IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI
CRIMINAL APPEAL NO. 398 OF 2020
Against the judgment dated 01.02.2018 passed by the Lahore
High Court, Rawalpindi Bench In Criminal Appeal No. 281/2015,
Criminal Revision No, 130/2015 & Murder Reference No.
36/2015)
Sajid Mehmood
Appellant(s)
VERSUS
The State
Respondent(s)
For the Appellant(s): 
Mr. Muhammad Ahsan Bhoon, ASC
Syed All lmran, ASC
Syed Rifaqat Hussain Shah, AOR
For the State: 
Mr. Ahmed Raza Gillani, Addl.P.G.
Date of Hearing: 31.05.2022
JUDGMENT
SAYVED MAZAHAR ALl AKBAR NAQVI I J.- Appellant Sajid Mehmood along
with three co-accused was tried by the learned Sessions Judge, Jhelum in
terms of the case registered vide FIR No. 13 dated 16.01.2014 under
Sections 302/34 PPC at Police Station Civil Line, District Jhelum, for
committing murder of Azeem Ahmed, brother of the complainant. The
learned Trial Court vide its judgment dated 23.06.2015 while acquitting
the co-accused, convicted appellant Sajid Mehmood under Section 302(b)
PPC and sentenced him to death. He was also directed to pay
compensation amounting to Rs.500,000/- to the legal heirs of the
deceased. In case of non-payment of the compensation, the same was
ordered to be recovered as arrears of land revenue and the appellant was
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to suffer SI for six months. In appeal the learned High Court while
maintaining the conviction of the appellant under Section 302(b) PPC,
altered the sentence of death into imprisonment for life. The amount of
compensation and the mode of recovery thereof was maintained. Benefit
of Section 382-B Cr.P.C. was also extended to the appellant. Being
aggrieved by the impugned judgment, the appellant filed Jail Petition No.
160/2018 wherein leave was granted by this Court on 02.06.2020 and the
present appeal has arisen out of the same.
2.
The prosecution story as given in the impugned judgment
reads as under:-
"2. The brief facts of the case as unfolded in the FIR, recorded
on the statement of Jameel Hussain, complainant (PW-10) are that
on 16.012014, he (complainant) alongwith his father Karamat
Hussain, PW and his brother Zameer Ahmad was present outside
the gate of his house for participating in Milad Sharif in the
mosque, when at about 8.30 p.m. Azeem Ahmed, deceased
(brother of complainant) came there on his white coloured cultus
car bearing registration No. LW/9991 from city side. Azeern Ahrnad
(deceased) parked his car in front of his house and as soon as he
alighted from his car, accused persons namely Sajid Mehmood
alias Saja, Aurangzeb alias Ranga, Abdul Samad all armed with the
pistol 30 bore respectively also arrived thereon white colour car
being driven by Shahid alias Sando, the accused Aurangzeb alias
Rangha raised a lalkara and consequently Sajid Mehrnood alias
Saja made a straight fire shot of his pistol targeting left thigh of
Azeem Ahmad. On receipt of this pistol's fire Azeem Ahmad fell
down on the ground and succumbed to his injuries on the spot and
accused persons on their car vanished from the place of
occurrence. The occurrence was witnessed by complainant,
Zameer Hussain (PW-1) and Karamat Hussain (since given up).
The motive behind the occurrence was that on the previous
night of the occurrence, the accused persons had got set on fire
the Haveli of the complainant party and falsely involved Junaid and
others in the occurrence; the respectable of the locality had
patched up that matter between the complainant party and Junaid
and others; due to this grudge, the accused committed the murder
of complainant's brother. Hence, the crime report."
3.
After completion of the investigation, report under Section
173 Cr,P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced 13 witnesses. In his statement recorded under
 Section 342 Cr.P.0 the appellant pleaded his innocence and refuted all the
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allegations leveled against him. However, he did not make his statement
on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled
against him. He also did not produce any evidence in his defence.
