PLJ 2025 Cr.C. 762 (DB)
[Lahore High Court Lahore]
Present: Miss Aalia Neelum, C.J. And Abher Gul Khan, J.
MUHAMMAD ARSHAD etc.--Appellants
versus
STATE and others--Respondents
Crl. A. No. 78244 of 2023, Crl. PSLA No. 19066 & M.R. No. 53 of 2022, decided on 24.6.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
غیر شناخت شدہ لاش کی چشم دید گواہوں کے ذریعے عدم شناخت، ہائی کورٹ کو اس نتیجے پر پہنچاتی ہے کہ اگر وہ جائے وقوعہ پر موجود ہوتے یا مرحوم کے ساتھ ہسپتال جاتے تو وہ یقینی طور پر اس کی شناخت کر لیتے اور یہ پہلو استغاثہ کے مقدمے کو انتہائی مشکوک بنا دیتا ہے۔
----Ss. 302(b) & 34--Qatl-e-amd--Conviction and sentence--The non-identifying dead body by eye-witnesses, leads High Court to conclusion that had they been present at place of occurrence or accompanied deceased to hospital, they would have definitely identified him and such aspect makes case of prosecution highly doubtful. [P. 772] A
2024 SCMR 1449.
Pakistan Penal Code, 1860 (XLV of 1860)--
طبی ثبوت--سزا اور جرم ثابت ہونا-- یہ قانونی اصول بھی طے شدہ ہے کہ طبی ثبوت ایک قسم کے تائیدی ثبوت کے طور پر کام کرتا ہے، جو جائے وقوعہ اور زخم کی نوعیت، واردات میں استعمال ہونے والے ہتھیار اور موت اور پوسٹ مارٹم کے درمیان گزرنے والے وقت کے بارے میں استغاثہ کے بیان کی تصدیق کر سکتا ہے، لیکن قاتل کی شناخت ظاہر نہیں کرتا۔
----Ss. 302(b) & 34--Qatl-e-amd--Medical evidence--Conviction and sentence--It is also an established principle of law that medical evidence serves as a form of corroborative evidence, which can validate prosecution’s account concerning location and type of injury, weapon involved in incident, and time elapsed between death and postmortem, but does not reveal identity of murderer. [P. 772] B
PLD 2009 SC 53 & 2008 SCMR 1103.
Pakistan Penal Code, 1860 (XLV of 1860)--
--محرک-- محرک بعض اوقات استغاثہ کے مقدمے کی حمایت کرتا ہے اور اکثر کسی ملزم کو غلط طور پر ملوث کرنے کی ایک بڑی وجہ کے طور پر کام کرتا ہے، جس کی وجہ سے اسے مسلسل دو دھاری تلوار سمجھا جاتا ہے۔
----Ss. 302(b) & 34--Qatl-e-amd--Conviction and sentence--Motive--The motive sometimes supports prosecution’s case and frequently serves as a major reason for false implication of an accused, making it consistently regarded as a double-edged sword. [P. 773] C
2019 SCMR 652.
Pakistan Penal Code, 1860 (XLV of 1860)--
- جائے وقوع سے کوئی خالی جرم برآمد نہیں ہوا-- اس پہلو سے ، یہ آسانی سے یہ نتیجہ اخذ کیا جا سکتا ہے کہ کوئی خالی جرم جائے وقوع سے حاصل نہیں کیا گیا تھا اور بظاہر وہی پولیس نے لگایا تھا تاکہ چشم دید گواہوں کے بیانات کی تصدیق کے لیے ثبوت بنائے جا سکیں ۔
----Ss. 302(b) & 34--Qatl-e-amd--Conviction and sentence--No crime empty was recovered from place of occurrence--From this aspect, it can conveniently be concluded that no crime empty was secured from spot and apparently same were planted by police so as to knit evidence for corroborating statements of eye-witnesses. [P. 774] D
2024 PCr.LJ 617.
Pakistan Penal Code, 1860 (XLV of 1860)--
مذکورہ پارسل جمع کرنے میں ایک دن کی تاخیر اس بات کی نشاندہی کرتی ہے کہ ان کی محفوظ ہینڈلنگ خطرے میں پڑ گئی ہے ، جس سے وصولی غیر اہم ہو جاتی ہے ۔
----Ss. 302(b) 34--Qatl-e-amd--Conviction and sentence-- A one-day delay in depositing afore-mentioned parcels, indicates that their secure handling has been jeopardized, rendering recovery inconsequential. [P. 774] E
2016 SCMR 1605 & 2018 SCMR 577.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 34--Qatl-e-amd--Conviction and sentence--Prosecution failed to fulfill its obligation in substantiating case against appellant beyond scintilla of doubt--It goes without saying that if any uncertainty/lacuna arises from prosecution’s case, there is no justification for denying its benefit solely on basis of gravity of case--Based on established principles for evaluating evidence, premium of every reasonable doubt is to be extended to accused which can best be extended via verdict of acquittal. [Pp. 775 & 776] F
PLD 2002 SC 1048.
