Stereo.

H C J D A 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
Criminal Appeal No.105079-J of 2017
Muhammad Nazim versus The State etc.
Criminal Revision No.105522 of 2017
Muhammad Ilyas versus The State etc.
P.S.L.A. No.105523 of 2017
Muhammad Ilyas versus The State etc.

JUDGMENT
Date of hearing 01.02.2022
The Appellant by Hafiz Naimat Ullah, Advocate

The State by Miss Noshe Malik, Deputy Prosecutor

General.
The complainant by M/s Nasir-ud-Din Khan Nayyar and
Haider Mushtaq Pasha, Advocates.

====================================
MUHAMMAD AMJAD RAFIQ, J. Prosecution fixed the
allegation on the appellant Muhammad Nazim for murder of Rashid
Mehmood. Though about the death of the deceased an FIR has already
been registered bearing No.101 dated 25.04.2014 under sections 302 &
34 PPC at Police Station City Farooq Abad, District Sheikhupura but he
was tried in private complaint titled "Muhammad Ilyas vs. Muhammad
Nazim etc.” and was finally convicted and sentenced by the learned
trial court vide judgment dated 30.10.2017 as under:-

“Imprisonment for life under section 302 (b) PPC with compensation of
Rs.50,000/- under section 544-A Cr.P.C., in default thereof, shall further
undergo six months simple imprisonment. Benefit of section 382-B
Cr.P.C. was extended to him.”

2. Complainant has preferred Criminal Revision No.105522 of

2017 seeking enhancement of sentence of the respondent No.2 and
P.S.L.A. No.105523 of 2017 against acquittal of respondents No.2 to 4
therein which are also being decided through this common judgment.
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P.S.L.A. No.105523 of 2017
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3. On 25.04.2014 at 01:00 a.m. it was Mehndi ceremony of

Rashid Mehmood (deceased) when Muhammad Nazim (appellant),
Ehsan Anwar, Waqar Shahid and Imran while armed with their
respective weapons emerged there on two motorcycles. On raising
Lalkara by co-accused Ahsan, Imran and Waqar; appellant Muhammad
Nazim fired with his pistol hitting at right eye of Rashid Mehmood.
They attended Rashid Mehmood whereas accused succeeded to decamp
therefrom. However, Rashid Mehmood though was escorted to DHQ
Hospital but he succumbed to the injuries. Motive carried by
prosecution was that appellant Muhammad Nazim was in love with the
lady to whom Rashid Mehmood was going to marry and due to this
grudge he committed such unfortunate occurrence.

