Muhammad Asif Vs The State .

Stereo. H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.21741-J of 2021 Muhammad Asif vs The State Criminal Revision No.25448/2021 Ghulam Abbas vs Muhammad Asif, etc.

JUDGMENT

Date of hearing: 12.10.2026.

Barrister Syed Haider A. Najafi/Defence Appellant by: counsel (appointed at State expense).

Mr. Nisar Ahmad Virk, District Public State by:

Prosecutor.

Malik Abdul Hameed Kallu, Advocate along with Mr. Umair Safdar Malik, Advocate for and Complainant by: with Ghulam Abbas (complainant of the case) in Criminal Appeal No.21741-J/2021 and for petitioner in Criminal Revision No.25448/2021.

Farooq Haider, J:- This single judgment will dispose of Crl. Appeal No.21741-J of 2021 filed by Muhammad Asif (appellant/ convict) against his “conviction & sentence” and Criminal Revision No.25448 of 2021 filed by Ghulam Abbas (complainant) for enhancement of sentence of Muhammad Asif, as both the matters have arisen out of one and the same impugned judgment dated: 10.03.2021 passed by learned Additional Sessions Judge, Shorkot, District: Jhang/trial court.

2.Muhammad Asif (appellant) was tried in case arising out of F.I.R. No.113/2015 dated: 14.07.2015 registered under Sections: 302, 34 PPC at Police Station: Shorkot Cantt., District: Jhang and trial court after conclusion of the trial, vide impugned judgment dated: 10.03.2021, convicted and sentenced the appellant; in this regard, relevant portion from paragraph No.24 of the impugned judgment is as under: -

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“24 Consequently, accused Muhammad Asif is convicted and sentenced as under:- U/S 302 (b) PPC by way of Tazir for committing Qatl-i- Amd of Tayyab Raza to undergo rigorous imprisonment for life and to pay Rs.1,00,000/- as compensation U/S 544-A Cr.P.C to the legal heirs of the said deceased, in default whereof he shall undergo simple imprisonment for six months. He is also given benefit of Section 382-b Cr.P.C. The last worn clothes of the deceased shall be given to the legal heirs of deceased if applied. The weapon of offence pistol 30 bore shall be confiscated in favour of the State after the decision of appeal or revision, if any. Motorcycle recovered in the alleged occurrence from the accused be given to the original owner. The accused Muhammad Asif is in police custody and is remitted to jail for undergoing the punishment of imprisonment.”

3.Brief facts are that the proceedings in the instant case commenced with the submission of an application (Ex.PF) for registration of case by Ghulam Abbas (complainant/PW-2) to Muhammad Boota, S.I. (PW-8) on 14.07.2015 at 04:00 p.m. at Chowk Khumanwala when he (PW-8) alongwith other police officials was on patrolling duty, while mentioning therein that two unknown accused persons after intercepting motorcycle of Tayyab Raza (son of the complainant) on gun point started indiscriminate firing upon him, which hit on different parts of his body, due to which, he fell from the motorcycle after receiving injuries; when the complainant and his companions stepped forward towards accused persons, they extended threat of dire consequences while pointing weapons at them and succeeded to flee away after taking motorcycle of son of the complainant and brandishing weapons of offence; the complainant and his companions managed Tayyab Raza (son of the complainant) but he succumbed to the injuries at the spot. For ready reference, relevant portion of the application (Ex.PF) is hereby scanned below: -

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On the basis of aforementioned application (Ex.PF), case was registered vide F.I.R. No.113/2015 dated: 14.07.2015 (Ex.PF/2) under Sections: 302, 34 PPC at Police Station: Shorkot Cantt., District: Jhang. Subsequently, complainant (PW-2) moved supplementary application dated: 14.07.2015 (Ex.PG) claiming therein that Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW) told that they were at a distance of one Farlang ( )فرالنگwhere they heard report of firing and after sometime, two accused persons were riding on a motorcycle 125cc bearing registration No.1870-JGL, out of whom, one was

