2026 P Cr. L J 362

 2026 P Cr. L J 362

[Lahore (Multan Bench)]

Before Syed Shahbaz Ali Rizvi and Muhammad Jawad Zafar, JJ

MUHAMMAD RIAZ alias Baddi and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 748-J, 870 of 2019 and Murder Reference No. 46

of 2020, decided on 26th February, 2025.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of

evidence---Benefit of doubt---Preliminary investigation conducted

before the registration of FIR---Accused-appellant was charged that

he along with his co-accused committed murder of the son of

complainant by firing---Eye-witnesses besides were related to the

deceased and inter se were residents of the place, situated at a

distance of four kilometers from the place of occurrence hence,

their deposition required strict scrutiny---Though, as per

prosecution's case, the crime report was registered by the

complainant within two hours of the occurrence at 07.00 p.m.

through a written application yet the fact remained that during

cross-examination, complainant maintained that the police recorded

the statements of the witnesses before the FIR---Complainant

volunteered that she did not know about the investigation---Eye-

witness also endorsed that statement by stating that his statement

was recorded before the registration of FIR---Prima facie the

Investigation Officer held preliminary inquiry before registration of

the FIR that created doubt about the veracity of the contents as well

as timing of registration of crime report---Circumstances established

that the prosecution had failed to substantiate the charge against

the appellant beyond shadow of reasonable doubt---Appeal against

conviction was allowed, accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of

evidence---Benefit of doubt---Inordinate delay in conducting

postmortem examination upon the dead body of the deceased---

Accused-appellant was charged that he along with his co-accused

committed murder of the son of complainant by firing---Postmortem

examination on the dead body of deceased was conducted at 07.00

a.m. on 27.10.2016 though as per Medical Officer, the dead body was

received in the hospital at 09.30p.m. on 26.10.2016---Medical Officer conceded that he was on duty from 08.00p.m. on 26.10.2016 to 08.00

a.m., the next morning---Neither the said Medical Officer nor any of

the witnesses gave any explanation with regard to the delay in

conducting autopsy---According to relevant column in postmortem

examination report, the police papers were received in the hospital

at 03.00 a.m. i.e. with the delay of ten hours after the occurrence and

eight hours after the registration of case and no explanation in that

regard was available on record---If the FIR was registered at 07.00

p.m. on 26.10.2016 and the Investigation Officer after collection of

evidence at the spot dispatched the dead body received in the

hospital at 09.30 p.m. then why the police papers were sent at 03.00

a.m. on 27.10.2016---This was a question that also remained

unanswered---Circumstances established that the prosecution had

failed to substantiate the charge against the appellant beyond

shadow of reasonable doubt---Appeal against conviction was

allowed, accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of

evidence---Benefit of doubt---No reason for the availability of the

witnesses at the spot at the relevant time---Accused-appellant was

charged that he along with his co-accused committed murder of the

son of complainant by firing---According to prosecution's case, the

witnesses went to the town for grocery shopping which took about

seven hours---Complainant also stated, during her cross-

examination, that the grocery items were lying at the place of

occurrence when the Investigation Officer reached there but

admittedly, the grocery was never taken into possession and even

availability of the same at the spot was not mentioned in the site

inspection note as well as the marginal notes at scaled site plan---

Moreover, during cross-examination, complainant also stated that

she had no knowledge regarding the articles purchased by deceased-

--Said fact reflected that the reason for the availability of the

witnesses at the relevant time did not find support from any other

evidence/the record---Circumstances established that the

prosecution had failed to substantiate the charge against the

appellant beyond shadow of reasonable doubt---Appeal against

conviction was allowed, accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of

evidence---Benefit of doubt---Ocular account not supported by

medical evidence---Accused-appellant was charged that he along

with his co-accused committed murder of the son of complainant by

firing---Both the eye-witnesses, in their statements under Ss. 154 & 161 Cr.P.C, respectively and even in their examinations in chief