Pakistan Penal Code, 1860 (XLV of 1860)--
سزا اور سزا کا مخصوص کردار لالکارا اٹھانے اور چوٹ پہنچانے کا - پولیس کی رائے کو صرف مقدمے کی قسمت کا فیصلہ کرنے کی بنیاد نہیں بنایا جا سکتا ۔ تاہم ، اگر اس طرح کی رائے کسی قابل اعتماد مواد پر مبنی ہے تو مجرمانہ مقدمے کا فیصلہ کرنے کے لیے دیگر عوامل کے ساتھ اس پر غور کرنے کی ہر اچھی وجہ ہے ۔ تفتیشی افسر وہ شخص ہوتا ہے ، جو واقعہ کے فورا بعد جائے وقوعہ کا دورہ کرتا ہے ، گواہوں کے بیانات ریکارڈ کرتا ہے ، متعدد دیگر افراد کے ساتھ بات چیت کرتا ہے جو مختلف وجوہات کی بناء پر کیس سے دور رہنے کا انتخاب کرتے ہیں اور پھر رائے تشکیل دیتے ہیں ۔
----Ss. 302(b) & 34--Qatl-e-amd--Conviction and sentence specific role of raising lalkara and causing injuries--The opinion of police cannot solely be made basis for deciding fate of a case--However, if such opinion is based on some convincing material then there is every good reason to consider it along with other factors for deciding a criminal case--Investigating Officer is person, who visits crime scene immediately after occurrence, records statements of witnesses, interacts with numerous other persons who for various reasons opt to stay away from case and then forms an opinion.
[P. 776] G
NLR 2002 Criminal 265.
Pakistan Penal Code, 1860 (XLV of 1860)--
قانون کی یہ اچھی طرح سے طے شدہ تجویز ہے کہ جب مجاز دائرہ اختیار کی عدالت ٹھوس بنیادوں کی بنیاد پر بری ہونے کا فیصلہ سناتی ہے ، تو اسے میکانکی انداز میں پریشان نہیں کیا جانا چاہئے ۔ بری ہونے کے فیصلے کو ایک طرف رکھنے کے لیے ، یہ ثابت کرنا ہے کہ بری ہونے کا فیصلہ من مانی ، خیالی ، مسخ شدہ اور ریکارڈ کے منافی ہے ۔ بری ہونے کے فیصلے پر ملزم بے گناہی کا فیصلہ حاصل کرتا ہے اس لیے اسے غیر معمولی اور غیر معمولی حالات میں پریشان کیا جانا چاہیے ۔
----Ss. 302(b) & 34--Qatl-e-amd--Conviction and sentence--It is well settled proposition of law that when a Court of competent jurisdiction passes judgment of acquittal on basis of cogent grounds, same is not to be disturbed in a mechanical manner--In order to set-aside judgment of acquittal, it is to be proved that judgment of acquittal is arbitrary, fanciful, perverse and contrary to record. An accused on judgment of acquittal acquires a verdict of innocence hence it is to be disturbed in exceptional and extraordinary circumstances. [P. 777] H
2017 SCMR 1710 & PLD 2020 SC 146.
M/s. Muhammad Irfan Malik & Rida Noor, Advocates for Appellants.
M/s. Muhammad Sufiyan Lone & Faraz Akhtar, Advocates for Complainant.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Date of hearing: 24.6.2025.
Judgment
Abher Gul Khan, J.--Muhammad Arshad (appellant) along with two co-accused, namely Muhammad Hayat & Ahmad Nawaz was tried by learned Additional Sessions Judge, Khushab in private complaint titled Muhammad Wazir v. Muhammad Hayat & 2 others (under Sections 302 & 34, PPC) which has arisen out of case FIR No. 7/2020 registered under Sections 302 & 34, PPC at Police Station Saddar Jauharabad. Trial Court vide judgment dated 24.02.2022 while acquitting the afore-mentioned two co-accused, convicted and sentenced the appellant as under:-
Under Section 302(b), PPC to suffer death sentence as ta’zir for committing qatl-i-amd of Muhammad Azam. He was also directed to pay compensation of Rs. 2,00,000/-in terms of 544-A, Cr.P.C. to the legal heirs of the deceased which was ordered to be recovered as arrears of land revenue and in default whereof to undergo simple imprisonment for 06-months.
