2026 PLP 466 (MLD)

Sardar Akbar Ali, J.

Ameer Hussain, appellant along with his co-accused Faqeer Hussain, Khizar Hussain, Irfan, Dastgeer alias Bhola, Anees, Muhammad Tanvir alias Chhami, Saif Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz faced trial in a private complaint titled Muhammad Nawaz Khan alias Tariq v. Ameer Hussain and others under sections 302/109/ 452/ 427/ 148/ 149, P.P.C emanated from case FIR No.1299/ 2007 dated 18.12.2007 under sections 302/ 109/ 452/ 427/ 148/ 149, P.P.C registered at Police Station Factory Area, District Sheikhupura for committing Qatl-e-Amd of Haji Asad Ullah Khan. Vide judgment dated 29.09.2018 passed by the learned trial Court, the appellant (Ameer Hussain) has been convicted and sentenced as under: Convicted under Section 302(b), P.P.C and sentenced to imprisonment for life as Ta zir for committing Qatl-e-Amd of Asad Ullah Khan (deceased) with a further direction to pay Rs.300,000/- (rupees three lakh) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased which was ordered to be recovered as arrears of land revenue and in further default whereof to further undergo simple imprisonment for six months. Convicted under section 452, P.P.C and sentenced to 7 years S.I. with fine of Rs.50,000/- and in default whereof to further undergo simple imprisonment for one month. Both the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Through the same judgment, Faqeer Hussain, Khizar Hussain, Irfan, Dastgeer alias Bhola, Anees, Muhammad Tanvir alias Chhami, Saif Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz, co-accused of the appellant were acquitted of the charges by extending them benefit of doubt. However, Ahsan and Imran were declared as proclaimed offenders.

2. Aggrieved by his conviction and sentence, Ameer Hussain (appellant) filed Criminal Appeal No.246877 of 2018 whereas complainant Khalid Mahmood Khan filed Crl. Revision No.244726 of 2018 for enhancement of sentence awarded to the appellant/ respondent. Since both the matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

3. The facts of the case, as enumerated in paragraph No.2 of the impugned judgment of the learned trial Court, are that:- Brief facts as narrated in complaint Ex.PB are that on 18.12.2007, at about 06.30 p.m. complainant along with his father Haji Asad Ullah Khan were sitting in a room of their Daira situated in village Messon, P.S. Factory Area, District Sheikhupura, when accused Ameer Hussain and Imran Mubarak armed with Kalashinkovs, Faqeer Hussain, Irfan and Anees armed with Guns .12-bore, Khizar Hussain and Dastgeer alias Bholla armed with Rifles .44-bore, Tanvir alias Chhimmi, Saif Ullah, Sarwar, Arsalan Mubarak and Mustafa alias Phani while armed with Sotas, Ehsan Mubarak armed with pistol and Razzaq Ali Imran entered the Daira through main gate. Accused Ehsan Mubarak raised Lalkara that they be taught a lesson for displaying banners and they be done to death. Ameer Hussain made a burst fire with his Kalashinkov which hit the door of room as a result of which, door was broken. Ameer Hussain made second burst with his Kalanshinkov which hit Haji Asad Ullah, who fell down on the ground. Thereafter, Imran Mubarak accused made a burst with his Kalashinkov which hit Haji Asad Ullah. The other accused persons indulged in reckless firing. A car bearing Registration No.LEF/1682 was parked inside the Daira and accused persons who were armed with Dandas broke the glasses and lights of the said car with their Dandas. Malik Kaleem Ullah and Abdul Rasheed who were standing outside Daira witnessed the occurrence in the lights of bulbs. Accused fled away while raising lalkars. Injured was shifted to Hospital where he succumbed to the injuries. This occurrence was committed on the abetment of Muhammad Nawaz. Motive of occurrence was placement of election banners.

4. During course of three consecutive investigations, the appellant was found innocent. Being dissatisfied by the police investigation, the complainant filed private complaint titled Muhammad Nawaz Khan alias Tariq v: Ameer Hussain, etc . The learned trial court after recording cursory evidence summoned all the accused to face trial. When charge sheeted, the accused/appellant pleaded not guilty and claimed to be tried, whereupon, the prosecution examined nine PWs and one CW. After recording the cursory statements of the complainant as well as his witnesses, the appellant and his co-accused were summoned to face trial. On closure of prosecution case, the appellant was examined under section 342, Cr.P.C. who refuted the prosecution evidence. However, he opted to appear in the witness box as required by section 340(2), Cr.P.C. and also to produce evidence in his defence and the trial ended in the terms as detailed in opening paragraph of this judgment.

