Full Judgment Text & Judicial Ruling

2025 Y L R 1716 [Lahore] Before Shehram Sarwar Ch. and Sardar Akbar Ali, JJ Wasif Saeed---Appellant Versus The State and another---Respondents Criminal Appeal No. 56099, Murder Reference No. 208 and Criminal PSLA No. 56097 of 2021, decided on 6th March, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Delay of two hours and 15 minutes in reporting the matter to the police---Consequential---Accused were charged for committing murder of the husband of complainant by firing---Occurrence took place on 02.10.2018 at 09.00 pm and was alleged to have been seen by complainant and brother of the deceased, but matter was reported to the police on the same night at 11.15 pm i.e. with delay of about two hours and 15 minutes, despite the fact that police station was just 03-kilometres from the place of occurrence--- Thus, in the facts and circumstances of the instant case, the element of delayed registration of FIR was clear indicator of the fact that in fact it was a blind murder and inference could be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Delay of 15 hours and 30 minutes in conducting the postmortem examination of the dead body of deceased---Consequential---Accused were charged for committing murder of the husband of complainant by firing---In the postmortem report of deceased, the Medical Officer who conducted postmortem examination on the dead body of the deceased on 03.10.2018 at 01.30 pm had mentioned probable time between death and postmortem as 15 hours and 30 minutes---Thus, if that time was considered for the purposes of time of death, the occurrence would might be happened at 10.00 pm whereas as per prosecution's case the occurrence took place at 09.00 pm---As per prosecution's own case, the deceased succumbed to the injuries on the way to "S" Hospital and if so, why the dead body remained in "S" Hospital for a sufficient time for which no explanation had been offered by the prosecution and in that regard no report of any Medical Officer of the "S" Hospital, had been brought on the record---Another fact was very important and was missing that why the dead body of the deceased was escorted to the "G" Hospital even though postmortem of the deceased could have also been conducted at the attached mortuary of "M" Hospital, which was near "S" Hospital---Thus, there was obvious delay in sending the dead body to mortuary, as according to postmortem report, the police papers were received at 01:00 p.m. at the mortuary and thereafter postmortem examination was conducted at 01:30 p.m.---Complainant and brother of deceased were closely related inter-se to the deceased and both the witnesses of ocular account were the residents of the same vicinity---In such a situation if those witnesses were present at the place of occurrence and also witnessed the scene of occurrence then such an inordinate and unexplained delay would never have occurred---Thus, in the facts and circumstances of the instant case, the element of delay in preparation of police papers and also delayed post mortem were clear indicator of the fact that in fact it was a blind murder and inference could be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for conducting the postmortem examination with such a delay---Appeal against conviction was allowed, in circumstances. Mehmood Ahmed and others v. The State and another 1995 SCMR 127; Muhammad Nawaz v. The State 2024 SCMR 1731; Irshad Ahmed v. The State 2011 SCMR 1190 and Muhammad Ijaz alias Billa and another v. The State and others 2024 SCMR 1507 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Mode and manner of the occurrence doubtful---Accused were charged for committing murder of the husband of complainant by firing---Record showed that complainant admitted in her cross-examination that she was second wife of the deceased---Complainant was earlier married to "MA" from whom she got divorce on the basis of Khula---Complainant further admitted in her cross-examination that deceased was already married with "A" who after divorcing "A" contracted marriage with the complainant and that it was her love marriage as well as arranged marriage with deceased---Complainant further stated that she came to know about Nikah of her husband with female accused "RS" about 18/20 days prior to the occurrence---Complainant alleged that on receiving the telephone call from the accused, she along with deceased and other witnesses went to the house of female accused "RS"other wife of the deceased---It was an important factor and phenomenon in our society that first wife specifically tries to keep the new