PLJ 2025 Cr.C. 732 (DB)
[Lahore High Court Lahore]
Present: Miss Aalia Neelum, C.J. and Abher Gul Khan, J.
Malik MUHAMMAD IMRAN & others--Appellants
versus
STATE & others--Respondents
Crl. As. Nos. 63397, 1005, 1200, Crl. Rev. No. 64108 & M.R
No. 134 of 2019, decided on 6.5.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
شہادت کی قدر — گواہ کی گواہی — مدعی نے قانونی مشیر سے مشورہ کرنے کے بعد ایف آئی آر درج کروائی، لہذا اسے مشکوک نظروں سے دیکھا جانا چاہیے — قتل کے واقعے میں ایک عینی شاہد کو شدید چوٹ لگنا اگرچہ ایک ایسا عنصر ہے جو جائے وقوعہ پر اس کی موجودگی کے مفروضے کی مثبت عکاسی کرتا ہے لیکن یہ اس کے بیان کی سچائی کا قطعی ثبوت نہیں ہے — ایسے واقعے میں کسی ملزم کو مجرم قرار دینے کے لیے، زخمی عینی شاہد کی گواہی کو اب بھی شہادت کی جانچ کے لیے وضع کردہ اصولوں پر پرکھنے کی ضرورت ہے — قتل کے واقعے کا ایک زخمی گواہ شاذ و نادر ہی جھوٹ بولتا ہے، یہ بات ایک ملزم کے معاملے میں تو درست ہو سکتی ہے لیکن یہ ایک مبالغہ آرائی ہے جب حملہ آوروں کی تعداد ایک سے زیادہ ہو — زخمی گواہ کے بیان کو اس کی ساکھ کو جانچنے کے لیے سخت جانچ پڑتال کے بغیر سزا کی بنیاد بنانا مکمل طور پر ناانصافی ہوگی۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Appreciation of evidence--Testimony of witness--FIR was got registered by complainant after consulting a legal brain, thus same is to be looked with suspicious eyes--The receipt of grievous hurt by an eye-witness in murder incident though is a factor which reflects positively an assumption of his presence at spot but it is not a conclusive proof about truth of his deposition--For handing down guilty verdict to an accused in such incident, testimony of an injured eye-witness is still required to be tested on touchstone of principles laid down for appraisal of evidence--An injured witness of murder incident seldom tells lie might be true in a case of single accused but is an overstatement when number of assailants is more than one--It will wholly be unjust to raise superstructure of conviction on deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility.
[P. 741, 742 & 743] A & B
2020 YLR 470; 2011 SCMR 323 & 2011 SCMR 527.
Pakistan Penal Code, 1860 (XLV of 1860)--
ایف ایس اے کی مثبت رپورٹ قتلِ عمد -- سزا اور conviction -- پی ایف ایس اے کی مثبت رپورٹ نے اپنی قانونی حیثیت کھو دی جبکہ باقی ماندہ اپیل کنندگان سے ہتھیاروں کی برآمدگی کے حوالے سے پی ایف ایس اے کی رپورٹس منفی ہیں۔ پی ایف ایس اے کی مثبت رپورٹس مزید قانونی طور پر بطور تائیدی شہادت اپنی اہمیت کھو دیتی ہیں جب انہیں اس تناظر میں دیکھا جائے کہ عینی شاہد کا بیان ناقابلِ اعتبار ٹھہرتا ہے۔
----S. 302(b)--“Positive Report of FSA”--Qatl-e-amd--Conviction and sentence--The positive report of PFSA lost it evidentiary value whereas reports of PFSA regarding recovery of weapons of remaining appellants are negative--Positive reports of PFSA further lose legal acceptance as corroboratory piece of evidence when seen in context that ocular account stands disbelieved.
[P. 747] C
2024 SCMR 1427.
Pakistan Penal Code, 1860 (XLV of 1860)--
عینی شاہد کی ساکھ--قتلِ عمد--سزا اور جرم ثابت ہونا--اس میں کوئی سوال نہیں اٹھتا کہ تفتیشی افسر کی طرف سے عینی شاہدین کے بیانات ریکارڈ کرنے میں کوئی کوتاہی رہ گئی تھی--اس صورتحال کے پیش نظر، مذکورہ بالا عینی شاہدین کی طرف سے کی جانے والی کوتاہیوں/بہتریوں نے انہیں کسی بھی اعتبار کے لائق نہیں ٹھہرایا کیونکہ ان کی ساکھ مجروح ہو گئی تھی--اس نتیجے پر پہنچنے میں، ہم سپریم کورٹ آف پاکستان کے مشاہدے سے مستفید ہوتے ہیں۔
----S. 302(b)--“Credibility of eye witness”--Qatl-e-amd--Conviction and sentence--No question arises that any omission in recording statements of eye-witnesses remained on part of Investigating Officer--In this view of matter, omissions/improvements made by afore-mentioned eye-witnesses rendered them unworthy of any credence as their credibility was compromised--In arriving at such conclusion, we are enlightened from observation of Supreme Court of Pakistan. [Pp. 749 & 750] D
