Raja Ghazanfar Ali Khan, J. Through this single judgment, we intend to decide Criminal Appeal No.22031 of 2022 filed by Shakeel Ahmad against his conviction and sentence and Murder Reference No.35 of 2022 transmitted by learned trial court for confirmation or otherwise of death sentence of Shakeel Ahmad, appellant, as both the matters are emanating from the same judgment dated 02.02.2022 passed by the court of learned Additional Sessions Judge Renala Khurad (Okara) in a private complaint titled as 'Liaqat Ali vs. Muhammad Musa etc." arising out of FIR No.36 dated 30.01.2015, under sections 302, 324, 337-F(i),337-A(i), 427, 148 ,149 PPC registered at Police Station Sher Gharrh Renala Khurd. After conclusion of trial in the aforesaid case, the learned trial court while acquitting the co-accused Muhammad Musa and Salman alias Shan son of Khadim Hussain proceeded to convict and sentence Shakeel Ahmad (appellant) in the following terms:-
(i) Under Section 302 (b) PPC: Death with the direction to pay Rs. 500,000/- as compensation to the legal heirs of deceased under section 544-A Cr.P.C. In default of payment of compensation to further undergo six months S.I.
(ii) Under Section 337-F(i) PPC: Daman of Rs.20,000/- to injured Mst. Amina Bibi.
Moreover, Salman alias Shan son of Bashir Ahmad co-accused was convicted under section 337-A(i) PPC for causing the injury to Liaqat Ali and sentenced to Daman of Rs.20,000/- payable to Liaqat Ali injured.
2. Briefly the facts of prosecution case as detailed in paragraph 1 of the learned trial court's judgment, unfolds as under:- "I am resident of Chak No.21/1-A-L Renala %hurd and agriculturist by profession. On 29.1.2015 at about 01:30/02:00 p.m, I alongwith my brother namely Muhammad Saddique were working at our fields. On the same time, my Bhabhi Pathani Bibi made mobile phone call and told that an altercation had happened between Musa accused, their women folk and themselves. Upon which, I enquired about the reason of quarrel and she told me that our he-goat went to the house of %hadim son of Hakim and they had broken leg of our he-goat. On this information, I alongwith my brother Muhammad Saddique came back to our house. We parked our motorcycle outside our house and entered the house. There we enquired about the reason of altercation from our women folk. On the same time, accused Muhammad Musa son of Mamand armed with sota, Shakeel Ahmad armed with sota, Salman alias Shan son of Khadim Hussain armed with Sota, Shan Muhammad son of Bashir Ahmad armed with Sota alongwith two un- known accused persons armed with fire arm weapons came in front of our house and they started to hit our motorcycle with Sota blows. On hearing the noise, I alongwith Muhammad Saddique, Mohsin Ali, my brothers, Amina Bibi and Mafia Bibi came out of our house. Accused Shakeel son of Khadim raised a Lalkara that they all be murdered. Upon which, accused Musa son of Mamand made Sota blows with intent to murder Muhammad Saddique which hit him at his head and right eye. After sustaining injuries Muhammad Saddique fell down on the ground and became un-conscious. We started to take care of Muhammad Saddique upon which Shakeel Ahmad made Sota blow which hit at left arm of Ameena Bibi. Accused Salman alias Shan son of %hadim Hussain made Sota blows which hit Mafia Bibi at her left arm and right shoulder. Accused Muhammad Musa and Shan son of Bashir Ahmad made Sota blows which hit me at my right and left eyes. The un-known accused persons made aerial firing with their respective weapons. On hearing the reports of firing people of the vicinity attracted to the place of occurrence, on seeing them all the above said accused persons fled away from the place of occurrence with their respective weapons. The occurrence was witnessed by me alongwith Mohsin Ali, Mafia Bibi and Ameena Bibi PWs. After the occurrence, we took Muhammad Saddique, who was in injured condition, to General Hospital Lahore for his treatment. We remained busy in the treatment of Muhammad Saddique in General Hospital Lahore, therefore, delay in lodging of FIR had occurred. Muhammad Saddique is fighting with death. The accused persons in furtherance of their common intention have launched a murderous assault on my brother and have also injured us. They be brought to justice."