4. Initially regarding the occurrence FIR supra was registered

but the complainant being dissatisfied to the investigation filed instant
private complaint on 23.05.2015 after about thirteen months. After
cursory statements of witnesses four accused persons were summoned
to face the trial. Prosecution produced as many as four PWs and court
summoned eight CWs in the case. Main reliance of prosecution was on
the statements of complainant Muhammad Ilyas (PW-3), Muhammad
Sajjad (PW-4) for ocular account. Imran Shahid, Record Keeper of
DHQ Hospital appeared as (CW-5) for secondary evidence on behalf of
Dr. Muhammad Afzal (late) who conducted autopsy on the dead body
of deceased and Muhammad Akram S.I./I.O. appeared as (CW-6).
After close of prosecution evidence accused persons were examined
under section 342 Cr.P.C. wherein they have controverted all the
allegations levelled against them and pleaded their innocence, however,
in response to a question that why this case against you and why PWs
deposed against you? the relevant response of the appellant was as under:-
The PWs are closely related inter se and to that of deceased. PWs has (sic) falsely
deposed against me on asking of complainant. As a matter of fact, I had
established a cloth shop in Sheikhupura and my parents are alive. We are nine
brothers and sisters. Two days prior of marriage of Rashid, Numan and Rizwan
visited me for the purpose of hiring the eunuchs due to the reason of marriage of
Rashid as I had previously called eunuchs on the marriage of my cousins. Yaseen
etc. used to hire the eunuchs from Imran and many of is acquinters(sic) visited him
at the time of maghrib and we four including me, Numan, Imran and Rizwan
visited eunuchs who told us that less money is paid to them at Farooqabad
whereas more disturbance is created. Imran had given a guarantee to them and
satisfied them by making phone call to visit on his responsibility, thereafter we
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returned. Rashid, his brother Shahzad and Bhabi had also come Sheikhupura for
making purchases. We after finishing our job accompanied them alongwith Rizwan
and Numan. On the night of Medhi (sic) at about 09:30 P.M after closing my shop
I went to my home and after changing clothes and getting fresh went to Shadi Hall
where at 09:45 night I called Imran to come at marriage hall as such he also came
there. I also called Numan through phone call and inquired about his place of
residence who replied that he will also come to shadi hall and at that time people
were taking their meal, we also started taking meal. In the meanwhile Sajjad and
his elder brother came to us. Sajjad and his brothers (brothers of Rashid) came to
us and inquired that if we need anything more for eating, we informed him that we
have taken our meal and in the meanwhile their second brother who also came
there and inquired about meal. After taking the meal when we were free and after
freeing from shadi hall we went in adjoining house of Rashid who opened Bathik
for our sitting and at that time his cousins were also present there. We were taking
wine while sitting there which was brought by Rizwan and Ashfaq in the Bathik.
We drank the wine, Numan asked us to enquire about the eunuchs on phone who
have not arrived and Imran phoned the eunuchs by using mobile phone who came
there after 15 minutes. The eunuchs also came in Bathik and drink wine and the
stage was prepared in nearby tents and after reaching eunuchs started their
program which continued for about one and half hours. The servants of
complainant's shop brought local brand of wine and during the dancing I and
Numan again took liquor and became extreme state of intoxicating. Waqar was
sitting after interval of one chair with me. I took pistol from him and asked that I
may fire with it. I while standing my hand fired but bullet struck in the chamber
and when I was unbolting the bullets from the chamber the second bullet suddenly
went into the chamber and fire went off. All the people were dancing at that time
brother of Rashid came there and informed that his brother has received bullet
fire-shot. We run from there. I had no intention to harm anyone it was unfortunate
accident Rashid and we all were friends and I was celebrating along-with him and
others his Mehndi ceremony as evident by recorded movie clips saved in memory
card P-8. Complainant got lodged false FIR after concocting false story and
concealing true facts against me.”

After the close of trial, three accused stood acquitted whereas present
appellant was singled out and was convicted as forecited.

5. Learned counsel for the appellant states that prosecution has

failed to prove the presence of PWs at the crime scene which was a
nuptial rites function wherein accused/appellant has participated as a
friend; hitting of fire to deceased is a mystery remained unsolved.
Twisting of story by prosecution inched a further with consulted private
prosecution, full of flaws and replete with contradiction which was duly
exposed through video clips. There is no question to see the defence
version, until the prosecution successfully arrows the accused.
6. On the other hand, learned Deputy Prosecutor General has
supported the judgment with a view that there was no difference in
story of State case and one put forth through private prosecution.
Learned counsel for the complainant laid augmented and tight the circle
round the role of accused/appellant as made a close ranged
intentional fire carrying burning, which ruled out hypotheses of
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accidental fire; presence of PWs was acclaimed intact and natural in the
sense that it was the function of complainant party; memory card
without expert report carries no value.

