The State . Vs Abdul Salam

Stereo HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.69542-J/2023 Abdul Salam vs The State Murder Reference No.120/2023 The State vs Abdul Salam

JUDGMENT

Date of hearing: 14.05.2026

Appellant by: Mr. Wasif Javed Sipra, Advocate.

State by: Ms. Nuzhat Bashir, Deputy Prosecutor General.

Mr. Shahid Aziz Anjum, Advocate for and with Complainant by:

complainant of the case.

FAROOQ HAIDER, J.:- This single judgment will dispose of Crl. Appeal No.69542/2023 filed by Abdul Salam (appellant) against his “conviction & sentence” and Murder Reference No.120/2023 sent by trial court, as both the matters have arisen out of one and the same judgment dated: 17.04.2023 passed by learned Additional Sessions Judge, Faisalabad/ trial court.

2.Abdul Salam (appellant) was tried in case arising out of F.I.R. No.527/2022 dated: 14.05.2022 registered under Section: 302 PPC at Police Station: Raza Abad, District Faisalabad and trial court after conclusion of the trial, vide impugned judgment dated: 17.04.2023 has convicted and sentenced the appellant; in this regard, paragraph No.22 as well as relevant portions of paragraph Nos. 23 and 24 of the impugned judgment are hereby reproduced as under: - “22. Pursuant to above discussion, this court rules that the prosecution has successfully proved the charge against the accused Abdul Salam of committing qatl-i-amd of deceased Nadeem, so the accused Abdul Salam is convicted U/S 302(b) PPC for committing qatl- i-amd of deceased Nadeem, brother of complainant.”

Murder Reference No.120/2023

“23. .............While considering all the attending circumstances and upon conviction, the convict Abdul Salam is sentenced with capital punishment of Death U/S 302(b) PPC. Convict, Abdul Salam be handed by his neck till he be dead...............”

“24. ...........the convict is ordered to pay compensation Rs.8,00,000/- to the legal heirs of deceased U/S 544-A Cr.P.C. which shall be recoverable as arrears of land revenue and in default thereof he shall undergo imprisonment for a period not exceeding six months.”

3.Brief however necessary facts are that Muhammad Saleem Yaqoob (complainant/PW-7) produced application (Ex.PK) for registration of case to Salman Sharif, Sub-Inspector (PW-10) at the place of occurrence regarding murder of his brother namely Muhammad Nadeem by the accused/appellant by giving blows of Icepick ( )برف واال سواon different parts of his body; on the basis of said application (Ex.PK), case was registered vide F.I.R. No.527/2022 (Ex.PJ) on 14.05.2022 under Section: 302 PPC at Police Station: Raza Abad, District Faisalabad; for ready reference, relevant portion of the F.I.R. (Ex.PJ) is hereby scanned below: -

Murder Reference No.120/2023

Appellant was formally charge sheeted to which he pleaded not guilty and claimed trial. Prosecution during trial examined ten witnesses, out of which, ocular account was furnished by Muhammad Saleem Yaqoob (complainant/PW-7) and Muhammad Yaseen (eyewitness/PW-8), Dr. Javed Iqbal (PW-3) provided medical evidence whereas detail of investigation was deposed by Salman Sharif, S.I. (Investigating Officer/PW-10). Prosecution after giving up PWs namely Afzal, Waseem and Usman 990/C (being unnecessary) and tendering report of PFSA, Lahore, closed its evidence. Thereafter statement of the appellant was recorded under Section: 342 Cr.P.C. in which he refuted the allegations levelled against him; he neither opted to appear as his own witness under Section: 340(2) Cr.P.C. nor opted to produce evidence in his defence.

Trial Court after conclusion of trial vide impugned judgment dated: 17.04.2023 has convicted and sentenced the appellant as mentioned above.

4.Learned counsel for the appellant has submitted that conviction recorded and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ of the case; ocular account is neither trustworthy nor corroborated/supported by any other independent evidence; prosecution has remained unable to prove its case. Learned counsel for the appellant finally prayed for acquittal of the appellant.

