Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Crl. Appeal No.889-J/2016

(Noor Nawaz vs. The State)
Murder Reference No.23/2017
(The State vs. Noor Nawaz)

JUDGMENT

Date of hearing: 17.12.2018

Appellant by: M/s. Muhammad Ahsan Bhoon and

Imtiaz Noor Malik, Advocates.

State by: Mr. Sultan Mehmood Khan, APG.

Complainant by: Nemo.

SAYYED MAZAHAR ALI AKBAR NAQVI, J:-

Noor Nawaz son of Wali Jan Khan, caste Pathan Khattak, resident of
Janda Khurram, Tehsil Banda Dawood Shah, District Kark, Province
of Khyber Pakhtoonkhawa, appellant along with Abdul Rahman alias
Hafeez, Azmat Ali Khan and Shahid Ullah Khan (since acquitted) was
involved in case FIR No.653/2015, dated 17.12.2015, offence under
Sections 302, 114, 34, PPC, registered with Police Station Sialkot
Cantt. He was tried by learned Additional Sessions Judge, Sialkot
under the afore-mentioned offences. Learned trial court seized with
the matter in terms of judgment dated 21.12.2016 convicted and
sentenced the appellant in the following terms:-
Murder Reference No.23/2017 2
Crl. Appeal No.889-J/2016

 Under Section 302(b), PPC, sentenced to death as Ta’zir

with direction to pay Rs.2,00,000/- as compensation to
legal heirs of deceased in terms of Section 544-A,
Cr.P.C. and in case of default in payment thereof, to
undergo S.I. for six months.
2. Feeling aggrieved by the judgment of the learned trial
court, the appellant has assailed his conviction and sentence through
filing Crl. Appeal No.889-J/2016 while learned trial court forwarded
Murder Reference No.23/2017 for confirmation or otherwise of
sentence of death inflicted upon the convict in terms of Section 374,
Cr.P.C. As both the matters are arising out of one and the same
judgment of the learned trial court, therefore, both are being disposed
off through consolidated judgment.

3. Prosecution story as portrayed in the FIR (Exh.PA/1)

lodged on the application (Exh.PA) of Azmat Ali Khan son of Khan
Zada, caste Pathan Khattak (PW-1) is that the complainant is resident
of Chanda Khurram, Tehsil Banda Dawood Shah, District Karak and
involved in Zamindara. Shahid Ullah Khan son of the complainant
aged 19/20 years used to run tractor with the complainant. One and a
half months prior to the occurrence son of the complainant went for
Lahore for labour. Few days prior to the occurrence son of the
complainant told him on phone that he had got job at the dera of Abid
Gujjar against consideration of Rs.10,000/-. On 16.12.2015 at
8:00/9:00 p.m. the complainant was informed on phone that Shahid
Ullah Khan had received firearm injuries at his head. On this
information the complainant along with (1) Abdul Karim son of Khan
Zada, (2) Umar Hayat son of Muhammad Hayat, both Pathan Khattak
by caste and residents of the same village reached Sialkot
Cantonment. On reaching there the complainant saw that Shahid had
succumbed to the firearm injuries at his head. The complainant
alleged that Hafeez who had contracted marriage with Azmat son of
Noor in the village of the complainant, (2) Shahid Ullah son of Spain
Murder Reference No.23/2017 3
Crl. Appeal No.889-J/2016

Khan, (3) Azmat son of Noor Sahib, Khattak by caste had committed
the murder of his son on the suspicion of having developed illicit
relationship with wife of Hafeez.

