The State . Vs Zahid Ali

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.13876-J of 2023 (Zahid Ali v. The State) and Criminal Appeal No.13881-J of 2023 (Fazal Abbas & another v. The State) and Criminal Revision No.27794 of 2025 (Muhammad Aziz v. Zahid Ali & 3 others) and Murder Reference No.51 of 2023 (The State v. Zahid Ali)

JUDGMENT

Date of hearing: 21.09.2026 Appellants by: Ms. Saiqa Javed, Advocate a/w appellant Fazal Abbas.

Complainant by: Ms. Bushra Qamar, Advocate a/w complainant. State by: Rana Ahsan Aziz, Additional Prosecutor General.

ABHER GUL KHAN, J. The appellants Zahid Ali, Muhammad Sibtain and Fazal Abbas along with co-accused Muhammad Nawaz, Muhammad Waqas and Muhammad Ijaz were tried by Additional Sessions Judge, Sargodha in private complaint titled Muhammad Aziz v. Zahid Ali & 5 others for the offences under Sections 302, 324, 148, 149, 114, 109, 337-A (i), 337-D, 337-F (iii) & 337-L (2) PPC arising out of FIR No.323/2019 dated 28.06.2019 registered under Sections 302, 324, 337-D, 337-F (iii), 337-A (i), 337-L (2), 114, 109, 148 & 149 PPC at Police Station Jhall Chakian, Sargodha. The trial court vide judgment dated 07.02.2023 acquitted the aforesaid co-accused, however convicted and sentenced the appellants in the following terms:-

(1).Appellant-Zahid Ali Under Section 302(b) PPC to suffer death sentence as ta’zir for qatl-i-amd of the deceased Muhammad Mansha. He was further directed to pay Rs.5,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. The amount of compensation so imposed was ordered to be recoverable as arrears of land revenue and in default whereof to further undergo simple imprisonment for six months.

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

(2).Appellant-Fazal Abbas (i). Under Section 324 PPC to suffer rigorous imprisonment for 10- years for attempt to commit qatl-i-amd of injured Muhammad Mumtaz (PW.2). He was also directed to pay Rs.50,000/- as fine and in default thereof to further undergo simple imprisonment for one month.

(ii). Under Section 337-F (iii) PPC to pay Daman of Rs.20,000/- for causing injury No.1 with exit wound of injury No.2 to Muhammad Mumtaz, failing which he was ordered to undergo simple imprisonment for ten days.

(iii). Under Section 337-F (iii) PPC to pay Daman of Rs.20,000/- for causing injury No.3 with exit wound of injury No.4 to injured Muhammad Mumtaz, failing which he was ordered to undergo simple imprisonment for ten days.

(iv). Under Section 337-F (iii) PPC to pay Daman of Rs.20,000/- for causing injury No.5 with exit wound of injury No.6 to injured Muhammad Mumtaz, failing which he was ordered to undergo simple imprisonment for ten days.

(v). Under Section 337-F (iii) PPC to pay Daman of Rs.20,000/- for causing injury No.7 with exit wound of injury No.8 to injured Muhammad Mumtaz, failing which he was ordered to undergo simple imprisonment for ten days.

(vi). Under Section 337-F (iii) PPC to pay Daman of Rs.20,000/- for causing injury No.9 to injured Muhammad Mumtaz, failing which he was ordered to undergo simple imprisonment for ten days.

(3).Appellant-Muhammad Sibtain (i).Under Section 324 PPC to suffer rigorous imprisonment for 10- years for attempt to commit qatl-i-amd of injured Muhammad Asghar. He was also directed to pay Rs.50,000/- as fine and in default thereof to further undergo simple imprisonment for one month.

(ii). Under Section 337-D PPC to suffer rigorous imprisonment for 10-years for causing injury No.1 to the injured Muhammad Asghar. He was further directed to pay Arsh i.e. 1/3rd of Diyat for the year 2019 and till its payment he was ordered to be kept in jail. (iii). Under Section 337-A (i) PPC to pay Daman of Rs.20,000/- for causing injury No.2 to injured Muhammad Asghar, failing which he was ordered to undergo simple imprisonment for ten days. (iv). Under Section 337-A (i) PPC to pay Daman of Rs.20,000/- for causing injury No.3 to injured Muhammad Asghar, failing which he was ordered to undergo simple imprisonment for ten days. (v). Under Section 337-L (2) PPC to suffer rigorous imprisonment for 2-years for causing injury No.4 to injured Muhammad Asghar. He was also directed to pay Daman of Rs.20,000/-, failing which he was ordered to undergo simple imprisonment for ten days. All the sentences awarded to the appellants Fazal Abbas and Muhammad Subtain were ordered to run concurrently with the benefit of Section 382-B Cr.P.C.

Aggrieved by his conviction and sentence the appellant Zahid Ali preferred Criminal Appeal No.13876-J of 2023, whereas appellants Fazal Abbas and Muhammad Subtain filed Criminal Appeal No.13881- J of 2023. The complainant Muhammad Aziz (PW.1) also invoked the

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

revisional jurisdiction of this Court by filing Criminal Revision No.27794 of 2025, seeking enhancement of the sentences awarded to the aforesaid convicts. Likewise, trial Court sent Murder Reference No.51 of 2023 under Section 374, Cr.P.C., seeking confirmation or otherwise of the sentence of death awarded to appellant/convict Zahid Ali. Since all these matters arise out of the same judgment, hence are being decided through this single judgment.

