IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ ULAHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAQVI
JAIL PETITION NO. 557 OF 2016 AND
CRIMINAL PETITION NOs. 1391-I & 1392-I OF 2016
Against the judgment dated 03.10.2016 passed by the Lahore High Court,
Lahore in Criminal Appeal No. 1638/2013, Criminal Appeal No. 1724/2013
and Murder Reference No. 400/2013)
Muhammad Bashir 
(In JP 557/2016)
Muhammad Essa (complainant) 
(In Cr.Ps 1391-1 & 1392-1J2016)
...Petitioner(s)
VERSUS
The State etc
Muhammad Bashir etc
Saeed Ahmed etc
For the Petitioner(s):
For the Complainant:
*%A Pt
For the State:
Date of Hearing:
(In JP 55712016)
(In Cr.P. 1391-L/2016)
(In Cr.P. 1392-1/2016)
Respondent(s)
Mr. Muhammad Var Khan Daha, ASC
(In JP 557/2016)
Malik Matee UlIah, ASC
(In Cr.Ps 1391-1 & 1392-1/2016)
(Via video link from Lahore)
Mr. Ahmed Raza Gillani, Addl. P.G.
3 1. 10.2022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI, J.- Petitioner Muhammad Bashir
along with two co-accused was tried by the learned Additional Sessions
Judge, Arifwala in a private complaint under Sections 302/34 PPC for
committing murder of Muhammad Amin, brother of the complainant. The
same was instituted being dissatisfied with the investigation conducted by
the Police in case FIR No. 487 dated 2309.2010 registered under Sections
302/34 PPC at Police Station Saddar Arifwala, District Pakpattan Sharif. The
learned Trial Court vide its judgment dated 23.11.2013 convicted the
petitioner and co-accused Saeed Ahmed under Section 302(b) PPC and
JAIL PETITION NO. 557 OF 2016 AND 
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CRIMINAL PETITION NOs, 1391-L & 1392-L OF 2016
while sentencing the petitioner to death, awarded punishment of
imprisonment for life to co-accused Saeed. They were also directed to pay
compensation amounting to Rs.200,000/- each or in default whereof to
further undergo SI for six months. However, the learned Trial Court
acquitted co-accused Abdul Hameed. In appeal the learned High Court
while maintaining the conviction of the petitioner/convict under Section
302(b) PPC, altered the sentence of death into imprisonment for life. The
amount of compensation and the sentence in default whereof was
maintained. Benefit of Section 382-B Cr.P.C. was also extended to the
petitioner/convict. However, the learned High Court acquitted co-accused
Saeed Ahmed. Being aggrieved by the impugned judgment, the
petitioner/convict filed Jail Petition No. 557/2016 whereas the
complainant has filed Criminal Petition Nos. 1391-L & 1392-L/2016 before
this Court against acquittal of co-accused Saeed Ahmed and for
enhancement of the sentence of the petitioner/convict from
imprisonment for life to death.
2. 
The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
"2. Unnecessary detailed apart, brief facts, as unfurled from the
private complaint are that on 23.9.2010 at about Sam, Muhammad Amin
(deceased) proceeded on motorcycle to Chak No. 87/EB in order to meet
one Hassan Bhatti; when he reached near the land of one Ghulam Rasool
accused persons Muhammad Basheer, Saeed Ahmed and Abdul Hameed,
all armed with pistols 30 bore came there. On hue and cry of Muhammad
Esa complainant, Manzoor Ahmed and Muhammad Sharif PWs, who
were watering the field near the place of occurrence attracted at the spot
and saw the occurrence. Abdul Flameed accused raised lalkara that they
would teach a lesson to Muhammad Amin for not giving 'Rishta' of his
niece to Muhammad Basheer. Muhammad Basheer fired with his pistol
30 bore, which hit on the right side of head above the right ear of
Muhammad Amin. Saeed Ahmed accused fired with his pistol 30 bore
which hit below the right ear on the head of Muhammad Amin, who after
receiving the fire shot fell down and succumbed to the injuries at the
spot. The accused persons fled away from the spot alongwith their
respective weapons.
Alleged motive behind the occurrence was that about six months
prior to the occurrence, Muhammad Bashir accused for himself
demanded Rishta of niece of Muhammad Amin deceased; Muhammad
 Amin refused that Rishta to Muhammad Bashir who felt insult and due to
JALPETITION NO. 557 OF 2016 AND 
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CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
that grievance he alongwith his co-accused persons committed the
murder of Muhammad Amin.
3.
