SC upholds acquittal in murder case due to weak evidence

2014 Y L R 2538
[Supreme Court (AJ&K)]
Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ
MUHAMMAD SALEEM---Appellant
Versus
ABID HUSSAIN and 3 others---Respondents
Criminal Appeal No.8 of 2009, decided on 28th January, 2013.
(On appeal from the judgment of the Shariat Court dated 26-12-2008
in Criminal Appeal No.3 of 2006).
(a) Penal Code (XLV of 1860)---
----Ss.302 & 109---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-eamd, abetment---Appeal against acquittal---Reappraisal of evidence---F.I.R. of
the incident was lodged after considerable delay of 9 days---Extra judicial
confession allegedly made by accused being result of coercion, could not be
said to have been made voluntarily---Even otherwise, extra judicial confession
was always treated as weak type of evidence---Recovery of clothes of
deceased, was doubtful and such a false recovery, had no evidentiary
value---Doctor who prepared post-mortem report, had not appeared as a
witness and his signatures on said report had been testified by production of
another witness---Without cross-examining the scribe/doctor of the report, it
would not remain of much credit---Accused, and deceased were closely
related to each other, and in the light of peculiar facts of the prosecution
story, finding them in each other's company, was not unusual---Merely on the
basis of last seen, without any other legal evidence, no one could be
convicted, in circumstances---Whole prosecution story and evidence was full
of suspicion and doubts, and suspicion/doubt how-so-much strong, could not
be substantiated for proof---Trial Court had passed acquittal order after due
appreciation of the material brought on record---Shariat Court had also
maintained the acquittal order after making the required deliberation---Both
judgments recorded by courts below were well reasoned and passed after
appreciation of evidence---Appellant/ complainant had failed to point out any
material illegality, irregularity or violation of any statutory provision of law--Appeal against acquittal was dismissed, in circumstances.
Muhammad Niaz Khan v. The State, 1999 SCR 488; Gul Munir and
another v. The State 1990 PCr.LJ 1878; Muhammad Arif v. The State, 2008
YLR 2910; Khurshid v. The State PLD 1996 SC 305; Muhammad Aslam v. Sabir
Hussain and others, 2009 SCMR 985; Rehmat Ali v. Samundar Khan and
another 2009 SCR 252 and Muhammad Mubeen v. The State, 2002 PCr.LJ 729
ref.
Rehmat Ali v. Samundar Khan and another 2009 SCR 252; Muhammad
Aslam v. Sabir Hussain 2009 SCMR 985; Azhar Hussain v. The State 2009 YLR
671; Iftikhar alias Kali and 2 others v. The State 2002 PCr.LJ 1245; Muhammad
Yousaf v. Muhammad Idrees 2004 MLD 910; Altaf Hussain v. Fakhar Hussain
and others 2008 SCMR 1103 and Muhammad Musthaq v. State 2001 YLR
1164 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 164---Extra judicial confession---Legal requirements/ingredients of--Extra judicial confession, had always been treated as weak type of evidence
by the courts---Some legal requirements of extra judicial confession, were;
firstly, that extra judicial confession was in fact made; secondly, it was
voluntarily made; thirdly, it was truly made; and fourthly, to prove the extra
judicial confession, it had to be proved by the prosecution that there was a
motivating force behind it because an accused could not be believed to open
his mouth with regard to the performance of his criminal acts, unless and
until there was a reason behind it---Accused could not be convicted solely on
the basis of the extra judicial confession, unless it was supported by the
corroborative piece of some independent reliable evidence.
Muhammad Aslam v. Sabir Hussain 2009 SCMR 985; Azhar Hussain v.

The State 2009 YLR 671; Iftikhar alias Kali and 2 others v. The State 2002
PCr.LJ 1245 and Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910 rel.
(c) Criminal trial---
----Medical evidence---Medical evidence could not connect accused with the

commission of the offence, but could only confirm the ocular evidence with
regard to the seat of injury, nature of injury and kind of weapon used in the
occurrence.
Altaf Hussain v. Fakhar Hussain and others 2008 SCMR 1103 rel.
(d) Criminal Procedure Code (V of 1898)---
----S. 417(2-A)---Conversion of acquittal order into conviction---Scope---To get

an acquittal order converted into conviction, was a difficult job for the
prosecution; it was like a liberated bird, who had flown away towards the
limitless space and free air, but prosecution wanted to get him back again
into the cage---Acquittal order could only be interfered with when it was
proved that it had been delivered with foolish appreciation of evidence, with
perverse actions; and where the reasons adduced for the release of an
accused were not acceptable to the mind of prudent man.
Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910; State v. Faisal

Munir PLJ 2009 FSC 284 and Jehangir v. Aminullah and others 2010 SCMR
491 rel.
Abdul Aziz Ratalvi for Appellant.
Ch. M. Ilyas for accused Respondents.
Ghazanfar Ali A.G. for the State.
Date of hearing: 20th December, 2012.
JUDGMENT
CH. MUHAMMAD IBRAHIM ZIA, J.---This appeal has been filed to assail
the judgment of the learned Shariat Court dated 26-12-2008 whereby
criminal appeal filed by the complainant-appellant against acquittal order
passed by District Criminal Court Kotli, has been dismissed.
2.
Brief facts forming background of the appeal are that the
complainant-appellant who is resident of village Maholi Gulpur, lodged and
F.I.R. at Police Station Nar, on 13-12-1997 stating therein that he is an army
personnel, presently posted at Manser Camp. According to F.I.R., his wife
along with two children, namely, Waseem Ahmed Saleem, aged 12 years and
Akmal Saleem, aged 2-1/2 years, are residing in Maholi-Nala Gulpur, while the
other children are residing at Mirpur along with their grandmother. On 1-121997, his wife left the son Waseem Ahmed Saleem at home and went to
Mirpur to see-off the daughter Rif'at, who had to go to United Kingdom on 512-1997. The complainant-appellant also reached Mirpur to see-off his
daughter. On 4-12-1997, at about 4-30 p.m., the complainant received a
telephone call of Master Muhammad Sadiq from Maholi-Nala Gulpur that his
son Waseem Ahmed Saleem has died by falling from the tree. Upon this, the
complainant along with family reached at home and performed the funeral
ceremony of his son and buried him. Thereafter, he inquired from his nephew
Abid Hussain about the occurrence but he evaded to disclose anything about
the occurrence. On seeing the muddy Shalwar of his son, he insisted him to
disclose about the occurrence, then Abid Hussain deposed that about two
months prior to the occurrence, he along with Muhammad Arif, Safdar,
Sikander Hayat sons of Muhammad Sharif Caste Rajput, residents of village
Maholi Tharochee, planned to kill Waseem Ahmed Saleem. On 4-12-1997,
when the deceased was ploughing the field, at about 3 p.m., Abid Hussain
pulled down the deceased (Waseem) and put his hands over the mouth to
stop his breathing and within few minutes he died. The motive behind the
occurrence is stated to be a dispute over a piece of land. The complainantappellant alleged that this is a pre-planned murder, therefore, the accusedrespondents be brought to justice.
3.
After registration of F.I.R., under sections 302/109, A.P.C., the police
started investigation. After necessary investigation, the accused-respondents
were sent to face the trial before the District Criminal Court, Kotli on 29-41998. The trial Court, after completion of required proceedings and hearing
the parties, acquitted the accused-respondents by giving them the benefit of
doubt, vide judgment dated 12-9-2005. The complainant-appellant feeling
aggrieved challenged the judgment of the District Criminal Court Kotli dated
12-9-2005 through an appeal in the Shariat Court on 7-2-2006. The learned
Judge Shariat Court, dismissed the appeal vide order dated 26-12-2008.
The complainant-appellant has assailed the judgment of the Shariat Court
through the instant appeal.
4.
Mr. Abdul Aziz Ratalvi Advocate, the learned counsel for the
complainant-appellant, after discussion of relevant facts, focused his
arguments on the point that one of the accused-respondents has made extrajudicial confession. The witnesses have proved this material fact but the
courts below have fell in error of law while ignoring such unimpeachable
piece of evidence. He further submitted that it has also been proved by the
prosecution beyond any shadow of doubt that the deceased was last seen in
the company of the accused. It is also strongly pressed in the arguments that
according to peculiar facts and circumstances of the case, the prosecution
has brought on record all the oral as well as documentary and circumstantial
evidence in support of its case. The prosecution has fully succeeded in

proving every chain of the prosecution story and the defence has failed to
make out any major dent in the prosecution story. The recovery of the clothes
of the deceased on the pointation of accused is also an un-rebutable, strong
piece of evidence, connecting the accused with the commission of alleged
offence. He further submitted that when the whole prosecution evidence is
analyzed and considered in juxtaposition with the prosecution story, it
becomes clear that the prosecution has proved the guilt of accused beyond
any shadow of doubt. Therefore, in the light of this evidence, acquittal of
accused by the trial Court and dismissal of appeal by the Shariat Court is unwarranted and not sustainable, which calls for interference by this Court for
the ends of justice, hence, this appeal be accepted and the accusedrespondents be convicted under law. In support of his contentions, he placed
reliance upon the cases titled Muhammad Niaz Khan v. The State, reported as
(1999 SCR 488), Gul Munir and another v. The State reported as (1990 PCr.LJ
1878), Muhammad Arif v. The State, reported as (2008 YLR 2910) and
Khurshid v. The State reported as (PLD 1996 SC 305).
5.
Raja Ghazanfar Ali, the learned Advocate-General, also supported the
version of the counsel for complainant-appellant and submitted that the
appeal may be accepted.
6.
While controverting the arguments of counsel for the appellant, Ch.
Muhammad Ilyas Advocate, the learned counsel for accused-respondents
strongly defended the impugned judgment and submitted that it is now a
settled principle of law that for setting aside the acquittal order, there must
be some very unexceptionable strong reasons. The appellant must have to
prove either the acquittal order is against the statutory provision, arbitrary or
capricious or there is any misreading or non-reading of evidence, whereas in
the instant case, the acquittal order passed by the Courts below is well
reasoned and based upon legal appreciation of the material brought on
record by the prosecution. He further submitted that the prosecution story is
unbelievable and on the face of it is doubtful. The F.I.R. has been lodged after
a considerable and reasonably unexplained delay. Even, the contents of F.I.R.
negates the material and major circumstances alleged by the prosecution

thus, the prosecution story is self-contradictory and self-destructive. He
further submitted that not a single witness deposed anything to connect the
accused with the alleged commission of offence. It is also argued that nothing
has been recovered on the pointation of accused. The prosecution has
miserably failed to bring on record any legal evidence, thus, the lower Courts
have rightly acquitted the accused and this appeal has no substance and the
same be dismissed. The learned counsel placed reliance upon the case titled
Muhammad Aslam v. Sabir Hussain and others, reported as (2009 SCMR 985),
Rehmat Ali v. Samundar Khan and another reported as (2009 SCR 252) and
Muhammad Mubeen v. The State, reported as (2002 PCr.LJ 729).
7.
We have paid our utmost attention to the respective arguments of
learned counsel for the parties and also gone through the record. There are
concurrent findings of facts against the prosecution and both the Courts
below have acquitted the accused of the charges. The first and most
important objection raised in the arguments of appellant is that the courts
below have over sighted the strong piece of evidence, i.e. extra-judicial
confession of the accused. Despite the fact that there are concurrent findings
of facts and the appellants could not succeed to point out any misreading or
non-reading of evidence but for the ends of justice and for our own
satisfaction, we have made appreciation of evidence. According to
prosecution's own version, the incident took place on 4-12-1997 and the
F.I.R. of the incident was lodged on 13-12-1997 after a considerable delay. In
this application filed at Police Station Nar, the complainant has written that:--
Thus, from the contents of this written application filed by the complainant, it
is crystal clear that upon seeing the mud-stained trouser of the deceased
son, the complainant forced accused Abid Hussain, upon which he deposed
before him the story on 13-12-1997. But amazingly, the prosecution came
forward with another story that the accused Abid Hussain was taken from
Kotli to Mirpur where on 12-12-1997, he made extra-judicial confession in
a Jirga. Even if the stated prosecution story and evidence of witnesses
regarding the extra judicial confession are accepted as correct, even then it
appears that the extra-judicial confession are result of coercion. The accused,
who is a young boy was taken into custody and under control by the
complainant party, shifted from Kotli to Mirpur, where he allegedly, made
extra-judicial confession, therefore, in the light of peculiar facts of this case, it
cannot be said that such confession is made voluntarily and is believable.
Even, from another angle, the story of extra-judicial confession has become
doubtful as it has been mentioned in the written application, lodged on 1312-1997, that the accused Abid Hussain made confession before the
complainant but on the other hand, the extra-judicial confession before Jirga
at Mirpur has been made basis by the prosecution, it must have been
mentioned in the application lodged on 13-12-1997. Thus, according to
prosecution's own version, neither such statement of accused can be said to
have been made voluntarily, without coercion, nor it can be treated as extrajudicial confession. Even otherwise, the counsel for the appellant very frankly
conceded that according to celebrated principle of law, extra-judicial
confession is always treated as weak type of evidence. This Court in a recent
judgment titled Rehmat Ali v. Samundar Khan and another reported as (2009
SCR 252), while dealing with the point of extra-judicial confession, has
observed that:--
"14. Since there were three witnesses relating to extra-judicial

confession, one Haji Mohabat Ali is proceeded abroad and he was not
produced by the prosecution but the two witnesses above-mentioned have
supported the version of the prosecution. If extra-judicial confession is made
voluntarily and the evidence of witness inspires confidence and it is
corroborated by other circumstances then it has to be believed and if in the
circumstances of the case extra-judicial confession is produced under undue
influence, in document and it is made before an influential person or made on
the condition of some promises then that kind of extra-judicial confession is
not reliable.
In a reported case titled Muhammad Qasim alias Bagga v. The State

(PLD 1984 SC (AJ&K) 21), it was held that:--
"In the circumstances of the case when the appellant had

immediately after the occurrence made the confessional statement before
Abdul Hamid, P.W. voluntarily, which we believe is correct and which owns
killing of the deceased, the negligence of the police would not detract the
value of the report of the serologist and chemical examiner, Abdul Hamid, it
is to be observed, is an independent witness and has no motive to implicate
the appellant in the case falsely. He being a disinterested person, there
appears no reason to doubt his veracity."
The facts of the reported case titled Shah Nawaz v. Sher Bahadur and
another (1980 SCMR 172), relied upon by the learned counsel for the
appellant are not relevant for the purpose of this case, therefore, it is not
applicable. In the instant case extra-judicial confession is only to the extent of
catching the deceased and putting him in his house by the accused and his
son is proved, there is no extra-judicial confession in respect of murder. In the
circumstances, extra-judicial confession is believed to the extent indicated
above."
8.
The extra-judicial confession has always been treated as weak type of
evidence by the Courts. This view has also been re-affirmed by the apex court
of Pakistan in the case titled Muhammad Aslam v. Sabir Hussain reported as
(2009 SCMR 985).
In the case titled Azhar Hussain v. The State reported as (2009 YLR
671), the Lahore High Court has observed that:--
".It is a settled proposition of law that extra-judicial confession is

weakest type of evidence, the same cannot be relied upon unless the same is
corroborated by the strongest piece of evidence particularly in a case wherein
no motive is alleged to the accused for the murder of deceased and there is
nothing on record, what was the reason of the murder"
The same view has been expressed in the case titled Iftikhar alias Kali
and 2 others v. The State reported as (2002 PCr.LJ 1245), wherein it is held
that:--
"Extra-judicial confession is a weak type of evidence, but if it was

corroborated by other independent sources, same could be relied upon."
To make the extra-judicial confession admissible in evidence, there

are some legal requirements which have been summarized in the case titled
Muhammad Yousaf v. Muhammad Idrees, reported as (2004 MLD 910), in the
following manner:--
"12. The third portion for construction of the building of the

prosecution story was the evidence of extra-judicial-confession. The learned
trial Court had exhaustively dealt with this evidence and had pointed out the
contradictions and had analyzed the statements of the witnesses. Statement

of Muhammad Yousaf P.W.1 had rightly been discarded on this point as he
was an interested witness and could not be believed as to the story, he
weaved to prove the extra-judicial confession. The learned trial Court had
rightly pointed out without citing the authoritative judgment delivered by the
Hon'ble Supreme Court of Pakistan reported in 1996 SCMR 188 (Sarafraz
Khan v. The State and 2 other) that to believe extra-judicial-confession, three
ingredients are essential i.e. firstly, that the extra-judicial confession was in
fact made, secondly, that it was voluntarily made and, thirdly, it was truly
made. A fourth requirement is added by us which can be that to prove the
extra judicial-confession it has to be proved by the prosecution that there was
a motivating force behind it, because an accused cannot be believed to open
until there is a reason behind it. No one can be presumed to state to each
and every person of his criminal actions, therefore, this important factor is
missing in this alleged extra judicial-confession."
Therefore, in the light of survey of case law, it is obviously clear that an

accused cannot be convicted solely on the basis of the extra-judicial
confession, unless it is supported by the corroborative piece of some
independent reliable evidence. Whereas in the instant case, according to
prosecution evidence, the extra-judicial confession is neither voluntarily
made nor is supported by any other independent and reliable evidence. Thus,
it is clear that the courts below have rightly analyzed and discarded this
stand of prosecution.
9.
The other material argument of counsel for the appellant is that the
accused is connected with the commission of offence on the basis of
circumstantial evidence and recovery of clothes of deceased on his
pointation. It has also been proved from the record that the recovery is
doubtful. The complainant, in his written application submitted on 13-121997, has mentioned that he has seen Shalwar of the deceased but
amazingly and surprisingly, the same Shalwar is allegedly recovered by the
police on the pointation of accused on 21-12-1997 vide recovery memo.
Exh."PG". The recovery memo. Exh."PG" makes the whole prosecution story
doubtful and is indicative of padding made during investigation. The
prosecution has placed on record, report Exh."PJ" in which the detail of the
clothes of the deceased has been mentioned. Thus, such a fake recovery has
no evidentiary value.
10.
The next point stressed by counsel for the appellant is that the
circumstantial evidence, i.e., postmortem report, fully supports the
prosecution version. The Courts below have taken into consideration the
postmortem report but the scribe, Doctor, has not appeared as a witness
rather his signatures have been testified by production of another witness.
Thus, without cross-examination the scriber of the report, it does not remain
much credible. Even otherwise, the medical evidence could not connect the
accused with the commission of the offence. It can only confirm the ocular
evidence with regard to the seat of injury, nature of injury, kind of weapon
used in the occurrence. Our this view finds support from a recent judgment of
the apex Court of Pakistan in the case titled Altaf Hussain v. Fakhar Hussain
and others reported as (2008 SCMR 1103), wherein it has been observed
that:--
"9. It is also settled law that medical evidence may confirm the ocular
evidence with regard to the seat of the injury, nature of the injury, kind of
weapon used in the occurrence but it would not connect the accused with the
commission of crime."
11.
The last point pressed by the counsel for the appellant is that the
deceased was last seen in the company of accused, Abid Hussain, is also of
not much importance as the accused and deceased are closely related to
each other and in the light of peculiar facts of the prosecution story, finding
them in each other's company, is not unusual, therefore, merely on the basis
of last seen without any other legal evidence, no one can be convicted. This
Court in the case titled Muhammad Mushtaq v. State reported as 2001 YLR
1164 has dealt with the proposition of last seen in detail and its scope has
been discussed as under:--
"13. The survey of the case law makes it abundantly clear that the
last seen evidence due to its inherent defects is fundamentally a weak type
of evidence. Even if the same is believed to be true a conviction on the sole
testimony of last seen evidence cannot be sustained unless there be some
strong corroborative piece of evidence in support of the prosecution. In the
instant case, as observed earlier, the last seen evidence deposed by Mst.
Begum Jan is neither confidence inspiring nor any explicit reliance can be
placed on her statement. The whole of the prosecution case rests upon the
testimony of Mst. Begum Jan who has allegedly last seen the accused in the
company of deceased but the critical examination of the evidence shows that
the said witness did not herself see the convict appellant in the company of
deceased, on the other hand she was told by the deceased that he was going
along with convict-appellant out of his house and the said statement of the
witness remains unchallenged by the public prosecution. Even if we take into
consideration and give some weight to the last seen evidence of Mst. Begum
Jan her statement due to its intrinsic defects requires strong corroboration by
other circumstantial evidence."
The prosecution story and the evidence when scrutinized and analyzed, there
remains no doubt that the whole story and evidence is full of suspicion and
doubts and it is settled principle of law that suspicion/doubt how-so-much
strong, cannot be substituted for proof. Our this view finds support from the
principle of law laid down in Mushtaq Ahmed's case, referred to hereinabove.
12.
It is by now settled principle that to get an acquittal order converted
into conviction, is a difficult job for the prosecution; it is like a liberated bird
who had flown away towards the limitless space and free air, but now
prosecution wants to get him back again into the cage. In the light of
principle of law enunciated by the superior courts of the country, an acquittal
order can only be interfered with when it is proved that it has been delivered
with foolish appreciation of evidence, with perverse actions and where the
reasons adduced for the release of an accused were not acceptable to the
mind of a prudent man. Our this view finds support from the case titled
Muhammad Yousaf v. Muhammad Idrees, reported as (2004 MLD 910).
The Federal Shariat Court, in the reported case titled State v. Faisal
Munir, (PLJ 2009 FSC 284), while dealing with the proposition of setting aside
the acquittal order has observed that:--
11. ..The accused, as a matter of right and not the complainant, is

entitled to benefit of doubt. A genuine doubt even on one crucial point can
secure acquittal of the accused. There is unanimity of judicial opinion that
perversity arbitrations or capriciousness in the judgment under question must
be established before reversal of acquittal could be claimed. The appellate
Courts are loath to interfere unless it is established that i/misreading of
evidence or ii/lack of consideration of material evidence or iii/reception of
evidence illegally or iv/violation of legal provisions or v/jurisdictional defects
vi/reliance placed on matters, extraneous to the record or vii/material
witnesses for the prosecution were not recorded or viii/the acquittal order on
the face of it is contradictory or ix/the order of acquittal was passed without
hearing the prosecution or x/the principles governing appreciation of
evidence have been violated or xi/the acquittal judgment was based upon
surmises, suppositions and/or conjectures or xii/acquittal is based upon
reasons which do not appeal to the reasonable mind or xiii/for that purpose
there are gross misstatements appearing in the judgment under review.
12. The acquittal order of the lower court is entitled to respect and it
cannot be interfered with solely on the reason that another opinion could be
possible on the given set of evidence and circumstances. However, instances
are not lacking where the appellate Courts have reversed the finding of
acquittal. A judgment can be faulty and defective."
The apex Court of Pakistan, in a recent judgment in the case reported

as Jehangir v. Aminullah and others (2010 SCMR 491), while dealing with this
legal proposition has observed as under:--
"6. It is well settled by now that there are certain limitations on the
power of Appellate Court to convert acquittal into a conviction. It is well
settled that Appellate Court would not interfere with acquittal merely because
on reappraisal of the evidence it comes to the conclusion different from that
of the court acquitting the accused, provided both the conclusions are
reasonably possible. If, however, the conclusion reached by that Court was
such that no reasonable person would conceivably reach the same and was
impossible then this Court would interfere in exceptional cases on
overwhelming proof resulting in convulsive and irresistible conclusion; and
that too with a view only to avoid grave miscarriage of justice and for no
other purpose. The important test visualized in these cases, in this behalf was
that the finding sought to be interfered with, after scrutiny under the
foregoing searching light should be found wholly as artificial, shocking and
ridiculous". The view taken by this Court in Ghulam Sikander v. Mamaraz
Khan PLD 1985 SC 11 is well known that "in an appeal against acquittal this
court would not, on principle, ordinarily interfere and instead would give due
aid and consideration to the findings of Court acquitting the accused. This
approach is slightly different from that in an appeal against conviction when
leave is granted only for the reappraisal of evidence which then is undertaken
so as to see that benefit of every reasonable doubt should be extended to
the accused. This difference of approach is mainly conditioned by the fact
that the acquittal carries with it the two well accepted presumptions; one
initial, that, till found guilty, the accused is innocent: and two that again after
the trial a Court below confirm the assumption of innocence. This will not
carry the second presumption and will also thus loose the first one if on
points having conclusive affect on the end result the court below; (a)
disregarded material evidence; (b) misread such evidence; (c) received such
evidence illegally."
As on all the points argued, the latest juristic approach has been
referred which leaves no room for a separate discussion on the case law
referred to by both the parties. Therefore, we are of the view that the trial
Court has passed the acquittal order after due appreciation of the material
brought on record. The Shariat Court has also maintained the acquittal order
after making the required deliberation. Both the judgments recorded by
Courts below are well reasoned and passed after appreciation of evidence.
The appellant has failed to point out any material illegality, irregularity or
violation of any statutory provision of law, therefore, finding no force, this
appeal stands dismissed.
HBT/43/SC(AJ&K)
dismissed.
2014 Y L R 92
Appeal
[Shairat Court (AJ&K)]
Before Syed Hussain Mazhar Kaleem and Muhammad Mushtaq Chaudhary, JJ
Raja ALI SHAN and another---Appellants
Versus
SHAKEEL and 4 others---Respondents
Criminal Appeal No.9 of 2013, decided on 14th May, 2013.
(a) Criminal Procedure Code (V of 1898)---
----S. 173---Report of Police Officer---Nature---Where the Police would submit a

report under S.173, Cr.P.C. to dismiss the case for want of proof, such opinion
of the Police Officer was not binding on the court; as the Police had no
authority whatsoever to give judgment about the merits of the case, which
definitely was the function of the court---Court should not agree with such
report blindly and pass the order of discharge of accused in a whimsical and
arbitrary manner; when a court concurred with or refused to agree with the
Police report submitted to it, the order though was administrative in nature,
but had to be passed in a judicial manner---Court had to consider the record
placed before it and give reasons in support of its verdict.
----Ss. 173, 265-K & 417(2-A)---Penal Code (XLV of 1860), Ss.302, 337, 342 &
34---Qatl-e-amd, causing Shajjah, wrongful confinement and common
intention---Appeal against acquittal---Trial Court, while agreeing with report
submitted by Police Officer (Investigation Officer) under S.173, Cr.P.C., did not
consider the facts that no evidence in support of said report submitted in
favour of accused person, was brought on the Trial Court's file---Even the
story of occurrence was not mentioned in the report made to it suggesting
dismissal of the case---Observation was not made by the Trial Court, on the
ground of any substantial evidence, and order of dismissal of case against
accused persons, was passed by the court in a whimsical and arbitrary
manner---Report under S.173, Cr.P.C. was submitted by the Police on two
grounds that no eye-witness was produced by the complainant party and that
death of the deceased occurred due to falling from the height, and that no
cognizable offence was committed---Both said reasons given by Investigating
Officer were incorrect and against facts of the case---Report in the case was
lodged without any delay, and offenders were nominated therein---Eight
injuries were found at the person of the deceased, and in view of nature of
wounds, it was hard to believe that the victim suffered the same because of
falling---Observation of Investigating Officer that no cognizable offence was

committed, was groundless which was the result of either incompetency of
Investigator; or of the dishonest investigation---Trial Court while passing the
impugned order, had failed to appreciate that the injured person was lying
unconscious at the spot from where he was taken to Police Station; and later
on was shifted to Institute of Medical Sciences---Necessary facts, such as
names of the offenders; and the circumstances which resulted into the death,
including the place of occurrence, were mentioned therein---No exaggeration
existed and it was recorded in accordance with law---No justification was
available to dismiss a case supported by dying declaration, for want of proof
by agreeing with the report made under S.173, Cr.P.C.---Appeal, in circumstances, was accepted while subsequent report under S.173, Cr.P.C.
suggesting dismissal of the case for want of proof, was rejected---Impugned
judgment was set aside and the Trial Court was directed to proceed with the
case in accordance with law.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 46--- Dying declaration Admissibility---Evidentiary value---Dying

declaration was most strong piece of evidence; in certain circumstances it did
not require any corroboration; and could be considered for recording
conviction---Statement made by a person who was dying at the time he made
it, was a dying declaration, and was admissible piece of evidence---Last
words of a dying person enjoyed the presumption of truth---No specific mode
for recording a dying declaration had been prescribed---Size of such
declaration whether small or lengthy was of no importance; as the only
requirement was that it must indicate the cause; and the circumstances
which resulted in the death of the declarant---Authenticity and credibility of a
dying declaration could only be judged after recording evidence in the case,
because the question of concoction or fabrication, if raised by the defence,
could only be resolved by considering the peculiar circumstances of the each
case appearing in the evidence.
Play King Richard II by Sir William Shakespeare and Akbar Ali v.

Shanaz and others 1981 PCr.LJ 710 rel.
Riaz Naveed Butt for Appellants.
Rafique Shaheen Additional Advocate General for the State.
Ch. Muhammad Ilyas for Respondents.
JUDGMENT
SYED HUSSAIN MAZHAR KALEEM, J.---Above titled appeal has been

directed against the judgment of District Court of Criminal Jurisdiction, Kotli
dated 30-11-2011, whereby the application under section 265-K, Cr.P.C. was
allowed and by agreeing with the Police report made under section 173,
Cr.P.C., the case against the respondents was dismissed.
2.
Brief facts forming background of the appeal are that a case under
sections 342, 337, 34, P.P.C. was registered at Police Station, Khuiratta on the
complaint of Raja Ali Shan. It was reported that the complainant's grandson
Shahbaz was driver of Shakeel. He often had to stay with him and some
time used to come home. On 16-10-2010, at 10-00 a.m. he came to know
that due to some dispute the respondents beat and threw him in the forest,
upon which he came at the spot, took the victim to Police Station Khuiratta
and reported the matter.
3.
Later on the victim was taken to Pakistan Institute of Medical
Sciences, Islamabad for treatment where the Police recorded his statement.
Thereafter he succumbed to the injuries and section 302, A.P.C., was added.
4.
During investigation, the accused respondents were arrested by the
Police. An incomplete challan was submitted against them before District
Court of Criminal Jurisdiction, Kotli. The Court took cognizance of the offences
and started proceedings against the respondents in light of the report made
under section 173, Cr.P.C. The charge against them was framed on 3-2-2011.
They pleaded not guilty and moved an application under section 265-K,Cr.P.C.
In the meantime the Police submitted a supplementary challan showing that
the complainant failed to produce eye-witnesses. The deceased died of falling
from the height and no cognizable offence was committed, therefore, the
case may be dismissed for want of proof. The trial Court after necessary
proceedings decided the matter in the aforesaid manner through the
impugned judgment, hence this appeal.
5.
Learned counsel for the appellant argued that finding of the trial Court
was against law. The respondents were nominated in promptly lodged F.I.R.
They were alleged for causing injuries to the victim. Allegation was supported
by dying declaration and it was corroborated by post mortem report. In the
given circumstances, the proper course was to record the statement of the
prosecution witnesses and decide the matter. The evidence brought on
record was sufficient to establish that the respondents committed the alleged
offences and there were bright chances of their conviction, therefore, by
accepting the appeal and setting aside the impugned judgment, the case
may be remanded to the trial Court to proceed with it in accordance with law.
6.
On the other side, it was argued that the respondents were roped in a
false case by the complainant. During investigation, they were found
innocent. It was proved beyond doubt that the victim sustained injuries
because of falling from the height. The dying declaration was fabricated in
order to strengthen the concocted story. The trial Court rightly appreciated
the evidence on record and arrived at a correct decision. The impugned
judgment being in accordance with law warrants no interference, therefore,
the appeal may be dismissed.
7.
We have heard the learned counsel for the parties and considered the
record with care.
8.
The complainant alleged that his grandson was beaten and thrown in
the forest by the respondents. When he reached at the spot, the victim was
alive. He along with other relatives took him to Police Station, Khuiratta and
reported the matter. Later on the injured person was shifted to Pakistan
Institute of Medical Sciences for treatment where the Police recorded his
statement and on 21-10-2010, he died of the injuries, upon which section

302, A.P.C. was added. During investigation, the respondents were arrested
on 22-10-2010 and 10-11-2010. The incomplete reports under section 173,
Cr.P.C. were submitted before trial Court on 5-11-2010 and 26-11-2010.
As the occurrence was not witnessed by anybody, the Police was facing
difficulty in collecting the evidence because of which the request to grant
further time for submission of the challan was made but it was declined and
trial Court started proceeding. Later on another report under section 173,
Cr.P.C. was submitted showing that the complainant party failed to produce
eye-witnesses, the deceased died because of falling from height, no
cognizable offence was committed therefore, the case may be dismissed for
want of proof.
9.
The trial Court while agreeing with the report under section 173,
Cr.P.C. submitted in favour of the respondents relied upon the Police diaries
and observed that:--
"the investigation so far conducted by the Police does not indicate

that the accused were involved in the offence. On the fateful night the
deceased and Mudassar respondent met two girls at the place of occurrence.
In the meantime, a third person came there, upon which they started running
and thereafter did not meet. One of the girls was interrogated, the
statements of others were recorded, and mobile phone record was also
provided which cannot be ignored."
10.
It may be mentioned here that where the Police submits a report
under section 173, Cr.P.C. to dismiss the case for want of proof, such opinion
of the Police Officer is not binding on the Courts as the Police has no authority
whatsoever to give judgment about the merits of the case which definitely is
the function of the Courts. The Courts should not agree with such report
blindly and pass the order of discharge of an accused in a whimsical and

arbitrary manner, when a Court concurs with or refuses to agree with the
Police report submitted to him, the order though is administrative in nature
but has to be passed in a judicious fashion meaning thereby the Court has to
consider the record placed before it and give reasons in support of its verdict.
In the present case while agreeing with the report, the trial Court did not
bother to consider the facts that no evidence in support of the report
submitted in favour of the respondents was brought on the trial Court's file.
Even the story narrated above was not mentioned in the report made to it
suggesting dismissal of the case, thus the aforesaid observation was not
made on the ground of any substantial evidence and the order was passed in
a whimsical and arbitrary manner.
11.
While deciding fate of dying declaration it was observed by the Court
below that, the occurrence took place on 16-10-2010 the victim was
unconscious, he was referred to Pakistan Institute of Medical Sciences, on 2010-2010, at 9-30 p.m, when he regained consciousness P.W Mohammad
Younus, Sub-Inspector Police recorded his statement wherein the victim
alleged that "he was beaten and injured by Mudassar and Shakeel, some
other was also with them." he again became unconscious but after a small
interval opened his eyes and further added that "the incident took place in
the house of Shakeel respondent." The above mentioned dying declaration
was attested by P.Ws Tanveer Ahmed, Khushi Mohammad and the doctor. P.W
Tanveer Ahmed denied that the statement was recorded in his presence but
later on filed an affidavit showing that it was done in his presence. It was
evident from he record that the victim continuously remained unconscious
and died in the hospital on 21-10-2010. The claim that during this period
he regained consciousness only to record the dying declaration comprising of
two lines was doubtful and it was not worth consideration.
12.
It may be stated here that death is the most painful truth. It never
allows the victim to tell a lie during his dying moments. Even those who
commit sins and tell lies when face it speak nothing but the truth. They
repent and beg forgiveness from Almighty. It is an acceptable rule among all
the scholars and thinkers belonging to different religions, cultures and

societies that last words of a dying person enjoys the presumption of truth. A
renowned scholar and writer Sir William Shakespeare in the Act II of his
famous play King Richard II describes the feeling of a dying person in the
following words:--
"O, but they say the tongues of dying men.
Enforce attention like deep harmony.
Where words are scarce, they are seldom spent in vain.
For they breathe truth that breathe their word in pain.
He that no more must say is listen'd more.
Than they whom youth and ease have taught to glose.
More are men's ends mark'd than their lives before.
The setting sun and music at the close.
As the last taste of sweets, is sweetest last.
Writ in remembrance more than things long past.
Though Richard my life's counsel would not hear.
My death's sad tale may yet undeaf his ear.
13.
It is also an acceptable principle in the eye of law that a dying person
usually speaks truth. In the case titled "Akbar Ali v. Shanaz and others,"
(1981 PCr.LJ 710) it was observed that:--
"Courts should as far as possible avoid expression of opinion on

merits of case-Dying declaration to be treated as a valuable piece of
evidence till decision taken by trial Court with regard to weight to be
attached to it---General presumption that dying persons usually speak truth."
It follows that the statement made by a person who was dying at the time he
made it is a dying declaration in the legal sense of the terms and is
admissible piece of evidence. No specific mode for recording a dying
declaration has been prescribed. Size of such declaration whether small or
lengthy is of no importance as the only requirement is that it must indicate
the cause and the circumstances which resulted in the death of the declarer.
The authenticity and credibility of a dying declaration can only be judged
after recording evidence in the case because the question of concoction or
fabrication if raised by the defence can only be resolved by considering the
peculiar circumstances of the each case appearing in the evidence.
14.
The report under section 173, Cr.P.C. was submitted on two grounds
(i) no eye witness was produced by the complainant party, (ii) the death of
Shahbaz occurred due to falling from the height and no cognizable offence
was committed. Both the above stated reasons given by the Investigating
Officer were incorrect and against facts of the case. The report was lodged
without any delay. The offenders were nominated therein and it was clear
that the occurrence was not witnessed by anybody. Thus, asking the
complainant to produce eye-witnesses was not justified in the given
circumstance. Similarly claim of falling from the height resulting into the
death of the deceased was not supported by any evidence. From perusal the
post mortem report reveals that eight injuries were found at the person of the
deceased. Keeping in view the nature of wounds it was hard to believe that
the victim suffered the same because of falling. It was also clear from the
report that the injury which resulted into the death was caused by some blunt
weapon, hence to determine the nature of injuries and cause of death,
examination of the doctor was necessary. It may also be added here that no
evidence in support of the claim that the deceased fell from the height was
brought on record, therefore, observation of Investigating Officer that no
cognizable offence was committed was groundless. It was the result of either
incompetency of the investigator or of the dishonest investigation.
15.
The trial Court while passing the impugned order failed to appreciate
that the injured person was lying unconscious at the spot from where he was
taken to Police Station, Khuiratta and later on was shifted to Pakistan Institute
of Medical Sciences, Islamabad. On 20-10-2010 Muhammad Younus
Investigating Officer recorded his dying declaration. In support of opinion of
the doctor showing that "the patient is conscious and oriented able to talk at
the movement" was also brought on record. The question that dying
declaration was small as it was comprised of two lines was hardly relevant.
The necessary facts such as names of the offenders and the circumstances
which resulted into the death including the place of occurrence were
mentioned therein. There was no exaggeration and it was recorded in
accordance with law. It will not be out of place to mention here that a dying
declaration is most strong piece of evidence. In certain circumstances it does
not require any corroboration and can be considered for recording conviction.
It may be observed here that there is hardly any justification to dismiss a
case supported by dying declaration for want of proof by agreeing with the
report made under section 173, Cr.P.C.
In light of the facts listed above, the appeal is accepted. The
subsequent report under section 173, Cr.P.C. suggesting dismissed of the

case for want of proof is rejected. The impugned judgment is set aside and
the trial Court is directed to proceed with the case in accordance with law.
Before parting with the judgment we would like to mention that performance
of the Police and then members of the trial Court was very poor. This is sad
state of affair that the institutions are deteriorating and the people sitting at
helm of affair are not taking notice of it perhaps they are not aware of its
consequences and effects. The deterioration has shaken the whole society. It
is our duty to bring such type of inefficiency and ignorance in the knowledge
of those who have powers to correct it, therefore, the copy of the judgment
shall be sent to Inspector General Police for necessary action.
HBT/10/Sh.C.(AJ&K)
Appeal accepted.
2014 P Cr. L J 312
CRIMINAL APPEAL NO.30 OF 2009
(On appeal from the judgment of the Shariat Court dated 16-22007 in Criminal Appeal No.73 of 2006.)
IRFAN HUSSAIN---Appellant
Versus
ALLAH DIN and another---Respondents
CRIMINAL APPEAL NO.32 OF 2009
(On appeal from the judgment of the Shariat Court dated 16-22007 in Criminal Appeal No.69 of 2006.)
ALLAH DIN---Appellant
Versus
IRFAN HUSSAIN and another---Respondents
Criminal Appeals Nos. 30 and 32 of 2009, decided on 16th March, 2012.
----S. 302(b)---Qatl-e-amd---Life imprisonment awarded to accused by the Trial

Court having been maintained by Shariat Court, the complainant had filed
appeal before the Supreme Court for enhancement of sentence---Validity--Court under clause (b) of S.302, P.P.C. was empowered to punish accused with
death or imprisonment for life as 'Tazir' having regard to facts and
circumstances of the case---Reasons advanced by the Trial Court in its
judgment that in the light of peculiar facts and circumstances of the case, the
imprisonment for life as 'Tazir' was an adequate punishment, were
satisfactory and found support from settled law---Appeal filed by the
complainant for enhancement of the awarded punishment to accused was
not maintainable, which was dismissed.
Muhammad Khurshid's case PLD 2007 SC(AJ&K) 27 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-e-amd,

possessing unlicensed arms---Appreciation of evidence---Presence of three
direct eye-witnesses, who were sons and widow of the deceased was
natural---Defence had failed to make out any dent in the prosecution story
during the cross-examination of said witnesses or to make their presence on
spot doubtful---Mere relationship of said witnesses with the deceased, was no
ground to discard the evidence of the prosecution witnesses---Prosecution
story appearing to be simple and natural, objection of the counsel for
accused that prosecution story was not plausible, was without any
substance---Most stressed point that no blood was recovered on the spot of
occurrence, appeared to be without substance, because evidence had clearly
proved that a huge quantity of blood was found in the abdominal cavity--Mere being a tractor driver, would not mean that presence of person at the
place of occurrence at the relevant time was impossible, nor it made status
as of a chance witness---Contention of counsel for accused that motive had
not been proved, was also of no importance---Defence had failed to point out
any major discrepancy, which could make the evidence doubtful or

unreliable---Evidence showed that the persons of locality had reached on the
spot after incident, none of them was a direct eye-witness of the incident--Defence had failed to point out any material infirmity in the impugned
judgment, or create any serious doubt in the prosecution story---Appeal was
dismissed by the Supreme Court.
Muhammad Ramzan's case 1997 PCr.LJ 1522; 1997 PCr.LJ 1539; PLD
1963 SC 17; 2007 SCR 332 and PLD 2007 SC(AJ&K) 27 ref.
Muhammad Khurshid's case PLD 2007 SC(AJ&K) 27; Abdul Rashid and
3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 and Noor
Muhammad's case 1992 SCR 1 rel.
(c) Criminal Trial---
----Appreciation of evidence---Relationship of prosecution witnesses with

deceased---Mere relationship was no ground for discarding the evidence of
witnesses---Party could rope innocent persons in a crime along with a real
culprit, but it was not natural that a party would leave the real culprit
and instead falsely implicate innocent persons.
Abdul Majeed Mallick, Advocate for Appellant (in Criminal Appeal

No.30 of 2009).
Khalid Rasheed Chaudhary, Advocate for Respondents (in Criminal

Appeal No.30 of 2009).
Advocate-General for the State (in Criminal Appeal No.30 of 2009).
Khalid Rasheed Chaudhary, Advocate for Appellant (in Criminal

Abdul Majeed Mallick, Advocate for Respondent (in Criminal Appeal

No.32 of 2009).
Advocate-General for the State (in Criminal Appeal No.32 of 2009).
Date of hearing: 21st February, 2012.
JUDGMENT
CH. MUHAMMAD IBRAHIM ZIA, J.---Both the captioned appeals have

arisen out of the consolidated judgment of the learned Shariat Court dated
16-2-2007.
2.
The precise summary of facts necessary for disposal of these appeals
is that a case under section 302, A.P.C. was registered at police station
Dadyal on the complaint of Irfan Hussain. It was reported that on 13-4-2006
at 3-00. p.m. the complainant, his brother Zaffran, mother Anees Akhtar and
father Kala Khan were harvesting wheat crop from their field. In the
meantime convict-appellant's cattle entered the land and started grazing
crops. The complainant's father turned them out. In the meantime Allah Din
convict-appellant came there and started abusing him. The father (deceased)
forbade and asked him to control his cattle as they used to damage the crop
every day. Upon this, the convict-appellant fired at him with .30 bore pistol
and caused injury at his abdomen. He fell down and the convict-appellant ran
away after committing the offence. The victim succumbed to the injury while
in the way to hospital. The occurrence was stated to be witnessed by the
complainant, his brother and mother. Motive alleged was an old enmity
between the parties.
3.
On completion of investigation, the challan was submitted before the
Additional District Court of criminal jurisdiction, Dadyal. After conclusion of
trial, the trial Court awarded life imprisonment under section 302(b), A.P.C.,
five years simple imprisonment under section 13 of A.O. 1965, and
Rs.100,000 fine under section 544-A of Cr.P.C., to the convict-appellant. Both
the parties feeling aggrieved filed appeals before the Shariat Court. The
learned single Judge in the Shariat Court through the impugned consolidated
judgment only enhanced the amount of fine from Rs.100,000 to Rs.200,000
and rest of the judgment of the trial Court is upheld.
4.
Mr. Abdul Majeed Mallick, the learned counsel for the complainant
after statement of facts of the case, vehemently argued that the prosecution
has proved his case beyond shadow of doubt. There are three direct eyewitnesses of the occurrence. The corroboratory evidence in shape of recovery
of crime weapon, empties from the place of occurrence, bullet from the body
of the deceased, the postmortem report, fire arms expert's report and other
pieces of evidence have fully established the guilt of the accused. According
to the principle of law in such like cases the normal penalty is death
sentence. In support of his arguments he placed reliance on Muhammad
Ramzan's case reported as 1997 PCr.LJ 1522 and 1997 PCr.LJ 1539.
5.
Raja Ghazanfar Ali, the learned Advocate-General, fully supported the
arguments advanced on behalf of the complainant. He further submitted that
the F.I.R. has been lodged promptly. The accused is nominated in the F.I.R.
and it is a broad-daylight incident. The prosecution witnesses and convict
appellant are residents of same locality and well acquainted with each other,
therefore, neither there is any doubt of identification nor wrong implication of
a person. He also added in his arguments that it is now settled principle of
law that in presence of direct ocular evidence, the circumstantial evidence
has no importance. In the light of the new era trend of principle of law, it is
not necessary to prove the motive, thus in this case awarding for capital
punishment is appropriate according to the principle of administration of
justice.
6.
Mr. Khalid Rasheed Chaudhry, the learned counsel for the convictappellant, argued the case at some length. He summarized his arguments in
the shape of following major points:--
"(a)
that according to overall facts the occurrence is unseen;
(b)
the prosecution story is not plausible;
(c)
motive is not proved;
(d)
place of occurrence is doubtful as no blood has been recovered from
the alleged place of occurrence;
(e)
prosecution's witnesses are close relatives and their statements are
contradictory;
(f)
despite availability of the independent witnesses none has been
produced and contradiction in the statements of witnesses make the whole
story doubtful."
While elaborating these points he contended that star prosecution's

witnesses are two sons and one widow of the deceased. Due to enmity, they
intentionally falsely implicated the convict appellant. The careful analyses of
the prosecution witnesses' statements reveals that there are major
contradiction, which means that they are not natural witnesses and they have
not witnessed the occurrence. They have been cited as witnesses to
manufacture the false evidence. He further contended that according to
scrutiny of the prosecution's evidence the prosecution's witnesses namely,
Zafaran and other are tractor drivers and according to their ordinary routine
their presence at the relevant place of occurrence, is not natural, thus their
status is of chance witnesses. It is borne out from the statements of the
prosecution's witnesses that a large number of other independent persons of
locality gathered at the place of occurrence but none of them is cited or
produced as witness which makes the whole story doubtful. According to
postmortem report and prosecution's witnesses, there was continuous
bleeding from the body of the deceased but despite this no blood is
recovered from the place of occurrence, which shows that the whole story
is false and fabricated. In support of his arguments he referred to PLD
1963 SC 17, 2007 SCR 332, PLD 2007 SC(AJ&K) 27, and finally submitted
that in the light of the arguments, the convict-appellant deserves for
acquittal, thus while accepting this appeal, the convict-appellant be
acquitted from the charges.
7.
While controverting the arguments of the learned counsel for the
convict accused the learned counsel for the complainant submitted that
all the points raised by the convict accused are hypothetical, which has no
nexus with the case in hand. It is now settled principle of law that mere being
relative of the deceased is no ground to discard the evidence of the

prosecution witnesses if, the case is otherwise proved. No benefit to accused
can be extended merely on the ground that the person present at the time of
occurrence has not been produced as witness. He further explained that the
consideration of the prosecution whiteness's statement, as a whole, makes
crystal clear that the other persons of locality reached at the place of
occurrence after the incident of firing and on the hue and cry of the
prosecution witnesses. So far the objection regarding the absence of blood at
the place of occurrence is concerned, the fire arm injury in the abdomen of
the deceased and the postmortem report is very much clear that the huge
quantity of the blood was found in the cavity of the deceased's body,
therefore, the blood couldn't shed at the place of occurrence. In this case the
subordinate Courts have failed to award the required capital punishment of
death to the accused.
8.
We have considered the respective arguments of the learned counsel
for the parties and also gone through the record. On the question of facts
both the Courts have recorded concurrent findings after due appreciation of
the evidence brought on record. The trial Court, after discussion and
appreciation of the prosecution evidence in para 22 of the judgment
concluded as under:--
"22. However, despite of truthfulness of prosecution case, we are not

in agreement with aforesaid view assumed by the counsel for the
complainant, that it was a fit case for awarding punishment of Qisas or in
alternative death penalty as Tazir, on account of the reasons given
hereinafter.
(i)
That, it is crystal clear from examination of record as well as was an
admitted fact that P.Ws.1 and 2 were real sons, while P.W.3, was a widow of
the deceased Kala Khan;
(ii)
That, it stood proved from record that the P.Ws.4-6, were also closely
related to aforesaid P.Ws.1-3;
(iii)
That, it is evident from the record, that prior to said nefarious
occurrence an altercation took place between accused person and deceased
Kala Khan, which prompted the former to fire a pistol shot at the latter
leading incident as a consequence of a provocation;
(iv)
That, the prosecution evidence didn't reveal, that prior to occurrence
of said incident, the accused person was found hatching a conspiracy to the
life of the deceased.
(v)
That, the prosecution evidence didn't disclose, that the accused
person was a hardened criminal or had a such like past record or was a
habitual criminal;
(vi)
That, it wasn't on record, that it was a premeditated act committed by
the accused person;
(vii)
Lastly, the motive of said act was clearly mentioned in Exhs.P.A and
P.B, as a family enmity existing between the parties, but it was most
amazing, that none of the P.Ws.1-3, while showing up in witness-box affirmed
said motive."
Despite the concurrent findings of the Courts below, we, for our own
satisfaction, have also made survey of the prosecution evidence and we
remained unable to find any thing to discard the reasoning of the trial Court
as recorded in para 22 of the judgment, reproduced hereinabove. So far the
contention of the learned counsel for the prosecution is concerned that in
murder case the normal sentence to be awarded, is death as is laid down in a
case titled Muhammad Ramzan v. State and others, reported as PLJ 1998
SC(AJ&K) 38. We would like to observe that in the referred judgment it has
not been laid down as an absolute rule rather it has been opined that for
awarding lesser punishment there should be some recognized reasons.
Moreover, the referred judgment was handed down while interpreting the
statutory provisions i.e. sections 5 and 24 of the Islamic Penal Laws
(Enforcement) Act, 1974, enforced at that time whereas thereafter legislative
changes have been occurred and the case in hand has been tried under
section 302, Azad Penal Code, which, for convenience is reproduced as
under:--
"302. Punishment of qatl-e-amd.---Whoever commits qatl-e-amd shall,

subject to the provisions of this chapter be-
(a)
punished with death as qisas;
(b)
punished with death or imprisonment for life as ta'zir having regard
to the facts and circumstances of the case, if the proof in either of the
forms specified in section 304 is not available; or
(c)
punished with imprisonment of either description for a term which
may extend to twenty five years, where according to the Injections of
Islam the punishment of qisas is not applicable.."
The clause (b) of this section itself speaks that the Court is empowered to
punish with death or imprisonment for life as tazir' having regard to facts and
circumstances of the case. Thus, we are satisfied with the reasons advanced
by the trial Court in para 22 of the judgment reproduced hereinabove that in
the light of peculiar facts and circumstances of this case, the imprisonment
for life as "ta'zir" is an adequate punishment. Our this view finds support from
Muhammad Khurshid's case, PLD 2007 SC(AJ&K) 27, while dealing the
question of quantum of sentence it has been observed that the question of
sentence requires utmost care. The same must be weighed in the golden
scale and should be properly balanced to cure rest of society from the
commission of crime without being unnecessary harsh". It was further
observed "as it is a well settled principle of law that where the motive for
offence is shrouded in mystery then the extreme penalty of death is not
warranted. The sentence of life imprisonment should be sufficient to meet the
ends of justice". Therefore, while following the above cited principle of law,
we hold that the appeal filed by the complainant for enhancement of
the awarded punishment to the accused is not maintainable, which is
hereby dismissed.
9.
Now, we advert to the arguments of the learned counsel for the
convict-appellant. The argument of the learned counsel for the convict
appellant appears to be somewhat hypothetical. In the instant case there are
three direct eye-witnesses. Admittedly they are sons and widow of the
deceased but according to the prosecution story their presence on spot is
natural. Moreover, the defence has failed to make out any dent in the
prosecution story during the cross-examination of these witnesses or to make
their presence on spot doubtful. It is almost now settled principle of law that
mere relationship is no ground to discard the evidence of the prosecution
witnesses. The prosecution story appears to be simple and natural, therefore,
objection of the learned counsel for the convict-appellant that the prosecution
story is not plausible, is without any substance.
10.
The most stressed point that no blood is recovered on the spot of
occurrence, also appears to be without any substance. The fire-arms injury
was caused to the deceased in abdomen and the postmortem report
speaks:--
"When abdomen was opened, the peritoneum was damaged. The

bullet after damaging peritoneum, damaged large gut from three sides
causing small holes from which contents were oozing out, then it damaged
deep muscles near vertebras and bullet was found in the deep muscles.
When abdomen was opened a large quantity of blood was found in the
abdominal cavity."
It is further observed by the doctor "that bullet ruptured abdominal wall,
peritoneum and large gut that caused perfused haemorrhage in the

abdominal cavity which lead to shock and spontaneous death". This piece of
evidence clearly proves that a huge quantity of blood was found in the
abdominal cavity, thus absence of blood at the place of occurrence is
obvious, hence the arguments of the defence counsel that the prosecution
story is not plausible due to absence and non-recovery of blood from the
place of occurrence, has no substance, which is hereby repelled. Moreover,
such type of circumstantial evidence is mere corroboratory and in presence of
ocular evidence is of less importance. The argument of the counsel for
defence that the prosecution witness named Zaffran who is a tractor driver,
in ordinarily course at the relevant time his presence at place of occurrence is
not possible, thus he cannot be a natural witness rather is a chance witness,
has no substance. In our opinion, mere being a tractor driver doesn't mean
that his presence at the place of occurrence at the relevant time is impossible
nor does it make his status as of a chance witness.
11.
The other contention of the learned defence counsel that motive has
not been proved, also is of no importance. The objection with regard to
discrepancies also appears to be of not any worth, because the so-called
pointed out discrepancies are of not a such nature to make the prosecution
story doubtful or the prosecution evidence untrustworthy. The defence has
failed to point out any major discrepancy, which makes the evidence doubtful
or unreliable. All the objections i.e. proof of motive, discrepancies and related
witnesses raised by the convict-appellant are of such nature which were
raised in Abdul Rashid's case 2001 PCr.LJ 524, and this Court while dealing
with the question of contradiction and variations in the statement of
prosecution witnesses, held as under:--
"(9)
The finding of the Shariat Court that there are contradictions between
the medical evidence and the eye-witnesses is also not correct. According to
the finding of the trial Court, the fire which caused death of Fazal-ur-Rehman
was fired from a close range. The site plan shows that at the time of fire, the
distance between the assailant and the deceased was eleven feet. According
to medical jurisprudence, the burning of the clothes and blackening may be
present if the gun is fired from a distance of about three feet or less. After
subtracting the length of barrel of the gun and its butt, which may be about
5/6 feet, the remaining distance between the muzzle of the gun is more or
less remains only about 5/6 feet; the difference of 2/3 feet is negligible as the
same may be due to wrong perception of the witnesses. Thus, there is no
material contradiction in the statements of eye-witnesses and medical
evidence. It may be observed that it is not possible for the witnesses in such
a case to give the precise distance; there is always a possibility of error of
few feet or yards. The observation of the Shariat Court that according to the
statement of eye-witnesses, the distance between the assailant and
deceased was about five to six yards is concerned, it may be observed that
the witnesses gave statements in the Court after more than three years of
the incident. Therefore, the aforesaid statements at the trial would not nullify
the distance between the assailant and victim of offence at the time of firing
which is mentioned in the site plan. Even otherwise, if ocular evidence is
found trustworthy, the same cannot be rejected merely because there was
some variation between the prosecution witnesses and the medical evidence
on the point of distance between the assailant and the victim at the time of
inflicting the injury.
(10)
The Shariat Court has also held that the recovery memo, Exh.PL,
which was signed by Naseer Ahmed and Inayat Ali was not proved by the
witnesses. It may be observed that the aforesaid two witnesses have clearly
stated that the gun, Exh.P/6, was recovered at the instance of Abdul Ghaffar,
accused-respondent. They have proved recovery memo. Exh.PE taking it to
be the recovery memo. of the gun which is Exh.PL due to the inadvertence of
prosecutor who conducted the trial. Apparently, the mistake was caused as a
result of oversight of the prosecutor and, thus, it cannot be said that the
recovery of the gun from Abdul Ghaffar, accused-respondent, has not been
proved, especially so when Exh.PE is a recovery memo. of the license of the
gun which is in the name of the accused-respondent. It follows from what has
been stated above that the Shariat Court was not justified in holding that the
gun in question has not been proved to have been recovered from Abdul
Ghaffar, accused-respondent.
(11)
The reasoning given by the Shariat Court that the recoveries of
empties and gun were not witnessed by independent witnesses of the locality
and as such the same cannot be considered against the accused-respondent
is also not correct. It has been held in a number of cases that strict
compliance of section 103, Cr.P.C., is not necessary in case of recoveries or
seizure memos. made by the Police. Similarly, mere relationship of the
witnesses of the recovery memos. is not a ground to reject their testimony
dubbing the same as doubtful." (Underlining is ours)
This Court, also in Muhammad Khurshid's case PLD 2007 SC(AJ&K) 27, while
dealing the admissibility of evidence of relative witnesses, held as following:--
"24. In the instant case both Muhammad Najeeb and Tauseef Ahemd
appeared as witnesses and no enmity with the appellant was suggested to
them during the cross-examination. Even the accused in his statement under
section 342, Cr.P.C., did not attribute any enmity with them from the entire
evidence it did not transpire that they had any enmity with the accused
persons. It is well settled principle of law that evidence of a witness couldn't
be disbelieved or discarded merely on the basis of relationship, unless and
until it is proved that the witness was inimical towards the accused. This view
finds support from a case titled Muhammad Khalil v. The State (1992 SCR
249), relevant page 254, which is as under:
"The mere fact that some of these witnesses are related to the
deceased is not sufficient to discard their testimony, especially so when they
have not been shown inimical to the accused-appellant. So far as the
argument that the eye-witnesses are chance witnesses and could not be
relied upon without corroboration is concerned, we are of the opinion that if
the testimony of such a witness rings true, it can be relied upon without
seeking any corroboration. In the instant case if at all any corroboration is
insisted upon, the same is furnished by the recovery of blood-stained hatchet,

at the instance of the accused-appellant, and the medical evidence on the
record."
This view further finds support from a case titled Abdul Khaliq v.
Jehangir and another 1999 YLR 1908, wherein it has been held at page 334 as
under:-
"The related witnesses cannot be disbelieved as interested witnesses

unless they have a motive to falsely implicate the accused."
As such was held in a case reported as Ishaq v. The State (PLD 1985
Karachi 595), relevant page 600, which is as under:
"However, it is a settled law that mere relationship of witness with the

victim of the crime is no ground to discredit his testimony."
12.
While dealing with the question of discrepancies, in a case titled
Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others reported as 2001
PCr.LJ 524, it was held as following:--
"The contention of the learned counsel for the accused-respondents

that there are discrepancies between the eye-witnesses as to the date when
their statements were recorded under section 161, Cr.P.C., renders the
prosecution case doubtful is also not tenable because the eye-witnesses in
this case have been named in the F.I.R. which was promptly recorded.
Therefore, even the belated recording of the statements under section 161,
Cr.P.C. would not help the accused-respondent; thus, the discrepancies on the
said point do not make the prosecution case doubtful." (Underlining is ours)
From the survey of case law, it appears that "mere relationship is no ground
for discarding the evidence of witnesses. It may be observed that a party
may rope innocent persons in a crime along with a real culprit but it is not
natural that a party would leave the real culprit and instead falsely implicate
innocent persons."
13.
While dealing with the question of number of witnesses in Noor
Muhammad's case 1992 SCR 1, this Court has observed that "no specific
number of witnesses is necessary in criminal cases to prove the case. A
solitary witness is sufficient if his statement is corroborated from the other
circumstances". Thus the argument of the defence counsel that the
prosecution has failed to produce any of the other persons as witnesses,
gathered on spot, does not damage the prosecution case. Moreover, it has
been rightly clarified by the learned counsel for the prosecution that
according to facts of this case it transpires from the evidence that the
persons of locality reached on spot after the incident, therefore, none of them
was a direct eye-witness of the incidence.
In view of the above detailed reasons, the defence has failed to point
out any material infirmity in the impugned judgment or create any serious
doubt in the prosecution story. Thus finding no force in this appeal filed by the
convict-appellant, the same is hereby dismissed.
HBT/81/SC(AJ&K)
dismissed.
2014 P Cr. L J 108
[Shariat Court (AJ&K)]
Before Muhammad Mushtaq Chaudhary, J
ABRAIZ BABU and 2 others---Petitioners
Appeal
Versus
The STATE and another---Respondents
Criminal Revision Petition No.336 of 2012, decided on 19th February, 2013.
----S. 540---Interpretation and scope of S.540, Cr.P.C.---Section 540, Cr.P.C.,

consisted of two parts; the first part gives power to the court to summon any
person as a witness or examine any person in attendance, though not
summoned as a witness, whereas the second part of said section was
mandatory to meet the ends of justice---Section 540, Cr.P.C. had given
ample powers to a court to call or examine any important witness as court
witness at any stage; and at any time during the trial---Those discretionary
powers, had to be exercised with due care and caution; and in a judicious
manner in the cases where Trial Court would feel it necessary to meet the
ends of justice, but the court could not exercise those powers to advance the
cause of prosecution or that of the defence---Object of S.540, Cr.P.C. was to
advance the interest of justice and not to give benefit to any of the parties at
the trial to fill up lacunas---Court could call and examine any witness for
recording evidence during the trial at any stage of the trial, even after closure
of prosecution evidence, and could allow the application, if facts of the case
so warranted in order to do complete justice, because primary function of the
court was to reach the just conclusion; and find out the truth, but neither the
prosecution nor the defence could be allowed to produce additional evidence
to fill up the lacunas under S.540, Cr.P.C.
----S. 540---Penal Code (XLV of 1860), Ss.302, 34, 109 & 114---Pakistan Arms
Ordinance (XX of 1965), S.13---Qatl-e-amd, common intention, abetment,
possessing unlicensed arms---Summoning material witness or examining
person present---Out of 22 witnesses cited by the prosecution, evidence of 21
witnesses had been recorded and only evidence of Investigation Officer was
yet to be recorded, meanwhile, complainant moved an application under
S.540, Cr.P.C. before Trial Court through which he wanted to get recorded
evidence of seven more persons who were present at the time of incident at
the alleged place of occurrence---After more than 20 months, which was a
long time, the prosecution moved an application under S.540, Cr.P.C. before
the Trial Court without any justification---Prosecution, prior to the application
under S.540, Cr.P.C. never considered the witnesses mentioned in the
application as important witnesses, nor those witnesses themselves appeared
before Police during investigation, or court for recording of their evidence--Attitude of the complainant for citing them as witnesses also appeared to be
lukewarm, because of his long silence---Complainant remained silent for
about more than 20 months after commencement of the trial; and such delay
could not be ignored in circumstances---Trial Court had failed to appreciate
S.540, Cr.P.C. in its true perspective and allowed seven additional
witnesses to be examined---Impugned order was set aside, in circumstances.
Mst. Safdar Jan v. The State and another 1997 PCr.LJ 1553 rel.
Muhammad Boota v. The State 1997 PCr.LJ 628; Ali Nawaz and 8
others' case 1997 MLD 2221; Mazhar Hussain v. The State 2002 PCr.LJ 614
and Amir Bakshs v. Additional Sessions Judge Multan 2007 PCr.LJ 642 ref.
Barrister Adnan Nawaz for Petitioners.
Manzoor Hussain Raja for the Complainant.
Nemo for the State.
ORDER
MUHAMMAD MUSHTAQ CHAUDHARY, J.---This revision petition has

been directed against an order of Additional District Court of Criminal
Jurisdiction Rawalakot dated 8-9-2012, whereby an application filed by
complainant under section 540, Cr.P.C. for summoning of additional witnesses
was accepted.
The facts precisely stated are that a case under sections 302/34,
109/114, A.P.C. and 13/20/65, Arms Ordinance was registered against the
accused petitioners at Police Station Rawalakot. The challan was submitted
before Additional District Court of Criminal Jurisdiction Rawalakot and the
evidence of prosecution witnesses was being recorded, meanwhile, on 10-72012 complainant moved an application under section 540, Cr.P.C. for
summoning of seven (7) persons, as additional witnesses, who were also
travelling in Hi-Ace wherein deceased was murdered, the place of occurrence.
The objections on the aforesaid application were sought from accusedpetitioners which were filed, on 23-7-2012. The trial Court after hearing
arguments accepted the application filed under section 540, Cr.P.C. for
summoning of 7 more additional witnesses vide its order dated 8-9-2012;
hence, this revision petition.
Barrister Adnan Nawaz, the learned Counsel appearing on behalf of

the accused-petitioners submitted that the evidence of prosecution witnesses
except Investigating Officer has been recorded. He further argued that no
doubt an application under section 540, Cr.P.C. can be moved at any stage of
the proceedings but the complainant kept mum for such a longtime and
during the cross-examination when the defence disclosed that some other
persons were also present in the Hi-Ace but they were not cited as witnesses,
then the complainant filed an application under section 540, Cr.P.C. before
trial Court to fill up lacunas of the prosecution; therefore, the trial Court'
failed to consider this aspect of the case and passed the impugned order
contrary to law. He submitted that while accepting this revision petition, the
impugned order may be dismissed.
Conversely, Manzoor Hussain Raja, the learned Counsel for the

complainant-respondent argued that an application under section 540, Cr.P.C.
can be filed at any stage of the proceedings to summon or recall a witness for
just decision of the case; therefore, the trial Court rightly accepted the
application. He prayed for dismissal of the revision petition and defended the
impugned order on all counts. The learned Counsel placed reliance on the
following authorities in support of his contention:--
The case titled Muhammad Boota v. The State [1997 PCr.LJ (Lahore)
628] relates to a criminal complaint filed against a Patwari, accused, for
preparing a forged mutation; wherein the trial was at initial stage and the
learned Judge held that the comparison of the Patwari's signatures was
essential in this case; therefore, the trial Court was directed to send the
specimen signatures to Handwriting Expert and the accused was given a fair
chance to defend his case, but in the case in hand situation is different
because the complainant wants to get recorded additional evidence of 7
more witnesses.
In the case reported as Ali Nawaz and 8 others [1997 MLD (Lahore)
2221], the complainant claimed that the abductee married to him while one
of the accused also claimed that she was married to him. In such situation,
the Court held that summoning of Nikahkhawan etc. by the trial Court for
their evidence was not illegal or captious in any manner. No doubt in the
above case, the evidence of Nikahkhawan was essential to know the validity
of Nikah but in the present Case the situation is totally different.
In the case titled Mazhar Hussain v. The State [2002 PCr.LJ (Lahore)
614] the learned Judge opined that the trial Court had rightly exercised
its jurisdiction to summon the medical Officer as a Court-witness who
had already made his statement in examination-in-chief.
In the case reported as Amir Baksh v. Additional Sessions Judge

Multan [2007 PCr.LJ (Lahore) 642], the learned Judge observed that the
accused had already been given full and fair opportunity to cross-examine
the said prosecution witnesses; therefore, re-summoning of them for further
cross-examination was denied and it was further held that neither the
defence nor the prosecution could be allowed to fill the lacuna by resummoning of witnesses under section 540, Cr.P.C.
I have heard the learned Advocates for the parties and also given my
utmost consideration to the facts and relevant law.
Section 540, Cr.P.C. consists of two parts; the first part gives power to
the Court to summon any person as a witness or examine any person in
attendance, though not summoned as a witness whereas the second part of
the section is mandatory to meet the ends of justice. Section 540, Cr.P.C. is
reproduced as under:--
"540. Power to summon material witness or examine person

present.---Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness, or examine
any person in attendance, though not summoned as a witness, or re-call and

re-examine any person already examined; and the Court shall summon and
examine or re-call and re-examine any such person if his evidence appears to
it essential to the just decision of the case."
A perusal of above section reveals that it gives ample powers to a

Court to call or examine any important witness as Court witness at any stage
and at any time during the trial. However, these discretionary powers have to
be exercised with due care and caution and in a judicious manner in the
cases where trial Court feels it necessary to meet the ends of justice, but the
Court cannot exercise these powers to advance the cause of prosecution or
that of the defence. The object of the section is to advance the interest of
justice and not to give benefit to any of the parties at the trial to fill up
lacunas.
Coming to the instant case, the prosecution cited 22 witnesses, out of

them, the evidence of 21 witnesses has been recorded and only evidence of
Investigation Officer is yet to be recorded, meanwhile, complainant moved an
application under section 540, Cr.P.C. before trial Court, through which he
wants to get recorded evidence of more seven (7) persons who were present
at the time of occurrence in the Hi-Ace, the alleged place of occurrence.
It reveals from the study of record that the case was challaned before
the trial Court on 29-1-2011 and evidence of 21, out of 22, prosecution
witnesses including six eye-witnesses has been recorded and now after more
than 20 months, which is a pretty longtime, the prosecution moved an
application under section 540, Cr.P.C. before trial Court without any
justification. Before this, the prosecution never considered the witnesses
mentioned in the application as important witnesses nor these witnesses
themselves appeared before police during investigation or Court for recording
of their evidence. The attitude of the complainant for citing them as

witnesses also appears to be lukewarm because a long, silence was adapted
by him. The complainant remained silent for about more than 20 months
after commencement of the trial and such delay cannot be ignored under the
situation. My aforesaid view finds support from a case reported as Mst. Safdar
Jan v. The State and another (1997 PCr.LJ 1553) wherein it was observed by
learned Judge at page 1556 in caption 'B' as under:--
"The complainant side also remained silent for about 4 months after
commencement of the trial, which showed that no sanguine effort was made
to get Abdul Aziz examined as a witness. The question of delay, therefore,
cannot be ignored under the situation. Even otherwise it has not been shown
as to how the examination of Abdul Aziz was essential or without his
examination the ends of justice shall not be satisfied. The mere fact
that there is some flaw in the prosecution case, would not justify
summoning of a witness under section 540, Cr.P.C. the impugned order does
not suffer from any legal infirmity nor it is arbitrary or capricious. As
such there is no ground for interference with the impugned order on
the revisional jurisdiction of this Court. This petition is accordingly dismissed.
I am also aware of the fact that the Court may call and examine any
witness or witnesses for recording evidence during the trial at any stage of
the trial even after closure of prosecution evidence and may allow the
application if facts of the case so warrant in order to do complete justice
because primary function of the Court is to reach the just conclusion and find
out the truth but neither the prosecution nor the defense could be allowed to
produce additional evidence to fill up the lacunas under section 540, Cr.P.C.
As held earlier, in the instant case, the prosecution has already examined 21
witnesses in support of its case, out of them 6 witnesses have been examined
as eye-witnesses of the occurrence. Therefore, the trial Court failed to
appreciate section 540, Cr.P.C. in its true perspective and allowed seven
additional witnesses to be examined.
For the above mentioned reasons, I accept this revision petition

and set aside the impugned order dated 8-9-2012 of Additional District
Court of Criminal Jurisdiction Rawalakot because neither the defence nor the
prosecution can be allowed to fill up lacunas. As delay in the trial has
occurred due to the passing of impugned order; therefore, the trial Court is
directed to conclude the trial preferably as soon as possible.
HBT/5/Sh.C. (AJ&K)
accepted.
Revision
2014 Y L R 2538
MUHAMMAD SALEEM---Appellant
Versus
ABID HUSSAIN and 3 others---Respondents
Criminal Appeal No.8 of 2009, decided on 28th January, 2013.
(On appeal from the judgment of the Shariat Court dated 26-12-2008
in Criminal Appeal No.3 of 2006).
----Ss.302 & 109---Criminal Procedure Code (V of 1898), S. 417(2-A)---Qatl-e-
amd, abetment---Appeal against acquittal---Reappraisal of evidence---F.I.R. of

the incident was lodged after considerable delay of 9 days---Extra judicial
confession allegedly made by accused being result of coercion, could not be
said to have been made voluntarily---Even otherwise, extra judicial confession
was always treated as weak type of evidence---Recovery of clothes of
deceased, was doubtful and such a false recovery, had no evidentiary
value---Doctor who prepared post-mortem report, had not appeared as a
witness and his signatures on said report had been testified by production of
another witness---Without cross-examining the scribe/doctor of the report, it
would not remain of much credit---Accused, and deceased were closely
related to each other, and in the light of peculiar facts of the prosecution
story, finding them in each other's company, was not unusual---Merely on the
basis of last seen, without any other legal evidence, no one could be
convicted, in circumstances---Whole prosecution story and evidence was full
of suspicion and doubts, and suspicion/doubt how-so-much strong, could not
be substantiated for proof---Trial Court had passed acquittal order after due
appreciation of the material brought on record---Shariat Court had also
maintained the acquittal order after making the required deliberation---Both
judgments recorded by courts below were well reasoned and passed after
appreciation of evidence---Appellant/ complainant had failed to point out any
material illegality, irregularity or violation of any statutory provision of law--Appeal against acquittal was dismissed, in circumstances.
Muhammad Niaz Khan v. The State, 1999 SCR 488; Gul Munir and
another v. The State 1990 PCr.LJ 1878; Muhammad Arif v. The State, 2008
YLR 2910; Khurshid v. The State PLD 1996 SC 305; Muhammad Aslam v. Sabir
Hussain and others, 2009 SCMR 985; Rehmat Ali v. Samundar Khan and
another 2009 SCR 252 and Muhammad Mubeen v. The State, 2002 PCr.LJ 729
ref.
Rehmat Ali v. Samundar Khan and another 2009 SCR 252; Muhammad
Aslam v. Sabir Hussain 2009 SCMR 985; Azhar Hussain v. The State 2009 YLR
671; Iftikhar alias Kali and 2 others v. The State 2002 PCr.LJ 1245; Muhammad
Yousaf v. Muhammad Idrees 2004 MLD 910; Altaf Hussain v. Fakhar Hussain
and others 2008 SCMR 1103 and Muhammad Musthaq v. State 2001 YLR
1164 rel.
----S. 164---Extra judicial confession---Legal requirements/ingredients of--Extra judicial confession, had always been treated as weak type of evidence
by the courts---Some legal requirements of extra judicial confession, were;
firstly, that extra judicial confession was in fact made; secondly, it was
voluntarily made; thirdly, it was truly made; and fourthly, to prove the extra
judicial confession, it had to be proved by the prosecution that there was a
motivating force behind it because an accused could not be believed to open
until there was a reason behind it---Accused could not be convicted solely on
the basis of the extra judicial confession, unless it was supported by the
corroborative piece of some independent reliable evidence.
Muhammad Aslam v. Sabir Hussain 2009 SCMR 985; Azhar Hussain v.

