PLJ 2025 Cr.C. 432
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, CJ.
MUHAMMAD ALI YASIR etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 9553 & Crl. Rev. No. 11377 of 2021, decided on 17.3.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
- س. 302(ب) -- قتلِ عمد -- سزا و جرم کا تعین -- چیلنج -- دو دھاری ہتھیار -- فرار -- ایسی صورتوں میں جہاں طبی شواہد اور آنکھوں کے سامنے پیش کیے گئے شواہد میں تضاد ہو، قانون کی یہ صورت حال واضح کی جا سکتی ہے کہ اگرچہ گواہ کی آنکھوں کے سامنے دی گئی گواہی طبی شواہد کے مقابلے میں زیادہ قابلِ اعتبار ہوتی ہے، مگر جب طبی شواہد آنکھوں کے سامنے دی گئی گواہی کو غیر ممکن بنا دیتے ہیں تو یہ بات ثبوت کے جائزے کے عمل میں اہمیت اختیار کرلیتی ہے۔ تاہم، جہاں طبی شواہد اس حد تک جاتے ہیں کہ آنکھوں کے سامنے دی گئی گواہی کے درست ہونے کا کوئی امکان باقی نہ رہے، وہاں آنکھوں کے سامنے دی گئی گواہی کو مسترد کیا جا سکتا ہے۔ مدعی نے فریقین کے درمیان تنازعہ قائم کرنے کے لیے کوئی ثبوت فراہم نہیں کیا۔ لہٰذا، ہائی کورٹ اس نتیجے پر پہنچا ہے کہ استغاثہ مجرم کے جرم کرنے سے پہلے کوئی مناسب محرک ثابت نہ کر سکا۔ اب، اپیل کنندہ کے فرار کی بات کی جائے تو استغاثہ کی جانب سے دی گئی آنکھوں کے سامنے پیش کی گئی گواہی، طبی شواہد، اور محرک کے شواہد کی روشنی میں عدالت کا ماننا ہے کہ اگر اپیل کنندہ کے خلاف کوئی مضبوط ثبوت نہ ہو تو فرار کو قصور وار ٹھہرانا مناسب نہیں۔ استغاثہ نے ملزم کے خلاف اپنے کیس کو شک و شبہ سے باہر ثابت نہیں کیا، کیونکہ استغاثہ کی کہانی میں کئی کمزوریاں تھیں۔ ملزمان سے توقع نہیں کی جاتی کہ وہ اپنی بے گناہی مکمل طور پر ثابت کریں۔ اگر استغاثہ کی کہانی مشکوک ہو تو شک کا فائدہ اپیل کنندہ کو دیا جائے گا۔ اس پس منظر میں یہ بخوبی کہا جا سکتا ہے کہ استغاثہ ملزم کی جرم ثابت کرنے میں بری طرح ناکام رہا ہے اور مقدمہ کی عدالت کی جانب سے دی گئی سزا قانون کے تمام اصولوں کے برعکس ہے جو فوجداری انصاف کے نظام کے لیے تسلیم شدہ ہیں۔ قانون کے مطابق ہر شک کا فائدہ ملزم کو دیا جائے گا۔ مقدمہ کی عدالت کی دی گئی سزا کو برقرار نہیں رکھا جا سکتا۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Double-edged weapon--Absconsion--The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to effect that though ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence when medical evidence makes ocular testimony improbable, that becomes a relevant factor in process of evaluation of evidence--However, where medical evidence goes so far that it completely rules out all possibility of ocular evidence being true, ocular evidence may be disbelieved--The complainant has not produced any evidence to establish a dispute between parties--Therefore, High Court is satisfied that prosecution could not prove sufficient motive Court before accused committed crime--Now, coming to absconding of appellant considering my findings regarding ocular account furnished by prosecution, medical evidence, and evidence of motive, Court believe that absconding cannot be taken as proof of guilt if sufficient connecting evidence against appellant is unavailable--The prosecution could not prove its case against accused beyond shadow of a doubt, as there were many dents in prosecution story--The accused persons are not expected to prove their innocence to hilt--If prosecution story is doubtful, benefit of doubt must go to accused-appellant--Against this backdrop, it can safely be held that prosecution has badly failed to bring home guilt of accused/appellant, and conviction passed by trial Court in circumstances is against all canons of law recognized for dispensation of criminal justice--Per dictates of law, benefit of every doubt will be extended in favor of accused/appellant--The conviction and sentence trial Court recorded cannot be sustained.
