Full Judgment Text & Judicial Ruling

2025 Y L R 2013 [Lahore (Multan Bench)] Before Sadiq Mahmud Khurram and Muhammad Tariq Nadeem, JJ Muhammad Zahid alias Billa and another---Appellants Versus The State and another---Respondents Criminal Appeal No. 151, Criminal Revision No. 148 and Murder Reference No. 28 of 2019, decided on 13th November, 2019. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, recovery of stolen property---Appreciation of evidence---No justification for the presence of witnesses at the time and place of the occurrence---Chance witnesses---Accused were charged for committing murder of the brother of complainant by firing during robbery---Ocular account of the incident had been given by two witnesses---Said witnesses were not the residents of the place of occurrence---One witness was resident of other district whereas the residence of other witness was at a distance of 12-15 kilometers from the place of occurrence---Admitted aspect of the prosecution case was that both the prosecution witnesses had their residences or their places of business at quite a distance from the place of occurrence, thus both the witnesses could be validly termed as "chance witnesses"---Prosecution witnesses claimed that on the day of occurrence they had gone to the city B-(Burewala) and when they were returning from the said city, the occurrence took place on their arrival within the area of place of occurrence---Perusal of the statements of the prosecution witnesses recorded during the course of the trial revealed that they could not prove their stated reasons for their visit to the city B-(Bureala) and return from the said city to their arrival within the area of place of occurrence---One of the eye-witnesses candidly admitted during cross-examination that he provided no reason to the Investigating Officer of the case for his visit to the city B-(Burewala) and his subsequent return from the said city and his arrival at the place of occurrence---Similarly, the other prosecution witness only stated that he was coming back from city B-(Burewala) to his own house when the occurrence took place, however, he did not explain any reason available with him for having visited the city B-(Burewala) on the day of the incident and that too with the deceased when admittedly other witness was the resident of other district---Moreover, during the investigation of the case, no statement of any witness was recorded with whom the prosecution witnesses had entered into any transaction on the day of occurrence which would have substantiated the claim of the said witnesses that on the day of occurrence, they had visited and were returning from the city B-(Burewala) when the incident took place---Alleged eye-witnesses were not mentioned in column No.4 of the inquest report as being the ones who were present at the time of preparation of the said inquest report by the Investigating Officer---Said witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem examination of the same---Dead body of the deceased was identified by other witness, who admitted during cross-examination that he was not even related to the deceased---Moreover, it had not been explained and was also implausible that when prosecution witnesses were ostensibly present at the place of occurrence at the time of arrival of the Investigating Officer of the case and the departure of the dead body to the RHC for the purpose of its post mortem examination then why it was found necessary to get the dead body identified by other witness, who was not even related to the deceased---Said witnesses also admitted that they did not accompany the dead body of the deceased to the RHC when the same was taken from the place of incident---Such conduct of the witnesses where they failed to accompany the dead body of the deceased to the hospital revealed their absence at the place of occurrence---Admitted part of the prosecution case was that though the occurrence had taken place at about 05.45 p.m., however, according to Medical Officer, the dead body of the deceased was brought to the hospital at 11.00 p.m.---Even one of the eye-witness admitted that after the occurrence, the dead body remained at the place of occurrence for about 2-2 hours---Delay in dispatching the dead body to the RHC was indicative of the fact that the said time was consumed to procure the attendance of prosecution witnesses from their houses---All the said facts were conspicuous and telling of the fact that eye-witnesses were not present at the place and time of occurrence and their attendance was procured subsequently---Appeal against conviction was allowed, in circumstances. Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82; Zaheer Sadiq v. Muhammad Ijaz and others 2017 SCMR 2007; Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392 & 411---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, recovery of stolen property---Appreciation of evidence---Test identification parade---Eye-witnesses already aware of particulars of accused before test identification parade---Accused were charged for committing murder of the brother of complainant by firing during robbery---In order to prove the identities of the appellants as being the accused involved in the occurrence, prosecution got eye-witnesses examined, who both stated that on 16.03.2018 they had identified the appellants during the test identification parade proceedings held to establish the identities of the appellants---Names of the assailants were not mentioned in the oral statement of eye-witness and the FIR was lodged against unknown accused persons---Subsequently, both the eye-witnesses got recorded their statements