Khushi Muhammad etc. Vs The State

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Criminal Appeal No.42209-J of 2023 (Muhammad Nazir & another v. The State, etc) Criminal Revision No.31321of 2023 (Abdul Razzaq v. The State, etc)

JUDGMENT

Date of hearing 25.03.2026 M/s Pir Imran Akram Bodla and Ch. Abdul Ghaffar, Appellants by:

Advocates.

State by: Mr. Shabbir Ahmad, Deputy Prosecutor General. Complainant by: Mr. Naveed Ahmad Khawaja, Advocate.

SARDAR AKBAR ALI, J:- Muhammad Nazir and Khushi Muhammad (appellants) along with their co-accused Muhammad Sarwar, Muhammad Anwar, Muhammad Aslam, Muhammad Akhtar, Muhammad Saleem, Muhammad Waseen, Muhammad Hafeez, Muhammad Saeed, Qadeer, Taimoor Anwar and Noor Nabi (since acquitted) were tried by the learned Additional Sessions Judge, Arifwala, in a case FIR No.235/ 2021, dated 31.05.2021, offences under sections 302/ 337-F(v)/ 337-F(iii)/ 337-A(iii)/ 337-F(i)/ 337-A(i) 337-L(ii)/ 148/ 149 PPC registered at Police Station Ahmad Yar, Tehsil Arifwala, District Pakpattan, and on conclusion of trial vide judgment dated 14.04.2023, co-accused, Muhammad Sarwar, Muhammad Anwar, Muhammad Aslam, Muhammad Akhtar, Muhammad Saleem, Muhammad Waseen, Muhammad Hafeez, Muhammad Saeed, Qadeer, Taimoor Anwar and Noor Nabi were acquitted of the charges whereas the appellants were convicted and sentenced as under:

“Convicted under section 302 (b) PPC each and sentenced to undergo rigorous imprisonment for life (25 years) each for committing Qatl-i-Amd of Zahid Farooq, deceased. They were also directed to pay Rs.500,000/- each to the legal heirs of deceased as required u/s 544-A of Cr.P.C. and in default whereof to further undergo simple imprisonment for six months each. The aforesaid amount was ordered to be recovered as arrears of land revenue. They were also extended the benefit of section 382-B Cr.P.C.

2.Aggrieved by their convictions and sentences, both the appellants filed Criminal Appeal No.42209 of 2023 whereas Abdul Razzaq, complainant (PW-01) filed Crl. Revision No.31321 of 2023 seeking enhancement of sentence of the appellants.

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3.Abdul Razzaq, complainant (PW-01) also filed Crl. Appeal No.31320 of 2023 challenging the acquittal of co-accused Muhammad Sarwar, Muhammad Anwar, Muhammad Aslam, Muhammad Akhtar, Muhammad Saleem, Muhammad Waseen, Muhammad Hafeez, Muhammad Saeed, Qadeer, Taimoor Anwar and Noor Nabi which has already been dismissed as not pressed vide order dated 09.03.2026.

4.Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.

5.The facts of the case, as enumerated in paragraph No.02 of the impugned judgment of the learned trial Court, are that:

“Brief facts as per prosecution story as contained in the FIR Exh.PA/1 are that on 30.05.2021 at about 8:30 p.m. the complainant, his brother Zahid Farooq, Zulfiqar alongwith other family members were present in complainant's house which is situated in front of the house of Khushi Muhammad accused who has constructed a double story house. Khushi Muhammad used to flash light into complainant's house through the broken glass window from the second floor of his house. Accused Khushi Muhammad threatened to his brother Zahid Farooq to come out and accused Khushi Muhammad will teach a lesson to him. Meanwhile complainant, alongwith his brother Zulfiqar, Zahid Farooq came out of the house, 13 persons were already in front of gate of complainant's house namely Khushi Muhammad being armed with pistol 30 bore, Muhammad Nazeer armed with hatchet, Muhammad Sarwar armed with sota, Muhammad Anwar armed with sota, Muhammad Aslam armed with sota, Muhammad Akhter arned with sota, Muhammad Hafeez armed with hatchet, Muhammad Saeed armed with iron, Tamour armed with sota, Muhammad Saleem armed with sota, Muhammad Waseem armed with sota, Abdul Qadeer armed with sota and Noor Nabi armed with sota were present there. All the accused have already assembled with pre- concert and common object prior to this in the house of Khushi Muhammad accused. At that time electric bulb was lit in the street. Meanwhile complainant's brother-in-law (Behanoy) Munawar also came there. Accused Muhammad Sarwar raised Lalkara that a lesson be taught on asking for closing the window and restraining from installing the Camera and further that they be done to death by making a fire. Khushi Muhammad accused made fire shot with pistol which hit on the right thigh of Zahid Farooq who fell down on the ground in injured condition Accused Muhammad Nazir inflicted blow of hatchet from its sharp side hitting on the head of Zahid Farooq who was imbrued in the blood, accused Muhammad Sarwar inflicted sota blow hitting on the left mandible of Zulfiqar. Muhammad Hafeez accused inflicted hatchet blow on the left arm, accused Muhammad Hafeez repeated hatchet blow hitting on the left shin of Muhammad Khan. Muhammad Anwar accused gave sota blow hitting on the left arm of Munawar Hussain. Accused Muhammad Saleern inflicted sota blow hitting on the right ribcage of Munawar Hussain. Muhammad Saleem accused made another blow of sota hitting on the forehead of Munawar Hussain. Accused Muhammad Waseem gave sota blow hitting on the head of Munawar. Upon hue and cry, Haq Nawaz, Muhammad Khan, Abdul Ghaffar attracted the place of occurrence. Qadeer accused gave sota blow hitting on the left wrist of Muhammad Khan. Muhammad Aslam gave sota blow which landed on the left side of head of Muhammad Khan. Thereafter Saeed accused gave sota blow hitting on the head of Haq Nawaz, Noor Nabi accused gave sota blow hitting on the shoulders of Haq Nawaz. Accused Taimoor inflicted sota blow landing on complainant's right wrist joint. Muhammad Akhtar gave sota blow hitting on the chest of Abdul Ghaffar. So many persons attracted at the spot from the locality after hearing the hue and cry to save them from the clutches of the accused and accused fled away alongwith their respective weapons while extending threats of dire consequences. Complainant party shifted the injured to RHC Muhammad Nagar, Arifwala from where they were referred to Tehsil Head Quarter Hospital, Arifwala. Zahid Farooq succumbed the injuries at Tehsil Head Quarter Hospital, Arifwala. Hence, the FIR was lodged.

The motive for the occurrence was that Khushi Muhammad accused etc. had installed a glass window and a camera in front of complainant's house and they were

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restraining Khushi Muhammad accused etc. since one year that Glass window should be closed as from where complainant's house was visible but they did give a deaf ear to their request. At about 1:00 PM on the day of occurrence due to said motive hot words were exchanged between complainant's brother Zahid Farooq deceased and Khushi Muhammad accused and his brothers and due to that motive accused formed unlawful assembly and committed the murder of Zahid Farooq and caused injuries to them.”.

6.On arrest of the accused/ appellants and completion of investigation, report under section 173 Cr.P.C. was submitted against them before the learned trial Court, where they were formally charge sheeted to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined 14 prosecution witnesses and 01 Court witness. After closure of the prosecution”s evidence, statements of the accused/ appellants were recorded under section 342 Cr.P.C. wherein they denied the prosecution”s allegation and professed their innocence. They, however, opted not to be examined on oath under section 340(2) Cr.P.C. but only Khushi Muhammad appellant adduced certified copy of private complaint titled “Muhammad Javed vs. Abdul Razzaq etc” as (Exh.DE) and attested copy of Diploma of Civil Engineering as (Exh.DF) and closed defence evidence whereas appellant Muhammad Nazir, did not adduce any evidence in his defence and the trial ended in the terms as detailed in opening paragraph of this judgment.

7.I have heard arguments of learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.

