Full Judgment Text & Judicial Ruling

2026 Y L R 712

2026 Y L R 712 [Lahore] Before Sadiq Mahmud Khurram and Ch. Sultan Mahmood, JJ Muhammad Abid---Appellant Versus The State---Respondent Criminal Appeal No. 34-J and Murder Reference No. 01 of 2023, heard on 19th March, 2025. (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---No justification for the presence of eye-witnesses at the time and place of occurrence---Chance witnesses, evidence of---Scope---Accused was charged for committing murder of the son of complainant by firing---Complainant/mother of the deceased and his maternal uncle/eye-witnesses were admittedly not the residents of the place of occurrence---In this manner, the said prosecution witnesses could be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place and time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same---Said witnesses failed to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place---Complainant 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 karyana store when the accused came there and attacked the deceased---Complainant 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 complainant, the Court had arrived at an irresistible conclusion that she failed to prove her stated reason for her presence at the place of occurrence---In this regard, complainant 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---Investigating Officer of the case also did not collect any evidence with regard to the claim of complainant that on the day of occurrence, she had accompanied the deceased for the purpose of taking medicines from the hospital---Other eye-witness also could not furnish any explanation for his sudden presence at the place of occurrence---Complainant admitted during cross-examination that eye-witness was his brother and a tailor by profession and also that he resided in the same house with her---With regard to the reason for his presence at the place of occurrence, eye-witness claimed that he had accompanied a given up prosecution witness who had to purchase exotic birds from a shop in front of the karyana store and both of them were present at the said shop when he witnessed the incident---Person who had to purchase the birds and whom eye-witness 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 eye-witness was present with 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 trial Court in support of the claim of eye-witness that he indeed was present at his shop, at the time when the occurrence took place---Neither in the un-scaled site plan as prepared by the Investigating Officer of the case nor in the scaled site plan of the place of occurrence as prepared by draftsman any shop of any birds seller had been marked---In this manner, the complainant and eye-witness failed miserably to prove that they had indeed arrived at the place of occurrence, before the occurrence---Proven failure of the prosecution witnesses to provide a reason for their presence at the place of occurrence, on the day of the incident, had repercussions, proving that there was no reason actually for the said witnesses to be visiting the place of occurrence---Very inception of the prosecution case was thus put in doubt due to the said abject failure of the witnesses---Failure of the prosecution to prove their claims regarding the reason for their presence at the place of occurrence had vitiated the trust in complainant and eye-witness as being truthful witnesses---Appeal against conviction was allowed, in circumstances. 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)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses at the time and place of occurrence not proved---Accused was charged for committing murder of the son of complainant by firing---Stance set up by the prosecution in the present case was that the complainant and eye-witness were present at the time of the death of the deceased and had remained with the dead body---However, in the inquest report, 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 showed that the dead body was not attended to by the said witnesses as claimed---Mouth and eyes of the deceased were found open at the time of preparation of the inquest report, thus, if the witnesses were present then, at least after the death, as was a consistent practice of such close relatives, they would have closed the eyes and mouth of the deceased on his expiry, however, they did not---Thus, the open eyes and mouth of the deceased led to an adverse interpretation against the prosecution's version regarding the presence of the said witnesses at the place and time of occurrence---Said fact by itself indicated that no one was present with the deceased till his death---Both the witnesses were not mentioned either in column No.4 of the inquest report as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report nor were mentioned at page 4 of the inquest report as witnesses who were present at the time of preparation of the inquest report---Said fact also pointed towards the absence of the said witnesses at the place of occurrence and time of preparation of the inquest report by the Investigating Officer of the case---Appeal against conviction was allowed, in circumstances. Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel. (c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account and medical evidence---Contradictions---Accused was charged for committing murder of the son of complainant by firing---According to the statements of eye-witnesses, the appellant had fired at the deceased 5/6 times, with the bullets hitting the deceased on various parts of his body---Contrary to the statements of said witnesses that the deceased had been hit by 5/6 bullets, Medical Officer who conducted the post mortem examination of the dead body of the deceased observed the presence of as many as fifteen injuries on the dead body of the deceased---In this manner, according to the observations of Medical Officer who conducted the post mortem examination of the dead body of the deceased, as many as eight bullets had hit the deceased whereas according to the witnesses the appellant had only been hit 5 to 6 times---In this manner, the witnesses failed to explain the presence of three other injuries