Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 LHC 5924. In this matter between The State, Abid Ali, etc, Haji Akbar Ali and Abid Ali, The State etc, 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.

Full Judgment Text & Judicial Ruling

Court Name: Lahore High Court Judge(s): Aalia Neelum, Asjad Javaid Ghural Title:The State, Abid Ali, etc, Haji Akbar Ali vs Abid Ali, The State etc, The State,

JUDGMENT

Reported As: 2024 LHC 5924, 2025 PCRLJ 383, PLJ 2025 Cr.C. 227 Result: Appeal Dismissed Judgment

JUDGMENT AALIA NEELUM, C.J. (1) Abid Ali, (2) Tariq Ali, sons of Pervaiz, and (3) Muhammad Arshad son of Bashir Ahmad, all Dogar by Caste, residents of Saidpur Tehsil & District Kasur, have assailed their convictions and sentences recorded by the learned Additional Sessions Judge, (MCTC), Kasur vide judgment dated 07.12.2019, in a private complaint filed under sections 302, 201, 109, 148, 149 PPC P.S. Khudian, District Kasur titled "Haji Akbar Ali Vs. Abid Ali, etc." in a State case F.I.R No.63/2018, dated 10.02.2018, offences under Sections 302, 148, 149 PPC, registered at the police station, Khudian, District Kasur, whereby the learned trial court convicted the appellant No.1-Abid Ali under Sections 302 (b)/34 PPC as Tazir and sentenced to death with the direction to pay Rs.5,00,000/- as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C, and in case of default in payment thereof, he would further undergo 06-months S.I. Whereas the appellants No.2 and 3, Tariq Ali and Muhammad Arshad were convicted under Sections 302(b)/34 PPC as Tazir and each of them was sentenced to undergo rigorous imprisonment for life, with the direction to pay Rs.3,00,000/- each as compensation to the legal heirs of deceased and in case of default in payment thereof, each of them would further undergo 06 months S.I The benefit of Section 382 (B) of Cr.P.C., was also extended in favor of the appellants. 2. Feeling aggrieved by the judgment of the learned trial court, the appellants-Abid Ali, Tariq Ali, and Muhammad Arshad, have assailed their conviction and sentence by filing an appeal bearing Crl. Appeal No.79031-J of 2019. The learned trial court also referred M.R. No.29 of 2020 (The State