7. Respective contentions of proponents were heard; record perused.

8. Prosecution commenced with two stances, the stance of conspiracy

hatched by Muhammad Nazim (appellant), Waqar Shahid, Ehsan
Anwar and Imran failed during the trial, such story has a direct
connection with the motive part of the occurrence. The witnesses who
confronted the accused person in the morning of 24.04.2014 were
Abdul Jabbar and Muhammad Bilal who happened to be the paternal
and maternal nephews of the complainant. Muhammad Bilal was not
produced during the trial; however, Abdul Jabbar entered appearance as
PW-1 and stated about the story of conspiracy that all four accused
persons told him that Rashid deceased is going to marry with the love
of Muhammad Nazim accused/appellant, therefore, he has to face the
music. He admitted during cross examination that he already knew the
fact that Mehndi ceremony of Rashid deceased is to be taken place on
the same evening. He admitted that Muhammad Nazim did not reveal
to him the name of girl with whom he was in love, however, witness
volunteered the name of girl but admitted that he did not reveal the
same to the Investigating Officer. He also admitted that upon hearing
the conspiracy and threat made by Muhammad Nazim he did not make
any call on 15 or reported the matter to the police and it is also admitted
fact that he did not inform the complainant at that very moment, the
activity to be done by Muhammad Nazim. Muhammad Ilyas,
complainant (PW-3) appeared into the dock admitted that house of
accused Imran is situated at a distance of one Furlong from his house.
He during examination-in-chief stated that on 26.04.2014 when they
were going to City Police Station, they found Waqar Shahid, Imran,
Ehsan Anwar and he identified them as such along with Muhammad
Nazim which fact shows that the complainant already knew the
unknown accused yet he opted not to nominate them. He during cross
examination admitted that he did not narrate the description of features
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of unknown accused persons; such facts which are in the very basis of
prosecution case were disbelieved by the trial Court casting a serious
doubt on the story of prosecution which later developed on the basis of
this conspiracy.

9. Presence of PWs at the crime scene was mainly hit while

contradicting them with some video clips saved in a memory card.
Admissibility of memory card as evidence in the case is a question of
prime consideration and novelty it maintains in the light of adverse
claims requires a thorough examination of relevant provisions of law
of evidence prevalent at the time and it has to be done before
reappraising the entire evidence. The memory card P-8 was carrying
clips of celebration on festive occasion of deceased’s nuptial rites,
touching some relevant facts of the case, it was produced by the
accused persons during investigation which was available in the case
bundle; copy whereof was provided to the accused u/s 265-C of
Cr.P.C. by the Court concerned in the State case pursuant to an order
of this Court passed in Criminal Revision No. 469/15 titled “Nazim
Ali Vs. Additional District & Sessions Judge Etc” which the
complainant has not attached with his private complaint; therefore,
investigating officer was directed to produce such memory card before
the court so that copy of the same could be delivered to the
complainant. This fact is incorporated in court’s order dated
15.10.2015 and by virtue of order dated 19.10.2015, copy of it was
delivered to the complainant. Such memory card was later used in the
evidence for the purpose of contradiction of facts stated by the eye
witnesses. Investigating officer has not sent it for forensic analysis nor
report is available in the case; a fact has also been brought on the
record during cross examination that one Malik Umair of Azad Movie
maker was making the movie of the function. Now Question to be
addressed in this case is as to whether such memory card can be used
to rebut the facts stated by the PW during his evidence. Rebuttal can
be in both ways, either to produce evidence by production of witnesses
or the documents by the party at response or through contradicting the
witnesses from the record of the case, either in the form of statements
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u/s 161 & 164 Cr.P.C or any previously recorded deposition which
was collected during investigation, affidavits, written statements, any
agreement/contract or a document in the form of deed, last but not the
least any electronic document. Such a document can only be used for
the purpose of contradiction if they were duly produced in an
investigative process and not otherwise. Reliance is on “Abdul Khaliq
versus the STATE” (PLD 2011 Supreme Court 554) & “YASIR IMRAN
alias YASIR ARAFAT vs. MUHAMMAD ASHRAF and another” (2014
MLD 337) and there would be no objection about exhibition of such
documents in the trial except statement u/s 161 Cr.P.C. Memory card
given to the accused u/s 265-C Cr.P.C can validly be demanded by the
accused in a case instituted on private complaint emanating from same
FIR. Reliance is on cases reported as “Muzaffar Khan v. the State and
others” (1977 P Cr. L.J 937); “Aziz-ur-Rehaman v. The State” (PLD 1987

Lahore 245) and “Muhammad Ashiq and 2 others V. Muhammad Anwar and 2
others” (2005 YLR 933).

