Full Judgment Text & Judicial Ruling

2026 P Cr. L J 201 [Lahore] Before Muhammad Tariq Nadeem and Raja Ghazanfar Ali Khan, JJ Muhammad Irfan alias Pomi---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 77330, Murder Reference No. 221 and Petition for Special Leave to Appeal No. 81562 of 2021, decided on 29th April, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of eye-witnesses at the place and time of occurrence proved---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---Ocular account of the incident hinged upon the testimonies of complainant and an eye-witness, who happened to be the real brother and paternal cousin of deceased---Although both the said witnesses were closely related to the deceased, but their presence at the place of occurrence was quite natural and they had no animus towards the appellant---Complainant while appearing before the Trial Court reiterated the same facts as narrated in the FIR as well as private complaint and his statement had been fully corroborated by eye-witness---Both the eye-witnesses were residents of the same vicinity---Moreover, it was daylight occurrence, took place in that Mohallah, and the appellant was quite familiar to the eye-witnesses prior to the occurrence, therefore, there was no chance of misidentification of the appellant at the time when he was causing firearm injuries to the deceased---Complainant stated during his examination-in-chief that on the fateful day, he along with eye-witnesses were going behind deceased after offering Zohar prayer in "Masjid Aqsa", when deceased reached near his house, the said unfortunate occurrence took place---Similarly, eye-witness during his testimony had completely endorsed the evidence of complainant---In that way the presence of both the eye-witnesses at the time and place of occurrence was quite natural and probable---Said witnesses were cross-examined at length but nothing favourable to the appellant could be brought on the record--- Circumstances established that the prosecution proved its case beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Related witnesses, evidence of---Reliance---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---Much emphasis had been laid by defence that complainant and eye-witness were closely related to the deceased and for the said reason, their evidence was not reliable---In this regard, mere relationship of eye-witnesses with the deceased by itself was no ground to disbelieve their evidence---Even otherwise, evidence of said witnesses was trustworthy and confidence inspiring which could not be discarded merely on the basis of their relationship with the deceased especially when they had no animosity with the appellant---Similarly, due to close and blood relation of eye-witnesses with deceased, said witnesses were in fact not likely to let off the actual perpetrator of the offence by falsely implicating the appellant, against whom they admittedly had no previous malice, ill-will, animosity or grudge---Moreover, substitution of real culprits especially in cases where the eye-witnesses lost their kith and kin before their own eyes was a rare phenomenon---Circumstances established that the prosecution proved its case beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. Muhammad Abbas and another v. The State 2023 SCMR 487; Amanullah v. The State and another 2023 SCMR 527; Ali Asghar alias Aksar v. The State 2023 SCMR 596; Aman Ullah and another v. The State and others 2023 SCMR 723; Imran Mehmood v. The State and another 2023 SCMR 795; Khalid v. The State through P.G. Sindh 2024 SCMR 1474; Aqil v. The State 2023 SCMR 831 and Muhammad Ijaz v. The State 2023 SCMR 1375 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Material discrepancies and contradictions in the statements of eye-witnesses---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---It was alleged by defence that complainant had admitted in his cross-examination that no one from the complainant s side ( us ) was eye-witness in the case---After scrutinizing the entire statements of complainant and eye-witness, it was observed that mentioning of word "us" in the quoted line from the cross-examination of the complainant was a typographical error due to casual and careless attitude of the Presiding Officer while dictating the evidence---Complainant had categorically stated in his examination-in-chief that appellant made straight fire shots which hit victim on left side of his abdomen and left shoulder and due to the firearm injuries, he fell down---Complainant along with eye-witnesses came forward and witnessed the occurrence---During cross-examination, defence put some questions to complainant regarding the place of occurrence and its location, whereupon he replied that place of occurrence was surrounded by inhabited houses and in that sequence, a question was put to him upon which he replied that "none from us was eye-witness in the case ---Said fact clearly manifested that in a sequel of cross-examination a question was put about the availability of inhabitants of locality and not about the presence of the complainant as well as eye-witnesses mentioned in the crime report and due to the carelessness of the Presiding Officer instead of word "them" word "us" had been typed---Similarly, such type of question was also put to eye-witness wherein correct word them had been used and not us ---Moreover, during cross-examination on complainant, a specific suggestion was put to him that he and other eye-witnesses were not present