The State 2009 YLR 671; Iftikhar alias Kali and 2 others v. The State 2002
PCr.LJ 1245 and Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910 rel.
----Medical evidence---Medical evidence could not connect accused with the

commission of the offence, but could only confirm the ocular evidence with
regard to the seat of injury, nature of injury and kind of weapon used in the
occurrence.
Altaf Hussain v. Fakhar Hussain and others 2008 SCMR 1103 rel.
----S. 417(2-A)---Conversion of acquittal order into conviction---Scope---To get

an acquittal order converted into conviction, was a difficult job for the
prosecution; it was like a liberated bird, who had flown away towards the
limitless space and free air, but prosecution wanted to get him back again
into the cage---Acquittal order could only be interfered with when it was
proved that it had been delivered with foolish appreciation of evidence, with
perverse actions; and where the reasons adduced for the release of an
accused were not acceptable to the mind of prudent man.
Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910; State v. Faisal

Munir PLJ 2009 FSC 284 and Jehangir v. Aminullah and others 2010 SCMR
491 rel.
Abdul Aziz Ratalvi for Appellant.
Ch. M. Ilyas for accused Respondents.
Ghazanfar Ali A.G. for the State.
Date of hearing: 20th December, 2012.
JUDGMENT
CH. MUHAMMAD IBRAHIM ZIA, J.---This appeal has been filed to assail
the judgment of the learned Shariat Court dated 26-12-2008 whereby
criminal appeal filed by the complainant-appellant against acquittal order
passed by District Criminal Court Kotli, has been dismissed.
2.
Brief facts forming background of the appeal are that the
complainant-appellant who is resident of village Maholi Gulpur, lodged and
F.I.R. at Police Station Nar, on 13-12-1997 stating therein that he is an army
personnel, presently posted at Manser Camp. According to F.I.R., his wife
along with two children, namely, Waseem Ahmed Saleem, aged 12 years and
Akmal Saleem, aged 2-1/2 years, are residing in Maholi-Nala Gulpur, while the
other children are residing at Mirpur along with their grandmother. On 1-121997, his wife left the son Waseem Ahmed Saleem at home and went to
Mirpur to see-off the daughter Rif'at, who had to go to United Kingdom on 512-1997. The complainant-appellant also reached Mirpur to see-off his
daughter. On 4-12-1997, at about 4-30 p.m., the complainant received a
telephone call of Master Muhammad Sadiq from Maholi-Nala Gulpur that his
son Waseem Ahmed Saleem has died by falling from the tree. Upon this, the
complainant along with family reached at home and performed the funeral
ceremony of his son and buried him. Thereafter, he inquired from his nephew
Abid Hussain about the occurrence but he evaded to disclose anything about
the occurrence. On seeing the muddy Shalwar of his son, he insisted him to
disclose about the occurrence, then Abid Hussain deposed that about two
months prior to the occurrence, he along with Muhammad Arif, Safdar,
Sikander Hayat sons of Muhammad Sharif Caste Rajput, residents of village
Maholi Tharochee, planned to kill Waseem Ahmed Saleem. On 4-12-1997,
when the deceased was ploughing the field, at about 3 p.m., Abid Hussain
pulled down the deceased (Waseem) and put his hands over the mouth to
stop his breathing and within few minutes he died. The motive behind the
occurrence is stated to be a dispute over a piece of land. The complainantappellant alleged that this is a pre-planned murder, therefore, the accusedrespondents be brought to justice.
3.
After registration of F.I.R., under sections 302/109, A.P.C., the police
started investigation. After necessary investigation, the accused-respondents
were sent to face the trial before the District Criminal Court, Kotli on 29-41998. The trial Court, after completion of required proceedings and hearing
the parties, acquitted the accused-respondents by giving them the benefit of
doubt, vide judgment dated 12-9-2005. The complainant-appellant feeling
aggrieved challenged the judgment of the District Criminal Court Kotli dated
12-9-2005 through an appeal in the Shariat Court on 7-2-2006. The learned
Judge Shariat Court, dismissed the appeal vide order dated 26-12-2008.
The complainant-appellant has assailed the judgment of the Shariat Court
through the instant appeal.
4.
Mr. Abdul Aziz Ratalvi Advocate, the learned counsel for the
complainant-appellant, after discussion of relevant facts, focused his
arguments on the point that one of the accused-respondents has made extrajudicial confession. The witnesses have proved this material fact but the
courts below have fell in error of law while ignoring such unimpeachable
piece of evidence. He further submitted that it has also been proved by the
prosecution beyond any shadow of doubt that the deceased was last seen in
the company of the accused. It is also strongly pressed in the arguments that
according to peculiar facts and circumstances of the case, the prosecution
has brought on record all the oral as well as documentary and circumstantial
evidence in support of its case. The prosecution has fully succeeded in
proving every chain of the prosecution story and the defence has failed to
make out any major dent in the prosecution story. The recovery of the clothes
of the deceased on the pointation of accused is also an un-rebutable, strong
piece of evidence, connecting the accused with the commission of alleged
offence. He further submitted that when the whole prosecution evidence is
analyzed and considered in juxtaposition with the prosecution story, it
becomes clear that the prosecution has proved the guilt of accused beyond
any shadow of doubt. Therefore, in the light of this evidence, acquittal of
accused by the trial Court and dismissal of appeal by the Shariat Court is unwarranted and not sustainable, which calls for interference by this Court for
the ends of justice, hence, this appeal be accepted and the accusedrespondents be convicted under law. In support of his contentions, he placed
reliance upon the cases titled Muhammad Niaz Khan v. The State, reported as
(1999 SCR 488), Gul Munir and another v. The State reported as (1990 PCr.LJ
1878), Muhammad Arif v. The State, reported as (2008 YLR 2910) and
Khurshid v. The State reported as (PLD 1996 SC 305).
5.
Raja Ghazanfar Ali, the learned Advocate-General, also supported the
version of the counsel for complainant-appellant and submitted that the
appeal may be accepted.
6.
While controverting the arguments of counsel for the appellant, Ch.
Muhammad Ilyas Advocate, the learned counsel for accused-respondents
strongly defended the impugned judgment and submitted that it is now a
settled principle of law that for setting aside the acquittal order, there must
be some very unexceptionable strong reasons. The appellant must have to
prove either the acquittal order is against the statutory provision, arbitrary or
capricious or there is any misreading or non-reading of evidence, whereas in
the instant case, the acquittal order passed by the Courts below is well
reasoned and based upon legal appreciation of the material brought on
record by the prosecution. He further submitted that the prosecution story is
unbelievable and on the face of it is doubtful. The F.I.R. has been lodged after
a considerable and reasonably unexplained delay. Even, the contents of F.I.R.
negates the material and major circumstances alleged by the prosecution
thus, the prosecution story is self-contradictory and self-destructive. He
further submitted that not a single witness deposed anything to connect the
accused with the alleged commission of offence. It is also argued that nothing
has been recovered on the pointation of accused. The prosecution has
miserably failed to bring on record any legal evidence, thus, the lower Courts
have rightly acquitted the accused and this appeal has no substance and the
same be dismissed. The learned counsel placed reliance upon the case titled
Muhammad Aslam v. Sabir Hussain and others, reported as (2009 SCMR 985),
Rehmat Ali v. Samundar Khan and another reported as (2009 SCR 252) and
Muhammad Mubeen v. The State, reported as (2002 PCr.LJ 729).
7.
We have paid our utmost attention to the respective arguments of
learned counsel for the parties and also gone through the record. There are
concurrent findings of facts against the prosecution and both the Courts
below have acquitted the accused of the charges. The first and most
important objection raised in the arguments of appellant is that the courts
below have over sighted the strong piece of evidence, i.e. extra-judicial
confession of the accused. Despite the fact that there are concurrent findings
of facts and the appellants could not succeed to point out any misreading or
non-reading of evidence but for the ends of justice and for our own
satisfaction, we have made appreciation of evidence. According to
prosecution's own version, the incident took place on 4-12-1997 and the
F.I.R. of the incident was lodged on 13-12-1997 after a considerable delay. In
this application filed at Police Station Nar, the complainant has written that:--
Thus, from the contents of this written application filed by the complainant, it
is crystal clear that upon seeing the mud-stained trouser of the deceased
son, the complainant forced accused Abid Hussain, upon which he deposed
before him the story on 13-12-1997. But amazingly, the prosecution came
forward with another story that the accused Abid Hussain was taken from
Kotli to Mirpur where on 12-12-1997, he made extra-judicial confession in
a Jirga. Even if the stated prosecution story and evidence of witnesses
regarding the extra judicial confession are accepted as correct, even then it
appears that the extra-judicial confession are result of coercion. The accused,
who is a young boy was taken into custody and under control by the
complainant party, shifted from Kotli to Mirpur, where he allegedly, made
extra-judicial confession, therefore, in the light of peculiar facts of this case, it
cannot be said that such confession is made voluntarily and is believable.
Even, from another angle, the story of extra-judicial confession has become
doubtful as it has been mentioned in the written application, lodged on 1312-1997, that the accused Abid Hussain made confession before the
complainant but on the other hand, the extra-judicial confession before Jirga
at Mirpur has been made basis by the prosecution, it must have been
mentioned in the application lodged on 13-12-1997. Thus, according to
prosecution's own version, neither such statement of accused can be said to
have been made voluntarily, without coercion, nor it can be treated as extrajudicial confession. Even otherwise, the counsel for the appellant very frankly
conceded that according to celebrated principle of law, extra-judicial
confession is always treated as weak type of evidence. This Court in a recent
judgment titled Rehmat Ali v. Samundar Khan and another reported as (2009
SCR 252), while dealing with the point of extra-judicial confession, has
observed that:--
"14. Since there were three witnesses relating to extra-judicial

confession, one Haji Mohabat Ali is proceeded abroad and he was not
produced by the prosecution but the two witnesses above-mentioned have
supported the version of the prosecution. If extra-judicial confession is made
voluntarily and the evidence of witness inspires confidence and it is
corroborated by other circumstances then it has to be believed and if in the
circumstances of the case extra-judicial confession is produced under undue
influence, in document and it is made before an influential person or made on
the condition of some promises then that kind of extra-judicial confession is
not reliable.
In a reported case titled Muhammad Qasim alias Bagga v. The State

(PLD 1984 SC (AJ&K) 21), it was held that:--
"In the circumstances of the case when the appellant had

immediately after the occurrence made the confessional statement before
Abdul Hamid, P.W. voluntarily, which we believe is correct and which owns
killing of the deceased, the negligence of the police would not detract the
value of the report of the serologist and chemical examiner, Abdul Hamid, it
is to be observed, is an independent witness and has no motive to implicate
the appellant in the case falsely. He being a disinterested person, there
appears no reason to doubt his veracity."
The facts of the reported case titled Shah Nawaz v. Sher Bahadur and
another (1980 SCMR 172), relied upon by the learned counsel for the
appellant are not relevant for the purpose of this case, therefore, it is not
applicable. In the instant case extra-judicial confession is only to the extent of
catching the deceased and putting him in his house by the accused and his
son is proved, there is no extra-judicial confession in respect of murder. In the

circumstances, extra-judicial confession is believed to the extent indicated
above."
8.
The extra-judicial confession has always been treated as weak type of
evidence by the Courts. This view has also been re-affirmed by the apex court
of Pakistan in the case titled Muhammad Aslam v. Sabir Hussain reported as
(2009 SCMR 985).
In the case titled Azhar Hussain v. The State reported as (2009 YLR
671), the Lahore High Court has observed that:--
".It is a settled proposition of law that extra-judicial confession is

weakest type of evidence, the same cannot be relied upon unless the same is
corroborated by the strongest piece of evidence particularly in a case wherein
no motive is alleged to the accused for the murder of deceased and there is
nothing on record, what was the reason of the murder"
The same view has been expressed in the case titled Iftikhar alias Kali
and 2 others v. The State reported as (2002 PCr.LJ 1245), wherein it is held
that:--
"Extra-judicial confession is a weak type of evidence, but if it was

corroborated by other independent sources, same could be relied upon."
To make the extra-judicial confession admissible in evidence, there

are some legal requirements which have been summarized in the case titled
Muhammad Yousaf v. Muhammad Idrees, reported as (2004 MLD 910), in the
following manner:--
"12. The third portion for construction of the building of the

prosecution story was the evidence of extra-judicial-confession. The learned
trial Court had exhaustively dealt with this evidence and had pointed out the
contradictions and had analyzed the statements of the witnesses. Statement
of Muhammad Yousaf P.W.1 had rightly been discarded on this point as he
was an interested witness and could not be believed as to the story, he
weaved to prove the extra-judicial confession. The learned trial Court had
rightly pointed out without citing the authoritative judgment delivered by the
Hon'ble Supreme Court of Pakistan reported in 1996 SCMR 188 (Sarafraz
Khan v. The State and 2 other) that to believe extra-judicial-confession, three
ingredients are essential i.e. firstly, that the extra-judicial confession was in
fact made, secondly, that it was voluntarily made and, thirdly, it was truly
made. A fourth requirement is added by us which can be that to prove the
extra judicial-confession it has to be proved by the prosecution that there was
a motivating force behind it, because an accused cannot be believed to open
until there is a reason behind it. No one can be presumed to state to each
and every person of his criminal actions, therefore, this important factor is
missing in this alleged extra judicial-confession."
Therefore, in the light of survey of case law, it is obviously clear that an

accused cannot be convicted solely on the basis of the extra-judicial
confession, unless it is supported by the corroborative piece of some
independent reliable evidence. Whereas in the instant case, according to
prosecution evidence, the extra-judicial confession is neither voluntarily
made nor is supported by any other independent and reliable evidence. Thus,
it is clear that the courts below have rightly analyzed and discarded this
stand of prosecution.
9.
The other material argument of counsel for the appellant is that the
accused is connected with the commission of offence on the basis of
circumstantial evidence and recovery of clothes of deceased on his
pointation. It has also been proved from the record that the recovery is
doubtful. The complainant, in his written application submitted on 13-121997, has mentioned that he has seen Shalwar of the deceased but
amazingly and surprisingly, the same Shalwar is allegedly recovered by the
police on the pointation of accused on 21-12-1997 vide recovery memo.
Exh."PG". The recovery memo. Exh."PG" makes the whole prosecution story
doubtful and is indicative of padding made during investigation. The
prosecution has placed on record, report Exh."PJ" in which the detail of the
clothes of the deceased has been mentioned. Thus, such a fake recovery has
no evidentiary value.
10.
The next point stressed by counsel for the appellant is that the
circumstantial evidence, i.e., postmortem report, fully supports the
prosecution version. The Courts below have taken into consideration the
postmortem report but the scribe, Doctor, has not appeared as a witness
rather his signatures have been testified by production of another witness.
Thus, without cross-examination the scriber of the report, it does not remain
much credible. Even otherwise, the medical evidence could not connect the
accused with the commission of the offence. It can only confirm the ocular
evidence with regard to the seat of injury, nature of injury, kind of weapon
used in the occurrence. Our this view finds support from a recent judgment of
the apex Court of Pakistan in the case titled Altaf Hussain v. Fakhar Hussain
and others reported as (2008 SCMR 1103), wherein it has been observed
that:--
"9. It is also settled law that medical evidence may confirm the ocular
evidence with regard to the seat of the injury, nature of the injury, kind of
weapon used in the occurrence but it would not connect the accused with the
commission of crime."
11.
The last point pressed by the counsel for the appellant is that the
deceased was last seen in the company of accused, Abid Hussain, is also of
not much importance as the accused and deceased are closely related to
each other and in the light of peculiar facts of the prosecution story, finding
them in each other's company, is not unusual, therefore, merely on the basis
of last seen without any other legal evidence, no one can be convicted. This
Court in the case titled Muhammad Mushtaq v. State reported as 2001 YLR
1164 has dealt with the proposition of last seen in detail and its scope has
been discussed as under:--
"13. The survey of the case law makes it abundantly clear that the
last seen evidence due to its inherent defects is fundamentally a weak type
of evidence. Even if the same is believed to be true a conviction on the sole
testimony of last seen evidence cannot be sustained unless there be some
strong corroborative piece of evidence in support of the prosecution. In the
instant case, as observed earlier, the last seen evidence deposed by Mst.
Begum Jan is neither confidence inspiring nor any explicit reliance can be
placed on her statement. The whole of the prosecution case rests upon the
testimony of Mst. Begum Jan who has allegedly last seen the accused in the
company of deceased but the critical examination of the evidence shows that
the said witness did not herself see the convict appellant in the company of
deceased, on the other hand she was told by the deceased that he was going
along with convict-appellant out of his house and the said statement of the
witness remains unchallenged by the public prosecution. Even if we take into
consideration and give some weight to the last seen evidence of Mst. Begum
Jan her statement due to its intrinsic defects requires strong corroboration by
other circumstantial evidence."
The prosecution story and the evidence when scrutinized and analyzed, there
remains no doubt that the whole story and evidence is full of suspicion and
doubts and it is settled principle of law that suspicion/doubt how-so-much
strong, cannot be substituted for proof. Our this view finds support from the
principle of law laid down in Mushtaq Ahmed's case, referred to hereinabove.
12.
It is by now settled principle that to get an acquittal order converted
into conviction, is a difficult job for the prosecution; it is like a liberated bird
who had flown away towards the limitless space and free air, but now
prosecution wants to get him back again into the cage. In the light of
principle of law enunciated by the superior courts of the country, an acquittal
order can only be interfered with when it is proved that it has been delivered
with foolish appreciation of evidence, with perverse actions and where the
reasons adduced for the release of an accused were not acceptable to the
mind of a prudent man. Our this view finds support from the case titled
Muhammad Yousaf v. Muhammad Idrees, reported as (2004 MLD 910).
The Federal Shariat Court, in the reported case titled State v. Faisal
Munir, (PLJ 2009 FSC 284), while dealing with the proposition of setting aside
the acquittal order has observed that:--
11. ..The accused, as a matter of right and not the complainant, is

entitled to benefit of doubt. A genuine doubt even on one crucial point can
secure acquittal of the accused. There is unanimity of judicial opinion that
perversity arbitrations or capriciousness in the judgment under question must
be established before reversal of acquittal could be claimed. The appellate
Courts are loath to interfere unless it is established that i/misreading of
evidence or ii/lack of consideration of material evidence or iii/reception of
evidence illegally or iv/violation of legal provisions or v/jurisdictional defects
vi/reliance placed on matters, extraneous to the record or vii/material
witnesses for the prosecution were not recorded or viii/the acquittal order on
the face of it is contradictory or ix/the order of acquittal was passed without
hearing the prosecution or x/the principles governing appreciation of
evidence have been violated or xi/the acquittal judgment was based upon
surmises, suppositions and/or conjectures or xii/acquittal is based upon
reasons which do not appeal to the reasonable mind or xiii/for that purpose
there are gross misstatements appearing in the judgment under review.
12. The acquittal order of the lower court is entitled to respect and it
cannot be interfered with solely on the reason that another opinion could be
possible on the given set of evidence and circumstances. However, instances
are not lacking where the appellate Courts have reversed the finding of
acquittal. A judgment can be faulty and defective."
The apex Court of Pakistan, in a recent judgment in the case reported

as Jehangir v. Aminullah and others (2010 SCMR 491), while dealing with this
legal proposition has observed as under:--
"6. It is well settled by now that there are certain limitations on the
power of Appellate Court to convert acquittal into a conviction. It is well

settled that Appellate Court would not interfere with acquittal merely because
on reappraisal of the evidence it comes to the conclusion different from that
of the court acquitting the accused, provided both the conclusions are
reasonably possible. If, however, the conclusion reached by that Court was
such that no reasonable person would conceivably reach the same and was
impossible then this Court would interfere in exceptional cases on
overwhelming proof resulting in convulsive and irresistible conclusion; and
that too with a view only to avoid grave miscarriage of justice and for no
other purpose. The important test visualized in these cases, in this behalf was
that the finding sought to be interfered with, after scrutiny under the
foregoing searching light should be found wholly as artificial, shocking and
ridiculous". The view taken by this Court in Ghulam Sikander v. Mamaraz
Khan PLD 1985 SC 11 is well known that "in an appeal against acquittal this
court would not, on principle, ordinarily interfere and instead would give due
aid and consideration to the findings of Court acquitting the accused. This
approach is slightly different from that in an appeal against conviction when
leave is granted only for the reappraisal of evidence which then is undertaken
so as to see that benefit of every reasonable doubt should be extended to
the accused. This difference of approach is mainly conditioned by the fact
that the acquittal carries with it the two well accepted presumptions; one
initial, that, till found guilty, the accused is innocent: and two that again after
the trial a Court below confirm the assumption of innocence. This will not
carry the second presumption and will also thus loose the first one if on
points having conclusive affect on the end result the court below; (a)
disregarded material evidence; (b) misread such evidence; (c) received such
evidence illegally."
As on all the points argued, the latest juristic approach has been
referred which leaves no room for a separate discussion on the case law
referred to by both the parties. Therefore, we are of the view that the trial
Court has passed the acquittal order after due appreciation of the material
brought on record. The Shariat Court has also maintained the acquittal order
after making the required deliberation. Both the judgments recorded by
Courts below are well reasoned and passed after appreciation of evidence.
The appellant has failed to point out any material illegality, irregularity or
violation of any statutory provision of law, therefore, finding no force, this
appeal stands dismissed.
HBT/43/SC(AJ&K)
dismissed.
2014 S C M R 1689
[Supreme Court of Pakistan]
Present: Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ
MUREED HUSSAIN---Appellant
Versus
Appeal
The STATE through Prosecutor-General Sindh---Respondent
Criminal Appeal No.58-K of 2013, decided on 21st August, 2014.
(On appeal against the judgment of the High Court of Sindh, Karachi
dated 9-9-2013 passed in Criminal Appeal No.267 of 2011)
Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-e-amd---Reappraisal of evidence---Benefit of doubt--Contradictions between version of complainant and prosecution witnesses--Presence of complainant and prosecution witnesses at scene of occurrence
doubtful---Effect---Accused allegedly fired at and murdered the deceased--Trial Court convicted accused under S.302(b), P.P.C and sentenced him to
imprisonment for life---High Court dismissed appeal filed by accused against
his conviction---Validity---Contradictions existed between the version of
complainant and prosecution witnesses in relation to the incident--Complainant admitted before the investigating officer that during the incident
he had fired in the air, however prosecution witnesses stated that it was the
co-accused who fired in the air---Co-accused was let off during investigation
and was never charged---Weapon and crime empties were recovered on

different dates and kept in police custody, where after they were sent for
forensic tests---Results of forensic tests would be inconclusive in such
circumstances---Record showed that prosecution witnesses were not eyewitnesses of the occurrence and came to the scene after the fatal shot had
been fired---Presence of complainant at the scene of occurrence was also
doubtful---Benefit of doubt had to be given to the accused in such
circumstances---Appeal was allowed and accused was acquitted of the
charge.
Habib Ahmed, Advocate Supreme Court and Mazhar Ali B. Chohan,

Advocate-on-Record for Appellant.
Saleem Akhtar, Additional P.-G. Sindh for Respondent.
Complainant in person.
Date of hearing: 6th August, 2014.
JUDGMENT
SARMAD JALAL OSMANY, J.---This Appeal impugns the judgment of the

learned Sindh High Court in Criminal Appeal No.267 of 2011 filed by the
appellant against his conviction under section 302(b), P.P.C. and subsequent
sentence of life imprisonment along with fine of Rs.50,000 imposed by the
learned trial Court. Vide impugned judgment said appeal was dismissed and
the judgment of the learned trial Court was maintained.
2.
Briefly stated the facts of the prosecution case are that the
complainant Ghulam Hussain on 2-9-2006 at about 8-15 a.m. along with his
brother Shahdad had gone to their land to take the turn of irrigation water.
While Shahdad was opening the water course, the appellant Mureed Hussain
armed with a pistol and his brother Fazal Karim armed with a gun came there.
Mureed Hussain asked Shahdad that how he had taken the turn of irrigation
water and hence he would be killed. Mureed Hussain thereafter fired from his
pistol at Shahdad who fell down and Fazal Karim also fired in the air. The
complainant raised cries which attracted Khadim Hussain Banbhan and Abdul
Rehman Chandio at which the accused persons ran away. The complainant
thereafter took his brother to the hospital but he succumbed to the injury on
way. Then he left the P.Ws. over the dead body in the hospital and went to
lodge the F.I.R. at Police Station Mirwah.
3.
Mr. Habib Ahmed, learned Advocate Supreme Court in support of the
Appeal has firstly submitted that there are a number of contradictions
between the F.I.R. and the deposition of the eyewitnesses before the trial
Court as well as their 164, Cr.P.C. statements recorded before the concerned
Magistrate. In this connection he has firstly pointed out that in the F.I.R. it is
nowhere mentioned that the appellant opened fire from the house of one
Siddiq Punjabi while standing under a Baboor tree, but before the learned trial
Court the complainant says so. Furthermore, in his deposition the
complainant says that he and P.W. Abdul Rehman took the deceased to Thari
Mirwah Hospital. However, according to the postmortem report the dead
body was taken by the complainant and Atta Muhammad. Similarly, per the
complainant accused Fazal Karim had fired shots in the air from his gun and
the police secured the empty cartridges from the same area. However, per
the I.O. P.W. SIP Ghulam Shabbir the complainant had disclosed to him that he
had made aerial firing from his gun and although the gun was available with
the complainant it was never sent to the FSL Laboratory for the purpose of
matching with the empties secured from the place of incident which only
points to the mala fides of the I.O. In this regard learned Advocate Supreme
Court has submitted that the complainant himself is a police official and
hence he has influenced the course of investigation. Coming to the deposition
of P.W. Abdul Rehman Chandio, learned Advocate Supreme Court has
submitted that on the day of incident he was sitting in his house and came
out upon hearing a commotion and saw that Shahdad and appellant Mureed
Hussain were abusing each other. Mureed was standing inside the hedge of
the house of same Punjabi, whose name he did not remember, when he
heard a fire shot at which Shahdad fell down inside the Canal and he was
taken out from there by Ghulam Hussain. P.W. Atta Muhammad also came
there after a while and both he and Ghulam Hussain took Shahdad in an
injured condition on a motorcycle to Thari Mirwah. As against this learned
Counsel submitted that in his 164, Cr.P.C. statement P.W. Abdul Rehman
stated that the complainant Ghulam Hussain reached the place of incident
after appellant had shot the deceased. So also this witness does not say that
P.W. Khadim Hussain was present at the spot. As regards P.W. Khadim
Hussain, learned Advocate Supreme Court submitted again that per his
deposition before the trial Court he came out from his house after the
incident and that P.W. Abdul Rehman and complainant Ghulam Hussain took
the deceased to the hospital. He further admits in his cross-examination
that he and P.W. Abdul Rehman came out of their respective houses after
they heard the fire shot. Learned Advocate Supreme Court has also pointed
out that in his 164, Cr.P.C. statement before the concerned Magistrate he
stated that the complainant as well as P.W. Abdul Rehman came to the place
of incident after the fire shot.
4.
In view of the foregoing contradictions in the eye-witness account,
learned Advocate Supreme Court has submitted that they cannot be relied
upon and hence what transpired at the place of incident is shrouded in
mystery. Consequently the appellant is to be given the benefit of doubt and
acquitted. Alternatively learned Advocate Supreme Court has submitted that

there may have some altercation between the appellant and Deceased over
the turn of water at which the Deceased opened fire at the appellant and he
in order to save his life hid in the house of Siddiq Punjabi and fired back at
the Deceased in self defence. Per learned Advocate Supreme Court; this line
of reasoning is most attractive to the prudent mind, because it is not at all
logical that the appellant while facing an unarmed person would run away to
a house and take the shelter of a tree and then fire at the Deceased.
Consequently, it was a case of self defence and although such plea was not
taken in his examination under section 342, Cr.P.C. by the appellant yet this
can be taken into account per well settled law for which proposition he has
cited Muhammad Yousaf v. The State (1994 SCMR 1733) and The State v.
Muhammad Riaz and another (1999 PCr.LJ 232).
5.
On the other hand Mr. Saleem Akhtar, learned Additional ProsecutorGeneral Sindh has fully supported the impugned judgment. According to him
in the 164, Cr.P.C. statements of both the P.Ws. Khadim Hussain and Abdul
Rehman, the presence of the complainant and other prosecution witnesses
are shown at the scene of the crime. He has further submitted that according
to Article 121 of the Qanun-e-Shahadat Order, 1984 any plea taken by the
accused must be proved by him. In this case the accused never took the plea
of self-defence and hence same cannot be taken into consideration.
6.
The complainant who is present in person has also fully supported the
impugned judgment and the arguments of the learned APG. He has further
submitted that the pistol which was recovered at the pointation of the
appellant was matched with the empty recovered at the place of incident
which points to only one conclusion that it was the appellant who had shot
the Deceased.
7.
In rebuttal, Mr. Habib Ahmed, learned Advocate Supreme Court has
submitted that the empty of the pistol was recovered on the day of incident
on 2-9-2006, whereas the pistol was recovered on 7-9-2006 but they were
both sent together to the FSL Laboratory on 13-10-2006. Consequently, per
well-settled law the positive report of matching is inconsequential and
cannot be used as a piece of evidence against the appellant.
8.
APG.
We have heard learned Advocate Supreme Court as well as learned
9.
It would be seen that indeed the prosecution case as unfolded by the
eye-witness account is full of contradictions since according to the
complainant Ghulam Hussain he along with the Deceased were present at the
place of incident and that the other eye-witnesses P.Ws. Abdul Rehman and
Khadim Hussain came running to the spot after the shot had been fired by
the appellant. However, P.W. Abdul Rehman in his examination-in-chief says
that he only saw the complainant Ghulam Hussain taking out the Deceased
from the Canal where he had fallen. Similarly, P.W. Khadim Hussain in his
examination-in-chief says that he saw the appellant firing from the house of
Siddiq Punjabi, but in the next breath he says that he came out of his house
after the fire shot and so also under cross examination he admits that he and
Abdul Rehman came out of their houses after they heard the fire shot.
Similarly, in his statement under section 164, Cr.P.C. he stated that he saw
the appellant firing from/Siddiq Punjabi's house at the Deceased and also that
the complainant and P.W. Abdul Rehman came there after the incident had
taken place.
10.
It would also be seen that according to the I.O., the complainant had
admitted before him in his 161, Cr.P.C. statement that he (complainant) had
fired in the air and that the empties were from his shotgun. He had given the
license of the shotgun to the I.O., who exhibited the same. However, this has
been not at all been stated by the prosecution witnesses according to whom
it was co-accused, who had fired in the air. In this connection it is also
instructive to note that the co-accused was let off during investigation
and he was never charged before the learned trial Court. Similarly, it
would be seen that so far as matching of the empty recovered at the
spot with the pistol recovered from the accused is concerned, the same were
recovered on different dates and kept in police custody and sent after a
month for the forensic test in which event the same is inconclusive per well
settled law.
11.
In view of the foregoing discussion we are of the opinion that both the
complainant and the eye-witnesses have not given a true and forthright
account of the events which unfolded at the scene of crime. It is evident that
at least P.Ws. Abdul Rehman and Khadim Hussain were not the eye-witnesses
and had come to the scene after the shot had been fired. In so far as the
complainant Ghulam Hussain again it is quite doubtful whether he was
present at the scene since not only this is countered by the other eyewitnesses, but he himself has given a false account of the events as regards
the involvement of the co-accused in the matter as admitted before the I.O.
that the empties belonged to his gun as he had made aerial firing.
Consequently, what transpired on the day of incident is shrouded in mystery
in which event the appellant has to be given the benefit of doubt. Hence we
while allowing this Appeal would acquit the appellant. He shall be released
from custody if not required in any other case.
MWA/M-42/SC
allowed.
Appeal
2014 S C M R 1227
Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar
Ahmed, JJ
ZAFAR IQBAL and others---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.491 of 2009, decided on 22nd October, 2013.
(On appeal from the order dated 4-6-2009, passed by the Lahore High
Court, Lahore in M.R. No.676 of 2003 and Criminal Appeal No.1424 of 2003)
----S. 302---Qatl-e-amd---Evidence---Related witness---Principle---Mere

relationship of prosecution witnesses with deceased cannot render their
evidence unreliable unless it is established that they had motive to implicate
accused falsely.
----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Triple murder---False

implication---Motive---Sentence, reduction in---Trial Court out of ten accused
convicted five accused and sentenced them to death, while five accused were
acquitted of the charge---Plea raised by accused was that due to enmity,
complainant had falsely involved accused in the case---Validity---Two crime
empties recovered from place of occurrence were fired from recovered .44
bore rifle and .8 mm bore rifle and that blood-stained earth and hatchet were
stained with human blood---Rifle .7 mm was also recovered but no empty of
the same was recovered from the place of occurrence---Sufficient

corroboratory evidence had come on record to connect accused with
commission of crime i.e. murder of three persons and Supreme Court
disbelieved theory of conspiracy---Real motive as propounded in prosecution
version was against one of the deceased, who had beaten one accused---Was
not understandable as to why all accused having murdered the main person
covered a long distance and murdered his two sons also---Something very
obnoxious might have happened at place of occurrence of which neither
prosecution had given any evidence nor the same had come out from the
side of defence---Immediate circumstance or cause of happening of events,
which culminated into murder of three persons altogether shrouded in
mystery--- Sufficient extenuating circumstances existed on the basis of which
accused could not be made liable to maximum punishment provided under
S.302(b), P.P.C. and converted death sentence into imprisonment for life--Appeal was allowed partly.
Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859; Mir
Muhammad alias Miro v. The State 2009 SCMR 1188; Israr Ali v. The State
2007 SCMR 525; Haroon-ur-Rahman alias Noni and others v. The State 1994
SCMR 1155; Muhammad Yaqoob v. The State 2009 SCMR 1273; Khawand
Bakhsh and others v. The State and others PLD 2000 SC 1 and Hasil Khan v.
The State and others 2012 SCMR 1936 ref.
Ch. Muhammad Khalid Dogar, Advocate Supreme Court for

Appellants.
Ch. Zubair Ahmed Farooq, Additional P.-G. Punjab for the State.
Date of hearing: 28th May, 2013.
JUDGMENT
GULZAR AHMED, J.---The appellants Muhammad Idrees his three sons

Asghar Iqbal, Zafar Iqbal, Munawar Iqbal and his son-in-law Iftikhar son of
Abdul Majeed were convicted by the learned Sessions Judge, Gujranwala vide
judgment dated 15-7-2003 under sections 302(b) and 149, P.P.C. and
sentenced to death and were ordered to pay compensation of Rs.100,000
each to the legal heirs of the deceased persons under section 544-A, Cr.P.C.
and in default whereof to undergo six (6) months imprisonment. They were
also convicted under section 148, P.P.C. and sentenced to suffer three years'
R.I. each. The remaining accused, namely, Abdul Majeed, Mst. Maqsoodan,
Nisar Ahmed, Zulfiqar Ahmed and Abdul Khaliq @ Khalid were given benefit
of doubt and acquitted of the charge under sections 109/302, P.P.C. The
appellants had challenged the judgment of the learned trial Court by filing
Criminal Appeal No.1424 of 2003 in the Lahore High Court, Lahore. The
learned Division Bench of the Lahore High Court, Lahore vide impugned
judgment dated 4-6-2009 dismissed the said appeal and the Murder
Reference No.676 of 2003 was answered in affirmative.
2.
Vide order dated 10-9-2009, this Court has granted leave to appeal to
reappraise the evidence in the interest of criminal justice.
3.
Facts of the matter are that Mst. Maqsoodan Bibi, complainant (P.W.3)
wife of Jaffar Hussain (deceased) and mother of Abdaal Hussain and Abrar
Hussain (deceased) reported to the police that she was resident of Mouza
Mian Ali Dogran, however for the last about three years she along with her
husband and family were living in the house of Muhammad Idrees, who was
the elder brother of her husband in Mian Kot Kalian. The deceased persons
used to cultivate land in Mian Kot Kalian on Hissa Batai from Abbas Shah. She
also stated that since due to domestic quarrel with Muhammad Ashraf son of
Ashiq Ali Dogar about three years before her Jaith (elder brother of her
husband) had brought them to his house in Mian Kot Kalian and had engaged
Mst. Shabana his daughter with Abdaal Hussain. However, subsequently
refused her hand to Abdaal Hussain and later on married Mst. Kalsoom Bibi,
his younger daughter to Abrar Hussain and the said marriage took place a
year before and Mst. Kalsoom Bibi was living happily in their house while
Muhammad Idrees gave the hand of his daughter Mst. Shabana to Iftikhar
Hussain son of Abdul Majeed and the marriage took place about 18/20 days
prior to the occurrence. She stated that Abrar Hussain was beaten up by the
sons of Abdul Majeed, namely, Iftikhar and Zulfiqar on the occasion of the
said marriage, whereafter her husband Jaffar Hussain had given beating to
Iftikhar Hussain, who was Bhanja/nephew of Jaffar Hussain. The matter was
being patched up through negotiations with the intervention of the relatives
when Abdul Majeed, his wife Mst. Maqsoodan and his sons namely Iftikhar
and Zulfiqar, Muhammad Idrees and his sons namely Zafar Iqbal, Munawar
Iqbal and Asghar Iqbal and the other relatives namely Nisar and Khalid,
planned to teach lesson to Jaffar Hussain for beating Iftikhar and on the next
morning her husband and two sons went to the Dera while she in the
company of Muhammad Arif (her Daiver) and Mazhar Hussain, P.Ws. along
with her daughter Mst. Javeria Bibi were going to the Dera at about 7-00 a.m.
for taking breakfast for her husband and two sons. Her husband was coming
towards the village with milk from the Dera whereas Muhammad Idrees
armed with rifle, Khalid son of Abdul Majeed armed with rifle, Zafar son of
Muhammad Idrees armed with hatchet, Asghar son of Muhammad Idrees
armed with rifle, Iftikhar son of Abdul Majeed armed with rifle, Munawar son
of Muhammad Idrees armed with rifle ambushed the husband of the
complainant by concealing themselves in the Shatala crop on the pretext of
harvest and then stopped Jaffar Hussain on the road. Muhammad Idrees fired
with rifle, which hit on the head of the husband of the complainant near the
ear. Second fire was made by Iftikhar son of Abdul Majeed, which hit on the
head of Jaffar Hussain and he fell down. Zafar inflicted two hatchet blows on
the head of Jaffar Hussain, which resulted into opening of his skull and when
the complainant and the prosecution witnesses requested the appellants and
others to leave Jaffar Hussain, all the appellants and co-accused went
towards the Dera of the complainant party and then Asghar fired with his rifle
on Abdaal Hussain on his left ear and made exit from the other side. Munawar
Iqbal fired, which hit Abrar Hussain on his neck, which went out of the right
side of the ear, whereafter appellant Iftikhar fired with his rifle, which hit
Abdaal Hussain near the left side of chest and made exit on the right flank.
Both Abdaal Hussain and Abrar Hussain fell on the ground and died at the
spot. On the same day of occurrence i.e. 19-4-2000 at 8-50 a.m., F.I.R. No.175
was registered under sections 302, 148, 149 and 109, P.P.C. at Police Station
Alipur Chatha, District Gujranwala.
4.
Learned counsel for the appellants has contended that deceased
Jaffar Hussain had enmity with certain persons in his village Mouza Mian Ali
Dogran on account of which his elder brother Muhammad Idrees (appellant
No.4) shifted Jaffar Hussain (deceased) along with his family in his own house
in Mian Kot Kalian. He contended that the appellants have not committed the
murder of deceased Jaffar Hussain and his two sons Abdaal Hussain and
Abrar Hussain. He contended that the evidence of P.Ws. Mst. Javeria and Mst.
Maqsoodan Bibi was not reliable as both are closely related to the deceased
and that there was no independent corroboration of their evidence and even
P.W. Muhammad Arif had not supported the case of prosecution while P.W.
Mazhar Hussain has not been produced. He contended that there was an
improvement in the evidence of P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi,
as accused Khalid who was not ascribed any role in the F.I.R. was stated to
have caused fire arm injury to both the deceased Abdaal Hussain and Abrar
Hussain. He contended that there being enmity between the complainant
party and the appellants, they have been falsely roped in the crime.
5.
On the other hand, learned Deputy/Prosecutor-General, Punjab, has
contended that P.Ws. have no reason to falsely implicate the appellants, who
are their close relatives. He further contended that crime empties, which
were recovered from the scene of offence matched with the recovered crime
weapons. The hatchet was found smeared with human blood and the ocular
evidence being straightforward did not require any corroboration and both
the courts below in their judgments have believed the ocular account
furnished by both the P.Ws. Mst. Maqsoodan Bibi and Mst. Javeria.
6.
We have considered the submission of the learned counsel and have
gone through the record.
7.
It is a case where three persons namely Jaffar Hussain and his two
sons Abdaal Hussain and Abrar Hussain were done to death. The occurrence
was witnessed by P.Ws. Mst. Maqsoodan Bibi and Mst. Javeria, Muhammad
Arif and Mazhar Hussain. The offence took place on 19-4-2000 at 7-00 a.m.
F.I.R. of which was lodged by P.W. Mst. Maqsoodan Bibi, complainant on the
same day at 8-50 a.m. while the police station was at the distance of 5 miles
from the place of occurrence. P.W. Mst. Maqsoodan Bibi, the complainant is
widow of deceased Jaffar Hussain and mother of deceased Abdaal Hussain
and Abrar Hussain. P.W. Mst. Javeria is the daughter of deceased Jaffar
Hussain and sister of deceased Abdaal Hussain and Abrar Hussain. P.W.
Muhammad Arif is the brother of deceased Jaffar Hussain. P.W. Mazhar
Hussain is not shown to have any relation with the complainant party.
Appellants Nos.1, 2 and 3 are sons of appellant No.4 Muhammad Idrees and
are the nephews of P.W. Mst. Maqsoodan Bibi, complainant. Muhammad
Idrees is the Jaith of complainant P.W. Mst. Maqsoodan Bibi, being elder
brother of her deceased husband Jaffar Hussain. Appellant No.5 is the nephew
and son-in-law of Muhammad Idrees. He is the son of Abdul Majeed and Mst.
Maqsoodan, the latter being the sister of deceased Jaffar Hussain, appellant
Muhammad Idrees and P.W. Muhammad Arif. From the above, it appears that
both complainant party and the appellants are very closely related to each
other.
8.
The conflict as described by P.W. Mst. Maqsoodan Bibi, complainant,
was that appellant No.4, Muhammad Idrees has agreed to marry his daughter
Mst. Shabana to the son of complainant Abdaal Hussain (deceased).
Subsequently, appellant No.4, Muhammad Idrees refused to marry his

daughter Mst. Shabana to Abdaal Hussain (deceased) and later on married
his younger daughter Mst. Kalsoom to another son of the complainant Abrar
Hussain (deceased). Mst. Shabban was married to appellant No.5, Iftikhar and
on the day of such marriage, Abrar Hussain (deceased) was beaten by Iftikhar
and Zulfiqar (both sons of Abdul Majeed) on account of which deceased Jaffar
Hussain gave beating to Iftikhar. An effort was made to patch up the matter
between the two parties but it seems that the appellants did not agree for the
same and rather it appears to have gained more heat. The motive part was
explicitly stated in the evidence of both the P.Ws. Mst. Javeria and Mst.
Maqsoodan Bibi, complainant, and the trial Court as well as the High Court
had believed the motive part. Learned counsel for the appellants did not
show us any material from the record, which may discredit these P.Ws. on the
aspect of motive.
9.
In the ocular account furnished by P.Ws. Mst. Javeria and Mst.
Maqsoodan Bibi, the complainant, they have supported the prosecution
version practically on all material aspect of the incident inasmuch as both the
eye-witnesses have ascribed specific role to each of the appellants of causing
injury to each deceased and they have also stood the test of crossexamination and nothing could be extracted from them, which may diminish
the worth of their evidence or create doubt regarding the veracity of their
evidence. It may be noted that both these P.Ws. in their evidence have
explained as to how they came to be present at the place of occurrence i.e.,
they were taking breakfast for the deceased at the Dera of Jaffar Hussain and
this explanation on their part seems to be quite inconsonance with the village
life and was not an extra-ordinary circumstance, which may put a prudent
mind on an inquiry about its possibility or not. The explanation of presence of
these P.Ws. at the place of occurrence has been believed by the learned trial
Court so also by the learned High Court and there seems to be no valid or
justifiable reasons forthcoming from the record to disbelieve this aspect of
the matter nor it was shown by the learned counsel for the appellants.
10.
Having considered the evidence of P.Ws. Mst. Javeria and Mst.
Maqsoodan Bibi, the complainant, who are eye-witnesses of the incident, we

too are in agreement that both these P.Ws. have given account of the incident
as described in the F.I.R. and have corroborated each other on every material
aspect of the case. No doubt both these eye-witnesses have introduced in
their evidence accused Khalid to have caused fire-arm injury to deceased
Abdaal Hussain and Abrar Hussain, which fact was not stated in the F.I.R. and
such part of the evidence of these P.Ws. was not believed by the learned trial
Court, who was acquitted of the charges against him. Similarly, the trial Court
has also not believed conspiracy part of evidence of these P.Ws. and thus
acquitted Abdul Majeed, Mst. Maqsoodan, Nisar Ahmed and Zulfiqar Ahmed
from such charges. The fact that these P.Ws. have implicated Khalid and also
other accused of conspiracy for committing offence having not been believed
by the trial Court will not cause any dent in the prosecution version as to the
extent of the appellants both P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi, the
complainant have taken consistent stand of accusing the appellants in
causing the murder of the three deceased with specific role assigned to each
of the appellants. Mere relationship of these two P.Ws. with deceased cannot
render their evidence unreliable unless it is established that they had motive
to implicate the appellants falsely. These P.Ws. equally were closely related to
the appellants and nothing was brought on record to remotely infer that there
could be false implication. Even otherwise also it cannot be imagined as to
why these P.Ws. will give up the real culprits of killing their near and dear
ones and implicate their own close relatives more particularly when appellant
Mohammad Idrees has been the benefactor of complainant party and has
also given his daughter Mst. Kalsoom in marriage to the son now deceased
Abrar Hussain of the complainant P.W. Mst. Maqsoodan Bibi.
11.
The medical evidence is given by P.W. Dr. Muhammad Yousaf
Chaudhry, (BTO) THQ Hospital, Wazirabad, district Gujranwala, who
conducted post mortem of the three deceased on 20-4-2000 at 11-55 a.m.
and has produced the post mortem report as Exh.PM, Exh.PN and Exh.PO. The
Doctor in his evidence described the injuries on the bodies of the deceased
which materially lend support to the injuries as described by the two eyewitnesses, namely, P.Ws. Mst. Javeria and Mst. Maqsoodan Bibi, complainant.
P.W. Muhammad Arif was also produced and in his examination-in-chief which
was recorded on 18-4-2002, he has fully supported the prosecution case,
however, in his cross-examination which took place on 19-3-2003 i.e. almost
after about one year, he did not stick to his earlier evidence rather gave
major concession to the accused party on account of which the trial Court
discarded his evidence from consideration being not a reliable witness. Nonproduction of P.W. Mazhar Hussain could not be considered to be fatal to the
case. P.W. Maqsoodan Bibi, complainant, has stated that she did not have
confidence in P.W. Mazhar Hussain and this could be the apparent reason for
his non-production in Court by the prosecution. The prosecution version is
that P.W. Mazhar Hussain was an eye-witness of the offence and in case, if he
was not produced by the prosecution, he could have been well produced by
the defence side to give evidence contrary to the prosecution story and also
to state that whether he was present at the time of occurrence or not.
Whether he has witnessed the occurrence or not. This, however, was not
done by the defence side as no evidence in defence was led in the case.
12.
Recoveries of fire arm weapon as well as hatchet were made from the
appellants except appellant Iftikhar. Two empties were also recovered from
the place of occurrence so also blood-stained earth and the blood-stained
clothes of the deceased. The reports of FSL, Chemical Examiner and
Serologist were produced as Exh.PX, Exh.PY, Exh.PZ, Exh.PAA, Exh.PBB,
Exh.PCC, Exh.PDD, Exh.PEE and Exh.PFF, which establish that two crime
empties recovered from the place of occurrence were fired from the
recovered .44 bore rifle and 8 mm bore rifle and that the blood stained earth
and the hatchet were stained with human blood .7 mm rifle was also
recovered but no empty of it was recovered from the place of occurrence.
Sufficient corroboratory evidence has come on record to connect the
appellants with the commission of crime i.e. murder of three persons and
thus we are not inclined to agree with the submission of the learned counsel
for the appellants that the offence of murder of three persons was not
committed by the appellants. The theory of conspiracy has been disbelieved
by the Court below, however, the motive part has been believed.
13.
In their statements under section 342, Cr.P.C., all the appellants have
taken a ditto stand that there was no altercation between the complainant
and accused party on the eve of marriage of Mst. Shabana with appellant
Iftikhar and that it was a night time occurrence and the reason for deposing
of P.Ws. against them was on account of enmity and they have not committed
the murder of deceased. None of the appellants appeared as their own

witness nor did they produce any evidence in defence. There is nothing on
record to support the version of the defence, as stated in their statements
under section 342, Cr.P.C.
14.
The occurrence took place on 19-4-2000 at 7-00 a.m. and its F.I.R. was
lodged on the same day at 8-50 a.m. The Police Station is at about 5 miles
away from the place of occurrence, therefore, there is no delay in lodging the
F.I.R. nor there is any apprehension of misidentification of the appellants. The
post-mortem examination of the deceased was conducted on the next date at
about 11-55 a.m., thus there was no delay in conducting the post-mortem of
the deceased. The medical evidence as well as recovery of crime weapons
materially support the ocular account furnished by P.Ws. Mst. Javeria and
complainant Mst. Maqsoodan Bibi, the reports of FSL, Chemical Examiner and
Serologist also lend support to the prosecution version. Thus it is established
on a record that the appellants have committed the crime in the case in
which three persons have been murdered.
15.
The question of awarding of sentence is required by law to be
adverted to in every criminal case and it is the duty of the Court to always
consider this aspect of the matter while awarding sentence. In the present
case trial Court has awarded death sentence to the appellants, which has
been maintained by the High Court and the murder reference has been
answered in positive. On examination of the record certain facts have come
to light, which needs to be given serious consideration and they probably
have in them material on the basis of which the case of mitigation in
sentences could be found. Although in the ocular account it is alleged that
appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head
and he has also fired at Abdaal Hussain deceased on the left side of his chest
but the prosecution has not been able to secure or recover any firearm from
this appellant. At the same time appellant Asghar Iqbal is alleged to have
fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle.
Although .7 mm rifle was recovered on the pointation of this appellant but no
recovery of empty of this rifle was made from the place of incident and there
is no report of Forensic Science Laboratory (FSL) of connecting the

recovered .7 mm rifle with the two crime empties recovered from the place of
incident. It is also noted that the real motive as propounded in the
prosecution version was against deceased Jaffar Hussain in that he was the
one, who has beaten appellant Iftikhar. The motive being against deceased
Jaffar Hussain, it is not understandable as to why the appellants after having
murdered Jaffar Hussain will proceed covering distance and murder Jaffar
Hussain's two sons, namely, Abdaal Hussain and Abrar Hussain. This will go
to show that something very obnoxious may have happened at the place of
occurrence of which neither the prosecution has given any evidence nor the
same has come out from the side of defence. Thus the immediate
circumstance or cause for the happening of the events, which culminated into
the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and
Abrar Hussain are altogether shrouded in mystery.
16.
In the case of Mst. Bevi v. Ghulam Shabbir and another (1980 SCMR
859), this Court has held that in some cases the principle underlying the
concept of benefit of doubt can in addition to the consideration of question of
guilt or otherwise, be pressed also in matter of sentence. Similar view was
also expressed by this Court in the case of Mir Muhammad alias Miro v. The
State (2009 SCMR 1188). In the case of Israr Ali v. The State (2007 SCMR
525), a judgment of a learned Shariat Appellate Bench of this Court apart
from other sentences the appellant was awarded death sentence under
section 12 of Offence of Zina (EON) Ordinance, 1979. The Court in this case
has observed as follows:--
"This bring us to the question of sentence more particularly that

appellant/convict to whom death has been awarded, since in criminal cases,
the question of sentence demands the utmost care on the part of the Court
dealing with the life and the liberties of the people and that the accused
persons are also entitled to extenuating benefit of doubt on the question of
sentence. We have examined this question in the light of all the
circumstances surrounding the guilt. We find mitigating/extenuating
circumstance in favour of the appellant for lesser penalty in as much as, the
prosecution had failed to connect the convict with the circumstances of

photographs recovered from the spot and the photographs recovered from
the bag of the convict because there was no photograph of the deceased in
the said photographs as mentioned above. Photograph of one Hafeez was
found who was not associated by the police in the investigation. The benefit
of doubt can be pressed also in matter of sentence as law laid down by this
Court in Mst. Bevi's case 1980 SCMR 859."
17.
The Court further observed in para 8 of its judgment as follows:--
"It is pertinent to mention here that this provision does not spell out
the circumstances in which either of the two punishments is to be awarded
and as such it has been left for the superior courts to lay down guidelines for
awarding either of the punishment. Unamended section 302, P.P.C. shows that
a Judge is not required to give reasons for imposing death sentence for
murder as that was considered to be the proper sentence for murder but if he
imposed a lesser punishment he was required to give reasons for it as law
laid down by this Court in Piran Ditta' case PLD 1976 SC 300. Now after the
said amendment in section 302, P.P.C. will be little different as a Judge while
awarding either of the two sentences will have to give reasons meaning
thereby the learned Judge has to award the death penalty or life
imprisonment after judicial application of mind with reasons. The purpose and
object of the amendment is based on the principles of Islamic Criminal Law
introduced and enforced through Criminal Law (Second Amendment)
Ordinance, 1990 (Ordinance VII of 1990) promulgated from time to time since
1990 in view of section 338-F of P.P.C. as in Islam except for just cause and
reason, a life cannot be taken away or in other words put to an end."
18.
In the case of Haroon-ur-Rahman alias Noni and others v. The State
(1994 SCMR 1155), the circumstances that no recovery was made from one
of the appellant was considered for extending of benefit of doubt to him. In

the case of Muhammad Yaqoob v. The State (2009 SCMR 1273), it was
observed that although the accused was stated to be armed with .222 rifle
and crime empties of the same calibre were also recovered from the spot, yet
during investigation a .7 mm licenced rifle was recovered from him, which to
some extent weighed against the prosecution and a circumstance akin to the
mitigating circumstance in his favour. Furthermore in the case of Khawand
Bakhsh and others v. The State and others (PLD 2000 SC 1), where number of
criminal appeals were being considered from the judgment of Special Judge
for Suppression of Terrorist Activities Court, who has awarded death sentence
under section 302 read with section 120/B/34, P.P.C. and the High Court, while
setting aside the conviction and sentence of one of the appellant maintained
the conviction and sentence of the other accused, this Court has observed as
follows:--
"However, the case of Khair Jan (appellant No.3 in Criminal Appeal

No.249 of 1996) appears to be distinguishable from Khawand Bakhsh and
Sabz Ali appellants because the rifle recovered from him was not found to
have matched with any of the crime empties recovered from the spot but was
only found to have been fired without specifying the period its use, therefore,
considering it to be an extenuating circumstance, we think that the ends of
justice will be met if he is awarded the lesser sentence provided for the
offence of murder."
19.
As regards the question of motive being only against Jaffar Hussain
deceased but his two sons namely, Abdaal Hussain and Abrar Hussain
deceased were also made victim of the said motive, this factor will give to an
inference that the immediate motive behind the occurrence remained
shrouded in mystery. In the case of Hasil Khan v. The State and others (2012
SCMR 1936), this Court has observed as follows:--
"However, coming to the question of enhancement of sentence by the

learned High Court, we find that the learned High Court did not appreciate
that the motive alleged in the F.I.R. was rather weak and there was no reason
why Saeed Bakhsh, deceased, should have been the victim of the said motive
part of the prosecution story. Moreover, as rightly observed by the learned
Trial Court the immediate motive remained shrouded in mystery and the Trial
Court rightly did not award the maximum sentence of death provided under
section 302(b), P.P.C. to the appellant."
20.
All the above factors in the light of the law laid down by this Court as
discussed above lead us to the conclusion that there are sufficient
extenuating circumstances, on the basis of which the appellants could not be
made liable to the maximum punishment provided under section 302(b),
P.P.C., rather the ends of justice would be met, if their death sentence is
converted into imprisonment for life. While maintaining the conviction of the
appellants and modifying the sentence from death to life imprisonment and
maintaining other sentences with benefit of section 382-B, Cr.P.C., this appeal
is partially allowed in the above terms.
MH/Z-4/SC
accordingly.
2014 S C M R 1197
Order
Present: Asif Saeed Khan Khosa and Gulzar Ahmed, JJ
Mst. SHAZIA PARVEEN---Appellant
Versus
Criminal Appeal No.51 of 2010, decided on 7th April, 2014.
(Against the judgment dated 21-7-2009 passed by the Lahore High

Court, Multan Bench, Multan in Criminal Appeal No.316-J of 2006)
----S. 302(b)--- Qatl-e-amd---Reappraisal of evidence---Benefit of doubt--Chance eye-witnesses closely related to the deceased---Non-mentioning of
source of light---Medical evidence contradicting ocular account of witnesses--Effect---Accused-female was convicted under S.302(b), P.P.C. for murdering
her husband/deceased, and was sentenced to imprisonment for life--Validity---Incident took place inside the house at about 10-30 p.m., but no
source of light at the spot had been disclosed or shown anywhere on the
record---Prosecution eye-witnesses were closely related to the deceased and
were admittedly chance witnesses who had failed to bring anything on record
to establish the stated reason for their availability near the deceased at the
time of the incident---Such related witnesses failed to receive any
independent corroboration inasmuch as there was no independent evidence
produced regarding the alleged motive---Alleged recovery of rope was legally
inconsequential---Medical evidence had gone a long way in contradicting the
eye-witnesses---Duration of injuries and death recorded by the doctor in the
post-mortem examination report rendered the time of death alleged by the
eye-witnesses quite doubtful---Stomach contents (of deceased) belied the
eye-witnesses regarding time of occurrence---Negative report of chemical
examiner showed that no poison or intoxicant had been detected inside the
body of the deceased which squarely contradicted the eye-witnesses--Prosecution failed to prove its case against accused beyond reasonable
doubt---Conviction and sentence of accused recorded and upheld by courts
below was set aside and she was acquitted of the charge by extending her
benefit of doubt---Appeal was allowed accordingly.
Muhammad Zaman Bhatti, Advocate-on-Record for Appellant.
Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the

State.
Date of hearing: 7th April, 2014.
JUDGMENT
ASIF SAEED KHAN KHOSA, J.---For the murder of her husband namely
Mumtaz Ahmad alias Taj during the night between 8/9-4-2006 in Chak No.
427/6-R Mst. Shazia Parveen appellant was booked in case F.I.R. No. 134
registered at Police Station Faqeerwali, District Bahawalnagar on 9-4-2006 for
an offence under section 302, P.P.C. After a full-dressed trial she was
convicted for an offence under section 302(b), P.P.C. vide judgment dated 169-2006 handed down by the learned Additional Sessions Judge, Haroonabad,
District Bahawalnager and was sentenced to imprisonment for life and to pay
a sum Rs.50,000 to the heirs of the deceased by way of compensation under
section 544-A, Cr.P.C. or in default of payment thereof to undergo simple
imprisonment for six months. The benefit under section 382-B, Cr.P.C. was
extended to her. The appellant challenged her conviction and sentence
before the Lahore High Court, Multan Bench, Multan through Criminal Appeal
No. 316-J of 2006 which was heard and dismissed by a learned Judge-inChamber of the said Court vide judgment dated 21-7-2009. Hence, the
present appeal by leave of this Court granted on 13-1-2010.
2.
We have heard the learned counsel for the parties and have gone
through the record of the case, with their assistance.
3.
The facts of this case as well as the evidence produced before the
learned trial Court find an elaborate mention in the judgments passed by the
learned courts below and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
4.
It has straightway been observed by us that the incident in issue had
taken place at about 10-30 p.m. inside the house wherein the appellant and
her husband were living and no source of light at the spot had been disclosed
or shown anywhere on the record. All the eye-witnesses produced by the
prosecution were closely related to the deceased and they were admittedly
chance witnesses who had failed to bring anything on the record to establish
the stated reason for their availability near the deceased at the relevant time.
Such related witnesses had failed to receive any independent corroboration
inasmuch as there was no independent evidence produced regarding the
alleged motive, the alleged recovery of a rope was legally inconsequential
and the medical evidence had gone a long way in contradicting the eyewitnesses in many ways. The duration of the injuries and death recorded by
the doctor in the Post-mortem Examination Report had rendered the time of
death alleged by the eye-witnesses quite doubtful, the stomach contents
belied the eye-witnesses regarding the time of occurrence and the negative
report of the Chemical Examiner showed that no poison or intoxicant had
been detected inside the body of the deceased which squarely contradicted
the eye-witnesses. In these circumstances it could not have been held by the
learned courts below that the prosecution had succeeded in establishing the
appellant's guilt beyond reasonable doubt.
5.
For what has been discussed above we have reached an inescapable
conclusion that the prosecution had failed to prove its, case against the
appellant beyond reasonable doubt. This appeal is, therefore, allowed, the
conviction and sentence of the appellant recorded and upheld by the learned
courts below are set aside and she is acquitted of the charge by extending
the benefit of doubt to her. She shall be released from the jail forthwith if not
required to be detained in connection with any other case.
MWA/S-12/SC
allowed.
2014 S C M R 1178
Present: Asif Saeed Khan Khosa and Gulzar Ahmed, JJ
AZMAT ULLAH---Appellant
Appeal
Versus
Criminal Appeal No.32 of 2010, decided on 7th April, 2014.
(Against the judgment dated 16-9-2009 passed by the Lahore High

Court, Lahore in Criminal Appeal No.232-J of 2007)
----Ss. 302(b) & (c)---Qatl-e-amd---Reappraisal of evidence---Conviction under

S. 302(b), P.P.C. converted into S. 302(c), P.P.C.---Sentence, reduction in--Sudden fight/quarrel---Lack of premeditation and ill-will---Single knife blow--Effect---Accused allegedly caused fatal knife injuries to his deceased-brother
due to a sudden quarrel between them---Accused was convicted under S.

