Shafique Hussain VS The State

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Jail Appeal No.475/2023 Shafique Hussain Versus The State

Murder Reference No.24/2023 The State Versus Shafique Hussaini

Appellants/Convict by : M/s Ch. Abdur Rehman Hur Bajwa, Malik Qatada Jamal, Faisal Nawaz and Atif Shafiq Advocates.

Complainant by:

: Ch. Zubair Mehmood Gujjar Advocate.

State by : Mr. Nisar Ahmed Shah, SPP.

Mr. Zahid Hameed, ASI, P.S. Shahzad Town.

Dates of Hearing : 22-9-2026.

SHAHRUKH ARJUMAND, J.- Through the titled Jail Appeal, filed under section 410 of the Code of Criminal Procedure, 1898 (hereinafter Cr.P.C.), the appellant, Shafique Hussain, impugns the judgment dated 15.12.2023 passed by the learned Additional Sessions Judge-V, Islamabad (East), whereby he was convicted under section 302(b)/34 of the Pakistan Penal Code, 1860 (hereinafter PPC) and sentenced to death. He was also ordered to pay compensation of Rs.2,000,000/- under section 544-A Cr.P.C. in FIR No. 521/22, dated 18.08.2022, registered under sections 302, 324 and 34 PPC at Police Station Shahzad Town, Islamabad. The learned Additional Sessions Judge, Islamabad (East), has forwarded the murder reference under section 374 Cr.P.C. for confirmation of the sentence of death awarded to the appellant.

2.The facts relevant to adjudication of the lis at hand are that the FIR (Exh.PE) was registered on the complainant’s written application (Exh.PJ) of

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Zorawar Khan, wherein he alleged that he was engaged in the supply of construction material; that about a month earlier, Shafique had obtained construction material on credit but was delaying payment; that, therefore, on 16.08.2022, the complainant spoke to him on telephone, and Shafique asked him to come to his house on 17.08.2022 at about 10:00 p.m. to receive the amount; that, on the given date and time, when the complainant reached the house of the accused/appellant, he met Shafique, his father and an unknown person; that, when the complainant asked for payment, they started abusing him and his son; that Shafique and his father then went into their house, brought out firearms and fired at the complainant and his son; that one shot hit the complainant in the neck, while he saved his life by lying on the ground. In the complaint, he alleged that all the accused persons had murdered his son.

3.Upon receiving information of the commission of offence, Muhammad Asif, ASI (PW-3) reached hospital alongwith Liaquat Ali HC/7174, where they found dead body of the deceased-Sajjad Khan lying on a stretcher. The written application for registration of FIR was sent to the police station through Liaquat Ali HC/7174 (PW-4), upon which FIR (Exh.PE) was registered by Mumtaz Baig, SI (PW-2). Muhammad Asif ASI prepared the inquiry report (Exh.PF) of the deceased. He also submitted applications to the CMO for shifting the dead body to the mortuary (Exh.PG) and for conducting autopsy on the dead body of the deceased (Exh.PH). He prepared injury statement (Exh.PI). Dr. Muhammad Abdul Khan (PW-5) conducted autopsy on dead body of the deceased and prepared postmortem report Exh.PL/1-6). Ashiq Shah, Inspector (PW-15) took into possession blood on a cotton swab from the crime scene through recovery memos (Exh.PU) and motorcycle on which the complainant party went to house of Shafique (Exh.PV). The complainant was medically examined in the hospital by Dr. Hifsa (PW-4) and the Medico-Legal Certificate (MLC) is Exh.PD/C).

4.Charge against the appellant and co-accused (since acquitted) was framed on 21.01.2022, to which they pleaded not guilty and claimed trial. The prosecution examined total 14 witnesses and adduced documentary evidence as

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well. The statement of appellant under section 342 Cr.P.C. was recorded on 28.11.2023; he opted to record statement under section 340(2) Cr.P.C. and in defence, produced three DWs namely Dr. Abu Bakar (DW-02), Waqi-ul-Zimma (DW-3) and Dr. Hifsa (DW-4). On conclusion of trial, the learned trial court convicted and sentenced the appellant in the aforementioned terms, whereas, the co-accused was acquitted.

5.Arguments heard. Record perused.