2.Succinctly stated the prosecution case as set forth by the complainant Muhammad Aziz (PW.1) in the FIR (Exh.PBB) is that he is the resident of Chak No.75-Shumali and an agriculturist by profession. He had established a Dera at his agricultural land where he and his family members resided. On the night intervening 27/28.06.2019, at about 1:00 a.m., the complainant along with his brother Muhammad Mansha (deceased), nephew Muhammad Irshad (given up PW), Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) was sitting on cots in the open area of the Dera and engaged in conversation. Meanwhile, all of a sudden the appellant Zahid Ali armed with a .12-bore repeater, the appellant Subtain and the appellant Fazal Abbas armed with .44-bore rifles, accompanied by three unknown accused also armed with firearms, arrived at the place of occurrence and at that time the spot was illuminated by electric bulbs. Upon their arrival, appellant Zahid Ali, while raising a lalkara, fired a shot from his .12-bore repeater which struck Muhammad Mansha at his back beneath left shoulder. Thereafter, the appellant Subtain fired a shot from his .44-bore rifle, which hit injured Muhammad Asghar (PW.3) at his right thigh, head and flank. Subsequently, appellant Fazal Abbas fired a shot from his .44-bore rifle, which struck injured Muhammad Mumtaz (PW.2) at his right thigh. The three unknown assailants resorted to indiscriminate firing while raising lalkaras. The complainant and his nephew Muhammad Irshad (given up PW) upon witnessing the occurrence, raised an alarm whereupon the appellants and their co- accused fled away from the spot while making firing. When the complainant attended the deceased Muhammad Mansha, he found him

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

to have succumbed to the firearm injury at the spot. As Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) had sustained serious injuries, they were shifted to DHQ Hospital, Sargodha for medical treatment. The motive behind the occurrence statedly was the previous enmity between the accused Muhammad Nawaz Awan (since acquitted) and Muhammad Asghar (PW.3) etc. Allegedly at the instance of the accused Muhammad Nawaz Awan (since acquitted), the appellant Zahid Ali and his co-accused committed the murder of Muhammad Mansha and caused firearm injuries to Muhammad Asghar (PW.3) and Muhammad Mumtaz (PW.2). A few days prior to the occurrence, Muhammad Nawaz Awan had telephonically warned Farman Ali that his paternal cousin Naveed Iqbal was teasing him and that unless restrained he would be taught a lesson.

3.On 28.06.2019 Muhammad Yar, SI (CW.1) upon receiving information regarding the occurrence reached the place of occurrence. In the meantime, injured Muhammad Asghar (PW.3) and Muhammad Mumtaz (PW.2) were shifted to DHQ Hospital, Sargodha for medical treatment. Muhammad Yar SI (CW.1) recorded the oral statement (Exh.PA) of the complainant Muhammad Aziz (PW.1), which was transmitted to the police station through Ghulam Bahu, 342/C, for registration of the formal FIR. Thereafter, Muhammad Yar, SI (CW.1), inspected the place of occurrence and prepared an unscaled site plan (Exh.CW.1/A). He collected blood-stained earth from the place where the deceased Muhammad Mansha had sustained the fatal injury through recovery memo Exh.PB, and likewise secured blood-stained earth from the places where injured Muhammad Asghar (PW.3) and Muhammad Mumtaz (PW.4) had sustained injuries through memos Exh.PC and Exh.PD respectively. He further took into possession ten crime empties of .44-bore firearm (P.2/1-10) and three crime empties of .12-bore firearm (P.3/1-3) through recovery memos Exh.PF and Exh.PG, respectively. Two electric bulbs (P.1/1-2) were also taken into possession from the place of occurrence through memo Exh.PE. On 28.07.2019, the complainant Muhammad Aziz (PW.1) nominated

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

Muhammad Waqas as an accused through an application (Exh.CW.1/B) and making supplementary statement. Subsequently, on 06.08.2019, accused Muhammad Subtain, Fazal Khan and Muhammad Waqas were arrested. On 16.08.2019, warrants of arrest of appellant Zahid Ali (Exh.PR) were obtained from the competent Court and handed over to Nasar Hayat 293/C for execution. During investigation Section 114 PPC was added against accused Muhammad Waqas (since acquitted). On 25.08.2019, report under Section 173 Cr.P.C. was submitted to the extent of accused Muhammad Subtain, Fazal Khan, Muhammad Waqas and Muhammad Nawaz. As appellant Zahid Ali remained at large, proclamation under Section 87 Cr.P.C. (Exh.PS) was obtained from the Court on 03.09.2019 and entrusted to Nasar Hayat, 293/C, for execution. His statement was subsequently recorded regarding execution of the warrants of arrest and proclamation against the appellant. Consequently on 28.10.2019 report under Section 173 Cr.P.C., to the extent of appellant Zahid Ali, was prepared under Section 512 Cr.P.C. The investigation was thereafter conducted by Muhammad Iqbal, SI (CW.2), who arrested the appellant on 27.01.2020. During investigation on 05.02.2020 the appellant made a disclosure and in pursuance thereof led to the recovery of a .12-bore gun (P.10). Upon unloading the weapon, five live cartridges (P.11/1-5) and from the cloth bag ten live cartridges (P.11/6-15) were recovered. The firearm and cartridges were taken into possession through recovery memo Exh.PX. Muhammad Iqbal SI (CW.2) also arranged for the identification parade of accused Muhammad Ijaz (since acquitted) in District Jail, Sargodha under the supervision of the learned Judicial Magistrate, Mr.Masood Asghar. On 23.02.2020, accused Muhammad Ijaz made a disclosure and, in pursuance thereof, led to the recovery of a .44-bore rifle (P.13) which was taken into possession through recovery memo Exh.PY. Finally, on 27.02.2020 Muhammad Iqbal, SI (CW.2) submitted the report under Section 173 Cr.P.C. to the extent of appellant Zahid Ali and accused Muhammad Ijaz (since acquitted).

