Corrboration

P L D 2010 Supreme Court 669
Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ
KHADIM HUSSAIN---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.196 of 2009, decided on 18th November, 2009.
(On appeal from the judgment dated 15-10-2008 passed by the Lahore high Court,
Bahawalpur Bench, Bahawalpur in Criminal Appeal No.98 of 2003).
(a) Penal Code (XLV of 1860)---
----Ss. 302(6), 324/34 & 449---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd,

attempt to commit qatl-e-amd and house trespass---Leave to, appeal was granted to
accused by Supreme Court to reappraise the entire evidence to ensure safe dispensation
of justice.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324/34 & 449--Qatl-e-amd, attempt to commit qatl-e-amd and house
trespass---Appraisal of evidence---Medical evidence had fully supported ocular version---
Two crime empties secured from the place of occurrence had matched with the rifle
recovered at the instance of accused, as indicated by the positive Forensic Science
Laboratory report---Eye-witnesses who had received injuries during the incident had no
enmity with the accused and their statements being free from any ambiguity,
exaggeration and dishonest omissions had rightly been relied upon by the courts below---
Minor contradictions creeping in evidence with the passage of time could be safely
ignored---Relationship of eye-witnesses with the deceased was no ground to discredit
them, when they had stood firm during cross-examination and sufficient corroboratory
material was available to support their testimony--Intrinsic value of the statements of
prosecution witnesses had to be examined and not their relationship---Defence version
was nothing but a denial simpliciter on account of false involvement without even
alleging the nature of enmity---Plea of grave and sudden provocation was not
established---Impugned judgment did not suffer from misreading' of credible and
confidence-inspiring evidence or any illegality or irregularity---Appeal was dismissed in
circumstances.
Riaz Hussain v. The State 2001 SCMR 177; Devi Prasad v. State AIR 1967 All. 64; Niaz
v. State PLD 1960 (Pak.) 387; Nazir v. The State PLD 1962 SC 269; Manawar Ali v.
State 2001 SCMR 614; Muhammad Amin v. The State 2000 SCMR 1784; Iqbal alias
Bhala v. State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The
State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734; Muhammad Akbar v.
Muhammad Khan PLD 1988 SC 274 and Muhammad Rafique v. State 1977 SCMR 457
ref.
(c) Penal Code (XLV of 1860)---
Page No. 1 of 6
----Ss. 302(b), 324 & 449---Qatl-e-amd, attempt to commit qatl-i-amd and house
trespass---Appreciation of evidence---Contradictions---Minor contradictions do creep in
evidence with the passage of time and the same can be ignored safely.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-i-amd---Appreciation of

evidence---Related witness---Corroboration---Mere relationship of a witness with the
deceased is not sufficient to discard his statement, if he stands firm to the test of cross-
examination and is corroborated by sufficient material---Corroboration is necessary only
for the safe dispensation of justice in certain given circumstances, but this principle
cannot be extended to the case of ancillary facts testified by the witness---Intrinsic worth
of the statement of the witness has to be examined and not his relationship---Court in
such like cases is required to look for some circumstances that give sufficient support to
his statement so as to create that degree of probability which can be made the basis of
conviction, and this is what is meant by saying that the statement of an interested witness
ordinarily needs corroboration.
Riaz Hussain v. The State 2001 SCMR 177; Devi Prasad v. State AIR 1967 All. 64; Niaz
v. State PLD 1960 (Pak.) 387; Nazir v. The Sate PLD 1962 SC 269 ref.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of

evidence---Interested witness, credibility of---Friendship or relationship of a witness with
the deceased is not enough to discredit him, particularly when he has no motive to falsely
involve the accused in a heinous offence like murder.
Manawar Ali v. State 2001 SCMR 614; Muhammad Amin v. The State 2000 SCMR
1784; Iqbal alias Bhala v. State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269;
Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734;
Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 ref.
(f) Penal Code (XLV of 1860)--
----Ss. 302(c)---Qatl-e-amd---Appreciation of evidence---Grave and sudden

provocation---Application and scope---Grave and sudden provocation had to be shown
distinctly not only that the act was done under the influence of some feeling which had
taken away from the accused all control over his actions, but that feeling had an adequate
cause.
Muhammad Rafique v. State 1977 SCMR 457 and Riaz Hussain v. The State 2001 SCMR
177 ref.
Page No. 2 of 6
Aftab Ahmad Khan, Advocate Supreme Court for Appellant.
Shahid Mehmood Abbasi, DPG for the State.
Date of hearing: 18th November, 2009.
JUDGMENT
JAVED IQBAL, J.---This appeal with leave of the Court is directed against the judgment
dated 15-10-2008 whereby the appellant has been convicted and sentenced by the learned
Additional Sessions Judge, Bahawalpur by means of judgment dated 5-9-2001 as under:
"(a) for offence under section 449, P.P.C. to undergo R.I. for five years and to pay a fine
of Rs.10,000.
(b) for offence under section 302(b), P.P.C. (for having caused the Qatl-e-Amd of Abdul
Latif) to death plus payment of Rs.50,000 as compensation to the legal heirs of the
deceased, in default whereof to undergo further S.I. for one year;
(c) for offence under section 324/34, P.P.C. (for having attempted to commit Qatl-e-Amd
of Mst. Anwar Mai) to undergo R.I. for five years and to pay a fine of Rs.5,000 in default
whereof to further suffer S.I. for six months;
(d) for offence under section 324/34, P.P.C. (for having attempted to commit Qatl-e-Amd
of Muhammad Shafiq) to undergo R.I for five years and to pay a fine of Rs.5,000 in
default whereof to further suffer S.I. for six months;
(e) for offence under section 324/34, P.P.C. (for having attempted to commit Qatl-e-Amd
of Muhammad Akram) to undergo R.I. for five years and to pay a fine of Rs.5,000 in
default whereof to further suffer S.I. for six months."
2. Being aggrieved an appeal was preferred which has been dismissed vide judgment
impugned. Leave to appeal was granted by this Court vide order dated 18-5-2009 which
is reproduced hereinbelow to appreciate the legal and factual aspects of the case:
Page No. 3 of 6
"In the occurrence that took place on 14-12-1999 at 7-00 p.m. Abdul Latif son of
Muhammad Ali and Muhammad Yaqoob son of Bux Khan lost lives, the complainant
Muhammad Ali lodged F.I.R. No.53 of 1999 with Police Station Cantt. Bahawalpur.
Khadim Hussain petitioner and Muhammad Zafar accused were sent up for trial before
the learned Additional Sessions Judge, Bahawalpur, who were charge-sheeted and both
pleaded not guilty. On conduct and conclusion of trial the learned Trial Court convicted
Khadim Hussain petitioner and sentenced him to death as Tazir, he was ordered to pay
compensation of Rs.50,000 to the legal heirs of the deceased. He was also convicted for
having committed other offences but acquitted Muhammad Zafar vide his judgment dated
5-9-2001. On Criminal Appeal and Murder Reference the learned Division Bench of the
Lahore High Court, Bahawalpur Bench confirmed the death sentence of the petitioner
and dismissed his appeal whereas appeal against acquittal of Muhammad Zafar was also
dismissed vide order dated 13-11-2008. This is Jail Petition by Khadim Hussain.
2. The learned counsel for the petitioner has endeavourd to point out contradictions in the
evidence produced by the prosecution to contend that the entire evidence needs
reappraisal. After hearing the learned counsel for the petitioner and the learned Deputy
Prosecutor General Punjab, we are inclined to grant leave to appeal to reappraise the
entire evidence to ensure safe dispensation of justice. Order accordingly."
3. Mr. Aftab Ahmad Khan, learned Advocate Supreme Court entered appearance on
behalf of appellant and urged with vehemence that prosecution has failed to establish the
guilt beyond shadow of doubt and no convincing and concrete evidence could be led
justifying the conviction and sentence of the appellant. In order to substantiate his
contention it is submitted that a false and concocted case was got registered against the
appellant and no independent witness could be produced to substantiate the allegation. It
is argued that all the witnesses are related to the deceased and being interested witnesses
their statements should have been discarded which aspect of the matter went unnoticed
by the learned Division Bench bf the learned High Court which resulted in serious
miscarriage of justice. It is submitted that on the basis of' statements of interested
witnesses no conviction and sentences could have been awarded without having strong
corroboration which is lacking in this case. It is contended that Nazim who is brother of
the appellant was abducted by the complainant party who is still in illegal confinement
which indicates the highhandedness of the complainant party. It is argued with
vehemence that no firing whatsoever was made by the appellant and therefore, the
question of commission of qatl-e-amd by him does not arise. The learned Advocate
Supreme Court has also pointed out certain contradictions in the statements of
prosecution witnesses which according to him should have been considered by the
learned trial and appellate Courts but ignored without any rhyme or reason causing
serious prejudice against the appellant.
4. Mr. Shahid Mehmood Abbasi, learned DPG entered appearance on behalf of State who
controverted the view point as canvassed at bar by Mr. Aftab Ahmad Khan, learned
Advocate Supreme Court for the appellant and supported the judgment impugned for the
reasons enumerated therein with the further submission that the statements of eye-
witnesses being natural witnesses and inmates of the house have rightly been taken into
consideration by the learned trial and appellate Courts. It is contended that ocular version
furnished by the eye-witnesses has been supported by the medical evidence and besides
that recovery of .222 bore rifle was also effected at the pointation of appellant which was
used in the commission of alleged offence as affirmed by the positive report of FSL. It is
also submitted that prosecution has proved the motive which can be taken as additional,
supporting and corroboratory factor.
Page No. 4 of 6
5. We have carefully examined the respective contentions as agitated on behalf of
appellant and for the State, scrutinized the entire prosecution evidence by keeping the
defence version in juxtaposition and perused the judgments of learned trial as well as the
appellate Courts carefully. After having gone through the entire evidence we are of the
view that prosecution has established the guilt to the hilt by producing forthright and
convincing evidence. In this regard the statements of Muhammad Ali (P.W.3),
Muhammad Sadiq (P.W.7), Muhammad Shafique (P.W.8) and Mst. Anwar Mai (P.W.11)
can be referred. It is worth mentioning that incident was witnessed by the above named
witnesses by whom specific role of firing has been attributed to Khadim Hussain who
was armed with a rifle and fired at Abdul Latif, (deceased) and Muhammad Shafique and
Mst. Anwar Mai who sustained injuries. In spite of lengthy and exhaustive cross-
examination of the eye-witnesses nothing beneficial could be elicited rendering any help
to the case of appellant. We have not been persuaded to agree with the prime contention
of learned Advocate Supreme Court on behalf of appellant that the ocular version could
not be substantiated by any corroboratory material being devoid of merit for the simple
reasons that ocular version finds full support from the medical evidence as is indicative
from the nature of firearm injuries received by Abdul Latif, deceased. Besides that
Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also
received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq,
P.W.17. It is worth mentioning that two crime empties of .22.2 bore rifle were recovered
from place of occurrence and the rifle used in the commission of alleged offence was got
recovered at the pointation of appellant himself. The report of Firearm Expert (Exh.P.5)
shows that the two crime empties recovered from the place of occurrence have been
found to have been fired from .222 rifle. In view of medical evidence, factum of recovery
and positive FSL report it cannot be said that ocular version has not been corroborated. It
is worth mentioning that no enmity whatsoever was alleged against Muhammad Ali
(P.W.3), Muhammad Sadiq (P.W.7), Muhammad Shafique (P.W.8) and Mst. Anwar Mai
(P.W.11) and their statement being free from any ambiguity, exaggeration and dishonest
omissions have rightly been taken into considering by the learned trial Court
determination whereof has been upheld by the learned Division Bench of the High Court.
6. We heave also adverted to the contention of learned ASC that various contradictions in
the statements of the prosecution witnesses have not been taken into consideration
causing serious prejudice against the appellant. It has been held time and again by this
Court that minor contradictions do creep in with the passage of time and can be ignored
safely.
7. It is an admitted feature of the case that eye-witnesses were related to deceased but on
this score their statements could not have been discarded. It is well-settled by now that
merely on the basis of inter se relationship the statements of prosecution witnesses who
stood firm to the test of cross-examination cannot be discarded especially when sufficient
corroboratory material is available. It is to be noted that only for the safe dispensation of
justice corroboration is necessary in certain given circumstances but the scope of this
principle cannot be extended to the case of ancillary facts testified by the witness. (Riaz
Hussain v. The State 2001 SCMR 177). It is the intrinsic value of the statements of
prosecution witnesses which is to be examined and not the relationship. There is no cavil
to the proposition that "in such like cases the Court is required to look for some
circumstances that give sufficient support to his statement so as to create that degree of
probability which can be made the basis of conviction and this is what is meant by saying
that the statement of an interested witness ordinarily needs corroboration". In this regard
reference can be made to case titled Riaz Hussain v. The State 2001 SCMR 177, Devi
Prasad v. State AIR 1967 All. 64, Niaz v. State PLD 1960 (Pak.) 387, Nazir v. The State
PLD 1962 SC 269. As mentioned hereinabove "friendship or relationship of a witness
with the deceased is not sufficient to discredit him particularly when he has no motive to
falsely involve the accused in a heinous offence like murder." In this regard reference can
be made to cases titled Manawar Ali v. State 2001 SCMR 614, Muhammad Amin v. The
State 2000 SCMR 1784, Iqbal alias Bhala v. State 1994 SCMR 1, Nazir v. The State PLD
Page No. 5 of 6
1962 SC 269, Khalil Ahmad v. The State 1976 SCMR 161, Allah Ditta v. The State 1970
SCMR 734, Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274.
8. We have also examined with care and caution the defence version which is nothing but
denial simpliciter on account of false involvement but no evidence could be led to show
the nature of enmity which was never alleged. The appellant even did not record his
statement on oath under section 340(2). Cr.P.C. Insofar as the plea of grave and sudden
provocation is concerned that appears to be without any substance. It is well-entrenched
legal proposition that before pressing into service the plea of grave and sudden
provocation which is to be shown distinctly not only that the act was done under the
influence of some feeling which had taken away from the accused all control over his
actions but that feeling had an adequate cause which is lacking in this case. In this regard
we are fortified by the dictum laid down in Muhammad Rafique v. State 1977 SCMR
457, Muhammad Ismail v. Khushi Muhammad PLD 1974 SC 37, Riaz Hussain v. State
2001 SCMR 177.
9. In the light of what has been discussed hereinabove we are of the view that prosecution
has substantiated the guilt by producing worthy of credence and confidence inspiring
evidence which has rightly been appreciated by the learned trial, and appellate Courts.
The judgment impugned being free from any illegality or irregularity does not call for
any interference. This appeal being devoid of merit is dismissed.
N.H.Q. /K-7/S Appeal dismissed.
Page No. 6 of 6
2009 SCMR 436
[Supreme Court of Pakistan]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ
MUHAMMAD AFZAL alias ABDULLAH and others----Appellants
Versus
THE STATE and others----Respondents
Criminal Appeals Nos.30 to 33 of 2004, decided on 22nd April, 2008.
(On appeal from the judgment, dated 27-6-2002 of the Lahore High Court,
Lahore passed in Criminal Appeal No.393-J and Murder Reference No.58-T of
2001).
---Ss. 302(b)/324/395/396/412/148/140---Anti Terrorism Act (XXVII of 1997),

S.7---Qanun-e-Shahadat (10 of 1984), Art.22---Reappraisal of evidence---Benefit of
doubt---Mitigating circumstances---Identification parade---Description of
accused, non-mentioning of in F.I.R.---Occurrence took place in dark hours of
night and it had not been disclosed as to how prosecution witnesses were able to
identify accused persons---Presumption at the most could be that accused were
seen in headlights of vehicle but accused could not have been seen by
prosecution witnesses more than once and that too for a while---Though it was
alleged that deceased as well as complainant were fired at by one of the culprits
yet, it had not been pointed out as to who was that accused, nor description of
that accused was given in F.I.R.---Effect---Absence of such details in F.I.R.
militated against bona fides of prosecution and greatly marred evidentiary value
of test identification parade---When description by appearance of accused was
not given in F.I.R. and specific role was not attributed to him, identification of
such accused in court for the first time, in absence of strong corroboratory
evidence was not safe to be relied upon as by passage of time memory would
fade and possibility that accused might not have been mistakenly picked out was
augmented---Occurrence had not taken place in the manner as suggested by
prosecution and prosecution had failed to produce confirmatory evidence in
such regard---Supreme Court found room for benefit of doubt, which must go to
Page No. 1 of 1
accused---Supreme Court set aside the conviction and sentence awarded to
accused persons and acquitted them of the charge---Appeal was allowed.
Ghulam Rasul and others v. The State 1988 SCMR 557; Ghulam Qadir v. The
State 2008 SCMR 1221; State/Government of Sindh v. Sobharo 1993 SCMR 585;
Ismail and another v. The State 1974 SC 175 and Asghar Ali alias Sabah and
others v. The State 1992 SCMR 2088 rel.
(b) Criminal trial---
----Evidence of recovery---Scope---Such evidence is purely corroborative in

nature and standing alone is not capable to bring hone charge against accused in
absence of any direct evidence---Unless direct or substantive evidence is
available, conviction cannot be recorded on the basis of any other type of
evidence, howsoever convincing it may be.
Malik Amjad Parvez, Advocate Supreme Court for Appellant (in Criminal
Appeal No.30 of 2004).
Mian Asif Mumtaz, D.P.-G., Punjab for the State (in Criminal Appeal No.30 of
2004).
Mian Asif Mumtaz, D.P.-G., Punjab for Appellant (in Criminal Appeal No.31 of
2004).
Malik Amjad Pervez, Advocate Supreme Court for Respondent No.1 (in
Criminal Appeal No.31 of 2004).
M. Javed Sindhu, Advocate Supreme Court for Respondents Nos.2 and 3 (in
Criminal Appeal No.31 of 2004).
Nemo for Respondents Nos.4 to 7 (in Criminal Appeal No.31 of 2004).
M. Javed Sindhu, Advocate Supreme Court for Appellants (in Criminal Appeals
Nos.32 and 33 of 2004).
Mian Asif Mumtaz, D.P.-G., Punjab for the State (in Criminal Appeals Nos.32
and 33 of 2004).
Page No. 2 of 1
Date of hearing: 22nd April, 2008.
JUDGMENT
CH. EJAZ YOUSAF, J.---These appeals by way of leave are directed against the
judgment, dated 27-6-2002 passed by a learned Division Bench of the Lahore
High Court, Lahore, whereby Criminal Appeal No.393-J of 2001 filed by the
appellants/accused persons was dismissed and Murder Reference No.58-T of
2001 was answered in the affirmative.
2. Briefly, stated, facts of the case are that on 24-10-2000 complaint Exh.P.B. was
lodged by one Javed Ahmed with Zulfiqar Ali; A.S.-I. of Police Station
Nishatabad, District Faisalabad, wherein it was alleged that in the night between
23 and 24-10-2000, electricity supply line developed some fault whereupon the
complainant along with Sagheer Ahmed, Driver and Muhammad Khalid,
proceeded to Hajiabad Sub-Division in vehicle No.FDW-6471, to bring WAPDA
employees. On their way back, at about 2-00 a.m., near Dhanola, they were
intercepted by seven unknown dacoits who were equipped with fire-arms,
hatchets and Sotas. As the driver stopped the vehicle and tried to turn the same
back, one of the culprits fired from driver's side hitting Sagheer Ahmed in his
head. ,The bullet after injuring said Sagheer Ahmed also landed on the neck of
the complainant, who at the relevant time was sitting by the side of the driver.
Resultantly, the vehicle went out of control and moved into the fields. All the
accused persons then reached there and on gun point snatched away an amount
of Rs.300 from the complainant and cash as well as documents from Irshad
Hussain, Muhammad Shafique, Abdul Ghaffar and Mushtaq Ali and fled away.
Sagheer Ahmed was immediately taken to Allied Hospital, Faisalabad, where he
succumbed to the injuries. On the stated allegations formal F.I.R. bearing No.659
was registered under sections 302/396/324/249/148/149 and 412, P.P.C. at
Police Station Nishatabad, Faisalabad and. investigation was carried out in
pursuance thereof. On the completion of the investigation accused persons were
challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not
guilty and claimed trial. At the trial, the prosecution, in order to prove the charge
and substantiate the allegations levelled against the accused persons produced 12
witnesses in all, whereafter statements of the accused persons were recorded
under section 342, Cr.P.C. They, however, failed to lead any evidence in their
defence or to appear themselves as their own witnesses in terms of section 340(2),
Cr.P.C. On conclusion of the trial the learned trial Court convicted the accused
persons and sentenced them to the punishments as under:--
Muhammad Afzal alias Abdullah alias Acchu son of Muhammad Sharif

Under section 148, P.P.C.
3 years' R.I.
Page No. 3 of 1
Death and to pay fine of Rs.1,00,000 or in default to undergo R.I. for 10 years.

