CJDA 38

JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE

Criminal Appeal No. 373-J of 2012

(Muhammad Ayyaz Vs. The State etc.)

(C.S.R NO. 35-T of 2012)

Date of hearing: 15.01.2015
Appellant by: Mr. Maqbool Ahmad Qureshi, Advocate
defence counsel at state expenses.

State by: Mr. Khurram Khan, DPG

Sadaqat Ali Khan, J.: This single

judgment shall dispose of Criminal Appeal No. 373-J of
2012 filed by Muhammad Ayyaz appellant and C.S.R
No.35-T of 2012 sent by the learned trial court for
confirmation of the death sentence of the appellant
Muhammad Ayyaz or otherwise as both the above
stated matters have arisen out of the same judgment
dated 25.09.2012 passed by learned Special Judge
Anti-Terrorism Court No. II, Gujranwala according to
which the present appellant/convict was convicted and
sentenced as under:-
“(i) Muhammad Ayyaz was convicted under
section 302(b) PPC and sentenced to Death as
Tazir for committing Qatl-i-Amd of Muhammad
Ali constable (deceased) along with
compensation Rs.2,00,000/- payable to the legal
heirs of the deceased and in default thereof
further undergo SI for six months.
He was also convicted under section 7 (a) of
ATA 1997 and sentenced to death for causing
Qatl-i-Amd of Muhammad Ali constable
(deceased) along-with fine Rs.2,00,000/- and in
default thereof further undergo six months S.I

Whereas his co-accused namely Muhammad Ilyas and

Mst. Shaheen Akhtar were acquitted by the learned trial
court in case FIR No. 625 dated 30.06.2011 under
sections 302/353/186/34, 109 PPC read with section 7
ATA of 1997 police station, City Hafizabad.
2. The facts of the case have been stated by Javaid
Akhtar SI/complainant PW-9 in his statement before the
learned trial court and same statement is hereby
reproduced for narration of the facts: -
“On 29.06.2011, I alongwith Muhammad Ilyas ASI,
Muhammad Ali 3675/C, Muhammad Arshad
1663/C, Muhammad Ashraf 686/C, Muhammad
Ashraf 1207/C, Muneeb Ahmad 3276/C, Basharat
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Ali 4012/C on official vehicle bearing [Link]/1051

being driven by Muhammad Ishaq 804/C in
connection with conducting raid to arrest
Muhammad Ayaz son of Muhammad Ilyas accused
present in the Court visited police station City
Hafizabad, a P.O. of case FIR No.237/11, dated
01.04.2011, U/S 336/337-L(ii)/337-A(i)/148/149
PPC P.S. Noshera Virkan. We conducted raid
alongwith Muhammad Akram 73/C from P.S. City
Hafizabad, at 12:30 a.m. (night) on 30.06.2011, in
Mohallah Bahawalpura, knocked at the door, the
accused Muhammad Ayaz, Muhammad Ilyas and
Mst. Shaheen Akhtar present in the Court came out
by switching on the outer light. I asked Muhammad
Ilyas accused to get court arrest your son
Muhammad Ayaz accused being a P.O whereby
Muhammad Ilyas accused became infuriated who
asked his son Muhammad Ayaz to fire upon the
police as they tease them on daily basis and also
asked Mst. Shaheen accused to go inside.
Muhammad Ayaz accused fired at Muhammad
Ali/C with his 30 bore pistol hitting on his chest
who fell down. We took Muhammad Ali constable to
hospital but he succumbed to the injury in the way
to the hospital. The accused fled away by scaling
over the roofs of the houses.

3. After registration of the case, investigation started

and on completion of the same report under section 173
Cr.P.C was submitted in the trial court.
4. Learned trial court after observing legal
formalities provided under the Criminal Procedure Code
framed the charge on 12.11.2011 against the present
appellant/convict under sections 186/34, 353, 109,
302 PPC read with section 7 (a) of ATA 1997 to which
he pleaded not guilty and prosecution evidence was
summoned.
5. Prosecution produced Muhammad Ansar as PW-
1, Asghar Zaman ASI PW-2, Yasir Shaukat PW-3, Dr.
Ahsan Ahmad PW-4, Ihsan Elahi PW-5, Mukhtar Ahmad
PW-6, Masood Ahmad Bhatti Draftsman PW-7, Amir
Sohail PW-8, Javed Akhtar SI PW-9, Muhammad Ilyas
ASI PW-10, Tanveer Abbas SI PW-11 whereas PWs
namely Faheem Abbas constable, Sajjad Ahmad
constable, Amanat Ali constable, Arshad constable and
Basharat Ali were given up by the prosecution being
unnecessary and tendered in evidence last worn clothes
of the deceased [Link], application to SHO [Link], FIR
[Link]/1, postmortem examination report [Link],
recovery memo of pistol 30 bore [Link], site plan
[Link]/1, recovery memo of blood stained earth [Link],
recovery memo of empty bullets [Link], injury statement
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[Link], death report ExPJ, Copy of application for