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identified as Muhammad Asif as he was previously known to them whereas other accused, who was driving the motorcycle, could not be identified. The complainant (PW-2) through said supplementary application (Ex.PG) requested for nominating Muhammad Asif (present appellant) as accused in the case and also introduced motive of the occurrence that Muhammad Asif (accused/appellant) was engaged with one Mst. Tahira alias Mafia and the appellant had suspicion that said Mst. Tahira alias Mafia had illicit relations with Tayyab Raza (deceased of the case); in this regard, relevant portion of said supplementary application (Ex.PG) is also hereby scanned below: - Accused/appellant was arrested in this case on 09.11.2015 by Muhammad Boota, S.I. (Investigating Officer/PW-8) and after completion of investigation, he was challaned to the Court; he was formally charge sheeted under Section: 302 PPC read with Section: 34 PPC, to which he pleaded not guilty and claimed trial. Thereafter, prosecution got examined its witnesses and after tendering reports of experts, closed its evidence. Then, statement of the accused under Section: 342 Cr.P.C. was recorded wherein he refuted allegations

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levelled against him. He did not opt to depose on oath under Section 340 (2) Cr.P.C. or produce any evidence in his defence. Trial court after conclusion of the trial, convicted and sentenced the appellant as mentioned above through the impugned judgment.

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

5.On the other hand, learned District Public Prosecutor has supported the impugned judgment and prayed for dismissal of the appeal.

Learned counsel for the complainant while opposing criminal appeal filed by the appellant against his conviction and sentence submits that since prosecution has proved its case against the appellant up to hilt, therefore, while allowing criminal revision filed by him seeking enhancement of sentence to Muhammad Asif (convict/appellant), sentence of death may be awarded to him.

6.Arguments heard. Record perused.

7.It has been noticed that as per case of prosecution, occurrence took place at about 02:00 p.m. (noon) on 14.07.2015 in the area of Chak No.499-JB ()ج ب, which was at a distance of 12-kilometers from the place station as per Column No.4 of the F.I.R. (Ex.PF/2) whereas it was reported to the police by Ghulam Abbas (complainant/PW-2) through written application (Ex.PF) produced to Muhammad Boota, S.I. (PW-8) at 04:00 p.m. on 14.07.2015, who was present at Chowk Khumanwala in connection with patrolling, and said application

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(Ex.PF) was then sent through Naseer Ahmad 847/C (PW-10) to the police station where on the basis of the same, F.I.R. (Ex.PF/2) was recorded on 14.07.2015 at 04:30 p.m. It is relevant to mention here that Muhammad Boota, S.I. (Investigating Officer) while appearing before the Court as PW-8 categorically stated that distance between the place of occurrence and Khumanawala (mentioned above) is about eight kilometer; in this regard, relevant portion of his statement is reproduced as under: - “The distance between the place of occurrence and Khomanawala is about eight kilometer.”

When as per application for registration of case (Ex.PF), complainant (PW-2) and his two companions i.e. Zafar Abbas (PW-1) and Qaisar Abbas (given-up PW) were having motorcycle whereas Chowk Khumanwala was at a distance of 08-kilometers, then why immediately after the occurrence, complainant or any one from his aforementioned companions did not go for reporting the matter/occurrence to the police, why application for registration of case (Ex.PF) was submitted with delay of about 02-hours of the stated occurrence and why FIR/case was also registered with unexplained delay of about 021⁄2 hours of the stated occurrence? Furthermore, it has also been noticed that as per application for registration of case (Ex.PF), occurrence took place at about 02:00 p.m. and as per case of prosecution, dead body of deceased of the case was received in the dead house at 09:45 p.m. on 14.07.2015, documents for postmortem examination were received at 10:00 p.m. on 14.07.2015 and autopsy over dead body of the deceased was conducted on 14.07.2015 at 10:10 p.m. i.e. after more than eight hours of the occurrence and more than 51⁄2 hours of stated time of recording of the F.I.R. Now question does arise here that if case was registered at 04:30 p.m., then why police papers and dead body of the deceased were not immediately sent for autopsy and why police papers were received in the dead house

