Rizwan Gohar VS State

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Jail Appeal No. 17 of 2025 Rizwan Gohar Versus The State

Jail Appeal No. 18 of 2025 Kamal Ahmed Versus The State

Appellants by : M/s Ansar Nawaz Mirza, Ch. Abdul Rafay Advocates, in Jail Appeal No. 17 of 2025.

M/s Naseer Anjum Awan and Muhammad Mobeen Ali Hussain Awan Advocates, in Jail Appeal No. 18 of 2025.

State by : Mr. Adnan Ali, Deputy District Public Prosecutor. Mr. Muhammad Naeem Wahid, Special Public Prosecutor.

Ms. Mehmoona Saghir, Standing Counsel.

Mr. Muhammad Riaz Noon, ASI, P.S. Sumbal.

Date of Hearing : 08-10-2026.

SHAHRUKH ARJUMAND, J.- Through the titled criminal appeals filed under Section 410 of the Code of Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C.”), the appellants, Rizwan Gohar and Kamal Ahmed, impugn judgment dated 23-12-2024, passed by the learned Additional Sessions Judge, Islamabad (West), in FIR No.08, dated 04-01-2024, registered under Sections 302, 392 and 411 PPC at Police Station Shumbal, Islamabad, whereby both appellants were convicted under Section 392 PPC and sentenced to undergo rigorous imprisonment for ten years, with a fine of Rs.100,000/- each and, in default thereof, to further undergo simple imprisonment for one month each. They were also convicted under Section 302(b) PPC for committing the murder of the deceased. The fatal shot having been attributed to Rizwan Gohar,

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he was sentenced to death as ta’zir, Kamal Ahmed was sentenced to imprisonment for life as ta’zir. Each convict were directed to pay Rs.500,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. and, in default of payment, to further undergo simple imprisonment for six months. Kamal Ahmed was acquitted of the charge under Section 411 PPC.

2.The FIR (Exh.PD) was registered on the complaint of Muhammad Imran Sadiq (PW-10), wherein he alleged that on 04-01-2024, at 12:00 (midnight), he, along with his brother-in-law, Muhammad Wasim, aged about 19–20 years, and Mazhar Latif, was walking from Aslam Market near Aik Minar Wali Masjid towards his home situated in Malkan Maira Jaffar. When they reached the main chowk, two young men of medium height, wearing shalwar kameez, intercepted them at gunpoint and demanded their mobile phones. His brother- in-law, Muhammad Wasim, handed over his Vivo mobile phone, while the complainant handed over his wallet. When the robbers demanded the complainant’s mobile phone, Muhammad Wasim resisted, whereupon one of the robbers fired at him with the intention of causing his death. The shot struck him below the neck, causing him to fall injured and die. Both robbers fled on their motorcycle. The complainant and Mazhar Latif saw the robbers in the light from nearby houses and stated that they could identify them.

3.Upon receiving information about the occurrence, Muhammad Sharif, ASI, reached the crime scene along with Khalil Ahmed, ASI, and Hamad Tanoli, Constable, and found the deceased’s body lying on the ground. The body was sent by ambulance to the hospital for postmortem examination under the supervision of Khalid Ahmed, ASI. The complainant’s oral statement was reduced into writing, and the complaint was dispatched through Hamad Tanoli, Constable, to the police station for registration of the FIR.

4.The appellants were arrested in the instant case on 11.01.2024 after they allegedly disclosed their involvement in the occurrence during proceedings in FIR No.19/2024 dated 10.01.2024, registered under Section 13 of the Arms

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Ordinance, 1965 at the same police station. The prosecution examined twelve witnesses in support of its case. The gist of their testimonies is as follows:  Sohail Ahmed Jabba (PW-1) deposed that on 10-01-2024, he registered the FIR (Exh.PA) under Section 13 of the Arms Ordinance, 1965, on the complaint sent by Mehroullah, ASI.

 Khalil Ahmed, ASI (PW-2), deposed that on 04-01-2024, upon receiving information about the occurrence, he, along with Muhammad Sharif, ASI, and Hamad Tanoli, Constable, reached the place of occurrence. Muhammad Sharif, ASI, prepared the inquest report and handed it over to him along with the deceased’s body, which he escorted to the hospital in an official vehicle for postmortem examination. During cross-examination, he admitted that he received information about the occurrence at 12 midnight through Police Helpline 15. The police party reached the place of occurrence within fifteen minutes and returned to the police station at 04:00 a.m. after completing the proceedings.

