2026 PLP 163 (SCMR)

MALIK SHAHZAD AHMAD KHAN, J.

Qaisar, petitioner along with Muhammad Ashraf and Muhammad Idrees (co-accused since acquitted), was tried by the learned Additional Sessions Judge, Tehsil Shahkot, District Nankana Sahib, pursuant to a case FIR No. 215/ 2012, dated 10.05.2012, under sections 302, 324 and 34 P.P.C., registered at Police Station Sadar Shahkot, District Nankana Sahib. The learned Trial Court vide its judgment dated 26.01.2015, convicted the petitioner under Section 302(b) P.P.C. and sentenced him to death. However, vide the same judgment, Muhammad Ashraf and Muhammad Idrees (co-accused), were acquitted by the learned trial Court while extending benefit of doubt to them. In appeal, the learned High Court vide the impugned judgment dated 05.12.2017, while maintaining the conviction of the petitioner under Section 302 P.P.C., altered the sentence of death into imprisonment for life. The petitioner was also directed to pay compensation amounting to Rs.1,00,000/- to the legal heirs of the deceased as envisaged under section 544-A Cr.P.C. or in default whereof to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner.

2. Arguments heard. Record perused.

3. As per contents of the FIR (Ex.PA/1), on 09.05.2012, at about 10.00 a.m, Mumtaz Ahmad complainant (since died before recording of prosecution evidence) and his brother namely Ijaz Ahmad (deceased), were going towards Wanotianwali and when they reached near the house of one Sarfraz, Khadim Hussain (PW-10), also reached there. The complainant, his brother namely Ijaz Ahmad (deceased) and Khadim Hussain (PW-10), started talking to each other. In the meanwhile, Qaisar (petitioner), while armed with 30-bore pistol, Muhammad Ashraf and Muhammad Idrees (co-accused since acquitted), reached at the spot while riding a motorcycle. Muhammad Ashraf (co-accused since acquitted), was driving the motorcycle whereas, the remaining two accused were sitting on the pillion seat. Qaisar (petitioner), raised a lalkara to teach a lesson to Ijaz Ahmad (deceased), for forbidding him from coming to his (deceased s) village and then he made a fire shot, which landed on the abdomen of Ijaz Ahmad (deceased). The accused persons thereafter, also made 2/3 fire shots at Mumtaz Ahmad complainant and Khadim Hussain (PW-10) but the same did not hit them. On hearing the report of firing, the people of the area attracted towards the spot, whereupon the accused persons tried to flee away on their motorcycle but the people succeeded to apprehend the petitioner at the place of occurrence, whereas Muhammad Ashraf and Muhammad Idrees (co-accused since acquitted), managed to flee away from the spot. A pistol was also recovered from the possession of the petitioner. The petitioner and the pistol were later on handed over to the police on arrival, hence the FIR of this case. The motive behind the occurrence was that the petitioner used to tease the girls of the village and Ijaz Ahmad deceased forbade the petitioner from the said act.

4. It is true that the occurrence took place on 09.05.2012, at 10.00 a.m and the FIR was lodged on 10.05.2012, at 2.30 p.m and as such there is a delay of about 28 hours in reporting the matter to the police but the said delay has plausibly been explained by the prosecution in the contents of the FIR, as well as, in the evidence of the prosecution eye-witnesses. It was categorically mentioned in the FIR that Ijaz Ahmad (deceased/the then injured), was first shifted to the civil hospital, Sheikhupura but the doctor after providing him first aid referred him to the Meyo Hospital, Lahore, where he (Ijaz Ahmad) was under medical treatment in serious condition. The complainant further explained that after leaving the relatives with his brother Ijaz Ahmad (deceased/the then injured), at the hospital, he (complainant) had come back to the Police Station Sadar Shahkot, as he was told that nobody had lodged the FIR. The conduct of the complainant party of first taking Ijaz Ahmad (deceased/the then injured), to the hospital at Sheikhupura and thereafter to the Meyo hospital, Lahore, was quite natural because it is always the first and foremost priority of the near relatives of an injured to save his life by providing him the medical treatment instead of rushing towards the police station to lodge the FIR. We are, therefore, of the view that the delay in reporting the matter to the police has plausibly been explained and the said delay is not fatal to the prosecution case. Reference in this context may be made to the judgments reported as Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872) and Abdul Khalique v. The State (2020 SCMR 178). In the case of Muhammad Nadeem alias Deemi supra, at page No.874, it has been observed as under:-