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at 10:00 p.m. on 14.07.2015? Answer is very simple that neither the complainant (PW-2) nor any other cited eyewitness was present at the stated time of occurrence, at the crime scene and this time was consumed in consultation and deliberation for engaging/procuring witnesses, tailoring story for the prosecution, and then getting the case registered in its present form, which caused delay in preparing and submitting the documents for postmortem examination; in this regard, guidance has been sought from the case of “WAQAS AHMAD versus The STATE” (2025 SCMR 1087) and relevant portion from Paragraph No.7 & 8 of the same is hereby reproduced below: - “7. In this case the occurrence took place on 03.07.2009 at about 3.00/4.00 AM which has been reported by complainant Muhammad Ali (PW.7) at 07.00 AM, after a delay of 04 hours, if counted from 04.00 AM or 03:00 AM respectively. No explanation, much less plausible, has been furnished by the complainant for the said delay. It is settled law that unexplained delay in lodging FIR creates a doubt in the prosecution's case and its benefit has to be extended and construed in favour of the accused. In case titled, Mst. Asia Bibi v. The State and others (PLD 2019 Supreme Court 64), this Court has held that in absence of any plausible explanation, delay in lodging of FIR is always considered to be fatal as it casts suspicion on the prosecution story. In case of Zeeshan alias Shani v. The State (2012 SCMR 428) this Court has observed that delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected by prosecution and the time was consumed in making effort to give a coherent attire to the prosecution's case, which hardly proved successful. Same is the view of this Court in case of Muhammad Fiaz Khan v. Ajmer Khan (2010 SCMR 105).

8.Postmortem examination on the dead body of the deceased was conducted on 03.07.2009 by Dr. Nasir Mehmood (PW.1) at 10.30 AM i.e. after 3 hours and 30 minutes of the time of report, for which too, no explanation, much less plausible, has been advanced by the Medical Officer or by the complainant or by any other prosecution's witness. This Court in case of 'Muhammad Ilyas v. Muhammad Abid alias Billa and others' (2017 SCMR 54), has held that delay in conducting the postmortem examination suggests that the eye-witnesses were not present at the spot at the time of occurrence, therefore, the said time was consumed in procuring the attendance of procured eye-witnesses. Further reliance may also be placed on the cases of "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327), "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192), "Zafar v. The State and others" (2018 SCMR 326) and "Muhammad Ashraf v. The State" (2012 SCMR 419).”

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Hence, F.I.R. (Ex.PF/2) was not recorded even at stated time rather with much delay, however showing ante-time in the record. And such sort of delayed crime report (F.I.R.) loses its legal efficacy, therefore, any sanctity cannot be attached to the same; in this regard, guidance has been sought from the case of “GHULAM ABBAS and another versus The STATE and another” (2021 SCMR 23), “PERVAIZ KHAN and another versus The STATE” (2022 SCMR 393) and “ABDUL GHAFOOR versus The STATE” (2022 SCMR 1527).

In this case, ocular account produced by the prosecution comprises Zafar Abbas (cited eyewitness/PW-1) and Ghulam Abbas {complainant/father of Tayyab Raza (deceased of the case)/PW-2}; they both were neither resident of Tehsil Chowk Shorkot, where they statedly met Tayyab Raza (deceased of the case), nor of the place of occurrence, which is Bridge of Canal Kachi Pakki situated at Chak No.499-JB ()ج ب rather complainant (PW-2) was resident of Mouza Dargahi Shah, Tehsil: 18-Hazari, District: Jhang whereas Zafar Abbas (PW-1) was resident of Mouza Rodo Sultan, Tehsil: 18-Hazari, District: Jhang; in this regard, relevant portion of statement of Zafar Abbas (PW-1) is reproduced as under: - “The place of occurrence is at the distance of 60/65 kilometers from my residence and not 80 kilometers as suggested by learned defence counsel.”

Similarly, relevant portion of statement of Muhammad Boota, S.I. (Investigating Officer/PW-8) is also reproduced as under: - “The distance between Darghi Shah and place of occurrence is about 80 kilometer. The occurrence took place near Chak No.499 Sabooni at the bank of Pukhta cannal.”

