2021 P Cr.

L J Note 7
[Lahore]
Before Shehram Sarwar Ch. And Muhammad Waheed Khan, JJ
MUHAMMAD ILYAS alias LACHOO---Appellant
Versus
The STATE and others---Respondents
Criminal Appeal No. 100-J and Murder Reference No. 42 of 2017, heard on 13th February,
2020.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 337-F(iii) & 109---Qatl-i-amd, attempt to
commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, mutalahimah,
abetment---Appreciation of evidence---Sentence, reduction in---Delay of about forty minutes
in lodging the FIR---Effect---Prosecution case was that the accused committed murder of
complainant's nephew and injured the complainant and his son and another---Motive behind
the occurrence was dispute of plot---Alleged incident took place at 3:30 p.m. and the matter
was reported to the police at 4.10 p.m. on the same day---Distance from the place of
occurrence and Police Station was four kilometers, it had been observed that the Crime
report, in the circumstances, was lodged spontaneously which ruled out the pre-consultation
and due deliberation on part of the complainant.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 337-F(iii) & 109---Qatl-i-amd, attempt to
commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, mutalahimah,
abetment---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the
accused committed murder of complainant's nephew and injured complainant and his son and
another---Motive behind the occurrence was dispute of a plot between the parties---Record
showed that the accused was named in FIR with specific role of inflicting injuries not only
on the person of the deceased but also to the injured witnesses (three in number) and at the
same time the names of witnesses are duly mentioned in the crime report---Both the parties
were previously known to each other, hence, chance of mis-identity was ruled out---
Prosecution, in order to prove the oral stance, had produced the complainant, both the injured
as well as eye-witnesses---All the prosecution witnesses remained consistent qua the
culpability of accused and stood to the test of cross-examination successfully and intrinsic
worth of their evidence qua the time, date, place, mode and manner of occurrence could not
be uprooted by the defence---Evidence of said witnesses not only rang true but also fit in the
probability and other circumstances of the case---Accused was a sole perpetrator of the
incident---All the injuries either on the person of deceased or on persons of injured witnesses
were attributed to accused only---Truthfulness of the testimony adduced by the eye-
witnesses, in circumstances, was found believable---Prosecution had successfully proved its
case against accused beyond reasonable doubt but motive had not been proved by the
prosecution against the accused so, by treating that factor as mitigating circumstance in
favour of accused, his conviction under S. 302(b), P.P.C. was maintained but his sentence of
death was converted into life imprisonment---Appeal was dismissed with said modification
in sentence.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 337-F(iii) & 109---Qatl-i-amd, attempt to
commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, mutalahimah,
abetment---Appreciation of evidence---Sentence, reduction in---Recovery of weapon and
crime empties---Scope---Prosecution case was that accused committed murder of nephew of
the complainant and also injured three persons including complainant and his son---
Investigation showed that complainant led to the recovery of gun .12 bore---Investigating
Officer secured two shot shell cases of .12 bore and two empties of .30 bore pistol from the
crime scene and the same were sent to the Office of Forensic Science Agency for forensic
analyses---Weapon of offence allegedly recovered from the possession of the accused was
found wedded with the empties, hence, the evidence of recovery lent full corroboration to the
ocular version.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 337-F(iii) & 109---Qatl-i-amd, attempt to
commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, mutalahimah,
abetment---Appreciation of evidence---Sentence, reduction in---Motive was not proved---
Effect---Prosecution case was that the accused committed murder of nephew of the
complainant and also injured three persons including complainant and his son---Allegedly,
the accused on behest of acquitted co-accused wanted to dispossess the complainant party
from a plot and on refusal the accused had committed the incident---Record showed that
except oral assertion, there was no documentary proof qua the dispute of possession of plot
between the complainant party and acquitted co-accused---Prosecution, in circumstances,
remained unsuccessful to prove the motive part of the incident, so, by treating that factor as
mitigating circumstance in favour of accused, his conviction under S. 302(b), P.P.C. was
maintained but his sentence of death was converted into life imprisonment---Appeal was
dismissed with said modification in sentence.
