The State vs Hafiz M. Akmal

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 11 of 2021 (The State Vs. Hafiz Muhammad Akmal)

Criminal Appeal No. 294 of 2021

(Haji Musheer Ahmad and three others Vs. The State and another)

JUDGMENT

Date of hearing: 19.12.2022.

Appellants by: Syed Zeeshan Haider, Advocate

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

Complainant by: Khawaja Muhammad Aslam, Advocate.

SADIQ MAHMUD KHURRAM, J. –Hafiz Muhammad Akmal son of

Shah Nawaz, Haji Musheer Ahmad son of Shah Nawaz, Muhammad Ajmal son of Shah Nawaz and Muhammad Akram son of Shah Nawaz (convicts) were tried by the learned Additional Sessions Judge, Ahmadpur East in the case instituted upon the private complaint titled “Muhammad Nazik Vs. Haji Musheer Ahmad and four others” (relating to F.I.R. No. 110 of 2020 dated 23.05.2020 registered at Police Station Dhur Kot, District Bahawalpur) in respect of offences under sections 302, 324,148 and 149 P.P.C. for committing the Qatl-i-Amd of Muhammad Asif son of Khadim Hussain (deceased). The learned trial court vide judgment dated 25.06.2021, convicted Hafiz Muhammad Akmal son of Shah Nawaz, Haji Musheer

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Ahmad son of Shah Nawaz, Muhammad Ajmal son of Shah Nawaz and Muhammad Akram son of Shah Nawaz (convicts) and sentenced them as infra:

Hafiz Muhammad Akmal son of Shah Nawaz: Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Asif son of Khadim Hussain (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Muhammad Asif son of Khadim Hussain (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment .

The convict was ordered to be hanged by his neck till dead.

Haji Musheer Ahmad son of Shah Nawaz:-

i)Simple Imprisonment for ten years under section 324 PPC and directed to pay fine of Rs. 100,000/- and in default of payment of fine, the convict was directed to undergo further six months of simple imprisonment.

ii)Simple Imprisonment for three years under section 337- F(iii) P.P.C. and directed to pay Daman of Rs. 50,000/- to Nazir Mai (PW-2) and in case of failure to pay the amount of Daman , the convict was directed to undergo further six months of simple imprisonment. All the sentences awarded to the convict were ordered to run concurrently by the learned trial court.

Muhammad Ajmal son of Shah Nawaz:-

i)Simple Imprisonment for ten years under section 324 PPC and directed to pay fine of Rs. 100,000/- and in default of payment of fine, the convict was directed to undergo further six months of simple imprisonment.

ii)Simple Imprisonment for three years under section 337- F(iii) P.P.C. and directed to pay Daman of Rs. 50,000/- to Muhammad Nazik (PW-1) and in case of failure to pay the amount of Daman , the convict was directed to undergo further six months of simple imprisonment. All the sentences awarded to the convict were ordered to run concurrently by the learned trial court.

Muhammad Akram son of Shah Nawaz:-

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Simple Imprisonment for two years under section 337- A(i) P.P.C. and directed to pay Daman of Rs. 10,000/- to Muhammad Nazik (PW-1) and in case of failure to pay the amount of Daman , the convict was directed to undergo further one month of simple imprisonment.

2.Feeling aggrieved, Hafiz Muhammad Akmal son of Shah Nawaz, Haji Musheer Ahmad son of Shah Nawaz, Muhammad Ajmal son of Shah Nawaz and Muhammad Akram son of Shah Nawaz (convicts), lodged the Criminal Appeal No.294 of 2021, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.11 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant, namely Hafiz Muhammad Akmal son of Shah Nawaz. We intend to dispose of the Criminal Appeal No. 294 of 2021 and the Murder Reference No.11 of 2021 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as stated by Muhammad Nazik (PW-1), the complainant of the case, are as under:- “Stated that on 23.05.2020 at about 07:00 PM, I alongwith my mother Nazir Mai and Muhammad Asif went for a khairat on motorcycle. When we reached near the house of accused persons near a Madarsa, the 5 persons came there. Those 5 persons were Hafiz Akmal, Muhammad Ajmal, Haji Musheer all armed with 30-bore pistol, Akram armed with Danda and one unknown person armed with Danda. The accused persons asked us that they would teach a lesson to us for quarrel of children. Akmal accused made a straight fire at Asif which landed in his belly. Muhammad Asif fell down on the ground. Ajmal accused made a straight fire which landed on my left leg which went through and through. Akram and unknown person had been inflicting Danda blows on my body. Haji Musheer accused made a straight fire which landed at left hip of my mother Nazir Bibi and went through and through. Then PWs Nadir Hussain and Mulazim Hussain came at the spot who rescued us form the accused persons. We went to BVH Bahawalpur. Deceased Asif succumb to the injuries and died. We came back at R.H.C. Uch-Sharif for post mortem of Muhammad Asif. Iqbal SI came there and recorded my statement and took my thumb impression on a blank paper. Then police went to my mother and my mother told the whole story.

After registration of case, when I got the FIR I came to know that I.O. did not recorded the time of occurrence as well as regarding the

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motorcycle. I asked the I.O. about these faults. He asked me not to worry and he would rectify these faults. Later on after investigation I came to know that I.O. of the case affected the recovery of Danda form Muhammad Ajmal who fired at me and he declared Haji Musheer as innocent, who made fire at my mother Nazir Mai. I.O. assured us to rectify the above stated mistake. One Nasir is relative of accused persons is driver of PS Dhorrkot. He managed the I.O. of the case and I.O. of the case has ruined our case. Being dissatisfied of investigation, I moved private complaint EX-PA before the court. Accused persons be punished.”

4.The accused were summoned to face trial in the case instituted upon the private complaint titled “Muhammad Nazik Vs. Haji Musheer Ahmad and four others” (relating to F.I.R. No. 110 of 2010 dated 23.05.2020 registered at Police Station Dhur Kot, District Bahawalpur) in respect of offences under sections 302, 324,148 and 149 PPC for committing the Qatl-i-Amd of Muhammad Asif son of Khadim Hussain (deceased). The learned trial court framed the charge against the accused on 05.01.2021, to which the accused pleaded not guilty and claimed trial.

