Umar Hayat Vs The State

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.12055/J/2022 Umar Hayat Vs. The State

Criminal Revision No.10970/2022 Muhammad Hanif Vs. The State and another

JUDGMENT

Date of hearing 15.01.2026

For the Appellant: Ch. Humayoun Rashid, Advocate. Rana Tasawar Ali Khan, Additional Prosecutor For the State:

General.

Mr. Javed Iqbal Awan, Advocate, assisted by For the Complainant:

Mr. Asad Mehmood Awan, Advocate.

Mr. Muhammad Abid, Research Officer, Research assistance:

LHCRC.

Tariq Saleem Sheikh, J. – Through this consolidated judgment, I propose to decide Criminal Appeal No. 12055/J/2022 and Criminal Revision No. 10970/2022, which arise from the judgment dated 21.01.2022 delivered by the Additional Sessions Judge, Jaranwala, in case FIR No. 309/2018 dated 13.07.2018 registered under sections 302 and 34 PPC at Police Station Lundianwala, Jaranwala, District Faisalabad.

2.On 13.07.2018, Muhammad Hanif (PW-1) submitted an application (Exh. PA) to Muhammad Afzal/SI (PW-9) at THQ Hospital, Jaranwala, for registration of an FIR. He stated that he was a resident of Chak No. 629/GB and earned his livelihood from farming. That evening, he was present at his house along with his son, Muhammad Asif, other family members, and Muhammad Ali and Muhammad Yousaf. The house had no door. At about 6:15 p.m., Umar Hayat (armed with a .30 bore pistol), Shaukat Ali (armed with a .12 bore carbine), Ashiq (armed with a rifle), and Mehra (empty-handed) came outside his house in the bazaar. Hanif further stated that, on seeing them, he and his

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companions went out. Mehra raised a lalkara, exhorting his co-accused to teach Hanif a lesson for demanding possession of the Ihatta. Thereupon, Umar Hayat fired at Muhammad Asif, hitting him on the left side of his abdomen. Shaukat Ali and Ashiq resorted to aerial firing, whereafter all the accused fled the scene while brandishing their weapons. Hanif and the other prosecution witnesses rushed Muhammad Asif to the hospital, but he succumbed to his injuries on the way.

3.PW Muhammad Hanif stated that the motive for the occurrence was a dispute between the parties over an Ihatta measuring 10 marlas, situated in Square No. 59, Killa No. 2. He alleged that it was in the possession of the accused party and that the complainant party had been demanding its return. He further claimed that the accused, in furtherance of their common intention, murdered Muhammad Asif due to this demand.

4.After recording police karwi on the application, Muhammad Afzal/SI (PW-9) sent it to Police Station Lundianwala, Jaranwala, through Ghulam Murtaza 616/HC. Based on this application, Ijaz Hussain Aseer/HC (PW-8) registered FIR No.309/2018 (Exh. PJ).

5.The case was investigated, and Umar Hayat, Shaukat Ali, Ashiq, and Mehra were challaned to the court. On 15.03.2019, the Additional Sessions Judge indicted them. They pleaded not guilty and claimed a trial.

6.To prove the charge, the prosecution examined nine witnesses. Muhammad Hanif (PW-1) and Muhammad Ali (PW-2) furnished the ocular account. Muhammad Iqbal (PW-3) identified Asif’s body. Ghulam Ali (PW-4) testified about the recovery of crime weapons from Umar Hayat, Shaukat Ali, and Ashiq. Muhammad Nawaz/ Draftsman (PW-5) prepared a scaled site plan (Exh. PH and Exh. PH/1). Shamsher Ali (PW-6) remained posted at Police Station Lundianwala as Moharrar and testified about receiving sealed parcels containing crime weapons and subsequently handing them over to the Investigating Officer for delivery at the office of the Punjab Forensic Science Agency (PFSA). Ahsan Ali 5226/C (PW-7) escorted Asif’s body to the mortuary

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for autopsy. He was also a marginal witness of the Recovery Memo Exh. PI. Ijaz Hussain Aseer/HC (PW-8) registered FIR No. 309/2018 (Exh. PJ). He also testified that he received the sealed parcels containing bloodstained cotton and crime empties for safekeeping and subsequently handed them over to the Investigating Officer for delivery to PFSA. Muhammad Afzal/SI (PW-9) gave the details of his investigation and the evidence he collected in this case. The Public Prosecutor gave up PWs Muhammad Yousaf, Asif Iqbal, and Muhammad Fazal as unnecessary and closed the prosecution’s evidence after tendering a carbon copy of the postmortem report Exh. PS.