Therefore, they both i.e. Zafar Abbas (PW-1) and complainant (PW-2) were chance witnesses and thus required to explain and establish

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plausible as well as valid reason regarding their presence at the “time & place” of occurrence. As per own case of the prosecution, they (complainant and aforementioned cited eyewitnesses) met Tayyab Raza (deceased of the case) by chance; in this regard, relevant portion of statement of Zafar Abbas (PW-1) is reproduced below: - “We met Tayyab Raza deceased at Tehsil Chowk par chance.” (emphasis added)

As per prosecution’s version mentioned in the application (Ex.PF) for registration of case, complainant (PW-2) with aforementioned cited eyewitnesses was present at Tehsil Chowk Shorkot in connection with some work but he (complainant/PW-2) did not disclose detail of said work in the application for registration of case (Ex.PF). It is relevant to mention that the complainant (PW-2) during his statement before the Court stated that they had come to Shorkot to know about health of Aunt of Zafar Abbas (PW-1) and sister of his mother-in-law, after knowing about health of said lady, they came back and found Tayyab Raza at Tehsil Chowk, Shorkot; in this regard, relevant portion of statement of the complainant (PW-2) is reproduced as under: - “We have come to Shorkot to know about the health of the Aunt of Zafar P.W and sister of my mother in law.”

Likewise, Zafar Abbas (cited eyewitness) while appearing as PW-1 during his statement before the Court stated that they had come to Shorkot City to know the health of his aunt Gami Mai, who was ill; in this regard, relevant portion of his statement is reproduced below: - “We have come to Shorkot City to know the health of my aunt Gami Mai who was ill.”

However any material has not been brought on the record to establish that Gami Mai was related to Zafar Abbas (PW-1) as well as Ghulam Abbas (complainant/PW-2), she was residing in Shorkot City, she was ill and they had come and met her. So much so that neither she (Gami Mai) was produced during trial of the case nor any other material/

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document, including her medical prescription, ownership deed of the house or rent deed of the house in Shorkot City where she was statedly residing, was brought on the record to prove said fact; thus, this explanation introduced by them during their statements before the court could not be proved.

As per case of prosecution, complainant and aforementioned witnesses met Tayyab Raza (now deceased of the case) by chance at Tehsil Chowk, Shorkot, who was coming to WAPDA office, Shorkot for correction of electricity bill of Amjad Abbas Shah (PW-4) and they (i.e. complainant and both aforementioned cited eyewitnesses) went with Tayyab Raza to WAPDA office and remained standing outside the office but they did not explain in the application (Ex.PF) for registration of case that why they went to WAPDA office with Tayyab Raza. It is also relevant to mention here that as per prosecution’s version, Tayyab Raza came out of the office after getting electricity bill rectified but any electricity bill of Amjad Abbas Shah was not brought on the record rather two photocopies of electricity bill in the name of Syed Kazim Hussain Shah were statedly secured vide recovery memo. (Ex.PB) and produced before the trial court, which negates the prosecution version in this regard. Furthermore, as per prosecution’s version when Tayyab Raza (deceased of the case) came WAPDA office after rectification/correction of electricity bill, then they three (i.e. complainant and aforementioned two cited eyewitnesses) on one motorcycle whereas Tayyab Raza alone on other motorcycle proceeded to Mouza Peerwala, Shorkot via Cantt. Road Kachi Pakki canal and when reached Bridge of Canal, two accused persons came out from cluster of trees, made firing at random, which hit the deceased on different parts of his body. It is quite astonishing and against the natural conduct that they three (i.e. complainant and aforementioned two cited eyewitnesses) boarded on one motorcycle whereas Tayyab Raza alone boarded on other motorcycle but they did not explain any reason that why one of them did not sit with Tayyab Raza,

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however, it is quite understandable that they mentioned/claimed so while keeping in view that on the one hand, they have to show their presence at the spot whereas on the other hand, if any one from them will be shown as sitting with Tayyab Raza on his motorcycle, then the question would arise as to how he escaped by indiscriminate firing made by the accused persons. It is also relevant to mention here that as per own case of the prosecution, complainant and both cited eyewitnesses were having motorcycle but neither same was secured during the investigation nor produced during trial of the case.