4. So far as the FIR is concerned, it was, no doubt, delayed by 17 hours, yet seen in the light of attending circumstances of the case, the delay stands explained. It is an established principle of law and practice that in criminal cases the delay, by itself, in lodging the FIR, is not material. The facts to be considered by the Courts are firstly, that such delay stands reasonably explained and second, that the prosecution has not derived any undue advantage through the delay involved. The delay is explained in the FIR itself to the effect that everyone was busy at the hospital, struggling for the life of the victim Similarly in the case of Abdul Khalique, ibid at page Nos.180 and 181, it has been held as under:- The doctor (PW6) further stated in his cross-examination that he referred Khalil Ahmad to LUMHS Hyderabad after giving him first aid at 11.05 p.m. on 18.07.2014. In this respect, referral letter has been exhibited as Exh.16/B. A glance at the postmortem examination report of Khalil Ahmad issued by Dr. Salahuddin (PW7), MLO at LUH Hyderabad reveals that Khalil Ahmad was admitted in the said hospital on 19.07.2014 and he expired there on 21.07.2014. In these circumstances, the delay in lodging the FIR has reasonably been explained by the prosecution. Even otherwise, the first priority of kith and kin of Khalil Ahmad (deceased) was to save his life and they tried to do so by first taking him to local hospital, wherefrom he was referred to a hospital at Hyderabad. (Bold and underlining is supplied for emphasis)

5. Admittedly Mumtaz Ahmad complainant died before the recording of his statement by the learned trial Court, however, the ocular account of the prosecution has been brought on the record through Khadim Hussain (PW-10). The occurrence in this case took place in village Karkan and the abovementioned eye-witness was also resident of the same village i.e., village Karkan. The occurrence took place in the broad-day light i.e., on 09.05.2012, at 10. a.m. and as such there was no chance of any misidentification of the petitioner at the time of occurrence. Even otherwise, the petitioner was caught red handed with a pistol, at the spot, immediately after the occurrence and was handed over to the police. The petitioner was the sole accused, who was assigned the role of causing a fatal firearm injury on the abdomen of Ijaz Ahmad (deceased). It is true that the prosecution has produced only one witness in this case namely Khadim Hussain (PW-10) but as mentioned earlier, the other eye-witness of this case namely Mumtaz Ahmad complainant had admittedly died before recording of his statement by the learned trial Court, therefore, his non-production in the witness box was beyond the limits of the prosecution. Khadim Hussain (PW-10), was cross-examined at length but his evidence could not be shaken. His testimony is confidence inspiring and trustworthy. It is by now well settled that it is the quality and not the quantity of evidence which weighs with the Courts to decide any case. If evidence of a sole eye-witness is confidence inspiring and trustworthy then the same can safely be relied upon for awarding conviction to an accused. In the case of Niaz-ud-Din and another v. The State and another (2011 SCMR 725), at page No.734, it has been held as under:-

11. The statement of Israeel (P.W.9) the eye-witness of the occurrence is confidence inspiring, which stand substantiated from the "circumstances and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that "even in a murder case conviction" can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." The reason being that it is the quality of evidence and not the quantity which matters. Therefore, we are left with no doubt whatsoever that conviction of Niaz-ud-Din was fully justified and has rightly been maintained by the High Court. Similar view was taken in the judgments reported as Sajid Mehmood v. The State (2022 SCMR 1882) and Qasim Shahzad and another v. The State and others (2023 SCMR 117).