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

4.Aggrieved by the manner in which the investigation had been conducted, the complainant Muhammad Aziz (PW.1) instituted a private complaint (Exh.PH), whereupon the trial proceeded. In support of its case against the appellants, the prosecution examined fifteen witnesses. Muhammad Aziz (PW.1), Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) furnished the ocular account of the occurrence. Dr.Muhammad Asim Siddique (PW.4) on 28.06.2019, conducted the medico-legal examination of injured Muhammad Mumtaz and Muhammad Asghar and issued their respective medico- legal certificates (Exh.PJ & Exh.PK). Muhammad Masood Asghar, Judicial Magistrate (PW.15), supervised the identification parade of accused Muhammad Ijaz (since acquitted) at District Jail, Sargodha, and prepared report (Exh.PCC). The remaining prosecution witnesses are by and large formal in nature. The trial Court also examined two witnesses as Court witnesses, namely Muhammad Yar SI (CW.1) and Muhammad Iqbal, SI (CW.2) who had conducted the investigation, the salient features of which have already been noticed hereinbefore. Upon conclusion of the prosecution evidence, the appellants were examined under Section 342, Cr.P.C. All incriminating circumstances appearing against them in the prosecution evidence were put to them. They denied the allegations, asserted their innocence and pleaded false implication on account of ulterior motives. They, however, neither opted to make statements on oath under Section 340(2), Cr.P.C., nor produced any evidence in their defence. After hearing learned counsel for the parties and examining the evidence available on the record, the trial Court found the appellants guilty of the charges and accordingly convicted and sentenced them in the manner stated hereinbefore, hence the instant criminal appeals, criminal revision and Murder Reference.

5.Learned counsel for the appellants submits that notwithstanding the apparent prompt registration of the FIR, the police record was in fact, manipulated so as to create an impression of promptitude. The prosecution case rests principally upon the ocular account furnished by Muhammad Aziz (PW.1), Muhammad Mumtaz (PW.2) and

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

Muhammad Asghar (PW.3), yet the complainant has failed to offer any satisfactory explanation for the presence of these witnesses at the place of occurrence, while the account furnished by the injured eye- witnesses, Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3), is inherently doubtful and is not consistent with the attending circumstances, particularly the medical evidence. The eye-witnesses, while appearing before the trial Court made material contradictions and introduced improvements in their respective statements, thereby rendering their ocular account unsafe for reliance. The medical evidence is materially at variance with the ocular account and therefore, casts serious doubt upon the prosecution version. The alleged recovery of a .12-bore gun at the instance of appellant Zahid Ali does not support the prosecution case, as the report of the PFSA is inconsequential and fails to furnish any meaningful corroboration. On these premises, learned counsel contends that the prosecution has failed to establish the charge against the appellants beyond reasonable doubt, thus they are entitled to the benefit of doubt and their conviction and sentences are liable to be set aside, with the result that they deserve acquittal.

6.Conversely the learned Additional Prosecutor General, well assisted by learned counsel for the complainant, has vehemently opposed the appeals submitting that the FIR was lodged promptly, thereby excluding the possibility of deliberation, consultation or subsequent fabrication of the prosecution case. Apart from the complainant, the ocular account was furnished by two injured witnesses, namely Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3), whose presence at the place of occurrence stands established by the injuries sustained by them during the occurrence and, thus, cannot reasonably be doubted. The medical evidence materially corroborates the ocular account and the prosecution has successfully established that the appellants with deliberation, committed the murder of an innocent person and caused firearm injuries to two others and in the circumstances, the appellants do not merit any concession or

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

leniency. On these premises, learned counsel has prayed that the convictions and sentences recorded by the trial Court be maintained and the instant appeals be dismissed.

7.Arguments heard. Record perused.

8.A perusal of the record reveals that the instant case arises out of an occurrence which took place on 28.06.2019 at about 1:00 a.m. in the area of Chak No.75-Shumali, situated at a distance of approximately 11-kilometres from Police Station Jhal Chakian. During the occurrence, Muhammad Mansha (deceased) sustained firearm injuries at his back beneath the left shoulder allegedly attributed to appellant Zahid Ali, who was armed with a .12-bore repeater. In the same occurrence, Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) also sustained firearm injuries. The shot allegedly fired by appellant Subtain from his .44-bore rifle struck Muhammad Asghar (PW.3) on his left thigh, head and flank, whereas the shot attributed to appellant Fazal Abbas also fired from a .44-bore rifle struck Muhammad Mumtaz (PW.2) on his left thigh. The deceased Muhammad Mansha succumbed to his injuries at the spot, whereas the injured witnesses were shifted to DHQ Hospital Sargodha for medical treatment. The occurrence was reported to the police by complainant Muhammad Aziz (PW.1) who made a verbal statement before Muhammad Yar SI (CW.1) at about 3:00 a.m. on 28.06.2019 at the place of occurrence. His statement was reduced into writing as complaint (Exh.PA) and dispatched to the police station through Ghulam Bahu, 342/C, for registration of the formal FIR. Thereafter the case was registered and investigated. However, being dissatisfied with the manner in which the investigation had been conducted, the complainant Muhammad Aziz (PW.1) instituted a private complaint (Exh.PH) on 04.01.2020 whereupon the trial proceeded.