302(b), P.P.C. and was sentenced to 25 years imprisonment along with a fine
of Rs. 100,000---Validity---Perusal of F.I.R., statements of eye-witnesses and
findings of courts below clearly showed that there was no background of any
ill-will or bitterness between the accused and his deceased-brother---Incident
in issue had erupted all of a sudden without any premeditation whatsoever--Medical evidence showed that injuries on the body of deceased could be the
result of one knife blow---Present case was one of sudden quarrel and no
undue advantage had been taken by the accused nor had he acted in a brutal
or unusual manner---Such factors squarely attracted Exception 4 contained in
erstwhile provisions of S.300, P.P.C., thus case against accused fell within the
purview of provisions of S. 302(c), P.P.C.---Conviction of accused under
S.302(b), P.P.C. was converted into S. 302(c), P.P.C., and consequently his
sentence was reduced from rigorous imprisonment for 25 years to rigorous
imprisonment for 10 years---Fine imposed on accused was unwarranted,
because Ss. 302(b) & (c), P.P.C did not contemplate any such sentence--Supreme Court directed that instead of a fine, accused should pay a sum of
Rs. 50,000 to the heirs of deceased by way of compensation under S. 544-A,
Cr.P.C.---Appeal was disposed of accordingly.
Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.
----Ss. 300 & 302(c)---Qatl-e-amd---Sentence---Case falling within the

exceptions contained in erstwhile provisions of S. 300, P.P.C.---Effect---Such
case would attract provisions of S. 302(c), P.P.C. (for purposes of sentence).
Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 302(c)---Qatl-e-amd---Sentence---Imposing a (monetary) fine

on accused---Legality---Sections 302(b) & (c), P.P.C. did not contemplate any
sentence of imposing a fine on accused---Illustration.
Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.
Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the

State.
Date of hearing: 7th April, 2014.
JUDGMENT
ASIF SAEED KHAN KHOSA, J.---Azmat Ullah appellant was booked in

case F.I.R. No. 245 registered at Police Station Sambrial, District Sialkot on 136-2005 in respect of an offence under section 302, P.P.C. and after a fulldressed trial he was convicted for the alleged murder by the learned
Additional Sessions Judge, Daska vide judgment dated 28-8-2007 and was
sentenced to rigorous imprisonment for twenty-five years as Ta'zir and to pay
a fine of Rs.1,00,000 or in default of payment thereof to undergo simple
imprisonment for three years. The benefit under section 382-B, Cr.P.C. was
extended to him. The appellant challenged his conviction and sentence
before the Lahore High Court, Lahore through Criminal Appeal No. 232-J of
2007 which was dismissed by the then Hon'ble Chief Justice of the said Court
vide judgment dated 16-9-2009. Hence, the present appeal by leave of this
Court granted on 15-1-2010.
2.
We have heard the learned counsel for the parties and have gone
through the record of the case with their assistance.
3.
The facts of this case as well as the evidence produced before the
learned trial Court find an elaborate mention in the judgments passed by the
learned courts below and, therefore, the same may not be reproduced here
so as to avoid duplication and unnecessary repetition.
4.
The case of the prosecution is that at the relevant date and time the
appellant and his brother namely Imran suddenly developed a quarrel and on
the basis thereof the appellant was enraged and he caused injuries to the
said brother with a chhurri which injuries led to his death. The F.I.R. in this
case had been lodged by none other than the father of the appellant. In his
statement recorded under section 342, Cr.P.C. the appellant had maintained
that he had caused an injury to his brother namely Imran deceased in
exercise of right of private defence but he had failed to lead any independent
evidence to substantiate and establish the said plea taken by him. Leave to
appeal had been granted in this case to consider as to whether the
circumstances of this case attract the provisions of section 302(b), P.P.C. or of
section 302(c), P.P.C. A bare perusal of the F.I.R., the statements made by the
eye-witnesses before the learned trial Court and the findings recorded by the
learned courts below clearly shows that there was no background of any illwill or bitterness between the appellant and his deceased brother and that
the incident in issue had erupted all of a sudden without any premeditation
whatsoever. The medical evidence shows that the deceased had received one
blow of a chhurri on his chest whereas another blow was received by him on
the outer aspect of his left upper arm. The doctor conducting the postmortem of the deabdody had categorically observed that both the injuries
found on the deadbody of the deceased could be a result of one blow of
chhurri. These factors of the case squarely attract Exception 4 contained in
the erstwhile provisions of section 300, P.P.C. It has already been held by this
Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996
SC 274) that the cases falling in the exceptions contained in the erstwhile
provisions of section 300, P.P.C. now, attract the provisions of section 302(c),
P.P.C. The case in hand was surely a case of lack of premeditation, the
incident was one of a sudden fight which was a result of heat of passion
developed upon a sudden quarrel and no undue advantage had been taken
by the appellant nor had he acted in a brutal or unusual manner. In these
circumstances Exception 4 contained in the erstwhile section 300, P.P.C.
squarely stood attracted to the case in hand and, thus, the case against the
appellant fell within the purview of the provisions of section 302(c), P.P.C.
5.
Keeping in view the facts and circumstances of the case this appeal is
partly allowed, the conviction of the appellant for an offence under section
302(b), P.P.C. is converted into that for an offence under section 302(c), P.P.C.
and consequently his sentence is reduced from rigorous imprisonment for

twenty-five years to rigorous imprisonment for ten years. The sentence of
fine passed against the appellant by the learned trial court and upheld by the
Lahore High Court, Lahore has been found by us to be unwarranted because
section 302(b) or 302(c), P.P.C. do not contemplate any such sentence.
Instead of fine we direct that the appellant shall pay a sum of Rs. 50,000 to
the heirs of the deceased by way of compensation under section 544-A,
Cr.P.C. or in default of payment thereof he shall undergo simple imprisonment
for six months. The benefit under section 382-B, Cr.P.C. shall be extended to
him. This appeal is disposed of in these terms.
MWA/A-5/SC
accordingly.
Order
2014 S C M R 1034
Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Dost Muhammad Khan, JJ
Criminal Appeal No.413 of 2003
GHULAM MOHY-UD-DIN alias HAJI BABU and others---Appellants
Versus
Criminal Appeal No.414 of 2003
Haji MUHAMMAD SADIQ---Appellant
Versus
LIAQUAT ALI and others---Respondents
Criminal Appeals Nos.413 and 414 of 2003, decided on 18th February, 2014.
(On appeal from the judgment dated 29-10-2001 passed by the

Lahore High Court, Lahore in Criminal Appeal No.202 of 1996 and Criminal
Revision 245 of 1996 and Murder Reference No.379 of 1998)
----S. 302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for

life---Alternative sentences---Scope---Once the legislature had provided for
awarding alternative sentence of life imprisonment, it would be difficult to
hold that in all the cases of murder, the death penalty was the normal
penalty and should ordinarily be awarded---If the intent of the legislature was
to take away the discretion of the court, then it would have omitted from S.
302(b), P.P.C. the alternative sentence of life imprisonment--- Sentence of
death and life imprisonment were alternative to one another, however,
awarding one or the other sentence essentially depended upon the facts and
circumstances of each case.
Hassan and others v. The State and others PLD 2013 SC 793 ref.
(b) Islamic jurisprudence---
----Crime and punishment---Extra degree of care and caution---Justice with

mercy---Scope---Fundamental principles of Islamic jurisprudence on criminal
law was to do justice with mercy, being the attribute of Allah Almighty---On
earth such attribute had been delegated and bestowed upon the Judges,
administering justice in criminal cases, therefore, extra degree of care and
caution was required to be observed by the Judges while determining the
quantum of sentence, depending upon the facts and circumstances of
particular case/cases.
----S. 302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for

life---Single mitigating circumstance---Sufficient to award life imprisonment
instead of death penalty--- Single mitigating circumstance, available in a

particular case, would be sufficient to put on guard the Judge not to award
the penalty of death but life imprisonment---If a single doubt or ground was
available, creating reasonable doubt in the mind of court/Judge to award
either death penalty or life imprisonment, it would be sufficient circumstance
to adopt alternative course by awarding life imprisonment instead of death
sentence---No clear guideline, in such regard could be laid down because
facts and circumstances of one case differed from the other, however, it
became the essential obligation of the Judge in awarding one or the other
sentence to apply his judicial mind with a deep thought to the facts of a
particular case---If the Judge/Judges entertained some doubt, albeit not
sufficient for acquittal, judicial caution must be exercised to award the
alternative sentence of life imprisonment, lest an innocent person might not
be sent to the gallows---Better to respect human life, as far as possible,
rather than to put it at end, by assessing the evidence, facts and
circumstances of a particular murder case, under which it was committed.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl-e-amd---Common intention---Reappraisal of

evidence---Sentence, reduction in---Mitigating circumstances---Motive alleged
for murder too feeble or remaining unproved---Effect---Sufficient to reduce
death sentence to life imprisonment---Accused and co-accused were alleged
to have inflicted dagger blows to the deceased during the occurrence---Trial
Court convicted accused and co-accused under Ss. 302(b) & 34, P.P.C. and
sentenced them to death as Ta'zir on two counts---High Court confirmed
death sentence awarded by Trial Court---Validity---Specific motive was set up
in the F.I.R. to the effect that there was a dispute between the parties over a
'Khokha' (wooden stall), however, no independent corroboratory evidence
on such point was furnished---Complainant claimed that the dispute over
the stall led to civil litigation but no document from judicial record was
furnished before the Trial Court to show that the dispute over the stall was a
burning issue between the parties and they had already been battling for
the same in the civil court--- Motive part of the incident, therefore,
remained absolutely unproved---Even if motive set up in the F.I.R. did lay

with the accused and co-accused, it was not of such degree and magnitude to
take lives of two persons, moreso, when the same remained shrouded in
mystery---Sentence of death awarded to the accused and co-accused was not
warranted in law as the motive, besides being too feeble, had not been
established---Such fact certainly served as a mitigating circumstance, where
normal penalty of death was not to be awarded but sentence of life
imprisonment was more appropriate---Besides accused and co-accused
remained behind bars as under-trial prisoners for about two years and they
had also spent almost 16 years in death-cells---Conviction of accused and coaccused under S. 302(b), P.P.C. was maintained in circumstances, however
their sentences of death were reduced to life imprisonment---Appeal was
disposed of accordingly.
Muwaz Khan v. Ghulam Shabbir and The State 1995 SCMR 1007 ref.
(e) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-e-amd---Sentence---Prisoner on death row---Reduction of

death sentence to life imprisonment---Scope---Accused remained in jail as
under-trial prisoner for about two years and also spent almost 16 years in
death cell---Effect---Highly desirable and legally appropriate to reduce
sentence of such accused from death to life imprisonment---Illustration.
Dilawar Hussain v. The State 2013 SCMR 1582 and Hassan and others
v. The State and others PLD 2013 SC 793 ref.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Constitution of Pakistan, Art. 185---Criminal Procedure

Code (V of 1898), S. 417---Qatl-e-amd---Common intention---Appeal against
acquittal---Reappraisal of evidence---Benefit of doubt---Accused was alleged
to have inflicted dagger blows to the deceased during the occurrence--- Trial
Court convicted accused under Ss.302(b) & 34, P.P.C. and sentenced him to
death---High Court acquitted the accused of the charge of murder by
extending him benefit of doubt--- Validity--- Accused had been extended
the benefit of doubt by way of abundant caution, not only because he
surrendered to the police without any delay and at the very outset pleaded
innocence but also because no recovery of alleged crime weapon was
effected from him---Accused had not been attributed for causing fatal injuries
to any one of the deceased---Once accused had earned the benefit of
acquittal, he was not liable to be sent back to prison after a period of 18
years had passed, as such a course would defeat the ends of justice---Appeal
against acquittal of accused was dismissed accordingly.
Syed Zahid Hussain Bukhari, Advocate Supreme Court for Appellants

(in Criminal Appeal No.413 of 2003).
Ahmed Raza Gillani, Additional P.-G. (Pb.) for the State (in Criminal
Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Appellant (in
Criminal Appeal No.414 of 2003).
Raja Ghazanfar Ali Khan, Advocate Supreme Court for Private

Respondents (in Criminal Appeal No.414 of 2003).
Ahmed Raza Gillani, Additional P.-G. (Pb.) for the State (in Criminal
Date of hearing: 18th February, 2014.
JUDGMENT
DOST MUHAMMAD KHAN, J.---This single judgment shall decide both

the above titled appeals because the same have arisen out of a common
judgment rendered by the Lahore High Court, Lahore in Criminal Appeal

No.202 of 1996, Criminal Revision No.245 of 1996 and Murder Reference
No.379 of 1996; also because the same are the result of a single judgment
given by the learned trial Judge, thus, the exercise of reappraisal of the same
evidence is to be carried out to reach at a proper conclusion.
2.
Precise but relevant facts leading to the present tragedy are that on
25-8-1994 at about 8-00 p.m., complainant Muhammad Sadiq (P.W.6) was
present in his sugarcane crushing machine, installed in his shop, opposite
thereof was the shop of Muhammad Ayub, deceased, who along with his
brother Abid Hussain deceased, was present there and were busy in chatting,
when in the meanwhile appellants (i) Ghulam Mohay-ud-Din @ Babu, (ii)
Ahmad @ Muhammad Ahmad (iii) Amanat Ali, (iv) Liaqat Ali (v) Allau-ud-Din
and (vi) Nehal-ud-Din and (vii) Amin-ud-Din, armed with daggers, hatchets
and butcher-knives reached there, raising 'Lalkara' that Muhammad Ayub and
Abid Hussain would not be spared. Ghulam Mohay-ud-Din appellant inflicted a
dagger blow on the right shoulder of Muhammad Ayub deceased, repeating
two more blows with dagger, landing on the right side of deceased's chest.
Appellant No.2, Ahmad @ Muhammad Ahmad also inflicted dagger blow on
the posterior side of head of deceased Abid Hussain, causing him injury on
the back of his neck and other on his shoulder. Similarly, Liaqat Ali
(respondent No.4 in cross Criminal Appeal No.414 of 2003) inflicted two
injuries with dagger on deceased Muhammad Ayub, one in the abdomen and
other on his forehead, while third injury was caused to him on his buttock.
Amanat Ali (respondent No.3 in cross appeal) gave hatchet blow on the left
side of Muhammad Ayub deceased and left arm, while third blow was given
on the upper part of the back of his chest. Allau-ud-Din, Nehal-ud-Din and
Amin-ud-Din [respondents (v), (vi) and (vii) in cross appeal filed-by the
complainant], while brandishing butcher knives, warned the people not to
come near them. All the accused then decamped from the spot. The
complainant Haji Muhammad Sadiq (P.W.6), Muhammad Yasin (P.W.7) and
Muhammad Rafique (not produced), witnessed the crime. The complainant
with the help of P.Ws. and others, took both the injured to Nishter Hospital,
Multan but both succumbed to the injuries there.
3.
Motive, for the crime was alleged to be a dispute and litigation
between the parties over a Khokha (wooden stall).
4.
Report of the crime was made in Police Station 'Lohari Gate' at 10-00
p.m. which was registered at serial No.200/94 under sections 302/148/149,
P.P.C. During inspection of the crime site, blood of the two deceased was
secured from two places vide Memos Exh.PD and Exh.PF.
5.
The three appellants, namely, (i) Ghulam Mohay-ud-Din @ Babu,
(ii) Ahmad @ Muhammad Ahmad and (iii) Amanat Ali were arrested on 2-91994, while the rest of the accused were arrested on 5-9-1994.
6.
While, under interrogation in police custody, the alleged crime
daggers were respectively recovered from Ghulam Mohay-ud-Din, [Exh.P.1,
vide memo Exh.PB] and from Ahmad [Exh.P.2, vide memo Exh.PC], whereas
crime hatchet, [Exh.P.3, vide memo Exh.PD] was recovered from Amanat Ali
on 6-9-1994. All these crime weapons were stated having blood stains.
7.
At the conclusion of investigation, charge-sheet was filed before the
learned Additional Sessions Judge/trial Court, whereas, nine P.Ws., in all, were
produced, including the two eye-witnesses namely, Haji Muhammad Sadiq
(P.W.6) and Muhammad Yasin (P.W.7).
8.
During the autopsy, conducted by Dr. Shahid Hussain Magasi (P.W.8)
on the dead-body of Abid Hussain, he found following injuries on the body:--
(i)
An incised wound 5 cm x 2 cm on the right scapular region,
penetrating into thorax.
(ii)
Incised wound 7 cm x 1/2 cm on the back in the mid line and on left
scapular region. The wound was skin deep.
(iii)
An incised wound 4 cm x 1 cm on the upper part of left buttock. The
wound was 8 cm deep cutting the major blood vessels.
(iv)
Incised wound 4 cm x 1 cm in "L" shape, skin deep on left palm.
In the opinion of Medical Officer, all the injuries were ante-mortem, having
been caused with sharp edged weapon, while cause of death was shown
haemorrhage.
9.
During autopsy on the dead-body of Muhammad Ayub deceased, the
Medical Officer noted the following injuries:--
(i)
An incised wound 3-1/2 cm x 1-1/2 cm on the front of right chest, 2
cm from right nipple. The wound was muscle deep.
(ii)
An incised wound 2-1/2 cm x 1 cm on the front of right chest 1-1/2
cm from right nipple.
(iii)
A lacerated wound 4 cm x 1 cm on the right side of forehead, wound
was scalp deep, 2 cm from right eyebrow.
(iv)
An incised wound 5 cm x 1-1/2 cm on right forearm 10 cm from right
wrist. The wound was muscle deep.
(v)
An incised wound 4 cm x 1-1/2 cm on left groin 4 cm deep major
blood vessels were cut underneath.
(vi)
An incised wound 6 cm x 3 cm on back of left forearm cutting
underlying bone (Ulna) just above wrist joint.
(vii)
An incised wound 2 cm x 1 cm on left forearm, 3 cm from left wrist
joint. The wound was muscle deep.
(viii)
An incised wound 5 cm x 3 cm on the inner side of left leg just
below left knee joint, with partial cutting of under lying bone (tibia).
All the injuries were ante-mortem. Injury No.3 was caused with blunt weapon
whereas rest of the wounds were caused by sharp edged weapon. All the
injuries collectively were sufficient to cause death in ordinary course of
nature.
10.
The rest of the witnesses are either formal in nature or have played
no vital role, therefore, their testimony need not to be discussed or
reappraised.
11.
The two eye-witnesses, namely, Haji Muhammad Sadiq (P.W.6) and
Muhammad Yasin (P.W.7) have given ocular testimony. Both are shopkeepers
of the close vicinity to the crime spot. To great extent, they have justified
their presence at the crime site, on the fateful day albeit. Judged from
different angles, it appears to us that they have not told the whole truth and
have exaggerated the account of occurrence to some extent. For this reason,
both, the learned trial Court and the Lahore High Court in succession, have
made efforts to remove the chaff from the grains. Learned trial Judge, at the
conclusion of the trial, convicted the appellants (i) Ghulam Mohay-ud-Din @
Babu, (ii) Ahmad @ Muhammad Ahmad, (iii) Liaqat Ali and (iv) Amanat Ali
under section 302(b)/34, P.P.C. on two counts for committing murder of
Muhammad Ayub and Abid Hussain and each one was sentenced to death as
Ta'zir on two counts. All the four convicts were directed to pay Rs.50,000,
each, to the legal heirs of the deceased or in default thereof, to suffer six
months' R.I. each, while rest of the three co-accused namely, Allau-ud-Din,
Nehal-ud-Din and Amin-ud-Din were acquitted, extending them benefit of
doubt.
12.
On appeal, after reappraisal of the evidence, a Division Bench of the
Lahore High Court, Lahore confirmed the death sentence of appellants
Ghulam Mohay-ud-Din @ Babu and Ahmad @ Muhammad Ahmad, along with
the Murder Reference. However, death sentence awarded to Amanat Ali and
Liaqat Ali was not confirmed, instead, Amanat Ali co-accused was sentenced
to undergo 14 years' R.I on two counts and to pay Diyat on two counts to the
legal heirs of both the deceased, mentioned above. Whereas, to the extent of
Liaqat Ali convict, appeal was allowed and he was acquitted of the charge.
13.
Feeling aggrieved from the judgment of the Lahore High Court,
Lahore, appellants (i) Ghulam Mohay-ud-Din @ Babu (ii) Ahmad @
Muhammad Ahmad and (iii) Amanat Ali have questioned the legality of their
conviction and sentences through Criminal Appeal No. 413 of 2003 with leave
of the Court, while Criminal Appeal No.414 of 2003 has been filed by Haji
Muhammad Sadiq, complainant, with leave of the Court, with the prayer to
set aside the acquittal of Liaqat Ali, respondent No.1; to set aside the order of
reduction of sentence of Amanat Ali, respondent No.2, from death to 14
years' R.I and to pay Diyat to the legal heirs of the two deceased and to
convert the same into death penalty on two counts, by restoring the
judgment of the learned trial Judge.
14.
We have heard the learned ASCs and the learned Additional
Prosecutor-General, Punjab and have gone through the judgment of the High
Court and that of the trial Court as well as the evidence available on record.
15.
After briefly arguing the case on merits, learned Advocate Supreme
Court for the appellants, Ghulam Mohay-ud-Din, etc., laid considerable stress
on reduction of the death sentence, awarded to the two appellants on the
following grounds:--
(i)
That the motive alleged/set up in the F.I.R. was never established at
any stage through any convincing and cogent evidence, which must serve as
mitigating circumstance;
(ii)
that the appellants were arrested on 2-9-1994 and were finally
sentenced to death along with two co-accused by the learned trial Court vide
judgment dated 30-6-1996 and for the last almost 18 years, they are lying in
the Death-Cells;
(iii)
that once the motive part of the incident has disappeared/not proved,
the possibility that the incident was the result of sudden flare-up, could not
be excluded altogether from consideration; and
(iv)
that the implication of three co-accused in the crime was found to be
false, both by the trial Court and the High Court, in addition to the 4th coaccused, who was acquitted at appeal stage, therefore, as was contended,
the benefit of doubt shall go to the appellants, even in the matter of quantum
of sentence.
16.
The learned Additional Prosecutor-General, Punjab was candid in
conceding that the death sentence awarded to the two appellants was
not warranted in law, keeping in view the facts and circumstances of the
case, thus, he was of the view that the sentence is liable to be reduced.
17.
On the other hand, learned Advocate Supreme Court for the
complainant/respondent [appellant in cross Criminal Appeal No.414 of 2003],
however, vehemently contested the above arguments. He was of the view
that once the guilt of the appellants has been established and believed by
the trial Court as well as by the High Court, after proper appraisal and
reappraisal of the evidence, then there was no occasion or room, left out for
the reduction of the two appellants' sentence from death to life
imprisonment. He further argued with vehemence that all the accused had
come to the spot duly armed with lethal weapons and jointly attacked the two
deceased with common intention, causing both of them fatal injuries through
daggers, hatchet and butcher knives, therefore, the case of one or other
accused could not be sliced away, nor it can be distinguished on any factual
and legal premises from that of the three appellants. Thus, he further
contended that the acquittal of Liaqat Ali respondent and altering/reducing
the sentence of Amanat Ali respondent from death to 14 years' R.I. have got
no sanction of law in view of the well settled principle that liability of
each one of the accused for the purpose of awarding sentences was
one and the same, hence, the impugned judgment of the Lahore High Court
is liable to be reversed to that extent, as in his view, the same suffers from
patent error of law.
18.
As the learned Advocate Supreme Court has confined his submission
to reduction of the sentence of the two appellants, on the grounds mentioned
in the earlier part of this judgment, therefore, we have to determine this
question of vital importance as on merits of the case, besides the conceding
statement by him at the bar, we after careful reappraisal of the evidence
have no legitimate cause to take exception to the view held by the High
Court.
19.
Even in the un-amended provision of section 302, P.P.C., the
punishment, provided for murder was death or imprisonment for life and the
offender shall also be liable to fine. The change introduced by the law,
commonly known as Qisas and Diyat Laws, amending section 302, P.P.C., the
same has been divided into three parts i.e. (a), (b) and (c). In clause (b) the
Legislature in its wisdom has added qualified words to clause (b) of section
302, P.P.C., which reads as follows:--
"(b) (shall be) punished with death or imprisonment for life as ta'zir
having regard to the facts and circumstances of the case, if the proof in either
of the forms specified in section 304 is not available;"
After careful reading of the above penal clause of section 302, it becomes
debatable as to whether the normal penalty is death for offence of murder
and be given preference invariably or the sentence of death and the life
imprisonment are two alternative sentences as provided in the amended
clause (b) preceded by qualifying phrase ".....as ta'zir having regard to the
facts and circumstances of the case, if the proof in either of the forms
specified in section 304 is not available". This aspect of the matter has
already been commented upon by this Court in the recent case of
Hassan and others v. The State and others (PLD 2013 SC 793).
20.
Albeit, in a chain of case-law the view held is that normal penalty is
death sentence for murder, however, once the Legislature has provided for
awarding alternative sentence of life imprisonment, it would be difficult to
hold that in all the cases of murder, the death penalty is a normal one and
shall ordinarily be awarded. If the intent of the Legislature was to take away
the discretion of the Court, then it would have omitted from clause (b) of
section 302, P.P.C. the alternative sentence of life imprisonment. In this view
of the matter, we have no hesitation to hold that the two sentences are
alternative to one another, however, awarding one or the other sentence
shall essentially depend upon the facts and circumstances of each case.
There may be multiple factors to award the death sentence for the offence of
murder and equal number of factors would be there not to award the same
but instead a life imprisonment. It is a fundamental principle of Islamic
Jurisprudence on criminal law to do justice with mercy, being the attribute of
Allah Almighty but on the earth the same has been delegated and bestowed
upon the Judges, administering justice in criminal cases, therefore, extra
degree of care and caution is required to be observed by the Judges while
determining the quantum of sentence, depending upon the facts and
circumstances of particular case/cases.
21.
A single mitigating circumstance, available in a particular case, would
be sufficient to put on guard the Judge not to award the penalty of death but
life imprisonment No clear guideline, in this regard can be laid down because
facts and circumstances of one case differ from the other, however, it
becomes the essential obligation of the Judge in awarding one or the other
sentence to apply his judicial mind with a deep thought to the facts of a
particular case. If the Judge/Judges entertain some doubt, albeit not sufficient
for acquittal, judicial caution must be exercised to award the alternative
sentence of life imprisonment, lest an innocent person might not be sent to
the gallows. So it is better to respect the human life, as far as possible, rather
to put it at end, by assessing the evidence, facts and circumstances of a
particular murder case, under which it was committed.
Albeit, there are multiple factors and redeeming circumstances, which

may be quoted, where awarding of death penalty would be unwarranted and
instead life imprisonment would be appropriate sentence but we would avoid
to lay down specific guidelines because facts and circumstances of each case
differ from one another and also the redeeming features, benefiting an
accused person in the matter of reduced sentence would also differ from one
another, therefore, we would deal with this matter in any other appropriate
case, where, if proper assistance is given and extensive research is made.
In any case, if a single doubt or ground is available, creating

reasonable doubt in the mind of Court/Judge to award death penalty or life
imprisonment, it would be sufficient circumstances to adopt alternative
course by awarding life imprisonment instead of death sentence.
22.
In the present case a specific motive was set up in the F.I.R. at the
time of reporting the crime by the complainant. He had alleged that there
was a dispute between the parties over a 'Khokha' (wooden stall), however,
no independent corroboratory evidence on this point was furnished. Thus, the
version, repeating the same stance at the trial, without any independent
corroboratory evidence in this respect, would have no legal worth and judicial
efficacy. It has been claimed that the dispute had led to civil litigation over
the 'Khokha' but no document from judicial record was furnished to the trial
Court to show even to a little extent that indeed the dispute over a 'Khokha'
was a burning issue between the parties and they had already been battling
for the same in the Civil Court. Thus, the motive part of the incident has
remained absolutely unproved.
23.
In the case of Mawaz Khan v. Ghulam Shabbir and the State (1995
SCMR 1007), while determing the proper quantum of sentence, this Court in
para-9 of the judgment held as follows:--
"9. Adverting to the question of sentence raised by the learned

counsel for Mawaz Khan, we find that Abdullah Khan (P.W.9) and Muhammad
Akhtar (P.W.10) have deposed about the motive but they were not present
when the incident of motive took place. The circumstance of chopping of
nose and cutting the ear of the deceased will show that the act of the
accused of killing the deceased was somewhat provoked. So the real motive
for the crime remains shrouded in mystery. The question of benefit of
reasonable doubt is necessarily to be determined not only while deciding the
question of guilt of an accused person but also while considering the question
of sentence, particularly in a murder case, because there is a wide difference
between the two alternative sentences-death or imprisonment for life. Benefit
of reasonable doubt in respect of the real cause of the occurrence was thus
available to the accused. Needless to add that whenever the real cause of
murder is shrouded in mystery, is unknown or is concealed, the Courts have
normally awarded the lesser punishments under section 302, P.P.C. as a
matter of abundant caution. (Underlining is ours).
In the present case too, the motive set up in the F.I.R. was not of that degree
and magnitude, if at all it did lay with the appellants, to take lives of two
persons, more so, when the same has shrouded in mystery.
24.
In the given circumstances, we are of the firm view that learned
Courts below, particularly, the Lahore High Court did not adhere to this vital
aspect of the case, rather the same went unnoticed, hence, the sentence of
death awarded to the two appellants, mentioned above, was not
warranted in law as the motive, beside being too feeble, has not been
established. This fact certainly serves as a mitigating circumstance, where
normal penalty of death was not to be awarded but proper legal
sentence of life imprisonment was more appropriate, thus, omission on the
part of the Lahore High Court and the trial Court has caused miscarriage of
justice, therefore, the death sentence awarded to the two appellants, in our
view, is not sustainable in the eyes of law.
25.
Apart from the above, it is a matter of record that the two appellants
have remained behind the bars as under-trial prisoners for about two years
and they have also spent almost 16 years in Death-Cells of the prison in
highly restless and painful condition and mental torture because the sword of
death was hanging over their heads day and night during such a long period.
On this account too, it is highly desirable and legally deemed appropriate to
reduce their sentence from death to life imprisonment.
26.
In the case of Dilawar Hussain v. The State (2013 SCMR 1582) similar
view was held and even a Review Petition of the condemned prisoner was
allowed on the ground that he had spent 18 years in the prison, both as an
under-trial prisoner as well as after conviction when death sentence was
awarded, which was even upheld by this Court. The consideration, which
prevailed with this Court by reducing the sentence, was almost the same as
held above, albeit the scope of review before the Supreme Court is too
narrow as compared to appeal filed with the leave of the Court. Majority
view is in favour of reduction of sentence while in some rare cases
contrary view has been taken by this Court and that too where cruelty or
brutality was the attending element in committing the murder or where
element of terrorism was visible or proved in perpetrating the crime. Thus,
the view held in Dilawar Hussain's case (ibid) being very close and nearer to
judicial reasons, must prevail and shall hold the field, particularly in the
circumstances of the present case.
This Court in the case of Hassan and others v. The State and others
(PLD 2013 SC 793) held somewhat similar view founded on the principle that
when a convict sentenced to death, undergoes a period of custody equal to
or more than a term of imprisonment for life during pendency of his legal
remedy against his conviction and sentence of death, then keeping in view
the principle of expectancy of life, it would be appropriate to reduce his
sentence from death to life imprisonment. This view was based on the
principle laid down in Dilawar Hussain's case (supra). It was further held that
section 302(b), P.P.C. provides only two sentences, one death sentence and
the other imprisonment for life for the offence of murder. Both the
sentences are alternative to each other, therefore, to impose death or
to maintain it, after the convict had undergone imprisonment for life or equal
to it, would defeat the clear intent of the Legislature, as for one and the same
crime the convict would suffer twin sentences i.e. death and life
imprisonment. Thus, considering the long detention of the convict as
extenuating circumstance, the sentence of death was reduced to life
imprisonment. It was further held that contrary view, expressed by a Bench of
less numerical strength, albeit given later, shall not prevail but the larger
Bench's decision on this law point, given earlier, shall hold the field.
27.
Although, no hard and fast rule can be laid down through a sweeping
opinion however, it has been judicially noticed that in majority of cases, a
tendency is gaining momentum on the part of the complainant party of
implicating innocent person or innocents are implicated along with the real
culprits by throwing the net wider to put the other side to maximum loss,
pain and torture. Not only this but also the manner and mode of occurrence is
exaggerated making it difficult for the court of law to reach at just and correct
conclusion that who is guilty and who is innocent in a particular case. This
phenomenon is consistently prevalent in certain parts of the country. The
witnesses at the trial while under oath to tell the truth do not respect the
oath so taken and repeat the same story, set up in the F.I.R. or during the
course of investigation. The declining credentials, values and virtues of the
society in this regard is indeed a disturbing point for proper administration of
justice by the Judges, as ordinarily they are confronted with such a
complexed situation. It was in this backdrop that the theory of 'sifting of
grains from the chaff' was introduced by the Judges to extend benefit to those
about whom they were doubtful of being involved in the crime. This duty of
the courts is becoming onerous day by day due to the above phenomenon.
The courts do not posses magical powers to transform the mindset of the
society and to put them on the right path to tell the truth at all phases of
criminal investigation, inquiry and trial, particularly in heinous crimes like
murder. However, if a uniform yardstick is adopted by the courts discouraging
such charge where innocent persons are involved or mixed up with the guilty
one, it will soon bear the fruit and people would be made to re-think about
their approach and mind set not to level false and exaggerated charge
against innocent persons. In this backdrop, the obligation of the Judges while
administering justice has become manifold because they are supposed not to
let free those who are established guilty for a crime/crimes and to let free
those whose involvement therein is not well established according to the well
defined and well embedded standards of legal proof and per law of evidence.
In this regard, this Court has since long laid down certain parameters and
guiding principles, wherein in a given case, the witnesses are found to have
falsely implicated one or the other accused, then they are ordinarily not to be
relied upon with regard to the other co-accused, unless their
testimony/evidence is amply corroborated through strong independent
corroboratory evidence of unimpeachable nature qua the other co-accused.
28.
Accordingly, for the reasons stated above, we partly allow Criminal
Appeal No.413 of 2013 titled Ghulam Mohy-ud-Din v. The State and others,
while maintaining conviction of appellants Ghulam Mohy-ud-Din @ Haji Babu

and Ahmad @ Muhammad Ahmad under section 302(b), P.P.C., however, their
sentence/sentences of death are reduced to life imprisonment. They are also
extended the benefit of section 382-B, Cr.P.C. The said appeal is, however,
dismissed to the extent of Amanat Ali appellant as having not been pressed.
29.
So far as cross Criminal Appeal No.414 of 2003, filed by Haji
Muhammad Sadiq (complainant) for the enhancement of sentence of Amanat
Ali respondent No.2 therein is concerned, as on account of undergoing the
sentence, he has been released from the prison and when we have already
held in the preceding paragraph that appeal to the extent of his conviction
and sentence has become infructuous, therefore, at this stage, we have no
legitimate reason to enhance his sentence, as it will in no manner secure the
ends of justice. Moreover, the Lahore High Court, Lahore, in the impugned
judgment has given very sound, cogent and plausible reasons while awarding
respondent Amanat Ali, the lessor sentence, distinguishing his role attributed
to him in the crime, which is not open to exception on any legal and factual
premises.
30.
Similarly, the impugned judgment of the Lahore High Court, acquitting
Liaqat Ali, respondent is upheld as in support of the acquittal judgment with
his regard, sound, convincing and cogent reasons have been given, which are
not open to exception, as he has been extended the benefit of doubt by way
of abundant caution, not only because he surrendered to the police without
any delay and at the very outset had pleaded innocence but also because no
recovery of alleged crime weapon was effected from him and once he has
earned the benefit of acquittal, after passing of such a long time, is not liable
to be sent back to prison after a period of 18 years has passed, as such a
course would defeat the ends of justice. More over, he has not been
attributed of causing fatal injuries to any one of the two deceased. As such,
Criminal Appeal No.414 of 2003 is dismissed.
31.
Accordingly, the above titled appeals are decided in the above terms.
32.
The surety bonds, if any, executed by the private respondents namely
Amanat Ali and Liaqat Ali as well as their sureties, have come to an end and
they are discharged from such liability.
MWA/G-2/SC
accordingly.
2014 S C M R 7
Present: Tassaduq Hussain Jillani and Sh. Azmat Saeed, JJ
Order
IFTIKHAR AHMED---Petitioner
Versus
The STATE and others---Respondents
Criminal Petition No.800-L of 2013, decided on 15th August, 2013.
(On appeal from the judgment dated 21-6-2013 passed by the Lahore
High Court, Lahore in Criminal Miscellaneous No.1 of 2013 in Criminal Appeal
No.1687 of 2012.)
----Ss.426 & 342---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd--Suspension of sentence---Conviction based solely on statement of accused
under S.342, Cr.P.C. despite prosecution having failed to prove its case
beyond doubt---Propriety---Accused in his statement under S.342, Cr.P.C.
admitted killing the deceased but stated that due to a sudden quarrel,
deceased fired at his leg, whereafter accused also made firing in defence as a
result of which the deceased died---Trial Court convicted accused under
S.302(b), P.P.C. and sentenced him to life imprisonment observing that it was
a case of sudden simultaneous cross firing between the accused and
deceased; that it could not be said that deceased shot fires first, and
that it was not a case where accused exercised his right of private
defence---Validity---Trial Court had admittedly disbelieved the motive part and
ocular account set up by the prosecution---Two prosecution witnesses were
found to be chance witnesses and not worthy of credence---Trial Court instead
of deciding the matter in the light of evidence recorded and statement
of accused proceeded to hold that in absence of ocular account,
evidence of investigating officer could be relied upon---Value of statement of
accused under S.342, Cr.P.C. when the prosecution had failed to prove its
case beyond doubt escaped the notice of the Trial Court---Sentence of
accused was suspended in circumstances till final disposal of his main
appeal---Appeal was allowed accordingly.
----S. 342---Conviction based solely on statement of accused in court under

S.342, Cr.P.C.---Scope---If the conviction of accused was to be based solely on
his statement in court, then such statement should be taken into
consideration in its entirety and not merely the inculpatory part of it to the
exclusion of the exculpatory, unless there was other reliable evidence which
supplemented the prosecution case---In such a condition, the exculpatory
part if proved to be false might be excluded.
Sultan Khan v. Sher Khan and others PLD 1991 SC 520; Faqir
Muhammad v. State PLD 2011 SC 796 and Azhar Iqbal v. State 2013 SCMR
383 ref.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 426 & 497--- Suspension of sentence--- Bail--- Analogous principles--Principles for suspension of sentence under S.426, Cr.P.C. were analogous to
the principles of bail in terms of S.497, Cr.P.C.
Ch. Walayat Ali, Advocate Supreme Court for Petitioner.
Mushtaq Ahmed Mohal, Advocate Supreme Court for the Complainant.
Mazher Sher Awan, Additional P.-G. for the State.
Date of hearing: 15th August, 2013.
ORDER
TASSADUQ HUSSAIN JILLANI, J.---Petitioner along with five others were

proceeded against in terms of the case registered vide F.I.R. No. 582 dated 811-2009 under sections 302/109/148/149, P.P.C. at Police Station Saddar
Farooqabad, District Sheikhupura. The learned trial Court in terms of its
judgment dated 15-9-2012 while acquitting the rest convicted the petitioner
under section 302(b), P.P.C. and sentenced him to life imprisonment.
2.
Petitioner seeks suspension of sentence as according to learned
counsel appearing for him, the learned trial Court disbelieved the motive, the
ocular account and held that it was a case of cross firing between Muhammad
Asif deceased and Iftikhar Ahmed petitioner and not a case where petitioner
exercised his right of private defence, which in the facts and circumstances of
this case was not tenable in law.
3.
Learned Additional Prosecutor-General, on the other hand, did not
seriously oppose the petition as according to him the learned Trial Court
indeed did not believe the prosecution evidence and ought to have extended
credence to the statement made by the petitioner under section 342, Cr.P.C.
4.
Learned counsel for the complainant, however, opposed the petition
and contended that the suspension of sentence would entail deeper
appreciation of evidence which is not permissible in a petition under section
426, Cr.P.C. and instead prayed that the main appeal be directed to be fixed
for an early date.
5.
Having considered the submissions made, we find that admittedly the
motive part of the prosecution story was disbelieved by the court. The two
eye-witnesses namely P.W.5 Bakhsheesh and P.W.6 Nadeem-ur-Rehman were
found to be chance witnesses and not worthy of credence by the trial Court.
The case of the petitioner in his statement under section 342, Cr.P.C. was that
"I and Asif deceased were very fast and best friends. On the day of
occurrence, it was Eid and we were wandering together and off and on, we
were sitting in front of Saloon at Adda. On that day, we were talking to each
other while sitting there. Suddenly, a quarrel took place between us due to
mobile Phone, He made two fires on me with his pistol which hit on my leg
and I was injured. After that I made firing with Rifle in my defence as a result
of which he died. Suddenly, occurrence took place." The learned trial Court,
instead of deciding the matter in the light of the evidence recorded and the
statement of the accused proceeded to hold that in absence of ocular
account the evidence of investigating officers could be relied upon and
observed that "in absence of eye account and admission of Iftikhar Ahmed,
the only way left for the court to reach the just decision is to consult the
evidence of investigation which has been produced through the statements of
P.W.10/M. Akram SI and P.W.12/ Syed Zahid Sherazi S.S. P.W.10/M. Akram SI/IO
has deposed in cross-examination that during his investigation, it transpired
that .deceased and accused Iftikhar were good friends inter se. They both
used to spend time with each other. That on the day of occurrence the
deceased/M. Asif and Iftikhar/accused were together at the place of
occurrence and having good time during which some altercation broke out
between them. During the occurrence, the accused Iftikhar and deceased
Asif, made fire shot at ground." In the light of the afore-referred testimony of
the witnesses who admittedly were not present at the spot, the Court held as
follows:--
"So, it is concluded that accused/Iftikhar Ahmed fired with his weapon

just when M. Asif deceased fired at him. That is after altercation, they both
fired at each other simultaneously which fact has been suppressed by
complainant party before I.Os./during investigation and in this trial whereas
Iftikhar Ahmed/Booba accused has concocted the story of his going to
Saloon/Hamam to make the situation to show his right of private defence in
his favour. ...................................................
...............................................................................................................
...............................................
Net result is that they Iftikhar and M. Asif deceased made firing at
each other and both were injured. But M. Asif died. So, it cannot be said that
M. Asif deceased shot fires first. So right of private defence was not available
to both of them and actually it was an incident of simultaneous cross firing
made by them in which both were injured and M. Asif died. So, it is held that
it was an incident of sudden cross firing instead of right of private defence of
each other."
6.
We would not like to comment on the merits of the findings rendered
by the learned Trial Court lest it may prejudice the case of either side during
hearing of the appeal pending before the learned High Court. However, we
are constrained to observe that the law laid down by this Court qua the
value of the statement of the accused under section 342, Cr.P.C. when the
prosecution has failed to prove its case beyond doubt escaped the notice of
the learned trial Court. In Sultan Khan v. Sher Khan etc. (PLD 1991 SC 520),
this Court at page 524 observed that "if the conviction of the accused is to be
based solely on his statement in court this statement should be taken into
consideration in its entirety. The statement of an accused should be taken
into consideration in its entirety and not merely the inculpatory part of it to
the exclusion of the exculpatory part unless there is other reliable evidence
which supplements the prosecution case. In such a condition, the exculpatory
part if proved to be false may be excluded." This was reiterated in Faqir
Muhammad v. State (PLD 2011 SC 796) wherein it was observed as follows:--
"This approach adopted by the learned Judge in chamber of the

Lahore High Court, Multan Bench, Multan had been found by us to be
completely offensive to the settled principle of criminal jurisprudence that if
the version of the prosecution is disbelieved then the version of the incident
advanced by the accused party is ordinarily not even to be looked at or
considered and if it is to be considered then the same has to be accepted or
rejected as a whole. In the case of Waqar Ahmad v. Shaukat Ali and others
(2006 SCMR 1139) it has been held by this court that if the prosecution fails
to establish its case against an accused person then the accused person is
entitled to be acquitted even if he had admitted killing the deceased and
had advanced a specific plea in that regard which he had failed to
prove. It had also been held by this Court in the case of Sultan Khan v.
Sher Khan and others (PLD 1991 SC 520) that the statement of an accused
person recorded under section 342, Cr.P.C. is to be accepted or rejected in its
entirety in case the prosecution's case fails entirely. It was further held in that
case that the inculpatory part of an accused person's statement can be
utilized by the court only where the prosecution succeeds in establishing its
case and the defence fails to establish the specific plea taken by it."
7.
This view was again affirmed in Azhar Iqbal v. State (2013 SCMR 383).
8.
The question whether in the light of the evidence recorded during trial
and the law laid down by this Court could the petitioner be convicted under
section 302(b), P.P.C., would require serious consideration during hearing of
the appeal. It is well settled that the principles for suspension of sentence
under section 426, Cr.P.C. are analogous to the principles of bail in terms of
section 497, Cr.P.C. In these circumstances, petitioner has made out a case
for suspension of sentence. Consequently, this petition is converted into
appeal and allowed and subject to petitioner's furnishing bond in the sum of
Rs.100,000 with two sureties in the like amount to the satisfaction of the
learned trial Court, his sentence shall remain suspended till the final disposal
of the main appeal. Needless to observe, the observations made in this
order are tentative in nature and shall not affect the merits of the appeal.
MWA/I-7/SC
allowed.
Appeal
P L D 2014 Supreme Court 383
Present: Iftikhar Muhammad Chaudhry, C.J. Gulzar Ahmed and Sh. Azmat
Saeed, JJ
MUHAMMAD NAWAZ---Petitioner
Versus
Criminal Review Petition No.34-L of 2009 in Criminal Petition No.651-L of

2009, decided on 28th February, 2013.
(For review of the judgment of this Court dated 24-8-2009 passed in

Criminal Petition No.651-L of 2009)
----S. 345--- Penal Code (XLV of 1860),Ss. 302(b), 324, 353, 148, 149 & 337F(iii)---Anti-Terrorism Act (XXVII of 1997), Ss.6(m) & (n), 7(a), (c) & (h)--Constitution of Pakistan, Art.188---Review of Supreme Court judgment--Murder of police official while on duty---Act of terrorism---Compounding of
offence under S. 7 of Anti-Terrorism Act, 1997---Scope---Compromise between
convict and legal heirs of deceased---Effect---Accused allegedly fired at and
killed a police official during a police raid---Anti-Terrorism Court sentenced
accused to death on two counts, one under S. 302(b), P.P.C and second under
S.7 of Anti-Terrorism Act, 1997---Death sentence awarded to accused was
confirmed by the High Court---Petition for leave to appeal filed by accused
before Supreme Court was dismissed, against which accused had filed a
review petition---During pendency of review petition, accused entered into a
compromise with legal heirs of deceased-police official and requested the
Supreme Court to accept the said compromise and acquit him--Validity---Merits of the present case pertaining to offence under S.302(b),
P.P.C were no more required to be dilated upon because of the compromise--Statements of eye-witnesses (police officials) and recoveries made during
investigation established that deceased-police official was murdered when he
was on official duty, and such findings were upheld by the High Court and
Supreme Court---Offence under S.353, P.P.C stood proved against accused as
he fired at and killed a police official, who was performing his official duty,
therefore, offence under S.7 of Anti-Terrorism Act, 1997 was also established
because murder of a police official without personal enmity amounted to
create terror and insecurity in the vicinity---Offence under S.6(2)(n) of AntiTerrorism Act, 1997 also stood established as act of accused involved serious
violence against a member of police force---Regarding first count of death
sentence under S.302(b), P.P.C, accused entered into a compromise with legal
heirs of deceased and compensation had also been paid, but second count of
death under S.7 of Anti-Terrorism Act, 1997 had its own implications and was
not compoundable under Ss.354(5) & (7), Cr.P.C---Compromise between
parties was accepted (only) to the extent of conviction under S.302(b), P.P.C
and accused was acquitted of said charge---Regarding death sentence under
S.7 of Anti-Terrorism Act, 1997, quantum of said sentence could be examined
in the present case due to its peculiar facts---Sentence of death awarded to
accused under S.7 of Anti-Terrorism Act, 1997 was converted into life
imprisonment without extending benefit of S.382-B, P.P.C, as the same was
not allowed by Trial Court, High Court and the Supreme Court---Review
petition was disposed of accordingly.
Muhammad Rawab v. State 2005 SCMR 1170 and M. Ashraf Bhatti v.

M. Aasam Butt PLD 2006 SC 182 rel.
-----S. 345---Anti-Terrorism Act (XXVII of 1997), S.7---Acts of terrorism---Death

sentence, award of---Compounding of offence under S.7 of Anti-Terrorism Act,
1997---Scope---Compromise between convict and legal heirs of deceased--Effect---Death sentence under S.7 of Anti-Terrorism Act, 1997 had its own
implications and was not compoundable under Ss.354(5) & (7), Cr.P.C--Illustration.
Muhammad Rawab v. State 2005 SCMR 1170 rel.
(c) Anti-Terrorism Act (XXVII of 1997)---
----S. 7---Acts of terrorism---Scope---Murder of police official while on duty
without personal enmity---Such murder amounted to create terror and

insecurity in the vicinity and would fall under S.7 of Anti-Terrorism Act, 1997--Illustration.
M. Amir Khan Niazi, Advocate Supreme Court for Petitioners (in Crl.R.P.
34-L/09).
Asjad Javaid Ghurral, Addl. P.G. for the State.
Date of hearing: 28th January, 2013.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, C J.---Muhammad Nawaz son of

Muhammad Hussain has filed instant criminal review petition under Article
188 of the Constitution against the judgment dated August 24, 2009
pronounced in Criminal Petition No.651-L/2009, in pursuance whereof
judgment dated May 13, 2009 of the Lahore High Court, Lahore passed in
Criminal Appeal No.1249 of 2007 has been upheld.
2.
The petitioner faced trial under sections 302/324/148/149/353, P.P.C.
read with section 13 of Pakistan Arms Ordinance, 1965 and section 7 of AntiTerrorism Act, 1997 in pursuance of F.I.R. No.316 dated September 26, 2006
registered at Police Station Khushab on stated allegations that on receipt of
spy information that accused nominated
in F.I.R. No.315 of 2006 were present in the House of Ghulam Shabbir

accused, situated in village Shah Wale, Salabat Khan, Inspector/SHO along
with his subordinates armed with official weapons conducted raid and tried to
encircle the said house. Muhammad Nawaz, petitioner fired two shots from
eastern door of the house, which landed on the left shoulder and front of neck
of Muhammad Mumtaz, Constable, who fell down on the ground and
succumbed to death. Mohsan Raza (co-accused) also fired .a shot which hit
right thigh of Ameer Afzal, S.I. All accused started firing and the police also
returned fire in self defence. Three of the accused surrendered to police
whereas others including the petitioner succeeded in making their escape
good. The petitioner remained fugitive of law for about six months and was
arrested on March 20, 2007.
3.
On completion of the investigation, he was challaned before the
Special Judge, Anti-Terrorism, Sargodha, who on holding the trial, vide
judgment dated August 29, 2007 convicted and sentenced him as under:--
(i)
Under section 302(b)/149, P.P.C.: Death sentence and also to pay
Rs.100000/- as compensation to the legal heirs of the deceased, in default
whereof to further suffer six months' S.I.
(ii)
Under section 324/149, P.P.C: 10 years R.I. along with fine of
Rs.50,000/-, in default whereof to further undergo three years' S.I.
(iii)
Under sections 337-F(iii)/149, P.P.C: To pay Daman
amounting to Rs.15000/- .and to undergo 3 years' R.I. as Taazir
(iv)
Under sections 148/149, P.P.C: 3 years' R.I. and fine of Rs.20000/ in
default whereof six months' S.I.
(v)
Under sections 353/149, P.P.C: 2 years' R.I. and fine of Rs.10000/--, in
default whereof to further undergo six months' S.I.,
(vi)
Under section 7(a) of ATA: Death penalty and fine of Rs.50000/-, in
default whereof to undergo three years' S.I.
(vii)
Under section 7(c) of ATA: Imprisonment for life with fine of
Rs.50000/- in default whereof to further undergo 3 years' S.I.
(viii) Under section 7(h) read with section 6(m) of ATA and 149, P.P.C.: 5 years'
R.I. and fine of Rs.30000/- in default whereof to further undergo 1 year.
4.
In Criminal Appeal No.1249 of 2007 learned Division Bench of the
Lahore High Court confirmed the death sentence awarded to the petitioner by
the Trial Court. Consequently, Murder Reference No.71-T of 2007 was
answered in affirmative and the appeal noted hereinabove was dismissed.
The petitioner approached this Court by filing Criminal Petition No. 651-L of
2009 against the said judgment of the High Court, which was dismissed vide
judgment dated August 24, 2009. Hence he filed instant review petition.
5.
It is to be noted that during the pendency of the review petition, the
petitioner entered into a compromise with the legal heirs of the deceased and
requested this Court through Criminal M.A. 6 of 2011 to accept the
compromise and acquit the accused. Vide Order dated January 13, 2011
report was called from Sessions Judge/ATC Sargodha about the genuineness
or otherwise of the compromise, which was received on February 1, 2011.
6.
It is to be noted that the merits of the case pertaining to the. offence
under section 302(b), P.P.C. are no more required to be dilated upon because
of the compromise to the said extent is acceptable, However, the question as
to whether or not the offence under section 7 ATA, 1997 is compoundable in
terms of section 345, Cr.P.C. or the ATA, 1997, especially in presence of an

earlier judgment maintaining the judgment of the High Court, when the
compromise was effected during the pendency of the review petition. This
question is required to be decided keeping in view that as the legal heirs had
forgiven the petitioner would he still be liable to capital punishment under
section 7 ATA, 1997. In this regard, it is to be noted that the learned trial
Court opined that the offence under section 353, P.P.C. stood proved as the
deceased Muhammad Mumtaz, Constable while performing his official duty
was fired at and killed by him. Thus, offence tinder section 7 of ATA, 1997 is
also established against the accused because he murdered the deceased
while performing his official duty without having any personal enmity against
him, which amounted to create terror and insecurity in the vicinity. These
findings were supported by the statement of prosecution witnesses.
7.
The learned High Court on having taken into consideration the
statements of eye-witnesses (Police Officials) as well as recoveries, concluded
that the deceased was murdered when he was on official duty, which findings
were upheld by the learned High Court as well as this Court.
8.
It is to be noted that the act of terrorism, though is interlinked with
the principal offence i.e. 302(b), P.P.C., falls under a different provision of law
i.e. section 6(2)(n) of ATA. Deceased Muhammad Mumtaz was on official duty
at the time of the occurrence as it is evident from the statements of P.Ws.
that he was in uniform and was causing arrest of nominated accused along
with raiding police party but to terrorize the police the accused opened fire,
which caused his (Muhammad Mumtaz) death and also created obstruction in
the discharge of their duty. Sentence under section 302(b) attracts the
provision of section 353, P.P.C., which he has already undergone. Thus, the
offence under section 6(2)(n) of ATA also stands established against the
petitioner, which provides the meaning of terrorism and any such action that
falls within the meaning of said section, involving serious violence against a
member of the police force, armed forces, civil armed forces, or a public
servant. This offence stood established, in view of the facts and
circumstances narrated hereinabove, particularly, accepting the
conviction/sentence under section 302(b), P.P.C. as he has entered into

compromise with the deceased, however as far as the second count of death
sentence under section 7 ATA is concerned, it has got its own implications
and is not compoundable under section 345 subsections (5) and (7) of Cr.P.C.
This Court examined this very proposition in the case of Muhammad Rawab
v. State (2005 SCMR 1170), reliance on which has also been placed by the
Sessions Judge when the compromise under section 302(b), P.P.C. and 7 of
ATA was submitted. Learned Special Judge gave effect the compromise only
to the extent of 302(b), P.P.C., whereas compromise under section 7 ATA was
not allowed to be compounded in view of the law referred to hereinabove.
9.
However, this fact can also not be over sighted that in respect of
murder of Muhammad Mumtaz, Constable, the petitioner was also sentenced
to death and now the parties have compounded the offence under section
302(b), P.P.C. and according to the record compensation has also been paid.
Therefore, question for quantum of sentence under section 7 of ATA can be
examined in view of the judgment in the case of M. Ashraf Bhatti v. M. Aasam
Butt (PLD 2006 SC 182) wherein after the compromise between the parties
sentence of death was altered to life imprisonment.
10.
It is to be noted that both the sentences i.e. death and life
imprisonment are legal sentences, therefore, under the circumstances either
of them can be awarded to him. Thus in view of the peculiar circumstances
noted hereinabove, sentence of death under section 7 ATA, 1997 is converted
into life imprisonment without extending benefit of section 382-B, Cr.P.C. as
the same was not allowed by the trial Court, first appellate Court as well as
by this Court in the judgment under review.
11.
Accordingly, compromise between the parties is accepted to the
extent of conviction under section 302(b), P.P.C. and the petitioner is
acquitted of the charge. However, the death sentence under section 7 of ATA
is converted into life imprisonment and the review petition is disposed of.
Accordingly Criminal Petition No.651-L of 2009 is converted into appeal and is
allowed, whereby the order of the High Court dated May, 16, 2009 passed in
Criminal Appeal No.1249 of 2009 is modified to that extent.
MWA/M-5/S
accordingly.
2014 Y L R 699
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ
NOOR AGHA alias ABDULLAH---Appellant
Order
Versus
Criminal Jail Appeal No.19 and Murder Reference No.3 of 2013 decided on
31st October, 2013.
----S.302(b)---Qatl-e-amd---Appreciation of evidence--- Confessional

statement---Medical evidence---Scope---Accused was convicted by Trial Court
and sentenced to death on two counts for committing murder of two
persons---Validity---Confessional statement recorded by accused was
voluntary and in accordance with law, besides it rang true---Confessional
statement coupled with ocular account furnished by prosecution witnesses
established the fact that accused had committed cold blooded murder of two
innocent helpless and armless persons---Non-production of medical certificate
of both the deceased was not fatal nor it could extend any benefit to
accused---Real father and brother of deceased were eye-witnesses, they,
could not possibly substitute any one else, except the real culprits---Shop of
one prosecution witness was situated in front of place of incident who also
supported prosecution version---Evidence of prosecution witnesses were
reliable and confidence inspiring, confessional statement of accused was true
and voluntary and sufficient to sustain conviction---Prosecution had proved
guilt of accused and Trial Court after taking into consideration entire evidence
and attending all circumstances rightly passed well reasoned judgment,
which was not open to any exception---Appeal was dis-missed in
circumstances.
PLD 1985 Kar. 661; 1976 PCr.LJ 426; Khan Muhammad v. The State
1999 SCMR 1818; Sikandar v. The State 2006 SCMR 1786; Muhammad
Haneef v. The State PLD 1993 SC 895 and Abdul Wahab v. The State 1999
SCMR 1668 ref.
Mrs. Sabira Islam for Appellant.
Ameer Hamza Mengal, D.P.G. for Respondent.
Date of hearing: 25th September, 2013.
JUDGMENT
MUHAMMAD EJAZ SWATI, J.---This judgment shall dispose of Criminal

Jail Appeal No. 19 of 2013 filed by appellant Noor Agha alias Abdullah son of
Fida Muhammad through Superintendent Central Jail, Machh, wherein the
appellant has assailed the judgment dated 31st May, 2013 passed by the
learned Additional Sessions Judge-VI, Quetta, whereby the appellant has been
convicted and sentenced as under:--
"Under section 302(b) P.P.C. to be punished with death as Tazir on two

counts. He shall be hanged by neck till the time he is dead. The convict shall
pay Rs.100,000 (Rupees One Lac Only) each as compensation to the legal
heirs of deceased Abdul Mateen and Muhammad Nabi as provided by under
section 544-A Cr.P.C. and in case of default shall undergo six months' S.I."
The learned Additional Sessions Judge-VI, Quetta has also sent Murder
Reference No.3 of 2013, for confirmation of death sentence or otherwise as
required under section 374, Cr.P.C.
2.
The facts of the case, in brief, are that an F.I.R. bearing No. 230 of
2009 (Exh.P/8-A), on the basis of Fard-e-Bayan Exh.P/2-A was registered by
Satellite Town Police Station, Quetta on 5th October, 2009 at 11-30 a.m.
under sections 302, 109 and 34, P.P.C. on the complaint of Haji Jalandar Khan
in respect of the incident taken place on the fateful day at Ghous Abad,
Quetta at 10-30 a.m., wherein it was alleged that the appellant Noor Agha at
the instance and in furtherance of common intention of absconding accused

namely Gul Muhammad and Muhammad Dawood committed murder of two
sons of complainant namely Muhammad Nabi and Abdul Mateen by making
firing with small machine gun outside the shop of complainant situated at
Ghous Abad, Quetta.
3.
On the basis of said F.I.R., the appellant was arrested, investigation
commenced, which culminated in submission of challan before the trial Court.
The trial Court, framed charge on 20th April, 2010, to which, the appellant
pleaded not guilty and claimed trial. Whereafter, the prosecution in order to
substantiate the charge produced following P.Ws.:--
P.W.1 Abdul Khaliq, IP/SHO, arrested the appellant on 5th October,

2009 along with crime weapon and registered F.I.R. No.231 of 2009 under
section 13-D of the Arms Ordinance, 1965 against the appellant.
P.W.2 Haji Jalandar Khan is complaint and an eye-witness of the

incident. He produced Fard-e-Bayan Exh.P/2-A on the basis whereof F.I.R. was
registered.
P.W.3 Abdul Khaliq son of Haji Jalandar Khan, he furnished ocular

account.
P.W.4 Shafique Ahmed A.S.-I., is mushir to the recovery memo of MP-5,

security Pistol Exh.P/4-A and produced the MP-5 security pistol as Art.P/3,
Magazine as Art.P/4 and 10 live cartridges as Art.P/5.
P.W.5 Muhammad Naseem, furnished ocular account.
P.W.6 Malik Asif, A.S.-I., is mushir to the recovery memos and

produced site inspection report Exh.P/6-A, recovery memo of 6 empties
Exh.P/6-B, empties as Art.P/9 to Art.P/11, led Art.P/12 to Art.P/17, recovery
memo of blood-stained earth of deceased Muhammad Nabi Exh.P/6-C and
blood-stained earth of deceased Abdul Mateen Exh.P/6-D and blood-stained
earth material of deceased persons as Art. P20 and Art.P/23.
P.W.7 Abdul Ali Jalalzai Judicial Magistrate, recorded the confessional

statement of appellant under section 164, Cr.P.C. and produced sealed
envelope as Art.P/24, statement as Exh.P/7-A and identified his signature on
certificate Exh.P/7-B.
P.W.8 Faiz Ahmed, S.I, is Investigating Officer of the case and

produced F.I.R. Exh.P/8-A.
4.
After prosecution evidence, the appellant was examined under section
342, Cr.P.C, wherein he denied all the incriminating pieces of evidence
produced by the prosecution. The appellant has also recorded his statement
on oath as envisaged under section 340(2), Cr.P.C, however did not produce
any witness in his defence.
5.
The learned trial Court after hearing the parties and evaluating the
evidence found the appellant guilty of the offence, as such convicted and
sentenced him as mentioned hereinabove.
6.
The learned counsel for the appellant raised following points:
(i)
that there are material contradictions in the statement of prosecution
witnesses;
(ii)
the MLC of both the deceased were not produced nor inquest report
made part of the record;
(iii)
the appellant was arrested on 5th October, 2009 and his alleged
confessional statement was recorded on 9th October, 2009;
(iv)
the motive as alleged in the F.I.R. has not been proved;
(v)
the injuries, statements of deceased recorded in the F.I.R. and ocular
witnesses are contradictory.
Learned counsel for the appellant placed reliance on the judgments

reported in PLD 1985 Kar. 661 and 1976 PCr.LJ (Lahore) 426.
On the other hand, the learned DPO controverted the contentions and
stated that the prosecution through reliable, trustworthy ocular witnesses has
proved its case. Their statements are consistent on material particulars and
having no improvements therein. The appellant has committed murder of two
persons in a broad-daylight in presence of father and brother of deceased,
besides an independent witness also supported their version. The
confessional statement of appellant further corroborates the prosecution
version and the conviction recorded by the learned trial Court is based on
sound reasoning, as such, the same is required to be upheld.
7.
We have carefully considered the contentions put forth by the parties'
learned counsel and have gone through the record of the case minutely. It is
the case of prosecution that P.W.2 Haji Jalandar Khan complainant (father of
the deceased Muhammad Nabi and Abdul Mateen) deposed that at the time
of incident, his above two sons were sitting in the shop, whereas he along
with his other son namely Abdul Khaliq was sitting outside the shop. In the
meanwhile, the appellant equipped with small machine gun appeared and
started firing, which hit on the head of his sons and thereafter, the appellant
decamped towards Western side. He along with other inhabitants of Mohalla
had taken the deceased to hospital. He further stated that the appellant has
committed murder of his sons on the instigation of absconding accused
Muhammad Dawood and Gul Muhammad. This prosecution witness lodged
the F.I.R. through Fard-e-Bayan in Civil Hospital, Quetta. P.W.3 Abdul Khaliq is
brother of deceased furnished ocular account and supported the version of
P.W.2. P.W.5 Muhammad Naseem is an independent witness, as his shop is
situated in front of the shop of the complainant. Despite lengthy crossexamination, nothing favourable came out to discredit the credibility of above
witness. In cross-examination, P.W.5 in reply to a question stated that after
firing, one victim was lying in the shop, whereas the other was lying outside
the shop. This version also finds support from the statement of P.W.6 Malik
Asif, who attested the recovery memo of blood-stained earth of Muhammad
Nabi Exh.P/6-C and blood-stained earth of deceased Abdul Mateen Exh.P/6-D
at the spot. In cross-examination, P.W.6 replied that blood-stained earth of
deceased Muhammad Nabi was taken from inside of the shop and bloodstained earth of deceased Abdul Mateen was taken from outside of the shop.
This assertion has further been affirmed by P.W.8 Faiz Ahmed Investigating
Officer and in cross-examination, he replied the same as stated by the above
two prosecution witnesses and P.W.8 further explained that the place of
occurrence was pointed out by the complainant. The ocular account furnished
by P.W.2, P.W.3 and P.W.5, are also consistent with other circumstantial
evidence. Besides the above ocular account, we have perused the
confessional statement of appellant Exh.P/7-A. The Judicial Magistrate after
taking all precautions and complying with the formalities as required under
section 364, Cr.P.C. recorded the same. The volunteerness of the confession
also appears from the question put to the appellant before recording of his
confessional statement and he specifically stated that he is recording
voluntary statement without any fear, coercion or inducement. The appellant
in his confessional statement stated that he had committed the murder of
deceased on the instigation of Muhammad Dawood and Gul Muhammad
(absconding accused), who paid him money and provided crime weapon. The
contention of counsel for the appellant that the above confessional statement
was recorded after delay of four days carries no legal substance. In this
regard, the Hon'ble Supreme Court in the case titled (Khan Muhammad v. The
State) reported in 1999 SCMR 1818, held as under:--
"It was further contended that the appellants were arrested on