5.Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant has supported the impugned judgment and prayed for dismissal of the appeal.

6.Arguments heard. Record perused.

7.It has been noticed that as per case of prosecution, occurrence in this case took place at about 08:30 p.m. which was reported to the police through written application (Ex.PK) produced by Muhammad Saleem (complainant/ PW-7) to Salman Sharif, S.I./HIU (PW-10) at the place of occurrence, who after receiving said application (Ex.PK), mentioned his proceedings on it at 09:00 p.m. on 14.05.2022, sent the same to the police station where F.I.R. (Ex.PJ) was chalked out on 14.05.2022 at 09:15 p.m.; however, it has been

Murder Reference No.120/2023

noticed that though as per statement of Dr. Javed Iqbal (PW-3, who conducted autopsy over dead-body of the deceased), dead-body was received in the dead house on 14.05.2022 at 10:00 p.m. yet complete documents from the police were received on 15.05.2022 at 10:30 a.m. and autopsy was conducted on 15.05.2022 at 10:45 a.m.; in this regard relevant portion of his statement is hereby reproduced as under:-

“Date and time of death according to police papers was 14.05.2022 at 08:35 PM, received dead body in dead house on same day at 10:00 PM, received complete documents from police on 15.05.2022 at 10:30 AM and autopsy was conducted on the same day at 10:45 AM.”

Though as per statement of the doctor (PW-3), probable time elapsed between injury and death was 10-15 minutes whereas between death and postmortem was within 12 to 24 hours yet question does arise that in aforementioned circumstances when dead body was already available in the hospital, case was also registered at 09:15 p.m., then why autopsy over dead body of the deceased was conducted with much delay? Answer is very simple that police papers were received at Dead House on 15.05.2022 at 10:30 a.m. that’s why autopsy was conducted at 10:45 a.m. on 15.05.2022. It goes without saying that the doctor (PW-3) during cross-examination categorically stated that the delay in conducting autopsy was because of delay in receipt of police papers; in this regard, relevant portion of his statement is hereby reproduced below:- “The delay in conducting of postmortem examination is because of delay in receipt of police papers.”

Meaning thereby that none of the cited eyewitnesses including the complainant was present at the time and place of occurrence; time was consumed in engaging, procuring the witnesses including the complainant, concocting story for registration of case after deliberation as well as consultation and then registering the case in its present form at belated stage, however showing ante-time in the record. In this regard, guidance has been sought from the case of “SUFYAN NAWAZ and another versus The STATE and others” (2020 SCMR 192) and relevant portion from Paragraph No. 4 (Page 194) of the same is being reproduced as under: - “The unexplained delay of about ten hours in autopsy of Kabeer Ahmad (deceased) alone creates dent in the prosecution story so far as presence of eye-witnesses at the place of occurrence is concerned.”

Murder Reference No.120/2023

Therefore, neither any sanctity nor evidentiary value can be attached to first information report and same cannot provide any corroboration to the case of prosecution. Furthermore, F.I.R. which is always considered as “cornerstone” has lost its value in the case and superstructure i.e. case of prosecution built on the basis of this F.I.R. is bound to fall like house of cards; in this regard, guidance has been sought from the case of “GHULAM ABBAS and another versus The STATE and another” (2021 S C M R 23), “PERVAIZ KHAN and another versus The STATE” (2022 S C M R 393) and “ABDUL GHAFOOR versus The STATE” (2022 S C M R 1527).

Ocular account furnished by the prosecution in this case comprises of statements of Muhammad Saleem Yaqoob (complainant/PW-7) and Muhammad Yaseen (eyewitness/PW-8). It is pertinent to mention here that the complainant (PW-7) is real brother of Muhammad Nadeem (deceased of the case) whereas Muhammad Yaseen (eyewitness/PW-8) was friend of the complainant (PW-7); in this regard relevant portion of statement of the complainant (PW-7) is reproduced as under:- “The deceased was my real elder brother whereas, PWs Muhammad Yaseen and Afzal are my friends.”