7.After the prosecution completed its evidence, the trial court recorded the statements of Umar Hayat, Shaukat Ali, Ashiq, and Mehra under section 342 Cr.P.C. and confronted them with the incriminating material brought against them during the trial. They refuted the allegations and professed innocence. Umar Hayat stated that the disputed Ihatta was in the possession of his co-accused, Shaukat Hayat, and that the complainant party had attempted to forcibly occupy it. He alleged that a quarrel had taken place between Asif and Shaukat a few days before the occurrence, during which the former had sustained injuries. On the fateful day, he claimed, the deceased and his companions came from Chak No. 658/9-GB, demolished the wall of the disputed Ihatta, and took possession by force. Thereafter, according to him, they fired indiscriminately in jubilation, during which one of their own shots accidentally struck Asif, which caused his death. Umar Hayat denied being present at the scene and claimed that he was falsely implicated due to his relationship with the other accused. He further asserted that the prosecution witnesses were closely related to the deceased and had deposed against him at the behest of the police. Shaukat Ali, Ashiq, and Mehra took the same plea.

8.Neither the Appellant nor his co-accused opted to make a statement on oath under section 340(2) Cr.P.C. However, they examined Khalil Ahmad (a representative of NADRA) (DW-1), Muhammad Saleem, Secretary, Union Council 41, Chak No.657/GB, Jaranwala (DW-2), and Zulfiqar Ali 6078/HC (DW-3).

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9.On the conclusion of the trial, vide judgment dated 21.01.2022, the Additional Sessions Judge acquitted Shaukat Ali, Ashiq, and Mehra, extending them the benefit of doubt. However, he convicted Umar Hayat under section 302(b) PPC and sentenced him to life imprisonment with a direction to pay Rs.10,00,000/- to Asif’s legal heirs as compensation in terms of section 544-A Cr.P.C. The amount of compensation was recoverable as arrears of land revenue. The benefit of section 382-B Cr.P.C. was extended to him.

10.Umar Hayat (hereinafter referred to as the “Appellant”) has challenged his conviction before this Court through Criminal Appeal No. 12055/J/2022, and seeks acquittal from the charge, while Muhammad Hanif (PW-1), the first informant, has filed Criminal Revision No. 10970/2022 seeking enhancement of his sentence.

Trial court’s findings

11.The trial court found that the dispute over possession of a 10-marla Ihatta was the underlying cause of the occurrence. While the complainant party alleged that the accused had taken possession and committed the murder to suppress their demand for its return, the defence maintained that the complainant party was the aggressor. However, the court concluded that the motive evidence was inconclusive and could support either version.

12.The trial court observed that both sides had concealed material facts. Relying on the principle that courts must independently evaluate the evidence where such concealment occurs, as discussed by the Supreme Court in Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), it conducted its own assessment.1 It held that the Ihatta was “admittedly” in the possession of accused Shaukat, and that the Appellant was his close relative. It noted that the defence did not dispute the Appellant’s presence at the scene. Even if, as claimed by the defence, Muhammad Asif and his companions had gone to take The principle laid down in Syed Ali Bepari is that where both parties to a case have withheld material facts or suppressed part of the truth, the court must proceed to assess the evidence independently, rather than relying on either party’s version. In other words, the concealment or distortion by both sides does not absolve the court of its duty to scrutinize the evidence and reach an independent finding of fact. This principle was also applied in Zahid Parvez and another v. The State

(PLD 1991 SC 558).

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possession and were injured in a crossfire, that would not justify Asif’s killing. The trial court rejected the theory that the deceased was accidentally shot by his own party as implausible. It further reasoned that had someone else fired it, the prosecution witnesses would have had no reason to spare the actual assailant and falsely implicate the Appellant. On this basis, it concluded that the Appellant had fired the fatal shot and that there was no plausible ground for false implication on account of enmity or any ulterior motive. The trial court also relied on the medical evidence to the extent of the time of occurrence and the nature of the injury, but held that the alleged recoveries had no legal consequence.

13.The trial court distinguished the case of the other accused from that of the Appellant. It observed that Mehra was merely alleged to have raised a lalkara, while Shaukat and Ashiq were said to have resorted to aerial firing. Although one .30 caliber cartridge was recovered from the scene, no empties were found that could corroborate the use of the weapons allegedly carried by Shaukat and Ashiq. The court held that mere presence at the scene was insufficient to attract vicarious liability under section 34 PPC, which requires proof of a pre- arranged plan and concerted action. Even if the prosecution’s version were accepted as true, the element of premeditation was absent. The trial court thus found the involvement of Shaukat, Ashiq, and Mehra in the incident doubtful and, applying the rule of abundant caution and the principle of sifting the grain from the chaff, acquitted them.

The submissions

14.In support of Criminal Appeal No. 12055/J/2022, Ch. Humayoun Rashid, Advocate, contended that the Appellant was innocent and had been falsely implicated due to a previous enmity stemming from the dispute over possession of an Ihatta. He submitted that the prosecution’s case was fabricated and that the delay in registration of the FIR substantiated this assertion. PWs Muhammad Hanif and Muhammad Ali were closely related to the deceased and, therefore, interested witnesses whose testimony could not be safely relied upon. Gohar Ali, an independent eyewitness to the incident, was

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neither associated with the investigation nor cited as a witness. The prosecution, therefore, withheld the best available evidence without justification.

