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Petitioner: Muhammad Arif VS Respondent: StateHonorable Justice Farooq HaiderMalik Ishrat Hussain, Maqbool Ahmad Qureshi
2025 Y L R 2472 [Lahore] Before Farooq Haider and Ali Zia Bajwa, JJ Muhammad Arif---Appellant Versus The State---Respondent Criminal Appeal No. 39441-J and Murder Reference No. 163 of 2022, decided on 30th June, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, munaqqilah---Appreciation of evidence---Delay of 03 hours and 15 minutes in lodging the FIR---Inconsequential---Accused was charged for committing murder of brother of the complainant by firing and also causing firearm injuries to the complainant---Occurrence in this case took place on 27.08.2019 at 01:00 p.m. whereas FIR was registered at 04:15 p.m.---As per statement of complainant, his elder brother was murdered in this case and complainant himself also received firearm injuries during the occurrence, who was taken to hospital for treatment and on his statement recorded in the hospital by Police Officer; FIR was recorded by Police Official at 04:15 p.m. on 27.08.2019---Natural phenomenon is that generally efforts are made on priority basis to firstly shift injured persons to the hospital in order to save their lives and then to report the matter to the police---In such peculiar facts and circumstances of instant case, there was no undue delay in registration of the case---Circumstances established that the prosecution had proved its case beyond shadow of doubt, however, due to mitigating circumstances, the death sentence awarded to the accused by the Trial Court was reduced to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, munaqqilah---Appreciation of evidence---Ocular account proved---Accused was charged for committing murder of brother of the complainant by firing and also causing firearm injuries to the complainant---Ocular account in instant case comprised of injured/ complainant, mother and two sisters of deceased---Parties were closely related to each other as appellant was real uncle/chacha of the complainant as well as sisters of the deceased---Complainant and other prosecution witnesses as well as the appellant were residing in one and the same house where that occurrence took place in broad daylight, hence injured/ complainant, mother and two sisters of deceased were natural witnesses of the occurrence---In such scenario, there was no question of misidentification of the appellant; any cogent and plausible reason to falsely implicate the appellant by complainant and other eye-witnesses in this case could not come on the record and in such circumstances, substitution of the real culprit was rare phenomenon---Complainant and other eye-witnesses deposed regarding said facts i.e. detail of the occurrence as well as vital aspects of the case of prosecution during trial of the case in straightforward manner and remained consistent during recording of their evidence, neither their credit could be impeached nor evidentiary value of their testimony could be minimized inspite of searching cross-examination by defence rather their evidence had been found as confidence inspiring, truthful and thus reliable---Circumstances established that the prosecution had proved its case beyond shadow of doubt, however, due to mitigating circumstances, the death sentence awarded to the accused by the Trial Court was reduced to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed. Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Sajid Mehmood v. The State 2022 SCMR 1882; Azhar Hussain and another v. The State and others 2022 SCMR 1907 and Nasir Ahmed v. The State 2023 SCMR 478 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, munaqqilah---Appreciation of evidence---Discrepancies in the statements of witnesses---Inconsequential---Accused was charged for committing murder of brother of the complainant by firing and also causing firearm injuries to the complainant---Occurrence took place on 27.08.2019 and statements of witnesses of ocular account were recorded in the year 2021---Minor discrepancies do appear with the passage of time, however, no weight could be given to said discrepancies and trivial inconsistencies in the statements of the witnesses as the same neither had any adverse effect nor could demolish the case of prosecution---Circumstances established that the prosecution had proved its case beyond shadow of doubt, however, due to mitigating circumstances, the death sentence awarded to the accused by the Trial Court was reduced to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed. Sajid Mehmood v. The State 2022 SCMR 1882; Muhammad Ali and others v. The State and others 2022 SCMR 2024 and Muhammad Abbas and another v. The State 2023 SCMR 487 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, munaqqilah---Appreciation of evidence---Delay of about 16 to 26 hours in conducting postmortem upon the dead body of the deceased---Inconsequential---Accused was charged for committing murder of brother of the complainant by firing and also causing firearm injuries to the complainant---Medical evidence in this case comprised of Medical Officer, who medically examined injured of the case/ complainant and Medical Officer, who conducted postmortem examination over dead body of deceased of the case on 28.08.2019 at about 01:55 a.m.