around seventeen hours of the occurrence---According to post mortem examination report, dead body was received in hospital at 05:00 pm and police papers were received at 09:30 pm---No plausible explanation was forthcoming by the prosecution to justify such a belated submission of police papers and post mortem examination and the same would give rise to a legitimate presumption that police papers were sent to hospital after deliberations and consultation---Appeal against conviction was allowed, in circumstances. Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel. (l) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364, 109, 148 & 149---Qatl-i-amd, kidnapping and abducting a person in order to murder, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Medical evidence contradicting the ocular account---Accused were charged for committing murder of the son of complainant after kidnapping him---According to the case put forth by complainant, death of deceased was result of physical torture on him by accused persons and strangulation caused by one of the accused with a cloth---Medical Officer observed injury No.1 a contusion 6 x 2 CM at right side of neck of the deceased and opined that cause of death was asphyxia resulting from strangulation due to injury No.1---In cross-examination, however, Medical Officer admitted that there was no contusion, laceration or abrasion present on the right side, backside or front side of neck---Medical Officer also admitted in cross-examination that if strangulation was committed by wrapping the rope, cord or safa, then injuries would be all around the neck---Such admission on the part of Medical Officer indeed contradicted the version of ocular account whereby one of the accused was shown to have strangulated the deceased with a cloth---Therefore, it could very conveniently be inferred that medical evidence in this case was in contradiction with the ocular account---Medical evidence although was corroboratory in nature, however, this corroborative piece of evidence was meant to test the veracity of ocular evidence and both corroborative and ocular testimonies were to be read together and not in isolation---Had witnesses of ocular account been present at the spot and witnessed the occurrence as claimed by them, there could have been no possibility of conflict in between ocular account and medical evidence qua the mode of causing death of deceased---Where oral evidence is inconsistent with the medical evidence, oral evidence could not be accepted to be made basis for the conviction of an accused---Appeal against conviction was allowed, in circumstances. Noor Muhammad v. The State 2010 SCMR 97; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Abdul Subhan s case PLD 1994 SC 178 rel. (m) Criminal trial--- ----Benefit of doubt---Principle---When a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused arises, he would be entitled to such benefit as a matter of right. Tariq Pervez v. The State 1995 SCMR 1345 rel. Rashid Javed Lodhi, Ali Hussain, Muhammad Adnan Malik and Hafiz Sami-ur-Rehman for Appellant. Khurshid Anwar Bhindar for Appellant. Nemo for Complainant. Ms. Samra Irshad, Assistant District Public Prosecutor for the State. Date of hearing: 6th June, 2024. Judgment Shakil Ahmad, J.---Muhammad Arshad, Mudassar and Maqsood Ahmad appellants have preferred the instant Criminal Appeal through jail authorities, to challenge their conviction and sentences. They were indicted and tried by the learned Additional Sessions Judge, Depalpur along with co-accused Muhammad Din, Akram and Haq Nawaz on the charge under sections 302, 364, 109, 148, 149 P.P.C in private complaint titled Muhammad Hussain v. Muhammad Arshad and 05-others relating to case FIR No.279 of 2014 dated 12.08.2014 registered at Police Station Mandi Ahmadabad, District Okara. Learned trial court, on conclusion of trial vide judgment dated 27.03.2021 (impugned judgment) convicted the appellants and sentenced them as under: - Appellant Muhammad Arshad:- (i) Convicted under Section 302(b) P.P.C and sentenced to undergo imprisonment for life and to pay compensation under section 544-A Cr.P.C. to the tune of Rs.4,00,000/- to legal heirs of the deceased and in case of default, to further undergo simple imprisonment for six months. (ii) Convicted under Section 364 P.P.C and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.100,000/- and in case of default, to further undergo simple imprisonment for three months. Appellant Muhammad Maqsood Ahmad:- Convicted under Section 364 P.P.C and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.100,000/- and in case of default, to further undergo simple imprisonment for three months. Appellant Mudassar:- Convicted under Section 364 P.P.C and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.100,000/- and in case of default, to further undergo simple imprisonment for three months. Co-accused Muhammad Din, Akram and Haq Nawaz were acquitted of the charge vide impugned judgment. Acquittal order of the said co-accused has not been challenged by the complainant and the same has attained finality. 