Challenging his conviction and sentence Muhammad Arshad (appellant) filed Criminal Appeal No. 78244 of 2023, whereas Muhammad Wazir (complainant) preferred Criminal PSLA No. 19066 of 2022 against the acquittal of Muhammad Hayat & Ahmad Nawaz (Respondents No. 1 & 2). Likewise, trial Court forwarded a reference which was numbered as Murder Reference No. 53 of 2022 under Section 374, Cr.P.C. to seek confirmation or rejection of the death sentence imposed on the convict, Muhammad Arshad. All these matters are being decided through this single judgment.
2. Succinctly stated the facts of the prosecution case as unfolded by Muhammad Wazir complainant (PW.1) in FIR (Exh.CW.4/D) are that on 08.01.2020 at about 5:10 p.m., he along with Mehboob Azam and Javed Iqbal was going to Jamia Mosque Mastialanwala on foot from main Bazaar Hadali. Meanwhile Muhammad Azam crossed them on his motorcycle, who was also going to his house. When they reached behind Jamia Mosque Mastialanwala, Muhammad Hayat, Ahmad Nawaz and Muhammad Arshad all armed with .30 bore pistols arrived there. Muhammad Hayat raised Lalkara to take his revenge and made three successive fire shots from his .30 bore pistol which struck on the left side of chest, right side of chest and upon right elbow of Muhammad Azam. Subsequently, Muhammad Arshad made a fire shot which landed on the upper side of his abdominal area. Muhammad Azam fell on the ground in an injured condition. Then Ahmad Nawaz fired a shot from pistol .30 bore which hit Muhammad Azam upon his right buttock. The accused fled away while brandishing their weapons from the spot towards Southern street. The PWs attended Muhammad Azam but he succumbed to the injuries at the spot. The motive behind the occurrence was that on 16.02.2019 Umar Azam son of Muhammad Azam had caused a fire shot injury to Muhammad Hayat, pursuant to which a criminal case was registered against them.
3. After the receipt of information about the incident, Ghulam Qasim SI/Investigating Officer (CW.6) along with his colleague police officials arrived at the place of occurrence, recorded the statement/Fard Bian (Exh.PA) of Muhammad Wazir complainant (PW.1) and sent the same to the police station through Ameer Moavia 661/C for the registration of formal FIR. Subsequent thereto, he prepared injury statement (Exh.CW.6/H), inquest report (Exh.CW.6/I) and deputed Rehman Qadir 886/C for accompanying the dead body for autopsy. He also made photographs of the dead body as well as secured blood through cotton vide memo. Exh.PC. He collected six crime empties (P.1/1-6) through memo. Exh.PD. He also took into possession motorcycle (P.2) vide recovery memo. Exh.PE. He prepared un-scaled site plan (Exh.CW.6/J) of the place of occurrence. He arrested accused Muhammad Hayat and Muhammad Arshad on 09.02.2020. On 16.02.2020 Muhammad Arshad (appellant) made disclosure and in pursuance thereof led to the recovery of pistol .30 bore (C.9) along with two live bullets, which were taken into possession through memo. Exh.CW.5/G. In his investigation, two accused Muhammad Hayat and Ahmad Nawaz were not found involved in the case.
4. Being dissatisfied with the mode of investigation, Muhammad Wazir complainant (PW.1) filed private complaint upon which the trial was held. Prosecution in order to prove its case against the accused produced three witnesses, out of whom Muhammad Wazir complainant (PW.1) and Javed Iqbal eye-witness (PW.2) narrated the ocular account. Trial Court also examined seven persons as Court witnesses, out of whom Ghulam Qasim SI (CW.6) investigated the case, whereas Dr. Imran Ahmad (CW.7) furnished the medical evidence. The remaining PW/CWs, more or less were formal in nature.
5. Dr. Imran Ahmad (CW.7) on 08.01.2020 at about 9:30 p.m., conducted the autopsy over the dead body of Muhammad Azam and observed the following injuries:--
(1) A lacerated penetrating wound 1 x 1 cm on left interior chest, 6 cm above left nipple. Margins of wound were inverted with collar of abrasion. There was corresponding hole in the Qameez. This was the wound of entry of firearm.
(2) A lacerated penetrating wound 2 x 1 cm on left scapular region of posterior chest, 2 cm lateral to posterior midline. Margins of wound were everted. There was corresponding hole in the qameez, on probing it proved to be the exit of injury No. 1.
(3) A lacerated penetrating wound 1 x .12 cm on right interior chest, 4 cm below right lateral part of clavicle. Margins of wound were inverted. There was corresponding hole in the qameez. This was the wound of entry of firearm.
(4) A lacerated penetrating wound 1 x 1.4 cm on right upper arm, 6 cm below right shoulder. Margins of wound were everted. There was corresponding hole in qameez, on probing it proved to be the exit of the injury No. 3.