5.The complainant of the case in order to prove his case got recorded statements of as many as three witnesses. The ocular account of the case was furnished by Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3)..

6.The learned trial court also examined as many as seven witnesses as court witnesses. Riaz Ahmad, A.S.I. (CW-3) stated that on 23.05.2020, he got recorded the formal F.I.R (CW-3/E-1). Muhammad Arif 985/H.C. (CW-4) stated that on 23.05.2020, the Investigating Officer of the case , handed over to him two sealed parcels said to contain blood stained earth and empty shells of the bullets collected from the place of occurrence and on 31.05.2020 he handed over the two sealed parcels said to contain blood stained earth and empty shells of the bullets collected from the place of occurrence to Muhammad Iqbal, SI (CW-7) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore.

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Muhammad Arif 985/H.C. (CW-4) further stated that on 29.05.2020, he received a sealed parcel said to contain a pistol from the Investigating Officer of the case , which on 09.06.2020, he handed over the said sealed parcel to the Investigating Officer of the case, for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Jabbir Ali, 690/C (CW-5) stated that on 23.05.2020, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Jabbir Ali, 690/C (CW-5) further stated that on 29.05.2020, the appellant namely Hafiz Muhammad Akmal got recovered pistol (P-

12), which was taken into possession through recovery memo (CW-5/H), whereas on the same day, the appellant namely Muhammad Ajmal got recovered a Sota (P-

6)which was taken into possession through recovery memo (CW-5/J), whereas the appellant namely Muhammad Akram got recovered a Sota (P-7) which was taken into possession through recovery memo (CW-5/K). Muhammad Rafique, Patwari (CW-6) prepared the scaled site plan of the place of occurrence (Exh.CW-6/M).

Muhammad Iqbal, SI (CW-7), investigated the case from 23.05.2020 till 10.06.2020, arrested the appellants namely Hafiz Muhammad Akmal son of Shah Nawaz, Haji Musheer Ahmad son of Shah Nawaz, Muhammad Ajmal son of Shah Nawaz and Muhammad Akram son of Shah Nawaz, on 27.05.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

7.The learned trial court also examined Dr. Muhammad Shahid (CW-1), who on 23.05.2020 was posted as Medical Officer at R.H.C. Uch Sharif and on the same day examined Muhammad Asif son of Khadim Hussain (then injured later deceased). Dr. Muhammad Shahid (CW-1), on examining Muhammad Asif son of Khadim Hussain (then injured later deceased), observed as under:-

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“ Description of injuries.

Injury No.1 A lacerated burnt wound 01 CM X 0.5 CM on the lateral side of right hip, 25.CM from umblicus. Edges of wounds were inverted and margins were burnt. Probe goes into the abdomen. It was the wound of entrance.

Injury No.2 A lacerated wound of 01 cm X 01 cm on the left side of abdomen, 07 CM away from umblicus. Edges were averted with irregular margins. It was the wound of exit.

Note: Patient was referred to BVH emergency for treatment and final opinion will be given after receiving surgical notes.

Possibility of fabrications. No.

Probable duration of injuries. Fresh

Kind of weapon. Fire arm.”

On the same day, Dr. Muhammad Shahid (CW-1) also conducted the post mortem examination of the dead body of the deceased, namely Muhammad Asif son of Khadim Hussain. Dr. Muhammad Shahid (CW-1) on examining the dead body of the deceased namely Muhammad Asif son of Khadim Hussain, noted the same injuries present on the dead body of the deceased ,which he had observed earlier while medically examining Muhammad Asif son of Khadim Hussain (then injured later deceased), and gave his final opinion with regard to the cause of death of the deceased as under:-

FINAL OPINON.

After going through external and internal postmortem examination I am of the opinion that injury No.1 and 2 were collectively, cause of death in this case. It is due ot excessive loss of blood due to rupture of iliac arteries and hypovolemic shock..”

On the same day i.e 23.05.2020, Dr. Muhammad Shahid (CW-1) also medically examined the prosecution witness namely Muhammad Nazik (PW-1). Dr.

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Muhammad Shahid (CW-1), on examining Muhammad Nazik (PW-1), observed as under:-

“ Description Of Injuries

Injury No.1 A lacerated wound 02.5 CM X 0.5 CM, skin deep on the left side of mid of head. Wound margins were irregular and bone was not exposed.

Injury No.2 (i) A lacerated wound 0.5 CM X 0.5 CM on the lower side of left knee joint, 05 CM below knee joint. Wound margins were irregular and edges inverted.

It is the wound of enterance (sic)

(ii)A lacerated wound 0.5 CM X 0.5 CM on the lower lateral inner side left knee joint. Wound edges were everted.

No.3. Complain of pain in the whole body.

Note: Patient was refer (sic) to BVH emergency for treatment and final opinion will be given after receiving surgical notes.

"according to the surgical notes No.209680-494-75 dated 25.06.2020. patient named Muhammad Nazik was received in emergency room No.16 with history of fire arm injury. On examination there was a lacerated wound measuring about 0.5 Cm X 0.5 CM on the anterior except of left leg about 05 CM below knee joint. An other wound rounded lacerated wound measuring about 01 Cm X 01 Cm on posterio lateral aspect of left knee joint. Patient was conscious and vitally stable.

X-ray of left leg was advised. No bony injury seen on X-ray. Neuro vascular status was intact at the time of injury.

Possibility of fabrications. No.

Probable duration of injuries. Fresh

Kind of weapon. Injury No.2 Fire arm. Injury No.1 and 3 blunt weapon.”

