HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Crl. Appeal No.78438 of 2022
Ali Hassan and three others
Versus
The State and another
JUDGMENT
Date of hearing: 20.06.2025
Appellants by: Mr. Zafar Iqbal Mangan, Advocate.
Mr. Nisar Ahmad Virk, Deputy Prosecutor
State by:
General.
Mr. Mehram Ali Bali, Advocate along with
Complainant by:
Mr. Fatehyab Khan, Advocate.
Farooq Haider, J.:- This appeal has been filed by Ali Hassan,
Amjad Ali, Imran Ali and Asad Nazar (appellants) against the judgment
dated: 29.11.2022 passed by learned Additional Sessions Judge,
Lahore/trial court whereby in case arising out of F.I.R. No.1148/2019
dated: 09.04.2019 registered under Sections: 324, 379 PPC (subsequently,
offences under Sections: 452, 148, 149 PPC were added and then Section:
302 PPC was also added whereas offence under Section: 379 PPC was
deleted) at Police Station: Kahna, Lahore, appellants have been convicted
and sentenced as under:-
Crl. Appeal No.78438 of 2022 2
ASAD NAZAR
Convictions Sentences
Under Section: “Sixteen Year’s Rigorous Imprisonment” along with
302 (C)PPC compensation of Rs.500,000/- u/s 544-A Cr.P.C. to the
legal heirs of the deceased Fiaz which was ordered to be
recovered as arrears of land revenue and in default of
payment of compensation to further undergo S.I. for six
months.
Under Section: “Seven Year’s Rigorous Imprisonment” with fine of
452 PPC Rs.50,000/- and in default thereof to further undergo S.I.
for one month.
Under Section: “Three Year’s Rigorous Imprisonment”.
148 PPC
All the sentences of imprisonment were ordered to run
concurrently.
ALI HASSAN
Convictions Sentences
Under Section: “One Year Simple Imprisonment” along with
302 (C)PPC compensation of Rs.50,000/- u/s 544-A Cr.P.C. to the legal
heirs of the deceased Fiaz which was ordered to be
recovered as arrears of land revenue and in default of
payment of compensation to further undergo S.I. for one
month.
Under Section: “One Year Simple Imprisonment” with fine of
452 PPC Rs.50,000/- and in default thereof to further undergo S.I.
for one month.
Under Section: “One Year Simple Imprisonment”.
148 PPC
All the sentences of imprisonment were ordered to run
concurrently.
IMRAN ALI
Crl. Appeal No.78438 of 2022 3
Convictions Sentences
Under Section: “Three Year’s Rigorous Imprisonment” along with
302 (C)PPC compensation of Rs.50,000/- u/s 544-A Cr.P.C. to the legal
heirs of the deceased Fiaz which was ordered to be
recovered as arrears of land revenue and in default of
payment of compensation to further undergo S.I. for one
month.
Under Section: “Three Year’s Rigorous Imprisonment” with fine of
452 PPC Rs.50,000/- and in default thereof to further undergo S.I. for
one month.
Under Section: “One Year Rigorous Imprisonment”.
148 PPC
All the sentences of imprisonment were ordered to run
concurrently.
AMJAD ALI
Convictions Sentences
Under Section: “Two Year’s Rigorous Imprisonment” along with
302 (C)PPC compensation of Rs.50,000/- u/s 544-A Cr.P.C. to the
legal heirs of the deceased Fiaz which was ordered to be
recovered as arrears of land revenue and in default of
payment of compensation to further undergo S.I. for one
month.
Under Section: “Two Year’s Rigorous Imprisonment” with fine of
452 PPC Rs.50,000/- and in default thereof to further undergo S.I.
for one month.
Under Section: “One Year Rigorous Imprisonment”.
148 PPC
All the sentences of imprisonment were ordered to run
concurrently.
Benefit of Section: 382-B Cr.P.C. was also extended to all the
convicts.
