Khalid Hussain Vs State etc .

HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.45838-J/2021

Khalid Hussain versus The State

JUDGMENT

Date of hearing: 28.09.2026.

Ch. Rizwan Khalid, Advocate alongwith Mr.

Appellant by:

Faseeh Ullah Khan, Advocate.

State by: Mr. Nisar Ahmad Virk, District Public Prosecutor. Muhammad Ashfaq (having his original CNIC Complainant by:

bearing No.33303-5753720-1), in person.

Farooq Haider, J.:- This appeal has been filed by Khalid Hussain (appellant) against the judgment dated: 02.07.2021 passed by learned Additional Sessions Judge, Faisalabad/trial court whereby in case arising out of F.I.R. No.926/2020 dated: 21.09.2020 registered under Sections: 302 PPC at Police Station: Jhang Bazar, Faisalabad, appellant has been convicted and sentenced as under:-

Conviction Sentence Under Section: “Imprisonment for Life” as Ta’zir for committing 302(b) PPC Qatl-e-Amd of Muhammad Akram (deceased) along with payment of compensation Rs.5,00,000/- under Section 544-A Cr.P.C. to the legal heirs of deceased, recoverable as arrears of land revenue and in default thereof to further suffer S.I. for six months.

Benefit of Section: 382-B Cr.P.C. was also extended to the appellant/convict.

2.Brief however necessary facts are that Muhammad Ashfaq (complainant/PW-2) produced application (Ex.PB) for registration of case to Rafaqat Ali, A.S.I./IC at Lakar Mandi Chowk regarding murder of his brother namely Muhammad Akram by the accused/appellant while firing straight shot with pistol .30 bore hitting Muhammad Akram on his chest; on the basis of said application (Ex.PB), case was registered vide F.I.R. No.926/2020 (Ex.PH) on 21.09.2020 under

Section: 302 PPC at Police Station: Jhang Bazar, District: Faisalabad; for ready reference, relevant portion of the F.I.R. (Ex.PH) is hereby scanned below: -

Appellant was formally charge sheeted to which he pleaded not guilty and claimed trial. Prosecution during trial examined eleven witnesses, out of whom, ocular account was furnished by Muhammad Ashfaq (complainant/PW-2) and Nazir Ali (eyewitness/PW-3), Dr. Javed Iqbal (PW-4) provided medical evidence whereas detail of investigation was deposed through secondary evidence by Muhammad Iqbal, A.S.I. (PW- 11, who was acquainted with the handwriting and signature of Muhammad Sarwar, Inspector/Investigating Officer of the case, since dead). Prosecution after giving up PWs namely Muhammad Aslam and Muhammad Nadeem Raza (being unnecessary) and tendering reports 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 did not opt to appear as his own

witness under Section: 340(2) Cr.P.C. or produce evidence in his defence.

Trial Court after conclusion of trial vide impugned judgment dated: 02.07.2021 has convicted and sentenced the appellant as mentioned above.

3.Learned counsel for the appellant has submitted that conviction recorded against and sentence awarded to the appellant through impugned judgment are against the ‘law and facts’ and result of non- reading/ misreading of evidence. Learned counsel for the appellant finally prayed for acquittal of the appellant.

4.Conversely, learned District Public Prosecutor has supported the impugned judgment and prayed for dismissal of the appeal.

5.Arguments heard. Record perused.

6.As per case of prosecution, occurrence took place at about 12:30 p.m. (noon) on 21.09.2020 in Naeem Weaving Factory Lakkar Mandi situated at a distance of 02 kilometers from the police station as per column No.4 of the Crime Report (Ex.PH), occurrence was reported by Muhammad Ashfaq (complainant/PW-2) while submitting written application (Ex.PB) to Rafaqat Ali, A.S.I./IC, who was present in Lakkar Mandi Chowk, which application was sent at 1:15 p.m. to the police station and Crime Report (F.I.R./Ex.PH) was recorded on the basis of said application at 01:30 p.m. (noon) on 21.09.2020. However, close scrutiny of the evidence/material available on the record reveals that Muhammad Ashfaq (complainant) while appearing before the Court as PW-2 categorically stated that he submitted written application (Ex.PB) before Station House Officer, Police Station: Jhang Bazar, on which his thumb-impression does exist as Ex.PB/1; in this regard, relevant portion of his statement is hereby reproduced as under:- “I submitted written application Ex.PB before SHO, P.S. Jhang Bazar, where my thumb impression is Ex.P.B./1.”