4. The complainant along with written application reached

Police Station and appeared before Muhammad Naseer, S.I. (PW-8),
who chalked out formal FIR and thereafter investigation was
entrusted to Fida Hussain, S.I. (PW-15). Investigating Officer
inspected the dead body and recovered two mobile phones, wallet,
and original I.D. Card, National Security Card vide recovery memo
Exh.PK. He also prepared inquest statement (Exh.PM), drafted injury
statement (Exh.PN) and dispatched the dead body to mortuary under
the escort of Ghulam Sarwar 716/C (PW-4). From the spot he secured
blood through cotton vide recovery memo Exh.PL and prepared rough
site plan of the place of occurrence (Exh.PP). After postmortem
examination last worn clothes of the deceased, qameez (P-1), shalwar
(P-2), bunyan (P-3), jersey (P-4), bunyan (P-5), jacket (P-6) and pair
of shoes (P-7/1-2) were produced before the Investigating Officer
which were taken into possession vide recovery Exh.PJ. On reaching
Police Station Investigating Officer handed over case property to
Moharrar Malkhana for its safe custody and onward transmission to
the quarter concerned. On 18.12.2015, Investigating Officer recorded
supplementary statement of the complainant and also recorded
statements of the prosecution witnesses under Section 161, Cr.P.C.
Upon the direction of the Investigating Officer and pointing out of the
PWs on 18.12.2015 Mirza Tahir Tasleem, Draftsman (PW-9) took
rough notes of the place of occurrence and thereafter prepared scaled
site plan (Exh.PH and Exh.PH/1). On 21.01.2016, Investigating
Officer formally arrested the appellant and obtained his physical
remand. During the course of interrogation in pursuance of disclosure
on 24.01.2016, appellant led to the place where he had thrown away
his pistol.
Murder Reference No.23/2017 4
Crl. Appeal No.889-J/2016

5. As a result of investigation, the appellant was found

guilty, hence Investigating Officer prepared report under Section 173,
Cr.P.C. while placing his name in column No.3, and sent the same to
the court of Sessions en-routed through the Illaqa Magistrate as
provided under Section 190(2), Cr.P.C. The learned trial court
formally charge sheeted the accused vide order dated 06.04.2016 to
which he pleaded not guilty and claimed trial. Prosecution in order to
substantiate its case produced as many as fifteen (15) prosecution
witnesses.

6. Occular account in this case consists of the statements of

Hameed Ullah (PW-2) and Sial Khan (PW-3). Muhammad Naseer,
S.I. (PW-8) had chalked out formal FIR while Mirza Tahir Tasleem,
Draftsman (PW-9) had prepared scaled site plan of the place of
occurrence. Investigation of this case was conducted by Fida Hussain,
S.I. (PW-15).

Dr. Umer Saleem (PW-7) had conducted postmortem

examination on the dead body of Shahid Ullah Khan deceased and
observed following injuries on his person:-

“1-A. A lacerated firearm injury wound of 2 cm x 2 cm in

diameter with blackening and contused margins
present on right mastoid region of head. Muzzle
impression present around this firearm injury
wound. This is entry wound. On dissection
underlying mastoid bone is fractured with fracture
lines radiating outward to occipital and parietal
bone of skull. On opening skull haemorrhage
present on dura, subarachnoid and pia matter of
brain, meninges and underlying brain matter or
contused and haemorrhagic.
Injury track explode and brain found damaged,
basal skull bones found fractured and later part of
mandible bone also found fracture.
1-B A lacerated wound firearm injury wound of 0.5 cm
x 0.5 cm present on left cheek about 5 cm below
Murder Reference No.23/2017 5
Crl. Appeal No.889-J/2016

left ear, blackening is not present around margins

and margins are everted. Injury No.1-A is entry
wound and injury No.1-B is exit wound. Spinal
cord not opened to avoid mutilation of dead body.

2-A. Left upper forearm a lacerated firearm injury with

blackening around margins, margins are contused,
size of 0.5 cm x 0.5 cm present on posterior upper
left forearm about 8 cm below left elbow joint
(entry wound).

2-B. A lacerated firearm injury of 2 cm x 2 cm present

on anteriorly upper left forearm (exit wound).”

After postmortem examination the doctor rendered the following

opinion:-

“Keeping in view the postmortem findings, I am of the

opinion that injury No.1-A & 1-B and injuries on left
forearm are firearm injuries and are ante mortem in
nature. Injury No.1-A and injury No.1-B are sufficient to
cause death in ordinary course of nature. Time between
injury and death is instantaneously. Time between death
and postmortem is twenty hours.”

Statements of rest of the prosecution witnesses are formal in nature.

7. The appellant was examined under Section 342, Cr.P.C,

wherein he opted neither to appear as his own witness in terms of
Section 340(2), Cr.P.C. nor he opted to adduce evidence in his
defence. While replying to the question why this case against him and
why the PWs deposed against him, the appellant made the following
deposition:-

“It is a false case. I am innocent. According to FIR, it

was a blind murder. Initially case was registered against
Hafeez and Azmat on the basis of suspicion. Later on, at
very later stage evidence was concocted. Eye witnesses
namely Hameedullah PW-2 and Sial Khan PW-3 who
claimed to be present at the place of occurrence are
blood relatives of the deceased and it is quite unnatural
for them to remain quiet and not to disclose the real facts
of the case to the complainant. Deceased’s family has
certain grudge against my family and they have taken the
Murder Reference No.23/2017 6
Crl. Appeal No.889-J/2016

opportunity of a blind murder to involve me and my other

relatives for blackmailing us. I am serving in Pak Army
and my unit was posted at Siachin and I have no reason
to murder Shahid Ullah. Witnesses are inter se related
and are inimical against me and my family.”