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Vs. Abid Ali) to confirm the death sentence awarded to the appellant-Abid Ali, whereas the complainant filed Crl. Appeal No.2384 of 2020 against the acquittal of respondents No.2 & 3, namely Muhammad Farooq and Muhammad Asif (On the request of learned counsel for the complainant, names of respondents No.4 to 6 have been deleted). The complainant, dissatisfied with the impugned judgment dated 07.12.2019, also preferred a Criminal Revision No.2385 of 2020 to enhance the sentence of respondents No.2 & 3, namely, Tariq Ali and Muhammad Arshad. All the matters arising from the same judgment of the trial court are being disposed of through a single judgment. 3. Briefly, the prosecution story as alleged in the private complaint (Ex. PF) filed by Haji Akbar Ali (PW-1)-the complainant is that on 10.02.2018, at about 10:00 a.m, the complainant (PW-1) along with his sons namely, Muhammad Yaseen (since dead) and Muhammad Sajid (since dead) went to tube-well for irrigation of land. After returning from the tube well to their cattle shed, when they reached the graveyard on the eastern side of the way, the accused persons, while quipped with their respective weapons, were ambushed having common objects. On seeing the complainant party, the accused, Muhammad Asif, raised a lalkara that no one should have been spared, after which the accused, Abid, with his rifle, made a shot, which hit the right side of the chest of Muhammad Yaseen (since dead), who fell. After that, the accused, Tariq Ali, with his rifle, made a shot at the person of Sajid (since dead), which landed on the left side of his chest. After that, the accused, Arshad, with his rifle, went near Sajid (since dead) and made a shot, which hit his left arm. After the alleged occurrence, the accused persons fled away from the place of occurrence, whereas Sajid (since dead) succumbed to the injuries at the spot. Muhammad Yaseen son of Zafer Ali and Muhammad Sadiq son of Ahmad Din were plowing the fields along with the complainant and his sons, i.e., Muhammad Sajid, whereas Muhammad Ilyas came there to lend agricultural tools. They witnessed the occurrence. Thereafter, the complainant (PW-1), while leaving Yaseen and Sadiq, prosecution witnesses at the spot, shifted his injured son, namely, Muhammad Yasin, in injured condition to the DHQ hospital, where the doctor verified his death. The motive behind the occurrence was that the accused persons had a dispute over the possession of the tube well. 4. After the occurrence, the complainant (PW-1) went to the police station, Khudian, and moved an application for registration of case (Ex. PA), upon which formal FIR (Ex.PA/1) was chalked out by Sher Muhammad, ASI (CW-7). After registration of the case, the investigation of this case was first entrusted to Tahir Sohail, Ex. S.I (CW-8). After that, the investigation of this case was entrusted to Qurban Shabbir, (Retired) S.I (CW-5), who found the accused persons/appellants guilty, prepared a report under Section 173, Cr.P.C. while placing the names of the accused in column No.3 of the Challan and sent the same to the court of competent jurisdiction. The learned trial court formally charge-sheeted the appellants on 11.09.2018, to which they pleaded not guilty and claimed trial. The complainant, in support of his version, produced as many as three (03) witnesses, whereas the rest of the witnesses were summoned as court witnesses, i.e., CW.1 to CW.10. 5. After the closure of prosecution evidence, the appellants were also examined in terms of Section 342 Cr.P.C., wherein they refused to appear as their own witnesses in terms of Section 340(2) Cr.P.C. However, they opted to produce defence evidence. In response to a particular question of why this case was against them and why the PWs deposed against them, the appellants, No.1 & 2, Abid Ali and Tariq Ali, made the following deposition:- "The factum has been came on record during cross examination that SHO had gone to the place of occurrence in response to the emergency call on 10.02.2018 at 10:02 a.m and on at 10:18 a.m on 15-rescue which was made by a person who impersonated himself as Sardar Sajid and Haji Akbar whereas complainant has vehemently denied that he has not made any, despite the fact that Afzal Moharrar CW-2 has stated that SHO had visited the place of occurrence along with Incharge of Homicide cell reached at the place of occurrence in response of call of rescue 15. It is