6.The appellant has been awarded the capital punishment of death and has preferred the instant appeal against his conviction and sentence. The murder reference under section 374, Cr.P.C. has also been received for confirmation of the death sentence. In these circumstances, it would be appropriate to reappraise the entire evidence, both prosecution and defence, recorded by the learned trial Court.

Prosecution evidence:

The prosecution produced total 14 witnesses, the gist whereof is as follows.-  Mr Muhammad Javaid Mukhtar (PW-1) was posted as Moharrar malkhana on the day occurrence. On 18.08.2022, he received sealed parcel said to contain empties and blood stained cotton, which were kept in safe custody. The parcel said to contain empties was returned to Ashiq Shah, Inspector (PW-15) on 31.08.2022, whereas, the other parcel said to contain blood stained cotton was handed over to Muhammad Ameer SI (PW-11) for forensic analysis to the laboratory. On 22.08.2022 he received sealed parcel said to contain 30 bore pistol recovered from accused Khan Said which was deposited in malkhana. He also received another sealed parcel said to contain 9mm pistol recovered from accused Shafique Hussain. The said parcels were subsequently forwarded to NFSA for analysis.

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 Mr Mumtaz Baig SI (PW-02) drafted the FIR (Exh.PE) on the complaint brought by Liaqat Ali HC (PW4).

 Mr Muhammad Irfan Asif ASI (PW-3) was the first who reached the hospital after receiving information of the commission of offence. He prepared inquest report (Exh.PF), submitted applications to the CMO for keeping the dead body in mortuary and also moved application for autopsy on the dead body; prepared injury statement of the complainant (Exh.PI); received application from the complainant for registration of the FIR, forwarded the same to the police station. Ashiq Shah Inspector (PW-15) then took over the investigations.

 Mr Liaqat Ali HC (PW-4) took the application of the complainant from hospital to the police station, over which the FIR was registered.

 Dr Muhammad Abdullah Khan, PW-5 conducted postmortem on the dead body of the deceased and prepared the postmortem report (Exh.PL/1-6). The details of injuries sustained by the deceased and his opinion are as follows.-

i. Entry wound 2x2 cm, inverted margins sooting present, on the left side of lower back, 10 cm from midline, 47 cm from left shoulder. ii. Exit wound 0.5 x 0.5 cm, everted margins, 7 cm from midline, 27 c, from left nipple on the right lower abdominal region.

Opinion In my opinion deceased died due to firearm injury which resulted in damage to the peritoneum and small intestine. All the injuries were ante- mortem in nature and sufficient to cause death in ordinary course of nature.

 Mr Amir Shahzada Draftsman (PW-6) visited the crime scene on 19.08.2022 and prepared the scaled site plan (Exh.PN) on the pointation of complainant.

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 Mr Aamir Abbasi, SI (PW-7) investigated the accused persons during remand. During interrogation the accused Khan Said got recovered the weapon allegedly used in the commission of offence i.e. 30 bore pistol.

 Mr Ijaz Shah HC (PW-08) and Mr Asif Mehmood, C/5185 (PW-9) are the witnesses of recovery of the crime weapon by Khan Said accused, recovered on 22.08.2022.

 Mr Muhammad Akhtar HC (PW-10) is the witness of recover of crime weapon i.e. 9mm pistol by accused Muhammad Shafique, got recovered on 25.08.2022. He also collected the postmortem report from hospital and handed over the same to the Investigating Officer.  Mr Muhammad Ameer SI (PW-11) received the postmortem report from Akhtar-PW. He also handed over sealed parcels of crime empties and handed over them to Akhtar-PW for deposit in the NFSA. During interrogation, the accused Muhammad Shafique made disclosure regarding recovery of the crime weapon i.e. 9mm pistol, which was got recovered on 25.08.2022, which was deposited with the Moharrar Malkhana on 26.08.2026. On 06.08.2022, he collected the sealed parcels said to contain crime weapons and handed over them Akhtar-PW for onward deposit with the NFSA.

 Mr Taj Muhammad Khan (PW-12) deposed that he received information that his uncle Zorawar Khan had a clash with Shafique and that he received firearm injury. Upon which he proceeded to the crime scene where his uncle was present in injured condition, whereas, police was already present there. He placed the deceased in his vehicle and shifted to the hospital alongside the complainant.

