IN THE SUPREME COURT OF PAKISTAN 
 
(Appellate Jurisdiction) 
 
 
PRESENT: 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J. 
MR. JUSTICE TARIQ PARVEZ 
MR. JUSTICE GHULAM RABBANI 
 
 
 
Criminal Appeal No.652 of 2009 
In Jail Petition No.127 of 2009 
(On appeal from the judgment dated 
19.01.2009 passed by the Lahore High 
Court, in Crl.Appeal No.590/2003) 
 
 
Khizar Hayat 
…..Appellant (s) 
Versus 
 
The State 
…. Respondent 
 
For the appellant(s):  
Mr. Aftab Ahmed Khan, ASC 
 
For the State: 
 
Mr. M. Irfan Malik, Addl. P.G. Pb. 
 
Date of hearing  
 
23.9.2010 
ORDER 
  
Iftikhar Muhammad Chaudhry, CJ. – This appeal, by leave of the 
Court, has been filed against the judgment dated 19.1.2009 passed by 
the Lahore High Court, Lahore, whereby Crl. Appeal No.590/2009 
filed by the appellant was dismissed.  
2. 
 
Precisely stating relevant facts of the case as per FIR 
556/2001 are that on 21.10.2001 Muhammad Arif (complainant) and 
Ghulam Ghous (deceased) were returning home after offering Maghrib 
prayer, when they reached at street No.15, suddenly Khizar Hayat 
(appellant) official of police department in uniform, armed with official 
Crl.A.652/09 
2 
gun arrived there and shouted that he had come to take revenge from 
Ghulam Ghous for insulting him in front of his relatives and friends on 
account of a dispute over money. Thereafter he made straight firing at 
Ghulam Ghous, which hit on different parts of his body, who 
succumbed to the injuries at the spot. On hue and cry of the 
complainant, the appellant attempted to fire at him but he succeeded 
to run away, whereas the appellant managed to escape on his 
motorcycle. After completion of investigation, charge against the 
appellant was framed, to which he pleaded not guilty and claimed 
trial. The prosecution, in order to prove its case, produced as many as 
14 witnesses. The appellant in his statement u/s 342 Cr.P.C. denied the 
prosecution story, however, he neither produced any defence evidence 
nor opted to record his statement on oath u/s 340(2) Cr.P.C. After 
considering the entire evidence on record the learned trial Court 
convicted the appellant u/s 302(a) PPC and sentenced him to death as 
Qisas. He was also directed to pay compensation of Rs.1,00,000/- to the 
legal 
heirs 
of 
the 
deceased. 
The 
appellant 
challenged 
his 
conviction/sentence before the High Court through Criminal Appeal 
No.590/2003 and the trial Court also forwarded Murder Reference 
No.467/2003 for confirmation of death sentence. The learned High 
Court dismissed the appeal filed by the appellant and answered the 
murder reference in affirmative vide impugned judgment, hence he 
moved jail petition before this Court, in which leave to appeal was 
granted by this Court. Leave granting order reads as under:- 
“Leave to appeal is granted for reappraisal of evidence to see 
whether there were material contradictions in the ocular evidence and 
Crl.A.652/09 
3 
the medical evidence, adduced by the prosecution, and whether the 
petitioner could have been convicted under section 302(a)PPC instead 
of 302(b) PPC.” 
3. 
 
Learned counsel for the petitioner vehemently argued that 
the FIR was lodged with the delay of about two hours and the PW 
Ashfaq Saeed had failed to mention the time of occurrence in his 
statement. He further contended that no reliance could be placed on 
the testimony of eye witnesses who were chance witnesses; the 
complainant Muhammad Arif (PW-2) was the interested witness being 
brother of the deceased, therefore, his statement cannot be relied upon. 
The medical evidence was in conflict with the ocular account and the 
recovery of empties from the spot and the weapon of offence from the 
petitioner was excluded from the consideration by the High Court, 
therefore, the petitioner could not be punished under section 302(a) 
PPC.  
4. 
 
Learned Additional Prosecutor General supported the 
impugned judgment. 
5. 
 