wife away from her family and she cannot tolerate her at any cost---By comparing four typical but contrasting marriages and examining the rules about the formation and breakup of polygamous marriages, the role of the pre-existing and new wife's consent (or not) and the economic consequences of poly-formation in ongoing and divorcing marriages, it was clear that the surpluses generated and distributions currently in place could both benefit and harm the co-wives---It did not appeal to the mind of a prudent man that why first wife i.e. complainant, who was also a school teacher, had accompanied her husband for reconciliation with her husband's co-wife, when her parents were not happy with their marriage and what necessitated the complainant to sit in the punchayat, which was not comprehendible---Appeal against conviction was allowed, in circumstances. (d) Criminal trial--- ----Dishonest improvements by witnesses in their evidence---Effect---Dishonest improvements made by a witness in his statement to strengthen the prosecution case would cast serious doubt about veracity of his statement and make the same untrustworthy and unreliable. Mst. Saima Noreen and another v. The State 2024 1310 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Presence of the complainant and witnesses at the time and place of occurrence not proved---Accused were charged for committing murder of the husband of complainant by firing---As per story of FIR, the complainant, eye-witness and the friends of deceased took the injured then deceased to "S" Hospital for treatment and after his death also escorted the dead body to the mortuary---Admittedly, no blood stained clothes of the witnesses and the friends of the deceased were taken into possession by the Investigating Officer and no explanation in that behalf had been advanced by the prosecution---Stance of the complainant and eye-witnesses was not only improbable, but also got no support from the record, thus, the prosecution had failed to prove the presence of the complainant and the eye-witnesses at the time and place of the occurrence---Appeal against conviction was allowed, in circumstances. Zafar Ali Abbasi and another v. Zafar Ali Abbasi and others 2024 SCMR 1773 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Material witnesses not produced for evidence---Adverse presumption---Accused were charged for committing murder of the husband of complainant by firing---Complainant admitted during examination in chief that three friends of her husband of whose names were not known to her went to the house of female accused "RS"---Said friends of the deceased were in a position to make statements qua the occurrence and they being the most natural witnesses of the occurrence had not been produced by the prosecution---Prosecution frankly conceded that neither their statements under S.161, Cr.P.C. were recorded during the investigation of the case nor they ever appeared before the Trial Court, therefore, the prosecution had withheld the best piece of evidence, hence an adverse inference within the meaning of Art.129(g) of Qanun-e-Shahadat, 1984, could validly be drawn against the prosecution that had the said witnesses been produced in the witness box then their evidence would have been unfavourable to the prosecution---Appeal against conviction was allowed, in circumstances. Abdul Qadeer v. The State 2024 SCMR 1146 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Night time occurrence---Source of light not established---Accused were charged for committing murder of the husband of complainant by firing---Record showed that it was night time occurrence---Neither any source of light was mentioned in the FIR nor in the site plan of the place of occurrence nor the Investigating Officer collected or gathered any such evidence, meaning thereby, source of light in night occurrence was missing in this case---Appeal against conviction was allowed, in circumstances. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Recovery of weapon of offence on the instance of accused doubtful---Accused were charged for committing murder of the husband of complainant by firing---According to the prosecution story the accused/appellant slipped away from the place of occurrence along with crime weapon i.e. pistol 30-bore---Said weapon of offencewas recovered on 12.11.2018 i.e. last day of the remand from residential room of accused located at third floor of his house lying underneath of bed---However, it was somewhat difficult to believe that an accused having committed such a serious crime like murder though succeeded in fleeing away from the crime scene along with weapon of offence, would not get rid of such weapon, rather would keep the same in safe custody for its subsequent recovery and use against him---Besides, ocular account had already been disbelieved, such recovery would not be sufficient for recording conviction of an accused on capital charge, because this type of corroborative evidence was always taken into consideration along with direct evidence---Appeal against conviction was allowed, in circumstances. Noor Muhammad v. The State 2010 SCMR 97 rel. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Non-association of private witnesses at the time of recovery proceedings---Accused were charged for committing murder of the husband of complainant by firing---After the arrest of appellant, the crime weapon was shown recovered on his lead on 12.11.2018 and the recovery memo showed that such recovery proceedings were supervised by Investigating Officer and witnessed by two police witnesses---Said recovery could not be relied upon for the reason that Investigating Officer of the case did not join any witness of the locality during the recovery of such 30 bore pistol on the lead of accused/appellant, which was clear violation of S.103 of Code of Criminal Procedure, 1898---Therefore, the evidence of such recovery could not be used as incriminating evidence against the accused/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 989 rel. (j) Criminal trial--- ----Medical evidence---Scope---Medical evidence only being corroborative piece of evidence cannot be made basis to record or sustain conviction because medical evidence can only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. but never identifies the real assailant. Munawar Ali alias Munawar Hussain v. The State pld 1993 sc 251 and Muhammad Jahangir and another v. The State and others 2024 SCMR 1741 rel. (k) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Motive part of the occurrence---Unhelpful for prosecution---Accused were charged for committing murder of the husband of complainant by firing---Allegedly, the complainant's husband contracted Nikah with "RS" secretly and due to that grudge the accused committed his murder while inviting him at their house---Stance of the appellant regarding motive in his statement recorded under S.342, Cr.P.C was that when deceased contracted marriage with "RS", the complainant pressurized the deceased to divorce "RS" and on the day of occurrence, the complainant came to the house of the appellant along with his companions where the deceased was also present---Complainant asked the deceased to divorce "RS" but when the deceased refused rather threatened to divorce the complainant, the complainant's companions who were notorious persons committed the murder of the deceased---Motive even if proved, depending upon the facts and circumstances of the case, may act as a double edged weapon---If motive could be a reason for the accused to commit the crime, it could also be used by the prosecution as a tool to implicate an innocent person---Therefore, after disbelieving the ocular account, recovery as well as medical evidence, the motive set up in this case was of no help to the prosecution---Appeal against conviction was allowed, in circumstances. (l) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148, 149 & 34---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly, common intention---Appreciation of evidence---Co-accused acquitted on same set of evidence---Effect---Accused were charged for committing murder of the husband of complainant by firing---Record showed that on the same set of evidence, co-accused persons, who had been shown present at the place of occurrence and co-accused who were shown present at the place of occurrence while armed with a pistol, stood acquitted---Therefore, present appellant could not be convicted under the principle of falsus in uno falsus in omnibus---Appeal against conviction was allowed, in circumstances. Notice of Police Constable Khizar Hayat son of Hadait Ullah PLD 2019 SC 527; Pervaiz Khan and another v. The State 2022 SCMR 393 and Muhammad Iqbal v. The State and another 2024 SCMR 1133 rel. (m) Criminal trial--- ----Benefit of doubt---Principle---For giving benefit of doubt to an accused, a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit. Khial Muhammad v. The State 2024 SCMR 1490 and Muhammad Ijaz alias Billa and another v. The State and others 2024 SCMR 1507 rel. Rai Bashir Ahmad and Sardar Waqas Ahmad Dogar for Appellant. Munir Ahmed Sial, Additional Prosecutor General for the State. Ch. Irfan Sadiq Tarar for the Complainant. Date of hearing: 6th March, 2025. Judgment Sardar Akbar Ali, J.