PLJ 2025 Cr.C. 686
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum, CJ.
MUHAMMAD AMIR alias ANEEL etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 83064 of 2023, Crl. Rev. No. 2545 of 2024,
decided on 29.4.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
دفعہ 302(ب)--قتلِ عمد--سزا اور conviction
--یہ ایک طے شدہ قانون ہے کہ ملزم کو فوجداری مقدمات میں واقعہ کے وقوعہ کو ثابت کرنے کی ضرورت نہیں ہے--لیکن زیرِ نظر معاملے میں، دفاع نے پورے منظر اور واقعہ کیسے پیش آیا اس کی تصدیق کی--استغاثہ نے ثابت کیا کہ واقعہ کیسے پیش آیا اور کب پولیس کو رپورٹ کیا گیا۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--It is a settled law that accused need not to prove events of incident in criminal cases--But in instant case, defence reaffirmed entire scene and how incident occurred--The prosecution proved how incident occurred and when it was reported to police. [P. 690] A
Pakistan Penal Code, 1860 (XLV of 1860)--
ٹرائل کورٹ کے لیے یہ ضروری ہے کہ اگر چیف امتحان ختم ہو جائے تو اسی دن کراس امتحان مکمل کیا جائے ۔ اگر وقت ختم ہونے کی وجہ سے اسی دن ریکارڈنگ ناممکن ہے تو ٹرائل کو کراس امتحان کے لیے اگلے دن تک ملتوی کیا جا سکتا ہے ۔ یہ ذکر کرنا ضروری ہے کہ کوئی بھی گواہ ریاضیاتی طور پر اس بات کو دوبارہ پیش نہیں کر سکتا جو اس نے پہلے بیان کیا تھا-وقت گزرنے کے ساتھ ، انسانی یادداشت خراب اور کمزور ہو جاتی ہے - زبان کی پھسلن کی وجہ سے انتہائی سچے گواہ کی گواہی میں کچھ تضادات ظاہر ہوں گے ، جس کا گواہوں کی گواہی پر کوئی منفی اثر نہیں پڑا ، اسی طرح یہ دیکھنے کے لیے تجزیہ کیا جانا چاہیے کہ آیا یہ اعتماد پیدا کرنے والا ہے یا دوسری صورت میں - اگر ملزم دفاع کا ایک قطعی ورژن متعارف کراتا ہے اور مذکورہ دفاع کو قائم کرتا ہے ، تو اسے یہ ظاہر کرنا ہوگا کہ ریکارڈ پر دستیاب مواد کی بنیاد پر اس طرح کی درخواست کے حق میں امکانات کی اہمیت ہے ۔ ملزم اس طرح کے دفاع کی حمایت کرنے والے کافی مواد کے بغیر اس پر بھروسہ نہیں کر سکتا ۔ ملزم عدالت کے ذہن میں شک پیدا کرنے کے لیے استغاثہ کے گواہوں سے معلومات کا فائدہ اٹھا سکتا ہے کہ آیا استغاثہ کا بیان درست ہے اور اس طرح کے شک کا فائدہ اٹھا سکتا ہے ۔ پراسیکیوشن نے اپنا مقدمہ آگے بڑھایا تھا ، جس میں یہاں تک کہ منٹ کی تفصیلات بھی سامنے لائی گئیں تھیں-شکایت کنندہ اور دیگر استغاثہ کے گواہ ، اپیل گزار کو جھوٹے طور پر پھنسانے کی کوئی بری مرضی نہیں رکھتے تھے ، اور یہ شاذ و نادر ہی کسی بھی نظم یا وجہ کے بغیر حقیقی مجرموں کی جگہ لے لیتے ہیں ۔ استغاثہ نے اپیل کنندہ کے خلاف اپنے مقدمے کو ایک آکولر اکاؤنٹ ، شناختی پریڈ ، اور موٹر سائیکل (پی-6) کی بازیابی کی شکل میں زبردست ثبوت کے ذریعے ثابت کیا تھا جو سیدھے سادے ، اعتماد پیدا کرنے والے تھے ، اور زیادہ تر فطری گواہوں کے منہ سے آتے ہیں ،-دفاع یہ یقین کرنے میں ناکام رہا کہ استغاثہ کے گواہوں نے واقعہ نہیں دیکھا تھا-وہ متعلقہ وقت پر کہیں اور موجود تھے ، جس نے ہائی کورٹ کو یہ نتیجہ اخذ کرنے پر مجبور کیا کہ استغاثہ نے اپیل گزار کے خلاف اپنا مقدمہ معقول شک سے بالاتر ثابت کیا تھا ، اور ٹرائل کورٹ کو سیکشن 302 پی سی کے تحت سزا سنانے میں اچھی طرح سے جواز پیش کیا گیا تھا ۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Ocular account--Challenge to--It is necessary for trial Court that if examination-in-chief is over, cross-examination should be completed on same day--If recording on same day is impossible due to running out of time, trial can be adjourned to next day for cross-examination--It is necessary to mention that no witness can mathematically reproduce what he Stated earlier--With passage of time, human memory fumbles and falters--Certain contradictions would appear in testimony of a most truthful witness due to a slip of tongue, which had no negative impact on testimony of witnesses, as same must be analyzed to see whether it is confidence-inspiring or otherwise--If accused introduces a definite version of defence and establishes said defence, he must show that preponderance of probabilities is in favor of such a plea based on material available on record--The accused cannot rely on it without sufficient material supporting such a defence--The accused may take advantage of information from prosecution witnesses to create doubt in Court’s mind about whether prosecution’s version is true and may take benefit of such doubt--Prosecution had advanced its case, wherein even minute details had been brought forth--Complainant and other prosecution witnesses, had no ill will to implicate appellant falsely, and it seldom seems to substitute real culprit(s) without any rhyme or reason--Prosecution had proved its case against appellant through leading compelling evidence in shape of an ocular account, identification parade, and recovery of motorcycle (P-6) which were straightforward, confidence-inspiring, and come from mouths of most natural witnesses,--Defence failed to lead a single circumstance to believe that prosecution witnesses, had not witnessed occurrence--They were present elsewhere at relevant time, which prompted High Court to conclude that prosecution had proved its case against appellant beyond a reasonable doubt, and trial Court was well justified in convicting appellant under Section 302(b), P.P.C. [Pp. 695, 699 & 702] B, C & D
Mr. Ali Hussain, Advocate for Appellant.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Mr. Khawar Mahboob Malik, Advocate for Complainant.