Life imprisonment
Under sections 324/149, P.P.C.

10 years' R.I. and to pay fine of Rs.50,000 or in default to further undergo R.I. for
2-1/2 years

7 years' R.I. and to pay fine of Rs.20,000 or in default to further undergo R.I. for
1-3/4 years.
Under section 7, A.T.A., 1997

Death and to pay fine of Rs.1,00,000 or in default to undergo R.I. for 10 years.
Muhammad Afzal son of Muhammad Aslam, Suhail Abbas, Muhammad

Nadeem, Muhammad Maajid, Muhammad Fayyaz, Muhammad Abrar
3 years' R.I. each.
Under sections 302(b)/149, P.P.C.

L.I. each and to pay compensation of Rs.50,000 to the legal heirs of the deceased
each.

L.I. each and to pay fine of Rs.50,000 or in default to further undergo R.I. for 7
years each.

Life Imprisonment each.
Under sections 324/149, P.P.C.

10 years' R.I. each and to pay fine of Rs.50,000 or in default to further undergo
R.I. for 2-1/2 years, each.

7 years' R.I. each (except Muhammad Nadeem) and to pay fine of Rs.20,000 or in
default to further undergo R.I. for 1-3/4 years, each (except Muhammad
Nadeem)
Under section 7, A.T.A., 1997

L.I. each and to pay fine of Rs.50,000 or in default to further undergo R.I. for 7
years, each.
Page No. 4 of 1
4. All the accused persons challenged their convictions and sentences by way of
Criminal Appeal No.393/J of 2001 which was accepted to the extent of accused
persons, namely, Muhammad Nadeem, Muhammad Maajid, Muhammad
Fayyaz and Muhammad Ibrar, and they were acquitted of the charges.
Convictions and sentences recorded against the appellants under section 7 of the
Anti-Terrorism Act, 1997, and under sections 302/149, 395, P.P.C., were also set
aside. Convictions recorded against Muhammad Afzal alias Abdullah son of
Muhammad Sharif, Muhammad Afzal son of Muhammad Aslam and Sohail
Abbas son of Shafaat Ali, under sections 396/324/148/149 and 412, P.P.C. were
maintained, however, the sentences of life imprisonment inflicted on
Muhammad Afzal son of Muhammad Aslam and Sohail Abbas son of Shafaat
Ali, under section 396, P.P.C. were reduced to ten years' R.I. with fine of
Rs.50,000 or in default to further undergo R.I. for 2 years. Convictions and
sentences inflicted on all the three above named accused persons under section
412, P.P.C. were reduced from 7 years' R.I. each to that of 3 years' R.I. each along
with a fine of Rs.20,000 each or in default thereof to further undergo R.I. for one
year each. Convictions and sentences recorded against all the afore named three
accused persons under sections 324/149, P.P.C. were also maintained however,
in case of default, in payment of fine, period of imprisonment was reduced from
2-1/2 years to that of 2 years. Sentence of death inflicted on Muhammad Afzal
alias Abdullah son of Muhammad Sharif under section 396, P.P.C. was also
maintained.
5. It has been contended by the learned counsel for the appellants/accused that
since the occurrence took place at night and neither description by appearance of
any of the accused persons was given in the F.I.R. nor specific roles were
attributed to each of them, therefore, identification of the appellants, at the test
was of no help to the prosecution; that as per evidence on record accused persons
prior to the identification parade were shown to the P. Ws. therefore, their
identification subsequently, at the test was of no legal significance; that
occurrence took place at night whereas the identification test was conducted in
day time; that since P.W.7 Mr. Muhammad Kazim Awan, Magistrate, who had
supervised the identification test, himself, at the trial, had admitted that the
accused persons, prior to identification test had complained to him that they as
well as their photographs were shown to the identifying witnesses, therefore,
identification of the appellants at the test was of no value; that the very fact that
the accused persons were initially produced before the Magistrate on 3-11-2000
but the identification test was postponed to 6-11-2000, militates against bona
fides of the prosecution; that the evidence of recoveries in the absence of any
direct evidence was of no use for the prosecution. The learned counsel
maintained that in the circumstances of the case, since identification of any of the
culprits was not possible, therefore, the appellants were wrongly convicted for
the offence.
6. Mian Asif Mumtaz, learned Deputy Prosecutor-General, Punjab, while

controverting the contentions raised by the learned counsel for the appellants has
submitted that since charge against the appellants was fully brought home
through independent and reliable evidence and ocular evidence was
corroborated by the evidence of identification, recoveries and the medical
evidence, therefore, the appellants were rightly convicted for the offence.
Page No. 5 of 1
7. We have given our anxious consideration to the respective contentions of the
learned counsel for the parties and have also gone through the record of the case,
minutely with their assistance.
8. In the instant case the prosecution evidence comprises of the ocular evidence
account whereof, at the trial, was furnished by P.W.2 Javed Ahmed, P.W.4 Irshad
Hussain and P.W.5 Syed Muhammad Shafique, the evidence of recoveries i.e. .
222 bore gun from the possession of appellant Muhammad Afzal son of
Muhammad Sharif, along with other articles, i.e. wrist watch P.4, driving license
P.5, and a .12 bore gun from the possession of Muhammad Afzal son of
Muhammad Aslam, the medical evidence, Chemical Examiner's Report, the
Report of Serologist and the Forensic Science Laboratory Report.
9. Admittedly, the occurrence took place in the dark hours of the night. It has not
been disclosed as to how the witnesses were able to identify the culprits. It can,
at the most, be presumed that they were seen in the headlights of the vehicle,
however, in that case the culprits could not have been seen by the P.Ws. more
than once and that too, for a while. Though it is alleged that the deceased as well
as the complainant were fired at by one of the culprits yet, it has not been
pointed out as to who was he? Nor his description by appearance was given in
the F.I.R. Absence of such details in the report/F.I.R. militates against bona fides
of the prosecution and greatly mars evidentiary value of the test identification
parade. It is well-settled that when description by appearance of the accused is
not given in the report/F.I.R. and specific role is not attributed to him, his
identification in Court for the first time, in the absence of strong corroboratory
evidence, is not safe to be relied upon because by the passage of time memory
fades and possibility that an accused might not have been mistakenly picked out
is augmented.
In the case of Ghulam Rasul and others v. The State 1988 SCMR 557, role of
accused at the time of commission of the offence was not described by the
witnesses, it has held that evidence of witnesses identifying accused in such
identification parade had lost its efficacy and therefore could not have been
relied upon. In a number of cases it has been laid down by this Court that
identification test in the absence of description of the accused in the F.I.R. is of no
value. Reference in this regard may usefully be made to the cases report as (i)
Ghulam Qadir v. The State 2008 SCMR 1221, (ii) State/Government of Sindh v.
Sobharo 1993 SCMR 585 and (iii) Ismail and another v. The State 1974 SCMR 175.
In the case of Asghar Ali alias Sabah and others v. The State and others 1992
SCMR 2088, it was held that identification of a person in Court produced as an
accused months after the occurrence cannot satisfy the requirements of law for
proving the identity of the culprit.
It is also explicit on record that prior to holding of the identification test accused
persons had complained to P.W.7, the Magistrate, who had supervised the
identification test that they were shown to the identifying witnesses and the
Magistrate in the course of his statement, at the trial, has in unequivocal terms
admitted that he had received such complaint. Another fact which impairs
evidentiary value to the identification test is that accused persons were produced
Page No. 6 of 1
before P.W.7 initially on 3-11-2000 but the test was put off and was conducted on
7-11-2000 as a result of freshly made application dated 6-11-2000 and no reason
whatsoever for the delay was shown. In the circumstances the possibility that the
test was delayed purposely in order to show the accused persons to the
identifying witnesses, could not have been ruled out. The evidence of
identification, in the circumstances, was of no help to the prosecution.
11. Another fact which cannot be lost sight of is that though it is claimed by all
the P.Ws. that a single shot fired by one of the culprits killed the deceased
besides injuring the complainant yet, the medical evidence belies the prosecution
version. Dr. Muhammad Ishaque, who had conducted post-mortem examination
on the dead body of deceased Saghir Ahmad, while appearing as P.W.8 and
opinion that cause of death in the instant case was injuries Nos.1 and 3
individually as well as collectively has categorically pointed out that the dead
body had the following "three entrance" wounds:---
(1) A lacerated fire-arm entry wound measuring 2.5 c.m. x 1 c.m. on the right side
of face at the outer angle of right eye with a fire-arm exit 0.25 c.m. x 0.25 c.m.
roughly circular in shape in the left temporal region. It was about 2.5 c.m. in front
of left ear.
(2) A fire-arm lacerated entry wound 1-00 c.m. on the right ear lobule with exit
on the inner aspect of the lobule with a fire-arm re-entry 0.25 c.m. x 0.25 c.m., just
at the angle of the mandible, on the right with no exit.
(3) A lacerated fire-arm entry wound 4.00 x 3.00 c.m. on the right side of head
with brain matter visible through the wound with no exit. The entry wound was
situated 3.00 c.m. below and behind the middle third of pinna of right ear.
Thus, the medical evidence being in direct conflict with the ocular evidence, in
our. view it was also not safe to rely on the statements of the eye-witnesses, in
the circumstances of the instant case.
12. After taking out from consideration the ocular evidence, the evidence of
identification and the medical evidence, we are left with the evidence of
recoveries only, which being purely corroboratory in nature, in our view, alone is
not capable to bring home charge against the appellant in the absence of any
direct evidence because it is well-settled that unless direct or substantive
evidence is available conviction cannot be recorded on the basis of any other type
of evidence howsoever, convincing it may be.
13. For the facts and reasons mentioned above, we are satisfied that the
occurrence in the' instant case has not taken place in the manner as suggested by
the prosecution. Prosecution has miserably failed to produce confirmatory
evidence in this regard. In this case there is a room for doubt, benefit whereof
must go to the appellants. Resultantly, Criminal Appeals Nos.30, 32 and 33 of
Page No. 7 of 1
2004 are allowed. The conviction and sentences of appellants namely,
Muhammad Afzal alias Abdullah alias Acchu son of Muhammad Sharif,
Muhammad Afzal son of Muhammad Aslam and Sohail Abbass son of Shafaat
Ali are set aside. They shall be released forthwith, if not required in any other
case. Consequently, Criminal Appeal No.31 of 2004 is dismissed.
These are the reasons for our short order of even date announced in open Court.
M.H./M-2/SC Appeals allowed.
Page No. 8 of 1
2009 SCMR 230
Present: Syed Jamshed Ali and Muhammad Farrukh Mahmud, JJ
MUHAMMAD AKRAM----Petitioner
Versus
THE STATE----Respondent
Criminal Petitions Nos.169-L and J.P. No.125 of 2006, decided on 24th September, 2008.
(Against the order dated 1-3-2006 passed by Lahore High Court in Criminal Appeal
No.1516 of 2004 and Murder Reference No.13-T of 2004).
----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan

(1973), Art.185(3)---Reappraisal of evidence---Benefit of doubt---Conduct of the father
of the abductee, who knew the accused, in lodging the F.I.R. after an inordinate delay of
six months of the abduction and recovery of his son, had cast heavy doubt on the veracity
of the F.I.R.---Not a single independent witness from the locality was produced to support
the story of abduction---Prosecution witnesses had made divergent statements at the trial
about delivery of ransom amount exonerating one accused---If the prosecution witnesses
could involve one accused in a false case, then their statements qua the other accused
could not be relied upon in the absence of very strong, independent and corroboratory
evidence against them---F.I.R. and prosecution evidence revealed that the ransom amount
was given to the accused who was later on exonerated by all the prosecution witnesses---
Passing of ransom amount to accused, thus, was not established--Recoveries of ransom
amount from the accused were in violation of the provisions of S.103, Cr.P.C., which
were not supported by the evidence of any respectable inhabitant of the locality---
Recovered amount was not proved to be the same, which was delivered at the time of
release of the abductee---Recovery of weapons was also of no consequence as the same
were never sent to any Expert to determine whether they were in working order or not---
Witnesses in whose presence the alleged recovery was effected were not produced during
trial---Prosecution evidence was not free from doubt, benefit of which must be given to
the accused as a matter of right and not of grace---Petitions for leave to appeal were
converted into appeals which were allowed and the accused were acquitted accordingly.
Page No. 1 of 1
Tariq Pervez v. The State 1995 SCMR 1345 ref.
(b) Criminal trial---
---Benefit of doubt---Principle---In case of doubt, the benefit thereof must be given to

accused as a matter of right and not as a matter of grace.
(c) Criminal trial---
---Benefit of doubt---Principles---For giving the benefit of doubt it is not necessary that

