2026 PLP 485 (YLR)

Sardar Akbar Ali, J.

This judgment shall dispose of Criminal Appeal No.62560-J of 2019, filed by Umer Farooq alias Muhammad Farooq (appellant cited as Muhammad Faoorq in the impugned judgment) against his conviction and sentence and Crl. Rev. No.62559 of 2019 filed by Tahir Abbas, complainant for enhancement of sentence awarded to the appellant, as both these matters have arisen out of the same impugned judgment dated 28.09.2019, passed by learned Sessions Judge, Mandi Bahauddin.

2. Initially Tahir Abbas, complainant (PW-1) got registered case FIR No.77, dated 26.02.2018, for offences under sections 302, 148 and 149 P.P.C at Police Station Saddar Mandi Bahauddin, District Mandi Bahauddin for the murder of his brother, namely Zaheer Abbas but being dissatisfied with the proceedings and investigation of the police, the complainant has filed the private complaint (Exh.PB) against the appellant and his co-accused Sikandar Hayat and Imtiaz Ahmad (since acquitted). After recording the cursory statements of the complainant, as well as, PWs the learned Sessions Judge, Mandi Bahauddin summoned the accused persons to face trial. After conclusion of the trial, the learned trial Court vide its judgment dated 28.09.2019 has convicted and sentenced the appellant as under:- Under Section 302(b) P.P.C to imprisonment for life and to pay Rs. 10,00,000/- as compensation under section 544-A Cr.P.C to the legal heirs of deceased, namely Zaheer Abbas and in default thereof to further undergo simple imprisonment for six months. Benefit under section 382-B of Cr.P.C. was also extended in favour of the appellant, However, through the same judgment, the learned trial Court acquitted Sikandar Hayat and Imtiaz Ahmad, co-accused of the appellant of the charges by extending them the benefit of doubt.

3. The facts of the case, as enumerated in paragraph No.2 of the impugned Judgment of the learned trial Court, are that:- "That on 25.02.2018 at 09:45 pm. complainant Tahir Abbas along with his deceased brother Zaheer Abbas, Mukhtar Ahmad and Sheraz PWs had visited the house of their relative Ghulam Hussain, and while leaving his Baithak were returning towards their house. Zaheer Abbas deceased was few paces ahead of them. He ranged the doorbell of their house, complainant along with Mukhtar and Sheraz PWs were standing near him. Electric bulb was on. In the meanwhile, accused persons Sikandar Hayat, Muhammad Farooq and Imtiaz Ahmad along with four unknown persons, armed with pistols 30-bore, arrived there from southern side. All the accused persons were identified by the complainant party, in the light of electric bulb. Accused Sikandar raised lalkara that let Zaheer Abbas (deceased) be taught a lesson, for seeking hand of the daughter of his brother-in-law Whereupon, accused Muhammad Farooq made fire with his pistol 30 bore at Zaheer Abbas, which had hit on his left flank, near chest. Thereafter, accused Sikandar Hayyat made fire with his pistol at Zaheer Abbas, which had hit on left side of his abdomen. Then, accused Imtiaz made fire with his pistol at Zaheer Abbas, which had hit on his right bicep, and went through and through. Again, accused Muhammad Farooq made fire at Zaheer Abbas with his pistol, which had hit Zaheer Abbas, on upper side of his right flank. Zaheer Abbas fell down on the ground. Complainant along with Mukhtar Ahmad and Sheraz PWs had taken shelter of a wall to save their lives. Then, accused Sikandar Hayyat made fire with his pistol 30 bore at Zaheer Abbas, which had hit on the left leg of Zaheer Abbas, near knee. Complainant along with PWs Mukhtar and Sheraz raised hue and cry, and all the above mentioned accused persons went towards southern side, while making aerial firing. Complainant along with PWs had shifted Zaheer Abbas in injured condition, towards Civil Hospital Mandi Bahauddin, but he succumbed to the injuries, on the way"

4. Appellant and his acquitted co-accused were formally charge sheeted to which they pleaded not guilty and claimed trial. Complainant produced his oral as well as documentary evidence. In his statement recorded under section 342, Cr.P.C. the appellant pleaded his innocence and refuted all the allegations levelled against him. The appellant neither opted to make his statement on oath under section 340(2), Cr.P.C. in disproof of allegations levelled against him nor he produced any defence evidence.

5. I have heard the arguments of learned counsel for the appellant, as well as, learned DPG for the State assisted by learned counsel for the complainant and have also gone through the evidence available on the record with their able assistance.

6. In this case the occurrence took place on 25.02.2018 at 09:45 PM which has been reported by complainant Tahir Abbas (PW.1) on 26.02.2018 at 01:30 AM, after a delay of 03 hours and 45 minutes. No explanation, much less plausible, has been furnished by the complainant for the said delay. It is settled law that unexplained delay in lodging FIR creates a doubt in the prosecution's case and its benefit has to be extended and construed in favour of the accused. In case titled, Mst. Asia Bibi v. The State and others (PLD 2019 SC 64), the Hon'ble Supreme Court has held that in absence of any plausible explanation, delay in lodging of FIR is always considered to be fatal as it casts suspicion on the prosecution story. In case of Zeeshan alias Shani v. The State (2012 SCMR 428) the Hon'ble Supreme Court has observed that delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected by prosecution and the time was consumed in making effort to give a coherent attire to the prosecution's case, which hardly proved successful. Same is the view in the case of Muhammad Fiaz Khan v. Ajmer Khan (2010 SCMR 105) and Muhammad Nawaz and another v. The State and others (2024 SCMR 1731).