Postmortem [Link], site plan [Link], application for
medical examination [Link], news clippings Mark-A to
Mark-G and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Ahsan
Ahmad PW-4 who stated that 30.06.2011 at 10:00 a.m,
he conducted the postmortem examination on the dead
body of Muhammad Ali constable deceased detail of
which is as under: -
“EXTERNAL EXAMINATION.
A dead body of young male, wearing police uniform
with police shoulder, colour (black shirt, white vest
and khaki pent), blood-stained and corresponding
hole of firearm present, signed and handed over to
police. Rigor mortis and postmortem staining was
at developing stage, uniform consisted of black
shoes, underwear, belt No. of 3675/GRW, flag also
handed over to police. Eyes closed, mouth semi
opened.
EXTERNAL INJURIES.
1. Lacerated firearm wound of entry 1 cm x 1
cm, going deep on the lower part of left
chest, 3 cm from midline towards left, 7 cm
from left nipple towards midline and 5 cm
from epigastrium towards wound, margins
were inverted corresponding with wound of
exit on the back of chest, size 1.5 cm x 1 cm
margins everted 10 cm from mid axillary
line, entry and exit wound at the same level
(Horizontal).
ON DISSECTION.
Pericardium, left lung, heart, main blood vessel
smashed and injured, left chest cavity full of blood.
CRANIUM & SPINAL CORD.
Scalp, skull, membranes, brain, vertebrae and
spinal cord, all intact and healthy.
THORAX.
Walls injured, left pleurae injured, left lung injured,
pericardium and heart injured, blood vessels
injured, larynx and trachea intact healthy, right
lung intact healthy.
ABDOMEN.
Walls, peritoneum, mouth, pharynx, esophagus,
diaphragm, stomach and its contents, pancreas,
small intestines and its contents, large intestines
and its contents, liver, spleen, kidneys right and
left, urinary bladder, organs of generation, all
healthy and intact.
UPPER AND LOWER LIMBS.
Upper lower limbs intact and healthy.
FINAL OPINION.
Death in my opinion was due to haemorrhage and
shock, as a result of injury No.1 which is sufficient
to cause death in ordinary course of nature. Injuries
were ante-mortem and result of firearm weapons”

7. On the other hand, statement of present appellant

Muhammad Ayyaz was recorded under section 342
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Cr.P.C who refuted the allegations so leveled against

him and has not opted to appear as a witness under
section 340(2) Cr.P.C and also did not produce oral
defence, and however in documentary evidence
produced documents i.e. [Link] to [Link] and in reply to
question “why this case against you and why the PWs
deposed against you?” the appellant Muhammad Ayyaz
replied as under:-
“I adopted the statement of my sister Mst. Shaheen
Akhtar and add that Noshehra Virkan police had no
valid ground or material in the shape of warrant of
arrest or proceedings U/S 87/88 [Link]. as the
original case i.e. FIR No.237/11 mentioned above
was false and baseless and had no legs to stand
coupled with the fact that they had not obtained
any warrant of arrest or proclamation and so the
launching of the raid by Javed Akhtar S.I. was an
illegal act.
As there had been a deal between
Muhammad Asif and the police from Noshera Virkan
and subsequently with the police of P.S. City
Hafizabad so they were working as equal partner in
the crime. It is also apparent from the record of the
case that there was absolutely no senior police
officer to check, oversee and supervise the glaring
lapses in the investigation of the instant case. It
appears that police of Noshera Virkan were
complacent that there would be no resistance and
they would accomplished their mission smoothly but
then an overzealous young blood Muhammad Ali
constable changed the entire situation since
morality and law was on our side so no one from
the thickly populated Mohallah did support the
tyrant i.e. Muhammad Asif and the police. I may
submit that Javed Akhtar S.I. with his party of 08
strong policemen including Muhammad Ali
constable, all armed with automatic firearms
launched a clandestine raid on my sister’s house in
pitch-dark at the dead of night without any legal
authority i.e. warrant of arrest or the proclamation
or search warrant. The prosecution has failed to
produce any record to justify their action before the
law or morality. I fully support the act of my sister
Mst. Shaheen Akhtar who acted in self-defense and
tried to repel the trespasser.
As regards the question why the PWs
deposed against us, I would submit that no God
fearing person from the locality supported the
outrageous act of the police which speaks volume
against them and so the only two eye witnesses at
the trial were the complainant Javed Akhtar SI and
his subordinate Muhammad Ilyas ASI who could
easily be labeled as accused”