there should be many circumstances creating doubts---Single circumstance creating
reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its
benefit, not as a matter of grace and concession, but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345 ref.
S.M. Nazim, Advocate Supreme Court for Petitioner (in Criminal Petition No.169-L of
2006).
Ch. Muhammad Anwar Khan, Advocate Supreme Court for Petitioners (in J.P. No.125 of
2006).
Irshad Hussain Bhatti, D.P.-G. for the State (in both petitions).
Date of hearing: 24th September, 2008.
JUDGMENT
MUHAMMAD FARRUKH MAHMUD, J.--- Criminal Petition No. 169-L of 2006 filed
by Muhammad Akram petitioner and Jail Petition No. 126 of 2006 filed by Zafar Iqbal
alias Zafri and Muhammad Ayub alias Sahboo are directed against judgment dated 1-3-
2006 handed down by the learned Division Bench of Lahore High Court Lahore in case
F.I.R. No. 309, registered at Police Station Langrana, District Jhang on 6-1-2002 for
offence under section 365-A, P.P.C. whereby the convictions of the petitioners for
offences under section 365-A, P.P.C. and section 7, Anti-Terrorist Act, 1997 were
maintained. However, the sentence of death was reduced to imprisonment for life. The
sentences of fine and forfeiture of movable and immovable property were maintained.
Page No. 2 of 1
2. According to the prosecution case, on 8-5-2002, Burkhurdar complainant P.W.2 was
sitting in his house along with his brother Ahmad Yar, Muhammad Rafique son of Ahmad
Bakhsh and his son Asghar Ali aged 14 years. At about 5 p.m. two motorcycles stopped
in front of the main gate of the house and there was a knock on the door. Asghar Ali
opened the door, he was followed by the P.Ws. who saw that Zafar Iqbal armed with
Kalashnikov and Ayub armed with Kalashnikov and pistol were present outside the house
on a motorcycle while Muhammad Akram who was armed with pistol was present on the
other motorcycle. The accused who were involved in many criminal cases and were
known to the P.Ws., on the strength of their weapons forced Asghar Ali to sit on the
motorcycle occupied by Zafar Iqbal and Ayub. Thereafter the accused left the scene of
occurrence. After 2/3 days, Zafar Iqbal rang up Ahmad Yar brother of the complainant
and demanded Rs.4,00,000 as ransom from the complainant for release of Asghar Ali.
The complainant was to contact the accused through Cell No. 0320-5451841. The
complainant also contracted Zafar Iqbal on the phone who reiterated his demand for
Rs.4,00,000 and threatened that if the money was not paid to him, Asghar Ali would be
murdered. On 17-5-2002 at 7 p.m. complainant along with his brothers Ahmad Yar and
Muhammad Yar as per instructions reached Pul Saim in Chak No.153/G.B. at 7 p.m. and
handed over the ransom amount to Muhammad Akram Jhappa. At that time, Zafar Iqbal
and Ayub along with Asghar Ali were present nearby. After delivery of ransom amount,
Asghar Ali was released. However, a threat was issued to the P.Ws. that in case the matter
was reported to the police, they would be murdered. The rest of the story of F.I.R. is
based' on the narration of Asghar Ali after his release and deals with the seven accused
who were acquitted by the learned trial Court.
3. During trial, in support of its case, prosecution produced nine witnesses. Burkhurdar
complainant P. W.2. Asghar Ali P.W.3 and Ahmad Yar P.W.4 stated about the abduction of
Asghar Ali and his release after payment of ransom amount. Ghulam Akbar Head
Constable P.W. stated about the registration of the case on the basis of complaint Exh.P.A.
Khadim Hussain Constable and Abdul Majeed S.-I. P.W.5 and P.W.6 stated about the
recovery of ransom amount from the petitioners Zafar Iqbal and Ayub on 19-1-2003 and
from Muhammad Akram on 23-1-2003. In addition to that, Abdul Majeed S.-I. stated
about the receipt of application Exh.P.A. from the complainant and recording of
statements of P.Ws. under section 161, Cr.P.C. and the arrest of the accused. Muhammad
Younis A.S.-I. P.W.8 stated about the recovery of weapons from the petitioners on 9-1-
2003. He also stated about the registration of the cases under Arms Ordinance against the
petitioners. The statement of P.W.9 Babar Nawaz is according to the statement of P.W.8.
4. In their statements recorded under section 342, Cr.P.C., the petitioners pleaded to be
innocent and stated that they were falsely implicated in this case. However, neither they
appeared in their defence under section 340(2), Cr.P.C. nor they produced any defence
evidence.
5. The learned counsel for the petitioner Muhammad Akram has submitted that all the
P.Ws. exonerated him and, therefore, his conviction was unwarranted.
6. The learned counsel for the rest of the. petitioners has argued that there was inordinate
delay in lodging of F.I.R.; that no independent witness was produced in this case; that the
witnesses had made dishonest improvements during trial and that the witnesses had
contradicted one another on material points, therefore, their statements were not worthy
of any credence. The learned counsel has further argued that the evidence qua the demand
of ransom amount and other recoveries was replete with doubts.
Page No. 3 of 1
7. The learned Deputy Prosecutor-General Punjab while conceding that the evidence
against Muhammad Akram was lacking, has argued that the case against Zafar Iqbal and
Ayub petitioners was proved to the hilt and was supported by the direct evidence of
P.W.2, P.W.3 and P.W.4 who had no previous enmity to falsely implicate the two
petitioners and that eye-witnesses account was fully supported by the confirmatory
evidence in the shape of recoveries of ransom amount and. weapons "qua the two accused
and that concession given to Muhammad Akram petitioner would be of no benefit to the
rest of the petitioners and that the delay in lodging of F.I.R. was duly explained in the
F.I.R. as well as in the statements of P.W.2 before the learned trial Court. He has referred
to the portion of statement of P.W.2 available at page 52 of the paper book wherein it was
stated "after six months I made up my mind and got the inner support for the registration
of case as I had remained receiving threats during this period."
8. We have heard the learned counsel for the parties at length and have also scanned the
record of the case. The prosecution case revolves round the statement of Asghar Ali
P.W.3/alleged abductee, his father Burkhurdar P.W.2 complainant of the case and his
uncle Ahmad Yar P.W.4. Asghar Ali was allegedly abducted on 8-5-2002 at 5 p.m. and
was released by the accused on 17-5-2002 at 7 p.m. after payment of ransom money.
Thereafter the matter was reported to the police on 6-11-2002 after about six months of
the abduction and recovery of Asghar Ali. The only explanation for the delay available on
the record is that the P.Ws. were under threat and were afraid of reporting the matter to
the police. However, there is no explanation on the record as to what led the complainant
and the P.Ws. to come out of the perpetual fear and report the matter to the. police after
such a long delay especially when Asghar Ali had been recovered from the custody of the
accused. According to the F.I.R., Asghar Ali was abducted in the presence of P.Ws. who
knew the accused. At the tine of abduction, the accused did not demand any ransom
money nor they issued any threat to the P.Ws. and as per F.I.R. it was after 2/3 days of
abduction that Zafar Iqbal demanded ransom for release of Asghar Ali. In that case, the
complainant and the P.Ws. should have immediately rushed to the police station and
should have sought the help of police for recovery of Asghar Ali. Normally, a father in
the above noted circumstances, would immediately rush to the police station and report
the matter especially when the accused were known to him and the motive behind the
abduction had not surfaced. Not a single independent witness from the locality was
produced in support of the story of initial abduction. The inordinate delay in lodging the
F.I.R. and the conduct of the complainant after the abduction, as noted above, cast heavy
doubt on the veracity of the F.I.R.
9. In the F.I.R. Muhammad Akram petitioner was specially named as one of the accused.
His parentage, caste and residence were also given. However, during trial in his
examination-in-chief P.W.2 did not mention the name of Muhammad Akram and instead
stated that Zafar and Ayub were present on one motorcycle while one person was present
on another motorcycle outside his house at the time of abduction. He also omitted the
name of Muhammad Akram at the time of payment of ransom amount. During cross-
examination after conceding that the person on the second motorcycle was named in the
F.I.R., he stated that Muhammad Akram was not present in Court and had the cheek to
say that it was incorrect that Muhammad Akram son of Muhammad Anwar, cast Jappa,
resident of Adlana (address given in F.I.R.) present in Court, was not the person who was
on the second motorcycle. He further stated that Muhammad Akram who was named in
F.I.R. was not known to him and the accused who was facing the trial was not that
Muhammad Akram. Asghar Ali P.W.3 also omitted the name of Muhammad Akram in his
examination-in-chief. During cross-examination, he denied that he had named
Muhammad Akram in his statement recorded under section 161, Cr.P.C. Exh.D.A.. He
further stated that the amount of ransom was in a polythene bag and was delivered to 3rd
unknown person. Later on, he clarified that Muhammad Akram accused present in Court
was not the person who accompanied the accused person or received the ransom amount.
Similarly, P.W.4 also omitted the name of Muhammad Akram in his examination-in-
chief.. During cross-examination, he was confronted with statement recorded under
section 161, Cr.P.C. Exh.D.B., wherein he had named all the accused. In the later part of
the cross-examination, he stated that the payment was made to Akram and it was Akram
Page No. 4 of 1
who delivered the amount to Zafar and Sahboo. He took another somersault when he was
cross-examined by learned counsel for Muhammad Akram accused by stating that Akram
present in Court was not the person who participated in the occurrence.
10. The above noted facts make it clear that the P.Ws. had been making divergent
statements before the learned trial Court about Akram and about delivery of the ransom
amount. If the P.Ws. could involve Muhammad Akram in a false case, then their
statements qua the other accused could not be relied upon in the absence of very strong
independent and corroboratory evidence against them. There is no documentary or oral
evidence on record as to how the complainant managed the ransom amount. It is also
pertinent to note that according to P.W.4 and according to F.I.R., the ransom amount was
given to Muhammad Akram who was later on exonerated by all the P.Ws. If Muhammad
Akram was not present at the time of delivery of amount, then passing of the ransom
amount by Muhammad Akram to other accused is not established.
11. Now coming to the evidence of recovery qua the ransom amount at the instance of the
petitioners-convicts. According to Exh.P.B., Zafar Iqbal on 19-1-2003 led to the recovery
of Rs.80,000 from his house. On the same date, Muhammad Ayub led to the recovery of
Rs.35,000 from his house. On 23-1-2003, Muhammad Akram led to the recovery of
Rs.20,000 from his residential room. The recoveries are not supported by the evidence of
any respectable inhabitant of the locality. The provisions of section 103, Cr.P.C. have
been violated with impunity. Khadim Hussain Constable and Abdul Majeed S.-I. P.W.5
and P.W.6 were produced in support of recoveries. According to P.W.5 at the time of
recovery, the cash was put into the pocket of Abdul Majeed S.-I. who had himself
counted the currency notes. The statement by itself is sufficient to disbelieve the evidence
of recovery. In addition to that, the recovered notes were not marked and the serial
number of the notes paid as ransom were not recorded. So it could not be said with
certainty that the recovered amount was the same which was delivered at the time of
release of Asghar Ali. At the cost of repetition, we may mention here that according to
P.Ws. Muhammad Akram was not one of the accused. The evidence of recovery of
weapons is also of no consequence and cannot be used against the petitioners for the
reason that the weapons were never sent to any Expert to determine whether they were in
working order or not and that the provisions of section 103, Cr.P.C. were violated and that
during cross-examination. P.W.8 admitted it to be correct that recovery memo. Exh.P.K.
relating to recovery from Akram was neither signed by him nor by Babar Nawaz P.W.9.
He also admitted it to be correct that Exhs.P.J. and P.L. recovery memos. relating to Ayub
and Zafar were neither signed by 'him nor by P.W.9. In other words, the witnesses, in
whose presence, the alleged recovery was effected were not produced during trial. So the
evidence of P.W.8 and P.W.9 was of no consequence.
12. It was mentioned in the F.I.R. that the accused could be contacted on the given mobile
telephone number. However, .no evidence was collected to connect the accused with the
given phone number.
13. The nutshell of the whole discussion is that the prosecution case is not free from
doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must
accrue in favour of the accused as matter of right and not of grace. It was observed by
this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the
benefit of doubt, it was not necessary that there should be many circumstances creating
doubts. If there is circumstance which created reasonable doubt in a prudent mind about
the guilt of the accused, then the accused would be entitled to the benefit of doubt not as
a matter of grace and concession but as a matter of right.
Page No. 5 of 1
14. In the above noted circumstances, we convert these petitions to appeals which are
allowed. The judgments passed by the learned Courts below are set aside. The appellants
are acquitted of all the charges and would be released forthwith if not required in any
other criminal case.
N.H.Q./M-75/SC Appeals allowed.
Page No. 6 of 1
2009 S C M R 166
Present: Abdul Hameed Dogar, C.J. and Ch. Ejaz Yousaf, J
TAHIR JAVED----Appellant
Versus
Criminal Appeals Nos.770 and 771 of 2006, decided on 5th September, 2008.
(On appeal from the judgment, dated 3-5-2005 in Criminal Appeal No.339-J of 2002
passed by the Lahore High Court, Lahore).
----S. 302(b)/34---Appraisal of evidence---Benefit of doubt---Occurrence was unseen and

the prosecution case had rested only on circumstantial evidence---Extra-judicial
confession coming from unimpeachable source and corroborated by trustworthy evidence
could only be used against the accused---In the present case extra-judicial confession
having been made by accused in the presence of a number of other persons appeared to
be quite improbable, because confession of such a heinous offence like murder was not
normally made in the public---Extra-judicial confession was not corroborated from any
independent source, inasmuch as in pursuance of the confession even the place of
occurrence where the deceased was allegedly murdered, was not pointed out by any of
the accused persons---Trial Court, in the absence of any corroboratory evidence, could
not safely rely on the evidence of extra-judicial confession---No explanation had been
offered at the trial as to why the dagger recovered at the instance of accused had reached
the Laboratory after a delay of one month and four days after its dispatch by the police---
Evidentiary value of the Chemical Examiner's report was therefore, greatly, marred---
Report of Serologist having not been tendered in evidence, the dagger could not be said
to be stained with human blood---Evidence of recovery of dagger, therefore, was of no
use to prosecution---Despite the complainant having gained knowledge about the
deceased being seen in the company of accused much earlier, he did not inform the police
in time regarding involvement of the accused in the case and this omission was fatal to
prosecution case---Occurrence, thus, had not taken place in the manner as asserted by the
prosecution---Benefit of doubt was extended to accused in circumstances and they were
acquitted accordingly.
Page No. 1 of 1
Ahmed v. The Crown PLD 1951 PC 107; Sajid Mumtaz and others v. Basharat and others
2006 SCMR 231; Ziaul Rehman v. The State 2001 SCMR 1405; Tayyab Hussain Shah v.
The State 2000 SCMR 683 and Sarfraz Khan v. The State and others 1996 SCMR 188
ref.
----S. 302(b)/34---Circumstantial evidence---Extra-judicial confession---Extent and

scope---Extra-judicial confession can be used against the accused only when it comes
from an unimpeachable source and trustworthy evidence is available to corroborate the
same.
Ahmed v. The Crown PLD 1951 PC 107; Sajid Mumtaz and others v. Basharat and others
2006 SCMR 231; Ziaul Rehman v. The State 2001 SCMR 1405; Tayyab Hussain Shah v.
The State 2000 SCMR 683 and Sarfraz Khan v. The State and others 1996 SCMR 188
ref.
S.M. Nazim, Advocate Supreme Court for Appellant (in Criminal Appeal No.770 of
2006).
Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant (in Criminal Appeal
No.771 of 2006).
Mian Asif Mumtaz, D.P.-G. Punjab for the State.
JUDGMENT
CH. EJAZ YOUSAF, J.---These appeals by way of leave are directed against the
judgment dated 3-5-2005 passed by a learned Single Bench of the Lahore High Court,
Lahore, whereby appeal filed by the convicts/accused persons against their convictions
and sentences recorded by the Additional Sessions Judge, Gujranwala, was dismissed.
2. Facts of the case, in brief, are that on 13-9-2001 at 10-00 a.m. written report Ex-PA
was lodged by one Rana Muhammad Sarwar with Police Station Gakhar Mandi, District
Gujranwala, wherein it was alleged that on 12-9-2001 at about 3-00 p.m. the complainant
was present at his Dera, when Rana Farooq Ahmad along with appellant Tahir Javed
came there on a bicycle and took his son, namely, Rafaqat Ali with them towards Ojla
Pul. Since his son did not come back at night, therefore, in the morning on the next day
Page No. 2 of 1
he enquired from Rana Farooq Ahmad about the whereabouts of his son but he showed
ignorance. On the same day Muhammad Mushtaq disclosed to him that he, i.e. said
Muhammad Mushtaq had seen Rana Farooq, Rafaqat Ali (deceased) and Muhammad
Tahir, appellant, on a bicycle going towards Ojla Pul. It was further stated in the
complaint that on the same day at about 10-00 a.m. dead body of his son was recovered
from the bank of canal in the condition that he was slaughtered and had also a deep inside
wound in the abdomen. It was mentioned in the complaint that his son was murdered by
unknown persons. On the stated allegations formal F.I.R. bearing No.295 was registered,
at the said Police Station, under section 302/34 PPC and investigation was carried out in
pursuance thereof. On the completion of investigation, accused persons, four in number,
were challaned to the Court for trial. The accused persons denied the charge and pleaded
innocence. At the trial; the prosecution in order to prove the charge and substantiate the
allegation levelled against the accused persons produced 15 witnesses in all, whereafter
the accused persons were examined under section 342, Cr.P.C. In their above statements
all the accused persons except Muhammad Arif pleaded that they were falsely implicated
in the case. Muhammad Arif in his statement, however, in reply to question No.14 stated
that in fact Ghulam Yaseen and Farooq, had committed murder of the deceased and he,
i.e. Muhammad Arif was left behind as he had stayed back in order to answer the call of
nature. He pleaded that he had not snatched anything from the deceased. The accused
persons however, failed to lead any evidence in their defence or to appear themselves as
their own witnesses in terms of section 340(2) Cr.P.C. After hearing arguments of the
learned counsel for the parties the learned trial Court convicted all the four accused
persons including the appellants under section 302(b)/34 PPC and sentenced them to life
imprisonment each with the direction to pay a sum of Rs. One lac, each to the legal heirs
of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B
Cr.P.C. was, however, not extended to the convicts/accused persons. Judgment of the trial
Court was assailed before the High Court by way of Criminal Appeal No.339/J of 2002,
which was dismissed vide the impugned judgment, hence these appeals.
3. It would be pertinent to mention here that convict Muhammad Arif, during pendency
of the appeal was acquitted of the charge as a result of compromise between him and the
complainant party, whereas Rana Farooq Ahmed did not opt to appeal.
4. Mr. S.M. Nazim, learned counsel for the appellant Tahir Javed has contended that in
the F.I.R. neither any of the accused persons were nominated nor any suspicion was
shown against them, nor it was alleged that they had had any motive to commit murder of
the deceased. It is further his case that extra-judicial confession was not true. Even
otherwise the confession allegedly made by all the accused persons jointly was not
admissible in evidence; that evidence of recoveries of daggers, especially at the instance
of appellant Tahir Javed, was of no help because it was got effected from the canal bank
which is a public thoroughfare and that evidence of last seen too, was not believable
because if the deceased was seen in the company of the accused persons in the night of
occurrence by the witnesses, then there was no justification for not disclosing it to the
complainant party by the witnesses at the very outset, particularly when as per P. Ws.12
and 13 accused persons were available in the village and had asked for grant of pardon
and he submitted that since important links in the chain of circumstantial evidence were
missing, therefore, the appellants could not have been convicted for the offence.
5. In Cr.A.No.771 of 2006 Mr. Javed Aziz Sindhu, Advocate Supreme Court was
appointed as counsel on State expense but today he is not present, therefore in his place
Hafiz S.A. Rehman, learned Senior Advocate Supreme Court, is appointed as counsel.
He, while adopting the arguments of the learned counsel for the appellant Tahir Javed,
added that since extra-judicial confession was made jointly by all the accused persons,
therefore it was not admissible in evidence; that the evidence of recoveries i.e. wrist
watch and a diary allegedly made at the instance of appellant Ghulam Yaseen, were of no
help to the prosecution as it has not come on record that the recovered articles actually
belonged to the deceased. He pleaded that though it was alleged that appellant Hafiz
Page No. 3 of 1
Ghulam Yaseen had suspicion that the deceased had illicit relations with his wife but the
alleged motive was also not proved. He added that since the evidence furnished by the
prosecution was scanty and shaky and important links in the chain of circumstantial
evidence were missing, therefore, the appellant could not have been convicted for the
offence.
6. Mian Asif Mumtaz, learned Deputy Prosecutor General, Punjab, on the other hand
while controverting the contentions raised by the learned counsel for the appellants
submitted that F.I.R. was lodged promptly and it was correctly mentioned therein that two
of the accused persons, namely, Rana Farooq and Tahir Javed had taken away the
deceased; that the deceased was seen in the company of accused persons at Ojla Pul in
the evening; that the prosecution witnesses were independent and that they had no motive
or enmity to falsely implicate the accused persons in the offence; that extra-judicial
confession, recoveries of daggers as well as the articles belonging to the deceased from
the possession of the accused persons and other circumstantial evidence including the
evidence of last seen was sufficient to bring home charge against the appellants.
7. We have given our anxious consideration to the respective contentions of the learned
counsel for the parties and have also perused the record of the case, with their assistance,
minutely.
8. In the instant case the occurrence is unseen. The prosecution case rests on the evidence
of extra-judicial confession furnished by P.W.12 Muhammad Nazir and P.W.13 Zafar
Iqbal, the last seen evidence furnished by P.W.8 Muhammad Mushtaq, P.W.9 Nasir
Mahmood and P.W.10 Riasat Ali, the evidence of recovery of daggers at the instance of
appellant Tahir Jaded and acquitted accused Muhammad Arif, and the recovery of articles
belonging to the deceased i.e. watch and note book, from the possession of Ghulam
Yaseen and recovery of purse along with a sum of Rs.500 at the instance of Rana Farooq,
and the medical evidence.
9. In order to determine evidentiary value of these pieces of evidence, we would like to