under S.161, Cr.P.C on 03.03.2018, wherein they not only named the appellants as accused who had committed the occurrence but also gave all the details with regard to their particulars---Eye-witness even claimed that he had named the appellants in his oral statement---Other eye-witness in his statement before the Court stated that he nominated the appellants in the case in the police station---Said portion of the statements of the eye-witnesses clearly reflected that the identities and the particulars of the appellants were in the knowledge of said witnesses, therefore, there did not exist any reason for the said witnesses not to have named the appellants as accused on the day when the FIR was being registered---Moreover, when every detail regarding the assailants was disclosed by eye-witnesses through, their statements recorded under S.161, Cr.P.C. on 03.03.2018, then the holding of the test identification parade proceedings even otherwise was an exercise in futility---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, recovery of stolen property---Appreciation of evidence---Blatant improvements made by the eye-witnesses in their statements---Scope---Accused were charged for committing murder of the brother of complainant by firing during robbery---Record showed that the eye-witnesses made blatant improvements to their previous statements in order to bring the ocular account in line with the observations of Medical Officer, who had conducted the post mortem examination of the dead body of the deceased and went on to claim that during the occurrence only one accused fired at the deceased and the deceased also suffered one firearm entry wound on his body though initially the eye-witnesses had stated that two of the assailants had fired at the deceased, hitting him separately---Said witnesses made a deliberate and dishonest departure from their earlier narrations of the occurrence while deposing before the Trial Court---By improving their previous statements, the eye-witnesses impeached their own credibility---As the eye-witnesses introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credibility stood impeached and the eye-witnesses could not be relied upon---Appeal against conviction was allowed, in circumstances. Muhammad Ashraf v. State 2012 SCMR 419; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Arif v. The State 2019 SCMR 631 and Amin Ali and another v. The State 2011 SCMR 323 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392 & 411---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, robbery, recovery of stolen property---Appreciation of evidence---Recovery of pistols from the accused persons---Non-association of private witnesses at the time of recovery proceedings---Accused were charged for committing murder of the brother of complainant by firing during robbery---As per record, pistols were recovered from the possession of accused persons---However, said recovery could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of pistol from the accused persons which was in clear violation of S.103, Cr.P.C---Therefore, the evidence of the recovery of the pistols from the appellants could not be used as incriminating evidence against the appellants, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence---Moreover, the appellants were arrested on 06.03.2018, the pistol from one appellant was recovered on 27.03.2018 and the pistol was recovered from other appellant on 02.04.2018, however, the empty shell of the bullet taken into possession from the place of occurrence was sent to Forensic Science Agency on 10.04.2018---There was no reason for keeping the empty shell of the bullet, which was taken into possession on 01.03.2018, at the Police Station and not sending it to the office of Forensic Science Agency till 10.04.2018, after the arrest of the appellants and the recoveries of the pistols---In such manner the said report of Forensic Science Agency had no evidentiary value as the possibility of fabrication was apparent---Therefore, the recovery of the pistols from the appellants did not further the case of the prosecution in any manner---In view of the said facts, the recovery of the pistols from the appellants were not proved and the same could not be used as a circumstance against the appellants---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898; Nasrullah alias Nasro v. The State 2017 SCMR 724; Nasrullah alias Ali Sher v. The State 2008 SCMR 707 and Amin v. The State and another 2019 SCMR 2057 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 392 & 411---Qatl-i-amd, robbery, recovery of stolen property---Appreciation of evidence---Medical evidence alone not sufficient for conviction---Scope---Accused were charged for committing murder of the brother of complainant by firing during robbery---Medical evidence was of no assistance in this case as medical evidence by its nature and character, could not recognize a culprit in case of an unobserved incident---As all the other pieces of evidence relied upon by the prosecution in this case had been disbelieved and discarded, therefore, the appellants' conviction could not be upheld on the basis of medical evidence alone---Appeal against conviction was allowed, in circumstances. Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel. (f) Criminal trial--- ----Benefit of doubt---Principle---If a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit will be extended to an accused not as a matter of concession but as of right. Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The State 2021 SCMR 736 rel. Mudassir Altaf Qureishi for Appellants. Shahid Aleem, District Public Prosecutor for the State. Muhammad Malik Khan Langah for the Complainant. Date of hearing: 13th November, 2023. Judgment Sadiq Mahmud Khurram, J.