2019 SCMR 631.
Pakistan Penal Code, 1860 (XLV of 1860)--
طبی شہادت"--"محرک"--بریّت--قتلِ عمد--سزا اور سزا کا نفاذ--کھوپڑی میں دو سوراخ تھے، جو دونوں زخموں کے مطابق تھے--اس طرح، طبی شہادت چشم دید گواہی کی تردید کرتی ہے جس میں .30 بور پستول سے لگنے والی ایک گولی کی चोट کو اپیل کنندہ سے منسوب کیا گیا تھا--ایسے منظر نامے میں، مقتول کی کھوپڑی پر دوسرے گولی کے نشان کا وجود، جو کسی سے منسوب نہیں ہے، استغاثہ کے معاملے پر ایک بڑا شک ڈالتا ہے--استغاثہ اپنے مقدمے کے محرک والے حصے کو ثابت نہیں کر سکا--قرار دیا گیا: یہ بات طے شدہ ہے کہ ایک بار جب استغاثہ کی جانب سے محرک پیش کیا جاتا ہے اور اسے ثابت نہیں کیا جاتا ہے، تو استغاثہ کو نقصان اٹھانا پڑے گا--استغاثہ اپیل کنندگان کے خلاف اپنے مقدمے کو شک کے معمولی ترین ذرے سے بالاتر ثابت کرنے میں بری طرح ناکام رہا ہے--ایک ادنی سا شک پیدا کرنے والا واقعہ بھی بریّت کی بنیاد بنانے کے لیے کافی ہے۔
----S. 302(b)--“Medical evidence”--“Motive”--Acquittal--Qatl-e-amd--Conviction and sentence--There were two holes in skull, corresponding to both wounds--In this way, medical evidence contradicts ocular account whereby single firearm injury from .30 bore pistol was attributed to appellant--In such scenario, existence of second shot at skull of deceased which is not attributed to anybody casts a colossal doubt to prosecution case--Prosecution could not prove its motive part of case--Held: It is well settled that once motive is set up by prosecution and same is not proved, prosecution shall suffer--The prosecution has miserably failed to prove its case against appellants beyond scintilla of doubt--A single doubt creating circumstance is sufficient to form basis of an acquittal. [Pp. 750, 751 & 752] E, G & H
2019 SCMR 129; 2023 SCMR 670; 1995 SCMR 1345 &
2009 SCMR 230.
Pakistan Penal Code, 1860 (XLV of 1860)--
یہ طے شدہ ہے کہ جب تک ریڈیولوجسٹ کو ایکس رے رپورٹ کے ثبوت میں پیش نہیں کیا جاتا، جس میں مبینہ چوٹیں بیان کی گئی ہوں، اس رپورٹ کو ملزم کی سزا برقرار رکھنے کے لیے استعمال نہیں کیا جا سکتا۔
----S. 302(b)--Conviction Medical evidence--Qatl-e-amd--It is settled that once Radiologist is not produced in proof of x-ray report qua declared injuries, same cannot be used for maintaining conviction of accused. [P. 751] F
1986 PCr.LJ 2718.
M/s. Malik Fawad Awan, Farrukh Gulzar and Mudassar Naveed Chatha, Advocates for Appellants.
M/s. Asghar Ali Gill and Jumshaid Nasir Gill, Advocates for Complainant.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Date of hearing: 6.5.2025.
Judgment
Abher Gul Khan, J.--Appellants, namely Malik Muhammad Imran, Muhammad Shahid, Muhammad Yasin, Muhammad Adnan, Tariq, Yousaf, Iqbal alias Bali and Arshad alias Sohni along with four other co-accused Zia, Amir, Amin and Muhammad Ali, involved with case FIR No. 203/2017 dated 03.06.2017 registered under Sections 302,324,452,429,337-A(iii), 337-F(v), 337-F(iii), 148 & 149, PPC at Police Station Kassowal, Tehsil Chichawatni, were tried by learned Additional Sessions Judge, Model Criminal Trial Court, Sahiwal. Trial Court vide judgment dated 14.10.2019 while acquitting the afore-said four co-accused convicted Malik Muhammad Imran (appellant) under Section 302(b), PPC and sentenced him to death as Ta’zir along with compensation of Rs. 5,00,000/- under Section 544-A, Cr.P.C., to the legal heirs of Muhammad Idrees (deceased) which was ordered to be recovered as arrears of land revenue and in default of its payment to suffer simple imprisonment for 06-months. The remaining appellants were also convicted under Section 302 (b) read with Section 149, PPC as Ta’zir to suffer imprisonment for life with compensation of Rs. 2,00,000/- to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for 06-months. Trial Court also convicted and sentenced the appellants under different provisions of law, the detail of which is given hereunder:-
(i). Under Section 148, PPC to suffer simple imprisonment for 02-years.
(ii). Under Section 452, PPC to suffer simple imprisonment for 04-years with fine of Rs. 20,000/-.
(iii). Under Section 337-F(v), PPC & Section 337-F(v) read with Section 149, PPC to suffer simple imprisonment for 05- years with Daman of Rs. 50,000/-.
(iv). Under Section 324, PPC to suffer rigorous imprisonment for 07-years with fine of Rs. 50,000/-.
(v). Under Section 337-F(iii), PPC and Section 337-F (iii) read with Section 149, PPC to suffer simple imprisonment for 02- years with Daman of Rs. 50,000/- (on different counts).
(vi). Under Section 324 read with Section 149, PPC to suffer rigorous imprisonment for 07-years with fine of Rs. 50,000/- (on different counts).
All the sentences of the appellants were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to them.
Challenging their convictions and sentences, Malik Muhammad Imran, Muhammad Shahid, Muhammad Adnan and Iqbal alias Bali (appellants) filed Criminal Appeal No. 63397 of 2019, Tariq, Yousaf and Muhammad Yasin (appellants) filed Criminal Appeal No. 1005 of 2019 and Arshad alias Sohni (appellant) filed Criminal Appeal No. 1200 of 2019, whereas Ashraf Ali (complainant) filed Criminal Revision No. 64108 of 2019 seeking enhancement of sentence of Malik Muhammad Imran, Muhammad Adnan and Muhammad Shahid (Respondents No. 1 to 3). Likewise, trial Court forwarded a reference which was numbered as Murder Reference No. 134 of 2019 under Section 374, Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Malik Muhammad Imran. All the matters are being decided through this single judgment.