9.In the backdrop of the facts noticed hereinbefore, a significant aspect which requires examination is the alleged prompt reporting of the occurrence. According to the prosecution the incident took place on 28.06.2019 at about 1:00 a.m., whereas complainant Muhammad Aziz

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

(PW.1) the real brother of deceased Muhammad Mansha, reported the occurrence at about 3:00 a.m. by making a verbal statement before Muhammad Yar, SI (CW.1), upon his arrival at the place of occurrence. Thus, on the face of the record the prosecution seeks to portray a lapse of only about two hours between the occurrence and its reporting to the police. Learned counsel for the complainant has relied upon this circumstance to contend that the prompt reporting of the crime left no meaningful opportunity for deliberation, consultation or fabrication of a false narrative. Conversely, learned defence counsel has assailed the very manner in which the occurrence was allegedly reported and maintained that the police record was subsequently manipulated so as to create an impression of promptitude. We have examined the record with the requisite care and find substance in the contention advanced by learned defence counsel. It is borne out from the record that Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) who are alleged to have sustained firearm injuries in the occurrence were transported to DHQ Hospital, Sargodha where they were medically examined by Dr.Muhammad Asim Siddique (PW.4) who issued their respective medico-legal certificates (Exh.PJ & Exh.PK). The statement of the said Medical Officer read with the MLCs prepared by him reveals that both injured witnesses reached the hospital on 28.06.2019 at about 2:30 a.m. and were accompanied by Muhammad Ijaz ASI (PW.11). The testimony of Muhammad Ijaz ASI (PW.11) reveals that on 28.06.2019 he prepared the injury statements of Muhammad Mumtaz (Exh.PJ) and Muhammad Asghar (Exh.PK) and thereafter got them medically examined from the Medical Officer. During cross- examination, Muhammad Ijaz ASI (PW.11) disclosed that he had reached the place of occurrence at about 2:00 a.m. and had prepared only the injury statements of the two injured persons, without preparing the inquest report. Muhammad Ijaz ASI (PW.11) further stated that he reached the hospital at about 2:35 a.m. on the fateful night. Moreover, Muhammad Ijaz ASI (PW.11) stated that he had proceeded to the spot in the company of Muhammad Yar, SI, Ghulam Baho, Constable, and

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

Sikandar Hayat, Constable, and that, at that time, complainant Muhammad Aziz (PW.1) was also present there. The aforesaid testimony assumes significance when examined alongside the prosecution's assertion that the complainant made his statement before Muhammad Yar SI (CW.1) at the place of occurrence at about 3:00 a.m. If the injured witnesses had already reached the hospital at about 2:30 a.m., accompanied by police officials, while the complainant was also present there, the sequence projected by the prosecution regarding the recording and transmission of the complainant's statement requires careful scrutiny. This circumstance, therefore, cannot be brushed aside merely on the basis of the stated two-hour interval between the occurrence and the registration of the FIR. Since the testimony of Muhammad Ijaz, ASI (PW.11) bears directly upon the chronology of the police proceedings, the relevant portion of his cross-examination is reproduced hereunder:- “I reached at the place of occurrence at 02:00 a.m. (night). I only prepared injury statements of above two injured persons. I did not prepare inquest report. I medically got examined both injured persons. I reached at hospital at 02:35 a.m. in the fateful night. We reached at the venue of crime, Muhammad Yar SI again said I reached there in the company of Muhammad Yar SI, Ghulam Bahu Constable and Sikandar Hayat Constable. At that time the complainant of this case was present there.”

Furthermore, the complainant Muhammad Aziz (PW.1) during his cross-examination categorically stated that the police recorded his statement for registration of the FIR at about 9:00/10:00 a.m. at the place of occurrence. If this version is admitted as correct then registration of FIR at 3:20 a.m. i.e. 6/7 hours earlier by police is meaningless. This assertion assumes significance when juxtaposed with the contents of the inquest report (Exh.PP) which indicate that the police had knowledge of the occurrence as early as 1:30 a.m. on the fateful night. The record therefore gives rise to an important question that if the police had already acquired knowledge of the occurrence between 1:30 and 2:00 a.m., and the complainant was admittedly present at the place of occurrence what prevented him from reporting

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

the occurrence to the police officials present there. However, Muhammad Yar SI (CW.1) stated that he being the Investigating Officer/HIU along with Muhammad Ijaz ASI (PW.11) and other police officials reached the place of occurrence at about 2:00 a.m. on 28.06.2019. According to him, the inquest report (Exh.PP) and injury statement (Exh.PN) of deceased Muhammad Mansha were prepared at the spot. This version itself gives rise to another circumstance requiring consideration that if Muhammad Yar SI (CW.1) was in charge of the investigation and was present at the spot then why the injury statements of the two injured persons were prepared by Muhammad Ijaz ASI (PW.11) particularly when their injuries had allegedly been sustained in the same transaction. No satisfactory explanation for this aspect is forthcoming from the record. The evidentiary significance of these circumstances becomes more apparent when the time appearing at the foot of complaint (Exh.PA) is compared with the timings stated by the aforesaid police officials. There is yet another circumstance which cannot be overlooked. After recording the complaint (Exh.PA) Muhammad Yar SI (CW.1), allegedly entrusted the same to Ghulam Bahu, 1114/C for transmission to the police station for registration of the formal FIR. In the circumstances, the said police official was a material witness, as his testimony could have established the intervening link between the preparation of the complaint at the spot, its transmission to the police station and its delivery to the Moharrar/Station Clerk for registration of the FIR. Despite the obvious evidentiary significance of his testimony, Ghulam Bahu, 1114/C was neither cited as a prosecution witness by the complainant in the private complaint nor examined by the trial Court as a Court witness. The withholding of such a material witness without any plausible explanation therefore assumes significance. We are conscious of the fact that on the face of the record the time between the alleged occurrence and the registration of the FIR (Exh.PBB) is stated to be only about two hours. Ordinarily, such delay by itself may not carry much evidentiary weight. The present case, however, cannot be

