2026 PLP 891 (SCMR)

IRFAN SAADAT KHAN, J.

Iftikhar alias Puppi (the "petitioner") was tried and convicted alongside his co-accused Nasir Ali by the learned Additional Sessions Judge, Chichawatni (Trial Court) in the criminal case originating from the events narrated in FIR 430/2009 dated 08.12.2009, registered under sections 302(b) and 394 of the Pakistan Penal Code, 1860 ("P.P.C.") at Police Station, Saddar Chichawatni. Through its judgment dated 06.01.2017, the Trial Court convicted the petitioner-Iftikhar under section 302(b) of the P.P.C. and sentenced him to death for murder, alongside directing him to pay Rs. 500,000/- to the legal heirs of the victim under section 544-A of the Code of Criminal Procedure, 1898 ("Cr.P.C.") or in default of payment thereof to undergo simple imprisonment ("S.I.") for six months. He was further convicted under section 394 of the P.P.C. and sentenced to imprisonment for life and a fine of Rs. 50,000/- or in default of payment thereof to further undergo S.I. for six months. The petitioner's co-accused, Nasir Ali, was similarly convicted under section 302(b) of the P.P.C. but was sentenced to imprisonment for life as well being directed to pay fine of Rs. 200,000/- to the victim's legal heirs under section 544-A of the Cr.P.C.. Nasir was also convicted under section 394 of the P.P.C. and sentenced to the identical punishment of life imprisonment and fine of Rs. 50,000/- or in default of payment thereof to further under six months of S.I. All the sentences were ordered to run concurrently with the benefit of section 382-B Cr.P.C. being extended in both the accused's favour.

2. It is pertinent to note here that the Trial Court had earlier convicted and sentenced the accused vide judgment dated 19.04.2010 but upon appeal before the Lahore High Court, Multan Bench (High Court) that judgment was set aside and the case was remanded to the Trial Court for decision afresh since the Trial Court's earlier decision had not recorded a finding as to the guilt or innocence of Nasir Ali.1

3. Aggrieved by the judgment of the Trial Court convicting and sentencing them once again after remand, the petitioner and co-accused preferred an appeal2 before the High Court which was decided alongside the corresponding murder reference3 through the judgment dated 14.05.2018. The learned High Court upheld the conviction of the petitioner under section 302(b) of the P.P.C. but converted his death sentence into that of life imprisonment. His conviction under section 394 of the P.P.C. was similarly maintained but the sentence was reduced from life imprisonment to 10 years of rigorous imprisonment ("R.I."). The co-accused Nasir Ali's conviction under section 302(b) of the P.P.C. was however set aside and he was acquitted to that extent. Nasir Ali's conviction under section 394 of the P.P.C. was maintained but like the petitioner the sentence was reduced from life imprisonment to 10 years of R.I. The compensation and sentences to be served in default thereof for both the accused remained intact.

4. Aggrieved once again, the petitioner has preferred the instant Jail Petition; bringing us to the present day.

5. With a broad understanding of the charges facing the petitioner, we can now turn to the First Information Report regarding the incident lodged at Muhammad Yaseen's (the "complainant/PW-7") instance

4. He stated that on 08.12.2009, he and his brother Muhammad Ashraf (a forest guard) were riding motorcycle No. SLO-09-2545 from Divisional Office Chichawatni via LBDC towards Kotla Office when, at about 1:00 p.m., they were suddenly intercepted near Burji No. 9, Rajbah 13-L by three armed individuals who had emerged from the jungle and stopped them threatening to open fire. The three waylayers ordered the complainant and his brother Ashraf to hand over their motorcycle and all their belongings or suffer the consequences - during which the complainant party recognized the three individuals as i. Iftikhar alias "Puppi"; ii. Nasir Ali and; iii. Ishtiaq Hussain (who has since died), each armed with a pistol. On Ashraf saying he had identified them, Iftikhar fired with his pistol, striking the front side of Ashraf's head. Nasir and Ishtiaq then snatched a wallet (containing Rs. 2,000/- and the complainant's NIC copy) and a golden ring from the complainant as well as the motorcycle, and then fled. In that same moment Falak Sher and Mulazim Hussain had arrived, witnessing the entire incident, as Ashraf fell injured. This concludes the account in the FIR.

6. Grievously injured, Muhammad Ashraf was rushed to THQ Hospital, Chichawatni, from where he was referred onwards to Nishtar Hospital, Multan for better treatment. Muhammad Ashraf (the "deceased") succumbed to his injuries in hospital at 12:45 p.m. on 09.12.2009. The I.O was informed and the offence under section 302 of the P.P.C. was thus added to the allegations against the accused.

7. On the day of the incident i.e. 08.12.2009, after the Investigating Officer ("I.O."), Naveed Sarwar, recorded the complainant's written complaint and sent it onwards for the registration of the FIR; after he visited the place of occurrence and collected the samples of bloodstained earth and the bullet's empty casing/crime empty (Exh.PJ and Exh,PK respectively); after he visited the hospital where the deceased was first admitted; he finally returned to the place of occurrence in search of the accused. There, the I.O. came to know that a large number of people had been chasing the accused and that the accused were firing directly at the public in Square No.