The learned trial court also examined Dr.Qurat ul Ain (CW-2) , who on 23.05.2020 was posted as Woman Medical Officer at R.H.C. Uch Sharif and on the same day examined the prosecution witness namely Nazir Mai, (PW-2). Dr.Qurat ul Ain (CW- 2, on examining Nazir Mai, (PW-2), observed as under:-

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“Description of injuries.

Injury No.1 A lacerated wound on medial side of right buttock, 1-0.5 half CM, muscle deep.

Note: Patient was refer (sic) to BVH emergency for treatment and final opinion will be given after receiving surgical notes.

"Regarding surgical notes No.209681-401-50 dated 23.05.2020.

Patient named Nazir Bibi was received in emergency room NO.16 with history of fire arm injury. On examination there was a lacerated wound measuring about 1 x 1 Cm on the right buttock on medial side. Patient was fully conscious and vitally stable. X-ray of pelvis and right leg were advised. No bony injuries seen on x-ray. Neuro vascular status was intact at the time of injury. Wound wash and wound debridement was done and A.S.D. placed. The patient was admitted in ward and discharge on 26.05.2020 in satisfactory position. I received surgical notes from BVH Bahawalpur on 25.06.2020.

Possibility of fabrications. No.

Probable duration of injuries. Fresh

Kind of weapon. Fire arm.”

8.On 28.05.2021, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence, the report of the Punjab Forensic Science Agency, Lahore regarding the analysis of the blood-stained earth (Exh.

P.D.) and the report of Punjab Forensic Science Agency, Lahore (Exh. P.E.)

regarding the comparison of the empty shells of the bullets and the pistol (P-12) recovered from the appellant namely Hafiz Muhammad Akmal.

9.After the closure of prosecution evidence, the learned trial court examined the appellants namely Hafiz Muhammad Akmal son of Shah Nawaz, Haji Musheer Ahmad son of Shah Nawaz, Muhammad Ajmal son of Shah Nawaz and Muhammad

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Akram son of Shah Nawaz under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, the appellants replied that they had been involved in the case falsely and were innocent.

The appellants, namely Hafiz Muhammad Akmal son of Shah Nawaz, Haji Musheer Ahmad son of Shah Nawaz, Muhammad Ajmal son of Shah Nawaz and Muhammad Akram son of Shah Nawaz, opted not to get themselves examined under section 340(2) Cr.P.C, and did not adduce any evidence in their defence.

10.At the conclusion of the trial, the learned Additional Sessions Judge, Ahmadpur East convicted and sentenced the appellants as referred to above.

11.The contention of the learned counsel for the appellants precisely is that the whole case is fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellants in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye- witnesses for being present at the place of occurrence was without any justification.

He further contended that the statements of the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) were not worthy of any reliance. The learned counsel for the appellants further submitted that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.

12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution has proved its

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case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Hafiz Muhammad Akmal. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3).

The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the pistol from the appellant namely Hafiz Muhammad Akmal and the report of the Punjab Forensic Science Agency, Lahore (Exh. P.E.) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case.

Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant, prayed for the rejection of the appeal.

13.We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General along with the learned counsel for the complainant and, with their assistance, perused the record and evidence recorded during the trial.

14.The whole prosecution case against the appellants revolves around the statements of the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3). The prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) were related to each other and the deceased. Their relationship with the deceased is on record. The deceased namely Muhammad Asif son of Khadim Hussain was the

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paternal cousin of the prosecution witness namely Muhammad Nazik (PW-1), whereas the prosecution witness namely Nazir Mai, (PW-2) is the mother of the prosecution witness namely Muhammad Nazik (PW-1) and the prosecution witness namely Nadir Hussain (PW-3) , the paternal cousin of the prosecution witness namely Muhammad Nazik (PW-1). It was also brought on record during cross- examination that none of the prosecution witnesses namely Muhammad Nazik (PW-

1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) had any enmity with either of the appellants, which could have motivated them to depose falsely against the appellants. The prosecution witness namely Muhammad Nazik (PW-1) during cross-examination, stated as under:-

“ Asif deceased had no dispute with accused Muhammad Akmal or any other accused. Similarly I or my mother had no dispute of any kind with any of the accused..”

Similarly, the prosecution witness namely Nazir Mai, (PW-2) , during cross- examination , stated as under:-

“ We had no dispute of any kind with any of accused persons.”

We have noted that the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3), in a very natural and forthright manner, narrated the incident and gave each and every detail of the same , necessary to prove the relevant facts. The prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) explained that they, along with the deceased, had arrived at the place of occurrence on the motorcycle (P-11), when they were attacked by the appellants. The prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) also gave the individual roles of the appellants acted out by them during the occurrence and remained consistent with

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regard to the same. The motorcycle (P-11), which had been used by prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and the deceased to arrive at the place of occurrence, was found present at the place of occurrence, at the time of the visit of Muhammad Iqbal, SI (CW-7) , the Investigating Officer of the case, at the place of occurrence and Muhammad Iqbal, SI (CW-7) took the said motorcycle (P-11) into possession through recovery memo (Exh.CW-7/N).

The prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) also explained that the injured and the deceased were taken to the hospital immediately. The statements of the prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) prove that they were present at the place of occurrence at the time of occurrence and that they had also witnessed the occurrence. The defence could not prove that the said witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) were not present at the place of occurrence, at the time of occurrence. We have scrutinized the evidence of the prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) and find that they were proved to be truthful witnesses and implicit reliance can be placed upon their statements as against the appellants. There is no evidence on record that the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) were motivated by any enmity to depose against the appellants. As mentioned above, no animus between the appellants and the prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) existed prior to the occurrence, which could have interested prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) to get the appellants involved in this occurrence falsely. The prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and

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Nadir Hussain (PW-3) were subjected to cross-examination but the defence failed to make cracks in their deposition and the veracity of their statements has been proved.

The prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) by no stretch of the imagination, can be declared as chance witnesses, as pressed time and again by the learned counsel appearing on behalf of the appellants, disregarding the fact that the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) were injured, because they have rendered a plausible justification for their presence at the place of occurrence.

