1998 P.CR - LJ 216

1998 P Cr about:reader?url=http%3A%2F%2Fwww.pakistanlawsite.com%2Flog...
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1998 P Cr
36–46 minutes
1998 P Cr. L J 216
[Lahore]
Before Dr. Khalid Ranjha, J
LIAQAT ALI and another---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No. 102 of 1994, heard on 3rd July, 1997.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 4(1)(1) & 156---Investigation---Collection of evidence---

Phrase "collection of evidence" used in the definition of
investigation cannot be confined to such evidence which favours
only the prosecution.
(b) Criminal Procedure Code (V of 1898)---
----S. 156---Constitution of Pakistan (1973),

Art.10----Investigation---Version of accused to be recorded---
Investigating Officer is bound to record the version of the accused
in every case if presented---Failure of police to record the
accused's version or the evidence sought to be adduced by him
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amounts to frustrating the Constitutional guarantee set out in Art.

10 of the Constitution.
Moti Lal's case AIR 1954 Raj. 241 and Qasim's case 1995 MLD
749 ref.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 27---Accused's version immediately after the occurrence is

relevant-- Statement of accused immediately after the occurrence
is a relevant fact within the meaning of Art.27 of Qanun-
e-Shahadat, 1984 and can be brought on record as an admissible
fact.
(d) Penal Code (XLV of 1860)---
----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.27---Criminal

Procedure Code (V of 1898), S.375---First version of accused can
be brought on record-- First version of the accused of whatever
nature can be brought on record through cross-examination by
putting the same to the Investigating Officer.
Ghulam Hussain v. The State PLD 1974 Kar. 91; Hasil v. Emperor
AIR 1942 Lah. 37 and AIR 1935 PC 36 ref.
(e) Penal Code (XLV of 1860)---
----S. 302/34---Grave and sudden provocation---Plea of---

Availability---Where a person comes on the scene after the
incident of beating was over, plea of grave and sudden
provocation cannot be made available to him as an act to wreak
vengeance is different from an act under grave and sudden
provocation.
Sohavi's case 1969 SCMR 375; Muhammad Idris's case 1974

SCMR 339 and Ali Zaman's case 1988 SCMR 1474 ref.
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(f) Penal Code (XLV of 1860)---
----S. 302/34---Appreciation of evidence---Killing of deceased had

not taken place in a scenario of grave and sudden provocation---
One accused had not challenged his participation in the
occurrence, rather he had justified the same and no corroboration
qua him was needed---Three crime empties had matched with the
gun recovered from the other accused and his participation in the
occurrence was vividly spelt out in the incriminating suggestions
put by defence counsel as his first version---Ocular testimony in
respect of the role assigned to both the accused for having fired
and killed the deceased with common concert was also
corroborated by medical evidence---Conviction and sentence of
accused were upheld in circumstances.
Hasil v. Emperor AIR 1942 Lah. 37; Muhammad Yaqoob v. The

State PLD 1969 Lah. 548; Moti Lal's case AIR 1954 Raj. 241;
Qasim's case 1995 MLD 749; Ghulam Hussain v. The State PLD
1974 Kar. 91; AIR 1935 PC 36; Sohavi's case 1969 SCMR 375;
Muhammad Idris's case 1974 SCMR 339; Ali Zaman's case 1988
SCMR 1474 and Sher Ali Khan v. The State 1985 PCr.LJ 349 ref.
(g) Penal Code (XLV of 1860)---
----S. 302/34---Appreciation of evidence---Suggestion made by

accused-- Effect---Suggestion given on behalf of accused and
accepted by the prosecution witness tantamounts to proof of the
facts suggested. -[Evidence].
Sher Ali Khan v. The State 1985 PCr.LJ 349 ref.
(h) Penal Code (XLV of 1860)---
----S. 302/34---Sentence, enhancement of---Motive for the
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occurrence having been shrouded in mystery, sentence of

imprisonment for life awarded to accused did not merit
enhancement. ---[Motive---Sentence].
Sardar Latif Khan Khosa for Appellants.
R.A. Awan for the Complainant.
Ghulam Hussain Malik for the State.
Dates of hearing: 1st and 3rd July, 1997.
JUDGMENT
Liaquat Ali and Muhammad Akram, appellants, were found guilty

under section 302/34, P.P.C. by the learned Additional Sessions
Judge, Sheikhupura vide judgment, dated 27-2-1994 and
sentenced to imprisonment for life and to pay a fine of Rs.25,000
each or one year's R.I. in default. They were also directed to pay
Rs.20,000 each as compensation to the heirs of the deceased
under section 544-A, Cr.P.C. Niamat Ali, co-accused, however,
was acquitted by the same judgment Liaquat Ali and Niamat Ali
are brothers inter se and Muhammad Akram is brother-in-law of
Liaquat. .
2. While appellants seek to challenge their conviction and

sentence, complainant is agitating against acquittal of Niamat Ali
as well as awarding of lesser sentence to the appellants by the
trial Court. Both the appeal and criminal revision are, therefore,
being taken up together.
3. Muhammad Siddique lodged a report with Ferozewala Police