2. Briefly stated the facts of the prosecution case as described by Ashraf Ali (PW.11) in FIR (Exh.PM/1) are that he is the permanent resident of Chak No. 13/14-L and a cultivator being retired Army Official. On 30.05.2017 at about 4:30 p.m., he along with his brother Akbar Ali, son Salman Asrhaf, nephews Muhammad Usman, Muhammad Idrees and Naeem Abbas (son-in-law of Akbar Ali) was present in veranda of his cattle shed after giving fodder to the cattle. Meanwhile, Imran armed with pistol .30 bore, Shahid armed with .222 bore rifle, Arshad armed with .12 bore gun, Yaseen armed with .222 bore rifle came on the rooftop of Akbar Ali and came in the veranda through Ihata of Bashir Ahmad with the help of ladder. Accused Amir armed with .12 bore gun, Bashir accused (since dead) armed with .12 bore gun, Amin accused armed with .12 bore repeater, Yousaf accused armed with .12 bore gun, Iqbal alias Bali accused armed with .222 bore rifle, Arshad alias Sohni accused armed with .12 bore gun, entered into the house of Akbar through outer-gate and raised Lalkara to the women folk present in the house that they would teach a lesson to Shah Ali for purchasing Ihata. The accused maltreated the women folk present in the house and used abusive language, upon which Idrees, Akbar Ali, Usman, Naeem Abbas, Suleman and the complainant came at the spot. Arshad Masih alias Sohni accused made fire with .12 bore gun at Usman which hit him on his left shoulder. Bashir accused (since dead) made fire shot with gun .12 bore at Naeem Abbas which hit him on his right leg. Tariq accused made fire shots with repeater gun .12 bore at Suleman Ashraf which hit him on his right leg and left leg. Iqbal alias Bali accused fired with his rifle .222 bore which hit on the left side of complainant’s abdomen. Yasin accused fired from his .222 bore rifle which hit at the right side of the abdomen of the complainant. Yousaf accused fired with his repeater gun at Akbar PW which hit on his left arm. Adnan accused fired with repeater .12 bore gun at Akbar Ali which hit him on his left leg. Shahid accused also fired with .222 bore rifle at Akbar Ali which hit him on his left leg. Imran accused made a fire shot with his pistol .30 bore at Muhammad Idrees deceased which hit him on the left side of his head. Amin accused fired with his repeater .12 bore gun which hit the bullock. Muhammad Ali accused made fire shot with his repeater .12 bore gun which hit their she-buffalo. The afore-mentioned accused along with 7/8 unknown persons equipped with firearms while making firing kept on creating terror and raising Lalkara that they would not let Akbar Ali and others alive. The occurrence was also witnessed by Muhammad Saddique and Haider Ali. The motive behind the occurrence statedly was that on 17.05.2017 Akbar Ali purchased a piece of land measuring 21 Marlas from Shah Ali for which the accused had nourished grudge.
3. On 03.06.2017 Ghulam Farid SI (PW.19) along with other police officials was present at Railway Crossing Kassowal, when Ashraf Ali complainant (PW.11) presented application (Exh.PM) before him as well as medico legal reports of Muhammad Idrees, Akbar Ali, Suleman Ashraf, Naeem Abbas, Muhammad Usman and his own along with MLRs of two injured cattle. He recorded the police proceedings on application (Exh.PM) and sent the same to Police Station Kassowal through Muhammad Iqbal 353/C for the registration of formal FIR. Subsequent thereto, he visited the spot and secured blood stained cotton from the place where Muhammad Idrees (deceased) received injuries through memo. Exh.PW. From the place of occurrence, he also took into possession 8 crime empties of .12 bore (P.14/1-8) from the rooftop of the house of Akbar Ali vide memo. Exh.PW/1, 5 crime empties of .30 bore pistol (P.15/1-5), 23 crime empties of .222 bore (P.16/1-23) and 30 crime empties of .12 bore (P.17/1-30) from the Courtyard of the house of Akbar Ali which were taken into possession through memo. Exh.PW/2. He further secured 5 crime empties of .12 bore from the rooftop of the house of Akbar Ali (P.18/1-5) through memo. Exh.PW/3. He secured 12 crime empties of .12 bore (P.19/1-12), 3 crime empties of .12 bore (P.20/1-3), 4 crime empties of .222 bore (P.21/1-4) from the street near the house of occurrence which were secured through memo. Exh.PW/4. He secured 6 crime empties of pistol .30 bore (P.22/1-6) from the street near the house of occurrence which were secured vide memo. Exh.PW/5. He also prepared visual site plan of the place of occurrence (Exh.PZ).
Upon the expiry of Muhammad Idrees injured on 04.06.2017, the investigation of the case was entrusted to Abid Sagheer Inspector (PW.16), who visited THQ Hospital Chichawatni, prepared injury statement (Exh.PX), inquest report (Exh.PX/1) and deputed Amjad Ali 1186/C to get conducted the autopsy of Muhammad Idrees. On 21.08.2017 he arrested Muhammad Yasin, Muhammad Shahid, Bashir Ahmad, Tariq and Muhammad Yousaf accused. On 27.08.2017 accused Muhammad Yasin and Shahid accused during investigation made separate disclosures and led to the recovery of .222 bore rifles (P.3 and P.11) which were taken into possession through memos. Exh.PC and Exh.PH. He also arrested the accused Muhammad Amin, Muhammad Ali and Iqbal alias Bali, Imran alias Mani on 08.09.2017, 14.09.2017 and 22.09.2017. On 24.09.2017 accused Muhammad Iqbal and Imran alias Mani made separate disclosures and led to the recovery of rifle .222 bore (P.10) and .30 bore pistol (P.5) which were secured vide memos. Exh.PG and Exh.PD. He also arrested Adnan accused on 03.10.2017 who on 08.10.2017 got recovered pump action gun (P.7) which was taken into possession vide memo. Exh.PE. He recorded the statements of PWs under Section 161, Cr.P.C. and submitted the file to SHO Police Station Kassowal for preparing report in terms of Section 173, Cr.P.C.
