In The Supreme Court Of

Pakistan
Muhammad Ghufran
(Appellant)
v.
State (Respondent)

Appellant Memorial
 Contents
Statement of Facts 2
List of Abbreviations 4
Index of Authorities 5
Statement of Jurisdiction 6
Issue Raised 7
Summary of Arguments 8
Arguments Advanced 9
Final Submission/Prayer 18
Annexures19
2

Statement of Facts
1. Muhammad Maaz S/O Muhammad Iftikhar a student of
engineering diploma at UET. Taxilla, decided to visit
his family in Islamabad along with his to friends, namely
Muhammad Saqib and Inam.
2. His father was gone to visit the family farmlands
located in the outskirts of Islamabad and was expected
to returning home around 6 in the evening.
3. To surprise his father, Maaz made a plan with his friends
to roam around the house in the evening and surprise
his father.
4. Around 6 P.M. in the evening. Maaz and his friends came
outside their house and started waiting for Muhammad
Iftikhar to appear.
5. According to complainant, as they saw Muhammad
Iftikhar on the street, walking towards his house,
Muhammad Ghufran appeared on the street, riding
a motorcycle and shot twice at Muhammad Iftikhar,
fleeing the spot.
6. He was rushed to the hospital by Maaz and his friends
however, was pronounced dead upon arrival.
7. An FIR was registered by Maaz against Muhammad
Ghufran under §. 302 of Pakistan Penal Code (PPC)
and Muhammad Saqib and Muhammad Saqib and Inam
were the said witnesses.
8. Subsequently, Muhammad Ghufran was arrested and
during the investigation.
9. It was revealed that there existed a family
feud between the family of Muhammad Iftikhar
and Muhammad Ghufran over a piece was land
in the outskirts of Islamabad and therefore, arguments
between the two were a common occurring.
10. Furthermore, Muhammad Ghufran presented his
medical reports according to which he was diagnosed
with a Persistent Depressive Disorder and had to visit a
3

psychiatrist on regular basis along with the prescribed

medicines.
11. After the investigation concluded, Muhammad Ghufran
was presented in the Court of area Magistrate who
forwarded the case to the Sessions Court for trial.
12. At the Sessions Court. Muhammad Ghufran pleaded
not guilty and claimed for a trial. In the Sessions Court.
Prosecution presented four (4) witnesses and their
statements.
13. Interestingly, Muhammad Saqib was not presented by
the Prosecution as a witness to the case for the reasons
kept unknown however his name was registered as the
witness on the FIR.
14. Furthermore, at the time of Court Proceedings, the
investigation officer was on a Suspension Order by the
Police Department due to an on-going investigation in
another case, on charges of corruption and extra-judicial
killing of innocent civilian.
15. After the trial, Muhammad Ghufran was convicted for
committing “Qatl-i-Amd” and was awarded a sentence
of life imprisonment.
16. The decision was appealed in the High Court however
High Court affirmed the decision of the Sessions Court
and revised the sentence to death sentence.
4

List of Abbreviations
For the purpose of this document:

PLD stands for The All Pakistan Legal Decision.

PCr.LJ stands for Pakistan Criminal Law Journal.
NLR stands for National Law Reporter.
SC stands for Surpeme Court.
SCMR stands for Supreme Court Monthly Review.
PLJ stands for Pakistan Law Journal.
I.O stands for Investigation Officer.
Pw. stands for Prosecution Witness.
Cr.PC stands for Code of Criminal Procedure 1898.
FIR stands for First Investigation Report.
PDD stands for Persistent Depressive Disorder.
DSM-5 stands for Statistical Manual of Mental Disorders (5th Ed.)
APA stands for American Psychiatric Association.
5

Index of Authorities
Statutes
Cr.PC 1898.
Qanun e Shahadat Order 1984.
Pakistan Penal Code