It goes without saying that Muhammad Yaseen (PW-8) was neither resident of the place of occurrence nor having any job place over there rather his house was situated at a distance of 02 kilometers from the place of occurrence and in this regard, relevant portion of statement of Muhammad Saleem Yaqoob (complainant/PW-7) is hereby reproduced infra:- “The inter-se distance of the house of Afzal and place of occurrence is about 1/1 1⁄2 -km whereas, the inter se distance of house of Muhammad Yaseen from place of occurrence is about 2-km.”

Therefore, he (PW-8) was “chance witness” who could not offer any valid, convincing and plausible reason to justify his presence at the “time and place” of occurrence and in such circumstances, testimony of Muhammad Yaseen (PW-8), who was admittedly the “chance witness”, is “suspect” evidence and cannot be accepted without pinch of salt; in this regard, case of “Mst. SUGHRA BEGUM and another vs. QAISER PERVEZ and others” (supra) can be safely referred and relevant portion from paragraph No.14 of said case law is hereby reproduced: -

Murder Reference No.120/2023

“14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.”

Further guidance on the subject has been sought from the cases of “MUHAMMAD ASHRAF alias ACCHU versus The STATE” (2019 SCMR 652), “Mst. MIR and another versus The STATE” (2020 SCMR 1850) and “SARFRAZ and another versus The STATE” (2023 SCMR 670).

As per own version of the prosecution, complainant party at the place of occurrence was statedly comprising of four persons i.e. Muhammad Saleem Yaqoob (complainant himself/PW-7), Muhammad Yaseen (PW-8), Muhammad Afzal (given up PW) and Muhammad Nadeem (deceased of the case) whereas Abdul Salam (appellant) came there on foot having Icepick ( )برف واال سواand while raising lalkara attacked upon Muhammad Nadeem, then gave repeated blows of Icepick to him, it is also version of the prosecution that Muhammad Nadeem (deceased) was having dispute regarding give & take ( )لین دینof money with Abdul Salam (appellant), therefore, in such situation, when Abdul Salam (appellant) came on foot having Icepick in his hand and admittedly not equipped with any sophisticated firearm weapon like Kalashnikov from which various bullets can be fired within twinkling of eyes, then why the complainant party comprising upon four persons (as stated above), did not intercept the appellant when he came there, why complainant and other both cited eyewitnesses did not apprehend him when he attacked upon the deceased, made first blow with the Icepick and then gave further blows with Icepick and why he was not caught after the occurrence, particularly, when complainant is real brother of Muhammad Nadeem (deceased of the case) and Muhammad Yaseen and Muhammad Afzal were friends of the complainant.

Murder Reference No.120/2023

It is neither appealing nor acceptable to a person of common prudence that real brother of the deceased will remain as silent spectator when assailant not having any sophisticated firearm weapon with him rather only Icepick, reached the spot and gave successive blows i.e. four in number at different parts of body of real brother of the complainant and he (complainant) alongwith his friends did not intervene during the occurrence; therefore, said conduct of aforementioned cited eyewitnesses including the complainant, falsifies their presence at the relevant “time and place” of occurrence; in this regard, guidance has been sought from the cases of “PATHAN versus The STATE” (2015 SCMR 315) and “ZAFAR versus The STATE and others” (2018 SCMR 326); relevant portion from the latter case law is being reproduced:- “7. The conduct of the witnesses of ocular account also deserves some attention. According to complainant, he along with Umer Daraz and Riaz (given up PW) witnessed the whole occurrence when their father was being murdered. It is against the normal human conduct that the complainant, Umer Daraz and Riaz (PW since given up) did not make even an abortive attempt to catch hold of the appellant and his co- accused particularly when the complainant himself has stated in the FIR and before the learned trial Court that when they raised alarm, the accused fled away. Had they been present at the relevant time, they would not have waited for the murder of their deceased father and would have raised alarm the moment they saw the appellant and his co-accused standing near the cot of their father”

Though he (complainant/PW-7) stated before the Court that he attended the deceased and his clothes were also stained with blood of the deceased yet he did not produce his blood stained clothes to the Investigating Officer of the case (PW-10); in this regard relevant portion of his statement is reproduced as under:- “I attended the deceased and my clothes had also stained by the blood of my deceased brother but I did not deliver my blood stained clothes to the

I.O.”