(5) A lacerated penetrating wound 1 x 0.8 cm on right posterior lower arm. Margins of wound were inverted with collar of abrasion. There was corresponding hole in the qameez. This was the wound of entry of firearm.
(6) A lacerated penetrating wound 1 x 1.2 cm on right lateral elbow. Margins of wound were everted. There was corresponding hole in the qameez, on probing it proved to be the exit of injury No. 5.
(7) A lacerated penetrating wound 1 x 1 cm on interior abdominal wall, 5 cm above and left to umbilicus. Margins of wound were inverted with collar of abrasion. There was corresponding hole in the qameez. This was the wound of entry of firearm.
(
A lacerated penetrating wound 2 x 2 cm on 10 cm below to the inferior angle of left scapula. Margins of wound were everted. There was corresponding hole in the qameez, on probing it proved to be the exit of the injury No. 7.(9) A lacerated penetrating wound 1 x 1.3 cm on posterior lower abdominal wall, 4 cm right lateral to posterior midline. Margins of wound were inverted. There was corresponding hole in the qameez, on probing the probe reached the metallic foreign body present subcutaneously on anterolateral right lower chest, 7 cm below the right nipple. The metallic foreign body removed and duly sealed and handed over to the police.
(10) A lacerated penetrating wound 1 x 0.8 cm on right upper lateral gluteal region. Margins of wound were inverted. There was corresponding hole in the shalwar, on probing the probe reached the metallic foreign body present in lateral side of hip-bone visible on x-ray of pelvis.
(11) A lacerated penetrating wound 1 x 1 cm on right mid buttock. Margins of wound were inverted with collar of abrasion. There was corresponding hole in the shalwar, on probing the probe reached the metallic foreign body present in head of right femur visible on x-ray of pelvis.
According to the doctor injuries No. 1,2,7,8 and 9 were sufficient to cause death and besides that injuries No. 3,4,5,6, 10 & 11 were also held contributory to the death of the deceased. The doctor described the probable time between death and injury as immediate and between death and postmortem 5 to 7 hours.
6. After the conclusion of prosecution evidence, Muhammad Arsahd (appellant) was examined under Section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all those questions while pleading his innocence and false implication with the case. Appellant neither opted to make statement under Section 340(2), Cr.P.C., nor produced any evidence. However, the defence produced Asad Abbas as DW.1. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence the instant criminal appeal, Criminal PSLA and murder reference.
7. Learned counsel for the appellant argued that as per record the FIR in this case seems to have been registered with promptitude but the same was managed in connivance with the local police. Both the eye-witnesses who appeared before the trial Court have failed to give any plausible reason for their presence at the eventful time. The appellant had no motive to take the life of the deceased. The medical evidence is in sharp contrast with the ocular account. Both the eye-witnesses in their Court statements made material contradictions which make them unworthy of any credence. The recovery of pistol at the instance of the appellant is foisted one as the same was affected in violation of Section 103, Cr.P.C. The motive set out in the FIR remained unproved, rather the same adversely affects the case of the prosecution. The two co-accused who were named in the FIR with the specific role of causing injuries to the deceased were acquitted by the trial Court so the same set of evidence cannot be used against the appellant. It was thus urged by the learned counsel that since many doubts are arising out of the prosecution case, hence the appellant is entitled to clean acquittal.
8. Conversely, learned law officer well assisted by learned counsel for the complainant came forward with the submissions that it was a promptly lodged FIR wherein the appellant is specifically named with the role of causing firearm injury to the deceased. The eye-witnesses while appearing before the trial Court gave a trustworthy and confidence inspiring ocular account. The medical evidence supports the ocular account. The motive set out in the FIR further implicates the appellant in the commission of crime. The positive report of PFSA by virtue of which the weapon recovered from the appellant matched with the crime empties secured from the spot on the day of crime, is another factor to implicate the appellant in this case. In these circumstances, learned complainant’s counsel prayed that since the prosecution case qua the appellant is foul proof, hence he does not deserve any leniency and besides that the acquitted accused be also convicted and sentenced appropriately keeping in view the existence of confidence inspiring evidence.