8.I have noticed that as per contents of the FIR, the occurrence took place on 30.05.2021 at 08:30 p.m. whereas the matter was reported to the police on the other day i.e. 31.05.2021 at 12:20 a.m. with the delay of about 03 hours and 50 minutes, despite the fact that the police station was 11-Kilometeres from the place of the occurrence. Nowhere in the entire evidence, the prosecution has explained the reason for such delay in reporting the matter to the police. The delayed FIR shows dishonesty on the part of the complainant and that it was lodged with deliberation and consultation. Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. In the case of “Mehmood Ahmed & others vs. The State & another” (1995 SCMR 127), it was observed by the Hon”ble Supreme Court of Pakistan that:

“Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused

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open for roping in such persons whom ultimately the prosecution might wish to implicate.”

Similar view has been taken by the Hon”ble Supreme Court of Pakistan in the cases of “Zafar Ali Abbasi and another vs. Zafar Ali Abbasi and others” (2024 SCMR 1773), “Seeta Ram vs. The State” (2025 SCMR 2028) and “Muhammad alias Ahmad vs. The State” (2025 SCMR 2052).

9.Dr. Saqib Ishaq, who conducted autopsy on the dead body of Zahid Farooq (deceased) while appearing as (PW-09) stated that he conducted autopsy on the dead body of deceased on 31.05.2021 at 02:15 a.m. He opined that probable time that elapsed between injuries and death was within an hour and between death and postmortem was 05 to 06 hours, thus, there is a delay of about 05 hours and 45 minutes. There is no explanation at all available on record for such delay. No doubt, the noticeable delay in post mortem examination of the dead body is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses before preparing police papers necessary for the same. Furthermore, this fact suggests that nobody was present at the spot due to which the dead-body remained lying unattended at the spot for a long time. This fact also creates dent about the veracity of prosecution story. I may refer here the case of “Irshad Ahmed v. The State” (2011 SCMR 1190), wherein the Hon”ble Supreme Court of Pakistan has observed as under:-

“We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted.”

Similar view was also reiterated by the Hon'ble Supreme Court of Pakistan in cases titled as Asjad Mahmood vs. The State (2019 SCMR 1068), “Iftikhar alias Kharoo vs. The State (2024 SCMR 1449), “Muhammad Ijaz alias Billa and another vs. The State and others” (2024 SCMR 1507) and “Muhammad alias Ahmad vs. The State” (2025 SCMR

10.After careful scrutiny of the record, it has been noticed that the ocular account was furnished by Abdul Razzaq, injured/ complainant (PW-01), Zulfiqar, injured (PW-02), who were brothers of Zahid Farooq, deceased,

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Munawar Hussain, injured (PW-03) and Muhammad Khan, injured (PW-04). All the PWs although sustained injuries during the occurrence but while appearing before the learned trial Court, they made certain dishonest improvements as well as certain discrepancies have also been found in their statements which cannot be ignored. During cross-examination when Abdul Razzaq, complainant (PW-01) was confronted with application/ complaint (Exh.PA), he made certain improvements by improving his statement that Khushi Muhammad, appellant used to throw flash light through the broken glass of the window wherein the word broken glass window was not mentioned. In his examination-in-chief, he given the role of causing hatchet blow to Muhammad Hafeez on the left arm of Zulfiqar, injured (PW-02) but in complaint (Exh.PA) no such role has been ascribed to Muhammad Hafeez by him whereas in (Exh.PA) he ascribed roles for causing injuries to Zulfiqar, injured (PW-02) at the hands of Taimoor and Muhammad Anwar but he did not give any role to them in his examination-in-chief. Likewise, he also changed the roles ascribed to other co-accused. During cross-examination, he also admitted that the police reached at the place of occurrence within 10-15 minutes of the occurrence after receiving call at Rescue-15; the police prepared injury statements at the place of occurrence and that the police remained at the place of occurrence for 30-45 minutes. He further admitted that he did not make any statement or presented any application for registration of case despite the fact that police remained present at place of occurrence for 15 minutes. He further admitted that he remained at hospital up till presenting of application (Exh.PA) and he departed from the hospital for preparation of application (Exh.PA) which was got prepared by him from a computer operator. Likewise, Zulfiqar (PW-02), Munawar Hussain (PW-03) and Muhammad Khan (PW-04) also made certain improvements when they were confronted with their previous statements recorded under section 161 Cr.P.C. Even they also changed the roles ascribed to the appellants as well as their acquitted co-accused for causing injuries to the complainant party.

