I
IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MLJF4IB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAUVI
JAIL PETITION NO. 943 OF 2017
(On appeal against the judgment dated 18.102017
passed by the Lahore High Court, Lahore in
Criminal Appeal No. 442-J/2013 & Criminal PSL.A
No. 18/2014 & Murder Reference No. 15/2014)
Muhammad Ashraf @ Nikka
Petitioner
VERSUS
The State
Respondent
For the Petitioner: 
Mr. Aftab Hussain Bhatti, ASC
For the State: 
Mr. Muhammad Jaffer. DPG
Date of Hearing: 12.052022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI, J.- Petitioner along with seven
other co-accused was tried by the learned Additional Sessions Judge,
Jaranwala, pursuant to a private complaint under Sections
302/337F5/337F6/148/149 PPC arising out of FIR No. 397 dated
18.06,2009 under Sections 302/148/149 PPC at Police Station
Landyanwala, District Faisalabad for committing murder of Salamat Ali,
son of the complainant and for causing injury to Muhammad Latif, uncle of
the complainant. The learned Trial Court vide its judgment dated
30.11.2013 while acquitting the co-accused, convicted the petitioner
under Section 302(b) PPC and sentenced him to death. He was also
directed to pay compensation amounting to Rs. 100,000/- to the legal
heirs of the deceased or in default whereof to further undergo
imprisonment for six months. He was also convicted under Section
337F(vi) PPC and sentenced to rigorous imprisonment for five years with a
Jail Petition Mc. 94312017
direction to pay daman amounting to Rs.50,000/- In appeal, the learned
High Court while maintaining the conviction, altered the sentence of death
into imprisonment for life. The amount of compensation and the sentence
in default whereof was also maintained. Benefit of Section 382-B Cl
was also extended to him.
2. The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
"Niamat Ali complainant filed this private complaint against the
respondents Muhammad Ashraf alias Nikkah etc (eight in
numbers) u/s 302, 337F5, 33716, 148, 149 PPC alleging therein
that on 18.06.2009 at about 7:00 P.M (evening) in the area of
Chak No.655/6, the accused Ashraf son of Sardar armed with
hatchet, Muhammad lshfaq alias Sajjad, Muhammad Mujahid
alias Madu armed with hatchets, Abid alias Abi, Tariq alias Tan, Ali
Muhammad alias Imam Din, Arif Hussain, Muhammad Mushtaq all
armed with sotas with common intention to commit Qatl-e-Amd
of Salamat Ali son of Niamat All while ambushed sitting at the
chowk. Accusing Ali Ahmad raised lalkara while seeing Arif
Hussain son of the complainant that caught hold Arif and taught
him the lesson of the quarrel broke out 5/6 days ago.
Consequently accused Muhammad Ashraf inflicted hatchet blow
from its wrong side which hit Arif at his right arm and other
accused persons also beaten Ant. Basharat Ali came home crying
and told this fact to the complainant. The complainant along with
Salamat (deceased) went at the spot and tried to save Ant. The
accused Muhammad lshfaq inflicted hatchet blow which hit
Salamat at his back thereafter accused Abid alias Abi inflicted Sota
blow which hit Salamat at his head. Meanwhile, Muhammad Latif
uncle of the complainant came at the spot after hearing hue and
cry and tried to rescue Salamat Au. The accused Arif Hussain
inflicted Sota blow which hit at left arm of Muhammad Latif,
accused Muhammad Mushtaq inflicted Sota blow which hit on
right shoulder of Arif accused, Mujahid inflicted hatchet blow
which hit at the right hand of Ant, Muhammad Ashraf inflicted
hatchet blow which hit Salamat at his head, Muhammad Ishfaq
inflicted hatchet blow which hit at the head of Salamat
(deceased), afterwards accused Muhammad Ashraf assaulted
Muhammad Latif and hit on his right arm afterwards accused
persons continuously assaulted and deviously injured Salamat Ali,
Arif Hussain and Muhammad Latif. Muhammad Latif and Salamat
Ali became unconscious at the spot. Muhammad Asif and Asghar
AM rushed to the spot and attended the injured but Salamat Ali
succumbed to the injuries while taking him to the hospital for his
treatment and Arif Hussain and Muhammad Latif were taken to
Civil Hospital iaranwala.
2. 
Motive behind the occurrence is that 5/6 days before the
ccurrence there was quarrel between the children of the parties
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which was redressed afterwards but accused persons with this
grudge and with their common object committed murder of
Salamat All and injured the complainant party"
3.
The conviction of the petitioner was recorded in a private
complaint, which was lodged after eleven months of the occurrence. The
complainant produced cursory evidence whereafter the formal charge was
framed against the petitioner and the co-accused on 05.11.2010 under
Sections 302/337F5/337F6/148/149 PPC to which they pleaded not guilty
and claimed trial. In order to prove its case the prosecution produced as
many as five witnesses and six CWs. In his statement recorded under
Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted all
the 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.