---Wasif Saeed (convict/appellant) along with his co-accused Muhammad Rashid Saeed, Muhammad Saeed Awan, Mst.Jamila Saeed and Mst.Rabia Saeed was tried by learned Sessions Judge, Lahore, in a private complaint titled "Mst. Jannat-ul-Fairdous v. Wasif Saeed and others" under sections 302, 148/ 149 P.P.C arising out of case FIR No.1178 of 2018, dated 02.10.2018 for offences under sections 302/34 P.P.C registered at Police Station South Cantt., Lahore, and on conclusion of trial vide judgment dated 02.07.2021, co-accused Muhammad Saeed Awan, Mst.Jamila Bibi and Mst.Rabia Saeed were acquitted, whereas, appellant Wasif Saeed was convicted and sentenced as under:- "Under Section 302 (a) P.P.C to death sentence as qisas for committing Qatl-i-Amad of Shakeel Ashraf deceased. He was also directed to pay compensation of Rs.1,000,000/- (one million) to the legal heirs of Shakeel Ashraf (deceased) recoverable as arrears of land revenue and in default whereof to suffer 06-months simple imprisonment." Aggrieved by his conviction and sentence, Wasif Saeed (appellant) filed Criminal Appeal No.56099 of 2021. Likewise, trial Court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.208 of 2021 for the confirmation or otherwise of death sentence awarded to Wasif Saeed appellant whereas complainant Mst. Jannat-ul-Firdous filed Crl. PSLA No.56097 of 2021 challenging the acquittal of co-accused Muhammad Rashid Saeed, Muhammad Saeed Awan, Mst. Jamila Saeed and Mst. Rabia Saeed. 2. Mst. Jannat-ul-Firdous, complainant (PW-1) on 02.10.2018 at 10:45 p.m. submitted written complaint (Ex.PD) before Shahzad Kamal, S.I (not produced), when he on receiving the information of the occurrence reached at Emergency Ward, Services Hospital, Lahore. The complainant stated therein that on 02.10.2018 at about 08:30 p.m. accused Mst. Rabia Awan, telephonically contacted Muhammad Shakeel Ashraf, with whom, he contracted Nikah about 1 years ago, inviting him to visit her house for reconciliation proceedings and to settle the dispute with her parents and during this call, her father also talked to Muhammad Shakeel Ashraf to the effect to visit their house as they are waiting for them. At about 09:00 p.m. the complainant along with her Dewar/ husband's brother Muhammad Aqeel Ashraf and three unknown friends of her husband reached at the house of Saeed Awan situated in Street No.2 Gulshan Park. The complainant party seated there whereas her husband and dewar Muhammad Aqeel seated in their front and their backs were towards the door. Her husband when started conversation requesting to accept his Nikah with Rabia Bibi and the matters may be settled amicably, upon this accused Saeed Awan loudly shouted to teach a lesson to Muhammad Shakeel Ashraf to molest their honor. Instantaneously accused Wasif and Kashif sons of Saeed Awan came there while armed with pistols. Wasif made a fire shot with pistol hitting on the back of Muhammad Shakeel Ashraf, who fell to the ground whereas Kashif just to harass them made indiscriminate firing which hit the glasses of windows and walls. The complainant and the PWs rescued their lives while sitting and laying. Thereafter the accused Saeed Awan, Wasif and Kashif took flight from the place of occurrence while making firing. The wife of Saeed Awan snatched mobile phone from the complainant and also beaten her. The complainant's dewar and unknown friends of her deceased husband escorted the deceased to Civil Hospital but he succumbed to the injures on the way. The motive behind the occurrence was that complainant's husband contracted Nikah with Rabia Bibi secretly and due to this grudge the accused committed his murder while inviting him at their house. 3. Saif-Ullah Gondal Sub-Inspector (PW-11) initiated the investigation. On 02.10.2018, he reached at Services Hospital, Lahore and inspected the dead body of deceased lying on stature, prepared injury statement Exh.PR, application Exh.PS for postmortem, inquest report Exh.PT and application Exh.PU. Thereafter, he along with complainant and witnesses visited the crime scene/ house situated at Street No.2, Gulshan Park, Lahore, knocked the door which was opened by Jamila Saeed. The crime scene was located at first floor of the house. He inspected the crime scene and prepared unscaled site plan Exh.PV, collected blood imbrued cotton, took the same into possession through recovery memo Exh.PH. Secured a Chitai P-10 from the crime scene and seized it through recovery memo Exh.PG. Secured one empty P-1 from the crime scene, took into possession through recovery memo