PLJ 2026 Cr.C. 290 (DB)
[Lahore High Court, Lahore]
Present: Farooq Haider and Ali Zia Bajwa, JJ.
versus
STATE etc.--Respondents
Crl. A. Nos. 69766, 78209 & M.R No. 304 of 2022,
decided on 13.1.2026.
Criminal Procedure Code, 1898 (V of 1898)--
دفعہ 374-پاکستان پینل کوڈ ، 1860 (1860 کا ایکس ایل وی) دفعہ 302 (ب)-سزائے موت کی تصدیق - آکولر اکاؤنٹ-موٹیو-جرائم کی خالی جگہیں 26.04.2020 تک موجود رہیں جب انہیں پولیس کے ذریعہ وہاں سے جمع کیا گیا تھا کیونکہ عام فہم اس طرح کے دعوے کو قبول نہیں کرتا ہے - - جہاں واقعہ کی جگہ پر دوسرے دورے پر پولیس کے ذریعہ حاصل کردہ جرائم کی خالی جگہیں حالانکہ پی ایف ایس اے کی رپورٹ کے مطابق ملزم سے برآمد شدہ کلاشنکوف سے فائر کی گئی تھیں ، پھر بھی ان پر بھروسہ نہیں کیا گیا اور پیراگراف نمبر 1 سے متعلقہ حصہ ۔ مذکورہ کیس قانون کا 25 - بازیابی محض ثبوت کا مصدقہ ٹکڑا ہے اور جب آکولر اکاؤنٹ کو مسترد/بے ایمان کر دیا گیا ہے ، تو اس طرح کا مصدقہ ثبوت اس کی افادیت کھو دیتا ہے ۔ اس سلسلے میں ، کیس سے رہنمائی طلب کی گئی ہے ۔ محرک کو کسی بھی آزاد اور ٹھوس ثبوت/مواد کے ذریعے ثابت نہیں کیا جا سکا ؛ اس کے علاوہ ، محرک ایک دو دھاری ہتھیار ہے ، یہ دونوں طریقوں کو کاٹتا ہے ، یہ غلط مضمرات کی وجہ بھی ہو سکتا ہے ؛ بصورت دیگر ، جب ٹھوس شواہد کو مسترد کر دیا جاتا ہے ، تو محرک اپنی اہمیت کھو دیتا ہے اور سزا کے لیے بے معنی ہو جاتا ہے ۔ - استغاثہ اپیل کنندہ کے خلاف اپنا مقدمہ ثابت کرنے میں ناکام رہا ہے-اپیل کی اجازت ہے ۔
----S. 374--Pakistan Penal Code, 1860 (XLV of 1860), S. 302(b)--Confirmation of death sentence--Qatl-e-amd--Ocular account--Motive--Crime empties remained there till 26.04.2020 when same were statedly collected form there by police because common prudence does not accept such claim--Wherein crime empties secured by police on second visit at place of occurrence were though found as having been fired from recovered Kalashnikov from accused as per report of PFSA yet same were not relied and relevant portion from paragraph No. 25 of said case law--Recovery is mere corroboratory piece of evidence and when ocular account has been discarded/disbelieved, then such sort of corroboratory piece of evidence loses its efficacy; in this regard, guidance has been sought from case--Motive could not be proved through any independent and cogent evidence/material; furthermore, motive is a double-edged weapon, it cuts both ways, it can also be a reason for false implication; even otherwise, when substantive evidence has been discarded, then motive loses its significance and becomes immaterial for conviction--Prosecution has been failed to prove its case against appellant--Appeal allowed.
[Pp. 306, 307, 308 & 310] C, D, F, G & H
2025 SCMR 1408 & PLD 2021 SC 600.
FIR--
ایف اَی آر۔جس کو ہمیشہ "کونے کا پتھر" سمجھا جاتا ہے اس نے کیس اور سپر اسٹرکچر میں اپنی قدر کھو دی ہے ۔ استغاثہ کا مقدمہ اس ایف اَی آر۔ کی بنیاد پر کھڑا کیا گیا ۔ تاش کے گھر کی طرح گرنے کا پابند ہے ۔
----F.I.R. which is always considered as “cornerstone” has lost its value in case and superstructure i.e. case of prosecution erected on basis of this F.I.R. is bound to fall like house of cards. [P. 297] A
2021 SCMR 23; 2022 SCMR 393 & 2022 SCMR 1527.
Pakistan Penal Code, 1860 (XLV of 1860)--
دفعہ 302 (ب) - چیلنج کریں - طبی ثبوت-یہ ایک معمولی قانون ہے کہ طبی ثبوت محض معاون/تصدیق کرنے والا قسم کا ثبوت ہے ۔ یہ مقام ، نوعیت ، چوٹ کی شدت ، چوٹ کی مدت اور چوٹ پہنچانے کے لیے استعمال ہونے والے ہتھیار کی قسم کے بارے میں بتا سکتا ہے لیکن یہ حملہ آور کی شناخت کے بارے میں نہیں بتا سکتا جس نے چوٹ پہنچائی ؛ لہذا ، یہ نہ تو کوئی تصدیق فراہم کر سکتا ہے اور نہ ہی کیس کے مخصوص حقائق اور حالات میں استغاثہ کو کوئی مدد فراہم کر سکتا ہے ۔
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Medical evidence--It is trite law that medical evidence is mere supportive/ confirmatory type of evidence; it can tell about locale, nature, magnitude of injury, duration of injury and kind of weapon used for causing injury but it cannot tell about identity of assailant who caused injury; therefore, same neither can provide any corroboration nor is of any help to prosecution in peculiar facts and circumstances of case. [P. 306] B
2025 SCMR 762.
Pakistan Penal Code, 1860 (XLV of 1860)--
دفعہ 302 (ب)-- نجی گواہ - سزا اور سزا - - چیلنج-پستول کی وصولی کی کارروائی کے دوران اور اس سلسلے میں پیراگراف نمبر 1 سے متعلقہ حصے میں کوئی نجی گواہ شامل نہیں ہوا تھا ۔ 30.