claimed that appellant made two fires with his rifle which hit on the

back of right shoulder and head of deceased---Similarly, the eye-

witnesses also claimed that two fire shots by co-accused hit on the

back of left shoulder and head of deceased but perusal of medical

evidence rendered by Medical Officer made it clear that the

deceased was not having any firearm injury on his head---Said

Medical Officer also affirmed the possibility of sustaining injuries

on head by the deceased by fall on the ground and he very clearly

mentioned that those injuries could be caused by any blunt weapon-

--According to site plan, the distance between appellant and the

deceased at the relevant time was 33 feet and similarly, between the

deceased and co-accused, was more than 34 feet but when going

through the description of two bullet entry wounds reflected in the

postmortem examination report as injuries Nos. 2 and 3, it became

clear that injury No.3 was having blackening around the inverted

margins that was not possible by a fire shot from the distance of 33

feet---According to statement of the complainant, she was at a

distance of 5/6 karams' from the deceased at the relevant time but

marginal point No.6 of the scaled site plan revealed that the distance

between the two was about 165 feet, about 30 'karams'---Being

inconsistent with the medical evidence, the complainant also stated

that the accused persons were standing close to the deceased at a

distance of less than one feet---Said fact also controverted the

distance given in the scaled site plan and the distance claimed by

the other eye-witness---Said discrepancies of the ocular account with

the medical evidence available on record made the same doubtful---

Circumstances established that the prosecution had failed to

substantiate the charge against the appellant beyond shadow of

reasonable doubt---Appeal against conviction was allowed,

accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of

evidence---Benefit of doubt---Recovery of weapon of offence and

crime empties---Inconsequential---Accused-appellant was charged

that he along with his co-accused committed murder of the son of

complainant by firing---Record showed that the crime empties and

blood stained earth were taken by the Investigation Officer on the

night of occurrence but admittedly, the blood stained earth was sent

to the Forensic Science Agency on 17.11.2016 while the crime

empties were sent to the said Agency on 09.12.2016---Appellant was

arrested on 14.12.2016---Prosecution was not equipped with any

justification with regard to the belated dispatch of crime empties to

Forensic Science Agency and the reason for not sending the same along with blood stained earth on 17.11.2016---It was notable that

the date of receiving crime empties was not given in the report of

Forensic Science Agency---Such aspects of the case in hand made the

credibility of report of the Forensic Science Agency doubtful---In

that view of the matter, alleged recovery of rifle along with two live

bullets and positive report of the Forensic Science Agency became

inconsequential to the prosecution case---Circumstances established

that the prosecution had failed to substantiate the charge against

the appellant beyond shadow of reasonable doubt---Appeal against

conviction was allowed, accordingly.

(f ) Criminal trial---

----Motive---Scope---Motive is always considered a double edged

weapon---Motive could be a reason to commit an offence, and the

same can also be a reason for false implication of an accused.

Rana Muhammad Nadeem Kanjoo for Appellant.

Waheed Rafique, Deputy District Public Prosecutor for the State.

Malik Nazar Hussain Ponta and Malik Ghulam Sarwar Langrial for

the Complainant.

Date of hearing: 26th February, 2025.

JUDGMENT

SYED SHAHBAZ ALI RIZVI, J.---Through this appeal (Crl. Appeal

No.748-J of 2019), appellant Muhammad Riaz alias Baddi impugns the

judgment dated 27.06.2019 passed by the learned Addl. Sessions Judge,

Shujabad in connection with case FIR No.534 dated 26.10.2016

registered for offence under Sections 302 and 34 P.P.C at Police Station

City Shujabad District Multan whereby, he was convicted under

Section 302(b) P.P.C as Ta zir . and sentenced to death for committing

the murder of Irshad alias Shada, deceased with the direction to pay

Rs.200,000/- as compensation to the legal heirs of deceased as

envisaged under Section 544-A of the Code of Criminal Procedure, 1898

and in default thereof, to undergo simple imprisonment for four

months. The learned trial court, however, through the same judgment,

acquitted Muhammad Aslam alias Punnun and Muhammad Abdullah

alias Dildar Hussain, co-accused while giving them the benefit of

doubt. Mst. Ameeran Mai, complainant also filed Crl. Appeal No.870 of

2019 against their acquittal whereas, the learned trial court also sent

Murder Reference No.46 of 2020 for confirmation or otherwise of

sentence of death inflicted upon Muhammad Riaz alias Baddi, convict.