It is pertinent to mention here that today learned counsel for the appellants
did not press rather withdrew this appeal to the extent of Ali Hassan,
Amjad Ali, Imran Ali (appellants No.1, 2 & 3, respectively), hence, it has
already been dismissed as withdrawn and not pressed to their extent vide
separate order of even date whereas same is alive only to the extent of
Asad Nazar (appellant No.4, hereinafter to be referred as “appellant”).
2. Briefly, the facts are that Abdul Rasheed (complainant/
PW-2) moved application (Ex.PB) for registration of case; for ready
reference, same is hereby scanned below: -
Crl. Appeal No.78438 of 2022 4
On the basis of aforementioned application (Ex.PB), First Information
Report (F.I.R./Ex.PU) was recorded on 09.04.2019 at Police Station:
Kahna, Lahore. However, subsequently, Abdul Rasheed (complainant/
PW-2) moved another application (Ex.PC), which is also scanned as
under: -
Crl. Appeal No.78438 of 2022 5
3. After investigation, report under section 173 Cr.P.C. was
submitted in the Court; appellant and his co-accused persons were sent for
trial; charge was framed against them to which they pleaded not guilty and
claimed trial whereupon prosecution evidence was summoned; after recording
of prosecution evidence, appellant and his co-accused persons were examined
under Section: 342 Cr.P.C. but they refuted the allegations levelled against
them; they did not appear as their own witness under Section: 340(2) Cr.P.C.,
however, produced some documents as evidence in their defence.
Trial Court after conclusion of trial has convicted and sentenced the
appellant and his co-accused persons (as mentioned above) through
impugned judgment dated: 29.11.2022.
Crl. Appeal No.78438 of 2022 6
4. Learned counsel for appellant has submitted that conviction
recorded and sentence awarded to Asad Nazar (appellant No.4) through
impugned judgment are against the ‘law and facts’ of the case; case was
registered with delay; ocular account is not supported by medical
evidence; recovery is inconsequential; prosecution has remained unable to
prove its case. Learned counsel for the appellant finally prayed for
acquittal of said appellant.
5. Learned Deputy Prosecutor General and learned counsel for
the complainant while supporting the impugned judgment submit that
prosecution has proved its case beyond shadow of doubt against Asad
Nazar (appellant No.4) through cogent and reliable evidence and prayed
for dismissal of appeal to his extent.
6. Arguments heard. Record perused.
7. It has been noticed that as per case of prosecution,
occurrence took place on 07.04.2019 at 10.30 a.m., however, case was
registered on 09.04.2019 at 5.25 p.m. but any plausible/convincing reason
to explain said delay is not available on the record, therefore, case has
been registered with unexplained delay. It is very much important to
mention here that as per own document of the prosecution i.e. injury
statement of Muhammad Fayyaz (now deceased of the case) brought on
record and got exhibited as Exh.PS (copy whereof is available at page
No.203 of the paper-book), Muhammad Fayyaz after becoming injured
during quarrel came to the Police Post who was sent with Shah
Muhammad Constable No.2028 for medical treatment and as a result of
medical examination, three injuries were mentioned in said injury
statement which is hereby scanned below:-
Crl. Appeal No.78438 of 2022 7
Perusal of aforementioned injury statement (Exh.PS) reveals that
Muhammad Fayyaz (then injured, now deceased of the case) himself
came to the Police-Post and after recording Rapt No.8 dated 07.04.2019 in
the Daily Diary (Roznamcha), his injury statement was prepared and he
was sent for medical treatment and issuance of medicolegal examination
certificate, so Rapt No.08 was the First Information Report regarding
occurrence within purview of Section 154 Cr.P.C. but same has not been
brought on the record which goes against the prosecution under
Art.129(g) of the Qanoon-e-Shahadat Order, 1984. It is relevant to
mention here that perusal of Exh.PS (injury statement) further reveals that
it is nowhere recorded in the same that Fayyaz was accompanied by
complainant or any other cited eyewitness when he came to police post.