Date of hearing: 29.4.2025.
Judgment
The appellant-Muhammad Amir alias Aneel, son of Jameel Ahmed, caste Mayo, resident of Chak No. 45 Purana Thal Pattoki, District Kasur, was involved in case F.I.R. No. 1736 of 2019, dated 12.06.2019, registered under Section 302, PPC, at Police Station Kahna, District Lahore and was tried by the learned Additional Sessions Judge, District Lahore. The learned trial Court seized with the matter in terms of the judgment dated 09.12.2023, convicted the appellant Muhammad Amir alias Aneel under Section 302(b), PPC, and sentenced him to undergo rigorous imprisonment for life as Ta’zir. The appellant was also directed to pay Rs. 5,00,000/- as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C. in case of default in payment thereof, to undergo further 06-months simple imprisonment. The benefit of Section 382-B of Cr.P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the trial Court, the appellant-Muhammad Amir alias Aneel, has assailed his conviction by filing instant Criminal Appeal No. 83064 of 2023, whereas the complainant, being dissatisfied with the impugned judgment dated 09.12.2023, preferred a Criminal Revision No. 2545 of 2024 for enhancement of sentence of the Respondent No. 1/appellant. Both the matters arising from the same judgment of the trial Court are being disposed of through a single judgment.
3. It would not be out of context to mention here that earlier, the appellant-Muhammad Amir alias Aneel was convicted by the trial Court vide judgment dated 05.07.2021, against which the appellant preferred an appeal bearing Crl. Appeal No. 48425-J/2021 titled “Muhammad Amir alias Aneel. vs. The State”. However, vide judgment dated 14.11.2023, the matter was remanded to the trial Court for re-writing of judgment while giving its finding with respect to acquittal or conviction of the accused under Section 201, PPC.
4. The prosecution story as alleged in the F.I.R (Ex.P1) lodged on the application (Ex.PA) of Salamat Ali (PW-1)-the complainant is that his son Shaban Ali was running a gas shop at Purana Kahna. On 11.06.2019, his son went to his shop on the motorcycle, who usually used to returned from his shop after Isha’s prayer. However, on the said date, he did not return. On 12.06.2019 at about 01:15 a.m. (night), the complainant (PW-1) went out of his house in search of his son. When he (PW-1) reached the Telephone Exchange main Feroze Pur Road, he saw that different people were gathered, and his son Shaban was lying in the pond of blood, having sharp edge injuries on his neck and the remaining parts of his body. Ghulam Ali (PW-3) and Muhammad Adeel (PW-2) were also present there, alongwith other people, who told the complainant (PW-1) that an unknown young man wearing Shalwar Qameez inflicted Churri blows upon Shaban. They forbade the accused, who managed to escape on the motorcycle while armed with a Churri. They witnessed the occurrence in the light of a bulb, and they could identify the accused. Ghulam Ali (PW-3) informed the police by calling at 15. The complainant (PW-1) was shifting Shaban in the injured condition through ambulance 1122 at General Hospital, Lahore, who succumbed to injuries on the way.
5. After the registration of the case, the investigation was entrusted to Saif Ullah, S.I. (PW-11), who, having found the accused/ appellant guilty, prepared a report under Section 173, Cr.P.C., and submitted it to the Court of competent jurisdiction. The trial Court formally charge-sheeted the appellant, who pleaded not guilty and claimed trial. In support of its version, the prosecution presented thirteen (13) witnesses. The appellant was also examined under Section 342, Cr.P.C., where he neither chose to appear as his own witness under Section 340 (2), Cr.P.C. nor presented any defence evidence.
6. 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’s version proved beyond any shadow of a doubt, which resulted in the appellant’s conviction in the afore-stated terms.
7. Arguments advanced by the learned counsel for the parties have been heard and minutely perused the record on the file.