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

examined in isolation from the surrounding circumstances because the contemporaneous record and the testimony of the relevant witnesses disclose material discrepancies regarding the time when the police first acquired knowledge of the occurrence, the time when the complainant's statement was actually recorded, and the manner in which the same was transmitted for registration of the FIR. Consequently, the alleged promptitude in registration of the FIR rather than resolving the question of spontaneity requires cautious appraisal in the light of the entire record. In this context reference may be made to the case reported as Abdul Ghafoor v. The State (2022 SCMR 1527) wherein the Supreme Court of Pakistan held as under:- “This Court while holding that the delay of two hours in lodging the FIR has assumed great significance as the same can be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution may wish to implicate charge and put to trial. ”

10.Having found the prosecution’s assertion regarding prompt registration of the FIR to be unsafe for reliance, we have examined with the requisite care the ocular account furnished by Muhammad Aziz (PW.1), Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3), the latter two being the injured witnesses. Briefly stated, the prosecution case is that on the night intervening 27/28.06.2019, at about 1:00 a.m., the deceased Muhammad Mansha, the complainant Muhammad Aziz (PW.1), injured Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) were sitting at their Dera and conversing when the appellants, accompanied by three unknown accused armed with firearm weapons allegedly arrived there. Allegedly, the appellant Zahid Ali fired a shot from his .12-bore repeater which struck Muhammad Mansha at his back beneath left shoulder, the appellant Subtain fired a shot from his .44-bore rifle which struck Muhammad Asghar (PW.3) at his right thigh, head and flank, whereas the appellant Fazal Abbas fired a shot from his .44-bore rifle which struck Muhammad Mumtaz (PW.2) at his right thigh. The three unknown assailants were attributed the role of aerial firing. Subsequently, two of

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

them were nominated as Muhammad Waqas and Muhammad Ijaz, whereas the identity of the third remained unascertained. It is the consistent case of the complainant, both in the FIR and in the private complaint that immediately after the occurrence injured Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) were shifted to DHQ Hospital, Sargodha where they were medically examined by Dr. Muhammad Asim Siddique (PW.4), who issued their respective MLCs (Exh.PJ and Exh.PK). However, when the testimony of Muhammad Aziz (PW.1) is examined in the light of the surrounding circumstances and the contemporaneous record, his presence at the place of occurrence becomes highly doubtful. During cross-examination, the complainant admitted that the occurrence took place during the hot summer season; that Fajar Azaan in those days was offered at about 3:45 a.m. and that they ordinarily go for sleep at about 10:00 p.m. In this backdrop, his assertion that at about 1:00 a.m. during the intervening night, he along with the deceased and the two injured persons was sitting at the Dera merely to converse does not accord with the ordinary course of human conduct, particularly when no convincing explanation has been furnished for remaining awake at that hour. The complainant’s conduct immediately after the occurrence also raises a serious question regarding his presence. Although the complainant asserted that the two injured were shifted immediately to DHQ Hospital, Sargodha, yet the prosecution has not brought on record the source of conveyance by which they were transported. More importantly, the MLCs of both injured witnesses contain no reference to the complainant having accompanied them to the hospital. This circumstance assumes significance because Muhammad Mumtaz (PW.2) was the complainant’s paternal cousin, while Muhammad Asghar (PW.3) according to the prosecution itself, was a close friend of the deceased and had come to the Dera to meet him. In the ordinary course, the presence of the complainant at the hospital or his accompanying the injured would have been expected. The doubt with regard to the presence of the complainant is further reinforced by the

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

inquest report (Exh.PP) which was prepared at the place of occurrence in Chak No.75-Shumali and mentions Muhammad Sarwar (given up PW) and Muhammad Nawaz (PW.7) as the persons who identified the dead body. However, the name of complainant Muhammad Aziz (PW.1) does not figure therein. Thus, his alleged presence with the dead body of his real brother at the time of preparation of the inquest report also becomes questionable. Although Muhammad Nawaz (PW.7) is shown in the inquest report as a person who identified the dead body, yet while appearing before the trial Court he did not state that he had identified the dead body at the time of preparation of the inquest report, rather he stated that he identified the dead body at the time of post-mortem examination. This discrepancy further weakens the prosecution’s attempt to establish the complainant’s presence at the spot. Besides that, on 28.07.2019 the complainant nominated accused Muhammad Waqas (since acquitted) through application (Exh.CW.1/B) and supplementary statement while on the other hand the accused Muhammad Ijaz was already confined in another case and was subsequently implicated in the instant case on the basis of an identification parade conducted under the supervision of Muhammad Masood Asghar, Judicial Magistrate (PW.15). The identity of the third unidentified assailant could neither be established during investigation nor at trial. Similarly, the accused Muhammad Nawaz (since acquitted) was nominated in the FIR as the person who had allegedly abetted the occurrence. The said three accused faced the trial but all were ultimately acquitted by the trial Court. The complainant initially challenged the acquittal of the said co-accused by filing Criminal PSLA No.16510 of 2023, however the petition was subsequently withdrawn by his learned counsel and was dismissed as withdrawn by this Court vide order of even date. In view of the foregoing, the questionable chronology of the initial report, the complainant’s conduct immediately after the occurrence, his unexplained absence from the hospital record, his non-appearance as an identifying person in the inquest report, and the material discrepancy in the testimony of Muhammad Nawaz

Criminal Appeal No.13876-J of 2023, Criminal Appeal No.13881-J of 2023, Criminal Revision No.27794 of 2025 & Murder Reference No.51 of 2023

(PW.7) render the alleged presence of Muhammad Aziz (PW.1) at the place of occurrence highly doubtful, thus his testimony cannot safely be relied upon without independent and confidence-inspiring corroboration.

