PLJ 2025 Cr.C. 635 (DB)
[Lahore High Court, Lahore]
Present: Farooq Haider and Ali Zia Bajwa, JJ.
ALI RAZA--Appellant
versus
STATE --Respondent
Crl. A. No. 33146 & M.R No. 155 of 2022, decided on 4.6.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 338(c)-
یہ قانون طے شدہ ہے کہ کوئی بھی اپنے بیان کی تصدیق خود نہیں کر سکتا، لہٰذا شان عباس بطور ریکوری گواہ اپنے اس بیان کی تصدیق نہیں کر سکتا جو اس نے بطور عینی شاہد یعنی واقعاتی بیان دیا ہے۔
-Law is well settled that no one can corroborate his own version, hence, Shan Abbas being recovery witness cannot corroborate his own version which he has deposed as eye-witness i.e. ocular account. [P. 644] A
2015 SCMR 1142 & 2017 SCMR 596.
Pakistan Penal Code, 1860 (XLV of 1860)--
دفعہ 302(ب) اور 338(ج)--طبی شہادت--یہ مسلمہ قانون ہے کہ طبی شہادت محض تائیدی نوعیت کی شہادت ہوتی ہے؛ یہ زخم کی جگہ، نوعیت، شدت اور زخم کرنے کے لیے استعمال ہونے والے ہتھیار کی قسم کے بارے میں بتا سکتی ہے لیکن یہ اس حملہ آور کی شناخت کے بارے میں نہیں بتا سکتی جس نے زخم کیا؛ لہذا، یہ مقدمے کے مخصوص حقائق اور حالات میں استغاثہ کے لیے بھی مددگار نہیں ہے۔
----Ss. 302(b) & 338(c)--Medical evidence--It is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of assailant who caused injury; therefore, same is also of no help to prosecution in peculiar facts and circumstances of case. [P. 644] B
2019 SCMR 872 & 2025 SCMR 762.
Pakistan Penal Code, 1860 (XLV of 1860)--
دفعہ 302(بی) اور 338(سی)--طبی شہادت-- یہ مسلمہ قانون ہے کہ محرک ایک دو دھاری تلوار ہے اور دونوں طرف یکساں طور پر کاٹ سکتا ہے اور ملزم کو غلط طور پر ملوث کرنے کی یکساں وجہ بھی ہو سکتا ہے۔
----Ss. 302(b) & 338(c)--Medical evidence--It is trite law that motive is double-edged weapon and can cut both sides equally and also could be equal reason for false implication of accused. [P. 644] C
2019 SCMR 652
Pakistan Penal Code, 1860 (XLV of 1860)--
---دفعہ 302(b) اور 338(c)--طبی شہادت--جب عینی شاہدی کے بیان کو رد کر دیا جائے تو محرک استغاثہ کے مقدمے میں مدد نہیں کرتا--یہاں یہ ذکر کرنا بھی مناسب ہے کہ محرک نہ تو ٹھوس ہے اور نہ ہی براہ راست یا تائیدی شہادت کا حصہ ہے بلکہ یہ صرف جرم کی طرف لے جانے والا ایک قرینہ ہے۔
----Ss. 302(b) & 338(c)--Medical evidence--W hen ocular account has been discarded then motive is of no help to case of prosecution--It is also relevant to mention here that motive is neither substantive nor direct or corroborative piece of evidence rather only circumstance leading to offence. [P. 644] D
2007 SCMR 486.
Pakistan Penal Code, 1860 (XLV of 1860)--
---دفعہ 302(ب) اور 338(ج)-- طبی شہادت-- یہ قانون کا مسلمہ اصول ہے کہ استغاثہ کے مقدمے میں ایک بھی نقص/حالت ملزم کی بریت کے لیے کافی ہے؛ اس سلسلے میں--استغاثہ اپیل کنندہ کے خلاف شک و شبہ سے بالاتر ہو کر اپنا مقدمہ ثابت کرنے میں ناکام رہا؛ لہذا، دفاعی ورژن پر بحث کرنے کی ضرورت نہیں تھی۔
----Ss. 302(b) & 338(c)--Medical evidence-- It is well established principle of law that single dent/circumstance in case of prosecution is sufficient for acquittal; in this regard--Prosecution had failed to prove its case against appellant beyond shadow of doubt; therefore, there was no need to discuss defence version. [P. 644] E & F
2022 SCMR 1527.
Mrs. Samina Jamil, Advocate/Defence Counsel at State expense for Appellant.
Mr. Abdul Samad, Addl. Prosecutor General for State.