3. As per prosecution version, on 30.01.2015, Nazir Ahmad SI (CW.5) was on patrol duty, when complainant Liaqat Ali (PW-1) presented an application (Exh.PA), which led to the registration of an FIR (Exh.CW1/A). He accompanied the complainant to General Hospital, Lahore, where the injured Muhammad Saddique was admitted in critical condition, whose statement under Section 161 Cr.P.C. could not be recorded. Muhammad Saddique succumbed to those injuries thus, section 302 PPC was added. Nazir SI inspected the dead body, prepared the necessary medico-legal documents (Exh.PW-7/B, C, D), and sent the dead body for postmortem examination through Muhammad Javed 1618/C. He, then visited the crime scene and, in the presence of witnesses, prepared a rough site plan (Exh.CWS/B) and seized the complainant's Yamaha motorcycle (P-1) through recovery memo (Exh.PB). Injury statements of Liaqat Ali, Ameena Bibi, and Mafia Bibi alias Allah Mafi (Exh.PK/1, Exh.J/1, Exh.H/1) were prepared and they were sent to DHQ Hospital Okara. On 31.01.2015, last worn clothes of the deceased (P-6 to P-9) were taken into possession vide memo (Exh.CW-2/A). On 02.02.2015, MLCs of the injured were received, and sections 337-A(i) and 337-F(i) PPC were added. A scaled site plan (Exh.CW3/A) was also prepared. On 27.02.2015, the accused Shakeel Ahmad and co-accused Muhammad Musa, Salman alias Shan son of Khadim Hussain and Salman alias Shan son of Bashir Ahmad were arrested. During interrogation on 08.03.2015 Shakeel Ahmad led to the recovery of a sota (P-3) from his residence, via recovery memo (Exh.P-E).
4. The complainant, being dissatisfied with the result of the police investigation, opted to file a private complaint before the learned trial court. Upon the completion of the necessary procedural formalities, the appellant, Shakeel Ahmad, along with the co-accused, were summoned to face trial. At the stage of framing the charge, the appellant, Shakeel Ahmad, entered into a plea of guilt, articulating his statement in the following terms:- "I plead guilty to the charge. On 29.01.2015 at about 1:00/01-30 P.M. Zafar son of Nawab and Awais son of Allah Ditta trespassed our house and they gave Sota blow on the head of my mother. I came forward to rescue my mother and while giving Sota blow to Zafar, Muhammad Saddique deceased came in between us and Sota hit the head of Muhammad Saddique. He sustained a severe injury on his head. He was taken to hospital. I alongwith my mother, Zafar, Awais and Saddique were present at the spot and one of the remaining accused persons namely Musa, Salman alias Shan son of Khadim and Salman alias Shan son of Bashir were present at the spot. My mother Mst.Bibi Rani was also medically examined and MLC was issued in this regard."
Notwithstanding this plea of guilt tendered by the appellant, the learned trial court exercised its jurisdiction under Section 265-F Cr.P.C. and proceeded to record evidence of the prosecution.
5. The prosecution produced seven witnesses to substantiate its case. Liaqat Ali (Complainant/PW- 1) reiterated the contents of private complaint, detailing the attack by the co-accused, including Shakeel Ahmad appellant, and the injuries sustained by himself, his brothers, and the deceased Muhammad Saddique. Allah Maafi alias Mafia Bibi (PW.2 ) was an alleged injured eyewitness, but she was given up after her examination-in-chief due to her non-appearance for cross- examination. Ameena Bibi (PW.3), another alleged injured eyewitness, corroborated the complainant's version, specifically mentioning that the appellant Shakeel Ahmad inflicted sota blow on her arm. Mohsin Ali (PW.4), the complainant's brother was another eyewitness, who supported the prosecution's narrative and testified the recovery memos of sotas. Dr. Fauzia Syed (PW.5) medically examined Allah Maafi and Ameena Bibi, whereas Dr. Yasir Irfan (PW.6) medically examined Liaqat Ali (PW.1). Dr. Khizar Ahmad Moon (PW.7) conducted the post-mortem examination on the dead body of Muhammad Saddique (deceased), detailing a significant head injury as the cause of death. Nine witnesses were examined as Court Witnesses, including Nazir Ahmad SI, Investigating Officer (CW.5), who detailed the investigation process, recovery of the motorcycle and sotas besides preparation of various documents. Dr. Shahid Iqbal (CW-6) produced the operation notes of the deceased. Muhammad Aamir Raza Baitu, Judicial Magistrate (CW-9) had recorded statement under Section 164 Cr.P.C. of the appellant Shakeel Ahmad.
6. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C, who in reply to the question "Why this case against you and why the PWs deposed against you?" stated as follows:- "All the private PWs of this case are inter-se related and closely related with the deceased. No independent/ impartial witness has supported the prosecution case either during the course of investigation or during the trial. Complainant lodged this FIR and private complaint against me and my co-accused with malafide intention, after a considerable delay, by suppressing the real facts. FIR and private complaint has been registered against me and my co-accused after consultation and with due deliberation. The real facts of this occurrence were that on 29.01.2015, at about 01-00 p.m. near relative of complainant Zafar son of Nawab, Muhammad Awais son of Allah Ditta forcibly trespassed my house and caused injuries to my mother Mst. Bibi Rani wife of Khadim Hussain which hit on her head. On that day when I was coming from my school, I saw the blood which was oozing from the head of my mother, I became over zealous and I having been instigated tried to cause injury to Zafar Iqbal with Sota but unfortunately Muhammad Saddique deceased stepped forwarded which landed on his head. None of my other co-accused were present at the place of occurrence nor they participated in the occurrence. My mother Rani Bibi was medically examined by the police on the same day through Rapt No.15 and thereafter case FIR No.100/2015 Under Sections 337-A (ii)/34 of PPC was got registered by my mother against the complainant party and according to record, accused persons are P.Os in this case and file of the case is consigned to record room under Section 512 of Cr.P.C on 15.10.2016. The occurrence happened within short moments without any meditation under the heat of passion."
The appellant neither made statement under section 340 (2) of Cr.P.C, nor produced any defence evidence. After conclusion of the trial, the appellant was convicted and sentenced as detailed in para 1 ante, hence the criminal appeal and the Murder Reference before this Court.
7. The learned counsel for the appellant has primarily argued that the conviction under Section 302(b) PPC is not sustainable on the grounds that the learned trial court placed undue reliance on the appellant's qualified plea of guilt under Section 265-E Cr.P.C., while disregarding the substituted version of events presented by the appellant and the lack of independent corroboration for the prosecution's case against him for the commission of murder. It was further contended that the prosecution failed to establish the appellant's intention to commit murder or his participation in an unlawful assembly with the common object of committing murder.
8. Conversely, the learned Deputy Prosecutor General supported the judgment of the learned trial court by arguing that the appellant's plea of guilt, coupled with the ocular and medical evidence, sufficiently established his guilt for the commission of the offence under Section 302(b) PPC. The complainant's counsel has adopted the said arguments and prayed for the upholding of the death sentence.
9. We have carefully considered the arguments advanced by the learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant and also meticulously examined the entire record of the learned trial court with their able assistance.
10. The prosecution, in brief, has structured its case to the effect that on the fateful day appellant Shakeel Ahmad along with his co-accused Muhammad Musa, Salman alias Shan son of Khadim Hussain, Salman alias Shan son of Bashir Ahmad, all armed with clubs along with two un-known accused armed with firearm weapons gathered in front of the house of the complainant Liaqat Ali (PW.1) and started hitting his motorcycle. On hearing noise, he (PW.1) along with Muhammad Saddique, Mohsin Ali, Amina Bibi and Mafia Bibi came out of the house. Accused Shakeel prompted his co-accused not to spare the complainant side. Thereafter Musa inflicted club blows which hit on head and right eye of Saddique. Shakeel Ahmad made sota blow which hit on left arm of Ameena Bibi. Accused Salman alias Shan son of Khadim Hussain made sota blows which hit Mafia Bibi at her left arm and right shoulder. Accused Muhammad Musa and Shan son of Bashir Ahmad inflicted sota blows which hit complainant at his right and left eyes. The un-known accused persons made aerial firing with their respective weapons.
11. We have straightaway noticed that according to the complaint (Exh.PA) lodged by Liaqat Ali complainant (PW.1), the occurrence in this case took place on 29.01.2015 at about 1:30/2:00 P.M. and the matter was reported to police on the following day i.e. 30.01.2015 at about 12:35 P.M. at police station Shergarh situated at a distance of 15 K.M from the place of occurrence. There is an unexplained delay of about twenty two hours and thirty five minutes in lodging of the FIR. The aforementioned delay in the registration of F.I.R. gives reasonable clue that either the incident remained un-witnessed or narrator of ocular account had no previous acquaintance with the actual assassin. In this regard, guidance can be sought from the case of "Mst. ASIA BIBI versus The STATE and others" (PLD 2019 Supreme Court 64) the relevant portion from paragraph No.29 of said case law is hereby reproduced:- "There is no cavil to the proposition, however, it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and casts a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused."