at the place of occurrence---Complainant categorically denied that fact and clarified that they were present at the time and place of occurrence---Thus, it appeared that typographical error had occurred while dictating cross-examination of complainant---If the Urdu translation of the evidence had been prepared during the same sitting as well as in the presence and hearing of the Presiding Officer and all parties involved, then the correct answer could have emerged clearly on the record---Evidence of any witness was to be taken into consideration as a whole, not in bits and pieces---Said witness during examination-in-chief as well as in the cross- examination had fully supported the case of prosecution---Law did not permit the Court to pick and choose a sentence from the entire evidence and based its decision while reading only that sentence in favour of the appellant, in isolation to the remaining evidence available on record---Circumstances established that the prosecution proved its case beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Medical evidence supporting ocular account---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---Complainant and eye-witness had specifically described the injuries sustained by deceased at the hands of appellant---Medical evidence was in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case as the ante-mortem injuries on the person of deceased were reflected in the post-mortem report, which ultimately became the cause of his unnatural death as opined by Medical Officer, who conducted post mortem examination on the dead body of deceased and those injuries were specifically attributed by the eye-witnesses to the appellant---Furthermore, the ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injuries as narrated by the eye-witnesses had also fully tallied with medical evidence---Said Medical Officer was also subjected to cross-examination but nothing beneficial to the appellant could be extracted from him---Circumstances established that the prosecution proved its case beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Co-accused acquitted on the basis of same set of evidence---No overt act attributed to acquitted co-accused---Effect---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---It was alleged by defence that co-accused persons stood acquitted by Trial Court in the same trial while disbelieving the same evidence which rendered the credibility of prosecution evidence seriously doubtful even against the appellant---Record showed that no overt act was attributed to the acquitted co-accused persons of the appellant---Thus, the acquittal of co-accused, in the circumstances of the case, was not sufficient to discredit the overwhelming prosecution evidence available against the appellant---Circumstances established that the prosecution otherwise proved its case beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of pistol from the possession of accused---Reliance---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---Record showed that a pistol 30 bore was recovered from the possession of appellant and positive report of the Forensic Science Agency was there---However, the same were not helpful to the prosecution because while effecting the said recovery from the appellant, the Investigation Officer had flagrantly violated the mandatory provisions of S.103, Cr.P.C., as no independent person was associated during the said recovery proceedings---Circumstances established that the prosecution otherwise proved its case beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. Muhammad Nasir Butt and 2 others v. The State and others 2025 SCMR 662 and Muhammad Ramzan v. The State 2025 SCMR 726 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Sentence, reduction in---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---Motive set up by complainant in private complaint was that a quarrel took place between deceased and appellant etc. at noon time on the day of occurrence and due to that grudge, the accused persons with their common object committed murder of deceased---Notable that the prosecution had not led any substantial evidence in that regard, therefore, mere oral assertion of eye-witnesses in that regard could not be considered enough to prove the motive part of prosecution's case---Prosecution evidence was completely silent as to where and in whose presence the alleged altercation took place at noon time before the occurrence, hence, the prosecution had failed to prove the motive and actual circumstances due to which the appellant had taken such an extreme step against the deceased which remained shrouded in mystery---Circumstances established that the prosecution otherwise proved its case beyond any shadow of doubt, however, due to some mitigating circumstances, death sentence was altered to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Mitigating circumstances---Sentence, reduction in---Accused was charged that he along with his co-accused persons committed murder of the brother of complainant by firing---Record showed that there were some mitigating circumstances which called for reduction in the quantum of sentence of appellant---Prosecution had failed to prove the recovery and motive part of its case against the appellant, therefore, alternate sentence of imprisonment for life to appellant for the murder of the deceased, which was also a legal sentence, would meet the ends of justice---Hence, the conviction under S.302(b), P.P.C., awarded to appellant by the Trial Court was maintained, however, his sentence was altered from death to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstance. Qaddan and others v. The State 2017 SCMR 148; Abdul Wasay and others v. The State and others 2021 SCMR 1059; Muhammad Shaban v. The State 2022 SCMR 1608; Muhammad Bashir and another v. The State and others 2023 SCMR 190; Sohail Akhtar and another v. The State and another 2024 SCMR 67 and Muhammad Yasin and another v. The State and others 2024 SCMR 128 rel. Barrister Shehram Saqi, Muhammad Abid Hussain Saqi, Zahid Iqbal and Rana Shujja Farooq for Appellant. Rana Muhammad Asif Iqbal, Assistant District Public Prosecutor for the State. Kazim Ali Malik and Shamim-ur-Rehman Malik for the Complainant. Date of hearing: 29th April, 2025. Judgment Muhammad Tariq Nadeem, J.