While it is true that an eyewitness who sustains injuries in the course of a murderous assault ordinarily furnishes strong assurance of his presence at the place of occurrence, the mere fact of his having sustained an injury does not by itself render his testimony unimpeachable or conclusively establish the truthfulness of his account. The evidence of an injured witness like that of any other witness must be subjected to careful and independent scrutiny in accordance with the settled principles governing appreciation of evidence before it can safely form the basis of the conviction. The oft-repeated proposition that an injured witness would ordinarily not implicate an innocent person may carry persuasive value in appropriate circumstances, however it cannot be elevated into an inflexible rule, particularly where the prosecution alleges the involvement of several assailants. The mere presence of injuries, therefore, cannot substitute for a judicial assessment of the witness’s credibility, consistency and compatibility with the other evidence on record. His testimony must still withstand rigorous scrutiny, and where material infirmities, contradictions or circumstances casting doubt upon its reliability emerge, conviction cannot safely be founded upon such testimony merely because the witness happened to be injured. Reference can be made to the case reported as Amin Ali v. The State (2011 SCMR 323) wherein the Supreme Court of Pakistan observed as under:- “Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of P.Ws. would not stamp them truthful witnesses.”

In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Supreme Court of Pakistan while examining the case of an injured witness held as under:-

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“It is settled law that injuries of PWs are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. See Said Ahmed’s case (1981 SCMR 795) and Muhammad Pervez’s case (2007 SCMR 670).”

Keeping in view the aforesaid observations of the Supreme Court of Pakistan, we have examined the testimonies of both the injured eyewitnesses with great circumspection. According to the prosecution Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) sustained firearm injuries during the occurrence in which Muhammad Mansha was murdered. It is the consistent assertion of complainant Muhammad Aziz (PW.1), both in the FIR and in the private complaint, that immediately after the occurrence the two injured persons were shifted to DHQ Hospital, Sargodha, where Dr.Muhammad Asim Siddique (PW.4) medically examined them and issued their respective MLCs (Exh.PJ & Exh.PK). A careful examination of the testimony of Dr.Muhammad Asim Siddique (PW.4), read with the MLCs prepared by him, reveals a significant circumstance. In the column relating to the brief history of the occurrence, the Medical Officer merely recorded the factum of firearm injuries and did not mention the name or identity of any assailant. This omission is of particular significance because the injured witnesses were allegedly conscious and had been brought to the hospital immediately after the occurrence. The said fact was candidly acknowledged by Dr.Muhammad Asim Siddique (PW.4) during his testimony in the following words:- “It is correct that Muhammad Mumtaz injured did not disclose the name of assailant and I did not mention so in relevant column of

MLC.”

In addition to the foregoing, we have examined the testimony of both injured eyewitnesses in the light of their respective statements recorded before the trial Court. In their examination-in-chief, Muhammad Mumtaz (PW.2) and Muhammad Asghar (PW.3) fully supported the prosecution case and substantially reiterated the version set forth by the complainant Muhammad Aziz (PW.1) in the FIR as well as in the private complaint. However, their testimony, when subjected to cross- examination and tested against the contemporaneous record, brings

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forth material circumstances which substantially affect its reliability. Muhammad Mumtaz (PW.2) during cross-examination admitted that he is a resident of village Burj Mohra, District Khushab, situated at a distance of approximately 100 kilometres from the place of occurrence. He further stated that he had returned from Saudi Arabia about six months prior to the occurrence and that he had come to meet complainant Muhammad Aziz (PW.1) and Muhammad Asghar (PW.3) for the first time on the day of the occurrence. Furthermore, Muhammad Mumtaz (PW.2) admitted that prior to the occurrence he had no association with appellants Zahid Ali, Fazal Abbas and Subtain. More importantly, Muhammad Mumtaz (PW.2) stated that according to his knowledge accused Fazal Abbas was not found connected with the occurrence during police investigation and that accused Muhammad Subtain was likewise found not involved therein. Such admissions are of considerable significance, particularly when the prosecution case attributes specific firearm injuries to both appellants. Muhammad Mumtaz (PW.2) further stated that he was admitted in the hospital during the intervening night of 27/28.06.2019 and discharged on the following day. He stated that his statement before the police was recorded on 29.06.2019 at the place of occurrence. The timing and circumstances in which his statement came to be recorded, therefore, also require consideration while assessing the evidentiary worth of his subsequent deposition. Likewise, Muhammad Asghar (PW.3), in his examination-in-chief, endorsed the prosecution version. However, during cross-examination, Muhammad Asghar (PW.3) admitted that he was not a resident of the place of occurrence. Muhammad Asghar (PW.3) also corroborated the statement of Muhammad Mumtaz (PW.2) to the extent that neither he nor Muhammad Mumtaz or the deceased had been sleeping at the complainant’s house during the night prior to the occurrence. He further acknowledged that Muhammad Mumtaz (PW.2) was a resident of Khushab, had been residing in Saudi Arabia and had returned to Pakistan before the occurrence. An important discrepancy also emerges from the testimony of Muhammad Asghar