take the same one by one.
10. So far the evidence of extra-judicial confession is concerned, it has been challenged
mainly on the ground that the confession being joint by all the four accused persons was
not admissible in evidence, but we are afraid the contention on its face is devoid of force
because both P.Ws.12 and 13 have stated that though all the accused persons came to the
Wahla Rice Mills near Ojla Pul and asked P.W.12 Muhammad Nazir to get them
pardoned from the complainant yet, both the P.Ws.. are unanimous on the point that it
was only Ghulam Yaseen, who had confessed to commit ,murder of the deceased and rest
of the accused persons uttered not a single word, hence by no stretch of imagination, it
could have been concluded that it was a joint confession by all the accused persons. In
the circumstances the concession made by Ghulam Yaseen, in our view, would not bind
the other accused persons and it would be effective against Ghulam Yasin only. It may be
noted here that since extra-judicial confession is easy to procure as it can be cultivated at
any time therefore, normally it is considered as a weak piece of evidence and Court
would expect sufficient and reliable corroboration for such type of evidence. The extra-
judicial confession therefore must be considered with over all context of the prosecution
case and the evidence on record. Right from the case of Ahmed v. The Crown PLD 1951
FC 107 it has been time and again laid down by this Court that extra-judicial confession
can be used against the accused only when it comes from unimpeachable sources and
trustworthy evidence is available to corroborate it. Reference in. this regard may usefully
be made to the following reported judgments:---
Page No. 4 of 1
(1) Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231, (2) Ziaul Rehman
v. The State 2001 SCMR 1405, (3) Tayyab Hussain Shah v. The State 2000 SCMR 683,
(4) Sarfraz Khan v. The State and others 1996 SCMR 188.
In the instant case, the evidence of extra-judicial confession suffers from patent
infirmities inasmuch as though it has come on record that P.W.12 was a councillor and
was Chairman of Local Zakat and Ushar Committee and could have been termed as a
man of authority yet, according to his statement, extra-judicial confession was made by
the accused persons in presence of a number of other persons including Zafar, Javed and
Ansar which appears to be quite improbable because confession of such a heinous
offence like murder is not normally made in the public. Had Hafiz Ghulam Yaseen or the
other accused persons taken said Muhammad Nazir aside and sought help from him then
it could have been thought that the prosecution version was true but it does not appeal to
reason that in presence of so many persons the accused had confessed their guilt. There is
yet, another improbability in the prosecution version qua the confession. It is stated by
both P. Ws.12 and 13 that accused persons had confessed their guilt before them on 19-9-
2001, but it has come on record that all the accused persons were arrested on 25-9-2001
after six days. Sequence of the events suggests that had the accused persons confessed
their guilt, then both the witnesses would have certainly apprised the complainant party
about the same and in such an eventuality the accused persons would have been certainly
apprehended much earlier than 25-9-2001, particularly when, as per prosecution version,
they were neither at large nor missing and were present in the village. Further the extra-
judicial confession does not find corroboration from any independent source inasmuch as
in pursuance of the confession even the place of occurrence i.e. where the deceased was
allegedly murdered, was not pointed out by any of the accused persons. Hence, in the
absence of any corroboratory evidence, in our view, it was not safe for the trial Court to
rely on the evidence of extra-judicial confession.
11. After taking out from consideration the evidence of extra-judicial confession, we axe
left with the evidence-of recoveries and the last seen. So far as the recovery of daggers is
concerned, admittedly it was effected at the instance of appellant Tahir Javed and
acquitted accused Arif. Since Arif accused was acquitted at the appellate stage as a result
of compromise, therefore dagger recovered on his pointation is of no help to the
prosecution. So far the recovery of dagger froth the appellant is concerned though as per
Investigating Officer i.e. P.W.15, recovery of dagger was effected on 27-9-2001 vide
recovery memo. Exh. P. E. and it was dispatched to the Laboratory on 4-9-2001 yet, it
reached in the Laboratory on 8-10-2001. Report dated 15-10-2001 of the Chemical
Examiner is explicit in this regard. No explanation whatsoever was offered at the trial as
to why, the dagger dispatched on 4th September, 2001 reached in the Laboratory on 8th
October, 2001 after a period of one month and four days, hence evidentiary value of the
Chemical Examiner's report was greatly marred. Further, as per report in question the
blood scrapings taken out from the dagger were sent to the Serologist for determination
of origin of blood but no such report was tendered in evidence, hence it could not have
been concluded that the dagger was stained with human blood. In the circumstances, the
evidence of the recovery of dagger too, was of no use for the prosecution.
12. Taking the next piece of evidence, i.e. the last seen, it may be pointed out here that it
has two parts, firstly, when as per the complainant, the deceased was taken away by Rana
Farooq and Tahir Javed and secondly when the deceased was seen by P.Ws.8, 9 and 10 in
the company of the accused persons at the bank of canal near Ojla Pul in the night on 12-
9-2001. According to P.W.8 all the accused persons were known to him earlier. P.W.8 had,
at the trial, stated that on 12-9-2001 at 3-30 p.m., he was going from Pul Ojla to Roop
Chand and saw Hafiz Ghulam Yaseen and Arif accused sitting near Pul Ojla and when he
reached at Sangowali Bangla he saw Rafaqat deceased, Farooq and Tahir, on a bicycle
Page No. 5 of 1
going towards Pul Ojla. Both P.Ws.9 and 10 have stated that on 12-9-2001 they were
present on bus stop as they were going to Kharian to meet Ibrahim, Head Clerk. Bus of
Kohistan Company came there, out of which Rafaqat Ali, Muhammad Farooq, Tahir
Javed and Qari Ghulam Yaseen, who all were previously known to them, deboarded. On
the inquiry made, Rafaqat deceased told that they were going to village. They went to
Kharian and returned on the next morning. On deboarding at Ojla Pul they saw
crowd/rush of people who were saying that Rafaqat had been murdered. The dead body
of deceased was lying on the bank of canal. Both the afore-named witnesses stated, at the
trial, that on coming to know about death of deceased Rafaqat they rushed to the
complainant's house and told him that they had seen Rafaqat deceased in the company of
the accused persons, in the previous night. They further stated that it was talk of the town
that Rafaqat was murdered by the accused persons. Statements of above witnesses
indicate that by 11 or 12 O'clock on 13-9-2001 the complainant gained knowledge about
the factum of deceased being seen in the company of accused persons at night because as
per P.Ws.9 and 10 they returned to Ojla Pul at 10-00 a.m., and thereafter straightaway
went to the complainant's house. Despite that no attempt was made by the complainant to
inform the police regarding involvement of the appellants in the case. The omission so
made in our view, was fatal towards the prosecution case.
13. Upshot of the above discussion is that the occurrence has not taken place in the
manner as stated by the prosecution. In this case there is room for doubt benefit whereof
must go to the appellants. We, therefore, are inclined to allow these appeals. Order
accordingly.
Consequently, the impugned judgments dated 21-11-2002 passed by learned Additional

Sessions Judge, Gujranwala, as well as of the Lahore High Court, Lahore, dated 3-5-2005
are set aside and the appellants, namely, Tahir Javed son of Muhammad Maalik and Hafiz
Ghulam Yaseen son of Maulvi Shah Muhammad are acquitted of the charges. They shall
be released forthwith if not required in any other case.
These are the reasons of our short order of even date announced in open Court.
N.H.Q./T-11/SC Appeals accepted.
Page No. 6 of 1
2007 SCMR 1402
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD NAZIM and others----Petitioners
Versus
Criminal Petitions Nos.109-L and 110-L of 2005, decided on 5th April, 2006.
(On appeal from the judgment, dated 8-2-2005 of the Lahore High Court, Lahore, passed
in Criminal Appeal No.320 of 2003).
Penal Code (XLV of 1860)---
----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted

on the points; (i) whether evidence which had come on record had been appreciated in its
true perspective in accordance with the settled norms of justice and the well-entrenched
principles enunciated by Supreme Court qua the safe administration of justice; that
whether the capital punishment could have been awarded on the basis of interested and
partisan evidence furnished by the interested witnesses in absence of any corroboration
and in view of admitted background of enmity; that whether the factum of absconsion
could be considered as a corroboratory piece of evidence in case of capital punishment
and that whether the judgment impugned was in consonance with the law as laid down in
case reported as 1995 SCMR 1373 qua factum of absconsion.
Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 ref.
Sayyed Mazhar Ali Akbar Naqvi, Advocate Supreme Court for Petitioner (in Criminal
Petition No.110-L of 2005).
Muhammad Akram Sheikh, Nasiruddin Khan Nayyar and M.A. Zaidi, Senior Advocate-
on-Record for Petitioner, (in Criminal Petition No.109-L of 2005).
Page No. 1 of 1
Zahid Hussain Bukhari, Advocate Supreme Court for the Complainant.
ORDER
JAVED IQBAL, J.--- Heard Sayyed Mazhar Ali Akbar Naqvi, learned Advocate Supreme
Court on behalf of petitioner (in Criminal Petition No. 109-L of 2005) and Mr.
Muhammad Akram Sheikh, learned Senior Advocate Supreme Court with Mr. Nasiruddin
Khan Nayyar, learned Advocate Supreme Court for petitioner (in Criminal Petition
No.110-L of 2005), as well as Mr. Zahid Hussain Bukhari, learned Advocate Supreme
Court for complainant, scanned the entire record with their eminent assistance and
perused the judgment impugned with care and caution. We are inclined to grant leave in
the above captioned petitions, inter alia, on the following points:--
(i) Whether the evidence which had come on record has been appreciated in its true
perspective in accordance, with the settled norms of justice and the well-entrenched
principles enunciated by Supreme Court qua the safe administration of justice?
(ii) Whether the capital punishment could have been awarded on the basis of interested
and partisan evidence furnished by the interested witnesses in absence of any
corroboration and in view of admitted background of enmity?
(iii) Whether the factum of absconsion can be considered as a corroboratory piece of

evidence in case of capital punishment?
(iv) Whether the judgment impugned is in consonance with the law laid down by this
Court in case Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 qua factum of
absconsion.
The appeals may be fixed at some early date.
H.B.T./M-44/SC Leave granted.
Page No. 2 of 1
Present: Nazim Hussain Siddiqui, Javed Iqbal and Falak Sher, JJ
MAWAS KHAN---Petitioner
Versus
THE STATE and another---Respondents
Criminal Petition No. 103-P of 2003, decided on 29th October, 2003.
(On appeal from the judgment dated 14-5-2003 of Peshawar High Court, Peshawar,
passed in Cr. A. No.500 of 2002).
----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Prosecution had substantiated

the accusation against the accused by producing cogent, concrete and forthright
evidence---Ocular account furnished by witness in previous trial had rightly been taken
into consideration being worthy of credence whereby specific role of firing had been
attributed to accused which resulted into death of two persons---Said eye-witness had no
reason whatsoever to substitute the real culprits with the accused--Presence of the said
witness on the scene of occurrence was confirmed by the injuries sustained by him at the
time of incident---Ocular testimony was fully corroborated by medical evidence
---Abscondence of accused had also been rightly considered as corroboratory piece of
evidence---Defence version which was a denial simpliciter could not be considered in
view of the overwhelming incriminating prosecution evidence---Impugned judgment
being well based and unexceptionable did not warrant any interference---Leave to appeal
was refused to accused accordingly.
PLD 1971 Pesh. 32; Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ 217; Manzoor Elahi v.
State PLD 1965 Lah. 656; Permeshwar Din v. E.AIR 1941 Oudh 517; Crown v. Fateh
Muhammad 35 PLR 740; Chandika Prashad v. E 126 IC 684; AIR 1930 Oudh 324; 31
Cr.LJ 1081; Gangaram Hari Parit v. E. 62 IC 545; 22 Cr.LJ 529; Q.E. v. Sami and others
13 Mad. 426; Q.E. v. Gobardhan 9 All. 528; Rakhal Nikari v. Q.E. 2 CWN 81; Mahla
Singh's case v. 130 IC 410; 1931 Lah. 38; 32 Cr.LJ 522; Q v. Sorab Roy 5 WR Cr.28;
Khan v. State AIR 1955 Cal. 146; PLD 1978 SC 103 and Riaz Hussain v. The State 2001
SCMR 177 ref.
Page No. 1 of 1
----S. 302---Appreciation of evidence---Injured witness---Statement of an injured witness
cannot be brushed aside merely on the ground of some minor contradictions which do
creep in with the passage of time.
(c) Penal Code (XLV of 1860)--
----S. 302---Appreciation of evidence ---Abscondence---Corroborative value ---Factum of

abscondence of accused cannot altogether be ignored as its corroborative value carries
substantial weight.
PLD 1971 pesh. 32; Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ.217; Manzoor Elahi v.
State PLD 1965 Lah. 656; Permeshwar Din v. E. AIR 1941 Oudh 517; Crown v. Fateh
13 Mad. 426; Q.E. v. Gobardhan 9 All. 528; Rakhal Nikari v. Q.E. 2 CWN 81; Mahla
Singh's case 130 IC 410; 1931 Lah. 38; 32 Cr.LJ 522; Q v. Sorab Roy 5 WR Cr. 28; Khan
v. State AIR 1955 Cal. 146; PLD 1978 SC 103 and Riaz Hussain v. The State 2001.
SCMR 177 ref.
Barrister Zahoorul Haq, Senior Advocate Supreme Court and Syed Safdar Hussain,
Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 29th October, 2003.
ORDER
JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment
dated 14-5-2003 passed by learned Peshawar High Court, Peshawar, whereby the
criminal appeal preferred on behalf of petitioner has been dismissed and judgment dated
23-12-2002 of the learned trial Court whereby the petitioner was convicted under section
302, P.P.C. (on two counts) and sentenced to death with fine of Rs.1,00,000 each and in
case of default to undergo one year S.I. each has been kept intact.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to
the effect that "while in injured condition, Murtaza Mahmood, reported to the Police
Officer in the Casualty Ward of L.R.H., Peshawar, to the effect that on the eventful day,
he alongwith his father Mahmood Khan and uncle Bakhtiar Ahmad, was working on the
spot when in the meantime Janas Khan, Hashmali Khan and Mawas Khan, duly armed
with kalashnikovs, came there and started firing at them and as a result of their firing, he
sustained injuries on his leg while his father and uncle succumbed to the injuries on the
spot. The motive for the occurrence is stated to be a dispute over landed property. The
Page No. 2 of 1
occurrence is stated to be witnessed by the complainant as well as other co-villagers.
Accordingly, all the three accused charged by the complainant were booked for the
commission of double murder and injuring complainant. P.W.7 Muhammad Gul, A.S.-I.,
after reducing Murasila Exh.PA/1, sent the same to the Police Station for recording
formal F.I.R. which was registered by P.W.8 Muhammad Hakeem A.S.I. of Police Station
Mathra". After completion of investigation the petitioner was sent up for trial and on
conclusion whereof he was convicted and sentenced as per details mentioned
hereinabove. Being aggrieved an appeal was preferred which has been dismissed, hence
this petition.
3. Barrister Zahoorul Haq, learned Senior Advocate Supreme Court appeared on behalf of
petitioner and contended emphatically that factual and legal aspects of the case have not
been appreciated in its true perspective which resulted in serious miscarriage of justice. It
is next contended that prosecution has miserably failed to substantiate the factum of
accusation by producing worthy of credence evidence which aspect of the matter went
unnoticed causing serious prejudice against the petitioner. It is also contended that the
medical evidence was in conflict with ocular version which aspect of the matter has not
been dilated upon properly but on the contrary the medical evidence has been
misconstrued and the oral version has not been examined properly. It is also argued that
there are various glaring contradictions which were not noticed either by the learned trial
Court or Hon'ble High Court which resulted in serious miscarriage of justice. It is pointed
out that the motive as mentioned in the F.I.R. could not be established besides that no
investigation whatsoever was conducted to determine its genuineness.
4. We have carefully examined the contentions as mentioned hereinabove in the light of

record of the ease and scanned the entire evidence with the eminent assistance of learned
counsel. We have also perused the judgment of learned trial Court dated 23-12-200 as
well as judgment impugned. After having gone through the entire record we are of the
view that prosecution has substantiated the accusation by producing cogent, concrete and
forthright evidence. The eye account furnished by Murtaza (P.W.2) in previous trial has
rightly been taken into consideration being worthy of credence by whom specific role of
firing has been attributed to petitioner which resulted into death of Bakhtiar Ahmed and
Mehmood Khan. There appears to be no reasons whatsoever for Murtaza (P.W.2) to
substitute the real culprits with that of petitioner in absence of any serious enmity which
otherwise is a rare phenomena. It is also to be noted that Murtaza (P.W.2) also sustained
injuries which confirms his presence at the spot. Even otherwise the statement of injured
witness cannot be brushed aside merely on the ground of some minor contradictions
which do creep in the passage on time. The learned Senior Advocate Supreme Court
could not furnish any plausible justification that as to why the statement of Murtaza
(P.W.2) should be discarded. Medical evidence furnished by Dr. Yasmin Orakzai (P.W.6)
and Dr. Shaha Taj Khan (P.W.10) lends full corroboration to the eye account furnished by
Murtaza (P.W.2). The learned counsel on behalf of petitioner could not explain
satisfactorily that how the medical evidence was in conflict with oral evidence. It is not
enough to argue that medical evidence is in conflict with oral evidence but it is
mandatory duty of the learned counsel to give solid reasoning and explain that how and
on what ground the medical evidence was in conflict with oral evidence. As mentioned
hereinabove nothing can be pointed out in this regard except that the conflict between the
medical evidence and oral evidence was apparent, which is not sufficient to consider the
said contention until and unless it is explained with reasoning qua the conflict between
medical evidence and oral evidence. Besides that the factum of absconsion has rightly
been considered as corroboratory piece of evidence. There is no cavil with the
proposition that factum of absconsion cannot altogether be ignored and corroborative
value of the abscondence carries substantial weight. In this regard following authorities
can be referred:--
PLD 1971 Pesh. 32; Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ 217; Manzoor Elahi v.
State PLD 1965 Lah. 656; Permeshwar Din v. E.AIR 1941 Oudh 517; Crown v. Fateh
Page No. 3 of 1
13 Mad. 426; Q.E. v: Gobardhan 9 All. 528; Rakhal Nikari v. Q.E. 2 CWN 81; Mahla
Singh's case 130 IC 410; 1931 Lah. 38; 32 Cr.LJ 522; Q. v. Sorab Roy 5 WR Cr.28; Khan
v. State AIR 1955 Cal. 146; PLD 1978 SC 103; Riaz Hussain v. The State 2001 SCMR
177.
5. We are not persuaded to agree with learned Senior Advocate Supreme Court that no
authentic judgment is available to the effect that factum of absconsion can be considered
as corroboratory piece of evidence. In view of the precedent law incorporated in the
authorities as mentioned hereinabove on the basis whereof it can be inferred safely that
factum of absconsion can be considered as corroboratory piece of evidence subject to
certain exceptions which are not available in this case. The prime contention of learned
Senior Advocate Supreme Court that statements of Guldaraz (P.W.1) and Murtaza (P.W.2)
should have been discarded is not tenable which has been made in oblivion of the
provisions as contained in section 512, Cr.P.C.
6. We have also kept the defence version in juxtaposition which is nothing more but
denial simpliciter which cannot be considered in view of the overwhelming incriminating
evidence which has come on record to substantiate the accusation. No other point was
urged before us.
7. In sequel to above mentioned discussion we are of the considered opinion that the
prosecution has proved the guilt of the petitioner to file hilt. The judgment impugned
being well-based and unexceptionable does pot warrant interference. The petition being
merit-less is dismissed and leave refused.
N.H.Q./M-9/S Leave refused.
Page No. 4 of 1
Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ
INAYAT ALI ---Petitioner
versus
Criminal Petition No. 192 of 2001, decided on 11th September, 2001.
(On appeal from the judgment dated 25-11-1999, passed by Lahore High Court, Lahore,
in Appeal No. 182 of 1994).
----S. 302---Qanun-e-Shahadat (10 of 1984), Art.119---Plea of alibi, proof of---Not