During the course of investigation, Muhammad Iqbal, Si (CW-7), the Investigating Officer of the case, also collected the blood stained earth from the place where the blood of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and the deceased had fallen and took the same into possession through recovery memo (Exh. P.B.). The report of the Punjab Forensic Science Agency, Lahore (Exh. P.D.) establishes that the said blood taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site plan (Exh. CW-7/P.) as prepared by Muhammad Iqbal, Si (CW-7) and the scaled site plan of the place of occurrence (Exh. CW-6/M) as prepared by Muhammad Rafique, Patwari (CW-6). There is no such material available on record which would indicate the substitution of the appellants in the case with the real culprits.

Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relatives let off by involving innocent persons. In this context, reference can usefully be made to the case of “Irshad Ahmad and others v. The State and others” (PLD 1996 SC 138).

The appellants have not been able to establish any animosity of the complainant or the police for their false involvement in the case. The prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3), in a

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straightforward manner, held the appellant namely Hafiz Muhammad Akmal responsible for the Qatl-i-Amd of Muhammad Asif (deceased) and held the appellants namely Haji Musheer Ahmad son of Shah Nawaz, Muhammad Ajmal son of Shah Nawaz and Muhammad Akram son of Shah Nawaz for causing injuries to the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW- 2). Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony. In this regard, reference is made to the judgment in the case titled as “Ijaz Ahmad v. The State” (2009 SCMR 99) wherein the August Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."

15.We have also noted that the presence of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) at the place of occurrence cannot be doubted as they had the stamp of injuries on their bodies. On 23.05.2020, Dr.

Muhammad Shahid (CW-1) medically examined the prosecution witness namely Muhammad Nazik (PW-1) and observed a lacerated wound, of the dimension of 02.5 cm X 0.5 cm, present on the left side of middle of the head of Muhammad Nazik (PW-1) and also observed a lacerated wound, of the dimension of 0.5 cm x 0.5 cm present on the lower side of left knee joint of Muhammad Nazik (PW-1), which was an entry wound having its exit on the lower lateral inner side left knee joint of Muhammad Nazik (PW-1) and also noted that Muhammad Nazik (PW-1) complained of pain in his whole body. Dr. Muhammad Shahid (CW-1), immediately referred Muhammad Nazik (PW-1) to B.V. hospital, Bahawalpur, where

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Muhammad Nazik (PW-1) was operated upon. Dr. Muhammad Shahid (CW-1) also opined that there was no possibility of fabricating the injuries observed by him on the body of Muhammad Nazik (PW-1). Dr. Muhammad Shahid (CW-1) also opined that the injury observed by him on the lower side of left knee joint of Muhammad Nazik (PW-1) had been caused by the use of a firearm weapon, whereas the other injuries had been caused by the use of a blunt-edged weapon. Dr. Muhammad Shahid (CW-1) also opined that the injuries suffered by Muhammad Nazik (PW-1) had been received by him “freshly”, just before his medical examination. This opinion of Dr. Muhammad Shahid (CW-1) regarding the duration of injuries is also conversant with the time of occurrence as given by the witnesses. The learned trial court also examined Dr.Qurat ul Ain (CW-2), who on 23.05.2020 examined the prosecution witness namely Nazir Mai, (PW-2). Dr.Qurat ul Ain (CW-2), on examining Nazir Mai, (PW-2), observed a lacerated wound present on the medial side of the right buttock of Nazir Mai, (PW-2). Dr.Qurat ul Ain (CW-2), immediately referred Nazir Mai, (PW-2) to B.V. hospital , Bahawalpur , where Nazir Mai, (PW-

2)was operated upon. Dr.Qurat ul Ain (CW-2) also opined that there was no possibility of fabricating the injury observed by her on the body of Nazir Mai, (PW- 2). Dr.Qurat ul Ain (CW-2) also opined that the injury observed by her on the medial side of the right buttock of Nazir Mai, (PW-2) had been caused by the use of a firearm weapon. Dr.Qurat ul Ain (CW-2) also opined that the injury suffered by Nazir Mai, (PW-2) had been received by her “freshly”, just before her medical examination. This opinion of Dr.Qurat ul Ain (CW-2) regarding the duration of injury is also conversant with the time of occurrence as given by the prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3). During the course of arguments, the learned counsel for the appellants vehemently argued that the opinion of Dr.Qurat ul Ain (CW-2) that the injury

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observed by her on the medial side of the right buttock of Nazir Mai, (PW-2) had been caused by use of a firearm weapon was not correct as she had not mentioned the aperture of the wound which she had observed on the medial side of the right buttock of Nazir Mai, (PW-2), however, we have noted that the said argument of the learned counsel for the appellants is untenable as Dr.Qurat ul Ain (CW-2) not only mentioned that there were corresponding holes present on the Shalwar of Nazir Mai, (PW-2) but also answered to the query of the learned trial court that holes in the Shalwar could not have been caused by use of any blunt-edged weapon. The relevant portion of the statement of Dr.Qurat ul Ain (CW-2) in this regard reads as under:- “Corresponding holes were present on the Shalwar and a hole on back of shirt, mild blood spots on clothes.

Court question. Whether correspondent hole on the clothes may occur from blunt weapons? Answer. No it is not possible. ”

As the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) were proved to have been injured during the occurrence, hence, their presence at the place of occurrence, at the time of occurrence, cannot be doubted.

With this realization in mind, the failure of the defence to impute any reason to the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2), for making a false statement against the appellants, makes the statements of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) worthy of implicit reliance. The august Supreme Court of Pakistan in the case of “Khadim Hussain vs. The State” (P L D 2010 Supreme Court 669) has held as under:-

“We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be

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substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17.”

Reliance is also placed on the case of “KHADIJA SIDDIQUI and another Vs. SHAH HUSSAIN and another” (P L D 2019 Supreme Court 261) wherein the august Supreme Court of Pakistan observed that implicit reliance could be placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye-witness namely Sofia Siddiqui of that case.