4. Learned counsel for the appellant contended that it was an
un-witnessed occurrence and the whole prosecution case is concocted
one. Contends that even there are glaring contradictions and dishonest
improvements in the statements of the eye-witnesses, which have
escaped the notice of the learned courts below. Contends that the
complainant was brother of the deceased, therefore, his testimony cannot
be believed to sustain the conviction of the appellant. Contends that there
is conflict between medical and ocular account. Contends that the
postmortem examination was conducted after two hours of the
occurrence and in such a short span of time, the rigor mortis could not
develop as such contradicted time of occurrence. Contends that according
to prosecution witnesses, the dead body of the deceased was brought to
the hospital in car whereas according to Dr. Saeed Anwar (PW-7), the dead
body was brought by Rescue 1122, which speaks volumes on the conduct
of the prosecution witnesses. Contends that although Zameer Hussain
(PW-11) was mentioned as witness in the FIR but the Police did not record
his statement under Section 161 Cr.P.C., therefore, the said witness could
not be examined to corroborate the solitary evidence of other eye-witness
i.e. the complainant.
S. On the other hand, learned Law Officer has defended the
impugned judgment by contending that the judgment of the learned High
Court is well reasoned, based on correct principles of law and has
examined the evidence in its true perspective, therefore, the same does
not call for any interference by this Court.
6. We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
The ocular account in this case has been furnished by Ch.
Jameel Hussain, complainant (PW-10) and Zameer Hussain (PW-11). These
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prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the appellant or adverse to the
prosecution could be produced on record. Both these PWs remained
consistent on each and every material point inasmuch as they made
deposition exactly according to the circumstances happened in this case,
therefore, it can safely be concluded that the ocular account furnished by
the prosecution is reliable, straightforward and confidence inspiring. The
medical evidence available on the record corroborates the ocular account
so far as the nature, time and impact of the injury on the person of the
deceased is concerned. So far as the argument of learned counsel for the
appellant that the medical evidence contradicts the ocular version is
concerned, we may observe that where ocular evidence is found
trustworthy and confidence inspiring, the same is given preference over
medical evidence. It is settled that casual discrepancies and conflicts
appearing in medical evidence and the ocular version are quite possible
for variety of reasons. During turmoil when live shots are being fired,
witnesses in a momentary glance make only tentative assessment of
points where such fire shots appeared to have landed and it becomes
highly improbable to mention their location with exactitude As far as the
question that the complainant was brother of the deceased, therefore ) his
testimony cannot be believed to sustain conviction of the appellant is
concerned, it is by now a well established principle of law that mere
relationship of the prosecution witnesses with the deceased cannot be a
ground to discard the testimony of such witnesses unless previous enmity
or ill will is established on the record to falsely implicate the accused in the
case. Both these PWs were inmates of the house, in front of which
occurrence took place, therefore, their presence was natural and the same
is fully established from the record. Learned counsel for the appellant
could not point out any reason as to why the complainant has falsely
involved the appellant in the present case and let off the real culprit, who
has committed murder of his real brother. Substitution in such like cases is
a rare phenomenon. The complainant would not prefer to spare the real
culprit who murdered his brother and falsely involve the appellant without
any rhyme and reason. During the course of proceedings, the learned
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counsel contended that there are material discrepancies and
contradictions in the statements of the eye-witnesses but on our specific
query he could not point out any major contradiction, which could shatter
the case of the prosecution. While appreciating the evidence, the court
must not attach undue importance to minor discrepancies and such minor
discrepancies which do not shake the salient features of the prosecution
case should be ignored. The accused cannot claim premium of such minor
discrepancies. If importance be given to such insignificant inconsistencies
then there would hardly be any conviction.
