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Official Citation: 2025 LHC 3110
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Qalab Abbas, Amjad Pervaiz, Fateh Muhammad, The State vs The State & JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-12-31, officially reported as 2025 LHC 3110. In this matter between Qalab Abbas, Amjad Pervaiz, Fateh Muhammad, The State and The State & JUDGMENT, 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 2025LHC3110
Court Name: Lahore High Court Judge(s): Aalia Neelum, Abher Gul Khan Title:Qalab Abbas, Amjad Pervaiz, Fateh Muhammad, The State vs The State &
JUDGMENT
Reported As: 2025 LHC 3110 Result: Appeal Allowed Judgment
JUDGMENT Abher Gul Khan, J. Qalab Abbas & Amjad Pervaiz (appellants) along with two others, namely, Umar Hayat & Faheem Ashraf were tried by learned Additional Sessions Judge, Malakwal, District Mandi Bahauddin in a private complaint titled as Fateh Muhammad v. Qalab Abbas & 3 others for the offences under Sections 302,324,337-F (i),148 & 149 PPC, which has arisen out of FIR No.192/2017 dated 22.05.2017 registered under Sections 302,324,337-F(i), 148 & 149 PPC at Police Station Miana Gondal. Trial court vide judgment dated 29.02.2020 while acquitting the aforesaid two co- accused convicted and sentenced the appellants as under:- 1.Qalab Abbas (appellant) (i).Under Section 302(b) read with Section 34 PPC to suffer death sentence as to'zir on two counts. He was also directed to pay compensation of Rs.10,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of both deceased Umar Hayat and Tahir Imran again on two counts and in default of payment of compensation to undergo simple imprisonment for six months. (ii). Under Section 324 read with Section 34 PPC to suffer rigorous imprisonment for 07-years along with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for six months. (iii). Under Section 337-F(i) read with Section 34 PPC to suffer rigorous imprisonment for 01-year along with payment of Daman of Rs.100,000/- to injured Mazhar Iqbal and in default whereof to further undergo simple imprisonment for six months.
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2.Amjad Pervaiz (appellant) (i).Under Section 302(b) read with Section 34 PPC to suffer imprisonment for life as to'zir on two counts. He was also directed to pay compensation of Rs.10,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of both deceased Umar Hayat and Tahir Imran again on two counts and in default of payment of compensation to further undergo simple imprisonment for six months. (ii). Under Section 324 read with Section 34 PPC to suffer rigorous imprisonment for 07-years along with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for six months. (iii). Under Section 337-F(i) read with Section 34 PPC to suffer rigorous imprisonment for 01-year along with payment of Daman of Rs.100,000/- to injured Mazhar Iqbal and in default whereof to further undergo simple imprisonment for six months. All the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was also extended to both the convicts. Challenging their convictions and sentences, Qalab Abbas & Amjad Pervaiz (appellants) filed two separate appeals i.e. Criminal Appeal No.15460 of 2020 & Criminal Appeal No.15997 of 2020 respectively, whereas Fateh Muhammad (complainant) through his son Nazam Hussain filed PSLA No.17975 of 2020 against the acquittal of Umar Hayat & Faheem Ashraf (respondents No.2 & 3). Likewise, trial court forwarded a reference which was numbered as Murder Reference No.67 of 2020 under Section 374 Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Qalab Abbas. All the three matters are being decided through this single judgment. 2. Precisely stated the facts of the prosecution case as unfolded by Fateh Muhammad in FIR (Exh.CW.3/A) are that he was resident of Bar Mussa where after purchasing land he had constructed a house and even the street is owned by him. On 22.05.2017 at about 11:00 a.m., when the complainant-party was there to fix the pipe for the supply of the drainage-water in the street, Qalab Abbas and his co-accused stopped them for doing so due to which a trifle dispute took place between the parties, however the same was got patched up due to the intervention of respectables of the area. On the same day, at about 6:20 p.m. when the complainant along with Umar Hayat, Tahir Imran and Nazim Hussain was fitting pipe in Bosal Sukha Street, Qalab Abbas, Pervaiz son of Muhammad Hussain, Pervaiz son of Sardar Ali equipped with firearms, Umar Hayat empty handed and four unknown accused emerged on the scene. The accused raised Lalkara to the effect that Umar Hayat and others be taught a lesson for fitting the pipe. Qalab Abbas fired shot from his weapon which hit Umar Hayat beneath the right armpit, Pervaiz son of Sardar fired a shot from his weapon which landed Umar Hayat the right side of chest. Qalab Abbas again fired shot which landed Tahir Imran at the left flank. Pervaiz son of Muhammad Hussain fired shot which landed at the left bicep of Tahir Imran. Qalab Abbas fired shot which landed at the left side of chest of Umar Hayat. Pervaiz son of Muhammad Hussain fired shot which hit at the left thumb of Mazhr Iqbal. The unknown accused while pointing their weapons towards the complainant-party continued raising Lalkaras that if anybody came near he would also be done to death. Umar Hayat and Tahir Imran after being injured fell on the ground. Upon the hue and cry of the complainant party, many men and women attracted to the spot. The complainant and Nazim Hussain PW took Umar Hayat, Tahir Imran and Mazhar to DHQ Hospital Mandi Bahauddin. Umar Hayat upon reaching the hospital succumbed to the injuries while Tahir Imran was referred to ABS Hospital, Gujrat. 