Aforementioned clothes of the complainant, which were stained with blood of the deceased, were important piece of evidence for providing corroboration to his testimony but by not taking the same into possession by the Investigating Officer during investigation of the case as well as not producing during the trial, prosecution on the one hand has lost strong piece of corroboratory evidence and on the other hand, it goes against the prosecution; in this regard, guidance has been sought from the case of “Mst. SUGHRA BEGUM and another Vs. QAISER PERVEZ and others.” (2015 SCMR 1142), relevant portion is being reproduced: -

Murder Reference No.120/2023

“Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye- witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses.”

Guidance on the subject has also been sought from the cases of “NADEEM alias KALA versus The STATE and others” (2018 SCMR 153), “Mst. MIR ZALAI versus GHAZI KHAN and others” (2020 SCMR 319) and “ZAFAR ALI ABBASI and another versus Zafar ALI ABBASI and others” (2024 SCMR 1773).

When all aforementioned factors are taken into consideration in totality then ocular account furnished by the prosecution is neither trustworthy nor confidence inspiring hence not reliable, thus, hereby discarded. So far as medical evidence is concerned, it is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in peculiar facts and circumstances of the case, in this regard, cases of “SAJJAN SOLANGI versus The STATE” (2019 SCMR 872) and “MUHAMMAD RAMZAN versus The State” (2025 SCMR 762) can be safely referred and relevant portion from latter case law is reproduced:- “It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant.”

As far as alleged recovery of Icepick (P-5) at the pointing out of the appellant on 29.05.2022 vide recovery memo. (Exh.PC) is concerned, it is relevant to mention here that in said recovery memo. (Exh.PC), it has not been mentioned that said Icepick was blood-stained; similarly, Salman Sharif, S.I. (Investigating Officer the case/PW-10) who conducted recovery proceedings and Muhammad Boota 2462/C (recovery witness/PW-1) did not state during their statements before the Court that aforementioned Icepick was blood-

Murder Reference No.120/2023

stained; in this regard relevant portion of statement of Investigating Officer (PW-10) is hereby reproduced:- “The accused Abdul Salam made disclosure qua the concealment of ice tool (Suwa), led us to the place of recovery i.e., his house situated at Usman Ghani Town, Faisalabad, and got recovered ice tool/Suwa P5 from the Almirah of the wall of his residential room. I made sealed parcel of said ice tool/Suwa with insignia “SS” and took the same into possession vide recovery memo Exh.PC duly attested by Muhammad Boota 2462/C & Usman 990/C.”

Likewise, statement of Muhammad Boota 2462/C (PW-1) in this regard is also hereby reproduced:- “On 29.05.2022, I and Usman 990/C were present at police station before the I.O. Accused Abdul Salam made disclosure qua the concealment of weapon i.e., Suwa P5. In pursuance of said disclosure, accused Abdul Salam led the police party to place of recovery i.e., Usman Ghani Town, Faisalabad and got recovered weapon from the almirah lying with the wall of room which was taken into possession by the I.O vide recovery memo Exh.PC attested by me and Usman.”