---Though Medical Officer mentioned time between injury and death as "6 to 8" hours and between death and postmortem as "16 to 26" hours yet it had been mentioned that cause of death was injuries to major pelvic organs, cavity & major blood vessels---When injuries had been caused to major blood vessels, then it resulted in death without loss of much time---On the one hand, time between injury and death mentioned as "6 to 8" hours was not tallying with said state of affairs i.e. injuries to major blood vessels whereas on the other hand, time between death and postmortem examination mentioned as "16 to 26" hours was not supported by any valid reason hence said opinion was ipse dixit i.e. without any supporting material and thus could not be preferred over ocular account---In such peculiar facts and circumstances of the case, postmortem examination over dead body of deceased of the case could not be termed as unduly delayed---Even otherwise, in the case of firearm injuries, photographic view of the occurrence neither could be captured by the human eye nor could be expected from the witness because speed of bullet was more than speed of sound i.e. bullet hit first and its sound was heard subsequently by the witness, therefore, in the pandemonium situation at the time and place of occurrence, when bullets were being fired through firearm weapon at the deceased or injured/ victim, then any discrepancy regarding number and locale of injuries could not be emphasized in stricto-sensu---Circumstances established that the prosecution had proved its case beyond shadow of doubt, however, due to mitigating circumstances, the death sentence awarded to the accused by the Trial Court was reduced to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed. Majeed Masih v. The State 2022 SCMR 1675; Maskeen Ullah and another v. The State and another 2023 SCMR 1568; Abdur Rauf v. The State and another 2003 SCMR 522; Nasir Ahmed v. The State 2023 SCMR 478 and Ali Taj and another v. The State 2023 SCMR 900 rel. (e) Criminal trial--- ----Ocular account and medical evidence---Confliction---Scope---If ocular account is confidence inspiring, then it cannot be discarded/thrown away by the medical evidence. Sajid Mehmood v. The State 2022 SCMR 1882; Azhar Hussain and another v. The State and others 2022 SCMR 1907; Aqil v. The State 2023 SCMR 831; Abdul Wahid v. The State 2023 SCMR 1278 and Muhammad Hanif v. the State 2023 SCMR 2016 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, munaqqilah---Appreciation of evidence---Motive proved---Accused was charged for committing murder of brother of the complainant by firing and also causing firearm injuries to the complainant---Motive behind the occurrence as per fard bian/statement of complainant was that appellant was demanding his share from the house; he started altercation in this regard---House was in the name of paternal grandfather of the complainant---Paternal grandmother of the complainant and the complainant as well as his family had been convincing appellant that after marriage of sisters of the complainant, share would be given to appellant after selling the house and marriage of sister of complainant was fixed after two months, however, appellant was adamant on immediate sale of the house and obtaining his share---Said motive was mentioned in fard bian/ statement of the complainant and all witnesses had categorically stated regarding the same so it had been proved---Circumstances established that the prosecution had proved its case beyond shadow of doubt, however, due to mitigating circumstances, the death sentence awarded to the accused by the Trial Court was reduced to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-F(iii) & 337-F(vi)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, munaqqilah---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Accused was charged for committing murder of brother of the complainant by firing and also causing firearm injuries to the complainant---Complainant stated that on the day of occurrence, prior to the occurrence, he went along with accused for his medicine and accused was suffering from respiratory disease---Complainant also stated before the Court during his statement that accused asked that whether house was to be sold or not and when brother of the complainant replied that after the