8. As per the prosecution version contained in the crime report, the occurrence had taken place on the night of 12.06.2019 at 01:15 a.m. (night), and the case had been registered on the written complaint (Exh.PA) of Salamat Ali (PW-1)-the complainant, father of Shaban Ali, deceased. Salamat Ali (PW-1)-the complainant, reported the incident through the written application (Ex.PA) to Sher Alam, A.S.I. (PW-10), at 02:40 a.m. at the Emergency Ward of General Hospital, Lahore, who incorporated police proceedings (Ex.PA/2) at the bottom of the application for registration of case and sent the same to the police station for lodging of formal FIR through Abdul Ghafoor 7408/C, upon which FIR (Ex.PI) was chalked out by Muhammad Saleem S.I. (PW-9) at 03:00 a.m. In the cross-examination, Salamat Ali (PW-1)-the complainant, reaffirmed that when he reached the place of the incident, his son was alive, Adeel and Ghulam Ali PWs were present at the spot, and Ghulam Ali (PW-3) called the police and 1122. Salamat Ali (PW-1)-the complainant deposed during cross-examination that:
“When I reached at the place of occurrence then at that time Shaban was alive. Shaban was not in a position to talk with me as his neck was cut. Shaban also sustained injuries on the cheek, neck and hand. Adeel and Ghulam Ali PWs were familiar with me, Adeel deals in sale of gas and father of Ghulam Ali PW was my friend. Deceased and Adeel were doing same business of gas. Ghulam Ali PW firstly called police and then 1122. Shaban succumbed to the injuries in ambulance. -------------Occurrence was happened before 10/15 minutes of my arrival at the place of occurrence. ------------Ghulam Ali and Adeel PWs were present at the place of occurrence at the time of occurrence and chased accused.”
Similarly, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) described the events that took place at the time of the incident and before reaching the complainant (PW-1) on the spot, during cross-examination. Muhammad Adeel (PW-2) deposed during cross-examination that:
“When we reached at the place of occurrence then Shaban was lying on the ground. People of the locality were gathered there. Said persons were 15/20 in number. Said persons were standing around the Shaban. When we reached there then it came into our notice that he was Shaban. Ghulam Ali PW called police. (Bold for emphasis)”
Ghulam Ali (PW-3)-the eye-witness deposed during cross-examination that:
“When we reached at the place of occurrence then Shaban was lying on the ground. Other people also gathered at the place of occurrence. Adeel gave water to Shaban. When we reached at the place of occurrence then Shaban was alive but he was not in a position to talk with us as his throat was cut. I made telephone call to the police at about 01:30 AM. -------I called 1122. (Bold for emphasis)”
Saif Ullah S.I. (PW-11)-the investigating officer deposed during cross-examination that:
“Investigation was entrusted to me at about 03:20 AM on 12.06.2019. Distance between place of occurrence and police station is about one/one and half kilometer. Distance between place of occurrence and General Hospital Lahore is about five/six kilometers. Metro bus service does not operate near the place of occurrence. Place of occurrence is near telephone exchange at Ferozepur Road. From police station I straight went to General Hospital Lahore. When I reached at hospital then complainant met me there and Sher Alam ASI was also present there.”
It is a settled law that the accused need not to prove the events of the incident in criminal cases. But in the instant case, the defence reaffirmed the entire scene and how the incident occurred. The prosecution proved how the incident occurred and when it was reported to the police. Here, it is relevant to answer the argument of learned counsel for the appellant that Salamat Ali (PW-1)-the complainant, deposed during cross-examination that the application for registration of the case was filed on 12.06.2019 at about 03:00 a.m., which creates doubt on the prosecution’s case, which is misconceived. It does not deny that Salamat Ali (PW-1)-the complainant, is a simple and ordinary person and, as such, may not be intelligent enough to understand the meaning of the sentence put by the defence during cross-examination. It is usually said that the case was reported instead of FIR being registered. The facts unfolded by Salamat Ali (PW-1)-the complainant, Muhammad Adeel (PW-2), and Ghulam Ali (PW-3), the eye-witnesses, are found to be consistent about the time of occurrence, time of reporting the incident, and time of registration of the case. Keeping in view the testimony of Salamat Ali (PW-1)-the complainant, Muhammad Adeel (PW-2), and Ghulam Ali (PW-3), the eye-witness, any delay becomes immaterial, and the same cannot be given any weight.
9. As regards the actual incident, the prosecution’s case rests on the testimonies of Muhammad Adeel (PW-2) and Ghulam Ali (PW-3). Prosecution witnesses, i.e., Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), are not relatives of the complainant. Instead, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) are residents of the same vicinity, and the defence affirmed the presence of both witnesses during cross-examination. Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) are independent witnesses and have no motive or hostility for the false implication of the accused/appellant. These witnesses, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), had proved their presence at the place and time of occurrence. The prosecution, during cross-examination, brought on the record the reason for the presence of Salamat Ali (PW-1)-the complainant, at the place of occurrence after the occurrence and the presence of Muhammad Adeel (PW-2), and Ghulam Ali (PW-3), the eye-witness before the occurrence. Saif Ullah S.I. (PW-11)-the investigating officer affirmed that when he visited the place of the occurrence, he met with Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), and other people of the locality supported the stance of the witnesses, i.e., PW-2 and PW-3. Saif Ullah S.I. (PW-11)-the investigating officer deposed during cross-examination that:
“I recorded the Statements of eye-witnesses at the place of occurrence. When I visited the place of occurrence then various persons were present there but they were not willing to give Statement except witnesses Ghulam Ali and Adeel. People of the locality supported the stance of said witnesses regarding occurrence but they were not willing to give Statement.”