8. Learned trial court after evaluating the evidence

available on record, found version of the prosecution proved beyond
shadow of reasonable doubt against the appellant, which resulted into
his conviction in the afore-stated terms.

9. Learned counsel for the appellant at the outset contended

that impugned judgment has been passed by the learned trial court in
a slipshod manner without adverting to real facts of the case and
material available on record. Learned counsel vehemently argued
that the FIR was lodged with a delay of 11 hours for which no
plausible explanation has been rendered by the prosecution. Further
contended that the complainant is not eye witness of the occurrence
while in the crime report the appellant was not named, who was
brought in through supplementary statement recorded on 18.12.2015.
Main crux of arguments of learned counsel for the appellant is that
although according to prosecution version Hameed Ullah (PW-2) and
Sial Khan (PW-3) had witnessed the occurrence, however, their
statements under Section 161, Cr.P.C. were recovered after two days
of the occurrence. Even they are not truthful witnesses; they failed to
establish their presence and made contradictory statements. Further
argued that medical evidence does not corroborate the prosecution
version on minute details. Learned counsel vigorously argued that
there was no reason with the appellant to have committed the murder
of son of the complainant without any reason. Further contended that
on the same set of evidence Abdul Rahman alias Hafeez, Azmat Ali
Khan and Shahid Ullah Khan, who were named as culprits in the
crime report, were acquitted of the charge and no appeal against their
Murder Reference No.23/2017 7
Crl. Appeal No.889-J/2016

acquittal was filed. Learned counsel finally argued that the

prosecution has miserably failed to establish its case against the
appellant beyond shadow of reasonable doubt, therefore, conviction
and sentence recorded by the learned trial court is not sustainable in
the eyes of law.

10. On the other hand learned Deputy Prosecutor General

vehemently opposed the contentions raised by learned counsel for the
appellant. It was argued that on receipt of information regarding the
occurrence as the complainant had to come from District Karak
(Province of Khyber Pakhtoon Khawah) by covering a distance of
500-KMs, therefore, delay in lodging the FIR is not fatal. Learned
Law Officer contended that nevertheless the appellant was not named
in the crime report, however, he was brought in subsequently through
supplementary statement. Next argued that both the prosecution
witnesses of occular account viz. Hameed Ullah (PW-2) and Sial
Khan (PW-3) fully supported the prosecution case on minute details
and despite lengthy cross-examination nothing adverse to the
prosecution version could be brought on record. He contended that
medical evidence fully supports the occular account. It was argued
that during the course of investigation the appellant had pointed out
the place where he had thrown away his pistol after the occurrence.
Further submitted that during the course of investigation the
appellant was found guilty as such his name was placed in column
No.3 of the report prepared under Section 173, Cr.P.C. It was finally
argued that the appellant had taken the life of a young guy without
any just cause and keeping in view evidence brought forth on record,
learned trial court was rightly justified in recording
conviction/sentence against the appellant under the relevant
provisions of law.
Murder Reference No.23/2017 8
Crl. Appeal No.889-J/2016

11. Arguments advanced from both sides have been heard.

We have also minutely gone through the record available on file with
the able assistance of learned counsel for the parties.

12. It is an established principle of law that each criminal

case has its own peculiar facts and circumstances and the same
seldom coincide with each other on salient features. Admittedly it is
an unfortunate incident in which son of the complainant who was
quite young 19/20 years of age lost his life after sustaining firearm
injuries at his head. Brutality of the occurrence hardly leads any
justification for bailing out the barbarism shown by the accused but to
put the facts and circumstances in equilibrium on the touchstone of
safe administration of justice, we have scrutinized the whole evidence
available on record while weighing the same on judicial parlance. It
has been observed by us that the prosecution has led evidence in the
shape of occular account, medical evidence, motive, as well as,
investigation besides other attending circumstances.