essential for the accused to have proved the plea of alibi to the hilt and more so it is for
the prosecution to establish its case beyond the shadow of doubt.
Amanullah v. State PLD 1982 SC 429; Surat Chandra Dhupi v. Emperor AIR 1934 Cal.
719; Suraj Bakhsh Singh v. Emperor AIR 1933 Oudh 369; Muksed Molla v. The Crow.
PLD 1957 Dacca 503 and R. v. Lobell 1957 All ER 734 ref.
(b) Penal Code (XLV of 1860)--
----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Plea of alibi taken by accused

was an afterthought and fabricated one---Eye-witnesses being residents of the same
vicinity could not be labelled as chance witnesses and their enmity with the accused was
not so grave which could prompt them to substitute the accused for the real culprit which
otherwise was a rare phenomenon ---Ocualr version was consistent and
inspired-confidence---Contradictions in the statements of prosecution witnesses were not
grave in nature dud minor contradictions do creep in with the passage of time--Medical
evidence had supported the ocular testimony---Unexplained abscondence of accused for
about nine months was also a corroboratory factor which could not be ignored---Accused
had committed four brutal murders in a reckless manner and question of any leniency in
his favour did not arise---Courts below had passed the impugned judgment after proper
analysis of evidence and the conclusion drawn by them being unexceptionable hardly
called for any interference---Leave to appeal was declined to accused by Supreme Court
accordingly.
Page No. 1 of 1
Amanttllah v. State PLD 1982 SC 429; Surat Chandra Dhupi v. Emperor AIR 1934 Cal.
719; Suraj Bakhsh Singh v. Emperor AIR 1933 Oudh 369; Muksed Molla v. The Crown
PLD 1957 Dacca 503; R. v. Lobell 1957 All ER 734 and Mesal and another v. The Crown
1971 SCMR 239 ref.
Munir Ahmad Bhatti, Advocate Supreme Court and Syed Abul Aasim Jafri,
Advocate-on-Record (absent) for Petitioner.
Nemo for the State.
ORDER
JAVED IQBAL, J.--This petition for leave to appeal is directed against the judgment
dated 25-I1-1999 passed by the learned Division Bench of Lahore High Court, Lahore,
whereby the judgment dated 31-3-1994 delivered by learned Additional Sessions Judge,
Kasur, has been kept in tact by whom the petitioner was tried in case got lodged by
means of F.I.R. No.R7 of 1987 dated 11-4-1987 under sections 302, 307, 148 and 149,
P.P.C. for the alleged murders of Niaz Ali, Mst. Shahab Bibi, Mukhtar and Basharat and
convicted under section 302, P.P.C. and sentenced on four counts to death on each count
with further direction to pay a fine of Rs.25,000 on each count and in case of default to
suffer two years' R.I. on each count. In case of realization, the fine was directed to be
paid to the legal heirs of the deceased cm each count. Being aggrieved an appeal was
preferred by the petitioner which has been rejected vide impugned judgment, hence this
petition.
2. Briefly stated the facts of the case as enumerated in the impugned judgment are to the
effect "that there was dispute between Niaz Ali deceased and Inayat accused (appellant)
due to a common wall adjoining their houses and Niaz deceased wanted to re-construct it
after demolishing but the same was objected to by Inayat appellant and his co-accused
(two out of whom were sentenced to death and two were acquitted by Speedy Trial Court
No.1), Lahore. On 11-4-1987 at about Peshiwela, when Niaz deceased demolished some
portion of the wall, Inayat appellant while armed with .12 bore gun, alongwith his
co-accused namely Salamat Ali armed with .7 MM rifle. Salim and Din Muhammad
armed with 12 bore gun, cattle there, Inayat appellant fired at Niaz deceased which hit
him on his chest who fell down. On learning about the occurrence Mst. Shahab Bibi wife
of Niaz deceased also came there and when she was near the house of Malik Suba in the
street, Salamat Ali co-accused of the appellant fired with his .7 MM rifle which hit on the
left wrist of Mst. Shahab Bibi. Din Muhammad co-accused also fired with his .12 bore
gun which hit Mst. Shahab on left shoulder, Muhammad Saleem co-accused of- the
appellant fired at Mukhtar Ahmad who was present in his shop at that time which hit him
on his right armpit who also fell down inside the shop. On hearing alarm Younas son of
Dost Muhammad P.W. came at the spot and Salamat Ali accused fired with his .7 MM
Page No. 2 of 1
rifle but the same did not hit him due to good luck. Inayat appellant and his co accused
while raising Lalkaras and faring then went towards the house of Walayat Ali P.W. Where
Amanat Ali co-accused was present, who told Inayat appellant that Basharat alias Norri
deceased was present in the house of Walayat P.W. and he be also killed upon which
Inayat appellant fired with his gun at Basharat deceased which hit him on his abdomen
whereafter the accused persons while firing and raising Lalkaras ran away from the place
of occurrence. Niaz Ali, Mst. Shahao Bibi. Mukhtar deceased person died on the spot
whereas Basharat deceased was taken to General Hospital, Lahore who subsequently died
there on the night between 13/14-4-1987", After usual investigation the petitioner was
sent for trial and on conclusion whereof conviction and sentences has been awarded as
per details mentioned hereinabove.
3. It is mainly contended by Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court
on behalf of petitioner that it is a case of misreading and non-reading of evidence which
resulted in serious miscarriage of justice and the evidence led to substantiate the plea of
alibi was neither examined properly nor considered in its true perspective which resulted
in serious prejudice and on this score alone the impugned judgment is liable to be set
aside. It is also contended that various grave contradictions, quite apparent in the
statements of prosecution witnesses, were not considered without any rhyme and reason.
It is argued that medical evidence does not lend corroboration to ocular account which
aspect of the matter escaped notice from the learned High Court. It is also pointed out
that dying declaration of the deceased Basharat could not have been relied as it was not
got signed by the doctor.
4. We have carefully examined the respective contentions as agitated on behalf of the

petitioner in the light of relevant provisions of law and record of the case. We have
minutely perused the judgment dated 31-3-1994 passed by learned trial Court as well as
the imgugned judgment. The entire evidence has been scanned with the eminent
assistance of learned Advocate Supreme Court.
5. We are not persuaded to agree with the prime contention that evidence as led to
substantiate the plea of alibi has not been examined in its true perspective which resulted
in serious miscarriage of justice. Before we could examine the statement of defence
witnesses, let we mention here at the outset, that it is not essential for the accused to have
proved the plea of alibi to the hilt and more so, it is for the prosecution to establish its
case beyond the shadow of doubt. The provision as contained in section 103 of the
Evidence Act (Article 19 of the Qanun-e-Shahadat Order, 1984) concerning the plea of
alibi were examined in case titled Amanullah v. State (PLD 1982 SC 429) and relevant
portion whereof is reproduced hereinbelow for ready reference:--
"13. The divergence of opinion between the learned Judges stemmed from their
interpretation and application of section 103 of the Evidence Act, to criminal cases.
Section 103 lays down that the burden of proof as to any particular fact lies on that
person who wishes the Courts to believe in its existence unless it is provided by any law
that the proof of that fact shall lie on any particular person. Salahuddin Ahmed, J. (as he
then was) and Muhammad Yaqoob Ali, C.J. (as he then was) concurring with him, relying
on Surat Chandra Dhupi v. Emperor AIR 1934 Cal. 719, Suraj Bakhsh Singh v. Emperor
AIR 1933 Oudh 369 and Muksed Molla v. The Crown. PLD 1957 Dacca 503, held the
view that under section 103 of the Evidence Act, the onus lay upon the defence tfo prove
its plea of alibi affirmatively. This view was held by the learned Judges, notwithstanding
the fundamental principle underlying our system of criminal jurisprudence that "the onus
of proving its case against the accused lies entirely upon the prosecution and it sloes not
shift at any point of time", which was expressly adverted to. All the learned Judges,
however substantially agree on the principle that the Court has to judge the guilt or
innocence of the accused uninfluenced by the consideration that the accused had failed to
Page No. 3 of 1
prove his plea of alibi, on the -basis of the. prosecution evidence, so that if the
prosecution fails to prove its case upon its own evidence or the accused succeeds in
raising reasonable doubt, the benefit of acquittal must be given to him. The other learned
Judges, namely, Dorab Patel and Muhammad Akram, JJ. (as they then were) after an
extensive review of the case-law (if I may say so with respect) bearing on the question,
held the view that the onus of proving affirmatively his alibi does not lie upon the
accused, to the extent and in the sense onus lies on the prosecution to prove the guilt of
the accused beyond reasonable doubt. Therefore, the accused, in order to succeed on his
plea of alibi need only to produce evidence sufficient to raise in the mind of the Court a
reasonable possibility that he may be at the place where he asserts he was, rather than at
the place of the crime at the time of occurrence. In such a case a reasonable doubt will
have arisen as to his participation in the commission of the crime, the benefit of which,
must be given to him. The Court, therefore, has to examine the evidence of the
prosecution in juxtaposition with the defence evidence of alibi, and then upon the whole
evidence to, judge whether the accused can be found guilty beyond reasonable doubt and
to convict him only when it is so possible. I am in respectful agreement with the
enunciation of the correct legal position, on the question of onus of proof on an accused
person under section 103 of the Evidence Act, by Muhammad Akram, J. as under:--
"It was rightly remarked in R. v. Lobell 1957 All E R 734 relied upon by my learned
brother Salahuddin Ahmed, J. that "there is a difference between leading evidence which
would enable a jury to find an issue in favour of the defendant and in putting the onus on
him. The truth is that the jury must come to verdict on the whole of the evidence that has
been laid before them.
In my respectful opinion in the reported case of Mukshad Mulla and others v. The Crown
(PLD 1957 Dacca 503), noticed by my learned brother, Salahuddin Ahmed, J., the Court
failed to bear in mind this difference and I am, therefore, unable to approve of some of
the observations made' on reference to section 103 of the Evidence Act in that case.
Similarly on principle, I am unable to appreciate the observations in the reported case of
Suraj Bakhsh Singh v. Emperor to the effect that because there is satisfactory evidence
that "a man committed a crime at a certain place and at a certain time, a Court will never
find any difficulty in rejecting an alibi he may seek to establish, even if that alibi be
supported by what, on the surface, would appear to be satisfactory evidence. " There is
always a rational approach in all cases to then entire evidence viz. that produced by the
accused in support of his plea of alibi and that by the prosecution in support of his
conviction. The conclusion as to the guilt or innocence of the accused must rest on the
basis of the entire evidence considered and weighed as a whole for and against the
prosecution. If in the process a reasonable doubt is raised as to the complicity of the
accused the benefit of doubt must be allowed to him. "
The principle as enunciated hereinabove has been kept in view while examining the
defence evidence let to substantiate the plea of alibi. Mustansar Hussain Adil (D.W.1) had
never checked the attendance register in person and thus he was not in a position to opine
with certainty that petitioner remained present on the date of occurrence i.e. 11-4-1987. It
could not further be proved that on the date of occurrence a telephone call was made by
the petitioner from office because it was never mentioned by the said witness in his
earlier statement got recorded by the Speedy Court on 19-1-1998. (He was confronted
with his said statement). It is also to be noted that the office hours of the petitioner were
8-00 a.m. to 3-00 p.m. and none of the defence witnesses could point out that the
petitioner had observed the said timings and remained present in the office. It was also
stated by the petitioner in his statement got recorded under section 342, Cr.P.C. that
during the period of absconsion he appeared before Zafarullah Chatta, S.I. Police who
after carrying out investigation let him off being innocent. The factum of appearance
before Zafarullah Chatta, S.-I. Police could have been proved conveniently by producing
him as defence witness which could not be done for the reasons best know to the
petitioners. The record is also indicative of the fact that the usual ink which was used to
Page No. 4 of 1
mark attendance was never used while showing the presence of accused for 11-4-1987. It
can, therefore, be inferred safely that the plea of alibi was fabricated one and being an
afterthought could not have been considered, and the learned Courts below have
discarded it for convincing and cogent reasons. Besides that the petitioner remained
absconder for about nine months for which no plausible explanation could be furnished.
It is worth mentioning that this Court in case titled Mesal and another v. The Crown.
(1971 SCMR 239) has discussed the evidentiary value of the evidence of abscondence as
follows:-
"While the fact of an alleged offender having absconded may be regarded as providing
some kind of support to, another evidence which in itself is strong enough to sustain a
conviction for the crime charged such conduct by itself never has the effect of remedying
defects in the other evidence led to show participation in the crime. The reason is simple,
namely that a man may wish to avoid the consequence of being reported against for the
commission of a serious crime .as ardently if he is not guilty as he might if he is guilty."
This view has been followed in a number of cases by this Court and although there are
judgments in which abscondence has been held to furnish corroboration of the
prosecution evidence, but the view taken in Mesal's case has never been overruled by this
Court. It will, therefore, be reasonable to hold that the question whether abscondence
does provide corroboration to the other prosecution evidence would be a question to be
decided on the facts and circumstances of each case. According to the prosecution case,
the warrant of arrest (Exh.P.0.1) for Aminullah appellant was issued showing his address
as village Bhosa Khel, Charsadda. The same address was shown in the endorsement on
the proclamation issued under section 87, Cr.P.C. (Exh.P.0.3). But before these
documents were produced in the evidence, Aminullah had disclosed his address as village
Baly Caroona in his statement in the Committal Court. Apparently these are two different
places and no question was put to this appellant whether he: lived in village Bhosa Khel.
Ghulam Habib (P.W.6) a Foot Constable who was detailed for effecting the search for the
execution of the warrant on Aminullah stated in his evidence that he hid searched for the
appellants in the villages noted in his report. Admittedly, the proclamations were affixed
on the house of the appellants in village Charsadda. The witnesses stated that the house of
Arninullah appellant was pointed out to him by Amirullah, Lambardar, but the latter was
not examined as a witness nor was the report produced in the evidence. It is not,
therefore, established that the appellant was searched at his proper address in village Baly
Caroona. It was suggested that, the appellants did not attend the funeral ceremonies of
their father. This was, however, not put as a circumstance appearing against them during
their examination under section 342, Cr.P.C."
6. In order to see as to whether the factum of abscondence lends corroboration to other

prosecution evidence has been examined in the light of eye account as furnished by Malik
Rehmat Ali (P.W.1), Meraj Din (P.W.7), Malik Muhammad Younas. (P.W.8) and Dilawar,
Hussain (P.W.9). Their version being consistent and confidence-inspiring has rightly been
considered and relied upon by the learned trial and Appellate Courts. They cannot be
labelled as chance witnesses being residents of the same vicinity. They were subjected to
an exhaustive cross-examination and in spite of various searching questions nothing
beneficial could be elicited. It has come on record that the petitioner and the prosecution
witnesses were not in good terms but the enmity was not so grave which could prompt
the eye witnesses to substitute the real culprit which otherwise is a rare phenomena.
Insofar as contradictions in the statements of prosecution witnesses are concerned they C
were not grave in nature and minor contradictions do creep in with the passage of time.
The said eye account has been supported by the medical evidence. After having an
indepth scrutiny and evaluation of the evidence we are of the view that abscondence of
the petitioner can be considered a corroboratory factor which cannot be kept out of
consideration. The prosecution has proved its case beyond shadow of doubt. Brutal
murders have been committed in a reckless manner by the petitioner and hence the
question of any leniency does not arise. The impugned judgment has been passed after
Page No. 5 of 1
having proper analysis of the evidence and the conclusion as drawn by the learned trial
Court and appellate forum being unexceptionable hardly calls for any interference. The
petition being devoid of merit is accordingly dismissed.
N.H.Q./I-34/S Leave refused.
Page No. 6 of 1
1998SCMR1847
Present: Nasir Aslam Zahid, Munawar Ahmad Mirza and Abdur Rehman Khan, JJ
MUHAMMAD CHIRAGH---Appellant
versus
RUSTAM ALI and 2 others---Respondents
Criminal Appeal No. 143 of 1994, decided on 22nd June, 1998.
(On appeal from the judgment dated 2-10-1993 of the Lahore High Court, Lahore passed
in Criminal Appeal No.477 of 1991 and Criminal Revision No.337 of 1991).
----S. 302/34---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was

granted by Supreme Court to complainant to find out whether High Court was justified in
discarding the ocular account as well as corroboratory evidence available on record.
----S. 302/34---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal---