(e) Criminal trial---
----Motive---Not proved---Effect---If the prosecution set a specific motive, it was bound to
prove the same---If prosecution failed to prove the same, it reacted against the sentence of
accused.
Haq Nawaz v. The State 2018 SCMR 21 rel.
Naseem Ullah Khan Niazi for Appellant.
Syed Imdad Hussain Hamdani for the Complainant.
Tariq Javed, Additional Prosecutor General for the State.
Date of hearing: 13th February, 2020.
JUDGMENT
MUHAMMAD WAHEED KHAN, J.---This judgment shall dispose of Criminal Appeal
No. 100-J of 2017 filed by appellant (against his conviction and sentence) and M.R. No.42 of
2017 forwarded by the learned trial Court for confirmation of death sentence awarded to
appellant or otherwise. As both the matters have arisen out of the same judgment dated
26.01.2017 passed by the learned Additional Sessions Judge, Khushab in case FIR No.216
dated 26.09.2014 registered under sections 302/109/324/337-A(i)/337-F(i)/337-F(ii)/337-
F(iii), P.P.C. at Police Station Mitha Tiwana, District Khushab, whereby appellant was
convicted and sentenced as under;-
(i) Under section 302(b), P.P.C. awarded death sentence as Ta'zir. He was also directed
to pay compensation of Rs.50,000/- to the legal heirs of deceased Muhammad Arsalan
and the said amount was ordered to be recovered as arrears of land revenue. In default
whereof, he was ordered to further undergo six months simple imprisonment.
(ii) Under section 324, P.P.C. awarded five years rigorous imprisonment for attempt to
commit qatl-i-amd of the complainant Elahi Bakhsh and with fine of Rs.20,000/-. In
default whereof, he was ordered to further undergo six months' simple imprisonment.
(iii) Under section 337-A(i), P.P.C. ordered to pay a sum of Rs.20,000/- as Daman to the
injured Mehboob Hasan.
(iv) Under section 337-F(i), P.P.C. ordered to pay a sum of Rs.20,000/- as Daman to the
injured Mehboob Hasan.
(v) Under section 337-F(ii), P.P.C. ordered to pay a sum of Rs.20,000/- as Daman to the
injured Muhammad Noman.
Benefit of section 382-B, Cr.P.C. was also extended to the appellant.
Whereas his co-accused Fakhar Iqbal was acquitted of the charge by the learned trial Court
vide same judgment by extending him benefit of doubt.
2. Brief facts as narrated by the complainant Elahi Baksh while lodging FIR are as
under;
"That he is resident of Mouza Panja and landlord by profession. He on the fateful day
i.e. 26.09.2014 at 03:30 p.m. proceeded from his house to purchase vegetables and
when he was near Nazi Hotel over Adda he met with the accused Muhammad Ilyas
alias Lachoo son of Khuda Bakhsh also resident of the village Panja, who asked him
to return the possession of the plot pertaining to the co-accused Fakhar Iqbal son of
Mani Khan otherwise he would have to face the consequences, so an altercation took
place between the complainant and the accused Muhammad Ilyas alias Lachoo, who
pulled out a pistol .30-bore from the folder of his Shalwar and made three successive
shots with his pistol and one of the said fire shots hit the complainant on his left thigh
and he after sustaining' the said injuries fell down. In the meanwhile, his son
Mehboob Hasan (PW-8) and Muhammad Noman (nephew of the complainant PW-9),
who were available nearby came there and snatched pistol from the assailant. The
accused Muhammad Ilyas then picked up the Churri from the hotel and gave Churri
blows upon the persons of Mehboob Hasan (PW-8) hitting upon his head and
Muhammad Noman upon his left hand. The accused Muhammad Ilyas then while
shouting lalkaras ran towards his house and after a short while he brought a .12-bore
gun repeater from his house. Muhammad Arsalan (deceased) son of Muhammad
Bukhsh and nephew of the complainant were then available in their shop. The accused
 Muhammad Ilyas raised lalkara to him and then made two successive fire shots with
his gun upon Muhammad Arsalan hitting upon his both legs. Muhammad Arsalan
after receiving the fire shots at the hands of the accused Muhammad Ilyas fell down,
then the accused Muhammad Ilyas while shouting lalkaras fled away from the scene
of occurrence which was witnessed by PWs Mehboob Hasan, Muhammad Noman and
Muhammad Bukhsh son of Ahmad Khan besides the complainant.