 We have examined/scrutinized the prosecution case 
based upon the ocular testimony furnished by Muhammad Arif, 
complainant (PW-2) and Ashfaq Saeed (PW-1). Former is brother of the 
deceased Ghulam Ghous. He got recorded his statement Ex.P.A, which 
was later on converted into FIR, recorded by Basharat Hussain, SI. 
According to his statement, on 21st October, 2001 he and his deceased 
brother were going to their house after offering Maghrib prayer at 
Jamiah Masjid. When they reached at street No.15, suddenly Khizar 
Crl.A.652/09 
4 
Hayat (appellant), who is a police employee intercepted them and in a 
loud voice asked his brother Ghulam Ghous that “I will take revenge 
from you because you insulted me before my friends and relatives, on 
account of dispute regarding transaction of payment”.  He suddenly 
with his official gun fired at Ghulam Ghous, deceased straightly, 
which hit him on his head, neck and chest, who after receiving the said 
firearm injuries, fell down.  He (complainant) made hue and cry, 
whereupon accused Khizar Hayat also attempted to fire at him but his 
life was saved as he ran away from the place. Ghulam Ghous died at 
the spot and the convict managed to escape good alongwith official 
gun on motorcycle No. 48, Honda CG 125. It is important to note that 
in the FIR, the complainant has also named Ashfaq Saeed (PW-1) and 
one Nazar Hussain (not produced), who witnessed the occurrence. He 
was subjected to lengthy cross examination but without extracting any 
beneficial statement to help the convict, however, the plea being an 
interested witness was raised before the trial Court, the High Court 
and this Court as well. We fail to understand that how a plea, which is 
not acceptable on the face of it, is being put forward repeatedly. The 
statement of the witness on account of being interested witness can 
only be discarded if it is proved that an interested witness has ulterior 
motive on account of enmity or any other consideration. Essentially 
this proposition has been considered in number of cases and this Court 
had declined to give weight to it, in absence of any reason leading to 
show that for some ulterior motive or on account of enmity the 
statement has been falsely given. There is no rule of law that 
Crl.A.652/09 
5 
statement of interested witness cannot be taken into consideration 
without corroboration and even uncorroborated version can be 
relied upon if supported by the surrounding circumstances. In this 
regard reference can be made to the cases of Khadim Hussain v. State 
(2010 SCMR 1090), Ashfaq Ahmed v. State (2007 SCMR 641), Shoukat Ali 
v. the State (PLD 2007 SC 93) and Muhammad Mansha v. The State (2001 
SCMR 199).  This Court in the case of Iqbal alias Bala v. The State (1994 
SCMR 1) has held that merely the friendship or relationship with the 
deceased will not be sufficient to discredit a witness particularly when 
there is no motive to falsely involve the accused. Reference can also be 
made to the case of Muhammad Ehsan v. State (2006 SCMR 1857) 
wherein while considering the plea raised by accused that evidence of 
widow of deceased could not be relied upon because she was 
interested witness being related to deceased, this Court held that mere 
fact that she was widow of deceased would not by itself sufficient to 
held that she was interested witness as she had no enmity with the 
accused and even if deceased had enmity with accused it would not 
have any serious effect upon the credibility and reliability of the 
testimony of widow. Learned High Court as well as the trial Court 
deeply considered this aspect of the case and declined to accept the 
plea.  
6. 
 