----S. 302(b)--Private witness--Qatl-e-amd--Conviction and sentence--Challenge to-- Any private witness was not joined during recovery proceedings of pistol and in this regard relevant portion from paragraph No. 30. [P. 307] E
Malik Ishrat Hussain, Advocate for Appellant.
Mr. Munir Ahmad Sial, Additional Prosecutor General for State.
Raja Fazal Quddus Satti, Advocate for Complainant (in Crl. Appeal No. 69766/2022) and for Appellant (in Crl. Appeal No. 78209/2022).
Date of hearing: 13.1.2026.
Judgment
Farooq Haider, J.--This single judgment will dispose of Crl. Appeal No. 69766/2022 filed by Sheikh Muhammad Awais (appellant) against his “conviction & sentence”, Murder Reference No. 304/2022 sent by trial Court under Section 374, Cr.P.C. for confirmation of death sentence awarded to the appellant and Criminal Appeal No. 78209/2022 filed by Farooq Ahmad (complainant) against the order of acquittal of Sheikh Faraz alias Ibrar (Respondent No. 1), as all the matters have arisen out of one and the same judgment dated: 31.10.2022 passed by learned Additional Sessions Judge, Lahore/trial Court.
2. Sheikh Muhammad Awais (appellant) along with his co-accused namely Sheikh Faraz alias Ibrar was tried in case arising out of F.I.R. No. 1299/2020 dated: 25.04.2020 (Ex.PH) registered under Sections 302, 34 PPC at Police Station: Shahdara, District: Lahore and trial Court after conclusion of the trial, vide impugned judgment dated: 31.10.2022 while acquitting Sheikh Faraz alias Ibrar (aforementioned co-accused) has convicted and sentenced the appellant as under:--
Conviction | Sentence |
Under Section 302(b), PPC | “Death” with payment of compensation of Rs. 5,00,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C. recoverable as an arrear of land revenue and in default of payment of compensation amount to further undergo S.I. for six months. |
3. Briefly, Farooq Ahmad (complainant/PW-2) moved application (Ex.PB) for registration of case to Saeed Akhtar A.S.I. (PW-11) in Mayo Hospital, Lahore regarding murder of his son namely Nouman Farooq by Sheikh Muhammad Awais (accused/appellant) while firing shots with pistol .30 bore hitting on different parts of his body; for ready reference, relevant portion of aforementioned application (Ex.PB) is hereby scanned below:
On the basis of aforementioned application (Ex.PB), case was registered vide F.I.R. No. 1299/2020 (Ex.PH) on 25.04.2020 under Sections 302, 34, PPC at Police Station: Shahdara, District: Lahore.
Appellant along with his co-accused were summoned by the trial Court to face the trial, they were formally charge sheeted to which they pleaded not guilty and claimed trial. Prosecution during trial examined thirteen witnesses, out of which, ocular account was furnished by Farooq Ahmad (complainant/PW-2) and Muhammad Salman (PW-3), Dr. Mohsin Munawar (PW-1) and Dr. Kanwal Zahra (PW-4) provided medical evidence whereas detail of investigation was deposed by Muhammad Waris, Inspector (PW-13). Prosecution after giving up PWs namely Ali Hassan, Muhammad Bilal, Asif Ali 9976/HC and Karamat Ali 11107/C (being unnecessary) and tendering reports of experts, closed its evidence. Thereafter statements of the appellant and co-accused under Section 342, Cr.P.C. were recorded wherein they refuted allegations levelled against them, they did not appear as their own witnesses under Section 340 (2), Cr.P.C., however, copy of statement of Muhammad Salman was tendered as Ex.DA in defence evidence. Trial Court after conclusion of trial while acquitting Sheikh Faraz alias Ibrar (aforementioned co-accused) has convicted and sentenced the appellant as mentioned above through the impugned judgment.
4. Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ of the case; evidence produced by prosecution is neither trustworthy nor corroborated/supported by any other independent evidence. Learned counsel for the appellant finally prayed for acquittal of the appellant.
5. Learned Additional Prosecutor General and learned counsel for the complainant have supported the impugned judgment to the extent of conviction recorded as well as sentence awarded to Sheikh Muhammad Awais (appellant) and prayed for dismissal of appeal filed by him.
Learned counsel for the complainant in support of Crl. Appeal No. 78209/2022 against order of acquittal of Sheikh Faraz alias Ibrar, has submitted that said order of acquittal is against the law and facts; result of misreading and non-reading of evidence; prosecution has proved its case against him too, up to hilt and he may also be convicted and sentenced.