The motive behind the occurrence was that the accused Muhammad Ilyas alias
Lachoo is a friend of-co-accused Fakhar Iqbal son of Mani Khan and they intended to
get possession of the disputed plot, so the accused Muhammad Ilyas nourished this
grudge and on the abetment of co-accused Fakhar Iqbal made a murderous assault
upon the complainant and injured Muhammad Arsalan, Mehboob Hasan and
Muhammad Noman. The factum of abetment was witnessed and heard by the PWs
Muhammad Younis (Pw-15) and of Muhammad Iqbal son of Ali Muhammad (given-
up PW) as the accused Fakhar Iqbal about one hour prior to the occurrence while
sitting in his shop over Adda instigated and abetted the accused Muhammad Ilyas
alias Lachoo to get possession of the plot for the accused Fakhar Iqbal and he would
give him share from the plot. The complainant got recorded his statement (ExPE) to
the police near Chungi No.2 Mitha Tiwana. The injured were shifted to the DHQ
Hospital Jauharabad where they were medically examined, whereas Muhammad
Arsalan the then injured was referred to Allied Hospital, Faisalabad where he
succumbed to the injuries on 27.09.2014."

3. Dr. Nisar Ahmad, who conducted the postmortem upon the dead body of the deceased
Muhammad Arsalan on 27.09.2014 at about 10:30 a.m. appeared as PW-6 and found six
injuries on person of the deceased and opined that probable time which elapsed between
injuries and death was about 12 hours and between death and postmortem examination was
five and half hours. Whereas Dr. Ghulam Rasool appeared as PW -16, who medically
examined the deceased (in injured condition), he also medically examined both the injured
persons, namely, Mehboob Hasan and Muhammad Noman.

4. After registration of the case, investigation was carried out by the police and on
completion of the same, report under section 173, Cr.P.C. was submitted before the learned
trial Court. Thereafter, learned trial Court after observing codal formalities, framed charge
against appellant along with his co-accused, which was denied by them, hence, the trial
commenced.
5. In order to prove its case, prosecution produced as many as sixteen witnesses. Ocular
account was furnished by the complainant/injured Elahi Bakhsh, both the injured eye -
witnesses, Mehboob Hasan and Muhammad Noman and another eye-witness Muhammad
Baksh, who appeared as PW-7, PW-8, PW-9 and PW-11 respectively. Muhammad Fiaz SI,
who conducted investigation of the case appeared as PW-14, whereas remaining PWs were of
formal in nature. Thereafter, prosecution closed its evidence by producing certain
documentary evidence.
6. After recording the prosecution evidence, appellant was examined under section 342,
Cr.P.C., wherein he denied all the allegations levelled against him. He did not opt to appear
as his own witness under section 340(2), Cr.P.C., nor produced any evidence in his defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced
the appellant in the above mentioned terms, hence, this appeal and Murder Reference.
8. Learned counsel for the appellant in support of instant criminal appeal submits that
the prosecution has failed to prove its case against the appellant beyond shadow of
reasonable doubt; that the story narrated by the complainant while lodging the instant crime
report is highly improbable and cannot be comprehended at any stretch of imagination and
the impugned judgment passed by the learned trial Court is based on surmises and
conjectures; that all the PWs are not only closely related to the deceased but also inter se,
hence, they are highly interested witnesses, therefore, conviction cannot be based on their
evidence and no other independent witness was produced by the prosecution to prove the
culpability of the appellant. Lastly prays that by accepting the instant appeal, appellant be
acquitted of the charge.