6. The medical evidence of the prosecution has been brought on the record through Dr. Mian Muhammad Tahir (PW-2), Dr. Shoukat Hussain (PW-3) and Dr. Muzammal Altaf (PW-8). Dr. Shoukat Hussain (PW-3), who was posted at THQ Hospital, Sharqpur at the relevant time, medically examined Ijaz Ahmad (deceased/the then injured) on 09.05.2012, at 10.45 a.m. He noted a punctured wound of entry at the lower part of left chest of Ijaz Ahmad deceased (injury No.1) and an exit wound on the back of lower part of right chest (injury No.2). Dr. Muzammal Altaf (PW-8), medically examined Ijaz Ahmad (deceased/the then injured), on 09.05.2012, at the Meyo Hospital, Lahore and he also noted the same injuries on the body of Ijaz Ahmad (deceased/the then injured) as noted by Dr. Shoukat Hussain (PW-3). On 17.05.2012, Ijaz Ahmad (deceased), expired and Dr. Mian Muhammad Tahir (PW-2), conducted postmortem examination on his dead-body at the THQ Hospital, Shahkot. He also noted the same injuries on the body of the deceased apart from injury Nos.2 to 5 (wounds of surgical/medical intervention). Learned counsel for the petitioner has laid much emphasis on the point that as per site plan (Ex.PJ), the distance between the petitioner and the deceased was fifteen (15) feet but according to the medical evidence brought on the record through Dr. Shoukat Hussain (PW-3), who first medically examined Ijaz Ahmad (deceased/the then injured), there was blackening on the margins of entry wound at the abdomen of the deceased i.e., (injury No.1). He stressed that the blackening on the entry wound of the deceased shows that the fire shot was made from a distance of not more than three (03) feet and as such there is conflict between the ocular account and the medical evidence of the prosecution, which has created serious doubt in the evidence of the prosecution eye-witness, rendering the same as unreliable. In order to appreciate the above argument, we have gone through the books written by different medical experts on the subject of medical jurisprudence, toxicology and Forensic Science (Parikh, Modi, Siddiqui, Taylor etc). After going through the abovementioned books on the subject, we have come to this conclusion that only blackening on the margins of the entry wound may also occur even from a long-range fire shot. On the other hand, if the entry wound is a contact wound which means that the fire shot was made while pressing the muzzle of the weapon on the body of the victim or if a fire shot is made from a close range i.e., from a distance of three (03) feet or less, then apart from the blackening around the entry wound, there is also burning and tattooing around the entry wound (s). Sometimes a plastic wad is also recovered from a wound of entry if a fire shot is made by a 12-bore gun or a carbine from a close range. According to the medical experts when the trigger of a firearm is pressed then it hits that part of the bullet or cartridge, which contains gun powder and due to the hitting of the trigger a blast takes place in the bullet/cartridge due to which the bullet or pallets come out of the muzzle of the gun/pistol with very high velocity. Smoke that comes out of the muzzle of the weapon due to the blast of gun powder, deposits around the entry wound in a contact wound or a close range shot made from a distance of less than 3-feet and the same causes blackening around the entry wound. A flame also comes out of the muzzle, which causes burning/ charring around the entry wound, whereas burnt and unburnt gun powder also comes out of the muzzle of the weapon and it causes tattooing around the entry wound in the case of a close range fire shot. Likewise, if a fire shot is made with 12-bore gun or carbine, then the plastic cartridge, which is normally used in such type of weapons may break into pieces due to the blast of gun powder and a plastic wad may also be found inside the entry wound, in the case of a close-range fire shot. It is, therefore, evident that in the case of a closer-ange fire shot, most of the abovementioned characteristics are present inside or around entry wound of the victim, however, the said characteristics may be missing in the case of long-range fire shot(s). Similarly when a sophisticated weapon is used or when smokeless powder is used in the bullet/cartridge, in that case the above-mentioned sign of blackening may not be present in or around the entry wound, though the fire shot was made from a close range. On the other hand, only blackening on the margins of the entry wound can occur even from a long-range fire shot(s). It happens because as mentioned earlier, when a tiger of a firearm is pressed and it hits that part of the bullet/cartridge, which contains gun powder, it results into the blast of the gun powder and due to the said blast, as well as, on account of the friction of the led bullet/pellets in the muzzle of the firearm, a led bullet/pellets become a boiling object and when it touches the skin of a human being (victim) then it burns the skin on the margins of the entry wound(s). It is further noteworthy that on account of oiling and presence of dust in a weapon/muzzle, the bullet may carry the mixture of said dust and oil on it and when it touches the skin of the victim, the mixture of dust and oil deposits around the entry wound due to which it may appear that there is blackening around the entry wound. In the medical jurisprudence the said blackening is described as a dirt hole. It is, therefore, clear that when there is only blackening on the margins of the entry wound of the victim then it cannot be held that only on account of the said blackening a fire shot was made from a close range or it was a contact wound because as mentioned earlier, in a contact or close range fire shot, apart from the blackening there should have also been burning and tattooing around the entry wound and in case the fire shot is made with a 12 bore gun or carbine from a close-range then a piece of wad/cartridge may also be found inside the entry wound. Moreover, as per medical jurisprudence the abovementioned signs (blackening, burning, tattooing), may be missing even in a close-range fire shot if the fire shot lands on that part of the body which is covered with clothes like, vest, shirt, coat etc because in that case, blackening, burning and tattooing may occur at the clothes of the victim. Therefore, presence or absence of above characteristics depends on the different circumstances of a case. On the other hand only blackening of the margins of the entry wound may occur from a long-range fire shot and even when the body of the victim is covered with clothes because the blackening of the margins of the entry wound occurs due to the touching of the bullet (a boiling object) with the skin at the entry wound of the victim. We are, therefore, of the view that as there is no burning, charring and tattooing and there is only blackening of the margins of the entry wound of the deceased which may occur even in the case of a long range shot, therefore, there is no substance in the abovementioned argument of learned counsel for the petitioner and the medial evidence fully supports the ocular account of the prosecution.