15.Mr. Humayoun further argued that the testimonies of the PWs were replete with material contradictions, which rendered the prosecution’s case against the Appellant highly doubtful. He maintained that the medical evidence conflicted with the ocular account, and that the crime empty recovered from the scene did not match the weapon allegedly recovered from the accused. He further contended that the Additional Sessions Judge had convicted the Appellant on the very evidence on which the co-accused were acquitted, although there existed no independent or corroborative circumstance to justify such differential treatment.

16.Without prejudice to the above submissions, Mr. Humayoun argued that the postmortem report (Exh. PS) was inadmissible in evidence. Dr. Khalid Mehboob, who had conducted the postmortem examination, was not examined at trial, having reportedly left the country. No application was moved to lead secondary evidence as required under Article 76 of the Qanun-e-Shahadat, 1984 (QSO). Instead, the Public Prosecutor tendered a carbon copy of the report through his own statement on 06.11.2021. Although defence counsel stated at that time that he had no objection to its exhibition, that concession did not override the statutory requirements. He maintained that the postmortem report (Exh. PS) was, therefore, liable to be de-exhibited and excluded from consideration. If that were done, he contended, the prosecution’s case would collapse. Counsel concluded by praying for the Appellant’s acquittal.

17.The Additional Prosecutor General (APG) opposed the appeal and supported the impugned judgment. He submitted that the prosecution had proved its case against the Appellant through credible evidence. The FIR was promptly lodged, and the Appellant was nominated therein with a specific role. Although PWs Hanif and Ali were related to the deceased, they remained consistent on material particulars. Mere relationship was not, by itself, a ground to discard their

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testimony. The APG added that both parties were known to each other, so there was no possibility of mistaken identity. He contended that the medical evidence fully corroborated the ocular account and that minor discrepancies in the witnesses’ statements were inconsequential. The fact that the recovered pistol did not match the crime empty did not impact the prosecution’s case. The alleged motive was also established. He contended that the Appellant’s case was distinguishable from that of his acquitted co-accused and that the Additional Sessions Judge had rightly convicted and sentenced him.

18.As regards Mr. Humayoun’s objection to the admission of Asif’s postmortem report (Exh. PS), the APG submitted that it was an irregularity curable under section 537 Cr.P.C. In any event, if this Court holds that the trial court misdirected itself by allowing the prosecutor to produce the report through his own statement, the lapse was attributable to the court, and the maxim actus curiae neminem gravabit would apply. He urged that the case be remanded to meet the ends of justice.

19.In rebuttal, Mr. Humayoun argued that a remand would help the prosecution to fill a fatal lacuna in its case. He submitted that the Appellant has been incarcerated since 09.08.2018 and that a remand at this stage would result in grave injustice. He maintained that the maxim actus curiae neminem gravabit cannot be invoked to the prejudice of the Appellant.

20.In support of Criminal Revision No. 10970/2022, Mr. Javed Iqbal Awan, Advocate, contended that the prosecution had successfully proved the Appellant’s guilt, but the sentence handed down by the trial court was not commensurate with the gravity of the offence. He, therefore, prayed that it be enhanced.

Discussion

21.The prosecution relies on five categories of evidence to prove the charge against the Appellant: (i) ocular account, (ii) medical evidence, (iii) forensic reports, (iv) recoveries, and (v) motive. In view of the contentions raised by learned counsel for the parties, the following issues arise for determination:

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(i)Whether the prosecution duly proved Muhammad Asif’s postmortem report (Exh. PS) in accordance with the Qanun-e-Shahadat, 1984, and if not, whether it is liable to be excluded from consideration.

(ii)Whether the procedural irregularity in the admission of the postmortem report, if established, warrants a remand to the trial court.

22.The admissibility of documentary evidence in criminal trials is governed by the QSO, which embodies safeguards for fair trial and evidentiary reliability. A document may be received in evidence only if it is proved in accordance with the QSO, benefits from a statutory presumption, or qualifies for admission under special rules of evidence.

23.Articles 72 to 78 of the QSO lay down the procedure for proving documents. Article 72 states that the contents of documents may be proved by either primary or secondary evidence. Articles 73 and 74 define primary and secondary evidence, respectively: the former means the document itself is produced for the inspection of the court, while the latter includes certified copies, oral accounts of contents, and other substitutes permitted by law in specific circumstances. Article 75 further states that documents must be proved by primary evidence, while Article 76 specifies the instances where secondary evidence may be permitted.

24.Secondary evidence is not an automatic substitute for primary evidence, but rather an exception that must be justified under one of the legally recognized grounds.2 In Mst. Akhtar Sultana v. Major (Retd) Muzaffar Khan Malik and others (PLD 2021 SC 715), the Supreme Court held that the admission of secondary evidence is contingent upon strict compliance with the statutory conditions prescribed under Article 76 of the QSO.3

25.Article 78 requires that where a document is alleged to have been signed or written by any person, the handwriting or signature must be affirmatively proved. In Siraj Din v. Mst. Jamilan and another (PLD 1997 Lahore 633), it was held that the proof of execution is not Sher Asfandyar Khan and others v. Neelofar Shah and others (2025 SCMR 1307).