Admittedly, Salamat Ali (PW-1)-the complainant and father of the deceased, is not the eye-witness of the occurrence. Instead, the complainant (PW-1) later reached the place of occurrence. Salamat Ali (PW-1)-the complainant deposed during cross-examination that his son was used to returning from his shop at about 10:00/11:00 p.m.; on 11.06.2019, the complainant’s son did not return till late at night. After that, at 01:15 a.m., he went in search of his son Shaban Ali at his shop to inquire about him, but on the way, he reached the telephone exchange and saw his son lying there in a pool of blood in an injured condition. The complainant’s conduct as a father is quite natural; when his son did not reach home, he went in search. During cross-examination, the defence also affirmed the presence of the eye-witnesses at the place of occurrence by putting questions to Salamat Ali (PW-1)-the complainant. Salamat Ali (PW-1)-the complainant deposed during cross-examination that Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) were present there along with other people, and they informed him that the unknown accused inflicted Churri blows upon Shaban Ali. In the cross-examination, Salamat Ali (PW-1)-the complainant, affirmed that the place of occurrence was situated at 200/250 meters from his house and the deceased was living with him; his deceased son used to return home at 10:00/11:00 PM; however, in case any customer visited his shop in the late hours, then he was used to returning home late. The deceased’s shop was situated one and a half/two kilometers from his residence and in the same direction. The evidence on record shows that the incident was witnessed by independent witnesses, i.e., Muhammad Adeel (PW-2) and Ghulam Ali (PW-3). Both these witnesses deposed that on 12.06.2019 at about 01:15 a.m., they were present near the place of occurrence. On hearing the hue and cry, they were attracted to the place of the occurrence and saw a young man wearing a Shalwar Qameez armed with a knife inflict knife blows upon Shaban Ali, who was a resident of Ghulam Ali’s
(PW-3) Mohallah. The unknown accused was murdering a person with a knife. I may mention here that the prosecution had produced independent witnesses, i.e., Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), to prove the prosecution’s version. The prosecution witnesses, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) remained consistent on salient features of the case, particularly about how they had approached the place of occurrence on hearing voices of hue and cry and further witnessing the mode and manner in which the appellant inflicted Churri blows on the neck of the deceased and after that, fleeing away from the place of occurrence. The depositions of eye-witnesses, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), are true, confidence-inspiring, and appealing to reason. The fact also remains that despite lengthy cross-examination, the defence could not create any serious crack going to the root of the case. The defence reaffirmed from the prosecution witnesses their presence at the place of occurrence and the mode and manner of the occurrence. Muhammad Adeel (PW-2) deposed during cross-examination that:
“I am familiar with the complainant for the last eight/ten years. Deceased Shaban was also my friend for the five/seven years. Shaban was my age fellow. I have been doing business of Gas shop for the last fifteen years. ------------------------. Name of fruit vendor was Shahbaz. Said Shahbaz was selling apple, water melon etc. I was eating apple. I was present at the cart of said vender and Ghulam Ali attracted there after hearing hue and cry. In my Statement u/S. 161, Cr.P.C. I did not mention that Ghulam Ali attracted thereafter hearing hue and cry. Ghulam Ali was present at another cart of fruit vendor. At the time of hearing hue and cry Ghulam Ali was present with me and we both attracted towards the place of occurrence. When we reached at the place of occurrence then Shaban was lying on the ground. People of the locality were gathered there. Said persons were 15/20 in number. Said persons were standing around the Shaban. When we reached there then it came into our notice that he was Shaban. Ghulam Ali PW called police. I purchased apple of worth Rs. 50/-. Ghulam Ali did not purchase apple from said Court. I ate apple alone. I have eaten apple when I heard hue and cry and I was chatting with Ghulam Ali PW. I was used to eat apple in routine at 01:00 AM. I took dinner at home. I remained present at my shop from 09:00 PM till 09:00 AM. On 12.06.2019 I took dinner at home at about 08:00 PM and then came to my shop. It came into the notice of complainant after about two/two and half months that Muhammad Amir accused committed the murder of Shaban. On 12.06.2019 I and Ghulam Ali PW became together on the cart of fruit vender by chance.”