3. On 22.05.2017 Sajjad Azam SI (CW.8) was present along with other police officials at Miana Gondal Chowk where Fateh Muhammad (complainant) presented an application which was sent to Police Station through Zafar Iqbal 305/C for the registration of FIR after incorporating necessary proceedings. Tahir Imran injured was dispatched to DHQ Hospital Mandi Bahauddin under the escort of Falak Sher 767/HC for medical treatment/examination. Subsequently, he visited THQ
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Hospital Malakwal and prepared injury statement (CW.7/A), inquest report (CW.7/B), application for postmortem examination (CW.7/C) and dispatched the dead body of Umar Hayat under the escort of Munawar Iqbal 1001/C for autopsy. Meanwhile, the complainant again appeared before Sajjad Azam SI and presented application nominating Faheem Ashraf as one of the accused mentioned in the FIR as unknown. Thereafter, he visited the place of occurrence, drafted unscaled site plan (Exh.CW.7/D), secured blood stained earth and two crime empties of .12 bore gun through memos Exh.PE & Exh.PF respectively. He also prepared injury statement (CW.7/E) of Mazhar Iqbal and dispatched him to THQ Hospital Malakwal through Shahid Imran 806/C for medical examination. On 29.05.2017 he after the receipt of information regarding the death of Tahir Imran reached at THQ Hospital Malakwal, inspected the dead body, prepared injury statement (Exh.CW.7/G), inquest report (Exh.CW.7/H), drafted application for postmortem examination (Exh.CW.7/J) and entrusted the dead body to Munawar Iqbal 1001/C for autopsy. He joined the accused Umar Hayat, Pervaiz Akhtar, Amjad Pervaiz and Faheem with investigation who were on pre-arrest bail. He also got issued proclamation of accused Qalab Abbas from the concerned Area Magistrate on 01.07.2017 and on 17.07.2017 he was transferred from HIU Circle Malkwal. 4. Thereafter the investigation of the case was entrusted to Saqib Shahzad SI (CW.10) who associated the complainant and PWs in investigation and on 19.07.2017 deferred the arrest of accused Umar Hayat and Pervaiz Akhtar (late). On 13.08.2017 he arrested Qalab Abbas, Amjad Pervaiz and Faheem Umar. On 27.08.2017 Qalab Abbas made disclosure and in pursuance thereof led to the recovery of Kalashnikov (P.9) which was taken into possession through memo Exh.PH. On the same day, Amjad Pervaiz also got recovered Kalashnikov (P.11) which was secured vide memo Exh.PI. He after complying with all the codal formalities submitted report under Section 173 Cr.P.C. against Qalab Abbas, Amjad and Faheem through concerned SHO. 5. Being dissatisfied with the mode of investigation, Fateh Muhammad complainant filed complaint (Exh.PA) upon which the trial was held. During trial, prosecution in order to prove its case against the appellants and their co-accused produced Dr.Farrukh Mehmood (PW.1) & Dr.Nasir Waqar (PW.4) who furnished the medical evidence, Nazim Hussain (PW.2) & Mazhar Iqbal (PW.3) entered appearance in the witness box as witnesses of ocular account. Trial court also examined ten CWs, out of whom Sajjad Azam SI (CW.8) & Saqib Shahzad SI (CW.10) investigated the case. The remaining CWs were more or less formal and acted according to the law to aid and support the investigation. 6. Dr.Farrukh Mehmood (PW.1) on 22.05.2017 at about 11:55 p.m. conducted the autopsy of Umar Hayat and noted the following injuries:- Injury No.1.A: 1 cm x 1 cm firearm injury wound with inverted margins at mid axillary line of left side at the level of 8th 9th ribs. Blackening present (entry wound). Injury No.1.B: 4 cm x 2 cm firearm wound with everted margins at right side of mid axillary at the level of 7th 8th ribs (exit wound). Injury No.2: 1 cm x 1 cm firearm injury wound at front of chest 3 cm right laterally from midline 6 cm below the right nipple. Blackening present involving only skin. Injury No.3: 1 cm x 1 cm firearm injury wound at front of chest 10 cm left latterly 6 cm below the left nipple. Blackening present involving skin. According to the opinion of the doctor, the death occurred due to firearm injury No.1.A and 1.B leading to haemorrhage shock, causing cardio-pulmonary arrest. The doctor described the duration between injuries and death within 30-minutes to 1 1/2 hour and between death and postmortem within 5 to 6 hours.