Prosecution had failed to satisfactorily explain the inordinate delay in reporting the
incident to the police and such delay, when judged in the light of the statement of the
Investigating Officer, had made the prosecution case doubtful---Eye-witnesses had
conceded that their statements, to the extent of involvement of one accused, were false
and, as such, in the absence of any other confirmatory circumstance regarding the other
co-accused, they could not be safely relied upon---Aimless and erratic suggestions put to
the complainant in cross-examination, could hardly amount to admission of guilt or
involvement of accused in the offence---Reasons advanced by High Court for acquittal of
accused had no legal flaw---Appeal was dismissed accordingly.
Rana A. Rahim Khan, Advocate Supreme Court for Appellant.
Page No. 1 of 1
Mian Aftab Farrukh, Advocate Supreme Court for Respondents Nos. 1 l2
Ch. M. Akram, Advocate Supreme Court for the State.
Date of hearing: 22nd May, 1998.
JUDGMENT
ABDUR REHMAN KHAN, J.---In this appeal, the legality of the impugned judgment,
dated 2-10-1993, of a learned Judge in the Lahore High art, has been challenged by the
appellant who is a complainant in the F.I.R. registered at his behest in respect of the
murder of his son. In the F.I.R. used/respondents Nos.1 and 2 alongwith Muhammad
Ishaq were charged for murder of Zulfiqar Ali. The learned trial Court by judgment
ivered on 7-5-1991 convicted Rustam Ali and Jaffar respondents Nos. l and 2 ler section
302/34', P.P.C. and sentenced each of them to imprisonment for and a fine of Rs.10,000
and were also directed to pay compensation of 10,000 each to the legal heirs of the
deceased. Muhammad Ishaq, the third used in the case, was however, acquitted. The
convicts/respondents Nos. 112 approached the High Court in appeal for setting aside the
judgment of the 1 Court while the complainant moved revision petition for enhancement
on sentence into death and for reversing the acquittal of Muhammad Ishaq. By impugned
judgment, the High Court, allowed the appeal of the used/respondents and acquitted them
but dismissed the revision of the present ~ellant. Leave to appeal was granted to find out;
whether the High Court was A ;ified in discarding the ocular account as well as
corroboratory evidence
ilable on record.
2. The factual aspect of the incident as narrated in the F.I.R. is t on 20-6-1990 at 6-30
p.m. the complainant Muhammad Charagh with his Zulfiqar Ali (deceased) was
proceeding in a tractor which was loaded with od from village Adhikot towards his saw-
machine in Rungpur Town: Zulfiqar was driving the tractor and when they reached near
the Dera of one Khuda Baloch at 6-30 p.m. he noticed the three accused; namely, Rustam
Ali, ;,"ar and Ishaq coming in a tractor driven by Jaffar accused and they overtook tractor
of Zulfiqar and stopped their tractor in front of his tractor. The used Rustam Ali raised
Lalkara and warned that he would not be spared and the three wiped out their knives,
brought down Zulfiqar Ali from his tractor stabbed him on various parts of his body. In
the meantime P.W.2 Jaffar ~yar alias Zafar and P.W., Azhar Iqbal (abandoned) of Village
Adhikot came m Rungpur side and they witnessed the occurrence. The accused after
seeing m decamped from the spot. Zulfiqar Ali who was unconscious and was edine was
taken to hosoital at Nurour. The Doctor there found the
(Abdur Rehman Khan, J)
Motive for the crime was stated to be a charge of Zina by the deceased with Mst.
Mubaran Bibi, wife of Rustam Ali, sister of Jaffar and cousin of Muhammad Ishaq. The
deceased had been acquitted in that case during those days.
3. The trial Judge based his finding of guilt against the accused/respondents on eye
account of Muhammad Chiragh (P.W.1) and Jaffar Tayyar (P.W.2) and motive for the
Page No. 2 of 1
crime was considered to be confirmatory circumstance. However, Muhammad Ishaq
accused was acquitted on the ground that the Investigating Agency declared him innocent
and the complainant side had agreed to it, that he had no motive to commit the offence.
The knife allegedly used by him for the commission of the offence was not recovered
from him and that material on record created doubt about his involvement in the offence.
4.The High Court, by the impugned judgment, accepted the appeal of the convicts for
following reasons:--
(i) The presence of the eye-witnesses on the spot was doubtful on account of
unreasonable and abnormal conduct exhibited by them as they three in number did not
offer any resistance to the assailants who were equal in number;
(ii) The delay of about five hours in reporting the matter to the Police was taken to be a
circumstance making the prosecution case doubtful;
(iii) The F.I.R. was recorded after sending for the accused from his residence as he was
not available on the spot to report the occurrence;
(iv) Post-mortem examination report gives the time of death as 10 hours before the
examination. According to post-mortem report the time of death comes to 8-00 p.m. and
not 6-00 p.m. as given in the F.I.R.
(v) The eye-witnesses had during the investigation recorded their statements expressing
their satisfaction over the finding of the Investigating Agency which had declared the
accused Muhammad Ishaq innocent.
(vi) The recovery of tractor of the accused from the spot was not held to be a
confirmatory circumstance in view of the improvement made by the witnesses over their
earlier statements in respect of movement and condition of the tractor on the spot.
The learned counsel appearing for the appellant criticised the impugned judgment for
lack of application of mind to some of the relevant evidence on record and for
misconstruing and misjudging some material evidence on the file. He was of the view
that none of the reasons indicated by the High Court would justify acquittal in face of the
confidence inspiring account given by the eyewitnesses which found confirmation from
the recovery of the crime weapon at the behest of the respondent. He submitted that the
evidence of the eye-witnesses is consistent, natural and reliable and it has not been
discredited on any point in the cross-examination. He supported the judgment of the trial
Court believing the testimony of the eye-witnesses and according to him the High Court
was not legally justified in coming to different conclusion than that of the trial Court. He
particularly took exception to the remarks of the learned Judge in the judgment about the
alleged unnatural and unusual conduct of the witnesses. On the other hand learned
counsel representing the respondents argued that the judgment of the High Court is well-
reasoned and it had given cogent and sound reason for justifying its finding and
conclusion of acquittal. He maintained that in view of the doubtful nature of the eye-
witnesses as well as recovery evidence these could not be acted upon for conviction. He
Page No. 3 of 1
emphasized that on account of settled principle of law an order of acquittal could not be
reversed merely because a different view was possible. He pointed out that Muhammad
Ishaq's acquittal has not been challenged in this Court which means that the complainant
side was satisfied with the decision of his acquittal, therefore, they are debarred to
challenge the acquittal of accused/respondents which is based on discarding the same
evidence which was not believed by the trial and High Court against Muhammad Ishaq
mainly because the complainant side had conceded to the finding of his not guilty by the
Police.
5. The crucial point for determination is to find out; whether, the reasons advanced for
acquittal by the High Court are valid and sound so as to justify acquittal. Before this point
is resolved it is pertinent to refer to a portion of the judgment of the trial Court wherein
the learned Judge had expressed doubt about some aspect of the prosecution case. It was
observed in Para No.25 of the judgment, "it is true that the deposition of Muzaffar Khan
A.S.1. P.W.9 is highly damaging to the case of the prosecution. The deposition of this
witness shows that the statement of the complainant was recorded after summoning him
and after procuring his presence. Muzaffar Khan A.S.I. was the first police officer to
examine the deceased at the spot who had mentioned the names of the persons who had
caused these injuries to him. P.W. 10 Ghulam Abbas Shah S.I. has also conceded during
his cross-examination that Allah Yar A.S.I. was on patrol duty during the night of
occurrence and that he had recorded the statement of the complainant while he was on
patrol duty. Even if the admission of Muzafar Khan A.S.I. P.W.9 are ignored the
statement of Ghulam Abbas Shah S.I. P.W. 10 belies the case of the prosecution about the
price and time of the recording of the statement of the complainant. The material on
record clearly shows that the F.I.R. was recorded after preliminary investigation and after
mature deliberations. This circumstance robs the F.I.R. of its normal probative value and
it requires appreciation of the material on record on the point of actual occurrence with
care and circumspection. As regards, the recovery of weapons of offence the knives P.3
and P.4 at the instance of Jafar and Rustam accused were recovered from open sites near
the canal bank. These spots were accessible to the general public and the same cannot be
held to be within the exclusive possession of these accused. The evidence of recovery of
the weapons of offence is as such not worthy of credence".
The said finding was given on account of the doubtful manner in which the Police
Officers had conducted themselves and particularly the irresponsible and casual way in
which Muzaffar Khan (P.W.9) then posted as A.S.I. Police Station. Nurpur dealt with the
investigation of a criminal case. This witness in his statement in Court stated, "I had
found an injured person lying on a cot at the spot. I had directed the two persons who
were present at the spot with the injured persons to carry him to hospital Noorupur and
they had carried him on that cot to Noorpur. The injured was profusely bleeding, on my
inquiry he had informed me that his name and address and had also narrated the
occurrence in which he had suffered injuries. He had also mentioned the names of the
persons who had caused these injuries. I had not recorded his statement because his
condition was serious and so I had sent him to the hospital immediately. I had myself
gone to the Police Station Noorpur at about 10/11 p.m. and had narrated this occurrence
to the S.H.O. SHO had gone to Civil Hospital Noorpur and I had returned to my duty in
Adhi Kot".
It is to be noted that P.W.10 Ghulam Abbas Shah S.H.O. did not support (P.W.9) when he
stated, "It is incorrect that Muzaffar A.S.I. had met me on the night between 20/21-6-
1990 at the Police Station and that he had informed me that he had found an injured
person near Adhi Kot and that he had sent him to Civil Hospital Noorpur".
According to statement of Muzaffar Khan (P.W.9) he enquired from the witnesses present
by the side of the injured about the address of the injured and also from the injured
Page No. 4 of 1
regarding his address and the manner he received injuries. This witness also directed the
two persons present with the injured to take him to the hospital. But it is curious that he
neither recorded statement/report of the injured nor of the persons whom he found
present by the side of the deceased. If whatever P.W.9 has stated was true then it clearly
amounted to shirking and avoiding of official duty by a Civil Servant which would fall
under misconduct. It is also very intriguing in this case that the tractor in which the
accused come to the spot and in which they overtook the tractor driven by the deceased
and struck it against the tractor of the deceased so as to stop it and left it on the spot after
the commission of the offence, was although taken into possession by the Police but they
had not brought its registration or any other document on record to show who was the
owner of this tractor. It is obvious that this was very important evidence in the case and
the ownership of the tractor would have helped a lot in ascertaining the real accused. This
glaring example apparently of intentionally avoiding official duties and indifference in
conducting the investigation must not go unnoticed by the high officers of the Police. The
Registrar of this Court should, therefore, send a copy of this judgment to Inspector
General of Police, Punjab for proceeding against the said defaulting officers in
accordance with law and the result of the action so taken should be intimated to the
Registrar of this Court.
6. As has been noted above the learned trial Court keeping in view the testimony of the
said two above noted Police Officers had observed that the statement of the complainant
was recorded after his presence was procured and that the F.I.R. was recorded after
preliminary investigation and "after matured deliberations". It was, therefore, held by the
trial Court that in view of this matter the F.I.R. lost whatever value it had and that this
necessitated deep appreciation of other material on record. The recovery of weapon was
also not believed. However, it is interesting that after disbelieving all these it was thought
fit to give finding of guilt on the basis of the deposition of the eyewitnesses.
7. The inordinaie delay of reporting the incident to the police could not be explained
satisfactorily by the prosecution. If the three eye-witnesses as they claim had been present
at the spot then any one of them could take care of the injured while the other could go to
make report. It is admitted by P.W.2 that the deceased was taken in Datsun Pick Up from
the spot to the hospital. This delay when judged in the light of the statement of P.W.9
Muzaffar Khan assumes importance and makes the prosecution case doubtful.. The other
conspicuous blot in the prosecution case is that the eye-witnesses agreed with the finding
of the Police regarding innocence of accused Muhammad Ishaq which was based on the
statement of many witnesses to the effect that Muhammad Ishaq was not involved in the
murder and that he was not present on the spot but was elsewhere. It appears that in this
respect the statements of the eye-witnesses were specially recorded by the Investigating
Officer and they were confronted with their statements at the trial. This, in other words,
means that the eye-witnesses conceded that their statements to the extent of involvement
of Muhammad Ishaq were false. Therefore, in absence of any other confirmatory
circumstance regarding the other co-accused it was not safe to rely on such eye-
witnesses. The learned counsel for the appellant was practically unable to controvert the,
correctness of any of the reasons given by the High Court for acquittal.
At the time of reading the statement of the complainant it was noted that in cross-
examination he was suggested certain questions as if the counsel cross examining the
witnesses was admitting his presence on the spot. It would be proper to reproduce that
portion of the cross-examination.
"It is incorrect that in actual fact Zulfiqar Ali deceased while driving a tractor was
confronted by Jafar accused who was driving the tractor and had reached the place of
occurrence from the opposite direction. It is also incorrect that there was an altercation
between the two persons because none of them was willing to allow the other party to
Page No. 5 of 1
cross the road. It is also incorrect that Zulfiqar had rebuked Jaffiqar accused by stating
that he had committed Zina with wife of Rustam accused and sister of Jafar and that no
harm had been done to him. It is also incorrect that Jaffar accused had caused injuries to
Zulfiqar Ali with a pen knife due to that provocation because he had lost his self-control.
It is also incorrect that Rustam and Ishaque accused were not present during the
occurrence and that one of the P.Ws. including me had seen this occurrence."
The learned counsel for the accused was asked to explain the true significance of such
suggestions in which the presence of witness and accused on the spot has been admitted
and whether such suggestions amounted to admission of the accused on the spot and
perpetrating the crime in the manner suggested and also whether these can be taken into
consideration against the accused for determining his/ their guilt. He submitted that if
these suggestions had been admitted as correct by the witness then it alongwith other
incriminating factors could have been considered against the accused but on account of
the denial of the witnesses to admit them as correct these cannot be acted upon. It is a
matter of common observation that the defence counsel some time put inconsistent,
disjointed, conflicting and almost at random suggestions to a witness with a view to
taking some benefit out of it for his alternative pleas which he may ultimately set up in
his defence. Therefore, the answers to such suggestions cannot be equated with admission
of guilt so as to be used against the accused in the case. The incompatible nature of the
suggestions in this case is clear from the fact that all along in the preceding paras such
questions were suggested to the witness as if his presence on the spot was being admitted
but all of a sudden it was suggested to him that you were not present on the spot as is
clear from the suggestion "none of the P.Ws. including me had seen the occurrence".
---------" it is incorrect that Zulfiqar was not carried from the spot to civil hospital Nurpur
and that Zulfiqar had remained lying at the spot unattended for about two hours and that
he was directly removed from the spot to civil hospital Jauharabad. It is incorrect that
Muzaffar Khan A.S.I. had reached the spot after the occurrence while Zulfiqar was lying
in injured condition at the spot. It is incorrect that I had received the information of the
occurrence from Muzaffar A. S.I. and that I had reached there after receiving this
information".
Therefore, we do not agree with the view of the learned counsel that these suggestions
can be used as admission of guilt as we are of the view that such aimless and erratic
suggestions would hardly amount to admission of guilt or involvement in the offence.
We find no legal flaw in the reason advanced for acquittal by the High IC Court and
while maintaining the impugned judgment dismiss the appeal.
N.H.Q./M-170/S Appeal dismissed.
Page No. 6 of 1
1994 S C M R 1077
Present: Muhammad Afzal Zullah, CJ., Saleem Akhtar and Wali Muhammad Khan, JJ
FARYAD HUSSAIN and 2 others---Appellants
versus
Criminal Appeal No. 158 of 1991, decided on 19th January, 1993.
(On appeal from the judgment dated 17-3-1991 of the Lahore High Court, Lahore in Cr.
Appeals Nos. 137 and 138 of 1988 and Murder Reference No. 91 of 1988).
----S. 302/34---Qonstitution of Pakistan (1973), Art. 185(3)---Leave to appeal was

granted to examine the contention that the High Court found that "all the three
eye-witnesses were interested and inimical, therefore, the case required corroborative
evidence" and there was no corroboratory evidence against one accused, and
corroborative evidence against the other two accused was furnished by the same
witnesses who were interested and inimical in other context.
----S. 302/34---Assessment of evidence and making of judgment---Exercise of the

assessment of evidence as well as the making of a judgment and decision are complex
mental processes---One may call an element as a supporting piece of evidence, another
may call it as corroborative piece of evidence and vice versa, but similar effect can be
created by either on the receiving mind ---Need for corroboratory circumstances in such
like cases arises by way of additional caution, otherwise there is no statutorily recognized
command for these aspects of judgment making---Nevertheless in order to remove certain
types of doubts from one's mind an additional exercise of locating the supporting
circumstances and then using them either as corroboration or otherwise is conducive to
the safer dispensation of criminal justice---No hard and fast rule can be laid down, nor the
Courts can be bound by any strict rules in this behalf which confuse the counsel, the
litigant and the Judge alike in most cases.
Page No. 1 of 1
(c) Penal Code (XLV of 1860)---
----S. 302/34---Constitution of Pakistan (1973), Art. 185---Appraisal of evidence---Courts