 Mr Zorawar Khan (PW-13) is complainant of the case. In his statement he narrated an improved version of the story incorporated in the FIR. He is also witness to recovery of blood through cotton from the crime scene,

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recovery of empties, recovery of motorcycle from the place of occurrence.

 Mr Razi Khan (PW-14) claims to be an eye witness in terms that he was informed by the complainant that he had to receive the amount from Shafique in the evening and he followed the complainant, where he witnessed the occurrence. He further stated that the complainant made a call to Rescue 15 and Rescue 1122 and that the police arrived at the crime scene.

 The report of Forensic DNA and Serology Analysis (Exh.PY) and Firearms Report (Exh.PZ) are in the affirmative.

Defence evidence:

The defence led total 04 defence witnesses, the gist whereof is as follows.-  Mr Shafiq Hussain (appellant) DW-1 entered the witness box. He admitted the transaction/loan between him and the complainant but stated that despite his requests Zorawar Khan was not ready for extension in time for repayment thereof and that he abused and started beating the appellant. That upon hue and cry, his father Khan Said, mother Nafeesa Bibi as well other people of the street gathered. This witness alleged that among all, only Zorawar Khan had the pistol and the deceased died due of the shot fired from the pistol of Zorawar Khan; that it was the appellant who informed the police of the occurrence by calling at rescue 15 and police party reached at the crime scene. That he also received medical treatment from Polyclinic Hospital and got six stitches on the right side and three stitches on the left side of his head.

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 Waqi-ul-Zimma (DW-3), posted at Adyala Jail as Assistant Superintendent stated that as per the record CT-Scan report and other record of the inmate is not available in jail.

 Dr Abu Bakar (DW-2) entered the witness box and denied having examined the appellant on 18.08.2022. He however admitted his stamp on the prescription slip.

 Dr. Hifsa (DW-4) deposed that she had examined Shafiq-Appellant on 18.08.2022 and referred him to surgery department for futher treatment. She adduced copy of MLC No.1969 as Exh.DC.

7.The Court would first appraise the evidence of the prosecution, as to whether a case proving guilty of the appellant beyond shadow of doubt is made out. The complaint (Exh.PJ) was written in the PIMS Hospital, took from the hospital by Liaquat Ali-PW to police station for registration over which the FIR (Exh.PE) was registered. The very contents of the complaint and FIR shows that the police party first reached the hospital where they saw the deceased lying on a stretcher. Muhammad Irfan Asif (PW-3) and Liaqat Ali HC (PW-4) in their statements have recorded that they proceeded to PIMS Hospital after receipt of the information about the commission of offence, whereby they saw the dead body lying on a stretcher. On the contrary, PW-12 Taj Muhammad narrated a different story. He stated that when he reached the crime scene, police party was already present there. Not only this, the complainant (PW-13) also states the same fact in his examination in chief that the police party had reached the crime scene, before shifting of the deceased to hospital.

8.The statement recorded by the complainant before the Court as PW- 13 is an improved version of the FIR. It contains various improvements: that he knocked on Shafique’s door and waited outside; that they were humiliated a lot; that he asked Rozi Khan (PW-14) to bring water from a neighbour; that he called Rescue 15; that he called Taj (PW-12), who did not answer; and that Taj’s brother

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answered the call, came to the spot and shifted them to the hospital. These are not mere improvements. Through them, the complainant has introduced two new witnesses to the case. The significance of these additions is that Rozi Khan and Taj are now said to have witnessed and participated in events immediately following the occurrence. Their introduction gives the complainant’s account new persons who could confirm parts of his version, although they were absent from the account he initially gave in the FIR. In Akhtar Ali and others v. The State (2008 SCMR 6), the Honourable Supreme Court held that a deliberate improvement made to strengthen the prosecution case casts serious doubt on the witness’s credibility. In Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), it held that material and dishonest improvements rendered the witnesses untrustworthy. In Naveed Asghar and others v. The State (PLD 2021 SC 600), the Hon’ble Supreme Court, while dealing with a witness who had stated under section 161, Cr.P.C. that he could not recognize the accused due to darkness but subsequently identified them in Court, characterized the subsequent version as a “very glaring and material improvement” and held that such deliberate and dishonest improvement rendered the witness unreliable. It was further held that it was unsafe to rely upon the testimony of a witness who makes such an improvement even with respect to facts, unless his evidence receives corroboration from an independent and reliable source. The same principle has consistently been recognized in Amir Zaman v. Mahboob and others (1985 SCMR 685), and Muhammad Mansha v. The State (2018 SCMR