However, report of Punjab Forensic Science Agency (Exh.PP) tendered by the prosecution reflects that human blood was identified on item No.1.1 i.e. swab(s) taken from the pointed end of “sowa.” as well as on item No.5 i.e. cotton but it is relevant to mention here that it is not discernible from the entire record that when, where and who took swab(s) from the pointed end of “sowa” i.e. Item No.1.1 and swab(s) from the handle of “sowa” i.e. item No.1.2. Furthermore, though it has been mentioned in report of PFSA (Ex.PP) that human blood was identified on item No.1.1 and item No.5 but nothing is available on the record to show that this blood was of one and the same group or of deceased of the case. It is also relevant to mention here that any test was not conducted on item No.1.2 i.e. swab (s) taken from the handle of “sowa”; for ready reference, report of PFSA (Ex.PP available at page No.16 of the paper-book) is hereby scanned blow:-

Murder Reference No.120/2023

In view of above, recovery of Icepick (P-5) is of no help to the case of prosecution.

Though motive alleged by the prosecution through application for registration of the case (Ex.PK) is that there was a dispute of give and take of amount/money of Muhammad Nadeem (deceased of the case) with Abdul Salam (appellant) and due to said grudge, appellant committed murder of Muhammad Nadeem yet it was not mentioned therein that when, where and how much amount was taken or given by whom which constituted the motive part? Even any witness was not produced in whose presence give and take of money constituting motive part, took place or in whose presence dispute regarding the same arose; relevant portion of statement of Muhammad Saleem Yaqoob (complainant/PW-7) regarding motive is hereby reproduced:- “There was litigation between my deceased brother and accused regarding the amount payable by the accused. I did not mention the fixed outstanding amount in my written complaint Exh.PK. A civil suit regarding disputed amount was pending in the civil court but I do not know the name of court. I did not give any copy of said litigation to the investigating officer.”

Whereas Muhammad Yaseen (PW-8) during cross-examination categorically stated that he had no knowledge about any suit between accused and deceased in respect of any dispute/outstanding amount pending before the Court, and before the occurrence, he had never heard about any outstanding amount between accused and deceased; in this regard, relevant portion of his statement is reproduced infra:- “I have no knowledge about any case between the accused and the deceased in respect of any disputed/outstanding amount. I have just heard that some outstanding amount was payable by the accused to the deceased. Before the occurrence, I have never heard about any outstanding amount between the accused and the deceased.”

Though in paragraph No.18 of the impugned judgment, it has been mentioned by the trial court that during final arguments, learned counsel for the complainant has produced photo copy of plaint titled “Nadeem Yaqoob Vs. Abdul Salam” regarding recovery of Rs.20,000/- which remained pending before learned Civil Judge, Faisalabad yet it is relevant to mention here that any document which has neither been brought on the record during trial of the case nor subjected to cross-examination by the accused rather mere photo copy of the same has been produced during final arguments, cannot be taken

Criminal Appeal No.69542/2023 & 11 Murder Reference No.120/2023

into consideration; furthermore, it is also trite law that any document to be relied upon by the prosecution against an accused is to be put to him at the time of his examination under Section: 342 Cr.P.C. otherwise it cannot be used against him in the case; in this regard case of “AMEER ZEB versus THE STATE” (PLD 2012 Supreme Court 380) can be safely referred and its relevant portion from Paragraph No.6 available at Page No.398, is hereby reproduced for ready reference:- “It is trite that a piece of evidence not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used against him by the prosecution.”