7. It was one of the arguments of learned counsel for the
appellant that although Zameer Hussain (PW-11) was mentioned as
witness in the FIR but his statement under Section 161 Cr.P.C. was not
recorded, therefore, his testimony cannot be relied upon to sustain
conviction of the appellant. However, we do not tend to agree with the
learned counsel. To arrive at a just conclusion, the courts can call any
person likely to be acquainted with the facts of the case after ascertaining
it from the Public Prosecutor or the complainant, subject to general
provisions that summoning of any such witness does not cause delay or
defeat the ends of justice. Section 265-F(2) of the Code of Criminal
Procedure empowers the Courts to summon a person, after having been
ascertained from the Public Prosecutor or the complainant, who is likely to
be acquainted with the facts of the case and to be able to give evidence
for the prosecution. Section 265(7) grants even to the accused a right to
apply for summoning any witness and production of documents. The very
purpose of Section 265-F is to ensure the concept of a fair trial and to
achieve this purpose equal opportunity has been given to both the
accused and the prosecution for summoning the evidence. There is
nowhere mentioned in this Section that only those witnesses could be
examined whose statements under Section 161 CrP.C. have been
recorded. Under this provision of law i.e. Section 265-F the Trial Court is
not bound to record the statements of only those witnesses who have
been listed in the calendar of witnesses. On the other hand, Section 540
r.P.C. empowers the Trial Court to summon a material witness even if his
CRIMINAL APPEAL NQ.3930F2020 
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name did not appear in the column of witnesses provided his evidence is
deemed essential for the just and proper decision of the case. In the
present case, although the statement of Zameer Hussain (PW-11) under
Section 161 Cr.P.C. could not be recorded by the Police yet the fact
remains that he was named as an eyewitness in the very FIR and was fully
acquainted with the facts and circumstances of the case. It would be
advantageous to reproduce Section 540, Cr.P.C., which is as follows:-
"540. Power to summon material witness, or examine persons
present. Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness, or
examine any person in attendance, though not summoned as a
witness, or recall and re-examine any person already examined;
and the Court shall summon and examine or recall and re-
examine any such person if his evidence appears to it to be
essential to the just decision of the case".
3. This section is divisible in two parts. In the first part,
discretion is given to the Court and enables it at any stage of an inquiry,
trial or other proceedings under the Code, (a) to summon anyone as a
witness, or (b) to examine any person present in the Court, or (c) to recall
and re-examine any person whose evidence had already been recorded.
On the other hand, the second part appears to be mandatory and requires
the Court to take any of the steps mentioned above if the new evidence
appears to it essential to the just decision of the case. The object of the
provision, as a whole, is to do justice not only from the point of view of the
accused and the prosecution but also justice from the point of view of the
society. The Court examines evidence under this section neither to help
the prosecution nor to help the accused. It is done neither to fill up any
gaps in the prosecution evidence nor to give it any unfair advantage
against the accused. Fundamental thing to be seen is whether the Court
considers this evidence necessary in the facts and circumstances of the
particular case before it. If this results in only "filling of lacuna" that is
purely a subsidiary factor and cannot be taken into consideration. There is
no bar that a witness, whose statement under Section 161 Cr.P.C. had not
been recorded at the time of investigation, cannot be allowed to examine
under Section 540 Cr.P.C. When a witness examined in Court, whose
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statement has not been recorded at the time of investigation under
Section 161, Cr.P.C., the evidentiary value to be attached to the evidence
of such witness has to be looked into and if it is found that prejudice has
been caused to the accused then the evidence of such witness may or may
not be acted upon. Therefore, the argument of the learned counsel for the
appellant is misconceived.
9. In Abid Ali Vs. The State (2011 SCMR 208), this Court has
held that to believe or disbelieve a witness, all depends upon intrinsic
value of the statement made by him. There cannot be universal principle
that in every case, interested witnesses should be disbelieved or
disinterested witnesses be believed. It all depends upon the rule of
prudence and reasonableness to hold that a particular witness was
present on scene of crime and that he is making true statement. Person
who is reported otherwise to be very honest, aboveboard and very
respectable in society, if gives a statement which is illogical and
unbelievable, no prudent man despite his nobility would accept such
statement. As a rule of criminal jurisprudence, prosecution evidence is not
tested on the basis of quantity but quality of evidence. It is not that who is
giving evidence and making statement. What is relevant is what statement
has been given and it is not the person but the statement of that person
which is to be seen and adjudged. In Niaz-ud-Din Vs. The State (2011 SCMR
725), it was held that conviction in a murder case can be based on the
testimony of a single witness, if court is satisfied that he is reliable and it is
the quality of evidence and not the quantity which matters. The same was
the view of this Court in Asim Vs. The State (2005 SCMR 417), Lal Khan Vs.