9. Conversely, learned Additional Prosecutor General assisted by the learned counsel for
the complainant strongly controverted the arguments advanced by the learned counsel for the
appellant and submits that the prosecution has ably proved its case up to the hilt against the
appellant; that the matter was reported to the police with utmost promptitude wherein
accused was specifically nominated in the FIR with a role he played during the incident; that
the appellant had not only mercilessly killed the deceased but also caused the injuries on
three persons belonging to the complainant party; that the pistol 30 bore was snatched by
PWs from the appellant at the place of occurrence, whereas during the course of investigation
he got recovered the gun .12 bore, so, instant appeal being meritless be dismissed by
maintaining the conviction and sentence awarded to the appellant by the learned trial Court.
10. We have heard the arguments of learned counsel for the parties and have perused the
record with their assistance.
11. The alleged incident as stated in the FIR took place at 3:30 p.m. on 26.09.2014,
whereas the matter was reported to the police at 4.10 p.m. on the same day and the distance
from the place of occurrence and Police Station is 4 kilometers as per relevant column of
FIR. So under the circumstances, we observe that the crime report was lodged spontaneously
and such spontaneity in reporting the matter to police rules out the pre-consultation and due
deliberation on part of the complainant party. The appellant is named in FIR with specific
role of inflicting injuries not only on the person of the deceased but also to the injured PWs
(three in number) and at the same time the names of witnesses are duly mentioned in the
instant crime report. Both the parties were previously known to each other, hence, chance of
mis-identity is also ruled out.
12. In order to prove the oral stance, the prosecution has produced the complainant Elahi
Bakhsh as PW-7, both the injured as well as eye-witnesses, Mehboob Hasan and Muhammad
Noman as PW-8 and PW-9, whereas another eye- witness Muhammad Baksh as PW-11.
While narrating the incident, complainant, who is also paternal uncle of the deceased
Muhammad Arsalan stated that on 26.09.2014 at 3:30 p.m. when he was available at Adda
for purchasing vegetables, the appellant threatened him to vacate and hand over the
possession of the plot to Fakhar Icibal co-accused (since acquitted) and on his refusal, he
made three successive pistols shots on him, his son Mehboob (PW-8) and his nephew
Muhammad Noman (PW-9) attracted at the spot and snatched pistol from possession of the
appellant, then appellant picked up a "Churri" and gave both of them "Churri" blows, the
appellant thereafter ran towards his house and brought .12 bore repeater gun and made two
fire shots at Muhammad Arsalan deceased, which hit at his both legs who fell down and
thereafter, succumbed to the injuries on the following day of the occurrence i.e. 27.09.2014.
Other PWs Mehboob Hasan (PW-8) who is the real son of the complainant, Muhammad
Noman (PW-9) who is nephew of the complainant and Muhammad Bakhsh (P W-11) who is
father of the deceased also deposed before the learned trial Court in a similar manner. All the
three PWs except Muhammad Bakhsh (PW-11) had stamp of injuries on their persons, so,
their presence at the place of occurrence cannot be denied. All of three were medically
examined and their Medico Legal Reports are duly supporting the prosecution version. It was
the day light occurrence which took place in a Bazar and it cannot be presumed that the same
was un witnessed, especially in presence of all injured PWs. All the prosecution witnesses
remained consistent qua the culpability of accused and stood to the test of cross-examination
successfully and intrinsic worth of their evidence qua the time, date, place, mode and manner
of occurrence could not be uprooted by the defence side. Their evidence not only rings true
but also fits in the probability and other circumstances of the case. The appellant is a sole
perpetrator of the incident. As far as the argument of learned counsel for the appellant that
the co-accused namely, Fakhar Iqbal was acquitted while disbelieving the same set of
evidence is concerned, suffice it to say that he was not attributed any overt act rather
according to the own story of the prosecution, he was not available at the crime scene and
during the course of investigation he was not even arrested by the police. So, we find that
case of present appellant is quite distinguishable from his co-accused and all the injuries
either on person of deceased or on persons of injured PWs are attributed to him only. So
under the circumstances, we fully believe the truthfulness of the testimony adduced by the
eye- witnesses.