(emphasis added)

He (complainant/PW-2) then took somersault on the subject and clearly stated that application for registration of the case i.e. Ex.PB was written

by the police official and scribe of the said application (Ex.PB) examined the dead-body of Muhammad Akram (deceased of the case) before scribing the application and then he filed the same i.e. Exh.PB at Police Station: Jhang Bazar for registration of the case; relevant portions of his statement in this regard are also reproduced as under:- “Ex.P.B was written by a police official. The scriber of Ex.P.B examined the dead body of Muhammad Akram deceased before scribing the application.”

(emphasis added) “I have filed Ex.P.B in police station Jhang Bazar for registration of case.”

Nazir Ali (cited eyewitness) while appearing before the Court as PW-3 also stated that application (Ex.PB) was written by some police official at the spot and police reached the place of occurrence within half an hour; in this regard relevant portion of his statement is also hereby reproduced below:- “Application Ex.P.B was written by some police official at the spot. The Police reached the place of occurrence within half an hour.”

Therefore, version of the prosecution that primary document of the case of prosecution i.e. Crime Report (F.I.R./Ex.PH) was recorded on the basis of application (Ex.PB) submitted by complainant (PW-2) to Rafaqat Ali, A.S.I./IC at Lakkar Mandi Chowk, has been negated because complainant (PW-2) stated in his examination-in-chief that he submitted written application (Ex.PB) before Station House Officer, Police Station: Jhang Bazar then, during cross-examination clearly stated that a police official wrote application (Ex.PB) after examining the dead- body of Muhammad Akram (deceased of the case) before scribing the same and said application (Ex.PB) was filed by him in Police Station: Jhang Bazar for registration of the case. This fact clearly establishes that Crime Report (F.I.R./Ex.PH) was recorded in this case after preliminary investigation including inspecting the dead body, hence, it has lost its efficacy/worth and cannot provide any support to the case of prosecution.

Ocular account in this case produced by the prosecution consists of Muhammad Ashfaq (complainant/PW-2) and Nazir Ali (PW-3). It is relevant to mention here that when application for registration of the

case (Ex.PB) was scribed by a police official after examining the dead body, then on the one hand it can be safely inferred that he (police official) observed the locale, number, nature of the wounds and the trajectory of the bullets available on the dead body whereas on the other hand it reflects that incident was originally unseen, time spent/consumed in the inspection of the dead body, procuring and engaging the cited eyewitnesses including complainant (PW-2) who were not actually present at the time and scene of occurrence, and tailoring/cooking up the narration around the visible physical condition of the dead body with deliberation as well as consultation and such circumstances are fatal to the ocular account. And as a result, the Court has to lose confidence in the independence of the eyewitness testimony, viewing it as manufactured script rather than a genuine observation. So, in aforesaid state of affairs, neither ocular account is of much worth nor medical evidence can be taken into consideration for support/confirmation of the ocular account.

It is relevant to mention here that Muhammad Ashfaq (complainant/PW-2) introduced dishonest improvements in his statement before the Court and relevant portion of his statement in this regard is hereby reproduced:- “I have got written Ex.P.B that I alongwith my brother Muhammad Akram (since deceased) and Muhammad Aslam PW were labourers in Naeem Weaving Factory, confronted with Ex.P.B, where name of Muhammad Aslam PW has not been mentioned. I have got written in my application Ex.P.B that we all above said three brothers were sitting in spare parts room of the looms, confronted with Ex.P.B, where it is not so recorded. I have also got written in application Ex.P.B that accused Khalid Hussain came there and he threatened Muhammad Akram deceased, confronted with Ex.P.B, where only Muhammad Akram has not been mentioned. I have also got written in application Ex.P.B that accused Khalid Hussain threatened us if, we came near we, will also be murdered, confronted with Ex.P.B, where it is no so recorded.”

Nazir Ali (PW-3) has also introduced dishonest improvements and relevant portion of his statement in this regard is reproduced infra:- “I have got recorded in my statement before the I.O. u/s 161 Cr.P.C. that Khalid Hussain accused threatened Muhammad Akram deceased, confronted with Ex.D.A, where name of Muhammad Akram has not been mentioned. I have also got recorded in my statement u/s 161 Cr.P.C. that if we came near, we will also be done to death, confronted with Ex.D.A, where not so recorded.”