5. I have heard arguments of learned counsel for the parties as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely.

6. Although as per contents of the FIR, the occurrence took place on 18.12.2007 at 06:30 p.m. and was alleged to have been seen by witnesses namely Muhammad Nawaz Khan, complainant (PW-01) and Malik Kaleem Ullah (PW-02) and the matter was reported to the police on the same day at 08:00 p.m., but postmortem examination on the dead body of Asad Ullah Khan, deceased was conducted on the next day i.e. 19.12.2007 at 06:05 a.m. i.e., with the delay of about 11 hours and 35 minutes. In the postmortem report (Exh.PM) of Asad Ullah Khan) Dr. Sohail Abid (PW-09) who conducted postmortem examination on the dead body had mentioned probable time between injuries and death was immediate and between death and postmortem was within 12 hours. Thus, there was a delay of 11 hours and 35 minutes in conducting autopsy on the dead body of Asad Ullah Khan (deceased). Keeping in mind that Muhammad Nawaz Khan, complainant (PW-01) was son of the deceased and Malik Kaleem Ullah (PW-02) was paternal nephew of the complainant and also the fact that both these witnesses of ocular account were the residents of the same vicinity, in such a situation if these witnesses were present at the place of occurrence and also witnessed the scene of occurrence then such an inordinate and unexplained delay would never have occurred. So it was also a case of delayed postmortem, which casts serious doubt and the inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for sending the police papers on the next day and what happened during the intervening period which delayed the postmortem examination for about 11 hours and 35 minutes. There is no explanation at all available on record for such delay. Such noticeable delay in post mortem examination of the dead body 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. I may refer here the case of Irshad Ahmed v. The State (2011 SCMR 1190), wherein the Hon ble Supreme Court of Pakistan has observed as under:- We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted. Similar view was also reiterated by the Hon'ble Supreme Court of Pakistan in cases titled as Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068) and Iftikhar alias Kharoo v. The State (2024 SCMR 1449).

7. As per prosecution s own case, on 18.12.2007 at about 04:00 p.m. when Qamar Nawaz, the son of Muhammad Nawaz Khan, complainant (PW-01) was affixing election banners, Muhammad Anees (since acquitted co-accused) forbid him, upon which an altercation took place between them and thereafter at 06:30 p.m. after about two hours and thirty minutes, the occurrence took place. As stated above that an altercation took place between Qamar Nawaz, the son of the complainant and Muhammad Anees, one of the co-accused since acquitted but it is very surprising as well as not understandable that instead of murdering said Qamar Nawaz, the accused persons committed the Qatl-e-Amd of Asad Ullah Khan, aged about 70/ 75 years, the grandfather of said Qamar Nawaz with whom no ill-will or any enmity has been brought on the record by the prosecution, whereas at the time of occurrence Muhammad Nawaz Khan, complainant (PW-01) was also at the mercy of the accused persons who did not cause him even a single scratch to him.

8. The entire case of the prosecution relies on the ocular account furnished by Muhammad Nawaz Khan, complainant (PW-01) who was son of the deceased and Malik Kaleem Ullah (PW-02) was paternal nephew of the complainant. On 09.02.2011 examination-in-chief of Muhammad Nawaz Khan, complainant was recorded as (PW-01) but he could not be cross-examined as he was murdered. Malik Kaleem Ullah, the other eye-witness appeared in the witness box as (PW-02). He was when confronted with (Exh.DA), he deposed as under: I stated before the police that car bearing Registration No.LEF-1682 was parked inside the Daira. Confronted with Ex.DA where it is not recorded. I stated before police that this occurrence was witnessed by me Abdul Rasheed and Haji Nawaz in the light of electric bulbs. Confronted with Ex.DA where it is not recorded I stated before the police that Ameer Hussain made burst with his Kalashnikov which hit the door of Baithak, as a result of which the door was broken. Confronted with Ex.DA where it is recorded, that Ameer Hussain has made fire with Kalashnikov on the door of Baithak and entered the room after breaking the door. I stated before the police that Ameer Hussain made second burst with his Kalashnikov which hit Haji Asad Ullah and he fell on the ground Confronted with Ex.DA where second burst has not been mentioned. I have stated before the police that deceased Haji Asad Ullah was present inside the Baithak. Confronted with Ex.DA where it is not so recorded. He further admitted in his cross-examination that he stated before the police that today at 06:30 p.m. on hearing hue and cry and firing he along with Abdul Rasheed went inside daira of Asad Ullah Khan and saw that all the accused were already present inside the daira. He further admitted that he stated before police that Ameer Hussain appellant after breaking the door entered into the room and made second fire which hit Asad Ullah Khan, deceased who was already present inside the Baithak. He further admitted that he had not tried to save himself when he saw assailants. Volunteer that he was not apprehending any danger from them and that at the time of occurrence, the door of room was not broken. He further admitted that he did not raise any hue and cry when he saw the assailants. In view of the above statements of the eye-witnesses, it appears that their statements can safely be termed as dishonest improvements.