 Muhammad Sherif, ASI (PW-3), deposed that he was a member of the police party which reached the place of occurrence upon receiving information about the offence. He reduced the complainant’s oral statement into writing as the complaint (Exh.PB) and handed it over to Hamad Tanoli, Constable, for registration of the FIR. During cross- examination, he stated that he handed over the necessary documents to Muneer Khan, Inspector, at about 02:30 a.m. at the place of occurrence and remained there throughout this period.  Fawad Khalid, ASI (PW-4), deposed that on 04-01-2024, he registered the FIR (Exh.PD) on the complaint brought by Hammad Tanoli, Constable.

 Malik Aamir Shahzad, Draftsman (PW-5), deposed that on 06-01- 2024, he prepared the scaled site plan on the pointation of the complainant, Muhammad Imran Saqib, and an eyewitness. During cross-examination, he admitted that he had not mentioned in his statement to the police that he prepared the scaled site plan on their pointation.

 Muhammad Imtiaz, Constable (PW-6), witnessed the taking into possession, through memo Exh.PJ, of fifteen pages relating to FIR No.19, comprising a copy of the FIR, the recovery memo of a .30- bore pistol, the rough site plan and a copy of case diary No.1. He also received a copy of the identification parade proceedings, consisting of six pages, from the Court of Kamran Saghir, Executive Magistrate, on 07-02-2024. He further deposed that, in his presence, the accused, Rizwan Gohar, during physical remand in FIR No.19, disclosed that the pistol was already present at the police station in connection with

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that FIR, whereupon the investigating officer took it into possession through a recovery memo.

 Muhammad Hamad Tanoli C/4899 (PW-7) deposed that he was a member of the police party which reached the crime scene upon receiving information about the occurrence. According to him, the police party reached the crime scene at 12:45 a.m., where Muhammad Sharif, ASI, drafted the complaint and handed it over to him, which he took to the police station for registration of the case.  Maroos Ali Shah, HC/2027 (PW-8), deposed that on 04-01-2024, he received the last-worn clothes of the deceased and a sealed parcel said to contain an empty cartridge from Munir Khan, Inspector. On 09-01- 2024, he returned the sealed parcel to Munir Khan, Inspector, for onward transmission to NFSA. On 17-01-2024, he handed over the sealed parcel said to contain blood-stained cotton to Munir Khan, Inspector, for onward transmission to PFSA, Lahore. He further deposed that on 16-02-2024, the accused, Rizwan Goher, while on physical remand, disclosed that FIR No.19/2024 was registered against him and that the pistol was present at the police station. Thereupon, the investigating officer summoned this witness, who handed over the .30-bore pistol to him, which was taken into possession. On the same day, Hasan Bashir disclosed that the motorcycle used in the commission of the offence was present at the police station, which was also taken into possession.  Dr. Irshad Hussain, MLO, PIMS (PW-9), deposed that on 04-01- 2024, at about 12:00 noon, he conducted the postmortem examination of the deceased. He noted one firearm entry wound measuring 2 × 2 cm, with inverted margins, at the sternal notch left internal thorax artery and vein and the left subclavian artery and vein were damaged, no exit wound was noted. A bullet was retrieved from the medial border of the left scapula and handed over to the Inspector. In his opinion, the deceased died due to a firearm injury causing severe damage to the left lung and major blood vessels, resulting in excessive bleeding and loss of blood. All injuries were ante-mortem and sufficient to cause death. He estimated the interval between injury and death as approximately two to three minutes, and between death and postmortem examination as approximately eleven and a half to twelve hours. He tendered the postmortem report in evidence as Exh.PK. During cross-examination, he admitted that the body was brought by the police and the deceased brother-in-law.  Muhammad Imran Saqib, complainant (PW-10), narrated the facts mentioned in the FIR. He further deposed that the police party reached the crime scene within fifteen to twenty minutes. Muhammad

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Inayat, ASI, collected the deceased’s nail swabs and took them into possession through recovery memo Exh.PW-10, attested by this witness and Munsif Dar. He further deposed that on 24-01-2024, they went to Adiala Jail, where they correctly identified both accused during the test identification parade.

During cross-examination, he admitted that he had not mentioned the registration number, colour or model of the motorcycle and had referred to only two accused persons in the FIR. He stated that he made his statement to the police regarding the occurrence at about 12:30 a.m., when the deceased’s body was still lying at the place of occurrence. The body was thereafter shifted to the hospital at 12:45 a.m. He admitted that after accompanying the body to the hospital, he did not return to the place of occurrence. Upon receiving the body from the hospital, he proceeded directly to his native village and returned after twenty days. He further admitted that the police inspector took him and Mazhar Latif from the police station to Adiala Jail in a private vehicle. He also admitted that two fires were shot at the deceased and that the accused was at a distance of five to ten yards.