9.The evidence of Razi Khan (PW-14) and Taj Muhammad Khan (PW- 12), although giving a direct account of the occurrence, leaves their presence at the spot doubtful. Firstly, as noted above, he was introduced into the story subsequently by the complainant. Secondly, their evidence gives an altogether different account. Had they been present at the spot, witnessed the occurrence and accompanied the deceased and the complainant to the hospital, they would have disclosed the complete details of the occurrence to the police at the hospital, and those details would have been recorded in the FIR. The initial version recorded by the complainant, on the contrary, is silent on the details of whose fire hit the deceased

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or the complainant. Razi Khan and Taj Muhammad made an attempt to strengthen the prosecution case by attributing to the complainant the role of calling Rescue 15 and Rescue 1122. These assertions find no support in the remaining prosecution evidence and directly conflict with the testimony of the official witnesses. Indeed, when his entire version is read in conjunction with the prosecution evidence, it undermines the prosecution’s case. It was thus not safe for the learned trial court to rely upon testimony of these witnesses to award conviction and the sentence.

10.There is another significant aspect of the case. In response to a question during cross examination, the complainant disclosed he received the bullet injury from Shahzad, who was known to him and his age is about 19 years. He also admitted that his name was not mentioned in the FIR. Contrary to his own version, in response to another question he replied that “I came to know about the name of Shahzad at the place of occurrence through Razi Khan after the occurrence. Razi Khan disclosed me the name of Shahzad while we were at home, soon after the funeral.” More importantly, the PW-14 Razi Khan in his statement neither disclosed the fact of firing of Shahzad upon the complainant nor disclosed his name. The complainant thus advanced two versions, (i) that he knew Shahzad Khan and his age is 19 years and (ii) that name of Shahzad Khan was disclosed to him by Razi Khan-PW. If the former is accepted, the question is why he did not nominate him in the FIR, whereas, if the latter version is accepted, then question would arise as to why Shahzad Khan in his testimony did not disclose the name of Shahzad Khan, attributing to him the specific role of firing upon complainant being the eye witness. There another inconsistent part of the statement of Razi Khan-PW. He stated that after the occurrence he proceeded to Mohmand Agency; that he did not attend funeral of the deceased and that he returned on 19.08.2022 and visited the complainant at his house. This portion of Razi Khan’s statement belies the complainant’s testimony that the name of Shahzad was disclosed to him soon after the funeral prayer.

11.The complainant also admitted during cross examination that, at the time of the incident, the appellant, Shafique (DW-1), was a little bit injured. This

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part of his testimony lends support to the plea taken by the appellant during trial that he had sustained a head injury requiring six stitches on the right side and three on the left side. DW-4, Dr. Hifsa, testified that she had medically treated the appellant and tendered his MLC (Exh.DC) into evidence. Despite this, the investigating officer investigated the case from the complainant’s standpoint alone. He neither collected the appellant’s medical record nor recorded his version, which could have helped him ascertain how the appellant sustained his injuries and the circumstances in which the occurrence took place. This omission also casts serious doubt on the fairness and impartiality of the investigation. The failure to examine a documented injury and record the appellant’s version suggests that the investigating officer deliberately rather malafidely confined the inquiry to the complainant’s account.

