Full Judgment Text & Judicial Ruling

2025 P Cr. L J 1816 [Lahore] Before Aalia Neelum, C.J Master Riaz Ahmad and another---Appellants Versus The STate and another---Respondents Criminal Appeal No. 14068, Criminal Revision No. 16319 and PSLA No. 16318 of 2019, decided on 15th May, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the time and place of occurrence not proved---Appellants along with their co-accused committed murder of the brother of complainant by firing---Motive behind the occurrence was a land dispute between the parties---As per the contents of written complaint, FIR and private complaint, the complainant had specifically mentioned that his brother after receiving firearm injuries on his legs caused by accused was smeared with blood---Complainant had not mentioned in his written complaint as well as in private complaint that soon after the incident, when and how he shifted his brother to Hospital and when the deceased took his last breath---Complainant and witness, brother and paternal uncle of the deceased, respectively, had not stated that what effort they made for saving the life of the deceased, nor in that regard placed on the record any document revealing that medical treatment was provided to the deceased, soon after the incident---Medical Officer, who conducted postmortem examination on the dead body of the deceased, deposed that the mouth was semi-opened---Probable duration between injury and death was within minutes to an hour and the time between death and postmortem examination was within 24 hours---To determine the time of death, the prosecution failed to bring on record any material evidence revealing when the deceased took his last breath---In addition, as per the post-mortem report, the autopsy was conducted at 09:30 p.m. on 30.07.2015---Till 09:30 p.m. on 30.07.2019, the FIR was not registered---If the FIR had been registered by 11:45 a.m., the Medical Officer would have stated in his testimony that he had also attested a copy of the FIR, along with the injury statement and application for post-mortem examination---Incident occurred at 10.40 am and after sustaining injuries on the legs, the deceased was taken to the hospital in a car, which was 05 kilometers from the place of occurrence and could have travelled within a period of about ten minutes to reach the hospital---However, no effort was made by the prosecution witnesses to save the life of the injured---If those witnesses had witnessed the incident, they should have taken care of the injured and provided him with first aid or at least attempted to stop the bleeding---However, no efforts of any kind were made by those witnesses, which also suggested that they did not see the occurrence---Neither of those witnesses tried to take the injured to the hospital so that the proper medical treatment could be given to him and the Medical Officer could have saved him---No medical aid was provided to victim soon after the incident until 11:30 a.m. on 30.07.2015---If the witnesses were present at the scene and promptly took victim to the hospital, where he received medical assistance, there should have been evident signs of the type of treatment he received---Medical Officer observed no signs of medical assistance being provided---Such facts raised doubts about the presence of the complainant and eye-witnesses at the place of the offence---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Authenticity of FIR doubtful---Appellants along with their co-accused committed murder of the brother of complainant by firing---Post-mortem examination report revealed that the probable time between death and post-mortem was within 24 hours---There was no plausible explanation for the 11-hours delay in conducting the post-mortem examination from the time of the FIR registration, i.e., 11:45 a.m. on 30.07.2015---Such delay led to the conclusion that the FIR was recorded late and not at the time it was claimed to have been---Said aspect of the matter was sufficient to cast doubt on the authenticity of the FIR---Admittedly, the complainant got drafted application from someone---Person who prepared the complaint had neither joined the investigation nor been cited as a prosecution witness---Non-mentioning that fact in the application/complaint indicated that the complainant had not stated the complete truth and that the FIR came into existence later, after due deliberations and consultations---Author of the complaint should have stated that he prepared the complaint under the instructions of the complainant---Therefore, in those circumstances, the possibility of consultations and deliberations on the part of the complainant could not be ruled out, which created a dent in the prosecution's case---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Appellants along with their co-accused