 Munir Khan, Inspector (PW-11), deposed that on 04-01-2024, he reached the crime scene, where Muhammad Sharif, ASI, handed over the case documents to him. He inspected the place of occurrence. Muhammad Inayat, ASI, collected the deceased’s nail swabs, sealed them in a parcel and handed it over to him, which he took into possession through memo Exh.B. He also collected two empty cartridges and one live cartridge of a .30-bore pistol, along with blood samples taken on cotton, from the spot through recovery memos. Thereafter, he visited the hospital, where the deceased’s body was lying on a stretcher in the emergency ward. He submitted an application to the CMO for postmortem examination and placement of the body in the mortuary. He thereafter went to the police station and deposited the case property. He also received the deceased’s last- worn clothes from the doctor. On 06-01-2024, he visited the place of occurrence with the draftsman, who took rough notes for preparation of the scaled site plan. He collected the CDRs and dispatched the empty cartridges to NFSA. On 11-01-2024, Mehrullah, ASI, informed him that Rizwan Gohar, accused in FIR No.19, dated 02- 01-2024, had disclosed his involvement in the occurrence reported in the instant case. He thereafter arrested the accused in this case. On 12-01-2024, he received the scaled site plan from the draftsman. On 17-01-2024, he dispatched the sealed parcel containing blood-stained cotton to the PFSA Collection Centre, Rawalpindi. On 24-01-2024,

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he proceeded to Central Jail, Rawalpindi, where the identification parade was conducted. On 27-01-2024, he received the postmortem report from the MLO, PIMS. On 07-02-2024, he received a copy of the identification parade proceedings from the office of the Assistant Commissioner. On 12-02-2024, he received the PFSA report. On 14- 02-2024, he filed an application for summoning the accused, who were produced on 15-02-2024 and handed over to him on physical remand. On 16-02-2024, Kamal Ahmed made a disclosure and led to the recovery of a wallet containing the deceased’s identity card, ATM cards, service card and Rs.600/-, which were taken into possession through a recovery memo. A motorcycle, CD-70, was taken into possession following the disclosure made by Hassan Bashir. Rizwan Gohar disclosed that the weapon of offence had already been seized in FIR No.19, dated 02-01-2024, whereupon it was taken into possession in the instant case.

During cross-examination, he stated that he prepared the rough site plan at 01:12 a.m. and marked point No.2 as the place from where the third accused fired. He conducted the spot proceedings at 02:00 a.m. He further stated that he met Khalid, ASI, and a Constable at the place of occurrence, which was surrounded by houses. He stated that he sent Rizwan Gohar to judicial custody but could not recall whether his face was muffled at that time. He admitted that on 24-01-2024, he and the complainant remained together for about two hours. He further admitted that he neither took into possession the bulb alleged to be the source of light nor recorded the statement of Imran, at whose house the bulb was allegedly lit.

 Kamran Sagheer, Assistant Commissioner (PW-1), deposed that the witnesses identified the appellant during the test identification parade conducted under his supervision. During cross-examination, he admitted that the heights of the dummies and the accused were not mentioned in the identification parade proceedings and that the witnesses failed to identify Aslam Bashir.

 The prosecution gave up witnesses Mansab Dar, Saleem Ghazi and Sajjad Ali being unnecessary, whereas the reports of Forensic DNA and Serology Analysis and Firearms were adduced into evidence as Exh.PB and Exh.PCC, respectively.

5.The statements under section 342 Cr.P.C. of the appellants were recorded on 20.12.2024; they neither opted to record statement under section 340(2) Cr.P.C. nor opted to lead defence evidence. On conclusion of trial, the

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appellants were convicted in terms noted in paragraph-1 above, whereas, the accused-Hassan Bashir was acquitted.

6.Learned counsel for the parties and the learned Prosecutor for the State have been heard and the record perused with their able assistance.

7.It is in the prosecution’s evidence that the occurrence was witness by the complainant Muhammad Imran Saqib (PW-10) and Muhammad Mazhar Latif (not examined). The accused persons were not known to the complainant party and thus the occurrence was their first encounter. It is in this backdrop that the proceedings of test identification parade attain significance. The question emerges whether such proceedings were conducted in accordance with the guidelines and safeguards prescribed by the Hon’ble Supreme Court in the case of “Kanwar Anwaar Ali, Special Magistrate: In matter of Crl. Misc. Application No.183/2019” (PLD 2019 SC 488).