10. Second thought for prosecution to produce every evidence that

could support or contradict the fact in issue is a rule dated back
creeped in to the criminal justice system in the interest of justice in
order to arrive at right conclusion was later transformed into a
mechanism of selecting relevant supportable evidence so as to fix the
criminal liability straight without any ambiguity, yet the material
evidence which though was collected from both the parties during
investigation if not selected by the prosecution for production before
the court, it becomes an unused material. Law has developed that
accused would have right to obtain record of such unused material so
as to use it for the purpose of contradiction. The Honourable supreme
Court has held in case reported as “Muhammad Idrees and another vs.
The State and others” (2021 SCMR 612) that only case dairies are
privileged under section 172 Cr.P.C, copy of which cannot be given to
the accused but the material collected and statements received or
recorded can validly be claimed. Once such material/document or
statement is delivered to the accused u/s 265-C Cr.P.C or u/s 162
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Cr.P.C or in response to an application made by the accused. Such

document/material or statement can be used for the purpose of
contradiction and if the accused returns successful to contradict a
material fact, burden to dislodge clouds cast over such fact lies on the
prosecution, which would only be discharged by producing material
evidence and not mere raising objection about authenticity of
document used for contradiction. In this case when memory card was
played in the court and facts were brought to contradict the statement
of PW-3, it was incumbent upon the prosecution to produce witnesses
who could say that memory card carrying facts do not relate to the
facts of the case or it should have been highlighted any clip therein to
contradict the acclaimed facts. Even another move maker or snaps of
nuptial rites could be produced to present an inconsistent hypothesis
but no such effort has been applied by the complainant in this case.
Question that memory card carries edited clips of facts was to be met
by the prosecution through production of an expert with opinion or
original movie clips. What requires from an accused is to create doubt
on prosecution case which can be done by introducing any alternate
hypothesis, authentic or supposed which could persuade the court to
disbelieve the case.

11. Accused have requested to the court in this case for production
of memory card by the complainant with his private complaint yet
despite notice he had not produced the same, therefore, accused were
well within their right to produce secondary evidence which practice is
recognized and allowed under Article 159 & 160 of Qanun-e-Shahadat
Order, 1984 which run as under;

159. Giving, as evidence, of document called for and produced on

notice: When a party calls for a document which he has given the other
party notice to produce and such document is produced and inspected by
the party calling for its production, he is bound to give it as evidence if the
party producing it requires him to do so.

This Article bound the calling party to produce the document in

evidence only if the other party requires him to do so which means that
if producing party does not require him to produce the document in
evidence, he still has option to produce or not to produce. What would
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happen if the party refused to produce the document against whom

subpoena was issued, is reflected as under;

160. Using, as evidence, of document production of which was refused

on notice: When a party refuses to produce a document which he has had
notice to produce; he cannot afterwards use the document as evidence
without the consent of the other party or the order of the Court.
Illustrations; A sues C on an agreement and gives B, notice to produce it.
At the trial A calls for the document and B refuses to produce it. A gives
secondary evidence of its contents, B seeks to produce the document itself
to contradict the secondary evidence given by A, or in order to show that
the agreement is not stamped. He cannot do so.

It is clear that in the event of failure to produce document, calling party

can give secondary evidence as per illustration attached to above
Article and party refusing to produce cannot use such document
afterward as evidence for the purpose of contradicting the secondary
evidence so produced except with the consent of other party or the
order of the Court. Complainant in this case has neither attempted to
seek consent of accused party to use all facts of memory card for the
purpose of contradiction of facts selected by the accused party in their
favour nor obtained any order from the court.