Station on 19-5-1990 that his niece Mst. Hanifan Bibi was married
to Nazir Hussain son of Haji Nawab and lived at Sheikhupura. His
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nephew Farman being a college-going student lived with her as

well. Haji Nawab had given 28 acres of land to Niamat acquitted
co-accused and had also his tractor to him on instalments. The
said land was being cultivated by both the brothers namely Niamat
Ali and Liaquat Ali. On the asking of Haji Nawab, Farman (P.W.5)
had come down to his village, Mubarikpura to collect both lease
money and tractor instalment from Niamat Ali at his house. At that
time Liaquat and his brother-in-law, Muhammad Akram were also
present there. Niamat Ali started abusing Farman as to who was
he asked for the money he owed to Haji Nawab. Farman also
abused back, whereat Niamat, Liaquat and Muhammad Akram
started beating him. On hearing the alarm, Muhammad Shaft
(uncle) and Qurban Ali brother of Farman Ali came to the house of
Niamat Ali and got him released. Muhammad Shaft told them that
it was strange that on one hand they were not paying lease money
and the tractor instalment and the other hand they were out to fight
on the demand being made and dared them that he would see to it
how they withheld the payment of lease money as well as the
tractor instalment. Having said this, Muhammad Shaft came to his
house alongwith his nephews Farman Ali and Qurban Ali. At about
3-30 p.m., however, when the first informant, his brother
Muhammad Shaft, Muhammad Inayat and Farman Ali were
present in their Haveli putting fodder to the cattle, they heard the
cries of Bachao Bachao raised by his brother Murad Ali. They
came out to the Haveli and saw Niamat Ali, Liaquat and
Muhammad Akram armed with .12 bore guns and they were
beating up Murad .Ali with butts of their guns and were saying that
they will not spare Muhammad Shaft and Muhammad Inayat and
will teach them a lesson for asking for payment of lease money
and the tractor instalment on behalf of Haji Nawab. Muhammad
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Shaft moved forward to rescue Murad Ali whereupon Niamat Ali

fired with his gun hitting Muhammad Shaft on his chest towards
the left side. The first informant, his brother Muhammad Shaft,
nephew Qurban Ali and Inayat ran in order to enter the Haveli of
Muhammad Shaft and when the latter was about to close the door,
Liaquat fired with his gun hitting Muhammad Shaft on the "Pat"
(explained latter that the word in the F.I.R. was "Pait" or not Pat.
The pellets also hit on the door of the Haveli. Muhammad Akram
fired with his gun hitting Muhammad Shafi on his chin towards the
left side near the collar bone. Muhammad Shaft fell down in the
Deorhi of the Haveli and expired. Niamat Ali, Liaquat Ali and
Muhammad Akram fled away towards their houses while firing.
Muhammad Siddique leaving the dead body of Muhammad Shaft
in the care of Inayat left to inform the police. It was on the basis of
this statement of Muhammad Siddique that F. I. R. Exh.P.C./1 was
reduced into writing.
4. In the course of investigation, the Investigating Officer recovered

five crime empties (Exh.P.3/1-5) from the spot and took the same
into possession vide memo. Exh.P.E. on 19-5-1990. Liaquat Ali led
to the recovery of his gun P.4 which was taken into possession
vide memo. Exh.P.F. and Muhammad Akram led to the recovery of
his gun P.5 and took into possession vide memo. Exh.P.C. also on
12-6-1990. According to the report of technical services Exh.P.N.,
three of the crime empties loaded with gun P.5 of Muhammad
Akram and after the completion of the investigation, all the three
accused/ appellants were sent up for trial. They were charged for
murderous assault on Murad Ali and also for committing the
murder of Muhammad Shaft.
5. The prosecution case before the trial Court rested mainly on the
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ocular account furnished by Muhammad Siddique (P.W.4), Farman

Ali (P.W.5) and Qurban Ali (P.W.6). They supported the version of
the F.I.R. and Farman Ali also explained that in the initial fight
between him and Niamat Ali he had given Danda blow on the head
of Niamat Ali, accused. As the doctors were not able for
deposition, Syed Sajjad Hussain (P.W.7) proved both post-mortem
report of Muhammad Shafi, deceased, and the medico-legal report
of Murad Ali. According to the post-mortem report Exh.P.H.,
Muhammad Shafi had received the following injuries on his
person:--
(1) A fire-arm wound of entry 1.5 c.m. x 1.5 c.m. at left side of chin
making an exit wound 2 c.m. x 2 c.m. on right scapular region 7
c.m. from mid line.
(2) A fire-arm wound of entry 1.5 c.m. x 1.5 c.m. on front of left
chest mid clavicular region.
(3) Two fire-arm wounds of entry each 1.5 c.m. x 1.5 c.m. in area 6
c.m. x 2 c.m. on front of left chest mid part.
(4) A fire-arm wound of entry 1.5 c.m. x 1.5 c.m. on front of right
side of abdomen upper part.
Four pellets removed from under the skin of back of chest. Visceral
injuries discussed elsewhere.
(5) An abrasion with blackened base 1.5 c.m. x c.m. on front of

right shoulder joint.
According to the post-mortem examination/report injuries Nos.1 to