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(PW.3) concerning the description of the weapons allegedly carried by the unknown accused. During cross-examination, Muhammad Asghar (PW.3) stated that the three unidentified accused were armed with .44- bore rifles. However, when confronted with his previous statement under Section 161, Cr.P.C. (Exh.DA), the said description was not found therein, rather only the word firearm had been mentioned. Muhammad Asghar (PW.3) also expressed ignorance regarding the police conclusion that appellants Fazal Abbas and Subtain had not been found connected with the occurrence and that the complainant party had consequently instituted the private complaint. His statement (Exh.DA) further reveals that his statement under Section 161, Cr.P.C. was recorded by Muhammad Yar, SI (CW.1), on 28.07.2019, approximately one month after the occurrence. Although during cross- examination the witness stated that he remained admitted in hospital for about thirteen days, yet this assertion is not supported by any treatment chart, admission record or other hospital document. No effort on part of Muhammad Yar SI (CW.1) is oozing from the record that he made any endeavour to record the statement of the injured Muhammad Asghar (PW.3) when he was admitted in hospital. The testimony of Muhammad Yar SI (CW.1) the first Investigating Officer assumes particular significance in this regard. During cross-examination, Muhammad Yar, SI (CW.1) categorically stated that, according to the FIR, appellant Subtain was the person who had caused injuries to Muhammad Asghar (PW.3), whereas his investigation did not establish the involvement of the appellant Subtain in the occurrence. Likewise, although the FIR attributed the injury caused to Muhammad Mumtaz (PW.2) to appellant Fazal Abbas, yet the Investigating Officer stated that his investigation did not connect Fazal Abbas with the occurrence. Muhammad Yar, SI (CW.1) further admitted that nothing was recovered from either appellant Subtain or Fazal Abbas. More importantly, Muhammad Yar, SI (CW.1) stated that his investigative finding regarding the non-involvement of appellants Subtain and Fazal Abbas had been verified by the concerned SHO. The relevant portion

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of the cross-examination of Muhammad Yar, SI (CW.1), is reproduced hereunder:- “The then SHO also verified my findings relating to non- involvement of accused Subtain and Fazal in this occurrence.”

We have minutely examined the entire record and have been unable to find even the slightest material indicating that the complainant party ever challenged the findings recorded by the first Investigating Officer regarding the non-involvement of appellants Subtain and Fazal Abbas. The only assertion in this regard appears in the private complaint (Exh.PH) instituted on 04.01.2020 wherein it was alleged that, aggrieved by the allegedly partial investigation conducted by Muhammad Yar, SI (CW.1), the complainant had approached the higher police authorities through applications but without success. However, this assertion remains wholly unsubstantiated, as not a single such application was produced before the trial Court or otherwise brought on the record. In these circumstances, the alleged challenge to the investigation remains a bare assertion unsupported by any independent or contemporaneous material.

The testimony of the injured eyewitnesses when examined in conjunction with the circumstances and infirmities discussed hereinbefore, does not inspire the requisite confidence and cannot safely be relied upon for recording the conviction. Consequently, having found the statements of both the injured eyewitnesses to be materially compromised, we are constrained to discard their statements from consideration.

11.We have also examined the medical evidence available on the record. The postmortem examination of the dead body of deceased Muhammad Mansha was conducted by Dr.Muhammad Rasheed (PW.5), who prepared and issued the postmortem report (Exh.PM). A careful reading of the testimony of the said doctor read with the contents of the postmortem report reveals that the dead body of Muhammad Mansha was received in the mortuary of DHQ Hospital, Sargodha, on 28.06.2019 at about 6:00 a.m., whereas the requisite

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police papers were received by the doctor at about 8:30 a.m., whereafter the postmortem examination was conducted. The occurrence, according to the prosecution took place at about 1:00 a.m., whereas the police was allegedly informed at about 3:00 a.m. Thus, despite the alleged prompt reporting of the occurrence, the dead body remained undispatched to the mortuary for approximately five hours and the postmortem examination was thereafter conducted after a further lapse of about two and a half hours. In the circumstances of the present case, this unexplained delay cannot be brushed aside and, when viewed in conjunction with the other infirmities appearing on the record, lends further support to the defence plea that the intervening period was utilized for deliberation and introduction of a version implicating the appellants. Furthermore, Dr.Muhammad Rasheed (PW.5) opined that the probable interval between the infliction of injuries and death was 10-15 minutes, whereas the probable interval between death and postmortem examination was about six to seven hours. The prosecution case, however, is that the occurrence took place at about 1:00 a.m. wherein Muhammad Mansha met instantaneous death. The latter assertion, when examined in the light of the medical opinion does not appear to be consistent with the circumstances reflected from the postmortem examination. The postmortem was conducted at about 8:30 a.m., whereas the doctor assessed the probable time between death and postmortem as six to seven hours. The doctor found multiple wounds of entry, six in number, each measuring approximately 1⁄2 x 1⁄2 cm, on the back and middle of the chest on the left side, near the thoracic spine. During cross-examination, Dr.Muhammad Rasheed (PW.5) specifically admitted that Injury No.1 consisted of six entry wounds, each measuring 1⁄2 x 1⁄2 cm, and that the said injury was a group wound. He further acknowledged that such dimensions represented the smallest size of firearm entry wound. This aspect of the medical evidence does not sit comfortably with the ocular account furnished by Muhammad Aziz (PW.1) who attributed the injury sustained by Muhammad Mansha to be a shot fired by appellant

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Zahid Ali from a .12-bore repeater, stating merely that the shot landed at the back beneath the left shoulder of the deceased and went through and through. Had Muhammad Aziz (PW.1) actually witnessed the occurrence from the place asserted by him, it would reasonably be expected that he would have noticed, or at least been in a position to describe the multiplicity of pellet entry wounds or the fact that the injury was in the form of a group wound. His failure to furnish any such description, particularly when considered alongside the other circumstances casting doubt upon his presence at the spot, further detracts from the reliability of his ocular account. It is, therefore, evident that the medical evidence, when considered in its proper perspective and in conjunction with the other circumstances discussed hereinabove, does not lend the requisite support to the prosecution version, rather certain features thereof add to the doubts already attending the ocular account. Even otherwise, it is well settled that medical evidence is essentially corroborative in character. It may assist the Court in determining the nature, seat and extent of injuries, the kind of weapon employed, the cause of death and, within permissible limits, the probable interval between death and postmortem examination. Such evidence, by itself, ordinarily does not identify the perpetrator of an offence nor does it constitute substantive evidence of the guilt of an accused. Reference is made to the cases reported as Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53) and Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103). The relevant extract from the former cited case is being reproduced hereunder:- “It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.”