The conviction of the petitioner was recorded in a private
complaint. The complainant produced cursory evidence whereafter the
formal charge was framed against the petitioner and co-accused on
10.05.2011 under Sections 302/34 PPC to which they pleaded not guilty
and claimed trial. In order to prove its case the prosecution produced four
PWs and thirteen CWs. In his statement recorded under Section 342
Cr.P.C, the petitioner pleaded his innocence and refuted all the allegations
leveled against him. He did not make his statement on oath under Section
340(2) Cr.P.0 in disproof of allegations leveled against him. However, he
produced some documentary evidence in his defence.
4.
Learned counsel for the petitioner/convict contended that
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 prosecution case is based on
whims and surmises and it has to prove its case without any shadow of
doubt but it has miserably failed to do so. Contends that during
investigation, the Investigating Officer AD Sher (CW-12) had found the
petitioner not involved in the case and had declared him innocent.
Contends that the medical evidence contradicts the ocular account.
Contends that the prosecution has not been able to prove motive as
alleged, which causes serious dent in the prosecution case. Contends that
the recovery of weapon of offence in presence of a negative FSL report is
inconsequential. Contends that on the same set of evidence, the learned
High Court has acquitted co-accused Saeed Ahmed ,who was ascribed the
similar role but the petitioner has been convicted without there being any
justification. Lastly contends that the reasons given by the learned High
Court to sustain conviction of the petitioner are speculative and artificial in
nature, therefore, the impugned judgment may be set at naught.
5.
On the other hand, learned Law Officer assisted by learned
 counsel for the complainant submitted that to sustain conviction of an
JAIL PETITION NO. 557 OF 2016 AND 
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CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
accused on a capital charge, un-rebutted ocular evidence alone is
sufficient. Contends that the ocular account is supported by the medical
evidence, therefore, the petitioner/convict does not deserve any leniency
by this Court, rather his sentence of imprisonment for life may be
enhanced to death. So far as the acquittal of co-accused Saeed Ahmed is
concerned, learned counsel for the complainant argued that the learned
High Court erred in law while extending benefit of doubt although the
same was not available keeping in view the solid, sound and cogent
evidence adduced by the prosecution.
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.
Undeniably, this occurrence has taken place at 05.00 am. in
the morning whereas the matter was reported to the police at 09:15 am.
on the same day while the inter se distance between the place of
occurrence and the Police Station is six miles. This aspect of the case
clearly reflects that the matter was reported to Police without any
inordinate delay. As the occurrence has taken place in the broad daylight
and it is not denied anywhere that the parties were not known to each
other, therefore, there is no chance of misidentification. The ocular
account in this case has been furnished by Muhammad Essa, complainant
(PW-1) and Manzoor Ahmed (PW-2). These prosecution witnesses were
subjected to lengthy cross-examination by the defence but nothing
favourable to the petitioner/convict 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. Both these witnesses have
reasonably explained their presence at the place of occurrence by stating
that they were watering the fields at the distance of one kanal and saw
that Bashir Ahmed petitioner made fire shot with his pistol, which hit on
JAIL PETITION NO. 557 OF 2016 AND 
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CRIMINAL PETITION l'4Os. 1391-L& 1392-L OF 2016
the right side of head of the deceased. The medical evidence available on
the record corroborates the ocular account so far as the nature, time,
locale and impact of the injury on the person of the deceased is
concerned Learned counsel for the petitioner had argued that in site plan
the distance between the deceased and the petitioner has been
mentioned as five feet but there was blackening around the wound which
suggests that the fire was made from a distance of less than three feet and
the same contradicts the ocular version. However, this argument is of no
help to the petitioner because there are various factors which affect
blackening e.g. surface of target i.e. wet or dry and the body structure of
the victim and the quality of gun powder. Probably, the accused would
have extended his arm to shot fire at the deceased. The normal length of
the arm of an average man is more than two feet. With this if we add the
length of the weapon i.e. .30 bore pistol, the distance between the
accused and the deceased remains less than three feet. The deceased was
not a static object and he could have changed his position at the time of
occurrence. Even otherwise it is settled law that where ocular evidence is
found trustworthy and confidence inspiring, the same is given preference
over medical evidence. Casual discrepancies and conflicts appearing in
medical evidence and the ocular version are quite possible for variety of
reasons. During occurrence when live shots are being fired, witnesses in a
momentary glance make only tentative assessment of the distance
between the deceased and the assailant and the points where such fire
shots appeared to have landed and it becomes highly improbable to
mention the distance correctly and the location of the fire shots with
exactitude. As far as the question that the witnesses of the ocular account
are related to the deceased, therefore, their testimonies cannot be
believed to sustain conviction of the petitioner/convict 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. Learned counsel for the
petitioner/convict could not point out any reason as to why the
complainant has falsely involved the petitioner/convict in the present case
JAIL PETITION NO. 557 OF 2016 AND 
—: 6
CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
and let off the real culprit. Such reasoning does not appeal to reason.