4 individually were sufficient to cause death in the ordinary course
of nature.
Whereas according to medico-legal report Exh.P.1 Murad Ali P.W.
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had suffered following injuries an his person:--
(1) Contusion 7 c.m. x 4 c.m. at left lumber region back and outer
aspect.
(2) Contusion at back of left fore-arm lower part 2 c.m. x 2 c.m.
(3) Contusion at back of left wrist 2 c.m. x 1 c.m.
(4) Contusion at right top of shoulder 4 c.m. x 3 c.m.
(5) Contusion at right buttock 7 c.m. x 4 c.m.
(6) Contusion at back of left thigh upper part 6 c.m. x 4 c.m.
Injury No.3 was kept under observation for X-Ray while rest of the
injuries were declared as simple. All the same were caused by
blunt means.
6. The steps taken in the course of investigation were deposed by

Ghulam Asghar (P.W.10) S.-I. and Ghulam Rasool, Inspector,
C.I.A. (P.W.11). The first version of Liaquat Ali and Muhammad
Akram, accused as put to P.W.11 and admitted by him was to the
effect that the story about the recovery of lease money and tractor
instalment was incorrect. In fact, the fight had initiated over a
quarrel with the children and in that process Qurban, Farman,
Muhammad Shafi etc. had caused injuries to Niamat Ali. As a
result of which he had become unconscious. Thereafter, his son
Zubair Mehmood ran to the house of his maternal-uncle Akram
and paternal-uncle Liaquat Ali and informed them that Muhammad
Shafi had killed his father. Hearing this, Muhammad Akram etc.
came- there armed with guns and started firing and that
Muhammad Shafi etc. also fired and that Muhammad Shafi
expired after having been injured as a result of fire-shot.
7. At the close of the prosecution case, Niamat Ali P.W. denied
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participation in the occurrence in the following terms:--
"As a matter of fact there was no dispute about the payment of

lease money or about the payment of instalments of the tractor.
The complainant or the deceased had no concern with that
amount. The occurrence was the result of quarrel between the
children of our party and the complainant. I was attacked by the
deceased, Qurban and others when I was present inside the
Haveli situated in the village and was given beating .by Sotas. I
started bleeding and fell unconscious. I was empty-handed. I did
not cause any injury to any one. I was medically examined. I also
produced my medico-legal report before the police. The P. Ws.
have falsely deposed against me on account of their enmity with
us and on account of their relationship with the deceased."
Liaquat Ali, on the other hand, taken the plea of self-defence to the
exclusion of both Muhammad Akram and Niamat Ali. In his
statement under section 342, Cr.P.C. the stance taken by him is
reproduced as follows:--
"As a matter of fact there was no dispute about the payment of the
instalments of tractor. The complainant or the deceased had no
concern with that amount. The occurrence was the result of
quarrel between the children of our party and those of the
complainant. My brother Niamat Ali was attacked by the deceased,
Qurban and others when he was present inside the Haveli situated
in the village and was given beating by Sotas Niamat Ali started
bleeding and hue and cry was raised. We received an information
that my brother Niamat Ali had died as a result of attack by the
opposite-party. On receiving this information I armed with a gun
came to rescue my brother. The complainant party also attacked
me. Muhammad Shafi, deceased, resorted to firing. His other
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companions who were also armed with fire-arms started firing. I in

exercise of right of my self-defence and in defence of my brother
also fired. During the course of firing Muhammad Shafi, deceased,
also received injuries, most probably at the hands of his own party-
men. Had I not acted in exercise of my right of self-defence and in
defence of my brother Niamat Ali, he and I might have bin killed at
the hands of the complainant party. Actually the complainant was
the aggressor and it is they who had initiated the aggression. We
had also taken this plea before the Investigating Officer during the
investigation which was found correct. The P.Ws. have falsely
deposed against us on account of their enmity with us and
relationship with the deceased."
The statement was also adopted by Muhammad Akram, appellant.
8. Dr. Fayyaz Ahmed Butt, Medical Officer, appeared as D.W.1. He

deposed about the injuries on the person of Niamat Ali and
described them as ows:--
(1) A lacerated wound 2 c.m. x 3 c.m. skin deep on frontal region

of head towards left side.
(2) An abrasion 1 c.m. x 1 c.m. in the mid line on lower part of

back of chest.
(3) Swelling 6 c.m. x 4 c.m. on lower part of right side of back of