---Through this single judgment, we intend to decide Criminal Appeal No.77330 of 2021, filed by Muhammad Irfan alias Pomi appellant against his conviction and sentence along with Petition for Special Leave to Appeal No.81562 of 2021, filed by Muhammad Qaiser complainant against the acquittal of Tahir Usman, Afzaal, Hamza and Kaleem co-accused/ respondents No.1 to 4 and Murder Reference No.221 of 2021, transmitted by learned trial court for confirmation or otherwise of death sentence of Muhammad Irfan alias Pomi appellant being originated from the same judgment dated 02-12-2021 passed by the court of learned Additional Sessions Judge, Bhalwal, in a private complaint under sections 302, 148, 149 P.P.C, emanated from case FIR No.328 dated 08-11-2018, under Sections 302,148,149 P.P.C, registered at Police Station Miani, District Sargodha, whereby the learned trial court while acquitting co-accused namely Tahir Usman, Afzaal, Hamza and Kaleem, convicted and sentenced the appellant as under:- Under Section 302(b), P.P.C, to death for committing qatl-i-amd of Abdul Nasir with the direction to pay compensation of Rs.5,00,000/- to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C. which shall be recoverable as arrears of land revenue or in default thereof to undergo six months S.I. 2. The facts of the case as spelt out from the private complaint (Ex.PH) lodged by Muhammad Qaiser complainant are that on 08-11-2018 at about 02:20 p.m. his brother Abdul Nasir was on the way back to his house after offering Zohar prayer in Masjid Aqsa, whereas he (complainant) along with Waqar Ali and Sharafat Ali were also going behind him after offering prayer. When Abdul Nasir reached near his house, in the meantime, Muhammad Irfan alias Pomi (appellant) along with his co-accused namely Tahir Usman, Afzaal, Hamza, Kaleem and Rukhsar, while armed with pistols 30 bore, came in front of him. Afzaal, accused raised lalkara that they have come to teach a lesson for quarrelling with them and Muhammad Irfan alias Pomi (appellant) made straight fire shot at Abdul Nasir, which hit at left side of his abdomen. He (appellant) made second fire shot which hit at left deltoid of Abdul Nasir. After receiving severe injuries, Abdul Nasir fell down. The complainant and PWs Sharafat Ali as well as Waqar Ali witnessed the occurrence. Accused persons fled away from the spot while making aerial firing. Abdul Nasir was shifted to RHC Miani, from where he was referred to DHQ, Hospital, Sargodha, and after reaching there, he succumbed to the injuries. The motive behind the occurrence was a quarrel between Abdul Nasir and Muhammad Irfan etc. which took place at noon time and due to that grudge, the accused persons committed murder of Abdul Nasir in furtherance of their common object. 3. After recording cursory statements of the complainant and PWs, the accused were summoned to face the trial. Learned trial court, after observing pre-trial codal formalities, framed charge under sections 302, 148,149 P.P.C against the appellant and his acquitted co-accused, to which they pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as five witnesses as PWs and five as CWs, detail of which has been mentioned in the judgment passed by the learned trial court, therefore, the same is not being reproduced here to avoid unnecessary repetition. The prosecution gave up Nasir Khan 1191/C, PW being unnecessary and after tendering the reports (Exh.PL and Exh.PM) of the Punjab Forensic Science Agency, Lahore, closed its evidence. Thereafter, the appellant and his acquitted co-accused were examined under section 342 Cr.P.C. whereby they refuted the allegations levelled against them and professed their innocence. They did not opt to make statements on oath as provided under section 340(2) Cr.P.C, however, produced attested copy of MLC No. 271 of 2018 as Exh.DB in their defence evidence. 4. The learned trial court vide judgment dated 02-12-2021 found Muhammad Irfan alias Pomi appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co-accused namely Tahir Usman, Afzaal, Hamza and Kaleem of the charge through the same judgment by giving them the benefit of doubt, hence, the appeal against conviction and sentence, petition for special leave to appeal and connected murder reference before us. 5. We have heard the arguments of learned counsel for the appellant as well as learned Assistant District Public Prosecutor assisted by learned counsel for the complainant at length and also scanned the record with their able assistance. We have reappraised the whole evidence and taken everything into our consideration in the light of arguments advanced by both the sides. 