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stated that on 10.02.2018 at about 11:00 a.m, complainant Akbar Ali along with 2-3 persons came along with Yaseen deceased in the police station and they remained present for many hours and issued the docket for injuries. The above said facts were not brought on surface by the I.O in league with the complainant and the complainant was adamant to deny these hard facts and the FIR was not got registered by the complainant and after 07/08 hours a fabricated and false version was advanced on the legal advise to implicate our family. Actually, the real man Khalil son of Arif, son in law of Akbar complainant, who had the venom and grudge because he wants to wreak the vengeance against me, my brother Abid and my relative Arshad etc due to the reason, Arshad was married with sister of Khalil surreptitiously. When this marriage came into the knowledge of Khalil, he murdered her sister and Yaseen deceased informed Arshad that his wife has been murdered by Khalil etc in the house of Yaseen PW-2 in Tehsil Pattoki." While replying to a particular question of why this case was against him and why the PWs deposed against him, the appellant, No.3, Muhammad Arshad, made the following deposition: - "The case is totally false. In fact I have contracted marriage with Aqsa Bibi daughter of Arif and sister of Khalil Ahmad son in law of complainant Haji Akbar at the time of Nikah, Tariq my co- accused was the witness in the said Nikah and the case registered by me for the murder of my wife Aqsa Bibi, I arrayed as accused. Haji Baqar S/o Khan Bahadur real brother of Muhammad Nawaz PW-3, along with Arif Father, Umar, Khalil sons of Arif s/o Jalal Din who are the father and brothers of Aqsa Bibi. Haji Muhammad the younger brother of Muhammad Yasin PW-2was also inimical towards as the fictitious Nikah-Nama was prepared with Aqsa Bibi my wife without taking divorce from me and I filed petition u/s 22-A, 22-B Cr.P.C against Haji Muhammad And Zulfiqar Ali real brothers of Muhammad Yasin PW-2. We have cordial relation with Sajid and Yasin deceased. I and my brother can not think about the murder of the said persons who were closely related to us. In fact Khalil Ahmad son in law of complainant have suspicion that Yasin deceased gave our family information to me and above said Khalil Ahmad son in law of complainant who is generalist and influential personality in Islamabad and he managed the murder of his brother in laws Sajid and Yasin deceased through hired criminals. Sajid deceased made a telephone on rescue 15 at 10:02 AM on the alleged day of occurrence i.e. 10.02.2018 that two persons are quarrelling with me and on the same date at 10:17 am a telephonic call was made from the mobile phone of Yasin deceased by complainant Muhammad Akbar that three/four persons quarreled with his sons. At 10;45 a.m on 10-02-2018 Muhammad Yasin then injured was brought to the P.S, a docket was prepared and Muhammad Yasin injured was sent to RHC Khudian from where he was referred to DHQ hospital, Kasur, this fact was not ever brought by the complainant before the I.O, during the course of investigation. There is glaring contradictions between the statements application of the complainant Ex.PA and complaint Ex.PF of the complainant and PWs which are fatal to the prosecution case." 6. After recording evidence and evaluating the evidence available on record, considering arguments advanced by both sides, the learned trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction as well as awarding of sentence to them in the afore-stated terms. 7. We have carefully considered both sides' rival submissions and minutely reviewed the evidence on record. 8. As per the prosecution version, in the instant case, the incident took place on 10.02.2018 at 10:00 a.m. in Saidpur, falling within the territorial jurisdiction of Police Station Khudian, District Kasur, wherein Muhammad Yasin and Sajid (sons of Haji Akbar Ali-the complainant) lost their lives. The inter-se distance between the place of occurrence and the police station was 10 kilometers. Haji Akbar Ali (PW-1)-the complainant reported the incident to the police on the same day at 05:00 p.m. through the written application (Ex. PA), based on which Sher Muhammad, A.S.I. (CW7) chalked