Exh.PF. PFSA team handed over to him one sealed envelope, took the same through recovery memo Exh.PJ. Secured seven empties of 9 mm pistol P-2/1-7 from outside the house and took it into possession through recovery memo Exh.PK. On 02.10.2018, the complainant submitted another application before him regarding substitution of name of Kashif Saeed stating that the name of Kahsif Saeed was Rashid Saeed. On 03.10.2018 Abu-al-Asar constable produced before him postmortem report and last worn clothes of deceased i.e. shirt P-11, bunyan P-12 patloon P-13 and underwear P-14, took the same into possession through recovery memo Exh.PM. On 06.10.2018 Syed Younas Bukhari, draftsman produced before him scaled site plan in triplicate. On 10.10.2018, he deposited one empty of pistol .30 bore, seven empties of 9 mm, one khaki envelope sealed by doctor and another sealed parcel given by PFSA scientist during inspection of the crime, in the Office of PFSA intact. On 13.10.2018, accused persons Muhammad Saeed Awan and Rashid Saeed were arrested. On 27.10.2018, they were sent to judicial lock up. On 29.10.2018, Jamila Saeed accused submitted application for cross-version received through CCPO and cross-version was not approved. On 31.10.2018 accused Waif Saeed was arrested. On 12.11.2018, accused got recovered pistol P-3 and unloading the same four live bullets P-15/1-4 were recovered, took the same into possession through recovery memo Exh.PN. The investigation of this case was also conducted by Ali Akhtar, DSP who while appearing as PW-09 stated that on 13.11.2019 he joined appellant Wsif Saeed into investigation, confined him in Bukhshi Khana and on 21.11.2019, he completed investigation and in his opinion Wasif Saeed (appellant), Saeed Awan and Rashid Saeed were found involved in the commission of offence, whereas, Jamila Saeed and Rabia Saeed accused were not found involved in the commission of the crime. Subsequently, the complainant opted to file a private complaint (Ex.PA) almost with the same story as set out in the FIR, but added that the Investigating Officer had not correctly recorded statements of witnesses under section 161 Cr.P.C. to benefit the accused and did not recover the pistol from Rashid Saeed Awan during the investigation which he used in the occurrence and out of mala fide declared Jamila Saeed and Rabia Saeed, as innocent, whereas, solid evidence was available against them. 4. The learned trial court after recording cursory evidence summoned all the accused/respondents to face trial. When charge sheeted, the accused/appellant pleaded not guilty and claimed to be tried, whereupon, the prosecution examined Jannat-ul-Firdous complainant (PW-1) and Muhammad Aqeel Ashraf (PW-2) who furnished the ocular account of occurrence; Dr. Nasir Abbas (PW-3) conducted postmortem examination of deceased Muhammad Shakeel and observed as under: "Injury No.1-A "A penetrating lacerated wound of 1x1 cm with inverted margins on back of chest at midline, 22 cm below from cervical (C) 5 vertebra and 46 cm from top of heard. Abrasion collor present. Blackening burning and tattooing absent. Bleeding from wound. "Injury No.1-B "A lacerated wound of 1.5x1.5 cm with everted margins in epigastric region, 2 cm towards left side from midline, 18 cm from left nipple and 62 cm from top of head. No blackening burning and tattooing. Bleeding from the wound. No abrasion collor. Whereas, Saif Ullah Gondal, SI (PW-11) and Ali Akhtar, DSP (PW-09) appeared in the dock to give details of their investigation and Tahir Kamal Khan, Junior Scientist PFSA, who visited and inspected the crime scene, appeared as PW-13. It may be clarified here that when cursory statements of witnesses were being recorded, the complainant has also been mentioned as CW-1, whereas, during trial her statement has been recorded as PW-1. The rest of the witnesses were formal in nature. On close of prosecution case, the accused were examined under section 342 Cr.P.C. who refuted the prosecution evidence. However, did not produce any witness in defence nor opted to appear in the witness box as required by section 340(2) Cr.P.C. and the trial ended in the terms as detailed in opening paragraph of this judgment. 5. Heard. Record perused. 6. From the narration of above facts, according to the prosecution's perspective the occurrence took place on 02.10.2018 at 09.00 p.m. and was alleged to have been seen by witnesses namely Jannat-ul-Firdous complainant (PW-1) and Muhammad Aqeel Ashraf (PW-2), but the matter was reported to the police on the same night at 11:15…

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