6. Arguments heard. Record perused.
7. As per case of prosecution, occurrence took place on 25.04.2020 at 03:15 p.m. and place of occurrence was just at a distance of 2½ kilometers from the police station as per Column No. 4 of the Crime Report (F.I.R./Ex.PH). As per application for registration of case (Ex.PB), Nouman Farooq while receiving injuries became severely injured, fell down and while contacting police as well as Rescue 1122, he was got shifted to hospital where he succumbed to the injuries
(جب کہ پولیس اور ریسکو 1122 سے رابطہ کرکے نعمان کو ہسپتال پہنچایا گیا); in this regard, relevant portion of statement of Farooq Ahmad (complainant/PW-2) is hereby reproduced as under:
“We contacted police and rescue-1122 and shifted Nouman then injured, to hospital but he succumbed to the injuries and lost his life.”
similarly, relevant portion of statement of Muhammad Salman (PW-3) in this regard is also reproduced below:
“We contacted police and rescue-1122 and shifted Nouman to Mayo Hospital, Lahore but he succumbed to the injuries and lost his life.”
Hence, as per own case of prosecution mentioned in the application for registration of case (Ex.PB), police was contacted by the complainant before shifting Nouman Farooq to the hospital but it is quite astonishing to note here that any statement regarding this occurrence was not given/recorded to the police at that time rather application for registration of case (Ex.PB) was given/moved by Farooq Ahmad (complainant/PW-2) to Saeed Akhtar, A.S.I. (PW-11) in Mayo Hospital, Lahore at 11:40 p.m. (night). It is also relevant to mention here that as per contents of application for registration of case (Ex.PB), Nouman Farooq was shifted to the hospital while contacting police as well as Rescue 1122 and Medicolegal Examination Certificate of Nouman Farooq (Ex.PD, available at Page No. 170 of the paper book) also shows that Nouman Farooq was accompanied by rescue personnel namely Ali, LA-72, Shahdra Center, Lahore; in this regard, relevant portion of statement of Dr. Kanwal Zahrar (PW-4, who medically examined Nouman Farooq in injured condition) is reproduced below:
“Deceased Nouman then injured was brought in the emergency Mayo Hospital, Lahore by Ali Rescue Personal Bearing No. LA-72 Shahdara Centre, Lahore.”
It goes without saying that name of complainant or any other cited eye-witness is not available in aforementioned Medicolegal Examination Certificate of Nouman Farooq (Ex.PD) as a person who accompanied him, which on the one hand raises eyebrows regarding presence/availability of complainant or any other cited eye-witness at the time of occurrence whereas on the other hand also raises question that in such state of affairs i.e. particularly when rescue personnel has taken Nouman Farooq in injured condition in the hospital, then why Farooq Ahmad (complainant/PW-2) or any other cited eye-witness did not immediately report the matter to the police then and there at the place of occurrence or immediately going to the police station from the place of occurrence after shifting of Nouman Farooq by rescue personnel to Mayo Hospital, Lahore when there was no impediment in their way to do so. Furthermore, if complainant and other cited eye-witnesses went with Nouman Farooq to the hospital, even then after shifting of Nouman Farooq in injured condition to Mayo Hospital, Lahore, there was no hurdle for the complainant (PW-2), his son Muhammad Salman (PW-3) or other cited eye-witness namely Ali Hassan to go to the police station for getting registered the case but none of them did so; hence, in peculiar facts and circumstances of the case, there is considerable delay regarding registration of this case without any valid reason acceptable to the common prudent mind.
It is also important to mention here that as per application for registration of case (Ex.PB), Nouman Farooq succumbed to the injuries in the hospital and said application for registration of case (Ex.PB) was given/moved by the complainant (PW-2) to Saeed Akhtar, A.S.I. (PW-11) in Mayo Hospital, Lahore at 11:40 p.m. on 25.04.2020; meaning thereby that dead body of the deceased was already available in said hospital, then of course there was no hindrance to get conducted postmortem examination of the deceased immediately but documents for postmortem examination of the deceased were hand over to the doctor on the next day i.e. 26.04.2020 at 12:10 p.m. and autopsy was conducted over dead body of the deceased by Dr. Mohsin Munawar (PW-1) on the next day on 26.04.2020 at 12:30 p.m. i.e. after more than 12½ hours of the death of the deceased and any explanation is not available on the record to show that why postmortem examination over dead body of the deceased was conducted with so much delay; this state of affairs leads to the conclusion that none of the cited eye-witness including the complainant was present at the time and place of occurrence; in this regard, guidance has been sought from the case of “Sufyan Nawaz and another versus The State and others” (2020 SCMR 192) and relevant portion from Paragraph No. 4 (Page 194) of the same is being reproduced as under:
“The unexplained delay of about ten hours in autopsy of Kabeer Ahmad (deceased) alone creates dent in the prosecution story so far as presence of eye-witnesses at the place of occurrence is concerned.”
Resume of the above discussion is that case was not registered at the stated/claimed time rather with much delay, time was consumed in consultation and deliberation for engaging/procuring witnesses, tailoring story for the prosecution, then getting the case registered in its present form and completing police papers for postmortem examination. Therefore, neither any sanctity nor evidentiary value can be attached to said first information report and same cannot provide any corroboration to the case of prosecution. Furthermore, F.I.R. which is always considered as “cornerstone” has lost its value in the case and superstructure i.e. case of prosecution erected on the basis of this F.I.R. is bound to fall like house of cards; in this regard, guidance has been sought from the case of “Ghulam Abbas and another versus The State and another” (2021 SCMR 23), “Pervaiz Khan and another versus The State” (2022 S C M R 393) and “Abdul Ghafoor versus The State” (2022 S C M R 1527).