Ghulam Ali (PW-3)-the eye-witness deposed during cross-examination that:
“I was not familiar with accused Muhammad Amir prior to the occurrence. I attracted at the place of occurrence after hearing voice of noise when I was eating fruit i.e., apple etc. from push cart and Adeel was also present there. I don’t know the kinds of fruit available at said push cart. ------------------In the month of June apple usually remain available in the market. Name of fruit vendor was Shahbaz. Police also inquired about the occurrence from said Shahbaz. I was used to often visit Shahbaz fruit vendor at the time of night for the purchase of fruit as his shop is situated on the way of my home and he was used to keep fruit on ice for eating purpose. --------------I and Adeel together reached at the place of occurrence. Shop of Adeel remained open for 24 hours. --------------When we reached at the place of occurrence then Shaban was lying on the ground. Other people also gathered at the place of occurrence. Adeel gave water to Shaban. When we reached at the place of occurrence then Shaban was alive but he was not in a position to talk with us as his throat was cut. I made telephone call to the police at about 01:30 AM. ------------------------I called 1122. Salamat Ali, me and Adeel were also present in ambulance when Shaban was shifted to hospital. At the time of occurrence my shop was closed and I was going to my home after closing shop. In the days of occurrence, I was used to close shop at 01:00/02:00 AM. My Statement was recorded by the I.O regarding occurrence. I told the I.O that I was going after closing shop and saw the occurrence. Confronted with Exh. DA where it is not mentioned that I was going home after closing shop rather it is mentioned that I was going home after finishing my work. Deceased was living with his father near Jamia Kalsoom Mosque. --------- Name of I.O was Saif Ullah Niazi S.I. --------------. Abid Battery shop and Malik Iron store are situated near the place of occurrence. Telephone exchange is situated adjacent with place of occurrence. Said Bazar remain open till 12:00 /01:00 AM. Malik Iron store was closed at the time of occurrence. Abid Battery shop was also closed. Shops were closed but fruit vendor was sitting there for business. Total two fruit vendors sell fruit near the place of occurrence. Fruit vendor from whom I purchased fruit has been working there for the last 10/ 12 years. Name of second fruit vendor is not known to me. A road is situated in between two carts of fruit vendors. Shahbaz fruit vendor do his business at the same side of the road where my shop is situated. When police collected blood-stained soil from the place of occurrence then I was present there and time was about 03:45/04:00 AM in the night of occurrence.”
Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) testified about the sequence of events they witnessed. The learned counsel for the appellant argued that Ghulam Ali’s (PW-3) presence was not established, as he altered his Statement in Court from what he told the investigating officer— from “going home after closing shop” to “going home after finishing my work”—which is misconceived. There is no meaningful difference between returning home after closing the shop and finishing work. The shop owner could say that he was returning after finishing work or closing the shop.
The witness may not be intelligent enough to recall the exact words used when returning from work, as Stated previously. Salamat Ali (PW-1)-the complainant, was particular in deposing during cross-examination, “Gas shop of Ghulam Ali is situated near my house in the street which links to main road and --------------.” Muhammad Adeel (PW-2) deposed during cross-examination that “Ghulam Ali came there after closing his shop.” Salamat Ali (PW-1) and Muhammad Adeel (PW-2) admitted that Ghulam Ali (PW-3) is a shopkeeper. The incident in this case took place on 12.06.2019 (as detailed above), the examination in chief of Muhammad Adeel (PW-2) as well as Ghulam Ali (PW-3) was recorded on 20.10.2020. However, the cross-examination of Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) was recorded on 16.06.2021 and 08.06.2021, respectively. The trial Court must ensure that the trial is conducted in accordance with the law and that no adjournments are granted in a manner that would be tantamount to violating the rule of law. It is necessary for the trial Court that if the examination-in-chief is over, the cross-examination should be completed on the same day. If recording on the same day is impossible due to running out of time, the trial can be adjourned to the next day for cross-examination. It is necessary to mention that no witness can mathematically reproduce what he stated earlier. With the passage of time, the human memory fumbles and falters. Certain contradictions would appear in the testimony of a most truthful witness due to a slip of the tongue, which has no negative impact on the testimony of the witnesses, as the same must be analyzed to see whether it is confidence-inspiring or otherwise. The variation in the statement occurs due to a lapse of time. The facts unfolded by these witnesses are found to be consistent. Ghulam Ali (PW-3) was the shopkeeper, and after closing his shop, he returned to his house when the incident occurred. Muhammad Adeel (PW-2) and Ghulam Ali
(PW-3) witnessed the incident in the instant case, and their presence at the spot was established.
10. As far as the identification of the unknown accused is concerned, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) deposed that the accused, Muhammad Amir alias Aneel, was not known to them before the incident. It is relevant to mention here that an identification parade was conducted on 26.07.2019, wherein the prosecution witnesses, i.e., Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), identified the accused as the culprit who murdered Shaban Ali. In the cross-examination, Muhammad Adeel (PW-2) reaffirmed that he, the appellant, murdered Shaban Ali. Muhammad Adeel (PW-2) deposed during examination-in-chief that:
“Subsequently, on 26.07.2019, I alongwith Ghulam Ali went to Central Jail Kot Lakhpath, Lahore, where, identification parade was conducted under the supervision of Kashan Muhammad Ali, Learned Judicial Magistrate Section 30 Model Town Katchary, Lahore. During said identification parade I identified accused Amir @ Aneel who was present at serial number 05. Said accused inflicted Churry blows on the body of Shaban and committed his murder. Said accused is present in the Court in custody.”
Similarly, Ghulam Ali (PW-3) deposed during the examination-in-chief. Muhammad Adeel (PW-2) deposed during cross-examination that:
“Accused Muhammad Amir was sitting at serial No. 05. Learned judicial magistrate recorded my statement at the time of identification parade proceedings.”
Ghulam Ali (PW-3) deposed during cross-examination that:
“----- Identification parade proceedings was conducted under the supervision of Mr. Kashan Muhammad learned Judicial Magistrate. I first time saw said learned Judicial Magistrate in jail. 10/12 persons were present in the line as accused for identification --------------identification parade proceedings were conducted on 26.07.2019 but days is not remember to me.”