9-8-1989 and their custody having been remanded to the police, their
confession was recorded on 20-8-1989 and, therefore, the same cannot
be termed voluntary. We have considered this aspect of the case and we are
of the view that this issue cannot be resolved in its generality, but each case
has to be considered on its own facts. Delay in recording the confession by
itself cannot render the confession nugatory if otherwise it is proved on
record that the same was made voluntarily."
8.
We have no doubt that the confessional statement recorded by the
appellant, is voluntary and in accordance with law, besides it rings true. The
confessional statement of appellant coupled with the ocular account
furnished by P.W.2, P.W.3 and P.W.5, establish the fact that the appellant has
committed the cold blooded murder of two innocent helpless and armless
persons. The other limb of argument of appellant's counsel is regarding nonproduction of medical certificate of both the deceased. This contention, in the
circumstances of the present case is not fatal nor it can extend any benefit to
the appellant. The Hon'ble Supreme Court in the case titled (Sikandar v. The
State) reported in 2006 SCMR 1786 held as under:--
"The medical evidence is not substitute of direct evidence rather is

only a source of corroboration in respect of nature and seat of injury, the kind
of weapon used, the duration between the injury and death and may confirm
the ocular account to a limited extent but cannot establish the identity of the
accused or connect him with the commission of offence, therefore, if the
charge of murder is otherwise proved through the direct evidence, the
absence of medical evidence may not be fatal."
9.
The case of prosecution on the strength of injuries, recorded in the
F.I.R. has been objected by the counsel for the appellant that it contradicts
the ocular evidence. This aspect of the matter has also gone through. The
prosecution case is based on the statements of ocular witnesses and
confessional statement of appellant, which are in line with each other and
there is no contradictory view, in view of such overwhelming statements, the
mere non-availability or non-production of MLC, does have no adverse impact
on the prosecution case, particularly, where unnatural death is undisputed.
The Hon'ble Supreme Court in the case titled (Muhammad Haneef v. The
State) reported in PLD 1993 SC page 895 held as under:--
"The Expert's evidence may it be, medical or that of Ballistic Expert, is

entirely in the nature of confirmatory or explanatory of direct or other
circumstantial evidence, but if there is direct evidence as in the instant case,
which is definite, trustworthy, the confirmatory evidence is not of much
significance. In any case, it cannot outweigh the direct evidence."
10.
The real father and brother of the deceased, are eye-witnesses, they,
therefore, cannot possibly substitute any one else, except the real culprits.
The shop of P.W.5 is situated in front of the place of incident and this
independent eye-witness also supported the prosecution version, therefore,
we are of the view that the evidence of above eye-witnesses are reliable and
confidence-inspiring, confessional statement of appellant being true and
voluntary are sufficient to sustain conviction.
12.
Coming to the point of motive and question of mitigating
circumstances, the Hon'ble Apex Court in the case titled (Abdul Wahab v. The
State) reported in 1999 SCMR 1668 held as under:--
"Motive shrouded in mystery" is not a legal principle which can be

applied in all murder cases for reduction of capital sentence where there is no
motive alleged/proved by the prosecution or where initially a motive is
alleged but the same is not proved or withdrawn or a different motive
appears in the prosecution evidence. "Motive shrouded in mystery" by itself is
not a mitigating circumstance for lesser sentence."
13.
In such a cold-blooded murder, where the case has been established
beyond reasonable doubt by the evidence on record, no argument can be
built up for reduction of sentence on the ground that the motive was
"shrouded in mystery". In the present case, we after having gone through the
record minutely, hold that the appellant has committed a cold-blooded
murder in a brutal and gruesome manner, which has been proved by the
ocular witnesses coupled with voluntary confessional statement of appellant.
The appellant as per his confessional statement, committed the murder of
two innocent persons, as he was paid for the same by absconding accused,
therefore, do not deserve any leniency in the sentence.
In the light of above discussion, we are of the considered opinion that

the prosecution has been able to prove the guilt of the appellant to the hilt.
The trial Court after taking into consideration the entire evidence and
attending all circumstances has rightly passed a well-reasoned judgment,
which is not open to any exception, as such we uphold the impugned
judgment. With the result, the appeal is dismissed. Accordingly, Murder
Reference No.3 of 2013 sent by the learned Sessions Judge VI, Quetta for
confirmation of death sentence or otherwise, is answered in affirmative and
death sentence awarded to the appellant in hereby confirmed.
MH/112/B
dismissed.
2014 P Cr. L J 178
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
MUHAMMAD AYUB---Applicant
Versus
Appeal
Criminal Bail Application No.443 of 2013, decided on 20th September, 2013.
----S. 497---Grant or refusal of bail---Considerations---Importance of

individual's personal liberty and the society's interest---Society had a vital
interest in grant or refusal of bail, because every offence was the offence
against the State---Order, granting or refusing bail, must reflect perfect
balance between the conflicting interests; viz, sanctity of individual's liberty
and the interest of the society---While granting or refusing bail, two
conflicting interests, namely the requirement of shielding the society from the
hazards of those committing crimes and potentiality of repeating the same
crime while on bail; and the absolute adherence of fundamental principle of
criminal jurisprudence regarding presumption of innocence of an accused
until he was found guilty.
----Ss. 345(7) & 497---Penal Code (XLV of 1860), Ss.302(c), 392 & 396---Qatle-amd, robbery, dacoity with murder---Compromise effected between the
parties---Human life was the most valuable of all the things---Islam as a
religion of humanity attached utmost sanctity to human life---Murder of a
human being was the greatest sin after the sin of 'shirk' (Assigning partners
with Almighty Allah), and was unpardonable, particularly when committed
during the course of dacoity in view of the bar under S.345(7), Cr.P.C.--Islamic Sharia had divided the punishments for crimes into three categories;
Hudood; Qisas; and Ta'zir---Said punishments, which had been determined by
the Holy Quran and the Sunnah for crimes, were called Hudood--Punishments for crime, involving the rights of individuals, were called as
Qisas; and the punishments for crimes, which had not been fixed by the Holy
Quran or Sunnah, but had been left to discretion of the rulers and the Judges,
were called as Tazir---Where compromise between the parties had been
reached in non-compoundable offences during pendency of the appeal, the
courts had taken the compromise as a ground for reduction in the quantum of
sentence only, but in the matters of bail, same could only be considered as
one of the facts, alongside the facts and circumstances of the case, for
determining whether bail be granted or not---Any person, who was an
accused of a non-compoundable offence, was not entitled to claim bail as a
matter of right on the sole strength of compromise---Offence of murder,
punishable with death under S.302(a), P.P.C., and under S.302(b), P.P.C. as
Tazir, though was compoundable under the law, but where murder had taken
place during the course of committing a dacoity, punishable with death under
S.396, P.P.C., or an offence under S.392, P.P.C., was not compoundable.
Al-Qur'an; Muhammad Rawab v. The State 2004 SCMR 1170; Ghulam

Farid alias Farida v. The State PLD 2006 SC 53 and Jamshed alias Javed v. The
State 2001 PCr.LJ 1493 ref.
Muhammad Rawab v. The State 2004 SCMR 1170 rel.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 345---Penal Code (XLV of 1860), Ss.302 & 392---Offences Against
Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Qatl-eamd, robbery, Haraabah---Bail, refusal of---Accused was caught red-handed
with crime weapon, while snatching motorcycle from the complainant, who
was student of F.Sc.---Besides committing murder, accused also made
murderous attempt upon the complainant who sustained a fire-arm injury--Offence under S.392, P.P.C., did not find its mention in S.345(1), Cr.P.C. in the
category of the offences which were compoundable---Offences under Ss.302
& 392, P.P.C., as well as an offence under S.17(3) of the Offences Against
Property (Enforcement of Hudood) Ordinance, 1979, were also not bailable--Merits of the case did not justify the grant of bail to accused; and compromise
allegedly, effected between the parties, neither could be taken into
consideration nor it entitled accused for the concession of bail.
Muhammad Shabbir Rajput for Applicant.
Abdul Sattar Durrani, D.P.-G. for the State.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J.---This application under section

497 of the Criminal Procedure Code, 1898 (Cr.P.C.) has been moved on behalf
of accused/applicant Muhammad Ayub son of Dawood Khan, who is
accused in crime No.29 of 2012, under sections 302 and 392 of the P.P.C. read
with section 17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 lodged at Saddar Police Station, Quetta on the report of
complainant Saddam son of Allah-ud-Din.
2.
Briefly stated, the allegation against the applicant is that on 16th
April, 2012, he, along with his companion, while armed with deadly weapons,
intercepted the complainant near Sarwar Town Bridge, when he was riding
on his motorcycle CD-70, bearing registration No.QAV-9431. As per
prosecution's case, after snatching the motorcycle, when the complainant
made hue and cry, the passersby attracted and, in the meanwhile, the
accused/applicant made firing upon him, due to which he sustained firearm
injuries. It is also the case of the prosecution that due to firing of the
accused/applicant, his companion; viz, Agha Muhammad also sustained
injuries and died on the spot. The accused/applicant was caught red-handed
by the inhabitants of the area and handed over to the police.
2.(sic.) Mr. Muhammad Shabbir Rajput, learned counsel for the accused/
applicant mainly stressed upon the compromise arrived at between the

parties. When he was confronted with the question as to whether bail must
be granted on the basis of compromise in a non-compoundable offence,
besides referring to a number of reported judgments in support of his
contention, he also submitted that the statutory provision of section 345 of
the Cr.P.C., wherein offences under sections 392 and 396 of the P.P.C. have
been shown non-compoundable, must be ignored being in conflict with the
law of Holy Qur'an, while granting bail to the applicant. To augment his
contention, he further submitted that all types of murders are compoundable
notwithstanding the reason and the circumstances, under which murder is
committed; therefore, there would be no legal bar in giving effect to the
compromise. He further added that the provision of section 345 of the Cr.P.C.
cannot curtail the powers of the Court to compound a non-compoundable
offence, if its compoundability is otherwise, permissible in Islam, particularly
keeping in view the provisions of sections 309 and 310 read with section 338E of the P.P.C. While concluding his arguments, he was of the view that the
trial Court was required to accept the compromise, because, ultimately, the
accused/applicant would be acquitted, as the witnesses would not support
the prosecution's case at the trial.
3.
On the contrary, Mr. Abdul Sattar Durrani, learned Additional
Prosecutor-General, submitted that the accused/applicant was apprehended
red-handed on the spot and, hence, no case for bail is made out. He further
submitted that a compromise in non-compoundable offences may be a factor
to be taken into consideration, while granting bail, but cannot be made its
sole basis.
4.
I have given due consideration to the arguments so advanced and
have also perused the relevant record in the light of case laws cited by the
learned counsel for the parties at bar. After having gone through the record of
the case, I am of the view that this application involves an issue of great
substance pertaining to the importance of individual's personal liberty and
the society's interest. In this regard, I am of the considered view that the
society has a vital interest in grant or refusal of bail, because every criminal
offence is the offence against the State. The order, granting or refusing bail,
must reflect perfect balance between the conflicting interests; viz, sanctity of
individual's liberty and the interest of the society. While granting or refusing
bail, the two conflicting interests, namely, the requirement of shielding the
society from the hazards of those committing, crimes and potentiality of
repeating the same crime while on bail and the absolute adherence of the
fundamental principle of criminal jurisprudence regarding presumption of
innocence of an accused until he is found guilty.
5.
At the very outset, the pivotal question, which needs determination,
would be as to whether a compromise effected between the parties can be
considered as a ground for release of a person, accused of a non-bailable and
non-compoundable offence within the purview of bar as envisaged under
section 345(7) of the Cr.P.C., particularly in an offence of murder committed
during the course of dacoity. In this respect, I am of the opinion that the
human life is the most valuable of all the things in this world. Islam as a
religion of humanity attaches utmost sanctity to human life. Al-Qur'an, the
revealed book of Islam, pronounced that:--
"That whoever kills a human being unless it be for murder or

spreading mischief in the land, it shall be as if he had killed all
mankind, and whoever saves the life of one it shall be as if he had
saved the life of all mankind... ... (5:32)"
6.
The murder of a human being is the greatest sin after the sin of shirk
(assigning partners with almighty Allah) and is, therefore, unpardonable,
particularly when committed during the course of dacoity in view of the bar
under section 345(7) of the Cr.P.C. Briefly speaking, the Islamic Sharia divides
the punishments for crimes into three categories: (i) Hudood, (ii) Qisas, and
(iii) Ta'zir. Those punishments, which have been determined by, the Holy
Qur'an and the Sunnah for crimes are called Hudood (prescribed
punishments). Punishments for crimes, involving the rights of individuals, are
called as Qisas (retribution), and the punishments for crimes, which have
not been fixed by the Holy Qur'an or the Sunnah, but have been left to the
discretion of the rulers and the judges are called as Ta'zir (discretionary
punishments).
7.
It is true that where compromise between the parties had been
reached in non-compoundable offences during pendency of the appeal, the
Courts have taken the compromise as a ground for reduction in the quantum
of sentence only. However, it is equally true that in the matters of bail, the
same could only be considered as one of the factors, alongside the facts and
circumstances of the case, for determining whether bail be granted or not.
Any person, who is an accused of a non-compoundable offence, is not entitled
to claim bail as a matter of right on the sole strength of compromise. I am not
unmindful of the fact that the offence of murder, punishable with death under
section 302(a) as Qisas and under section 302(b) as Ta'zir, is compoundable
under the law, but the murder had taken place during the course of
committing a dacoity, punishable with death under section 396 of the P.P.C. or
an offence under section 392 of the P.P.C., is not compoundable. By holding
this view, I am fortified from the case of Muhammad Rawab v. The State,
2004 SCMR 1170, wherein it was laid down that:--
"The pivotal question which needs determination would be as to

whether parties can be allowed to compound the offences which are not
compoundable by virtue of the provisions as contemplated in section 345,
Cr.P.C. specially in view of the specific bar as mentioned in subsection (7) of
section 345, Cr.P.C. There is no denying the fact that section 365-A, P.P.C. read
with section 7(e) of the Anti-Terrorism Act, 1997 is not compoundable. The
provisions as contained in section 345(7), Cr.P.C. have been couched in such
a plain and simple language that there is hardly any scope for any
interpretation except that a non-compoundable offence cannot be made
compoundable by this Court for the simple reason that no amendment,
deletion, insertion or addition could be made by this Court and it could only
be done by the Legislature as this aspect of the matter falls in its exclusive
domain of jurisdiction. The provisions as contained in section 345, Cr.P.C.
cannot be stretched too far by including the non-compoundable offence
therein under the garb of humanitarian grounds or any other extraneous
consideration. The offences committed by the appellant are not of grave and
alarming nature but the same are against the society as a whole and cannot
be permitted to compound by any individual on any score whatsoever. It may
be noted that tabulation of the offences as made under section 345, Cr.P.C.
being unambiguous remove all doubts, uncertainty and must be taken as
complete and comprehensive guide for compounding the offences. The
judicial consensus seems to be that "The Legislature has laid down in this
section the test for determining the classes of offences which concern
individuals only as distinguished from those which have reference to the
interests of the State and Courts of law cannot go beyond that test and
substitute for it one of their own. It is against public policy to compound a
non-compoundable offence, keeping in view the state of facts existing on the
date of application to compound. No offences shall be compounded except
where the provisions of section 345. Cr.P.C. are satisfied as to all matters
mentioned in the section."
8.
The scope and meaning of the provisions of sections 309, 310 and
396 of the P.P.C. and 345 of the Cr.P.C. were examined by the Hon'ble
Supreme Court of Pakistan in the case of Ghulam Farid alias Farida v. The
State, PLD 2006 SC 53, Mr. Justice Muhammad Nawaz Abbasi, the Hon'ble
Judge, who spoke for the Court, while construing the meaning and scope of
the aforesaid provisions of law observed as under:--
"There are two kinds of punishment in Islam "Hadd" and "Tazir". The
punishment of Hadd is in the Will of God whereas any other punishment is
called Tazir. Islam recognizes the concept of deterrent punishment and also
the theory of Tazir. Islam recognizes the concept of deterrent punishment and
also the theory of repentence for the purpose of reformation and preservation
of society and in the light of this concept, the offences in the Islamic Penal
Laws are also divided into two categories namely compoundable and non-
compoundable offences either punishable as Hadd or Tazir. The offences

which are compoundable in Islam, have also been made compoundable under
the statutory law and in compoundable offences, it is permissible for the
Courts to give effect to the compromise between the parties at any stage of
the proceedings before or after the final conclusion of the matter whereas a
compromise in non-compoundable offences, cannot be given legal cover at
any stage. The offence of murder punishable with death under section 302(a)
as Qisas and under section 302(b) as Tazir is compoundable under the law
but the murder taken place during the course of committing dacoity
punishable with death under section 396, P.P.C. is not compoundable. The
careful examination of Ayat Nos.178 and 179 of Surah Baqara would reveal
that there is no conflict of the statutory law to the law of Islam regarding
forgiveness as the offence under section 302, P.P.C. and the offence under
section 396 P.P.C. are entirely different and distinct offences, therefore,
notwithstanding the pardon given by the legal heirs of the deceased to the
petitioner who has been awarded death penalty under section 396, P.P.C. he
could not avail the benefit of sections 309 and 310, P.P.C. read with 338(E),
P.P.C."
9.
Similarly, while dealing with the powers of the Court under section
561-A of the Cr.P.C. and Article 187 of the Constitution of Islamic Republic of
Pakistan, 1973, the Hon'ble Supreme Court in the above cited case-law
observed as under:--
"This is settled law that Courts can interpret the provisions of law but
cannot change or substitute such provisions and also cannot go beyond the
wisdom of law. The contention of the learned counsel that the compromise
between the parties at least could be treated a mitigating circumstance for
the purpose of lesser punishment, has also no substance. This Court while
upholding the judgment of the High Court by virtue of which conviction and
sentence awarded to the petitioner by the trial Court was, maintained, has
already dismissed the petition for leave to appeal. The present petition has
arisen out of the proceedings in a miscellaneous application moved by the
petitioner for his acquittal on the basis of his compromise with the legal heirs
of the deceased, therefore, in these proceedings, it was not possible for the
High Court to reopen the case on merits in exercise of its powers under
section 561-A, Cr.P.C. and similarly, this Court is not supposed to undertake
such an exercise under Article 187 of the Constitution of Islamic Republic of
Pakistan and consider the question relating to the quantum of sentence on
the basis of compromise between the parties in such a heinous offence which
is considered a crime against the Society."
10.
Reverting to the last contention of the learned counsel for the
applicant, that the trial Court was required to accept the compromise and
release the accused/applicant on bail, because, ultimately, the accused would
be acquitted, as the witnesses would not support the prosecution's case
during course of the trial. He further stated that if the complainant party as
well as the legal heirs of deceased Agha Muhammad were no longer
interested to prosecute the accused, then it was not for the trial Court to
compel the parties to do so, as the saying goes, "you can take the horse to
the water but you cannot make drink". This contention is also without any
substance, as the observations made by a single bench of the Hon'ble
Peshawar High Court in the case of Jamshed alias Javed v. The State, 2001
PCr.LJ 1493, furnish a complete answer to the said contention, which reads as
under:--
"It was also argued that compromise be accepted because ultimately

the accused would be acquitted as the witnesses would not support the
prosecution case at the trial. This argument has an inherent flaw. Though it is
not uncommon that witnesses resile at the trial from their statements
recorded during the investigation however, to consider this as a factor for
granting bail would tantamount to conferring legitimacy on this unlawful and
immoral practice."
11.
So far as merits of the case are concerned, a tentative perusal of the
record shows that the accused/applicant was caught red-handed along with
crime weapon, while snatching motorcycle from the complainant, who is
student of F.Sc. and, allegedly, besides committing murder of one Agha
Muhammad, the applicant also made murderous attempt upon the
complainant, who sustained a fire arm injury. The offences, which are
compoundable, have been mentioned in section 345(1) of the Cr.P.C. and the
offence under section 392 of the P.P.C. does not find its mention in the
aforesaid section in the category of the offences, which are compoundable.
Similarly, the offences under sections 302 and 392 of the P.P.C. as well as an
offence under section 17(3) of the Offences Against Property (Enforcement of
Hudood) Ordinance, 1979 are also not bailable in nature, as such, merits of
the case do not justify the grant of bail to the applicant and the compromise,
allegedly, effected between the parties neither could be taken into
consideration nor it entitles the applicant for the concession of bail.
The application, being without merits, is dismissed.
HBT/95/Bal.
Bail refuse
2014 Y L R 2737
[Peshawar]
Before Abdul Latif Khan and Lal Jan Khattak, JJ
IMAM BAKHSH and another---Appellants
Versus
Criminal Appeal No.177 of 2011, decided on 11th September, 2013.
----S.302(b)---Qatl-i-amd---Appreciation of evidence---Statements of both

witnesses were consistent---Occurrence took place at midnight, F.I.R. was
registered at 6.30 a.m.---Complainant was illiterate village lady without any
telephone or conveyance so delay in lodging F.I.R. could not be considered
fatal---No question of identification could arise as accused were known to
complainant---Accused could be identified in the light of electric bulb--- Eyewitnesses supported the version of complainant---Forensic expert
corroborated ocular account---Medical evidence corroborated time of
occurrence---Prosecution was not bound to produce all the witnesses
mentioned in challan---Appeal was dismissed.
Sanaullah Khan Gandapur and Ghulam Hur Khan Baloch for

Appellants.
Sanaullah Shamim A.A.-G. for the State.
Farooq Akhktar for the Complainant.
JUDGMENT
ABDUL LATIF KHAN, J.---Through the instant appeal under section 410
Cr.P.C., the appellants namely Imam Bakhsh and Khuda Bakhsh have called in
question the judgment dated 10-12-2011 passed by learned Additional
Sessions Judge-VI, D.I.Khan vide which they were convicted under section
302(b), P.P.C. and sentenced to imprisonment for life with a compensation of
Rs.1,00,000 each under section 544-A, Cr.P.C. or in default, to further suffer
six months S.I each and benefit of section 382-B, Cr.P.C. was extended in their
favour.
2.
The prosecution story in brief is that on 17-3-2011 at 0630 hours,
complainant Mst. Amina Bibi reported the matter to the local police to the
effect that last night, she along with her husband, three sons and three
daughters were sleeping in the room. At about 1 a.m. (midnight), on barking
of dog, her husband went out and while opening the door of room, asked that
who was there and in the meanwhile firing started, as a result of which, her
husband Mushtaq and son Sajid died on the spot. When came out of Kotha,
the complainant witnessed accused running from the spot. The occurrence
was stated to have been witnessed by brother-in-law of the complainant
namely Ghulam Farid.
3.
After completion of usual investigation, complete challan against the
accused was submitted under section 512, Cr.P.C. However, on arrest of the
appellants, supplementary challan was submitted against them. They were
formally charged to which they did not plead guilty and claimed trial. In, order
to establish the guilt of the appellants, the prosecution examined eight
witnesses. The appellants were also examined under section 342, Cr.P.C.
wherein they professed innocence and false implication. However, they
neither examined themselves on Oath as required under section 340(2)
Cr.P.C. nor produced any evidence in their defence. After hearing the
arguments, the learned trial Court convicted and sentenced the appellants as
mentioned above vide impugned judgment dated 10-12-2011.
4
Mr. Ghulam Hur Khan Baloch learned counsel for the appellants
contended that the occurrence took place at midnight time at 1 a.m. on 17-32011 and the report was made at 0630 hours on the spot which is a delayed
report and has not been explained. He contended that motive for the offence,
as per the prosecution version, is that brother of deceased Mushtaq namely,
Shah Jehan, had abducted the daughter of appellant Khuda Bakhsh, which
does not stand to reason, as the deceased and his brother were residing in
different houses and the proper person was Shah Jehan to be attacked, in
order to take revenge instead of Mushtaq and as such the prosecution story is
not plausible. He contended that the complainant Mst. Amina Bibi is the sole
witness, whereas Ghulam Farid has been named as witness, but he has not
seen the occurrence. He added that the case of the prosecution hinges upon
the statement of Ghulam Farid and complainant which are contradictory to
each other on various points. He referred to the recovery memo regarding 26
empties of 7.62 bore, bulb; one empty of 303 bore and blood-stained clothes
which is witnessed by Ghulam Farid, however, when deposing as PW in the
Court, he has not stated about the existence and recovery of bulb. He
contended that identification in the instant case is doubtful, for the reason
that it was midnight occurrence and the existence of bulb has not been
proved by the prosecution. He added that the medical evidence is not
corroborating the ocular version. On one hand, Ghulam Farid has been shown
to have pointed out the place of occurrence for preparation of site plan to the
Investigating Officer, while on the other hand, he was shown present in the
hospital and has been shown to have received the dead bodies from the
hospital and the postmortem report of deceased Sajid was prepared at 9 a.m.
whereas postmortem report of Mushtaq deceased was prepared at 10 a.m.
and as such the presence of Ghulam Farid is highly doubtful and in
connection with time, his presence at both the occasions is not humanly
possible. He added that the expert report has not corroborated the
prosecution evidence, as three weapons i.e. two 7.62 bore rifles and one .303
bore rifle were shown to have been used in the occurrence. Mst. Amina Bibi
complainant appeared as P.W.2 whereas Ghulam Farid has been examined as
P.W.3. The statements of both the witnesses are contradictory inter-se. Mst.
Rehmat Bibi and Mst. Mumtaz Bibi, the other natural witnesses present inside
the house at the time of alleged occurrence have been abandoned by the
prosecution. He added that the prosecution has not disclosed the source to
inform the police about the occurrence. He contended that the report has
been prepared after preliminary investigation and as such the ocular account
in the instant case is not plausible. He contended that Ghulam Farid has also
deposed about the existence of a guest, who was sleeping in the courtyard of
his house at the time of occurrence, but he has not been produced. He
contended that the evidence collected by the prosecution is not supporting
the version narrated by the complainant and the judgment passed by the trial
Court is not supported by law.
5.
As against that, the learned A.A.G. appearing for the State and Mr.
Farooq Akhtar, counsel for the complainant contended that the presence of
the complainant at the time of occurrence in the house and the story
advanced by the prosecution is a natural phenomenon. It was contended that
the husband and son of the complainant were brutally murdered and minor
discrepancies, if any, would in no way damage the case of prosecution as
pointed out by learned counsel for the appellants. It was argued that the site
plan was prepared at the instance of complainant as well as Ghulam Farid
and the argument of learned counsel for the appellant that the site plan has
been prepared on the pointation of only Ghulam Farid is not correct. He
contended that the F.S.L report was in positive and has confirmed the version
of the prosecution. The daughters of deceased Mushtaq namely, Mst. Mumtaz
Bibi and Mst. Rehmat Bibi were not necessary to be produced and the
prosecution in every case is not bound to produce all the witnesses and they
have been rightly abandoned, as the same would amount to repetition,
because mother of the ladies and Ghulam Farid have already deposed in
favour of the prosecution. They referred to the statements of appellants
recorded under section 342 Cr.P.C., wherein they replied to question No.14 in
affirmative to the effect that they want to produce evidence in their defence
but have not produced the evidence nor deposed themselves under section
340(2), Cr.P.C. which goes against them, as they have nothing to produce in
their defence. It was contended that a plea was taken by the defence in cross
examination that on the night of occurrence, the transformer of the village
was not in working form, however, none was produced from the locality or
electricity department in support of this version. They supported the

judgment of the trial Court.
6.
We have given our deep thought to the arguments of learned counsel
for the parties and perused the record with their valuable assistance.
7.
Perusal of the record shows that Mst. Amina Bibi complainant reported
the matter to police vide Ex.P.W.2/1 to the effect that on 17-3-2011 at 0630
hours, her husband Mushtaq and son Sajid were done to death by the
accused. The occurrence was stated to have been witnessed by her as well as
Ghulam Farid, brother of the deceased. The F.I.R. (Ex.PA) was registered
against the accused. Appellants Imam Bakhsh and Khuda Bakhsh were
arrested on 21-3-2011 whereas accused Ashraf and Jalaluddin alias Choocha
sons of appellants are still absconding. The complainant deposed before the
Court as P.W.2 and has supported the version of the F.I.R. P.W.3 Ghulam Farid
was also examined in support of prosecution case. The statements of both
the witnesses were corroborating each other and the case of prosecution.
Though the complainant has not specifically given role to any of the accused
for the murders of her husband and son, but all the four accused were
charged by her for firing at her husband and son (deceased). However, in
cross examination while appearing as P.W.2. the appellants have put specific
questions to the complainant, wherein she has categorically charged the
accused for the injuries received by the deceased at the hands of accused
Ashraf, Imam Bakhsh, Jalaluddin alias Choocha and Khuda Bakhsh. She added
that fireshots hit her husband and son who was sitting on the ground when
his husband was fired at and he was also fired at by the accused. The
explanation in the statement of complainant was made-in reply to the
question put by the appellants in cross-examination which fully supports the
version of the prosecution. Apart from this, the investigating officer has also
narrated the version in support of the prosecution case and nothing adverse
could be extracted from the mouth of any witness by the appellants, during
the course of cross examination and as such the ocular account fully supports
the version of prosecution. Minor contradictions pointed out by learned
counsel for the appellants and tried to get benefit of these contradictions,
were not material, but natural and could not be considered to disbelieve the
version of the prosecution, which is otherwise proved through reliable
evidence.
8.
So far as the delay in making the F.I.R. is concerned, the occurrence
took place at midnight and the report was made at 0630 hours on the spot,
as the police had attracted to the spot in the morning. A rustic villager,
illiterate lady having lost the lives of her husband and son, having no source
of contact with the police through telephone or conveyance at midnight time
would not be expected to lodge the report within few moments and it is but
natural that the occurrence was reported to the police on the spot when they
attracted there on the information received and as such the delay cannot be
considered as vital in such state of affairs nor the report on the spot would
damage the case of prosecution in any way, because all the things were dealt
with in a natural manner and no artificial touch seems to have been given to
the facts of the case.
9.
The question of identification would not arise in the instant case, for
the simple reason that the complainant has deposed that the accused are her
co-villagers and are known to each other. Even otherwise, in rural society, the
co-villagers use to be on visiting terms to the houses of each other. As per the
site plan, at points D and E, the bulb was lit, in the light of which, the accused
were identified by the complainant. She was shown at point-3 and the
accused were present at points 9, 10, 11 and 12 at the time of firing and later
on she shifted to point 3-A while the accused shifted to points 8-A, 9-A, 11- A
and 12-A. Both the points are visible and at a distance of 6/8 paces and in
presence of light, the question of identification cannot be termed as doubtful
and no benefit can be given to the appellants with regard to the
identification. Apart from this, Ghulam Farid, eye-witness, has also seen the
accused who was shown at point-13 and later on at point 13-A which
corroborates the version of the complainant about the presence of the
accused and firing made by them at the time of occurrence. The site plan was
prepared at the pointation of the complainant and said Ghulam Farid and as
such there is no contradiction to this effect and prosecution succeeded to
prove the case in the light of site plan.
10.
So far as the recovery is concerned, recovery memo Exh.P.W.3/2
shows that 26 empties of 7.62 bore, one empty of 303 bore, two bulbs, bloodstained earth and blood-stained clothes were taken into possession by the
investigating officer which was witnessed by Ghulam Farid and constable
Asmatullah. P.W.3 Ghulam Farid has supported the version of recovery when
deposed in the Court. The expert opinion was also in positive.
11.
So far as the medical report is concerned, the dead bodies were taken
to the hospital at 08.30 a.m. Postmortem of Sajid deceased was conducted at
9 a.m. whereas the postmortem on the dead body of Mushtaq deceased was
conducted at 10 a.m. and the duration given by the doctor was 06-10 hours
in respect of deceased Sajid and 07-1 hours in case of Mushtaq deceased
which is natural and corroborates the time of occurrence. The dead bodies
were received by Ghulam Farid. The ocular account was fully supported by
the medical evidence. The doctor was examined as P.W.4 who was crossexamined by the appellants but nothing adverse to the case of prosecution
has been brought on file from this witness.
12.
The appellants were examined under section 342, Cr.P.C. wherein they
deposed in reply to question No.14 that they want to produce defence but
later on for reasons best known to them, the evidence has not been
produced. A plea has been taken in the cross-examination that the
transformer of the village was not in working condition, therefore,
identification was doubtful in the absence of light but this plea has not been
proved. No evidence to this effect has been produced nor the complainant or
the eye-witness have been subjected to cross-examination on this score. So
far as the abandonment of the daughters of the deceased as witnesses is
concerned, in the presence of complainant who happens to be their mother
and Ghulam Farid eye-witness, there was no need to produce them, as the
same would serve no purpose and would have caused repetition,
unnecessary in nature. Even otherwise, the prosecution is not bound to
produce all the witnesses mentioned in the challan and to this effect, the
objection of the appellants is not sustainable.
13.
The motive narrated in the report by the complainant has not been
fortified by producing sufficient and reasonable evidence, however, the
available ocular account and the presence of the appellants and commission
of offence has been duly witnessed and proved and in the prevailing
circumstances, as observed above, the prosecution has successfully proved
the case against the appellants who committed murders of husband and son
of the complainant by firing at them and were rightly convicted under section
302(b), P.P.C. by the trial Court.
14.
For the reasons mentioned above, there is no force in the instant
appeal which is hereby dismissed.
ARK/277/P
dismissed.
Appeal
2014 Y L R 2606
[Peshawar]
Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ
FAYYAZ ALI---Appellant
Versus
ASGHAR ALI KHAN and another---Respondents
Criminal Appeal No.17-B of 2009, decided on 29th October, 2013.
----Ss.302, 324, 337-F(iv) & 34---Criminal Procedure Code (V of 1898),

S.417(2-A)---Qatl-e-amd, attempt to commit qatl-e-amd, causing Mudihah,
common intention---Appeal against acquittal---Appreciation of evidence---Two
injured prosecution witnesses had been abandoned by the prosecution for no
good reason, which amounted to withholding of best evidence---Complainant,
brother of the deceased, was also inimical towards accused---Due to blood
relationship, status of the complainant could not be excluded from the
category of interested witness---In order to bring the case out of the scope of
general rule, the evidence of the interested witness was to be scrutinized
with great care and caution---Complainant had made certain dishonest
improvements in his cross-examination just to bring in line his story with the
medical evidence and other circumstances of the case---Contradictions in the
testimonies of the prosecution witnesses, had created doubts about the
occurrence that same had not taken place in the mode and manner as
alleged by the complainant---Once a witness was found telling lie on one
material aspect of the case, then ordinarily he/she should not be believed
with regard to other aspect of the case, unless the testimony given was fully
corroborated by strong independent corroboration, which was lacking in the
present case---General role of firing had been attributed to accused at the
injured prosecution witnesses, but no evidence had been brought to prove
the same---Injured prosecution witnesses had not supported the version of
the prosecution---Both complainant and prosecution witness had failed to
prove the individual participation of each of the accused persons in the
crime---Ocular evidence was also in contradiction with medical evidence---No
crime empty had been recovered and taken into possession from the place
assigned to accused in the site plan---Accused though had absconded,
however the prosecution could not take any premium from abscondence of
accused, when eye-witnesses had not established their presence at the spot,
and their testimony had been disbelieved being full of doubts and material
contradictions---Impugned judgment of acquittal having not been found to be
arbitrary, fanciful and capricious on the face of it, or result of misreading or
non-reading of any material evidence, Trial Court had rightly acquitted
accused extending him benefit of doubt, after proper appraisal of evidence,
to which no exception could be taken---Appeal being devoid of force was
dismissed in circumstances.
Master Muhammad Saddique's case 2003 MLD 1774 ref.
Sajjad Ali's case 2007 MLD Pesh. 613 rel.
(b) Criminal trial---
----Benefit of doubt---Prosecution was bound to establish guilt of accused

beyond shadow of reasonable doubt by producing trustworthy; convincing
and coherent evidence enabling the court to draw conclusion; whether the
prosecution had succeeded in establishing accusation against accused or
otherwise---If charges imputed against accused had not been proved beyond
reasonable doubt, then accused would become entitled for release by getting
benefit of doubt---Benefit of any single and slightest doubt, must go to
accused, and it would be sufficient to disbelieve the prosecution story---Many
doubts in the prosecution case were not required---Any reasonable doubt
arising out of prosecution evidence, pricking the judicial mind, was sufficient
for acquittal of accused.
Tariq Pervaz v. The State 1995 SCMR 1345 and Muhammad Akram's
case 2008 SCMR 230 rel.
----Abscondence--- Abscondence of accused---Effect---Mere absconsion, was

not a conclusive proof of guilt of accused---Such was only a suspicious
circumstance against accused and suspicion could not take the place of
proof---Value of abscondence, would depend on the facts of each case--Absconsion of accused could be consistent with the guilt or innocence of
accused, which was to be decided keeping in view over all facts of the case--Abscondence, though was a relevant fact, but it could be used as a
corroborative piece of evidence, which could not be read in isolation, but had
to be read along with substantive piece of evidence.
Rohtas Khan v. The State 2010 SCMR 566 and Rahimullah Jan v. Kashif
and another PLD 2008 SC 298 rel.
----Ss. 410 & 417(2-A)---"Appeal against conviction "and" appeal against

acquittal"---Scope and standards of assessment of evidence---Standards of
assessing evidence in appeal against acquittal, were different from those laid
down for appeal against conviction---Marked difference existed between
appraisal of evidence in appeal against conviction and appeal against
acquittal---Appraisal of evidence, in appeal against conviction was done
strictly; and in appeal against acquittal such rigid method of appraisal was
not to be applied, because finding of acquittal was already given by the Trial
Court after proper analysis of evidence on record---Scope of appeal against
acquittal, was considerably narrow and limited---Unless the judgment of
acquittal was perverse, completely illegal, no other decision could be given,
except that accused was guilty; or there had been complete misreading of
evidence leading to miscarriage of justice---High Court was always slow in
exercise of jurisdiction under S.417, Cr.P.C.; unless it would find that gross
injustice had been done in administration of criminal justice---Appellate Court
while dealing with acquittal order, had to exercise jurisdiction cautiously,
because acquitted accused would enjoy double presumption of innocence;
the one available to him before conclusion of the trial; and the second after
the verdict of acquittal in his favour.
Aamir Hussain for Appellant.
M. Rasheed Khan Dirmakhel for Respondent No.1.
Saifur Rehman A.A.-G. for the State.
Date of hearing: 29th October, 2013.
JUDGMENT
ROOH-UL-AMIN KHAN, J.---This appeal is directed against the judgment

dated 28-1-2009, passed by Additional Sessions Judge-III, Bannu whereby he
acquitted respondent-accused Asghar Ali in case F.I.R. No.782, dated 27-102006, registered under sections 302/324/337-F(iv)/34, P.P.C. at Police Station
City Bannu.
2.
The prosecution case as divulging from the contents of F.I.R,
registered on the basis of murasila is that on 27-10-2006 at 1950 hours,
complainant Fayaz Ali along with his brother Iftikhar Ali, Asghar Ali Shah,
Tajdar and Bakhtiar was present in his Baithak. At 1950 hours, accused
Hazarat Ali, Kiramat Ali, Tayyab and Asghar Ali, came there, duly armed with
Kalakovs and opened fire at them from the door of the Baithak with intention
to commit their murders. Accused Hazrat Ali, also entered the Baithak and
fired at his brother Iftikhar with which he was hit while from the firing of other
co-accused complainant and his companions Asghar Ali and Bakhtiar Ahmad
sustained injuries. After commission of the offence, the accused decamped
from the spot. After some time, the police reached the spot in an official
vehicle, who shifted the injured to DHQ Hospital Bannu, but injured Iftikhar Ali
succumbed to the injuries while complainant reported the occurrence in
injured condition in DHQ Hospital Bannu. Motive as' stated by complainant
was an issue on payment of money. In addition to the complainant, the other
injured P.Ws. are stated to have been witnessed the incident.
3.
On completion of investigation, challan was submitted against the
accused in the trial Court, where he was summoned and charge sheeted to
which he pleaded not guilty and claimed trial. The prosecution in support of
its case examined twelve witnesses. After closure of the prosecution
evidence, statements of the accused under section 342, Cr.P.C. were recorded
where he denied the prosecution allegations and professed his innocence. He,
however, wished to be examined on oath under section 340(2), Cr.P.C. but
declined to produce evidence in defence.
4.
We have heard the respective submissions of the learned counsel for
the parties and have perused the record thoroughly with their valuable
assistance.
5.
In this incident one Iftikhar Ahmad, brother of the complainant Fayaz
Ali, has been done to death allegedly by the firing of co-accused Hazrat Ali
while complainant Fayaz Ali and his companions Asghar Ali, Tajdar and
Bakhtiar have received firearm injuries on their persons due to alleged firing
of co-accused Tayyab, Kiramat and present respondent-accused Asghar Ali.
As is evident from the contents of First Information Report, in addition to the
complainant, injured P.Ws. have also stated to have witnessed the incident.
Record reveals that except injured Bakhtiar Khan, the other two injured P.Ws.
have been abandoned by the prosecution for no good reason which amounts
to withholding of best evidence. Thus, in the attending circumstances, by
virtue of Article 129(g) of the Qanun-e-Shahadat Order, 1984, it can be
inferred that had the abandoned P.Ws. been produced, they would have not
supported the version of complainant. In this respect reference can be made
Master Muhammad Saddique's case (2003 MLD 1774).
6.
The case of the prosecution mainly hinges on the testimonies of
complainant Fayaz Ali and P.W. Bakhtiar. Complainant is real brother of the
deceased and inimical towards the accused. It is consistent view of the apex
Court from which no departure can be made on any occasion that testimony
of such witness must get corroboration through corroboratory evidence which
shall come from unimpeachable source. Moreso, keeping in view the close
relationship of the complainant with the deceased being his real brother,
which in local parlance is blood relationship, his status cannot be excluded
from the category of interested witness and in the circumstances the rule of
corroboration in case of interested witnesses is not an inflexible rule. Such
rule can be dispensed with in appropriate cases. In order to bring the case
out of the scope of general rule, the evidence of an interested witness is to
be scrutinized with great care and caution. Firstly, truthfulness of such
witness is to be tested on the touchstone of the inherit merit of his statement
and, secondly, if his statement is found reasonable, probable or plausible,
and reliable then the same can be accepted and relied upon without
corroboration. Reliance is placed on Sajjad Ali's case (2007 MLD Peshawar
613).
7.
While appearing as PW.14A, complainant Fayaz Ali reiterated the
contents of his report, however, in the cross-examination certain dishonest
improvement have been made by him just to bring in line his story with the
medical evidence and other circumstances of the case. He has not stated in
his report that the deceased was fired at from his back but after autopsy on
the dead body of the deceased, when the complainant came to know that the
injuries are on the back of the deceased, he in his Court statement just to
bring in line his testimony with the medical evidence, stated that the
deceased was fired at from his back. Moreover, has not stated about their
gathering, in the Baithak, on the night of occurrence in respect of discussing
the visit of injured P.W. Tajdar, who allegedly was proceeding to Hajj and that
as his deceased brother Iftikhar used to deal in Hajj and Umrah business,
therefore, Tajdar had come to seek guidance from him and in this regard
some maps of Macca and Madina were given to Tajdar by his brother, and at
the time of incident, they were busy in discussing and looking at the said
maps. Moreover, neither any such map has been taken recovered by the
Investigating Officer during spot inspection nor produced by the complainant.
Similarly, the complainant has not stated about enlightening of electric bulbs
in the bathroom of Baithak, street etc. but he improving his statement have
stated about all these things which amounts to dishonest improvements. The
complainant has admitted arrival of police at the spot, soon after the
occurrence, but no report has been made by him at the spot rather as is
evident from the record, the report has been made in DHQ hospital. The
complainant has not stated about arrival of Ghulam Rabbani A.S.-I., the
author of murasila, to the spot rather according to him, he reached hospital
where he lodged report. Ghulam Rabani A.S.-I. appeared as PW.3A, who is
author of the report. He in his examination in chief says that on getting
information he proceeded to the hospital where Fayyaz Ali reported him about
the occurrence at 20.30 hours and he recorded his report in the shape of
murasila but in cross-examination he while contradicting his own version
stated that information in the present case was conveyed to him when he
was present at Miryan Gate Bannu City on wireless, whereafter he proceeded
to the spot where he found the injured which were shifted by him to the
hospital in his mobile van. The complainant, has not stated a single word
about visit of said Ghulam Rabani to the spot and then their shifting to the
hospital. Contrary to above, Azad Khan FC who had escorted the dead body
of the deceased Iftikhar deposed that the co-villagers had brought the dead
body of Iftikhar and injured and the local police of Police Station reached the
casualty after about 30 minutes of their arrival. All these contradictions in the
testimonies of the P.Ws. create serious doubts about the occurrence that the
same has not been taken place in the mode and manner as alleged by the
complainant. Admittedly, once a witness is found telling lie on one material
aspect of the case, then, ordinarily he/she should not be believed with regard
to the other aspect of the case, unless the testimony given is fully
corroborated by strong independent corroboration, which is lacking in the
instant case. The role of firing at the deceased Hazarat Ali has been
specifically attributed to co-accused Hazarat Ali, who had been convicted by
the trial Court by his appeal has been allowed and he has been acquitted by
this Court by disbelieving the prosecution evidence. A general role of firing
has been attributed to present respondent-accused at the injured P.Ws. but
not an iota of evidence has been brought to prove that the injuries on the
persons of the injured were the result of the firing of the respondent-accused.
The injured P.W. Bakhtiar has not supported the version of the prosecution.
He has also contradicted the statement of the complainant on material
aspects of the case. Both, the complainant and P.W. Bakhtiar have failed to
prove the individual participation of each accused in the crime. Admittedly,
both have sustained injuries and their presence cannot be doubted at place
of the incident but the question would be as to whether they are truthful or
otherwise because merely the injuries on the persons of the P.Ws. would not
stamp them as truthful witnesses. From the evidence of the complainant and
P.W. Bakhtiar, no implicit reliance can be placed on their evidence when two
other injured P.Ws. shown in the F.I.R. have not been examined in support of
prosecution case.
8.
The ocular evidence is also in contradiction with medical evidence. No
crime empty has been recovered and taken into possession from the place
assigned to the respondent-accused in the site plan. It is settled law that
primarily the prosecution is bound to establish guilt of the accused beyond
shadow of reasonable doubt by producing trustworthy, convincing and
coherent evidence enabling the Court to draw conclusion; whether the
prosecution has succeeded in establishing accusation against the accused or
otherwise; and if it comes to the conclusion that the charges so imputed
against the accused has not been proved beyond reasonable doubt, then
accused would become entitled for his release on getting benefit of doubt in
the prosecution case. The requirement of the criminal case is that
prosecution is duty bound to prove its case beyond any reasonable doubt and
if any single and slightest doubt is created, benefit of the same must go to
the accused and it would be sufficient to disbelieve the prosecution story and
held the accused for acquittal. It is well embedded principle of criminal justice
that there is no need of so many doubts in the prosecution case, rather any
reasonable doubt arising out of the prosecution evidence, pricking the judicial
mind is sufficient for acquittal of the accused. In this regard reference can be
made to case titled, "Tariq Pervaz v. The State" (1995 SCMR 1345). The same
principle has been reiterated by Hon'ble Supreme Court in "Muhammad
Akram's case" (2009 SCMR 230).
9.
The only evidence against the respondent-accused is his
abscondence, but the prosecution cannot take any premium from
abscondence of the accused when eye-witness have not established their
presence at the spot and their testimony has been disbelieved being full of
doubts and material contradictions. Mere abscosion is not a conclusive proof
of guilt of accused person. It is only a suspicious circumstance against an
accused that he was found guilty of the offence. However, suspicions after all
are suspicions. The same cannot take the place of proof. The value of
abscondence, therefore, depends on the facts of each case. The absconsion
of the accused may be consistent with the guilt or innocence of the accused,
which is to be decided keeping in view over all facts of the case. No doubt,
abscondence is a relevant fact, but it can be used as a corroborative piece of
evidence, which cannot be read in isolation but has to be read along with
substantive piece of evidence. In this respect reference can be made to case
titled "Rohtas Khan v. The State" (2010 SCMR 566), "Rahimullah Jan v. Kashif
and another" (PLD 2008 Supreme Court 298).
10.
Apart from above, Moreso, this is appeal against acquittal and
standards of assessing evidence in appeal against acquittal are quite
different from those laid down for appeal against conviction. Marked
difference exists between appraisal of evidence in appeal against conviction
and in appeal against acquittal. Appraisal of evidence, in appeal against
conviction is done strictly and in appeal against acquittal such rigid method
of appraisal is not to be applied as there is already finding of acquittal given
by the trial Court after proper analysis of evidence on record. Scope of appeal
against acquittal of accused is considerably narrow and limited. Unless the
judgment of acquittal is perverse, completely illegal and on perusal of
evidence, no other decision could be given except that accused is guilty or
there has been complete misreading of evidence leading to miscarriage of
justice. High Court is always slow in exercise of jurisdiction under section 417,
Cr.P.C. unless it finds that gross injustice had been done in administration of
criminal justice. It is settled law that the appellate Court while dealing with
acquittal order had to exercise jurisdiction cautiously because the acquitted
accused enjoys double presumption of innocence, the one available to him
before conclusion of the trial and the second after the verdict of acquittal in
his favour. While Court sitting in appeal against acquittal must be slow in
reversing the judgment of acquittal, unless it is found to be arbitrary fanciful
and capricious on the face of it or is the result of bare misreading or nonreading of any material evidence. In the instant case, no such infirmity has
been found in the impugned judgment. The learned trial Court has rightly
acquitted the respondents/accused by extending him benefit of doubt, after
proper appraisal of evidence to which no exception can be taken.
11.
Resultantly, this appeal being devoid of force is hereby dismissed.
HBT/686/P
dismissed.
2014 Y L R 1310
[Peshawar]
Before Fasih-ul-Mulk and Muhammad Daud Khan, JJ
SHAH ZARIN---Appellant
Versus
Appeal
GUL ZAMIN and another---Respondents
Criminal Appeal No.506-P of 2010, decided on 24th October, 2013.
----S.302 (b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-e-amd--Appreciation of evidence---Information received from accused---Proof--Accused was convicted by Trial Court and sentenced to imprisonment for
life---Validity---Ocular account and confessional statement were in
consonance with medical evidence, which was further corroborated by
recovery of blood-stained articles and positive Forensic Science Laboratory
report---Story of prosecution was also corroborated by discovery/recovery of
"Churi", the weapon of offence, and the same was an admission under Art. 40
of Qanun-e-Shahadat, 1984, as the place, where accused concealed the same
was in exclusive knowledge of accused---Motive advanced by prosecution had
also been corroborated by statement of one prosecution witness---Conclusion
drawn by Trial Court regarding guilt of accused in commission of offence was
based on sound and cogent reasoning and the same was maintained---Appeal
was dismissed in circumstances.
Sharafat Ali v. The State 1999 SCMR 329; Mulla Riaz Ahmed v. The
State 2002 SCMR 626; Muhammad Ismail and another v. The State 1995
SCMR 1615 and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2
others 2001 SCMR 988 ref.
----S. 302(b)--- Qatl-e-amd--- Sentence, enhancement of---Principles---Accused

was convicted by Trial Court and sentenced to imprisonment for life--Complainant sought enhancement of sentence on the plea that accused was
directly charged in F.I.R. for brutal murder and the same was proved during
trial---Validity---No previous enmity existed between parties and occurrence
took place at the spur of the moment---Circumstances were present which
could be taken as extenuating/mitigating circumstances for the purpose of
awarding lesser sentence---Trial Court rightly attended to all such
circumstances while imposing quantum of sentence---Accused was entitled to
benefit of any doubt as an extenuating circumstance, while deciding question
of sentence---High Court declined to interfere in sentence awarded to
accused by Trial Court---Revision was dismissed in circumstances.
----S. 302 (b)---Criminal Procedure Code (V of 1898), Ss. 87, 204 & 561-A--Qatl-e-amd---Acquittal in absentia---Principles---Inherent jurisdiction of High
Court---Trial Court after conclusion of trial convicted one accused and
sentenced him to imprisonment for life, whereas accused who had been
declared Proclaimed Offender was acquitted of the charge---Validity---Judicial
discretion could not be exercised in favour of a person who was fugitive from
law, particularly when proceedings under Ss. 204 & 87 Cr.P.C. had been
carried out against him---Trial Court violated relevant procedure while
acquitting absconding accused in absentia---Illegal exercise of jurisdiction
was committed by Trial Court while acquitting absconding accused---High
Court in exercise of powers available under S. 561-A, Cr.P.C. set aside the
judgment to the extent of absconding accused---High Court directed Trial
Court to reconsider case of absconding accused---Case was remanded in
circumstances.
Fazli Ghaffor for Appellant.
Amir Amanullah Khan Chamkani for Respondent No.1
Muhammad Javid A.A.G. for the State.
Date of hearing: 24th October, 2013.
JUDGMENT
MUHAMMAD DAUD KHAN, J.--Convict-appellant, namely, Shah Zarin

was tried by learned Izafi Zilla Qazi/Additional Sessions Judge-I, Swat, for the
murder of Lal Zamin and causing injury to Mst. Amina. The learned trial Court,
vide the impugned judgment, dated 13-5-2010, convicted and sentenced the
appellant to life imprisonment with fine of Rs. 1,00,000 under section 544-A,
Cr.P.C. or in default thereof to suffer six months simple imprisonment. He was
further convicted under section 337-F(ii), P.P.C. and sentenced him to 'Daman'
amounting to Rs.5000 to be paid to injured P.W.Mst. Amina, however, benefit
of section 382-B, Cr.P.C. was extended to the appellant.
2.
Complainant also filed Criminal Revision No. 111 of 2010 for
enhancement of sentence. Since both the criminal appeal and criminal
revision have been filed against single judgment, therefore, we intend to
dispose of the same through this single judgment.
3.
The case of the prosecution is that on 1-5-2007 complainant Gul
Zamin lodged a report to police in Khwazakhela, Hospital, to the effect that
he had given a bullock to Tamroz P.W.3 for ploughing on which brother of
complainant, namely, Bahar was annoyed and had gone to bring back the
said bullock from Tamroz. At about 08:00 hours, the complainant forbade him
from not doing so, on which the said Bahar along with his sons Sher Zameen,
Shah Zameen and Shah Zareen started beating the complainant. On hearing
noise, his wife Mst. Amina and son, namely, Lal Zameen came to the spot. No
sooner did, Lal Zameen arrived at the spot, he was overpowered by accused
Bahar, Shah Zameen and Sher Zameen, while Shah Zareen gave him "Churri"
blow due to which he got injured on his back. During the scuffle, wife of
complainant also sustained injury on her left hand. The complainant shifted
his injured son to the hospital where he succumbed to his injuries. Motive for
the occurrence was stated to be dispute over untying and bringing back the
bullock, which was given to Tamroz by the deceased. The report of the
complainant was recorded in shape of Murasila Ex.PA. Muzakar Shah S.H.O.
(P.W.7) after recording report of the complainant, prepared injury sheets and
inquest reports of the deceased as well as injured and, thereafter, dispatched
them to doctors. Murasilla was sent to Police Station for registration of the
case and, as such, case F.I.R. No. 295 dated 1-5-2007 was registered under
sections 302/324/34, P.P.C. at Police Station Khwazakhela, District Swat.
4.
Dr. Muhammad Ali Jan P.W.4 conducted autopsy on the dead body of
the deceased besides examining injured Mst. Amina.
5.
After registration of case, investigation was entrusted to Said Rahman
S.I. (P.W.10), who on receipt of copy of F.I.R., visited the spot, prepared the
site plan Ex.PB at the pointation of complainant. During spot inspection, he
secured blood-stained earth from the place of deceased and seized the same
vide memo Ex.P.W.5/1. He also took into possession Shalwar and Qamiz of the
deceased, vide recovery memo Ex. P.W.5/2. He also recorded statements of
the P.Ws. On
4-5-2007, he arrested accused Bahar, Shah Zareen and Sher Zameen and
issued their card of arrest Ex. P.W.10/2. During interrogation, the accused
Shah Zarin confessed his guilt and his confessional statement was recorded.
He further disclosed that the weapon of offence i.e. `Chhuri' was concealed
by him in his home, accordingly, at his pointation the weapon of offence i.e.
'Chhuri' discovered and seized the same, vide memo Exh. P.W.5/3. He
prepared sketches Exh. P.W.10/4 and Exh. P.W. 10/5. On 7-5-2007, he
dispatched the blood-stained earth and blood stained garments along with
weapon of offence to F.S.L, Peshawar and result thereof is Ex. P.W.10/13.
Since accused Shah Zameen was avoiding his lawful arrest, therefore,
warrant under section 204, Cr.P.C. and notices under section 87, Cr.P.C. were
issued against him. After completion of investigation, complete challan in
case was submitted before the Court against accused Bahar, Sher Zameen
and Shah Zareen as well as against absconding accused Shah Zameen under
section 512, Cr. P.C.
6.
The appellant and his co-accused Bahar and Sher Zameen were
charge sheeted by the learned Trial Court to which, they pleaded not guilty
and claimed trial. The prosecution produced as many as ten witnesses to
prove its case while the accused were examined under section 342, Cr.P.C,
wherein they denied the prosecution allegations. However, they were neither
to be examined them on oath nor wished to produce evidence in their
defence.
7.
Learned trial Court while relying on the prosecution evidence
including judicial confession made by the convict-appellant, convicted and
sentenced the appellant as stated to above, while acquitted accused Bahar
and Sher Zameen including the absconding co-accused Shah Zameen, hence,
the present appeal as well as Criminal Revision No. 111 of 2010 for the
enhancement of sentence.
8.
Learned counsel for the appellant-convict argued that the appellant
was falsely charged in the case and the confession was obtained through
third degree method, which was neither voluntary nor true and the same was
also retracted by the appellant in his statement under section 342, Cr.P.C. He
argued that there are material contradictions and improvements in the
statements of P.Ws., therefore, the story advanced by the prosecution was
not established and the same could not be believed. He further contended
that the recoveries were planted against the appellant by the police with the
connivance of complainant. Lastly, he submitted that the prosecution has
miserably failed to prove its case against the accused beyond any shadow of
doubt and the learned trial Court has wrongly and mistakenly assessed the
evidence on record and passed the impugned judgment of conviction without
any cogent evidence, therefore, the same is liable to be set aside and the
accused-appellant be acquitted of the charge.
9.
Learned A.A.G. appearing on behalf of the State assisted by learned
counsel for complainant, on the other hand, contended that the appellant is
directly charged in the F.I.R. for a brutal murder and causing injury to an
innocent lady which is supported by the confessional statement of appellant
coupled with medical evidence, discovery of a 'Chhuri', blood from the place
of deceased, blood-stained garments of the deceased and FSL report. They
further submitted that the prosecution witnesses were consistent on material
particulars; therefore, the conviction is based on proper appreciation of
evidence on record, however, submitted that the convict-appellant was not
deserved for any leniency; therefore, his sentence may be enhanced to
death.
10.
We have carefully perused the record, in the light of above
submissions and relevant law.
11.
The record reveals that ocular testimony has been offered by
complainant Gul Zamen (P.W-1), the father of deceased and Mst. Amina
(P.W.2), the mother of deceased. The testimony of both the eyewitnesses
corroborated each other on all material points. They were subjected to
lengthy and searching cross-examination by defence, but nothing material
could be extracted from them, which could create any dent in the prosecution
case. Their presence on the spot has also been established because one of
them, namely, Mst. Amina, having the stamp of injury on her person.
Admittedly, P.W.1 is father and P.W.2 is mother of the deceased but it is
evident from the record that they have got no previous enmity or malice with
the appellant, in absence of which, they cannot be labeled as interested
witnesses. Their interest may be to this extent that to get the real culprits
punished for the murder of their son but one cannot expect from them to
involve innocent person instead of the real assailant. Their interest to
prosecute the actual culprit is natural; hence, they cannot be disbelieved. The
contention of learned counsel for appellant that the witnesses are father and
mother of the deceased and their testimony is unbelievable has no force
because there is nothing on file to suggest that the P.Ws. were having malice
or to falsely implicate the appellant and mere relationship of a witness with
the deceased is not sufficient to discard the evidence of such witnesses.
Reliance is placed on the cases titled Sharafat Ali v. The State (1999 SCMR
329) and Mulla Riaz Ahmed v. The State (2002 SCMR 626).
12.
The ocular testimony has also been corroborated by the judicial
confession of the appellant recorded by Haya-ud-Din Khan, Illaqa Qazi (P.W.6).
Learned Judicial Magistrate stated before the trial court that he has complied
with legal formalities while recording confessional statement and when he
was satisfied that the appellant wants to record his confession voluntarily,
without any duress then he recorded his confession. No doubt, the appellant
retracted from his confession in his statement recorded under section 342
Cr.P.C. but mere retraction by the accused from his confessional statement,
by itself, is not sufficient to affect its validity because it has now been settled
that conviction can be based on confes.sion alone even though retracted, if
the same is found to be true and voluntary. Reliance can be placed on the
case titled Muhammad Ismail and another v. The State (1995 SCMR 1615)
and Miss Najiba and another v. Ahmed Sultan alias Sattar and 2 others (2001
SCMR 988).
13.
Besides the above, the story of prosecution and confessional
statement of the appellant is further corroborated by the medical evidence.
Dr. Muhammad Ali Jan, Medical Officer, Civil Hospital Khwazakhela (P.W.4),
who conducted autopsy on the dead body of deceased and also examined the
injured P.W. Mst. Amina stated in his statement that he found a sharp wound
about 2" in length between the 8th, 9th ribs on right lateral chest, fracturing
the 9th rib and damaged the vital vessels, probably the pulmonary vein,
according to his opinion, the cause of death was excessive bleeding from vital
vessels, the hypo volumnic shock. He also found a simple sharp wound about
1-1/2" in length on left forearm on the person of injured P.W. Mst. Amina. He
declared the weapon of offence as sharp. The defence failed to shatter the
testimony of this P.W. The ocular account and confessional statement are in
consonance with the medical evidence, which is further corroborated by the
recovery of blood stained articles and positive FSL report.
14.
The story of prosecution is also corroborated by the
discovery/recovery of "churl", the weapon of offence, which is an admission
under Article 40 of the Qanun-e-Shahadat Order, 1984 because the place,
where the appellant concealed the same, was in his exclusive knowledge.
Motive advanced by the prosecution has also been corroborated by the
statement of Tamroz (P.W.3).
15.
Therefore, taking into consideration all the above facts and
circumstances of the case, we are persuaded to hold that the conclusions
drawn by the Court below regarding the guilt of appellant Shah Zarin in the
commission of offence is based on sound and cogent reasoning and, as such,
the same is maintained. Accordingly Appeal bearing No. 506 of 2010 is
dismissed.
16
As far as criminal revision for enhancement of sentence is concerned,
admittedly, there was no previous enmity between the parties and the
available record reveals that the occurrence took place at the spur of
moment. There were circumstances which could be taken as extenuating/
mitigating circumstances for the purpose of awarding lesser sentence and the
learned trial Court has rightly attended to them while imposing the quantum
of sentence. By now it is well-recognized principle of law that the accused is
entitled for the benefit of any doubt as an extenuating circumstance, while
deciding question of sentence. Therefore, the criminal revision is also
dismissed.
17.
Before parting with this judgment, it is pertinent to mention here that
one of the accused, namely, Shah Zameen has neither been appeared before
the Police, nor Court and remained fugitive from law up till now but the
learned trial Court recorded his acquittal along with the accused facing trial,
without any legal justification. True that the law as contained in section 366,
Cr.P.C. may not invalidate a judgment delivered by any criminal Court by
reasons only in the absence of any party but since an absconding accused is
considered to be deserter from the process of law as well as Courts,
therefore, would lose some of his normal rights granted to him by procedural
as well as substantive law. In the present case, admittedly, Shah Zameen has
neither joined the investigation nor made appearance before the Court.
Proceedings as provided under sections 87 and 88, Cr.P.C. including warrant
under section 204, Cr.P.C. have been issued against him. If the policy of
delivering judgments in the cases, like the one in hand, is permitted, it will
not only divest the Investigating Agency from interrogation of the accused
leaving culprits to go scot-free but would also encourage culprits to abscond
from the command of law and Courts. The procedure for such an accused is
that when he absconded from the process of law, he is to be declared
proclaimed offender and if any evidence is recorded in his absentia the said
evidence in case if during subsequent trial witnesses are not available or due
to certain reason their evidence cannot be procured, then the earlier
evidence recorded under section 512, Cr.P.C. can be used against him.
Besides the above, neither the complainant nor the State counsel were heard
by the trial Court in this case against the absconding accused, therefore,
judicial discretion cannot be exercised in favour of a person who is fugitive
from law, particularly, when proceedings under sections 204 and 87, Cr.P.C.,
have been carried out against him. Therefore, it can safely be said that the
trial Court in the instant case violated the relevant procedure while acquitting
the absconding co-accused in absentia.
Now the question for decision is that whether the impugned judgment
can be set aside to the extent of absconding accused Shah Zameen, when no
appeal has been filed against the acquittal of absconding accused. To solve
the question, recourse may be sought from section 561-A of Cr.P.C. which is
reproduced as under:--
"561 A. Saving of inherent power of High Court---Nothing in this Code

shall be deemed to limit or affect the inherent power of the High Court to
make such orders as may be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any Court or otherwise to secure
the ends of justice. "
A look at the above section would suggest that if an abuse of process

of Court by any subordinate Court is found or otherwise an order by the High
Court is required to secure the ends of justice, the inherent powers under this
section are available to the High Court to undo the wrong. Here in this case,
an illegal exercise of jurisdiction is found to have been committed by the trial
Court while acquitting the absconding co-accused, therefore, we, by
exercising inherent powers available to this Court under section 561-A,
Cr.P.C., set aside the impugned judgment to the extent of absconding coaccused Shah Zemeen and send the case back to the trial Court with the
direction to reconsider the case against the absconding co-accused in
accordance with law.
MH/676/P
accordingly.
Order
2014 Y L R 1136
[Peshawar]
Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ
GUL HABIB---Appellant
Versus
ZAMRUD KHAN and another---Respondents
Criminal Appeal No.1-B of 2003, decided on 26th June, 2013.
Criminal Procedure Code (V of 1898)---
----S. 417(2-A)---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common

intention---Appeal against acquittal---Two co-accused, were convicted and
sentenced by the Trial Court, but Appellate Court below acquitted them and
their acquittal was upheld up to Supreme Court---Court, in circumstances,
would have to see the role of accused, with those, whose acquittal had been
maintained up to the apex court---Role of accused was very much at par with
acquitted co-accused---Impugned judgment, in circumstances was not open
to any interference---Abscondence of accused for a sufficient long time, per
se, was not proof of his guilt---No conclusion, different from what the Trial
Court had drawn, could be drawn---Acquittal of accused, was upheld and
maintained, in circumstances.
Rehmat alias Rehma Masih v. The State 1995 SCMR 733; Rasool
Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373; Murad Khan
and another v. The State 2003 PCr.LJ 1295; Mir Khan v. The State 2002 PCr.LJ
1914 and Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 rel.
Muhammad Amin Khattak Lachi for Appellant.
Faridullah Khan, D.A.G. for the State.
Arif Awan for the Complainant.
Date of hearing: 26th June, 2013.
JUDGMENT
SYED AFSAR SHAH, J.---This criminal appeal under section 417 (2-A),
Cr.P.C. is directed against the judgment dated 7-10-2003, passed by learned
Additional Sessions Judge, Karak, whereby respondent Zamrud Khan was
acquitted of the charge.
2.
It so happened that, on 16-2-1988 at about 1700 hours, Gul Habib
alias Masta Gul, the complainant made a report to Muhammad Ishaq S.H.O,
Police Station Sabir Abad, in the bazaar of Sabir Abad, to the effect that on
the day of occurrence at about 1415 hours, he was on way to his home, after
making the payment of house-hold articles to Nasir Khan, a shop-keeper in

the Mandi of Arab Gul, when in the meanwhile Saifullah his son and Zaman
Khan his nephew, already present in the said Mandi, were also proceeding to
their houses on their motorbike and were ahead of him that when they
reached at the place of occurrence at about 1630 hours, from the front side
accused/ respondent Zamrud Khan and co-accused Wazir Badshah, duly
armed, started firing at Saifullah, while co-accused Khiyal Badshah, duly
armed, started firing at Zaman Khan, due to which they were hit and fell on
the ground; that the accused after commission of the offence bolted away
towards their houses; that when he (complainant) reached near the victims,
Saifullah and Zaman Khan, they have succumbed to their injuries. The
occurrence in addition to the complainant Gul Habib is stated to have been
witnessed by P.Ws., Falak Niaz and Yousaf Khan, who were also present at the
venue of Wardaat. Motive behind the offence as stated by the complainant,
was previous blood-feud enmity between the parties.
3.
Above is the narration of complainant Gul Habib, which he made to
Muhammad Ishaq S.H.O of Police Station concerned, in the shape of murasila
Exh.PA. After recording report of the complainant, it was read over and
explained to him, who after admitting it to be correct signed the same in
token of its correctness, whereafter the S.H.O. Muhammad Ishaq inspected
the bodies of both the deceased, prepared its injury sheets along with inquest
reports and referred the dead-bodies for post mortem examination to Civil
Hospital Sabir Abad under the escort of constables Abdur Rauf No. 363 and
Naseeb Khan No.365.
4.
Investigation was started in the case and on its conclusion challan
was submitted against the respondent/accused to the court of learned
Additional Sessions Judge, Karak, who on conclusion of the trial acquitted
him, vide judgment herein impugned.
5.
Arguments heard and record perused.
6.
It appears from the F.I.R. Exh.PA that in this case the occurrence took
place on 16-2-1988 at about 1630 hours, whereas the report has been lodged
on the same day at about 1700 hours. Gul Habib alias Masta Gul (P.W.7) is the
complainant of the present accused and he has charged the
respondent/accused Zamrud Khan alongwith his co-accused Wazir Badshah
and Khiyal Badshah, already acquitted for the murder of deceased Saifullah
and Zaman Khan.
7.
Admittedly and as is evident from the record, both the co-accused
Wazir Badshah and Khiyal Badshah were convicted and sentenced to
imprisonment for life on two counts by the learned Sessions Judge, Karak,
vide judgment dated 19-9-1989. The said judgment was assailed in this Court
and on 10-6-1990, their appeal was allowed, resultantly, they were acquitted
of the charges. The judgment of this court was challenged by the complainant
in the Hon'ble Supreme Court through criminal petition but the same was
dismissed on 12-4-1993. In the circumstances the Court will have to see the
role of the respondent/ accused Zamrud Khan with those whose acquittal has
been maintained up to the apex Court.
8.
It appears from the F.I.R that as per version of the complainant
.accused/ respondent Zamrud Khan and Wazir Badshah have made firing on
the deceased Saifullah, whereas due to the firing of Khiyal Badshah deceased
Zaman Khan was hit and died. From the above narration of the complainant
Gul Habib, one could safely say that the role of respondent/ accused Zarruud
Khan is very much at par with accused. Wazir Badshah, who was initially
convicted by the trial Court but in appeal to this Court, he was acquitted and
the criminal petition filed by the complainant against the said acquittal was
dismissed by the august Supreme Court. This being the position, we are clear
in mind that the judgment herein impugned is not open to any interference. If
any authority is needed, reference can be made to the case "Rehmat alias
Rehma Masih v. The State" (1995 SCMR 733).
9.
It is evident from the record that respondent/accused Zamrud Khan
remained absconder for a sufficient long time, but there are plethora of
judgments of the august Supreme Court that the same per se is not proof of
the guilt of an accused person and in which respect wisdom can also be
drawn from the case "Rasool Muhammad v. Asal Muhammad and 3 others"
(1995 SCMR 1373), Again reference can be made to case "Murad Khan and
another v. The State" (2003 PCr.LJ 1295) [Peshawar], where it has been held
that in the absence of any other corroborative evidence, evidences of
abscondence, even if found convincing would not be sufficient by itself to
warrant conviction of accused on a charge of murder. Abscondence in the
present case, though is for a very long time, but the same could not be a
substitute for real evidence. Reliance may be placed on the case, Mir Mat
Khan v. The State (2002 PCr.LJ 1914) [Peshawar].
10.
Again, as held by the apex Court in a case of "Mst. Jallan v.
Muhammad Riaz and others" (PLD 2003 SC 644) that:
Once an accused had earned acquittal in his favour, he enjoyed

double presumption of innocence and the Court while examining the case of
such accused must be very careful and cautious in interfering with the
acquittal order and normally should not set aside the same merely for the
reason that some other view was also possible---interference, however, could
be made in exercise of powers conferred upon the Court under S.417, Cr.P.C.,
if it was proved that the Court whose judgment was under scrutiny had
misread such evidence.
In the present case, after having gone though the judgment herein impugned,
we do not propose to draw a conclusion different from what the learned trial
Court has drawn and hence, we do not feel hesitant to uphold the acquittal of
the accused/respondent, resultantly, the same is maintained and accordingly
dismiss the appeal.
HBT/463/P
dismissed.
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Citation Name : 2014 YLR 699
QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : NOOR AGHA alias ABDULLAH