committed murder of the brother of complainant by firing---Motive behind the occurrence was a land dispute between the parties---Admittedly, there was enmity between the parties---Similarly, the complainant, the eye-witness and the Investigating Officer also admitted the previous enmity between the parties---Enmity, as is well known, is a double-edged weapon that cuts both ways---On one hand, it provides a motive for the accused to commit the occurrence in question and on the other hand, it equally provides an opportunity for the first informant to implicate their enemy---Proof of motive by itself might not be ground to hold the accused guilty---Accused's motive to commit the crime, based on their actions, could not, by itself, lead to a judgment of conviction---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Safe custody of parcels compromised---Appellants along with their co-accused committed murder of the brother of complainant by firing---As far as recovery of the weapon of offence, i.e., pistol .30-bore along with five live bullets on the pointing of the appellant No.2, on 23.09.2015 and positive report of Forensic Science Agency,was concerned, as per the prosecution case, on 30.07.2015, the Investigating Officer inspected the place of occurrence and secured seven empties of .30-bore through recovery memo---On 12.09.2015, the appellant No.2 was arrested---Upon the disclosure of the said appellant, on 23.09.2015, pistol .30-bore along with five live bullets were recovered by the Investigating Officer who secured the same into possession through a recovery memo---As per the recovery memo, a pistol, 30 bore, along with five live bullets were secured in the parcel---Deposition of Moharrar Malkhana revealed that a pistol, allegedly containing 30 caliber pistol, was handed over to the Investigating Officer---Contrary to the deposition of Moharrar Malkhana, the Investigating Officer deposed that he deposited it to the office of Forensic Science Agency on the same date along with five alive bullets---However, a perusal of the Firearms and Tool Marks Examination Report revealed that the parcel submitted regarding the allegedly recovered weapon contained only the pistol but live bullets were not received at the office of the Forensic Science Agency, as deposed by the Investigating Officer---Said facts led to the safe conclusion that safe custody of the said parcel had been compromised and not proven, which ultimately rendered the report inconclusive and thus of no help to the prosecution---Appeal against conviction was allowed, in circumstances. Irfan Riaz Gondal with Appellant No. 1. Ali Hussain for Appellant No. 2. Rana Ahsan Aziz, Additional Prosecutor General for the State. Kh. Awais Mushtaq and Rana Jamshaid Hussain Khan for the Complainant. Date of hearing: 15th May, 2025. Judgment Aalia Neelum, C.J.---The appellants-Master Riaz Ahmed son of Muhammad Shafi and Asif alias Aasoo son of Muhammad Sadiq, both Jatt by caste and residents of village Dugree Hariyan, Tehsil Pasrur, District Sialkot, have challenged the judgment dated 26.02.2019 passed by the learned Additional Sessions Judge, Pasrur District Sialkot, in a private complaint filed under sections 302, 109, 148 and 149 P.P.C, titled "Yaseen Farooq v. Muhammad Shahbaz alias Gogi," along with the State case bearing FIR No.241/2015 dated 30.07.2015 under sections 302, 148 and 149 P.P.C registered at P.S. Phalora, Tehsil Pasrur, District Sialkot, whereby the trial court convicted the appellants-Master Riaz Ahmed and Asif alias Aasoo under Section 302 (b) P.P.C and sentenced them to life imprisonment. The appellants were also ordered to pay Rs.1,00,000/- each as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C. In case of default in payment, they would undergo a further six months of simple imprisonment. 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 trial court, the appellants, Master Riaz Ahmed and Asif alias Aasoo, have assailed their conviction by filing Criminal Appeal No.14068 of 2019. It is pertinent to mention here that the complainant also filed Crl. Revision No. 16319/2019 for enhancement of the sentence awarded to the appellants and P.S.L.A. No. 16318/2019 against the acquittal of respondents Nos. 1 to 6. As all the matters arise from the same judgment of the trial court, these are being disposed of through a consolidated judgment. 