12. This Article has an application on both the proceedings, civil or

criminal; in this respect, a reference to observation is reproduced
which has been highlighted in para 19.6 of a book “Murphy on
EVIDENCE by Peter Murphy, 6th edition at page 520 which is as
under;
“The notice to produce does not compel the production of the original,
but if the original is not produced, its contents may be proved by
secondary evidence. This means that, unlike a subpoena duces tecum, a
notice to produce may be served even on the accused in a criminal case,
because in the absence of compulsion, there is no violation of the
accused’s privilege against self-incrimination. If the notice is not
complied with, not only may the document be proved by secondary
evidence, but the party failing to comply will not be allowed to rely upon
the original, if it should be inconsistent with the secondary evidence.”

In the same book about the status of tapes, photographs, films etc. was
also taken to light in para 19.22 at page 531 with following
observations;
“Although in modern law visual and audio recordings may be regarded
as documents, at least for some purposes they have a further, important
potential to supply matter of evidential value, because of the possibility of
direct perception. A tape or film may yield detail and nuances over and
above the mere text of matters recorded therein. Some detail of the
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circumstances of the recording, some visible characteristics, some

inflexion of the voice may put a different complexion on the recorded
matter, as compared with a mere transcript of the words spoken or the
things done. The sound or accent of a voice, the physical appearance of a
thing or person may resolve some ambiguity or clothe with meaning some
unexplained passage in the text. The recordings are, therefore, to that
extent real evidence and often have an effect similar to a view or the
production of a material object. To the extent that recordings are
admissible as real evidence, it is no objection to admissibility that the
evidence is meant to, and does in fact, convey information because it is
offered for direct observation by the court, and not as a species of
hearsay.”

Thus, it is held that this piece of evidence in the form of memory card
clips were validly brought on record being part of investigation record,
copy whereof has been supplied u/s 265-C of Cr.P.C. and could be
used for the purpose of contradiction as well as treating it a real
evidence as highlighted above. Real evidence is used as an explanatory
to substantive evidence; like case property in a case, admissibility
whereof is permissible under Article 71 of Qanun -e-Shahadat Order,
1984.

13. Coming back to reappraisal of evidence, it has been noticed

that there was a serious issue about the presence of witnesses at the
place of occurrence; the star witness for the prosecution is Muhammad
Ilyas (PW-3) being complainant, he was father of the deceased though
narrated the occurrence in examination-in-chief to make it confirmable
to the facts stated in the FIR as well as in his supplementary statement.
The complainant stated that he filed an application for registration of
FIR yet this fact needs to be evaluated in the light of evidence put forth
through his statement. He deposed during cross-examination that he
had written an application for lodging of an FIR at hospital where there
was a person from whom he got the application written. He further
deposed that his three sons were alive one of his son is police official,
all such sons duly participated in the Mehndi ceremony and after
unfortunate occurrence they all brought the deceased to the hospital.
He admitted that he had not asked any of his sons to write an
application for lodging of an FIR. He further admitted that Malik Abid,
Advocate is his son-in-law. He carried on to say that one of his sons is
middle pass while the other two are matriculate. He had not asked his
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sons to bring pencil and paper for writing the application and himself
approached the nurses for paper and pencil. Further deposed that
application was written at about 01:00 a.m. to 01:15 a.m. and finally
deposed as follows:-
“I could not tell with certainty up till today with certainty that from
whom an application for lodging of an FIR was written”