As per statement of Farooq Ahmad (complainant/PW-2), he (complainant) alongwith his son namely Muhammad Salman went to market on a motorcycle; Nouman Farooq (now deceased of the case/another son of the complainant) alongwith his friend namely Ali Hassan met them outside their house on motorcycle, who told them that they have received a phone call from Sheikh Ibrar who asked them to come to their house to collect UPS which he and his brother Sheikh Awais had forcibly taken due to dispute of money and had quarreled with them; on this, complainant and his son Muhammad Salman also accompanied them and went to the house of Sheikh Ibrar and Sheikh Awais (accused present in Court) situated near Khuda Bukhsh Chowk, Sui Gas Road, Shahdara, Lahore where this occurrence took place; for ready reference, relevant portion of statement of the complainant/PW-2 is reproduced below:
“Stated that on 25.04.2020 at about 03:15 p.m 1 alongwith my son Sulman Farooq PW went to market on my motorcycle bearing registration No. LEQ-2875 United Model 19-A, to purchase grocery items. My son Nouman Farooq aged about 27/28 years alongwith his friend Ali Hasan son of Ashiq Ali caste Minhas Rajpoot resident of Pakhiala Ferozwala district Sheikhupura, met us outside our house on motorcycle who told us that they have received a telephonic call from Sheikh Ibrar who asked them to come their house to collect UPS which he and his brother Sheikh Awais had forcibly taken with themselves due to dispute qua amount and had quarreled with them. On this, I and my son Salman Farooq also accompanied them and went to the house of Sheikh Ibrar and Sheikh Awais accused, present in the Court, situated near Khuda Bukhsh Chowk Sui Gas Road, Shahdara, Lahore where accused Sheikh Awais, his brother Sheikh Ibrar and one unknown to whom I can identify if he comes across to me, were present. across to me, were present. My son Nouman asked them to return the UPS, they became furious and started to abuse us. In the meanwhile, accused Sheikh Ibrar and unknown accused started to raise lalkara and asked Sheikh Awais to murder Nouman by making fire shot. On this, Sheikh Awais alias Chouni, present in the Court, started to make straight fire shots with his pistol 30-bore, upon my son Nouman Farooq with the intention to kill him. First fire shot made by accused Sheikh Awais landed at the right side below the neck whereas his two fire shots hit to the deceased at left side beside abdomen, his one fire shot hit to the deceased on right side at the abdomen, his one fire shot hit to the deceased on the left side at his foot, his two fire shots hit to the deceased at left side at his arms and his two fire shots landed at the left side at the leg of the deceased. Due to aforesaid firing, my son Nouman became seriously injured and fell down.”
(emphasis added)
Similarly, Muhammad Salman (another cited eye-witness produced by the prosecution as PW-3) also stated that he alongwith his father Farooq Ahmad also accompanied Nouman Farooq (deceased), his friend Ali Hassan and went to the house of accused persons where this occurrence took place; relevant portion of his statement in this regard is reproduced as under:--
“Stated that on 25.04.2020 at about 3:15 p.m. I alongwith my father Farooq Ahmad went to market to purchase grocery items on motorcycle bearing registration No. LEQ-2875 United. My brother Nouman Farooq aged about 27/28 years alongwith his friend Ali Hasan son of AsShiq Ali met us outside our house on motorcycle who told us that they had received a telephonic call from Sheikh Faraz alias Ibrar, present in the Court, who asked them to come their house to collect UPS which he and his brother Sheikh Awais, present in the Court, had forcibly taken with themselves due to dispute qua amount and had quarreled with them and we are going to their house. On this, I alongwith my father Farooq Ahmad also accompanied with them and went to the house of Sheikh Faraz alias Ibrar and Sheikh Awais accused persons present in the Court, situated rear Khuda Bukhsh Chowk, Sui Gas Road, Shahdara, Lahore. Where accused Sheikh Awais, his brother Sheikh Faraz alias Ibrar and one unknown were present, I can identify if unknown accused comes across to me. My brother Nouman asked them to return the UPS, they became furious and started to abuse us. In the meanwhile, accused Sheikh Fraz alias Ibrar and unknown accused started to raise lalkara and asked Sheikh Awais accused to murder Nouman by making fire shot. On this, Sheikh Awais alias Chowni, present in the Court, started to make straight fire shots with his pistol 30-bore, upon my brother Nouman Farooq with the intention to kill him. First fire shot made by the accused sheikh Awais hit at, the right side below the neck whereas his two fire shots hit to the deceased at left side beside abdomen. His one fire shot hit to the deceased on right side at the abdomen, his one fire shot hit to the deceased on the left side at his foot, his two fire shots hit to the deceased at the left side of his arm and his two fire shots hit at the left side of the leg’ of the deceased. Due to afore said firing, my brother Nouman became seriously injured and fell down.”