The State (2006 SCMR 1846) and Muhammad Sadig Vs. The State (2022
SCMR 690). In this view of the matter, even if the testimony of Zameer
Hussain is discarded, the evidence of complainant is sufficient to sustain
conviction of the appellant.
10, So far as recovery of crime weapon is concerned, after his
arrest on 26.01.2014, the appellant got recovered .30 bore pistol and the
same was sent to Forensic Science Laboratory on 04.02.2012. The one
crime empty had already been sent to office of Forensic Science
CRIMINAL APPEAL NO.398 0F2020 
n
Laboratory on 27.01.2012. According to the report, the empty was found
fired from the pistol got recovered from the appellant. Although, the
Police sent the crime empty after ten days of the occurrence to the FSL
and the same should have been sent without unnecessary delay after
being collected from the spot but this laziness would not render the
recovery inconsequential. It was argued by the learned counsel that
according to prosecution witnesses, the dead body of the deceased was
brought to the hospital in car whereas according to Dr. Saeed Anwar (PW-
7), the dead body was brought by Rescue 1122, However, this could not
help the appellant simply for the reason that the document, which shows
that the deceased was taken to hospital by Rescue 1122, is inadmissible in
evidence as neither the author of the said document nor anyone on his
behalf appeared before the Trial Court to verify the same. The said
document, which is available at page 196 of the paper book, was also not
brought on the judicial record. Even otherwise, the learned Trial Court has
very rightly dealt with this issue and observed that during cross-
examination, the doctor tried to give concession to the accused persons
and stated that the dead body was brought by Rescue 1122 but in his re-
examination he admitted that in documents there was no mention that
the dead body was brought by Rescue 1122. The learned High Court has
disbelieved the motive part of the prosecution story by observing that the
complainant is neither the eyewitness of the incident of burning of haveb
nor was present in the meeting where compromise was effected.
According to him, his brother Shakeel had informed him but the said
Shakeel was not examined during the trial in order to prove the motive
part of the prosecution story. We find no reason to differ with this finding
of the learned High Court. It was argued by the learned counsel that the
postmortem examination was conducted after two hours of the
occurrence and at that time rigor mortis had fully developed, which
according to him, shows that the deceased had died long ago before the
given time of incident. The phrase rigor mortis is latin with rigor meaning
stiffness and mortis meaning death. Rigor mortis is a temporary condition.
Depending on body temperature and other conditions, rigor mortis lasts
proximately for 72 hours. The phenomenon is caused by the skeletal
4, 
1
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muscles partially contracting. The muscles are unable to relax, so the joints
become fixed in place. Factors that affect rigor mortis include (i)
temperature/weather, (ii) physical exertion, (iii) age, (iv) body fat, (v) any
illness the person had at the time of death, (vi) sun exposure, (vii) gender,
(viii) body structure, (ix) genetics, (x) tribe & (xi) inhabitation. Admittedly,
the occurrence took place in the night of January and development of
rigor mortis in the cold days is not surprising. So far as the quantum of
punishment is concerned, the learned High Court while taking into
consideration the fact that the motive part of the prosecution story is not
proved; there was no blood feud between the parties; what actually
preceded just before the occurrence remained shrouded in mystery;
appellant only fired single shot and co-accused of the appellant have been
acquitted by the learned Trial Court, has rightly taken a lenient view and
converted the sentence of death into imprisonment for life. No further
leniency can be shown to the appellant. The impugned judgment is well
reasoned, proceeds on correct principles of law on the subject and does
not call for interference by this Court.
11. For what has been discussed above, we do not find any merit
in this appeal, which is dismissed. The above are the detailed reasons of
our short order of even date.
Islamabad. the
31't of May, 2022
Approved For Reporting
I A .1.11 till'