Side Opponent : State
S.302 (b)---Qatl-e-amd---Appreciation of evidence--- Confessional statement--Medical evidence---Scope---Accused was convicted by Trial Court and
sentenced to death on two counts for committin g murder of two persons--Validity---Confessional statement recorded by accused was voluntary and in
accordance with law, besides it rang true---Confessional statement coupled
with ocular account furnished by prosecution witnesses established the fact
that accused had committed cold blooded murder of two in nocent helpless
and armless persons---Non-production of medical certificate of both the
deceased was not fatal nor it could extend any benefit to accused---Real
father and brother of deceased were eye-witnesses, they, could not possibly
substitute any one else, except the real culprits---Shop of one prosecution
witness was situated in front of place of in cident who also supported
prosecution version---Evidence of prosecution witnesses were reliable and
confidence in spirin g, confessional statement of accused was true and
voluntary and sufficient to sustain conviction---Prosecution had proved guilt
of accused and Trial Court after takin g in to consideration entire evidence
and attendin g all circumstances rightly passed well reasoned judgment,
which was not open to any exception---Appeal was dis-missed in
circumstances.
Citation Name : 2014 PCrLJ 178
Side Appellant : MUHAMMAD AYUB

Ss. 345(7) & 497---Penal Code (XLV of 1860), SS.302 (c), 392 & 396---Qatl-eamd, robbery, dacoity with murder---Compromise effected between the
parties---Human life was the most valuable of all the thin gs---Islam as a
religion of humanity attached utmost sanctity to human life---Murder of a
human bein g was the greatest sin after the sin of 'shirk' (Assignin g partners
with Almighty Allah), and was unpardonable, particularly when committed
durin g the course of dacoity in view of the bar under S.345(7), Cr.P.C.--Islamic Sharia had divided the punishments for crimes in to three categories;
Hudood; Qisas; and Ta'zir---Said punishments, which had been determin ed by
the Holy Quran and the Sunnah for crimes, were called Hudood--Punishments for crime, in volvin g the rights of in dividuals, were called as
Qisas; and the punishments for crimes, which had not been fixed by the Holy
Quran or Sunnah, but had been left to discretion of the rulers and the Judges,
were called as Tazir---Where compromise between the parties had been
reached in non-compoundable offences durin g pendency of the Appeal , the
courts had taken the compromise as a ground for reduction in the quantum of
sentence only, but in the matters of bail, same could only be considered as
one of the facts, alongside the facts and circumstances of the case, for
determin in g whether bail be granted or not---Any person, who was an
accused of a non-compoundable offence, was not entitled to claim bail as a
matter of right on the sole strength of compromise---Offence of murder,
punishable with death under S.302 (a), P.P.C., and under S.302 (b), P.P.C. as
Tazir, though was compoundable under the law, but where murder had taken
place durin g the course of committin g a dacoity, punishable with death
under S.396, P.P.C., or an offence under S.392, P.P.C., was not compoundable.
PESHAWAR-HIGH-COURT-NWFP
Side Appellant : IMAM BAKHSH

S.302 (b)---Qatl-i-amd---Appreciation of evidence---Statements of both

witnesses were consistent---Occurrence took place at midnight, F.I.R. was
registered at 6.30 a.m.---Complain ant was illiterate village lady without any
telephone or conveyance so delay in lodgin g F.I.R. could not be considered
fatal---No question of identification could arise as accused were known to
complain ant---Accused could be identified in the light of electric bulb--- Eyewitnesses supported the version of complain ant---Forensic expert
corroborated ocular account---Medical evidence corroborated time of
occurrence---Prosecution was not bound to produce all the witnesses

mentioned in challan---Appeal was dismissed.
Side Appellant : FAYYAZ ALI

Side Opponent : ASGHAR ALI KHAN
SS.302 , 324, 337-F(iv) & 34---Crimin al Procedure Code (V of 1898), S.417(2A)---Qatl-e-amd, attempt to commit qatl-e-amd, causin g Mudihah, common
in tention---Appeal again st acquittal---Appreciation of evidence---Two in jured
prosecution witnesses had been abandoned by the prosecution for no good
reason, which amounted to withholdin g of best evidence---Complain ant,
brother of the deceased, was also in imical towards accused---Due to blood
relationship, status of the complain ant could not be excluded from the
category of in terested witness---in order to brin g the case out of the scope
of general rule, the evidence of the in terested witness was to be scrutin ized
with great care and caution---Complain ant had made certain dishonest
improvements in his cross-examin ation just to brin g in lin e his story with
the medical evidence and other circumstances of the case---Contradictions in
the testimonies of the prosecution witnesses, had created doubts about the
occurrence that same had not taken place in the mode and manner as
alleged by the complain ant---Once a witness was found tellin g lie on one
material aspect of the case, then ordin arily he/she should not be believed
with regard to other aspect of the case, unless the testimony given was fully
corroborated by strong in dependent corroboration, which was lackin g in the
present case---General role of firin g had been attributed to accused at the in
jured prosecution witnesses, but no evidence had been brought to prove the
same---in jured prosecution witnesses had not supported the version of the
prosecution---Both complain ant and prosecution witness had failed to prove
the in dividual participation of each of the accused persons in the crime--Ocular evidence was also in contradiction with medical evidence---No crime
empty had been recovered and taken in to possession from the place
assigned to accused in the site plan---Accused though had absconded,
however the prosecution could not take any premium from abscondence of
accused, when eye-witnesses had not established their presence at the spot,
and their testimony had been disbelieved bein g full of doubts and material
contradictions---Impugned judgment of acquittal havin g not been found to be
arbitrary, fanciful and capricious on the face of it, or result of misreadin g or
non-readin g of any material evidence, Trial Court had rightly acquitted
accused extendin g him benefit of doubt, after proper appraisal of evidence,
to which no exception could be taken---Appeal bein g devoid of force was
Side Appellant : SHAH ZARIN

Side Opponent : GUL ZAMIN
S.302 (b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-e-amd--Appreciation of evidence---in formation received from accused---Proof--Accused was convicted by Trial Court and sentenced to imprisonment for
life---Validity---Ocular account and confessional statement were in
consonance with medical evidence, which was further corroborated by
recovery of blood-stain ed articles and positive Forensic Science Laboratory

report---Story of prosecution was also corroborated by discovery/recovery of
"Churi", the weapon of offence, and the same was an admission under Art. 40
of Qanun-e-Shahadat, 1984, as the place, where accused concealed the same
was in exclusive knowledge of accused---Motive advanced by prosecution had
also been corroborated by statement of one prosecution witness---Conclusion
drawn by Trial Court regardin g guilt of accused in commission of offence was
based on sound and cogent reasonin g and the same was main tain ed--Appeal was dismissed in circumstances.
Side Appellant : GUL HABIB

Side Opponent : ZAMRUD KHAN
S. 417(2-A)---Penal Code (XLV of 1860), SS.302 & 34---Qatl-e-amd, common in

tention---Appeal again st acquittal---Two co-accused, were convicted and
sentenced by the Trial Court, but Appellate Court below acquitted them and
their acquittal was upheld up to Supreme Court---Court, in circumstances,
would have to see the role of accused, with those, whose acquittal had been
main tain ed up to the apex court---Role of accused was very much at par
with acquitted co-accused---Impugned judgment, in circumstances was not
open to any in terference---Abscondence of accused for a sufficient long time,
per se, was not proof of his guilt---No conclusion, different from what the Trial
Court had drawn, could be drawn---Acquittal of accused, was upheld and
main tain ed, in circumstances.
Side Appellant : MEHBOOB alias BOOBA

S. 265-K---Penal Code (XLV of 1860), SS.302 (b), 324, 337-F(ii), 34, 148 &
149---Qatl-e-amd, attempt to commit qatl-e-amd, causin g badi,ah, common
in tention, riotin g---Acquittal of co-accused---Acquittal of one set of coaccused by the Trial Court, had attain ed fin ality as no Appeal had been filed
again st said acquittal order by the complain ant party---High Court had
issued suo motu notice to said acquitted accused---in such circumstances,
the courts had to be cautious and prudent---Court had to be dynamic and see
whether the testimony of two eye-witnesses was corroborated by other
evidence, emanatin g from an in dependent source or otherwise.
Side Appellant : KHAN BAHADUR KHAN

Ss. 302(b), 324, 427 & 34---Qatl-e-amd, attempt to commit qatl-e-amd,

mischief, common in tention---Appreciation of evidence---Both the deceased
and two eye-witnesses were fired at by four accused, who were armed with
rifles of 7.62 bore; the deceased received the bullets, but two prosecution
witnesses escaped unhurt, which on the face of it, was not Appeal able to the
prudent min d---Only in ference, that one could draw from such course of
events, was that eye-witnesses were not present at the spot---Ocular account
was in consistent with the medical evidence and the version of two eyewitnesses was belied by the medical evidence---Prosecution had not been
able to prove its version with regard to motive---Actual motive for the
occurrence seemed to be obscure and shrouded in mystery the benefit of
which, must go to accused---Complain ant and other eye-witness had
furnished the ocular account, but on material poin ts they were not consistent
with each other---Both said eye-witnesses had made certain improvements in
their court statements; S.324, P.P.C. was in serted in the F.I.R., but Trial Court
had acquitted accused from said charge, which would mean that Trial Court
was also not sure about their presence---Presence of said two eye-witnesses,
appeared to be doubtful---Impugned judgment of the Trial Court, was set
aside, accused was acquitted of the charge under SS.302 (b), 424, 427 & 34,
P.P.C., and was set at liberty.
Side Appellant : SAJID

Ss. 17(4) & 24---Penal Code (XLV of 1860), SS.302 (b), 324 & 337-A(iv)--Constitution of Pakistan, Art.203-DD---Haraabah, qatl-e-amd, attempt to
commit qatl-e-amd, causin g Shajja-i-Munaqqalah---Forum of Appeal ,
determin ation of---Jurisdiction of Federal Shariat Court to entertain and hear
the murder reference, Appeal and revision---Scope---Accusation and the
nature of offence committed by accused for which he/she in itially was tried
and charged would determin e the forum of Appeal ; and not the outcome of
trial because forum of Appeal would not change with the result of the trial--High Court, in the present case, had no jurisdiction to hear the Appeal again
st the order passed by the Trial Court---Present reference, Appeal and
revision, were completely misconceived and not main tain able before the
High Court---Registrar of the High Court, was directed to send the Appeal ,
murder reference and revision petition to Federal Shariat Court for further
necessary action.

Side Appellant : MINA GUL
Side Opponent : SIRAJ-U-DEEN
SS.302 , 324 & 34---Crimin al Procedure Code (V of 1898), S. 417(2-A)---Qatle-amd, attempt to commit qatl-e-amd, common in tention---Appeal again st
acquittal---Appreciation of evidence---Four persons were charged for the
murder of the deceased, but no specific role had been attributed to any of the
accused persons for charge of effective firin g upon the deceased---Only in
dependent witness in the case was driver of the Vehicle who sustain ed in
jury at the spot, but said driver had not been produced by the prosecution in
order to establish its case---Accused along with prosecution witness, were
also accompanyin g the deceased in the same Vehicle; and were on the top
roof of said Vehicle at the time of occurrence; and were exposed to the
assailants; but no reason was shown as to how they got escaped unhurt,
when they were unarmed and had blood feud with the assailants---Material
contradictions were noticed in between the statements of complain ant and
the alleged eye-witness regardin g time of occurrence; and the manner in
which occurrence took place---Driver of the Vehicle was examin ed as defence
witness, and he had not supported the version and stance taken by the
complain ant and never charged the acquitted accused for the commission of
the offence---No in dependent witness from the locality supported the version
of the complain ant---Available record had reflected that neither the complain
ant nor the prosecution witness were accompanyin g deceased at the time of
in cident---Delay of 2-1/2 hours for lodgin g the report and specially, when the
vehicle was available with the complain ant and there was a functional road
approachin g to the Police Station remain ed unexplain ed---Appeal again st
acquittal, bein g without any substance and meritless, was dismissed, in
circumstances.
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Citation Name : 2014 MLD 942
Side Appellant : Mst. BAKHT SABA

Side Opponent : The STATE through Additional Advocate-General
S.302 (b)---Qanun-e-Shahadat (10 of 1984), Art.129 (g)---Qatl-e-amd--Appreciation of evidence---Benefit of doubt---Unexplain ed delay in F.I.R.--Withholdin g of evidence---Presumption---Both accused women were
convicted by Trial Court and sentenced to imprisonment for life---Validity--Delay had occurred in lodgin g F.I.R., as occurrence was alleged to have taken
place at midnight while report was lodged at 10.15 hours---Complain ant was
stated to have received in formation regardin g death of his brother at
7.30/8.00 a.m., whereas distance between place of occurrence and police
station was 10/12 kilometer and there was no explanation regardin g such
delay---Conduct of complain ant immediately after in cident was contrary to
natural course of human conduct as he did not make efforts either to take
dead body of his brother to hospital or police station rather he was waitin g
for arrival of police to the spot, therefore, consultation and deliberation in
lodgin g of report could not be ruled out---Prosecution did not produce those
two prosecution witnesses who had allegedly helped accused while shiftin g
dead body of deceased to the house rather abandoned them in spite of the
fact that they were important witnesses to provide support to the case of
prosecution---Presumption under illustration (g) of Art. 129 of Qanun-eShahadat, 1984, could be drawn in favour of accused as prosecution had
withheld its best evidence---Sin gle circumstance creatin g reasonable doubt
in a prudent min d was sufficient for acquittal of accused not as a matter of
grace but as a matter of right---Evidence led again st accused persons was
not sufficient for main tain in g conviction and sentence---High Court
extended benefit of doubt to both the accused and they were acquitted of the
charge---Appeal was allowed in circumstances.
Citation Name : 2014 PLD 394
LAHORE-HIGH-COURT-LAHORE
Side Appellant : BASHIR AHMAD BUTT

S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in

---Death sentence reduced to imprisonment for life---Motive suggestin g no
deep rooted enmity between parties---Sin gle entry wound on deceased--Effect---Accused allegedly fired at and murdered the deceased---Motive for
the occurrence was that deceased hired accused for pain tin g his house and
a dispute arose between them over payment of labour---Accused was
convicted under S.302 (b), P.P.C by Trial Court and was sentenced to death--Validity---Matter was promptly reported to the police, 35 min utes after the
occurrence, which ruled out chances of deliberations/consultations---Ocular
account was furnished by father and paternal uncle of the deceased, and
their testimonies could not be discarded merely because of their relationship
in ter se and with the deceased as they had no serious enmity or ill will
towards the accused for his false implication in the case---Place of occurrence
was a shop, wherein father and paternal uncle of deceased worked as
partners, therefore, their presence at the spot was quite natural and
probable---Present case was a case of sin gle accused as far as firin g at the
deceased was concerned and substitution in such like cases was a rare
phenomenon as kith and kin of deceased would not implicate an in nocent
person by lettin g of the real culprit---Motive for the murder was not disputed
by the defence, and the accused himself in his statement under Ss.340(2) &
342 Cr.P.C. admitted that deceased had to pay some amount to him regardin
g services rendered by him for pain tin g his house---Report of Forensic
Science Laboratory revealed that empties collected from the spot were fired
from the pistol recovered at the in stance of the accused---Contradiction
between ocular and medical evidence was regardin g poin t of entry and exit
of bullet fired by accused, but not regardin g the general location of the fire
shot, which in the present case was the head of deceased---Eye-witnesses
who were themselves in firin g range were expected to run for cover in the
heat of the moment, therefore, bein g panic-stricken and shocked their
narration of events based on a sudden glance could not be expected to be
punctiliously accurate and precise---Possibility of in stantaneous turnin g of
head by the deceased in response to a close range fire in the face could not
be ruled out, hence variation between ocular and medical evidence regardin
g poin t of entry of bullet in the circumstances of the case, did not appear to
be a major variation---Evidence again st accused was sufficient to main tain
his conviction under S.302 (b), P.P.C., however present case was not a case
for capital punishment because motive set up by the prosecution suggested
that there was no deep rooted enmity between the parties and possibility of
somethin g else happenin g at the spot prior to the occurrence could not be
ruled out, and because only a sin gle entry wound was observed on the body
of deceased durin g his post mortem examin ation---Death sentence awarded
to accused was altered to imprisonment for life---Appeal was dismissed
accordin gly.
Side Appellant : KAMRAN

Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation

of evidence---Name of accused figured with the role of in flictin g firearm in
jury with pistol .30-bore at the deceased in promptly lodged F.I.R.---Parties
bein g known to each other; and occurrence havin g taken place in the evenin
g when ordin arily in the hot days of June, the sun set at 7.15 P.M., therefore,
there was no possibility of mis-identification---Both the prosecution witnesses

had remain ed coherent with each other on salient features of the
prosecution version; they were subjected to lengthy cross-examin ation, but
defence had failed to shatter their testimony---Pen-picture of the in cident,
with regard to its time and manner put forth by prosecution witnesses,
straightway Appeal ed to reasons---Prosecution witness, was proved to be
present at the place of occurrence at the relevant time---Nature and
dimension of in jury in flicted upon the deceased lent support to the
prosecution case with regard to weapon of offence---Defence version,
advanced by accused that, the deceased and the complain ant had tried to
commit dacoity, and that accused had received in jury at the hands of
deceased, was equivocal---Prosecution version of the ocular account, found
full support from medical evidence with regard to time of occurrence and
locale/seat of in jury---Evidence on record had proved that accused was
previously in volved in three crimin al cases---Weapon of offence i.e. pistol .
30-bore, used by accused, was a lethal weapon, and one shot made by such
gun was sufficient to cause death in ordin ary course of nature, which had
happened in the present case---Chemical Examin er report showed that earth
collected by in vestigatin g Officer, was stain ed with blood, which had
straightway supported the prosecution case---No overt act was ascribed to
acquittal of co-accused---Trial Court while extendin g benefit of doubt to said
co-accused, had acquitted them of the charge, their acquittal, in no way
would favour case of accused---Normal sentence for culpable homicide
amountin g to murder, was sentence of death---Prosecution witnesses havin g
not been tested on the touchstone of "Tazkia-tul-Shahood", Trial Court was
justified to convict accused under S.302 (b), P.P.C. as Tazir---Prosecution case
havin g fully been proved again st accused, Trial Court was well-justified in
passin g conviction again st accused and sentencin g him to death as he had
deprived the complain ant from their young lad.
Side Appellant : MUHAMMAD SAFDAR

S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused named in the

crime report was husband of the deceased; and it was a daylight
occurrence---Complain ant and prosecution witness, bein g previously known
to accused, it could safely be held that no chance was of misidentification of
assailant---Both prosecution witnesses had fully established their receivin g
the in formation qua quarrel between the spouses; and also substantiated
their proceedin g to the place of occurrence---Pen-picture of the occurrence
adduced in the statements of the prosecution witnesses of ocular account
was straightforward---It could not be said that said witnesses had made
dishonest statements---Both said prosecution witnesses had corroborated
each other on salient features of occurrence, with regard to in flictin g in
juries by accused upon the person of deceased; and despite lengthy crossexamin ation, their testimony could not be shattered---Delay of one day in
recordin g statements of prosecution witnesses under S.161, Cr.P.C., which
otherwise was fully explain ed, could be termed as trivial in nature creatin g
no dent on the testimony of ocular account, which seemed to be
straightforward and confidence-in spirin g---Complain ant and prosecution
witness, though were in ter se related, and also happened to be closely
related to the deceased, but mere such close relationship, could not discard
the testimony, if otherwise same was trustworthy, Appeal in g to reason, and
corroborated by in dependent circumstance---Defence advanced by accused,
could only be termed as an afterthought story---Prosecution version of the
ocular account found full support from the medical evidence available on
record---Blood-stain ed hatchet recovered on the poin tation of accused, and
as per his report same was stain ed with human blood---Blood stain ed earth
collected from the spot was also sent to Chemical Examin er and Serologist,
who straightaway supported the prosecution case---Accusations levelled
again st accused in the crime report were found correct---Prosecution
witnesses havin g not been tested on the touchstone of 'Tazki-tul-Shahood',
Trial Court was justified to convict accused under S.302 (b), P.P.C. and
sentenced him to death as Tazir---Prosecution had substantiated its case
through leadin g evidence by the most natural witnesses of the occurrence,
who remain ed coherent on salient features of the prosecution version--Nothin g was on record to show even a glimpse in order to arrive at the
conclusion that it was a case of substitution---Prosecution case havin g fully
been proved beyond reasonable doubt, Trial Court was well-justified in passin
g conviction again st accused and sentencin g him to death.
Side Appellant : TALIB HUSSAIN

Side Opponent : AZMAT ALI
SS.302 , 148 & 149---Crimin al Procedure Code (V of 1898), S.417(2-A)---Qatle-amd, riotin g, common object---Appeal again st acquittal---Appreciation of
evidence---Medical evidence had contradicted the ocular account, which had
created serious dents in the prosecution version goin g to its roots---Durin g
the course of in vestigation, it came in to limelight, that none of respondents/
accused persons had committed the offence but two other persons were real
culprits---Statement of the complain ant, could not be taken as a gospel truth
without in dependent corroboration---One guest of the complain ant, who had
reached the house of complain ant in order to attend marriage ceremony,
was quite in dependent witness, but was not produced durin g the course of
trial in support of the prosecution version, but was given up for the reasons
best known to the prosecution---Scaled site plan, was at variance with the
stance, advanced by the complain ant in the crime report with regard to
distance between accused and the deceased---Accused persons remain ed on
physical remand for full period, but nothin g was recovered from their
possession---Not only accused persons, were found in nocent durin g the
course of successive in vestigations, but in vestigatin g Officer had also
prepared discharge report in that regard---Trial Court had not committed any
misreadin g or non-readin g of evidence available on record---Conclusion
drawn by the Trial Court was just and proper, which needed no in terference
by High Court---Counsel for appellant/complain ant, had failed to poin t out
any evidence on record, which was required to convict a person on the
charge of capital sentence---Whole prosecution case was full of conjectures,

surmises and suspicions, which could not be made basis for conviction in a
case of murder; and what to talk of Appeal again st acquittal, when the
presumption of in nocence, would become double in such like cases--Acquittal judgment of the Trial Court, was upheld, in circumstances.
Side Appellant : MUHAMMAD TAHIR

S. 302(b)---Qatl-e-amd---Quantum of punishment---Prosecution had proved its

case again st accused through confidence in spirin g and reliable evidence--Accused had committed the murder of his wife by in flictin g repeated firearm
in juries on her person---No mitigatin g circumstance was available in favour
of accused, as he had committed a shockin g, callous and cold blooded
murder of his wife---Accused, therefore, did not deserve any leniency and no
extenuatin g circumstance was available in his favour for extendin g him any
benefit regardin g his sentence; his conviction and sentence under S.302 (b),
P.P.C. were main tain ed and his Appeal was dismissed---Death sentence
awarded to accused was confirmed and murder reference was answered in
the affirmative.
Side Appellant : TASAWAR HAYAT

S. 302(b)---Qatl-e-amd---Appreciation of evidence---Motive not proved---Nonrepeatin g of fire---Mitigatin g circumstances---Sentence, reduction in

---Accused was convicted under S.302 (b), P.P.C. by Trial Court and was
sentenced to death---Validity---Ocular account was confidence in spirin g
havin g no iota of doubt and the same could be relied upon---Motive part of
occurrence was not proved beyond reasonable doubt---Once prosecution
alleged a motive, then it was its duty to prove the same and when
prosecution failed to prove the same, it could be considered a mitigatin g
circumstance in favour of accused---Although, in the present case,
prosecution set up a specific motive but the same could not be proved and
accused did not repeat fire upon deceased despite havin g the opportunity--High Court main tain ed the conviction but converted death sentence in to
imprisonment for life---Appeal was dismissed accordin gly.
Side Appellant : MUHAMMAD AKRAM

S. 426(2-B)---Penal Code (XLV of 1860), SS.302 (b) & 337-F(v)---Qatl-e-amd,

causin g Hashimah---Suspension of sentence, pendin g disposal of Appeal
---Accused had prayed for suspension of sentence and his release on bail, on
the ground that again st judgment of High Court, Supreme Court had granted
leave to Appeal ---Validity---Supreme Court had granted leave to Appeal to
the parties to reappraise the evidence and to determin e the questions as set
down in the leave grantin g order; it would be premature at that stage to
contend that the judgment of the Trial Court had been restored and judgment
of High Court had been set aside by Supreme Court---Accused bein g the age
of more than 60 years seemed to be an in firm person who was behin d the
bars sin ce 27-10-2011, the date of judgment of the Trial Court, was entitled
to the relief prayed for---Sentence of accused was suspended pendin g
disposal of Appeal by Supreme Court and he was admitted to bail, in
circumstances.

Side Appellant : TARIQ SAEED
S. 417(2-A)---Penal Code (XLV of 1860), S.302 ---Pakistan Arms Ordin ance (XX
of 1965), S.13---Qatl-e-amd, possessin g illicit arms---Appeal again st
acquittal---Accused who was acquitted for the murder charge, requested for
his acquittal in case under S.13 of Pakistan Arms Ordin ance, 1965, which
request was acceded to, and accused was also acquitted of the charge under
S.13 of Pakistan Arms Ordin ance, 1965---Validity---Facts relatin g to recovery
of dagger, were in separably stitched with story qua the murder of the
deceased---Said dagger had not been recovered from the possession of
accused, but in vestigatin g Officer took it in his possession in absence of
accused---Accused was implicated as an accused of murder case, and he was
also booked in a separate case under the same F.I.R.---Witnesses of recovery
of said dagger, who also deposed again st accused in murder case, were
disbelieved---Story of murder of the deceased and that of recovery of dagger
both were disbelieved and accused acquitted---Case, depended a lot on the
outcome of the murder case, in which accused was acquitted---Recovery of
the dagger was not an in dependent circumstance, but it stood imbedded in
murder case, in which accused was acquitted---Complain ant had failed to file
Appeal within prescribed time-limit---Appeal was also liable to be dismissed
on that score.
Side Appellant : TARIQ AMJAD

S.302 (b)---Qatl-e-amd---Appreciation of evidence---Substitution of real
culprit, phenomena of---Applicability---Scope---Accused was convicted and

sentenced to imprisonment for life by Trial Court for committin g murder--Plea raised by accused was that it was blin d murder---Real brother of
deceased could not let off real assailant and substitute some other person for
murder of his brother---Trial Court rightly observed that it was accused who
had knowledge of place where he kept crime weapon and he led to that place
and got recovered the same---Such fin din g of Trial Court could not be set
aside on the ground that in dependent person of locality or some respectable
did not join at the time by in vestigatin g officer---Prosecution successfully
proved case again st accused who was the sole person in flictin g sin gle fatal
in jury to deceased in daylight for no legal justification---Fin din gs of Trial
Court were borne out of the record and supported by convin cin g and cogent
prosecution evidence and the same were main tain ed---Appeal was
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KARACHI-HIGH-COURT-SINDH
Side Appellant : ALLAHANDO KALHORO

S.426(1-A)(c)---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd---Suspendin

g of sentence and grant of bail durin g pendency of Appeal ---Delay in hearin
g of Appeal could not be attributed to accused persons as no adjournment
was sought by them on any date of hearin g---Accused were contin uously
makin g an effort for hearin g of case earlier by filin g urgent applications--Accused were not previous convicts/offenders for an offence punishable with
death or imprisonment for life, nor they were declared to be hardened,
desperate and dangerous crimin als; or accused of an act of terrorism
punishable with death or imprisonment for life---Accused who were sentenced
to suffer life imprisonment, had already remain ed in jail for more than 14
years; while in cludin g remissions, they had already undergone almost the
entire sentence of life imprisonment awarded by the Trial Court---Two accused
persons, who were brothers and were of advanced age, were sufferin g from
certain disease---Accused had made out a case for grant of bail by suspendin
g their sentence durin g pendency of Appeal , as there was no likelihood that
Appeal could be heard in near future, in view of pendency of large number of
cases before the court---Contention that application under S.426, Cr.P.C. could
not be heard as crimin al revision for enhancement of sentence was also
pendin g, was repelled, as no show-cause notice for enhancement of
sentence from life to death, as required in terms of S.439(6), Cr.P.C. had been
issued to accused persons---Mere pendency of the crimin al revision
application; in absence of issuance of said statutory notice to accused
persons, would not render the statutory provision of S.426, Cr.P.C. as
redundant---Accused had made out a case for grant of bail under S.426(1-A)
(c), Cr.P.C. by suspendin g their sentence durin g pendency of Appeal , which
was granted to them.
Side Appellant : ARSHAD ALI

Ss. 302(b), 306, 308 & 311---Qatl-e-amd, qatl-e-amd not liable to qisas, tazir
after waiver or compoundin g of right of qisas in qatl-e-amd---Appreciation of
evidence---Retracted judicial confession not only appeared to be true,
voluntary and confidence-in spirin g, but also found corroboration from the
circumstantial evidence---Accused allegedly had committed murder of his
wife and his son---Trial Court had awarded death penalty to accused under
S.302 (b), P.P.C. as tazir on two counts, firstly, on account of murder of his son
and secondly for murder of his wife---Another son who was just 6-1/2 months
of age, after death of his mother had no wali, besides his father/accused--Qatl-e-amd was not liable to qisas when offender had caused the death of his
child or grandchild, how lowsoever---Section 308, P.P.C., which detailed the
punishment in cases where qatl-e-amd was not liable to qisas, provided that
an offender guilty of qatl-e-amd was not liable to qisas under S.306, P.P.C., he
would be liable to diyat---Trial Court, in circumstances was not justified in
sentencin g accused to death without the application of S.311, P.P.C.,
whereunder death sentence could not have been awarded to accused for
causin g the death of his son without chargin g him on account of fasad fil
arz---Accused, after the murder of his son, could not be given the benefit of
S.306(c), P.P.C., which provided that qatl-e-amd was not liable to qisas, when
any wali of the victim was a direct descendant howsoever of the offender--Sin ce in the present case, no descendant of the offender who could be wali
of the deceased, death sentence awarded to accused on account of
committin g qatl-e-amd of his wife, in absence of any issue as tazir, did not
require in terference---Accused had contended that he was sufferin g from
mental ailment at the time when he committed such gruesome act---Accused
nowhere pleaded mental ailment durin g the trial, nor produced any
documentary evidence to show that at any poin t of time, accused had
complain ed of any type of mental ailment---Even in the memo of Appeal , no
such ground had been taken after two years of filin g Appeal ---Nowhere it
was pleaded that accused had any previous record in respect of his mental
ailment---Half-hearted afterthought plea of mental ailment was not found
worth-consideration---Sentence of accused was modified on account of
murder of his son to imprisonment for 14 years as tazir, whereas dismissed
Appeal on account of committin g the murder of his wife by main tain in g the
death penalty so awarded.
Side Appellant : HUSSAIN BUX

S.302 (b)---Qatl-e-amd---Appreciation of evidence--- Enmity--- in terested

witnesses---All witnesses were in ter-related and were residents of different
villages, who admitted enmity between them over abduction of girls and Jirga
was held before Sardars---Enmity cuts both ways---Place of in cident was
surrounded by habitation, there were villages, garden, petrol pump and busy
road but no one from there was examin ed to corroborate their testimony--Even no attendant from petrol pump was examin ed as witness from where
they fueled their car---Driver of the car, who was an in dependent witness,
was with them who accordin g to prosecution witnesses witnessed the in
cident but he was not examin ed---No number of witnesses was required to
prove a certain fact but testimony of sin gle in dependent witness was
sufficient to warrant conviction as evidence was always weighed and not
counted---Conviction must be based on evidence beyond any shadow of
doubt because damage resultin g from erroneous sentence was irreversible
and prin ciple that it was better to acquit person than to punish an in nocent
one, as prosecution had failed to prove guilt of accused beyond any shadow
of doubt---High Court set aside conviction of accused and acquitted him of
the charge---Appeal was allowed in circumstances.
Side Appellant : DODO KHAN

S.302 (b)---Qatl-e-amd---Appreciation of evidence---Variations in evidence--Plea of alibi---Accused was convicted by Trial Court under S. 302 (b) P.P.C. and
was sentenced to imprisonment for life---Validity---Evidence and not the
quantity of witnesses was to be seen---Evidence of Prosecution witnesses was
consistent and had not been shaken---Variations, if any, were not such as
would raise reasonable doubt and in any case, were to be expected given the
fact that evidence was recorded some years after the in cident---If the
evidence of prosecution witnesses been letter perfect, marchin g as it were,
in lockstep, that would have been somethin g that would have caused
concern---Robustness of prosecution evidence to the standard required in a
crimin al case had been made out---Evidence produced by accused in support
of plea of alibi taken was weak and of doubtful nature, and the same was in
sufficient to create reasonable doubt in what had been deposed by
prosecution witnesses---Accused failed to make out a case for his acquittal--Appeal was dismissed in circumstances.
Side Appellant : GHULAM MUHAMMAD

S. 426---Penal Code (XLV of 1860), S.302 (b)--- Qatl-e-amd--- Suspension of

sentence pendin g Appeal and release of accused on bail---Present jail Appeal
was filed by appellants/accused persons, three days after awardin g them
conviction by the Trial Court, and it was admitted for hearin g after one
month and four days from its filin g---Order sheet had revealed that there was
no delay on the part of accused party in proceedin g with the Appeal
---Record did not show any adjournment application moved by accused
persons or their advocate---Period of statutory delay, in the case, appeared to
have matured for consideration of the release of accused persons on bail--Nothin g was on record to in dicate, if accused were previously convicted, or
were in volved in any act of terrorism---No material had been brought on
record to in dicate that accused were desperate, hardened or dangerous
crimin als---Accused persons, who were in jail sin ce the day of their arrest on
9-4-2004, seemed to be entitled for the suspension of their sentence and
grant of bail pendin g Appeal ---Sentence awarded to accused persons, was
suspended and they were directed to be released on bail in circumstances.
Side Appellant : ZULFIQAR ALI KACHELO alias ALI
S. 426---Penal Code (XLV of 1860), Ss. 201 & 302---Causin g disappearance of

evidence of offence, or givin g false in formation to screen of offender and
Qatl-e-amd---Suspension of sentence---Accused was convicted and sentenced
for causin g disappearance of evidence of offence, or givin g false in
formation to screen of offender and Qatl-e-amd---Durin g pendency of
Appeal , on the basis of compromise between the parties, High Court
acquitted the accused of the charge of Qatl-e-amd---Accused sought
suspension of sentence as offence under S.201, P.P.C. was not
compoundable---Validity---When main offence under S.302 , P.P.C. had been
compromised and accused was acquitted in that offence, in view of a clog
regardin g compromise in the offence under S.201, P.P.C., which was not
compoundable, the matter was required to be heard on merits at the time of
regular hearin g---High Court lookin g at rush of work and pendency of large
number of old cases did not fin d it possible within a short period of time to
decide the Appeal ---High Court suspended the sentence awarded to accused
under S.201, P.P.C.---Bail was allowed in circumstances.
Side Appellant : ZULFIQAR ALI KACHELO alias ALI

Ss. 302, 311 & 338-E---Crimin al Procedure Code (V of 1898), S.345---Qatl-eamd---Compoundin g of offence---Imposition of Ta'zir after waiver or
compoundin g of right of Qisas in Qatl-e-amd---Prin ciple---Accused was
convicted by Trial Court and sentenced to death penalty---Durin g pendency
of Appeal compromise was effected between the parties---Validity---None of
the in gredients of S.311 or 338-E, P.P.C., were attracted as neither in F.I.R.,
charge or in entire prosecution evidence, there was even any suggestion by
complain ant or prosecution regardin g commission of offence in brutal or
shockin g manner---No impediment existed in acceptin g compromise reached
at between parties in respect of offence under S.302 , P.P.C. which was
compoundable---High Court accepted the compromise and compounded the
offence under S.302 , P.P.C.---Accused was acquitted in circumstances.
Side Appellant : GHULAM MURTAZA

Side Opponent : GHULAM SHABIR
Ss. 426 & 345---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd--Suspension of sentence, pendin g disposal of Appeal ---Compromise--Scope---If there was a genuin e compromise, the proper course for the parties
was to resort to the legal course, so provided by law for the purpose---Plea of
compromise, could only sustain when there was a genuin e compromise from
the person, so authorized by law for the purpose---in the present case, only
three out of nin e legal heirs had come with a plea of compromise---Sin ce the
compromise could legally sustain only if same would come from all the legal
heirs, who were so authorized by law under relevant column of S.345, Cr.P.C.,
said three legal heirs, could not be considered to be sufficient to hold it a

compromise---If there was a genuin e compromise/pardon, the course for
compromise to be resorted for acquittal could be adopted, accordin g to
settled law---Application for suspension of sentence was declin ed, in
circumstances.
Side Appellant : GHULAM MURTAZA

Side Opponent : GHULAM SHABIR
Ss. 426, 345 & 497---Penal Code (XLV of 1860), SS.302 (b)/34---Qatl-e-amd,
common in tention---Trial Court awarded sentence of life imprisonment--Application for suspension of sentence pendin g disposal of Appeal ---Power of
court to grant bail---Application for suspension of sentence had solely been
filed on the ground of "no objection" extended by some of the legal heirs of
the deceased---Validity---Provisions of S.426 & S.497, Cr.P.C. were analogous
both relatin g to the powers of the court for releasin g accused on bail--Criteria for exercisin g powers in both said provisions of law were different--Power of Appellate Court under S.426(1), Cr.P.C. was not limited, and the
court could pendin g disposal of an Appeal , suspend the sentence of accused
in an appropriate case in its discretion for good and sufficient reasons, but
that power of suspension of sentence and grant of bail was not wider than
that of the one under S.497, Cr.P.C.; and unless it was shown that conviction
was based on no evidence, or was based on an in admissible evidence; was
not ultimately sustain able---Appellate Court had been given power to
suspend the sentence of accused, but same was to be exercised with due
care and caution and satisfactorily---Cogent reasons were required to be

advanced for suspendin g the sentence, especially, in respect of sentence of
life imprisonment---Mere releasin g of accused pendin g determin ation of his
guilt, or suspension of sentence pendin g determin ation of legality of
judgment, would not carry any effect upon the fin al fate of Appeal or case---If
durin g course of trial a witness would make an affidavit exoneratin g
accused, he would cause a doubt towards his statement recorded durin g
course of in vestigation, or would allow a presumption of supportin g the
prosecution---By makin g such affidavit, he would open a room toward
prosecution case---Such witness could only make such an affidavit before
recordin g of his evidence, because once his evidence was recorded, there
would remain no room for such an affidavit---Any such attempt would be of no
avail for accused, unless conflictin g statement was brought on record
through the course, provided by law itself regardin g re-examin ation of
witness---in matter of Appeal , there was no room for filin g of affidavit of the
witnesses---Once the judgment was pronounced such affidavit it could be
established to be result of misreadin g or non-readin g of the evidence, or
bein g in violation of law.
SUPREME-COURT-AZAD-KASHMIR
Side Appellant : GHULAM HUSSAIN

Side Opponent : GHAZANFAR alias KALA
S. 417(2-A)---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd---Appeal again

st acquittal---Accused had double presumption of in nocence, firstly on the
ground that every accused was presumed to be in nocent, unless convicted;
and secondly on the ground of acquittal order by two courts---Acquittal order

passed by the Trial Court and upheld by the Shariat Court to the extent of
accused persons bein g perfectly legal in accordance with the rule of Admin
istration of Crimin al Justice, was main tain ed---Appeal to their extent
merited dismissal.
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Side Appellant : MUHAMMAD BASHARAT

Side Opponent : Syed SAQIB SHAH
S. 417(2-A)---Penal Code (XLV of 1860), SS.302 /34, 324, 337 & 341---Azad
Jammu and Kashmir Offences Again st Property (Enforcement of Hudood) Act,
1985, S.17(2)---Qatl-e-amd, common in tention, attempt to commit qatl-eamd, causin g Shajjah, wrongful restrain t Haraabah---Appeal again st
acquittal---Reappraisal of evidence---Origin ally no one was nomin ated in the
F.I.R. as no one had seen the occurrence, and in cident was a blin d murder--Evidence relied upon by the prosecution which was based on recovery of
hatchet, wrist watch and vest, did not connect accused persons with the
crime as those had been recovered after a considerable delay, which had
created a serious doubt in prosecution story---Once the case had been set up,
the whole responsibility would lie on the prosecution to prove it---Even a
slightest doubt was sufficient to acquit an accused, whereas, in the present
case a number of doubts were created---No misreadin g or mis-appreciation
of evidence was poin ted out warrantin g the in terference by the Supreme
Court---Order of acquittal passed by the Trial Court and upheld by the Shariat
Court was based on correct appreciation of evidence, which did not warrant in
terference in Appeal ---Said order could only be in terfered with, if it was
found perverse, unreasonable, arbitrary or manifestly wrong, whereas, no
such element was available in the case---Complain ant had failed to poin t out
any misreadin g or non-readin g of evidence which had not been dealt with by
takin g in to consideration for the two courts below, while passin g the
impugned judgments---Appeal was dismissed, in circumstances.
Citation Name : 2013 SCMR 1618
SUPREME-COURT
Side Appellant : ZAHOOR AHMED

S. 302(b)---Crimin al Procedure Code (V of 1898), S.342---Qatl-e-amd--Reappraisal of evidence---Sentence, reduction in ---Death sentence reduced
to imprisonment for life---High Court not recordin g any fin din gs as to
whether the prosecution had proved its case again st the accused---Effect--Accused and co-accused persons allegedly killed 9 people---Accused was
convicted under S.302 (b), P.P.C. by Trial Court and was awarded death
sentence on 8 counts---High Court dismissed Appeal filed by accused again st

his conviction and confirmed death sentence awarded by Trial Court---Plea of
accused was that his admission in his statement under S.342, Cr.P.C. could
not be made a ground to award him death sentence and that such a
statement was either accepted as a whole or discarded as a whole---Validity--Common in tention of accused to kill the deceased persons did exist,
therefore fin din gs of Trial Court and High Court could not be set at naught,
however the High Court had proceeded on the premise that statement of
accused under S.342, Cr.P.C. was sufficient to warrant in terference---High
Court had not recorded any fin din gs as to whether the prosecution had
proved its case again st the accused---Such fact was itself a ground which
could warrant reduction of sentence from death to imprisonment for life--Capital punishment in such like cases could be reduced---Death sentence of
accused on each count was commuted to life imprisonment---Appeal was
disposed of accordin gly.
SUPREME-COURT
Side Appellant : SABIR HUSSAIN alias SABRI

Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Re-appraisal

of evidence---Sentence, reduction in ---Death sentence reduced to
imprisonment for life---Extenuatin g circumstance---Accused was convicted
under S. 302(b), P.P.C. by Trial Court and sentenced to death for murderin g
the deceased with further direction to pay compensation of Rs. 100,000 to
the legal heirs of deceased---Accused was further convicted under S. 324,
P.P.C. by Trial Court for attemptin g to commit qatl-e-amd of in jured witness

and sentenced to 5 years imprisonment with further direction to pay Rs.
25,000 to the in jured witness---High Court dismissed Appeal filed by accused
again st his conviction and confirmed death sentence awarded by Trial
Court---Validity---Complain ant claimed to have been present at the crime
scene, however he was not attacked by the accused despite the fact that
motive had been attributed to him---Such fact was by itself an extenuatin g
circumstance on basis of which sentence of death awarded to accused could
be reduced to that of life imprisonment---No motive had been attributed
again st the deceased and it could safely be held that motive was not proved
by the prosecution---Conviction of accused under S.302 (b), P.P.C. was main
tain ed, however his death sentence was commuted to that of life
imprisonment---Conviction and sentence of accused under S.324, P.P.C. was
main tain ed---Awards of compensation by Trial Court, which had been upheld
by High Court, were main tain ed---Appeal was disposed of accordin gly.
SUPREME-COURT
Side Appellant : MANZOOR AHMED

Side Opponent : FAZAL AHMED
S. 426---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art.

185(3)---Qatl-e-amd---Suspension of sentence---Assessment of evidence for
purposes of suspendin g sentence under S.426, Cr.P.C.---Scope---Accused
were convicted under S.302 (b), P.P.C. and sentenced to imprisonment for
life---High Court suspended sentence of accused under S. 426, Cr.P.C. on the
grounds that in juries attributed to them fell within the mischief of S. 337-
F(iii), P.P.C., which was punishable with three years' imprisonment; that in
juries attributed to them were on non-vital parts of the body; that they did
not repeat hatchet blows; that in juries attributed to them were not
corroborated by medical evidence, and that they had already undergone
more than 4-1/2 years of the substantive sentence---Validity---High Court
while suspendin g sentence of accused discussed prosecution evidence in a
manner which was the preserve of the Appellate Court---High Court went in to
deeper appreciation of evidence, which exercise could not have been
undertaken in a petition under S. 426, Cr.P.C.---Observations made by High
Court in its judgment were likely to prejudice the case of the prosecution in
Appeal ---Accused were attributed specific role of causin g in juries to the
deceased in the F.I.R. and in the evidence led durin g trial---Question as to
whether there was sufficient corroboration of the ocular account entailed
deeper appreciation of evidence which ought to have been left to the
Appellate Court durin g hearin g of Appeal ---Sentences of accused could not
have been suspended in the present case---Impugned order of High Court
was set aside and direction was given to take accused in to custody and send
them to judicial lockup.
SUPREME-COURT
Side Appellant : ABDUL RASHID alias TEDDI

S. 345---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Compoundin g of

offence---Compromise by legal heirs of deceased---Right of successors of a
legal heir to enter in to a compromise for purpose of compoundin g the
offence---Scope---Question as to whether successors of a legal heir of

deceased were equally competent to enter in to a compromise with the
convict---Trial Court convicted convict in question under S.302 (b), P.P.C. and
sentenced him to death---Death sentence of convict was confirmed by High
Court and also by the Supreme Court---Deceased at the time was survived by
five legal heirs, her mother and four uncles---Mother and three uncles of
deceased compromised with the convict and waived their right of Qisas,
however one of the uncles (legal heir) refused to forgive the convict and
remain ed adamant not to do so even till the time of his death---After death of
said legal heir, his successors however compromised with the convict,
whereafter an application was moved before Trial Court for effectin g a
compromise, but same was dismissed on the basis that one of the legal heirs
in his life time refused to forgive the convict---High Court also upheld order of
Trial Court with the observation that despite subsequent compromise with
successors of legal heir, who had not forgiven the convict in his lifetime,
application for compromise was liable to be dismissed---Validity---Not only the
survivin g legal heirs of the victim had legal authority to waive right of Qisas
and compound the offence with the convict upon payment of compensation
of Diyat or without payment in lieu of pleasure of God, but such right was
equally in heritable by the successors of any legal heir of the victim, who
durin g life time had either not entered in to compromise with the convict or
refused to enter in to such compromise, as despite his earlier refusal such
legal heir was competent to change his min d and subsequently enter in to
compromise with the convict---Prin ciple of estoppel would not be attracted in
such a situation to debar successors of such a legal heir from exercisin g their
right to compromise in dependently at their own free will---Appeal was
SUPREME-COURT
Side Appellant : MUHAMMAD IMRAN @ ASIF
S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Sentence, reduction in --Conversion of death sentence in to imprisonment for life---Motive unproved--Accused actin g under the in fluence of co-accused (i.e. his father)---Nonattribution of fatal in juries---Effect---Accused and co-accused persons
allegedly killed the deceased by in flictin g knife blows upon him---Alleged
motive for the occurrence was a quarrel/altercation between the parties
which took place few months prior to the occurrence---Trial Court convicted
accused under S.302 (b), P.P.C. and sentenced him to death---High Court main
tain ed conviction and sentence recorded by Trial Court---Validity---Motive was
not proved by any evidence and one of the prosecution witnesses admitted in
his cross-examin ation that he did not know the reason which led to the
quarrel between the parties few months prior to the occurrence---Evidence
suggested that at the time of the occurrence accused was young man of 21
years of age who acted under the in fluence of his co-accused father, who
raised the lalkara that deceased should be killed, whereafter accused and
other co-accused launched the attack---None of the fatal in juries were
attributed to the accused---Prosecution case was found to be false qua two
co-accused persons, who were acquitted---Sentence of death awarded to
accused was converted in to life imprisonment in circumstances---Appeal was

Side Appellant : MALU
Side Opponent : ALI BAKHSH
SUPREME-COURT
Ss. 300, 302(b), 315 & 316---Qatl-e-amd, qatl shibh-e-amd---Reappraisal of

evidence---Qatl-e-amd, defin ition of---Scope---Death caused due to excessive
bleedin g from a bullet in jury---Conviction under S.316, P.P.C. altered to S.302
(b), P.P.C.---Accused allegedly fired at the deceased and caused him an in jury
on his left thigh---Deceased died due to excessive bleedin g as the nearest
health center was 50 to 60 kilometers away---Trial Court convicted accused
under S.302 (b), P.P.C. and sentenced him to death---High Court converted
death sentence of deceased to life imprisonment fin din g that the deceased
received only one in jury on his thigh and died due to excessive bleedin g,
therefore, case of accused fell under S.315, P.P.C., which was punishable
under S.316, P.P.C.---Validity---Section 300, P.P.C. categorized offence of Qatle-amd in three forms i.e. in tention of causin g death or in tention of causin g
bodily harm by doin g an act which in the ordin ary course might cause death
and or the knowledge that the act was so immin ently dangerous that it must
in all probability cause death---Act of accused, in the present case, fell in the
third category of S.300, P.P.C. sin ce the accused had the knowledge that by
causin g firearm in jury of Kalashnikov on the deceased, in all probabilities,
his act would cause death of deceased---Fin din g of High Court was again st
language of S.300, P.P.C. and also in deviation of S.315, P.P.C. (Qatl shibh-eamd)---Accused had caused firearm in jury with a Kalashnikov, and in law,
was liable to be punished under S.302 (b), P.P.C.---Accused was arrested on
the followin g day of the occurrence and on his poin tation Kalashnikov was
recovered from his house---Police recovered 16 empties from the place of
occurrence and as per report of Forensic Science Laboratory, 9 empties
matched with the crime weapon---Medical evidence was in conformity with
ocular evidence---Sentence of life imprisonment awarded to accused was in
accordance with law, however his conviction under S.316, P.P.C. was modified
to S.302 (b), P.P.C.---Appeal was allowed accordin gly.
SUPREME-COURT
Side Appellant : AHMAD

Side Opponent : SHAFIQ-UR-REHMAN
Ss. 302(b), 452 & 337-A(i)/337-F(i)---Qatl-e-amd, house-trespass after

preparation for hurt, shajjah-i- khafifah, ghayr-jaifah-damiyah---Appreciation
of evidence---Concurrent runnin g of sentences---Scope---Different offences
committed in "one and the same transaction"---Accused was alleged to have
murdered the deceased and caused in juries to the in jured person---Trial
Court convicted accused under SS.302 (b), 452, 337-A(i) & 337-F(i), P.P.C. and
sentenced him to death---High Court reduced sentence of death to
imprisonment for life---Accused contended that while reducin g his sentence
to life imprisonment High Court omitted to pass an order regardin g
concurrent runnin g of his sentences---Validity---All the offences for which
accused was convicted had been committed in one and the same transaction
and thus, it would serve the in terests of justice if all the sentences of
imprisonment passed again st accused were ordered to run concurrently with
each other---High Court had in advertently omitted orderin g runnin g of
sentences of imprisonment concurrently---Appeal was disposed of by
Supreme Court with the direction that sentences of imprisonment passed
again st accused would run concurrently with each other.

SUPREME-COURT

preparation for hurt, shajjah-i-khafifah, ghayr-jaifah-damiyah---Reappraisal of
evidence---Plea for enhancement of sentence, dismissal of---Accused was
alleged to have murdered the deceased and caused in juries to the in jured
person---Trial Court convicted accused under SS.302 (b), 452, 337-A(i) & 337F(i), P.P.C. and sentenced him to death--- High Court reduced sentence of
death to imprisonment for life---Validity---High Court recorded cogent, valid an
elaborate reasons for reducin g sentence of accused from death to
imprisonment for life---Said reasons in cluded the fact that accused was aged
about twenty years at the time of the occurrence; that accused fired at the
deceased at the biddin g command of his parents; that immediate cause of
occurrence remain ed shrouded in mystery, and that accused was not
personally in volved in the motive set up by the prosecution---Accused had
almost served out all of his sentence of imprisonment---Appeal was dismissed
accordin gly.
SUPREME-COURT
Side Appellant : IQBAL AHMED

S. 345(2-A)---Penal Code (XLV of 1860), Ss. 302 & 311--- Qatl-e-amd---Murder
on the pretext of 'siyahkari'---Waiver or compoundin g of offence---Scope--Compromise between the parties---Trial Court convictin g accused under
S.311, P.P.C. without havin g recorded any evidence---Legality---F.I.R. under
S.302 , P.P.C. was registered again st the accused (appellant) for committin g
the murder of deceased persons---Parties, durin g trial, effected compromise
before evidence was recorded---Trial Court accepted application for
compromise under S.345(2), Cr.P.C. but convicted accused under S.311,
P.P.C., without recordin g any evidence, fin din g that he had committed
premeditated and cold-blooded murder of two people on the pretext of
"Siahkari" in a shockin g and brutal manner, which was outrageous to public
conscience and community, therefore, it disentitled court from takin g a
lenient view or mercy in his favour in spite of the compromise---Validity---Fin
din g of Trial Court that accused committed "premeditated and cold-blooded"
murders or it was "outrageous to the public conscience and community"
entailed factual in quiry and recordin g of evidence, which exercise was not
undertaken by the Trial Court---Appeal was allowed by the Supreme Court,
impugned judgment was set aside and case was remanded to the Trial Court
to decide the matter afresh in light of the relevant provisions of substantive
and procedural law through a speakin g judgment.
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Side Appellant : MUHAMMAD BASHARAT

Side Opponent : Syed SAQIB SHAH
S. 417(2-A)---Penal Code (XLV of 1860), SS.302 /34, 324, 337 & 341---Azad
Jammu and Kashmir Offences Again st Property (Enforcement of Hudood) Act,
1985, S.17(2)---Qatl-e-amd, common in tention, attempt to commit qatl-eamd, causin g Shajjah, wrongful restrain t Haraabah---Appeal again st
acquittal---Reappraisal of evidence---Origin ally no one was nomin ated in the
F.I.R. as no one had seen the occurrence, and in cident was a blin d murder--Evidence relied upon by the prosecution which was based on recovery of
hatchet, wrist watch and vest, did not connect accused persons with the
crime as those had been recovered after a considerable delay, which had
created a serious doubt in prosecution story---Once the case had been set up,
the whole responsibility would lie on the prosecution to prove it---Even a
slightest doubt was sufficient to acquit an accused, whereas, in the present
case a number of doubts were created---No misreadin g or mis-appreciation
of evidence was poin ted out warrantin g the in terference by the Supreme
Court---Order of acquittal passed by the Trial Court and upheld by the Shariat
Court was based on correct appreciation of evidence, which did not warrant in
terference in Appeal ---Said order could only be in terfered with, if it was
found perverse, unreasonable, arbitrary or manifestly wrong, whereas, no
such element was available in the case---Complain ant had failed to poin t out
any misreadin g or non-readin g of evidence which had not been dealt with by
takin g in to consideration for the two courts below, while passin g the
impugned judgments---Appeal was dismissed, in circumstances.
SUPREME-COURT
Side Appellant : ZAHOOR AHMED

S. 302(b)---Crimin al Procedure Code (V of 1898), S.342---Qatl-e-amd--Reappraisal of evidence---Sentence, reduction in ---Death sentence reduced
to imprisonment for life---High Court not recordin g any fin din gs as to
whether the prosecution had proved its case again st the accused---Effect--Accused and co-accused persons allegedly killed 9 people---Accused was
convicted under S.302 (b), P.P.C. by Trial Court and was awarded death
sentence on 8 counts---High Court dismissed Appeal filed by accused again st
his conviction and confirmed death sentence awarded by Trial Court---Plea of
accused was that his admission in his statement under S.342, Cr.P.C. could
not be made a ground to award him death sentence and that such a
statement was either accepted as a whole or discarded as a whole---Validity--Common in tention of accused to kill the deceased persons did exist,
therefore fin din gs of Trial Court and High Court could not be set at naught,
however the High Court had proceeded on the premise that statement of
accused under S.342, Cr.P.C. was sufficient to warrant in terference---High
Court had not recorded any fin din gs as to whether the prosecution had
proved its case again st the accused---Such fact was itself a ground which
could warrant reduction of sentence from death to imprisonment for life--Capital punishment in such like cases could be reduced---Death sentence of
accused on each count was commuted to life imprisonment---Appeal was
SUPREME-COURT
Side Appellant : SABIR HUSSAIN alias SABRI

Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Re-appraisal

of evidence---Sentence, reduction in ---Death sentence reduced to
imprisonment for life---Extenuatin g circumstance---Accused was convicted
under S. 302(b), P.P.C. by Trial Court and sentenced to death for murderin g
the deceased with further direction to pay compensation of Rs. 100,000 to
the legal heirs of deceased---Accused was further convicted under S. 324,
P.P.C. by Trial Court for attemptin g to commit qatl-e-amd of in jured witness
and sentenced to 5 years imprisonment with further direction to pay Rs.
25,000 to the in jured witness---High Court dismissed Appeal filed by accused
again st his conviction and confirmed death sentence awarded by Trial
Court---Validity---Complain ant claimed to have been present at the crime
scene, however he was not attacked by the accused despite the fact that
motive had been attributed to him---Such fact was by itself an extenuatin g
circumstance on basis of which sentence of death awarded to accused could
be reduced to that of life imprisonment---No motive had been attributed
again st the deceased and it could safely be held that motive was not proved
by the prosecution---Conviction of accused under S.302 (b), P.P.C. was main
tain ed, however his death sentence was commuted to that of life
imprisonment---Conviction and sentence of accused under S.324, P.P.C. was
main tain ed---Awards of compensation by Trial Court, which had been upheld
by High Court, were main tain ed---Appeal was disposed of accordin gly.
SUPREME-COURT
Side Appellant : MANZOOR AHMED

Side Opponent : FAZAL AHMED
S. 426---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art.