He was got medically examined by Shah Muhammad constable, his
medicolegal examination certificate (Exh.PAA) is available at page No.215
Crl. Appeal No.78438 of 2022 8
& 216 of the paper-book, perusal whereof reveals that he was mentioned
as vitally stable by the Medical Officer Dr. Haris Siddiqui (PW-12) who
conducted his medicolegal examination.
Dr. Haris Siddiqui ( PW-12) in his cross-examination has clearly stated
that vitally stable means patient’s blood pressure, heart rate and
respiratory rate was within normal limits; in this regard, relevant portion
of his statement is hereby reproduced:-
“Vitally stable means patient’s blood pressure, heart rate and
respiratory rate was within normal limits.”
In spite of the fact that Fayyaz was vitally stable, he did not mention name
of the appellant as assailant and relevant portion of statement of PW-12 is
hereby reproduced:-
“In the brief history, there is no mention of name of any
assailants.”
It is relevant to mention here that occurrence took place on 07.04.2019 at
10.30 a.m., Fayyaz went to the Police Post, Rapt No.8 was also recorded
in this regard (which has not been brought on record). He was vitally
stable as mentioned by the doctor but case was even not registered on the
day of occurrence. Although there was no impediment in the way of
registering the case on the day of occurrence or at least recording
statement of Fayyaz regarding detail of assailants as well as occurrence
but any such statement of Fayyaz is not available on record. Though
application for recording statement of Fayyaz has been brought on record
(Exh.PT available at page No.204 of the paper-book) but it is relevant to
mention here that same was not filed on the day of occurrence or on the
day of medical examination of Fayyaz i.e. 07.04.2019 rather on
09.04.2019 at 5.30 p.m. and medical officer mentioned that patient was
not fit for recording statement at the moment which application is scanned
below for ready reference:-
Crl. Appeal No.78438 of 2022 9
So, prosecution could not provide any convincing justification that why
the statement of Fayyaz was not recorded on the day of occurrence on
07.04.2019 or on the following day of occurrence i.e. 08.04.2019,
therefore, on the one hand, case was registered with unexplained delay
whereas on the other hand, even statement of Fayyaz (then injured, now
deceased of the case) was not recorded on the day of occurrence or on the
subsequent day and this state of affair leads to the conclusion that First
Information Report has been recorded after consultation, deliberation as
well as inducement, procurement and engagement of witnesses as well as
tailoring story for the prosecution. By now it is well settled that First
Information Report (Crime report) is the cornerstone and foundational
element of the case of prosecution and if same has not been recorded
promptly after the occurrence, then superstructure raised on the basis of
said FIR in the form of case of prosecution is bound to fall; in this regard,
guidance has been sought from the case of “MUHAMMAD RAFIQUE
alias FEEQA versus The STATE” (2019 SCMR 1068),
MUHAMMAD ADNAN and another versus The STATE and others”
(2021 SCMR 16) and “GHULAM MUSTAFA versus The STATE”
(2021 SCMR 542).
It is also well settled that when there is delay in reporting the
incident to the police, then prosecution is under obligation to explain such
Crl. Appeal No.78438 of 2022 10
delay and failure to do that will badly reflect upon the credibility of
prosecution version and same is fatal for the case of prosecution. In this
regard, guidance has been sought from the case of “Mst. Asia Bibi versus
The STATE and others” (PLD 2019 Supreme Court 64); relevant
portion from paragraph No.29 of said case law is hereby reproduced: -
“There is no cavil to the proposition, however, it is to be noted
that in absence of any plausible explanation, this Court has
always considered the delay in lodging of FIR to be fatal and
castes a suspicion on the prosecution story, extending the benefit
of doubt to the accused. It has been held by this Court that a FIR
is always treated as a cornerstone of the prosecution case to
establish guilt against those involved in a crime; thus, it has a
significant role to play. If there is any delay in lodging of a FIR
and commencement of investigation, it gives rise to a doubt,
which, of course, cannot be extended to anyone else except to the
accused…”
hence, First Information Report in this case has lost its legal efficacy and
is of no help to the case of prosecution.