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 petitioner without any rhyme and reason. During the
course of proceedings, the learned 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. It is a well
settled proposition of law that as long as the material aspects of the
evidence have a ring of truth, courts should ignore minor discrepancies in
the evidence. The test is whether the evidence of a witness inspires
confidence. If an omission or discrepancy goes to the root of the matter,
the defence can take advantage of the same. While appreciating the
evidence of a witness, the approach must be whether the evidence read as
a whole appears to have a ring of truth. Minor discrepancies on trivial
matters not affecting the material considerations of the prosecution case
ought not to prompt the courts to reject evidence in its entirety. Such
minor discrepancies which do not shake the salient features of the
prosecution case should be ignored. It was argued by learned counsel for
the petitioner that during initial investigation, the Investigating Officer,
who appeared as CW-12 had found the petitioner not involved in the
crime. However, this argument is also of no avail to the petitioner simply
for the reason that All Sher (CW-12) was an ASI and under the law, he was
not authorized to investigate the murder case falling within the ambit of
Section 302 PPC. Even otherwise, the statement of the said AS! shows that
his finding was based on hearsay evidence and the same was not
concurred by the subsequent Investigating Officer, who took the charge
later on i.e. Qazi Abdul Basit, Inspector/SHO (CW-13). The said Qazi Abdul
Basit, SHO categorically stated that he investigated the case under the
supervision of SE', Regional Investigation Branch and found the petitioner
involved in the case. His finding was verified by Regional Investigation
Branch. The learned High Court has rightly disbelieved the motive by
holding that a specific motive had been attributed towards the petitioner
JAIL PETITION NO. 557012016 AND 
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CRIMINAL PETITION NOs, 1391-L & 1392-L OF 2016
that he wanted the hand of niece of Muhammad Amin and on refusal he
took his life. However, name and parentage of niece of Muhammad Amin
deceased whose hand had allegedly been demanded by the petitioner has
not been introduced in the investigation as well as before the trial court.
No evidence could also be placed on record to prove the motive. So far as
the recovery of weapon of offence i.e. .30 bore pistol is concerned, the
same is inconsequential in presence of negative report of Punjab Forensic
Science Agency. However, even if motive and recovery is discarded, there
is sufficient evidence available to sustain the conviction of the
petitioner/convict. So far as the quantum of punishment is concerned,
keeping in view the fact that recovery is inconsequential and motive has
not been proved, the learned High 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 petitioner.
7. While adjudicating Criminal Petition Nos, 1391-L & 1392-
L/2016 relating to the finding of High Court whereby co-accused of the
petitioner namely Saeed Ahmed was acquitted of the charge while
extending benefit of doubt, it is suffice to point out that the name of the
said Saeed Ahmed was not mentioned in the crime report. However, his
name was brought in through a private complaint, which was lodged after
lapse of three months wherein his name was mentioned for the first time.
The statement of the prosecution witness namely Manzoor Ahmed
recorded on 23.09.2010 under Section 161 Cr,P.C. also does not disclose
the name of the said co-accused. The learned High Court while
adjudicating the matter and taking into consideration all the material
placed on the record gave a finding of acquittal in favour of Saeed Ahmed,
which seems to us to be well reasoned and the same does not invite any
interference on judicial premises. The crux of the argument that there was
a confessional statement on the part of all the co-accused is of no avail as
the same was made jointly, which has no legal sanctity. Even otherwise,
the same is inadmissible in evidence, hence, the order of acquittal is
justified based upon sound judicial reasoning. As far as the question of
enhancement of sentence awarded to petitioner Muhammad Bashir is
JAIL PETITION NO. 557 OF 2016 AND 
-:
CRIMINAL PETITION NOs. 1391-L& 1392-L OF 2016
concerned, the learned High Court has already taken note of it and passed
an appropriate order while converting the sentence of death into
imprisonment for life, which seems to be meeting all requirements of
principles enunciated by this Court for the safe administration of criminal
justice.
8. For what has been discussed above, we do not find any merit
in these petitions, which are dismissed and leave to appeal is refused.
Islamabad. the
31st of October, 2022
Approved For Reporting
Il.iuiitpiI