(emphasis added)
Perusal of aforementioned statements of the complainant (PW-2) as well as other cited eye-witness (PW-3) clearly reveals that occurrence took place in the house of accused persons however site plan of the place of occurrence (Ex.PV, available at Page No. 212 of the paper book) prepared by Muhammad Waris, S.I./Investigating Officer (PW-13) did not show that the occurrence took place in or even at front of house of the accused persons rather it clearly reflects that it took place in main Bazar in front of Paan Shop and even blood stained earth was secured from there, so much so even house of the accused persons is not available there at or near the place of occurrence as per site plan (Ex.PV). In order to further clarify this aspect, it is relevant to mention here that as per case of prosecution, Sheikh Muhammad Awais (present appellant) statedly got recovered pistol .30 bore (P-3) from his house and site plan (Ex.PW available at Page No. 213 of the paper book) of the place of recovery has been prepared by Muhammad Waris, S.I./Investigating Officer (PW-13), which clearly shows that house of the accused was having house of Ashraf on northern side, house of Latif on southern side, house of Aslam Shah on eastern side, street on western side and then across the street, house of Noor Muhammad Mistry. When site plan (Ex.PW) of the place of recovery is compared with site plan (Ex.PV) of the place of occurrence, it is crystal clear with naked eyes that house of accused or surrounding houses (mentioned in Ex.PW) are not available at or near the place of occurrence.
Needless to add that site plan of house of accused persons (Ex.PW) shows that their house is situated in Street No. 6 which street is even not available at or near the place of occurrence as per site plan (Ex.PV); furthermore, site plan (Ex.PF) of the place of occurrence prepared by Ch. Zia ud Din Chishti, Draftsman (PW-8) is also available on the record at Page No. 216 of the paper book and perusal whereof also reveals that the occurrence did not take place in the house of accused persons rather at front of Paan Shop in the Bazar; however, it goes without saying that in said site plan (Ex.PF), only a sign of arrow has been made to show direction of house of accused persons and Jama Masjid Madni “جامع مسجد مدنی” but even in said site plan, house of accused persons is not available, even Street No. 6, in which house of accused persons (as per Ex.PW) is situated, is not available at or near the place of occurrence. So, it is crystal clear that as per drawings as well as notes in both site plans of the place of occurrence i.e. Ex.PV as well as Ex.PF, occurrence has not taken place in or at front of house of accused persons rather in front of shop in the Bazar and at the cost of repetition it is again mentioned that blood stained earth was not secured from the house of accused persons rather from front of Paan Shop in the Bazar; in this regard, statement of Muhammad Salman (PW-3) is very important and relevant portion of the same in this regard is hereby reproduced as under:--
“The place of occurrence is Khuda Bukhsh Chowk, Shahdara, Lahore. The house of accused and place of occurrence i.e. Khuda Bukhsh Chowk are situated at two different places.”
Therefore, place of occurrence as claimed by aforementioned cited eye-witnesses including the complainant i.e. house of accused persons, has not been established by the prosecution in the case.
Ocular account in this case comprises of Farooq Ahmad (complainant/PW-2) and Muhammad Salman (PW-3) whereas Ali Hassan (another cited eye-witness) was given-up and not produced by the prosecution being un-necessary. It was claim of Farooq Ahmad (complainant/PW-2) and Muhammad Salman (PW-3) that they were going on motorcycle bearing registration No. LEQ/2875 when they met Nouman Farooq (now deceased of the case/another son of the complainant) alongwith his friend namely Ali Hassan (given-up PW), who were also on motorcycle and they told the complainant (PW-2) and Muhammad Salman (PW-3) that they have received a phone call from Sheikh Ibrar to come to their house to collect UPS which he and his brother Sheikh Awais had forcibly taken due to dispute of money and on this, complainant alongwith Muhammad Salman (PW-3) accompanied Nouman Farooq, Ali Hassan and went to the house of accused persons where this occurrence took place. So, admittedly, occurrence has not taken place at or adjacent to the house/business place of cited eye-witnesses including the complainant; in this regard, relevant portion of statement of Muhammad Salman (PW-3) is reproduced as under:--
“If we use short cut way for reaching from our house to the house of accused then the distance between our house and house of accused is about 1.5/2 KM and if we use the main road then the distance between our house and house of accused is 6/7 KM.”
So, said cited eye-witnesses including the complainant are “chance witnesses” and thus required to establish their presence/availability at the stated time and place of occurrence through independent and strong corroboratory piece of evidence/material. It was claim of the complainant (PW-2) and Muhammad Salman (PW-3) that they went on motorcycle bearing registration No. LEQ/2875 whereas Nouman Farooq alongwith his friend Ali Hassan was on another motorcycle but surprisingly, registration number, make, model, colour or any other detail of the motorcycle, on which Nouman Farooq and Ali Hassan went to the place of occurrence, is neither mentioned in the application for registration of case (Ex.PB) nor in the statements of both the cited eye-witnesses recorded before the Court during trial of the case, said motorcycle has even not been mentioned in aforementioned site plans of the place of occurrence prepared by the Investigating Officer as well as Draftsman; even otherwise, neither it (aforementioned motorcycle) was found at the place of occurrence by the police nor could found during entire investigation of the case and so much so it was not produced during trial of the case. It is also relevant to mention here that only motorcycle bearing registration No. LEQ/2875 (mentioned above) has been shown as available near the place of occurrence as per site plans of the place of occurrence (i.e. Ex.PV and Ex.PF) and though said motorcycle was taken into possession by the investigating agency from the place of occurrence during investigation of the case through recovery memo (Ex.PL, copy of the same is available at Page No. 176 of the paper book) yet it has been clearly mentioned in said recovery memo that motorcycle (mentioned above) available at the place of occurrence was of Nouman Farooq (deceased of the case); for ready reference, relevant portion of said recovery memo (Ex.PL) is also scanned below:--
Furthermore, it was categorically stated by Farooq Ahmad (complainant/ PW-2) that no fire shot hit motorcycle LEQ/2875 and relevant portion of his statement in this regard is reproduced below:--
“It is correct that no fire shot was hit at the motorcycle LEQ-2875 and any shop near the place of occurrence.”