191. The I.O. accompanied by a larger police force, eventually located the accused where it was alleged that the co-accused Nasir Ali "fired with his 12-bore Carbine which hit Ishtiaq Hussain his co-accused, who fell injured on the ground... [and] succumbed to the injuries on the spot". Ultimately, the petitioner-Iftikhar and his co-accused Nasir Ali were apprehended by the police. During this time, the Inspector/SHO Kassowal also arrived, and a separate FIR No. 374/2009 was registered under sections 302, 324 and 34 of the P.P.C. in respect of the co-accused Ishtiaq Hussain's murder. While the accused were already in police custody, they were arrested in the instant case on 19.12.2009 and the articles recovered during the course of police proceedings in case FIR No. 374/2009 were obtained along side the "Iqtabasat" by the I.O. for the instant case on 22.12.2009. The recoveries of the murder weapon and stolen motorcycle were also effected at the petitioner's instance on 16.12.2009 and 17.12.2009 respectively; the Forensic Science Laboratory Report comparing the murder weapon and crime empty was also obtained.

8. After the completion of the investigation, the police submitted the report under section 173 Cr.P.C. before the Trial Court which culminated into the decision supra challenged before the High Court and leading up to this Jail Petition. This brings us to the contentions of the learned counsel arguing the case.

9. Arguing on behalf of the petitioner, Mr. Rehan Iftikhar, AWSC, has entered appearance and stated at the very outset that the real culprit was not the present petitioner. He stated that the petitioner had moved an application against the police and, out of that grudge, the police falsely implicated him; that on the day of occurrence the petitioner was present at Lahore at his place of job; that the evidence of PW-7 and PW-8 contradicted each other on material points; that the medical evidence was not in line with the ocular account; and that the learned Trial Court had not appreciated the evidence in its true perspective, hence the charge was not proved against the petitioner. He therefore prayed for the petitioner's acquittal.

10. Arguing on behalf of the State, Ms. Memoona Ehsan-ul-Haq, DPG, Pb., has entered appearance and stated that the petitioner, co-accused Nasir Ali along with co-accused Ishtiaq (who has since died), acting in concert, committed the murder of Muhammad Ashraf through firearm injuries. She stated that the FIR was promptly lodged, that firearm weapons and the robbed articles were recovered from the accused, and that the learned Trial Court rightly convicted the petitioner after thrashing out the entire evidence produced. The learned counsel contended that, in the circumstances, the convictions called for no interference. She therefore prayed that the instant Jail Petition may be dismissed.

11. We have heard the learned counsel for the parties and have examined the record minutely.

12. In the same testimony, both during examination-in-chief as well as cross-examination, the complainant/PW-7 states that there was an exchange of hot words between the deceased-Ashraf and the petitioner-Iftikhar prior to Iftikhar opening fire, however, when he was confronted during cross-examination that no such exchange of hot words finds mention in his complaint to the police, the omission of this integral fact in the earlier complaint becomes clear. Likewise, the record of cross-examination reveals in regard such an exchange of hot words that complainant/PW-7 had mentioned in his complaint:

13. Likewise, when the testimony of Mulazim Hussain (PW-8) is examined, he does not mention that there was heated exchange of hot words between the deceased-Ashraf and the petitioner-Iftikhar. Therefore, the complainant has made improvements to his testimony rendering portions of it doubtful. Mulazim Hussain's (PW-8) testimony also recounts a similar series of events as described by the complainant/PW-7, however, there is one aspect that requires our attention. Mulazim Hussain (PW-8) states that he was making his way from his village alongside Falak Sher5 to Chichawatni via a route on which they crossed the place of occurrence. He conceded that his residence at his village was at a distance of 11 or 12 kilometers from the place of occurrence. Interestingly, he did not furnish any reason as to why he was heading to Chichawatni via the route, which would bring him to the place of occurrence. As such, he definitely is a chance witness. Likewise, Muhammad Yaseen complainant (PW-7) is a cultivator by profession. He was not an employee of the forest department. He stated that on the day and time of occurrence he was going from the divisional forest office to Kota office of forest via LBDC. The occurrence took place inside the forest of Block No.3 of Chakok whereas, the complainant was resident of Chak No.120/7-ER and as such he was also a chance witness. He has also not given any valid reason of his travel from on forest office to an-other forest office on the day and time of occurrence when he was not an employee of the forest department. He is therefore, a chance witness and his presence at the spot at the time of occurrence is not free from doubt. In regards chance witnesses, the judgment of this Court rendered in the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) is relevant and the applicable portion is reproduced as under: "

14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt." The suspicion cast on the account given by Muhammad Yaseen complainant (PW-7) and Mulazim Hussain (PW-8) is further more because they are close relative of the deceased, according to their own admission.