12.We have also examined with due care the evidence relating to the alleged recovery of the .12-bore repeater gun (P.10) from the appellant on 05.02.2020, along with five live cartridges (P.11/1-5) and ten live cartridges (P.11/6-15), allegedly recovered pursuant to his

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disclosure. The said firearm was subsequently forwarded to the PFSA for ballistic examination and comparison with three crime empties of .12-bore firearm (P.3/1-3), which according to the prosecution, had been secured from the place of occurrence vide recovery memo (Exh.PG). The PFSA report (Exh.PEE) indicates that although the recovered .12-bore firearm was found to be in mechanically operable condition, yet the firearm examiner was of the opinion that the crime empties secured from the place of occurrence had not been fired from the said weapon. Thus, the alleged recovery of the .12-bore repeater gun (P.10), even when read with the PFSA report (Exh.PEE), remains inconsequential to the prosecution case and cannot be safely relied upon to sustain the conviction of the appellant.

13.We have also given a considered thought to the motive behind the occurrence. In the FIR, the private complaint as well as in his deposition complainant Muhammad Aziz (PW.1) stated that the occurrence was the consequence of previous enmity between Muhammad Asghar (PW.3) and the accused Muhammad Nawaz (since acquitted). However, the evidence on record does not satisfactorily establish the existence or continuation of any such motive. Muhammad Asghar (PW.3) during cross-examination, admitted that neither the deceased Muhammad Mansha nor appellant Zahid Ali had any previous enmity or criminal litigation inter se. He, however, volunteered that appellant Zahid Ali had enmity with him. He further admitted that neither he nor appellant Zahid Ali had ever lodged any criminal case against the other. He also conceded that appellant Zahid Ali was neither the complainant, a witness nor an accused in any criminal case involving him, including FIR No.225 and FIR No.2026, in which Muhammad Asghar (PW.3) himself was implicated in connection with the murder of five persons. He further stated that he had entered into a compromise on the Holy Quran with accused Muhammad Nawaz (since acquitted) in the year 2000. The prosecution party did not bring on record any material to establish that after the said compromise in the year 2000 and prior to the occurrence in 2019, any untoward incident,

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altercation or other circumstance had taken place between the parties which could furnish a plausible basis for the alleged motive. Muhammad Yar SI (CW.1) also admitted during cross-examination that Muhammad Aziz (PW.1) had not produced before him any FIR showing either appellant Zahid Ali or deceased Muhammad Mansha as an accused or witness against the other. Thus, the alleged motive remained confined to a bare assertion and was not supported by any independent or documentary material. In these circumstances, the prosecution failed to establish the motive set up by it through reliable and confidence-inspiring evidence. Even otherwise, motive is a circumstance which is to be assessed with due caution and in the context of the entire evidence available on record. It cannot substitute for proof of the occurrence or the participation of an accused where the substantive evidence itself suffers from material infirmities. In the present case, the alleged motive, being vague, remote and unsupported by cogent evidence does not lend any meaningful support to the prosecution case. Reliance is placed upon the case reported as Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), wherein the Supreme Court of Pakistan held as under:- “The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse.”

14.For the foregoing reasons and upon a careful and anxious appraisal of the entire evidence available on the record, we are of the considered view that the prosecution has failed to prove its case against appellants Zahid Ali, Muhammad Sibtain and Fazal Abbas beyond reasonable doubt. The cumulative effect of the material contradictions, omissions, inconsistencies and unexplained circumstances discussed hereinabove has rendered the prosecution case doubtful. It is by now well settled that an accused is entitled to the benefit of every reasonable doubt emerging from the prosecution evidence as a matter of right and

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not as a matter of grace. Consequently, Criminal Appeal No.13876-J of 2023 and Criminal Appeal No.13881-J of 2023 are allowed. The appellants, namely Zahid Ali, Muhammad Sibtain and Fazal Abbas, are extended the benefit of doubt and are accordingly acquitted of the charges. Their convictions and the sentences awarded by the trial Court are set aside. Appellants Zahid Ali and Muhammad Sibtain who are in custody shall be released forthwith if not required to be detained in any other case. Appellant Fazal Abbas is on bail; his sureties are accordingly discharged from their respective bail bonds. Resultantly, Murder Reference No.51 of 2023 is answered in the NEGATIVE and the sentence of death awarded to appellant/convict Zahid Ali is NOT

CONFIRMED.

15.In view of the acquittal of the appellants, Criminal Revision No.27794 of 2025 seeking enhancement of their sentence has lost its relevance and is accordingly dismissed.

(AALIA NEELUM) (ABHER GUL KHAN)

CHIEF JUSTICE JUDGE

APPROVED FOR REPORTING

(AALIA NEELUM) (ABHER GUL KHAN)

CHIEF JUSTICE JUDGE

The judgment was announced on 21.09.2026, dictated, prepared, and signed on 24.09.2026 Najum*