2025 P Cr (PLP)

Sardar Akbar Ali, J.

Shakeel (appellant) along with his co-accused, namely Waqas Anjum and Hashim Shahzad alias Sadu was tried in case FIR No.136, dated 25.03.2016, offence under Sections 302, 148 and 149 P.P.C registered at Police Station Khudian, District Kasur lodged by Muhammad Ameen, complainant (since dead). After conclusion of the trial, learned Addl. Sessions Judge, Kasur vide its judgment dated 27.04.2018, has convicted and sentenced the appellant as under: - Under Section 302(b) P.P.C to imprisonment for life. He was also ordered to pay Rs.200,000/- (rupees two hundred thousand only) under Section 544-A Cr.P.C. to the legal heirs of Pervaiz Iqbal deceased as compensation and in default thereof to further undergo simple imprisonment for two months. Benefit under section 382-B of Cr.P.C. was also extended in favour of the appellant. However, vide the same judgment, co-accused of the appellant, namely Waqas Anjum and Hashim Shahzad alias Sadu, stood acquitted. The complainant did not challenge their acquittal before this Court

2. The facts of the case, as enumerated in paragraph No.1 of the impugned judgment of the learned trial Court, are that:- "Pithily, the criminal case with FIR No.136/2016, under sections 302/148/149 P.P.C Police Station, Khudian, Kasur, was registered on the application (Ex.PL) of Muhammad Ameen, alleging therein that on the intervening night of 24/25.03.2016 at about 10:00 p.m. the accused Shakeel took out the son of the complainant namely Pervaiz Iqbal from his house and did not return by 11:00 p.m, the complainant along with PWs Javed and Muhammad Shair started the search in the village, the complainant party received the information that the accused along with the son of complainant were moving towards the Poultry Form of Ch Muhammad Ali, when the complainant and PWs reached near the wheat crop of Muhammad Sabir they heard the hue and cry of Pervaiz Iqbal (deceased) and found that the accused were beating Pervaiz Iqbal, he fell down on the ground whereon the accused took out the mobile phone sim No.0304-7424045, cash Rs.2500/-, I.D. Card from his pocket and the accused Shakeel fired with 30 bore pistol which landed on the back of the head and he succumbed to injury at the spot, the occurrence was witnessed in the search light, the accused Shakeel, Sadhu and Waqas Anjum had committed murder along with two unknown, the motive was the dispute of amount with the accused. Hence the case." After submission of challan formal charge was framed against the appellant to which he pleaded not guilty and claimed to be tried. In order to prove its case the prosecution produced eight PWs. In documentary evidence, prosecution produced documents Ex.PA to Ex.PR. The statement of the appellant under section 342 Cr.P.C, was recorded, wherein he refuted the allegations levelled against him and professed his innocence. He neither opted to appear as his own witness on oath provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him nor produced any evidence in his defence.

3. I have heard the arguments of learned counsel for the parties, as well as, learned Deputy Prosecutor-General and have also gone through the evidence available on the record with their able assistance.

4. According to the prosecution case the occurrence took place on the intervening night of 24/25.03.2016. The exact time of occurrence is not mentioned in the FIR, however, in post mortem repot (Ex.PD) the time of death has been cited as 11:00 p.m. whereas the complainant lodged the FIR (Ex.PB) on the next morning at 06:50 am. i.e. almost seven hours and fifty minutes after the occurrence, whereas, the police station is just five kilometers from the place of occurrence. Nowhere in the entire evidence, the prosecution has explained the reason for such delay in reporting the matter to the police. The delayed FIR shows dishonesty on the part of the complainant and that it was lodged with deliberation and consultation. Reference in this regard may be made to the case of "Manzar Abbas and another v. The State" (2025 SCMR 1024) wherein a delay of only four hours and fifteen minutes in reporting the matter to and lodging the FIR by the police was considered indicative of dishonesty on the part of the complainant.