Also see: Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Inspector-General of Police, Balochistan, and others v. Ghulam Rasool (2012 CLC 1645), Abdullah v. Provincial Government and others (2014 CLC 285); and Azhar Abbas and others v. Haji Tahir Abbas and another (2021 CLC 1351).

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“synonymous with the proof of the contents of documents. The burden to prove the contents of documents, in addition to proof of execution, is on the beneficiary of that document, who is to lead primary/secondary circumstantial internal evidence to prove the truth of that document.” In Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai (PLD 2005 SC 658), it was held that “Article [78] does not say that mere proof of handwriting/signatures/thumb-impressions of the executant will prove truth of the said document.”

26.In Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172), the Supreme Court held that merely placing official or departmental correspondence on record does not amount to proof unless the requirements of Articles 72 and 78 of the QSO are satisfied. It emphasized that procedural and evidentiary safeguards are fundamental to determining the validity of documents, and that the provisions governing the mode of proof cannot be disregarded or bypassed. A court must first determine whether a document has been properly proved in accordance with the law before relying on it and rendering judgment on its basis. This principle was reaffirmed in Mst. Akhtar Sultana, where the Supreme Court held that a certified copy of a registered power of attorney could not be admitted as secondary evidence without strict compliance with Article 76(c) of the QSO. It rejected the argument that such an instrument, being registered, was per se admissible as a public document under Article 85(2). It clarified that where execution is disputed, even registered documents assume the character of private documents and must be proved accordingly.

27.A counsel cannot exhibit a document through his own statement unless he is appearing as a witness, a practice discouraged due to conflict of interest and procedural impropriety.4 In Manzoor Hussain v. Misri Khan (PLD 2020 SC 749), the Supreme Court deprecated the growing practice, particularly in Punjab, of documents being exhibited through counsel without oath or cross-examination, and reaffirmed that Mst. Akhtar Sultana v. Major (Retd) Muzaffar Khan Malik and others (PLD 2021 SC 715).

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documents must be proved through competent witnesses. Exceptions exist only for facts that require no proof, or those of which the court takes judicial notice (Articles 111 & 112 QSO), or facts formally admitted (Article 113 QSO).5

28.In Muhammad Nawaz v. Shahida Parveen and others (PLD 2017 Islamabad 375), the High Court held that while counsel may produce certified copies of public or judicial records, they cannot introduce documents to plug evidentiary gaps or cure deficiencies in a party’s case. In Naeem Niaz Awan v. Additional District Judge and others (2024 LHC 6685), this Court held that power of attorney clauses authorizing counsel “to file petitions, statements, exhibits, or documents” do not entitle them to tender disputed documents in evidence through their own statements, as doing so bypasses the procedural safeguards under the QSO and the Code of Civil Procedure,

29.A postmortem report is a documented expert opinion. Although admissible as documentary evidence, it does not prove itself. Its production must comply with the requirements of the QSO, which demand proof of both execution and contents. When the doctor who conducted a postmortem report is unavailable, secondary evidence may be permitted, but only upon fulfilment of the conditions set out in Article 76 QSO. These include proof that the original has been lost, destroyed, unlawfully withheld, or otherwise cannot be produced without unreasonable delay or expense. In Munna Kumar v. State of Bihar [(2005) 12 SCC 209], the prosecution examined an advocate’s clerk to prove the postmortem report. During cross-examination, he admitted that he neither knew the doctor who prepared the report nor was familiar with his handwriting. The Supreme Court of India (SCI) held that the report had not been proved in accordance with law and accepted the contention that the prosecution had failed to establish the cause of death or the offence of murder. It observed that the prosecution ought to have Also see: Rustam and others v. Jehangir (Deceased) through LRs. (2023 SCMR 730), Muhammad Hussain and another v. Province of Punjab through District Officer Revenue, Multan, and others (2021 YLR 2310), Mst. Rasoolan Bibi v. Province of Punjab and others (2023 CLC 1171), National Highway Authority through Director v. Bashiran Bibi and others

(2024 MLD 1590).

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examined a witness acquainted with the doctor’s handwriting, such as a colleague or someone from the hospital where he worked.

30.Similarly, in Sooba and others v. The State (1994 PCr.LJ 1323), this Court held that the absence of the doctor must be proved before bringing on record the postmortem report as secondary evidence. The relevant excerpt is reproduced below:

“The law laid down in the said precedents6 is to the effect that secondary evidence in such cases could only be allowed when the prosecution proves to the satisfaction of the Court that the doctor who conducted postmortem examination was not available or had become incapable of giving evidence or his attendance could not be procured without an amount of delay or expense which in the circumstances of the case was unreasonable. It has been laid down that where any such evidence is allowed without complying with the provisions of section 32(2) of the Evidence Act (now Article 46 of the QSO), such evidence shall be excluded from consideration.”