4. During trial, prosecution in order to prove its case against the appellants and their co-accused produced 19-witnesses, out of whom Dr.Mushtaq Ahmad (PW.5) who on 30.05.2017 at 10:30 a.m. medically examined one buffalo and bullock and issued certificates (Exh.PJ & Exh.PK), Dr.Nazeer Ahmad (PW.9) who on 30.05.2017 after examining injured Salman Asrhaf, Muhammad Usman, Ashraf Ali, Naeem Abbas, Akbar Ali, Muhammad Idrees issued their MLCs (Exh.PN, Exh.PO, Exh.PP, Exh.PQ, Exh.PR & Exh.PS) and Dr.Ali Hussain Syed (PW.10) who on 04.06.2017 at 1:00 p.m. conducted the postmortem examination of Muhammad Idrees and issued PMR (Exh.PT) along with pictorial diagrams (Exh.PT/1 & Exh.PT/2), Ashraf Ali (PW.11), Salman Ashraf (PW.12), Muhammad Usman (PW.13), Akbar Ali (PW.14) and Haider Ali (PW.15) entered appearance in the witness box as witnesses of ocular account and Abid Sagheer Inspector (PW.16) and Ghulam Farid SI (PW.19) investigated the case. The remaining PWs were more or less formal and acted according to the law to aid and support the investigation.
5. After the conclusion of prosecution evidence, the appellants were examined under Section 342, Cr.P.C. during which they were asked the questions arising out of the prosecution evidence but they denied almost all those questions while pleading their innocence and false implication with the case. Appellants neither opted to make statement under Section 340(2), Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated, hence the instant criminal appeals, criminal revision and murder reference.
6. It is contended on behalf of the appellants that there is a delay of more than four days in reporting the crime to police for which no plausible explanation has been offered by the prosecution. The appellants have been implicated in the instant case due to previous enmity with the complainant party. The PWs are not trustworthy as they have made dishonest improvements in their statements to bring the case in line with the medical evidence. All the PWs are interested and inimical witnesses, thus for relying upon their statements a very cautious approach ought to be adopted by the Courts. The medical evidence contradicts the ocular account. The prosecution also failed to seek corroboration from the motive as well as the recovery of weapons allegedly recovered from the appellants. It was thus argued that the convictions and sentences awarded to the appellants be set- aside and they be acquitted from all the charges.
7. On the other hand, learned Deputy Prosecutor General well assisted by learned counsel for the complainant submitted that the delay in reporting the matter was properly explained by the prosecution. The accused committed a cold blooded murder of an innocent person and injured five persons by making fire shots. The eye-witness account consisting of four injured witnesses narrated the incident in a very natural way. The medical evidence is in line with the ocular account. The prosecution also sought full corroboration from the duly proved motive as well as the positive report of PFSA whereby the weapons recovered from the appellants matched with the crime empties secured from the spot. It was thus urged that the convictions and sentences awarded to the appellants be maintained.
8. We have gone through the case file, heard pro and contra arguments of the learned counsel for the parties well assisted by the Deputy Prosecutor General and perused the record.
9. The minute perusal of the record reveals that the case in hand is arising out of an occurrence which took place on 30.05.2017 at about 4:30 p.m. in an area known as “Chak No. 13/14-L” situated at a distance of 10-miles from Police Station Kassowal, District Sahiwal. The detail of crime was reported by Ashraf Ali (PW.11) through written application (Exh.PM) presented before Ghulam Farid SI (PW.19) when he was present at Railway Crossing Kassowal on 03.06.2017, which was transcribed into formal FIR (Exh.PM/1). According to the detail mentioned in the crime report, initially six persons, namely, Salman Asrhaf, Muhammad Usman, Ashraf Ali, Naeem Abbas, Akbar Ali and Muhammad Idrees received firearm injuries during the occurrence. Out of the above-mentioned six persons, Muhammad Idrees died on 04.06.2017 at District Headquarter Teaching Hospital, Sahiwal. The allegation of committing the crime was attributed to as many as twelve named and 7/8 unknown accused, out of them, appellants were handed down guilty verdict whereas four accused mentioned supra were acquitted.
10. As stated above, the incident in this case occurred on 30.05.2017 at about 4:30 p.m. but the matter was reported to the police on 03.06.2017 at about 6:05 p.m. i.e. after the delay of 04- days & 1½ hour but no plausible explanation was offered by the prosecution for such long delay. We have also noticed that immediately after the occurrence Rapat No. 18 dated 30.05.2017 was entered at 5:50 p.m. wherein it was specifically mentioned that Akbar Ali, Asrhaf, Muhammad Idrees, Salman, Muhammad Usman, Naeem Abbas in injured condition came at Police Station Kassowal and stated that Imran along with 12 other named and 7/8 unknown accused who were armed with Dands, Sotas and firearm weapons injured them. It is worth mentioning here that when the occurrence had already been reported in the form of Rapat No. 18, there was no occasion for the complainant to re-report the matter through written application (Exh.PM) after the delay of more than four days.
It is evident from the record that Muhammad Usman ASI (PW.6) posted at police station Kassowal was the first police officer who visited the place of occurrence after the incorporation of Rapat No. 18 but no complaint was presented to him at the spot by complainant Ashraf Ali (PW.11) in order to get registered an FIR as per version introduced later on. This fact was categorically admitted by Muhammad Usman ASI (PW.6) who deposed that:
“I had visited the place of occurrence almost at the evening time. There were lot of people present at the spot at that time. Ashraf s/o Rehmat Ali complainant of this case was also present at the spot at that time. Ashraf complainant or any other person including injured did not produce before me any application for registration of FIR, nor they nominated their assailants before me.”
The above quoted portion of the evidence of Muhammad Usman ASI (PW. 6) is very much relevant because had the incident taken place in the manner and mode the complainant narrated through application (Exh.PM) it would have been reported immediately to him at the spot. The complainant party through a protracted trial remained fail in justifying as to what preluded them to report the crime to the police promptly. We have also minutely perused Rapat No. 18 dated 30.05.2017 the examination of which shows that the afore-mentioned injured along with Idrees (the then injured) arrived at Police Station, however, in the said Rapat the description of injuries and the role assigned to the accused are missing. It is also mentioned in Rapat No. 18 that the accused caused injuries to the injured persons by using blunt as well as firearm weapons. Therefore, it can be concluded that in fact Rapat No. 18 was the exact information which was conveyed to police immediately after the incident. However, later on the facts were concocted and the FIR was chalked out after deliberation and consultation. Reliance is placed upon the case reported as Muhammad Jahangir and another v. The State and others (2024 SCMR 1741), wherein the Supreme Court of Pakistan held as under:
“…….. perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution.”