3. The prosecution's story, as alleged in the private complaint (Ex.PC) of Yaseen Farooq (PW-1), the complainant, is that on 30.07.2015 at about 10:40 a.m., Yaseen Farooq (PW-1), the complainant, along with Ghulam Haider (given up PW) and Muhammad Ijaz (PW-2), was sowing paddy in their fields. His (PW-1) brother Muhammad Naeem (the deceased) was coming to provide them water, and when he reached near them on the main road, a black color Car XLI bearing registration No.LE-5042 and one motorcycle Honda 125, in which (1) Muhammad Shahbaz alias Gogi (coaccused since acquitted) armed with a pistol .30-bore, (2) Muhammad Afzal alias Abbi (co-accused since acquitted) armed with a pistol .30-bore, (3) Muhammad Asif alias Aasoo (the appellant No.2) armed with a pistol .30-bore, (4) Master Riaz Ahmed (the appellant No.1) armed with a pistol .30-bore, (5) Naeem Ahmed alias Kala (co-accused since acquitted) armed with a firearm, along with two unknown accused persons armed with firearms, were boarding, arrived at the scene. Master Riaz Ahmed (the appellant No.1) raised a lalkara to murder Naeem. Upon hearing the voice of the lalkara, Yaseen Farooq (PW-1), the complainant, along with the witnesses, reached the spot. In their view, Muhammad Afzal alias Abbi (co-accused since acquitted) made a straight fire with his .30-bore pistol, which hit Naeem, the brother of the complainant, on his right leg. The second fire was made by Muhammad Shahbaz alias Gogi (co-accused since acquitted), which hit the right thigh of Naeem, causing him to fall. Asif alias Aasoo (the appellant No.2) also fired with his pistol, which hit Naeem on both legs. The remaining accused also fired with their weapons; Master Riaz Ahmed (the appellant No.1) fired straight with his .30-bore pistol, which hit Naeem on his right leg, leaving the brother of the complainant smeared with blood. The motive behind the occurrence was a land dispute between the parties. 4. Upon receiving information about the occurrence, Jamil Akhtar S.I. (CW-7), the investigating officer, reached RHC Chawinda, where Yaseen Farooq (PW-1), the complainant, presented a written complaint (Ex.PA) to him (CW-7). Thereupon, he (CW-7) incorporated police proceedings and referred it to the police station for the registration of a formal FIR through Maqbool Ahmad 958/C. After receiving the written complaint (Ex.PA), Asghar Ali A.S.I. (PW-5) chalked a formal FIR (Ex.PJ). Following the registration of the case, the investigation was conducted by Jamil Akhtar, S.I. (CW-7), who, having found the accused/appellants guilty, prepared a report under section 173 of Cr.P.C. Dissatisfied with the outcome of the investigation, as the investigating officer appeared to be in league with the accused and declared some accused innocent, the complainant (PW-1) was compelled to file a private complaint (Ex.PC). After recording the cursory evidence of the complainant (PW-1) and reviewing the record, all the accused persons were found connected with the commission of the offence, leading to their summons to face the charge. Subsequently, the trial court formally charged the appellants on 03.05.2016, to which they pleaded not guilty and requested a trial. In support of their version, the complainant (PW-1) produced eight (08) witnesses, while the remaining witnesses were summoned as court witnesses, i.e., CW-1 to CW-7. 5. After the closure of prosecution evidence, the appellants were also examined under Section 342 Cr.P.C. Neither of them opted to appear as his own witnesses in terms of Section 340(2) Cr.P.C. nor did they opt to produce any evidence in their defence. In response to a particular question of why this case was against them and why the PWs deposed against them, the appellant No.1-Master Riaz Ahmed made the following deposition: - "I am innocent. Case is false. PW's are inter-se related and interested and inimical against me, who have concocted false story against me just to throw a wider net as the occurrence was unseen one. During all the investigation story of complainant declared false and concocted I was declared innocent. Complainant has some previous grievances against my family which were in the mind of complainant and his family as occurrence was not seen by anyone, so under the influence of all the family member complainant and his family concocted a false story but during investigation not only their story of involving me and other family members at the spot of occurrence was falsify and declared against the fact by declaring that whole the occurrence of firing and killing of deceased was the outcome of one person at the spot by declaring me and all the other members of my family be innocent and not participating in the said occurrence but also by evidence collected at the spot in the form of crime empties. Which was declared to be fired by a single weapon. Moreover, alleged story of conspiracy which was not alleged in the FIR rather same was concocted at a very belated stage, was also falsified during investigation by declaring unnatural, false and un-corroborative." Whereas appellant No.2-Asif alias Aasoo made the following deposition: - "There was party friction in our village and my co-accused-accused Muhammad Riaz Ahmad is also my cousin who is sitting