Such facts rather indicate his absence at the place where he was trying
to justify; deposing of facts in such a manner is understandable when in
later part of his cross-examination he categorically stated that he did not
sign any document at hospital. He further deposed that he did not take
his son to Farooqabad Hospital which was though near to District
Headquarters Hospital, Sheikhupura. Though he deposed that Malik
Abid, Advocate his son-in-law was not invited in the Mehndi ceremony
but in other breath, he deposed during cross-examination that Malik
Abid, Advocate after having a dinner went to the home, however, he
did not accompany us for the hospital. This is against the natural human
conduct of a person whose brother-in-law has been murdered and he did
not approach to the hospital which shows that there was something
fishy in the matter which restrained such witness to come forward to
depose. He also deposed about what was being done at the time of
Mehndi occasion which is as follows;
It is incorrect that at the time of Mehndi occasion, Ali, Salman and
Ashfaq brought liquor to celebrate the occasion. Further deposed that he
remained present with the deceased during the whole ceremony of Mehndi
and denied that accused Muhammad Nazim was present in such
ceremony. He also denied that Muhammad Nazim was throwing money
on eunuch, however, admitted that Muhammad Nazim remained at the
place of occurrence for only about a minute but failed to recollect the
colour of clothes worn by Muhammad Nazim accused. About position of
his son in Mehndi occasion, he deposed as under: -

“Deceased was sitting on the sofa and he was wearing a colourful

cloths/staler.”

He denied that Muhammad Nazim has thrown money over the groom
twice. He denied that one Ali was hugging accused Muhammad Nazim.
Volunteered that Muhammad Nazim was not present at the Mehndi
ceremony and also denied that Muhammad Nazim and his brother Nadeem
were invited at Mehndi function.

When this cross-examination was on, learned defence counsel requested

the Court to play the video clip which was saved in a memory card
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because such memory card was provided to the accused under section
265-C Cr.P.C. Memory card containing three clips were labelled by the
trial court as A, B & C which reflect following facts to shatter the
prosecution case as a whole.
At first Clip-C was played in the Court; at the 0:03-second of the clip, it
was observed that eunuch was seen dancing and accused Muhammad
Nazim was throwing money on them which fact was not denied by the
PW-3, however, volunteered that this is not his function. At 0:05-second,
one person was shown to the PW who stated that person who is taking a
cigarette is Muhammad Nazim accused/appellant. At 0:21-second it was
shown that a person wearing staller is deceased Rashid, whom the PW
identified as his son and stated that he has worn colourful staller. At 0:46-
second of the clip witness admitted that Rashid deceased was seen sitting
on the Sofa at the stage. On the same second, he admitted that his
deceased son is wearing functional staller and was sitting on the stage. At
01 minute 07-second, clip shown that a person wearing black Shalwar
Qameez was throwing money on the dancer and Rashid deceased was also
shown in the clip while wearing functional stall at stage. At about 02
minute of clip, he duly identified that dancer has placed his arms on the
shoulder of Muhammad Nazim. He duly identified Muhammad Nazim in
the clip at 02 minute 13-second facing camera while dancer is dancing
with another person. The relevant question was put to the witness that at
02 minutes 39-seconds, a sharp light is seen which was admitted by the
PW; according to the learned defence counsel this light was of firing. PW
continued to respond and said that he did not know that Malik Umair of
Azad Movie Maker was making the movie of the function. He deposed
that the function shown in the clips is not his function, however, admitted
that he was not present at functions. The most relevant question asked by
the defence was as under: -

“Learned counsel for defense duly clarified that whether in the clips
shown you were present, witness denied vehemently and submitted that
the clips shown is the result of manipulation and editing”

The most dangerous question put to the PW that at about 0:47-second of

clip a person wearing black Shalwar Qameez is coming and giving a glass
containing a drink to the dancer who at that time is taking. He was asked a
specific question what type of drink was offered to the dancer; witness
replied as under: -

“he was not present at that time and he could not exactly tell that what
actually was offered to dancer”

Some more facts are also relevant which were though denied by the PW
but admitted when clips were shown to him.
He denied that no carpet was used during his function but admitted that the
carpet which was shown in the clip is of red colour and it is also confirmed
that when Investigating Officer at the site has taken blood-stained earth by
cutting a piece of red carpet. He denied that Sofas were used in his function
but when clip was shown he admitted that three persons were sitting on
Sofa and person sitting in middle is the groom, his son deceased Rashid.