13. As far as merits of the case are concerned we have

observed that there is an inordinate delay of eleven hours in lodging
the crime report for which no plausible explanation has been
rendered by the prosecution. As per prosecution version the
occurrence had taken place on 16.12.2015 at 8:00/9:00 p.m. while the
matter was reported to the police on 17.12.2015 at 7:00 a.m. whereas
inter-se distance between the place of occurrence and Police Station
is only 1-½ KM. Superior Courts have always sensed inordinate delay
with suspicion and there are number of judgments on this point in
which the Superior Courts discarded the prosecution version on this
score alone. In the case of AZHAR ALI and others vs. THE STATE
(2008 SCMR 6) the august Supreme Court of Pakistan had held that
inordinate delay in lodging the FIR would mean that the occurrence
was un-witnessed. In a similar case reported as Mehmood Ahmed and
Murder Reference No.23/2017 9
Crl. Appeal No.889-J/2016

2 others vs. State (PLJ 1995 SC 1), the Hon’ble Supreme Court of
Pakistan took serious notice of delay in lodging the FIR and held as
under:-

“Although in some circumstances a delay of two hours

may not be of much importance yet in the facts and
circumstances of this particular case as they have
happened, the delay has great significance. It can be
attributed to consultation, taking instructions and
calculatedly preparing report keeping the names of
accused open for roping in such persons whom ultimately
prosecution may wish to implicate. This does not mean
that in any other case where the complainant does not
mention the names of the accused an adverse inference
has to be drawn but in cases where the facts show that in
the normal circumstances the complainant could have
known or obtained the names of the accused, it will be
rather dangerous to rely upon such witnesses unless very
strong piece of evidence is produced to substantiate the
prosecution case. In the present case if the complainant
would have reached the police station within 15 to 30
minutes of the incident, one could say that immediately
after the incident the complainant having no interest in
the matter had rushed to the police station to lodge
information so that immediate steps may be taken by the
police. Such is not the case here and as discussed above,
the delay in particular circumstances of this case has not
been explained.”
14. Besides delay in lodging the crime report perusal of
record available on file reflects that the appellant was not named in
the crime report rather the same was lodged against Hafeez, Shahid
Ullah and Azmat, co-accused. Subsequently through supplementary
statement, the complainant involved the appellant on the basis of
statements of Hameed Ullah (PW-2) and Sial Khan (PW-3) recorded
under Section 161, Cr.P.C. However, fact remains that although the
occurrence had taken place on 16.12.2015 while both PW-2 and PW-
3 claim to have seen the occurrence and they are also closely related
to the complainant, as well as, the deceased, however, their
statements under Section 161, Cr.P.C. were recorded with a delay of
Murder Reference No.23/2017 10
Crl. Appeal No.889-J/2016

two days on 18.12.2015 without any plausible explanation. Therefore,

the same are hit by the ratio decidendi of august Supreme Court of
Pakistan laid down in the case of “Abdul Khaliq vs. The State” (1996
SCMR 1553) where it was held as under:-

“---S. 161---Penal Code (XLV of 1860), S. 302/34---Late

recording of statement under S. 161, Cr.P.C.---Value ---
Late recording of a statement of a prosecution witness
under S. 161, Cr.P.C. reduces its value to nil unless delay
is plausibly explained.”

Reliance is also placed on the dictum of law laid down in the cases of
SAHIB GUL vs. ZIARAT GUL and others (1976 SCMR 236) and
MUHAMMAD IQBAL vs. The SATE (1984 SCMR 930).

15. As far as presence of the prosecution witnesses at the

place of occurrence at the relevant time is concerned, there is no
denial to this fact that both of them are residents of District Karak
(Province of Khyber Pakhtoon Khawah). According to claim of both
the prosecution witnesses of the occular account they had visited
Sialkot in connection with getting some labour work. However, during
the course of trial, Hameed Ullah (PW-2) admitted that he was
running a general store in his village including items of bakery.
Relevant extract out of his statement is reproduced as under:-

“I am shopkeeper in my village. I run general store. The

material available at Bakery is also available at my
store.”

If this aspect is taken into consideration that PW-2 was running a

general store at his village, it does not appeal to reason that he would
visit a place 500-KMs away from his resident for getting labour
particularly when the deceased had allegedly got labour job against
the wages of a meager amount of Rs.10,000/-. Similar is the position
with PW-3, who during the course of trial admitted that he was
operated upon at his right kidney. However, it does not appeal to
Murder Reference No.23/2017 11
Crl. Appeal No.889-J/2016

reason that he would go for search of labour work while covering

such a huge distance in presence of his health condition.