6. The ocular account of the incident hinges upon the testimonies of Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5), who happened to be the real brother and paternal cousin of Abdul Nasir (deceased). Although both the PWs are closely related to the deceased, but their presence at the place of occurrence is quite natural and they had no animus towards the appellant. The complainant while appearing before the learned trial court reiterated the same facts as narrated in the FIR (Exh.CW-E) as well as private complaint (Exh.PH) and his statement has been fully corroborated by Waqar Ali (PW.5). Both these eye-witnesses were residents of the same vicinity i.e Kashmirian Wala, Miani, Tehsil Bhera, District Sargodha. It was daylight occurrence, took place in Mohallah Kashmirian Wala Miani, and the appellant was quite familiar to the eye-witnesses prior to the occurrence, therefore, there was no chance of misidentification of the appellant at the time when he was causing firearm injuries to the deceased. We have noted that Muhammad Qaiser complainant (PW.4) stated during his examination-in-chief that on the fateful day, he along with Waqar Ali (PW.5) and Sharafat Ali (given up PW) were going behind Abdul Nasir (deceased) after offering Zohar prayer in Masjid Aqsa , when Abdul Nasir (deceased) reached near his house, the said unfortunate occurrence took place. Similarly, Waqar Ali (PW.5) during his testimony has completely endorsed the evidence of Muhammad Qaiser complainant (PW.4). It is noteworthy that the learned defence counsel has seriously criticized the presence of Waqar Ali (PW.5) at the place of occurrence with the assertion that he (PW.5) was on his duty in bus stand at the relevant time of occurrence and his presence at the venue of occurrence is not plausible. Although, he (PW.5) has disclosed that during the days of occurrence, he was working as booking clerk at bus stand Miani but at the same time, he stated that bus stand was at a distance of just half kilometer from the place of occurrence. We have already observed that this PW was resident of the same vicinity where unfortunate incident took place. Moreover, his place of job was not much away from the place of occurrence. It is trite in our society that people working near their residence normally like to offer prayer in the mosque of their own street/Mohalla so that they may also take their lunch at home. Even otherwise, the defence has not put any question to above-mentioned PW about his duty hours. In this way the presence of both the above-mentioned eye-witnesses at the time and place of occurrence is quite natural and probable. The above mentioned witnesses were cross-examined at length but nothing favourable to the appellant could be brought on the record. Much emphasis has been laid by learned defence counsel that Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5) are closely related to the deceased and for the said reason, their evidence is not reliable. In this regard, it is settled proposition of law that mere relationship of eye-witnesses with the deceased by itself is no ground to disbelieve their evidence. Even otherwise, their evidence is trustworthy and confidence inspiring which cannot be discarded merely on the basis of their relationship with the deceased especially when they have no animosity with the appellant. Reliance in this respect may be placed upon the judgments reported as Muhammad Abbas and another v. The State (2023 SCMR 487), Amanullah v. The State and another (2023 SCMR 527), Ali Asghar alias Aksar v. The State (2023 SCMR 596), Aman Ullah and another v. The State and others (2023 SCMR 723), Imran Mehmood v. The State and another (2023 SCMR 795) and Khalid v. the State through P.G. Sindh (2024 SCMR 1474). Similarly, we are of the view that due to close and blood relation of eye-witnesses with Abdul Nasir (deceased), they were in fact not likely to let off the actual perpetrator of the offence by falsely implicating the appellant, against whom they admittedly had no previous malice, ill-will, animosity or grudge. It is by now well settled law that substitution of real culprits especially in cases where the eye-witnesses lost their kith and kin before their own eyes is a rare phenomenon. Reliance is placed on the cases of Aqil v. The State (2023 SCMR 831) and Muhammad Ijaz v. The State (2023 SCMR 1375). 7. During arguments, learned counsel for the appellant has contended that there are material discrepancies and contradictions in the statements of eye-witnesses, particularly Muhammad Qaiser complainant (PW.4) has admitted in his cross-examination that, none from us is eye-witness in this case , (Bold for emphasis). After scrutinizing the entire statements of Muhammad Qaiser complainant (PW.4) and Waqar Ali (PW.5), we have observed that mentioning of word us in the above quoted line from the cross-examination of the complainant is a typographical error due to casual and careless attitude of the Presiding Officer while dictating the evidence. We have noted that while appearing in the witness box, Muhammad Qaiser complainant (PW.4) has categorically stated in his examination-in-chief that Muhammad Irfan alias Pomi appellant made straight fire shots which hit Abdul Nasir on left side of his abdomen and left shoulder and due to the firearm injuries, Abdul Nasir fell down. He (PW.4) along with Waqar Ali (PW.5) and Sharafat Ali (jettisoned PW) came forward and witnessed the occurrence. It is also noteworthy that during cross-examination,…

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