marriage of the sisters, property would be distributed, accused brought gun from other room and fired straight shots and committed the occurrence---Such state of affairs reflected that it was not premeditated occurrence rather took place under the heat of passion---When all these factors were taken into consideration in totality then they constituted mitigating factor for reduction in quantum of sentence to the extent of offence under S.302(b), P.P.C---Therefore, sentence of death awarded to appellant by the Trial Court under S.302(b), P.P.C., was converted to imprisonment for life---With said modification in sentence, appeal against conviction was dismissed, in circumstances. Bakht Munir v. The State and another 2020 SCMR 588; Ghaffar Ali v. The State and another 2021 SCMR 354 and Ali Muhammad v. The State 2020 SCMR 2143 rel. Malik Ishrat Hussain along with Maqbool Ahmad Qureshi for Appellant. Muhammad Tariq Sukhera, Advocate/Defence Counsel at State expense for Appellant. Ms. Nuzhat Bashir, Deputy Prosecutor General along with Jahangir, ASI for the State. Nemo for the Complainant {learned Deputy Prosecutor General under instructions of police official (present in Court) and after herself going through the record apprises that Babar Tariq (complainant of the case) has been duly served with notice regarding pendency of instant appeal for today before this Court however he has not come to the Court}. Date of hearing: 30th June, 2025. Judgment Farooq Haider, J.---This single judgment will dispose of Crl. Appeal No.39441-J/2022 filed by Muhammad Arif (appellant) against his "convictions and sentences" and Murder Reference No.163/2022 sent by trial court, as both the matters have arisen out of one and the same judgment dated: 31.05.2022 passed by learned Addl. Sessions Judge, Lahore/trial court. 2. Muhammad Arif (appellant) was tried in case arising out of FIR No.967/2019 dated: 27.08.2019 registered under Sections: 302, 324 P.P.C (offences under Sections: 337 F(iii), 337 F(vi) P.P.C were added subsequently) at Police Station: Ghaziabad, Lahore; trial court after conclusion of the trial vide impugned judgment dated: 31.05.2022 has convicted and sentenced the appellant as under: -
Convictions
Sentences
Under Section: 302(b) P.P.C
"Death" as Taz'ir (for committing Qatl-e-Amd of Muhammad Dilawar) with payment of compensation Rs.5,00,000/- to the legal heirs of the deceased under Section: 544-A Cr.P.C. recoverable as arrears of land revenue and in default of payment of compensation amount to further undergo S.I. for six months.
Under Section: 324 P.P.C
"Seven Years' Rigorous Imprisonment" (for an attempt to commit Qatal-e-Amd of Babar Tariq/injured) with fine of Rs.10,000/- and in default thereof to further undergo S.I. for six months.
Under Section: 337 F (iii) P.P.C
"Three Years' Rigorous Imprisonment" (for causing hurt on the person of Babar Tariq/injured) with payment of "Daman" amounting to Rs.50,000/-.
Under Section: 337 F (vi) P.P.C
"Five Years' Rigorous Imprisonment" (for causing hurt on the person of Babar Tariq/injured) with payment of "Daman" amounting to Rs.100,000/-. Appellant/convict was further directed to pay compensation under Section: 544-A Cr.P.C. amounting to Rs.100,000/- to Babar Tariq/injured.
It was directed that appellant would be kept in jail till payment of amount of Daman to Babar Tariq (injured of the case); all the sentences were ordered to run concurrently and benefit of Section: 382-B Cr.P.C. was also extended in favour of the appellant. 3. Brief facts, as per Fard Bian/statement made by Babar Tariq (complainant/PW-4) to Ruman Iqbal, T/S.I. of Police Station: Ghaziabad, Lahore (PW-9) for registration of the case are that he is resident of House No.34 Street No.64, Mohallah Tanvirabad, Ghaziabad, Lahore and does work of ceiling whereas his elder brother Dilawar, aged about 25-years, does work of electrician and their uncle/chacha Arif son of Badar-ud-Din is residing with them in their house; father of the complainant has passed away six years ago and uncle/chacha Arif is living with them in the same house; uncle/chacha Arif started quarreling since some time with mother of the complainant Farzana Kausar widow of Tariq (deceased) for selling the house and giving him his share; said house was in the name of paternal grandfather of the complainant Badar-ud-Din and after his death, paternal grandmother of the complainant Mukhtaran Bibi, who was yet alive, had been opposing selling of the house till marriage of sisters of the complainant namely Kiran Shahzadi and Iram Shahzadi; complainant and others also have been making uncle/chacha Arif to understand to let them get their sisters married and thereafter his share would be given to him while selling the house; marriage of sister of the complainant Iram Shahzadi was going to be solemnized after two