31.Section 509(1) Cr.P.C. provides a statutory exception: The deposition of a Civil Surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under the Code of 1898, although the deponent is not called as a witness. However, section 509(2) provides that the court may, if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition. The utility of this provision is also underscored in Rule 6, Chapter 18, Volume III of the High Court Rules and Orders.

32.In the present case, the prosecution sought to rely upon the postmortem report of Muhammad Asif (Exh. PS) to establish the nature and cause of death. It is, however, undisputed that the doctor who conducted the postmortem examination, Dr. Khalid Mehboob, was not produced as a witness. The report was tendered through the statement of the Public Prosecutor without following the procedure prescribed for the production of secondary evidence under Article 76 of the QSO. The only explanation offered for not producing Dr. Mehboob was that he had left the country. No application was moved before the trial court to seek permission to lead secondary evidence, nor was any material placed on Fazal Muhammad and another v. The State (1970 SCMR 405), Hussain Bakhsh v. The State (1971 PCr.LJ 1331), and Muhammad Siddique and another v. The State (1974 PCr.LJ 180).

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record to substantiate his unavailability, such as proof of departure, incapacity, or any other legally justifiable ground. The prosecution also did not examine any hospital official or custodian of records competent to speak to the document’s custody or familiarity with the doctor’s handwriting. In the absence of this factual foundation, the postmortem report could not be lawfully admitted as secondary evidence.

33.The concession made by defence counsel that he had no objection to the exhibition of the report does not cure the defect. It cannot override the requirements of law governing admissibility of evidence in a criminal trial. It is a cardinal principle that material relied upon by the prosecution must be subject to proper proof and, where necessary, cross-examination. By permitting the Public Prosecutor to exhibit the postmortem report (Exh. PS) without examining its author or any competent witness, the trial court denied the Appellant an opportunity to challenge its authenticity and contents. Accordingly, the postmortem report is liable to be excluded from consideration.

34.For completeness, it must be noted that section 509 Cr.P.C. does not apply to the present case, as no deposition of Dr. Khalid Mehboob was recorded by a Magistrate or on commission in the manner prescribed.

35.Mr. Humayoun contended that the postmortem report (Exh. PS) could not be received in evidence also because no expert witness gave an oral statement regarding its contents. Consequently, the nature of the injury, including its description, angle, and trajectory, remained unexplained. He submitted that, under Article 71 of the QSO, oral evidence relating to an expert opinion must come from the person who formed that opinion, and that where reliance is placed on secondary evidence of a postmortem report, it should be proved by another doctor or expert competent to interpret the injuries. This argument proceeds on a distinction between the documentary proof of the postmortem report and the substantive proof of the medical opinion it embodies.

36.It may be desirable that secondary evidence of a postmortem report or medico-legal certificate be given by a medical

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officer who satisfies the statutory conditions for such testimony, but the law does not require that such evidence must invariably be led through another doctor. In the present case, the prosecution failed to lay a sufficient foundation for the admission of secondary evidence under Article 76 of the QSO, and no other legally competent witness was produced to prove the report (Exh. PS). As such, the question of explaining or interpreting its contents did not arise.

37.The Code of 1898 does not expressly employ the term “remand” in the context of appellate proceedings. However, such power is implicit in sections 423 and 428 Cr.P.C., which authorize the appellate court to order retrial or direct the taking of additional evidence where necessary for a just decision of the case. At the same time, section 537 Cr.P.C. provides that no finding, sentence, or order shall be reversed or altered on account of any error, omission, or irregularity in the proceedings unless it has, in fact, occasioned a failure of justice. Therefore, when considering whether a remand is necessary to cure a procedural irregularity, the appellate court must determine: (i) whether the irregularity is one that goes to the root of the case or is merely technical, (ii) whether it is curable under section 537 Cr.P.C., and (iii) whether its impact has occasioned a failure of justice. If the defect is such that it can be remedied without prejudicing the accused, a remand may be justified. However, it cannot be ordered merely to afford the prosecution an opportunity to fill lacunae in its case. The distinction between an “curable irregularity” and a “lacuna” is, therefore, crucial in determining whether a remand is warranted.