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out the FIR (Ex. PA/1). There was an inordinate delay of 07 hours in reporting the matter. Haji Akbar Ali (PW-1)-the complainant deposed during examination-in-chief that soon after the incident, he took his son (Yasin) to the hospital for medical treatment to save his life. He (PW-1)-the complainant, deposed during his examination-in-chief that: - "My son Sajjid Ali succumbed to the injury at the spot, whereas I alongwith other persons shifted Yasin in injured condition at District Headquarter Hospital, Kasur, while leaving Sadiq and Yasin at the guard of place of occurrence. When I shifted my son Yasin at Hospital, the Doctors available in emergency declared him as dead." Whereas, during cross-examination, Haji Akbar Ali (PW-1)-the complainant, deposed that: - "I escorted my son Muhammad Yaseen to hospital according to my version in FIR accompanied with my son in law while boarding on a rented vehicle. I have not produced the driver of rented vehicle. I came to know about the death of my son at the hospital where after checking in emergency doctor informed me about the death of my son Yaseen. I have no knowledge about any prescription/entry in the emergency of DHQ hospital, Kasur. I have no knowledge about any issuance of death certificate of my deceased son Yaseen. I took my son in emergency of DHQ hospital in between 03:30 pm to 04:00 p.m. It is correct that we reached DHQ hospital via Deepalpur road. We adopted the passage for reaching DHQ hospital, Kasur through Bhagiana. If one adopts the road via Bhagiana which lead to Khudian and then Kasur. The P.S Khudian is situated at 5/7 acres from the main road." Haji Akbar Ali (PW-1)-the complainant further deposed during cross-examination that: - "The constable took me and my injured son to RHC Khudian. The RHC Khudian referred the injured Yaseen due to his precarious condition to DHQ hospital, Kasur. I escorted my injured son alongwith my other companion at about 10:30/11:00 am from the place of occurrence. We remained at P.S Khudian 11:00 am to 12:00 noon. Yaseen injured remained outside the gate of the police station. It is correct that the detail regarding the escorting Yaseen the then injured to P.S Khudian and then to RHC Khudian are not mentioned in the FIR. It is correct that the details regarding escorting the Yaseen then inured to P.S Khudian, the factum of apprising the Moonchi, sending constable alongwith the injured and then taking the injured to RHC Khudian are not mentioned in private complaint. It is correct that Moonchi is also called Moharar. After the occurrence the car driver of the rented car came alongwith the rented vehicle. Thereafter Khalil also came there after hearing about the occurrence alongwith other persons. It was not in my knowledge that till the occurrence that Khalil has arrived back from Islamabad. Prior to the occurrence Khalil did not come to my house. I escorted my injured son Yaseen to P.S Khudian and the person who learned about the occurrence followed me to P.S Khudian, perhaps 3/4 cars reached there. Khalil also came at the police station when I shifted Yaseen in the police station at P.S Khudian. It is correct that Khalil my son in law is related with me with Yaseen injured and was also educated. We escorted the injured Yaseen for the hospital around 10:30 to 11:00 am on a rented car. We were accompanied with Khalil who is also my son in law. We have choosen the road leading Bhagiana to Kasur through Khudian. We firstly went to P.S Khudian. It took half an hour to reach P.S. Khudian. We did not meet SHO there. We informed Moharar and made over him whole story of the occurrence, who had written or not my narrations is not known to me. Probably he would have written something but I cannot say anything about it. He after hearing the whole story sent a constable alongwith us for taking the injured to hospital. It is correct that we went to RHC Khudian. On seeing the critical condition doctor referred us to DHQ hospital, Kasur. He referred the patient in writing but did not give us any writing in this regard. Nobody else accompanied us in the car to take the injured to hospital. Volunteered that later on people joined us. Some people followed us out of which some met us at police station to inquire about the occurrence from us, and some joined us at RHC Khudian. Half