Case Laws
PLJ 1995 SC 636, Muhammad Jahangir.
PLJ 1984 FSC 131. Muhammad Yameen.
1995 SCMR 847, Sohail Ahmad.
2022 SCMR 1054.
1988 SCMR 579 Nawab khan etc.
(SC) PLJ 1975 SC 170. Abdur Rashid v. Umaid Ali.
PLD 2016 SC 17.
PLD 1973 SC 321.
1980 PCr.LJ 898 Abdul Nasir.
PLD 1997 SC 847.
PLD 2021 SC 488.
NLR 2015 SCJ 121.
Faheem Ahmad Farooqui v. the state (2008 SCMR 1572).
Tariq Pervez v. State (1995 SCMR 1345)

Other
Diagnostic and Statistical Manual of Mental Disorders
(DSM-5) published in 2013,
6

Statement of Jurisdiction
Without any doubt this appeal is maintainable in this
honourable court under 185(2)(a) of the constitution:
“High Court has on appeal reversed an order of acquittal
of an accused person and sentenced him to death or to
transportation for life or imprisonment for life; or, on
revision, has enhanced a sentence to a sentence as aforesaid”
as in this case the sentence of appellant was enhanced
from life imprisonment to death by High Court.
7

Issue Raised
1. Whether statement of witness are inconsistent on
material facts of case?
2. Whether Investigation by Investigation officer is
admissible?
3. Weather evidence produce is sufficient and credible to
support a criminal conviction?
4. Weather High Court and Trial Court erred by not
taking into account the appellant Persistent Depressive
Disorder?
5. Whether prosecution has established its case beyond
any reasonable doubt?
8

Summary of Arguments
The trial court and subsequently High Court erred by not
taking into account:
1. Discrepant and inconsistent statement of witnesses about
material aspects of case.
2. Non-production of eye-witness whose name was
mentioned in FIR as witness.
3. Inadmissibility of police investigation.
4. Appellant’s Persistent Depressive Disorder.
5. Insufficient and dubious evidence to support a criminal
conviction.
6. Prosecution failure to establish case beyond any
reasonable doubt.
9

Arguments Advanced
1) Unreliable and discrepant witness statement:
Presence of eye-witnesses at the spot does not mean that
they are truthful”.1 The incident took place on 18-07-2017.
The prosecution witness PW-2 Inam present at crime
scene the same day after incident, in his statement testified
that “I also witnessed the recovery of blood form crime
scene, empty bullets and weapon of offence”2 [emphasis
added]. Moreover deposed, in the same statement that he
signed the recovery memo of recoveries made at crime
scene. However, prosecution witness PW-3 Muhammad
Waqas, Investigation Officer of this case deposed that
“On 27-07-2017 I arrested accused Ghufran present at this
court, during investigation we also recovered 30 bore pistol”3
[emphasis added].
Moreover, The prosecution witness 4 Mr. Abdul Basit
has testified that on 17-07-2017 he was posted at RHC
Islamabad and the dead body was brought at the same
hospital however, he performed the Post-Mortem at DHQ
Islamabad next day at 1:00 am.
The statement of witness regarding material fact of
the case is contradictory. The weapon of offence is crucial
piece of evidence and time of its recovery is doubtful.4
The prosecution witness (pw-2) has deposed that he has

1 PLJ 1995 SC 636, Muhammad Jahangir.

2 Statement of witnesses can be found in Annexure.
3 Although it is not mentioned explicitly in the statement of I.O that he recovered
the weapon on the pointation of appellant. The Investigation Officer mentioned the
recovery of blood and empties then arrest of appellant and after that recovery of 30
bore gun respectively, any rational person can construe that recovery was made on
separate occasion. Else the investigation officer could have mentioned the recovery
of gun, in the same sentence, along with empties and blood, rather then two different
sentences, among which he mentioned appellant arrest.
4 In this regard question can also be raised whether, the recovery of weapon of
offence was in compliance with § 103. of Cr.PC., if it is so , then the relevant inquiry is
that how a single weapon can have two different recovery memos with difference of ten
or more days. However, due to limited information of the facts of case, we prefer not to
discuss it.
10