11.It is true that injured prosecution eyewitnesses Abdul Razzaq, complainant (PW-01), Zulfiqar (PW-02), Munawar Hussain (PW-03) and Muhammad Khan (PW-04) appeared in the witness box in support of the prosecution case but it is by now well settled that mere injuries on the person of the injured PW does not mean that he was stating the whole truth and his evidence is to be relied upon or discarded while keeping in view the other facts and circumstances of particular case. They also changed the roles of the co-

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accused since acquitted, thus, their evidence is not trustworthy and confidence inspiring. Reliance in this regard is placed upon the cases reported as “Said Ahmad vs. Zammured Hussain and 4 others” (1981 SCMR 795), “Naveed Sadiq vs. The State” (2023 YLR 2562) and “Muhammad Atif Naveed and another vs. The State” (2024 P.Cr..L.J 1421) and “Muhammad Ibras vs. The State” (2025 SCMR 1145).

12.Abdul Razzaq, complainant (PW-01), Zulfiqar (PW-02), Munawar Hussain (PW-03) and Muhammad Khan (PW-04) while recording their statements made certain admissions, dishonest improvements and contradictions regarding the happening of the occurrence and the roles played by the accused, therefore, from the above narrations, admissions, contradictions as well as dishonest improvements of all the four PWs, I am of the view that if these PWs of ocular account were present on the spot at the relevant time then they should not have to make dishonest improvements in their statements in such a manner to strengthen the prosecution case. It is settled by now that dishonest improvements made by a witness in his statement to strengthen the prosecution case castes serious doubt about veracity of his statement and makes the same untrustworthy and unreliable. Reliance may be made to a case titled Mst. Saima Noreen and another Vs. The State (2024 SCMR 1310).

13.It is worth mentioning here that on the basis of same set of evidence, the learned trial Court vide impugned judgment acquitted co-accused of the appellants, namely Muhammad Sarwar, Muhammad Anwar, Muhammad Aslam, Muhammad Akhtar, Muhammad Saleem, Muhammad Waseen, Muhammad Hafeez, Muhammad Saeed, Qadeer, Taimoor Anwar and Noor Nabi by observing that photogenic picture of the attributions of all the blunt weapon injuries of all the injured persons on behalf of all the accused who were eleven in number whereas the accused were sixteen in number and it was a night occurrence, neither any source of light was mentioned nor any light was taken into possession and in such a situation it is always very difficult to state that whose injury has been attributed to whom and at which part of the body but the injured who appeared before the court had stated that they were fighting with accused party and they were also watching the locale of the injuries, which fact is not believable at all. It was also observed by the learned trial court that injuries were available but the fact creates doubt which injury was caused by whom to which injured. Learned trial court further observed that the ocular account up to the extent of attribution of the injuries was doubtful, so acquitted

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the co-accused by giving them the benefit of doubt. Against the acquittal of co- accused namely Muhammad Sarwar, Muhammad Anwar, Muhammad Aslam, Muhammad Akhtar, Muhammad Saleem, Muhammad Waseen, Muhammad Hafeez, Muhammad Saeed, Qadeer, Taimoor Anwar and Noor Nabi with same allegations, on the same set of evidence, Abdul Razzaq, complainant (PW-01) filed Crl. Appeal No.31320 of 2023, which has already been dismissed as not pressed by the learned Division Bench of this Court vide order dated 09.03.2026, therefore, I am of the view that this fact also created serious doubt about the veracity and sanctity of same witnesses against the present appellants. Therefore, present appellants cannot be convicted under the principle of “falsus in uno falsus in omnibus” (false in one thing, false in all). Reliance is placed on the case reported as “Notice to Police Constable Khizar Hayat son of Hadait Ullah” (PLD 2019 Supreme Court 527), “PERVAIZ KHAN and another versus The STATE” (2022 SCMR 393), “Muhammad Iqbal Vs. The State and another (2024 SCMR 1133), “Sajjad Khan alias Shahzad Khan vs. The State (2025 SCMR 835), “Khizar Hayat vs. The State” (2025 SCMR 1339) and an unreported judgment passed by the Hon”ble Supreme Court of Pakistan on 16.09.2025 in the case titled “Umer Draz vs. The State etc”.