8. After conclusion of the trial, learned trial court

convicted the present appellant Muhammad Ayyaz with
above stated sentences through judgment dated
25.09.2012. Hence this appeal.
9. Learned counsel for the appellant contended
that:-
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(i) the judgment of the trial court dated

25.09.2012 is against law and facts on the
file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its
case against the present appellant as there
are many major discrepancies in the
statements of the PWs and the learned trial
court has convicted the appellant on the
basis of surmises and conjectures;
(iii) it is contended that the impugned judgment
of the trial court is not maintainable in the
eyes of law;
(iv) lastly submitted that appeal may be
accepted and the judgement of the trial
court dated 25.09.2012 may kindly be set
aside and appellant may be acquitted.

10. On the other hand, learned DPG has vehemently

opposed the appeal and submitted that: -
(i) prosecution has proved its case beyond
any shadow of doubt against the appellant
with solid evidence and prayed for the
dismissal of the present appeal.
11. We have heard the learned counsel for the
parties and perused the record.
12. The detail of prosecution case as given by Javed
Akhtar SI complainant PW-9 has already been given in
paragraph No. 2 of this judgment, therefore, there is no
need to repeat the same.
13. Place of occurrence is a street of the house of
present appellant. Time of occurrence is 12:30 a.m.
(night) on 30.06.2011. Javed Akhtar SI PW-9 and
Muhammad Ilyas ASI PW-10 claim themselves to be the
eye witnesses of the occurrence and stated that on
30.06.2011 at about 12:30 a.m. (night) they in order to
arrest Muhammad Ayyaz the then proclaimed offender
of case FIR No.237 dated 01.04.2011 under sections
336/337-L(ii)/337-F(i)/337-A(i)/148/149 PPC Police
Station Naushera Virkan, District Gujranwala reached
at the door of the house of the present appellant and
knocked at the door. From the house Muhammad
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Ayyaz present appellant, Muhammad Ilyas and Mst.

Shaheen Akhtar (acquitted accused) came out by
switching on the outer light. Muhammad Ilyas
(acquitted accused) asked present appellant to fire upon
Police. Muhammad Ayyaz present appellant made fire
at Muhammad Ali constable deceased with his 30 bore
pistol which hit on his chest, he fell down after receiving
firearm injury and succumbed to the injuries in the way
to the Hospital. Both these witnesses alongwith
Muhammad Ali, Constable deceased went to arrest
Muhammad Ayyaz present appellant at his house the
then was proclaimed offender in case FIR No.237/2011
stated above. Hence the presence of these two PWs at
the place of occurrence at the time of occurrence cannot
be considered as un-natural or improbable. Both these
witnesses were cross examined at length, their
evidence could not be shaken during the process of
cross examination. They corroborated each other on all
material aspects of the case. The story narrated by
these PWs is quite natural, they had no grudge or ill will
to falsely implicate present appellant in this case. The
evidence of both these witnesses is straightforward,
trustworthy and confidence inspiring.
14. Medical evidence was furnished by Dr. Ahsan
Ahmad PW-4 who conducted postmortem examination
on the dead body of Muhammad Ali deceased on
30.06.2011 at 10:00 a.m. and observed following
injury:-
“Lacerated firearm wound of entry 1 cm x 1 cm,
going deep on the lower part of left chest, 3 cm from
midline towards left, 7 cm from left nipple towards
midline and 5 cm from epigastrium towards wound,
margins were inverted corresponding with wound of
exit on the back of chest, size 1.5 cm x 1 cm margins
everted 10 cm from mid axillary line, entry and exit
wound at the same level (Horizontal).”