12. The ocular account in this case was furnished by Liaqat Ali (PW.1), Mst.Allah Mafi alias Mafia Bibi (PW.2), Mst.Ameena Bibi (PW3) and Mohsin Ali (PW.4). It is pertinent to mention here that though Allah Mafi alias Mafia Bibi (PW.2) got recorded her examination-in-chief but later on she was given up by Liaqat Ali (complainant) being won over. By withholding the cross-examination of such an important witness, an adverse inference in terms of Article 129 Illustration (g) of Qanun-e- Shahadat Order, 1984 is drawn that had she appeared for cross-examination, she would not have supported the case of prosecution. The august Supreme Court of Pakistan in the case of Muhammad Rafique, etc. v. State & others (PLJ 2011 SC 191) held as under:- "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e- Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution."
Mohsin Ali (PW.4) did not provide any ocular account of the actual assault and only testified to recovery proceedings. Thus, the ocular account was effectively confined to Liaqat Ali (PW.1) and Mst. Ameena Bibi (PW3). Though the remaining two witnesses namely Liaqat Ali (PW.1) and Mst.Ameena Bibi (PW.3) were having stamp of injuries on their persons yet they cannot be considered to be the truthful witnesses solely on the ground of their being injured. Guidance in this regard can be sought from the case law reported as "Amin Ali and another vs. The State" (2011 SCM R 323) also held as under:- "Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is whether they are truthful witnesses or not, because merely the injuries on the persons of PWs would not stamp them as truthful witnesses."
We have minutely examined the testimony of Liaqat Ali (PW.1) and Mst. Ameena Bibi (PW.3) which is found to have some more legal flaws as well. Both the eyewitnesses put forth the details of incident which inspire no confidence. Both the eyewitnesses made dishonest improvement in their testimony. The relevant portion of cross-examination of Mst. Ameena Bibi (PW.3) is reproduced hereunder:- "I have stated in my statement before the police that I along with Allah Mafi came out of the house (Confronted with Exh.DA where it is not so recorded. I have stated in my statement that Muhammad Mosa accused made a sota blow which hit Muhammad Saddique on his right eye (confronted with Exh.DA) where it is not so recorded. I have stated in my statement Exh.DA Shakeel accused made sota blow which hit me at my left arm confronted where it is not so recorded. I have stated in my statement Exh.DA that Salman accused made sota blow which hit at the left arm and right shoulder of Allah Mafi confronted where it is not so recorded. I have stated in my statement that Mosa and Shan accused made a sota blow which landed on the left eye and right eye of Liaqat Ali complainant confronted where it is not so recorded. I have got recorded in my statement Exh,DA that unknown accused made aerial firing upon which people of the vicinity attracted at the place of occurrence confronted where it is not so recorded. ..."
The law on the point of making dishonest improvements needs no discussion as it is a settled proposition whereby such witness loses his credence on account of having polluted his deposition.
Guidance in this regard can be sought from the case law reported as "Sardar Bibi and another v.
Munir Ahmed and others"(2017 SCMR 344), wherein the Supreme Court of Pakistan observed as under:- "According to the doctor, there was only one fire-arm entry wound on the chest of the deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses."
During trial both the eyewitnesses namely Liaqat Ali (PW.1), and Mst.Ameena Bibi (PW.3) consistently attributed the fatal head injury of Muhammad Saddique to co-accused Muhammad Musa, who has been acquitted by the learned trial court by giving him the benefit of doubt. No appeal against acquittal of Muhammad Musa has been filed, thus the acquittal of Muhammad Musa has attained finality. So far as the present appellant is concerned he is simply burdened with the accusation of having inflicted sota blow on left arm of Ameena Bibi (PW.3). A careful review of the testimony of Ameena Bibi (PW.3) reveals that although she claimed that the appellant hit her with a sota blow but it does not inspire the confidence, required for conviction of the appellant in this case, in the absence of independent corroboration, especially considering the overall inconsistencies that led to the acquittal of principal accused Musa. Moreover, the injury allegedly attributed to the appellant on the head of Ameena Bibi (PW3) was simple in nature, and the possibility of misidentification or exaggeration during a chaotic incident involving multiple assailants cannot be ruled out. In the interest of justice benefit of doubt must also be extended to the appellant regarding the charge of hurt.