2. Muhammad Hussain (PW-1) moved an application (Exh:PA) on 12.08.2014 before Station House Officer, Police Station Mandi Ahmadabad stating therein that he was cultivator by profession and his son Muhammad Amjad was doing labour in Lahore; that on 07.08.2014 at night time his son Muhammad Amjad reached at Mandi Ahmadabad after returning from Lahore and owing to his inability to find any conveyance from Mandi Ahmadabad due to his late arrival, he proceeded by foot towards the house of his sister situated at Chah Doney-wala and when his son reached near Head Doney-wala, accused persons namely Muhammad Arshad, Maqsood Ahmad, Mudassar along with two unknown persons while armed with firearm weapons riding on motorcycles came there and encircled his son; that his son Muhammad Amjad, in order to save his life, raised hue and cry, on which, Muhammad Ameer son of Muhammad Yar, Mubashar Ali son of Muhammad Zubair, Wattoo by caste and residents of Chah Doney-wala attracted there while having torches in their hands and accused persons abducted Muhammad Amjad with intention to kill him and took him on a motorcycle towards Attari and the witnesses, above said, informed the complainant, whereupon the complainant convened a Punchayat for recovery of his son from the accused persons but they delayed the matter and did not return Muhammad Amjad; that on 12.08.2014, complainant gained a clue that his son Muhammad Amjad was confined in the house of Haq Nawaz accused whereupon complainant along with Nawab Ali son of Wali Muhammad and Muhammad Zubair son of Jan Muhammad, residents of the village, reached at Fajar time at the house of accused Haq Nawaz situated at Sufaid Chowki in the area of Saddar Bala and saw that Maqsood Ahmad, Mudassar, Haq Nawaz and two unknown accused were torturing his son by holding him from legs and arms whereas accused Arshad with Safa had tied phanda around the neck of complainant s son and pressed his neck; that on seeing the complainant and witnesses, accused persons fled away from the spot considering complainant s son as dead; that complainant and witnesses rescued his son but he succumbed to the injuries; that complainant and witnesses had witnessed the occurrence. Motive of the occurrence was stated to be previous enmity. It was further alleged that the occurrence was committed by the accused persons on the instigation of Muhammad Din and Muhammad Akram. 3. After registration of case, investigation was conducted by Maqbool Hussain Inspector (CW-5) who claimed to have reached at Attari Patan where dead body of Muhammad Amjad was lying on a cot; he inspected the dead body, prepared the injury statement Exh.CW-5/A, inquest report Exh.CW-5/B and application for post mortem Exh.CW-5/C and sent the dead body for autopsy through Muhammad Amin 177/C. CW-5 claimed to have inspected the place of occurrence on the pointation of complainant and PWs, recorded statements of PWs under section 161 Cr.P.C, prepared unscaled site plan of place of abduction of Muhammad Amjad Exh.CW-5/D and on the same day he also proceeded towards the residence of Rehmat Ali father of Haq Nawaz accused and prepared unscaled site plan of place of occurrence Exh.CW-5/E. CW-6 stated to have took into possession last worn clothes of deceased vide recovery memo. Exh.CW-1/A. The Investigator claimed to have made red notes on scaled site plan Exh.CW-4/A and Exh.CW-4/B. After transfer of this Investigator from the Police Station, investigation of the case was entrusted to Muhammad Munir S.I (CW-6) who claimed to have joined into investigation the accused persons Muhammad Akram and Haq Nawaz and held in abeyance their arrest. The second investigator claimed to have received Call Data Record of phone number of deceased Muhammad Amjad and conducted investigation on this point. CW-6 was of the opinion that accused persons Muhammad Arshad, Mudassar, Maqsood Ahmad, Haq Nawaz, Muhammad Din and Muhammad Akram were found not involved in the occurrence. 4.…
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