(emphasis added) In this regard, guidance has also been sought from the case of “ABDUL HAYEE and ABDULLAH alias GHAZALI and another” (2025 SCMR 281) and relevant portion of the same from Paragraph No.14 is hereby reproduced as under:- “14. Insofar as the recoveries of weapons of offence from the petitioners in another case bearing FIR No. 121 dated 26.05.2009 under Sections 324/353/186/148/149 P.P.C., read with Section 13 of the Arms Ordinance, 1965 and Section 7 of the Anti Terrorism Act, 1997, at Police Station Mochh, District Mianwali, which recoveries were also relied upon by the prosecution in the instant case and positive reports of Forensic Science Laboratory are concerned, we have noted that the said recoveries were not put to the petitioners in their statements recorded under Section 342 Cr.P.C., therefore, the above-mentioned pieces of prosecution evidence cannot be considered against the petitioners and the same have rightly been discarded by the learned High Court in paragraph No. 15 of the impugned judgment. Reference in this context may also be made to the cases of, Fida Hussain Shah v. The State (2024 SCMR 1622), Haji Nawaz v. The State (2020 SCMR 687) and Mst. Anwar Begum v. Akhtar Hussain (2017 SCMR Similarly, case of “OBAIDULAH and 2 others versus The STATE and others” (2025 SCMR 1558) can be advantageously referred on the subject and relevant portion of the same from Paragraph No.7 available at Page Nos.1567-1568 is hereby reproduced below:- “We have further noted that no motive was put to the petitioners in their statements recorded under Section 342, Cr.P.C. It is by now well settled that if a piece of evidence is not put to an accused in his statement recorded under Section 342, Cr.P.C, in order to provide him a chance to produce his defence against the said evidence then such evidence cannot be used against the accused. Reference in this context may be made to the cases of Haji Nawaz v. The State (2020 SCMR 687) and Dr. Waqar Hameed v. The State (2020 SCMR 321). In the case of 'Haji Nawaz' (supra), this Court has held as under;- “The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under section 342, Cr.P.C, then the

Criminal Appeal No.69542/2023 & 12 Murder Reference No.120/2023

same cannot be considered against him for the purpose of recording his conviction."

In the case of 'Dr. Waqar Hameed' (supra), this Court laid emphasis as follows:- "It is by now well settled that a piece of evidence which is not put to an accused while recording his statement under section 342, Code of Criminal Procedure cannot be used against him.””

Guidance has also been sought from a recent reported judgment of Supreme Court of Pakistan in the case of “Muhammad Iqbal versus The State” (2026 SCP 122) and relevant portion of the same from Paragraph No.13 is hereby reproduced as under:- “Secondly, it is an admitted position that no specific question with regard to the alleged absconsion was put to the petitioner-convict in his statement recorded under Section 342, Cr.P.C. It is by now a settled principle of law that any piece of evidence or circumstance not put to an accused in his statement under Section 342, Cr.P.C. cannot be used against him.”

So, neither any photo copy of the plaint produced during final arguments before the trial court can be read in evidence nor can be taken into consideration against the accused. In view of above, said photo copy of the plaint was of no avail and cannot be used against the accused/appellant. Hence, motive alleged by the prosecution in the case could not be proved. Even otherwise, when ocular account has been discarded then motive is of no help to the case of prosecution. It is also relevant to mention here that motive is neither substantive nor direct or corroborative piece of evidence rather only circumstance leading to the offence. In this regard case of “AKBAR ALI versus THE STATE” (2007 SCMR 486) can be referred.

8.It is well established principle of law that single circumstance/doubt in case of prosecution is sufficient for acquittal; in this regard, cases of “MUHAMMAD BILAL versus The STATE” (2025 SCMR 1580) and “MUHAMMAD ASGHAR versus The STATE” (2025 SCMR 1616) can be safely referred.

9.Nutshell of the above discussion is that prosecution has failed to prove its case against the appellant beyond shadow of doubt; therefore, there is no need to discuss defence version.

10.In view of what has been discussed above, Criminal Appeal No.69542/2023 filed by Abdul Salam (appellant) is allowed; conviction recorded and sentence awarded to the appellant through impugned judgment

Murder Reference No.120/2023

dated: 17.04.2023 are hereby set-aside. The appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case.

11.Resultantly, death sentence awarded to Abdul Salam (appellant) is NOT CONFIRMED and Murder Reference (M. R. No.120 of 2023) is answered in NEGATIVE.

(Ali Zia Bajwa) (Farooq Haider) Judge Judge

Approved for reporting.

(Ali Zia Bajwa) (Farooq Haider) Judge Judge

This judgment has been dictated and pronounced on 14.05.2026 whereas after preparation/ completion, signed on 18.05.2026.

Javaid.S.