below were aware of the processes of assessment of evidence and making of the
judgment which had been rightly exercised--Accused were found to have been rightly
held guilty and punished for the murder of the deceased---Appeal was dismissed by
Supreme Court accordingly.
Ijaz Hussain Batalvi, Senior Advocate Supreme Court, MA. War, Advocate Supreme
Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellants.
Raja Abdul Ghafoor, Advocate Supreme Court for the State.
Date of hearing: 19th January, 1993.
JUDGMENT
MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court has
arisen out of a murder case. Some accused were acquitted by the trial Court. The three
appellants were convicted. It is case of death sentence; but amongst others lesser
sentences were also awarded. As stated by the learned counsel the three appellants are
serving sentences of life imprisonment under the assumption that the amnesty order by
the President relating to certain death sentences is applicable to this case also.
The prosecution case, as it emerged in the testimony of the complainant who is the main
eye-witness, is as follows:-
"Maula Bakhsh deceased was my father and Muhammad Shafique deceased was my
younger brother.
Majeed and Faryad Hussain accused are real brothers inter se. Rehmat and Muhammad
Ali accused are also real brothers inter se. Latif and Faqir Hussain accused are friends of
Faryad Hussain, Majeed, Muhammad Ali and Rehmat accused. Wife of Muhammad Ali
accused is sister of Faryad Hussain and Majeed accused. Muhammad Ali and Rehmat
accused are first paternal-cousins of Faryad Hussain and Majeed accused.
About a year and 4/5.months ago at about 5-30 a.m. I and my brother Muhammad Jamil
P.W. were present on the roof of our house situate in Haveli Haq Nawaz, Baghbanpura.
Muhammad Shafique deceased was milking the buffaloes whereas my father Maula
Bakhsh deceased was sitting on a cot in the street which leads to our `Haveli'. Suddenly I
heard shouts and then I saw in the street Faryad Hussain, Rehmat, Muhammad Ali,
Majeed, Latif and Faqir Hussain accused. Muhammad Ali and Faryad Hussain accused
Page No. 2 of 1
were armed with guns, Majeed and Faqir Hussain accused were armed with carbines,
Rehmat accused was armed with a dagger and Latif accused was having a pistol. All the
accused, who are today present in Court, started firing indiscriminately at my father and
brother Muhammad Shafique. As a result of fire-arm injuries, my father Maula Bakhsh
deceased fell on the cot. Rehmat accused then inflicted a dagger blow on the abdomen of
my father. Muhammad Shafique deceased, in order to save his life, ran towards his house.
All the accused armed with firearms, then again fired at Muhammad Shafique deceased.
Muhammad Shafique deceased, as a result of the injuries received by him, fell inside the
door of his house. The occurrence was witnessed by myself, my brother Muhammad
Jamil, my mother Mst. Hamidan Bibi. Lal Din, Muhammad Sharif s/o Chiragh Din,
Yaqoob, and Ghafoor P.Ws. We raised alarm whereupon all the accused ran away while
firing. My paternal-uncle Lal Din P.W. had taken Muhammad Shafique deceased, who
was in injured condition, to the Hospital. Maula Bakhsh died at the spot. I left far the
police station leaving my brother Muhammad Jamil near the dead body. I lodged report at
the police station which is Exh.P.C. It was read over to me and I signed it in token of its
correctness.
About six months before this occurrence Zafar Iqbal, a real brother of Faryad Hussain
accused, was murdered. I, my brother Muhammad Jamil, my father Maula Bakhsh and
my brother Khalil Ahmad were challaned for the said murder. However, about five
months after our arrest. I, Maula Bakhsh deceased and Khalil Ahmad P.Ws. were allowed
bail by the High Court. It was in order to avenge the murder of Zafar Iqbal that she
accused had murdered my father and brother."
The prosecution had the support of ocular evidence furnished by direct eye-witnesses,
incriminatory recoveries as well as the motive in so far as the three appellants are
concerned. The defence plea was of total denial and false implication due to previous
enmity. The trial Court acquitted Muhammad Ali alias Munnoo, Latif alias Nikka and
Faqir Hussain alias Kala, as it appears from the reasoning, on account of benefit of doubt.
The appellants, however, were convicted under section 302/34, P.P.C. and were awarded
sentence of death on two counts as well as heavy fine and longish imprisonment in case
of non-payment. The High Court confirmed the sentences of death passed on Majeed,
Rehmat but reduced that of Faryad Hussain appellant to life imprisonment. Leave to
appeal was granted to examine the contention of the learned counsel that the learned
Judges of the Lahore High Court found that "all the three eye-witnesses were interested
and inimical, therefore, the case required corroborative evidence" and there was no
corroboratory evidence against Rehmat appellant, and corroborative evidence against the
other two appellants was furnished by the same witnesses who are interested and inimical
in other context. Learned counsel for the appellants has reiterated the two-fold argument.
According to him, in this case on account of strong enmity there was a need for
corroboration. And secondly, that the High Court having agreed with this proposition did
not examine the question of corroboration in an objective manner. We have gone with the
assistance of the learned counsel through the material to which he drew our attention.
While reading the judgment of the High Court learned counsel emphasized the following
observations:--
"Although we have unhesitantly accepted the presence of the eyewitnesses at the spot,
and we find no substantial reasons for rejecting their testimony, nonetheless, we are
conscious of the fact that as all the three eye-witnesses were interested and inimical, for
safe administration of justice, corroborative evidence must be looked for ....
Recovery of the blood-stained dagger at the instance of Faryad Hussain also, in a way,
lends corroboration, as the dagger had been used in the commission of crime, though no
allegation was made against Faryad Hussain of having done the same.
Page No. 3 of 1
The carbine recovered at the instance of Majid alias Kala appellant was found wedded
with 3 empties taken into possession from the spot, vide report Ex.PX, from the office of
the Forensic Science Laboratory. The empties were sent to the Forensic Science
Laboratory, prior to the recovery of carbine. As such there is no reason to doubt the
genuineness of the evidence of wedding of the crime empties with the weapon recovered
from Majid alias Kala.
We may mention here that we had considered the argument of learned counsel for the
appellants that Muhammad Yaqub and Muhammad Sharif while deposing as recovery
witnesses, could not have lent corroboration to the ocular account furnished by them. The
argument, in our view was without force as the evidence of recoveries, apart from them,
was also deposed to by the- Investigating Officer, against whom we find no material on
record to have acted mala fide, against the appellants.
Rehmat appellant according to the witnesses was armed with a Khanjar and had stabbed
in the abdomen of Maula Bakhsh which had resulted in protruding out of large intestine
and omentum. Although he had not led to the recovery of Khanjar yet as he was the only
person to have been allegedly armed with a sharp-edged weapon, and had given one blow
to Maula Bakhsh which was found on his body at the time of post-mortem, we think the
medical evidence, in his case, in a classic manner, lends corroboration to the ocular
account. Apart from that a Khanjar was recovered during the investigation, at the instance
of his co-accused Faryad Hussain from his house. Faryad Hussain is his first cousin. The
Khanjar was found stained with blood. It may not be a sound corroborative evidence, but
in a way, it does lead to an inference that the Khanjar used by Rehmat might have been
kept there by Faryad Hussain.
As a result of the above analysis of the prosecution evidence and discussion, case against
Faryad Hussain, Majid alias Kala and Rehmat, stands proved on the basis of the ocular
evidence, the evidence of motive corroborated by the evidence of recoveries and the
medical evidence:'
As is often done, learned counsel for the appellants also complained that after having laid
down the rule that in this case there was need for corroboration of the testimony of the
eye-witnesses; the learned Judges in the High Court felt satisfied with such material only,
as corroboration; which stricto senso, could not have been treated as "corroboration"---if
this word is understood in its technical sense, as a word of art.
We have time and again stressed that the exercise. of the assessment of evidence as well
as the making of a judgment and decision are complex mental processes. One may call an
element as a supporting piece of evidence, another may be called it as corroborative piece
of evidence and vice-versa; but similar effect can be created by either on the receiving
mind. The need for corroboratory circumstances in such like cases arises by way of
additional caution. Otherwise there is no statutorily recognized command for these
aspects of judgment making. Nevertheless we agree with the learned counsel that in order
to remove certain types of doubts from ones mind an additional exercise of locating the
supporting circumstances and then using them either as corroboration or otherwise, is
conducive to the safer dispensation of criminal justice. No hard and fast rule can be laid
down nor the Courts can be bound by any strict rules in this behalf. They confuse the
lawyer, the litigant and the Judge alike, in most cases.
Page No. 4 of 1
In this case we are satisfied that the two Courts below were aware of these processes
some of which are indeed niceties in the judgment making. This furnishes enough
satisfaction for this Court when it gives importance to the findings of the Courts below.
It needs to be noticed that the use of certain expressions in the impugned judgment---for
example, "in a way lends corroboration" was also criticized by the learned counsel on the
assumed touchstone of what he called "real" corroboration. In the light of what has been
discussed above this technical point as well is without any merit. When questioned about
such technicalities learned counsel in fairness, on account of his very long experience at
the Bar, particularly on the criminal side, frankly stated that the words like
"corroboration" of witnesses; "promptitude" in lodging an F.I.R., are mere cliches. The
real test, he said (if we rightly understood him) is the objectivity with which a deciding
mind roams about in anguish mixed with anxiety, but with sincerity to discover truth;
particularly when this discovery has to be made from out of a cobweb of acts, omissions
and events---sometimes they are punctuated here and there by elements like; truth
exaggeration, prompting, tutoring, embroidery and falsehood. He at long last, seems to
have found out a truism in the intricacies involved in what is called the exercise of
judgment making in common shared experiences, of our peculiar environs.
We having done so with the valuable assistance rendered by the learned counsel, feel
satisfied that the appellants have rightly been held guilty and punished for the murder of
the deceased in this case. This appeal thus fails and is, accordingly, dismissed.
N.H.Q./F-308/S Appeal dismissed.
Page No. 5 of 1
1993 S C M R 177
Present: Muhammad Afzal Zullah, CJ. and Muhammad Afzal Lone, J
MUHAMMAD NASIM BUTT---Petitioner
versus
Criminal Petition No.34(S) of 1992, decided on 19th October, 1992.
(On appeal from the judgment dated 8-3-1992 of the Federal Shariat Court, Karachi, in
CrA. 60-K/90).
Prohibition (Enforcement of Hadd) Order (4 of 1979)--
----Art. 4---Constitution of Pakistan (1973), Art.185---Recovery of heroin from

accused---Acceptance of ownership of a heavy narcotic material by one of the accused;
help rendered by one of the officers to one of the accused in slipping away from custody
and integrity of prosecution witnesses---Effect---Fact that two Mashirs stated to be
independent, did not support prosecution would tally well and reasonably with the fact
that huge quantity of heroin recovered involved very big stakes for the culprits and
temptations for several others including prosecution witnesses---Such circumstances
could also be treated as a corroboratory material in so far as prosecution evidence was
concerned--Sufficient indication of attempt at winning over witnesses was pointed out
which also included officer who had helped escape one of the accused--Even if statement
of accused (petitioner) made before witnesses during the raid was accepted as a
confessional statement before the police, though it might have been treated as conduct,
and was excluded from consideration, there was enough evidence on the record that
petitioner was not a mere carrier--Petitioner's version in defence of having met an
accident, when he was driving his car, with the vehicle of officials (who recovered
heroin) was not acceptable---Petitioner was rightly committed for the
offence---Petitioner's prayer for leniency of sentence could not be granted for he had not
come out with the whole truth if at all he was carrier as claimed by him---No
,justification having been made out for interference, leave to appeal was refused.
Azizullah K. Sheikh, Senior Advocate Supreme Court and M. I. Memon,

Advocate-on-Record (absent) for Petitioner.
Page No. 1 of 1
Nemo for the State.
Date of hearing. 19th October, 1992.
ORDER
MUHAMMAD AFZAL ZULLAH, C.J.---The petitioner/convict under the Prohibition

(Enforcement of Hadd) Order, 1979 with award of sentence of life imprisonment
whipping and heavy fine has sought leave to appeal.
The prosecution case as contained in the testimony of group leader in the raiding party
Azizullah Qalander Bux P.W.4, is as follows:--
"On 17-7-1988, I was posted at Defence PNCB Station Karachi as a group leader. I know
Liaquat Ali Zaidi. He is Field Investigation Officer. I also know Abdul Nabi Solangi, who
is also Field Investigation Officer. Both were posted alongwith me at that time. On that
date, I alongwith Abdul Nabi Solangi, Liaquat Ali Zaidi, Irshad Memon and others went
towards Metropole Hotel in our official vehicle bearing Reg. No34-64, in connection
with the anti-narcotics duty. We reached there at about 4-30 p.m. There Liaquat Ali Zaidi
received spy information that one Suzuki car bearing No.250-262 with two persons was
to pass towards Sheraton Hotel, carrying substantial quantity of heroin powder. We,
accordingly, surrounded the area and at about 5-00 p.m. we saw the said Suzuki car and
so the same was stopped, near the Commissioner office. the vehicle was stopped by
Liaquat Ali Zaidi. He introduced himself to the persons occupying the said car, who were
two in number. One disclosed his name as Naeem Butt and was occupying the driver seat,
while the other sitting on the side seat, disclosed his name as Noor Jan Magsi. Naeem
Butt present in Court is the same.
On the rear seat of the said car, two suit-cases were kept and which were owned by Noor
Jan. Both were got opened through Noor Jan and the same contained 25 cloth bags each.
Each such bag was also opened and the same found to be containing heroin powder.
There was a plastic packet inside the cloth bag. One suit-case was found in the dikki of
the car and the same on inquiry was said to be of. Naeem. The dikki was also opened by
Naeem.15 cloths bags were found in the said suit-case lying in dikki and the same also
contained heroin powder. I do not exactly remember due to lapse of time, but each cloth
bag had also either plastic packet, or brown colour paper packet wherein the powder was
kept. Each cloth bag was weighed and found to contain one kilogram each. 5 grams
powder was taken out from each bag as sample. All the 65 bags secured from three
suit-cases in all had 65 kilograms powder. Both those persons were also searched in
person. One NIC and Rs.50 were secured from Noor Jan, while Rs35 were secured from
the person of Naeem. Entire property was then sealed at the spot. Both accused were
arrested. A memo. to this effect was prepared at the spot. The Mashirs who witnessed this
process were Tariq and Malik Ashraf. These two private Mashirs were picked up from the
road near by the wardat. The Mashirnama was also signed by these two Mashirs. Entire
proceedings of recovery, arrest etc. was made in my presence. The recovered material as
also the cat were taken in possession by the I.C. I see Exh.10 and say that it was prepared
and signed in my presence. I also see NIC of Noor Jan as Exh.12 and say this is the same.
Suzuki car parked outside the Court is also the same. The suit-cases containing 65 cloth
bags shown to me now in Court are also the same. Liaquat Zaidi recorded my statement."
Page No. 2 of 1
The co-accused of the petitioner allegedly absconded after the arrest on account of, as it
is further alleged, a liaison between him and Liaquat Zaidi P.W. 7. another member of the
raiding party. It is not known whether he was tried with the petitioner or what has
happened to the case against him. The learned A.O.R. has also remained unaware about
it. Learned counsel for the petitioner has argued that the reappraisal of the evidence is
required in this case for the following amongst other reasons:--
It is unnatural that a culprit world own/accept the ownership of a heavy narcotic material
in the circumstances alleged by the prosecution; that two Mashirs who could be treated as
independent did not support the prosecution case; that one of the officers of the Pakistan
Narcotic Control Board; namely, Liaquat Zaidi himself has helped the co-accused of the
petitioner in slipping away from custody. This being the state of the integrity of the
prosecution witnesses they could not be relied upon with regard to the culpability of the
petitioner; that the narcotic material was expected to be handed over to somebody in or
around the Sheraton Hotel but no effort was made to arrest or even discover him; that
inadmissible piece of evidence; namely, that the petitioner admitted the ownership of 15
Kgs. of heroin before police was not excluded from consideration; and lastly that if the
said inadmissible evidence is excluded there is no evidence that the petitioner owned the
heroin and that being so, he should have been adjudged only as a carrier and punished
accordingly. In this behalf some judgments of this Court were cited They are:
(1) Nadir Khan v. The State 1988 SCMR 1899, (2) Muhammad Rafique v. The State 1990
SCMR 602 and (3) Bonifacio A Burayag v. The State PI.D 1991 SC 988.
None of the arguments of the learned counsel has any force. It is not unusual in the
peculiar circumstances of this case that one culprit amongst the two who is less hardened
would have accepted the ownership of lesser quantity of heroin so as to avoid further
proceedings in the hope of seeking favours during investigation or for that matter seeking
lenient view of the matter during the trial The fact that two Mashirs were stated to be
independent, did not support the prosecution does taffy well and reasonably with the fad
that 65 Kgs. of heroin involved very big stakes for the culprits and temptations for several
others including the prosecution witnesses. This circumstance can also be treated as a
corroboratory material in so far as the prosecution evidence is concerned. To say the least
there was sufficient indication of attempt at winning over the witnesses. Similar is the
position with regard to Liaquat Ali Zaidi. Why the man in or around Sheraton Hotel was
not apprehended or even discovered again relates to the attitude of the investigating
agency in this case particularly when there is a serious allegation that one of the officers
had soft corner for one of the accused -- it is not known since when. And if it was
relatable to period prior to this occurrence much more could then be suspected to have
been done in this ease. And lastly, even if the statement made by the petitioner before the
witnesses during the raid is accepted as a confessional statement before the police though
it might have been treated as conduct, is excluded from consideration there is enough
evidence in this case on the present record that the petitioner was not a mere carrier. His
version of having met an accident, when he was driving the Suzuki car, with the vehicle
of Pakistan Narcotic Control Board is not acceptable either. He has, in our view, rightly
been convicted for the offence.
On the question of sentence it would suffice to say that the petitioner has not come out
with the whole truth if at all he was a carrier. With these remarks no justification has been
made out for interference. Leave to appeal, therefore, is refused
AA-/M-1690/S Leave refused.

Page No. 3 of 1
Present: Aslam Riaz Hussain, Muhammad Afzal Zullah and Mian Burhanuddin Khan, JJ
ZULFIQAR AHMAD-Petitioner
Versus
THE STATE-Respondent
Criminal Petitions for Special Leave to Appeals Nos. 45-P and 46-P of 1984, decided on
10th December, 1985.
(Against the judgments of the Peshawar High Court, dated 13-6-1984, passed in Criminal
Appeal No. 112 of 1983).
(a) Penal Code (XLV of 1860)----
--- S. 302-Appreciation of evidence-Testimony of a single witness when can be relied

upon for conviction of accused.-[Witness].
There are cases where the testimony of even a single witness can be relied upon for
conviction of the accused but an each case it depends on various factors, e.g. where the
presence of the witness at the time of occurrence is natural his statement is consistent, the
version of incident given by him is natural ; his character is above suspicion ; he has
stood the test of cross-examination and his testimony is unimpeachable.
(b) Penal Code (XLV of 1860)----
-- S. 302-Appreciation of evidence-Where testimony of eyewitnesses has been