185(3)---Qatl-e-amd---Suspension of sentence---Assessment of evidence for
purposes of suspendin g sentence under S.426, Cr.P.C.---Scope---Accused
were convicted under S.302 (b), P.P.C. and sentenced to imprisonment for
life---High Court suspended sentence of accused under S. 426, Cr.P.C. on the
grounds that in juries attributed to them fell within the mischief of S. 337F(iii), P.P.C., which was punishable with three years' imprisonment; that in
juries attributed to them were on non-vital parts of the body; that they did
not repeat hatchet blows; that in juries attributed to them were not
corroborated by medical evidence, and that they had already undergone
more than 4-1/2 years of the substantive sentence---Validity---High Court
while suspendin g sentence of accused discussed prosecution evidence in a
manner which was the preserve of the Appellate Court---High Court went in to
deeper appreciation of evidence, which exercise could not have been
undertaken in a petition under S. 426, Cr.P.C.---Observations made by High
Court in its judgment were likely to prejudice the case of the prosecution in
Appeal ---Accused were attributed specific role of causin g in juries to the
deceased in the F.I.R. and in the evidence led durin g trial---Question as to
whether there was sufficient corroboration of the ocular account entailed
deeper appreciation of evidence which ought to have been left to the
Appellate Court durin g hearin g of Appeal ---Sentences of accused could not
have been suspended in the present case---Impugned order of High Court
was set aside and direction was given to take accused in to custody and send
them to judicial lockup.
SUPREME-COURT
Side Appellant : ABDUL RASHID alias TEDDI

S. 345---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Compoundin g of

offence---Compromise by legal heirs of deceased---Right of successors of a
legal heir to enter in to a compromise for purpose of compoundin g the
offence---Scope---Question as to whether successors of a legal heir of
deceased were equally competent to enter in to a compromise with the
convict---Trial Court convicted convict in question under S.302 (b), P.P.C. and
sentenced him to death---Death sentence of convict was confirmed by High
Court and also by the Supreme Court---Deceased at the time was survived by
five legal heirs, her mother and four uncles---Mother and three uncles of
deceased compromised with the convict and waived their right of Qisas,
however one of the uncles (legal heir) refused to forgive the convict and
remain ed adamant not to do so even till the time of his death---After death of
said legal heir, his successors however compromised with the convict,
whereafter an application was moved before Trial Court for effectin g a
compromise, but same was dismissed on the basis that one of the legal heirs
in his life time refused to forgive the convict---High Court also upheld order of
Trial Court with the observation that despite subsequent compromise with
successors of legal heir, who had not forgiven the convict in his lifetime,
application for compromise was liable to be dismissed---Validity---Not only the
survivin g legal heirs of the victim had legal authority to waive right of Qisas
and compound the offence with the convict upon payment of compensation
of Diyat or without payment in lieu of pleasure of God, but such right was
equally in heritable by the successors of any legal heir of the victim, who
durin g life time had either not entered in to compromise with the convict or
refused to enter in to such compromise, as despite his earlier refusal such
legal heir was competent to change his min d and subsequently enter in to
compromise with the convict---Prin ciple of estoppel would not be attracted in
such a situation to debar successors of such a legal heir from exercisin g their
right to compromise in dependently at their own free will---Appeal was
SUPREME-COURT
Side Appellant : MUHAMMAD IMRAN @ ASIF

S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Sentence, reduction in --Conversion of death sentence in to imprisonment for life---Motive unproved--Accused actin g under the in fluence of co-accused (i.e. his father)---Nonattribution of fatal in juries---Effect---Accused and co-accused persons
allegedly killed the deceased by in flictin g knife blows upon him---Alleged
motive for the occurrence was a quarrel/altercation between the parties
which took place few months prior to the occurrence---Trial Court convicted
accused under S.302 (b), P.P.C. and sentenced him to death---High Court main
tain ed conviction and sentence recorded by Trial Court---Validity---Motive was
not proved by any evidence and one of the prosecution witnesses admitted in
his cross-examin ation that he did not know the reason which led to the
quarrel between the parties few months prior to the occurrence---Evidence
suggested that at the time of the occurrence accused was young man of 21
years of age who acted under the in fluence of his co-accused father, who
raised the lalkara that deceased should be killed, whereafter accused and
other co-accused launched the attack---None of the fatal in juries were
attributed to the accused---Prosecution case was found to be false qua two
co-accused persons, who were acquitted---Sentence of death awarded to
accused was converted in to life imprisonment in circumstances---Appeal was
SUPREME-COURT
Side Appellant : MALU

Side Opponent : ALI BAKHSH
Ss. 300, 302(b), 315 & 316---Qatl-e-amd, qatl shibh-e-amd---Reappraisal of

evidence---Qatl-e-amd, defin ition of---Scope---Death caused due to excessive
bleedin g from a bullet in jury---Conviction under S.316, P.P.C. altered to S.302
(b), P.P.C.---Accused allegedly fired at the deceased and caused him an in jury
on his left thigh---Deceased died due to excessive bleedin g as the nearest
health center was 50 to 60 kilometers away---Trial Court convicted accused
under S.302 (b), P.P.C. and sentenced him to death---High Court converted
death sentence of deceased to life imprisonment fin din g that the deceased
received only one in jury on his thigh and died due to excessive bleedin g,
therefore, case of accused fell under S.315, P.P.C., which was punishable
under S.316, P.P.C.---Validity---Section 300, P.P.C. categorized offence of Qatle-amd in three forms i.e. in tention of causin g death or in tention of causin g
bodily harm by doin g an act which in the ordin ary course might cause death
and or the knowledge that the act was so immin ently dangerous that it must
in all probability cause death---Act of accused, in the present case, fell in the
third category of S.300, P.P.C. sin ce the accused had the knowledge that by
causin g firearm in jury of Kalashnikov on the deceased, in all probabilities,
his act would cause death of deceased---Fin din g of High Court was again st
language of S.300, P.P.C. and also in deviation of S.315, P.P.C. (Qatl shibh-eamd)---Accused had caused firearm in jury with a Kalashnikov, and in law,
was liable to be punished under S.302 (b), P.P.C.---Accused was arrested on
the followin g day of the occurrence and on his poin tation Kalashnikov was
recovered from his house---Police recovered 16 empties from the place of
occurrence and as per report of Forensic Science Laboratory, 9 empties
matched with the crime weapon---Medical evidence was in conformity with
ocular evidence---Sentence of life imprisonment awarded to accused was in
accordance with law, however his conviction under S.316, P.P.C. was modified
to S.302 (b), P.P.C.---Appeal was allowed accordin gly.
SUPREME-COURT


preparation for hurt, shajjah-i- khafifah, ghayr-jaifah-damiyah---Appreciation
of evidence---Concurrent runnin g of sentences---Scope---Different offences
committed in "one and the same transaction"---Accused was alleged to have
murdered the deceased and caused in juries to the in jured person---Trial
Court convicted accused under SS.302 (b), 452, 337-A(i) & 337-F(i), P.P.C. and
sentenced him to death---High Court reduced sentence of death to
imprisonment for life---Accused contended that while reducin g his sentence
to life imprisonment High Court omitted to pass an order regardin g
concurrent runnin g of his sentences---Validity---All the offences for which
accused was convicted had been committed in one and the same transaction
and thus, it would serve the in terests of justice if all the sentences of
imprisonment passed again st accused were ordered to run concurrently with
each other---High Court had in advertently omitted orderin g runnin g of
sentences of imprisonment concurrently---Appeal was disposed of by
Supreme Court with the direction that sentences of imprisonment passed
again st accused would run concurrently with each other.
SUPREME-COURT


preparation for hurt, shajjah-i-khafifah, ghayr-jaifah-damiyah---Reappraisal of
evidence---Plea for enhancement of sentence, dismissal of---Accused was
alleged to have murdered the deceased and caused in juries to the in jured
person---Trial Court convicted accused under SS.302 (b), 452, 337-A(i) & 337F(i), P.P.C. and sentenced him to death--- High Court reduced sentence of
death to imprisonment for life---Validity---High Court recorded cogent, valid an
elaborate reasons for reducin g sentence of accused from death to
imprisonment for life---Said reasons in cluded the fact that accused was aged
about twenty years at the time of the occurrence; that accused fired at the
deceased at the biddin g command of his parents; that immediate cause of
occurrence remain ed shrouded in mystery, and that accused was not
personally in volved in the motive set up by the prosecution---Accused had
almost served out all of his sentence of imprisonment---Appeal was dismissed
accordin gly.
SUPREME-COURT
Side Appellant : IQBAL AHMED

S. 345(2-A)---Penal Code (XLV of 1860), Ss. 302 & 311--- Qatl-e-amd---Murder

on the pretext of 'siyahkari'---Waiver or compoundin g of offence---Scope--Compromise between the parties---Trial Court convictin g accused under
S.311, P.P.C. without havin g recorded any evidence---Legality---F.I.R. under
S.302 , P.P.C. was registered again st the accused (appellant) for committin g
the murder of deceased persons---Parties, durin g trial, effected compromise
before evidence was recorded---Trial Court accepted application for
compromise under S.345(2), Cr.P.C. but convicted accused under S.311,
P.P.C., without recordin g any evidence, fin din g that he had committed
premeditated and cold-blooded murder of two people on the pretext of
"Siahkari" in a shockin g and brutal manner, which was outrageous to public
conscience and community, therefore, it disentitled court from takin g a
lenient view or mercy in his favour in spite of the compromise---Validity---Fin
din g of Trial Court that accused committed "premeditated and cold-blooded"
murders or it was "outrageous to the public conscience and community"
entailed factual in quiry and recordin g of evidence, which exercise was not
undertaken by the Trial Court---Appeal was allowed by the Supreme Court,
impugned judgment was set aside and case was remanded to the Trial Court
to decide the matter afresh in light of the relevant provisions of substantive
and procedural law through a speakin g judgment.
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SUPREME-COURT
Side Appellant : MEHBOOB UR REHMAN

S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Plea of alibi---Doubt

regardin g presence of accused at the scene of in cident---Accused was
alleged to have fired at the deceased, which resulted in the latter's death on
the spot---High Court dismissed Appeal filed by accused again st his
conviction and sentence under S.302 (b), P.P.C.---Validity---Accused
surrendered before police himself along with a letter from the Commandin g
Officer of his Scouts unit to the effect that accused was on duty in a different
city on the day of the occurrence---Statements of five persons from the
Scouts unit of the accused were also produced which mentioned the fact that
accused was on duty in a different city on the day of the in cident---Accused
in sisted upon his plea of alibi at the earliest opportunity before the police
authorities and also stated the same in his statement under S.342, Cr.P.C.
before the Trial Court---Document had been in troduced in evidence to
substantiate plea of alibi taken by accused, therefore, onus shifted on the
prosecution to disprove such a document, which had not been done in the
present case---Doubt existed regardin g presence of accused at the scene of
in cident, benefit of which had to go to him--- Appeal was allowed, impugned
judgment of High Court was set aside and accused was acquitted of the
charge.
SUPREME-COURT
Side Appellant : HASSAN

Art. 13(a)---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-Amd---Protection

again st double punishment---Sentence, enhancement of---Enhancement of
life imprisonment to death---Scope---Complain ant/ State seekin g
enhancement of sentence of convict from life imprisonment to death at a
time when convict had already served out a period in custody equal to or
more than a full term of imprisonment for life durin g pendency of his Appeal
---in such a case wherein the convict sentenced to imprisonment for life had
already served out his entire sentence of imprisonment for life, the court
might, in its discretion, not enhance his sentence of imprisonment for life to
death and while considerin g the issue of such enhancement of sentence the
court might, consider the provisions of Art.13(a) of the Constitution along
with the other factors for decidin g whether the sentence of imprisonment for
life passed again st the convict might be enhanced to death or not.
SUPREME-COURT

Art. 185---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-Amd---Crimin al Appeal

before Supreme Court---Sentence, quantum of---Scope---in a case lackin g
malice aforethought on the part of the accused party and in a case of an
occurrence developin g at the spur of the moment the Supreme Court,
dependin g upon the circumstances of the case, generally looked at the
matter of sentence with some degree of empathy and consideration.
SUPREME-COURT

S. 403(1)---Constitution of Pakistan, Art. 185---Double jeopardy---Autrefois

acquit and autrefois convict, prin ciples of---Applicability---Convict who was
sentenced to death had undergone a period of custody equal to or more than
a full term of imprisonment for life durin g the pendency of his legal remedy
again st his conviction---Question was as to whether sentence of death
awarded to convict could be main tain ed by the Supreme Court despite the
fact that he had already served out one of the two legal sentences provided
for in S.302 (b), P.P.C.---Plea of accused was that in such a situation the
Supreme Court must not, affirm the sentence of death and might reduce the
same to imprisonment for life in view of provisions of S.403, Cr.P.C---Validity--Prin ciples of autrefois acquit and autrefois convict contain ed in S.403(1),
Cr.P.C. forbid a new trial after a conviction or acquittal on the basis of the
same facts had attain ed fin ality but it was equally obvious that the said prin
ciple had no application to the present situation wherein holdin g of a new
trial was not in issue---Prin ciples of autrefois acquit and autrefois convict
contain ed in S.403(1), Cr.P.C. had no relevance to a case wherein the
question under consideration in an Appeal was not as to whether a new trial
of the convict should be held or not but the issue was as to which sentence
would be the appropriate sentence for a convict.
Side Appellant : MUHAMMAD ISMAIL


---Conversion of death sentence in to life imprisonment---Occurrence not
premeditated---Lack of in tention to commit murder---Accused allegedly made
firin g upon the deceased---Motive for the occurrence was that prior to the in
cident deceased had allegedly assaulted and abused the brother of accused--Trial Court convicted and sentenced the accused under S.302 (b), P.P.C. to
suffer death as well as to pay Rs. 100,000 as compensation to legal heirs of
the deceased---Validity---Accused did not deny the allegation at the time of
his examin ation under S.342, Cr.P.C. and also recorded his confessional
statement before the Judicial Magistrate---Ocular account was fully supported
by the medical evidence as well as recovery of crime weapon, followed by

positive report of Forensic Science Laboratory---Although eye-witnesses were
related with the deceased, but their testimonies could not be discarded on
such score alone, as they were quite consistent with material particulars of
the in cident i.e. day, time, mode and manner as put forward by the
prosecution---Despite lengthy cross-examin ation, the defence failed to create
any dent in the veracity of prosecution witnesses, except a few immaterial
discrepancies---Prior to the occurrence a scuffle had taken place between the
parties and abuses were exchanged, after which deceased was killed--Murder of deceased was not premeditated and the accused did not have any
in tention of committin g his murder, therefore, death sentence awarded to
accused by the Trial Court was again st the prin ciple of safe admin istration
of crimin al justice---Death sentence awarded to accused was modified to life
imprisonment with the benefit of S.382-B, Cr.P.C., however amount of
compensation ordered by Trial Court was not modified---Appeal was dismissed
accordin gly.
Side Appellant : ARAB

Ss. 302(b) & 302(c)---Crimin al Procedure Code (V of 1898), Ss. 164 & 364--Qanun-e-Shahadat, (10 of 1984), Art. 37---Qatl-e-amd---Appreciation of
evidence---Sentence, reduction in ---Confessional statement of accused
recorded voluntarily and promptly---Deceased contributin g to his own
death---Effect---Accused, who was a juvenile, allegedly fired at the
deceased---Motive for the in cident was a dispute over vacation of a rented

shop---Accused recorded his confessional statement before the Magistrate
but subsequently retraced the same---Trial Court convicted the accused under
S.302 (b), P.P.C. and sentenced him to life imprisonment along with
compensation of Rs.50,000 to be paid to legal heirs of deceased---Validity--Accused voluntarily surrendered before the police and handed over his crime
weapon---Confessional statement of accused was recorded a day after his
arrest, which elimin ated the possibility of use of coercion, in ducement or
persuasion---Promptitude with which confessional statement of accused was
recorded depicted voluntarin ess---Judicial Magistrate who recorded
confessional statement of accused complied with all the necessary formalities
enumerated in Ss.164 and 364, Cr.P.C.---Accused had brought nothin g on
record to show that the confession was not voluntary or the same was obtain
ed through coercion, maltreatment or in ducement---Retraction of confession
by accused seemed to be palpably false and in correct and the only
conclusion that could be drawn was that confessional statement was
recorded by accused voluntarily---Confessional statement of accused stood
corroborated by motive, medical evidence and recovery of crime weapon--Report of firearm expert was not produced by the prosecution sin ce crime
weapon and empties were damaged due to an explosion at the Forensic
Science Laboratory---Report of firearm expert hardly made a difference in
view of the confessional statement of the accused, which was adjudged to be
true and voluntary---Doctor mentioned that time between death and examin
ation of accused was 2 to 4 hours, which corresponded with the time of
occurrence as mentioned in confessional statement of accused---Prior to the
in cident deceased entered the house of accused and misbehaved---Accused
apparently committed murder of deceased to defend his family honour and it
appeared that it was immoral and improper act of the deceased himself,
which led or at least contributed to his ultimate murder---Conviction of
accused under S.302 (b), P.P.C. was converted to S.302 (c), P.P.C. and his
sentence of life imprisonment was altered to fourteen years imprisonment
along with compensation of Rs. 50,000 to be paid to the legal heirs of
deceased---Appeal was dismissed accordin gly.
Side Appellant : THE STATE through Public Prosecutor-General

Side Opponent : Mula KALIMULLAH
S.302 ---Crimin al Procedure Code (V of 1898), S.417---Qatl-e-amd---Appeal

again st acquittal, dismissal of---Appreciation of evidence---Unseen
occurrence---in terested and in imical prosecution witnesses---Contradictin g
statements of prosecution witnesses---Medical evidence negatin g ocular
account---Effect---Allegation again st accused was that he beat his deceasedwife brutally, which resulted in in ternal in juries and her pregnancy was also
aborted---Trial Court acquitted the accused---Validity---Alleged occurrence was
unseen and there was no eye-witness of the occurrence---Prosecution
witnesses were closely related with the complain ant and the deceased---Said
witnesses were in terested and in imical witnesses in ter se towards the
accused and tried to improve their version by makin g dishonest
improvements---Prosecution witnesses contradicted each other on material
poin ts---Allegation again st accused of causin g in ternal in juries to his
deceased-wife was not proved as she was not examin ed in support of the
prosecution case---Cause of death of deceased negated the ocular account--Medical evidence showed that deceased had history of abdomen pain ,
vomitin g with blood and diarrhea, and cause of her death was determin ed
as failure of kidney as well as multiple in fection in the blood---Evidence of
Lady Medical Officer revealed that no external abrasion, bruises or wound
was found on the body of deceased except scratchin g of hair on the center of
her scalp, and that she was severally anemic---Hair of deceased that had
been allegedly scratched off from her scalp were not sent to Forensic Science
Laboratory, so they were of no consequence---Prosecution failed to prove its
case again st the accused---Appeal again st acquittal of accused was
Side Appellant : MUHAMMAD ZARIF

S.302 (b)---Crimin al Procedure Code (V of 1898), S.164---Qatl-e-amd--Appreciation of evidence---Judicial confession---Exculpatory statement--Vicarious liability---Out of three accused one was acquitted and two were
convicted for committin g qatl-e-amd---Trial Court on the basis of confessional
statements of convicted accused sentenced one to death, while the other
was sentenced to imprisonment for life---Validity---Confessional statement of
accused, if taken in to consideration, one accused was simply shown to be
present on the spot and did not participate in the commission of offence in
any way nor any role was assigned to him except to the extent of common in
tention and Trial Court had sentenced the accused to imprisonment for life on
such consideration, which was not correct---Sufficient confidence in spirin g
evidence was needed to prove common in tention but no serious effort was
made by prosecution to produce evidence of convin cin g nature to connect
accused in commission of offence with co-accused---No act on the part of
accused was proved to have done in furtherance of common in tention---No
motive was on record to show common in tention with co-accused---Vicarious
liability could not be looked in to unless strong circumstances were available
by exhibitin g common in tention---High Court set aside conviction and
sentence awarded to both the accused by Trial Court and they were acquitted
of charges---Appeal was allowed in circumstances.
Side Appellant : KHALID MEHMOOD

S.302 (b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in

---Grave and sudden provocation---Omissions in in vestigation---Trial Court
convicted and sentenced the accused to death---Validity---Min or omission, if
any, on the part of in vestigatin g agency in the matter was not of much
importance, when entire evidence on record was unshaken---Charge again st
accused was proved beyond any reasonable doubt---Due to demand of loan
by deceased from accused some altercation took place and tampers had
flared up at the spot and there was no time for accused to ponder or for that
matter to thin k upon fall out of his act---High Court converted death
sentence in to imprisonment for life and compensation awarded by Trial Court
was left in tact---Appeal as allowed accordin gly.

Side Appellant : AJMAR ALI KHAN
Side Opponent : MUHAMMAD ALI
SS.302 , 324 & 34---Crimin al Procedure Code (V of 1898), S. 417 (2-A)---Qatle-amd, attempt to commit qatl-e-amd and common in tention---Appeal again
st acquittal---Appreciation of evidence---Benefit of doubt---Allegations again st
the accused persons were that they committed murder while armed with
pistols---Two F.I.Rs. had been registered by the parties regardin g same in
cident havin g same time and place of occurrence---Perusal of evidence of
both the cases to fix the responsibility as to which party was the in itiator of
the in cident seemed a Herculean task---Complain ant had alleged that he
was present near the shop (place of occurrence) but neither he had been
cited as witness nor his presence had been shown in the site plan--Shopkeeper was neither examin ed by the police nor poin ted in the site plan,
despite the fact that the occurrence had taken place in his presence in side
his shop---Both the parties had concealed material facts and had narrated in
complete stories---Complain ant had not established his presence on the spot
and the story set forth by him was unbelievable---Medical evidence did not
support the version of complain ant---Although there was simultaneous firin g
at the complain ant and his son but neither any empty had been recovered
from the spot nor any crime weapon was recovered from the accused---None
out of the four accused, could be saddled for the sin gle in jury caused to
each in jured---No doubt, in hurt cases statement of witness supported by
medical evidence was sufficient for recordin g conviction if the same was
trustworthy and confidence in spirin g but both the in jured witnesses had
concealed the real facts of the in cident---Complain ant had not established
his presence on the spot, at the time of in cident through his ocular testimony
havin g no corroboration from other material pieces of evidence rather the
circumstantial evidence was in conflict with his version---Allegedly, deceased
was done to death in side the shop while three accused had been shown firin
g at him and as per autopsy report of the deceased, the doctor had observed
a sin gle fire arm entry wound with correspondin g exit on his person but
neither in the report nor durin g his statement, the complain ant had
attributed sin gle in jury to any of the three accused---in jury caused by the
deceased, accordin g to the medical evidence, was from upward to
downward, which depicted that the assailant was on higher level than the
deceased when he was shot dead but in the site plan no such explanation
had been given and such aspect of the case created doubt regardin g the
mode and manner of the occurrence as alleged by the complain ant and also
denied the presence of the complain ant on the spot---Shopkeeper in whose
shop the in cident had allegedly taken place was not produced to establish
presence of complain ant at the spot and happenin g of the occurrence--Facts and circumstances were suggestive of the fact that the occurrence had
not taken place in the mode and manner as alleged and complain ant was not
present at the relevant time---After earnin g the acquittal from the Trial Court,
double presumption of in nocence was acquired by the accused---Court sittin
g in Appeal again st acquittal always remain ed slow in reversin g the
judgment of acquittal, unless it was found to be arbitrary, fanciful and
capricious on the face of it or was the result of bare misreadin g or non-readin
g of any material evidence---No in firmity had been found in the impugned
judgment and Trial Court had rightly acquitted the accused by extendin g
them benefit of doubt after proper appraisal of evidence to which no
exception could be taken---Trial Court had thoroughly and properly thrashed
the evidence and had reached to right conclusion---Appeal was devoid of
force which was dismissed.
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Side Appellant : MOMEEN KHAN
Side Opponent : KHANZADA
SS.302 , 324 & 34---Crimin al Procedure Code (V of 1898), S. 417(2-A)---Qatle-amd, attempt to commit qatl-e-amd, common in tention---Appeal again st
acquittal---Reappraisal of evidence---Prosecution had not been able to prove
its case again st accused beyond any shadow of reasonable doubt---Complain
ant, who was star and solitary witness of the prosecution, havin g long
standin g enmity with accused, his testimony was to be scrutin ized with
great care and caution---Complain ant, in his examin ation-in -chief had taken
a stand different to the one he took in his in itial report and had totally
contradicted the contents of the F.I.R. in his court statement, and had
putforth quite a different version of the occurrence, due to which his
testimony seemed shaky and cast serious doubt on his presence on the spot
at the time of occurrence---Entire testimony of complain ant was rightly
disbelieved by the Trial Court---Complain ant had stated that 50/60 people of
village attracted to the spot, who all came to the hospital, but the in
vestigatin g Officer had not recorded statement of any one of them which had
also created doubt about the veracity of assertion of the complain ant and his
presence on the spot at the time of occurrence---Complain ant had alleged
that accused had fired 50/60 rounds and the empties were present at the
spot, but the in vestigatin g Officer had not collected the same, which had
also made prosecution case doubtful---On account of shaky evidence of the
complain ant havin g glarin g contradictions in it and narratin g different
versions regardin g the occurrence before the Trial Court, his testimony havin
g no veracity was rightly brushed aside---Trial Court had come to a correct
conclusion while passin g the impugned judgment of acquittal, which was
based on correct legal footin gs, and needed no in terference by High Court--Appellant havin g failed to poin t out any in firmity in the impugned judgment
of acquittal, same was upheld and Appeal was dismissed, in circumstances.

Side Appellant : REHMAT ZEB
Ss. 302(b) & 84---Qatl-e-amd, act of a person of unsound min d---Appreciation

of evidence---Death sentence, confirmation of---Belated plea of in sanity---Preplanned occurrence---Promptly lodged F.I.R.---Medical evidence corroboratin g
ocular account---No probability of misidentification or false implication--Recovery of weapon and its empties---Deliberate abscondence by accused
with guilty min d---Effect---Accused allegedly fired at and killed his brother
and wife as he suspected them of havin g illicit relations---Trial Court
sentenced accused to death under S.302 (b), P.P.C.---Contention on behalf of
accused was that he was mentally unstable, and that he committed the
offence as a result of sudden and grave provocation---Validity---Contention
regardin g mental condition of accused was neither raised at the time of
framin g of charge nor at the time of recordin g of his statement under S.342,
Cr.P.C.---No application was submitted by accused in Trial Court to verify his
mental condition by way of constitution of a Medical Board, and even to date
no proof was brought on record regardin g mental condition of accused---Plea
of in sanity raised by accused at belated stage could not be considered--Record showed that accused entered the house and found his brother sleepin
g, while his wife was offerin g her prayers, so there was no reason for
accused to act on basis of grave and sudden provocation---Present offence
was a pre-planned in cident---Report of occurrence was lodged within two
hours of the occurrence---Place of occurrence was a far-flung area at a
distance of 24 to 25 kilometers from the police station with no appropriate
transport facility, therefore, delay in lodgin g F.I.R. was of no significance--Witnesses were also not cross-examin ed on the poin t of delay in lodgin g
F.I.R. and no suggestion was put to them regardin g deliberation and
consultation---Presence of two of the prosecution witnesses at the place of
occurrence seemed to be natural as they were in mates of the house, wherein
occurrence took place---Statements of prosecution witnesses were consistent
on material poin ts and veracity of their evidence could not be shaken durin g
their cross-examin ation---Medical evidence showed that in juries on
deceased were fire-arm in juries, therefore, medical evidence supported
ocular account---Accused was brother-in -law of the complain ant/eye-witness,
while another eye-witness was his niece, therefore, accused was known to
both of them and there was no chance of misidentification---Although two
prosecution witnesses were closely related to the deceased and to the
accused, and might have been in terested witnesses but their testimony got
ample support from another prosecution witness, who was father of both
deceased and accused---Recovery of empties from place of occurrence
coupled with recovery of weapon of offence from the house of accused,
corroborated testimony of prosecution witnesses---Blood stain ed earth was

also secured from the place of occurrence by the in vestigatin g officer--Nothin g was brought on record to establish that accused was falsely
implicated---Cause of death was apparent, therefore non-conductin g of postmortem of deceased at the request of his legal heirs, was of no consequence
and not fatal to the prosecution case---Immediate abscondence of accused
after the occurrence and his non-participation in the funeral ceremony of his
deceased brother and wife, tantamount to deliberate abscondence with guilty
min d and was another circumstance which established culpability of the
accused---Sentence of death imposed by Trail Court was proportionate to the
gravity of the offence---Appeal filed by accused was dismissed and death
sentence awarded to him by the Trial Court was confirmed.
Side Appellant : ALI GOHAR

S. 302---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd---Appreciation

of evidence---Commutation of death sentence to life imprisonment--Enhancement of compensation---Dyin g declaration, reliance on---Scope--Accused was convicted under S.302 (b), P.P.C. and sentenced to death along
with payment of Rs.300,000 as compensation to legal heirs of deceased--Deceased, in in jured condition, soon after the occurrence lodged the F.I.R.
and narrated the in cident to the police in presence of an eye-witness and
two verifiers ---Deceased directly charged the accused by attributin g to him
the specific role of firin g and also disclosed the motive for the occurrence---
Sin ce the lodger of the F.I.R. i.e. deceased, succumbed to his in juries in the
hospital later on, therefore, F.I.R. was to be treated as his dyin g declaration--Dyin g declaration of deceased also found support from the medical evidence
and from the long abscondence of the accused---Crime weapon was
recovered on the disclosure and poin tation of the accused---Prosecution had
proved its case again st accused beyond any shadow of doubt, however sin
ce accused was fifty years of age and in the light of the facts and
circumstances of the case and evidence led by prosecution, awardin g life
imprisonment in stead of death would meet the ends of justice---Conviction of
accused was main tain ed, however his sentence of death was altered to life
imprisonment and payment of compensation to legal heirs of deceased was
enhanced to Rs. 600,000---Accused was denied the benefit of S.382-B, Cr.P.C.
because of his long abscondence of five years---Appeal was disposed of
accordin gly.
Side Appellant : MUHAMMAD FARHAN RAHIM

S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd--Appreciation of evidence---Dyin g declaration, reliance on---Scope---Dyin g

declaration sufferin g from in firmities and not in dependently corroborated--Effect---Allegation again st accused was that on the night of the occurrence
he was sittin g with the deceased at his 'baithak', when due to some matter
they turned acrimonious towards each other and accused in flicted multiple
dagger blows upon the deceased---Deceased was taken to hospital where he
reported the matter to the police, and implicated the accused for the
offence---Deceased subsequently succumbed to his in juries and died in the
hospital after about two days---Trial Court convicted accused under S.302 (b),
P.P.C. and sentenced him to death---Validity---Report made by deceased to the
police in the hospital was F.I.R. cum dyin g declaration---Apart from said
report and its scribe (police official) who appeared as a prosecution witness,
there was no other eye version of the account of occurrence---Statement of
all prosecution witnesses were only of peripheral value---Report made by
deceased to the effect that on some matter he and accused turned
acrimonious and accused attacked him with a dagger was not reliable and
Appeal able to the min d of a prudent man as both of them were friends, and
even otherwise they were present in a 'baithak' at very odd hours, and
question was as to how all of a sudden the scene could change and accused,
a boy of 18/19 years of age, could take out a dagger and thrust it several
times in to the body of his deceased-friend---Occurrence could not have
happened in isolation or all of a sudden, and there must have been some
prelude to it---Question was whether accused took out the dagger from his
trouser (shalwar) or from somewhere else as commonly in 'baithaks' daggers
were not kept unless contrary was proved---No evidence was available to
explain as to why accused was sittin g in the 'baithak' at odd hours--Deceased was a young man of 46/47 years of age , while accused was a man
of 18/19 years of age, therefore it did not Appeal to a prudent min d that
deceased offered no resistance and remain ed a statue at the time when
accused stabbed him multiple times---Deceased remain ed in hospital for
about two days, durin g which there was ample time to record his dyin g
declaration through a Magistrate, which exercise was not done---Brother of
deceased (prosecution witness) stated in court that he saw the deceased lyin
g in an in jured condition in a street, while the deceased stated in the F.I.R.
cum dyin g declaration that he was stabbed in the baithak---F.I.R. cum dyin g
declaration was neither reliable nor accurate and particularly in absence of
cross-examin ation of the deceased-declarant, it was highly unsafe to award
sentence to the accused---Appeal was allowed in circumstances and
conviction of accused was set aside.
Side Appellant : AAMIR IQBAL

SS.302 (b), 337-A(iii) & 337-F(v)---Qatl-e-amd, Shajjah-i-Hashimah and GhayrJaifah Hashimah---Appreciation of evidence---Testimony of prosecution
witnesses was trust worthy and confidence in spirin g---Recovery of blood
stain ed earth and empties of rifle from places of accused as per site plan
freshly discharged was also cogent and corroboratin g piece of evidence in lin
e with prosecution story---Existence of motive also strengthened prosecution
version and all such facts established guilt of accused persons connectin g
them with commission of offence---Trial Court rightly evaluated evidence on
record while awardin g conviction and sentence to accused persons---High
Court declin ed to in terfere in conviction awarded to accused by Trial Court
as strong case was made out again st them---Appeal was dismissed in
circumstances.

Side Appellant : AMIR ZAD
SS.302 (b)/324/337-F(ii)(iii)/337-D---Crimin al Procedure Code (V of 1898), S.

417(2-A)---Appeal again st acquittal---Qatl-e-amd, attempt to commit qatl-eamd, causin g badi'ah and matalahimah to any person and jaifa--Appreciation of evidence---Benefit of doubt---Co-accused who had been
acquitted, his presence had been shown on the spot at the time of occurrence
at the poin t in the site plan, which was at a distance of 25 paces from one
poin t, while the distance from another poin t had not been shown in the site
plan---Position of co-accused on the spot as shown in the site plan, would
create doubt in the min d of the court as to whether he had participated in
the occurrence or not---Trial Court had rightly appreciated the evidence qua
co-accused; and had rightly acquitted him by extendin g him the benefit of
doubt---No reason bein g available to reverse said fin din gs of the Trial Court
qua acquitted co-accused same were main tain ed.
Side Appellant : ATTAULLAH

Ss. 410 & 417(2-A)---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd--Appeal again st acquittal---Prin ciple for appraisal of evidence in an Appeal
again st acquittal were altogether different from the Appeal again st
conviction---Once an accused was acquitted by a competent court of law
after facin g the agonies of protracted trial, then he would earn the
presumption of double in nocence, which could not be set at naught by
Appellate Court slightly, unless it was established on the basis of available
evidence that impugned judgment of acquittal was perverse, fanciful, or

resulted in to grave miscarriage of justice---No such in firmity was poin ted
out by counsel for the complain ant in the impugned judgment through the
Appeal again st acquittal---Appeal again st acquittal was dismissed in
circumstances.
Side Appellant : IMRAN

S. 302(b)---Crimin al Procedure Code (V of 1898), S. 164---Qatl-e-amd--Appreciation of evidence---Retracted judicial confession---Reliance on such

confession for conviction of accused---Scope--- Accused and co-accused
persons allegedly committed qatl-e-amd of deceased by in flictin g knives
blows---Accused made a judicial confession before the Magistrate to the
effect that he had committed qatl-e-amd of deceased, however subsequently
he retracted from such confession---Trial Court convicted and sentenced
accused under S.302 (b), P.P.C---Validity---Retracted confession of an accused,
if confidence in spirin g, alone was sufficient for conviction---Confessional
statement of accused was corroborated by the medical evidence, blood-stain
ed clothes and its report along with recovered knife---Perusal of confessional
statement of accused revealed that he had disclosed the entire occurrence
before the Magistrate without any duress and coercion and he did not
disclose the names of co-accused persons of havin g any hand in the
commission of the offence---Appeal to the extent of accused was dismissed in
circumstances and conviction and sentence awarded to him by Trial Court
was main tain ed.
Side Appellant : MUHAMMAD ASIF

S.302 (b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Cause

of death and motive, unproved---Evidence, improvements in ---Trial Court
convicted the accused and sentenced him to death while two co-accused
were acquitted---Motive behin d occurrence as alleged in F.I.R. was that coaccused, sin ce acquitted, had borrowed certain amount from deceased and
one week prior to occurrence, deceased demanded his amount from
acquitted co-accused, whereupon altercation took place between them but
people separated them---in F.I.R. motive was alleged exclusively again st
acquitted co-accused and the same was not alleged again st the accused--While appearin g before Trial Court, complain ant tried to improve his
statement regardin g motive---Complain ant was confronted with his previous
statement and improvement was brought on record---Prosecution failed to
prove motive and Trial Court had rightly disbelieved the same by assignin g
valid reasons---Doctor who conducted postmortem examin ation on the deadbody of deceased and prepared postmortem report admitted in cross-examin
ation that origin al postmortem report was blank and only contain ed name of
deceased, receipt of dead-body and his signatures---High Court set aside
conviction and sentence awarded by Trial Court and accused was acquitted of
Side Appellant : ASHFAQ ASGHAR

Side Opponent : HAFEEZ
evidence---Acquittal converted in conviction---Accused who was named in
crime report and was shown armed with rifle, in tercepted the deceased
along with other co-accused---Specific role of causin g in jury to the deceased
on his left elbow was attributed to accused---Evidence of complain ant and
eye-witness had supported the accusation contain ed in the F.I.R.---Complain
ant in his direct statement, had described the mode and manner of
occurrence and eye-witness, had corroborated the stance of complain ant--Witness had also described the role of accused that he, armed with rifle, fired
shot which landed on the left elbow of the deceased---Witnesses were crossexamin ed, but their evidence could not be shaken---Both the witnesses with
one voice stated the mode, manner, time and place of occurrence---Matter
was reported to the Police without any delay---Autopsy of deceased, made at
the earliest, supported the stated time of registration of F.I.R., rulin g out the
false implication of accused, as well as non-availability of the witnesses at the
spot---Ocular account regardin g culpability of accused, found corroboration
from the post-mortem report of the deceased---No doubt, no in crimin atin g
article was recovered from accused, but that fact, by itself was not sufficient
to prove otherwise---Accused was shown armed with rifle, not only in the
crime report, but also disclosed by both the witnesses---Accused pleaded plea
of "Alibi", and also produced witnesses durin g in vestigation, but no specific
fin din gs was given by the in vestigatin g Officer---Even if it was presumed
that in vestigatin g Officer declared the accused in nocent endorsin g his plea
of alibi, it would not be sufficient to prove defence plea, because accused did
not produce any of witness in the court---Evidence of prosecution which in
spired confidence, bein g sufficient to prove guilt of accused, absence of
motive, by itself would not put dent in provin g the culpability of accused in
view of convin cin g ocular account fin din g support from medical evidence--Conclusion drawn by the Trial Court, in circumstances was perverse, arbitrary,
sufferin g from serious and material factual and legal in firmities, callin g for
in terference by High Court---High Court, while settin g aside the judgment of
acquittal passed by the Trial Court, convicted the accused under SS.302 (b),
148 & 149, P.P.C.---Sin ce no motive could be established again st accused,
there was mitigatin g circumstance to award alternate punishment of life
imprisonment to accused---Sentence of life imprisonment was awarded to
accused on two counts under S.302 (b) read with S.149, P.P.C., which would
run concurrently, with extension of benefit of S.382-B of Cr.P.C.
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Side Appellant : TAFSEER ABBAS SHAH

S. 302(b)---Qatl-e-amd---Appreciation of evidence---Matter was reported to

the police with sufficient promptitude without deliberation or consultation by
the complain ant---Complain ant and other prosecution witness had
sufficiently explain ed the mode and manner of the occurrence, place of
occurrence, locale of in jury sustain ed by the deceased, and kin d of weapon
used---Both said witnesses were subjected to lengthy cross-examin ation by
the defence, but both of them remain ed consistent on all material aspects
and successfully given answers of all the questions raised by the defence--Deceased, though was brother of the complain ant, and maternal nephew of
prosecution witness, but mere relationship of the deceased with those two
prosecution witnesses was not enough to discard their testimony, especially
when they both had no personal ill-will or malice again st accused to falsely in
volve him in the case---Presence of the prosecution witness at the place of
occurrence at the relevant time was substantiated from the post-mortem
examin ation report---Parties bein g residents of the same locality and bein g
known to each other, there was no possibility of mistaken identity of
accused---Real brother would let off the real culprit who committed the
murder of his brother and in volved a false person did not Appeal to a
prudent min d---Ocular account furnished by both eye-witnesses had fully
been proved through their sound, cogent, motivatin g and confidence-in
spirin g evidence led by them before the Trial Court---Medical evidence was
absolutely in lin e with the ocular account---Post-mortem examin ation report
fully corroborated the ocular account regardin g receipt of in jury, weapon of
offence used by accused, and time between in jury and death---Much time
havin g elapsed between the occurrence and the statement of prosecution
witnesses recorded by the Trial Court, min or discrepancies, were natural and
those did not have any in jurious or vital effect upon the case of the
prosecution---Recovery of pistol .30 bore, also provided sufficient support to
ocular account---Case bein g of sin gle accused, substitution was a rare
phenomenon---Defence taken by accused was not plausible, and same did
not Appeal to a person of prudent min d---Accused had failed to produce any
evidence in support of his defence; bald defence taken by accused, did not fin
d support from any corner---Court, in circumstances, had rightly convicted
and sentenced accused under S.302 (b), P.P.C.
Side Appellant : GHULAM SHABBIR

S. 302(b)--- Qatl-e-amd--- Crimin al Procedure Code (V of 1898), S.417(2-A)--Appeal again st acquittal---Appreciation of evidence---F.I.R. did not reveal any
abetment again st the acquitted accused---Statements of two prosecution
witnesses recorded under S.161, Cr.P.C. after about one month of the
registration of the F.I.R., disclosed that one acquitted co-accused had directed
the other co-accused to commit the murder of the son of complain ant, while
sittin g in a hotel, which was quite unnatural and un-reliable---Said
statements had been procured by the prosecution after consultations and
deliberations---One accused was not even connected with the motive--Offence under S.302 , P.P.C. was not proved by the prosecution, as postmortem examin ation of the deceased was not conducted and there was no
opin ion of the Doctor regardin g his cause of death---Acquittal of accused
was based on cogent reasons and impugned order did not suffer from any
legal or factual in firmity---Appeal again st acquittal of accused was dismissed
in circumstances.
Side Appellant : SHAHID NAZIR


sentence---Accused had given a sin gle "Danda" blow on the head of his
father which proved to be fatal---Accused havin g not repeated the blow could
not be treated as a hard hearted or callous person---Mother of accused (coaccused) and two other co-accused had been acquitted by Trial Court--Accused was not a previous convict and he could not be termed as a
desperate, hardened or a dangerous crimin al and his case was not hit by the
proviso of S. 426(1-A), Cr. P. C.---Delay in the disposal of Appeal could not be
attributed to accused---Brother, co-accused had been declared a proclaimed
offender---Accused was 20 years old and appeared to be the sole bread
earner of his family---Accused was behin d the bars for the last 2 years and
there was no likelihood of hearin g of Appeal in the near future---Sentence of
imprisonment for life of accused was suspended in circumstances and he was
released on bail accordin gly.

Side Appellant : ABDUL RAZZAQ
S. 426---Penal Code (XLV of 1860), SS.302 /337-A(ii)/337-F(i)/337-L(2)--- Qatle-amd, shajjah-i-mudihah, ghayr-jaifah damiyah, other hurt---Suspension of
sentence---in jury sustain ed by deceased which had been assigned to the
accused was simple in nature---General allegation again st accused and coaccused of causin g in juries to the prosecution witnesses---One of the in
jured prosecution witnesses had not been produced by the prosecution to
substantiate the in juries---Accused was behin d the bars and had already
suffered about eight years of in carceration and there was no likelihood of
fixation of his main Appeal in the future---Conviction and sentence awarded
to accused was suspended and he was admitted to bail.
Side Appellant : GHAZI KHAN


---Conversion of death sentence in to imprisonment for life---in juries received
by accused suppressed by complain ant side---Weapon and crime empties not
sent to Forensic Laboratory---Effect---Accused allegedly murdered his
brother/deceased due to litigation between them---Trial Court convicted
accused under S.302 (b), P.P.C and sentenced him to death with a direction to
pay Rs.100,000 as compensation to legal heirs of deceased---Validity---F.I.R.
was lodged about 3 hours after the occurrence at a police station which was
30 kilometers from the place of occurrence, therefore, it would seem that
F.I.R. was not lodged with undue delay---After his arrest accused led to the
recovery of crime weapon used by him durin g the occurrence---Five crime

empties were also recovered from the place of occurrence---Medical evidence
and post mortem report of deceased also supported the prosecution
version---One of the prosecution witnesses was real brother of accused and
deceased, therefore, the fact that he deposed again st the accused lent
credence to the prosecution case---Trial Court had rightly convicted the
accused under S.302 (b), P.P.C, however accused was also admittedly in jured
durin g the occurrence and it was not explain ed as to how he received the in
juries---Accused was examin ed by a doctor three hours after the occurrence
and was found to have received two firearm in juries---Said doctor appeared
as a witness and attested to the fact of accused havin g received firearm in
juries---Complain ant suppressed evidence of doctor who had examin ed the
accused---Circumstances showed that there was an exchange of fire between
the parties durin g the course of which deceased received fatal firearm in
juries---Dead body of deceased was recovered from a part of land which
belonged to the accused, and such fact was admitted by the complain ant in
his cross-examin ation---Weapon recovered from accused and crime empties
recovered from place of occurrence were not sent to Forensic Science
Laboratory---Conviction recorded by Trial Court was main tain ed in
circumstances, however death sentence awarded to accused was converted
in to imprisonment for life---Accused was directed to pay compensation to
legal heirs of deceased as ordered by Trial Court---Appeal was dismissed
accordin gly.

Side Appellant : Mst. PARIS BIBI
S. 302(b)---Qatl-e-amd---Appreciation of evidence---Wajtaker witness and

extra-judicial confession---Accused was alleged to have murdered her
husband and only evidence again st her was her extra-judicial confession and
Wajtaker witness---Trial Court convicted the accused under S.302 (b), P.P.C.
and sentenced her to imprisonment for life---Validity---Wajtaker witness had to
prove and explain his presence at the time and place when he saw the
assailants after commission of offence but such witness remain ed
unsuccessful in establishin g his presence at the time when he had seen
accused persons enterin g in to the house of deceased---Ocular account of
prosecution witnesses, as well as extra-judicial confession and Wajtaker in
dicated that witnesses attempted to improve their case in very desperate
manner, which statements also suffered from material contradictions--Evidence led by complain ant was neither sufficient nor convin cin g and
confidence-in spirin g for provin g allegation of murder by accused beyond
any shadow of doubt---Such evidence could not be taken in to consideration
for holdin g accused responsible for the murder of her husband---High Court
set aside the conviction and sentence awarded to accused by Trial Court and
she was acquitted of the charge---Appeal was allowed in circumstances.
Side Appellant : MUHAMMAD AMIN

S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt--Concocted story--- Motive unproved--- Medical evidence contradictin g ocular
account---Delay in recordin g F.I.R.---Delay in conductin g post-mortem of

deceased---Related and unnatural witnesses---Effect---Complain ant alleged
that 5 to 6 days prior to the occurrence accused and deceased had a quarrel;
that on the day of the occurrence accused came to the house of deceased,
while armed, and took him away on the pretext of attendin g a marriage,
whereafter prosecution witnesses followed the accused and saw him firin g at
the deceased---Trial Court convicted accused under S.302 (b), P.P.C. and
sentenced him to death---Validity---Accordin g to the complain ant accused
and deceased had quarrelled prior to the in cident, then it was not
understandable why the deceased accompanied the accused, who was
allegedly armed at the time, and even the witnesses did not bother to stop
him---Assumin g that relations between accused and deceased had become
cordial and dispute between them had been patched up, then there was no
need for prosecution witnesses to follow the accused---Eye-witnesses
followed the accused and allegedly watched him murder the deceased
whereafter they immediately came back to in form the complain ant, but no
one considered it appropriate to in form the police and rather chose to search
for the dead body of deceased---Complain ant alleged that they searched for
deceased's body the whole night, however site plan showed that place of
alleged occurrence, which was seen by the prosecution witnesses, and the
place from where dead body was recovered, were not far apart, therefore,
complain ant must have located the body within a short span of time---Sin ce
F.I.R. was lodged after a delay of 12 hours, it was clear that dead body was
found by the complain ant without much delay, whereafter the whole story
was concocted and reported to the police---Post-mortem was conducted 22
hours after the in cident, without any explanation for such delay---One of the
in juries on the deceased was blackish and accordin g to the doctor the same
was a result of fire made from close range, whereas prosecution story in
dicated that firin g was made from a distance of 144 feet---Even otherwise
F.I.R. was registered after recovery of dead body and as such seat of in juries
was in the knowledge of the complain ant so the medical evidence was of no
help to the prosecution case---No crime empties were found at or around the
place of occurrence--- All prosecution witnesses were closely related and not
in dependent or unconcerned witnesses---Possibility of occurrence bein g
unseen could not be ruled out---Prosecution had not proved its case beyond
reasonable doubt---Appeal was allowed, conviction and sentence of accused
were set aside and he was acquitted of the charge.
Side Appellant : ASHRAF ALI alias JAMAT ALI

Ss.100 & 302(c)---Qatl-e-amd not liable to Qisas and right of self-defence--Appreciation of evidence---Grave and sudden provocation---Sentence,
reduction in --- Medical and ocular account--- Defence version---Motive, failure
to prove---Accused was convicted and sentenced to death for committin g
murder of his real paternal uncle---Specific position of accused was that
deceased while armed with hatchet entered his house to kill his father, when
accused tried to restrain him, deceased rushed towards him to attack,
whereupon, gun fire was shot by accused to save his life as well as life of his
father---Validity---Stance of accused was closer to reality as accordin g to
medical evidence, fire arm in jury found on dead body carried burnin g and
blackenin g, which could only be possible when fire was shot from a distance
of three to four feet, whereas scaled site plan disclosed same to be a distance
of about thirty eight feet---Non-proof of motive also lent support to statement
of accused and in fact there was no previous hostility amongst the parties
and matter erupted at spur of the moment without there bein g any
premeditation on the part of accused, who reacted due to sudden and grave
provocation in order to save his life as well as life of his father---Defence plea
taken by accused was not only plausible but also borne out from
circumstances of the case, as there was no other reason available on record
as to why he would launch assault on deceased, who also happened to be his
real paternal uncle---Accused reacted due to sudden and grave provocation in
order to save his life as well as life of his father---High Court set aside
conviction under S.302 (b), P.P.C. and convicted him under S.302 (c), P.P.C.
and sentenced him to twelve years' imprisonment---Appeal was allowed
accordin gly.
Side Appellant : MUHAMMAD RAFIQUE

Side Opponent : ANAYAT ALI
Ss. 302(c) & 100---Crimin al Procedure Code (V of 1898), S.417(2-A)---Qanune-Shahadat (10 of 1984), Art. 121---Appeal again st acquittal---Appreciation of
evidence---Right of self-defence extendin g to causin g death---Scope--Accused fired four consecutive fire-shots at the deceased, allegedly in selfdefence---Accused claimed that there was immin ent danger to his life as
deceased had a bottle and a stone in his hands; that deceased hit him
(accused) with the bottle and the stone, where after accused snatched a
pistol from the deceased and fired at him---Burden of proof accordin g to
Art.121 of Qanun-e-Shahadat, 1984 lay on the accused---Defence witnesses
who claimed to be eye-witnesses of the occurrence did not depose that
deceased was armed with a pistol or that accused snatched a pistol from the
deceased---Record did not prove that deceased was armed with a pistol and
even if he was, question was as to why he only resorted to throwin g a bottle
and stone at the accused---in juries on the person of the accused were of
simple nature---Right of self-defence only commenced when a reasonable
apprehension arose from an attempt or threat to commit an offence, and was
to be exercised as a preventive measure rather than for launchin g an
attack---Accused had fired four successive fire-shots hittin g the deceased on
different parts of his body, thus it was fully established that he exceeded his
right of private defence---Appeal was accepted, impugned judgment of
acquittal by Trial Court was set-aside and accused was convicted and
sentenced under S.302 (c), P.P.C. and also directed to pay compensation to
the legal heirs of the deceased.

Ss. 302(b), 324 & 325--- Qanun-e-Shahadat (10 of 1984), Art.17(1)---Qatl-eamd, attempt to Qatl-e-amd and attempt to commit suicide---Appreciation of
evidence---Conviction by way of qisas---Prin ciple---Accused was convicted
and sentenced to death by Trial Court---Validity---Prosecution proved its case
with the help of wholly reliable ocular account based on confidence in spirin g
and reliable testimonies of in jured prosecution witnesses and eye-witness
corroborated by medical evidence and recovery of weapon of offence,
Chhuri---Arraignment of accused as actual assailant of occurrence resultin g
in to callous and brutal murder of deceased, alike attempt of murderous
assault upon complain ant causin g serious in juries on vital parts of his body
was fully proved beyond any iota of doubt---Trial Court had rightly convicted
accused as charges were established again st him---Present case was not that
of Qisas as prosecution witnesses were not subjected to test of Tazkia-tulShahood in terms of Art. 17(1) of Qanun-e-Shahadat, 1984---Conviction of
accused under S. 302(b), P.P.C. as Tazir as well as other offences under Ss.324
& 325, P.P.C. did not call for any in terference---in absence of any extenuatin
g/ mitigatin g circumstances and keepin g in view the brutal and callous
murder of deceased by causin g as many as 21 major and min or in juries as
a result of multiple Chhuri blows on various parts of body of deceased as well
as eight in juries on the person of complain ant in flicted with Chhuri as a
result of attempt to murderous assault upon him, capital punishment of death
under S.302 (b), P.P.C. as well as quantum of other sentences under Ss. 324 &
325, P.P.C. were rightly awarded to accused by Trial Court and the same did
not call for any in terference---Appeal was dismissed in circumstances.
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Side Appellant : ZAFAR IQBAL alias KALA

Ss. 302(b), 396, 460 & 71---Crimin al Procedure Code (V of 1898), S.345(2)--Qatl-e-amd, dacoity with murder, lurkin g house-trespass---Appreciation of
evidence---Sentence, reduction in ---Compromise---Legal heirs of the
deceased had effected a valid and bona fide compromise with the accused
and had no objection if the accused was acquitted in the case---Offence
under S.302 , P.P.C. bein g compoundable, the compromise to the extent of
the murder of the deceased was accepted and accused was acquitted of the
said charge---Offences under Ss.396, P.P.C. and 460, P.P.C., however, were not
compoundable and defence counsel in this regard had prayed for reduction of
sentence of accused thereunder to imprisonment already undergone by
him---Offences under Ss.396, P.P.C. and 460, P.P.C. though different but fell in
the same defin ition, keepin g in view the provisions of S.71, P.P.C. no one
could be sentenced twice in the offences fallin g within one defin ition---Trial
Court, therefore, was not justified in convictin g the accused simultaneously
in both these offences---Accused had suffered a substantial portion of his
sentence---Accused was a first offender and he had not been convicted earlier
by any court of law---Legal heirs of the deceased had already forgiven the
accused in the main offence under S.302 , P.P.C.---Sentence of ten years' R.I.
awarded to accused under Ss.396, P.P.C. and 460, P.P.C. was reduced to the
imprisonment already undergone by him in order to meet the ends of
justice---Appeal was disposed of accordin gly.
Side Appellant : MUHAMMAD ASHRAF

S. 426(2B)---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Suspension of

sentence pendin g disposal of petition for leave to Appeal before the Supreme
Court---Release on bail---Trial Court convicted the accused under S.302 (b),
P.P.C. and sentenced him to death---High Court converted death sentence
awarded by Trial Court in to life imprisonment---Accused assailed judgment of
High Court before the Supreme Court, which granted leave to Appeal
---Contentions of accused were that while grantin g leave to Appeal Supreme
Court had observed in its judgment that case of accused was identical to that
of a co-accused, who had already been acquitted by the Trial Court; that he
was in jail for the last about seven years, and keepin g in min d that his
sentence had been reduced to life imprisonment, his sentence should be
suspended pendin g disposal of his petition for leave to Appeal ---Validity---
Supreme Court had granted leave to Appeal with the observation that coaccused who had been attributed a role identical to that of the co-accused,
had been acquitted by the Trial Court---Accused was behin d bars sin ce date
of his arrest (about seven years)---Sentence of accused was suspended
pendin g disposal of his petition for leave to Appeal before the Supreme Court
and he was admitted to bail---Petition was allowed accordin gly.
Side Appellant : MUHAMMAD ARIF

S.302 (b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Ocular

account and medical evidence---Duration given by doctor between death and
post-mortem was 6 to 24 hours, which meant that occurrence could have
taken place at any time and not at the time which complain ant had
claimed---Doctor also mentioned in post-mortem report that duration
between in jury and death was half an hour, whereas eye-witnesses stated
that deceased succumbed to in juries at the spot and the same showed that
occurrence neither took place at the time shown in F.I.R. nor in the manner
set up by prosecution---Prosecution witnesses were not only in imical towards
accused persons but were also closely related to deceased and complain ant
had reasons to falsely implicate accused---Corroboration and in dependent
source was required which was not forthcomin g from any in dependent
source as occurrence took place in main bazar and no one from locality join
ed in vestigation---Neither any crime empty was taken in to possession from
the spot nor any weapon of offence was recovered from accused---
Prosecution was not able to prove its case again st accused beyond shadow
of doubt as there were many dents in prosecution story---High Court set aside
conviction and sentence awarded by Trial Court and accused was acquitted of
Side Appellant : NADEEM AHMED

SS.302 (b) & 302 (c)---Qatl-e-amd---Appreciation of evidence---Sentence,

reduction in ---Mitigatin g circumstances---Trial Court convicted accused under
S.302 (b), P.P.C. and sentenced to imprisonment for life---Plea raised by
accused was that he did not fire upon deceased---Prosecution witnesses did
not utter sin gle word with regard to accused that he had fired upon
deceased---Prosecution witnesses were not eye-witnesses of scenario of
occurrence but were formal witnesses---Complain ant adduced his evidence
just movin g as star-witnesses to the path of prosecution story and his
evidence reflected that he had not seen accused at place of occurrence but
he was shown to him at police station---Complain ant further admitted that
his statement was recorded under S. 154, Cr.P.C. at the hospital but he did
not visit police station for sin gle moment for a particular purpose to register
F.I.R. and he had not seen in cident with his own eyes---High Court altered
sentence of accused from S.302 (b) P.P.C. to S. 302(c), P.P.C. and reduced
sentence of imprisonment for life to fourteen years---Appeal was allowed
accordin gly.
Side Appellant : GHULAM RASOOL

S. 426---Penal Code (XLV of 1860), Ss.114, 302(b), 337-F(v), 337-L(2), 511 &
34---Presence of abettor when offence was committed, qatl-e-amd, causin g
Hashimah, causin g hurt, attempt to commit offences, common in tention--Suspension of sentence, application for---Tentative assessment of evidence on
the basis of which fin din g of guilt was given was not debarred while
considerin g the application for suspension of sentence under S.426, Cr.P.C.--Part assigned to applicant/accused, in the present case, was that he in
stigated co-accused, whereas role assigned to co-accused was that he in
flicted the lathi blows on the arms and legs of prosecution witness--Punishments awarded to accused persons, were that accused was to suffer
imprisonment for life for offence committed under S.114, P.P.C.---Section 114,
P.P.C. was not an in dependent section, but was an enablin g section, which
was to be read with main offence---Same accused was sentenced to suffer
R.I. for 12-1/2 years under S.302 (b) and S.511, P.P.C.---Section 511, P.P.C. was
not an in dependent section---Trial Court had not gone through the relevant
provisions of law---Sentences awarded to accused persons, were suspended
durin g pendency of their Appeal ---Accused were released on bail subject to
their solvent surety.
Side Appellant : RAHEEM DAD

Side Opponent : Mir HASSAN
evidence---Presence of prosecution witness at the place of in cident was
highly doubtful---Complain ant as well as other prosecution witnesses
deposed in their evidence that accused persons fired upon the deceased, but
the medical report had shown that deceased sustain ed only one firearm in
jury---Complain ant party claimed to have identified accused persons on torch
light, which was a weak type of evidence; and even said torch was not
produced before the in vestigatin g Officer---Police recovered one empty
bullet from the place of in cident, but same was also not produced by the in
vestigatin g Officer durin g the trial---in the present case there were many
circumstances to create doubt in the prosecution case---Trial Court, in
circumstances, had rightly passed impugned judgment which did not suffer
from any legal in firmity---Appeal was dismissed.
Side Appellant : SHAH NAWAZ

S.302 (b)---Qatl-e-amd---Appreciation of evidence---in jured witness--Credibility of testimony---Benefit of doubt---Recovery of crime weapon---Out

of twelve accused persons, ten were acquitted by Trial Court and two were
convicted and sentenced to imprisonment for life---Validity---Three eyewitnesses of occurrence out of which presence of in jured witness havin g in
jury on his person was proved, however, the stamp of fire-arm in jury on his
person was not per se tantamount to stamp of credence of his testimony and
was not proof of credibility and truth of his evidence---Evidence of such
witness was to be considered keepin g in view the circumstances of case and
other evidence collected by in vestigatin g Officer durin g in vestigation---All
witnesses were fully aware of havin g knowledge of the kin d of weapons and
it was alleged again st one of the accused that he was armed with rifle and
caused rifle shot in jury to in jured prosecution witness whereas accordin g to
prosecution one Kalashnikov was recovered on his poin tation and not rifle--Recovery of rifle was made with delay of three months after the in cident and
six days after arrest of accused---Mashirnamas of recovery of weapons did
not show that weapons were sealed at the spot, no forensic report regardin g
workin g condition of weapon was exhibited durin g trial---Trial Court did not
appreciate prosecution evidence accordin g to settled prin ciples---On the
same evidence co-accused were acquitted while accused persons were
convicted without assignin g sound reasons though prosecution case again st
accused persons more or less to some extent was also in the same lin e as
that of the case of co-accused who have been acquitted---High Court set
aside conviction and sentence awarded to accused persons by Trial Court and
by extendin g benefit of doubt, they were acquitted of the charge---Appeal
was allowed in circumstances.
Side Appellant : MEHMOOD

S. 426(1-A)(c)---Penal Code (XLV of 1860), Ss. 302(b) & 452---Qatl-e-amd,

house-trespass after preparation for hurt---Suspension of sentence---Delay in
disposal of Appeal ---Accused allegedly in flicted hatchet in juries on the
deceased in a brutal way for the reason that he (i.e. deceased) did not salute
him---Trial Court convicted and sentenced accused under SS.302 (b) and 452,
P.P.C.---Contention of accused was that a period of more than two years had
passed but his Appeal had not been decided within the statutory period as
envisaged by S. 426(1-A)(c), Cr.P.C.---Complain ant contended that conduct of
the accused and the brutal and cruel manner in which he killed the deceased
was of such nature which brought him under the category of a hardened,
desperate and dangerous offender, and thus disentitled him from any
concession due to the prohibition imposed by virtue of proviso to S.426(1-A),
Cr.P.C.---Validity---Case order sheets showed that on each date of hearin g
counsel for accused was in attendance and not a sin gle adjournment had
been sought by him, nor disposal of Appeal had been delayed on account of
any act or omission on part of the accused---Alleged act of accused was not
of such a nature which could brin g him under the prohibitory clause of S.
426(1-A), Cr.P.C.---No material had been placed on record to show that
accused was a habitual or previously convicted offender---Sentence awarded
to accused by Trial Court was suspended in circumstances and he was
released on bail.
Side Appellant : GULSHER

S. 426---Penal Code (XLV of 1860), SS.302 /34/114--- Qatl-e-amd, common in

tention, abettor present when offence is committed---Application for
suspension of sentence on ground of delay in decision of Appeal
---Contentions of accused persons were that the complain ant himself
appeared before the High Court and conceded that he had no objection if the
Appeal was allowed and conviction of accused persons was set aside; that
complain ant had filed an affidavit in the High Court, wherein he stated that
he undertook a personal search for the real culprits of the offence and found
that the accused persons were in nocent, and that Appeal of accused persons
was pendin g for last more than two years and no delay had been caused by
them---Validity---Conviction of accused persons was based on evidence,
therefore, affidavit of the complain ant had little value in the circumstances
when the same complain ant lodged the F.I.R., fought the case and after
awardin g of conviction was takin g the plea that he had conducted his own in
vestigation and found the accused persons to be in nocent---Said affidavit of
complain ant at best could only be considered as him not objectin g to the
grant of bail---Order sheets of the case showed that sin ce the date of
admission of Appeal , the matter was bein g adjourned for various reasons in
cludin g reason for want of time, discharge of board or on the request of the
accused persons or the prosecution---Entire delay in decision of Appeal could
not be attributed to the accused persons---Application for suspension of
sentence was allowed and sentence of accused persons was suspended, in
circumstances.
Side Appellant : GULSHER

S. 426---Penal Code (XLV of 1860), SS.302 /34/114---Application for

suspension of sentence on ground of delay in decision of Appeal ---Scope--For suspension of sentence and grant of bail, the Legislature had imposed an
obligation and res-ponsibility upon the court to first ascertain and examin e
the cause of delay---Convict might be released by the court on bail, except
where it was of the opin ion that delay in the decision of Appeal had been
occasioned by an act or omission of the convict or any other person on his
behalf---Such statutory right was subject to the fulfilment of the criteria and
decisive factor prescribed under clauses (a) to (c) of S.426(1-A), Cr.P.C.--Court was also to examin e essentially, whether the person who had applied
for bail was not a previously convicted offender for offence punishable with
death or imprisonment for life; or said person was hardened desperate or
dangerous crimin al or was accused of an act of terrorism punishable with
death or imprisonment for life---Court was not obliged to examin e the case
on merits and should dilate upon the contentions as agitated while decidin g
application under S.426, Cr.P.C., for the reason that appraisal of evidence in
depth was neither warranted nor desirable while decidin g such an
application---Court should confin e itself to the judgment before it and
thorough scrutin y and evaluation of evidence was not appropriate for an
application under S. 426, Cr.P.C.---Discretion under S. 426, Cr.P.C. had to be
exercised judiciously by considerin g relevant facts and without enterin g in to
or commentin g upon the merits of the case---Where contentions raised
required consideration of merits, the court would refrain from entertain in g
such contentions.
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Side Appellant : SULEMAN alias SALOO

Ss. 302(c), 302(6), 304 & 306---Qatl-e-amd---Appreciation of evidence--Sentence, enhancement of--- Enhancement of diyat amount---Conversion of
conviction under S.302 (c), P.P.C. in to 302(b), P.P.C.-Conviction and sentence
under S.302 (c), P.P.C.-Scope-Accused was alleged to have murdered the
deceased---Trial Court convicted accused under S.302 (c), P.P.C. and
sentenced him to 25 years' imprisonment and also directed him to pay Diyat
of Rs. 275,762 to the legal heirs of deceased---Prosecution witnesses were in
consonance with each other on each aspect of the case---One of the
prosecution witnesses, who saw the in cident had no relationship with the
complain ant or accused party, as such he was an in dependent and natural
witness---Presence of said prosecution witness at the place of occurrence was
natural---Defence had not proved any reliable motive or enmity of complain
ant party to falsely implicate the accused---Occurrence took place in broad
day light, as such there was no question of mistaken identity of accused, who
was known to each of the prosecution witnesses---Ocular testimony was
corroborated by medical evidence---Trial Court had convicted the accused on

basis of unimpeachable and unshaken evidence, however while doin g so it
ignored the fact that S.302 (c), P.P.C. applied only to those cases, where
punishment of Qisas was not applicable---Evidence in the present case was
neither brought on record as required under S.304, P.P.C., nor the case fell
within the ambit of S.306, P.P.C., therefore the accused could not be convicted
under S.302 (c), P.P.C.---Conviction of accused under S.302 (c), P.P.C. in such
circumstances was modified in to S.302 (b), P.P.C. and his sentence of 25
years' imprisonment was converted in to imprisonment for life as Ta'azir--Diyat amount was also enhanced to Rs. 300, 000---Appeal was dismissed
accordin gly.
Side Appellant : MUHAMMAD NADEEM