months but uncle/chacha Arif remained adamant for selling the house immediately and giving him his share otherwise to face physical/body loss; on 27.08.2019 at about 01:00 p.m., complainant along with his elder brother Dilawar son of Tariq, mother Farzana Kausar, sisters Kiran Shahzadi and Iram Shahzadi was present in the room in their house; suddenly uncle/chacha Arif armed with pistol entered in their room and raised lalkara to teach them a lesson for not giving share from the house; elder brother of the complainant Dilawar stepped forward and prohibited him from doing so, upon which, uncle/chacha Arif fired straight shots with pistol with intent to kill him, which hit below his umbilicus, who fell down in injured condition; complainant stepped forward to catch hold of uncle/chacha Arif, whereupon he also fired straight shots with pistol at the complainant with intent to kill him, which landed at his left leg and left wrist; on hue and cry of mother of the complainant Farzana Kausar and sisters Kiran Shahzadi and Iram Shahzadi, uncle/chacha Arif fled away from the spot; brother of the complainant succumbed to the injuries at the spot whereas he (complainant) was shifted to Services Hospital for treatment; besides the complainant, occurrence was witnessed by mother of the complainant Farzana Kausar and sisters Kiran Shahzadi and Iram Shahzadi. On the basis of aforementioned Fard Bian/statement (Ex.PA), FIR (Ex.PD) was chalked out by Mian Muhammad Aqeel T/ASI (PW-11). 4. After completion of investigation, challan report under Section: 173 Cr.P.C. was submitted in the Court against the appellant by placing his name in column No.3 of the same; appellant was formally charge sheeted, however, he pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, appellant was examined under Section: 342 Cr.P.C. but he refuted the allegations levelled against him; he neither opted to appear as his own witness under Section 340(2) Cr.P.C., nor produced any evidence in his defence. Trial court after conclusion of trial has convicted and sentenced the appellant as mentioned above through the impugned judgment dated: 31.05.2022. 5. Learned counsel for the appellant has submitted that convictions recorded against and sentences awarded to the appellant through impugned judgment are against the 'law and facts' and result of non-reading/ misreading of evidence, therefore, same are not sustainable in the eyes of law. Learned counsel for the appellant finally prayed for acquittal of the appellant. 6. Conversely, learned Deputy Prosecutor General has supported the impugned judgment and prayed for dismissal of the appeal. 7. Arguments heard. Record perused. 8. It has been noticed that as per case of prosecution, occurrence in this case took place on 27.08.2019 at 01:00 p.m. whereas FIR (Ex.PD) was registered at 04:15 p.m. As per statement of Babar Tariq (complainant/ PW-4), his elder brother Muhammad Dilawar was murdered in this case and complainant himself also received firearm injuries during the occurrence, who was taken to Services Hospital, Lahore for treatment and on his statement (Ex.PA) recorded in the hospital by Ruman Iqbal, T/S.I. (PW-9), FIR (Ex.PD) was recorded by Mian Muhammad Aqeel, T/ASI (PW-11) at 04:15 p.m. on 27.08.2019. It is natural phenomenon that generally efforts are made on priority basis to firstly shift injured persons to the hospital in order to save their lives and then to report the matter to the police. In such peculiar facts and circumstances of instant case, there is no undue delay in registration of the case. Ocular account in instant case comprises of Babar Tariq (injured of the case/complainant/PW-4), Farzana Kausar (PW-1), Iram Shahzadi (PW-2) and Kiran Shahzadi (PW-3). Parties are closely related to each other as appellant is real uncle/chacha of the complainant as well as of Iram Shahzadi and Kiran Shahzadi. Complainant and other prosecution witnesses (mentioned above) as well as the appellant were residing in one and the same house where this occurrence took place in broad daylight, hence Babar Tariq (injured of the case/complainant/PW-4), Farzana Kausar (PW-1), Iram Shahzadi (PW-2) and Kiran Shahzadi (PW-3) were natural witnesses of the occurrence. In above scenario, there is no question of misidentification of the appellant; any cogent and plausible reason to falsely implicate the appellant by Babar Tariq (complainant/PW-4) and other eye-witnesses in this case could not come on the record and in such circumstances, substitution of the real culprit is rare phenomenon in our society; case of "Irshad Ahmad and others v. The State and others" (PLD 1996 SC 138) can be advantageously referred on the subject, relevant portion from page No.143 of the same is as under:- "Undoubtedly, the substitution is a phenomenon of rare occurrence, because even the interested