Farooq Ahmad (complainant/PW-2) and Muhammad Salman (PW-3) claimed that clothes of both the cited eye-witnesses including the complainant were stained with blood of deceased, therefore, production of said blood stained clothes during investigation or trial of the case could have provided corroboration to their presence at the stated time and place of occurrence but any such blood stained clothes of said cited eye-witnesses including the complainant have not been produced during investigation as well as trial of the case; in this regard, relevant portion of statement of the complainant (PW-2) is hereby reproduced as under:
“Our clothes were also stained with blood of deceased Noman Farooq. It is correct that I and PW Salman Farooq have not handed over the said clothes to the Investigating Officer.”
Similarly, relevant portion of statement of Muhammad Salman (PW-3) is also reproduced as under:--
“I and my father/complainant lifted Nouman deceased then injured by using our hands. I and my father’s clothes became blood stained after lifting Nouman deceased. It is correct that we had not handed over our blood stained clothes to the Investigating Officer.”
Though it was stated by both the cited eye-witnesses including the complainant that Nouman Farooq told them that he received phone call from accused persons to come to their house for taking UPS but any forensically analyzed/tested record of voice transcript regarding said call was not produced during trial of the case to prove said version and mere production of Call Data Record (CDR), which is without attestation by concerned cellular company, cannot prove contents of the phone call. Mere CDR without voice transcript, is of no avail to the prosecution; in this regard, case of “Mst. Saima Noreen vs The State and another” (2022 LHC 8798) can be advantageously referred and relevant portion from the same is hereby reproduced below:
“10. Although any accused or witness can claim or admit possession and use of any SIM “Subscriber Identity Module’ by him or anybody else at the time of occurrence or any other relevant time yet mere such claim or admission is not sufficient for relying on CDR “Call Data Record” of said SIM because CDR only shows use of SIM in territorial/geographical jurisdiction of “Cell Phone Tower” installed by telecom operator and does not disclose that who is actually/exactly carrying and using said SIM; however, “Voice Record Transcript” or “End to End Audio Recording” can reflect the detail/identification of the user. Therefore, without “Voice Recording Transcript”, mere “Call Data Record” (CDR) alone of the SIM is inconclusive piece of evidence regarding identity of its user/carrier;”
Guidance has also been sought from the case of “Khair
Muhammad and another versus The State” (2025 S C M R 1599) and relevant portion from its paragraph No. 16 is hereby reproduced as under:--
“16. Importantly, the instant CDR is in the form of a standard computerized document which, according to PW-4’s own admission can be printed and prepared with the help of any computer. Thus, it is also of foremost importance that the Call Data Record (CDR) must bear the endorsement/authentication of the cellular / telecom company which has issued it. A bare document such as the CDR without any signature of the concerned officer of the cellular / telecom company issuing the CDR cannot be considered for the purposes of trial and relied upon until and unless it bears the company’s seal or a letter of its authentication.”
Hence, this version of the prosecution also could not be proved which was the alleged sole cause of going of complainant party to the house of accused persons.
So, any independent piece of evidence to provide strong corroboration to the claim of aforementioned eye-witnesses including the complainant regarding their presence at the stated time and place of occurrence, could not be brought on the record by the prosecution and in such circumstances, both the cited eye-witnesses including the complainant were admittedly the chance witnesses, hence, their evidence is “suspect” evidence and cannot be accepted without pinch of salt; in this regard, guidance has been sought from the case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 S C M R 1142) and relevant portion from paragraph No. 14 of said case law is hereby reproduced:--
“14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”
Further guidance on the subject has been sought from the cases of “Muhammad Ashraf alias Acchu versus The State” (2019 SCMR 652), “Mst. MIR and another versus The State” (2020 SCMR 1850) and “Sarfraz and another versus The State” (2023 SCMR 670).
It is further relevant to mention here that though in the occurrence wherein injuries have been caused by using firearm weapons, photographic view cannot be expected from the cited eye-witnesses yet when a cited eye-witness himself states locale of injury regarding receiving of firearm shots and if that has not been confirmed by medical evidence, then it raises eyebrows regarding evidentiary value of testimony of such witness up to some extent and it goes without saying that in this case though it was claimed by the cited eye-witnesses including the complainant that Sheikh Muhammad Awais (present appellant) fired shot which landed at right side below neck of Nouman Farooq and one fire shot hit at right side of abdomen of Nouman Farooq yet Dr. Mohsin Munawar (PW-1, who conducted postmortem examination over dead body of the deceased) clearly stated that no injury was mentioned at the right side below neck on Ex.PA/2 (which is pictorial diagram annexed with postmortem examination report) and there was also no injury mentioned on right side of abdomen as per said Ex.PA/2; in this regard, relevant portion of statement of Dr. Mohsin Munawar (PW-1) is hereby reproduced as under:
“It is correct that no injury is mentioned at the right side below the neck on Ex.PA/2. As per Ex.PA/2, no injury is mentioned at the right side of abdomen.”
This fact reflects contradiction between ocular account and medical evidence to some extent and particularly regarding the injury claimed at vital part of body i.e. on right side below neck of the deceased. So, when aforementioned factors are taken into consideration in totality, then ocular account produced by aforementioned cited eye-witnesses i.e. Farooq Ahmad (complainant/PW-2) and Muhammad Salman (PW-3) is neither confidence inspiring nor convincing, hence, not reliable and thus discarded.