15. He further stated that death in his opinion was

due to hemorrhage and shock as a result of above
stated injury which was sufficient to cause death in
ordinary course of nature. Injury was antemortem as a
result of firearm weapon. Probable time that elapsed
between death and postmortem was 8 to 16 hours
which is in line with the time of occurrence i.e. 12:30
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a.m.(night) on 30.06.2011. It is concluded that medical

evidence has fully supported the ocular account
furnished by above stated two eye witnesses.
16. Tanveer Abbas SI PW-11 I.O of this case stated
that on 30.06.2011 during spot inspection he recovered
crime empties from the place of occurrence which were
taken into possession through recovery memo [Link]
attested by Muhammad Ilyas PW-10. Muhammad Ilyas
ASI PW-10 stated that on 30.06.2011 he joined the
investigation of this case with Tanveer Abbas SI PW-11
I.O of this case and during spot inspection in his
presence I.O recovered crime empty P-12 from the place
of occurrence which was taken into possession through
recovery memo [Link] attested by him. Both these
PWs have not stated in their statements before the trial
court that parcel of crime empty P-12 had been
prepared at the spot after its recovery. Tanveer Abbas
SI PW-11 I.O of this case further stated that present
appellant was arrested on 01.07.2011 and on
08.07.2011 during interrogation he disclosed and led to
the recovery of 30 bore pistol P-11 from his house which
was taken into possession through recovery memo
[Link] attested by Amir Sohail PW-8. This witness
Tanveer Abbas SI PW-11 I.O of this case has not stated
that parcel of 30 bore pistol P-11 had been prepared at
the spot after its recovery. Prosecution is silent that
when parcels of crime empty P-12 and 30 bore pistol P-
11 were prepared. Considering statements of Tanveer
Abbas SI PW-11 I.O of this case and Muhammad Ilyas
ASI PW-10 to the extent of recoveries of crime empty P-
12 and 30 bore pistol P-11 stated above admittedly
parcels of crime empty P-12 and 30 bore Pistol P11
were not prepared at the time of their recovery which
makes the recovery doubtful. In view of the above
possibility cannot be ruled out of consideration that
crime empty P-12 had been sent to FSL after
manufacturing the same to procure positive report of
FSL [Link] which is not believable and same is hereby
discarded.
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17. Although we have discarded positive report of

FSL [Link] regarding matching of 30 bore pistol P-11
with crime empty P12 but if evidence of recovery of 30
bore pistol P-11 is excluded from consideration even
then prosecution has proved its case beyond shadow of
doubt against the present appellant through ocular
account furnished by above stated eye witnesses
supported by medical evidence as discussed earlier.
18. Adverting to the defence plea of the present
appellant Muhammad Ayaz he stated in answer to
question “why this case against you and why the PWs
deposed against you?” as under:-
“I adopted the statement of my sister Mst.
Shaheen Akhtar and add that Noshehra
Virkan police had no valid ground or
material in the shape of warrant of arrest or
proceedings U/S 87/88 [Link]. as the
original case i.e. FIR No.237/11 mentioned
above was false and baseless and had no
legs to stand coupled with the fact that they
had not obtained any warrant of arrest or
proclamation and so the launching of the
raid by Javed Akhtar S.I. was an illegal act.
As there had been a deal between
Muhammad Asif and the police from
Noshera Virkan and subsequently with the
police of P.S. City Hafizabad so they were
working as equal partner in the crime. It is
also apparent from the record of the case
that there was absolutely no senior police
officer to check, oversee and supervise the
glaring lapses in the investigation of the
instant case. It appears that police of
Noshera Virkan were complacent that there
would be no resistance and they would
accomplished their mission smoothly but
then an overzealous young blood
Muhammad Ali constable changed the entire
situation since morality and law was on our
side so no one from the thickly populated
Mohallah did support the tyrant i.e.
Muhammad Asif and the police. I may
submit that Javed Akhtar S.I. with his party
of 08 strong policemen including Muhammad
Ali constable, all armed with automatic
firearms launched a clandestine raid on my
sister’s house in pitch-dark at the dead of
night without any legal authority i.e.
warrant of arrest or the proclamation or
search warrant. The prosecution has failed
to produce any record to justify their action
before the law or morality. I fully support
the act of my sister Mst. Shaheen Akhtar
who acted in self-defense and tried to repel
the trespasser.
As regards the question why the PWs
deposed against us, I would submit that no
God fearing person from the locality
supported the outrageous act of the police
which speaks volume against them and so
the only two eye witnesses at the trial were
the complainant Javed Akhtar SI and his
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subordinate Muhammad Ilyas ASI who could

easily be labeled as accused”