9. Arguments heard. Record perused.
10. It evinces from the perusal of the record that the case in hand is emanating from an incident having taken place on 08.01.2020 at about 5:10 p.m. near Jamia Mosque Mastialanwala situated at a distance of 9-kilometers from Police Station Saddar Jauharabad. The information of crime was reported to the police by Muhammad Wazir complainant (PW.1) through Fard Bian/statement (Exh.PA) made before Ghulam Qasim SI (CW.6) upon his arrival at the spot at about 6:30 p.m. on the eventful day and FIR (Exh.CW.4/D) was chalked out at 7:05 p.m. In this way, FIR (Exh.CW.4/D) in this case seems to have been registered within two hours which is portrayed by the prosecution in a way to establish the fact that such prompt reporting of crime excludes all hypotheses of concocting of facts and fabricating of false story. No doubt, in our criminal judicial system, FIR is a crucial document and its prompt registration is generally considered more reliable which is less likely to be influenced by embellishments or afterthoughts. However, in the instant case we have minutely perused the available record and found that the FIR (Exh.CW.4/D) was not registered at the time and manner canvassed by the prosecution. According to the inquest report (Exh.CW.6/I) Ghulam Qasim SI/Investigating Officer (CW.6) received information regarding the happening of crime at 5:10 p.m. on 08.01.2020 who during cross-examination also stated that he arrived at the place of occurrence in pursuance of call on ‘15’ at 5:30 p.m. i.e. within twenty minutes of the occurrence, However, astonishingly the statement/Fard Bian (Exh.PA) of Muhammad Wazir complainant (PW.1) was recorded by Ghulam Qasim SI/Investigating Officer (CW.6) at 6:30 p.m. From the narration of facts mentioned hereinabove, it can easily be gathered that Ghulam Qasim SI/Investigating Officer (CW.6) reduced into writing the statement of the complainant after one hour of his reaching at the spot and in this regard the prosecution failed to give any satisfactory explanation. Thus, we feel no reluctance in holding that one hour time was spent to arrange witnesses who got registered FIR (Exh.CW.4/D) after deliberation while specifying the role of each accused as per their choice. Even otherwise, the question as to what task Ghulam Qasim SI (CW.6) kept on performing after his arrival at the crime scene is shrouded in mystery and makes the case of the prosecution highly doubtful putting this Court at guard to appraise the case of an accused on the charge of capital sentence with cautious approach. Reliance is placed upon the case reported as Ghulam Abbas and another v. The State and another (2021 SCMR 23) wherein the Supreme Court of Pakistan while dealing with a criminal case reported with delay held as under:
“No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the police. Hameed Ullah Khan SI (PW.15) who investigated the case during his cross-examination that he reached at the place of occurrence at about 5.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out.”
11. It is also a matter of record that during the course of investigation, out of total three accused, two namely Muhammad Hayat (since acquitted) and Ahmad Nawaz (since acquitted) were found not involved in the case and in consequence thereof Muhammad Wazir complainant (PW.1) had to file a private complaint (Exh.PB) upon which the trial was held. During trial, the tale of occurrence was brought on record through Muhammad Wazir complainant (PW.1) and Javed Iqbal eye-witness (PW.2). As regards Muhammad Wazir complainant (PW.1), he was the father of Muhammad Azam (deceased). So far as, Javed Iqbal eye-witness (PW.2) is concerned, though he was not closely related with the deceased but claims to have close tie with him. Since the details of occurrence are mentioned in para-2 above, hence there is no compelling reason to recapitulate the same here. To be precise as per FIR (Exh.CW.4/D) at the relevant time Muhammad Hayat (since acquitted) raised Lalkara to take his revenge and fired three successive shots from his pistol .30 bore which hit on the left side of chest, right side of chest and upon right elbow of Muhammad Azam (deceased). Muhammad Arshad (appellant) was ascribed the role of firing .30 bore pistol shot which landed on the upper side of abdominal area of Muhammad Azam (deceased), whereas the blame of causing firearm injury with pistol .30 bore at the right buttock of Muhammad Azam (deceased) is attributed to Ahmad Nawaz (since acquitted). The scrutiny of the eye-witness account also raises doubts about the sequence of the shooting involving Muhammad Hayat (since acquitted) and Muhammad Arshad (appellant), as well as who shot whom, was not established from the testimonies of Ghulam Qasim SI/Investigating Officer (CW.6), Muhammad Wazir complainant (PW.1) and Javed Iqbal eye-witness (PW.2). Learned counsel for the complainant cross-examined Ghulam Qasim SI/Investigating Officer (CW.6) and during cross-examination, he admitted that:
“In investigation, it was found that two sisters of Muhammad Hayat were married to two brothers of Muhammad Azam deceased.”
Contrary to the above, Muhammad Wazir complainant (PW.1), father of Muhammad Azam (deceased) and a close relative of Muhammad Hayat (since acquitted), was unable to state that Muhammad Hayat suffered a head injury and had undergone treatment, remained admitted at the hospital, and was discharged on 10.01.2020. This is evident when considering Ex.CW.5/E, which shows that Muhammad Hayat (since acquitted) was admitted at the DHQ Teaching Hospital Sargodha on 07.01.2020 and discharged on 10.01.2020. Ghulam Qasim SI/Investigating Officer (CW.6) deposed during cross-examination that:
“It was the version of accused Hayat that he was admitted in the hospital at the time of occurrence. I verified the factum of Hayat’s admission in the hospital DHQ, Sargodha at the time of occurrence and collected discharge slip and other relevant papers. According to my investigation, accused Hayat was admitted in DHQ Hospital, Sargodha at the time of occurrence.”