So far as claim of the prosecution qua recovery of mobile phone of the deceased from the place of occurrence through recovery memo (Ex.PL) is concerned, suffice it to say that firstly, it was not mentioned in the application for registration of case (Ex.PB) that mobile phone of the deceased also fell at the place of occurrence; secondly, if it was available at the place of occurrence, then why same was not picked up by the complainant particularly when Nouman Farooq was uplifted from the place of occurrence for shifting him to the hospital; thirdly, occurrence statedly took place on 25.04.2020 at 03:15 p.m. at public place i.e. in the open Bazar which was passage of public at large, then how it could be expected that mobile phone remained there till 26.04.2020 when it was statedly taken into possession from the place of occurrence; and fourthly, any proof regarding ownership of said mobile phone in the name of deceased has also not been produced by the prosecution during trial of the case; hence, recovery of said mobile phone is of no help to the case of prosecution.
As far as medical evidence is concerned, though it has not stricto sensu supported seats of injuries mentioned in the ocular account (as mentioned above) yet it is trite law that medical evidence is mere supportive/ confirmatory type of evidence; it can tell about locale, nature, magnitude of injury, duration of the injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same neither can provide any corroboration nor is of any help to the prosecution in peculiar facts and circumstances of the case and in this regard guidance has been sought from the case of “Muhammad Ramzan versus The State” (2025 SCMR 762), relevant portion from the case law is as under:--
“It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant.”
So far as recovery of 16 crime-empties from the place of occurrence is concerned, suffice it to say that it is own case of the prosecution as mentioned in the application for registration of case (Ex.PB) as well as in the statements of cited eye-witnesses recorded during trial of the case that after the occurrence, accused persons fled away from the spot and they (aforementioned cited eye-witnesses including the complainant) contacted the police, Rescue 1122 and Nouman Farooq was got shifted to the hospital; so, when occurrence in this case as per own claim of the prosecution took place on 25.04.2020 at 03:15 p.m. and immediately thereafter contact of the complainant party was established with the police (as mentioned above), then why police did not collect/secure empties from the place of occurrence if same were available there; furthermore, occurrence took place at public place i.e. in the Bazar which was passage of public at large, then how it could be expected that crime empties remained there till 26.04.2020 when the same were statedly collected form there by the police because common prudence does not accept such claim; in this regard, guidance has been sought from the case of “Fateh Khan versus The State and others” (2025 SCMR 1408) wherein crime empties secured by the police on second visit at the place of occurrence were though found as having been fired from the recovered Kalashnikov from the accused as per report of PFSA yet same were not relied and relevant portion from paragraph No. 25 of said case law is hereby reproduced as under:--
“25. The crime empties shown recovered from the place of occurrence on the day of occurrence were not recovered by the police soon after reaching the place of occurrence. According to the prosecution witnesses, the crime empties were recovered by the police on their second visit of the place of occurrence and in this regard no explanation has been offered by the prosecution witnesses.”
Therefore, recovery of empties in this case is not free from doubt.
As far as stated recovery of pistol .30 bore (P-3) on the pointing out of the appellant is concerned, suffice it to say that as per own case of the prosecution, it was statedly recovered from the wooden almirah of house of the appellant, which was lying there openly and not covered with any article; in this regard, relevant portion of statement of Muhammad Yaqoob, 9114/C (recovery witness/PW-12) is hereby reproduced as under:
“Alleged weapon of offence i.e. pistol 30-bore was recovered from Wooden Almirah and there was no other article in said Almirah. Alleged weapon of offence i.e. pistol 30-bore was lying openly in cubit of Almirah and was not covered with any article.”
Even said wooden almirah from where pistol .30 bore (P-3) was recovered, was not locked rather it was open; in this regard, relevant portions of statement of Muhammad Waris, Inspector (Investigating Officer/PW-13) are hereby reproduced below: -
“It is correct that the said wood Almirah where from I recovered the pistol 30-bore was open and it was not locked.”
“It is correct that point “A” in the rough site plan of place of recovery is a point where alleged crime weapon pistol 30-bore was lying openly as same was not wrapped in any manner in article.”
Any private witness was not joined during recovery proceedings of pistol and in this regard relevant portion from paragraph No. 30 of “Fateh Khan’s case” (mentioned supra) is also hereby reproduced as under:--
“30. A Kalashnikov has been shown recovered on the pointation of the convict Shaukat Ali on 9th February 2009 and according to report of the Forensic Science Laboratory, Lahore six crime empties were fired from the same. To lend independent corroboration to the recovery of Kalashnikov on the alleged pointation of the convict Shaukat Ali, no private witness was associated by the Investigating Officer to attest the said recovery.”
(emphasis added)
Even otherwise, recovery is mere corroboratory piece of evidence and when ocular account has been discarded/disbelieved, then such sort of corroboratory piece of evidence loses its efficacy; in this regard, guidance has been sought from the case of “Naveed Asghar and 2 others versus The State” (PLD 2021 Supreme Court 600) and relevant portion from paragraph No. 29 of said case law is hereby reproduced as under:--
“Even otherwise recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case.”
Guidance has also been sought from the case of “Muhammad Ijaz alias Billa and another versus The State and others” (2024 SCMR 1507) and relevant portion from paragraph No. 11 of said case law is hereby reproduced below:
“So far as the recoveries are concerned, we have noted that the prosecution has shown recoveries of electric wire and pistol, the alleged weapon of offence, but it does not support the case of the prosecution. For the reason that these recoveries are corroborative pieces of evidence and are relevant only when the primary evidence, i.e., the ocular account, inspires confidence. However, the ocular account in this case is full of contradictions and does not inspire confidence.”