All these matters are being decided with this single judgment. 2. The allegation against the appellant and his co-accused

Muhammad Abdullah alias Dildar Hussain alias Dila and Muhammad

Aslam alias Pannun (since acquitted) is that on 26.10.2016 at about

05.00 p.m, they while armed with firearms committed the murder of

Muhammad Irshad son of the complainant by firing at him. Motive

behind the occurrence, as disclosed by the complainant, was that

Muhammad Irshad, deceased contracted marriage with sister of the

appellant against the wishes of her family and due to this grudge, the

appellant along with his co-accused (since acquitted) committed this

occurrence.

3. After investigation, challan of this case was submitted to the

learned trial court where prosecution produced the witnesses,

fourteen in number, to substantiate the charge against the appellant.

Mst. Ameeran Mai, complainant and Imtiaz Hussain, the eye-witnesses

joined the proceedings as PW-1 and PW-7 while Altaf Hussain PW-2,

the third eye-witness after recording his examination in chief did not

appear for cross-examination and was given up by the learned

Prosecutor being unnecessary. Dr. Muhammad Aurangzeb (PW-8)

furnished the medical evidence. Irfan Hayat, draftsman (PW-3)

prepared scaled site plans (Exh-PF/A, Exh-PF-1/A, Exh-PF-2/A and Exh-

PF-3/A) of the place of occurrence. Ghulam Yasin (PW-6) is the witness

of recovery of crime weapon at the instance of appellant Muhammad

Riaz alias Baddi and his co-accused (since acquitted) while Zawar

Hussain, SI (PW-13) is the Investigation Officer of this case whereas,

rest of the witnesses are formal in nature.

4. The appellant, after the prosecution evidence rendered, in his

statement recorded under Section 342 of the Code of Criminal

Procedure, 1898 denied the allegation against him but he did not

prefer to produce any evidence in his defence and similarly, claiming

his innocence, did not appear as his own witness on oath under

Section 340(2) of the Code ibid.

5. Arguments heard. Record perused with the assistance of learned

counsel for the appellant, learned Prosecutor and the learned counsel

for the complainant.

6. It has straightaway been observed that Altaf Hussain (PW-2)

though initially got recorded his examination in chief but the

prosecution subsequently on 12.03.2019 gave up the said witness being

unnecessary and produced Mst. Ameeran Mai, complainant and Imtiaz

Hussain, the third eye-witness as PW-1 and PW-7, respectively. The

witnesses besides being related to the deceased and inter se are

residents of the place, per PW-7, situated at a distance of four

Kilometers from the place of occurrence hence, their deposition

requires a strict scrutiny. Though, as per prosecution s case, the crime report was got registered by the complainant within two hours of the

occurrence at 07.00 p.m. through a written application yet the fact also

remains that during cross-examination, Mst. Ameeran Mai,

complainant, at page 49 of the paper book, maintains that the police

recorded the statements of the PWs before the FIR. She also

volunteered that she did not know about the investigation. Imtiaz

Hussain also endorsed this statement by stating that his statement was

recorded before the registration of FIR. It prima facie reflects that the

Investigation Officer (PW-13) held preliminary inquiry before

registration of the FIR that creates doubt about the veracity of the

contents as well as timing of registration of crime report. It has also

been noticed that postmortem examination on the dead body of poor

deceased Muhammad Irshad was conducted at 07.00 a.m. on

27.10.2016 though as per Medical Officer, the dead body was received

in the hospital at 09.30 p.m. on 26.10.2016. The Medical Officer (PW-8)