38.In Rajendra Prasad v. Narcotic Cell through its Officer- in-charge, Delhi (AIR 1999 SC 2292), the SCI explained that a lacuna is an inherent weakness or “wedge” in the prosecution’s case, not a mere oversight or lapse by the prosecutor. While courts may permit rectification of inadvertent errors, they must not allow a retrial to be used as a second attempt at conviction. The SCI stated:

“No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, the function of the

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criminal court is the administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”

39.A criminal court is not a passive spectator and must ensure that evidence is recorded in accordance with the law.7 Where material evidence has been improperly exhibited owing to non-compliance with statutory requirements, an appellate court may, in appropriate circumstances, consider remand so that such evidence is proved in the manner prescribed. Whether such a course would amount to permitting a party to fill a lacuna or merely to rectify a procedural defect depends upon the facts of each case. In the present matter, the postmortem report forms part of the record but stands excluded because it was not proved in accordance with the law. However, the power to remand is discretionary and must be exercised with due regard to its practical utility. Even if the postmortem report were to be duly proved on remand, it would only establish the nature and cause of death. It would not, by itself, remedy the serious deficiencies in the prosecution’s ocular, forensic, and circumstantial evidence, which are examined below. In these circumstances, a remand would merely prolong the proceedings without affecting the ultimate decision of the case. It would therefore serve no useful purpose. I decline to remand the case.

40.The prosecution alleged that on 13.07.2018 at about 6:15 p.m., the Appellant, along with his acquitted co-accused (Shaukat Ali, Ashiq, and Mehra), in furtherance of their common intention, launched an armed assault on the complainant party, which resulted in Asif’s death. Muhammad Hanif (PW-1) submitted a written application (Exh. PA) at 8:20 p.m., and FIR No. 309/2018 (Exh. PJ) was registered at 9:00 p.m. The delay of approximately two hours and forty-five minutes is not inordinate, even though the police station was only three kilometres from the place of occurrence. It stands partially explained by the urgency to transport the injured, who was in critical condition, to the hospital. Nonetheless, the surrounding circumstances require scrutiny. PW Hanif did not explain where and when the application (Exh. PA) Volume III, Chapter 1, Part E, Rule 2 of the Lahore High Court Rules and Orders; Ghulam Muhammad v. The State (PLD 1989 Karachi 144). Also see: Akhtar Ali and others v. Amir Hatam and another (2021 PCr.LJ 1439).

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was drafted. Its scribe was neither identified during the investigation nor produced at trial. PW Hanif stated that a call was made to Rescue 15 but expressed ignorance that it was made by Gohar Ali, who was admittedly present at the scene. He later stated that the police arrived only after his brother, Muhammad Ali (PW-2), made a call. In contrast, PW Muhammad Ali deposed that Gohar Ali made the call and that the police arrived in response thereto. The record indicates that Manzoor/SI reached the place of occurrence pursuant to the Rescue 15 call, yet no written application or oral statement was given to him for the registration of the FIR. PW Hanif stated that Muhammad Afzal/SI first met him at the hospital at about 8:20 p.m., while PW Muhammad Ali claimed that the police had reached the place of occurrence at about 6:30 p.m., before the registration of the FIR. These inconsistencies, viewed cumulatively, diminish the credibility of the prosecution’s version from the outset.

41.The prosecution produced Muhammad Hanif (PW-1) and Muhammad Ali (PW-2) to furnish the ocular account. Mr. Humayoun contended that their testimony was unreliable on the ground that they were closely related to the deceased and, therefore, interested witnesses. However, the law is well settled that relationship is not sufficient to discard evidence. An interested witness is not merely a person related to the victim, but one who is partisan or has a motive to falsely implicate the accused. Mere kinship or friendship, without more, does not render testimony unreliable if it is otherwise credible.8 In Nazir and others v. The State (PLD 1962 SC 269), the Supreme Court held that there is no inflexible rule that the evidence of an interested witness must always be rejected unless independently corroborated. While an interested witness may, in exceptional cases, be wholly reliable, it would ordinarily be unsafe to rely upon such testimony against every accused without careful scrutiny. The court must, therefore, look for circumstances that lend assurance to the witness’s statement and create that degree of probability which may serve as the basis for conviction. Such corroboration need not come from the testimony of an independent witness; it may arise from any circumstance in the case that satisfies the judicial conscience Iqbal alias Bhala and others v. The State (1994 SCMR 1).

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that the witness is speaking the truth. The Supreme Court also clarified that the corroboration required for an interested witness need not be of the same probative strength as that demanded for an accomplice, as the two stand on a different footing.

42.Both Muhammad Hanif (PW-1) and Muhammad Ali (PW-2) claimed to have witnessed the incident and described the sequence of events in broadly similar terms. They denied any prior enmity with the Appellant and maintained that they had no reason to falsely implicate him. However, during cross-examination, PW Hanif admitted that litigation between the parties over the disputed Ihatta was ongoing at the time of the occurrence. PW Muhammad Ali also acknowledged the dispute but insisted that it was not the motive behind the murder. Nonetheless, the close relationship between the witnesses and the deceased, coupled with the admitted hostility over possession, necessitates careful scrutiny of their statements.