As far as authenticity of the statements of the prosecution

witnesses is concerned, both of them claim that the appellant had
made firing upon the deceased in their eye view. However, despite of
the fact that they are cousins of the complainant but astonishingly
there is nothing on record that why they didn’t opt to report the
matter to him although they were having his mobile number. They
even didn’t disclose the details of the occurrence in which a young
boy was done to death to other family members. This fact was
admitted by PW-2 while making his statement during the course of
trial in the following terms:-

“I did not inform the complainant or his family or any

other relatives telephonically about the occurrence…”
Similarly PW-3 stated that soon after the occurrence they disappeared
from the place of occurrence and rushed towards Lorry Adda where
they stayed overnight, however, they didn’t bother to inform the local
police or even made call at Emergency-15. Relevant extract out of his
statement is reproduced as under:-

“We remained the whole night at the Lari Adda without

informing any one about the occurrence. We did not also
call up at 15 with regard to this occurrence.”
Their passive conduct subsequent to the occurrence qua not informing
the complainant, other family members or police when they were
closely related to the deceased speaks volume and leads to the
conclusion to believe that they were not present at the place of
occurrence at the relevant time.

16. As far as medical evidence is concerned in the crime

report no specific role was assigned to the appellant rather he was not
even named as an accused, therefore, the same is of least importance
Murder Reference No.23/2017 12
Crl. Appeal No.889-J/2016

in this case. As far as the prosecution version that during the course
of investigation the appellant had pointed out the place where he had
thrown away his pistol is concerned as nothing was recovered at that
time, therefore, mere memo of pointation cannot be given any legal
credence.

17. As far as motive of this case is concerned according to

FIR Hafeez was married in the village of the complainant, who had
suspicion that the deceased had developed illicit relationship with his
wife, hence the same has not been alleged against the appellant.
Moreover, on the same set of evidence, Hafeez, Shahid Ullah and
Azmat who were arrayed as accused in the crime report, were
acquitted of the charge and no appeal against their acquittal was filed
by the prosecution.

18. All the above narrated facts and circumstances when

evaluated on judicial parlance reflect that the prosecution has failed
to establish culpability of the appellant in the instant case through
reliable, trustworthy and confidence inspiring evidence. It is
established principle of law that for extending the benefit of doubt in
favour of the accused, so many circumstances are not required, rather
one circumstance which creates reasonable dent in the veracity of the
prosecution version, can be taken into consideration for the purpose,
not as a matter of grace, rather as a matter of right. Respectful
reliance in this regard is placed on the ratio decidendi of august
Supreme Court of Pakistan in the cases of “Tariq Pervez vs. The
State” (1995 SCMR 1345) “Riaz Masih alias Mithoo vs. The State”
(1995 SCMR 1730) and “Muhammad Akram vs. The State (2009
SCMR 230). In the case of “Tariq Pervez vs. The State” (1995 SCMR
1345), the august Supreme Court of Pakistan has held as under:-

“---Art.4---Benefit of doubt, grant of---For giving benefit

of doubt to an accused it is not necessary that there
 Murder Reference No.23/2017 13
Crl. Appeal No.889-J/2016

should be many circumstances creating doubts---If a

simple circumstance creates reasonable doubt in a
prudent mind about the guilt of accused, then he will be
entitled to such benefit not as a matter of grace and
concession but as a matter of right”.
19. From the facts and circumstances narrated above, we are
persuaded to hold that conviction passed by the learned trial court
against the appellant in the circumstances is against all canons of law
recognized for the safe dispensation of criminal justice. As per
dictates of law benefit of every doubt is to be extended in favour of the
accused. Moreover, it is golden principle of law that the Court may
err in letting off 100 guilty but should not convict one innocent person
on the basis of suspicion. Resultantly while setting aside the
conviction and sentence recorded by the learned trial court in terms
of judgment dated 21.12.2016, Crl. Appeal No.889-J/2016 filed by the
appellant is allowed as a consequence whereof he is ordered to be
acquitted of the charge in FIR No.653/2015, dated 17.12.2015,
offence under Sections 302, 114, 34, PPC, registered with Police
Station Sialkot Cantt. He is directed to be released forthwith if not
required in any other case.

20. Murder Reference No.23/2017 is answered in negative.

Death sentence is not confirmed.

(Muhammad Waheed Khan) (Sayyed Mazahar Ali Akbar Naqvi)

Judge Judge
Approved for Reporting
Riaz