Nemo & Complainant is in Kingdom of Saudi Arabia and served through brother Safdar Abbas.
Date of hearing: 4.6.2025.
Judgment
Farooq Haider, J.--This single judgment will dispose of Crl. Appeal No. 33146/2022 filed by Ali Raza (appellant) against his “convictions & sentences” and Murder Reference No. 155/2022 sent by trial Court under Section 374, Cr.P.C. for confirmation of death sentence awarded to appellant as both the matters have arisen out of one and the same judgment dated 21.05.2022 passed by learned Additional Sessions Judge, Kamalia/trial Court, District Toba Tek Sing.
2. Ali Raza (appellant) along with his co-accused person namely Ghulam Muhammad was tried in case arising out of F.I.R.
No. 12/2020, dated 07.01.2020, registered under Sections 302, 311, 338-C, 34, PPC at Police Station: City Kamalia and after conclusion of trial, the trial Court vide impugned judgment dated 21.05.2022, while acquitting co-accused Ghulam Muhammad has convicted and sentenced the appellant as under:
i) Under Section 302(b), PPC read with Section 311, PPC: ‘Death’ for committing Qatl-e-amd of Mst. Mafia Bibi with payment of compensation Rs. 4,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further suffer S.I. for six months.
ii) Under Section 338-C (b & c), PPC: Seven years imprisonment as Ta’zir
He was also liable to pay Diyat to the legal heirs of deceased Mafia Bibi. Until the making of payment of Diyat, he was ordered to remain confined in jail.
3. Primarily, Shan Abbas (complainant/PW-1) set the machinery of law into motion by moving application (Ex.PA) regarding commission of murder of his wife Mst. Mafia Bibi against appellant and his co-accused to Ejaz Ahmad, SI (PW-9) at Thana Mor Kamalia at 3.20 p.m. while mentioning therein that he is resident of Mohallah ‘Jandi Wala Kamalia’, District Toba Tek Singh; Mst. Mafia Bibi (deceased of the case) after obtaining divorce from her first husband, contracted marriage with complainant on 12.09.2019 and she was pregnant from that wedlock; on 07.01.2020 at 2.30 p.m., she (Mst. Mafia) went to the house of her maternal uncle situated in Mohallah Madina Abad, Kamalia; complainant alongwith witnesses namely Ghulam Akbar (PW-2) and Shahid Hussain (not produced) followed/went behind her. As soon as Mst. Mafia Bibi entered the street of accused persons, they (accused-persons) came out from their house; Ali Raza accused fired a straight shot hitting Mst. Mafia at left side of her abdomen/belly, she fell. In the meanwhile, complainant and witnesses entered the street, the accused persons dragged Mst. Mafia Bibi into their house, Ghulam Muhammad accused caught hold her from shoulders, Ashfaq accused (a juvenile tried separately) caught hold her from legs while accused Ali Raza cut throat/neck of Mst. Mafia with Chhurri and also inflicted repeated Chhurri blows on her body due to which she succumbed to the injuries. As the door of house was opened, therefore, complainant alongwith witnesses saw the occurrence with their own eyes. On making hue and cry, accused persons escaped from the scene of crime.
Motive behind the occurrence was that Mst. Mafia Bibi had contracted marriage with complainant against the consent of accused and of that, accused persons had grudge.
4. After completion of investigation, challan report under Section 173, Cr.P.C. was submitted against the appellant and his co-accused; they were formally charge sheeted but they pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, they were examined under Section 342, Cr.P.C. but they refuted the allegations levelled against them; they neither opted to appear as their own witness under Section 340(2), Cr.P.C. nor opted to produce defence evidence.
Trial Court after conclusion of trial while acquitting co-accused has convicted and sentenced the appellant as mentioned above through impugned judgment dated 21.05.2022
5. Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ of the case; ocular account is neither trustworthy nor corroborated by any other independent evidence; prosecution has remained unable to prove its case. Learned counsel for the appellant finally prayed for acquittal of the appellant.
6. Learned Addl. Prosecutor General while supporting the impugned judgment submited that prosecution has proved its case beyond shadow of doubt against the appellant through cogent and reliable evidence and prayed for dismissal of appeal.