7. Postmortem examination on the dead body of the deceased was conducted on 26.03.2018 by Dr. Muhammad Nawaz (PW-3) at 08:45 AM i.e after 11 hours of occurrence, for which too, no explanation, much less plausible, has been advanced by the Medical Officer or by the complainant or by any other prosecution's witnesses. The Hon'ble Supreme Court in case of 'Muhammad Ilyas v. Muhammad Abid alias Billa and others' (2017 SCMR 54), has held that delay in conducting the postmortem examination suggests that the eye-witnesses were not present at the spot at the time of occurrence, therefore, the said time was consumed in procuring the attendance of procured eye-witnesses. Further reliance may also be placed on the cases of "Waqas Ahmad v. The State" (2025 SCMR 1087).

8. The two key witnesses, Tahir Abbas, complainant (PW-1) and Mukhtar Ahmad (PW-2), suffer from fatal infirmities that taint the very core of the prosecution's story. Complainant (PW-1) being the real brother of the deceased, is patently an interested witness, whose testimony, in the absence of independent corroboration, is inherently suspect and must be scrutinized with extreme caution. The testimony of PW-2 is even more precarious. He is a resident of village Sainthal, while the occurrence took place in village Sivia. His own admission in cross-examination that "about one hour is consumed while coming to Sivia from village Sainthal" establishes that he is not a resident of the locality and his presence at the precise time and place of the incident is highly improbable and unnatural. In the absence of any explanation for his fortuitous presence, he can safely be termed a "chance witness," whose testimony is inherently unreliable. The investigation further compounds this doubt, as the Investigating Officer, despite the pivotal nature of this issue, failed to take into possession the Call Data Record (CDR) of PW-2, which could have objectively verified or falsified his claim of being present at the scene. This lapse is a significant investigative flaw benefit whereof must be extended to the appellant. Furthermore, the conduct of the investigation, wherein co-accused Sikandar Hayat and Imtiaz Ahmed were declared innocent without any challenge from the complainant, casts a long shadow of doubt on the overall veracity of the prosecution's version. Cumulatively, the interested testimony of PW-1, the chance nature of the testimony of PW-2, and the dubious investigation render the ocular account too unsafe to act upon for upholding a conviction of such gravity.

9. The learned trial Court vide impugned judgment acquitted co-accused of the appellant, namely Sikandar Hayyat and Imtiaz Ahmad who were assigned specific roles of inflicting fire shots on the person of Zaheer Abbas deceased. The acquittal of co-accused, with specific roles, on the same set of evidence has created serious doubt about the veracity and sanctity of same witnesses against the present appellant and under the principle of "falsus in uno falsus in omnibus" (false in one thing, false in all), the appellants could not be convicted on such evidence. Reliance is placed on the case reported as "Notice to Police Constable Khizar Hayat son of Hadait Ullah" (PLD 2019 SC 527) and "Pervaiz Khan and another v. The State (2022 SCMR 393).

10. Oral and medical evidence also contradict each other. The witnesses of ocular account claimed that Zaheer Abbas, deceased sustained five firearm injuries but according to Dr. Muhammad Nawaz (PW-3) the deceased suffered four injuries. The injury cited in the FIR (Exh.PA) on the belly of the deceased was not found during post mortem examination, whereas, injury ascribed on the knee of left leg was found an exit wound. This disparity calls into question the validity of the evidence used against the appellant. Reliance in this respect is placed on the judgment reported as "Muhammad Abras v. The State" (2025 SCMR 1145).

11. As regards recovery, it may be reiterated that occurrence took place on 25.02.2018 and the accused/appellant succeeded to flee away from the place of occurrence along with crime weapon. Then, according to recovery memo. Ex.PF, son 10.05.2018 the accused/ appellant got recovered the crime weapon pistol 30-bore, but this recovery remains totally inconsequential because of negative PFSA report. Besides, when the ocular account has already been disbelieved, such recovery would not be sufficient for recording conviction of an accused on capital charge, because this type of corroborative evidence is always taken into consideration along with direct evidence. In case titled "Noor Muhammad v. The State" (2010 SCMR 97) it has been held by the Supreme Court of Pakistan that recovery of crime weapon with matching report of PFSA is corroborative piece of evidence, which by itself is not sufficient to record conviction.

12. The evidence of motive has already been discarded by the learned trial Court in para No.18 of the impugned judgment and after going through the evidence available on record I am, to such extent, in agreement with the findings of the learned trial Court.

13. As far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.

14. Keeping in view all the above-mentioned facts, I have come to this irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story. Reference in this context may be made to the judgments reported as "Tariq Pervez v. The State" (1995 SCMR 1345) and "Muhammad Akram v. The State" (2009 SCMR 230). Consequently, instant appeal is allowed. The impugned judgment is set aside. The appellant is acquitted of the charge while giving him the benefit of doubt. The appellant is on bail. His bail bonds are discharged from the liability.

15. For the above reasons Crl. Rev. No.62559 of 2019 filed by the complainant for enhancement of sentence of Muhammad Farooq is dismissed. JK/U-11/L Appeal allowed.