9. There is no cavil to the proposition that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that improvements were made deliberately and with mala fide intention, the testimony of such witness become unreliable. The Supreme Court of Pakistan has observed in a plethora of judgments that the witnesses who make dishonest improvements in their statements on material aspects of the case in order to fill the lacunas of the prosecution case or to bring their statements in line with other prosecution evidence are not worthy of reliance. Reference in this respect may be placed on the judgments reported as Khalid Mehmood and another v. The State (2021 SCMR 810) and Rafaqat Ali v. The State (2022 SCMR 1107), Muhammad Akhtar v. The State (2025 SCMR 45) and Muhammad Nasir Butt and 2 others v. The State and others (2025 SCMR 662).

10. Ch. Zia-ud-Din Chishti, Draftsman who appeared as (PW-08) stated in the cross-examination that he had shown the presence of accused in the Baithak situated in the veranda and marks of fires were present on the walls of Baithak.

11. Ghulam Shabbir, Inspector (CW-01) in his cross-examination admitted that he had shown presence of Malik Kaleem Ullah (PW02) outside the gate in rough site plan. He further admitted that the place of occurrence was a haveli and occurrence took place inside a room of that haveli and when he visited the place of occurrence, the door of room was closed and he noticed holes on the door occurred as a result of firing. He further deposed that Asad Ullah Khan deceased was inside the room when firing was made and the assailants made firing from outside the door of that room. He further admitted that from inspection of crime scene it appeared that firing hit deceased while passing through the door of the room. It is also noticed that the Investigating Officer did not find any broken door at the place of occurrence. Scaled Site Plan (Exh.PG) shows that the occurrence took place in the room whereas the accused were shown to be present in the veranda and Malik Kaleem Ullah (PW-02) allegedly witnessed the occurrence on the other corner of the dera which was at a distance of ninety feet.

12. It is not believable that Malik Kaleem Ullah (PW-02) who was standing at a distance of ninety feet outside the main gate of the dera coupled with the fact that it was night time, how he witnessed the occurrence inside the room and even with detailed description of the accused with their specific names and roles.

13. From the above statements of both the PWs, I have come to the conclusion that the presence of both these PWs at the place of occurrence on the date and relevant time is doubtful in nature because they did not receive even a scratch during the incident. They did not make an abortive attempt to save the deceased from the clutches of appellant and his co-accused. Moreover, both the above said PWs have utterly failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time at the place of occurrence.

14. So far as the source of light in this case is concerned, the prosecution has introduced the source of light as bulb. Ch. Zia-ud-Din Chishti, Draftsman who appeared as (PW-08) has shown a bulb at point-G in scaled Site Plan (Exh.PG) but at the same time, I have noticed that the electric bulb was not taken into possession by the Investigating Officer. In such a background, the very identity of the assailants remains fishy. Reliance is placed on the cases reported as Haroon Shafique v. The State and others (2018 SCMR 2118). The Supreme Court of Pakistan in the case Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) has held as under:- . The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful.

15. Furthermore, it is also observed that the appellant was found innocent during three successive investigations. Reliance in this regard is placed upon the cases reported as Khalid Mehmood and others v. The State (2011 SCMR 664) and Sajjad Hussain v. The State and others (2022 SCMR 1540).

16. Malik Kaleem Ullah (PW-02) in his cross-examination admitted that: I lifted the deceased from place of occurrence and put him in a mini Pajero Jeep. At that time, my clothes became stained with blood. I produced those clothes before the I.O. Admittedly, neither any blood was collected from the jeep nor blood stained clothes of this PW were taken into possession by the I.O and no explanation in this behalf had been advanced by the prosecution. The stance of this PW was not only improbable, but also got no support from the record, thus, the prosecution has failed to prove the presence of the eye-witness at the time and place of the occurrence. Reliance in this behalf may be placed upon case titled Zafar Ali Abbasi and another v. Zafar Ali Abbasi and others (2024 SCMR 1773).