The sequence of the shots allegedly fired by the accused, as reported by Muhammad Wazir complainant (PW.1), was not found established by the prosecution evidence.”
12. We have further noticed that according to statement of Ghulam Qasim SI/Investigating Officer (CW.6) he along with police officials came at the spot pursuant to ‘15’ call and despite careful scrutiny we have not come across the name of the person who informed the police. Similarly, no record from 15-Call Centre was placed either during investigation or at trial stage. Had the record pertaining to 15-Call Centre been placed on record, the actual facts of the prosecution case would have easily been brought on the file. Furthermore, Muhammad Wazir complainant (PW.1) stated during cross-examination that when the occurrence took place the time was not of any prayer and besides that he failed to give any plausible explanation for his being present at the spot. This stance was admitted by Muhammad Wazir complainant (PW.1) with the following words:-
“I did not mention any specific reason for going to mosque Mastialanwala. At the time of occurrence it was not a prayer time.”
Muhammad Wazir complainant (PW.1) during cross-examination also admitted that the residence of Javed Iqbal eye-witness (PW.2) is situated at a considerable distance from the place of occurrence. Similarly, Javed Iqbal eye-witness (PW.2) while appearing before the trial Court deposed that his residence is situated at a distance of half kilometer from the place of occurrence. Javed Iqbal eye-witness (PW.2) further admitted that “I did not mention any reason in my statement under Section 161, Cr.P.C. for my presence on the spot at the relevant time.” The absence of both the eye-witnesses at the spot can further be verified from the fact that according to inquest report (Exh.CW.6/I), Muhammad Azam (deceased) was identified by Rab Nawaz (given up PW) and Muhammad Bashir (PW.3). In this way, the case of the prosecution that both the eye-witnesses saw the incident falls on the ground. The non-identifying the dead body by the eye-witnesses, leads this Court to the conclusion that had they been present at the place of occurrence or accompanied the deceased to the hospital, they would have definitely identified him and such aspect makes the case of the prosecution highly doubtful. Reliance is placed upon the case reported as Iftikhar Hussain alias Kharoo v. The State (2024 SCMR 1449) wherein the Supreme Court of Pakistan held as under:
“This fact also finds corroboration from the fact that perusal of postmortem report and inquest report reveal that dead body was brought to hospital at 11:00 PM by the Police and was identified by the Yasir Abbas and Ali Raza (PW.14). Thus, eye-witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. In absence of physical proof qua presence of the witnesses at the crime scene, the same cannot be relied upon.”
All the facts and circumstances mentioned above accumulatively are sufficient to show that it was an unseen occurrence and an effort has been made by the prosecution to implicate the appellant through planted eye-witnesses.
13. A wade through the medical evidence furnished by Dr. Imran Ahmad (CW.7) unfolds that Muhammad Azam (deceased) was in receipt of eleven injuries, out of which seven were firearm entry wounds. Needless to mention here that the numerical strength of the injuries noticed by the doctor on one hand negates the case of the prosecution and on other hand does not coincide with the number of assailants. As stated above, three injuries were attributed to Muhammad Hayat (since acquitted) and one was ascribed to Ahmad Nawaz (since acquitted), whereas Muhammad Arshad (appellant) was saddled with the role of causing one firearm injury on the person of the deceased. Since the prosecution case was disbelieved to the extent of two co-accused to whom the effective role in the incident had been assigned and the reasons given by this Court in the preceding paras also create a reasonable doubt qua the guilt of the appellant therefore depending on the medical evidence alone to maintain appellant’s conviction would be unsafe. It is also an established principle of law that medical evidence serves as a form of corroborative evidence, which can validate the prosecution’s account concerning the location and type of injury, the weapon involved in the incident, and the time elapsed between death and postmortem, but does not reveal the identity of the murderer. Reference is made to the cases reported as Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53) and Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103). The relevant extract from the former cited case is being reproduced hereunder:
“It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.”
14. In order to seek any further corroboration, we examined the motive aspect of the prosecution’s case and found that at the time of registration of FIR (Exh.CW.4/D), in the private complaint (Exh.PB), and throughout the trial, a specific motive was presented. According to this, on 16.02.2019, Umer Azam, son of Muhammad Azam, fired a pistol shot at Muhammad Hayat, for which both Umer Azam and Muhammad Azam were challaned. In this context, we noted that the motive was ascribed to Muhammad Hayat (since acquitted) and not to the appellant. Muhammad Wazir complainant (PW.1) during cross-examination admitted that “Arshad accused had no previous litigation with us.” Similarly, Ghulam Qasim SI/Investigating Officer (CW.6) during the course of his evidence further made it clear that “Arshad accused had no personal enmity with the deceased Muhammad Azam”. It goes without saying that the motive sometimes supports the prosecution’s case and frequently serves as a major reason for the false implication of an accused, making it consistently regarded as a double-edged sword. Guidance may be sought from the case reported as Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), wherein the Supreme Court of Pakistan held as under:
“The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial Court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse.”