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Dr. Farrukh Mehmood on 29.05.2017 at about 10:25 p.m. also conducted the postmortem examination of Tahir Imran and observed the following injuries:- Injury No.1.A: Firearm injury wound within healing process on the outer side of left arm about 5 cm above the left elbow joint. Injury No.1.B: Firearm injury wound within healing process on the medial aspect left arm 11 cm above the left joint. Both of above two wounds corresponding injury No.1.A and 1.B of MLR dated 22.05.2017. Injury No.2.A: Firearm injury wound within healing process at mid axillary line 15 cm below two axilla over left side. It is accompanied by a stitched wound for surgical drainage tube 2 cm above the firearm injury wound. Injury No.2.B: Firearm injury wound at back of right side 8 cm below right scapula within healing process measuring 3 cm x 1.5 cm both of above wounds corresponding injury No.2.A, 2.B of MLR dated 22.05.2017. The doctor opined that the death occurred due to cumulating effect of firearm injury causing damage to vital organs leading to surgical intervention and failure of patient revival. The doctor described the duration between injuries and death within 7-days and between death and postmortem within 4 to 5 hours. 7. After the conclusion of prosecution evidence, Qalab Abbas & Amjad Pervaiz (appellants) were examined under section 342 Cr.P.C. during which they were asked the questions arising out of the prosecution evidence but they denied almost all those questions while pleading their innocence and false implication with the case. Appellants neither opted to make statement under Section 340(2), Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, Qalab Abbas & Amjad Pervaiz (appellants) were convicted and sentenced as afore-stated, hence the instant criminal appeals, PSLA and murder reference. 8. It is contended on behalf of the appellants that there is a delay of about three and half hours in reporting the incident to police for which no plausible explanation has been offered by the prosecution. The eyewitnesses who appeared before the trial court in support of the ocular account are chance witnesses, thus their statements cannot be relied upon for maintaining the convictions awarded to the appellants. The eyewitnesses made dishonest improvements in order to bring the case of the prosecution in line with the medical evidence. The medical contradicts the ocular account. The recovery of Kalashnikovs affected at the instance of the appellants was foisted upon them just to strengthen the weak prosecution case. The motive set out in the FIR remained unproved throughout the whole trial. In these circumstances, learned counsel argued that the convictions and sentences awarded to the appellants are liable to be set-aside warranting their clean acquittal. 9. On the other hand, learned Deputy Prosecutor General well assisted by learned counsel for the complainant submitted that the matter was reported to the police within a reasonable time. The eyewitnesses properly explained their presence at the spot and they while appearing before the trial court narrated the stance of the prosecution in a very natural manner. The medical evidence is in line with the ocular account. The prosecution also sought corroboration from the recovery of Kalashnikovs at the instance of the appellants as well as duly proved motive. It was thus prayed that the convictions and sentences awarded to the appellants be maintained. 10. We have gone through the case file, heard pro and contra arguments of the learned counsel for the parties well assisted by the Deputy Prosecutor General and perused the record.