---Muhammad Nadeem son of Neghaban and Muhammad Zahid alias Billa son of Muzammil (convicts) were tried along with their co-accused namely Muhammad Amin son of Naseer (since acquitted) by the learned Additional Sessions Judge, Burewala in case FIR No. 120 of 2018 dated 01.03.2018 registered at Police Station Gagoo, District Vehari in respect of offences under sections 302, 392 and 411 P.P.C for committing the Qatl-i-Amd of Ishtiaque Ahmed son of Muhammad Ashraf (deceased) during robbery. The learned trial court vide judgment dated 28.02.2019 convicted Muhammad Nadeem son of Neghaban and Muhammad Zahid alias Billa son of Muzammil (convicts) and sentenced them as infra: Muhammad Nadeem son of Neghaban:- i) Death under section 302(b) P.P.C as Tazir for committing Qatl-i-Amd of Ishtiaque Ahmed son of Muhammad Ashraf (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A. Cr.P.C. to the legal heirs of the deceased; in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous Imprisonment for ten years under section 392 P.P.C. and directed to pay Rs.100,000/- as fine; in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. iii) Simple Imprisonment for three years under section 411 P.P.C. and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. Muhammad Zahid alias Billa son of Muzammil: i) Rigorous Imprisonment for ten years under section 392 P.P.C. and directed to pay Rs.100,000/- as fine; in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Simple Imprisonment for three years under section 411 P.P.C. and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. All the sentences awarded to Muhammad Zahid alias Billa son of Muzammil were ordered to run concurrently by the learned trial court. Muhammad Amin son of Naseer, the co-accused of the appellants, was, however, acquitted of the charges by the learned trial court. 2. Feeling aggrieved, Muhammad Nadeem son of Neghaban and Muhammad Zahid alias Billa son of Muzammil (convicts) lodged the Criminal Appeal No.151 of 2019 assailing their convictions and sentences. The learned trial court submitted Murder Reference No.28 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Nadeem son of Neghaban. Zia Ahmed the complainant of the case filed Criminal Revision No. 148 of 2019 seeking the enhancement of the sentences awarded to the convict namely Muhammad Zahid alias Billa son of Muzammil. We intend to dispose of the Criminal Appeal No.151 of 2019, the Criminal Revision No. 148 of 2019 and the Murder Reference No.28 of 2019 through this single judgment. 3. Precisely the facts necessary, as stated by Zia Ahmed (PW-6), the complainant of the case, are as under:- "Stated that on 01.03.2018 at about 05:45 pm I and my brother Ishtiaque were going on our motorcycle Road Prince from Burewala to our house. When we reached near Chak No.291/E.B. the accused persons present in the court Zahid, Amin and Nadeem came on a motorcycle behind us. When they came in line with us accused persons namely Zahid and Nadeem pointed their pistols to us and asked us to stop. We stopped and deboarded from our motorcycle. The accused persons present in the court also deboarded from their motorcycle. They were having handkerchief on their faces which were put off. Zahid accused remained pointed his pistol and said if we moved he would kill us. Accused Amin searched me. I was having mobile phone Nokia of my brother in my hand. He snatched the same. I was having my mobile in my pocket Amin accused present in the court snatched that mobile phone Nokia, copy of my ID card and Rs.50/- from me. Nadeem accused present in the court snatched gold ring from my brother Ishtiaque Ahmad. He also snatched Rs.4500/- and copy of 1.D card from the pocket of my brother Ishtiaque Ahmad. Nadeem accused present in the court asked accused Amin to snatch the key of the motorcycle from my brother Ishtaque. My brother Ishtiaq did not hand over the key of Motorcycle to them, upon which accused Nadeem made fire shot of his pistol which hit on the left arm and went to left flank of my brother Ishtiaq. In the meanwhile, PWs Anees Ahmad, Ijaz and Munawar Hussain also reached at the place of occurrence and they witnessed the occurrence. The accused persons ran away towards Chak No. 291 while leaving their motorcycle united, at the spot. My brother fell at the edge of the metaled road and succumbed to the injuries at the spot. I left Anees Ahmad and Muhammad Ijaz near the dead body of my brother Ishtiaq and myself set out for police station. When I reached in the Chowk of Mana Moor on my way to police station, police party was standing there, I went to the police Thanedar was sitting inside the vehicle. I got recorded my statement Ex. PF which bears my signatures. I along with the police party reached again at the place of occurrence. On next day I was called by the I.O at the place of occurrence. I along with PWs reached there. On our pointation and direction of the I.O Patwari Halqa took the rough note for scaled site plan. On 03.03.2018 at the day of Rasm-e-Kul of my brother some persons informed us that the persons namely Zahid, Amin and Nadeem were the real culprits who used to commit such like occurrence in the area. I and eye-witnesses nominated the accused persons present in the court, in this case in the police station. On 16.03.2018 I and eye-witnesses were summoned in the district jail Vehari for test identification parade. I identified the accused persons namely Zahid, Amin and Nadeem during the identification parade one by one. The accused persons present in the court are the real