chest.
(4) Swelling 6 c.m. x 6 c.m. on right ankle joint (front side)

extending up to dorsal part of right foot.
According to him when he examined the patient he was not

unconscious and had come walking on his own legs without any
support. In ultimate analysis all the injuries were simple.
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9. Learned counsel for the appellants argued that the prosecution

had failed to prove the motive set up by it. Haji Nawab was the
best person to depose in this behalf. He neither appeared before
the police nor before the Court. Haji Nawab had son also. None of
them has appeared either to explain the circumstances related to,
land holding leasing out of the same to Niamat Ali etc. and sale of
the tractor and collection of the lease and sale proceeds. He
submitted that there being no medical report qua Farman Ali, the
story that he was beaten up in the house of Niamat is also open to
doubt. He relied heavily on the fact that the trial Court has also not
relied on the motive part of the story of the prosecution and in this
behalf referred to para. 33 of the judgment of the trial Court. He
insisted that the prosecution having failed to prove the motive set
up by it, would react on the entire prosecution case and render the
Court to treat the testimony of witnesses with caution. According to
the learned defence counsel, the trial Court has disbelieved the
witnesses in respect of the murderous assault on Murad Ali as all
the accused have been acquitted of the charge under section
307/34, P.P.C. Similarly, the prosecution evidence has not carried
conviction with the trial Court either in the matter of participation of
Niamat Ali, accused in the main occurrence. The trial Court while
expressing doubts about participation of Niamat Ali has observed
in para. 34 of the judgment as 'i~ follows:--
"Since Niamat Ali accused had been injured prior to the main
occurrence and since no recovery seems to have been effected
from him and since injuries on the person of the deceased from
their very nature do not appear to be of three shots and could be
easily the result of two fire shots, therefore, it can be said that the
prosecution has been unable to prove beyond reasonable doubt
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that Niamat Ali accused had actually tired at Shafi deceased or

that he had the common intention with the co accused. He
maintains that there is nothing exceptionable about the above
finding of acquittal in respect of Niamat Ali and this renders the
whole prosecution case doubtful and the defence version of acting
in self-defence presented through Liaquat's statement under
section 342, Cr.P.C. merits to be accepted. Moreso, as the
accused had raised their plea that the very outset of the
investigation and their stance was consistent throughout. This fact
would also lend credence to their plea before the trial Court.
According to him, P.W.4 Muhammad Siddique was a person of
criminal propensities. The story regarding the motive set up by him
had been rightly disbelieved. He had made improvement: to render
his testimony consistent with the medical evidence. He has duly
conceded that the accused/appellants had set up their plea at the
very outset before the police and the same had been reduced' into
writing by P.W.11 as their first version. First informant P. W.4 had
not explained the injuries on the person of Niamat Ali and that the
explanation for injuries of Niamat Ali furnished by P. Ws.5 and 6
was belated. He canvassed that the testimony of P.Ws. should not
be accepted and there was no corroboration on the file worth the
name to warrant acceptance of the testimony of the eye-
witnesses. According to him, the defence version was more
plausible and consistent with the injuries of Niamat Ali which had
been suppressed by the prosecution and that it was Liaquat Ali
alone who had acted in self-defence and caused injuries to
Muhammad Shafi, deceased. In the alternative, he submitted that
Liaquat Ali, accused, when informed that his brother Niamat Ali
had been killed and on seeing his bleeding and unconscious, he
was bound to have lost control of himself and his action of
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shooting Muhammad Shafi amounted to act under grave and

sudden provocation punishable at the maximum by sentence up to
seven years. "
10. The learned counsel for the complainant argued that the
finding of the learned trial Court regarding giving benefit of doubt
to Niamat Ali was a laboured exercise. He was named in the F.I.R.
He had a cause, and fired at the deceased in his chest and the
part assigned to him was duly corroborated by the post-mortem
report. The finding of his acquittal was not sustainable. The
accused had launched murderous assault on the deceased to
wreak vengeance. As per their own showing they are at least
Liaquat had come after hearing about the injuries caused to
Niamat and it was thereafter, that incident of firing had taken place
resulting in death of Muhammad Shafi. In the circumstances the
accused had committed wilful murder and were thus liable to be
awarded normal sentence of death. It was further argued that the
accused/appellants had not taken the plea of grave and sudden
provocation nor the same was spelt out from the attending
circumstances of the case. The plea taken was essentially of right
of self-defence and that too to the extent of Liaquat Ali, appellant.
Neither of the pleas taken up by the defence, although, mutually
exclusive was relatable to the admitted circumstances of the case.
11. According to him, whereas Liaqat, accused, admits his