43.Muhammad Hanif (PW-1) consistently claimed in the application (Exh. PA), FIR No. 309/2018 (Exh. PJ), and in his examination-in-chief that he was a resident of Chak No. 629/GB and that the incident took place in front of his house. However, neither the rough site plan (Exh. PM) nor the scaled site plan (Exh. PH), prepared by Muhammad Afzal/SI (PW-9) and Muhammad Nawaz/Draftsman (PW-5), respectively, depicts or even mentions the PW-1’s house near the place of occurrence. Rather, PW Muhammad Nawaz admitted that the homes of PW Hanif and the other prosecution witnesses were not situated in the immediate vicinity of the spot. He also acknowledged that the crime scene was an open area surrounded by the grocery shop of Sultan, the house of Ali Sher, and Shamsher’s Dera. Notably, he prepared the site plan at the instructions of PW Hanif and other prosecution witnesses. Exh. PH also fails to identify the path allegedly taken by the accused to reach the scene or the escape route purportedly adopted after the incident. Muhammad Afzal/SI (PW-9) admitted that the address of Chak No. 629/GB was recorded merely on the asking of the complainant party, and that he did not independently verify it from

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NADRA, the Lambardar, or any other source. These circumstances make the presence of the alleged eyewitnesses at the scene doubtful.

44.There are also material contradictions regarding the manner in which the incident occurred. PW Hanif stated that the firing lasted 10 to 15 minutes and that the accused fired 10 to 12 shots, whereas PW Muhammad Ali deposed that the firing continued for only five to seven minutes and involved 15 to 16 shots. Furthermore, according to their own account, PW Hanif and the other prosecution witnesses were present at close quarters during the firing, yet none of them sustained any injury, nor did they state that they took cover or retreated from the spot. While the mere fact that a witness remains uninjured is not, by itself, sufficient to discredit his testimony, this circumstance, when read alongside the other inconsistencies, further diminishes the weight to be attached to the ocular account. Both PW Hanif and PW Muhammad Ali also asserted that their clothes were stained with blood. However, the Investigating Officer admitted that he neither seized nor examined those clothes. Consequently, potentially corroborative physical evidence is lacking.

45.The prosecution also failed to examine Gohar Ali, who allegedly made a call to Rescue 15 and was present at the scene. PW Hanif admitted that several other persons, including Sultan, Shameer, Sharif, and Ali Sher, were also present at the relevant time and place, but none of them were examined. The non-examination of these independent witnesses warrants an adverse inference under Illustration (g) of Article 129 of the QSO that their testimony would not have supported the prosecution.9

46.In view of the foregoing, it is unsafe to rely on the testimonies of Muhammad Hanif (PW-1) and Muhammad Ali (PW-2) to uphold the Appellant’s conviction and sentence. Since the postmortem report (Exh. PS) stands excluded from consideration, it is unnecessary to dilate on the inconsistencies between medical and ocular accounts highlighted by the Appellant’s counsel. Even otherwise, the postmortem Riaz Ahmed v. State (PLJ 2010 SC 877).

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report (Exh. PS), assuming it was admissible, could not by itself connect the Appellant with the offence. It is well settled that medical evidence may confirm the eyewitness account about the seat and nature of injuries or the kind of weapon used, but it cannot identify the assailant.10

47.According to the prosecution, the Appellant led to the recovery of a .30 bore pistol (P-1) and a 7mm rifle (P-3), while Shaukat and Ashiq got recovered a carbine (P-5) and a rifle (P-7), respectively. One .30 caliber cartridge (P-11) was secured from the place of occurrence. However, the Firearm and Toolmarks Examination Report (Exh. PU) confirmed that the said cartridge had not been discharged from the recovered pistol (P-1), owing to differences in individual characteristics. As for the 7mm rifle (P-3), the FIR does not attribute such a weapon to the Appellant, and the prosecution did not explain this discrepancy. The recoveries attributed to Shaukat and Ashiq are also inconsequential, as the empties recovered from the scene did not link to their weapons. It is now well settled that recovery of a weapon constitutes only a corroborative piece of evidence. It cannot, by itself, establish guilt and becomes irrelevant when the ocular account is disbelieved.11 In the present case, because there is no credible eyewitness testimony or forensic corroboration, the recoveries have no evidentiary value.

48.Finally, the motive. The prosecution alleged that the Appellant and his acquitted co-accused murdered Muhammad Asif over a dispute concerning a 10-marla Ihatta. The trial court rightly found that the evidence was inconclusive for establishing this motive because the Ihatta was in the possession of the accused party. Apart from the oral assertions of PWs Muhammad Hanif and Muhammad Ali, the prosecution produced no independent evidence, oral or documentary, to support its claim. Notably, PW Hanif admitted that the deceased had sustained injuries in an earlier altercation, whereas PW Muhammad Ali Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103); Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410); Muhammad Saleem v. Shabbir Ahmed and others (2016 SCMR 1605); and Hashim Qasim and another v. The State (2017 SCMR 986).

Abdul Mateen v. Sahib Khan and others (PLD 2006 SC 538) and Noor Muhammad v. The State and another (2010 SCMR 97).