13. As far as the recovery of weapon of offence qua the appellant is concerned, according
to the prosecution story weapon of offence i.e. .30 bore pistol was snatched from the
appellant by the PWs at the crime scene and during the course of investigation he led to the
recovery of gun .12 bore, the Investigating Officer secured two shot shell cases of .12 bore
and two empties of .30 bore pistol from the crime scene and the same were sent to the office
of Punjab Forensic Science Agency for forensic analyses and the weapon of offence
allegedly recovered from the possession of the appellant was found wedded with the empties,
hence, the evidence of recovery lends full corroboration to the ocular version.
14. As far as motive part of the incident is concerned, as the appellant on behest of
acquitted co-accused Fakhar Iqbal wanted to dispossess the complainant party from a plot
and on refusal the appellant had committed the incident. In this regard, we have perused the
record and find that except oral assertion, there is no documentary proof qua the dispute of
possession of a plot between the complainant party and Fakhar Iqbal acquitted co-accused is
available on record. Muhammad Fiaz SI/Investigating Officer who appeared as PW-14 while
answering a question during the course of cross-examination with respect to the motive
stated as under;-
"It is correct that the complainant party did not produce any documentary proof
regarding the ownership/possession (i.e. the about the dispute between the
complainant party and the accused of abetment Fakhar Iqbal). It is correct that there
 no one else is the witness about the aforesaid dispute between the complainant and the
accused Fakhar Iqbal. It is incorrect to suggest that the accused Fakhar Iqbal joined
investigation since 26.09.2014 to 08.10.2014. Volunteered that the accused joined the
investigation on 08.10.2014. It is correct that I deferred the arrest of the accused
Fakhar Iqbal on 08. 10.2014."
From perusal of evidence of above said PW, one thing is clear that the prosecution remained
unsuccessful to prove the motive part of the incident.
15. Since we have already believed the evidence of prosecution qua the culpability of
appellant as discussed above, so, we hold that the prosecution has successfully proved its
case against him beyond reasonable doubt and the learned trial Court has rightly convicted
him under sections 302(b)/324/337-A(i)/337-F(i)/337-F(ii), P.P.C. and sentenced him
accordingly.
16. However, as far as death sentence awarded to appellant is concerned, we find an
extenuating circumstance in his favour. As we have observed that motive has not been
proved by the prosecution against the appellant and the law is settled by now that if the
prosecution sets a specific motive, it is bound to prove the same and if it does not prove,
same reacts against the sentence of death of the appellant/accused. In this regard, we are
guided by the dictum laid down in various judgments by the august Supreme Court of
Pakistan. In this regard reliance is placed on the judgment passed by the august Supreme
Court of Pakistan in case reported as "Haq Nawaz v. The State" (2018 SCMR 21), in which it
has been observed as under;-
"After hearing the learned counsel for the parties and going through the record we
have observed that the High Court had categorically concluded that the motive set up
by the prosecution had not been proved by it. The law is settled by now that if the
prosecution asserts a motive but fails to prove the same then such failure on the part
of the prosecution may react against a sentence of death passed against a convict on
the charge of murder and a reference in this respect may be made to the cases of
Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v.
Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and
another (2012 SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR
782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias
Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu
and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas
and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar
and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR
148).
17. So, by treating this factor as mitigating circumstance in favour of appellant his
conviction under section 302(b), P.P.C. is maintained but his sentence of death is converted
into life imprisonment. The amount of compensation and sentence in its default as well as
other convictions and sentences awarded to the appellant under sections 324/ 337-A(i)/337-
F(i)/337-F(ii), P.P.C. shall remain intact. All the sentences shall run concurrently and benefit
of section 382-B, Cr.P.C. shall also be extended to him. With this modification in his
sentence, instant appeal to his extent is dismissed however, Murder Reference No.42 of 2017
is answered in NEGATIVE and his death sentence is NOT CONFIRMED.
JK/M-97/L Sentence altered.