presence, the participation of Akram is established beyond doubt
from the matching of the three empties with the gun recovered
from him and also from the suggestions put by the defence and
admitted by P.W.11. The learned counsel further submitted that the
accused cannot be allowed to make much capital out their first
version as the same was belated and possibility of its being a
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counselled plea could not be ruled out and it was not totally
consistent with their statements under section 342, Cr.P.C. He
submitted that the version of an accused scald not be brought on
the file through suggestions made in this behalf to the Investigating
Officer. Particularly where the version of the accused is in a nature
of plea of self-defence or of grave and sudden provocation if but
the Investigating Officer would be rendered inadmissible ac it
would amount to eliciting confessional statement of an accused
recorded by an Investigating Officer. Such an assertion could only
be proved by the accused like any other fact through the process
of primary evidence, be it statement on oath of the accused
himself under section 340(2), Cr.P.C. or through his defence
witnesses. Statement of the Police Officer narrating as to what was
said to him by an accused was inadmissible and the Court could
not take the same into account.
12. As far as the admissibility of first version of the accused is

concerned it is difficult to ascribe to the views of the learned
counsel of the complainant. It has been a consistent view of this
Court that the prosecution should itself bring out the same, rather
than concealing it. In Hasil v. Emperor AIR 1942 Lah. 37, the
defence wished to bring a copy of statement made by Hasil to the
police on record during the Sessions trial to highlight that the
occurrence was sudden and unpremeditated in order to earn him
lesser penalty. The learned Sessions Judge refused this request,
on the ground that this statement amounted to confession made to
the Police Officer and was, therefore, inadmissible in evidence.
The learned Sessions Judge while holding so relied on section 25
of the Evidence Act (Article 38 of Qanun-e-Shahadat) which lays
down that no confession made to the Police Officer shall be proved
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as against a person accused of any offence. It was ruled in appeal

that the above prohibition applied to confession sought to be
proved as against the accused but could not apply to such
statement on which the accused himself wished to rely in
connection either with his conviction or his sentence. It was also
held that in cases where two versions of the same incident were
being put forward it was of a greatest importance for an accused to
be able to show that his own explanation was put forward at the
earliest possible opportunity. In this case at the appeal stage,
Court permitted the counsel for the defence to go through the
statement made by Hasil to the police. Hasil-appellant in this case,
had stated before the police that he killed the deceased because
he had seen him and his wife sitting and talking together. The
Court held that it was the duty of the prosecution to bring out any
evidence which may assist in arriving at a correct decision and
such a statement of the accused should have been brought out in
the Sessions trial as a relevant fact. On the basis of this statement,
the Court converted death sentence into life treating the
occurrence as sudden and unpremeditated. This view was
reiterated in Muhammad Yaqoob v. The State PLD 1969 Lah. 548.
This Court at the appellate stage summoned the Investigating
Officer to verify the counter-version which the appellant had taken
during the investigation.
13. The word "investigation" has been defined in section 4(1),

Cr.P.C., to include all the proceedings under the Code for
collection of evidence conducted by a Police Officer. Obviously, the
phrase "collection of evidence" cannot be confined to such
evidence which favours only the prosecution. Section 160, Cr.P.C.
while spelling out the powers of Police Officer to require
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attendance of witnesses in the course of investigation does not

make any distinction either between the witnesses in favour of the
prosecution and the defence. Under section 161, Cr.P.C. a Police
Officer conducting investigation can examine any person
supposed to be acquainted with facts and circumstances of the
case, orally or reduce the same into writing. Hereto no distinction
is drawn between the statement in favour or against the accused.
Similarly, sections 161 and 163, Cr.P.C. also refer to statements
made to Police Officer in the course of investigation, in general
terms, both for and against an accused. In short the law does not
make any distinction in the matter of recording of statements made
in favour of the accused or the prosecution in the course of
investigation. A Police Officer as a public functionary is expected
to act fairly, honestly and without bias to either party. The law
disfavours his arbitrary exclusion of evidence produced before him
in favour of the accused.
14. The interest of an accused is also adequately safeguarded by

.the Constitution of Islamic Republic of Pakistan, 1973. Article 10
of the Constitution renders it fundamental right of an accused
person to be informed as soon as may be after his arrest, the
grounds for such arrest and to consult and be defended by a legal
practitioner of his choice. The Courts have always jealously
protected this right of the accused. In Moti Lal's case AIR 1954
Raj. 241 it was observed that a person arrested has a right to
consult legal practitioner of his choice from the moment of his
arrest and also to have purposeful interview with him out of the
hearing of the police or jail staff, though it may be within their
presence. If the police were not to record the version of the
accused or evidence sought to be adduced by him, it would
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amount to frustrating the Constitution guarantee set out in Article