By now it is well settled that witness who introduces dishonest improvement or omission for strengthening the case, cannot be relied; in this regard, case of “MUHAMMAD ARIF versus The STATE” (2019 SCMR 631) and “KHALID MEHMOOD and another versus The STATE and others” (2021 SCMR 810) can be advantageously referred. Complainant/PW-2 was residing at a distance of about 70- kilometers from the factory in which occurrence took place whereas house of his brother-in-law i.e. Nazir Ali (PW-3) was situated at a distance of 10-kilometers from the place of occurrence and in this regard relevant portion of his statement is reproduced as under:- “Our village is at a distance of about 70 kilometers towards east from Naeem Weaving Factory. The house of my brother-in-law Nazir Ali, PW is at a distance of 10 kilometers from the place of occurrence.”

Therefore, complainant/PW-2 was a chance witness.

It is noticeable to mention here that it was claim of Muhammad Ashfaq (complainant/PW-2) that he alongwith his brothers Muhammad Akram (now deceased of the case) and Muhammad Aslam (given-up PW) were labourers in Naeem Weaving Factory of one Malik Naeem. However, he did not produce any proof/record to prove said fact i.e. he was labourer in said factory during investigation or trial of the case and relevant portion of his statement in this regard is hereby reproduced:- “I have not got presented any proof before the I.O. that I was worker in Naeem Weaving Factory at the time of occurrence. Today, I have no proof with me that I was a labourer in the above said factory at the time of occurrence.”

Similarly, Nazir Ali (PW-3, who is brother-in-law of the complainant) was also not resident of place of occurrence rather his house is situated at a distance of 10 kilometers (as detailed above), he was labourer in an old iron melting factory, as mentioned at the top of his examination-in- chief, copy whereof is available at page No.31 of the paper-book and relevant portion of the same is reproduced as under:- “Nazir Ali s/o Wazir Ali, Caste Arain, aged 35 years, labourer in an old iron melting factory, r/o Mohallah Feroz Shah, Chak No.224/RB Fateh Din Wali, Faisalabad, on oath.”

(emphasis added)

whereas during cross-examination, he (PW-3) stated that in the days of occurrence, he used to work in the Workshop of Bao Sajjad, situated at

Samundri Road, Faisalabad and the distance between said Workshop of Bao Sajjad and Naeem Weaving Factory is about 15/20 kilometers and relevant portion of his statement in this regard is hereby reproduced:- “In the days of occurrence, I used to work in Workshop of Bao Sajjad, situated at Samundri Road, Faisalabad. The distance between said Workshop of Bao Sajjad and Naeem Weaving Factory is about 15/20 kilometers.”

Therefore, he was also a chance witness who simply stated that he came to the place of occurrence for visiting the deceased, Muhammad Aslam (PW) and Muhammad Ashfaq (complainant/PW-2) but he did not explain in clear words that what was purpose of his visit. It is also to be noted here that Mehmood Akbar Nizami, Draftsman {PW1, who prepared site-plan of the place of occurrence (Ex.PA)} categorically stated that there was no house or shop of the complainant or cited eyewitness situated, near or around the place of occurrence and in this regard relevant portion of his (PW-1) statement is hereby reproduced:- “No house or shop of the complainant and the PW is situated near or around the place of occurrence.”

It is quite important to mention here that in every factory, now usually CCTV cameras are installed for the purpose of security and Register is also maintained for recording entry of any visitor/person/employees coming there with time and date as well as time and date of their departure/exit but any such record of said factory showing entry of Nazir Ali (PW-3) “as visitor” and that of complainant Muhammad Ashfaq (PW-2) “as employee” has neither been produced during investigation nor during trial of the case, so much so that any official of said factory looking after arrival and departure of persons over there, has not been produced to prove said fact. Hence, though Muhammad Ashfaq (PW-2) and Nazir Ali (PW-3) were the “chance witnesses” and thus were required to offer valid, plausible and cogent reason for going to the crime scene at the time of occurrence yet they failed to provide and establish any such valid reason; hence their testimony is “suspect” evidence and cannot be accepted without pinch of salt; in this regard, guidance has been sought from the case of “Mst. SUGHRA BEGUM and another vs. QAISER PERVEZ and others” (2015 SCMR 1142) and relevant portion from paragraph No.14 of said case law is hereby reproduced: -