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11. It evinces from minute perusal of the record that the case in hand has emerged from an unfortunate incident which took place on 22.05.2017 at about 6:20 p.m. within the territorial jurisdiction of Police Station Miana Gondal. During the occurrence two persons, namely Umar Hayat and Tahir Imran lost their lives and besides that, another person namely Mazhar Iqbal (PW.3) statedly received a firearm injury on his right thumb. In the FIR (Exh.CW.3/A), the allegation of committing the crime was pointed towards a bunch of four nominated accused, namely, Qalab Abbas, Pervaiz son of Muhammad Hussain, Pervaiz son of Sardar Ali and Umar Hayat, whereas four unknown persons were also implicated in the case, however, out of them Fateh Muhammad (complainant) by filing an application on 22.05.2017 involved only accused Faheem who allegedly was standing at the time of occurrence while having weapon pointing towards the complainant- party. Out of the afore-said accused, Qalab Abbas (appellant) and Amjad Pervaiz son of Muhammad Hussain (appellant) were handed down guilty verdict, whereas accused Umar Hayat, who was ascribed the role of raising Lalkara and Faheem Ashraf who was standing at the place of occurrence while having weapon pointing towards the complainant-party, earned acquittal from the trial court against whom Petition for Special Leave to Appeal No.17995 of 2020 was filed by Fateh Muhammad (complainant). While adverting to the merits of the case, we have noted that during trial the tale of crime was knitted by two eyewitnesses, namely, Nazim Hussain (PW.2) and Mazhar Iqbal (PW.3). According to them, on 22.05.2017 at about 6:20 p.m., they along with complainant-Fateh Muhammad, Umar Hayat and Tahir Imran were fitting drainage pipe in the street. In the meantime, Qalab Abbas, Amjad Pervaiz, Pervaiz Akhtar, Faheem along with three unknown accused equipped with firearms and Umar Hayat empty handed arrived there. Accused Umar Hayat exhorted to the effect that Umar Hayat (deceased) and others be taught a lesson for fitting the drainage pipe, upon which Qalab Abbas fired shots from his weapon which hit beneath the left armpit and left side of chest of Umar Hayat and at the left flank of Tahir Imran. Amjad Pervaiz also fired from his weapon which hit Umer Hayat on the right side of his chest and landed at the left bicep of Tahir Imran and on the right thumb of Mazhar Iqbal. 12. Before marching any further it is noted that the distance between the place of occurrence and Police Station Miana Gondal is 04-kilometers. We have also observed that one of the eyewitnesses, namely Nazim Hussain (PW.2) during cross-examination specifically admitted that cell No.0344- 4973803 was in the use of his father Fateh Muhammad (complainant). Therefore, immediately after the incident the matter could conveniently be reported to the police by the complainant through his mobile phone. However, we have noticed that the information regarding the incident was imparted to the police by the complainant at 9:30 p.m. on 22.05.2017 i.e. after the delay of about 3-hours and 10-minutes of the incident by submitting a written application before Sajjad Azam SI (CW.8) at Miana Gondal Chowk. It also unveils from the perusal of the record that Tahir Imran in injured condition was shifted to DHQ Hospital Mandi Bahauddin at 7:45 p.m. The perusal of MLC (Exh.PJ) of Tahir Imran reveals that he was brought to the hospital by Falak Sher 767/HC. In this way, it can easily be derived that the matter had already been brought to the notice of police much before 7:45 p.m. but the FIR was chalked out at 9:45 p.m. In this view of the matter, FIR (Exh.CW.3/A) in this case has been chalked out with a considerable delay and that too after due consultation and deliberation. Thus, a cautious approach ought to be adopted by the Courts for evaluating the evidence especially in a case of capital charge. Reliance is placed upon the case reported as Muhammad Jahangir and another v. The State and others (2024 SCMR 1741), wherein the Supreme Court of Pakistan held as under: - ".......perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant
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had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution." 13. It is further evident from the perusal of record that at the time of registration of FIR (Exh.CW.3/A) Fateh Muhammad (complainant) alleged that Qalab Abbas (appellant) fired a shot from his weapon which hit Umar Hayat at his right armpit, whereas on the same day he by making a supplementary statement changed the seat of injury from right armpit to left armpit which later on proved to be fatal and took the life of Umar Hayat as is obvious from the statement of Dr.Farrukh Mehmood (PW.1). Admittedly, complainant Fateh Muhammad died prior to recording of his statement and said FIR was produced as Exh.CW.3/A but he was not cross-examined in order to explain the afore-mentioned contradiction. In such eventuality, the FIR (Exh.CW.3/A) cannot be used as a corroborative piece of evidence for upholding the conviction and sentence of the appellants especially in the case of capital charge. In a recent judgment reported as Muhammad Ramzan v. The State (2025 SCMR 762), the Supreme Court of Pakistan while dealing with the matter in issue held as under:- "It is settled law that FIR by itself is not a substantive piece of evidence unless its contents are affirmed on oath in the witness box by its maker and its maker is subjected to the test of cross- examination. In view of Articles 40 and 153 of QSO, FIR being a previous statement can only be used for contradicting its maker but unless the same is