7. Arguments heard. Record perused.
8. As per prosecution case, occurrence took place on 07.01.2020 at 2.30 p.m. within the area of Mohallah Madina Abad, Kamalia situated at a distance of three kilometers from the police station as mentioned in column No. 4 of FIR (Exh.PG) which was reported by Shan Abbas (husband of deceased-lady of the case namely Mst. Mafia Bibi) through written application (Exh.PA) produced by him at ‘Thana Morr Kamalia’ to Ejaz Ahmad, S.I. (PW-9) at 3.20 p.m. on 07.01.2020 which was sent to the Police Station and F.IR. (Exh.PG) was registered on the basis of said application at 3.30 p.m. on 07.01.2020.
It is important to mention here that while deciding criminal cases, First Information Report (F.I.R) is always considered relevant and cornerstone of the case of prosecution; as a matter of fact, it is the information which is recorded under Section 154, Cr.P.C. by the Police and importance is given to said document while keeping in view the consideration that it is first information without any adulteration, pollution, inducement, consultation or deliberation after the occurrence but if it has come on record that after the occurrence, complainant met police official but did not make his statement about detail of the occurrence or though stated detail of the occurrence to the police official, however, the same was not recorded then and there rather First Information Report was subsequently recorded on information provided by the complainant through written application or oral Statement, then said document can neither be termed as First Information Report in stricto sensu nor weight/importance can be given to the same like the First Information Report which was immediately recorded after the occurrence.
It is relevant to mention here that Shan Abbas (complainant/ PW-1) while appearing as PW1 during trial of the case stated that after leaving the place of occurrence firstly he went to the Police Station, met Moharrar who told him that SHO was not present and when he went to the Police Station for first time then he had narrated the whole occurrence to the Moharrar who directed him to submit application; in this regard, relevant portions of his Statement are hereby reproduced:
“After leaving the place of occurrence firstly I went to the police station and met Muharar who told me that SHO was not present.”
“When I went to the PS for the first time then I had narrated the whole occurrence to the Muharar who directed me to submit an application.”
So, the first information defined under Section 154, Cr.P.C. in this case was the information which was narrated about the whole occurrence by the complainant to Moharrar after the occurrence in the Police Station which was not recorded. In said circumstance, application (Exh.PA) on basis of which F.I.R (Exh.PG) was recorded cannot be termed as first information as defined under Section 154, Cr.P.C. in stricto sensu and resultantly it cannot be considered as cornerstone of the case of prosecution.
As per case of prosecution mentioned in application for registration of case (Exh.PA), Mst. Mafia Bibi (deceased of the case) went to meet her maternal uncle/Mamoon in his house situated in Mohallah Madina Abad, Kamalia, when she entered into street of accused persons, they (accused persons) came out of their house, Ali Raza (appellant) fired a straight shot with pistol which hit on left side of abdomen/belly of Mafia Bibi who fell down, then accused persons dragged Mafia Bibi into their house, Ghulam Muhammad caught her from shoulder, Ashfaq caught her legs whereas Ali Raza cut her throat/neck with knife/Chhurri and also gave repeated blows with knife who succumbed to the injuries at the spot but it is relevant to mention here that though as per case of prosecution, Mafia Bibi after receiving fire shot at her abdomen/belly fell in the street from where she was dragged into house of accused persons yet any blood was not secured from the street where she fell after receiving firearm injury at the abdomen, so much so that as per site plan of the place of occurrence prepared by Investigating Officer (Exh.PM, available at page No. 139 of the paper book) and site plan of the place of occurrence prepared by Draftsman (Exh.PJ, available at page No. 148 of the paper book) presence of any blood has not been mentioned in the street where she (Mafia Bibi) after receiving fire shot fell. Any sign of dragging her from the street into house of accused persons is not available in both aforesaid site plans. Any blood trail from the place where Mafia Bibi after receiving fire-arm shot fell in the street to the house of accused persons where she was statedly brought after dragging is not available in the site plans; as per case of prosecution, blood stained earth was secured from inside of house of accused persons but any report of PFSA is not available on the record to show that any blood stained soil/earth was received in this case by the said office or any soil/earth was found as stained with human blood, therefore, in absence of the report confirming that earth secured from place of occurrence was stained with human blood, place of occurrence in this case has also not been proved in stricto sensu. Relevant portion of the Statement of Mian Muhammad Shahzad Ashraf (Draftsman/ PW-8) on the subject is hereby reproduced:
“It is correct that from points shown in the street vide Exh.PJ none shows the presence of blood.”
Similarly, relevant portion of statement of Ejaz Ahmad, SI (PW-9) in this regard is reproduced as under:
“I have not shown any point in street part of the rough site plan to show the presence of blood of deceased.”