Admittedly, any accused was not nominated in the application for registration of case (Ex.PF) as well as in the F.I.R. (Ex.PF/2) and even their facial features were not mentioned therein. As per claim of the complainant (PW-2), he after submitting application for registration of case to Muhammad Boota, S.I. (PW-8) came back to the place of occurrence, where Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW) alongwith others including Zafar Abbas (PW-1) and Qaisar Abbas (given-up PW) were present, they both Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW) told him (complainant) that they were present at the bank of canal at a distance of one Farlang when they heard the gun reports and after short while, two persons while riding on motorcycle No.1870 passed them, Muhammad Asif (present appellant) was identified by them as he was previously known to them; he (PW-2) produced Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW) before Muhammad Boota, S.I. (Investigating Officer/PW-8), who recorded their statements under Section: 161 Cr.P.C. and also nominated Muhammad Asif as accused in the case; he (complainant/PW-2) also produced application for nominating Muhammad Asif accused before the Investigating Officer/PW-8, who directed him to get the same marked from the Station House Officer, he after getting the application (Ex.PG) marked by S.H.O. produced the same before Muhammad Boota, S.I.

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(Investigating Officer/PW-8); in this regard, relevant portion of his (PW-2) statement is hereby reproduced as under: - “I produced the application Exh.P.F before Muhammad Bota Shah SI. SI after reaching police proceedings at Khumanawala, sent the application Exh.P.F through constable to P.S Shorkot Cantt for registration of FIR. Thereafter, I along with Bota Shah SI along with other police officials proceeded towards place of occurrence where the dead body along with Qaiser Abbas and Zafar Abbas was lying there along with 10/12 persons were also gathered there including Muhammad Aslam son of Allah Ditta Caste Baloch, Muhammad Iqbal son of Mehr Rustam Caste Jabuana were present there. Both the PWs Muhammad Aslam and Muhammad Iqbal told to me that they were present at the bank of canal at a distance one furlang when they heard the gun reports and they further narrated to me that after short while, two persons while riding on motorcycle No.1870 P.5 passed them and they further told me that they identified the accused as Muhammad Asif son of Lal Din Caste Mochi Koura R/o Chak No.7/8, Tehsil Mian Channu District Khanewal but we failed to identify the person who was driving the motorcycle P.5. Muhammad Asif son of Lal Din accused was previously known to us. I produced both the PWs Muhammad Aslam and Muhammad Iqbal before the I.O. Muhammad Bota Shah SI recorded the statements of both the PWs under Section 161 Cr.P.C and also nominated Muhammad Asif accused in this case. I also produced application for nomination of Muhammad Asif accused before SI but he directed me to get mark from SHO. After getting application Exh.P.G duly marked by SHO, I produced Exh.P.G before Muhammad Bota Shah SI who recorded my as well as the statements of Muhammad Aslam and Muhammad Iqbal PWs.”

(emphasis added)

However, perusal of entire statement of Zafar Abbas (PW-1) reveals that he did not state about arrival of Muhammad Aslam (PW-3), Muhammad Iqbal (given-up PW) there at the place of occurrence, talking about seeing the accused persons as well as detailing name of one accused. It is also necessary to quote here that though as per statement of complainant (PW-2), when he alongwith Investigating Officer came at the spot, Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW) were present there who told about seeing the accused persons on motorcycle including present appellant, his name and identification to the complainant as well as Investigating Officer but neither this fact nor name of accused/appellant is mentioned in the Inquest Report (Ex.PI,

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copy whereof is available at Page No.170-173 of the paper book). So much so that in the site plan (Ex.PM) of the place of occurrence prepared by the Investigating Officer (PW-8), name of any accused is not mentioned rather unknown accused is reflecting therein; similarly, Raja Usman Yousaf (Draftsman/PW-6) on the direction of police visited the place of occurrence on 20.07.2015 in the presence of complainant as well as other cited eyewitnesses, and at the pointing out of cited eyewitness including complainant, he took notes and prepared site plan with scale (Ex.PK) but no accused was mentioned in the same rather accused was unknown therein and Muhammad Boota, S.I. (Investigating Officer/PW-8) also endorsed notes/contents of said site plan on 25.07.2015 {copy of site plan (Ex.PK) and endorsement of Muhammad Boota, S.I. is available at Page No.195 to 196 of the paper book). This state of affairs reflects that the appellant was not nominated on the day of occurrence rather this entire story that the appellant alongwith another was seen on motorcycle by Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW), was subsequently tailored/concocted. It is also to be noted here that Muhammad Aslam while appearing as PW-3 stated before the Court that they came there in connection with some piece of work about land of Muhammad Iqbal but neither Muhammad Iqbal appeared before the Court to prove this fact nor detail of said work was brought on the record; any site plan of the place, where Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW) saw the accused on motorcycle and identified the appellant, had not been prepared/made; so, these both witnesses i.e. Muhammad Aslam (PW-3) and Muhammad Iqbal (given-up PW) were also chance witnesses and any valid reason regarding their presence at said place could not be established.