The testimony of Kashan Muhammad Ali, Judicial Magistrate
(PW-13), and the identification parade report (Ex. PT) support the deposition of Muhammad Adeel (PW-2) and Ghulam Ali (PW-3). The identification parade report (Ex.PT) reveals that Ghulam Ali (PW-3) identified the accused sitting at serial No. 5 with its role as under:
“----Witness stated I identify the accused as I saw him at the time of occurrence in the light of bulbs/tube lights, etc. Role: On the day of occurrence (night between 12.06.2019 to 13.06.2019 at about 1:00 AM, I was present at fruit cart nearby my shop of LPG. The present accused killed “Shaban Ali” with his armed knife and ran away on motorcycle of Shaban Ali (deceased). Accused also took away the mobile phone of deceased. I made a phone call at police 15. We tried to shift the deceased to “General Hospital” but “Shaban Ali” died in the way.”
Muhammad Adeel (PW-2) identified the accused sitting at Serial No. 5 with its role as under:
“----Witness stated that “I identified the accused, as I saw him at the time of occurrence in the light of bulbs and tube lights. Role: At mid night between 12.06.2019 to 13.06.2019 at about 01:00 PM, I was present at the place of occurrence, I was standing at a fruit cart. I saw present accused running after “Shaban Ali”. Accused was armed with knife. Accused killed “Shaban Ali” by giving repeated blows of his armed knife. Ghulam Ali called the rescue 15. I along with Ghulam Ali tried to shift the “Shaban Ali” to General Hospital on ambulance rescue 1122 but Shaban Ali could not survive and died on the way.”
The defence had not disputed that the identification parade was not conducted. However, the learned counsel for the appellant submitted that Muhammad Adeel (PW-2) stated during cross-examination that after two and a half months, it came to the notice of the complainant that Muhammad Amir committed murder, revealing that the complainant was aware of the unknown accused who murdered his son, thereby making the identification parade doubtful.
As per the prosecution’s case, the incident occurred on 12.06.2019, whereas the identification parade proceedings took place on 26.07.2019. This suggests that an identification parade took place forty-five days after the occurrence, whereas the defence plea was that the witness stated that the complainant came to know about the accused two and a half months ago. After the identification parade, the complainant came to know about the accused. The question of defence is not straightforward, whether the complainant came to know the accused after the incident or after the identification parade. Here, it is relevant to deal with the argument of learned counsel for the appellant that Muhammad Adeel (PW-3) admitted during the cross-examination that Salamat told him about the accused Muhammad Amir, but said date is not remembered to him, and identification parade was conducted on 14.06.2019 whereas identification parade was conducted on 26.07.2019; and Ghulam Ali (PW-3) deposed during cross-examination that on the second day of the occurrence complainant told him that Muhammad Amir accused murdered his son Shaban suggests that accused was known to the prosecution witnesses before identification parade is misconceived. Muhammad Adeel (PW-3) admitted that the date when Salamat Ali (PW-1) informed him about Muhammad Amir is not remembered, but it does not establish that it happened before the identification parade. Because the defence put a specific question to Muhammad Adeel (PW-2) that:
“---Amir was arrested by police. Salamat told me about his arrest. I did not visit police station after arrest of Muhammad Amir accused. After arrest of accused Muhammad Amir I went at central jail/Kot Lakhpat Jail, Lahore. I O was Saif Ullah, SI.
Similarly, Ghulam Ali (PW-3) deposed during cross-examination that:
“----After the occurrence I again saw accused in Kot Lakhpat jail Lahore.”
Admittedly, the complainant, Salamat Ali (PW-1), is not an eye-witness to the incident. Salamat Ali (PW-1)-the complainant deposed during cross-examination that:
“Occurrence was happened before 10/15 minutes of my arrival at the place of occurrence.”
At the same time, it will be relevant to mention here that while replying to the question put by the defence, Salamat Ali (PW-1)-the complainant, deposed that:
“Adeel and Ghulam Ali PWs told me about the accused Muhammad Amir. Said witnesses told me about the description of accused and later on identified him in jail.”