7. As per prosecution case, the motive behind the occurrence was that Qaisar (petitioner), was a vagabond, who used to tease the girls in the village. He was forbidden by the deceased from his abovementioned act and due to the said grudge, the petitioner committed the occurrence. Khadim Hussain (PW-1), while appearing in the witness box has further explained the motive while stating that the petitioner used to visit the house of one Slotra in the village due to which three (03) days prior to the occurrence, Ijaz Ahmad (deceased), slapped the petitioner. He admitted during his cross-examination that the abovementioned Slotra was never produced during the investigation of this case. No witness was produced by the prosecution, who had witnessed the occurrence of slapping by the deceased to the petitioner, which took place three (03) days prior to the occurrence. Under the circumstances, we have come to this conclusion that the alleged motive of the prosecution has not been proved in this case and the same has rightly been disbelieved by the learned High Court in para No.10, of the impugned judgment.

8. It is further noteworthy that the learned High Court in para No.11, of the impugned judgment has also disbelieved the recovery of pistol (P-1) and positive report of PFSA (Ex.PU), on the ground that according to the recovery memo (Ex.PK), the abovementioned pistol was recovered from the possession of the petitioner at the time of his arrest, whereas according to the statement of recovery witness Ghulam Shabbir ASI (PW-7), villagers who came at the spot at the time of occurrence had produced the abovementioned pistol to him. He further stated that he cannot tell the name of the villager who had produced the said pistol to him. In the light of above, the prosecution evidence qua the recovery of pistol and positive report of PFSA was rightly disbelieved by the learned High Court.

9. Although the prosecution evidence qua the recovery of pistol (P-1) and motive are disbelieved by us but if the said pieces of evidence are excluded from consideration even then their remains sufficient incriminating material/evidence on the record to prove the prosecution case against the petitioner. As mentioned earlier, the prosecution case against the petitioner has been proved through confidence inspiring and trustworthy evidence of Khadim Hussain (PW-10) and his evidence is fully supported by the medical evidence brought on the record through Dr. Mian Muhammad Tahir (PW-2), Dr. Shoukat Hussain (PW-3) and Dr. Muzammal Altaf (PW-8). The petitioner was arrested at the spot immediately after the occurrence and was handed over to the police.

10. Keeping in view all the aforementioned facts, we have come to this irresistible conclusion that the prosecution has proved its case against the petitioner beyond the shadow of any doubt. Learned counsel for the petitioner is unable to point out any misreading or non-reading of evidence or any illegality or material irregularity in the impugned judgment warranting our interference. Consequently this petition is dismissed and leave is refused. MH/Q-4/SC Petition dismissed.