12.The crime empties were secured from the place of occurrence on 18.08.2022 through recovery memo (Exh.PU), yet were deposited with the NFSA on 25.08.2022, as reflected in Exh.PZ. Significantly, 25.08.2022 is also the date on which the appellant allegedly led to the recovery of the crime weapon. Thus, the investigating agency retained the empties for seven days and dispatched them only when the alleged weapon was recovered. In Nazeer Ahmed v. The State (2016 SCMR 1628), the Hon’ble Supreme Court disapproved the dispatch of a crime empty after recovery of the gun. In Hayatullah v. The State (2018 SCMR 2092), it was held that the recovery becomes inconsequential where the empty had been retained until recovery of the pistol and the two were thereafter transmitted together. Likewise, in Muhammad Abras v. The State (2025 SCMR 1145), it was found that delayed transmission of the empties and weapon deprived the positive forensic report of evidentiary significance. Here in this case, the delayed dispatch of empties deprived the forensic comparison of an independently secured sample of the empties obtained before recovery of the weapon and left open the possibility of manipulation. In the absence of a satisfactory explanation for that delay and proof of safe custody, a subsequent positive firearm report cannot reliably connect the weapon with the occurrence; the alleged recovery of the weapon is, therefore, inconsequential.

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13.It is matter of record that, vide same impugned judgment the co- accused Khan Said been acquitted by the learned trial Court by disbelieving and discarding evidence of prosecution witnesses and trial Court has believed the evidence of the same witnesses against appellant and on the basis of such evidence has passed conviction and sentence. It is settled law that, if the eye witnesses have been disbelieved against some accused persons attributed effective roles then the same eye witnesses cannot be believed against another accused person attributed a similar role unless such eye witnesses receive independent corroboration. The Hon’ble Supreme Court of Pakistan, in case of Imtiaz alias Taj v. The State and others (2018 SCMR 344) has held as under:

“The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and a reference in this respect may be made to the cases of Ghulam Sikander v. Mamaraz Khan (PLD 1985 S.C 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2009 SCMR 6).

14.Although the appellant entered the witness box and led defence evidence. In his statement, he alleged that the deceased died due to fire shot of the complainant. Thus for such reason the principle to deal with cases of two versions laid down by Hon’ble Supreme Court in the in the case of Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994 SC 879) has, to be applied. It has been laid down therein as follows:--

“The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye witnesses and the probability of the story told by them and then examine the statement of the accused under section 342, Cr.P.C. statement under section 340(2), Cr.P.C. and the defence evidence. If the Court

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disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under section 342. Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case. If the answer, in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question is in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or nor there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly.”

15.In the case of Shamoon alias Shamma v. The State (1995 SCMR 1377) it has been held that:-

“The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defense. Failure of prosecution to prove the case against the accused entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Where the prosecution succeeds in establishing its case against the accused beyond reasonable doubts, then the stage arrives for consideration of the plea of the accused in defense and the question of burden of proof becomes relevant. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defense does not arise.”

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16.In the case of Hakim Ali and others v. The State (1971 SCMR 432), it has been held that “The prosecution has always to succeed upon the strength of its own case and not the weakness of the defence case. It is not necessary for the defence to establish the innocence of the accused persons. It is enough for it if it has succeeded in casting a serious doubt upon the prosecution case. The benefit of that doubt must go to the accused.”

17.The Hon’ble Supreme Court in the case of “Muhammad Mansha v. The State” (2018 SCMR 772), has held that “Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. Reliance is also placed on the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

18.In view of the above precedent law, although the appellant examined himself on oath and produced evidence in defence, his plea, however, may not have established by that evidence; yet the same does not relieve the prosecution of its independent obligation to prove the charge beyond reasonable doubt. As discussed above, the prosecution evidence suffers from material infirmities and does not establish the appellant’s guilt to the beyond reasonable doubt. The weakness of the defence cannot cure those infirmities or furnish the missing proof. Consequently, notwithstanding the appellant’s failure to substantiate his plea, he is entitled to the benefit of doubt.

19.For what has been discussed above, the instant appeal is allowed; the conviction and sentence awarded by the learned trial court vide the impugned judgment dated 15.12.2023 are hereby set aside. Consequently the appellant is acquitted of the charge. He is in jail, he be released forthwith if not required to be

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incarcerated in any other case. As a result, Murder Reference No. 24/2023 is answered in negative and the sentence of death is not confirmed.

(INAAM AMEEN MINHAS) (SHAHRUKH ARJUMAND)

JUDGE JUDGE

Announced in open Court, on 30th day of September, 2026.

JUDGE JUDGE

Approved for reporting.

Tanveer Ahmed/*