14. Adverting now to the recoveries statedly made by the police. The record shows that immediately upon visiting the locus in quo on 08.12.2009, the I.O. (PW-9) collected a .30-bore crime empty (P-13) from the place of occurrence and prepared its sealed parcel, taking it into possession vide: recovery memo Exh.PK; this was witnessed at the spot by Mulazim Hussain (PW-8). It was alleged against the petitioner that on 16.12.2009, while he was in police custody, he led to recovery of .30 bore pistol (P-4) allegedly used in the commission of the offence with three live bullets (P-5/1-3), which the I.O. seized vide: recovery memo Exh.PH, attested by Safdar Ali (PW-5) (Muhammad Zafar 725/C was also present but later given up). The crime empty (P-13) and the .30 bore pistol (P-4) recovered by police were dispatched to the Forensic Science Laboratory ("FSL") for comparison on 06.02.2010 by Zulfiqar Ali (PW-11). Here it is pertinent to highlight that the empty and the pistol which was said to have ejected the empty were sent to FSL for comparison together on the same day. This concurrent dispatch renders the recoveries of the empty and the pistol inconsequential and although the result of the FSL comparison was that the empty belonged to the pistol, that positive result cannot be relied upon.

15. Again, on the date of the accused's apprehension i.e. 08.12.2009, the golden ring (P-8) stolen from the complainant was allegedly recovered from the petitioner-Iftikhar during his personal search and was taken into possession vide: recovery memo Exh.PP which was attested by Mulazim Hussain (PW-8) (the other attestor, Muhammad Ali son of Karam Ali, was later given up). It is essential to note here that no independent witnesses were involved in the recovery proceedings. This failure is especially jarring since the consistent testimonies of Safdar Ali (PW-5), Mulazim Hussain (PW-8) and Naveed Sarwar (PW-9) state that a large group of members of the public had chased and encircled the accused, that members of the forest department were also present at the time of arrest; all of whom were available at the time of the accused's personal search. The same lapse is true for the recovery of the wallet containing Rs. 2000/-; the complainant's CNIC copy; a pistol; and live cartridges from the co-accused Nasir Ali upon his personal search. This fact renders the recoveries alleged against the petitioner-Iftikhar quite doubtful.

16. Then the most important recovery is that of the motorcycle allegedly stolen from the complainant and the deceased made jointly upon the petitioner-Iftikhar's and his co-accused Nasir Ali's pointation on 17.12.2009 vide: Exh.PQ. This recovery was once again attested only by Mulazim Hussain (PW-8) and Muhammad Ali son of Karam Ali who has also been given up. Although the duty to associate independent witnesses may be less onerous here considering that the motorcycle was recovered from within Block No. 6 of the "Jungle" and members of the public may not be readily available, this recovery alone is not sufficient to sustain the petitioner's conviction.

17. To conclude, it is a settled principle of law that where there is a doubt in the case against the accused, the benefit of that doubt must accrue as of right in the accused's favour. In keeping with this principle, it is clear that the improvements in the complainant/ PW-7's testimony; alongside the other eye-witness, Mulazim Hussain (PW-8), being a chance witness; the recoveries of the crime empty, firearm, gold ring, wallet (containing cash and CNIC copy) being inconsequential and doubtful, the case against the petitioner-Iftikhar is rife with doubt. By extending the benefit of that doubt it is evidence that the accused's is a case for acquittal. Reference in this regard may be made to the cases of Muhammad Hassan v. The State (2024 SCMR 1427); Abdul Samad v. The State (2025 SCMR 639); Tariq Parvez v. The State (1995 SCMR 1345); Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Imran v. The State (2020 SCMR 857).

18. In view of the foregoing findings, this jail petition is converted into an appeal and is allowed. The judgments of the Trial Court as well as the High Court are set aside, Consequently, appellant-Iftikhar alias Puppi is acquitted by extending to him benefit of doubt. The charges levelled against him have been disproved, and he shall be released from jail forthwith, if not required to be incarcerated in any other matter. These are the reasons for our short order dated 10.09.2025, which is reproduced below for the facility of reference: "For reasons to be recorded later, this petition is converted into an appeal and it is allowed. The petitioner is acquitted from the charge framed against him by extending the benefit of doubt in his favour. Consequently, the judgments of the High Court and the Trial Court dated 14.05.2018 and 06.01.2017 respectively are set aside. In case, the petitioner is not required to be incarcerated in any other matter then he shall forthwith be released." JK/I-16/SC Appeal allowed. 1 Vide: High Court judgment dated 03.10.2016 rendered in Criminal Appeal No.374-J of 2011. 2 Criminal Appeal No.989 of 2017. 3 Murder Reference No.12 of 2017. 4 At about 1:40 p.m. on 08.12.2009 i.e. the very day of the incident. 5 The other eyewitness "given up" by the prosecution.