8.In the instant case the test identification parade was conducted under the supervision of Kamran Sagheer, Assistant Commissioner (PW-12) on 24.01.2024, who tendered his report as Exh.PZ. Perusal of the report reveals that on the said date the identification proceedings were arranged for two witnesses namely Muhammad Imran Saqib (PW-10) and Muhammad Mazhar Latif (not examined). In the first part of the proceedings, for witness Muhammad Imran Saqib, three lines were arranged, each consisting of 8 dummies and 01 accused; in the first line the accused Rizwan was placed at Sr. No.09, in the second line, the accused Hassan Bashir was placed at Sr. No.02 and in the third line the accused Kamal Ahmed was placed at Sr. No.01. This witness identified the accused Rizwan and Kamal Ahmed, whereas, Hassan Bashir was not identified. The role assigned by this witness to accused Rizwan was of firing at the deceased. It is also important to note that the accused persons had recorded the objection that the investigating officer had captured their photos. Significantly, the entire arrangements of the identification parade including the placement of accused in the rows and their serial number within the dummies remained the same while the proceedings resumed for the witness

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Muhammad Mazhar Latif. However, he was able to identify only the accused Hassan Bashir.

9.The identification parade was joint and there was no shuffling of the dummies and the accused persons for each of the witness. Furthermore, heights of the dummies and the accused were not mentioned in the identification parade proceedings and that the witnesses. According to the rule set by the Hon’ble Supreme Court in Kanwar Anwaar Ali’s case, supra, where more than one accused person is to be subjected to test identification, the rule is that a separate identification parade ordinarily be held for each accused person. Here not only this settled rule has been breached as joint identification parade of three accused persons was conducted for each witness, but shuffling of the dummies and the accused persons also did not take place. In this view of the matter, the proceedings of the test identification parade have lost its efficacy insofar as its use against the accused persons as a chain to connect them with the commission of offence is concerned.

10.The occurrence is admittedly of midnight. In absence of light/bulb from the crime scene, the complainant would not have identified any of the accused persons. Likewise, the collection of crime empties and sample of blood from the crime scene could not have been collected with adequate arrangements. Munir Khan, Inspector (PW-11) admitted that neither he collected the bulb/source of light from the crime scene nor statement of owner of the house on whose house the bulb was lit, was recorded. In the case titled Imtiaz Hussain Shah alias Tajjay Shah and another v. The State and others (2025 SCMR 110), the Ho’ble Supreme Court observed that “This Court has repeatedly held that in the absence of the source of light having been mentioned in the FIR and recovery of such source, the identification of the accused becomes questionable”. Reference was also made to the case of Usman alias Kaloo v. The State (2017 SCMR 622), wherein it was observed:

“The occurrence in this case had taken place in the dead of a night i..e 11.30 p.m. on 05.03.2005 and the investigating officer had stated before the trial court in black and white that no electric light was available at the spot. The occurrence in issue had taken place

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outside the house of the deceased and in the absence of any source of light at the spot the question regarding identification of the assailant had assumed pivotal importance but the prosecution had paid no heed to the same”

Reliance is also placed on the cases titled Chetan v. The State (2025 SCMR 944) and Khizar Hayat v. The State (2025 SCMR 1339). Face features and impressions of the accused/assailants were not described in FIR, therefore, identification parade further losses its authenticity.

11.The complainant Muhammad Imran Saqib (PW-10) stated that from the crime scene, he went alongwith the dead body to the hospital and from there he went to his native town with the dead body and returned after twenty days. While present at the crime scene the police party arrived at 12:30 a.m. and the dead body was shifted to PIMS at 12:45 p.m. Admittedly, the Draftsman (PW-

5)visited the crime scene on 06.01.2024 and handed over to Munir Khan/I.O. the scaled site plan (Exh.PE) on 12.01.2024. It is thus obvious that the site plan was prepared without involvement of any of the eye witness.

12.The non-production of the eyewitness, Muhammad Mazhar Latif, by the prosecution has, on the one hand, rendered the entire case dependent upon the sole testimony of the complainant, Muhammad Imran Saqib (PW-10), and, on the other, attracted the adverse inference under Article 129(g) of the Qanoon- e-Shahadat Order, 1984, that, had Muhammad Mazhar Latif been examined, his testimony would not have favoured the prosecution.