As per site plan of place of occurrence prepared by the police (Ex.PM), distance between the accused and deceased was two Karams ()کرم

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when fire was made; similarly, according to site plan of place of occurrence prepared by Draftsman (Ex.PK), the distance between accused and victim (now deceased of the case) was 11-feet when fire was made but perusal of Postmortem Examination Report (Ex.PH) and statement of Dr. Muhammad Naeem (PW-5, who conducted autopsy over dead body of the deceased), reflects that there was burning and blackening on the entry wounds and it is relevant to mention here that when as per case of prosecution, pistol .30 bore was used for making firing and inflicting injuries to the deceased, then burning and blackening is not possible from such distance as mentioned above; this contradiction negates presence of complainant and cited eyewitnesses at the place of occurrence; in this regard cases of “MUHAMMAD ALI versus The STATE” (2015 SCMR 137), “MUHAMMAD MEHBOOB versus The STATE” (2021 SCMR 366) and “RIASAT ALI and another versus The STATE and another” (2024 SCMR 1224)1 can be advantageously referred and relevant portion from Muhammad Ali’s case (supra) is reproduced as under: - “The doctor has also found blackening on the injuries which means that the injuries could have been caused from a distance of three feet or less. But according to site plan, the distance between the assailants and the deceased was about 2 karams which is equal to 11 feet. In such circumstances, the presence of the eye-witnesses at the spot is doubtful.”

In view of all above, ocular account produced by the prosecution comprises chance witnesses, who could not offer any valid and cogent reason to establish their presence at the stated time & relevant places and their testimony is “suspect” evidence which cannot be accepted without pinch of salt. Thus, while taking all aforementioned factors into consideration in totality, this Court has come to the definite conclusion that ocular account furnished by the prosecution is neither confidence inspiring nor truthful or trustworthy; hence, same cannot be relied and is hereby discarded.

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As far as medical evidence is concerned, it is trite law that medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury, duration of the injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant or the person who caused the injury; therefore, same neither can provide any corroboration nor is of any help to the prosecution in peculiar facts and circumstances of the case and in this regard guidance has been sought from the cases of “MUHAMMAD RAMZAN versus The State” (2025 SCMR 762) and “IMRAN versus The STATE” (2026 SCMR 47); relevant portion from the latter case law is hereby reproduced as under: - “8. Insofar as the medical evidence is concerned, it is by now well settled that the medical evidence is only supportive evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 Supreme Court 53), "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103) and "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410).”

So far as recovery of motorcycle (P5) without number plate from the appellant vide recovery memo. (Ex.PD) is concerned, firstly it raises eyebrows as to why the appellant, after allegedly committing the occurrence, would retain motorcycle of the deceased with him and use the same on roads, which was of course an incriminating piece of evidence, with the risk of being trapped and apprehended, due to and with said motorcycle, at any time; so it is against common prudent man’s behavior whereas secondly, it is relevant to mention here that in the application for registration of case (Ex.PF), though registration number of motorcycle of the deceased was mentioned yet its colour, engine number or chassis number was not mentioned and as per case of the prosecution, it was belonging to Amjad Abbas Shah (PW-4), after recovery of motorcycle without number plate, it was not identified by said Amjad Abbas Shah (PW-4) rather by Zafar Abbas (PW-1) and

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Qaisar Abbas (given-up PW) through recovery memo. (Ex.PE), who were neither owners nor remained users of said motorcycle. So, said motorcycle could not be duly identified.