[P. 439, 440, 441] A, C, D & G
2009 SCMR 230.
Double-Edge Weapon--
موجب کے حوالے سے، یہ ایک تلوار ہے جو دونوں طرف سے چاق کرتی ہے—اب یہ ایک معروف اصول ہے کہ دشمنی ایک دو دھاری ہتھیار ہے—مجرم کی طرف سے موجب کے وجود کو جرم کرنے کی وجہ قرار دیا جا سکتا ہے، تاہم عدالت کو یہ علم میں رکھنا چاہئے کہ کسی خاص کیس میں یہ مدعی کی غلط سزا کا باعث بھی بن سکتا ہے۔
----Regarding motive, it is a double-edged sword that cuts both sides/ways--Now, it is trite law that enmity is a double-edged weapon--The existence of a motive on part of accused may be a reason for committing crime, yet Court must be cognizant that this may, in a given case, lead to false implication of appellant. [P. 440] B
Absconsion--
یہ ایک مستقر قانونی اصول ہے کہ فرار ہونا محض شبہ پیدا کرتا ہے، مگر یہ جرم کا قطعی ثبوت نہیں ہوتا۔
----It is an established proposition of law that absconding creates merely a suspicion in mind, but same is not conclusive proof of guilt. [P. 441] E
PLJ 1995 SC 477
Absconsion--
- اگر استغاثہ ملزم کے خلاف اپنا مقدمہ ثابت کرنے میں ناکام رہا ہے تو ملزم کا محض مفرور ہونا اسے مجرم قرار دینے کی کوئی بنیاد نہیں ہے ۔
----Mere absconsion of accused is no ground to convict him if prosecution has failed to prove its case against accused. [P. 441] F
Benefit of Double--
----The Hon’ble Supreme Court of Pakistan had held that even a single circumstance creating reasonable doubts in a prudent mind about guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right. [P. 441] H
Mian Tabassum Ali, Advocate for Appellants.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Mr. Akhtar Hussain Bhatti, Advocate for Complainant.
Dates of hearing: 17.3.2025.
Judgment
Muhammad Ali Yasir, son of Lal Din, caste Mughal, aged 49 years, professional laborer, resident of House No. 79, Street No. 02, Qadar Colony, Okara, the appellant, was involved in case F.I.R. No. 438 of 2013, dated 08.05.2013, registered under Sections 302, 34, PPC, at Police Station, A-Division, District Okara and was tried by the learned Sessions Judge, Okara. The trial Court seized with the matter in terms of the judgment dated 27.01.2021 and convicted the appellant under Section 302(b), PPC and sentenced him to undergo imprisonment for life with the direction to pay Rs. 3,00,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, Zulfiqar, and in case of default in payment thereof, he would further undergo six months of S.I. The benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the trial Court’s judgment, Muhammad Ali Yasir, the appellant, has assailed his conviction by filing Crl. Appeal No. 9553 of 2021. It is pertinent to mention here that the complainant also filed Crl. Rev. No. 11377 of 2021 qua enhancement of sentence awarded to the appellant. The matters arising from the same trial Court judgment are being disposed of through consolidated judgment.
3. The prosecution story as alleged in the F.I.R (Ex. PA/1) lodged on the written complaint (Ex. PA) of Muhammad Ishtiaq (PW-10)-the complainant is that he is running a shop with the name of Boby Carpet at M.A Jinnah Road, Okara; that on 08.05.2013, at about 08:00 p.m., he (PW-10) along with his father Muhammad Zulfiqar, son of Muhammad Boota was present at the said shop and electric bulbs were on; that suddenly, a motorcycle stopped in front of the shop, driven by an unknown person, while accused Muhammad Ali Yasir while armed with pistol was riding on it; that accused Muhammad Ali Yasir entered into the shop and raised lalkara to teach a lesson to the complainant (PW-10) and his father to divorce his sister and made a straight fire towards the complainant (PW-10) but he saved due to run away at the back of the shop; that Zulfiqar, father of the complainant (PW-10) stepped forward and Muhammad Ali Yasir accused made a straight fire with his pistol, which hit at the chest of his father Zulfiqar and crossed through and through; that father of the complainant (PW-10) fell down on the ground, while accused Muhammad Ali Yasir fled away from the spot. The occurrence was witnessed by the complainant (PW-10), along with Muhammad Nadeem (given up PW) and Sohail Suleman (PW-11); the complainant (PW-10) shifted the injured to the hospital, but he succumbed to the injury.
The motive behind the occurrence was that the complainant (PW-10) was married to the sister of accused Muhammad Ali Yasir, and relations between the parties remained strained. Due to this, the complainant (PW-10) sent a divorce notice to the accused’s sister. Due to this grudge, Muhammad Ali Yasir, the accused, committed the occurrence.