signed the recovery memo of blood, weapon of offence and

empties from crime scene. This renders the credibility of
recovery memo dubious, and also questions credibility for
reliance on empties as corroborative evidence. Witness
belied on one material particular [can be] disbelieved on
another as well.5 When eye-witnesses not found reliable
enough in some important aspects, the conviction of the
accused ought not to have been based on their testimony
without independent corroboration.6 “The credibility and
trustworthiness of the witness mandates to be tested with
reference to the quality of his evidence which must be free
from suspicion or distrust and must impress the court as
natural, truthful and so convincing. “Falsus in uno, falsus in
omnibus” is a Latin term which means “false in one thing,
false in everything” which is a legal principle in common
law that a witness who testifies falsely about one matter is
not at all credible to testify about any other matter.”7 Are
Prosecution witness credible enough to base a conviction
on ocular account furnished by them?
To the contrary however, prosecution witnesses
remember precisely the location where the deceased was
shot and the variant of the weapon used “photographic
narrations of injuries caused by [accused], by witnesses, . .
. such narration was result of tutoring, warranting strong
corroboration”.8 Parrot like statements of witnesses
thoroughly drilled and well tutored with almost verbatim
reproductions of their police statements as well as those of
each other at the trial can be justifiably rejected only when
material discrepancies come into conflict with natural
probabilities that militate against their credibility.9 Ocular
evidence is unreliable when inimical and related to the
accused giving full sequence of shots and points of impact

5 PLJ 1984 FSC 131. Muhammad Yameen.

6 1995 SCMR 847, Sohail Ahmad.
7 2022 SCMR 1054
8 1988 SCMR 579 Nawab khan etc.
9 (SC) PLJ 1975 SC 170. Abdur Rashid v. Umaid Ali.
11

when they were under an emotional stress and not in a

position to do so. Whether its appealing to a prudent mind
that ordinary person can recall points where individual is
shot and precisely identify a 30 bore pistol by having only
glimpse at it when such person is under immense emotional
stress?
Prosecution witness Mr. Maaz is interested witness
as he has family feud with appellant regarding farmland
this is sufficient enough to raise serious doubt on his
testimony. The element of enmity between witness and
defense cannot be simply overlooked.
Prosecution didn’t produce another eye-witness present
at the incident —Muhammad Saqib— despite the fact that
he was nominated in FIR as prosecution witness and no
reason or explanation was furnished by the prosecution.
“[T]he court may draw adverse inference or presumption
that evidence which could be and is not produced would,
if produced, be unfavorable to the person who withholds
it”.10 Reliance can also be placed on NLR 2015 SCJ 121.
2) Inadmissibility of Investigation: The investigation
conducted by investigation officer Muhammad Waqas
SI is inadmissible because besides his contradictory
statement regarding recovery of weapon of offence he is
suspended from his duty on account of corruption charges
as well as extra-judicial killing of an innocent civilian.
“[O]cular evidence in order to carry conviction of capital
charge must come from unimpeachable source”.11 “[N]o
doubt that Investigation officer is public servant but he
is directly concerned with the success of the case and can
safely be said to be an interested witness.”
3) Insufficiency of Evidence: Apart from these
witnesses no corroborative evidence was produced. Thus,
the evidence is insufficient to support a criminal conviction
and the evidence of such probative value cannot be relied

10 PLD 2016 SC 17.

11 PLD 1973 SC 321.
12

upon safely to base a conviction carrying a capital charge.

While determining the guilt of an accused, evidence of the
prosecution is to be weighed in a manner to determine
as to whether the evidence essential for the proof of
such an offence has been brought by the prosecution is
credible enough to meet the condition so as to rule out
any possibility of reasonable doubt, as set out by this
honorable court. “[c]redibility test of a witness depends
on (1) his knowledge of facts, (2) his disinterestedness,
(3) his integrity, (4) his veracity, (5) his bond to speak the
truth on oath or affirmation”.12 Having regard to witnesses
knowledge of fact, their disinterestedness, integrity and
veracity, a question can be posed whether such evidence
deficient of these basic element of credibility is sufficient
to convince a reasonable mind of defendant guilt?
4) Prosecution failure to establish case beyond
any reasonable doubt: Is evidence dubious enough to
create reasonable doubt? Evidence consists of testimony
of witnesses, writings, material objects, or anything
presented to the senses and offered to prove the existence
or non-existence of a fact.
As contended herein above that prosecution evidence
is full of doubt, so is it uncredible enough to create a
reasonable doubt? Reasonable doubt “is a term often used,
probably pretty well understood, but not easily defined. It
is not mere possible doubt; because every thing relating to
human affairs, and depending on moral evidence, is open to
some possible or imaginary doubt. It is that state of the case,
which, after the entire comparison and consideration of all
the evidence, leaves the minds of [judge] in that condition
that they cannot say they feel an abiding conviction, to a
moral certainty, of the truth of the charge. The burden of
proof is upon the prosecutor. All the presumptions of law
independent of evidence are in favor of innocence; and every
person is presumed to be innocent until he is proved guilty.