S. 302(b)--- Qanun-e-Shahadat (10 of 1984), Art. 129--- Qatl-e-amd--Presumption regardin g withholdin g evidence of material witnesses---Effect--Appreciation of evidence---Accused (appellant) was alleged to have murdered
his wife (deceased), whom he had divorced before the alleged murder
---Deceased was found killed in a house, with the door locked from the in
side---Trial Court convicted and sentenced the accused under S.302 (b),
P.P.C.---Validity---Case of unseen in cident---No ocular testimony---Strain ed
matrimonial relations between the parties---False implication could not be
ruled out---Contradictions existed in statements of prosecution witnesses and
circumstantial evidence with regard to place of arrest of accused and
recovery of alleged weapons of offence---Crime weapons were allegedly

recovered on poin tation of accused after about 30 months of the in cident
and same were neither wrapped/sealed nor sent for examin ation to Chemical
Examin er---Clothes of deceased were not sent to Serologist for examin ation
and report---Prosecution had withheld best available evidence of material
witnesses which raised the presumption that they would not have supported
the prosecution (Art.129 of Qanun-e-Shahadat, 1984)---Fact that deceased
was found killed in a house with the door locked from the in side, did not
Appeal to common sense, as prosecution had not brought any clarification as
to how a person after committin g murder could lock the door from in side of
the house--- Accused had divorced the deceased, therefore, there was no
justification of his bein g with her---Evidence of witness, who had last seen
the accused in front of the house of occurrence, was recorded after a delay of
15 days---Amended charge in cluded names of two brothers of accused,
which showed mala fide and ulterior motives on the part of complain ant's
side due to animosity---Appeal was allowed, conviction and sentence awarded
by Trial Court was set-aside and accused was acquitted of the charge.
Side Appellant : GHULAM NABI NAREJO

S.302 (b)---Qanun-e-Shahadat (10 of 1984), Art.47---Crimin al Procedure Code

(V of 1898), Ss.353 & 512---Qatl-e-amd---Appreciation of evidence---Absence
of accused---Evidence, recordin g of--- Trial Court relyin g on evidence
recorded under S.512, Cr.P.C., convicted accused and sentenced him to
imprisonment for life---Validity---Accused was charged with offence which

carried capital punishment and he could not be stripped of his valuable right
of a fair and impartial trial, else the same would negate concept of due
process of law, as fair trial was right of every accused---Co-accused were
present at the time of takin g evidence of prosecution witnesses and accused
was also entitled for the same treatment after his arrest---Provisions of S.353
Cr.P.C. were mandatory in nature and takin g of evidence of prosecution
witnesses in absence of accused vitiated trial---Every Trial Court was
empowered to believe evidence of all witnesses recorded in absence of
accused, provided on arrest of accused, such witness was found dead or in
capable of givin g evidence or his attendance could not be procured without
an amount of delay or expense---Complain ant party was contestin g the case
in spite of that Trial Court adopted illegal procedure by allowin g prosecution
to rely upon same evidence, which was taken in absence of accused--Conviction and sentence awarded to accused on the basis of such evidence
was not sustain able in law and the same was set aside--- High Court directed
Trial Court to take evidence of prosecution witnesses afresh, in presence of
accused persons and case was remanded---Appeal was allowed accordin gly.
Side Appellant : ZIA AKBAR

Side Opponent : THE STATE through Advocate-General
S. 426---Penal Code (XLV of 1860), S.302 ---West Pakistan Arms Ordin ance
(XX of 1965), S.13---Qatl-e-amd and possessin g unlicensed arms--Suspension of sentence---Scope---Application for suspension of sentence---
Appellate Court had power to suspend the sentence and order for release of
accused on bail under S.426, Cr.P.C. pendin g disposal of Appeal , but after
recordin g of conviction by the Trial Court, the in itial presumption of in
nocence in favour of accused was not available to accused/convict---Appellate
Court was to record the reasons for suspendin g the sentence and releasin g
accused on bail---Provisions of S.426, Cr.P.C. though were not controlled by
Ss.496 & 497, Cr.P.C., but the prin ciple in dicated therein , would have to be
borne in min d while grantin g or refusin g bail---Accused, accordin g to the
Superin -tendent Jail, had already served a period of 10-1/2 years; and if the
sentence would remain in tact, then he had to serve out only 3-1/2 years'
imprisonment---While decidin g the application for suspension of sentence,
the quantum of sentence and time likely to be consumed in decision of
Appeal had to be considered---Both co-accused/brother of accused and
accused who had been convicted, were attributed specific role---Co-accused
was awarded 10 years' rigorous imprisonment while accused was refused bail
on the ground that he had been convicted to 14 years' rigorous
imprisonment---Only a period of 3-1/2 years was left, if accused would serve
out total period of 14 years rigorous imprisonment---Accused was entitled to
same treatment which was meted out to co-accused, because both were
alleged to have given blows to the deceased---Impugned order passed by the
Shariat Court, was set aside to the extent of accused; his sentence was
suspended and he was ordered to be released on bail, in circumstances.
Side Appellant : KHAWAR ABBAS SIKANDAR

Side Opponent : THE STATE through Advocate-General, Mirpur (AJ&K)
Ss. 42(2) & 42-A---Azad Jammu and Kashmir Supreme Court Rules, 1978,
O.XLIII, Rr.1, 2 & 5---Crimin al Procedure Code (V of 1898), Ss.561-A & 382B---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd---Absconsion of
accused---Application for rehearin g of Appeal ---Applicant/accused on
completion of trial was absconded and was awarded sentence of life
imprisonment---Accused who opted for absconsion for a period of about three
years, filed an application under S.561-A, Cr.P.C. for treatin g it as Appeal for
settin g aside the conviction order---Said application of accused havin g been
dismissed up to Supreme Court, he had not filed any review petition and
remain ed mum for a period of near about five years and thereafter he had
filed application for revival and rehearin g of Appeal ---Under the provisions of
Azad Jammu and Kashmir in terim Constitution Act, 1974 and other relevant
laws, Supreme Court was vested with appellate jurisdiction with the exception
of revision again st the order of Shariat Court under the provisions of S.25 of
the Islamic Penal Laws Enforcement Act, 1974---Again st the appellate or
revisional orders, powers of review were also available subject to certain
conditions, but neither the Constitution nor any other law had conferred the
origin al jurisdiction on Supreme Court---Powers of the Supreme Court
postulated under S.42-A of Azad Jammu and Kashmir in terim Constitution
Act, 1974 were ancillary and residuary to the jurisdiction conferred on
Supreme Court by the Constitution and the law, which were exercised in any
case or matter pendin g before the court---Powers enumerated in said
section, could only be exercised for doin g complete justice in any case or
matter pendin g before the Supreme Court---No in dependent application for
rehearin g or review of such past and closed case, was entertain able after fin
al determin ation of matter by the Supreme Court in an Appeal or review--Accused had clearly confessed in his application that he had left abroad
without court's permission and that after a period of near about three years
had approached the court---Such conduct of accused had proved that he had
no respect for law and courts, even was not diligent for seekin g relief from
the courts---Application of accused under S.561-A, Cr.P.C. lacked reasonable
explanation of his absconsion---Both the Shariat Court and Supreme Court in
previous round had passed speakin g orders which were well reasoned--Accused on merits havin g no case, his application filed in competently stood
rejected, in circumstances.
SUPREME-COURT
Side Appellant : TAKDIR SAMSUDDIN SHEIKH

Side Opponent : STATE OF GUJARAT
Ss. 302/114---Murder, abettor present when offence committed---Reappraisal

of evidence---Sole and in terested witness---Reliance on evidence of such
witness---Scope---Accused and co-accused (appellants) were alleged to have
murdered the deceased in the presence of the complain ant after launchin g
an attack on them with swords---Accused, co-accused and complain ant were
also busin ess partners---Trial Court convicted the accused and co-accused
under SS.302 and 114 of the Penal Code, 1860---Contentions of the accused
and co-accused were that the complain ant, deceased and the accused were
busin ess partners and complain ant could have committed the act so as to
benefit in terms of money by elimin atin g one partner and gettin g the other
convicted; that complain ant was an in terested witness and his evidence
could not be relied upon without corroboration; that recovery of blood stain
ed clothes and swords from their car after 13 days was totally improbable;
that there were material contradictions/embellishments/improvements in the
statements of the witnesses which made case of the prosecution totally
improbable, and that it was not possible for the accused and co-accused to
cause as much as 33 in juries to the deceased and same could have been
caused by the villagers of the locality---Validity---Omissions/contradictions
poin ted out by accused and co-accused were trivial in nature, which did not
go to root of the cause---Contention of accused and co-accused that complain
ant's evidence could not be relied upon because of him bein g a sole and in
terested witness, was not acceptable---Contention of accused and co-accused
that in juries to the deceased could have been caused by the villagers of the
locality, had no force, sin ce scuffle took place in presence of the accused and
co-accused, who could have given details of the in cident and further
disclosed as to whether the villagers reached the place of occurrence with
swords---Presence of complain ant along with the deceased, accused and coaccused was natural, as they were busin ess partners who were visitin g the
place of in cident to see some land---F.I.R. had been lodged promptly,
therefore, there was no time for any kin d of manipulation---Appeal s were
accordin gly dismissed.
SUPREME-COURT
Side Appellant : QAMAR-UZ-ZAMAN

Side Opponent : Haji ALLAH BAKHSH
S. 417---Penal Code (XLV of 1860), SS.302 (b)/34---Constitution of Pakistan,

Art. 185(3)---Qatl-e-amd, common in tention---Miscellaneous application
again st acquittal of the accused persons (complain ant party of the crossversion) was dismissed by the High Court bein g barred by time---Although
application for condonation of delay was filed but no good ground was urged
therein , explain in g as to why same was filed beyond the period of limitation
before the High Court---High Court havin g proceeded to dismiss the
application of the accused, to which no exception could be taken, petition for
leave to Appeal was dismissed by Supreme Court, in circumstances.
SUPREME-COURT
Side Appellant : QAMAR-UZ-ZAMAN

Side Opponent : Haji ALLAH BAKHSH
S. 417---Penal Code (XLV of 1860), SS.302 (b)/34---Constitution of Pakistan,

Art.185(3)---Qatl-e-amd, common in tention---Complain ant (petitioner) had
filed Appeal again st acquittal of the accused persons and co-accused before
the High Court, which was allowed by the High Court only to the extent of the
accused persons and dismissed to the extent of the co-accused---Such
dismissal to the extent of the co-accused was not challenged before the
Supreme Court within the limitation period---Effect---Petition for leave to
Appeal was barred by time and was dismissed, accordin gly.
SUPREME-COURT
Side Appellant : IKRAM-UL-HAQ

Side Opponent : Raja NAVEED SABIR
Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), SS.302 /324/148/ 149/411---
Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to commit qatl-eamd, riotin g armed with deadly weapons, unlawful assembly, dishonestly
receivin g stolen property--- Petition for cancellation of bail---Accused
(respondent) had not been nomin ated in the F.I.R. in any capacity
whatsoever and his name had surfaced in the case for the first time through
a supplementary statement made by the complain ant (petitioner) and also
through statements made by the eye-witnesses under S.161, Cr.P.C.--Complain ant was not an eye-witness of the alleged occurrence---Accused
was not connected with the motive set-up in the F.I.R.---Accused was not
visible as one of the assailants present at the scene of the crime at the
relevant time in the Closed-circuit Television (CCTV) footage of the
occurrence---Although the accused had remain ed a fugitive from the law and
had been declared a proclaimed offender, but in a case callin g for further in
quiry in to the guilt of the accused , bail was to be allowed to him as a matter
of right and not by way of grace and concession---in vestigation of the case
had been fin alized and challan had been submitted, therefore, physical
custody of the accused was not required for the purposes of in vestigation--No allegation or material had been brought on the record regardin g any
misuse or abuse of the concession of bail by the accused---Petition for
cancellation of bail/leave to Appeal was dismissed, in circumstances.
SUPREME-COURT
Side Appellant : GHULAM ABBAS

S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Re-appraisal of
evidence---Grave and sudden provocation---Verbal abuses and threat--Scope--- Accused had murdered (son of the complain ant) in court premises--Alleged motive behin d the in cident was that one of the complain ant's son
had allegedly murdered the real brother of the accused---Trial Court convicted
the accused under S.302 (b), P.P.C., and sentenced him to death--Contentions of the accused were that the deceased abused him by threatenin
g to commit zin a with his sister, therefore, he committed the murder due to
sudden and grave provocation, and that carryin g a weapon was a routin e
matter for the people of the area from which he belonged---Validity---Place of
in cident and firin g at the deceased by the accused had been admitted by
both the parties---Presence of both eye-witnesses at the spot was natural as
on the day of the in cident they were attendin g court for the trial of one of
complain ant's son---Both the prosecution witnesses had made consistent
statements regardin g the in cident---Accused was arrested from the spot
duly armed---F.I.R. was recorded immediately after the occurrence and the
postmortem was also conducted without any delay---Even if it was assumed
that the deceased had abused the accused, then the latter should have fired
immediately out of grave and sudden provocation but accordin g to the
ocular account as well as medical evidence, all the in juries sustain ed by the
deceased were on the back side of his chest---Case of the accused was not
that the deceased abused him and started runnin g, whereafter the accused
fired at him---Statement of the accused regardin g grave and sudden
provocation, in circumstances, was an afterthought and it was not the stance
he had taken at the time of his arrest---Plea of grave and sudden provocation
was not borne out from the record---Accused neither appeared as his own
witness under S.340(2), Cr.P.C., to prove his plea nor produced any witness in
support of it---Accused had been captured and arrested by two police
constables, who were present at the spot, but said constables were not crossexamin ed on the issue of plea of grave and sudden provocation---Admittedly
the accused brought an unlicensed weapon with him and fired five to six
shots on the back of the deceased's chest in the court premises, therefore, it
had been rightly held by the courts below that the accused had come
prepared at the place of in cident to commit the murder of the deceased--Accused had acted in brutal manner while firin g at the deceased and was
apprehended at the spot with the weapon of offence---Courts below, in
circumstances, had rightly rejected the plea of the accused regardin g grave
and sudden provocation, and committed no illegality or irregularity in
sentencin g him to death---Petition for leave to Appeal was dismissed, in
circumstances.
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SUPREME-COURT
Side Appellant : GHULAM AHMED CHISHTI

S. 498--- Penal Code (XLV of 1860), SS.302 , 324, 427, 149 & 148--Constitution of Pakistan, Art.185(3)---Qatl-e-amd, attempt to commit qatl-eamd, causin g damage riotin g armed with deadly weapons, unlawful
assembly---Pre-arrest bail, grant of---Abscondin g accused---Contention of
complain ant was that police was not cooperatin g to cause arrest of accused
and knowin g well that Additional Sessions Judge had issued warrants of
arrest; the Station House Office of police station concerned was reluctant to
appear for one reason or the other---Effect---Accused though had obtain ed
bail from High Court but a person who was, prima facie, fugitive from law
could not claim relief from Supreme Court without approachin g it with clean
hands---Ad in terim bail granted to accused was recalled by Supreme Court
and judgment passed by High Court was main tain ed and bail was refused--Leave to Appeal was refused.
SUPREME-COURT
Side Appellant : JAFAR @ JAFARI

SS.302 (b) & 311---Crimin al Procedure Code (V of 1898), S.345(3)---Qatl-eamd, tazir after waiver or compoundin g of right of qisas in qatl-e-amd--Reappraisal of evidence---Compromise between the parties---Contention of
prosecution was that appellant had also abducted the deceased before
committin g her murder and that another F.I.R. was registered again st the
appellant, on account of which he deserved no concession and under the
relevant provisions of S.311, P.P.C., adequate sentence should be awarded to
accused while acceptin g the compromise--- Validity--- No sufficient evidence
was available on record to conclude that the appellant was habitual offender
and although another F.I.R. was registered again st him, but same was not
sufficient to prove the appellant as habitual offender, unless it was proved
that he had been convicted and his conviction had been fin ally main tain ed
by superior courts---Report from Trial Court proved the genuin eness of the
compromise and right of qisas and diyat had also been exercised by the
complain ant side, by which they forgave the appellant---Case was disposed
of in terms of compromise and appellant was permitted to compound the
offence in terms of S.345(3), Cr.P.C.---Conviction and sentence recorded by
High Court were set aside and appellant was directed to be released---Appeal
was allowed.
SUPREME-COURT
Side Appellant : MUHAMMAD ASLAM

S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Trial Court convicted the

appellant under S.302 (b), P.P.C., and sentenced him to death---Appeal of
appellant was dismissed by the High Court, however sentence of death
recorded by Trial Court was altered to life imprisonment---Validity---F.I.R. was
promptly lodged, allowin g no time to the prosecution to concoct a false
story---Post-mortem was conducted without any delay and it supported the
statements of the prosecution witnesses---No previous enmity existed
between the parties and witnesses were not only related to the deceased but
also with the appellant, therefore, they had no motive to falsely implicate the
appellant and their relationship with deceased was not sufficient to term
them as in terested witnesses---Prosecution witnesses were residents of the
village where occurrence took place and their presence at the spot had been
established beyond any shadow of doubt---Specific role of firin g had been
attributed to the appellant---Statements of witnesses with regard to the
appellant were consistent with each other and despite lengthy cross-examin
ation, defence failed to gain anythin g---Motive of the occurrence was almost
admitted by the appellant himself by statin g that he suspected the deceased
to have concealed his mother (who was real sister of the deceased), who had
been missin g for three years---Alleged in volvement of deceased in crimin al
cases did not give a licence to the general public to commit his murder---Fact
of delay in sendin g crime weapon and empties to the Forensic Science
Laboratory did not, overweigh the ocular evidence which was in lin e with and
supported by the medical evidence---Prosecution had been able to prove the
case again st the appellant beyond any shadow of doubt---Appeal was
SUPREME-COURT

Ss. 100 & 302(b)(c)---Crimin al Procedure Code (V of 1898), S.342---Qatl-eamd---Reappreaisal of evidence---Right of self-defence---Benefit of doubt--Cross-version---Effect---Trial Court convicted accused under S.302 (b), P.P.C.
and sentenced him to death but High Court converted conviction under S.302
(c), P.P.C. and sentenced him to fifteen years of imprisonment---Validity--Except for oral statements of eye-witnesses there was nothin g on record
which could establish the presence of both the eye-witnesses at the spot and
as their presence at the spot was doubtful, no reliance could be placed on
their testimonies to convict accused on a capital charge---Same set of
evidence was disbelieved regardin g in volvement of co-accused, as such, the
same evidence could not be relied upon in order to convict the accused on a
capital charge as statements of both eye-witnesses did not fin d any
corroboration from any piece of in dependent evidence---Report of Forensic
Science Laboratory regardin g status of pistol, recovered from accused along
with crime empties, though the same were sent to Forensic Science
Laboratory, was not produced by prosecution---Mere recovery of pistol from
accused alone was not sufficient to corroborate ocular account which was not
believable---When both versions were kept in juxtaposition, the version put
forward by accused appeared to be natural and was believable---Accused
received five fire-arm in juries at the hands of deceased and his companions
fell semi-unconscious and in such state of affairs only and only in order to
save his life fired a sin gle shot which hit the deceased due to which he lost
his life---Explanation and stance of accused was natural as the deceased and
his companions were not abstain in g themselves from further firin g on the
accused and their further firin g could have taken life of accused, who had
acted in his self-defence and not exceeded the same---Supreme Court set
aside conviction awarded to accused by both the courts and he was set at
liberty---Appeal was allowed.
SUPREME-COURT

S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Trial Court convicted the

accused under S.302 (b), P.P.C., and sentenced him to imprisonment for life,
while the co-accused was acquitted---Appeal of accused was dismissed by the
High Court---Contention of accused was that F.I.R. was not recorded promptly
and both eye-witnesses were not present at the spot and made dishonest
improvements in their statements---Validity---in cident had allegedly taken
place in the evenin g and F.I.R. was lodged at 9 p.m. on the same day, but
post-mortem was conducted on the next mornin g at 10 a.m., which raised
the question that if F.I.R. was recorded with such promptitude, why the
postmortem was conducted with such a delay---Postmortem report provided
time between death and conduct of postmortem as fifteen to sixteen hours,
so, F.I.R. recorded with delay could not be used again st the accused as a
corroborative piece of evidence---Medical evidence contradicted the ocular
account that the in cident was promptly reported---Prosecution had produced
two witnesses, father and brother of the deceased, to prove the ocular
account, but both were related with the deceased and said eye-witnesses
were chance witnesses as the in cident had not taken place in front of their
places of residence or busin ess---Quarrel took place at the spur of the
moment and it was questionable as to how the witnesses reached the spot
and saw the in cident---Said witnesses claimed to have seen the in cident and
attributed only one in jury to the accused at the back of deceased's ear, but
failed to explain the two in juries caused with a blunt weapon on the forehead
and left eye of the deceased---Same witnesses, when appearin g before Trial
Court, had attributed the blunt weapon in juries to the co-accused who was
allegedly armed with sota---Improvements were in troduced by said witnesses
to brin g the ocular version in lin e with the medical evidence and High Court
had found that they made dishonest improvements in their statements
recorded under Ss. 154 and 161, Cr.P.C, qua the role ascribed to the coaccused---Motive had not been proved through the evidence on record and
recovery of hatchet was also of no help to the prosecution as same was not
stain ed with blood---Accused's Appeal was dismissed by the High Court and
Supreme Court granted leave to Appeal to consider whether the case again st
accused was proved beyond reasonable doubt---Accused had taken a specific
plea of grave and sudden provocation claimin g that the deceased had illicit
relations with his wife, due to which he had shifted his place of residence and
started livin g at a place far from the deceased's house, and the in cident
took place when accused saw his wife in compromisin g position with the
deceased---Accused had stated that deceased succeeded in runnin g away
from the place of in cident and he followed him and in jured him with a
hatchet---Accused neither appeared in his defence plea as required under
S.340(2), Cr.P.C, nor produced any evidence to support his defence plea and
witnesses had also denied such plea of accused---Defence plea of accused
was not accepted---Prosecution, however in circumstances, havin g failed to
prove the case again st the accused beyond any reasonable doubt, conviction
and sentence awarded to accused were set aside and he was acquitted of the
charge---Appeal was allowed accordin gly.
SUPREME-COURT
Side Appellant : MUHAMMAD MUMTAZ
S.302 (b)---Qatl-e-amd---Reappraisal of evidence---Prompt F.I.R.---Concurrent

fin din gs of fact by two courts below---Death sentence awarded to accused
by Trial Court was converted in to imprisonment for life by High Court--Validity---Case of prompt F.I.R., lodged within 15 min utes of the occurrence
where accused were specifically named with a specific role attributed to them
and motive was alleged---Promptitude with which the matter was reported
ruled out possibility of false implication and even otherwise it was repellent to
common sense that complain ant would let off real culprit and in volve
someone else---Both the witnesses remain ed consistent durin g the trial on
all material particulars of prosecution case in so far as the role attributed to
accused was concerned---Testimony of prosecution witnesses was
corroborated by medical evidence, which was consistent with ocular account
in so far as the weapon, locale of in jury and time which lapsed between the
in jury and postmortem examin ation were concerned---Concurrent
assessment of evidence made by two courts below culmin atin g in fin din g
of guilt was not arbitrary, capricious or again st the evidence led by
prosecution---Supreme Court declin ed to in terfere in conviction and
sentence awarded to accused by the High Court---Appeal was dismissed.

Side Appellant : TALIB JAN
SUPREME-COURT
S. 497(2)---Penal Code (XLV of 1860), SS.302 /324/34---Qatl-e-amd, attempt

to commit Qatl-e-amd and abetment---Bail, grant of---Further in quiry--Accused (father) was charged for commandin g co-accused (son), who had
gone in to hidin g and had been charged for firin g effective shot at the
deceased---Whether the role assigned to accused was result of exaggeration
to rope him in , so that he may not be at large to pursue litigation; whether
accused's stay in the village despite bein g named in F.I.R. could be held to be
more consistent with in nocence rather than guilt when co-accused had gone
in to hidin g and whether the role of commandin g attributed to accused who
himself was armed with Kalashin kov could be held to be ornamental or at par
with abetment, were questions callin g for further in quiry---Accused's petition
for leave to Appeal was converted in to Appeal and allowin g the same he
was admitted to bail.
SUPREME-COURT
Side Appellant : ALI HASAN @ JAMSHAID

S.302 ---Constitution of Pakistan, Art. 188---Supreme Court Rules, 1980, O.

XXVI, R.1---Qatl-e-amd---Review of Supreme Court judgment---Age of
accused---Determin ation---Conviction and sentence awarded to accused by
Trial Court was main tain ed by High Court and leave to Appeal was refused
by Supreme Court---Plea raised by accused was that at the time of
occurrence, he was below the age of eighteen years and the same was not
properly determin ed by the courts below---Validity---Both the courts i.e. Trial
Court and High Court examin ed the record of Registration of birth in NADRA
to be 23 years---Even in voters' list, accused was of the same age at the time
of occurrence and birth entry record of union council was found to be
dubious---Review jurisdiction had a limited scope but as it was an issue of life
and death, therefore, Supreme Court delved deeper in to it, although
question with regard to determin ation of age was primarily a question of fact
to be decided by Trial Court---Supreme Court did not fin d any error apparent
in the face of record to warrant review---Review petition was dismissed.
SUPREME-COURT
Side Appellant : GHAZANFAR ALI @ PAPPU

SS.302 (b)/392/34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd,

robbery and abetment---Identification parade---Proof---False implication--Accused were convicted under SS.302 (b) and 392, P.P.C. by Trial Court and
sentenced to imprisonment for life and ten years, respectively---Plea raised
by accused was that they were falsely implicated in the case and they had
been shown to prosecution witnesses before identification parade---Validity--Arrest of accused persons was result of in crimin atin g evidence collected
through elaborate in vestigation---Both the accused, next day after their
arrest, were sent to judicial lockup and five days later, identification parade
was held in lockup/jail premises---Nothin g was available in evidence to in
dicate that accused were at police station where they were shown to
witnesses or their photographs were taken---Accused while makin g such bald
allegation did not specify time, date and place, when they were shown to
witnesses neither they made such allegation before the Magistrate who
supervised identification parade or in their statement under S. 342, Cr.P.C.
durin g the trial---Evidence of identification in spired confidence and ocular
account was corroborated by recovery of share amount from both the
accused---One of the accused also led to recovery of .30 bore pistol which
was taken in to possession from his house---Forensic Science Expert revealed
that empties recovered from the spot were wedded with the pistol recovered
from the accused---Supreme Court declin ed to in terfere in the conviction
and sentences awarded to accused by the courts below---Appeal was
dismissed.
SUPREME-COURT
Side Appellant : SAEED AHMAD

Side Opponent : MUHAMMAD NAWAZ
S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Appeal again st

acquittal---Re-appraisal of evidence---Acquittal of accused---Benefit of doubt--Delay in F.I.R.---Conviction under S.302 (b), P.P.C. and sentences of death
awarded by Trial Court was set aside by High Court and accused was
acquitted---Validity---Delay of nin e hours in lodgin g F.I.R. and motive set was
trivial in nature---Both the eye-witnesses were closely related to deceased as
son and nephew---Occurrence had taken place in a broad daylight at public
place but not a sin gle witness appeared to support prosecution case---in
juries suffered by deceased were merely abrasions and fin din g that it
reflected conflict between ocular account and medical account was not
conjectural---Fin din g of acquittal in favour of accused was neither again st
evidence led nor arbitrary---Supreme Court declin ed to in terfere in judgment

of acquittal passed by High Court---Leave to Appeal was refused.
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SUPREME-COURT
Side Appellant : Mst. SABEEHA

Side Opponent : IBRAR
SS.302 (b)/148/149---Qatl-e-amd and unlawful assembly armed with deadly

weapons---Reappraisal of evidence---Life imprisonment---Sentence of death
awarded to accused was converted in to imprisonment for life---Validity--None of the prosecution witnesses in cludin g in jured witnesses attributed
any specific in jury to any of the accused and three co-accused remain ed
fugitive from law---Uncertain ty regardin g fatal in juries and prosecution case
regardin g two co-accused was not worthy of reliance and they were
acquitted---Judgment passed by High Court reducin g sentence of death in to
imprisonment for life was neither arbitrary nor unjust---When an unlawful
assembly armed with deadly weapons was resortin g to in discrimin ate firin
g, it was not possible to identify as to whose fire hit whom and in such
circumstances, award of maximum sentence would not be in consonance with
safe admin istration of justice---Supreme Court declin ed to in terfere in the
judgment passed by High Court---Appeal was dismissed.
SUPREME-COURT
Side Appellant : MUHAMMAD ANWAR

Ss. 323 & 302(b)---Crimin al Procedure Code (V of 1898), S.345---Constitution

of Pakistan, Art.185(3)---Qatl-e-amd---Compromise between the parties--Nature---Value of diyat---Determin ation---Diyat amount was payable to legal
heirs of the deceased at the rate prevalent at the time of the compromise
and not the commission of the offence---Scope---Accused (applicant) was
sentenced to death by the Trial Court under S.302 (b), P.P.C, with a direction
to pay Rs.50,000 as compensation to the legal heirs of the deceased---High
Court on Appeal , converted death sentence of the accused in to
imprisonment for life but main tain ed payment of compensation--Subsequently the mother, widow and son of the deceased recorded their
statements statin g that they had forgiven the accused in the name of Allah
without acceptin g Badl-e-Sulah---Widow of the deceased stated that she had
accepted land and Defence Savin g Certificates in the name of her min or
children, accordin g to their share of Diyat amount bein g their Wali--Compromise between the parties was genuin e and had been effected with
their own free will and consent without external pressures, however Diyat
amount had been paid to the min or legal heirs of the deceased at the rate
prevalent at the time of the commission of the offence---Validity--Compromise between the legal heirs of the deceased and the convict was a
type of a contract---Where the legal heirs of the deceased made a statement
before the court pardonin g the convict, they would get Badl-e-Sulah in the
shape of Diyat amount and where they forgave the convict in the name of
Allah, they would get reward thereof from Allah---Where the natural guardians
i.e. mother or father of the min ors legal heirs of the deceased, forgave the
convict, the in terest of min ors was to be safeguarded by payin g them their
due share as Diyat amount accordin g to the rate of Diyat prevailin g at the
time of arrivin g at the compromise between the parties, as the contract
could not have retrospective effect---Section 323, P.P.C, made it clear that the
value of Diyat should not be less than the value of thirty thousand six
hundred and thirty grams of silver, therefore, it was apparent that the rate of
Diyat in vogue at the time of compromise should be applicable and not the
rate prevailin g at the time of commission of the offence---Compromise, in the
present case, had been effected in the fin ancial year 2011-12, therefore, the
rate of Diyat declared by the Government vide its notification for the year
2011, was payable to the min or legal heirs of the deceased---Parties were
allowed to compound the offence subject to the payment of Diyat to the min
or legal heirs of the deceased---Application of the accused was accepted and
his petition for leave to Appeal was converted in to Appeal and allowed and
he was acquitted of the charge.
SUPREME-COURT
Side Appellant : QAMAR alias MITHO

S. 497(2)---Penal Code (XLV of 1860), SS.302 /109/34--Qatl-e-amd,

abetment---Bail, grant of---Further in quiry---Accused havin g not been named
in the F.I.R., his name surfaced in the case for the first time after more than
one month of the alleged occurrence when two persons nomin ated him as
'unknown culprit'---Said two persons were not mentioned in the F.I.R. as eyewitnesses of the alleged in cident---Test identification parade had not been
held for eye-witnesses to identify accused (unknown culprit mentioned in the
F.I.R.)---No specific or particular in quiry to any person had been attributed to
the unknown culprit (accused)---Accused had no connection with the motive
set up in the F.I.R.---Culprits specifically nomin ated in F.I.R. to whom firin g
had been attributed had already been admitted to post-arrest bail---Case
again st accused called for further in quiry in to his guilt---Accused's petition
for leave to Appeal was converted in to Appeal and allowin g the same he
was admitted to bail by Supreme Court.
Side Appellant : ARSHAD MASIH

Side Opponent : THE STATE
Ss. 302(b), 315 & 316--- Qatl-e-amd, qatl-e-shibh-i-amd---Appreciation of

evidence---Conversion of conviction from S.302 (b), P.P.C. to S.316, P.P.C.--Deceased given a beatin g by accused (appellant) and co-accused persons
durin g a Church congregation---Accused hit the deceased with a flowerpot in
the heat of the passion---Said fact was corroborated by prosecution
witnesses---Quarrel or attack upon the deceased in presence of a big gatherin
g/congregation showed no prior in tention on part of the accused and co-
accused to kill the deceased---Fin din gs of Trial Court qua in tention of

accused were not challenged by the complain ant or prosecution---Effect--Accused was required to be sentenced under S.316, P.P.C.---Conviction and
sentence of accused under S.302 (b), P.P.C., was set aside and he was
convicted and sentenced under S.316, P.P.C.---Appeal was disposed of
accordin gly.
Side Appellant : Mst. SALAM BIBI

Side Opponent : AMAN ULLAH
S.302 /34-Crimin al Procedure Code (V of 1898), S. 417(2-A)---Qatl-a-amd,

common in tention---Appeal again st acquittal---Appreciation of evidence--Complain ant bein g daughter-in -law of the deceased, was an in terested
witness, her testimony required in dependent corroboration, which was lackin
g in the case---in ordin ate and unexplain ed delay of more than five hours in
lodgin g the F.I.R.-Occurrence had not taken place in the mode and manner in
which it was reported by the complain ant---Evidence of two prosecution
witnesses was not worthy of credence as it was not in conformity with the
ocular account furnished by the complain ant---Said witnesses had
contradicted the complain ant on material particulars---One of the
prosecution witnesses had recorded his statement under S.161, Cr.P.C. after
10 days of the occurrence, which by itself was sufficient to create doubts in
his evidence---Empties of Kalashnikov recovered from the spot were not sent
to the Firearms Expert to ascertain as to whether those were fired from one
weapon or more---Such laxity on the part of the prosecution had adversely
affected the complain ant's version---Complain ant had alleged the

occurrence to be the result of previous blood feud between the parties--Motive bein g termed as the proverbial double edged weapon, the probability
of substitution for the real culprits or false implication could not be ruled
out---Abscondence of accused simpliciter could not be made basis for
recordin g conviction of an accused, when the ocular and circumstantial
evidence was not confidence-in spirin g---Material contradictions and lacunas
in the prosecution evidence, were found in the case---No illegality or in firmity
had been poin ted out in the impugned fin din gs of the court below so as to
warrant in terference therein by High Court--- Fin din gs of Court below was
accordin gly main tain ed.
Side Appellant : AHMAD GUL

Side Opponent : MUHAMMAD DIN
SS.302 /376/34---Crimin al Procedure Code (V of 1898), S. 417(2-A)---Qatl-eamd, dacoity with murder, common in tention---Appeal again st acquittal--Appreciation of evidence---Prosecution had been able to prove its charge
again st convicted accused in view of his confessional statement and on
account of recoveries so made from him---Case of accused persons was on
totally different footin gs, because except for bein g charged in the F.I.R.,
nothin g was on record to remotely connect them with the commission of
offence as no eye-witness of the occurrence was on record, therefore
recoveries effected and medical report had nothin g to do with accused
persons---Nothin g material was available on record to show in volvement of
accused persons in the commission of offence---Accused had rightly been

acquitted on the basis of available record by the Trial Court, which did not call
for in terference---Once accused was acquitted by the competent court of law
after facin g the agonies of protracted trial, then he would earn the
presumption of double in nocence, which could not be disturbed by the
appellate court, unless it was established through cogent and reliable
evidence available on record that the order of acquittal was fanciful,
erroneous, or had resulted in to grave miscarriage of justice, which was lackin
g in the case.
Side Appellant : FAZAL MIR

Ss. 302(b), 324, 337-F(ii) & 449---Qatl-e-amd, attempt to commit qatl-e-amd,

causin g hurt, house trespass---Appreciation of evidence---Presence of eyewitnesses at the scene of occurrence was established---No previous enmity of
the related witnesses with the accused was available on record to dub them
as in imical witnesses---Medical evidence and positive report of Forensic
Science Laboratory had corroborated the prosecution version---Eight years'
long abscondence of accused had not been reasonably explain ed---Motive
stood fully established---Ocular testimony was consistent, reliable and
trustworthy---Convictions and sentences of accused were main tain ed,
except the sentence of death---Motive for the occurrence related to abscondin
g co-accused but the same had been unlawfully attributed to accused by Trial
Court---Co-accused were still absconders, but the total responsibility of firin g
the fatal shots put on the accused by Trial Court did not Appeal to reason, and
this benefit must go to accused---Death sentence awarded to accused under
S.302 (b), P.P.C. was converted in to imprisonment for life in circumstances.
Side Appellant : ABDUR RAHMAN

S. 497(2)---Penal Code (XLV of 1860), SS.302 /324/148/149---Qatl-e-amd,

attempt to commit qatl-e-amd---Bail, grant of---Further in quiry---Time of
occurrence had been admitted by the complain ant---Delay in lodgin g of F.I.R.
in the case, when case again st the complain ant party was already
registered, the consultation and deliberation for chargin g of accused
persons, could not be ruled out---Story narrated by the complain ant, prima
facie, did not Appeal to a prudent min d---There were versions of the
occurrence and reasonable grounds existed that accused had not committed
the offence and present bein g a case of further in quiry, accused was
admitted to bail, in circumstances.
Side Appellant : SHER HAKEEM

S. 302---West Pakistan Arms Ordin ance (XX of 1965), S.13---Qatl-e-amd,

possessin g unlicensed arms---Appreciation of evidence---Accused was
arrested on the day of occurrence and weapon of offence i.e. shotgun was
also recovered from him---Accused made the confessional statement and
Judicial Magistrate had stated that accused made confession voluntarily
before him and same was not result of in ducement, promise or threat--Accused in his statement under S.340(2), Cr.P.C. had stated that certain
omissions in his statement were made by the Judicial Magistrate, but nothin g
in that regard was suggested to him nor he was cross-examin ed on the said
omission---Confessional statement was not retracted at any stage---Motive for
the occurrence was proved by prosecution witnesses---Said witnesses were
not cross-examin ed on material poin ts---Weakness or absence of motive, or
failure to prove the same, could not be termed as fatal to the prosecution
case---Delay in sendin g the crime articles to the laboratory, was of no
consequence in absence of any suggestion of fabrication, manipulation or
tamperin g with the same---Plea of grave and sudden provocation was neither
advanced by accused in his confessional statement, nor at the time of formal
charge---Conduct of accused at the time of occurrence remain ed so grave
and desperate that he could not claim any leniency on the pretext of grave
and sudden provocation, which was not even palpable from the evidence on
record---Multiple fire-arm in juries were found on the dead bodies of the
deceased---Ocular account furnished by prosecution witnesses, was
supported by the medical evidence, recoveries, positive report of the experts,
motive and confessional statement of accused---Punishment as Qisas under
S.302 (a), P.P.C., though was not warranted under S.302 (b), P.P.C., but S.302
(b), P.P.C. had also provided the punishment of death as Tazir---Accused who
had committed the brutal murders of two in nocent persons, was not entitled
to any leniency, and deserved normal penalty as Tazir under S.302 (b),
P.P.C.---Appeal of accused was dismissed and murder reference was answered
in affirmative.
Side Appellant : IRFAN SAEED

Ss. 302(b) & 148---Qatl-e-amd---Appreciation of evidence---Report of the

occurrence havin g been lodged by the complain ant within 30 min utes of
the occurrence, there was hardly any time for deliberation or consultation--Statements of the complain ant and other eye-witness were consistent on
material poin ts---Said eye-witnesses were further corroborated by the
medical evidence, motive and the abscondence of accused---Despite lengthy
cross-examin ation consistin g of 24 pages, no dent or contradiction,
whatsoever was created in the statements of the said eye-witnesses and
their veracity could not be shaken---Accused went in to hidin g to avoid lawful
arrest and remain ed absconder for about seven months, which was also a
strong corroborative piece of evidence---Prosecution had fully established the
guilt of accused, who was sin gly charged for firin g at the deceased--Substitution was a rare phenomenon and it was not possible that the close
relatives of the deceased would let the actual culprit scot-free and substitute
an in nocent person for the commission of the offence in volvin g capital
punishment---Conviction and sentence awarded to accused by the Trial Court
under S.302 (b), P.P.C., were main tain ed and Appeal to his extent was
dismissed---Community of in tention and object havin g been disbelieved,
conviction and sentence of accused under S.148, P.P.C. was set aside.
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Side Appellant : LAJBAR KHAN

SS.302 /148/149---Crimin al Procedure Code (V of 1898), S.417(2A)--Qatl-eamd---Appeal again st acquittal---Appraisal of evidence---Eye-witnesses

contradicted each other on material poin ts---One prosecution witness, did
not mention the presence of other two witnesses on the spot at the time of
occurrence---Said prosecution witness in his cross-examin ation had stated
that he was not in the knowledge of what had transpired between the
deceased and accused prior to the occurrence as he was not present--Another prosecution witness did not mention the presence of the complain
ant or any other witness at the time of occurrence---F.I.R. was lodged after a
delay of more than 24 hours and explanation offered by the complain ant for
such delay, was neither reasonable nor plausible which showed that time was
consumed in deliberation and consultations---Occurrence was unseen and the
witnesses were set up; they were closely related in ter se with the deceased
and in imical towards accused and were contradicted by the medical
evidence---Empty shells allegedly taken from the spot by the complain ant
were not found wedded with the Kalashnikov allegedly recovered---Double

presumption of in nocence was attached to the order of acquittal passed by
the court of competent jurisdiction---Fin din g of acquittal could not be
reversed, upset and disturbed, except when the judgment of acquittal was
found to be perverse, arbitrary, shockin g, artificial and sufferin g from error
of jurisdiction, mis-readin g or non-readin g of evidence---Even if on
appreciation of evidence another view was possible, view favourable to
accused was to be preferred---Judgment of acquittal passed by the Trial
Court, bein g unexceptionable, needed no in terference---Appeal again st
acquittal was dismissed, in circumstances.
Side Appellant : MUHAMMAD SALEEM


sentence---Only allegation again st convict was that he raised Lalkara at the
time of occurrence---Trial Court had ordered conviction with observation that
he abetted his co-convict fore the commission of murder of deceased but
there was no evidence available on record regardin g such abetment--Convict had not caused any in jury on the person of the deceased---Convict
had been behin d bars sin ce his conviction and hearin g of his main Appeal
was not in sight in the near future---Sentence of convict was suspended in
circumstances and he was released on bail accordin gly.
Side Appellant : ZAFAR HUSSAIN

Side Opponent : AYYAZ AHMED alias KAKA
S. 7-Penal Code (XLV of 1860), SS.302 & 308---Crimin al Procedure Code (V of

1898), S.417(2-A)---Qatl-e-amd---Appeal again st acquittal---Accused had
been acquitted under S.302 , P.P.C., but had been convicted under S.308,
P.P.C. and sentenced to Diyat and 14 years' R.I. as Tazir---Accused respondent
bein g not liable to qatl-e-amd as Qisas under S.302 (a), P.P.C., provisions of
S.308, P.P.C. were not attracted in the case---Plea of min ority had not been
taken by accused durin g the trial and he had only produced a copy of
register of birth entries in his defence and relyin g on the same Trial Court
treatin g hin t as min or had convicted him under S.308, P.P.C. vide .impugned
judgment---Plea of min ority by accused was a special plea in tended to take
him off the noose and, thus, onus was on him to prove the same---High Court
observed that whenever such a question of age is raised or arises at the trial,
courts should not deal with it in a cursory or in a slipshod manner, but must
proceed to hold an in quiry in to the matter as commanded by the provisions
of S.7 of the Juvenile Justice System Ordin ance, 2000, in cludin g medical
examin ation by a duly constituted Medical Board---Trial Court had neither
ascertain ed the min ority of accused in accordance with law nor had
provided an opportunity to the prosecution to rebut the claim of accused and
had not proceeded with the case in accordance with the provisions of the said
Ordin ance---Accused though was alleged to have already undergone the
sentence of imprisonment and had also paid the amount of Diyat before the
Trial Court, yet his de novo trial would not be hit by the provisions of double
jeopardy---When conviction or acquittal of an accused was under challenge in
Appeal or revision, the proceedin gs would neither be fresh prosecution nor
any question of second conviction or double jeopardy would arise, as an

Appeal or revision would be a contin uity of the trial and any alteration of
sentence would not amount to double jeopardy---Conviction of accused under
S.308, P.P.C. was consequently set aside and the case was remanded to Trial
Court with the direction to ascertain the claim of min ority of accused
respondent after holdin g an in quiry strictly in terms of S.7 of the Juvenile
Justice System Ordin ance, 2000---If the accused was found juvenile at the
time of occurrence Trial Court was directed to refer the matter to Juvenile
Court, otherwise Trial Court would itself decide the case afresh on the basis of
evidence available on record in the light of observations made above---Appeal
was disposed of accordin gly.
Side Appellant : MUHAMMAD TAHIR

S. 426---Penal Code (XLV of 1860), SS.302 /148/149--- Qatl-e-amd, riotin g

armed with deadly weapons---Suspension of sentence---Accused had been
acquitted in all other cases and was previously a non-convict---Adverse fin din
gs of Trial Court again st accused and his in volvement in crimin al cases in
the past, which ended in acquittal, did not show that he was a desperate,
dangerous or hardened crimin al---Accused's Appeal havin g not reached its
logical end without any fault on his part, his sentence was suspended and he
was released on bail accordin gly.
Side Appellant : NIAMAT ALI

S. 426---Penal Code (XLV of 1860), SS.302 (b)/324/337-F(vi)/34/148/149--Qatl-e-amd, attempt to commit qatl-e-amd, ghayr - jaifah - mutalahimah,
common in tention, riotin g armed with deadly weapons, unlawful assembly--Suspension of sentence---Delay in decision of Appeal ---Medical grounds--Contentions of the accused were that there was no allegation again st him for
causin g any in jury to any of the deceased; that only allegation again st the
accused was that he had caused in juries to the in jured with carbin e; that in
jury attributed to the said in jured had been declared to be fallin g under
S.337-F(iii), P.P.C; that accused was allowed bail by the High Court on the
basis of his age and sickness and he remain ed present before the court durin
g the whole trial; that there was no evidence again st the accused to attract
S. 34, P.P.C and such fact should fin ally be determin ed at the time of his
Appeal , which was not in sight in the near future---Validity---Accordin g to the
prosecution the fatal shots had been attributed to the co-accused and
allegations again st the accused were that he waylaid the complain ant party,
caused in juries to the in jured and raised 'lalkara'---Question as to whether
the accused was vicariously liable for the act of his co-accused needed
serious consideration at the time of hearin g of the main Appeal ---Accused
had remain ed on bail durin g the course of his trial and there was no
likelihood of hearin g of his Appeal in the near future---Accused was more
than 70 years old and his medical reports revealed that he was sick---Petition
was allowed and sentence of accused was suspended till the fin al disposal of
his Appeal .
Side Appellant : MUHAMMAD HANIF

S. 426---Penal Code (XLV of 1860), SS.302 (b)/149, 324/149 & 148---Qatl-eamd, attempt to commit qatl-e-amd, riotin g armed with deadly weapons--Suspension of sentence---Accused was behin d the bars sin ce 2-2-2006 and
Appeal again st his conviction and sentence by Trial Court had not been fixed
for hearin g so far in the High Court---Accused or any other person on his
behalf; was not shown responsible for causin g delay in the decision of Appeal
---By the passin g of time accused had earned a right to ask for suspension of
his sentence---Accused was not a previous convict and no circumstance
appeared on record to dub him a hardened, dangerous or desperate crimin
al---Accused had not fired at the deceased, rather he along with his coaccused had fired at the in jured prosecution witnesses---Sentence of accused
was suspended in circumstances and he was released on bail accordin gly.
Side Appellant : MUHAMMAD ILYAS alias BHOLA

S.302 (b)/34---Crimin al Procedure Code (V of 1898), S. 417(2-A)---Qatl-eamd---Common in tention---Appeal again st acquittal---Accused though was
declared in nocent in two successive in vestigations, but High Court was not
bound by the opin ion given by the in vestigatin g Officer, because it was
always the evidence available on the record which weighed with the court
and not the Police opin ion while passin g the judgment---Accused had been
assigned the role of makin g fire shots with his pistol at the deceased---Trial
Court had acquitted accused---After perusal of available record and considerin
g fin din gs arrived at by the Trial Court, it appeared that the reasons
advanced by the Trial Court for recordin g acquittal of accused, were not
either arbitrary or perverse; and the conclusion arrived at in the impugned
judgment appeared to be in accordance with law---No legitimate exception
could be taken to the conclusion arrived at by the Trial Court---Even otherwise
accused after his acquittal by the Trial Court, enjoyed double presumption of
in nocence in his favour, and courts seized with Appeal again st acquittal
under S.417, Cr.P.C., were obliged to be very careful in dislodgin g such
presumption---in view of said circumstances coupled with guidelin es given by
the Supreme Court in its judgment (2009 SCMR 803), nothin g arbitrary,
capricious, fanciful or again st the record was to warrant in terference with
the acquittal of accused---Appeal again st acquittal was dismissed, in
circumstances.
Side Appellant : MUKHTAR AHMAD

S. 417---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd---Appeal again st

acquittal---Benefit of doubt---Prin ciple---Acquitted accused enjoys double
presumption of benefit of doubt, one durin g the trial and the second after his
acquittal and, therefore, very strong and exceptional grounds are required to
upset the acquittal recorded by the court of competent jurisdiction.
Side Appellant : ABDUL LATIF

SS.302 (b) & 377---Crimin al Procedure Code (V of 1898), S.417(2-A)---Qatl-eamd and commission of sodomy---Appeal again st acquittal---No allegation of
sodomy again st accused---Allegation again st accused was that of his mere
presence at the place of occurrence---Even otherwise, it did not Appeal to
common sense that accused who was brother-in -law of other accused, would
join tly commit the act of sodomy or murder---Every person, in itially was
presumed to be in nocent, unless proved guilty; and when he was found
otherwise and was acquitted of the charge, then he was presumed in nocent
two times---No ground was available for in terference in the verdict of
acquittal as the same was neither perverse nor capricious.
Side Appellant : WASEEM

S. 426---Penal Code (XLV of 1860), S.302 (b)/34---Qatl-e-amd---Suspension of

sentence on ground of statutory delay---Despite the expiry of more than two
years Appeal of accused had not been decided by High Court so far---Record
did not present any antecedents of the accused of havin g been in volved in
any case of alike nature or of terrorism---No remarkable circumstance had
been found to prevent the accused from seekin g the relief prayed for--Statutory right had accrued in favour of accused and his case did not fall
within any exceptional clause of S.426, Cr.P.C.---Sentence of accused was
suspended in circumstances and he was released on bail accordin gly.
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Side Appellant : ABDUL SATTAR alias TARA

Side Opponent : HABIB ULLAH
S. 426(1-A)(c) [as amended by Code of Crimin al Procedure (Amendment) Act

(VIII of 2011), S.2]---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd--Suspension of sentence---Bail, grant of---Appeal of accused again st his
conviction and sentence which was pendin g sin ce 2004, had not been
disposed of---Case of accused was covered under clause (c) of amended
S.426(1-A), Cr.P.C. as his Appeal had not been decided within period of two
years of his conviction---Petition for suspension of sentence was allowed and
sentence passed again st him was suspended and he was directed to be
released on bail, in circumstances.
Side Appellant : MUHAMMAD RAMZAN alias ASIF ALI

SS.302 (b) & 324---Qatl-e-amd and attempt to commit qatl-e-amd--Appreciation of evidence---Promptly recorded F.I.R. had ruled out any chances
of false implication of accused and also established that complain ant had
seen the occurrence and he was not a chance witness bein g a resident of the
same street---Other eye-witness was the resident of the house of occurrence
and he had been in jured in the in cident by the accused---Medical evidence
had fully corroborated the ocular testimony---Complain ant and the in jured
eye-witnesses were not only brothers in ter se but also the brothers of the
accused and this relationship was not sufficient to discard their evidence,
particularly in the absence of any previous enmity between them---Case was
of sin gle accused and kith and kin of the deceased would not substitute the
real culprit with an in nocent person---"Toka" recovered from accused was
found to be stain ed with human blood---Accused had brutally murdered his
real mother, grandmother and brother's wife besides causin g serious in
juries to his real brother and a min or child aged 4/5 years and he deserved
nothin g less than death sentence---Appeal was dismissed in circumstances.
Side Appellant : RASHID AHMED alias SHADDI

S. 426(1-A)---Penal Code (XLV of 1860), SS.302 (b) & 337-F(ii)/34---Qatl-eamd---Suspension of sentence---Petition filed by accused for suspension of his
sentence prior to the amendment made in S.426, Cr.P.C. had been dismissed
by High Court---After amendment of S.426(1-A), Cr.P.C. accused had been
given an in dependent right to validly apply for suspension of his sentence
even after the dismissal of his previous application on merits---Accused was
behin d the bars for the last four years and four months---Appeal of accused
was not likely to be fixed in the near future for the reason that his co-accused
had been sentenced to death through the same judgment---Accused was not
responsible for the delay in decision of his Appeal in any manner
whatsoever---Case of accused did not fall within the proviso of subsection (1A) of S.426, Cr.P.C.---Sentence of accused was suspended in circumstances
without touchin g the merits of his case till the fin al disposal of his Appeal .

Side Appellant : HABIB ULLAH
Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation

of evidence---Sentence, reduction in ---Cause and time of death and even
death of the deceased havin g been admitted by both the sides, absence of
post mortem report was itself not sufficient to discard the whole prosecution
case---Complain ant, real brother of accused and other in jured eye-witness,
another real brother of accused, whose presence at the scene of occurrence
had not only been established but was even admitted by the accused, had
fully implicated the accused with specific role of firin g at the deceased and
also in jurin g the eye-witness seriously, who had received multiple fire arm in
juries---Fatal in jury caused with rifle was specifically assigned to accused--Ocular account comin g from in dependent natural witnesses was worth
reliance---Stance taken by accused to have been in volved just to grab his
property was not substantiated on record--- Whole family in cludin g the wife
and mother of accused could not be expected to in volve the accused and
leave the real culprit---Ocular testimony coupled with medical evidence and
motive had proved the prosecution case again st the accused---No previous
motive existed for the occurrence and there was no premeditation for the
same---Accused had fired only one shot at the deceased and did not repeat
the same---Occurrence had taken place at the spur of the moment---Appeal of
accused was consequently dismissed with the modification that sentence of
death awarded to accused under S.302 (b), P.P.C. was altered to
imprisonment for life, with the direction for both the sentences to run
concurrently.

Side Appellant : ALTAF AHMED
S. 426---Penal Code (XLV of 1860), Ss. 302(b), 324 & 337-F(v)---Qatl-e-amd,

attempt to commit qatl-e-amd, ghayr-jaifah-hashimah---Suspension of death
sentence durin g pendency of Appeal ---Scope---Trial Court convictin g the
accused after confusin g him with a co accused---Effect---Accused was
convicted under SS.302 (b), 324 and 337-F(v), P.P.C., and sentenced to death
by the Trial Court---Contentions of the accused were that he was not alleged
any active role in the occurrence and was shown as an abettor to the main
culprits and that the Trial Court had confused the accused with a co-accused,
who was assigned a specific role in the main occurrence---Validity---From the
begin nin g the accused was assigned the role of an abettor/in stigator and
same role was assigned to him durin g the statements of the witnesses--Accused was convicted for causin g death of the deceased and for in jurin g
one of the witnesses, despite the fact that he was never alleged to have
caused the death of the said deceased or causin g in jury to the said in
jured---Where by mere readin g of evidence at a glance, court came to the
conclusion that evidence available on record was not sufficient to sustain the
conviction or illegality was floatin g on the surface, then while exercisin g
power under S.426, Cr.P.C. the death sentence passed again st a convict
durin g the pendency of an Appeal could be suspended---Sentence of the
accused was suspended, in circumstances, and he was released on bail.

Side Appellant : NOOR MUHAMMAD
Ss. 302(b)/34, 337-A(i)/34 & 337-L(2)/34---Qatl-e-amd, hurt---Appreciation of

evidence---Matter had been reported to the Police with sufficient promptitude
without any conscious or deliberate delay---Presence of eye-witnesses at the
spot had been established, as they had received in juries at the hands of
accused and were also medically examin ed---Occurrence havin g taken place
in daylight and the parties bein g known to each other, mistaken identity of
accused or substitution of real culprits, was out of question---Relationship
between eye-witnesses and deceased would not discard the ocular
testimony, which stood strongly corroborated by other supportive evidence,
facts and circumstances---Eye-witnesses had sufficiently explain ed the mode
and manner of occurrence, accusation made in the F.I.R., weapons used in the
in cident, roles assigned to each accused and the locale of in juries sustain ed
by them and the deceased---Ocular testimony was consistent, credible,
trustworthy and confidence-in spirin g---Defence plea had been taken by
accused to save their skin , which was false and unbelievable---Motive for the
occurrence stood proved---Medical evidence and recovery had sufficiently
supported the ocular account---Violation of S.103, Cr.P.C. in recovery
proceedin gs did not have any vital effect on the prosecution case, as no one
from public would voluntarily like to join the same---Prosecution, thus, had
proved its case---Complain ant had supported the in juries sustain ed by the
accused durin g the occurrence---Free fight without any premeditation had
emanated from a sudden flare up wherein both the sides had received in
juries---Conviction of prin cipal accused under S.302 (b), P.P.C. was, therefore,
main tain ed, but his sentence of death awarded thereunder was reduced to
imprisonment for life---Other accused were acquitted of the charge under
S.302 (b)/34, P.P.C. as they had not caused any in jury to the deceased and
had only caused simple in juries to eye-witnesses and their sentences were
reduced to the imprisonment already undergone by them---Order for
payment of compensation and Daman was upheld---Appeal was disposed of
accordin gly.
Side Appellant : QAMAR EJAZ

Ss. 302(b) & 337-F(iii)---Qatl-e-amd, causin g hurt---Appreciation of

evidence---Sentence, reduction in ---Mitigatin g circumstances---Shop of
complain ant bein g adjacent to the shop of deceased, presence of complain
ant at the time and place of occurrence was natural---Testimony of complain
ant was supported by medical evidence and the same could not be rejected
simply on the ground of his relationship with the deceased---Complain ant
bein g the real brother of the deceased, he could not possibly implicate the
accused falsely and let off the real culprit---Substitution in such cases was a
rare phenomenon---Defence evidence was not helpful to accused--Conviction of accused under S.302 (b), P.P.C. was consequently main tain
ed--- Alleged motive was not proved by any cogent evidence--- Prosecution
evidence had already been disbelieved by Trial Court qua the acquitted coaccused--- Immediate cause of occurrence resultin g in the death of deceased
was not determin able---Non-proof of specific motive by the prosecution
might be considered a mitigatin g circumstance in favour of accused---Death
sentence of accused was reduced to imprisonment for life in circumstances--Charge under S.337-F(iii), P.P.C. havin g not been proved again st the
accused, he was acquitted of the said charge---Appeal was disposed of
accordin gly.
Side Appellant : ABDUL RASHID

Ss. 302/324/186/353/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Qatle-amd, attempt to commit qatl-e-amd, obstructin g public servant in
dischargin g of public functions, assault or crimin al force to deter public
servant from dischargin g of his duty, riotin g, common object and act of
terrorism---Appreciation of evidence---Prosecution case main ly hin ged upon
the evidence of Police Officers who were the members of the raidin g party;
they all were unanimous and had corroborated each other's statements; they
had no previous animosity or enmity with accused and they also corroborated
each other on the accused bein g apprehended at the spot while holdin g .12
bore gun, which had one stuck up cartridge---Omission to mention the
deposit of empties in the Roznamcha could be an irregularity, but would not
affect the veracity of those witnesses---All said prosecution witnesses had
narrated the events in natural and straightforward manner, except for min or
differences, which were result of the passage of time---No material
contradiction or discrepancy existed in their statements; their confidence-in
spirin g and trustworthy evidence had proved that accused made fires with .
12 bore gun, which landed on the chest of the deceased and accused was
apprehended at the spot along with the gun, which also contain ed a stuck up
cartridge---Five co-accused who faced the trial along with accused were
acquitted by the Trial Court, but none of them was armed with gun .12 bore
and three of them were not arrested at the spot---Evidence available on
record proved the guilt of accused, which was not sufficient to convict coaccused sin ce acquitted---Trustworthy evidence had established that accused
had caused qatl-e-amd of Police Officer when he was performin g his official
duties in order to arrest person in volved in offence punishable under S.365A, P.P.C.---Accused was rightly convicted and sentenced in offence punishable
under S.7(a) of Anti-Terrorism Act, 1997---Charge was rightly framed under
said provision of the Act which was a special law---No separate charge under
S.302 , P.P.C. was required to be framed in view of exhaustive provisions of
the Act---Impugned judgment did not suffer from any in firmity---Contention
that accused was 70 years old and a heart patient, so he could not have
committed offence, was without force, because triggerin g of the gun did not
require much force and same did not constitute a valid mitigatin g ground--Appeal was dismissed, in circumstances.
Side Appellant : State

Side Opponent : MUHAMMAD IQBAL
S. 417---Penal Code (XLV of 1860), SS.302 /364/337-A/148/149---Qatl-e-amd,

abduction---Appeal again st acquittal---Prin ciples and guidelin es.
Side Appellant : MUHAMMAD ALI

Side Opponent : MUHAMMAD SHAHID
SS.302 & 316---Crimin al Procedure Code (V of 1898), S.417(2-A)---Qatl-e-
amd, Qatl-e-Shibh-e-amd--- Appeal again st acquittal---Appreciation of

evidence---No in dependent evidence was available to substantiate the
prosecution plea that a day earlier to the occurrence, accused had any
quarrel with the deceased; or threatened him that he would not allow him to
pass through the 'Kacha path' in question---Prosecution, in circumstances,
had failed to establish alleged element of premeditation---Accused was not
armed with any lethal weapon at the time of occurrence---If the accused had
an in tention to kill, he could have used some other blunt or sharp-edge
weapon to execute such in tention---Qatl-e-Shibh-e-amd, would take place
when victim died with an in strument which was neither a weapon nor could
be used as weapon---Nature of in strument used in the occurrence, was also
an important factor to determin e the in tention of accused---Small brick-bat
was used by the accused in stead of some big stone which reflected that in
tention of accused was to cause harm to the body of the victim, but not his
death---No repetition of in jury was attributed to the accused---Ocular
account, medical evidence and recovery of the offence in strument i.e. brickbat, failed to substantiate the prosecution plea that the alleged occurrence
constituted an offence of qatl-e-amd in terms of S.300, P.P.C.---Material
available on the record produced by the prosecution, had led to the
conclusion that alleged occurrence constituted an offence of Qatl-e-Shibh-eamd in terms of S.315, P.P.C.---Prosecution havin g not been able to prove the
charge under S.302 , P.P.C., Trial Court had rightly acquitted accused in the
said offence and convicted him under S.316, P.P.C.
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Side Appellant : SHAHBAZ ALI

Ss. 302(b) & 302(c)---Qatl-e-amd---Appreciation of evidence---Ocular

testimony did not in spire confidence---Eye-witnesses had not given any
plausible explanation for their presence at the spot at the relevant time---in
action of eye-witnesses to save the lives of their closely related deceased
persons at the time of occurrence had belied their statements--Prosecution
case was full of improbabilities and uncertain ties, which could not equate
with the straightforward and truthful connectin g evidence---Complain ant
and other eye-witnesses had departed from their earlier statements durin g in
vestigation in troducin g altogether new details and discrepant facts, which
were detrimental to the prosecution version---Havin g disbelieved the
prosecution version, defence plea taken by accused would be believed in toto
without scrutin y---Accused had admitted to have committed the occurrence
alone under grave and sudden provocation on havin g seen his real sister and
her paramour in naked objectionable condition--Defence version appeared to
be more plausible than the prosecution version---Conviction of accused under
S.302 (b), P.P.C. was consequently altered to one under S.302 (c), P.P.C. and
he was sentenced to 14 years' R. I. on two counts thereunder in
circumstances---Both the deceased bein g not "Masoom ud Dam", their legal
heirs were not entitled to any compensation under S. 544-A, Cr.P.C.---Appeal
was disposed of accordin gly.
Side Appellant : MUHAMMAD SADIQ

Ss. 302(b) & 377---Qatl-e-amd, committin g sodomy---Appreciation of

evidence---Benefit of doubt---No delay in reportin g the matter to the Police--Version of the complain ant regardin g occurrence was supported by the
statement of a witness which was corroborated by witness of last seen---No
evidence was available for false implication of accused in the case---Evidence
of related witnesses could not be discarded merely on the ground of in ter se
relationship or relationship with the deceased, unless they had some enmity
for false implication of accused, which lacked in the case---Report of the
Chemical Examin er, with regard to offence under S.377, P.P.C., bein g in
positive, prosecution had fully proved its case to the extent of S.377, P.P.C.,
again st the accused---Sentence and conviction of accused under section 377,
P.P.C. was main tain ed, in circumstances---Doctor had opin ed that the cause
of death was not the sodomy, but was asphyxia, throttlin g or gaggin g due to
mud---No evidence was available on record that accused pressed the throat
of the deceased or caused death of the deceased with anythin g else--Charge of murder, in circumstances, had not been proved by the
prosecution---Benefit of doubt was extended to accused and he was acquitted
of said charge---Appeal of accused was dismissed to the extent of conviction
and sentence under S.377, P.P.C., whereas same was allowed to the extent of
S.302 , P.P.C.---Sin ce accused had been acquitted from the charge under
S.302 , P.P.C., there was no substance in crimin al revision filed by the
complain ant for enhancement of sentence of accused---Order accordin gly.
Side Appellant : ABDUL GHAFFAR alias KALO

S. 426(1A)(c)---Penal Code (XLV of 1860), S.302 (b)---Qatl-e-amd---Suspension

of sentence---Application for---Accused, pendin g Appeal , had sought
suspension of sentence passed again st him by the Trial Court on the ground
that his Appeal was pendin g for the last three years and there was no
probability of its earlier disposal---Complain ant side had not been able to
substantiate its contention with any speck of material that accused was a
desperate or hardened crimin al---Right of accused for suspension of
sentence on statutory ground of delay in disposal of Appeal , could not be
denied, except on the grounds mentioned in 1st proviso of S.426(1A)(c),
Cr.P.C.---Accused, in circumstances, was entitled to the concession of
suspension of his sentence on the statutory ground of delay in disposal of
Appeal for more than two years in terms of S.426(1A)(c), Cr.P.C.---Accused
was released on bail, in circumstances.


---Daylight occurrence and parties were well known to each other---Accused
was nomin ated in the promptly lodged F.I.R. with specific attribution of the
fatal firearm in juries to the deceased, which were verified in postmortem
report and furnished full corroboration to the ocular account---Complain
ant/eye-witness, a real brother of the deceased was a natural witness, who
had furnished reasonable and probable cause of his presence at the time and
place of occurrence---Other eye-witness was nephew of the deceased and the
complain ant and relative of accused---Said witness though was resident of
other village, situated at some distance from the place of occurrence, but he
had furnished a reasonable and probable cause of his presence at the time
and place of occurrence---Details of the occurrence, as alleged by the
complain ant, were fully corroborated by prosecution witness; his testimony
in that regard was in lin e with the prosecution version---Ocular account
produced by the prosecution bearin g in herent worth and in trin sic value,
could safely be relied upon---Despite lengthy searchin g cross-examin ation
upon the prosecution witnesses, nothin g material elicited in favour of the
defence---Crime empties recovered from the spot had been matched with the
offence weapon, recovered from accused vide report of the Forensic Science
Laboratory---Ocular account was fully corroborated by medical evidence and
the recoveries made were sufficient reliable in crimin atin g material to
connect accused with murder of deceased beyond any shadow of doubt--Motive of the occurrence, had been reflected in the F.I.R. through the mouth
of accused himself, wherein accused had killed the deceased on account of
Ghairat and family honour i.e. as accused had suspicion or belief that
deceased had developed illicit relations with his wife---Prosecution, in
circumstances, had brought the guilt home to accused with regard to murder
of deceased---Conviction of accused under S.302 (b), P.P.C. was main tain ed,
but the sentence of death awarded to accused was modified in to the
sentence of imprisonment for life---Accused was also given benefit of S.382-B,
Cr.P.C.---With the said modifications in the sentence Appeal was dismissed, in
circumstances.