Therefore, said recovery of pistol and report of PFSA (Ex.PX) qua matching of empties with pistol are of no help to the case of prosecution and cannot be made basis for conviction.
So far as motive of the occurrence is concerned, suffice it to say that it was claimed by the prosecution in the application (Ex.PB) for registration of case as well as in the statements of complainant/PW-2 and Muhammad Salman (PW-3) before trial Court that Nouman Farooq and Ali Hassan told the complainant and Muhammad Salman that they have received a phone call from Sheikh Ibrar who asked them to come to their house to collect UPS which he and his brother Sheikh Awais had forcibly taken due to dispute of money and had quarreled with them, they are going to their house and when after going there, Nouman Farooq asked them to return UPS, they became furious and started abuse, Sheikh Ibrar and unknown accused raised lalkara and asked Sheikh Awais to murder Nouman Farooq, who made straight fire arm shots upon Nouman Farooq resulting into present occurrence; however, it is relevant to mention here that neither any detail about aforementioned money dispute constituting motive part of the occurrence, came on the record nor it was brought by the prosecution on the record that when UPS was taken by the accused persons; in this regard, relevant portions of statement of the complainant (PW-2) are hereby reproduced as under:--
“I cannot tell the cause due to which for which said money dispute had arisen. I cannot tell the exact amount of said dispute. I cannot tell the date when said dispute was arisen. I cannot tell the amount which was due towards my son Nauman deceased. I cannot produce any document, stamp proper or any witness regarding said money dispute.”
“I cannot tell the exact date and time when they took away UPS.”
“It is correct that I had not submitted any application regarding taking away the UPS of accused persons to any Police Station as well as before any competent forum. It is correct that I have no business of sale and purchase of UPS.”
Likewise, relevant portions of statement of Muhammad Salman (PW-3) in this regard are also reproduced below:
“I cannot tell the exact amount, cause and time where from said money dispute arose between accused party and deceased Nouman Farooq. I cannot tell the exact amount which was due towards Nouman Farooq deceased of accused party. I cannot produce any witness, document or stamp paper regarding the said money dispute.”
“It is correct that we had not produced any witness regarding said quarrel before the Investigating Officer. I cannot tell the description of UPS taken away by the accused party. It is correct that neither we had any business of sale or purchase of UPS nor had any repairing shop.”
Needless to add that said UPS was not recovered during investigation of the case and even the Investigating Officer did not investigate about detail of said dispute of UPS; in this regard, relevant portion of statement of Muhammad Waris, Inspector (Investigating Officer/PW-13) is hereby reproduced as under:--
“Complainant provided me details of UPS taking and dispute of UPS orally but I did not investigate on this fact.”
So, in this case, motive could not be proved through any independent and cogent evidence/material; furthermore, motive is a double-edged weapon, it cuts both the ways, it can also be a reason for false implication; even otherwise, when substantive evidence has been discarded, then motive loses its significance and becomes immaterial for conviction.
8. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellant; therefore, there is no need to discuss defence version.
9. In view of what has been discussed above, Criminal Appeal No. 69766/2022 filed by Sheikh Muhammad Awais (appellant) is allowed; conviction recorded and sentence awarded to the appellant through impugned judgment dated: 31.10.2022 are hereby set-aside. Appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case.
10. Resultantly, death sentence awarded to Sheikh Muhammad Awais (appellant) is NOT CONFIRMED and Murder Reference (M. R. No. 304 of 2022) is answered in NEGATIVE.
11. So far as appeal against order of acquittal of Sheikh Faraz alias Ibrar (Respondent No. 1) passed by trial Court through impugned judgment dated: 31.10.2022 is concerned, suffice it to say that in view of above mentioned discussion i.e. when this Court has come to the conclusion that ocular account is not confidence inspiring/reliable in the case and thus has been discarded, alleged motive and alleged place of occurrence have not been established by the prosecution and prosecution has been failed to prove its case, then order of acquittal of Sheikh Faraz alias Ibrar (Respondent No. 1) is neither perverse, nor capricious or arbitrary. Furthermore, after acquittal, accused attains double presumption of innocence and same can only be disturbed/interfered with if it is capricious/fanciful/ perverse/speculative/artificial or arbitrary, however, without these
factors, order of acquittal cannot be interfered with and in this regard, reliance can be placed upon the cases of “Ghulam Sikandar and another versus Mamaraz Khan and others” (PLD 1985 Supreme Court 11), “Mst. Zahida Saleem versus Muhammad Naseem and others” (PLD 2006 Supreme Court 427) and “Javaid Akbar versus Muhammad Amjad and Jameel @ JEELA and another” (2016 SCMR 1241); further guidance in this regard is also sought from the case of “Haji Paio Khan versus Sher Biaz and others” (2009 SCMR 803) and “Muhammad Shafi alias Khddoo versus The State and others” (2019 SCMR 1045); from, case of “Haji Paio Khan versus Sher Biaz and others” (mentioned supra), relevant portion is reproduced as under:
“It is by now well settled that acquittal carries with it double presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view.”
Thus, order of acquittal of Sheikh Faraz alias Ibrar needs no interference, Crl. Appeal No. 78209/2022 is without any force/merit and hence dismissed.
(A.A.K.) Appeal allowed
0 Comments