10 of the Constitution. Duty is cast upon an Investigating Officer to
record the version of the accused in every case if presented. He is
not supposed to just become a tool in the hands of the
complainant. As a public servant he is called upon to investigate
the case strictly on merits with utmost neutrality. In a case where
there is a counter-version of an incident and if the same is put
before him at the earliest stage, it should be duly recorded as the
Courts have always given it due weight in the light of the attending
circumstances. A note of caution on the same vein was duly given
in Qasim's case 1995 MLD 749.
15. It may also be added that the statement of an accused person

immediately after the occurrence is in away relevant fact within the
meaning of Article 27 of Qanun-e-Shahadat and as such there can
be no legal bar in bringing it on record as an admissible fact. In a
Karachi case, Ghulam Hussain v. The State PED 1974 Kar. 91 the
appellant while retracting from his judicial confession wanted to
show that the same was word for word reproduction of the
statement made before the police and he wanted to highlight this
fact by cross- examining the Police Officer in order to discredit his
judicial confession. The learned trial Court did not permit this,
holding that the statements by the accused before the police was
not admissible. Mr. Justice Dorab Patel following Hasil's case
observed that the appellants' statement in the police diary was not
in any way hit by section 162 of Cr.P.C. It was further observed
that section 375, Cr.P.C. conferred extraordinary power on the
Court to enable it to do justice and while exercising this power
Court would not in any manner be tramelled by section 162,
Cr.P.C. Similarly it was held that section 145 6f Evidence Act
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(Article 160 of Qanun-e- Shahadat), casts a duty of the Courts to

lo justice and in discharging this obligation, the Courts' power is
not to be effected by restraints of section 162, Cr.P.C. Dorab Patcl,
J., maintained -clying on Privy Council AIR 1935 P.C. 36 that
version of the accused could tot be shut out from being received in
evidence, could spell out the fact that his udicial confession was
verbatim reproduction of the earlier confessional statement
recorded by the police to establish that the latter confession was
inconsequential.
I, therefore, hold that the first version of the accused of whatever

nature can be brought on record through cross-examination by
putting the same to the Investigating Officer. It would certainly be,
a safer course in dispensation of complete justice in an adversary
system.
17. The learned trial Court has given cogent reasons for not
accepting the motive set up by the prosecution and has rightly
extended the benefit of doubt to Niamat Ali, accused. The reasons
given are as follows:--
"It is nobody's case that Niamat Ali accused was injured during the
main occurrence. However, the motive incident as described by
the prosecution does not inspire confidence. If Farman Ali P.W.
had been given beating in the house of Niamat Ali, accused, he
should have been injured but admittedly he did not get himself
medically examined. Furthermore, if Farman Ali had been abused
and had given beating by the accused, it was the complainant
party which also could have the motive because it were they who
had been actually insulted. The fact remains that the actual
incident which had taken place before the main occurrence is
shrouded in mystery and the prosecution has been unable to
18 of 24 12/7/2023, 10:32 AM
prove the motive in this case .....
Witnesses have stated that in order to save Murad Ali, P.W., Shafi
deceased moved forward whereupon Niamat Ali, accused, fired
with the gun .12 bore which hit Shaft deceased in his chest
towards the left side and that Shafi, deceased, Muhammad
Siddique,' Qurban and Muhammad Inayat P.Ws. who were empty-
handed ran towards the Haveli to save themselves. The question
arises as to why Shaft deceased had not fallen down after being
hit in the chest at the hands of Niamat Ali, accused and as to how
did he manage to run to the door of the Haveli in order to save
himself. The prosecution has not shown any trail of blood as well
between the two points i.e: where Shafi deceased was hit in the
chest and the door of the Haveli. Admittedly no weapon of offence
was recovered from Niamat Ali, accused. Admittedly Niamat Ali
accused had been injured prior to the main occurrence and it is
nobody's case that he was injured during the main occurrence.
According to D.W.1 Dr. Fayyaz Ahmed Butt who had medically
examined Niamat Ali accused on 21-5-1990 at 4-30 p.m. and there
were four injuries on the person of Niamat Ali accused. The
learned defence counsel has pointed out that during the
investigation the presence of Niamat Ali accused at the time of
occurrence was not proved. However, as the opinion of police
arrived at during the investigation is not relevant, therefore, I am
not prepared to look to that aspect of the matter, although the
investigation is a circumstance which can be considered by the
Court. Since Niamat Ali accused had been injured prior to the main
occurrence and since no recovery appears to have been effected
from him and since the injuries on the person of the deceased
from their very nature do not appear to be of three shots and could
19 of 24 12/7/2023, 10:32 AM
be easily the result of two fire shots, therefore, it can be said that
the prosecution has been unable to prove beyond reasonable
doubt that Niamat Ali accused had actually fired at Shaft deceased
or that he had the common intention with the co-accused. "
The reasoning being well-founded, the revision petition filed by the

complainant to the extent of seeking his retrial would not be
warranted.
18. As far as the case of the appellants is concerned, the