12 1980 PCr.LJ 898 Abdul Nasir.

13

If upon such proof there is reasonable doubt remaining,

the accused is entitled to the benefit of it by an acquittal.
For it is not sufficient to establish a probability, though a
strong one arising from the doctrine of chances, that the
fact charged is more likely to be true than the contrary;
but the evidence must establish the truth of the fact to a
reasonable and moral certainty; a certainty that convinces
and directs the understanding, and satisfies the reason and
judgment, of those who are bound to act conscientiously
upon it.” Reasonable doubt’ is such a doubt as would cause
a reasonable and prudent person, in one of the graver and
more important transactions of life, to pause and hesitate
before taking the represented facts as true and relying
and acting thereon. It is such a doubt as will not permit
you, after full, fair, and impartial consideration of all the
evidence, to have an abiding conviction, to a moral certainty,
of the guilt of the accused. You may be convinced of the
truth of a fact beyond a reasonable doubt and yet be fully
aware that possibly you may be mistaken. You may find
an accused guilty upon the strong probabilities of the case,
provided such probabilities are strong enough to exclude
any doubt of his guilt that is reasonable. A reasonable
doubt is an actual and substantial doubt reasonably arising
from the evidence, from the facts or circumstances shown
by the evidence, or from the lack of evidence on the part
of the State. “Where evidence creates doubt about the
truthfulness of the prosecution story, its benefit has to be
given to the accused without any reservation.”13
It is a fundamental principle “[i]n a criminal prosecution,
[that] the state is required to prove beyond a reasonable
doubt” and the evidence produce here by prosecution
does not constitute proof beyond a reasonable doubt.
Single infirmity in prosecution case would entitle
accused to benefit of doubt.14 The record failed to disclose

13 1997 S.C.M.R. 25, Muhammad Ilyas.

14 NLR 1991 Cr. 415. Murad Shah.
14

substantial evidence to support the verdict, evidence

that is reasonable, credible, and of solid value such that
a reasonable and prudent could find the defendant guilty
beyond a reasonable doubt. As held by this honorable
court: “It needs no reiteration that for the purpose of giving
benefit of doubt to an accused person a single infirmity
creating a reasonable doubt in the mind of a reasonable person
and prudent mind regarding the truth of the charge makes the
whole case doubt full. . . . it does not absolve the prosecution
from its duty to prove its case against the accused beyond
any reasonable doubt.”15 [Emphasis added]. “For giving
benefit to an accused it is not necessary that there should
be many doubts even a single doubt compelling to a
prudent mind in the prosecution case would be sufficient
to acquit the accused of the charges leveled against him.”
“[Thus] well settled principle of criminal law that it is
for the prosecution to prove his case against the accused
beyond a shadow of a doubt and if there is any doubt must
go to the appellant as of right as opposed to concession”16
“For benefit of doubt it is not necessary that there should
be many circumstances creating doubts. If a simple
circumstance creates reasonable doubt, then the accused
will be entitled to such benefit not as a matter of grace or
concession but as a matter of right”17 and prosecution has
failed to do so.
5) Appellant Persistent Depressive Disorder:
The accused is suffering from Persistent Depressive
Disorder. The term “mental disorder” is defined as:- “A
mental disorder is a syndrome characterized by clinically
significant disturbance in an individual’s cognition, emotion
Regulation, or behavior that reflects a dysfunction in the
psychological, biological, or developmental processes
underlying mental functioning. Mental disorders are
usually associated with significant distress or disability