In order to cover delay in reporting the matter to police Ashraf Ali complainant (PW.11) during the course of evidence took the stance that on 30.05.2017 he presented an application for the registration of FIR before SHO who did not lodge any FIR. Learned trial Court at the relevant time asked DDPP to peruse the record for tracing out the said application but the same was not found available. Since this is an important aspect, hence relevant portion of the cross- examination of Ashraf Ali (PW.11) is reproduced hereunder:-
“I also submitted my application before SHO for registration of my FIR on 30.05.2017 on the day of occurrence but SHO did not lodge my FIR on the application. It is correct that I cannot present that application before the Court now. At the request of learned counsel for the accused file was perused by learned DDPP but no such application dated 30.05.2017 is available on record.”
Similarly, Ghulam Farid SI/Investigating Officer (PW.19) during cross-examination stated that no application for the registration of FIR was submitted by Ashraf Ali SI (PW.11). In this regard, an excerpt from the cross-examination of Ghulam Farid SI (PW.19) is mentioned below:-
“I have perused the police file as well as judicial file, no application is available on record that might have been submitted by the complainant on 30.05.2017 for the registration of this case.”
Ghulam Farid SI (PW.19) further stated the occurrence had come into his knowledge, however, no application with regard to the registration of FIR was moved prior to 03.06.2017. A relevant portion of cross-examination of Ghulam Farid SI (PW.19) reads as under:-
“The instant occurrence came into our knowledge on 30.05.2017. It is correct that if a cognizable offence is committed at any application the FIR must be registered instantly. Since complainant did not submit any application for registration of case of present occurrence prior to 03.06.2017 therefore police did not lodge any FIR at its own”.
Ghulam Farid SI (PW.19) absolutely ruined the case of prosecution by admitting during cross-examination that the complaint (Exh.PM) was got drafted by the complainant under some legal advice and on advice of the local MPA. An excerpt from the cross-examination of Ghulam Farid SI (PW.19) on account of its importance is also mentioned hereunder:
“It is correct that application Ex.PM was not submitted to me on the date and time stated therein. That in fact it was prepared at the police station with legal advice and for the advice of local MPA and nominated with specific role the opponents of said MPA.”
The above-mentioned extracts clearly demonstrate that the FIR was got registered by the complainant after consulting a legal brain, thus the same is to be looked with suspicious eyes. Reference in this context may be made to the case reported as Dur Muhammad and another v. The State and another (2020 YLR 470) wherein it was held that:
“The above quoted portion of cross-examination of the complainant (PW-2) clearly indicates that the FIR has been lodged while procuring legal advice, after consulting a legal brain, in the manners be suiting to the complainant, therefore, such FIR, which has been lodged after consultation and deliberation is always seen with suspicious eyes as its veracity is deemed to be at stake being result of consultation and deliberations.”
11. We have also observed that complaint (Exh.PM) is a computerized drafted application. Asrhaf Ali (PW.11) who is signatory of Exh.PM during cross-examination admitted that he got it drafted from Tehsil Courts, Chichawatni from a computer operator. Since this is an important aspect, hence a relevant portion of cross-examination of Asrhaf Ali (PW.11) is mentioned hereunder:-
“I got composed my complaint Ex.PM from Tehsil Courts Chichawatni. I am literate. Computer Operator after composing my application read over to me and I conceded it as correct, therefore, he handed over to me the print of the same and I after putting my signatures on it submitted the same before the Thanedar.”
Admittedly, the composer of complaint (Exh.PM) was neither produced during investigative phase nor at trial stage. The facts and circumstances mentioned hereinabove lead us to the conclusion that the FIR (Exh.PM/1) was registered while implicating each accused with the role assigned to him as per choice of the complainant-party. Therefore in such like cases the Courts have to adopt a very cautious approach for evaluating the evidence for maintaining the conviction of the accused, especially on the charge of capital sentence.
12. The facts mentioned above prompted this Court to sean the ocular account with extreme care and caution. Before the trial Court the story of homicide incident was narrated by Ashraf Ali (PW.11), Salman Ashraf (PW.12), Muhammad Usman (PW.13), Akbar Ali (PW.14) and Haider Ali (PW.15). Out of these witnesses, the former four PWs claimed to have endured firearm injuries on different parts of their bodies and the foregoing fact was described by the prosecution as affirmative proof of their truthful depositions. We acknowledge that the receipt of grievous hurt by an eye-witness in the murder incident though is a factor which reflects positively an assumption of his presence at the spot but it is not a conclusive proof about the truth of his deposition. For handing down guilty verdict to an accused in such incident, the testimony of an injured eye-witness is still required to be tested on the touchstone of the principles laid down for the appraisal of evidence. To say that an injured witness of murder incident seldom tells lie might be true in a case of single accused but is an overstatement when the number of assailants is more than one. It will wholly be unjust to raise the superstructure of conviction on the deposition of injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility. If any reference in this regard is needed that can be made to the case reported as Amin Ali v. The State (2011 SCMR 323) wherein the Supreme Court of Pakistan observed as under:-
“Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of P.Ws. would not stamp them truthful witnesses.”
In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Supreme Court of Pakistan while examining the case of an injured witness held as under:
“It is settled law that injuries of PWs are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. See Said Ahmed’s case (1981 SCMR 795) and Muhammad Pervez’s case (2007 SCMR 670).”