testimony of the eye-witnesses certainly merit careful scrutiny.
Although there is no pre-existing rancour or animus between the
parties, yet the prosecution witnesses do not seem very candid
while narrating the back-drop of the incident relatable to and
leading to the fight between Farman Ali (P.W.5) and Niamat Ali,
acquitted accused. Likewise their testimony being doubtful in
respect of the involvement of Niamat Ali accused would put the
Curt on caution qua the other accused. On a synthesis of the
evidence of the prosecution and the accepted suggestions of the
defence, the following is the sequence of the events ---Niamat Ali,
accused, got injured at the hands of the complainant party---
thereafter, Murad Ali P.W. got injured allegedly by the accused
party---and in sequel thereto the incident entailing death of
Muhammad Shafi occurred, leaving fire marks on the plank of the
door of his "Deori".
19. The prosecution case in brief is that after Farman P.W. had
beaten Niaz Ali. All the accused caught hold of Murad Ali son of
the accused in front of the house of the deceased and started
beating him and when the deceased came forward to rescue him
they gunned him down while the witnesses took protection behind
door of the Deori which bore the fire shot marks.
20 of 24 12/7/2023, 10:32 AM
20. The defence version on the other hand is that after Niamat Ali
had been injured by the complainant party, his son took message
to the accused and Liaquat Ali alone armed with a gun came there
and resorted to firing to save himself and also Niamat Ali as,
according to him, at that time Muhammad Shafi deceased armed
with fire-arms had also started firing. Niamat Ali having been
injured in his own house and Liaquat have come after getting
information of the same and resorting to firing at Shafi in front of
his own house does not give him the right of self-defence or that of
his brother Niamat who had been left in an injured condition by the
complainant party. Resorting to firing resulting in death of
Muhammad Shaft was, thus, an act of retaliatory aggression on
the part of the accused.
21. Even when the defence version does not appeal to reason
would not mean that prosecution story be accepted outright. The
prosecution is not supposed to take advantage of snags in the
plea of the accused. Similarly if a specific plea taken up by the
accused fails, he does not become disentitled to the benefit of any
other exception or doubt emerging out the circumstances of the
case. However, in the attending circumstances of this case, it
would be difficult to hold that the accused might have acted in
under grave and sudden provocation on the pretext that on seeing
a brother injured and bleeding, one was bound to loose self-control
and react as sharply as the accused did in the case in hand.
22. A similar situation arose in Sohavi's case reported in 1969

SCMR 15 at page 375. The Honourable Federal Court of Pakistan
held that where a person came on the scene after incident of
beating was over, the plea of grave and sudden provocation could
not be made available to him as an act to wreak vengeance was
21 of 24 12/7/2023, 10:32 AM
different from an act under grave and sudden provocation. In the

case of Muhammad Idris 1974 SCMR 339, it was held that as an
accused himself had not seen the beating given to his uncle, he
could not plead grave and sudden provocation. Similarly in Ali
Zaman's case 1988 SCMR 1474, beating had been caused to
mother of the accused. This naturally infuriated and provoked him
and he resorted to firing resulting in the death of deceased. Here
also the Court had denied the benefit of grave and sudden
provocation.
Applying the dictum settled in the above-referred case, I hold that

killing of Muhammad Shafi did not take place in a scenario of
grave and sudden provocation.
23. Now I will take up the question whether both the appellants or
one of them is liable for the murder of Muhammad Shafi. Liaquat
Ali, appellant, maintains that he alone was responsible for the
occurrence and Muhammad Akram had not participated in the
firing: The prosecution, however, insists to the contrary. The P.Ws.
not having been relied qua the participation of Niamat Ali, one
would have look for corroboration of a nature which would satisfy a
judicial mind beyond reasonable doubt about the participation of
each of the accused: Regarding Liaquat Ali, of course, he does not
challenge his participation, rather-he justifies it. Therefore, no
corroboration is needed as fat as is concerned. However, as far as
Muhammad Akram is concerned, there is strong evidence of
recovery of three crime empties matching with the gun recovered
from him. This evidence has not been seriously challenged by the I
defence except for contending that since five empties were
recovered and only three matched with the gun of Akram, the
other two must be presumed to be those fired by the deceased.
22 of 24 12/7/2023, 10:32 AM
The fact that two empties did not match With the gun recovered
from Liaquat be-speak for the fact that the recovery of empties and
the guns were not foisted and there was no over-reaching by the
prosecution in this behalf.
24. Another fact which can be treated as a corroborative

circumstance is that the incriminating suggestions put forth by the
defence and accepted by P.W.11. The same read as follows
"The occurrence had taken place on account of quarrel relating to

the children and that at that time Niamat Ali was present in his
Haveli and when the quarrel between Qurban, Farman,
Muhammad Maalak and Muhammad Shafi etc. had taken place
and when Niamat Ali was injured at the hands of Muhammad Shaft
etc, and became unconscious, his son Zubair Mehmood ran to the
house of his maternal-uncle Akram and paternal-uncle Liaquat Ali
and informed them that Muhammad Shaf etc. had killed his father
whereupon Muhammad Akram etc. came there armed with guns
.12 bore and started firing and that Muhammad Shaft etc. also
fired and that Muhammad Shaft expired after having been injured
as a result of a fire-shot."
25. The participation of Muhammad Akram is vividly spelt out in