culprits who have committed the offence" 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 appellants namely Muhammad Nadeem son of Neghaban and Muhammad Zahid alias Billa son of Muzammil along with their co-accused namely Muhammad Amin son of Naseer (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 10.08.2018, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got recorded statements of ten witnesses. Zia Ahmed (PW-6) and Ijaz Ahmed (PW-7) gave evidence regarding the ocular account. Aziz ur Rehman Patwari (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PB). Tanvir Ahmad 1114/C (PW-2) stated that on 01.03.2018 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 Iqbal (PW-4) stated that on 01.03.2018, 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 police officer in his presence. Abbas Ali 1330/HC (PW-5) stated that on 01.03.2018, the Investigating Officer of the case handed over to him a sealed parcel said to contain an empty shell of the bullet and on 27.03.2018, the Investigating Officer of the case handed over to him a sealed parcel said to contain a pistol and on 30.03.2018, the Investigating Officer of the case handed over to him another sealed parcel said to contain a pistol and on 02.04.2018, the Investigating Officer of the case handed over to him another sealed parcel said to contain a pistol and he handed over all the said sealed parcels to the investigating Officer of the case on 10.04.2018 for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Amjad (PW-8) stated that on 27.03.2018, the appellant namely Muhammad Nadeem got recovered pistol (P-8) along with seven live bullets (P-9/1-7) and on the same day the appellant namely Muhammad Zahid alias Billa got recovered Rs.4500/- (P-7/1-5) and a copy of the CNIC and on 01.04.2018, the appellant namely Muhammad Nadeem got recovered the ring of the deceased (P-12) and copy of CNIC of Zia Ahmed (PW-6) and on 02.04.2018, the appellant namely Muhammad Zahid alias Billa got recovered pistol (P-13) along with four live bullets and also got recovered two mobile phone devices (P-14 and P-15) on the same day. Muhammad Shafique learned Civil Judge/Magistrate (PW-9) stated that on 16.03.2018, he supervised the test identification parade proceedings held to establish the identities of the appellants and prepared his report (PW/9). Naseer Ahmad 758/HC (PW-10) stated that on 01.03.2018, he got recorded the formal FIR (Exh.PF/1). Mahboob Elahi, SI investigated the case, however, remained untraceable during the trial, therefore, statement of Abbas Ali 1330/HC (PW-5) was recorded with regard to the documents prepared by Mahboob Elahi, SI (untraceable) who got exhibited all the documents as prepared by Mahboob Elahi, SI (untraceable) being conversant with his handwriting. 6. The prosecution also got Dr. Muhammad Naeem Tahir (PW-3) examined who on 01.03.2018 was posted as a Medical Officer at RHC Gaggo and on the same day conducted the postmortem examination of the dead body of Ishtiaque Ahmed (deceased). Dr. Muhammad Naeem Tahir (PW-3) on examining the dead body of the deceased Ishtiaque Ahmed observed as under:- "THORAX. Walls, sternum, cartilages and ribs. A lacerated wound 1.5 cm x 1.5 cm x going deep with 11th rib (lt.) fracture, sternum, menubrium were healthy tissues. Pleurae, larynx and trachea, right and left lungs, pericardium and heart and blood vessels were healthy tissues ........................................ UPPER LIMB A lacerated wound 4.0 x 2.0 x muscle deep on left forearm 4 c.m below the elbow joint while lower limb was healthy. PROBABLE TIME THAT ELAPSED A. Between injury and death sudden B. Between death and post mortem within six hours. FINAL OPINION. After conducting the postmortem of Ishtiaque deceased I was of opinion that death occurred due to the injury to the abdomen and thorax leading to rupture of spleen and large and small intestines that led to hemorrhage and then Hypovolemic that ultimately led to cardio pulmonary arrest and death. The injury was ante-mortem and due to firearm. I handed over the dead body of the deceased, last worn clothes PMR and police documents to Tanveer Ahmad 1114/C after conducting the postmortem of the deceased." 7. On 21.02.2019 the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Amin, Munawar Hussain and Allah Ditta as being unnecessary and closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PZ) regarding blood stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh.PAA) regarding the comparison of the empty shell of the bullet and the pistols. 8. After the closure of prosecution evidence, the learned trial court examined appellants namely Muhammad Nadeem son of Neghaban and Muhammad Zahid alias Billa son of Muzammil under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. They further stated that they had not committed the occurrence and had been made scapegoats in the case in order to show efficiency by the police. The appellants namely Muhammad Nadeem son of Neghaban and Muhammad Zahid alias Billa son of Muzammil opted not to get themselves examined under section 340(2) Cr.P.C however the appellant namely Muhammad Nadeem son of Neghaban produced the document (Exh.DF) as evidence in his defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Burewala convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants is that whole case is fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statements of Zia Ahmed (PW-6) and Ijaz Ahmed (PW-7) were not worthy of any reliance. He further contended that the appellants were neither nominated in the FIR nor in the statements of witnesses recorded on…

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