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Official Citation: 2025 LHC 1923
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-03-19
Parties: The State, Muhammad Abid vs Muhammad Abid, The State
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-03-19, officially reported as 2025 LHC 1923. In this matter between The State, Muhammad Abid and Muhammad Abid, The State, 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 2025LHC1923
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Ch. Sultan Mahmood Title: The State, Muhammad Abid vs Muhammad Abid, The State Case No.: Murder Reference No.01 of 2023, Criminal Appeal No. 34-J of 2023 Date of Judgment:2025-03-19 Reported As: 2025 LHC 1923 Result: Murder Reference Answered in Negative
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.- Muhammad Abid son of Muhammad Amin (convict) was tried by the learned Additional Sessions Judge, Haroonabad in the case F.I.R. No. 244 of 2022 dated 22.04.2022 registered in respect of an offence under section 302 at the Police Station City Haroonabad, District Bahawalnagar for committing the Qatl-i-Amd of Muhammad Nabeel Sarwar son of Muhammad Sarwar (deceased). The learned trial court vide judgment dated 19.01.2023 convicted Muhammad Abid son of Muhammad Amin (convict) and sentenced him as infra: Muhammad Abid son of Muhammad Amin:- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Nabeel Sarwar son of Muhammad Sarwar (deceased) and directed to pay Rs.10,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. 2. Feeling aggrieved, Muhammad Abid son of Muhammad Amin (convict) lodged the Criminal Appeal No.34-J of 2023, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.01 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Abid son of Muhammad Amin. We intend to dispose of the Criminal Appeal No.34-J of 2023 and the Murder Reference No.01 of 2023 through this single judgment.
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3. Precisely, the necessary facts of the prosecution case, as stated by Shamshad Bibi (PW-1), the complainant of the case, are as under:- "I am permanent resident of House No.166 Housing Colony, Haroonabad. My husband passed away 9-years ago. I have two sons and one daughter, My brother Javed resides with me. On 22.4.2022 at about 4:15 p.m. I was going to get medicine from hospital, alongwith my son Nabeel Sarwar aged 19/20 years. We stopped in front of Aamir Karyana Store. Accused Abid present in the court came there while brandishing his pistol and said that he shall not let my son go. My son ran towards the Karyana Store but he just reached near the door when accused made 5/6 fires at him which hit on his face, in the chest, on his thigh and on his arm. Accused fled away while brandishing his weapon. I stopped a passing-by car and shifted my son to THQ Hospital, Haroonabad. Just at the time of reaching at Hospital, my son succumbed to the injuries. Police came at the hospital. I submitted application Exh-PA to the police which bears my thumb impression and signature Exh-PA/1. Motive behind the occurrence was that my son remained employed for 4/5 months with Sajid, brother of the accused. About one year prior to the occurrence, said Sajid was murdered in a police encounter. Accused levelled allegation that my son had informed the police about deceased Sajid. Upon my application case was registered." 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 was sent to face trial. The learned trial court framed the charge against the accused on 06.07.2022, 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 ten witnesses recorded. The ocular account of the case was furnished by Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2). Muhammad Shabbir 187/C (PW-3) stated that on 30.04.2022, the appellant got recovered the Pistol (P-2). Fazal Karim, ASI (PW-4) stated that on 22.04.2022, he got recorded the formal F.I.R. (Exh.PA/2). Waleed Khalid 44/C (PW-6) stated that on 22.04.2022, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post-mortem examination of the dead body of the deceased. Muhammad Imran 1272/HC (PW-7) stated that on 22.04.2022, the Investigating Officer of the case handed over to him one motorcycle, one sealed parcel said to contain empty shells of the bullets, two envelopes, last worn clothes of the deceased, one sealed parcel said to contain bullets and on 28.04.2022, he handed over the one sealed parcel said to contain empty shells of the bullets, two envelopes and one sealed parcel said to contain bullets to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 30.04.2022, the Investigating Officer of the case handed over to him a sealed parcel said to contain a Pistol which on 17.05.2022, he handed over to Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Sahil Sikandar draftsman (PW-10) prepared the scaled site plan of the place of occurrence (Exh.PP). Muhammad Abbas, ASI (PW9) investigated the case from 22.04.2022 till 17.05.2022, arrested the appellant namely Muhammad Abid son of Muhammad Amin on 26.04.2022 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. Arslan Ahmad (PW-8) examined, who on 22.04.2022 was posted as Medical Officer at THQ hospital Rahim Yar Khan and on the same day conducted the postmortem examination of the dead body of Muhammad Nabeel Sarwar son of Muhammad Sarwar (deceased). Dr. Arslan Ahmad (PW-8), on examining the dead body of Muhammad Nabeel Sarwar son of Muhammad Sarwar (deceased) observed as under:- "DESCRIPTION OF INJURIES. Injury No. 1:
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An oval shaped lacerated wound on left side of jaw measuring approx. 5cm by 3cm located approx. 7cm lateral to chin. Directed posterioinferiorly. Everted Edges were present and surrounded clotted blood present. It's a through and through wound communicating with injury No. 11. Injury No.2: A puncture wound, oval shaped on right side of chest measuring approx. 0.5cm by 1cm located approx. 6cm above right nipple. It has inverted margins on examination it seems entry wound of firearm which passes through mediastinal cavity damaging the organs and structures in it's the pathway i.e. skin, intercostal space, right lung, heart, left lung, and exiting by causing injury No.3. Injury No.3: A circular shaped wound on left side of chest measuring approx. 1.5cm by 1.5cm located approx. 5cm below and lateral to left nipple, having everted edges, blood oozing out and it's a through and through injury. On examination, it seems an exit wound of firearm weapon communicating with injury No.2. Injury No.4: A punctured wound, oval shaped on posterior side of right forearm, measuring approx. 0.5cm by 0.3cm located approx. 5cm below olecranan process having inverted margins, burning and blackening present and it's a through and through injury on examination it seems to be an entry wound caused by a firearm weapon damaging skin, subcutaneous tissue and muscles in its path and exiting by causing injury No.5. Injury No.5: An oval shaped wound on posteromedial aspect of right forearm measuring approx. lem by 1.5 cm located 4cm below medial epicondyle with everted edges and blood oozing out and it's a through and through injury. On examination it seems an exit wound caused by firearm weapon communicating with injury No.4. Injury No.6: A circular shaped wound measuring approx. 1.2cm by 1.5cm on left side of abdomen, located 3cm interior to interior axillary line with everted margins and blood oozing out it's a through and through injury and on examination seems to be communicating with injury No.7. an exit wound Injury No.7: A punctured, oval shaped measuring approx. 0.6cm by 0.3cm located on left side of abdomen approx. 8cm above and lateral to umbilicus having inverted edges and abrasion collar present. On examination it seems to be an entry wound caused by firearm weapon. It is a through and through injury damaging skin, subcutaneous tissues and abdominal muscles and exiting by causing injury No.6. Injury No.8: A punctured wound, oval shaped on back on right side measuring approx. 0.5cm by 0.3cm located 8cm lateral to vertebral column. Directed anteroinferiorly, having inverted margins. It was a through and through injury. On examination it seems an entry wound caused by firearm weapon that damages skin, subcutaneous tissues, muscles on its path and exiting by causing injury No.12. Injury No.9: An oval shaped wound on anterior aspect of left thigh measuring approx. 0.7cm by 0.5cm located 15cm above patella. Having everted margins and blood stained. It's a through and through injury. On examination it seems an exit wound caused by firearm weapon and communicating with injury No.10. Injury No.10: A punctured wound, oval shaped on lateral spect of left thigh located 10cm above lateral condyle, measuring 0.5cm by 0.3 approx. with inverted margins. On examination it seems an entry wound
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caused by a firearm weapon that damaged the underlying structures ie. skin, subcutaneous tissue, muscles, fracturing femur and exiting by causing injury No.9. Injury No. 11: A punctured wound, oval shaped on back, upper part on left side measuring approx. 0.5cm by 0.3cm, located 6cm lateral to vertebral column with inverted edges and it's a through and through injury. From examination it seems an entry wound casused by firearm weapon. It was directed anterosuperiorly and damages skin, subcutaneous tissue and neck muscles and exits through causing injury No. 1. Injury No.12: An oval shaped wound located on right side of abdomen, in right inguinal region, measuring approx. 1cm by 0.5cm located 12cm below and lateral to umbilicus, everted margins present. On examination, it seems an exit wound. It's a through and through injury communicating with injury No.8. Injury No.13: A punctured wound on posterio-lateral side of left arm measuring 0.5cm by 0.4cm approx. and 4cm above lateral epicondyle, having inverted edges and blackening present, anteriorly and superiorly and bone deep. On examination it seems to be an entry wound of firearm weapon and a bullet was recovered in its track that was found at edge of bone. Injury No.14: An oval shaped punctured wound on posterior side of left arm measuring approx. 