13. Keeping in view the afore-mentioned principle of law, we have eloquently perused the record and found that the ocular account consisting of five PWs is suffering from multiple omissions and lacunas and the same cannot be made basis for maintaining the conviction and sentence of the appellants. In this regard, it is observed that as mentioned supra the incident occurred on 30.05.2017 whereas the FIR in this case was chalked out on 03.06.2017 i.e. after more than four days. All the four injured PWs after the occurrence as per story of the prosecution were taken to Police Station Kassowal from where after preparation of police papers they were dispatched to THQ Hospital Chichawatni for their medical examination and this aspect was highlighted by Ashraf Ali complainant (PW.11) with the following words:
“We the injured PWs including Muhammad Idrees (the then injured) deceased were taken to police station Kassowal where papers were prepared for getting us medically examined. Whereafter we were taken to the Tehsil Headquarter Hospital Chichawatni, where we were medically examined. I, Akbar Ali PW and Idrees deceased who was then alive were referred to District Headquarter Teaching Hospital Sahiwal for further treatment. On 03.06.2017, I obtained our medicolegal reports from Tehsil Headquarter Hospital Chichawatni and I got written computerized application Ex.PM at Tehsil Courts, Chichawatni which bears my signatures.”
The similar stance was supported by Salman Ashraf (PW.12), Muhammad Usman (PW.13) and Akbar Ali (PW.14) who deposed that:
Salman Ashraf (PW.12)
“I and other injured named above were shifted to police station Kassowal where our injury statements were prepared by the Police and we were taken to the Tehsil Headquarter Hospital Chichawanti where we were medically examined. I, Muhammad Idrees deceased who was then alive and Akbar Ali PW were referred to District Headquarter Teaching Hospital Sahiwal for better treatment but Muhammad Idrees then injured succumbed to the injuries in District Headquarter Teaching Hospital, Sahiwal on 04.06.2017.”
Muhammad Usman (PW.13)
“After the occurrence, we the injured PWs including Muhammad Idrees deceased who was then alive, were removed to police station Kassowal where our injury statements were prepared and we were taken to Tehsil Headquarter Hospital Chichawatni where we were medically examined. We all the injured were referred to District Headquarter Teaching Hospital Sahiwal. Muhammad Idrees injured succumbed to the injuries on 04.06.2017 in the District Headquarter Teaching Hospital Sahiwal.”
Akbar Ali (PW.14)
“After the occurrence we the injured including Idrees deceased who was then alive were removed to police station Kassowal wherefrom we the injured including the deceased who was then alive were taken by the police to Tehsil Headquarter Hospital Chichawatni where we were medically examined. Idrees deceased who was then alive and Ashraf Ali complainant were referred to District Headquarter Teaching Hospital Sahiwal for their better treatment. I and Suleman injured PW were also referred to District Headquarter Teaching Hospital Sahiwal for better treatment. On 04.06.2017, Muhammad Idrees injured succumbed to the injuries in District Headquarter Teaching Hospital Sahiwal.”
However, the version of the above-mentioned witnesses of the ocular account was not supported by Haider Ali (PW.15) produced by complainant party itself and he deposed in the terms referred below for the sake of reference:
“On the day of occurrence Muhammad Usman ASI reached the place of occurrence soon after the occurrence and all the injured were lying at the place of occurrence I also appeared before Muhammad Usman ASI at that time. I did not record any statement to Muhammad Usman ASI or any other police officer on the day of occurrence regarding the occurrence on 30.05.2017. Except Idress all the other injured PWs were in conscious. None of them made any statement before Usman ASI as to how they received injuries nor they nominated their assailants before the Usman ASI.”
This version of Haider Ali (PW.15) stood corroborated from the statement of Muhammad Usman ASI (PW.6) who was the first police officer who visited the place of occurrence immediately after getting knowledge and made it clear during the course of his examination-in-chief that on 30.05.2017 he prepared the injury statement of Naeem Abbas injured Ex.PL, injury statement of Akbar injured Ex.PL/1, injury statement of Salman injured Ex.PL/2 and the injury statement of Muhammad Usman Ex.PL/3 and sent them to Tehsil Headquarter Hospital Chichawanti with Ijaz Ahmed 312/C for their medical examination. The MLCs of the injured Ashraf Ali (PW.11), Salman Ashraf (PW.12), Muhammad Usman (PW.13) and Akbar Ali (PW.14) categorically contained the fact that all the injured were medically examined through above-said Ijaz Ahmed 312/C meaning thereby that the witnesses of ocular account stand belied before the Court regarding the manner and mode of incident and the examination of injured who were never taken to police station immediately after the occurrence, rather their injury statements were prepared by Muhammad Usman ASI (PW.6) at the spot and that too prior to the registration of the FIR. During trial complainant Ashraf Ali (PW.11) further stated that on 28.06.2017 he along with other PWs appeared before Abid Sagheer Inspector (PW.16) and got recorded his statement (Exh.DA) asserting therein that after the occurrence the injured were shifted to hospital by rescue 1122 and the police did not visit the place of occurrence on the day of incident, rather he met the police for the first time on the day of occurrence at 5:45 p.m. This being important is reproduced hereunder:
“It is correct that on 28.06.2017 we appeared before Abid Sagheer Inspector during investigation who recorded my statement. I recorded in my statement Ex.DA that injured persons were shifted to hospital by Rescue 1122. Police did not visit the place of occurrence on the day of occurrence at all. I for the first time met the police at police station on the day of occurrence at 05:45 PM.”
The admission on part of the complainant that the injured were shifted to the hospital via Rescue-1122 manifests that they were not taken to Police Station rather were shifted directly to the hospital.
14. Besides that Muhammad Usman ASI (PW.6) also stated that he prepared injury statement of she-buffalo of complainant (Exh.PL/5) and sent it to Veterinary Hospital for its medical examination. The perusal of afore-said injury statements reveals that the reference of Rapat No. 18 dated 30.05.2017 is mentioned therein. It also speaks volume of the fact that by the time the police officer visited the spot, no FIR had been registered. Thus, without registration of FIR Muhammad Usman ASI (PW-6) was not empowered to prepare and investigate the case. Furthermore, it is evident from record that neither Muhammad Usman ASI (PW.6) was joined with investigation nor he handed over the injury statements of the injured to IO to be taken into possession vide recovery memo. in this case in order to endorse the fact that after Rapat No. 18 the proceedings were conducted in accordance with law and in this way the injury statements prepared by Muhammad Usman ASI lost its evidentiary value in the light of admission of Muhammad Usman ASI (PW.6) who in unequivocal terms admitted during cross- examination that:
“I did not join the investigation of this case and nor my statement was recorded by IO. It is correct that FIR was not registered at that time when I prepared the injury statements”.