14. The medical evidence was furnished by Dr.Fauzia Syed (PW.5) who medically examined Mst.
Ameena Bibi (PW.3) on 02.02.2015. The Doctor has mentioned probable time between injury and medical examination as four days. Such enormous delay casts serious doubt about the veracity of the prosecution story. Though the Doctor observed contusion of about 04 x 3.2 cm on her left forearm on posterolateral aspect near elbow joint yet this is simple in nature. In the given circumstances, the medical evidence also does not provide any strength to the prosecution case so far as it relates to the case of Shakeel Ahmad (appellant).
15. As far as the recovery of sota (P3) vide recovery memo (Exh.PE) effected on the disclosure and pointing out of the appellant is concerned, suffice to say in this regard that it is a daily use item and was not forwarded to the PFSA for its forensic analysis, thus it cannot be used against the appellant. It is settled law that when the ocular account is discarded, there remains nothing to be corroborated through recoveries. Guidance in this regard can be sought from the case law reported as "Zafer vs. The State and others" (2018 SCMR 326), wherein the Supreme Court of Pakistan enlightened as under:- "Having discussed all the aforesaid aspects of the case, it has been observed by us that medical evidence, motive, recovery and for that matter abscondance of appellant are merely supportive/corroborative pieces of evidence and when the presence of the eye-witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/corroborative pieces of evidence to convict the appellant on a capital charge."
16. The learned trial court, having recorded the appellant's alleged confession under Section 265-E Cr.P.C., did not immediately act upon it but opted to proceed with recording the prosecution's evidence under Section 265-F Cr.P.C. The crucial question before us is whether the learned trial court was legally justified in subsequently accepting pleading guilty as the sole basis for awarding the death sentence, particularly in light of the full-fledged trial that ensued and the evidence presented by the prosecution, including the testimonies of witnesses who bore visible injuries. In this context, the principles enunciated in "Muhammad Ismail vs. The State" (2017 SCMR 713), wherein it is held as under:- "True, that under section 265-E, Cr.P.C, the Trial Court has a discretion to record the plea of the accused and if he pleads guilty to the charge, it may convict him in its discretion. Nevertheless, it is also provided in section 265 F, Cr.P.C. that if the Trial Court does not convict him on his plea of guilt, it shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. This discretion is to be exercised with extra care and caution, and ordinarily on such admission, awarding capital sentence of death shall be avoided and to prove the guilt of an accused, evidence of the complainant or the prosecution has to be recorded, in the interest of safe administration of justice." which provided pertinent guidance, stating that while a trial court has the discretion to convict on a guilty plea under Section 265-E Cr.P.C., if it chooses to record prosecution evidence under Section 265-F Cr.P.C., this discretion must be exercised with utmost care, and ordinarily, awarding a capital sentence solely on such an admission should be avoided, with the prosecution's evidence being recorded in the interest of justice. Furthermore, a learned Division Bench of this Court in "Khalid Mehmood vs. The State" (2024 P.Cr.LJ 1212) unequivocally held that if a trial court proceeds with the trial after a guilty plea under Section 265-E Cr.P.C., that confession cannot subsequently be used to the accused's detriment. For ready reference, its relevant portion is detailed here:- "We have no doubt in our minds that if the accused pleads guilty under section 265-E Cr.P.C. but the Court does not award him punishment and instead proceeds with the trial then such confession cannot be used to the detriment of the accused subsequently."The underlying rationale is that once a trial court opts to record the entire prosecution evidence, its decision must be grounded in the evidence produced during the trial, and not solely on the initial confession. In the present case, the learned trial court appears to have acted contrary to these established legal principles and the evidence on record by convicting the appellant Shakeel Ahmad based on his initial plea of guilt after having conducted a full trial.
3. The nutshell of the above discussion is that the prosecution has miserably failed to prove the guilt of appellant beyond any shadow of doubt. This is a settled principle of criminal jurisprudence that the accused is entitled to the benefit of every reasonable doubt, arising out of the case.
Reliance in this regard can be placed on the case law reported as "Sikandar Ali alias Bhola vs. the State" (2025 SCMR 552), wherein the august Supreme Court of Pakistan held as under:- " It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story."
In this view of the matter, this Court is of the view that the convictions and sentences awarded to the appellant are un-warranted. Consequently, while giving benefit of doubt in favour of Shakeel Ahmad (appellant) Criminal Appeal No.22031 of 2022 is allowed; his convictions and sentences are set-aside and he stands acquitted of the charge. He is in judicial custody; be released forthwith if not required to be detained in any other case.
14. Resultantly, Murder Reference No. 35 of 2022 is answered in the NEGATIVE and death sentence awarded to Shakeel Ahmad (appellant) (convict) is NOT CONFIRMED. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.