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denied any such incident. There was also an inconsistency regarding who held possession of the disputed Ihatta: PW Hanif claimed the accused were in possession, while PW Muhammad Ali stated that the complainant party already had possession and even acknowledged the possibility of a stay order in favour of the accused. Despite the centrality of this issue, the Investigating Officer failed to collect or produce any documentary evidence, such as an injunction order or revenue record, that could have clarified the position or helped identify the aggressor. It is well established that motive is a double-edged sword: it may furnish a reason to commit the offence, but it may equally provide a reason for false implication.12

49.The defence examined three witnesses. Khalil Ahmad (DW-1), a representative of NADRA, produced the Alfa & Beta Family Tree of Muhammad Hanif (Exh. DC and Exh. DD/1-2), which showed that the deceased, Muhammad Asif, was not listed as a son of Hanif. Muhammad Saleem (DW-2), Secretary Union Council 41, Chak No. 657-GB, testified that there was no birth entry in the name of Muhammad Asif, son of Muhammad Hanif, in the birth register for the years 1990–1994. However, he admitted that a birth entry dated 16.01.1991 existed for a child born in the house of Muhammad Hanif with the name of M. Asad. DW-3 Zulfiqar Ali, Incharge Rescue 15, City Faisalabad, produced a Rapt (Exh. DE) showing that a call was received at 7:48 p.m. on the day of occurrence from Gohar, a resident of Chak No. 629/GB, reporting quarrelling and firing in the jurisdiction of P.S. Lundianwala. The caller, however, did not disclose the names of the parties, the exact location, or whether he had personally witnessed the incident.

50.The evidentiary value of these witnesses is limited. DW-1 and DW-2 were evidently produced to cast doubt on the identity or existence of deceased Asif as the son of PW Hanif. However, their statements do not conclusively establish that Asif did not exist or was unrelated to PW Hanif. Importantly, PW Hanif consistently referred to Muhammad Ashraf and others v. The State (1998 SCMR 279), Muhammad Riaz v. Muhammad Zaman and another (PLD 2005 SC 484), Akbar Ali v. The State (2007 SCMR 486), Abdul Majeed v. Mulazim Hussain and others (PLD 2007 SC 637), and Sahib Khan v. The State (2008 SCMR 1049).

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the deceased as his son during the trial and was not confronted with these records during cross-examination to challenge his assertion or test the credibility of his claim. Furthermore, the defence did not offer any alternative theory regarding the deceased’s identity.

51.As for Zulfiqar Ali 6078/HC (DW-3), the Rescue 15 Rapt merely confirms that a vague and anonymous call was made after the incident, which neither contradicts the FIR nor discredits the prosecution’s account.

52.In the present case, the trial court observed that neither party had come forward with the whole truth and invoked Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502) to reconstruct the incident. It misdirected itself in doing so, as that authority is of limited application. It permits independent evaluation of the evidence where both parties have suppressed material facts, but it does not relieve the prosecution of its burden to prove the accused’s guilt beyond reasonable doubt. Any inference drawn by the court must be founded on admissible evidence and proved circumstances, and not on conjecture or speculation. In any event, if the trial court was inclined to discard both versions and reach its own conclusion, it was incumbent upon it to do so neutrally and on the basis of legally admissible evidence. Instead, it rested its findings substantially on the prosecution’s account, without addressing the material contradictions and omissions discussed above. The Appellant also raised a specific plea in his statement under section 342 Cr.P.C., denying his presence at the scene, whereas the prosecution attributed to him a direct and fatal role. The trial court did not engage with this fundamental inconsistency or resolve it through a reasoned evaluation of the record.

53.It is significant that the trial court acquitted co-accused Shaukat Ali, Ashiq, and Mehra after finding that the prosecution had failed to establish their participation in the occurrence or the existence of a common intention. Although it sought to distinguish the Appellant on the ground that he was attributed the fatal shot, that distinction cannot be sustained once the ocular account is found unreliable and unsupported by independent corroboration. In the absence of any other incriminating

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evidence connecting the Appellant with the offence, his conviction cannot be maintained.

54.In view of the above discussion, I hold that the prosecution has failed to establish the charge against the Appellant beyond reasonable doubt. It is well settled that the benefit of doubt is not a concession, but a legal right of the accused.13 Accordingly, Criminal Appeal No. 12055/J/2022 is allowed. The Appellant’s conviction and sentence are set aside, and he is acquitted of the charge. He shall be released from jail forthwith, unless he is required to be detained in any other case.

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55.In view of the Appellant’s acquittal, Criminal Revision No. 10970/2022, which seeks enhancement of his sentence, does not survive. It is, therefore, dismissed as infructuous.

(Tariq Saleem Sheikh) Judge Naeem

Approved for reporting

Judge

Muhammad Akram v. The State (2009 SCMR 230), Hashim Qasim and another v. The State (2017 SCMR 986), Abdul Jabbar and another v. The State (2019 SCMR 129), Muhammad Mansha v.The State (2018 SCMR-772) and Ahmed Ali and another v. The State (2023 SCMR 781).