Ocular account produced by the prosecution in this case comprises of Shan Abbas (complainant/PW-1) and Ghulam Akbar (eye-witness/PW-2). They both were not the residents of the Mohallah in which occurrence took place and relevant portion of Statement of Ejaz Ahmad, SI (PW-9) is hereby reproduced:
“It is correct that none of the PWs of this case belong to Mohalla Madina Abad.”
So, they both were the “chance witnesses”, thus, were required to offer valid, cogent and plausible reason to justify and establish their presence at the time & place of occurrence. Though as per application for registration of the case (Exh.PA), Mst. Mafia Bibi (now deceased of the case) went to meet her maternal-uncle in his house situated in Mohallah Madina Abad, Kamalia and Shan Abbas (complainant/PW-1) alongwith Ghulam Akbar (PW-2) and Shahid Hussain (not produced) went behind her and saw the occurrence but any reason could not be offered by said both witnesses i.e. complainant/PW-1 and Ghulam Akbar (PW-2) that why they were following her and said claim of both said witnesses is not appealing to the common prudent mind, hence, their testimony is “suspect” evidence and cannot be accepted without pinch of salt; guidance in this regard has been sought from the case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and relevant portion from paragraph No. 14 of said case law is hereby reproduced:
“14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”
Further guidance on the subject has been sought from the case of “Muhammad Ashraf alias Acchu versus The State” (2019 SCMR 652), “Mst. Mir and another versus The State” (2020 SCMR 1850) and “Sarfraz and another versus The State” (2023 SCMR 670).
It is own case of prosecution that accused persons fled away from the place of occurrence but even then complainant/PW-1 was though husband of the deceased-lady yet did not attend her and relevant portion of his statement in this regard is reproduced infra:
“After the flight of the accused from the place of occurrence I did not attend my wife……….”
It is further relevant to mention here that though it was claim of the prosecution that Mafia Bibi (now deceased of the case) went to see her maternal uncle yet name of said maternal uncle/Mamoon was neither mentioned in application for registration of the case (Exh.PA) nor otherwise could be brought on record during investigation of the case, so much so, that house of said maternal uncle was neither shown to the Investigating Officer nor otherwise is available near/adjacent at or around the place of occurrence as per site plan of place of occurrence prepared by Investigating Officer (Exh.PM) and site plan prepared by the Draftsman (Exh.PJ). Said maternal uncle even did not join investigation of the case and relevant portions of the statement of Shan Abbas (complainant/PW-1) are hereby reproduced:
“Vide my application Exh.PA I did not get recorded name of maternal uncle of Mafia Bibi. During the course of investigation, the name of proposed maternal uncle of Mafia Bibi did not come on surface. During the course of investigation, the house of said proposed maternal uncle of Mafia Bibi was neither identified nor same was shown to I.O. During the course of investigation, no proposed maternal uncle of Mafia Bibi joined investigation in my presence.”
“At the time of drafting rough site plan I had not pointed to the I.O the very existence of house of maternal uncle of Mafia Bibi to be located in the street of the house of accused persons.”
Relevant portion of statement of Mian Muhammad Shahzad Ashraf, Draftsman (PW-8) is also reproduced:
“At the time of preparation of Exh.PJ none made pointation about the house to which deceased was destined.”
Similarly, in this context, relevant portion of statement of Ejaz Ahmad, SI (PW-9) is also reproduced as under:
“Vide my rough site-plan Exh.PM I have not shown the proposed destination of deceased Mafia Bibi i.e. house of her maternal uncle. Throughout the conduct of the investigation, no person appeared before me showing himself to be maternal uncle of deceased Mafia Bibi to whose house she was going at the time of occurrence.”
Ghulam Akbar (eye-witness/PW-2) also introduced dishonest improvements in his statement before Court and in this regard relevant portion of his Statement is hereby reproduced:
“In my Statement u/S. 161, Cr.P.C. I did not get recorded that accused Ashfaq caught hold Mafia Bibi from her legs and accused Ghulam Muhammad caught hold Mafia Bibi from her shoulder and dragged her into the house. In my statement
u/S. 161, Cr.P.C. I did not get recorded that we raised alarm “outside the house.” In my Statement u/S. 161, Cr.P.C. I did not get recorded that after his arrival “first of all” I.O. collected empties.”
When all the aforementioned factors are taken into consideration in totality, then ocular account furnished by the prosecution in this case has not been found by us as confidence inspiring or truthful; hence, same cannot be relied and is hereby discarded.