4. Upon receiving the information of the occurrence, Muhammad Yaseen, Inspector-Retired (PW-14), along with police officials, reached the place of occurrence. On written application (Ex.PA) of Muhammad Ishtiaq-the complainant (PW-10) for registration of F.I.R, after completion of police karwai, formal F.I.R. (Exh. PA/1) was chalked out by Riaz ul Haq, 62/HC (PW-1).
5. Muhammad Yaseen, Inspector (PW-14), initially investigated the case after the registration. Thereafter, the investigation of this case was entrusted to Irfan Rasool S.I (PW-13). Then, Irfan Alam Inspector (PW-15), who found the appellant guilty, prepared a challan under Section 173, Cr.P.C. and sent it to the Court of competent jurisdiction. On 14.02.2019, the trial Court formally charged the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as fifteen (15) witnesses.
6. After the closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein he did not opt to appear as his own witness in terms of Section 340 (2), Cr.P.C.; however, he opted to produce defence evidence, i.e., attested copy of suit for declaration (Ex. DC), along with ex-parte judgment dated 06.01.2010 in the titled suit (Ex.DD), attested copy of Hiba Nama/gift deed dated 18.01.2017 (Ex. DE), attested copy of gift deed from Safia Bibi to Iftikhar Ahmad dated 13.01.2014 (Ex. DF), attested copy of sale deed dated 20.09.2014 by Safia Bibi (Ex. DG) and attested copy of sale deed dated 23.09.2014 by Safia Bibi (Ex. DH) and closed the defence evidence. In response to a particular question why this case was against him and why the PWs had deposed against him, the appellant made the following depositions:-
“This is a false case, registered against me. Complainant while concocting a false story and introducing false witnesses implicated me in this false case. In fact, it was a dark night occurrence and the culprits were not known. The deceased was all alone when he received fire shot. Complainant of this case was inimical towards me and he was not man of good character. He tried to kill two birds with one stone. There was litigation of the deceased with the complainant and his other son namely Iftikhar Ahmad and the whole episode of this case was farfetched by the complainant being collusive with said Iftikhar Ahmad. I had no reason to attack the deceased. The complainant party in order to save their skin falsely roped me in this false case. I am innocent.”
7. After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial Court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant’s conviction in the afore-stated terms.
8. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.
9. As per the prosecution case, the incident occurred at 08:00 p.m. on 08.05.2013 in the shop of Boby Carpet, located at M.A, Jinnah Road, Okara, situated within the territorial jurisdiction of police station A-Division, Okara, wherein Muhammad Zulfiqar, father of the complainant, Muhammad Ishtiaq (PW-10) received firearm injuries; Ishtiaq Ahmad (PW-10)-the complainant along with Sohail Suleman (PW-11) and Muhammad Nadeem (given up PW) took him (Muhammad Zulfiqar) in injured condition to DHQ Hospital in a car, where he succumbed to the injuries. After that, Ishtiaq Ahmad (PW-10)-the complainant, went to the police station and reported the incident through the written application (Ex.PA) to Riaz-ul-Haq 62/H.C (PW-1)-Moharrar, who chalked out a formal FIR (Ex.PA/1) at 09:30 p.m. on 08.05.2013, whereas the distance between the police station and place of occurrence was 01-K.M. Contrary to the above, in the column meant for brief history in the inquest report (Ex.PM), it was mentioned that Muhammad Yaseen Inspector (Retired) (PW-14)-the Investigating Officer on receiving information about the occurrence, reached hospital in Emergency ward, where Ishtiaq Ahmad (PW-10)-the complainant handed over written application for registration of case. The relevant portion of the inquest report (Ex.PM) is reproduced hereunder:
In the above-said circumstances, the prosecution tried to prove that the matter was promptly reported to the police after providing medical treatment to Muhammad Zulfiqar (the deceased) at DHQ Hospital. These facts indicate that the incident was not reported at the time and place as alleged by the prosecution and was lodged with undue delay; therefore, this possibility cannot be ruled out that the FIR was lodged after consultation and deliberations. During cross-examination, Ishtiaq Ahmad (PW-10)-the complainant, deposed that:-
I moved application Ex.PA to the police for the registration of FIR at about 9:30 P.M. Police arrived at the hospital at about 10.00/10.15 P.M.
Muhammad Yaseen Inspector (Retired) (PW-14)-the Investigating Officer deposed during examination-in-chief that:
“Stated that on 08.05.2013, I was posted at P.S A-Division Okara. On the same day, investigation of this case was entrusted to me. I along with police officials reached DHQ hospital Okara, where the dead body of deceased Zulfiqar was lying on a stretcher. I inspected the dead body of deceased, prepared injury statement Ex.PK, application for postmortem Ex.PK/1, inquest report Ex.PM of deceased and handed over the dead body along with police papers to Muhammad Akram No. 286/C for conducting post mortem examination.”