“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 “IMRAN versus The STATE” (2026 SCMR 47), “MUHAMMAD SIDDIQUE and another Versus The STATE and others” (2026 SCMR 783), “RASHEED AHMAD alias Sheeda Versus The STATE” (2026 SCMR 798) and “MUHAMMAD ZUBAIR and another versus The STATE and others” (2026 SCMR 1193). Moreover, as per Postmortem Examination Report (Ex.PC, copy whereof is available at Page No.75-80 of the paper book) and statement of Dr. Javed Iqbal (PW-4, who conducted postmortem examination over dead body of the deceased), there was burning and blackening on the entry wound, however, as per site-plan of the place of occurrence with scale (Ex.PA) prepared by Mehmood Akbar Nizami, Draftsman (PW-1), assailant fired shot at Muhammad Akram from a distance of 4.5 feet and relevant portion of his (PW-1) statement in this regard is hereby reproduced as under:- “The distance between points No.1 &2 is 4 1⁄2 feet.” It is well settled principle of medical jurisprudence that burning on the entry wound can be caused by .30 bore pistol if shot is fired from very close range and if assailant (as per site-plan) was statedly at a distance of 4.5 feet when he fired shot at the victim then presence of burning on entry wound does not support the ocular account in stricto sensu, on this aspect also. Therefore, in view of all above, ocular account has neither been found as trustworthy nor confidence inspiring, thus not reliable and hence discarded.

As far as medical evidence is concerned, suffice it to say that it is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury, duration of the injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury and in this regard guidance has been sought from the case of “MUHAMMAD RAMZAN versus The State” (2025 SCMR 762), relevant portion from the case law is as under:- “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.”

Furthermore, when in this case, application for registration of the case was written after examining the dead body which includes inspection of locale and number of injuries, then medical evidence is not of much help to the prosecution.

As far as recovery of pistol .30 bore (P-3) at the pointing out of the appellant, securing of an empty (P-5) from the place of occurrence and report of PFSA (Ex.PQ, which reflects that empty cartridge received over there was identified as having been fired from aforementioned pistol) are concerned, suffice it to say that empty cartridge and pistol .30 bore were jointly sent to the office of PFSA after arrest of the appellant, therefore, said report is of no avail to the case of prosecution and for said valid reason, trial court has rightly held in paragraph No.20 of the impugned judgment that positive report of PFSA has lost its evidentiary value.

So far as motive of the occurrence is concerned, Muhammad Ashfaq (complainant/PW-2) during his examination-in-chief deposed about the motive before the Court and in this regard, relevant portion of the same is reproduced as under:- “Khalid Hussain accused, present before the court, came there and started talking that with Muhammad Akram (deceased) that he had obtained daily without leave and had not worked. He further talked that he had to work in double shift due to his absence. Khalid Hussain accused started abusing my brother Muhammad Akram deceased. We tried to patch up the matter but the accused threatened for dire consequences. Accused Khalid Hussain brought out a pistol from the fold of his shalwar and made a straight fire on my brother Muhammad Akram, which landed on his chest.”

However, during cross-examination, he (PW-2) clearly stated that salaries to the workers were being paid by Malik Naeem himself and they worked on lease and payment was being paid after a week and furthermore, there were three Supervisors in the factory and in this regard relevant portion of his statement is hereby reproduced:- “Salaries to the workers were being paid by Malik Naeem himself. We worked on lease and payment was being paid after a week. There were three supervisors in the said factory.”

Said fact stated during cross-examination, has clearly negated motive alleged in the application (Ex.PB) as well as stated in his examination- in-chief by complainant/PW-2 and any proof regarding motive part could not be brought on the record; thus, motive could not be established through any independent and cogent evidence/material and for valid reasons, trial court in paragraph No.19 of the impugned judgment has clearly held that prosecution has failed to prove the alleged motive.

7.Nutshell of the above discussion is that when case of the prosecution is analyzed from all angles, then this Court has come to the conclusion that prosecution has been failed to prove its case against the appellant, therefore, there is no need to discuss defence version.

8.In view of what has been discussed above, instant appeal filed by Khalid Hussain (appellant) is allowed; conviction recorded and sentence awarded to the appellant through impugned judgment dated: 02.07.2021 are hereby set-aside. Appellant is acquitted of the charge, he be released from jail forthwith, if not required in any other case.

(Farooq Haider) Judge Approved for reporting.

(Farooq Haider) Judge

This judgment has been dictated and pronounced on 28.09.2026 whereas after preparation/completion, signed on 29.09.2026.

Javaid.S.