0.5cm by 0.3cm located 9cm above elbow joint with inverted margins. It's a through and through injury and on exathination seems to be an entry wound caused by firearm weapon. Skin and muscles are damaged and exits by causing injury No.15. Injury No.15: A circular shaped wound measuring 1.5cm by 1.5cm located on medial side of left arm. 13cm above medial epicondyle, everted margins, blood oozing out and fat protruded. It was a through and through injury communication with injury No.14 and seems exit wound OPINION: According to the complete external and internal post mortem examination, I am of the opinion that injuries No.2, 3, 9, 10 was the cause of death due to damage to the vital organs i.e. Heart and lungs and excessive bleeding leading to haemorrhgic shock and cardiogenic shock. All injuries were ante-mortem in nature. These injuries were sufficient to cause death in usual circumstances. All injuries were caused by firearm weapon." 7. On 31.08.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Naseer Ahmad as being won over by the accused. On 19.10.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Akram as being unnecessary. On 07.01.2023, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Ibrar Hussain 388/C as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. PN and Exh.PO). 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Abid son of Muhammad Amin under section 342 Cr.P.C. and in answer to question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant namely Muhammad Abid son of Muhammad Amin opted not to get himself examined under section 340(2) Cr.P.C. however produced documents (Exh.DA, Exh.DB, Mark-DA and Mark-DB) as evidence in his defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge, Haroonabad convicted and sentenced the appellant as referred to above.
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10. The contention of the learned counsel for the appellant namely Muhammad Abid son of Muhammad Amin precisely was that the whole case was 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, was 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 Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin 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 and the learned counsel for the complainant contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General and the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the eyewitnesses. The learned Deputy Prosecutor and the learned counsel for the complainant further argued that the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin also corroborated the ocular account. The learned Deputy Prosecutor General and 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 and the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Muhammad Abid son of Muhammad Amin. 12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel for the complainant and with their assistance carefully perused the record and evidence recorded during the trial. 13. A perusal of the prosecution evidence reveals that the whole prosecution case as against the appellant namely Muhammad Abid son of Muhammad Amin is based on the statements of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2). The relationship of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) with the deceased and with each other is on record. Muhammad Nabeel Sarwar (deceased) was the son of the prosecution witness namely Shamshad Bibi (PW-1) and the maternal nephew of the prosecution witness namely Muhammad Javaid (PW-2). The prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) both of them had their residence within the Housing Scheme namely " Housing Colony Z-Block, Haroonabad" whereas the occurrence took place within the area of "Bangla road Haroonabad ". In this manner, the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) failed miserably to provide any consistent evidence as to the reason for their arrival at the
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place of occurrence and their presence at the place of occurrence when the same was taking place. The prosecution witness namely Shamshad Bibi (PW-1) had claimed that she had accompanied her deceased son on a motorcycle for the purpose of getting medicine for herself from the hospital and had stopped in front of the Amir Karyana Store when the accused came there and attacked the deceased. The prosecution witness namely Shamshad Bibi (PW-1) very well knew that as she was not the resident of the place where the occurrence took place, therefore, she would be questioned with regard to her reason to be present at the place of occurrence, at the time of occurrence, and therefore, came up with the explanation that as she needed medicine for herself ,therefore, she had accompanied her son, however, after analysis of the statement of prosecution witness namely Shamshad Bibi (PW-1) we have arrived at an irresistible conclusion that Shamshad Bibi (PW-1) failed to prove her stated reason for her presence at the place of occurrence. In this regard, we have noticed that Shamshad Bibi (PW-1) admitted during cross- examination that she did not produce any prescription of any Doctor regarding the medicines which she needed to purchase on the day of the occurrence. During cross-examination Shamshad Bibi (PW1) admitted as under:- "I was suffering from typhoid and for its treatment 1 was going to hospital. Prior to the occurrence, as well, I had got treatment from the hospital. I had not produced prescription during investigation. We proceeded from our home at about 4:00 p.m. We proceeded to Bangla Road through Melad-Chowk. " (emphasis supplied) It is also a fact that Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case also did not collect any evidence with regard to the claim of Shamshad Bibi (PW-1) that on the day of occurrence, she had accompanied the deceased for the purpose of taking medicines from the hospital. Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case admitted during cross-examination, as under:- "Complainant did not produce any prescription of the doctor regarding her treatment for which she allegedly was proceedings to the clinic of the doctor " 14. We have also noticed that the prosecution witness namely Muhammad Javaid (PW-2) also could not furnish any explanation for his sudden presence at the place of occurrence. Shamshad Bibi (PW-1) admitted during cross-examination that Muhammad Javaid (PW-2) was his brother and a tailor by profession and also that he resided in the same house with Shamshad Bibi (PW-1). With regard to the reason for his presence at the place of occurrence, Muhammad Javaid (PW-2) claimed that he had accompanied Naseer Ahmad (given up prosecution witness) who had to purchase exotic birds from a shop in front of the Amir Karyana Store and both of them were present at the said shop when he witnessed the incident. As mentioned above, Naseer Ahmad, the person who had to purchase the birds and whom Muhammad Javaid (PW-2) had accompanied, was given up as a prosecution witness after it was declared that he had been won over by the accused. Moreover, the shopkeeper of the shop, the shop at which the prosecution witness namely Muhammad Javaid (PW-2) was present with Naseer Ahmad (given up prosecution witness), purchasing birds when the occurrence took place, also did not appear before the Investigating Officer of the case and also before the learned trial court in support of the claim of Muhammad Javaid (PW-2) that he indeed was present at his shop, at the time when the occurrence took place. Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case admitted during cross- examination, as under:- "I had not recorded statement of owner of Birds Shop where the PWs stated that they were present at" Most importantly neither in the unscaled site plan (Exh.PM) as prepared by Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case nor in the scaled site plan of the place of occurrence (Exh.PP) as prepared by Sahil Sikandar draftsman (PW-10) any shop of any birds seller has been
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marked. In this manner, the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW2) failed miserably to prove that they had indeed arrived at the place of occurrence, before the occurrence. The proven failure of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) to provide a reason for their presence at the place of occurrence, on the day of the incident, has repercussions, proving that there was no reason actually for the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW- 2) to be visiting the place of occurrence. The very inception of the prosecution case is thus put in doubt due to the said abject failure of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW2). The failure of the prosecution to prove their claims regarding the reason for their presence at the place of occurrence has vitiated our trust in Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) as being truthful witnesses. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad, Ghulam Farid and Manzoor Ahmed in the said case who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, declared chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724). 15. It is also a fact that the occurrence took place in front of the Amir Karyana Store and Shamshad Bibi (PW-1) claimed in her statement recorded by the learned trial court that prior to the arrival of the accused at the place of occurrence, she and her son had stopped in front of the said Amir Karyana Store, however, could not give any reason as to why this stop was made when there was no purpose of said a stop and when the destination of Shamshad Bibi (PW-1) was the hospital from where she had to take the medicine. Furthermore, it has also not been explained that how the appellant came to know about the travelling plan of the deceased on the day of occurrence and the appellant arrived at the place of occurrence on foot which place of occurrence was at a distance from his own house and which place of occurrence was also at a distance from the house of the deceased and where the presence of deceased was not in the usual course of things rather the presence of the deceased was a chance presence. 16. We have also noted that the stance set up by the prosecution in the present case was that the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) were present at the time of the death of the deceased and had remained with the dead body however in the inquest report (Exh.PL), in column No.8 it had been noted that both the mouth and the eyes of the deceased were open at the time of preparation of the same, which clearly shows that the dead body was not attended to by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2), as claimed. The mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PL), thus, if the witnesses were present…
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