During cross-examination, Muhammad Yaseen Inspector (Retired) (PW-14)-the Investigating Officer deposed that:
“I received the information of the occurrence at about 10.00 P.M (night), when the FIR was received to me.-------------I reached in the hospital at about 10.15 P.M. I inspected the dead body and prepared police papers. I started to prepare police papers i.e. inquest report and other documents at about 10.15 P.M. It took 10 to 15 minutes in preparing police papers, and handed over the dead body to the constable for post mortem examination and I proceeded at the place of occurrence.”
Whereas, Muhammad Yar (PW-12), the identifier of the dead body, deposed during cross-examination that:
“I along with Imran reached the hospital at about 8.00/8.15 P.M. My residence is situated at the back side of shop of Imran alias Bobi i.e place of occurrence.”
Contrary to his deposition, Muhammad Yaseen Inspector (Retired) (PW-14)-the Investigating Officer mentioned in Column No. 3 of the inquest report (Ex.PM), relating to the time and date of receiving information of death, as “08.05.2013, at 08:45 p.m.” and in column No. 4 of the inquest report (Ex.PM), the names of witnesses were mentioned as “Imran son of Zulifqar and Muhammad Yar (PW-12) and names of the witnesses Muhammad Ishtiaq (PW-10)-the complainant and Muhammad Nadeem (given up PW) were not mentioned, which creates doubt about the presence of witnesses at the time of preparing the inquest report. All the above facts create doubt about the time and place where the original matter was reported by Muhammad Ishtiaq (PW-10)-the complainant, to the police.
10. It is further observed that as per the prosecution case, Muhammad Zulfiqar was brought to the hospital in injured condition, where he died. Whereas Dr. Ozair Tahir (PW-9), who conducted postmortem examination on the dead body of Zulfiqar Ali-the deceased, deposed during the examination-in-chief that rigor mortis were fully developed, the duration between injuries and death was within 15 to 20 minutes and between death and postmortem was two and a half to three hours. Dr. Ozair Tahir (PW-9) deposed during cross-examination that:
“It is correct that there is no any document on the file which may suggest that the deceased was received in injured condition at hospital.”
The average time for developing rigor mortis in all four limbs is observed to be 12 hours. They remain intact for the next 12 hours, and thereafter, they start disappearing, taking about 12 hours to disappear completely. If this Court applies the yardstick as spoken by Dr. Ozair Tahir (PW-9), the death must have occurred around about 03:50 p.m. on 08.05.2013. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. In addition, Sohail Sulaiman (PW-11), who is the friend of the brother of the complainant, deposed about his presence during cross-examination as under:
“I recorded in my statement under Section 161, Cr.P.C that complainant saved himself while taking the shelter of Pillar. Confronted with Ex.DA where it is not so recorded. I recorded before police that we shifted the injured to the hospital. Confronted with Ex.DA where it is not so recorded. I recorded in my statement that on the day of occurrence, the sister of Muhammad Ali Yasir received notice of divorce, which nourished the grudge in the mind of accused. Confronted with Ex. DA where it is not so recorded.”
Ishtiaq Ahmad (PW-10)-the complainant deposed during cross-examination that:
“I got recorded in application that I and my father was running Bobi Carpet Shop at M-A Jinnah Road Okara. Confronted with Ex.PA, where the words my father are not recorded. I recorded in application for registration of case that Sohail Sulaiman and Nadeem Bashir PWs were talking with each other at my shop. Confronted with Ex.PA, wherein the words “talking with each other” are not mentioned. I recorded in application that I was saved due to the back of pillar. Confronted with Ex.PA, wherein it is not so recorded. I recorded in application that Muhammad Ali Yasir made second fire shot which landed at the belly of my father, Muhammad Ali Yasir accused made third fire shot which hit at the back of my father Muhammad Zulfiqar. Confronted with Ex.PA, wherein it is not so recorded.”
Given the above depositions of prosecution witnesses, i.e., Ishtiaq Ahmad (PW-10)-the complainant, and Sohail Sulaiman (PW-11), both eye-witnesses were chance witnesses. They were bound to give credible explanations for being present at the place of the incident. Neither did the eye-witnesses give any reasonable explanation, nor any material has been placed on record to substantiate their presence at the place of occurrence on a fateful day. Besides, as per the prosecution case as narrated by the complainant in his application (Ex.PA), the accused/appellant made one straight fire shot, which went through and through. However, during postmortem examination, the doctor observed three firearm injuries. The medical account, ocular account and documentary evidence in the shape of the inquest report (Ex.PM) negate the case of the prosecution. Considering these facts, this Court believes that the prosecution has withheld the true genesis of the occurrence. Therefore, the possibility of the appellant’s false implication in the alleged crime cannot be ruled out.