disbelieved with regard to some of the accused, such testimony can be used against
remaining accused only when some independent corroboratory evidence is available on
record to support their testimony qua those accused.
(c) Constitution of Pakistan (1973)------
Page No. 1 of 1
------Art. 185(3)-Penal Code (XLV of 1860), S. 302-Deep rooted hostility between parties
existing-High Court expressing doubt regarding eye-witnesses and using word
"so-called" for such eyewitnesses - High Court convicting one accused and acquitting
remaining two-No corroboratory evidence supporting testimony of said "so-called"
witnesses available on record- Evidence, of motive being- equally applicable to each
party, could not be said to be corroborating testimony of eye-witnesses-High Court also
disbelieving abscondance of accused persons-Leave to appeal granted to consider
whether well-established principles of appreciation of evidence in criminal cases had
been observed in the case and whether two accused out of three were wrongly acquitted
by High Court.
Cr. P. S. L. A. No. 45-P of 1984
S. M. Zafar for Petitioner.
Cr. P. S. L. A. No. 46/P of 1984
Bashirullah Khan, Addl. A.-G. and Nur Ahmad Khan, Advocate-on-Record for Petitioner.
Advocate-General (N.-W. F. P.) for the State.
Nemo for Respondents.
Date of hearing : 10tb December, 1985.
ORDER
ASLAM RIAZ HUSSAIN, J.--This order shall dispose of P. S. L. A. No. 45-P of 1984
filed by Zulfiqar Ahmad against and Criminal P. S. L. A. No. 46-P of 1984, filed by the
State acquittal of Haji Nisar Ahmad 4110 Pahar Baba and Manzoor (respondents in that
petition).
2. Facts giving rise to the present case are briefly, that Ahmad (petitioner in Criminal P. S.
L. A. No. 45-P of 1984) was alongwith Haji Nisar and Manzoor Ahmad (respondents in
No. 46-P of 1984) and their nephew Zia Ahmad, for murdering Fazal alias Gul Ji, at 11
a.m. on 22-12-1981, at the shop of Rahim Bazar Kalan, Peshawar City.
3. The motive for the offence is stated to be an old blood between the parties.
4. The occurrence as narrated by the prosecution is that Fazal (deceased) and his brother
Mustafa (complainant), were the shop of Rahim Bakhsh Tondoorwala, in Bazar Kalan,
Peshawar On 22-12-1984 at 11 a.m. when Mustafa (complainant) was busy near oven and
Page No. 2 of 1
his brother Fazal Nabi alias Gul Ji was sitting on the of the shop, Zulfiqar alias Zulfiqar
Ahmad alongwith his two Manzoor Ahmad and Nisar Ahmad and their nephew Zia
Ahmad Mukhtar Ahmad, came there, duly armed. On the Lalkara of Ahmad to rill Fazal
Nabi (deceased), Zulfiqar accused-petitioner shut with a Tamancha, hitting Fazal Nabi
who fell down. All the remaining accused then fired with their respective Tamancha and
decamped the place of occurrence. Some of them were arrested after a period of one
month and others after two months, and were sent up for trial.
Fazal Nabi was badly injured, but had not died. He removed to the Lady Reading
Hospital. The police was informed after sometime Mazabar Hussain A. S. I. reached the
Casualty he recorded the statement of Mustafa P. W. which was then sent to police station
as murasla An F. I. R. under section 307, F. P. C. recorded on the basis of the said
statement of Mustafa P. W. Fazal Nabi died the next day and the offence in the F. I. R.
was converted into under section 302, P. P. C.
One of the accused namely Zia Ahmad was, however, murdered by opposite party during
the pendency of the trial. Consequently, only remaining three accused were tried.
5. In support of its case the prosecution produced two namely Mustafa (P. W. 7) (real
brother of the deceased) and (P. W. 8) (an admitted partisan of the complainant party). No
connecting the accused with the offence had been made. The only evidence relied upon
by the prosecution is the motive, i.e. blood between the parties, medical evidence, i.e that
a single fire-arm was found on the person of the deceased and the evidence of
abscondance of the accused.
6. The learned trial Court vide its judgment, dated 15-10-1985, convicted all of them and
sentenced Zulfiqar petitioner to death and the remaining two accused were sentenced to
imprisonment for life. All of them filed an appeal before the High Court which by its
judgment, dated 13-6-1984, acquitted Haji Nisar Ahmad and Manzoor Ahmad
co-accused, but maintained the conviction of Zulfiqar. It also confirmed the sentence of
death awarded to him.
Hence the present petition, one by the convict-accused against his conviction and the
other by the State against the acquittal of the two acquitted accused.
7. We have heard the learned counsel for the petitioners. He bas referred to the following
observation of the High Court in paragraph 14 of its judgment :-
"In this case it can hardly be disputed that both the belligerent parties are after the blood
of each other, Mustafa P. W. 7 is a highly interested witness being the brother of the
deceased and an accused of the murder of Zia Ahmad deceased-accused Salabuddin is
partisan and in a way a chance witness ; that the ocular evidence as to the killing of Fazal
Nabi supported by the medical evidence is that the deceased had only one injury on his
person, a bullet having been recovered from the wound which bad charring. There is,
however, dispute as to the role given to each of the three accused by the prosecution 'and
about the abscondance of all the accused after the occurrence."
Page No. 3 of 1
He pointed out further that in paragraphs 15 and 16 of its judgment, the High Court has
made the following observations, with regard to the credibility of 2 eye-witnesses :--
“(15)…………..(At the trial, however, though both Mustafa and Salahuddin P. Ws. are
consistent in attributing Lalkaras to Nisar Ahmed and a fatal shot to Zulfiqar but they
have made a marked departure as to firing by the other three accused in that, at the trial
both of the witnesses deposed that the three accused fired a shot each in the air . . . . . . . .
"(16) . . . . . . The change in the version at the trial was obviously necessitated because
had the three accused also fired at the deceased who were within 4 to 7 feet from the
deceased he would have definitely received snore injuries on his person or for the matter
of that Mustafa P. W. who was then at a distance of 8 to 10 feet frost the three accused
would have also been hit but it is not so . . . . . . Had he been fired at by the three accused
also then some of the spent bullets would have found their places either on the walls of
the shop or must have left some sort of marks on the walls of the shop. Since the alleged
firing by the three appellants did not leave any mark on the person of the deceased or his
brother or anywhere on the walls of the shop, the prosecution twisted the matter and
firing in the air was introduced at the trial . . . . . :'
Referring to paragraph 17 of the impugned judgment, the learned counsel pointed out that
the learned High Court had disbelieved the evidence regarding the alleged. abscondanoe
of the three accused persons. Relevant portion of this para. reads as under. :
"(17) . . . . . This shows that the three accused did not flout the law and the arguments of
the learned Additional Advocate-General that the three accused had absconded after the
occurrence which showed their guilty conscious fall: to the ground."
8. Counsel then adverted our attention to the following observations by the High Court :-
"(18) . . . . . . It seems to be an act of one man and as the parties are locked in blood feud,
therefore, the complainant has widened the net to enrope as many people as possible from
the side of the accused. We, therefore, discard the evidence of the two so-called
eye-witnesses as for Nisar Ahmad and Manzoor are concerned and by so holding the
application of section 34, P. P. C. also fails."
The learned counsel emphasized that the use by the High Court of the word "so-called
eye-witnesses" is very significant because it reveals the true state of mind of the learned
High Court as regards their credibility.
9. The counsel then argued that from the fact that only one injury was found on the
dead-body, it is evident that only one person had shot at the deceased. But the question is,
who was that person ?
The learned High Court has itself observed that the parties are "after each other's blood"
and that the complainant party has, therefore, tempted to involve as many as -persons as
Page No. 4 of 1
possible from the accused party (three of whom are brothers inter se, and the fourth Zia
Ahmad was their nephew).
The learned counsel argued that since nobody was prepared to become an eye-witness in
a case of murder between two parties involved in a blood feud Mustafa and Salahuddin,
P. Ws. who had not actually seen the occurrence set themselves up as eye-witnesses and
in view of their admitted connection with the deceased, their testimony should be looked
upon with suspicion. The learned High Court has itself expressed serious doubt as to their
being present at the spot by calling them "so-called eye-witnesses". Moreover, the High
Court has also disbelieved their testimony with regard to the majority of the accused
persons.
The counsel pointed out that in a large number of cases it has been held by the superior
Courts that 'credibility of the witnesses is not divisible and if the eye-witnesses are
disbelieved with regard to the majority of the accused, it should not be believed with
regard to the remaining accused unless independent corroborative evidence qua those
accused is available on the record.
10. Of course, there are cases where the testimony of even a single witness has been
relied upon for conviction of the accused but in each case it depends on various, factors
e.g., where the presence of the witness a the time of occurrence is natural; his statement is
consistent, the version o incident given by him is natural ; his character is above
suspicion ; he ha stood the test of cross-examination and his testimony is unimpeachable.
The Courts have, however, emphasized, over and over again, the necessity of observance
of well-established rule of caution that where the testimony of an eye-witness has been
disbelieved with regard to some of the accused, it can be used against the remaining
accused only when some independent corroboratory evidence is available on the record to
support their testimony qua those accused.
The counsel submitted that in view of the deep rooted hostility between the parties as also
in view of the doubt regarding the so-called eyewitnesses expressed by the High Court
itself, the observance of this rule of caution was all the more necessary. But as already
noticed above no corroboratory evidence 'supporting the testimony of the two so-called
eye-witnesses, against Zulfiqar Ahmad petitioner, is available on the record. The evidence
of abscondance has been disbelieved by the learned- High- Court itself The evidence of
motive is equally applicable to each of the accused and it cannot, therefore, be said that it
corroborates the testimony of the eye. witnesses with regard to Zulfiqar Ahmad. As for
the medical evidence i.e. the fact that only one injury was found on the person of the
deceased, this is of no value because the F. I. R. was got recorded after the deceased had
been removed to the hospital and got medically examined, by Mustafa complainant.
Since he came to know that only one injury was found on the body of the deceased. be
naturally mentioned that only one fire was effective and the remaining shots fired by
other accused did not hit anyone. In any case, the presence of injury did not by itself
show that it had been caused by Zulfiqar petitioner.
11. As for the question as to why did the complainant chose Zulfiqar Ahmad as the person
who fired the shot, the counsel argued that the fact Zia Ahmad was murdered by the
complainant party soon after this incident shows that the case has been so tailored as to
ensure that an important member of the family of the opposite party should be got hanged
through the legal process by attributing the main role of firing the fatal shot while they
intended to deal with Zia Ahmad, the actual murderer, whenever an opportunity presented
itself.
Page No. 5 of 1
12. We feel that there is considerable force in the aforementioned contentions. We,
therefore, grant leave to consider whether the well-established principles of appreciation
of evidence in criminal cases has been observed in this case.
13. As for Criminal P. S. L. A. No. 46-P of 1984, filed by the State against the acquittal of
Haji Nisar Ahmad and Manzoor Ahmad, we feel that since leave has been granted to
consider the case of Zulfiqar Ahmad, leave should also be granted in this case. Leave is,
therefore, granted in this case to consider whether the two respondents were wrongly
acquitted by the High Court. Bailable warrants in the sum of Rs. 20,000 with two sureties
in each case, shall issue against them to the satisfaction of District Magistrate. Peshawar.
M.B.A. Leave granted.
Page No. 6 of 1
Present : Aslam Riaz Hussain and Abdul Kadir Shaikh, JJ
MAHMOOD KHAN SHEERANI-Petitioner
Versus
THE STATE-Respondent
Criminal Petition No. Q-4 of 1985, heard on 2nd September, 1985.
(a) Constitution of Pakistan (1973)--------
-- Art. 185(3) -Penal Code (XLV of 1860), S. 302-Criminal Procedure Code (V of 1898),
S. 497/498-High Court disbelieving testimony of two of eye-witnesses and relying on
solitary statement of prosecution witness who was an interested witness inasmuch as it
was he who was cause of whole trouble as he had picked up a quarrel with co-accused
which resulted in incident without any independent corroboratory evidence by way of
incriminating recovery from accused-Trial Court dubbed testimony of third eye-witness
as "obliging and concessional" which rendered same to be unbelievable Dying
declaration also disbelieved by trial Court-Evidence on record needed to be reappraised
to ascertain whether Courts below had appreciated evidence in accordance with
established principles relating to appreciation of evidence in criminal cases-Leave to
appeal granted but prayer for ad interim bail rejected in circumstances.
(b) Penal Code (XLV of 1860)-----
-- S. 302-Appeal before Supreme Court-Supreme Court considering that accused was a

young boy and a student in a local College was likely to rot in jail if case was not fixed at
an early date, ordered appeal to be fixed as soon as possible.
A. H. Memon, Advocate Supreme Court and M. S. Ghaury, Advocate-on-Record for

Petitioner.
Nemo for Respondent.
Date of hearing : 2nd September, 1985.
Page No. 1 of 1
ORDER
ASLAM RIAZ HUSSAIN, J.-------Mahmood Khan Sheerani petitioner seeks leave to

appeal against the short order of the High Court dated 22-7-1985, and the judgment dated
5-8-1985 whereby detailed reasons have been recorded by the High Court for the
aforementioned short order.
2. The F. I. R. in this case was lodged by Muhammad Jaffar (deceased) which was, after
his death, treated as his dying declaration and formed as part of the prosecution evidence
in the case.
3. Briefly stated the facts mentioned in the said statement are that at about 2 p.m. on
30-9-1983, Muhammad Jafar (deceased) alongwith his brother Sher Muhammad and
another friend Dr. Ghulam Muhammad Kansi (P. W. 3) had gone to attend a marriage
ceremony at the house of a friend in Quetta. While returning from there they were met in
the way by Mahmood Khan (petitioner) and his friends Munir Ahmad and Muhammad
Jan (co-accused). For some reason, not clearly stated in the F. I. R., there was an
exchange of hot words between Muhammad Jan co-accused and Dr. Ghulam Muhammad
(P. W. 3). Mahmood Khan Sheerani (petitioner) took out a knife and attacked Dr. Ghulam
Muhammad who stepped aside swiftly and saved himself. Muhammad Jafar (deceased)
tried to intervene but Munir Ahmad (co-accused) caught hold of him (Muhammad Jafar,
deceased) from backside, while Mahmood Khan Sheerani petitioner gave him a knife
blow on the abdomen. It is alleged further that Mahmood Khan Sheerani (petitioner) and
Munir Ahmad (co-accused) gave fist blows to the companions of the deceased. After the
incident the accused ran away.
4. Muhammad Jafar, who was still alive, was taken in a rickshaw to the civil hospital
where he made a statement before Muhammad Tariq A. S. 1. who had come to the
hospital on receiving a message from the hospital. But Muhammad Jafar died
subsequently, whereafter his aforementioned statement was treated as his dying
declaration.
5. At the trial the prosecution relied on the ocular testimony of Sher Muhammad (P. W.
1). Ali Muhammad (P. W. 2) and Dr. Ghulam Muhammad (P. W. 3) as also the
aforementioned dying declaration of Muhammad Jafar deceased.
It may be mentioned that no incriminating weapon was recovered from the accused and
even blood-stained earth was not recovered from the spot. As such there was no other
corroboratory evidence.
6. The trial Court vide its judgment dated 18-6-1985 acquitted Muhammad Jan
co-accused but convicted Munir Ahmad and Mahmood Khan Sheerani (petitioner) under
section 302, P. P. C. and sentenced each of them to death and a fine of Rs. 10,000 and one
year further R.1. in case of default in payment of fine.
Page No. 2 of 1
7. The convicts filed an appeal before the High Court, which vide its judgment dated
22-7-1985/5-8-1985 acquitted Munir altogether and altered the conviction of Mahmood
Khan Sheerani petitioner from section 302, P. P. C. to one under section 304-II, P. P. C.
and reduced his sentence to 7 years' R. I.
Not feeling satisfied Mahmood Khan Sheerani has filed the present petition for leave to
appeal.
8. We have heard the learned counsel for the petitioner at some length. He also took us
through the relevant portions of the impugned judgment.
9. The learned counsel for the petitioner referred to paragraph 55 of the impugned
judgment and pointed out that the learned High Court had disbelieved the testimony of
two of the eye-witnesses namely Sher Muhammad (P. W. 1) and Ali Muhammad (P. W.
2). In this connection the learned counsel relied on the following observations of the
learned High Court :-
"These both witnesses throw upon him (Munir Ahmad) the responsibility of catching
hold the accused to facilitate appellant Mahmood to cause the fatal injury on vulnerable
part of his body, (but) their evidence in that respect has been totally belied by Ghulam
Muhammad P. W. Ghulam Muhammad P. W. has not only exonerated him (Munir
co-accused) from the part assigned to him by the abovesaid two witnesses but even has
not shown his presence at the Wardat..."
The counsel pointed out further that the learned Sessions Judge had dubbed the testimony
of the third eye witness namely Dr. Ghulam Muhammad (P. W. 3) "as obliging and
concessional", which renders it unreliable.
10. He then referred to paragraph 35 of the impugned judgment and urged that the
learned trial Court had even disbelieved the dying declaration. In this connection he
referred to the following observation regarding the dying declaration :-
"This fact by itself is sufficient to cast doubt in one's mind regarding its genuineness and
truthfulness."
11. The counsel urged that the learned High Court had erred in maintaining the conviction
of the petitioner on the state of the evidence.
He also urged that the High Court had erred in relying on the solitary statement of
Ghulam Muhammad P. W. without any independent corroboratory evidence by way of
incriminating recovery from the accused/ petitioner. He urged further that it was
necessary to look for such corroboratory evidence in view of the fact that Ghulam
Muhammad P. W. was an interested witness inasmuch as it is he who was the cause of the
whole trouble, as he had picked up a quarrel with Muhammad Jan (co-accused) which
resulted in the incident.
Page No. 3 of 1
12. The above-noted submissions hive considerable weight and we feel that this is a fit
case in which evidence on the record needs to be) reappraised to ascertain whether Courts
below had appreciated the evidence in accordance with the established principles relating
to appreciation of evidence in criminal cases. Leave is, therefore, granted for this
purpose.
13. The learned counsel for the petitioner also prayed for grant of ad interim bail, but
considering the facts and circumstances of this case and the sentence awarded to him we
do not consider it a fit case for grant of interim bail. The said prayer is, therefore,
rejected.
However, considering that the petitioner is a young boy and a student in a local college
and is likely to rot in jail if the case is not fixed at aril early date, the appeal may be fixed
for hearing as soon as possible.
M. B. A. Leave granted.
Page No. 4 of 1
Page No. 5 of 1

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P L D 2010 Supreme Court 669

Criminal Appeal No.196 of 2009, decided on 18th November, 2009.

(a) Penal Code (XLV of 1860)---

----Ss. 302(6), 324/34 & 449---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd,

(b) Penal Code (XLV of 1860)---

(c) Penal Code (XLV of 1860)---

(d) Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-i-amd---Appreciation of

(e) Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of

(f) Penal Code (XLV of 1860)--

----Ss. 302(c)---Qatl-e-amd---Appreciation of evidence---Grave and sudden

Shahid Mehmood Abbasi, DPG for the State.

Date of hearing: 18th November, 2009.

N.H.Q. /K-7/S Appeal dismissed.

[Supreme Court of Pakistan]

MUHAMMAD AFZAL alias ABDULLAH and others----Appellants

THE STATE and others----Respondents

Criminal Appeals Nos.30 to 33 of 2004, decided on 22nd April, 2008.

(a) Penal Code (XLV of 1860)---

---Ss. 302(b)/324/395/396/412/148/140---Anti Terrorism Act (XXVII of 1997),

(b) Criminal trial---

----Evidence of recovery---Scope---Such evidence is purely corroborative in

Nemo for Respondents Nos.4 to 7 (in Criminal Appeal No.31 of 2004).

Muhammad Afzal alias Abdullah alias Acchu son of Muhammad Sharif

Under section 395, P.P.C.

Under sections 324/149, P.P.C.

Under section 412, P.P.C.

Under section 7, A.T.A., 1997

Muhammad Afzal son of Muhammad Aslam, Suhail Abbas, Muhammad

Under sections 302(b)/149, P.P.C.

Under section 396, P.P.C.

Under section 395, P.P.C.

Under sections 324/149, P.P.C.

Under section 412, P.P.C.

Under section 7, A.T.A., 1997

6. Mian Asif Mumtaz, learned Deputy Prosecutor-General, Punjab, while

M.H./M-2/SC Appeals allowed.

[Supreme Court of Pakistan]

Present: Syed Jamshed Ali and Muhammad Farrukh Mahmud, JJ

(a) Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan

(b) Criminal trial---

---Benefit of doubt---Principle---In case of doubt, the benefit thereof must be given to

(c) Criminal trial---

---Benefit of doubt---Principles---For giving the benefit of doubt it is not necessary that

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Date of hearing: 24th September, 2008.

N.H.Q./M-75/SC Appeals allowed.

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. and Ch. Ejaz Yousaf, J

(a) Penal Code (XLV of 1860)---

----S. 302(b)/34---Appraisal of evidence---Benefit of doubt---Occurrence was unseen and

(b) Penal Code (XLV of 1860)---

----S. 302(b)/34---Circumstantial evidence---Extra-judicial confession---Extent and

Mian Asif Mumtaz, D.P.-G. Punjab for the State.

Date of hearing: 5th September, 2008.

9. In order to determine evidentiary value of these pieces of evidence, we would like to

Consequently, the impugned judgments dated 21-11-2002 passed by learned Additional

N.H.Q./T-11/SC Appeals accepted.

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD NAZIM and others----Petitioners