14.So far as medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case. After disbelieving the ocular account, the medical evidence only being corroborative piece of evidence, cannot be made basis to record or sustain conviction because medical evidence could only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. but never identify the real assailant. In the case “MUNAWAR ALI alias MUNAWAR HUSSAIN versus THE STATE” (PLD 1993 SC 251) the Hon”ble Supreme Court of Pakistan held that:-

“Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries can never name the accused, that is, from the injuries alone it cannot be said who had inflicted those injuries.

Reliance is also placed upon the case reported as “Muhammad Jahangir and another Vs. The State and others” (2024 SCMR 1741) is also to the same effect.

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15.As regards recovery of crime weapon i.e .30 bore pistol on the lead of accused/appellant Khushi Muhammad is concerned I have observed that according to the prosecution case the accused/appellant had succeeded in fleeing away from the place of occurrence along with crime weapon and then on his arrest he was said to have got recovered pistol .30 bore from a room of his residential house. Firstly, it is not believable that an accused having committed a serious crime like murder and successfully managing escape along with crime weapon, would keep it safe for its subsequent recovery and use against him as evidence. After the arrest of accused/appellant on 17.06.2021 the crime weapon i.e. pistol .30 bore was shown recovered on his lead, and the PFSA report (Ex.PFF) has been received in the positive but the fact remains that when I have already disbelieved the ocular account, such recovery would not be sufficient for recording conviction of an accused on capital charge, because this type of corroborative evidence is always taken into consideration along with direct evidence. In case titled “Noor Muhammad Versus The State” (2010 SCMR 97) it has been held by the Supreme Court of Pakistan that recovery of crime weapon even with matching report of PFSA is only corroborative piece of evidence, which by itself is not sufficient to record conviction.

17.So far as the recovery of hatchet from Muhammad Nazir, appellant is concerned, the occurrence had taken place on 30.05.2021 whereas the recovery of hatchet was effected from him on 27.06.2021 after 28 days of the occurrence, therefore, it was unlikely that the blood on said hatchet would not disintegrate during the above mentioned period, therefore, positive report of PFSA (Exh.PGG) is inconsequential. Reliance is respectfully placed on the case of Basharat and another Vs. The State (1995 SCMR 1735) wherein the Hon”ble Supreme Court of Pakistan disbelieved the evidence of blood stained “knife” which was allegedly recovered from the accused after 26 days from the occurrence. Relevant part of the said judgment at page No.1739 is reproduced hereunder for ready reference:- “11. The occurrence took place on 20.4.1988. Basharat appellant was arrested on 28.4.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.4.1988. It is not believable that he would have kept blood stained Chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it...”

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16.The motive in this case has been stated that Khushi Muhammad, appellant, etc had installed a glass window towards the house of the complainant and the complainant party was restraining Khushi Muhammad accused etc. since one year that glass window could be closed as from where complainant's house was visible but they did give a deaf ear to their request and due to this reason a quarrel had taken place but no independent evidence in this regard has been brought on the record by the prosecution, thus, the prosecution has failed to establish motive in this case.

17.As far as the defence plea taken by the appellants in their statements under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature and it was the prosecution to stand on its own legs, therefore, there is no need to discuss the same which is exculpatory in nature.

18.I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the appellants by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230), “Abdul Samad vs. State” (2025 SCMR 639) and “Muhammad Aslam vs. The State” (2025 SCMR 1240).

19.For the foregoing reasons, Criminal Appeal No.42209-J of 2023 filed by Muhammad Nazir and Khushi Muhammad (appellants) is allowed, convictions and sentences awarded to the appellants vide judgment dated 14.04.2023 passed by the learned trial court are set aside and they are acquitted of the charges levelled against them while extending them benefit of doubt. The appellants are in jail. They be released forthwith if not required in any other case.

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20.For the forgoing reason, Crl. Revision No.31321 of 2023 being devoid of any merit stands dismissed. .

(SARDAR AKBAR ALI)

JUDGE

Approved for reporting.

JUDGE

M. Arshad *