16.We have also valued the fact that, as mentioned above, the occurrence in question had admittedly taken place in daylight at about 07.00 p.m on 23.05.2020 and the same, therefore, could not have gone un-witnessed nor could have the culprits escaped unobserved. As it was a daylight occurrence and because of the fact that the appellants were well known to the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) , the question of the misidentification of the appellants even does not arise. It is also a fact of the prosecution case that there was nothing in the line of sight of the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) and the place where the appellants were present., which obstacle could have obstructed the view of the prosecution witnesses namely Muhammad Nazik (PW-1), Nazir Mai, (PW-2) and Nadir Hussain (PW-3) and prevented them from witnessing the appellants committing occurrence. Moreover, the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-

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2)were themselves injured by the appellants and therefore could not have missed identifying the accused, causing them injuries. Reliance is placed on the case of Noor Sultan and others Versus The State (2021 SCMR 176) wherein it has been held as under:-

“The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution.”

17.The learned counsel for the appellants has laid much stress on the argument that the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-

2)and Nadir Hussain (PW-3) did not explain in their statements that from the place of occurrence , they were first taken to the R.H.C. Uch Sharif and from there they were referred to B.V. hospital Bahawalpur and after the death of Muhammad Asif, they again came back to the R.H.C. Uch Sharif. The learned counsel for the appellants has argued that according to the Medico Legal Examination Certificates of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and the deceased namely Muhammad Asif, they were brought to the hospital on 23.05.2020, at about 08.50 p.m and examined by the Medical Officers around the same time, however, while recording the proceedings on the oral statement (Exh.CW-3/E) of the prosecution witness namely Muhammad Nazik (PW-1) , the Investigating Officer of the case namely Muhammad Iqbal, SI (CW-7) did not mention these facts. This argument of the learned counsel for the appellants also has no value for the fact that it was during the cross-examination of the prosecution witness namely Muhammad Nazik (PW-1) that these facts were got explained and during cross-examination Muhammad Nazik (PW-1) explained that they were first

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taken to the R.H.C. Uch Sharif and from there they were immediately rushed to B.V.

hospital as they were in serious medical condition. The prosecution witness namely Muhammad Nazik (PW-1) , during cross-examination , explained as under:- “ As soon as we reached at the place of occur (sic) within one minute were sustain fire arm injury. Firing was made on us from one side. While going to R.H.C. Uch-Sharif Police Station Dhorkot does not fall on the way.

Police Station Dhorkot is situated on one side.

The doctors only gave us first aid and referred us to BVH Bahawalpur.

Doctors injected pint to deceased Asif. We remained at R.H.C. Uch- Sharif for about 15/20 minutes. Police Station Uch Sharif is situated adjacent to R.H.C. Uch Sharif.” (emphasis supplied)

Dr. Muhammad Shahid (CW-1) also explained during cross-examination, as under:- “I issued Initial M.L.C. of complainant Muhammad Nazuk at about 09:00 p.m, and M.L.C. of Muhammad Asif (deceased) at about 08:50 p.m. On the injury statement of deceased Muhammad Asif there was no rappat number or F.I.R. number was written.

At the time of first examination of deceased Muhammad Asif in injured condition, there was no dressing or cloth on any of injury. He was referred to BVH, Bahawalpur immediately due to serious condition ” (emphasis supplied)

Muhammad Iqbal, SI (CW-7) , the Investigating Officer of the case of the case, in his statement before the learned trial court also explained the relevant circumstances and got recorded as under:-

“ Stated that, on 23.05.2020 I was posted as a homicide S.I. at PS Dhorrkot.

On the same day I was on patrolling alongwith other police officials. After receiving information, that the occurrence took place at Mouza Bohrran, while the injured persons were at R.H.C. Uch Sharif. 1 went to R.H.C. Uch

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Sharif. At R.H.C. Uch Sharif prepared injury statements of injured persons Muhammad Asif as Ex-CW-1/B-1, Nazuk as Ex-CW-1/A-1 and Mst Nazira Mai Ex-CW-2/D-1. Muhammad Asif injured was referred to BVH Bahawalpur due to his critical condition.”

Though in the cross-examination, it was repeatedly questioned from Muhammad Iqbal, SI (CW-7) that while recording the proceedings on the oral statement (Exh.CW-3/E) of the prosecution witness namely Muhammad Nazik (PW-1) , he did not mention his preparation of the injury statements of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and the deceased at 8.50 p.m, whereas the time mentioned on the oral statement (Exh.CW-3/E) by Muhammad Iqbal, SI (CW-7) was 10.00 p.m, however, there is no discrepancy in the prosecution case with regard to the time of preparation of the injury statements of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and the deceased and the time mentioned on the oral statement (Exh.CW- 3/E) by Muhammad Iqbal, SI (CW-7) as it has been mentioned in the proceedings recorded by Muhammad Iqbal, SI (CW-7) on the oral statement (Exh.CW-3/E) that he had indeed prepared the injury statements of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and also applied for the post mortem examination of the dead body of Muhammad Asif (deceased) and the time of 10.00 p.m mentioned on the oral statement (Exh.CW-3/E) is the time of completing the said proceedings and not the time of initiating the same.

18.The learned counsel for the appellants has also argued fervently that for the fact that the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) stated that the fire which was made by the appellant namely Hafiz Muhammad Akmal had landed on the abdomen of Muhammad Asif (deceased) and according to the observations of Dr. Muhammad

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Shahid (CW-1), he had noted a lacerated, burnt wound, of the dimension of 01 cm x 0.5 cm present on the lateral side of right hip, 25cm from the umbilicus, present on the dead body of the deceased namely Muhammad Asif, therefore, the ocular account furnished by the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3), being contrary to the observations of Dr. Muhammad Shahid, (CW-1) , was to be rejected. We are afraid that even this contention of the learned counsel for the appellants is not correct. According to the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) ,the occurrence was completed in a minute’s time and it was during this that they made their observations with regard to the deceased being hit on the “belly”. The prosecution witness namely Muhammad Nazik (PW-1) , during cross-examination , stated as under:-

“ The occurrence was completed within one minute,”

The prosecution witness namely Nazir Mai, (PW-2) , during cross-examination , stated as under:-

“Firing continued for 2/3 second and occurrence was completed ” آنًا فانًا The prosecution witness namely Nadir Hussain (PW-3) , during cross-examination , explained as under:-

“Firing completed within 2/4 second. Volunteers that it was ” آنًا فانًا As mentioned above, during post mortem examination of the dead body , Dr.