17. The disturbing part of the ocular account is that on the basis of the same set of evidence Faqeer Hussain, Khizar Hussain, Irfan, Dastgir alias Bhola, Anees, Muhammad Tanvir alias Chhami, Saif Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz, co-accused stood acquitted vide the same judgment. Muhammad Nawaz, co-accused was charged for abetting his co-accused for commission of murder of Asad Ullah, deceased and he was acquitted of the charge levelled against him by extending him benefit of doubt. Faqeer Hussain, Khizar Hussain, Irfan, Dastgir alias Bhola, Anees, Muhammad Tanvir alias Chhami, Saif Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz, co-accused were also charged under section 427, Cr.P.C. for causing damage to the car owned by the complainant and they were acquitted of the charge under section 427, Cr.P.C. as the prosecution badly failed to prove the said charge against them because the prosecution evidence in this regard was full of doubts and contradictions. Furthermore, the prosecution also badly failed to prove the presence of Faqeer Hussain, Khizar Hussain, Irfan, Dastgir alias Bhola, Anees, Muhammad Tanvir alias Chhami, Saif Ullah, Sarwar, Ahsan, Razaq Ali Imran and Muhammad Nawaz, co-accused at the spot at the relevant time and their taking part in the occurrence through confidence inspiring evidence. Reliance in this regard is placed on the cases reported as Pervaiz Khan and another v. The State (2022 SCMR 393) and Muhammad Iqbal v. The State and another (2024 SCMR 1133).

18. So far as medical evidence is concerned, Dr. Sohail Abid (PW-09) who conducted autopsy on the dead body of Asad Ullah Khan, observed following injuries on his dead body: INJURIES: Injury No.1:0.8. x 0.8 cm penetrating wound on the back of right lower chest, 2-cm lateral to midline, 30-cm below the right scapular margin. Injury No.2. 2 x 1.5 cm lacerated wound on front of left chest, 2-cm lateral to left nipple. Bullet piercing the skin, soft tissues, muscles, rupturing the mediastinum, rupturing the lower part of heart, left pleura, lung and crossing through and through and exited out through injury No.2. Fracture of posterior 11th and 12th ribs and anterior 4th and 5th left ribs were noted. Injury No.3:1.5 x 1 cm punctured wound on the medial part of upper thigh. Injury No.4: 6 x 1.5 cm lacerated wound on the front of left upper thigh. Injury No.3 was an entry wound while injury No.4 was exist wound. Track was in the muscular part, no bone damage occurred. Injury No.5: 0.8 x 0.8 cm punctured wound (entry wound) on medial part of left lower thigh. Injury No.6:2 x 2 cm lacerated wound on the lateral part of left upper thigh. (Exit wound). Fracture of shaft of left femur bone. Tattooing found on front of left thigh. Injury No.7: 4 x 1.5 cm grazing wound on front of left middle thigh. (Skin deep only). The aforesaid injuries are not in line with the specific roles attributed to the appellant. Suffice it to observe that medical evidence is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case and the murder in issue had remained un-witnessed and thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as Muhammad Saleem v. Shabbir Ahmad and others (2016 SCMR 1605).

19. As regards recovery of crime weapon from the appellant is concerned, during investigation nothing was recovered from his possession, therefore, recovery in this case is of no avail to the prosecution.

20. The motive in this case was a dispute over affixing of election banner by the complainant s son but as regards the motive, the prosecution has not produced any evidence to prove the same.

21. 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.

22. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance may be placed on the case law reported as Muhammad Akram v. The State (2009 SCMR 230), Abdul Samad v. State (2025 SCMR 639) and Muhammad Aslam v. The State (2025 SCMR 1240).

23. For the foregoing reasons, Criminal Appeal No.246877 of 2018 filed by Ameer Hussain (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 29.09.2018 passed by the learned trial court are set aside and he is acquitted of the charges levelled against him while extending him benefit of doubt. Appellant Ameer Hussain is present on bail. His surety is discharged from the liability owned by him.

24. So far as Crl. Revision No.244726 of 2018 is concerned, the same is hereby dismissed being devoid of any merit. JK/A-88/L Appeal allowed.