also concedes that he was on duty from 08.00 p.m. on 26.10.2016 to

08.00 a.m, the next morning. Neither the said Medical Officer nor any

of the witnesses gave any explanation with regard to the delay in

conducting autopsy. It is also noticed that according to relevant

column in postmortem examination report (Exh-PL), the police papers

were received in the hospital at 03.00 a.m. i.e. with the delay of ten

hours after the occurrence and eight hours after the registration of

case and no explanation in this regard is available on record. If the FIR

was registered at 07.00 p.m. on 26.10.2016 and the Investigation

Officer after collection of evidence at the spot dispatched the dead

body received in the hospital at 09.30 p.m. then why the police papers

were sent at 03.00 a.m. on 27.10.2016 is a question that also remained

unanswered. Police Rules, 1934 Chapter 25 Rules 37 and 39 provide

actions to be taken by the police with regard to postmortem

examination and qua Form to accompany the dead body towards the

Medical Officer. For convenience and ready reference, Rules 37, (1),

(3), (4), (5) and Rule 39 Chapter 25 of the Rules ibid are reproduced

hereunder: -

25.37. Post-mortem examinations-action to be taken by police.---

When corpses are sent for medical examination the following

rules shall be observed:-

(1) The result of the investigating officer s examination of the body

shall be carefully recorded in form 25.39 (1). Clothing found on

the body, foreign matter adhering to it and any instrument likely

to have caused death remaining in a wound or on the body shall

be secured in the position in which found, if possible, or,

otherwise, shall be carefully packed separately, according to the

instructions contained in rule 25.41. (2) .....................................................................

(3) The body shall be placed on a charpoy or other light litter and

protected from the sum, flies and exposure to the weather. The

litter shall be transported to the place appointed for the holding

of post-mortem examinations by such means as the investigating

officer may consider most expedient in the circumstances of

weather, distance to be covered and conditions of the, body. If

necessary and expedient conveyance, including a motor vehicle,

may be hired to carry the corpse and those who are required to

accompany it as escort or witnesses.

(4) All police officers along the route are required to give immediate

assistance to expedite the transportation of dead bodies for

medical examination.

(5) Two police officers who have seen the dead body in the position

in which it was first found, and are competent to detect any

attempt at substitution or tampering with the body or its

coverings, shall accompany the body to the mortuary, and

remain in charge of it until examination is complete. If

necessary as additional guard shall be supplied by the Lines

officer to place a sentry on the mortuary, but the officer who

have accompanied the body from the spot shall hand it ever

personally to the medical officer conducting the post-mortem

examination together with all reports and articles sent by the

investigating officer to assist the examination and shall receive

and convey to the investigating officer the post-mortem report.

(6) .............................................................. (underlining is for emphasis)

Similarly, Chapter 25 Rule39 reads as under: -

25.39. Form to accompany body or injured person.

__When an

injured person or a body is sent so a medical officer, Form 25.39

shall, in addition to any other report prescribed, be prepared by

the carbon copying process and given to the police officer, in

duplicate, who accompanies the injured person or goes in

charge of the body. The form shall be prepared in English, if

possible.

Perusal of police rules reproduced supra and that of the forms

prescribed makes it clear that the police papers i.e. Form 25.35(1)(B)

and 25.39 along with other reports prescribed prepared and articles

collected by the Investigation Officer are to accompany the dead body

to be transported expeditiously to the Medical Officer for examination.

In particular Rule 39(5) mandates that the officer accompanying the

dead body shall personally deliver it to the Medical Officer along with all reports and articles sent by the Investigation Officer to assist the

examination. If it is not so done and even is not explained plausibly, it

surely renders doubt about the credibility of the police proceedings

conducted at the place of occurrence and also about the timing and

contents of the crime report. In case the requisite report/papers are

not delivered to the Medical Officer with the corpse and it is

subsequently provided that too with inordinate delay resulting into

belated autopsy, such delay is normally seen by the superior courts of

the country with suspicion and has repeatedly been held that it

ordinarily occurs in cases of un-witnessed incidents where police

during the intervening time remain busy in preliminary inquiry and

concoction of a prosecution story to be incorporated in police papers

as required in Rules 37(1) and 39 of Chapter 25 of the Police Rules,

1934.

7. We have also observed the evasive conduct of complainant during

her cross-examination which is evident from the following reproduced

parts of her statement: -

I cannot tell the intervening distance between my house and P.S.