15. The perusal of the record further make it clear that despite the visit of Muhammad Usman ASI (PW.6) at the crime scene on 30.05.2017 the crime empties were not taken into possession by him, rather according to record the same were secured by Ghulam Farid SI (PW.19) during his visit at the crime scene on 03.06.2017. We have observed that nowhere in the prosecution evidence it has come on record that the crime scene was secured and the crime empties recovered later on were lying at the same places and in the same position as mentioned by Ghulam Farid SI (PW.19). Abid Sagheer Inspector (PW.16) during cross-examination also admitted that the case diary of 03.06.2017 is silent as to whether the crime scene was secured. The relevant portion of cross-examination of Abid Sagheer Inspector (PW.16) is reproduced hereunder:-
“There is no observation of Ghulam Farid SI mentioned in the inspection notes or anywhere in the case diary of dated 03.06.2017, that the place of occurrence had been secured,
so that nobody tempered with anything at the place of occurrence until he visited the place of occurrence. There is
no mention anywhere in the case diary that crime scene
unit had visited the place of occurrence. No one got recorded his statement during investigation conducted by me that the place of occurrence was secured by the local police from 30.05.2017 onward, so that nobody tampers with the scene of occurrence.”
16. We are also mindful of the fact that during investigation, .222 bore rifles (P.3, P.11 & P.10) were recovered from Muhammad Yasin, Shahid and Iqbal (appellants) and pistol .30 bore and pump action gun (P.5 &P.7) were got recovered by Imran and Adnan (appellants). According to reports of PFSA (Exh.PAA & Exh.PAC) .222 bore rifle, pistol .30 bore and pump action recovered from Yasin, Imran and Adnan (appellants) were found wedded with the respective crime empties secured from the spot. However, the evidence of Ghulam Farid SI (PW.19) has caused a serious dent in the case of prosecution who while recording his statement before the Court deposed that on 03.06.2017 he took into possession 8 crime empties of .12 bore (P-14/1-8) from the roof top of the house of Akbar Ali which were converted into sealed parcel and were taken into possession vide recovery memo. Ex.PW/1, however, Ex.PW/1 contained the fact that the above said crime empties were taken into possession by Investigation Officer from thoroughfare and not from the rooftop of the house of Akbar Ali. Similarly, Ghulam Farid SI (PW.19) mentioned that he secured 12 crime empties of .12 bore (P-19/1-12), 3 crime empties of .12 bore (P.20/1-3), 4 crime empties of .222 bore (P.21/1-4) from the street near the house of occurrence which were converted into sealed parcel and were taken into possession vide recovery memo. Ex.PW/4 whereas. vide recovery memo. Ex.PW/4 8 crime empties were taken into possession by IO from the rooftop of Akbar Ali and not from the street near the house of occurrence. In this way the positive report of PFSA lost it evidentiary value whereas the reports of PFSA regarding the recovery of weapons of the remaining appellants are negative. Needless to mention the positive reports of PFSA further lose legal acceptance as corroboratory piece of evidence when seen in the context that the ocular account stands disbelieved. Reliance is placed upon the case reported as Muhammad Hassan v. State (2024 SCMR 1427) wherein the Supreme Court of Pakistan held as under:
“…… it is highly unsafe to rely on the evidence of recovery, which even otherwise is a corroborative piece of evidence and relevant only when the primary evidence i.e. ocular account inspires confidence as observed by this Court in Nasir Javaid and another v. The State (2016 SCMR 1144); Muhammad Nawaz and others v. The State and others (2016 SCMR 267) and Hayatullah v. The State (2018 SCMR 2092).”
17. It is further noteworthy here that as per complaint (Exh.PM) when the accused entered the house of Ashraf Ali (complainant), they maltreated the women-folk present thereat and thereafter the whole incident took place. However, Ashraf Ali (PW.11) when appeared before the trial Court, he did not utter a single word regarding the maltreatment of his women-folk. Though Muhammad Usman (PW.13) in his examination-in-chief stated that the accused gave slaps to their ladies, however during cross-examination admitted that he did not produce any lady before any of the Investigating Officers for recording of her statement. Muhammad Usman (PW.13) during cross-examination admitted as under:
“It is correct that we did not produce any lady during the investigation to prove that any lady was present in the house of occurrence at the time of occurrence. It is correct that we did not get recorded any statement of any lady during investigation to prove this fact that at the time of occurrence our ladies were present in the house of occurrence.”
Despite scrutiny of record with great circumspection we also remained abortive in tracing out the slightest piece of material to prove that any of the women was either produced before the Investigating Officer or at trial stage in support of the afore-stated stance, besides that no MLC of any of the afore-stated women is available on the file. All the narration of facts mentioned above speaks volume that either no woman was present at the crime scene or the story of maltreatment to the complainant’s women folk was introduced just to aggravate the incident by giving it a colour of Ghairat.
18. It has further been noticed by us that Ghulam Farid SI (PW.1) during evidence stated that he had taken blood with the help of cotton from different places i.e. four places. Contrarily, the memo. (Exh.PW) through which the blood through cotton was taken into possession shows that the same was done from one place.
19. We have no hesitation or doubt in observing that all the witnesses of ocular account also made dishonest improvements, thus it is not safe to rely upon them. The improvements so made by the eye-witnesses on account of relevancy are reproduced hereunder:-
Ashraf Ali (PW.11)
I recorded in my complaint Ex.PM that I got registered the present case on 03.06.2017 because I was worried and remained busy in the medical treatment of Muhammad Idrees the then injured and myself. During this period Muhammad Idrees injured succumbed to the injuries on 04.06.2017. (Confronted with Ex.PM where it is not so recoded word to word rather it is recorded that I remained busy in the medical treatment of the injured persons till today).
Salman Ashraf (PW.12)
I recorded in my statement under Section 161, Cr.P.C. on 03.06.2017 that accused Imran make fire shots. Confronted with Ex.DB where only one fire shot has been recorded.