The defence failed to bring on record when and how Salamat Ali
(PW-1)-the complainant, came to know that Muhammad Amir alias Aneel murdered Shaban Ali. By asking questions about the description and identification of the accused, the defence clarified that until the identification parade, which was held on 26.07.2019, the complainant was unaware of the accused’s name. Besides, the defence took a contradictory stance about the arrest/surrender of the accused. It is the plea of the accused that the accused appeared before the police within 02/04 days of the occurrence. Saif Ullah S.I. (PW-11)-the investigation officer Stated in examination-in-chief that he arrested the accused on 19.07.2019. Saif Ullah S.I. (PW-11)-the investigation officer deposed during cross-examination as under:
“I arrested accused Muhammad Amir alias Aneel. Informer told me about the involvement of accused Muhammad Amir alias Aneel in the occurrence. I arrested accused when he was present at metro station Gajjumata, Lahore. The accused was a resident of Old Kahna. Distance between Gajjumata station and Kahna is about three/four kilometer. On day of arrest of accused informer informed me about accused before 15 minutes of the arrest of accused. I recorded the first version of accused without any omission or deletion. When informer informed me about accused then I was present near LDA round about at Ferozepur Road. Informer informed me personally. It is incorrect to suggest that neither informer informed me about accused nor I arrested accused from place Stated by me. It is incorrect to suggest that accused Muhammad Amir alias Aneel himself appeared before me alongwith people of locality in order to prove his innocence. It is incorrect to suggest that I detained accused in illegal custody. Prior to the arrest of accused complainant did not nominate said accused Muhammad Amir alias Aneel. ----”
The suggestion made by the defence introduced an improved defence plea that the accused himself appeared before Saif Ullah S.I. (PW-11)-the investigation officer, alongwith people of the locality, and in this way, introduced another stance. The defence had not put this defence plea to the prosecution witnesses PW-1, PW-2, and PW-3 in their cross-examination. The defence has not suggested to Saif Ullah S.I. (PW-11)-the investigation officer, that the accused appear before him within 02/04 days or on 15.06.2019. In his statement under Section 342, Cr.P.C., the accused stated that on 15.06.2019, he appeared before the police to prove his innocence. Besides, during the identification parade, the accused had not objected that he was in police custody 02/04 days after the occurrence, or since 15.06.2019, he was in the custody of the police. At this stage, it is relevant to mention that the proceedings of the identification parade took place on 26.07.2019, and after that, he was tutored to make this plea. It is an established position of law that the accused need not take any defence in a criminal case. If the accused introduces a definite version of the defence and establishes the said defence, he must show that the preponderance of probabilities is in favor of such a plea based on the material available on record. The accused cannot rely on it without sufficient material supporting such a defence. The accused may take advantage of the information from the prosecution witnesses to create doubt in the Court’s mind about whether the prosecution’s version is true and may take the benefit of such doubt. It reveals that till the date of the identification parade, the complainant was unaware of the accused’s name. After that, the admission of the complainant that the accused was familiar to his deceased son, was not a relevant fact for believing that the complainant also knew about the accused, as he was not the eye-witness of the incident, during which an unknown accused cut the neck of his son Shaban, as he admitted that when he reached the place of occurrence, he saw his son ponded with blood. Regarding the contention of learned counsel for the appellant, Muhammad Adeel (PW-2)-the eye-witness, mentioned the incorrect date of the identification parade during cross-examination, which created doubts about the identification parade. Ghulam Ali (PW-3) deposed during cross-examination that police apprehended the accused. The complainant informed him that Muhammad Amir, the accused, murdered his son, making the case of the prosecution doubtful and misconceived. The evidence of both the prosecution witnesses reveals that Muhammad Adeel (PW-2) failed to submit his date of birth, but he was particular in stating the facts he had gone through. It is also admitted that the incident occurred on 12.06.2019, whereas cross-examination of the prosecution witnesses was conducted in June 2021, after the lapse of two years. With time, the person’s memory is affected, and there could be some variations in the facts that were not directly connected with the incident. However, I find no merit in the contention, as in all criminal cases, and normal discrepancies are bound to occur in the depositions of witnesses due to normal errors occurring in memory due to lapse of time. Where the omissions amount to a contradiction, creating serious doubt about the witness’s truthfulness, and other witnesses also make material improvements while deposing in the Court, such evidence cannot be safely relied upon. But, if the contradictions and inconsistencies are not so material to create doubt about the appellant’s involvement in the instant case or embellishments and improvements are trivial, they do not affect the core of the prosecution case. The same cannot be grounds for rejecting all the prosecution’s evidence. Salamat Ali (PW-1)-the complainant stated that Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) told him about the accused Muhammad Aamir. Said witnesses told him (PW-1) about the description of accused and later on identified the accused in jail. So, in the circumstances, it is not a material improvement in the statements of the witnesses, which affects the roots of the case. Even the accused/appellant, during the identification parade, made objections that he did not commit the offence, and witnesses saw him in the police station and took his photographs. Contrary to the above statement of the appellant, while replying to question No. 7 in his statement under Section 342 of Cr.P.C., he Stated that he surrendered himself before the I.O. on 15.06.2019 to prove his innocence. He remained at the police station Kahana for more than one month under illegal arrest. The complainant and PWs Muhammad Adeel (PW-2) and Ghulam Ali (PW-3) visited the police station, saw him, and inquired about the occurrence before the identification parade proceedings. Kashan Muhammad Ali Judicial Magistrate Lahore (PW-13), conducted identification parade proceedings, deposed during cross-examination that the accused raised the objection that the PWs saw him before the identification parade proceedings and the defence had not suggested to Kashan Muhammad Ali Judicial Magistrate Lahore (PW-13) that the accused took specific objection that he surrendered himself before the investigating officer on 15.06.2019. He remained in the illegal custody of the police for one month. The appellant had not appeared under Section 340(2) of Cr.P.C. nor produced any defence witness in his favour to prove his defence plea. The complainant, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), visited the police station and inquired from him about the occurrence before the identification parade proceedings. The appellant took contrary pleas during cross-examination. Ghulam Ali (PW-3) has correctly submitted the date of the identification parade proceedings. Dr. Shazia (PW-8), who conducted a postmortem examination on the dead body of the deceased, deposed that the deceased received seven incised wounds and died an unnatural death. Dr. Shazia (PW-8) conducted a postmortem examination on the dead body of Shaban Ali on 12.06.2019 at 04:00 p.m. The deposition of Dr. Shazia (PW-8) and post-mortem examination report (Ex. PH/1 & Ex. PH/2) reveal that the deceased sustained an incised wound caused by a sharp-edged object on his neck, fingers, and said injuries were ante-mortem, caused by a sharp-edged weapon. The post-mortem examination report (Ex. PH/1 & Ex. PH/2) reveals that the dead body of Subhan Ali was received in the mortuary of Allama Iqbal Medical College, Lahore, at 05:15 a.m. on 12.06.2019. The complainant reported the incident in time, which the defence reaffirmed during cross-examination. In such circumstances, a delay in postmortem examination would have no fatal consequences on the prosecution’s version.