on the body of deceased which were observed by Medical Officer---Contradictions in the ocular account of the occurrence, as narrated by the eye-witnesses and the medical evidence as furnished by Medical Officer, sounded the death knell for the prosecution case against the appellant---Eye-witnesses were proved not to have deposed truthfully with regard to the appellant---Inconsistency in the ocular account of the occurrence and the medical evidence was of such magnitude that it had resulted in proving that the prosecution witnesses had not witnessed the occurrence and it was for this reason that the flaw cropped up---Contradiction in the ocular account of the occurrence, as narrated by the eye-witnesses and the medical evidence as furnished by Medical Officer clearly established that the eye-witnesses miserably failed to prove their presence at the place and time of occurrence---Had the eye-witnesses had seen the occurrence then there did not exist any possibility that they would have fallen into error---In such a case, the ocular account was to be rejected as being contrary to the medical evidence---Appeal against conviction was allowed, in circumstances. Muhammad Ashraf v. The State 2012 SCMR 419; Usman alias Kaloo v. The State 2017 SCMR 622; Muhammad Hussain v. The State 2008 SCMR 345; Amin Ali and another v. the State 2011 SCMR 323; Irfan Ali v. The State 2015 SCMR 840; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 rel. (d) Penal Code (XLV of 1860)--- ----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding material witnesses---Adverse presumption---Accused was charged for committing murder of the son of complainant by firing---Record showed that the persons who had their residences or their shops near or around the place of occurrence neither appeared during the investigation of the case nor before the Trial Court in support of the prosecution case---It was admitted by the eye-witnesses that the place where the incident took place was surrounded by inhabited houses and shops---Investigating Officer of the case made no effort to record the statements of the persons who had their residences or their shops near or around the place of occurrence during the course of the investigation---Failure of the prosecution to produce the said persons who had their shops and houses at and around the place of occurrence raised the presumption that had they been produced before the trial Court, they would not have supported the prosecution case---Article 129 of the Qanun-e-Shahadat, 1984 provided that if any evidence available with the parties was not produced, then it should be presumed that had that evidence been produced, the same would have gone against the party producing the same---Investigating Officer was under a binding duty to collect evidence and his failure to record the statement of the residents of the houses and shops around the place of occurrence had to be taken as a circumstance belying the prosecution's case---Purpose of the trial was the discovery of truth---Prosecution's case suffered from inherent defects which were irreconcilable as they were---Compounding the failures of the prosecution was the fact that the persons, admittedly residents around the place of occurrence, were not produced as witnesses---Appeal against conviction was allowed, in circumstances. Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel. (e) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in reporting the matter to the police---Consequential---Accused was charged for committing murder of the son of complainant by firing---Eye-witnesses claimed that after the occurrence had taken place at about 04.15 p.m., they took the deceased in an injured condition to the hospital within ten minutes of the incident---However, the deceased was declared to be dead on arrival at the hospital and thereafter the Investigating Officer of the case arrived at the THQ hospital and received the written application of complainant at about 05.10 p.m.---Claim of the eye-witnesses that they arrived at the THQ hospital within ten minutes of the occurrence and the written application was presented to the Investigating Officer of the case at about 05.10 p.m. was totally belied by the statement of Medical Officer who stated that the dead body was brought to the hospital at 10.30 p.m.---Moreover, according to the statement of the Investigating Officer of the case, the Crime Scene Unit had also visited the place of occurrence and it was at the place of occurrence that the Crime Scene Unit handed over to him two sealed parcels and two Exhibit Sheets which he then took into possession through recovery memo---However, the perusal of the Exhibit Sheets as prepared by the Crime Scene Unit revealed that the Crime Scene Unit had taken the swabs stained with the blood of the deceased at 10.01 p.m. and had taken to buccal swabs of the deceased from inside the mortuary of THQ hospital at 09.41 p.m., contradicting the statement of the Investigating Officer of the case, that he had received the two sealed parcels and two Exhibit Sheets as prepared by Crime Scene Unit at the place of occurrence, when he was present there and had then proceeded to the THQ hospital---All these facts of the prosecution case denuded the fact that the written application of complainant was not received at the time it was claimed to have been---Furthermore, none of the eye-witnesses reported the matter to the police and the Investigating Officer of the case on his own arrived at the hospital after having received information regarding the incident---Scrutiny of the statements of the eye-witnesses revealed that the written application as submitted by complainant was neither prompt nor spontaneous or natural, rather was a contrived, manufactured and a compromised document---No corroboration of the prosecution evidence could be found from the said written application of complainant---Sufficient doubts had arisen and inference against the prosecution had to be drawn in that regard---Appeal against conviction was allowed, in circumstances. Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel. (f) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of seven hours in conducting the postmortem examination on the dead body of the deceased---Consequential---Accused was charged for committing murder of the son of complainant by firing---Occurrence took place at about 04.15 p.m. on 22.04.2022, and the postmortem examination of the dead body of the deceased was conducted after much delay---According to Medical Officer, he conducted the post mortem examination of the dead body of the deceased on 22.04.2022 at 11.00 p.m. i.e. after as many as seven hours after the death of deceased---In the present case, not only the post mortem examination of dead body was delayed but even the dead body of the deceased was brought to the hospital at 10.30 p.m.---Moreover, Medical Officer, who conducted the post mortem examination of the dead body of deceased and prepared the post mortem examination report, gave the time between death and post mortem examination as being within 6 to 8 hours---Reason which was apparent for the delayed conducting of the post mortem examination of the dead body of deceased was that by that time the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion out a false narrative of the occurrence---No explanation was offered to justify the said delay in conducting the post mortem examination and the delay in escorting the dead body of the deceased to the hospital itself and the delay in conducting of the post mortem examination---Said fact clearly established that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning---Appeal against conviction was allowed, in circumstances. Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. the State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel. (g) Penal Code (XLV of 1860)--- ----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Appreciation of evidence---Non-association of private witnesses---Inconsequential---Police witnesses, evidence of---Reliance---Accused was charged for committing murder of the son of complainant by firing---In the present case, pistol was recovered from the appellant---However, the same could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol from the appellant which was in clear violation of S.103, Cr.P.C---Provisions of S.103, Cr.P.C, unfortunately, were honoured more in disuse than compliance---Therefore, the evidence of the recovery of the pistol from the appellant could not be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898 rel. (h) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties---Possibility of fabrication---Accused was charged for committing murder of the son of complainant by firing---Appellant was arrested on 26.04.2022, the pistol was recovered from the appellant on 30.04.2022---However the empty shells of the bullets taken into possession from the place of occurrence on 22.04.2022 were sent to Forensic Science Agency on 28.04.2022 though there was no reason for keeping the shells of the bullets, which were taken into possession of on the day of occurrence, at the Police Station and not sending them to the office of Forensic Science Agency, till 28.04.2022 i.e. after the appellant had been arrested on 26.04.2022---In this manner the report of Forensic Science Agency, regarding the comparison of the shells of the bullets taken from the place of occurrence with the pistol recovered from the appellant, had no evidentiary value as the possibility of fabrication was apparent---Thus, the alleged recovery of the pistol from the appellant was not proved and the same could not be used as a circumstance against the appellant---Even otherwise, ocular account had been disbelieved in this case, hence, the evidence of the recovery of the pistol from the appellant would have no consequence---It was an admitted rule of appreciation of evidence that recovery is only a supporting piece of evidence and if the ocular account is found to be unreliable, then the recovery has no evidentiary value---Appeal against conviction was allowed, in circumstances. Muhammad Amin v. The State and another 2019 SCMR 2057 rel. (i) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of the son of complainant by firing---Motive of the occurrence as stated by the eye-witnesses in their statements recorded by the Trial Court was that the appellant suspected that the deceased had given information to the police about the brother of the appellant who thereafter was killed in an encounter with the police---Statements of the eye-witnesses showed that the motive as alleged could not be proved---During cross-examination, both the eye-witnesses admitted that neither the deceased nor the witnesses had reported the matter of deceased facing threats to his life at the hands of the appellant---Investigating Officer of the case, also did not collect any evidence with regard to the motive of the incident so as to establish that there was any grievance developing in the heart of the appellant as against the deceased which motivated him to act in the manner in which he did---Prosecution witnesses failed to provide evidence enabling to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the qatl-i-amd of the deceased---There was a haunting silence with regard to the minutiae of motive alleged---No independent witness was produced by theprosecution to prove the motive as alleged---Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence---Appeal against conviction was allowed, in circumstances. Muhammad Javed v. The State 2016 SCMR 2021 rel. (j) Criminal trial--- ----Motive---Scope---Motive was only a supporting piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made the basis of conviction. (k) Criminal trial--- ----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person is available, then its benefit would 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. Hassan Mahmood for Appellant. Riaz Ahmed, Deputy Prosecutor General for the State. Zahid Munir for the Complainant. Date of hearing: 19th March, 2025. Judgment Sadiq Mahmud Khurram, J.---Muhammad Abid son of Muhammad Amin (convict) was tried by the learned Additional Sessions Judge, Haroonabad in the case FIR 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. 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 FIR (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…

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