8. Ocular account in this case comprises of Abdul Rasheed
(PW-2) and Niaz Ali (PW-3). So far as Abdul Rasheed (PW-2) is
concerned, he is resident of Choongi Ammer Sidhu, Lahore, whereas
occurrence took at Aazad Town, Lahore, therefore, he was ‘chance
witness’ and in such circumstances, he was required to offer/explain valid
reason/cause to establish his presence at the stated time, at the place of
occurrence. Perusal of injury statement (Exh.PS) reveals that Fayyaz all
alone went to Police Post and name of Abdul Rasheed (PW-2) was not
mentioned in the same as accompanying him (i.e. Fayyaz). So much so,
his name was not mentioned in the medico-legal examination certificate
(Exh.PAA) as person accompanying the deceased when he was brought to
the hospital for medicolegal examination. No material is available on
record to establish presence of the complainant at the time and place of
occurrence, hence, his testimony is “suspect” evidence and cannot be
accepted without pinch of salt; guidance in this regard has been sought
from the case of “Mst. SUGHRA BEGUM and another vs. QAISER
PERVEZ and others” (2015 SCMR 1142) and relevant portion from
paragraph No.14 of said case law is hereby reproduced: -
“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,
Crl. Appeal No.78438 of 2022 11
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.”
Further guidance on the subject has been sought from the case of
“MUHAMMAD ASHRAF alias ACCHU versus The STATE” (2019
SCMR 652), “Mst. MIR and another versus The STATE” (2020 SCMR
1850) and “SARFRAZ and another versus The STATE” (2023 SCMR
670).
Abdul Rasheed (PW-2) even otherwise introduced dishonest
improvements in his statement before court and relevant portions are
reproduced infra:-
“It is not mentioned in Exh.PB that Imran accused was armed with
Danda and Asad with brick when they came.”
It is not mentioned in Exh.PB that Asad hit Fiaz with brick which
hit on left side of head.”
By now it is well settled that witnesses who introduce dishonest
improvement or omission for strengthening the case, cannot be relied; in
this regard, case of “MUHAMMAD ARIF versus The STATE” (2019
SCMR 631) and “KHALID MEHMOOD and another versus The
STATE and others” (2021 SCMR 810) can be advantageously referred.
Abdul Rasheed (PW-2) stated in his statement before court that accused
Bilal hit Fayyaz with butt of pistol on left temporal region of Fayyaz
whereas Asad hit Fayyaz with brick which hit on left side of head; in this
regard relevant portion of his statement is reproduced as under:-
“Accused Bilal hit Fiaz with Butt of his pistol on left temporal region of
Fiaz.”
“Asad hit Fiaz with brick which hit him on left side of head.”
(emphasis added)
Crl. Appeal No.78438 of 2022 12
Similarly, Niaz Ali (PW-3) also stated that Bilal accused gave butt blow
of pistol on left temporal region/Kanpatti ( )کنپٹیof Fayyaz and Asad
accused hit brick on left side of head of Fiaz; in this regard, relevant
portion of his statement is reproduced as under:-
“Bilal accused gave butt blow of pistol on left temporal
region/Kanpati of Fiaz and Asad accused hit brick on left side of
head of Fiaz.”
However, doctor Haris Siddiqi (PW-12) who medically examined Fayyaz
in injured condition, found following injuries on his body:-
“Injury No.1: An abrasion measuring 1 x 1.5 cm on left side of
face, 2.5 cm anterior to left ear with surrounding bruise.
Injury No.2: A lacerated wound measuring 2 x 0.2 cm on left
temporal region of head, 3.5 cm above left ear, bone not
exposed.