S.302 (b)---Crimin al Procedure Code (V of 1898), S. 417(2-A)---Appeal again

st acquittal---Benefit of doubt---Record showed that co-accused had been
found in nocent in the police in vestigation and was challaned in Column No.2
of the report under S.173, Cr.P.C.---Complain ant side had never questioned
the fin din gs of the police in vestigation before any higher authority---No
overt act or in jury to the deceased was attributed to said co-accused; his
implication in the case appeared to be result of throwin g a wider net to in
volve him in the case---Prin ciple of 'falsus in uno falsus in omni bus' was alien
to the crimin al jurisprudence bein g followed in Pakistan---Testimonies of the
complain ant/eye-witnesses, with regard to implication of co-accused were
exceptionable under the prin ciple of separation of "grain from the chaff"--Trial Court had rightly appraised the ocular account of the prosecution, while
grantin g acquittal to accused, givin g benefit of doubt---Fin din gs of the Trial
Court in that regard, did not call for any in terference.

Side Appellant : SHAMS-UL-HAQ
S. 426---Penal Code (XLV of 1860), S.302 /34---Qatl-a-amd, common in tention---Application for suspension of sentence, dismissal of---Welfare of sucklin
g baby---Appeal in the case was ready for hearin g---Effect---Deceased died of
burns after. she was engulfed in fire while workin g in her kitchen---Deceased
implicated accused (mother of sucklin g baby) and co-accused persons for
the commission of the offence---Trial Court convicted and sentenced accused
under SS.302 & 34, P.P.C-Contentions of accused were that she was married
woman with three children and one of her child was a sucklin g baby, who
was about two years old; that facilities in side prison were not adequate for
brin gin g up a sucklin g baby and 'welfare of the child demanded that
accused be kept in a better environment; that in cident was unseen and
allegations were general in nature; that there was a delay of three months in
lodgin g F.LR., and that statements of witnesses were recorded after a delay
of about three months---Validity---Paper-book was ready and case was ready
to be argued, therefore, there was no reason to cause any unnecessary
delay---Court was conscious of the fact that accused had to take care of her
three min or children in cludin g a sucklin g baby and her ordeal was
supported by opin ion of the court that everythin g was ready, so much so
that paper-book was in hand, hence matter might be fixed for regular hearin
g and fin ally argued out---Application for suspension of sentence was
Side Appellant : TANVEER alias RABAIL
S.302 (b) & 201---Qatl-e-amd, causin g disappearance of evidence of offence

or givin g false in formation to screen offender---Appreciation of evidence---All
the pieces of evidence should be so lin ked that it should give picture of
complete chain , one corner of which should touch the neck of the deceased;
and other corner of the neck of the accused---Failure of one lin k would
destroy the entire chain ---Prosecution was obliged to prove the case again st
accused beyond any shadow of doubt, even if accused failed to furnish
explanation for disappearance of deceased who had been seen along with
accused before his death---Evidence was one of the recognized modes, havin
g origin from Islam, for fin din g out the guilt or in nocence of an accused--Such evidence, if would Appeal to logic and reason, then the same would be a
sufficient piece of evidence to connect accused with commission of offence
and capital punishment could be awarded on its basis--Grain should be sifted
from the chaff so as to arrive at the truth of the occurrence---Evidence to be
appraised in entirety to sift grain from the chaff---Benefit of all favourable in
stances in the prosecution evidence must go to accused regardless of
whether he had taken any such plea or not.

Side Appellant : ALLAH DIWAYO
S.417(2-A)---Penal Code (XLV of 1860), SS.302 , 143, 506/2 & 34---Qatl-eamd, crimin al in timidation, common in tention---Appeal again st acquittal--Scope---Witnesses who adduced the ocular testimony, bein g related to the
complain ant, possibility of their bein g in terested could not be ruled out--Ocular testimony was not in spirin g-confidence---When accused was
acquitted from the charge by a court of competent jurisdiction, then double
presumption of in nocence was attached to its order with which a superior
court would not in terfere, unless impugned order was arbitrary, capricious
and fanciful---Law relatin g to appraisal of evidence in Appeal again st
acquittal was strin gent and presumption of in nocence was double and
multiplied after a fin din g of not guilty recorded by competent court of law--Such fin din g could be reversed, upset and disturbed except when the
judgment was found to be perverse, shockin g, alarmin g, artificial and
sufferin g from error of jurisdiction or misreadin g and non-readin g of
evidence---Law required that the judgment of an acquittal would not be
disturbed, even though second opin ion could be reasonably possible---Ocular
evidence in the case, alone was not sufficient to connect accused---Ocular
testimony regardin g the alleged in juries caused by accused persons, were
neither corroborated nor in conformity with the medical evidence adduced by
the doctor---Prosecution had failed to brin g home the guilt again st accused
persons beyond any shadow of doubt---Accused, in circumstances, were
rightly acquitted by the Trial Court; and the acquittal order was based on
sound and cogent reasonin g, which did not require any in terference by High
Court---While examin in g defect in the order of acquittal, substantial weight
should be given to the fin din g of the lower court, whereby accused were
exonerated from the commission of crime---Prosecution, in the present case,
could not substantiate the accusation reasonably connectin g accused
persons with the crime in question---Hardly any impropriety, illegality or in
firmity in the impugned judgment were found, which could warrant in
terference--- Appeal again st acquittal was dismissed, in circumstances.
Side Appellant : TARIQ SHAH

S. 426(1-A)(c) [as in serted by Code of Crimin al Procedure (Amendment) Act

(VIII of 2011)]---Penal Code (XLV of 1860), S.302 /34---Qatl-e-amd--Application for enlargement on bail durin g pendency of Appeal
---Applicant/accused who was convicted and sentenced to suffer
imprisonment for life under S.302 , P. P. C, had served 32 months after his
conviction and apart from the said period of 32 months after his conviction,
he remain ed in custody ever sin ce 15-2-2003---Appeal again st conviction
order passed by the Trial Court on 12-8-2008, was admitted to regular hearin
g on 3-9-2008, whereafter case was taken up on 3-7-2009 on which date
counsel for appellant and State Counsel were in attendance, but matter could
not proceed---On various future dates, matter was adjourned by the court for
want of time---Delay in disposal of Appeal , in circumstances, could not be
attributed to accused---Sin ce accused was not previously convict offender for
an offence punishable with death or imprisonment for life, or .a hardened,
desperate or dangerous crimin al, or was accused of an act of terrorism
punishable with death, or imprisonment for life, his case squarely fell within
the provisions of amended S.426(1-A)(c), Cr.P.C.---Accused appeared to be
entitled for relief as provided under the relevant law---Impugned order passed
,by the Trial Court, was suspended and accused was ordered to be released
on bail---Counsel for accused had submitted that he had no objection. to the
early hearin g of Appeal , but as accused was proceedin g abroad in
connection with medical treatment of his wife and he would not be here in
the next month---Office was directed to fix Appeal immediately after Summer
Vacations of 2011 at serial No.1 in regular hearin g cases accordin g to
roaster.

Side Opponent : GULSHER
S. 417---Penal Code (XLV of 1860), S.302 ---Qatl-e-amd---Appeal again st

acquittal---Appreciation of evidence---Prin ciples---Not safe to record
conviction when no ocular evidence is available connectin g the accused with
the commission of the offence, particularly when any lin k in the chain of
circumstantial evidence is missin g---Order of acquittal raises a strong double
presumption of in nocence in favour of accused and, therefore, very strong
and exceptional grounds are required to set aside the same---Standards to
appraise the evidence in Appeal again st acquittal are quite different from
those laid down for an Appeal again st conviction---Credence should be
accorded to the fin din gs of the subordin ate courts while examin in g the
order of acquittal, where the accused had been exonerated from the charge
of commission of crime.
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SUPREME-COURT
Side Appellant : IRSHAD AHMED

S.302 (b)---Crimin al Procedure Code (V of 1898), S.174---Qatl-e-amd---Reappraisal of evidence---in quest report---Related and chance witness---Benefit
of doubt---Ocular account and medical evidence---Trial Court as well as High
Court convicted the accused under S.302 (b), P.P.C. and sentenced him to
death---Both eye-witnesses were not only related to deceased but they were
also chance witnesses---Complain ant was father of deceased whereas other
eye-witness was brother of complain ant and paternal uncle of deceased--Occurrence had taken place far away from the houses of eye-witnesses and
they had statedly seen the occurrence when they were in search of
deceased---in vestigatin g Officer stated before Trial Court that upon his first
visit to the spot, he had found dead body of deceased at place of occurrence
and after preparin g in quest report dead body was sent by him to mortuary
for its post-mortem examin ation---in vestigatin g Officer stated nothin g
about seein g any hatchet stuck in the head of dead body and even in in
quest report, the in vestigatin g Officer had said nothin g about fin din g any
hatchet stuck in the head of dead body---Doctor who performed post mortem
report stated before Trial Court that at the time of conductin g post-mortem
examin ation, he had taken a hatchet out of the head of dead body wherein it
was found stuck at that time---One police officer had subsequently produced
that taken-out hatchet before in vestigatin g Officer after post-mortem
examin ation of dead body---Prosecution had failed to prove its case again st
accused beyond reasonable doubt---Supreme Court set aside the conviction
and sentence awarded to accused by the Courts below and he was acquitted
of the charge by extendin g benefit of doubt to him---Appeal was allowed.
SUPREME-COURT
Side Appellant : MUHAMMAD NAWAZ

Side Opponent : SAEED AHMED
SS.302 (b) & 34---Qatl-e-amd---Reappraisal of evidence---Recovery and

motive---Proof---Accused were convicted under S. 302(b) P.P.C. and were
sentenced to imprisonment for life but High Court acquitted them---Validity--Accused were arrested on 12-2-2006 from Chakki of one accused but neither
any memo of arrest was produced on record nor it was prepared and there
was no person who acted as witness of arrest---After about four days of arrest
of accused, crime weapon was recovered in presence of close relatives of
complain ant out of then one was examin ed to testify as witness to every
piece of evidence---High Court had rightly disbelieved the evidence of such
prosecution witness---Allegation was made that deceased was bein g
suspected to have developed illicit relations at the house of accused without
disclosin g in the evidence the name or relationship of any person muchless a
female relative of accused, bein g vague was not believable---Supreme Court
declin ed to in terfere in acquittal of accused by High Court---Appeal was
dismissed.
SUPREME-COURT
Side Appellant : ZULFIQAR AHMAD

S.302 (b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Leave to

Appeal was granted by Supreme Court to consider; whether prosecution
succeeded in establishin g guilt of murder of deceased again st accused in
view of the fact that on the same set of evidence three persons had been
SUPREME-COURT

S.302 (b)---Qatl-e-amd---Reappraisal of evidence---Natural witnesses--Corroboration, rule of---Prin ciple---Both the accused were convicted by Trial
Court under S. 302(b) of P.P.C. and were sentenced to death---Conviction and
sentence awarded by Trial Court was main tain ed by High Court---Validity--Widow and father of deceased were in mates of house and thus could be
termed as natural witnesses and their statements had rightly been relied
upon by Trial Court and High Court---Medical evidence was in consonance
with ocular account and could be considered as a corroboratory factor which
was rightly taken in to consideration by Trial Court and High Court---Supreme
Court declin ed to consider the plea of non-corroboration of assailants with

commission of alleged offence as corroboration was not a prin ciple of law but
a rule of prudence---No evidence had come on record showin g prior concert
of min d or common in tention and thus a lenient view could be taken but it
must not be lost sight of that one accused had accompanied the other
accused and played a vital role by extendin g full facilitation and
connivance---Supreme Court, in view of acquittal of three co-accused,
converted death sentence awarded to accused to that of life imprisonment--Appeal was dismissed.
SUPREME-COURT
Side Appellant : MUHAMMAD ILYAS

SS.302 /324/397/458---Qatl-e-amd and robbery---Leave to Appeal was

granted by Supreme Court to reappraise evidence on record in accordance
with prin ciples laid down by Supreme Court for safe admin istration of crimin
al justice and to consider submissions, in consistencies and contradictions in
prosecution evidence.
SUPREME-COURT
Side Appellant : ASMATULLAH

S. 497(5)---Penal Code (XLV of 1860), S.302 ---Constitution of Pakistan,

Art.185(3)---Qatl-e-Amd---Bail, cancellation of---Case of further in quiry---No
weapon was recovered from possession of accused durin g in vestigation and
post-mortem examin ation report in respect of deceased showed that
deceased had received only one fire shot---Solitary fire shot was attributed by
prosecution to three accused persons and High Court released the accused
on bail---Validity---Was not clear at bail stage as to whether any in jury had
been caused by accused to deceased or not---F.I.R. itself referred to pendin g
litigation between parties and, therefore, possibility of spreadin g net wide by
complain ant party so as to falsely entangle accused was a possibility which
could not safely be ruled out of consideration at bail stage---in respect of
same occurrence local police had also registered another F.I.R. and police
officer gettin g in jured in the same in cident did not in crimin ate accused in
his deposition made before Trial Court in connection with that case---Case
again st accused surely called for further in quiry in to his guilt---Supreme
Court declin ed to in terfere with exercise of jurisdiction and discretion in the
matter by High Court---Considerations for grant of bail and those for its
cancellation were entirely different---No allegation was levelled again st
accused regardin g misuse or abuse of concession of bail granted to him by
High Court---Supreme Court refused to cancel the bail---Leave to Appeal was
refused.
SUPREME-COURT
Side Appellant : ALI MUHAMMAD

S. 302(b)---Crimin al Procedure Code (V of 1898), S.345---Qatl-e-amd--Compoundin g of offence---Diyat---Payment to min or---Accused was

convicted under S.302 (b), P.P.C. and sentenced to imprisonment for life as
Tazir---Accused entered in to compromise with legal heirs of deceased and
share of Diyat of min or son of deceased had already been paid by accused in
shape of Defence Savin gs Certificates---Origin al Certificates were attached
with the report of Sessions Judge, who had felt satisfied that compromise
between parties was voluntarily, genuin e and complete and in terests of min
or heir of deceased had been secured and safeguarded---Supreme Court on
the basis of report of Sessions Judge, accepted the compromise between
parties and acquitted the accused on the basis of compromise---Appeal was
allowed.

Side Appellant : MUHAMMAD KHALID
SUPREME-COURT
Ss. 302/34 &109---Constitution of Pakistan, Art. 185(2)---Reduction of

sentence sought on the plea of self-defence---Accused was allegedly armed
with .12 bore pistol---Medical evidence showed that only pellet in juries were
found on the body of the deceased---High Court and the Trial Court had
believed the ocular version of prosecution witnesses and the complain ant as
confidence-in spirin g---Occurrence had taken place in the broad-daylight--Plea of self-defence seekin g reduction in sentence taken by the accused was
neither proved by him nor any evidence or circumstances supported said
plea---Prosecution had succeeded in provin g its case again st the accused to
the hilt---No extenuatin g circumstances were shown to exist for reduction of
death sentence of the accused---Sentence of fin e to the accused bein g not
permissible under S.302 , P.P.C. was set aside---No legal or factual in firmity
havin g been found in the impugned judgment of High Court, petitions for
leave to Appeal were dismissed except to the extent of sentence of fin e to
the accused.
SUPREME-COURT
Side Appellant : NAZAR MUHAMMAD

S. 302---Constitution of Pakistan, Art. 185(2)(a)---Acquittal Appeal decided by
High Court in absentia---Validity---Trial Court had convicted the accused under

S. 304, Part-II, P.P. C. and sentenced him to three years' R.I. with fin e on two
counts for the murder of the deceased and her min or son directin g the
sentences to run concurrently---Appeal filed by the State again st acquittal of
accused under S. 302, P.P. C. was accepted by High Court vide impugned
judgment, sentencin g the accused to imprisonment for life under S.302 , P.P.
C. on two counts makin g the sentences to run concurrently---High Court had
heard and decided the Appeal in absence of accused without makin g any
observation of havin g taken any step regardin g the arrest of the accused
before the conclusion of the Appeal ---Impugned judgment had been
delivered by High Court one day before the arrest of accused in pursuance of
non-bailable warrants---No one had appeared on behalf of accused before
High Court, who was condemned unheard---Said judgment, therefore, was
coram non judice and the same havin g been passed in absentia, the delay of
447 days in filin g the present direct Appeal was condoned---Arguments on
behalf of both the parties on merits and demerits of the case in cludin g the
main tain ability of acquittal Appeal on behalf of the State, could be advanced
before the appellate court---Impugned judgment was, consequently, set aside
and the case was remanded to the appellate court to decide the acquittal
Appeal on merits by providin g an opportunity of hearin g to the accused.
SUPREME-COURT
Side Appellant : ZIA alias AHMI

SS.302 & 338-E---Crimin al Procedure Code (V of 1898), S.345(2)---
Constitution of Pakistan, Art 185(3)---Parties had entered in to compromise,

the genuin eness whereof had been ascertain ed by the Trial Court--Deceased had a min or daughter and min or son and Defence Savin g
Certificates in favour of both of them worth Rs. 3,90,000 were purchased---in
charge National Savin gs Centre concerned was directed not to encash the
said Defence Savin g Certificates, unless the min ors, after attain in g
majority, produced a certificate from the Court of Guardian Judge
concerned---Compromise bein g genuin e, was accepted under S.345(2),
Cr.P.C., read with S.338-E, P.P.C.---Compromise and petition after conversion in
to Appeal , were accepted---Impugned judgment of High Court was set aside
and accused was acquitted of the charge and was directed to be released.
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Side Appellant : IRSHAD AHMED
SUPREME-COURT
S.302 (b)---Crimin al Procedure Code (V of 1898), S.174---Qatl-e-amd---Reappraisal of evidence---in quest report---Related and chance witness---Benefit
of doubt---Ocular account and medical evidence---Trial Court as well as High
Court convicted the accused under S.302 (b), P.P.C. and sentenced him to
death---Both eye-witnesses were not only related to deceased but they were
also chance witnesses---Complain ant was father of deceased whereas other
eye-witness was brother of complain ant and paternal uncle of deceased--Occurrence had taken place far away from the houses of eye-witnesses and
they had statedly seen the occurrence when they were in search of
deceased---in vestigatin g Officer stated before Trial Court that upon his first
visit to the spot, he had found dead body of deceased at place of occurrence
and after preparin g in quest report dead body was sent by him to mortuary
for its post-mortem examin ation---in vestigatin g Officer stated nothin g
about seein g any hatchet stuck in the head of dead body and even in in
quest report, the in vestigatin g Officer had said nothin g about fin din g any
hatchet stuck in the head of dead body---Doctor who performed post mortem
report stated before Trial Court that at the time of conductin g post-mortem
examin ation, he had taken a hatchet out of the head of dead body wherein it
was found stuck at that time---One police officer had subsequently produced
that taken-out hatchet before in vestigatin g Officer after post-mortem
examin ation of dead body---Prosecution had failed to prove its case again st
accused beyond reasonable doubt---Supreme Court set aside the conviction
and sentence awarded to accused by the Courts below and he was acquitted
of the charge by extendin g benefit of doubt to him---Appeal was allowed.

Side Opponent : SAEED AHMED
SUPREME-COURT
SS.302 (b) & 34---Qatl-e-amd---Reappraisal of evidence---Recovery and

motive---Proof---Accused were convicted under S. 302(b) P.P.C. and were
sentenced to imprisonment for life but High Court acquitted them---Validity--Accused were arrested on 12-2-2006 from Chakki of one accused but neither
any memo of arrest was produced on record nor it was prepared and there
was no person who acted as witness of arrest---After about four days of arrest
of accused, crime weapon was recovered in presence of close relatives of
complain ant out of then one was examin ed to testify as witness to every
piece of evidence---High Court had rightly disbelieved the evidence of such
prosecution witness---Allegation was made that deceased was bein g
suspected to have developed illicit relations at the house of accused without
disclosin g in the evidence the name or relationship of any person muchless a
female relative of accused, bein g vague was not believable---Supreme Court
declin ed to in terfere in acquittal of accused by High Court---Appeal was
dismissed.
SUPREME-COURT

S.302 (b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Leave to

Appeal was granted by Supreme Court to consider; whether prosecution
succeeded in establishin g guilt of murder of deceased again st accused in
view of the fact that on the same set of evidence three persons had been
SUPREME-COURT

S.302 (b)---Qatl-e-amd---Reappraisal of evidence---Natural witnesses--Corroboration, rule of---Prin ciple---Both the accused were convicted by Trial
Court under S. 302(b) of P.P.C. and were sentenced to death---Conviction and
sentence awarded by Trial Court was main tain ed by High Court---Validity--Widow and father of deceased were in mates of house and thus could be
termed as natural witnesses and their statements had rightly been relied
upon by Trial Court and High Court---Medical evidence was in consonance
with ocular account and could be considered as a corroboratory factor which
was rightly taken in to consideration by Trial Court and High Court---Supreme
Court declin ed to consider the plea of non-corroboration of assailants with
commission of alleged offence as corroboration was not a prin ciple of law but
a rule of prudence---No evidence had come on record showin g prior concert
of min d or common in tention and thus a lenient view could be taken but it
must not be lost sight of that one accused had accompanied the other
accused and played a vital role by extendin g full facilitation and
connivance---Supreme Court, in view of acquittal of three co-accused,
converted death sentence awarded to accused to that of life imprisonment--Appeal was dismissed.
SUPREME-COURT
Side Appellant : MUHAMMAD ILYAS

SS.302 /324/397/458---Qatl-e-amd and robbery---Leave to Appeal was

granted by Supreme Court to reappraise evidence on record in accordance
with prin ciples laid down by Supreme Court for safe admin istration of crimin
al justice and to consider submissions, in consistencies and contradictions in
prosecution evidence.

Side Appellant : ASMATULLAH
SUPREME-COURT
S. 497(5)---Penal Code (XLV of 1860), S.302 ---Constitution of Pakistan,

Art.185(3)---Qatl-e-Amd---Bail, cancellation of---Case of further in quiry---No
weapon was recovered from possession of accused durin g in vestigation and
post-mortem examin ation report in respect of deceased showed that
deceased had received only one fire shot---Solitary fire shot was attributed by
prosecution to three accused persons and High Court released the accused
on bail---Validity---Was not clear at bail stage as to whether any in jury had
been caused by accused to deceased or not---F.I.R. itself referred to pendin g
litigation between parties and, therefore, possibility of spreadin g net wide by
complain ant party so as to falsely entangle accused was a possibility which
could not safely be ruled out of consideration at bail stage---in respect of
same occurrence local police had also registered another F.I.R. and police
officer gettin g in jured in the same in cident did not in crimin ate accused in
his deposition made before Trial Court in connection with that case---Case
again st accused surely called for further in quiry in to his guilt---Supreme
Court declin ed to in terfere with exercise of jurisdiction and discretion in the
matter by High Court---Considerations for grant of bail and those for its
cancellation were entirely different---No allegation was levelled again st
accused regardin g misuse or abuse of concession of bail granted to him by
High Court---Supreme Court refused to cancel the bail---Leave to Appeal was
refused.

Side Appellant : ALI MUHAMMAD
SUPREME-COURT
S. 302(b)---Crimin al Procedure Code (V of 1898), S.345---Qatl-e-amd--Compoundin g of offence---Diyat---Payment to min or---Accused was

convicted under S.302 (b), P.P.C. and sentenced to imprisonment for life as
Tazir---Accused entered in to compromise with legal heirs of deceased and
share of Diyat of min or son of deceased had already been paid by accused in
shape of Defence Savin gs Certificates---Origin al Certificates were attached
with the report of Sessions Judge, who had felt satisfied that compromise
between parties was voluntarily, genuin e and complete and in terests of min
or heir of deceased had been secured and safeguarded---Supreme Court on
the basis of report of Sessions Judge, accepted the compromise between
parties and acquitted the accused on the basis of compromise---Appeal was
allowed.
SUPREME-COURT
Side Appellant : MUHAMMAD KHALID

Ss. 302/34 &109---Constitution of Pakistan, Art. 185(2)---Reduction of

sentence sought on the plea of self-defence---Accused was allegedly armed
with .12 bore pistol---Medical evidence showed that only pellet in juries were
found on the body of the deceased---High Court and the Trial Court had
believed the ocular version of prosecution witnesses and the complain ant as
confidence-in spirin g---Occurrence had taken place in the broad-daylight--Plea of self-defence seekin g reduction in sentence taken by the accused was
neither proved by him nor any evidence or circumstances supported said
plea---Prosecution had succeeded in provin g its case again st the accused to

the hilt---No extenuatin g circumstances were shown to exist for reduction of
death sentence of the accused---Sentence of fin e to the accused bein g not
permissible under S.302 , P.P.C. was set aside---No legal or factual in firmity
havin g been found in the impugned judgment of High Court, petitions for
leave to Appeal were dismissed except to the extent of sentence of fin e to
the accused.
SUPREME-COURT
Side Appellant : NAZAR MUHAMMAD

S. 302---Constitution of Pakistan, Art. 185(2)(a)---Acquittal Appeal decided by

High Court in absentia---Validity---Trial Court had convicted the accused under
S. 304, Part-II, P.P. C. and sentenced him to three years' R.I. with fin e on two
counts for the murder of the deceased and her min or son directin g the
sentences to run concurrently---Appeal filed by the State again st acquittal of
accused under S. 302, P.P. C. was accepted by High Court vide impugned
judgment, sentencin g the accused to imprisonment for life under S.302 , P.P.
C. on two counts makin g the sentences to run concurrently---High Court had
heard and decided the Appeal in absence of accused without makin g any
observation of havin g taken any step regardin g the arrest of the accused
before the conclusion of the Appeal ---Impugned judgment had been
delivered by High Court one day before the arrest of accused in pursuance of
non-bailable warrants---No one had appeared on behalf of accused before
High Court, who was condemned unheard---Said judgment, therefore, was
coram non judice and the same havin g been passed in absentia, the delay of
447 days in filin g the present direct Appeal was condoned---Arguments on
behalf of both the parties on merits and demerits of the case in cludin g the
main tain ability of acquittal Appeal on behalf of the State, could be advanced
before the appellate court---Impugned judgment was, consequently, set aside
and the case was remanded to the appellate court to decide the acquittal
Appeal on merits by providin g an opportunity of hearin g to the accused.
SUPREME-COURT
Side Appellant : ZIA alias AHMI

SS.302 & 338-E---Crimin al Procedure Code (V of 1898), S.345(2)--Constitution of Pakistan, Art 185(3)---Parties had entered in to compromise,
the genuin eness whereof had been ascertain ed by the Trial Court--Deceased had a min or daughter and min or son and Defence Savin g
Certificates in favour of both of them worth Rs. 3,90,000 were purchased---in
charge National Savin gs Centre concerned was directed not to encash the
said Defence Savin g Certificates, unless the min ors, after attain in g
majority, produced a certificate from the Court of Guardian Judge
concerned---Compromise bein g genuin e, was accepted under S.345(2),
Cr.P.C., read with S.338-E, P.P.C.---Compromise and petition after conversion in
to Appeal , were accepted---Impugned judgment of High Court was set aside
and accused was acquitted of the charge and was directed to be released.
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SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : State

Side Opponent : MUHAMMAD ASLAM alias ACHOO
S.302 ---West Pakistan Arms Ordin ance (XX of 1965), S.13---Appreciation of

evidence---Benefit of doubt---Delay of eighteen hours in lodgin g the F.I.R. of
the occurrence appeared to have been consumed by the complain ant in
concoctin g a story to implicate the accused in the case on account of enmity
which prevailed between the parties---Part of the prosecution story about the
in jured buffalo and motive could not be proved durin g trial---No crime empty
of .222 bore gun had been recovered from the place of occurrence---Ocular
version regardin g manner of occurrence was consolidated by the medical
reports---Eye-witnesses and attesters of the recovery memos. were closely
related to the deceased and in imical towards the accused---No corroborative
material from some in dependent source in support of prosecution story was
brought on record-Ocular testimony and recovery evidence, thus, were not
worth consideration---District Qazi had failed to appreciate the aforesaid facts
while the Sessions Judge by applyin g his judicial min d had arrived at a
correct decision---Accused were extended benefit of doubt and acquitted in
circumstances---Reference and the Appeal were disposed of accordin gly.
SUPREME-COURT

Side Opponent : ZAHID IQBAL
S. 497(5)---Penal Code (XLV of 1860), SS.302 /148/149---Constitution of

Pakistan (1973), Art.185(3)---Bail, cancellation of---Prin ciples---Strong and
exceptional grounds were required for cancellation of bail---Supreme Court
ordin arily did not in terfere with the order of High Court relatin g to bail,
particularly in case of murder when the trial was to commence so as to avoid
discussion and remarks on the merits of the case---Court had to see as to
whether bail grantin g order was patently illegal, erroneous, factually in
correct and had resulted in miscarriage of justice---High Court had granted
bail to accused for valid and cogent reasons, which were not open to
legitimate exception---Charge had been framed in the case and trial was to
commence, as such cancellation of bail at this stage was not desirable--Leave to Appeal was declin ed accordin gly.
SUPREME-COURT
Side Appellant : SHAHID

S. 426---Penal Code (XLV of 1860), S.302 (b)---Constitution of Pakistan (1973),

Art.185(3)---Suspension of sentence---Trial Court after appraisin g the
prosecution evidence, found the petitioner guilty of the offence and convicted
him to life imprisonment---Appeal again st conviction was sub judice before
the High Court---Deeper appreciation of evidence at stage of petition for
leave to Appeal could not be undertaken by Supreme Court---Prima facie, the
case again st petitioner had been established and he had been convicted and
sentenced to life imprisonment which was heavier; it was not appropriate to
in terfere and suspend the sentence of the petitioner at present stage--Petition bein g devoid of any force was dismissed and leave to Appeal was
refused accordin gly.
SUPREME-COURT

S. 497---Penal Code (XLV of 1860), S.302 /34---Constitution of Pakistan (1973),

Art.185(3)---Bail, grant of---Complain ant had not mentioned the name of the
accused and co-accused in the F.I.R., but later on implicated them in the
commission of offence through his supplementary statement recorded before
the in vestigatin g Officer on the same day without disclosin g as to how he
had come to know the name of the accused---Complain ant had taken
altogether a U-turn from his previous stand and this fact had made the case
of accused one of further in quiry---Moreover, delay of 74 days in recordin g
the statements of the prosecution witnesses havin g not been explain ed, had
given rise to an in ference that the second version had been in troduced by
the prosecution after deliberation, which was likely to adversely affect the
prosecution case---Co-accused had already been granted bail by Supreme
Court as such on the prin ciple of consistency accused was also entitled to
concession of bail---Petition for leave to Appeal was converted in to Appeal
and was allowed in circumstances and ad in terim bail allowed to accused
was confirmed accordin gly.
SUPREME-COURT
Side Appellant : DOST MUHAMMAD

Side Opponent : ARSHAD JAVED, ADDITIONAL SESSION JUDGE
S. 526---Penal Code (XLV of 1860), SS.302 /324/148/149/109---Constitution of

Pakistan (1973), Art.l85(3)---Transfer of case---Grant of bail to one accused by
the Trial Court by itself was not a valid ground for seekin g transfer of case
from that Court---If the complain ant petitioner was dissatisfied with the said
order, he could challenge the same before the High Court---No ground for in
terference was made out with the impugned order---Leave to Appeal was
refused to the petitioner accordin gly.
SUPREME-COURT
Side Appellant : ALAM JAVED

Ss. 302(a) & 302(b)---Appreciation of evidence---Abode of eye-witnesses bein

g close to the place of occurrence, they were natural witnesses of the in
cident and they had fully supported the prosecution case---No material
contradiction could be poin ted out in the ocular testimony---Recovery of
pistol at the in stance of accused was proved---Nin e fire-arm in juries were
found on the vital parts of the body of the deceased durin g post-mortem
examin ation---Accused had admitted the existence of dispute about the
ownership of the agricultural land--Deceased was the first cousin of the
accused---Courts below had rightly believed the prosecution evidence in
cludin g the ocular account as same was confidence-in spirin g---Impugned
judgment confirmin g the death sentence of accused did not require any in
terference by Supreme Court---Conviction of accused under S.302 (a), P.P.C.
bein g illegal was, however, substituted with S.302 (b), P.P.C.---Appeal was
dismissed accordin gly.
SUPREME-COURT
Side Appellant : SHER MUHAMMAD

S. 497---Penal Code (XLV of 1860), S.302 /34---Constitution of Pakistan (1973),

Art.185(3)---Bail, refusal of---Accused and his co-accused, accordin g to
prosecution, were responsible for causin g the death of the complain ant's
brother---Accused had allegedly caused fire-arm in jury on the left eye of the
deceased which was corroborated by the post-mortem report---Prima facie,
grounds were available to believe that the accused was guilty of the offence
with which he was charged---Bail was refused to accused in circumstances
and leave to Appeal was declin ed to him accordin gly.
SUPREME-COURT
Side Appellant : ALI SHEHARYAR

S. 497---Penal Code (XLV of 1860), SS.302 /324/337-A(i)/337-H(ii)/337L(i)/148/149---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of--Case was of counter-version and the accused party had also sustain ed in
juries---Tentative assessment of the material on record had created some
doubt about the person responsible for the in juries caused to the deceased,
benefit of which was to be extended to the accused even at bail stage, as the
same had to be determin ed by the Trial Court on min ute appreciation of
entire evidence---Petition for leave to Appeal was converted in to Appeal and
allowed in circumstances and the accused was admitted to bail accordin gly.
SUPREME-COURT

S. 497---Penal Code (XLV of 1860), SS.302 /147/148/452/109/337-A(i), 337F(v) & 337-L(ii)---Constitution of Pakistan (1973), Art.185(3)---Power and
jurisdiction of High Court for cancellation of bail---Scope---Additional Sessions

Judge, no doubt, had the power to grant bail in appropriate case under. S.497,
Cr.P.C., yet that discretion could be scrutin ized by the High Court when
exercise of the discretion in grantin g bail had been made by the subordin ate
court on flimsy grounds and contrary to the settled prin ciples of law---Power
and jurisdiction of High Court in this behalf could not be circumscribed and
considered to be limited one---Particular role with specific attribution of the
act of in flictin g blow to the deceased by the petitioner was ascribed in F.I.R.,
due to which deceased had allegedly expired---F.I.R. was promptly lodged and
a corroborative and supportive evidence in the form of post mortem report
was also in existence---Discretion by Additional Sessions Judge in allowin g
bail to the accused, held, could not be considered to have been properly
exercised---Impugned order of the High Court cancellin g the bail of accused,
in circumstances, was not liable to be in terfered with by the Supreme
Court---Petition for leave to Appeal was dismissed.
SUPREME-COURT
Side Appellant : Haji Mian ABDUL RAFIQUE

Side Opponent : RIAZ-UD-DIN
S. 497(5)---Penal Code (XLV of 1860), S.302 ---Constitution of Pakistan (1973),

Art.185(3)---Cancellation of bail, refusal of---All the prosecution witnesses
except one or two had been examin ed in the case and this ground alone was
sufficient for not in terferin g with the impugned order of High Court grantin g
bail to accused at present stage, moreso when the cancellation of bail was
sought on merits of the case and the accused was not alleged to have
misused the concession of bail---Leave to Appeal was declin ed to complain

ant in circumstances.
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Side Appellant : MUKHTAR AHMAD

Ss. 302 (b) /149/302 (c) /149, 324, 337-F(i) & 148---Appreciation of
evidence---Sentence reduction in ---in juries sustain ed by the accused were
suppressed by the prosecution which had not truthfully stated all the relevant
facts---One day's delay in lodgin g the F.I.R. had provided the complain ant
party an opportunity of twistin g the facts---Fight appeared to have taken
place between the parties which developed emotions and passions and
everyone was responsible for his own act---Sections 148 and 149, P.P.C,
therefore, were not attracted in the case---Prosecution had exaggerated the
facts by assignin g the roles of "Jappha" and "Lalkara" to two accused and in
volved them falsely in the case, who were acquitted from the charge--Occurrence had taken place without any premeditation in a cricket
playground wherein blunt weapons like bat and wickets were used and sin ce
provocation was the main element of the fight, conviction of accused who
had been ascribed causin g in juries to the deceased was altered from S.302
(b), P.P.C. to S.302 (c), P.P.C. and his death sentence was reduced to ten
years' R.I in circumstances---in juries suffered by the prosecution witness
accordin g to the Doctor were "Ghayr Jaifah Damyah" which were covered
under section 337-F(i), P.P.C. and the sentence of the accused responsible for
causin g the said in juries was reduced from ten years' R.I. to one year's R.I.
with the payment of Daman--Appeal was disposed of accordin gly.
Side Appellant : ABAIDULLA H

Side Opponent : SHAUKAT ALI
S.302 /34---Crimin al Procedure Code (V of 1898), S.417 (2-A)---Appeal again

st acquittal---Trial Court had acquitted the accused after makin g an
exhaustive assessment and evaluation of the evidence available on record--No misreadin g or non-readin g of evidence by the Trial Court could be poin
ted out by defence counsel---Reasons advanced by Trial Court for acquittin g
the accused were neither arbitrary nor perverse and the conclusions arrived
at were such that any reasonable Court could have arrived at the same upon
a fair assessment of the evidence available on the record---No in terference
with the impugned judgment of acquittal was called for---Appeal was
dismissed summarily in circumstances.
Side Appellant : MUHAMMAD TANVIR

Side Opponent : MUHAMMAD ARIF
S.302 /34---Crimin al Procedure Code (V of 1898), S. 417 (2-A)---Appeal again

st acquittal---Occurrence had taken place durin g night time and accused
accordin g to F.1. R. -had remain ed unidentified---Complain ant had in
troduced the accused in the case through his supplementary statement--Eye-witness was related to the deceased and not a natural witness who had
made a belated statement before the police and also made many
improvements durin g his statement before the trial Court---Reason stated by
the said eye-witness for his presence at the scene of occurrence was found to
be utterly unacceptable by trial Court and he had failed to in spire
confidence---Wajtakkar evidence was most unnatural and unbelievable--Recovery of a gun from the custody of accused we,' legally in consequential
as the same did not match with the crime empty secured from the spot-Extrajudicial confession had been made by same co-accused and not by the
accused himself---Medical evidence had contradicted the time of occurrence
stated by the eye-witness---Trial Court had rightly acquitted the accused in
circumstances---Appeal was summarily dismissed accordin gly.
Side Appellant : TARIQ HAMEED

Ss. 302(b) & 302(c)---Appreciation of evidence---Motive for the murder as

alleged by the prosecution was disbelieved bein g untrustworthy-Blood-stain
ed "Chhuri" was allegedly recovered from beneath the bushes on a road
which was an open public place---Recovery therefore was not reliable,
especially when no in dependent witness from the locality had proved the
same---Prosecution witnesses had tried to improve their evidence at the
trial---Fact that three eye-witnesses, very closely related to the deceased,
could not apprehend the 19 years old accused at the time of occurrence, was
not believable---Full particulars of the accused appeared to have been
collected by the in vestigatin g Officer before the lodgin g of the F.I.R.---One
very close relative of the complain ant, who was an eye-witness, had been
dropped by prosecution as bein g won over, presumably due to the reason
that he had refused to support false case of prosecution---Occurrence, thus,
was not seen by the so-called eye-witnesses and the statements of accused
remain ed in the field for consideration, which was supported by his first
version given to the police and further by the publication of the version of
accused in two daily newspapers on the very next day of the occurrence to
the effect that he had committed the murder in an attempt to thwart and foil
the attempt of sodomy by the deceased---Concerned news reporters, no
doubt, were not produced by accused in his defence, but in the peculiar
circumstances the said news items could not be overlooked, clippin gs of
which had been exhibited on record on behalf of accused---Burden of proof of
defence plea was not as heavy on the accused as on the prosecution, as the
accused had only to show the probability of truthfulness of his version--Defence plea was not without substance and though accused did not opt to
appear as his own witness, but after discardin g the ocular evidence and the
motive story as set up by prosecution, there was no option but to believe the
defence version---Accused had the right to defend himself again st the
assault with the in tention of gratifyin g unnatural lust---Accused, however,
had exceeded his right of self-defence and caused 28 in juries to the
deceased---Conviction of accused under S.302 (b), P.P.C. was altered to S. 302
(c), P.P.C. and he was sentenced to 20 years' R.I. in circumstances---Deceased
havin g been found to be in dulgin g in immoral activities like sodomy,
compensation was not awarded to his legal heirs---Appeal was disposed of
accordin gly.

Ss.311 & 337-A(i)---Appreciation of evidence---F.I.R. revealed that accused,

who was son of the deceased, while armed with `Barcha' gave three in juries
on the person of deceased---One in jury was so forceful that it separated the
neck of deceased from his head and the brain came out of the said in jury--Accused had also caused in jury to prosecution witness---Star witness in the
case had received three in juries in the occurrence---Accused also had
received in juries on his person and same were explain ed in the F.I.R.--Accused had killed his father in a very brutal manner in a broad-daylight
occurrence---No Appeal again st the acquittal of accused under S.302 (b),
P.P.C. had been filed either by the State or by the, complain ant himself--Accused had never taken the plea of right of self-defence in his statement
recorded under S. 342 Cr.P.C. or durin g the cross-examin ation of the eyewitness account--Circumstances had fully established that it was accused
who had committed the murder of his father and caused in juries on the
person of in jured witness---No case, in circumstances was made out for in
terference---Appeal ' was dismissed.
Side Appellant : Mst. ASMAT BATOOL

S.302 /34---Appreciation of evidence-Compromise---Compromise was arrived

at between accused and the legal heirs of deceased durin g pendency' of
Appeal ---Said compromise, whereby the legal heirs of deceased had agreed
and stated that they had forgiven accused and had no objection if Appeal
filed by accused again st their conviction and sentence was allowed and
accused be acquitted of charge, was found genuin e---Said compromise was
allowed, Appeal was accepted and conviction and sentence awarded to
accused by the Trial Court, were set aside and accused were released.
Side Appellant : ZAHID alias KAKA

SS.302 (b) & 302(c)---Appreciation of evidence---Sentence, reduction in

---Occurrence had taken place in daylight---F.I.R. had been lodged with
sufficient promptitude wherein accused was nomin ated as assailant with his
role and all necessary details of the in cident were provided---Place of
occurrence bein g a snooker club the culprit could not have gone unnoticed or
unidentified at the spot---Eye-witnesses despite their close relationship with
the deceased, had absolutely no back ground of ill-will or animosity again st
the accused so as to in volve him falsely in the case---Ocular evidence was
consistent and reliable and was fully supported by medical evidence---Motive
for the occurrence had not been established by the prosecution---No evidence
was available on record to prove any background of hostility between the
accused and the deceased prior to the in cident---Accused was about fifteen
and a half years old at the time of occurrence and he had fired at the
deceased without any premeditation in the heat of passion durin g a sudden
flare up usin g a pistol supplied to him by his co-accused in order to get rid of
prolonged altercation and grapplin g with an adversary who was five years
older to him---Accused had not repeated the fire at the deceased---Conviction
of accused under S. 302(b), P.P.C. was altered to S.302 (c), P.P.C. in
circumstances and his sentence of imprisonment for life was reduced to ten
year's R.1. ---Appeal was disposed of accordin gly.
Side Appellant : SHAHID alias PARVEZ

S.302 (b)---Appreciation of evidence---Eye-witnesses had already been

believed and relied upon by the High Court while decidin g the Appeal of coaccused---Presence of said eye-witnesses at the relevant time stood
established from the record and their statements in spired confidence and
stood supported/ corroborated by the Medico-legal reports---Motive of the
occurrence also stood established from the record and same further
strengthened the prosecution case and lent a strong ,corroboration to ocular
account---Accused after the occurrence, became fugitive from law and was
declared proclaimed offender---Abscondence of accused for almost two years,
was another circumstance to support prosecution case---Appeal again st
impugned judgment of the Trial Court was dismissed, in circumstances--Sentence awarded to accused, by the Trial Court, however could not be
enhanced as accused had caused in jury on the non-vital part of deceased
and nothin g was on record to show that recovered gun was ever used in the
occurrence.

Side Appellant : SHAUKAT ALI
S.417---Penal Code (XLV of 1860), S.302 /34---Appeal again st acquittal--Presence of complain ant and other prosecution witnesses at the scene was
not supported by the evidence on record--Conduct of complain ant was
unnatural as had he been at the spot, he would have physically in tervened to
rescue his deceased father---Contradiction existed in the statements of
complain ant and other prosecution witness---Said prosecution witness was
resident of a village which was at a distance of 20 K.M. from place of
occurrence---Trial Court, in circumstances had rightly disbelieved statement of
said prosecution witness and cast doubt on his presence at the scene--Contradiction appeared between ocular account of allegedly in jured
prosecution witnesses and medical evidence and they had made
improvements in their versions in order to brin g their evidence in lin e with
the medical evidence---.Even if said prosecution witnesses were present at
the scene, they had not given the correct version of the in cident---Accused
also sustain ed in juries on their persons, but. said in juries were suppressed
by the prosecution witnesses---Facts of the case had revealed that accused
had exercised their right of self-defence, which had brought the case within
the parameters of S.100 of P.P.C.---Accused were not required to prove the
plea of self-defence beyond reasonable doubt and it was the duty of the court
to decide on the basis of the evidence on record the possibility of existence of
the right of self-defence---Trial Court had rightly concluded on the basis of
evidence that prosecution version was not plausible and the defence version
was more plausible which Appeal ed to the reason---Accused, in
circumstances, were rightly acquitted by the Trial Court---Appeal again st
acquittal was dismissed.
Side Appellant : SHAHZAD AHMAD

SS.302 (b), 147 & 148---Appreciation of evidence---Occurrence was the result

of a sudden flare up between members of the same family---Allegation again
st the acquitted ladies that they attacked with Churri, was not plausible and
acceptable---Trial Court havin g acquitted said ladies of the charge on the
basis of valid grounds, fin din gs of the Trial Court, were not open to
exception---Counsel for accused opted not to assail conviction of accused in
case the revision petition filed by the complain ant for enhancement of life
imprisonment awarded to accused was dismissed---Deceased was brother-in
-law of accused, bein g husband of his sister/acquitted accused---Deceased
and his wife quarrelled with each other resultin g in her desertion--Prosecution case was that wife of deceased/acquitted accused left the house
of deceased and took shelter in the house of her parents---Deceased followed
her and entered the house of his in -laws, where he suffered death at the
hands of his brother-in -law/accused and in view of the manner of in cident, it
could safely be said that the deceased had himself in vited the trouble and
contributed towards his own killin g to some extent---Had the deceased not
followed his wife up to the house of her parents, he would not have suffered
the death at the hands of his brother-in -law---Trial Court, in circumstances,
had rightly awarded the sentence of life imprisonment to accused and said
quantum of sentence determin ed vide the impugned judgment, was not
open to exception on factual or legal grounds---Application for enhancement
of sentence to accused and Appeal again st acquittal of co-accused ladies,
stood dismissed as bein g without substance and Appeal filed by accused
again st his conviction and sentence stood dismissed havin g not been
pressed.
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Side Appellant : JAVAID ALI

--SS.302 , 379, 447 & 149---Crimin al Procedure Code (V of 1898), S. 417--Appeal again st acquittal---Complain ant/ appellant in the case had filed
Appeal again st acquittal of 12 co-accused---Reasons given by the Trial Court
for acquittal, were based on evidence on record and were neither perverse
nor arbitrary and fanciful---No exception could be taken thereto---More than
six years had passed from passin g judgment of acquittal---Accused, after his
acquittal by a court of competent jurisdiction, enjoyed double presumption of
in nocence in his favour; and court of Appeal again st acquittal, was to be
very careful .in dislodgin g such presumption---No case again st acquittal
havin g been made out by appellant, Appeal in that respect was dismissed.
Side Appellant : GHULAM YASIN

---SS.302 (b) & 460---Appreciation of evidence---Benefit of doubt---Occurrence

had taken place durin g night---Accused were not named in F.I.R.---Complain
ant and, the deceased had no enmity with anybody as specifically mentioned
in F.I.R., and at that particular time nobody was suspected murderer of the
deceased---Daughter and widow of the deceased had subsequently
implicated the accused in the case---All the three eye-witnesses had made
dishonest improvements at the trial to harmonise their statements---Story put
forward by the daughter and widow of the deceased was not plausible and
did not Appeal to reason---Five hours delay in lodgin g the F.I.R. coupled with
the aforesaid in firmities in the prosecution case showed that F.I.R. was
recorded after prelimin ary in vestigations---Alleged identification of the
accused by the daughter and widow of deceased was highly dubious--Witness of "Wajtakkar" was not believable as neither he was mentioned in the
F.I.R., nor he had reasonably explain ed his presence at night time at the
relevant place; even his torch, the source of identification, was not taken in to
possession by the police---Motive for the occurrence was not proved by the
prosecution---Recovered rifle and the crime empty havin g been sent to
forensic Science Laboratory on one and the same date, positive report of the
said Laboratory could not be believed, as chance of fabrication of such
evidence could. not be ruled out---All fragments of prosecution evidence were
found to be tain ted---To err in acquittal was better than to err in conviction--Accused were given the benefit of doubt and acquitted accordin gly.
Side Appellant : GHULAM QASIM

---S.302 /34---Appreciation of evidence-Medical evidence in conflict with

ocular account--- Supplementary statement---Delayed dispatch of crime
empty to Forensic Science Laboratory---Effect---Allegation again st accused/
appellant was that he bein g servant of deceased committed her murder in
the night time with fire gun shot and hatchet blows---Accused was convicted
and sentenced to. death by Trial Court--Accused contended that ocular
account was in conflict with medical evidence; that occurrence was not
witnessed by anybody and that F.I.R. was recorded with delay---Validity--Medical evidence revealed that deceased had received three in juries on her
person, two of which were caused by a sharp-edged weapon whereas third
was caused by fire-arm but in juries caused by sharp-edged weapon were not
mentioned in F.I.R. which led to conclusion that it was an un-witnessed
occurrence--in juries caused by sharp-edged weapon were mentioned in
supplementary statement of complain ant which could not be equated with
F.I.R.---Supplementary statements are mostly recorded in order to fill lacuna
in prosecution case or to add number of accused---Supplementary statement
of complain ant in the present case was recorded by in vestigatin g Officer
after examin ation of deceased---Motive was not proved as there was
contradiction in statements of witnesses about harvestin g season of crop
which was allegedly misappropriated by accused/appellant---Eye-witnesses
stated that accused had fled from the spot along with hatchet and gun but
both weapons were recovered from Chaff-room of deceased---No in
dependent witness of recovery of weapons was produced by prosecution--Crime empties which were recovered from spot before recovery of gun were
not sent to Forensic Science Laboratory rather the same were despatched to
Laboratory along with gun after its recovery---F.I.R. did not mention that
accused was holdin g a' double barrel gun---Factum of hatchet was never
mentioned in F.I.R. and in any case there was no reason for assailant to use
two weapons to cause death of deceased---Prosecution case was replete with
doubts---Accused was acquitted of all charges---Appeal was allowed.
Side Appellant : IMTIAZ

---S.302 (b)/34---Crimin al Procedure Code (V of 1898), S.345---Appreciation of

evidence---Legal heirs of one of the deceased havin g entered in to
compromise with accused, Appeal of accused to the extent of said deceased
and murder reference was decided by Division Bench of the High Court on the
basis of compromise---Case was that of promptly lodged F.I.R. occurrence
havin g taken place in broad-daylight---F.I.R. revealed that accused was
armed with Kalashnikov while co-accused (Proclaimed offender) was also
armed with Kalashnikov---Both of them while sharin g their common in tention
committed murder of two in nocent persons---For the murder of one of
deceased persons accused was awarded death sentence, but he havin g
entered in to compromise with legal heirs of said deceased, on the basis of
compromise Division Bench of High Court had acquitted him to the extent of
the said deceased---Accused was awarded imprisonment for life for the
murder of other accused---Accused who was proclaimed offender, was
subsequently arrested---Such fact had gone again st accused---Section 34,
P.P.C. was fully applicable in the case as he along with his co-accused sin ce
proclaimed offender, had committed the murder of two in nocent persons--No leniency could be shown towards accused---Conviction and sentence of
imprisonment for life awarded to him was main tain ed in toto.

----SS.302 , 324, 325, 337-A(ii) & 34---Appreciation of evidence---Sentence,

reduction in ---Ocular account supported by medical and circumstantial
evidence---Case of accused at par with co-accused---Quantum of sentence--Determin ation of---Accused/appellant along with co-accused, both armed
with fire-arms, entered house of complain ant and committed murder of his
brother and in jured a female on account of domestic dispute---One of the
accused was apprehended on the spot along with his pistol---Motive as
alleged in F.I.R. was that deceased, who was cousin of wife of accused tried to
settle dispute between the spouses and favoured wife of accused and due to
that grudge deceased was murdered---Trial Court, while passin g conviction,
sentenced both accused/appellants to death and life imprisonment
respectively---Co-accused was acquitted on basis of compromise---Accused
contended; that witnesses were in imical towards them and no in dependent
witness was produced durin g trial; that recovery evidence was of no
consequence as pistol allegedly belongin g to one of the accused was handed
over to police officer by complain ant and it did not contain any live bullet or
any empty and that case of accused who was sentenced to death was at par
with co-accused who was sentenced to life imprisonment---Validity---Complain
ant and in jured female witness appeared before the Court in support of
prosecution case---Both the witnesses were in mates of the house and were
natural witnesses---Statements of witnesses were consistent, coherent,
natural and trustworthy which were supported by medical evidence and
corroborated by circumstances like apprehension of one of the accused on
the spot and registration of case without delay---Eye-witnesses had no
previous enmity or ill-will again st accused to in volve them falsely in the.
case---Trial Court had rightly believed direct evidence and ignored
discrepancies in medical evidence---Plea taken by accused that an in mate of
the house had fired at him which accidentally hit deceased was absurd
because he was unable to name any in mate of the house who had fired at
him---No other motive existed except the one narrated in F.I.R.'--Prosecution

had proved its case again st accused beyond doubt---Accused/appellant had
also been convicted for offence under Ss.324 & 337-A(ii), P.P.C. on allegation
that he caused fire-arm in jury on the head of in jured female witness but this
allegation was contradicted by medical evidence---Lady doctor who had
examin ed the in jured witness had opin ed that in jury was caused by blunt
weapon which could not be attributed to accused/appellant---Judgment of
Trial Court to that extent was set aside---As to quantum of sentence, it was
found that case of accused/appellant was at par with co-accused who was
sentenced to life imprisonment by Trial Court, and was treated leniently--Conviction of accused was main tain ed under Ss. 302 (b) & 34 but his death
sentence was reduced to life imprisonment---Appeal was partly allowed.
Side Appellant : MULAZIM HUSSAIN

---Ss. 302 & 324/34---Appreciation of evidence---Benefit of doubt---Medical

evidence in conflict with ocular account--Identification of accused in dark
night---Considerations---Source of light (torch) not recovered---Failure of
witnesses to specify role of each accused durin g identification parade--Effect--- Allegation again st accused/appellants was that they, while armed
with fire weapon, knife and screw driver, committed murder of complain ant's
son and caused in juries to his other son---Trial Court convicted accused under
SS.302 & 34, P.P. C. and sentenced them to life imprisonment---Accused were
further convicted under Ss.324 & 34, P.P. C. and sentenced to five years
imprisonment .for launchin g murderous assault on the in jured son of

complain ant-Validity--Complain ant did not claim in the F.I.R. that it was a
moonlit night---Had it been a moonlit night complain ant would have defin
itely mentioned this fact and there was no need to mention identification
through torch light---in vestigatin g Officer, durin g trial, had admitted that it
was a dark night---Most important article which could have established the
source of light was torch in . the light of which complain ant allegedly
identified accused, was not taken in to possession---For identification of
accused in dark night, in the light of electric bulb, lantern etc., availability of
sufficient light, opportunity to witness to have a good look or a, dialogue with
accused, the in timacy of accused with witnesses; the availability of an
unobstructed view of accused to witnesses at the time of occurrence, were
important aspects to be taken in to consideration---No previous in timacy of
accused with witnesses existed and admittedly no dialogue was exchanged
between both sides---Prosecution also failed to prove that it was a moonlit
night---Accused were arrested in the case one year after the occurrence and
it was too much to expect from witnesses to identify accused whose features
they had got little chance to memorise, especially when they were seen in
dark night and there was no in timacy between both the parties---Objection of
accused that at the time of identification parade they were shown to
prosecution witnesses by police could not be easily brushed aside, keepin g in
view the record of their arrest---Complain ant in his cross-examin ation
admitted that durin g in vestigation he had stated before in vestigatin g
Officer that if present accused were arrested, murder of his son could be
traced and at that time he gave names, parentage and residences of all
accused which exercise made identification process meanin gless; it did not
become clear that how accused were traced as real culprits except for aforesaid suspicion---Complain ant, accordin g to identification proceedin gs, could
not identify all accused durin g in vestigation, benefit of which could not be
extended in any manner to prosecution and it had to go to the accused--Witnesses did not specify role of each accused who were identified by them--Witnesses if did not specify the role of each accused durin g identification
parade, such identification lost its efficacy and importance--Evidence of
identification of accused was to be sufficient to exclude all possibilities of
mistake or exaggeration---Benefit of doubt, however slightest it might be, was
to be given to accused and it would be safe to acquit accused rather than to
convict them; for it was better to err on acquittal than to err on conviction--Medical evidence contradicted ocular version as all in juries suffered by
deceased were found to be of in cised wounds and none of in juries could be
termed to have been suffered with poin ted weapon like screw driver--Prosecution had failed to prove its case again st accused beyond any shadow
of doubt---Accused were acquitted of charge on ground of benefit of doubt--Appeal was accepted.
Side Appellant : MUHAMMAD IQBAL

----S.302 (b)---Appreciation of evidence---Extenuatin g circumstances

---Sentence, reduction in ---Murder not a premeditated in cident---Sin gle
Churri blow---Due to quarrel between the children, accused and deceased
grappled each other and accused gave a Churri blow, which resulted in to
death of deceased---Trial Court convicted the accused and awarded death
sentence to him---Validity---No previous background of enmity existed
between the parties---Just before actual occurrence of murder, a quarrel had
taken place . between the children and son of accused received head in
jury---Dead body of deceased had only one in jury that was a stab wound on
the left side of chest and accused did not repeat the in jury---Occurrence was
not a premeditated murder and had taken place at the spur of moment in the
heat of passion without takin g undue advantage---High Court takin g such
facts as extenuatin g circumstances, main tain ed conviction under S.302 (h)
P.P.C. but converted sentence of death in to imprisonment for life---Appeal
was allowed accordin gly.
Side Appellant : ALTAF HUSSAIN

--Ss. 324, 34, 337-A(ii), 337-F(i), 337-H(ii), 354-A, 148, 149, 337-A(i) & 337F(v)---Appreciation of evidence--in jured died allegedly after submission of
challan---Section 302, P.P.C. was not added---Opin ion of in vestigatin g Officer
not admissible in evidence---Allegation again st accused/appellants was that
they,' while armed with hatchets, along with co-accused caused in juries to
complain ant's brother and cousin ---Complain ant's brother who received
serious head in juries remain ed admitted in the hospital and ultimately
died---Complain ant moved an application to police for addition of S.302 ,
P.P.C. but to no avail and challan was submitted under Ss.324, 34 & 337-H(ii),
P.P.C.-Accused filed cross-case/complain t again st complain ant party under
Ss.354-A, 148, 149, 337-H(ii), 337-A(i), 337-F(i) & 337-F(v), P.P.C. but accused
in complain t case were acquitted by Trial Court and their acquittal was not
challenged---Trial Court, while acquittin g co-accused, convicted
accused/appellants under Ss.324 & 34, 337-A(ii), 337-F(i) & 337-H(ii), P.P.C.
and sentenced them to imprisonment for 10 years---Validity---One of the
accused/appellants contended that he had no concern with other convicts
and that he was found to be in nocent durin g police in vestigation but he did
not produce any evidence in support of his version---Opin ion of police/in
vestigatin g Officer was not admissible in evidence---Defence version was
baseless and the same was rejected---Had prosecution pursued case with
sense of responsibility, S.302 , P.P.C. should have been added to offence with
which accused were charged---Person who sustain ed serious in juries at the
hand of accused never gain ed consciousness after the occurrence and
consequently died as a result of in juries so sustain ed---Only reason for which
addition of S.302 , P.P.C. did not seem to have been pressed by prosecution
was that death of in jured person took place after submission of challan in
Trial Court---Present case was fit one for addition of S.302 , P.P.C.---Section
302, P.P.C. however, was never added and accused/appellants were not
charged with the same, it was too late at this stage to hold
accused/appellants responsible for Qatl-i-Amd of in jured (who later on

died)---Prosecution had proved its case again st accused beyond any shadow
of doubt--Appeal s filed by accused/appellants were dismissed.
Side Appellant : FAYYAZ AHMAD

---Ss. 302(b), (c), 148 & 149---Appreciation of evidence---Sentence, reduction

in ---Grave and sudden provocation---Alterin g conviction under S.302 (b), to
S.302 (c), P.P.C.--Scope---Allegation again st accused/appellants was that
they, while hangin g deceased upside down on tree, gave him beatin g with
Sota and put on fire to his clothes; that while deceased was bein g taken to
hospital in in jured condition he died on the way---Motive as alleged in , F.I.R.
was that accused had a suspicion that deceased had developed illicit
relations with their sister---Trial Court while convictin g accused under S.302
(b) sentenced them to imprisonment for life---Validity---Both complain ant as
well as accused parties had concealed their actual design and role from the
Court---in completeness of tale, however, was not to deter Court from drawin
g proper in ference from evidence and circumstances---Two of the accused
who had taken part in this occurrence were real brothers of the lady with
whom deceased allegedly had developed illicit relations---Especially in
villages, the aspect of illicit relations had become a matter of family honour--Conduct of eye-witnesses was most unnatural as they did not in terfere when
accused were givin g beatin g to deceased nor they tried to in terfere when
deceased was bein g hanged on a tree---One of the prosecution witnesses
was examin ed by in vestigatin g Officer four months after the occurrence--Number of in juries on the person of deceased also suggested that it was a
case of grave and sudden provocation---Conviction was altered from S.302
(b), P.P.C. to S. 302 (c), P.P.C. and sentence was reduced from life
imprisonment to 10 years' R.I.-No compensation in such-like case, could be
awarded to legal heirs of deceased---Appeal was decided accordin gly.
Side Appellant : MUKHTAR alias SADRI

--S.302 (b)/34---Appreciation of evidence---Benefit of doubt---Ocular account

not corroborated by medical evidence qua two convicts---in sufficiency of
motive or motive shrouded in mystery---Effect---Allegation again st
accused/appellants (three in number) was that they along with seven coaccused committed murder of two persons in a dispute over divorce matter--Trial Court, while acquittin g co-accused, convicted and sentenced each of the
three accused to death---Accused contended; that medical evidence belied
the ocular account as to two convicts/accused; hence, the same was not to
be believed again st the third convict/accused; that motive set down in F.I.R.
did not advance prosecution case and that no in dependent witness from
place of occurrence was produced by prosecution--Validity---F.I.R. was though
promptly lodged but as eye-witnesses had given exaggerated account of
occurrence, therefore, it was necessary to sift grain from the chaff---in juries
attributed to two accused/appellants did not fin d support from medical
evidence on two grounds; firstly, eye-witnesses had stated that first deceased
received in jury from a distance of 4/5 feet but there was no blackenin g or
burnin g on the in juries; secondly, two exit wounds sustain ed by deceased
were assigned to one accused---Other deceased sustain ed only two in juries
and not three as claimed by eye-witnesses---Prosecution had implicated two
accused persons for one in jury, therefore, it could not be said that which of
the two accused caused in jury; nor it could be said with certain ty that said
in jury was caused by gunshot or rifle---Neither broken door was taken in to
possession by in vestigatin g Officer nor any .12-bore empty was recovered
from the spot---Circumstantial evidence did not support prosecution case
again st two accused---Benefit of doubt was to be given to accused and one
doubt was genuin ely arisin g out of circumstances of case was enough for
acquittal---On ground of benefit of doubt, two accused/appellants were
acquitted of the charge and Appeal to their extent was allowed.
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SC upholds acquittal in murder case due to weak evidence

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SC upholds acquittal in murder case due to weak evidence

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2014 Y L R 2538

[Supreme Court (AJ&K)]

ABID HUSSAIN and 3 others---Respondents

Criminal Appeal No.8 of 2009, decided on 28th January, 2013.

(a) Penal Code (XLV of 1860)---

(b) Criminal Procedure Code (V of 1898)---

Muhammad Aslam v. Sabir Hussain 2009 SCMR 985; Azhar Hussain v.

(c) Criminal trial---

----Medical evidence---Medical evidence could not connect accused with the

(d) Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Conversion of acquittal order into conviction---Scope---To get

Muhammad Yousaf v. Muhammad Idrees 2004 MLD 910; State v. Faisal

Abdul Aziz Ratalvi for Appellant.

Ch. M. Ilyas for accused Respondents.

Ghazanfar Ali A.G. for the State.

Date of hearing: 20th December, 2012.

evidence in support of its case. The prosecution has fully succeeded in

negates the material and major circumstances alleged by the prosecution

"14. Since there were three witnesses relating to extra-judicial

In a reported case titled Muhammad Qasim alias Bagga v. The State

"In the circumstances of the case when the appellant had

".It is a settled proposition of law that extra-judicial confession is

"Extra-judicial confession is a weak type of evidence, but if it was

To make the extra-judicial confession admissible in evidence, there

"12. The third portion for construction of the building of the

contradictions and had analyzed the statements of the witnesses. Statement

Therefore, in the light of survey of case law, it is obviously clear that an

It is by now settled principle that to get an acquittal order converted

11. ..The accused, as a matter of right and not the complainant, is

The apex Court of Pakistan, in a recent judgment in the case reported

[Shairat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem and Muhammad Mushtaq Chaudhary, JJ

Raja ALI SHAN and another---Appellants

SHAKEEL and 4 others---Respondents

Criminal Appeal No.9 of 2013, decided on 14th May, 2013.

(a) Criminal Procedure Code (V of 1898)---

----S. 173---Report of Police Officer---Nature---Where the Police would submit a

(b) Criminal Procedure Code (V of 1898)---

falling---Observation of Investigating Officer that no cognizable offence was

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 46--- Dying declaration Admissibility---Evidentiary value---Dying

Play King Richard II by Sir William Shakespeare and Akbar Ali v.

Riaz Naveed Butt for Appellants.

Rafique Shaheen Additional Advocate General for the State.

Ch. Muhammad Ilyas for Respondents.

SYED HUSSAIN MAZHAR KALEEM, J.---Above titled appeal has been

statement and on 21-10-2010, he died of the injuries, upon which section

"the investigation so far conducted by the Police does not indicate

blindly and pass the order of discharge of an accused in a whimsical and

the scholars and thinkers belonging to different religions, cultures and

"O, but they say the tongues of dying men.

Enforce attention like deep harmony.

Where words are scarce, they are seldom spent in vain.

For they breathe truth that breathe their word in pain.

He that no more must say is listen'd more.

Than they whom youth and ease have taught to glose.

More are men's ends mark'd than their lives before.

The setting sun and music at the close.

As the last taste of sweets, is sweetest last.

Writ in remembrance more than things long past.

Though Richard my life's counsel would not hear.

My death's sad tale may yet undeaf his ear.