15 Faheem Ahmad Farooqui v. the state (2008 SCMR 1572).

16 Tariq Pervez v. State (1995 SCMR 1345)
17 Ibid.
15

in social, occupational, or other important activities. An

expectable or culturally approved response to a common
stressor or loss, such as the death of a loved one, is not a
mental disorder. Socially deviant behavior (e.g. political,
religious, or sexual) and conflicts that are primarily
between the individual and society are not mental
disorders unless the deviance or conflict results from a
dysfunction in the individual, as described above.”18
The PDD symptoms include:19
• Depression almost every day for most of the day
• Having a poor appetite or overeating
• Difficulty falling asleep or staying asleep
• Low energy or fatigue
• Low self-esteem
• Poor concentration or difficulty making decisions
• Feelings of hopelessness
Most people who have PDD may have an episode of
major depression at least once in their lives. Older people
who have PDD find it difficult to care for themselves. They
feel isolated and have medical illnesses20
People who have PDD may have periods of normal moods
that can last up to 2 months. Family members and friends
may not even know that their loved one is depressed. This
type of depression is mild. It may be difficult for a person
to function at home, school, or work.21
Section 465 Cr.PC. deals with the trial of accused before
a Court of Sessions or High Court. It is clear from the
provision of § 464 Cr.PC. that if a Magistrate holding an
inquiry or a trial, has reason to believe that the accused is
suffering from mental illness and is consequently incapable
of making his/her defense, he shall inquire into the fact of

18 Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published in

2013,
19 Many doctors use the symptoms listed in the Diagnostic and Statistical
Manual of Mental Disorders (DSM-5) to diagnose PDD. This manual is published by
the American Psychiatric Association.
20 Ibid.
21 Ibid.
16

such mental illness, and shall also cause such person to be

examined by a Civil Surgeon of the District or such other
medical officer as the Provincial Government directs.
Thereafter, he shall examine such Surgeon or other officer
as a witness and also shall reduce the examination in writing.
Under the provision of § 465, Cr.PC. if any person before
a Court of Session or a High Court appears to the Court
to be suffering from mental illness and is consequently
incapable of making his/her defense, the Court shall, in
the first instance, try the fact of such mental illness and
resulting incapacity. If the Court is satisfied of this fact,
it shall record a finding to that effect and shall postpone
further proceedings in the case.22
In this case, the provision of § 465, Cr.P.C. was once
again interpreted by this Court. While declining to grant
leave to appeal against the judgment passed by the learned
Peshawar High Court, whereby conviction and sentence
of the accused under § 302 PPC was set aside and the trial
was held to be vitiated due to noncompliance with the
procedure laid down under § 465, Cr.P.C. 23
“For [purpose of metal illness] , the Court must get the
accused examined by a Medical Board, to be notified by
the Provincial Government, consisting of qualified medical
experts in the field of mental health, to examine the
accused person and opine whether accused is capable or
otherwise to understand the proceedings of trial and make
his/her defense. The report/opinion of the Medical Board
must not be a mere diagnosis of a mental illness or absence
thereof. It must be a detailed and structured report with
specific reference to psychopathology (if any) in the mental
functions of consciousness, intellect, thinking, mood,
emotions, perceptions, cognition, judgment and insight.
The head of the Medical Board shall then be examined as
Court witness and such examination shall be reduced in

22 PLD 1997 SC 847

23 Ibid.
17

writing. Both the prosecution and defense should be given

an opportunity to cross examine him in support of their
respective stance. Thereafter, if the accused wishes to
adduce any evidence in support of his/her claim, then he/
she should be allowed to produce such evidence, including
expert opinion with the prosecution given an opportunity
to cross examine. Similarly, the prosecution may also be
allowed to produce evidence which it deems relevant
to this preliminary issue with opportunity given to the
defense to cross examine. It is upon the consideration of
this evidence procured and adduced before the Court that
a finding on this question of fact i.e. the capability of the
accused to face trial within the contemplation of § 464 and
465 Cr.P.C. shall be recorded by the Court.”24 The trial
court and subsequently High Court failed to take into
account appellant Persistent Depressive Disorder.