15. It further evinces from the perusal of the record that on 16.02.2020 after his arrest Muhammad Arshad (appellant) led the police party to his house and got recovered pistol .30 bore (C.9) and two live bullets (C.10/1-2) which were taken into possession vide memo. Exh.CW.5/G. Likewise, on the day of occurrence, Ghulam Qasim SI/Investigating Officer (CW.6) visited the spot and took into possession six crime empties (P.1/1-6) vide memo. Exh.PD. Both the parcels i.e. Exh.CW.5/G and Exh.PD were received in the office of PFSA on 14.01.2020 and 19.02.2020 respectively. According to the PFSA report (Exh.PG), the five crime empties secured from the spot matched with the weapon recovered from the appellant. However, positive report of PFSA (Exh.PG) loses its importance when seen in the context that columns No. 22 & 23 of inquest report according to which no crime empty was recovered from the place of occurrence. From this aspect, it can conveniently be concluded that no crime empty was secured from the spot and apparently the same were planted by the police so as to knit the evidence for corroborating the statements of eye-witnesses. Reliance may be placed upon the case reported as Mansab Ali and another v. The State (2024 PCrLJ 617) wherein the following observation was given:
“Furthermore, in column No. 23 of the Inquest Report (Ex.CW9/D) no crime empty has been shown present there, albeit in the recovery memo. (Ex.PF) and in the site plan (Ex.CW11/A), these empties have been shown recovered lying very close to the dead body of the deceased. This deliberate omission, creates reasonable doubt about the recovery.”
Furthermore .30 bore pistol and two live bullets recovered at the pointing out of Muhammad Arshad (appellant) were sealed in a parcel, and if this parcel was submitted to the PFSA office, it should have been noted in the report that the parcel contained two live bullets also, which are not indicated in the report. It has also been noted that Ghulam Qasim SI/Investigating Officer (CW.6) received parcels containing six crime empties and a pistol on 13.01.2020 and 18.02.2020, but he submitted them to the PFSA office on 14.01.2020 and 19.02.2020, respectively. A one-day delay in depositing the afore-mentioned parcels, indicates that their secure handling has been jeopardized, rendering the recovery inconsequential. Reliance is placed upon the cases reported as Muhammad Saleem v. Shabbir Ahmed and others (2016 SCMR 1605) and Kamal Din alias Kamala v. The State (2018 SCMR 577). For advantage sake a relevant portion from the former cited judgment is reproduced hereunder:
“…… It had never been proved before the trial Court that the weapon of offence had been kept in the Mal Khana safely after its recovery and its dispatch to the Forensic Science Laboratory was also not proved by any witness.”
16. This Court has also taken notice of the fact that in his examination under Section 342, Cr.P.C. Muhammad Arshad (appellant) took a specific stance that he was falsely implicated in the instant case and the felony mentioned in the FIR was committed by one Asad Abbas upon the asking of Tiwana family who had hired him for the very purpose. This very plea was taken by the appellant in response to question “why this case is against you and why the PWs have deposed against you”, which for reference sake is mentioned below:
“Complainant falsely involved me in this case. In fact occurrence was committed by Asad Abbas who was hired by Tiwana family which was inimical to the deceased. PWs deposed falsely against me.”
In addition to above, the accused-side also produced Asad Abbas as DW.1, who stated that Munir Tiwana was his friend who sustained fire shot injuries at the hands of Umar Azam son of Muhammad Azam and that he committed the murder of Muhammad Azam at the behest of Munir Tiwana. It has also been noted by us that at the time of arrest of Muhammad Arshad (appellant) on 09.02.2020 his first version was recorded by Ghulam Qasim SI/Investigating Officer (CW.6) wherein Muhammad Arshad (appellant) stated that he was present at the spot empty handed while murder of Muhammad Azam was committed by one Asad Abbas. This fact even was admitted by Ghulam Qasim SI/Investigating Officer (CW.6) during his cross-examination with the following words:
“I recorded first version of accused Arshad that I was present on the spot empty handed while murder of deceased Muhammad Azam was committed by Asad Abbas P.O. in another case.”