9. As far as recovery of pistol (P-1) at the pointing out of the appellant and as per the report of Firearm & Toolmarks Examination Report of Punjab Forensic Science Agency, Lahore (Exh.PN), that empty cartridge was identified as having been fired from the said pistol is concerned, suffice it to say that as per statement of Ejaz Ahmad, S.I. (PW-9), he got recovered pistol .30 bore (P-1) at the disclosure of appellant, on unloading the same, six live bullets were also recovered and these were made into sealed parcel and taken into possession vide recovery memo (Exh.PB); in this regard relevant portion of his Statement is hereby reproduced:
“In consequence of this disclosure, he led us to the place of recovery on official vehicle where he got recovered pistol 30 bore P1 from the residential room of his house which was lying in an iron box. On unloading the same, six alive bullets P.1/1-6 were also recovered and these were made into sealed parcel. I took pistol 30 bore alongwith alive bullets into the possession vide recovery memo Exh.PB which was attested by the PWs Shan Abbas and Bashir Ahmad 780/HC.”
Perusal of aforementioned Statement of PW-9 reveals that statedly recovered pistol alongwith six live bullets were made into sealed parcel and as per case of prosecution, parcel of pistol was received in Punjab Forensic Science Agency but perusal of report of PFSA (Exh.PN) reveals that parcel received in said Agency was having pistol .30 bore but availability of six live bullets in said parcel are not mentioned therein, meaning thereby, that parcel which was prepared at the place of recovery which was having pistol alongwith live bullets was not received in the said Agency or it was tampered with and its safe custody was compromised, therefore, said report of PFSA is inconsequential and resultantly aforementioned recovery cannot provide any corroboration to the case of prosecution.
Though as per case of prosecution, on 03.02.2020, Chhurri was got recovered by the appellant which was secured through recovery memo (Exh.PC) yet it is relevant to mention here that occurrence took place in this case on 07.01.2020 so said recovery of Chhurri was effected on 27th day after the occurrence. However, it goes without saying that blood disintegrates in the period of three weeks, therefore, report of PFSA, Lahore (Exh.PO) regarding said Chhurri about blood on swab taken from the blade of the Chhurri is inconsequential and in this regard guidance has been sought from the case of “FAISAL MEHMOOD versus The State” (2016 SCMR 2138) and relevant portion from its paragraphs No. 6 is hereby reproduced:
“The report of the Chemical Examination showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”
(emphasis added)
So, recovery of Chhurri could not provide any corroboration to the case of prosecution.
It is also worth mentioning here that Shan Abbas (complainant/eye-witness/PW-1) also appeared as recovery witness of pistol .30 bore (P-1) as well as Chhurri (P-2) but law is well settled that no one can corroborate his own version, hence, Shan Abbas being recovery witness cannot corroborate his own version which he has deposed as eye-witness i.e. ocular account; in this regard, guidance has been sought from the cases of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and “Mst. Rukhsana Begum and others versus Sajjad and others” (2017 SCMR 596).
10. So far as medical evidence is concerned, it is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in peculiar facts and circumstances of the case, in this regard, cases of “Sajjan Solangi versus The State” (2019 SCMR 872) and “Muhammad Ramzan versus The State” (2025 SCMR 762) can be safely referred and relevant portion from latter case law is reproduced:
“It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant.”
11. As far as motive is concerned, it is trite law that motive is the double-edged weapon and can cut both sides equally and also could be equal reason for false implication of the accused and in this regard case of “Muhammad Ashraf alias Acchu versus The State” (2019 SCMR 652) can safely be referred. Even otherwise, when ocular account has been discarded then motive is of no help to the case of prosecution. It is also relevant to mention here that motive is neither substantive nor direct or corroborative piece of evidence rather only circumstance leading to the offence. In this regard case of “Akbar Ali versus The State” (2007 SCMR 486) can be referred.
12. It is well established principle of law that single dent/ circumstance in case of prosecution is sufficient for acquittal; in this regard, case of “Abdul Ghafoor versus The State” (2022 SCMR 1527) can be safely referred.
13. Nutshell of the above discussion is that prosecution has failed to prove its case against the appellant beyond shadow of doubt; therefore, there is no need to discuss defence version.
14. In view of what has been discussed above, Criminal Appeal No. 33146/2022 filed by Ali Raza (appellant) is allowed;
conviction recorded and sentence awarded to the appellant through impugned judgment dated 21.05.2022 are hereby set-aside. The appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case.
15. Resultantly, death sentence awarded to Ali Raza (appellant) is NOT CONFIRMED and Murder Reference (M. R. No. 155 of 2022) is answered in NEGATIVE.
(A.A.K.) Appeal allowed
0 Comments