City...I am illiterate due to which I cannot tell the exact time that

in my first statement regarding time of departure from our

house is correct or not...I cannot tell the detail of grocery items

either purchased by us or the Pws. I cannot tell exact time we

stayed in Shujabad city for the purpose of shopping...I cannot

tell whether Todarpur and Chhaju Shah are adjacent to each

other...I cannot tell the colour of the motor cycle which we used

to come Shujabad city...I cannot tell whether Pw Imtiaz and

Irshad deceased, ever came for shopping together. I cannot tell

exact figure of persons gathered soon after the occurrence...I

cannot tell whether the bullets penetrate into the skull of the

deceased or not...I do not know whether Altaf had enmity with

the accused persons or not...I cannot tell the exact time of post

mortem of deceased Irshad...I do not know that there is any

criminal case was against the accused Irshad deceased. It is not

in my knowledge that FIR No.100/04 under sections 320,

436/427/148/149 P.P.C P.S Khangarh, was registered against

Irshad deceased and others on the complaint of Muhammad

Bakhsh. It is not in my knowledge that FIR No.171/04 under

sections 302/148/149 P.P.C P.S Khangarh was registered against

deceased and others by Khadim Hussain. It is not in my

knowledge that FIR No.292/04 under section 13/20/65 A.O was

registered against deceased at P.S Khangarh. It is not in my

knowledge that FIR No.106/04 under sections 302/324/148/149

P.P.C was registered against the deceased by Hazoor Bakhsh at

P.S Khangarh. It is not in my knowledge that FIR No.133/04 under section 364 P.P.C was registered against the deceased at P.S

Khangarh by Shabbir Ahmad. It is not in my knowledge that FIR

No.307/03 under sections 392/459 P.P.C was registered against the

deceased at P.S Khangarh by Muhammad Akram. It is not in my

knowledge that FIR No.420/17 under sections 365-B/376/380 P.P.C

was registered against the deceased at P.S Khangarh. It is not in

my knowledge that FIR No.496/10 under section 395 P.P.C was

registered against the deceased at P.S Sadar Muzafargarh...I do

not know about the C.D.R of Abdullah, accused...I do not know

whether I.O made rough site plan on my pointation...I do not

know how my that son was murdered. It is also correct that I

was complainant of that murder case...I do not know regarding

the criminal cases registered against my deceased son...I do not

know that Altaf Pw purchased how many KHUL ...I had no

knowledge regarding the articles purchased by the deceased. I

purchased grocery items, however, I cannot tell the details of

said items...I do not remember whether I got mentioned in the

complaint that on which vehicle I reached at the police station. I

also did not remember whether I got mentioned in the

complaint that with whom I reached at the police station. I did

not remember the exact distance as I am illiterate...I do not

remember with whom I returned at the place of occurrence...I

do not know regarding my cell number...I do not remember

whether I joined investigation of this case or not...

The above reproduced excerpts from her statement reflect that she

being elusive is not an honest and fair witness.

Complainant (PW-1) when was questioned about the criminal

history of the deceased with reference to the detail of those cases, she

despite being the real mother expressed her lack of knowledge

regarding the same while PW-7 candidly affirms the previous criminal

history of the deceased. According to prosecution s case, the witnesses

went to the town for grocery shopping that they did for about seven

hours and PW-1 also stated, during her cross-examination, that the

grocery items were lying at the place of occurrence when the

Investigation Officer reached there but admittedly, the grocery was

never taken into possession and even availability of the same there is

not mentioned in the site inspection note as well as the marginal notes

at scaled site plan (Exh-PF). Moreover, during cross-examination, at

page 61 of the paper-book, complainant (PW-1) also stated that she had

no knowledge regarding the articles purchased by Irshad, deceased. It

reflects that the reason for the availability of the witnesses at the

relevant time does not find support from any other evidence/the

record. The statements of the two eye-witnesses besides being

inconsistent qua certain facts have also been disbelieved by the learned trial court to the extent of co-accused Muhammad Aslam alias

Punnun and Muhammad Abdullah alias Dildar Hussain (since

acquitted).