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of the village almost came to inquire." Sher Muhammad A.S.I. (CW-7) deposed during cross-examination that: - "It is correct that on dated 10.02.2018 at about 11:00 am complainant Akbar Ali alongwith 2/3 persons which are not known to me came alongwith Yaseen alleged deceased in the police station. Volunteer stated that they remained present in police station for many hours and I.O issued them docket for the injuries. I do not know if Yaseen had already died before reaching police station. Soon after the registration of the case, the FIR complainant and his companion left the police station." According to the deposition of Haji Akbar Ali (PW-1)-the complainant, he took his son Yasin (then injured) to the police station after the incident at about 10:30 or 11:00, and he remained in the police station from 11:00 to 12:00 noon. After that, he took Yasin (then injured) to the RHC Khudian. At the RHC Khudian, the doctor referred Yasin to the DHQ Hospital, Kasur, due to his critical condition. He reached the emergency of DHQ hospital between 03:30 pm and 04:00 p.m. The doctor checked him in the emergency of the hospital and declared that his son had died. Dr. Ch. Arslan Ahmad PGR (CW-1), who conducted the postmortem examination on the dead body of Muhammad Yaseen (the deceased), deposed during examination-in-chief that the duration between injury and death was within 30 minutes. From the testimony of Sher Muhammad A.S.I. (CW-7), it reveals that Haji Akbar Ali (PW-1)-the complainant, remained in the police station for hours. As per the version of Haji Akbar Ali (PW-1)-complainant, keeping in view the critical condition of Yaseen (then injured), the doctor of RHC Khudian referred Yaseen (then injured) to DHQ, hospital Kasur and the complainant reached DHQ Hospital, Kasur at "Zohar time." Haji Akbar Ali (PW-1)-the complainant further deposed during cross-examination that: "We reached at DHQ hospital, Kasur after Zohar time." Zohar (Dhuhr) timing on 10.02.2018 was 11:52 a.m., whereas "Asr" timing was 04:06 p.m. At the cost of repetition, Haji Akbar Ali (PW-1)-the complainant, deposed during cross-examination that: - "Yaseen injured remained outside the gate of the police station." Whereas Tahir Suhail Ex. S.I. (CW-8), after perusal of the Roznamacha deposed during the cross- examination conducted by the complainant's counsel that: - "It is correct that Rapat No.8 dated 10.02.2018 recorded by Riasat Ali TASI at 10:45 am to the effect that Yasin s/o Akbar Ali Dogar r/o Said Pura in injured condition came at police station and after preparation of docket he was sent to RHC, Khudian in the company of Muhammad Yasin 378/C and he also recorded that after the receipt of MLC whatever will be the situation the proceeding will be conducted." Tahir Suhail Ex. S.I. (CW-8), deposed during the cross-examination conducted by the complainant's counsel that: - "I have not received the docket of Yasin the then injured which was prepared as mentioned vide Rapat No.8 dated 10.02.2018. Regarding the said docket no information was provided to me as the FIR was silent about the above said fact, therefore I did not conduct any investigation regarding the above said fact." The postmortem report (Ex. PR) of Muhammad Yaseen, deceased, has not been challenged by the prosecution, wherein it was mentioned that the duration between injury and death was half an hour. Dr. Ch. Arslan Ahmad (CW-1) deposed during examination-in-chief that: - "On 10.02.2018 I was posted as Medical Officer at DHQ Hospital Kasur. On the same date at 9:00 p.m I conducted autopsy on the dead body of deceased Muhammad Yaseen, aged about 31/35 years, caste Dogar, r/o Saidpur District Kasur. Duration between injury and death was within 30 minutes and between death and post mortem was within 12 hours." Tahir Suhail Ex. S.I. (CW-8)-the investigating officer also deposed during the cross-examination that: -