Chairman of Union Council and I remained his supporter forever. Neither I have any criminal or civil litigation with the complainant party nor have any animosity against them as well as the deceased. I have been falsely implicated in this case being close relative of co-accused-accused Master Riaz Ahmad. I am innocent in this case. I.O. with the connivance of others wrongly challaned me in this case." 6. After recording evidence and evaluating the available evidence on record, considering the arguments advanced by both sides, the trial court found that the prosecution's version was proved beyond a reasonable doubt, which resulted in the appellants' conviction, as well as the awarding of a sentence in the afore-mentioned terms. 7. The arguments advanced by both sides have been heard, and the record has been minutely perused. 8. As per the prosecution case, the incident took place on 30.07.2015 at 10:40 a.m. in Mauza Dogri Harian, Main Zafarwal Chawinda Road, falling within the territorial jurisdiction of Police Station Philora, Tehsil Pasrur, District Sialkot, which is at a distance of 11 kilometers from the place of occurrence. Yaseen Farooq (PW-1)-the complainant reported the incident through a written complaint (Ex.PA) to Jamil Akhtar S.I. (CW-7) at RHC Chawinda at 11:30 a.m., who referred the written complaint (Ex.PA) to the police station for registration of a formal FIR through Maqbool Ahmad 958/C. Asghar Ali A.S.I (PW-5) chalked out formal FIR (Ex.PJ) on the written complaint (Ex.PA) at 11:45 a.m. on 30.07.2015 through rapt No.15. Later, being dissatisfied with the investigation, Yaseen Farooq (PW-1)-the complainant filed private complaint (Ex. PC) on 26.01.2016. It is admitted fact that as per the contents of written complaint (Ex.PA), FIR (Ex.PJ), private complaint (Ex.PC), Yaseen Farooq (PW-1)-the complainant has specifically mentioned that his brother, Muhammad Naeem, after receiving firearm injuries on his legs caused by, Muhammad Afzal alias Abbi (co-accused since acquitted), Shahbaz alias Gogi (co-accused since acquitted), Asif alias Aasoo (the appellant No.2) and Master Riaz Ahmad (appellant No.1), smeared with blood. Yaseen Farooq (PW-1)-the complainant has not mentioned in his written complaint (Ex.PA) as well as in private complaint (Ex.PC) that soon after the incident, when and how he shifted his brother to RHC Chawinda and when Muhammad Naeem (the deceased) took his last breath. Yaseen Farooq (PW-1)-the complainant and Muhammad Ijaz (PW-2), brother and paternal uncle of the deceased, respectively, had not stated that what effort they made for saving the life of Muhammad Naeem, the deceased, nor in this regard placed on the record any document revealing that medical treatment was provided to Muhammad Naeem, the deceased, soon after the incident. Yaseen Farooq (PW-1)-the complainant deposed during examination-in-chief that: - "On a green coloured pick up which we halted in the road and put my brother on the said vehicle and we were taking Muhammad Naeem at RHC Chawinda hospital and doctor told us that Naeem has expired." During cross-examination, Yaseen Farooq (PW-1)-the complainant deposed that: - "Complaint Ex. PC was also drafted on my direction, the same was read over to me. The same is also not mentioned in complaint Ex.PC. I have not mentioned in Ex.PC as well as Ex.PA that after the occurrence we got the deceased boarded in a green colour pick up and shifted him to RHC Chawinda. I have also not mentioned in Ex.PA and Ex.PC that doctor at RHC Chawinda had confirmed the death of deceased." Dr. Muhammad Usman Ilyas (PW-6), who conducted postmortem examination on the dead body of Muhammad Naeem, the deceased, deposed during his examination-in-chief that on 30.07.2015, he conducted postmortem examination on the dead body of Naeem at 09:30 p.m.; the mouth was semi-opened. The probable duration between injury and death was within minutes to an hour, and the time between death and postmortem examination was within 24 hours. According to the deposition of Dr. Muhammad Usman Ilyas, M.O. (PW-6), the time between death and postmortem examination was within 24 hours. If I go backward from 9:30 p.m. on 30.07.2015, it will be between 9:30 p.m. on 30.07.2015 and 9:30 p.m. on 29.07.2015. To determine the time of death, the prosecution failed to bring on the record any material evidence revealing when the deceased Muhammad Naeem took his last breath. In addition, as per the post-mortem report (Ex.PK), the autopsy was conducted at 09:30 p.m. on 30.07.2015. Till 09:30 p.m. on 30.07.2019, the FIR was not registered. Dr. Muhammad Usman Ilyas (PW-6) also testified that after conducting the postmortem examination, he prepared a postmortem report (Ex.PK) and signed the police documents, including an injury statement and an application for postmortem