not (Sic) proved through its maker, cannot be used as a substantive piece of evidence in favour of the prosecution's case." 14. As stated above Fateh Muhammad (complainant) died after filing the private complaint (Exh.PA), therefore, the ocular account in this case was furnished by Nazim Hussain (PW.2) and Mazhar Iqbal (PW.3). Both the eyewitnesses while appearing before the trial court made material contradictions regarding the place of occurrence, the nature of injuries received by deceased Umar Hayat and Tahir Imran as well as the manner/mode in which the incident occurred. In this regard, we have noted that the role assigned to Qalab Abbas (appellant) by both the eyewitnesses during the course of trial was that he fired a shot from his weapon which hit Umar Hayat (deceased) at the left armpit. Such stance of both the PWs was confronted with their statements recorded under Section 161 Cr.P.C., wherein it was not so recorded rather the right armpit was mentioned. The improvement so made by both the eyewitnesses is to bring the case of prosecution in line with the medical evidence. Through such dishonest improvement they compromised their integrity which left a question mark upon the intrinsic worth of the depositions made by them. The approach of the Supreme Court of Pakistan qua the material dishonest improvement is consistently against the maker of such statement, whereby the fresh facts introduced during trial are discarded from consideration. Reference in this context is made to the case reported as Muhammad Nasir Butt and 2 others v. The State and others (2025 SCMR 662) wherein the Supreme Court of Pakistan held as under:- "In their statements recorded at the trial, the complainant Zahid Amjad (PW-3), Muhammad Hamid Amjad (PW-4) and injured Muhammad Majid Amjad (PW-10) have made dishonest improvements for assigning specific role to each accused, which creates serious doubt about the veracity of their testimony and it is not safe to place reliance on their statements." We have further observed that the prosecution also claimed that since Mazhar Iqbal (PW.3) during the occurrence also received a firearm injury at his right thumb, hence the said injury is considered as stamp of his presence at the place of occurrence. In this context, we have observed that Umar Hayat died immediately on reaching the hospital, whereas two injured namely Tahir Imran and Mazhar Iqbal (PW.3) were shifted to DHQ Hospital, Mandi Bahauddin for treatment by complainant party itself. However, it did not come in the statements of the eyewitnesses that how and through which means they shifted the victims to hospital for medical treatment. Nazim Hussain (PW.2) deposed that he along with Fateh Muhammad (complainant) put the injured Umar Hayat, Tahir
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Imran and Mazhar Iqbal in the vehicle and reached DHQ Hospital Mandi Bahauddin. Due to the injuries Umar Hayat passed away at the hospital, whereas Tahir Imran was referred to Aziz Bhatti Shaheed Hospital, Gujrat by the doctor. Here we are astonished to observe that Nazim Hussain (PW.2) nowhere mentioned that Mazhar Iqbal (PW.3) was also examined at DHQ Hospital Mandi Bahauddin by the doctor who issued his MLC in proof of the injury received by him at the spot. During cross-examination Nazim Hussain (PW.2) improved his earlier stance and deposed that he and his father shifted Umar Hayat and Tahir Imran deceased from the spot and three injured were shifted in an ambulance which by chance arrived in the village for dropping a patient. Nazim Hussain (PW.2) further disclosed the fact that his clothes as well as that of his father were stained with blood however the police did not take into possession their clothes to ensure the above said fact. Nazim Hussain (PW.2) took the stance that they reached at DHQ, Hospital Mandi Bahauddin at 7:30/7:45 p.m. on the day of occurrence. Contrarily, Mazhar Iqbal injured (PW.3) did not support the stance of Nazim Hussain (PW.2) and uttered not a single word as to what happened to both the injured and how they along with him were shifted to hospital and by whom. Mazhar Iqbal (PW.3) further confused the stance of prosecution by stating during cross-examination that he remained at DHQ Hospital Mandi Bahauddin for about 11/2 hours where he was checked by the doctor, but in the same breath deposed that he was checked at THQ Hospital Malakwal by the doctor in the company of Nazim Hussain (PW.2). It is further crystal clear from the evidence of Sajjad Azam SI (CW.8) that Fateh Muhammad (complainant) appeared before him at 09:30 p.m. at Miana Gondal Chowk with the application for the registration of formal FIR, which was sent to the Police Station through Zafar Iqbal 305/C. Meanwhile he called Falak Sher 767/HC and was handed over the person of Tahir Imran injured for his medical examination, who escorted him in injured condition along with police papers to DHQ Hospital Mandi Bahauddin. In this way, if the injured was shifted to DHQ Hospital, Mandi Bahauddin earlier at 07:30/07:45 p.m. by complainant party itself then the MLC should not have contained the name of Falak Sher who produced the injured for MLC. Moreover, in the MLC (Ex.PJ) name of the injured has been mentioned as Tahir Iqbal instead of Tahir Imran and the same also lacks the mentioning of history about nomination of the accused who committed the occurrence with him. In this way, both the claims of complainant regarding shifting of injured at DHQ Hospital Mandi Bahauddin by complainant party immediately after the occurrence and by IO/CW.8 stood falsified by the MLC (Exh.PJ) of Tahir Imran which contained the…
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