the above suggestions put by the learned counsel of Muhammad
Akram as first version of the accused. Where the suggestion given
on behalf of the accused is accepted by the witnesses the same
tantamounts to proof of the facts suggested. It was so laid down by
this Court in Sher Ali Khan v. The State 1985 PCr.LJ 349 Liaquat
Ali does not deny his participation and the aforesaid two factors
are adequate circumstances to corroborate the testimony of the
eye-witnesses in respect of the part assigned to both the
appellants for having fired and killed Muhammad Shaft with
23 of 24 12/7/2023, 10:32 AM
common concert. Needless to add that medical evidence

indicating more than one shot on the body of the deceased also
lends support to the participation of both the accused/appellants.
However, as the motive of the occurrence has been held to be
shrouded in mystery, their sentence does not merit enhancement.
Under these circumstances, it is held that the conviction and

sentence of the appellants is ordered to be maintained. Both the
criminal appeal as well as I the criminal revision fail and are
accordingly dismissed. The appellants are on bail. They be taken
into custody to serve out the remaining portion of sentence.
N.H.Q./L-21/L Appeal dismissed.
24 of 24 12/7/2023, 10:32 AM

1998 P.CR - LJ 216

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1998 P Cr about:reader?url=http%3A%2F%2Fwww.pakistanlawsite.com%2Flog...

1998 P Cr. L J 216

Before Dr. Khalid Ranjha, J

LIAQAT ALI and another---Appellants

Criminal Appeal No. 102 of 1994, heard on 3rd July, 1997.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 4(1)(1) & 156---Investigation---Collection of evidence---

(b) Criminal Procedure Code (V of 1898)---

----S. 156---Constitution of Pakistan (1973),

amounts to frustrating the Constitutional guarantee set out in Art.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 27---Accused's version immediately after the occurrence is

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

----S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.27---Criminal

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

----S. 302/34---Grave and sudden provocation---Plea of---

Sohavi's case 1969 SCMR 375; Muhammad Idris's case 1974

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

----S. 302/34---Appreciation of evidence---Killing of deceased had

Hasil v. Emperor AIR 1942 Lah. 37; Muhammad Yaqoob v. The

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

----S. 302/34---Appreciation of evidence---Suggestion made by

Sher Ali Khan v. The State 1985 PCr.LJ 349 ref.

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

----S. 302/34---Sentence, enhancement of---Motive for the

occurrence having been shrouded in mystery, sentence of

Sardar Latif Khan Khosa for Appellants.

R.A. Awan for the Complainant.

Ghulam Hussain Malik for the State.

Dates of hearing: 1st and 3rd July, 1997.

Liaquat Ali and Muhammad Akram, appellants, were found guilty

2. While appellants seek to challenge their conviction and

3. Muhammad Siddique lodged a report with Ferozewala Police

nephew Farman being a college-going student lived with her as

Shaft moved forward to rescue Murad Ali whereupon Niamat Ali

4. In the course of investigation, the Investigating Officer recovered

ocular account furnished by Muhammad Siddique (P.W.4), Farman

(5) An abrasion with blackened base 1.5 c.m. x c.m. on front of

According to the post-mortem examination/report injuries Nos.1 to

Whereas according to medico-legal report Exh.P.1 Murad Ali P.W.

had suffered following injuries an his person:--

(2) Contusion at back of left fore-arm lower part 2 c.m. x 2 c.m.

(3) Contusion at back of left wrist 2 c.m. x 1 c.m.

(4) Contusion at right top of shoulder 4 c.m. x 3 c.m.

(5) Contusion at right buttock 7 c.m. x 4 c.m.

(6) Contusion at back of left thigh upper part 6 c.m. x 4 c.m.

6. The steps taken in the course of investigation were deposed by

7. At the close of the prosecution case, Niamat Ali P.W. denied

participation in the occurrence in the following terms:--

"As a matter of fact there was no dispute about the payment of

companions who were also armed with fire-arms started firing. I in

The statement was also adopted by Muhammad Akram, appellant.

8. Dr. Fayyaz Ahmed Butt, Medical Officer, appeared as D.W.1. He

(1) A lacerated wound 2 c.m. x 3 c.m. skin deep on frontal region

(2) An abrasion 1 c.m. x 1 c.m. in the mid line on lower part of

(3) Swelling 6 c.m. x 4 c.m. on lower part of right side of back of

(4) Swelling 6 c.m. x 6 c.m. on right ankle joint (front side)

According to him when he examined the patient he was not

9. Learned counsel for the appellants argued that the prosecution

that Niamat Ali accused had actually tired at Shafi deceased or

shooting Muhammad Shafi amounted to act under grave and

11. According to him, whereas Liaqat, accused, admits his