At the very outset, learned counsel for the petitioner argued
that there are material contradictions and discrepancies in the prosecution
evidence, which have not been dealt with by the courts below. Contends
that the occurrence took place at the spur of the moment and there was
no premeditation on the part of the petitioner. Contends that during the
occurrence, the petitioner and the co-accused also sustained injuries,
which have been suppressed by the prosecution. Contends that the injury
ascribed to the petitioner on the head of the deceased was also ascribed
to two co-accused but they have been acquitted whereas the petitioner
has been sentenced to imprisonment for life. Contends that the
prosecution has to prove its case without any shadow of doubt but it has
miserably tailed to do so. Contends that the reasons given by the learned
High Court to sustain conviction of the petitioner are speculative and
artificial in nature and resulted into miscarriage of justice, therefore, the
impugned judgment may be set aside.
5.
On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the evidence led by the
osecution in the shape of ocular account duly supported by medical
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4
evidence is sufficient to sustain conviction of the petitioner. So far as the
argument that the petitioner had received injuries during the occurrence is
concerned, he contends that the petitioner did not place on record the
medico legal reports in support of their assertion, therefore, the same
cannot be taken into consideration.
6. 
We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
As per the prosecution story, the petitioner along with co-
accused was alleged to give hatchet blow on the head of the deceased
Salamat Ali, which proved fatal and the deceased succumbed to the injury
later on. However, we have noted that in the very private complaint
lodged by the complainant, the role of causing injury on the head of the
deceased was enhanced while ascribing it to three accused. The other two
co-accused namely Abid @ Aabi and Muhammad Ashfaq, who were
ascribed the similar role, have been acquitted of the charge by the learned
Trial Court, which judgment has been upheld by the learned High Court.
According to medical evidence furnished by Dr. Khalid Javed, who
appeared as CW-5, the deceased received only one injury on his head,
which was an incised wound 4 x 1 c on left side top of head 8.2 cm from
left ear 5 cm from mid skull line. The learned High Court did not discuss
this aspect of the matter in the impugned judgment at all. The perusal of
record also reveals that the occurrence took place all of a sudden; there
was no pre-meditation on the part of the petitioner's side and during the
occurrence the petitioner and co-accused Mujahid also received injuries at
the hands of the complainant party, which aspect has been suppressed.
Although, no medical report in this regard could be placed on record but
there is no denial to this fact that during investigation it was found that
the petitioner and the co-accused had received injuries during the
occurrence, therefore, the stance of the petitioner cannot be denied
merely for the reason that he did not place on record the medical
certificate. A careful analysis of this aspect of case reflects that it is
stablished principle of criminal jurisprudence that the defence is not
I
Jail Petition No. 943/2017 
5
under obligation to prove its version and the burden on it is not as heavy
as on the prosecution rather the defence is to only show the glimpse that
its version is true. This aspect lends support from the finding of the
Investigating Officer that during the occurrence the petitioner and his co-
accused had sustained injuries but due to one reason or the other they
could not establish the same by producing medico legal reports. The
possibility cannot be ruled out that it was because the petitioner was
nominated in murder case and according to learned counsel he was
arrested soon after the incident, the police officials had not let them to be
medically examined being in league with the complainant. This creates a
doubt in veracity of prosecution version, as such doubt in the prosecution
case can be resolved in favour of the petitioner because it is settled that
any doubt arising in the prosecution case is to be resolved in favour of the
defence. Even otherwise, we have noted that during the course of
investigation co-accused Muhammad Ashfaq, Muhammad Arif,
Muhammad Mushtaq, Tariq, Abid were not recommended for dial/an as
they were declared innocent by the Police. It seems the prosecution
exaggerated the contents of the private complaint and has made an
attempt to involve all the male members of the family. In these
circumstances, a dentin the prosecution case has been created, benefit of
which must be given to the petitioner. It is settled law that a single
circumstance creating reasonable doubt in a prudent mind about the guilt
of accused makes him entitled to its benefits, not as a matter of grace and
concession but as a matter of right. Any doubt arising in prosecution case
is to be resolved in favour of the accused and burden of proof is always on
prosecution to prove its case beyond reasonable shadow of doubt.
However, as discussed above, we have observed that the case advanced
by the prosecution is based upon facts not properly brought forth, rather
there are certain flaws in the narration of the same particularly manner of
occurrence, number of accused persons and suppression of facts, hence as
an abundant caution, we refrain to accept finding of both courts below
rather consider it a case of sudden affair, coupled with the fact, material
facts were suppressed, hence keeping in view the act of each individual,
& 
Jail Petition No. 943/2017
we consider that the case of the petitioner is covered by Section 302(c)
PPC. As he has already served out major portion of sentence which is more
than 15 years, hence it seems adequate to meet the ends of justice. As a
consequence, we convict the petitioner under Section 302(c) PPC and
sentence him to imprisonment for the period which he has already
undergone.
7. For what has been discussed above, this petition is
converted into appeal, partly allowed and the impugned judgment is
modified as stated in the preceding paragraph. The petitioner shall be
released from jail forthwith unless detained/required in any other case.
The above are the detailed reasons of our short order of even date.
Islamabad, the 
12th of May, 292
Approved For porting