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"I have not received the docket of Yasin the then injured which was prepared as mentioned vide Rapat No.8 dated 10.02.2018. Regarding the said docket no information was provided to me as the FIR was silent about the above said fact, therefore I did not conduct any investigation regarding the above said fact." Admittedly, the prosecution witnesses failed to prove when and where Yaseen (then injured) took his last breath. The episode between 10:00 a.m. and 05:00 p.m. on 10.02.2018 is shrouded under mysterious circumstances that are not appealing to reason and logic. If the complainant, alongwith prosecution witnesses and Yaseen (then injured), reached DHQ Hospital, Kasur, at Zohar time and as per the opinion of the doctor, the duration between the injury and death was 30 minutes, then how the doctor could refer Yasin (then injured) from RHC Khudian to DHQ hospital, Kasur. Haji Akbar Ali (PW-1)-the complainant, in his cross-examination, deposed that he has no knowledge of any prescription/entry in the emergency of DHQ hospital, Kasur, and about any issuance of the death certificate of his deceased son Yaseen. Medical evidence contradicts the ocular account. Medical evidence shows that Yasin (then injured) was alive for half an hour. If we consider the time of the incident in the light of the medical evidence and see when Yasin (then injured) took his last breath, it is at 10:30 a.m. because, according to the prosecution, the time of the incident is 10:00 in the morning. Haji Akbar Ali (PW-1)-the complainant stated that between 10:30 and 11:00 a.m., he escorted Yasin, to the hospital in the rented car. When the complainant took Yasin (then injured) to the hospital, as per the medical evidence, he was already dead. That is why the complainant did not produce the RHC doctor as a witness, nor did he present the doctor of DHQ Hospital Kasur as a witness. The prosecution has not produced a refer slip of RHC Khudian or a death certificate issued by DHQ Hospital, Kasur, during evidence. The non-submission of documents, i.e., the refer slip and the death certificate, creates doubt about the prosecution's case, as a man may lie, but the document cannot. The prosecution failed to prove what the complainant and his witnesses did for seven hours, which put a dent in the prosecution's story. 9. The prosecution put much emphasis on the evidence of the Haji Akbar Ali (PW-1)-the complainant, and Muhammad Yaseen (PW-2)-the eye witness, on the point the deceased Sajid Ali made that call on 15 before his death at 10:02 a.m. on 10.02.2018 and complainant made the call on 15 at 10:18 a.m. on 10.02.2018 and referred to a copy of call data rescue 15 Kasur to prove that incident against the appellants was reported by Sajid Ali deceased in his life is concerned, we have noted that as per prosecution case on receiving firearm injury Sajid Ali succumbed to the injuries at the spot. It is not the case of the prosecution that any attraction occurred between the deceased and the accused before the incident. A scanned copy of call data rescue 15 Kasur is as follows: - Haji Akbar Ali (PW-1)-the complainant deposed during cross-examination that: - "My son Yaseen in injured condition made a telephonic call on 15 at about 10:30 am where he was fallen at the place of occurrence near the graveyard. The police did not came at the place of occurrence after receiving the call from Yaseen the then injured." Muhammad Yaseen (PW-2)-the eye witness deposed during cross-examination that: - "My cell number is 0321-7072603. The cell number of Yaseen deceased is 0301-7988783." Tahir Suhail Ex. S.I. (CW-8)-the investigating officer during cross-examination conducted by the complainant counsel deposed that: - "It is correct that on 16.02.2018 I while mentioning sixteen mobile numbers I requested that the call detail of those sixteen numbers will be obtained and due to that affect the application was moved. The call details was not received by me during my posting and investigation. I have not explained in my proceedings that who was the user of the mentioned mobile phone numbers. It is correct that at No.9 the cell number of Yasin deceased i.e. 0301-7988783 is mentioned. It was not brought into my notice that deceased Yasin made call from his mobile at 15 at 10.02.2018. It is

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correct that according to the Roznamcha there is no mention of receiving any call made at rescue 15 and there is also no mention that any police officer responded to the said call and went to the place of occurrence." Tahir Suhail Ex. S.I. (CW-8)-the investigating officer during cross-examination conducted by the defence counsel deposed that: - "It is correct that complainant Akbar Ali and Sadiq, Ilyas, Yasin PWs and even Yasin did not apprise me about the call on rescue 15. It is also correct that complainant Akbar Ali in his application for registration of case and also in the FIR did not mention about the call made on rescue 15. It is correct that as per PMR No.10/2018 of Yaseen deceased the duration between injury and death was within 30 minutes." The caller did not give the accused's name in the call on 15. It has also been argued that Sajid Ali (deceased) did not make a call. In support of their submission, the learned counsel for the appellants referred to the evidence of Haji Akbar Ali (PW-1)-the complainant, Muhammad Yaseen (PW-2)-the eye witness, Muhammad Amjad Ali 51/HC (CW-4), and Tahir Suhail Ex. S.I. (CW-8)-the investigating officer. Tahir Suhail Ex. S.I. (CW8)-the investigating officer said that the dead body of Sajid Ali (deceased) lay at the place of occurrence till 05:00 p.m., and after that, the dead body was sent to the mortuary. Haji Akbar Ali (PW-1)-the complainant deposed during examination-in- chief that: - "My son Sajjid Ali succumbed to the injury at the spot, whereas, I alongwith other persons shifted Yasin in injured…

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