Muhammad Shahid (CW-1), had noted a lacerated, burnt wound, of the dimension of 01 cm x 0.5 cm, present on the lateral side of right hip, 25cm from the umbilicus, present on the dead body of the deceased namely Muhammad Asif. A lateral orientation is a position away from the midline of the body.The umbilicus is

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the fibrous remnant of the fetal attachment of the umbilical cord after birth. All layers of the anterior abdominal wall fuse at the umbilical ring, a small round defect in the linea alba located just inferior to the midpoint between the xiphoid process of the sternum and the pubic symphysis. The overlying skin is adherent to the umbilicus, causing a depression that is more accentuated with greater body mass.

The umbilicus lies along the midline at the level of the intervertebral discs between the third and fourth lumbar vertebrae The umbilicus is composed of four parts/structures: the mamelon, cicatrix, cushion and furrows.The mamelon is the area of the central hump of the umbilicus. The cicatrix forms the dense scar and is a fusion of several peritoneal and fibrous structures (round ligament of liver, median umbilical ligament, two medial umbilical ligaments, transversalis fascia, umbilical fascia and parietal peritoneum). The cushion of the umbilicus is the slightly raised skin margin which surrounds the mamelon and cicatrix. Finally, the furrows forms the depression inside the cushion, surrounding the mamelon. Dr. Muhammad Shahid (CW-1), clearly had mentioned the entry wound was 25cm from the umbilicus, on the lateral side of right hip ,present on the dead body of the deceased namely Muhammad Asif. The prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) also stated that Muhammad Asif (deceased) suffered the injury on his belly. The deceased was wearing a Qameez and Shalwar, his abdominal area covered by the said clothes, therefore, what the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) would have observed would be exactly that they would have seen Muhammad Asif (deceased) being hit on his belly area as Muhammad Asif (deceased) had suffered the injury which was present 25cm from the umbilicus, on the lateral side of right hip, which in the circumstances, would be usually observable as being a wound on the belly area. In this manner, the entry wound as

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observed by Dr. Muhammad Shahid (CW-1) and the injury observed by the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) were indeed both at the same place and no discrepancy is there and as such the medical evidence lends full support to the ocular account as furnished by the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3). Reliance in this regard is placed on the case of Muhammad Riaz Versus Muhammad Zaman and another(P L D 2005 Supreme Court 484).

19.With regard to the recovery of the Pistol (P-12) made from the appellant namely Hafiz Muhammad Akmal, it is observed that the said recovery of the weapon has no evidentiary value in the eyes of the law as the same was made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The recovery of the Pistol (P-12) made from the appellant namely Hafiz Muhammad Akmal cannot be used as incriminating evidence against the appellant, being evidence which was attained through illegal means and hence hit by the exclusionary rule of evidence.

The Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the Pistol (P-12) made from the appellant namely Hafiz Muhammad Akmal to witness the same. Muhammad Iqbal, SI (CW- 7), the Investigating Officer of the case, admitted during cross-examination as under:-

“I did not join any independent person from the locality.”

The above referred portions of the cross-examination of Muhammad Iqbal, SI (CW- 7), the Investigating Officer of the case , clearly establishes that the provisions of section 103 the Code of Criminal Procedure, 1898 were flouted. Section 103 of the Code of Criminal Procedure, 1898 is of vital significance to render search

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proceedings both transparent and creditable. The provisions of this section, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:-

"103.--(1) Before making a search. under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

The august Supreme Court of Pakistan in the case of “Muhammad Ismail and others Vs. The State” (2017 SCMR 898) at page 901 has held as under:- “For the above-mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Another aspect of the case is that according to Muhammad Iqbal, SI (CW-7), the Investigating Officer of the case, the appellant namely Hafiz Muhammad Akmal was arrested on 27.05.2020, the Pistol (P-12) was recovered from the appellant namely Hafiz Muhammad Akmal on 29.05.2020, whereas according to the report of the Punjab Forensic Science Agency, Lahore (Exh. P.E.), the sealed parcel containing the empty shells of the bullets recovered from the place of occurrence was received at the Punjab Forensic Science Agency, Lahore on 01.06.2020 i.e after the recovery of the Pistol (P-12). There was no reason for keeping the empty shells of the bullets which were taken into possession on 23.05.2020 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till 01.06.2020 i.e. after the appellant namely Hafiz Muhammad Akmal had been arrested on 27.05.2020 and the recovery of the Pistol (P-12) had been made from him on 29.05.2020. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. P.E.) has no evidentiary value as possibility of fabrication is

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apparent. Reliance is placed on the case of Muhammad Amin Vs. The State and another (2019 S C M R 2057) wherein the august Supreme Court of Pakistan has held as under:-

“Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of F.S.L. is of no avail to the prosecution and is inconsequential.”

With regard to the recoveries of the Soti (P-6) from the appellant namely Muhammad Ajmal and the Soti (P-7) from the appellant namely Muhammad Akram, the same were not even supported by the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) and furthermore, the Soti (P-6) and the Soti (P-7) were never sent to the Punjab Forensic Science Agency, Lahore for analysis. No finger prints were lifted from the Soti (P-6) and the Soti (P-

7)to determine that the same had been handed by the appellants namely Muhammad Ajmal and Muhammad Akram. In view of the above-mentioned facts, the alleged recovery of the Pistol (P-12) from the appellant namely Hafiz Muhammad Akmal, the recovery of the Soti (P-6) from the appellant namely Muhammad Ajmal and the recovery of the Soti (P-7) from the appellant namely Muhammad Akram are not proved and the same cannot be used as a circumstance against the appellants namely Hafiz Muhammad Akmal, Muhammad Ajmal and Muhammad Akram.