witnesses would not normally allow the real murderers of their relation to escape by involving innocent persons." Guidance on the subject has also been sought from the cases of "Sajid Mehmood v. The State" (2022 SCMR 1882), "Azhar Hussain and another v. The State and others" (2022 SCMR 1907) and "Nasir Ahmed v. The State" (2023 S C M R 478). Babar Tariq (complainant/PW-4), Farzana Kausar (PW-1), and Kiran Shahzadi (PW-3) deposed regarding aforementioned facts i.e. detail of the occurrence as well as vital aspects of the case of prosecution during trial of the case in straightforward manner and remained consistent during recording of their evidence, neither their credit could be impeached nor evidentiary value of their testimony could be minimized inspite of searching cross-examination by defence rather their evidence has been found as confidence inspiring, truthful and thus reliable. Iram Shahzadi while appearing as PW-2 during trial before the court stated that she went to the washroom for taking shower where she heard the fire shots and when she came out of the washroom after sometime, saw the accused fleeing away from the spot while armed with pistol and in this manner, though she did not claim herself as eye-witness yet did not depose against the occurrence. It goes without saying that in this case, occurrence took place on 27.08.2019 and statements of witnesses of ocular account i.e. Babar Tariq (injured of the case/complainant/PW-4), Farzana Kausar (PW-1) and Kiran Shahzadi (PW-3) were recorded in the year 2021; minor discrepancies do appear with the passage of time, however, no weight can be given to said discrepancies and trivial inconsistencies in the statements of the witnesses as same neither have any adverse effect nor can demolish the case of prosecution; in this regard, cases of "Sajid Mehmood v. The State" (2022 SCMR 1882), "Muhammad Ali and others v. The State and others" (2022 SCMR 2024) and "Muhammad Abbas and another v. The State" (2023 SCMR 487) can be safely referred. Medical evidence in this case comprises of Dr. Ghulam Yaseen (PW-15), who medically examined Babar Tariq (injured of the case/ complainant/PW-4) and Dr. Muhammad Shazeel Khan (PW-14), who conducted postmortem examination over dead body of Muhammad Dilawar (deceased of the case) on 28.08.2019 at about 01:55 a.m. Though he (PW-14) mentioned time between injury and death as "6 to 8" hours and between death and postmortem as "16 to 26" hours yet it is relevant to mention here that in the opinion, it has been mentioned that cause of death was injuries to major pelvic organs, cavity and major blood vessels and it is worth mentioning here that when injuries have been caused to major blood vessels, then it results death without loss of much time. It goes without saying that doctor (PW-14) did not mention about rigor mortis as well as colour of wound in the postmortem examination report; relevant portion of the statement of Dr. Muhammad Shazeel Khan (PW-14) in this regard is hereby reproduced as under:- "I have not mentioned in my postmortem examination report about the "rigor-mortis". I have not mentioned about the colour of the wound in my PMR." therefore, on the one hand, time between injury and death mentioned as "6 to 8" hours is not tallying with aforementioned state of affairs i.e. injuries to major blood vessels whereas on the other hand, time between death and postmortem examination mentioned as "16 to 26" hours is not supported by any valid reason hence said opinion is ipse dixit i.e. without any supporting material and thus cannot be preferred over ocular account. In above peculiar facts and circumstances of the case, postmortem examination over dead body of Muhammad Dilawar (deceased of the case) cannot be termed as unduly delayed; in this regard, guidance has been sought from the cases of "Majeed Masih v. The State" (2022 SCMR 1675) and "Maskeen Ullah and another v. The State and another" (2023 SCMR 1568). Hence ocular account has been supported/ confirmed by the medical evidence. So far as injuries Nos. 5 and 6 observed on the body of Babar Tariq (complainant/injured of the case) by Dr. Ghulam Yaseen (PW-15) are concerned, same may be result of falling of complainant after receiving the injuries. Even otherwise, in the case of firearm injuries, photographic view of the occurrence neither can be captured by the human eye nor can be expected from the witness because speed of bullet is more than speed of sound i.e. bullet hits first and its sound is heard subsequently by the witness, therefore, in the pandemonium situation at the time and place of occurrence, when bullets are being fired through firearm weapon at the deceased or injured/ victim, then any discrepancy regarding number and locale of injuries cannot be emphasized in…
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