He has also tendered the documents [Link] to [Link]

but he did not appear as a witness under section 340(2)
of [Link]. and also did not produce any oral defence
evidence. Considering above it is concluded that
appellant has failed to prove his defence plea and
learned trial court has rightly discarded his defence
plea with sufficient reasons.
19. Adverting to the quantum of sentence of the
present appellant we have noted some mitigating
circumstances in this case:-
i. We have discarded positive report of FSL
[Link] regarding matching of 30 bore
Pistol P-11 with crime empty P12 and
recovery of pistol P11 has become
inconsequential in this case.
ii. Javed Akhtar SI PW-9 (eye witness) stated
in FIR [Link]/1 that present appellant
was proclaimed offender in case FIR
No.237/2011 but stated in cross
examination that he did not investigate
case FIR No.237/2011 and prosecution has
not produced such FIR showing that
present appellant was accused in that
case. Further prosecution has also not
produced any non bailable warrants of
arrest, proclamation or order of the court in
which present appellant had been declared
as proclaimed offender. No other reason
has been disclosed by the prosecution to
raid the house of the present appellant. It
is not determinable in this case as to what
had actually happened before the
occurrence.
iii. It is a case of single fire shot and there is
no allegation of repetition of any firearm
injury against present appellant.
20. Reliance is placed on case “Subedar (Retd.) Abdul
Majeed and others v. Mulazim Hussain Shah and
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another” (2010 SCMR 641), on case “Muhammad Javed

and another v. The State and others” (2011 SCMR
1462) and on case “Latif Ullah v. The State” (2007
SCMR 994). Considering the peculiar facts of this case
we are of the view that death sentence awarded to the
present appellant is quite harsh.
21. It is well-organized principle by now that accused
is entitled to the benefit of doubt as an extenuating
circumstance while deciding his question of sentence,
as well. In this regard we respectfully refer the case of
‘Mir Muhammad alias Miro v. The State’ (2009 SCMR
1188) wherein Hon’ble Supreme Court has held as
under:-
“It will not be out of place to emphasize that
in criminal cases, the question of quantum
of sentence requires utmost care and
caution on the part of the Courts, as suck
decision restrict the life and liberties of the
people. Indeed the accused persons are
also entitled to extenuating benefit of doubt
to the extent of quantum of sentence”

22. It is settled by now that if court entertains some

doubt not sufficient for acquittal, judicial caution must
be exercised to award the alternative sentence of life
imprisonment. Reliance is placed on case “Ghulam
Mohy-ud-Din alias Haji Babu and others v. The State”
(2014 SCMR 1034) in which august Supreme Court of
Pakistan has observed at page 1043 as under:-
“A single mitigating circumstance, available in a
particular case, would be sufficient to put on guard
the Judge not to award the penalty of death but life
imprisonment No clear guideline, in this regard can
be laid down because facts and circumstances of
one case differ from the other, however, it becomes
the essential obligation of the Judge in awarding
one or the other sentence to apply his judicial mind
with a deep thought to the facts of a particular case.
If the Judge/Judges entertain some doubt, albeit
not sufficient for acquittal, judicial caution must be
exercised to award the alternative sentence of life
imprisonment, lest an innocent person might not be
sent to the gallows. So it is better to respect the
human life, as far as possible, rather to put it at
end, by assessing the evidence, facts and
circumstances of a particular murder case, under
which it was committed.”

23. For the foregoing reasons, the conviction of the

present appellant under section 302(b) PPC and under
section 7(a) of ATA 1997 is maintained but his sentence
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is altered from death to life imprisonment.

Compensation and fine awarded by the learned trial
court and sentences in default thereof are also
maintained. All these sentences shall run concurrently.
The benefit of section 382-B [Link]. is also given to the
appellant. Consequently, with the above said
modification in the sentences of Muhammad Ayaz
present appellant Crl. Appeal No.373-J of 2012 is
hereby dismissed. CSR No.35-T of 2012 is answered in
NEGATIVE and death sentence of Muhammad Ayaz
present appellant is NOT CONFIRMED.

(Abdul Sami Khan) (Sadaqat Ali Khan)

Judge Judge

M. Afzal*

Judgment Approved
for Reporting.