Zafar Abbas (PW-1) and Qaisar Abbas (given-up PW) though stated that they were present at Tehsil Chowk, Shorkot City, they saw motorcycle of Tayyab Raza (deceased of the case), identified the motorcycle as well as the accused for going towards Shorkot Cantt. Road, who was apprehended by Muhammad Boota, S.I.; in this regard, relevant portion of statement of Zafar Abbas (PW-1) is reproduced as under: - “I and Qaisar Abbas were present at Tehsil Chowk Shorkot City. At about 11:00/12:00 noon time on motorcycle of Tayyab Raza deceased. We identified the motorcycle and the accused for going towards Shorkot Cantt Road. We informed Muhammad Bota SI through mobile phone. The accused along-with motorcycle is going towards Shorkot Cantt Road. Muhammad Boota Shah SI according to our information apprehended Muhammad Asif with motorcycle. Accused Muhammad Asif was arrested by Muhammad Bota SI and he also took into possession motorcycle of the deceased.”

(emphasis added)

It is to be noted here that Zafar Abbas (PW-1) in aforementioned statement stated that he saw motorcycle of Tayyab Raza (deceased of the case) but according to own case of the prosecution, it was not of Tayyab Raza (deceased of the case) but of Amjad Abbas Shah (PW-4); they both aforementioned cited witnesses could not explain any reason that why they were present there at that time; so, they were also chance witnesses on this score too and their testimony is not confidence inspiring as well.

Though Muhammad Boota, S.I. (Investigating Officer/PW-8) after receiving information from Zafar Abbas (PW-1) with respect to going of the accused on motorcycle of the deceased, proceeded, stopped and took said motorcycle into possession yet any Rapt of Roznamcha/Daily Diary of the police station showing said departure, taking the motorcycle into possession, bringing the same in police station and handing over to the

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Moharrar, has not been brought on the record; similarly, entry of Register No.19 regarding receiving of said motorcycle, as case property, in the police station, has also not been brought on the record. In view of above, recovery of aforementioned motorcycle, which was even not duly identified, is of no help to the case of prosecution against the appellant. As far as stated recovery of pistol .30 bore (P8) vide recovery memo. (Ex.PO) at the pointing out of the appellant is concerned, suffice it to say that three empty cartridge cases were secured from the place of occurrence, which were sent to the office of Punjab Forensic Science Agency, Lahore on 01.12.2015, aforementioned recovered pistol .30 bore was also sent in said office on 11.01.2016 and as per report of Punjab Forensic Science Agency, Lahore (Ex.PR, copy whereof is available at Page No.74 of the paper book), though two out of three cartridge cases received in the laboratory, were identified as having been fired from said recovered pistol yet it is relevant to mention here that Muhammad Asif (appellant/convict) was arrested in this case on 09.11.2015; in this regard, relevant portion of statement of Muhammad Boota, S.I. (Investigating Officer/PW-8) is hereby reproduced below: - “I arrested accused Muhammad Asif in this case on 09.11.2015.”

Meaning thereby that cartridge cases/empties were sent to the office of Punjab Forensic Science Agency after arrest of the accused/appellant and it is by now well settled that if crime empty/cartridge case is sent for comparison to the office of Forensic Agency after arrest of the accused, then report of said agency regarding matching of said empty/cartridge case with the recovered weapon, is considered as inconsequential and is of no avail to the case of prosecution; in this regard, guidance has been sought from the cases of “ASAD REHMAT versus The STATE and others” (2019 SCMR 1156), “MUHAMMAD SHARIF and others versus The STATE and others” (2019 SCMR 1368), “SEETA RAM versus The STATE” (2025 SCMR 2028), “IBRAR

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versus The STATE” (2026 SCMR 476) and “IFTIKHAR AHMED alias Papu and another versus The STATE and another” (2026 SCMR 1010). Therefore, recovery of pistol .30 bore (P8) from the appellant is of no help to the case of prosecution. Though motive was not mentioned by Ghulam Abbas (complainant/PW-2) in the application for registration of case (Ex.PF) as well as in the F.I.R. (Ex.PF/2) yet it was subsequently introduced by the complainant (PW-2) through supplementary application (Ex.PG); in this regard, relevant portion of statement of the complainant (PW-2) is reproduced below: - “The motive narrated by me in application Exh.P.G was that Muhammad Asif accused was engaged with Mst. Tahira alias Mafia d/o Falak Sher. After knowing the suspicion of illicit relation of Tayyab Raza deceased with Mst. Tahira alias Mafia, I met the father of Mst. Tahira alias Mafia and satisfied him that deceased has no relation with Mst. Tahira alias Mafia. But due to grudge, the present accused along with an un-known person had committed the Qatal-e-Amd my son Tayyab Raza.”