Injury No.3: Active bleed from left ear canal.
Injury No.4: Tender defuse swelling on posterior aspect of right
shoulder.”
(emphasis added)
The perusal of aforementioned injuries clearly reveals that injury
attributed to Bilal at temporal region/Kanpatti was found at the time of
medicolegal examination of Fayyaz on his body as injury No.2 whereas
injury No.3 was active bleed from left ear canal, and doctor (PW-12)
clearly stated during his statement before court that injury No.2 may lead
to injury No.3 and relevant portion of his statement is reproduced:-
“Injury No.2 may lead to injury No.3”
So, there was no injury on the head except injury on left temporal
region/Kanpati (injury No.2) which was just 3.5 cm above left ear and it
was attributed to Bilal co-accused of the appellant, so ocular account to
the extent of present appellant (Asad Nazar) that he hit brick on the left
side of head of Fayyaz could not be supported/confirmed by the medical
evidence. It is also relevant to mention here that Doctor (PW-12) also
stated that except injury No.3, the other injury may be caused due to
falling on the ground and relevant portion in this regard is hereby
reproduced:-
Crl. Appeal No.78438 of 2022 13
“Except injury No.3, the other injuries may be caused due to
falling on the ground.”
As far as Niaz Ali (PW-3) is concerned, suffice it to say that he was not
mentioned as eyewitness in the application for the registration of the case
(Exh.PB) as well as FIR (Exh.PU) and his ocular version to the extent of
appellant has not been supported/confirmed by medical evidence. It is not
out of place to mention here that Abdul Rasheed (complainant/PW-2)
made inconsistent statements on the one and same subject while recording
his evidence on oath during trial, therefore, for the valid reasons, trial
Court has excluded his testimony from consideration, and paragraph
No.14 of the impugned judgment can safely be referred in this regard and
the same is hereby reproduced for ready reference:-
“14. The FIR was registered on the application Exh.PB, submitted
by Abdul Rasheed (PW-2). As per FIR Exh.PU and application
Exh.PB, Fiaz (deceased) has small grocery shop in the Baithak of
his house where Bilal accused came and some altercation took
place. After sometime, Bilal accused alongwith other seven
persons including four accused persons present before the court
came at the shop, started abusing Fiaz, forcefully entered in his
house and beat him. Accused Bilal gave blow of pistol butt on Fiaz
and they also dragged Fiaz in the street and accused Asad gave
brick blow on the head of Fiaz who became unconscious and
remaining accused persons kept torturing him. During
investigation, the complainant submitted another application
Exh.PC in which he gave specific role to the present five accused
persons and there is no mention of remaining three persons. The
complainant appeared as PW-2 and while recording examination
in chief, he owned Exh.PB but during cross-examination, he
disowned the same stating that he did not submit application
Exh.PB and even he did not recognize his signature on Exh.PB.
Keeping in view this glaring contradiction, this court is of the
opinion that PW-2 has himself impeached his credibility and
hence, his testimony is excluded from consideration.”
(emphasis added)
While taking into consideration all the afore-mentioned reasons
collectively, ocular account produced by the prosecution to the extent of
Asad Nazar (appellant) has not been found as confidence inspiring or
truthful; therefore, same cannot be relied and is hereby discarded.
9. Though medical evidence has not supported ocular account
to the extent of present appellant yet it is trite law that medical evidence is
mere supportive/confirmatory type of evidence; it can tell about locale,
nature, magnitude of injury and kind of weapon used for causing injury but it
Crl. Appeal No.78438 of 2022 14
cannot tell about identity of the assailant who caused the injury; therefore,
same is also of no help to the prosecution in peculiar facts and circumstances
of the case, in this regard, cases of “SAJJAN SOLANGI versus The
STATE” (2019 SCMR 872) and “MUHAMMAD RAMZAN versus The
State” (2025 SCMR 762) can be safely referred and relevant portion
from latter case law is reproduced:-
“It is by now well settled that medical evidence is a type of
supporting evidence, which may confirm the prosecution
version with regard to receipt of injury, nature of the injury,
kind of weapon used in the occurrence but it would not
identify the assailant.”