Both the eye-witnesses, in their statements under Sections 154 and

161 of the Code of Criminal Procedure, 1898, respectively and even in

their examinations in chief claimed that appellant Muhammad Riaz

alias Baddi made two fires with his rifle which hit on the back of right

shoulder and head of deceased Muhammad Irshad. Similarly, the eye-

witnesses also claimed that two fires shot by Dildar alias Dila hit on

the back of left shoulder and head of Muhammad Irshad, deceased but

perusal of medical evidence rendered by Dr. Muhammad Aurangzeb

(PW-8) made it clear that the deceased was not having any firearm

injury on his head. The said Medical Officer also affirmed the

possibility of sustaining injuries Nos.5 and 6 by the deceased by fall on

the ground and he very clearly mentioned that these injuries could be

caused by any blunt weapon. According to site plan (Exh-PF), the

distance between Muhammad Riaz alias Baddi, appellant and the

deceased at the relevant time was 33 feet and similarly, between the

deceased and Dildar alias Dila was more than 34 feet but when we go

through the description of two bullet entry wounds reflected in the

postmortem examination report as injuries Nos.2 and 3, it becomes

clear that injury No.3 was having blackening around the inverted

margins that is not possible by a fire shot from the distance of 33 feet.

According to statement of PW-1, the complainant, she was at a distance

of 5/6 Karams from the deceased at the relevant time but marginal

point No.6 of the scaled site plan (Exh-PF) reveals that the distance

between the two was about 165 feet, about 30 Karams . Being

inconsistent with the medical evidence, the complainant also stated

that the accused persons were standing close to the deceased at a

distance of less than one foot. It also controverts the distance given in

the scaled site plan (Exh-PF) and the distance claimed by the other eye-

witness (PW-7) . These discrepancies of the ocular account with the

medical evidence available on record make the same further doubtful.

8. So far as the recovery of rifle (P-14) at the instance of the appellant

and positive report of the Punjab Forensic Science Agency (Exh-PS) with

regard to wedding of the crime empty of rifle, we have noticed that

both, the crime empties and blood stained earth were taken by the

Investigation Officer (PW-13) on the night of occurrence but admittedly,

the blood stained earth was sent to the Punjab Forensic Science Agency

on 17.11.2016 while the crime empties were sent to the said Agency on

09.12.2016. The appellant was arrested on 14.12.2016. The prosecution is

not equipped with any justification with regard to the belated dispatch

of crime empties to Punjab Forensic Science Agency and the reason for

not sending the same along with blood stained earth on 17.11.2016. It has also been noticed that the date of receiving crime empties is not

given in the report of Punjab Forensic Science Agency (Exh-PS)

available at page 189 of the paper book. These aspects of the case in

hand make the credibility of report of the Punjab Forensic Science

Agency doubtful. In this view of the matter, alleged recovery of rifle (P-

12) along with two live bullets (P-13/1-2) and positive report of the

Punjab Forensic Science Agency (Exh-PS) become inconsequential to the

prosecution case.

9. With regard to the motive part of the occurrence, suffice to

observe that by now it is an established proposition of law that motive

is always considered a double edged weapon. If it can be a reason to

commit an offence, the same could also be a reason for false

implication of an accused.

Taking stock of the facts mentioned above, we are of the opinion

that the prosecution has failed to substantiate the charge against the

appellant beyond the shadow of a reasonable doubt and such situation

certainly requires his acquittal hence, Crl. Appeal No.748-J of 2019 is

allowed, conviction and sentence inflicted upon Muhammad Riaz alias

Baddi, appellant by the learned trial court is set aside and he is

acquitted of the charge levelled against him by extending him the

benefit of doubt. He is in custody, be released forthwith if not required

to be detained in any other case.

10. For what has been discussed above, Crl. Appeal No.870 of 2019

filed by complainant Mst. Ameeran Mai against the acquittal of

Muhammad Abdullah alias Dildar Hussain and Muhammad Aslam

alias Punnun is dismissed in limine.

11. Murder Reference No.46 of 2020 is answered in the NEGATIVE

and death sentence is NOT CONFIRMED.

JK/M-185/L Order accordingly.