11. From the Statement of Salamat Ali (PW-1), the complainant, and the FIR (Ex.P1) lodged by him, it is apparent that during the incident, an unknown accused stole a motorcycle bearing registration No. LEK-14B-2409 of the deceased on the intervening night of 12.06.2019. Salamat Ali (PW-1)-the complainant also deposed during cross-examination that,
“I checked the pocket of clothes of deceased and then it came into my knowledge that mobile phone of deceased was missing. When I checked pockets then police was present. I mentioned the missing of mobile phone and motorcycle in the FIR.”
Naseer Akhtar 8736/C (PW-7) deposed explicitly during cross-examination that,
“House of accused Amir is situated at Purana Kahna. Official vehicle was parked on main road because street of house of accused was narrow. House of accused was single story constructed on five marla. When we went there then wife of accused was present at home. Children were not present there. We reached at the place of recover at 03:10 PM. Place of recovery is situated in thickly populated area. House of accused is consisting of two rooms. We visited one room of the house from where recovery was effected. ------------------Motorcycle which was recovered was of road prince company. On 04.08.2019 recovery was effected from one room of house of the accused.”
Saif Ullah S.I. (PW-11)-the investigation officer reaffirmed during cross-examination that:
“Motorcycle was also parked there. --------- Recoveries were effected on 04.08.2019. Motorcycle which was recovered was in running condition. We shifted the motorcycle at police station in official vehicle. I did not start said motorcycle but it was looking in running condition. It is incorrect to suggest that motorcycle was recovered from canal No. 05 Kahna. ------------ Motorcycle was of road prince company. Motorcycle has been taken on superdari. I don’t know about the present position of motorcycle.”
No material is on record that would justify disbelieving or doubting the Statement of Saif Ullah S.I. (PW-11), the investigation officer. The appellant has not explained how he obtained possession of the motorcycle described above (P-6) bearing registration No. LEK-14B-2409.
12. As per the report of the Punjab Forensic Science Agency (Ex.PU), the blade of the Knife (P-4) was stained with human blood. The report reveals that the blood was not of the male. Regarding the recovery of the mobile phone (P-5) with EMI No. 869145030845112 and 869145030845104, none of the witnesses could describe the mobile phone allegedly used by the deceased. Saif Ullah S.I. (PW-11)-the investigation officer during cross-examination stated that:
“Sims numbers of deceased mentioned in the FIR were not found switched on during my investigation. No other sim was used in the mobile phone of deceased after the occurrence.”
The prosecution has not produced proof that the mobile phone (P-5) with EMI No. 869145030845112 and 869145030845104 was owned by the deceased. Therefore, no reliance can be placed on the recoveries of the knife (P-4) and mobile phone (P-5) with EMI numbers 869145030845112 and 869145030845104.
13. While scrutinizing the whole prosecution case, I believe that the prosecution has advanced its case, wherein even minute details have been brought forth. The complainant and other prosecution witnesses, i.e., Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), had no ill will to implicate the appellant falsely, and it seldom seems to substitute the real culprit(s) without any rhyme or reason. The nutshell of the facts mentioned above and the circumstances is that the prosecution had proved its case against the appellant through leading compelling evidence in the shape of an ocular account, identification parade, and recovery of the motorcycle (P-6) bearing registration No. LEK-14B-2409, which are straightforward, confidence-inspiring, and come from the mouths of most natural witnesses, i.e., Muhammad Adeel (PW-2) and Ghulam Ali (PW-3). The defence failed to lead a single circumstance to believe that the prosecution witnesses, Muhammad Adeel (PW-2) and Ghulam Ali (PW-3), had not witnessed the occurrence. They were present elsewhere at the relevant time, which prompted this Court to conclude that the prosecution had proved its case against the appellant beyond a reasonable doubt, and the learned trial Court was well justified in convicting the appellant under Section 302(b), P.P.C.
14. For the preceding reasons, Crl. Appeal No. 83064 of 2023 filed by Muhammad Amir alias Aneel-appellant is dismissed. However, the burden of compensation under Section 544-A, Cr.P.C., imposed by the learned trial Court and the effect in failure thereof
shall remain intact. The appellant also extended the benefit of Section 382-B, Cr.P.C.
15. So far as Criminal Revision No. 2545 of 2024, filed by the complainant, to enhance the sentence of Respondent No. 1 awarded by the trial Court is concerned, for the reasons mentioned above, the same is devoid of any legal force and accordingly dismissed.
(A.A.K.) Order accordingly
0 Comments