Muhammad Usman (PW.13)
I recorded in my statement under Section 161, Cr.P.C. that Imran made more than one fire. Confronted with Ex.DA where only one fire has been recorded.
Akbar Ali (PW.14)
I recorded in my statement under Section 161, Cr.P.C. that Shah Ali abducted the daughter of accused Muhammad Ali regarding which a case FIR No. 187/2017 offence under Section 496-A was got registered by Muhammad Saleem the husband of Mst. Mazia Bibi at police station Ghazi Abad, Lahore. Confronted with Ex.DC where it is not so recorded. I also got recorded in my statement under Section 161, Cr.P.C. that Muhammad Saleem remained failed in his case, Imran accused was asked for restoration of Mst. Nazia Bibi who in this connection beat Sayyam Ali the son of Shah Ali regarding case FIR No. 147/2017 dated 18.04.2017 was registered against Imran etc. Confronted with Ex.DC where it is not so recorded. I recorded in my statement under Section 161, Cr.P.C. Ex.DC that being feared from Imran etc Shah Ali sold his Ihata in dispute to me and left the village. Confronted with Ex.DC where it is not so recorded. I recorded in my statement u/S. 161, Cr.P.C. that accused Imran made fire shots. Confronted with Ex.DC where only one fire shot has been mentioned.
Haider Ali (PW.15)
On the other hand, Ghulam Farid SI (PW.19) during cross- examination stated that he correctly recorded the statements of PWs. In this way, no question arises that any omission in recording the statements of eye-witnesses remained on part of the Investigating Officer. In this view of the matter, the omissions/improvements made by the afore-mentioned eye-witnesses rendered them unworthy of any credence as their credibility was compromised. In arriving at such conclusion, we are enlightened from the observation of Supreme Court of Pakistan expressed in case reported as Muhammad Arif v. The State (2019 SCMR 631) wherein it was held as under:-
“It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.”
20. The medical evidence in this case was furnished by Dr.Mushtaq Ahmad Veterinary Officer (PW.5), Dr.Nazeer Ahmad (PW.9) and Dr.Ali Hussain Syed (PW.10). Out of these three doctors, Dr.Nazeer Ahmad (PW.9) medically examined Muhammad Idrees (the then injured) along with five other injured persons. During the medical examination of Muhammad Idrees Dr.Nazeer Ahmad (PW.9) observed one firearm punctured wound measuring 1 cm x 1 cm on the left side of head just above the left ear. Contrarily, Dr.Ali Hussain Syed (PW.10) during autopsy of Muhammad Idrees (deceased) noted two firearm entry wounds each measuring 1 cm x 1 cm present on the left ear. On dissection, the doctor observed that there were two holes in the skull, corresponding to the both wounds. In this way, the medical evidence contradicts the ocular account whereby the single firearm injury from .30 bore pistol was attributed to Malik Muhammad Imran (appellant). In such scenario, the existence of second shot at the skull of the deceased which is not attributed to anybody casts a colossal doubt to the prosecution case. Reliance is placed on case reported as Abdul Jabbar and another v. The State (2019 SCMR 129) wherein the Supreme Court of Pakistan while dilating upon inconsistency between medical ocular evidence observed as under:-
“It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.”
We have also noticed that as per record, Ashraf Ali complainant (PW.11) along with Akbar Ali PW and Idrees (the then injured) were referred to District Headquarter Teaching Hospital, Sahiwal for further treatment. From above, it is crystal clear that the above- mentioned three injured remained under treatment in the hospital of District Sahiwal but no record therefrom was produced nor any Medical Officer under whose supervision they remained admitted appeared in the dock to support the prosecution case. Moreover, the injuries of Ashraf Ali complainant and Akbar Ali were declared by Radiologist as 337-F(iii) and 337-F(v), PPC but no Radiologist was produced. It is settled that once Radiologist is not produced in proof of the x-ray report qua the declared injuries, the same cannot be used for maintaining the conviction of the accused. Reliance is placed upon case reported as Muhammad Bakhsh v. The State and others (1986 PCrLJ 2718) wherein it was held that:
“I further find that Radiologist has not been produced by the prosecution to prove the X-Ray report pertaining to the injuries of Ghulam Haider.”
21. The case of the prosecution further falsified from the fact that as per prosecution case the shot fired by Malik Muhammad Imran (appellant) hit at the head of deceased. However, as stated above during postmortem examination of Muhammad Idrees (deceased) he was found in receipt of two firearm injuries and during postmortem examination two foreign bodies were recovered. Subsequent thereto, these two foreign bodies were dispatched to the office of PFSA and report (Exh.PAC) was received therefrom. The perusal of Exh.PAC shows that the afore-mentioned metallic pieces were not matched with the weapon recovered from Malik Muhammad Imran (appellant); relevant portion of Exh.PAC reads as under:
“Two metallic pieces were examined and found to be not suitable for caliber determination and comparison.”
22. The motive set out in the FIR was that on 17.05.2017 Akbar Ali (PW.14) had purchased a piece of land measuring 21-Marlas from one Shah Ali due to which the accused-party had nourished grudge. In this regard, it is observed that though all the witnesses of ocular account stated in their statements regarding the motive part of the incident, however no documentary evidence was produced by the prosecution and besides that Shah Ali from whom Akbar Ali (PW.14) purchased the property in dispute was not associated during investigation nor he was produced during trial. This aspect was candidly admitted by Ghulam Farid SI/Investigating Officer (PW.19) during trial with the following words:
“Akbar Ali PW or the complainant did not produce before me any registered deed through which the house in dispute might have been purchased the house in question from Shah Ali for Rs. 35,00,000/-. Shah Ali did not join the investigation with me.”
From above, it can conveniently be held that prosecution could not prove its motive part of the case. It is well settled that once the motive is set up by the prosecution and the same is not proved, the prosecution shall suffer. Reliance in this context may be placed upon the case reported as Sarfraz and another v. The State (2023 SCMR 670) wherein the Supreme Court of Pakistan held as under:-
“It is now well es
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