However, any independent, cogent and confidence inspiring evidence/ material to prove aforementioned subsequently introduced motive could not come on the record and for the valid reasons, trial court in Paragraph No.23 (i) of the impugned judgment has rightly held that motive has not been established in the case; furthermore, while examining the appellant as accused under Section: 342 Cr.P.C. during trial of the case, motive was not put to him in order to have his explanation/reply in said regard, thus, it cannot be used against him for convicting and sentencing in the case; in this regard, case of “AMEER ZEB versus THE STATE” (PLD 2012 Supreme Court 380) can be safely referred and its relevant portion from Paragraph No.6 available at Page No.398, is hereby reproduced for ready reference:- “It is trite that a piece of evidence not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used against him by the prosecution.” (emphasis added)

Criminal Revision No.25448/2021.

In this regard, guidance has also been sought from the case of “ABDUL HAYEE and ABDULLAH alias GHAZALI and another” (2025 SCMR 281) and relevant portion of the same from Paragraph No.14 is hereby reproduced as under:- “14. Insofar as the recoveries of weapons of offence from the petitioners in another case bearing FIR No. 121 dated 26.05.2009 under Sections 324/353/186/148/149 P.P.C., read with Section 13 of the Arms Ordinance, 1965 and Section 7 of the Anti Terrorism Act, 1997, at Police Station Mochh, District Mianwali, which recoveries were also relied upon by the prosecution in the instant case and positive reports of Forensic Science Laboratory are concerned, we have noted that the said recoveries were not put to the petitioners in their statements recorded under Section 342 Cr.P.C., therefore, the above-mentioned pieces of prosecution evidence cannot be considered against the petitioners and the same have rightly been discarded by the learned High Court in paragraph No. 15 of the impugned judgment. Reference in this context may also be made to the cases of, Fida Hussain Shah v. The State (2024 SCMR 1622), Haji Nawaz v. The State (2020 SCMR 687) and Mst. Anwar Begum v. Akhtar Hussain

(2017 SCMR 1710).”

Similarly, case of “OBAIDULAH and 2 others versus The STATE and others” (2025 SCMR 1558) can be advantageously referred on the subject and relevant portion of the same from Paragraph No.7 available at Page Nos.1567-1568 is hereby reproduced below:- “We have further noted that no motive was put to the petitioners in their statements recorded under Section 342, Cr.P.C. It is by now well settled that if a piece of evidence is not put to an accused in his statement recorded under Section 342, Cr.P.C, in order to provide him a chance to produce his defence against the said evidence then such evidence cannot be used against the accused. Reference in this context may be made to the cases of Haji Nawaz v. The State (2020 SCMR 687) and Dr. Waqar Hameed v. The State (2020 SCMR 321). In the case of 'Haji Nawaz' (supra), this Court has held as under;- “The law is settled by now that if a piece of evidence or a circumstance is not put to an accused person at the time of recording his statement under section 342, Cr.P.C, then the same cannot be considered against him for the purpose of recording his conviction."

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

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

Moreover, motive is a double edged weapon, it cuts both the ways, it can also be a reason for false implication; even otherwise, when substantive evidence has been discarded, then motive loses its significance and becomes immaterial for conviction.

8.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.

9.In view of what has been discussed above, instant appeal filed by Muhammad Asif (appellant) is allowed; conviction recorded and sentence awarded to the appellant through impugned judgment dated: 10.03.2021 are hereby set-aside. Appellant is acquitted of the charge; he shall be released from the jail forthwith, if not required in any other case.

9.Consequent upon aforementioned reasons, Criminal Revision No.25448/2021 filed by Ghulam Abbas (complainant) seeking enhancement of sentence of Muhammad Asif, stands dismissed.

(Farooq Haider) Judge Approved for reporting.

(Farooq Haider) Judge This judgment has been dictated and pronounced on 12.10.2026 whereas after preparation/completion, signed on 13.10.2026.

Kashif