24 PLD 2021 SC 488

18

Final Submission/Prayer
For the foregoing reasons, the Applicants respectfully
request this Honorable Court to adjudge and declare:
To reverse the conviction and sentence; and acquit the
appellant.

All of which humbly prayed,

Council for Appellant
19

Annexure
Prosecution Witness - 1
STATEMENT OF MUHAMMAD MAAZ S/O
MUHAMMAD IFTIKHAR (COMPLAINANT) on oath:

I am the student of Engineering of UET Taxilla.

On 18-07-2017 at about 6 P.M. I along with Inam and
Muhammad Saqib were present outside our residential
House. In our view, my father Muhammad Iftikhar was
coming back to home from Agricultural Land. Meanwhile,
accused Muhammad Ghufran present in the court came on
Motorcycle and he pulled out the pistol 30 bore from his
Naifa and made fire shots from of pistol which hit my father
on his back and right side of his chest. Consequently, my
father was died. There were only three persons present
at the place of occurrence besides the deceased and
accused. There was no other person present at the time
of occurrence. I was aware of the family feud between the
two families and Muhammad Ghufran shot my father in
his right state of mind.

Prosecution Witness - 2
STATEMENT OF INAM S/O AZIZ UR REHMAN
on oath:

On 18-07-2017 at about 06.00 PM, I along with my friends

namely Muhammad Maaz and Muhammad Saqib were
present outside Maaz’s residential House. In our view.
Muhammad Iftikhar (deceased) was coming back to home
from Agricultural Land. Meanwhile, accused Muhammad
Ghufran present in the court came on Motorcycle and
put off the pistol 30 bore from his Naifa and made fire
shots from of pistol, which hit Maaz’s father on his back
and on right side of his chest. Consequently, he died.
After that, the police investigated the matter and I also
20

the witnessed of the recovery of blood from the crime

scene, empty bullet and weapon of offence. I also signed
the recovery memos. I was not aware of the family feud
between the two families and Muhammad Ghufran seemed
to be operating in his right state of mind at the time of
murder. There were a few people present at both, time of
the murder and time of recording of evidence at the crime
scene.

Prosecution Witness - 3
STATEMENT OF MUHAMMAD WAQAS (SI
INVESTIGATION OFFICER) On Oath:

On 18-07-2017 I was post at P/S Kashmir Chowk. On

the same day, I was present at Kashmir Chowk, where
Muhammad Maaz, complainant, recorded his statement
Exh.P-G before me. I after recording his statement,
sent the same through Muhammad Haider 1725/C to the
police station for registration of case. Then I proceeded
to the place of occurrence where I interrogated as many
as 21 persons of the locality, prepared site plan of place
of occurrence. I also took into possession of blood at the
crime scene, empty shells of 30 bores. On 27-07-2017 I
arrested accused Ghufran present at this court, during
investigation we also recovered a 30 bore piston which I
took into my possession. I also recorded the statement of
witnesses. I visited the place of occurrence many times
but I cannot tell the exact number of visits. After the
completion of investigation I put the file before SHO for
the repression of challan. I am currently suspended from
the Police Department as there is an internal investigation
going on against me for the charges of corruption and
extra-judicial killing of an innocent civilian. However, the
charges are false and I am hopeful that the investigative
committee will find me innocent.
21

Prosecution Witness - 4
STATEMENT OF DR. ABDUL BASIT on Oath:

On 18-07-2017 I was posted as MO RHC Islamabad.

On the same day, Mohammad Ramzan 6179-C brought
the dead-body of Mohammad Iftikhar along-with police
papers, injury statement cum request for post mortem
examination Ex.P.0 and inquest report Ex.P.D. I conducted
the post mortem examination for dead-body at 1.00 AM on
the next day at DHQ Hospital, Islamabad. The deceased
sustained firearm injuries chest was full of blood, two
bullets were received in a glass bottle and handed over to
police for further necessary actions. The deceased was a
patient of the enlarged spleen and was shot close to the area
of vulnerability. The accused, Muhammad Ghufran, has
presented his medicines, which are generally prescribed
to patients suffering serious mental disorders however
it cannot be said with surety if Muhammad Ghufran is a
patient of Persistent Depressive Disorder in particular.