11. Regarding motive, it is a double-edged sword that cuts both sides/ways. Now, it is trite law that enmity is a double-edged weapon. The existence of a motive on the part of the accused may be a reason for committing the crime, yet the Court must be cognizant that this may, in a given case, lead to the false implication of the appellant. As per the prosecution version put forth in the crime report by Ishtiaq Ahmad (PW-10)-the complainant who deposed during examination-in-chief that:
“Motive behind the occurrence was that I was married to the sister of Muhammad Ali Yasir accused namely Saima Naz and the relations between us became strained and I sent here a notice of divorce. Due to this grudge, Muhammad Ali Yasir accused committed the instant occurrence and murder of my father.”
Sohail Sulaiman (PW-11)-the eye witness deposed during the examination-in-chief that:
“Motive for the occurrence was that Muhammad Ishtiaq complainant had divorced the sister of Muhammad Ali Yasir and in this regard, notice was received by the accused who nourished a grudge in the mind of accused which resulted this occurrence.”
Whereas Hamid Rasheed SI (PW-8)-the Investigating Officer, deposed during cross-examination that:
“The investigation of this case remained with me from 13.11.2018 to 07.12.2018. The complainant party did not produce any documentary evidence before me during the said period.
The depositions of Ishtiaq Ahmad (PW-10), the complainant, and police officials reveal that the complainant has not produced any evidence to establish a dispute between the parties. Therefore, this Court is satisfied that the prosecution could not prove sufficient motive before the accused committed the crime.
13. As far as recovery of the weapon of offence, i.e., pistol 30-bore (P-4) and three live bullets (P-5/1-3) from the possession of the appellant is concerned, the recovery of the weapon from the accused/appellant is of no consequence because the report of Forensic Science Laboratory, Punjab, Lahore (Exh. PQ) is only to the effect that the weapon allegedly recovered from the accused/appellant was in mechanical operating condition.
14. Now, coming to the absconding of the appellant till 14.12.2018, considering my findings regarding the ocular account furnished by the prosecution, the medical evidence, and the evidence of motive, I believe that the absconding cannot be taken as proof of guilt if sufficient connecting evidence against the appellant is unavailable. In this respect, reference can be made to the case of “Barkat Ali v. Muhammad Asif and others” (2007 SCMR 1812). Even otherwise, by now, it is an established proposition of law that the absconding creates merely a suspicion in mind, but the same is not conclusive proof of guilt. Reliance in this respect is placed on the case of “Rasool Muhammad v. Asal Muhammad and another” (PLJ 1995 SC 477). However, mere absconsion of the accused is no ground to convict him if the prosecution has failed to prove its case against the accused.
15. From the facts and circumstances narrated above, I am persuaded that the prosecution could not prove its case against the accused beyond the shadow of a doubt, as there were many dents in the prosecution story. The accused persons are not expected to prove their innocence to the hilt. If the prosecution story is doubtful, the benefit of the doubt must go to the accused-appellant. Against this backdrop, it can safely be held that the prosecution has badly failed to bring home the guilt of the accused/appellant, and the conviction passed by the trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. Per the dictates of the law, the benefit of every doubt will be extended in favor of the accused/appellant. The conviction and sentence the trial Court recorded cannot be sustained. Reliance has been placed on the case reported as Muhammad Akram v. The State (2009 SCMR 230), wherein the Hon’ble Supreme Court of Pakistan had held that even a single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right.
16. As a result, Criminal Appeal No. 9553 of 2021 is accepted into toto. Conviction and sentence recorded by the trial Court vide judgment dated 27.01.2021 is set aside as a consequence of which, Muhammad Ali Yasir, son of Lal Din-the appellant, is ordered to be acquitted of the charge in case F.I.R. No. 438 of 2013, dated 08.05.2013, registered under Sections 302, 34, PPC, at Police Station, A-Division, District Okara. The appellant, Muhammad Ali Yasir, son of Lal Din, is in jail. He (the appellant) is directed to be released forthwith if not required in any other case.
17. So far as Crl. Revision No. 11377 of 2021 seeking enhancement in the sentence of Respondent No. 2 inflicted by the trial Court is concerned, for the afore-stated reasons, the same has no weight, which is accordingly dismissed.
(A.A.K.) Appeal accepted
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