Since the prosecution failed to prove its case against Muhammad Arshad (appellant) beyond scintilla of doubt, there is no need to dilate upon the plea taken by him. Needless to mention here that the plea so taken by the appellant at the time of his arrest being admissible in evidence in terms of Article 27 of Qanun-e-Shahadat Order, 1984, also creates a reasonable doubt in the credibility of the prosecution case. Reliance is placed upon the cases reported as Najaf Ali Shah v. The State (2021 SCMR 736) and Qaisarullah and others v. The State (2009 SCMR 579). The relevant portion of the former reported judgment for advantage sake is reproduced hereunder:
“The first plea of the petitioner, which was not taken into consideration by the Courts below, being admissible evidence under Article 27 of the Qanun-e-Shahadat Order, 1984 carries weight wherein he has categorically denied the allegations leveled against him.”
17. In the aftermath of afore-mentioned discussion, we conclude that prosecution failed to fulfill its obligation in substantiating the case against the appellant beyond scintilla of doubt. It goes without saying that if any uncertainty/lacuna arises from the prosecution’s case, there is no justification for denying its benefit solely on the basis of the gravity of the case. Based on established principles for evaluating evidence, the premium of every reasonable doubt is to be extended to the accused which can best be extended via verdict of acquittal. Reliance is placed upon the case reported as Ayub Masih v. The State (PLD 2002 Supreme Court 1048) wherein the Supreme Court of Pakistan held as under:
“… The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”.
18. Consequently, we allow Criminal Appeal No. 78244 of 2023 while giving benefit of doubt in favour of Muhammad Arshad (appellant); his conviction and sentence are set-aside and he stands acquitted of the charge. Muhammad Arshad (appellant) is in custody; he be released forthwith if not required to be detained in any other criminal case. Resultantly, Murder Reference No. 53 of 2022 is answered in the NEGATIVE and death sentence awarded to Muhammad Arshad (convict) is NOT CONFIRMED.
19. Insofar as Criminal PSLA No. 19066 of 2022 is concerned, we have noticed that Muhammad Hayat (Respondent No. 1) though was named in the FIR (Exh.CW.4/D) with the specific role of raising Lalkara and causing three pistol shot injuries to Muhammad Azam (deceased) hitting him on the left side of chest, right side of chest and upon right elbow, however during the course of investigation he took the plea of alibi by stating that at the time of incident he was admitted at DHQ Teaching Hospital, Sargodha. The plea so taken by Muhammad Hayat (Respondent No. 1) was verified by the Investigating Officer, namely Ghulam Qasim SI (CW.6). He collected discharge slip and other relevant documents (Exh.CW.5/E) in arriving at the conclusion that Muhammad Hayat (Respondent No. 1) was admitted in DHQ, Teaching Hospital Sargodha at the eventful time. As regards Ahmad Nawaz (Respondent No. 2), we have observed that during investigation he was not found involved in the occurrence and to his extent Ghulam Qasim SI/Investigating Officer (CW.6) pronounced declaration of innocence. We are not oblivious of the fact that that the opinion of the police cannot solely be made basis for deciding the fate of a case. However, if such opinion is based on some convincing material then there is every good reason to consider it along with other factors for deciding a criminal case. Investigating Officer is the person, who visits the crime scene immediately after the
occurrence, records the statements of the witnesses, interacts with numerous other persons who for various reasons opt to stay away from the case and then forms an opinion. For the foregoing reasons, we are of the view that since the opinion expressed by Ghulam Qasim SI/Investigating Officer (CW.6) was not favourable to the prosecution, hence its benefit was legitimately extended to the respondents. In this regard reference may be made to the case reported as Nazir v. The State (NLR 2002 Criminal 265) wherein the following observation was given:
“No doubt, the opinion expressed by the police has no proof of innocence or guilt of accused yet the factum of impact of such an opinion cannot be thrown away to wind altogether.”
Further reliance on the subject can also be placed upon the law laid down in the cases reported as Altaf Hussain and four others v. The State (NLR 2000 Criminal 232), Zulqarnain v. The State (PLD 1994 FSC 34) and Ashiq Ali v. The State (NLR 1996 Criminal 544).
20. In the said circumstances, the learned trial Court rightly acquitted Muhammad Hayat and Ahmad Nawaz (Respondent No. 1 & 2). Even otherwise, it is well settled proposition of law that when a Court of competent jurisdiction passes the judgment of acquittal on the basis of cogent grounds, the same is not to be disturbed in a mechanical manner. In order to set-aside the judgment of acquittal, it is to be proved that the judgment of acquittal is arbitrary, fanciful, perverse and contrary to record. An accused on the judgment of acquittal acquires a verdict of innocence hence it is to be disturbed in exceptional and extraordinary circumstances. Reliance is placed upon the cases reported as Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) and Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another (PLD 2020 Supreme Court 146). Resultantly, the instant Criminal PLSA has no merits and is hereby dismissed.
(A.A.K.) Appeal allowed
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