This witness has made dishonest improvements during deposition

before the Court. The above facts clearly state that he was not present at
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the place of occurrence because of two reasons, first his deposition

about conspiracy and presence of unknown accused at the crime scene
stood failed, second when he was confronted with the clips in the Court,
he admitted all those facts which he had denied in earlier part of his
examination. Admittedly, he was not present at the place of occurrence.

14. Muhammad Sajjad (PW-4) who came in rescue for prosecution

case has not stated any special reason about witnessing the occurrence
in the manner as set through the prosecution case. PW-4 is admittedly
the son of complainant, this witness has made certain improvements
which colour his statement as tutored one. Following are the facts
which make him untruthful witness as such, he deposed that only 10/15
persons were in the function whereas PW-2 stated about 100/125 guests
at the place of occurrence. He expressed his ignorance while stating that
he did not know who wrote the application for registration of case out
of three brothers or his brother-in-law who is an advocate. He further
deposed that he does not know whether the application was scribed in
the home or in the hospital or in police station. He went on to say that
he does not remember the time when Mehndi function was started and
when finished. Further deposed that he does not know the length and
width of tent and also not aware of width of stage. However, he
admitted that on the stage one piece of Sofa set containing three seats
were present, red colour carpet was also spread on the stage. Over all
this witness has not stated any specific facts which could help the
prosecution to built a case against the present accused/appellant.
Though both these witnesses apparently were not present at the place of
occurrence at the relevant time yet they attempted to justify their
presence. Such attempt is also under attack and falls to ground with the
statement of Ayub Khan PW-2 who stated that on 25.04.2014 he was
present alongwith Rana Ikram at Mehndi ceremony of deceased Rashid
when he received fire; for hitting of fire to Rashid, he stated as under: -

“Rashid was struck with fire. I alongwith Rana Ikram took Rashid to
hospital. We brought Rashid to Civil Hospital Sheikhupura. Rashid
succumbed to the injuries”
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This witness neither named any accused person rather used the word
Rashid was struck with the fire, he even did not mention presence of
PWs at the place of occurrence. From his statement a thought prevails
that during the function stray bullet hit Rashid but from whose pistol it
was not known. Learned counsel for the complainant states that accused
has admitted that he while being drunk was playing with the pistol and
one bullet hit to the deceased. Such fact is when examined in the light
of his statement under section 342 Cr.P.C., he stated that pistol went off
and after sometime somebody told that fire hit to Rashid. Even
otherwise, police at the crime scene have collected not only crime
empty but a live bullet as well which shows that somebody has used the
pistol which went struck and live bullet dropped and later another bullet
jacketed into the chamber, resulted into fire from the pistol accidently.
It is trite that prosecution has to stand on its own legs. Plea of the
accused is examined only when the prosecution is successful in proving
the case against the accused beyond reasonable doubt which the
prosecution has failed in this case.
15. More stress and emphasis were on forensic evidence whereby
pistol recovered from accused was found wedded with the crime empty
secured from the place of occurrence and alleged that all the formalities
were complete, therefore, this forensic support was claimed as a strong
piece of evidence against the accused/appellant. Naveed Ahmad 1759/C
(CW-4) when appeared stated that on 27.06.2014 accused led to the
recovery of pistol 30-bore from the outer wall of sheller near eastern
Railway Phatak. Examination of recovery memo shows that it was
recovered from the outer wall of Railway Phatak inside the bushes and
that too by digging the earth. Recovery witness admitted that there were
bushes of reeds at the place of occurrence. Recovery in an open place is
not of worth reliable for the prosecution. He admitted that fields were
situated near the place of recovery, people can easily walk through from
said fields. He admitted that he did not mention the colour of Shopper.
Further admitted that Thanedar did not call the owner as well as
employees of the Sheller. He stated that recovery was effected at 12.00
p.m., whereas investigating officer CW-6 did not depose about time of
Crl. Appeal No.105079 of 2017
Crl. Revision No.105522 of 2017
P.S.L.A. No.105523 of 2017
14

recovery, rather during cross examination deposed that he has shown

the arrest of accused on 24.06.2014. Such facts throw light that pistol
was planted; recovery in this case has not been proved, therefore,
positive report of Punjab Forensic Science Agency is not useful for the
prosecution even otherwise when the witnesses have not been found
present at the place of occurrence and their testimony is not believable,
mere on the basis of recovery appellant cannot be convicted.