13.The prosecution’s evidence disclose that under nail swabs of the deceased were collected by Muhammad Inayat, ASI, but the evidence and record does not establish whether the same was forwarded for forensic analysis. As the prosecution alleged that before the firing, the deceased scuffled with the accused, therefore, in such circumstances the under nail swabs of the deceased would have led a positive DNA traces connecting one of the accused persons to the commission of offence. However, for reasons best known to the prosecution, it omitted produce before the trail court such a concrete piece of evidence.

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14.The Firearms report (Exh.PCC) shows that two empty cartridges were sent for forensic analysis on 09.01.2024. The complainant in during cross examination admits that two fire shots were made and the investigating officer also stated that two crime empties were recovered from the crime scene. These statements are, however, contradictory to the version contained in the FIR (Exh.PD) wherein one fire shot has been attributed to the accused and the postmortem report which reveals that the deceased received one fire arm injury. Likewise, both the appellant-Rizwam was arrested on 10.01.2024 in FIR No.19/2024 registered at the same police station and upon his disclosure, he was arrested in the instant case on 11.01.2024. There is no explanation as to why dispatch of the crime empties recovered promptly from the crime scene on 04.01.2024 was withheld until 09.01.2024 i.e. one day before arrest of the accused.

15.The postmortem report reveals the gap between the postmortem and the death of the deceased as 111⁄2 to 12 hours. It also shows that mouth and eyes of the deceased open with rigor mortis and postmortem levidity developed. PW- 9/Medico-Legal Officer testified that the dead body was brought to hospital at 01:18 a.m. The prosecution failed to justify the delay occasion in conducting autopsy on the dead body of the deceased. In the case titled Waqas Ahmed v. The State (2025 SCMR 1087) the delay in in postmortem examination was 03 hours, however, the supreme court observed as follows:

“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. Furthermore, reliance may also be placed on the cases of “Khalid alias Khalidi and others v. The State” (2012 SCMR 327), “Sufyan Nawaz and another v. The State and others” (2020 SCMR 192), “Zafar v. The

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State and others” (2018 SCMr 326) and “Muhammad Ashraf v. The State” (2012 SCMR 419).”

16.Furthermore, the initial version of the complainant i.e. FIR discloses the presence of two accused persons who demanded mobile phone, scuffled with them and fled away on a motorcycle. However, his statement subsequently improved by including a third accused, assigning him the role of waiting away on a motorcycle. The improvement introduced in the prosecution version, particularly one aimed at strengthening or advancing the case, potentially and substantially erodes the credibility of the witness making the improvement. Reliance is placed on the case of Akhtar Ali and others v. The State (2008 SCMR 6), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), Naveed Asghar and others v. The State (PLD 2021 SC 600), Amir Zaman v. Mahboob and others (1985 SCMR 685) and Muhammad Mansha v. The State

(2018 SCMR 772).

17.In view of the above, we conclude that the case of prosecution suffers from material infirmities, which include a faulty test identification parade; non- production of a material eye-witness; delayed postmortem examination; delay deposit of crime empties for forensic examination; omission to collect the source of light from the crime scene; improvement in statement of complainant; omission to transmit the under nail swabs of the deceased for DNA analysis and preparation of the scaled site plan without the pointation of the eye witnesses. The prosecution was bound to adduce evidence of unimpeachable character against the accused persons so as to establish their guilt beyond shadow of doubt. It is settled principle of law that in case of any doubt, the benefit thereof must be extended to the accused as a matter of right and not of grace. Reliance is placed on "Muhammad Akram v. The State" (2009 SCMR 230) and Muhammad Akram v. The State (2009 SCMR 230). In the facts and circumstances of the instant case, we are not inclined to maintain the conviction and sentence awarded by the learned trial court to the appellants. The impugned judgment passed by the learned trial court is, therefore, liable to be set aside.

18.For what has been discussed above, the titled criminal appeals are allowed. The impugned judgment dated 23.12.2024 passed by the learned trial

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court is hereby set-aside. Consequently, appellants Rizwan Gohar and Kamal Ahmed are acquitted of the charge; they be released forthwith if not required to be incarcerated in any other case. The murder reference is answered in the negative.

(INAAM AMEEN MINHAS) (SHAHRUKH ARJUMAND)

JUDGE JUDGE

Announced in the open Court on 15th day of October, 2026.

JUDGE JUDGE

Approved for reporting.

Tanveer Ahmed/*