examination; his signature on the injury statement is Ex.PJ/3 and on the application for postmortem examination as Ex.PJ/4. From the testimony of Dr. Muhammad Usman Ilyas, M.O. (PW-6), it is revealed that at the time of conducting the postmortem examination, the FIR was not signed by the doctor. This indicates that the FIR was not registered until 9:30 p.m. on 30.07.2015. If the FIR had been registered by 11:45 a.m., the doctor would have stated in his testimony that he had also attested to a copy of the FIR, along with the injury statement and application for post-mortem examination. Dr. Muhammad Usman Ilyas (PW-6) also deposed during cross-examination that due to damage to a major vessel in the thigh, massive bleeding occurred. The incident occurred at 10:40 a.m. After sustaining injuries to the legs, Naeem, the deceased, was taken to the RHC in a car, which is 05 kilometers from the place of occurrence, and could have travelled within a period of about ten minutes to reach RHC Chawinda. Jamil Akhtar S.I. (CW.7), investigating officer, deposed during cross-examination conducted by the complainant that:- "It is correct that Chawinda is at a distance of five kilometers from the place of occurrence. " However, no effort was made by the prosecution witnesses, i.e., Yaseen Farooq (PW-1), the complainant, and Muhammad Ijaz (PW-2), to save the life of the injured. If these witnesses had witnessed the incident, they should have taken care of the injured and provided him with first aid or at least attempted to stop the bleeding. However, no efforts of any kind were made by these two witnesses, which also suggests that they did not see the occurrence. Neither of these two witnesses tried to take the injured to the hospital so that the proper medical treatment could be given to Naeem, and the doctor could have saved him. As already stated, the incident was reported at RHC Chawinda at 11:30 a.m. through a written complaint (Ex. PA), 50 minutes after the occurrence. Yaseen Farooq (PW-1), the complainant, reported the incident through a written application (Ex. PA) in which he neither mentioned what he and the eye-witness, did immediately after the incident nor explained how they took the deceased, who was then injured, to RHC Chawinda. Later, Yaseen Farooq (PW-1), the complainant, filed a private complaint (Ex. PC) on 22.01.2016. In this, he did not mention whether any effort was made to save the deceased, who was then injured, due to the 50-minute gap between the incident and the time of the complaint. The private complaint was filed on 22.01.2016, five months and 22 days after the incident, and during this entire period, he did not explain what happened soon after the incident or how the injured person was taken to the hospital. The police investigation reveals that Jamil Akhtar, S.I. (CW-7), the investigating officer, was in the town of Chawinda when he received information about the incident and then arrived at the Civil Hospital, where Yaseen Farooq (PW-1), the complainant, presented a written complaint (Ex.PA). A reasonable inference, therefore, can be drawn that the deceased was not taken to RHC soon after the incident occurred. These facts indicate a delay of about 50 minutes in providing first aid to Naseem. This also raised a cloud of doubt about when the incident occurred and was reported to the police. Was it because no FIR had been registered at the time, as alleged by the prosecution, or did it come into existence after some consultations and deliberations? I also noted that the post-mortem examination report (Ex.PK) reveals that the probable time between death and post-mortem was within 24 hours. There is no plausible explanation for the 11-hours delay in conducting the post-mortem examination from the time of the FIR registration, i.e., 11:45 a.m. on 30.07.2015. This delay leads to the conclusion that the FIR was recorded late and not at the time it is claimed to have been. This aspect of the matter is sufficient to cast doubt on the authenticity of the FIR. 9. The perusal of inquest report (Ex.CW-7/B) reveals that in column No.1, it was mentioned that dead body was lying on main road Zafarwal Chawinda near Saga Factory and in column No.3 of inquest report (Ex.CW7/B), the date and time of receiving information of death was mentioned as "30.07.2015 at 11:15 p.m." and column No.8 of inquest report (Ex.CW-7/B) reveals that mouth was opened. The prosecution also claimed that Muhammad Naeem, the deceased, was coming to provide the prosecution witnesses with water. In this regard, Yaseen Farooq (PW-1)-the complainant deposed during cross-examination that: - "I have not mentioned in EX.PA about any cooler or vessel, etc, in which my deceased brother was coming for providing us water. I did…

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