10. So far as recovery of half-brick/brickbat at the pointing out
of appellant is concerned, suffice it to say that as per own case of
prosecution, occurrence took place on 07.04.2019 whereas said blood-
stained half-brick was recovered on 12.06.2019 after more than two
months of the occurrence and that, too, from vacant place. By now it is
well settled that human blood disintegrates within three weeks, therefore,
report of the Punjab Forensic Science Agency, Lahore (Exh.PBB)
regarding availability of human blood on the said brickbat is of no avail to
the prosecution and in this regard guidance has been sought from the case
of “FAISAL MEHMOOD versus The State” (2016 SCMR 2138) and
relevant portion from its paragraphs No.6 is hereby reproduced: -
“The report of the Chemical Examination showing the recovered
hatchet to be stained with blood is dated 20.12.2002 whereas the
report of the Serologist showing the origin of the blood available
on the recovered hatchet to be human blood is dated 25.05.2004.
It was scientifically impossible to detect the origin of the blood
after about two years of the occurrence because human blood
disintegrates in a period of about three weeks.”
(emphasis added)
Even otherwise, as per report of PFSA, Lahore (Exh.PBB, copy whereof
is available at page Nos.62-65). DNA profile obtained mentioned from
item No.1 (soil) and sub-item No.4.1 {swab(s) taken from the brick} are
partial and inconclusive, therefore, no comparison could be made with the
DNA profile obtained from sub item No.2.1 (stain section taken from
“qameez”). In this regard, relevant portions of said report are scanned and
pasted below:-
Crl. Appeal No.78438 of 2022 15
Therefore, said recovery of half brick is of no help to the case of
prosecution.
11. As far as motive is concerned, as per own case of prosecution
mentioned in application (Exh.PB) and FIR (Exh.PU), motive was
attributed to Bilal co-accused and not to the present appellant. Even
otherwise, when substantive evidence in the form of ocular account has
not been found as confidence inspiring, then motive on the one hand
cannot cure said defect of the case of prosecution whereas on the other
hand, it loses its significance because as alone, it cannot be made basis for
sustaining the conviction. It is also relevant to mention here that motive is
neither substantive nor direct or corroborative piece of evidence rather
only circumstance leading to the offence. In this regard case of “AKBAR
ALI versus THE STATE” (2007 S C M R 486) can be referred.
Furthermore, it is trite law that motive is the double-edged weapon and
can cut both sides and also could be equal reason for false implication of
the accused and in this regard case of “MUHAMMAD ASHRAF alias
ACCHU versus The STATE” (2019 S C M R 652) can safely be
referred. So, alleged motive is also of no help to prosecution against the
appellant.
12. It is well established principle of law that single
dent/circumstance in case of prosecution is sufficient for acquittal; in this
regard, case of “ABDUL GHAFOOR versus The STATE” (2022
S C M R 1527) can be safely referred.
Crl. Appeal No.78438 of 2022 16
13. Nutshell of the above discussion is that prosecution has failed to
prove its case against to the extent of appellant beyond shadow of doubt;
therefore, there is no need to discuss defence version.
14. In view of what has been discussed above, Criminal Appeal
No.78438/2022 to the extent of Asad Nazar (appellant No.4) is allowed;
conviction recorded and sentence awarded to Asad Nazar (appellant)
through impugned judgment dated: 29.11.2022 are hereby set-aside. He is
acquitted of the charge and be released from jail forthwith, if not required
in any other case.
(Farooq Haider)
Judge
APPROVED FOR REPORTING.
(Farooq Haider)
Judge
This judgment has been dictated,
pronounced, prepared and signed
on 20.06.2025.
Javed.S.