20.The motive of the occurrence, as mentioned by the prosecution witnesses namely Muhammad Nazik (PW-1) , Nazir Mai, (PW-2) and Nadir Hussain (PW-3) was a quarrel between children.We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. The children regarding whom the motive of the occurrence was alleged neither appeared before the Investigating Officer of the case, during the investigation of the case nor

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appeared before the learned trial court in support of the motive alleged. The prosecution witness namely Muhammad Nazik (PW-1) , admitted during cross- examination , as under:-

“The children who quarreled with the children of accused party were not produced during investigation. The names of those children were not mentioned by me in F.I.R., any supplementary statement or in this private criminal complaint. ”

The prosecution witness namely Nadir Hussain (PW-3) , during cross-examination , stated as under:-

“ I did not tell the names of children to the police. Witness volunteered they did not asked the same. There was no dispute of any kind between accused persons and complainant party except quarrel between the children. Our cousin Roshan is the witness of quarrel between children. He did not join the investigation. Those children from our side never joined the investigation.”

Muhammad Iqbal, SI (CW-7) , the Investigating Officer of the case ,during cross- examination , admitted as under:-

“ Names of children who quarreled from both sides were never disclosed before me. I myself never associate any such child in my investigation. No witness appeared before me claiming to witness the quarrel between the children. No evidence of quarrel of kids of both the side came into light during my investigation. No evidence of motive part was produced before me during my investigation.”

To prove the motive available with the accused for committing the occurrence, it was imperative that the children with regard to whom the story of the motive of the occurrence had been put forth should have not only been made to join the investigation of the case and their statements recorded but they should have also

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been produced before the learned trial court, as being the best witnesses to give evidence with regard to the motive of the occurrence. Furthermore, during the course of the investigation, the Investigating Officer of the case did not collect any evidence so as to establish that there was any grievance developing in the heart of the accused, which motivated them to act in the manner in which they did. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant namely Hafiz Muhammad Akmal to have committed the Qatl-i- Amd of the deceased namely Muhammad Asif. There is an evocative silence with regard to the particulars of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of “Muhammad Asif v. The State” (2008 SCMR 1001) as under:

“Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side.”

So, this leads us to the conclusion that the prosecution remained unable to prove the motive as alleged.

21.We have also given deep thought to the fact as to whether the prosecution could prove the charge of attempt to commit Qatl-i-Amd of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) leveled against the appellants namely Muhammad Ajmal and Haji Musheer Ahmad, respectively and find that the same could not be proved. Section 324 of the P.P.C. deals with an attempt to commit Qatl-i-Amd. An attempt as an indictable crime means an intentional act with a view to attaining a definite end but which is not achieved because of a circumstance, independent of the will of the offender, who makes the

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attempt. Attempt to commit a crime is a inchoate crime. The intention coupled with some overt act to achieve that intention amounts to crime as it is an attempt to commit a crime. An attempt is known as preliminary crime or inchoate crime as it is something which is not yet complete. Inchoate means just begun, incipient, in the early stages. The inchoate crime is observed as a crime committed by doing an act with the purpose of affecting some other offence. There are certain tests for determining whether an attempt to commit a crime had been made or not. Proximity test measures the accused’s progress by examining how close the accused was to completing the offence. The proximity rule requires that the amount left to be done, not what has already been done, that is to be analyzed for determining whether any attempt had been made for committing a crime. Res ipsa loquitur means the thing speaks for itself. To determine whether any attempt was made to commit a crime , the facts themselves can be examined and taken as proof of whether any attempt was made or not. The term Locus Poenitentiae means that a person cannot be charged for an attempt if he is in position to give up or abandon his plan out of his own accord after the formation of mens rea and does that. Such intentional withdrawal prior to the commission or attempt to commit the act will be termed as mere preparation for the commission of the crime and no legal liability will be imposed. In this case, when the appellants namely Muhammad Ajmal and Haji Musheer Ahmad ceased to cause any other injury to the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) , despite being armed with weapons loaded with bullets and despite there being no hinderance in their way to proceed with their attempt to commit Qatl-i-Amd of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and when the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) were at the mercy of the appellants namely Muhammad Ajmal and Haji Musheer Ahmad then the appellants namely

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Muhammad Ajmal and Haji Musheer Ahmad selecting not to cause any other injury to the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-

2)reveals that they had abandoned their attempt to commit the Qatl-i-Amd of the prosecution witnesses namely Muhammad Nazik (PW-1) and Nazir Mai, (PW-2) and hence could not be convicted for the offence made punishable under section 324 P.P.C. The prosecution has indeed succeeded in proving that the appellants namely Muhammad Ajmal and Haji Musheer Ahmad had committed the offence made punishable under section 337-F(iii) P.P.C., however, as mentioned above, has failed to prove that the appellants namely Muhammad Ajmal and Haji Musheer Ahmad had committed the offence made punishable under section 324 P.P.C.

22.Now, coming to the quantum of the sentence to be awarded to the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz, we have noted some mitigating circumstances in favour of the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz, firstly, the evidence of recovery of the Pistol from the possession of the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz has been disbelieved by us for the reason mentioned in Para No.19 of this judgment, secondly the prosecution had alleged a specific motive in this case but failed to prove the same. It is a well-recognized principle by now that the question of quantum of the sentence requires utmost attention and thoughtfulness on the parts of the Courts.

In this regard, we respectfully refer the case of “Mir Muhammad alias Miro v. The State” (2009 SCMR 1188) wherein august 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 parts of the Courts, as such decisions 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."