5. It is relevant to mention here that during the trial the complainant has died before recording his statement. Ocular account of the prosecution was furnished by Muhammad Javed (PW-6) son-in-law of the complainant and Muhammad Sher (PW-7) nephew of the complainant. These PWs stated that on the intervening night of 24/25.03.2016 at about 11:00 p.m. they were sitting together in the Baithak of Sher Muhammad (PW-7). In the meanwhile, complainant came and stated that Pervaiz (deceased) was missing ensuing search for the deceased. Muhammad Javed (PW-6) and Muhammad Sher (PW-7) came to know that Pervaiz (deceased) along with Shakeel (appellant), Waqas Anjum and Sadhu (co-accused since acquitted) went towards Muhammad Ali Poultry Farm. They further stated that while going towards Poultry Farm when they reached near the wheat crop of Sabir they heard noises of quarrel and in the light of search light they saw appellant and his co-accused quarreling with Parvaiz (deceased). They further deposed that they stepped forward but were warned by the accused persons that if anyone came nearer would be done to death. They further deposed that within their view appellant and co-accused took out purse, mobile, Rs.2500/- and NIC from the pocket of deceased Then within their view Shakeel (appellant) made fire shot with pistol 30 bore which hit on the backside of the head of deceased, who fell down and died at the stop. They further deposed that appellant and co-accused fled away from the spot. Muhammad Javed (PW-6) is not certain as to when he came to know about the missing of the deceased. Firstly this PW deposed in his examination-in-chief that at about 11:00 p.m. when he was sitting in the Baithak of Muhammad Sher (PW-7) complainant informed him about the missing of Pervaiz (deceased) whereas during cross-examination this PW deposed as under:- ".....Complainant Amin had told me that by 9/10 p.m. that Pervaiz was missing....." Muhammad Javed, PW-6 further deposed that "First we were about 3/4 persons who started the search of deceased and later on it increase a large number of people". Similarly, both the PWs deposed that when they started search for the deceased, they also went to the houses of Sarwar and Abid. Moreover, the prosecution did not furnish any plausible justification for non-production of Sarwar, Abid (whose houses were visited by the PWs in search of deceased prior to occurrence) and Sabir (in whose land occurrence took place) or any other independent person who was present at the time of alleged occurrence. Moreover, if witnesses were present at the place and time of occurrence, as to why they did not inform the police through 15 or rescue 1122. Conduct of these witnesses is highly unnatural which makes their presence at the spot doubtful. Furthermore, the inquest report Ex.PN depicts that the mouth of the deceased was opened. In our society when close relatives are present at the spot, at the time of occurrence, they first of all close the mouth and eyes of the deceased. Thus, the abovementioned fact has established that the abovementioned prosecution eye-witnesses were not present at the spot at the time of occurrence. Reference in this context may be made to the judgments reported as "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068) and "Ahmad v. The State" (2025 SCMR 1087).

6. The occurrence in this case had taken place during the night and although the prosecution had mentioned availability of torch with the prosecution witnesses at the spot yet admittedly no torch had been secured during the investigation of this case. Thus the claim of the above alleged eye-witnesses regarding identification of culprits of the incident appears to be a claim which can be accepted only with a lump of salt. Reliance in this respect may be placed on the judgment reported as "Khizar Hayat v. The State" (2025 SCMR 1339)

7. I have further noted that the delay was not limited to the FIR, even the postmortem examination of the deceased was conducted after unjustifiable lapse of time. The prosecution has failed to provide any explanation for this delay. The time of occurrence is given as 11:00 p.m. on 24.03.2016 and time of report as 06:50 am in the FIR, whereas, according to statement of Dr. Muhammad Ahmad (PW-5) he conducted autopsy on the dead body of the deceased at 06:45 p.m. on 25.03.2016. viz after a delay of 19 hours and 45 minutes if counted from the time of occurrence. In such eventuality the most natural inference would be that the delay so caused was for preliminary investigation and prior consultation to nominate the accused and plant eye-witnesses of the occurrence. Reliance is placed on case titled, "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068). Similarly, in case titled, "Irshad Ahmad v. The State" (2011 SCMR 1190) the Hon'ble Supreme Court has observed that noticeable delay in postmortem examination on the dead body of the deceased is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses before preparing police papers necessary for the same. Same is the view of Hon'ble Supreme Court in cases titled, Ulfat Hussain v. The State (2018 SCMR 313), Muhammad Yaseen v. Muhammad Afzal and another (2018 SCMR 1549), Muhammad Rafique v. The State (2014 SCMR 1698), Muhammad Ashraf v. The State (2012 SCMR 419) and Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327).

8. Insofar as the recovery of pistol 30 bore and positive report of PFSA (Ex.PR), are concerned, without discussing the merits and demerits of these pieces of the prosecution evidence, it is noteworthy that as I have already disbelieved the direct prosecution evidence, therefore, the conviction and sentence of the appellant cannot be maintained merely on the basis of alleged recovery of pistol and positive FSL report. Reference in this context may be made to the judgments reported as "Dr. Israr-ul-Haq v. Muhammad Fayyaz (2007 SCMR 1427), 'Muhammad Afzal alias Abdullah and others v. The State and others (2009 SCMR 436), 'Abdul Mateen v. Sahib A Khan and others' (PLD 2006 SC 538) and 'Nek Muhammad and another v. The State' (PLD 1995 SC 516).

9. It is also noteworthy that the learned trial Court had categorically found that the motive set up by the prosecution had not been proved by it. It is by now settled that the prosecution though is not obliged to prove the motive in each and every case, however, once the motive is set up then it must be established and in case of failure to prove the same, the prosecution must suffer its consequences and not the defence.

10. For what has been discussed above, I have found that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. Consequently, whilst setting aside the impugned judgment, this appeal is allowed and the conviction and sentences of the appellant is set aside and he is acquitted of the charge by extending him the benefit of doubt. Appellant is in custody and he shall be released from jail forthwith if not required to be detained in any other case. MWA/S-71/L Appeal allowed.