16. Medical evidence was not furnished by the concerned doctor

who had conducted the postmortem examination rather one Imran
Shahid, record keeper appeared as CW-5, who stated that Dr. Afzal has
died and produced the original record of postmortem; oral statement
with respect to contents of document was not given any expert witness,
therefore, question of description of injury, its angle or trajectory and
presence of burning remained an unanswered story. Opinion of doctor
could only be given by the said doctor as per Article 71 of Qanun e
Shahadat Order, 1984 which says as under:-

Oral evidence must, in all cases whatever be direct, that is to say—

If it refers to an opinion or to the grounds on which that opinion is held, it must be
the evidence of the person who holds that opinion on those grounds:

Secondary evidence for doctor should have been given by another

doctor/expert in order to assist the Court to understand the nature of
injuries. Even postmortem was conducted on the next morning at 9.35
a.m. with a delay of around 8 hours without any plausible explanation.
No time of receiving the dead body in the mortuary is mentioned in the
postmortem report. Question of targeted or accidental fire could also
not been explained which was the job of expert only, prosecution has
not produced any expert for explanation. Therefore, medical evidence
has no support for prosecution.
17. Motive in this case though was alleged but no effort was made
to produce the relevant evidence though during cross examination PW-
3 stated that name of girl was Mariam and Umar Hayat was her father
who was cousin of the complainant and his brother-in-law as well yet
complainant did not produce him in the investigation nor Mariam
appeared before investigating officer and they also did not opt to depose
 Crl. Appeal No.105079 of 2017
Crl. Revision No.105522 of 2017
P.S.L.A. No.105523 of 2017
15

before the court. Muhammad Akram SI when appeared as CW-6 deposed

that he had inquired from Umar Hayat who stated that deceased was his
Bhanja, he and his daughter had no connection with Nazim accused and no
negotiation about demanding the hand of Mariyam was ever made by Nazim
accused. He also admitted that he never recorded the statement of Mariyam
or her family members to know their version about the motive part. Finally
concluded that in his investigation none of the Mohaladar appeared before
him in support of motive. Thus, prosecution has failed to prove motive of the
alleged occurrence.
18. Prosecution was obliged to prove the charge against the accused
through substantive evidence; mere on the basis of presumptions, neither the
conviction can be recorded nor sustained. It has been held by the august
Supreme Court in the case “State Vs. Ahmed Omar Sheikh” (2021 SCMR
873) that even if a single circumstance created a reasonable doubt in a
prudent mind regarding guilt of the accused, benefit of the doubt must be
granted to the accused and that the accused is entitled to the benefit of such
doubt not as a matter of grace, but as matter a matter of right.
19. Grouting all the facts and circumstances of the case, I am of the
considered view that the prosecution has failed miserably to establish charge
against the appellant, thus, instant criminal appeal is ALLOWED, the
conviction and sentence of the appellant is set aside and he is acquitted of the
charge by giving him benefit of doubt. He is in custody, he be released
forthwith if not involved in any other criminal case. The case property, if
any, be disposed of in accordance with law and the record of the learned trial
court be sent back immediately.
Crl. Revision No.105522/17 & P.S.L.A. No.105523/17

20. For the reasons recorded above, the criminal revision and
P.S.L.A. in hand are without any merit, the same stand dismissed in limine.

(Muhammad Amjad Rafiq)

Judge
Approved for reporting.

Judge
Sadheer Ahmad*