The august Supreme Court of Pakistan has held in the case of “Ansar Ahmad Khan Barki v. The State and another” (1993 SCMR 1660), that the prosecution is bound

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by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz, in the peculiar circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the appellant namely Hafiz Muhammad Akmal, which had resulted in the death of the deceased namely Muhammad Asif, therefore, in our view, the death sentence awarded to the appellant namely Hafiz Muhammad Akmal is quite castigatory. It has been held in a number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution, then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of “Ahmad Nawaz and another v. The State” (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:-

"10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping

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in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".

The august Supreme Court of Pakistan has held in the case of “Mst. NAZIA ANWAR v. The State and others” (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under :-

“In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.”

We are also fortified in our view in this regard by the cases of “Nawab Ali v. The State” (2019 SCMR 2009), “Muhammad Akram alias Akrai v. The State” (2019 SCMR 610), “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165), “Muhammad Mumtaz v. The State and another” (2012 SCMR 267), “Muhammad Imran alias Asif v. The State” (2013 SCMR 782), “Sabir Hussain alias Sabri v. The State” (2013 SCMR 1554), “Zeeshan Afzal alias Shani and another v. The State and another” (2013 SCMR 1602), “Naveed alias Needu and others v. The State and others” (2014 SCMR 1464), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Muhammad Asif v. Muhammad Akhtar and others” (2016 SCMR 2035), “Qaddan and others v. The State” (2017 SCMR 148) and “Ghulam Murtaza v. The State” (2021 S C M R 149).

23.In the light of the above discussion, the conviction of the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz under section 302(b) P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in

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default thereof to be undergone by the appellant namely Hafiz Muhammad Akmal are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz. Consequently, with the above said modification in the sentence awarded to the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz under section 302 (b) P.P.C., Criminal Appeal No.294 of 2021, is hereby dismissed to the extent of the appellant namely Hafiz Muhammad Akmal son of Shah Nawaz.

24.In view of our findings as mentioned in paragraph 21 of the judgment, the Criminal appeal No.294 of 2021, is partly allowed to the extent of the appellants namely Muhammad Ajmal son of Shah Nawaz and Haji Musheer Ahmad son of Shah Nawaz and their convictions and sentences recorded under section 324 P.P.C.

by the learned trial court are set-aside, however, the convictions of the appellants namely Muhammad Ajmal son of Shah Nawaz and Haji Musheer Ahmad son of Shah Nawaz for the offence under section 337-F(iii) P.P.C. are upheld and maintained, however, the quantum of sentence awarded to the appellants namely Muhammad Ajmal son of Shah Nawaz and Haji Musheer Ahmad son of Shah Nawaz under section 337 F(iii) P.P.C. is reduced from simple imprisonment for three years to that of already undergone by the appellants namely Muhammad Ajmal son of Shah Nawaz and Haji Musheer Ahmad son of Shah Nawaz, keeping in view the circumstances of the case, favouring the reduction in the period of simple imprisonment awarded to the appellants namely Muhammad Ajmal son of Shah Nawaz and Haji Musheer Ahmad son of Shah Nawaz under section 337-F(iii) P.P.C.

The punishment of Daman of Rs.50,000/- each to be paid by the appellants namely Muhammad Ajmal son of Shah Nawaz and Haji Musheer Ahmad son of Shah Nawaz

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is however upheld and maintained. The appellant Muhammad Ajmal son of Shah Nawaz shall remain in custody till the payment of the amount of Daman by him and his imprisonment for failure to pay Daman shall be treated as simple imprisonment.

The sentence of the appellant namely Haji Musheer Ahmad son of Shah Nawaz was suspended by this Court vide order dated 24.01.2022, and the appellant namely Haji Musheer Ahmad son of Shah Nawaz is present before the Court on bail. The sureties of the appellant namely Haji Musheer Ahmad shall stand discharged from their liability and the bail bonds submitted by the appellant namely Haji Musheer Ahmad son of Shah Nawaz are hereby cancelled.It is, however observed that if the appellant namely Haji Musheer Ahmad son of Shah Nawaz fails to deposit the Daman of Rs.50,000/- in the next twenty one days, he shall be taken into custody and shall remain imprisoned till the payment of Daman amount by him and his imprisonment during the said period shall be treated as simple imprisonment .

25.The Criminal appeal No.294 of 2021, is however dismissed to the extent of the appellant namely Muhammad Akram son of Shah Nawaz, however, the quantum of sentence awarded to the appellant namely Muhammad Akram son of Shah Nawaz under section 337 A(i) P.P.C. is reduced from simple imprisonment for two years to that of already undergone by the appellant namely Muhammad Akram son of Shah Nawaz, keeping in view the circumstances of the case, favouring the reduction in the period of simple imprisonment awarded to the appellant namely Muhammad Akram son of Shah Nawaz under section 337-A(i) P.P.C. The punishment of Daman of Rs.10,000/- to be paid by the appellant namely Muhammad Akram son of Shah Nawaz is however upheld and maintained. The sentence of the appellant namely Muhammad Akram son of Shah Nawaz was suspended by this Court vide order dated 09.08.2021, and the appellant namely Muhammad Akram son of Shah Nawaz

Crl. Appeal No. 294 of 2021

is present before the Court on bail. The sureties of the appellant namely Muhammad Akram son of Shah Nawaz shall stand discharged from their liability and the bail bonds submitted by the appellant namely Muhammad Akram son of Shah Nawaz are hereby cancelled. It is, however observed that if the appellant namely Muhammad Akram son of Shah Nawaz fails to deposit the Daman of Rs.10,000/- in the next twenty one days, he shall be taken into custody and shall remain imprisoned till the payment of Daman amount by him and his imprisonment during the said period shall be treated as simple imprisonment .

26.Murder Reference No. 11 of 2021 is answered in Negative and the sentence of death awarded to Hafiz Muhammad Akmal son of Shah Nawaz, is Not Confirmed.

(MUHAMMAD TARIQ NADEEM) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

APPROVED FOR REPORTING

JUDGE JUDGE