The plea taken by the defence before the trial Court that 
deceased was a criminal type of person and he had enmity with so 
many persons, is unknown because the prosecution has produced 
trustworthy and coherent evidence through PW-Ashfaq Saeed and 
Crl.A.652/09 
6 
PW-Muhammad Arif to support the contents of the FIR, Ex. PA/1 and 
to prove the cause of death, reliance was placed on the statements of 
Dr. Naseer Ahmad Chaudhry (PW-7), Dr. Muhammad Iftikhar Alam 
(PW-8) and Dr. Zainab Perveen (PW-14). Through the statement of 
Muhammad Arif (PW-2) the prosecution has also established the 
motive for causing the murder by the appellant. The happening of 
incident has also been established by producing site plan, recovery of 
blood stained earth from the place of occurrence and the empties being 
used in the crime weapons, however, the same were of no use because 
the recovery of the crime weapon has been disbelieved by the High 
Court. The prosecution has also established that he (appellant) is the 
same person, who is in employment of the police department as at the 
time of effecting recovery from his possession, police uniform namely, 
Qameez (Ex.P-8), Pant (Ex.P-9), Cap (Ex.P-10), Belt (Ex.P-11) and Boot 
(Ex.P-12) were recovered vide recovery memo Ex. PE, therefore, 
placing all the pieces of evidence in juxta position and evaluating the 
same, we are of the considered opinion that the prosecution has 
established the guilt against the appellant.   In addition to it, it is a case 
of single accused, who has fired upon the deceased-Ghulam Ghous, 
therefore, substitution of a culprit is not possible besides it is a rare 
phenomenon where a witness whose close relative has been murdered 
would substitute the accused with an innocent person thereby 
allowing the actual accused to go scot-free. As far as second ocular 
witness of the incident Ashfaq Saeed (PW-1) is concerned, his evidence 
Crl.A.652/09 
7 
fully corroborates to the statement of Muhammad Arif (PW-2), as it is 
evident from his examination-in-chief and cross examination. 
7. 
It is contended on behalf of the convict that both the witnesses 
are chance witnesses, therefore, their testimony is not worthy of 
acceptance. It may be noticed that FIR, Ex.PA/1 was lodged with 
reasonable promptitude wherein names of Ashfaq Saeed (PW-1) along 
with Nazar Hussain (not produced) were also mentioned. The 
statement of Ashfaq Saeed (PW-1) was recorded on the same day after 
happening of incident as it is evident from his cross examination, 
according to which his statement was recorded by the police at the 
place of occurrence in between Maghrib and Ishaa’ prayers. This 
witness has further strengthened the fact of having seen the incident by 
deposing that he was present in street No.12 at the time of occurrence. 
It is to be noted that street No.15, where the incident took place is 
situated within the same vicinity. In this behalf reference to the  site 
plan Ex. P.J  may be made, which has established that street No.15 is 
situated in front of street No.12 and the witness i.e. PW-1, who was 
present at a distance of 30/40 feet from the place of occurrence was 
capable to witness the incident. It is important to note that Ashfaq 
Saeed (PW-1) is an independent witness, who has no relation or enmity 
with the convict; inasmuch as no suggestion was given to the witness 
except introducing the plea as has been raised before the Court that he 
was a chance witness. Therefore, we have no reason to discard the 
evidence furnished by Ashfaq Saeed.  
Crl.A.652/09 
8 
8. 
Learned counsel for the appellant emphasized that there is 
contradiction in the ocular testimonies furnished by Ashfaq Saeed 
(PW-1) and Muhammad Arif (PW-2) to substantiate the plea. We have 
examined the statements of Dr. Naseer Ahmad Chaudhry (PW-7), Dr. 
Muhammad Iftikhar Alam (PW-8) and Dr. Zainab Perveen (PW-14) 
viz-a viz that of PW-1 and PW-2 as well as the contents of FIR, 
Ex.PA/1. It is to be noted that Dr. Naseer Ahmad Chaudhry conducted 
autopsy and furnished postmortem report Ex.PG and pictorial 
diagrams Ex.PG/1 and Ex.PG/2. As far as PWs Dr. Muhammad 
Iftikhar Alam and Dr. Zainab Perveen are concerned, they are the 
members of medical board, which finally confirmed the postmortem 
report, Ex.PG. According to the opinion of Dr. Naseer Ahmad 
Chaudhry, standing medical board was on unanimous opinion that 
injuries 1 to 8 were ante-mortem, caused by fire arm, except injuries 
No.5 and 6 which were caused by blunt means. Injuries No.1,2,3 and 4 
individually and in combination with rest of injuries were sufficient to 
cause death in an ordinary course of nature, underline cause of death 
being damage to the vital organs that is brain.  
9. 
As has been pointed out hereinabove, it is a case of single 
accused, who fired upon the deceased. As far as identification of the 
convict is concerned, Dr. Naseer Ahmad Chaudhry in his statement 
before the trial Court has offered sufficient explanation, on the basis of 
which it can be held that as the head is not a stagnant part of the body 
and the deceased on whom firing had been made, might had been 
revolving his head to save the same, therefore, causing the injuries on 
Crl.A.652/09 
9 
different parts of the head cannot be considered to hold that there is a 
contradiction in the ocular and medical evidence furnished by the 
doctors named hereinbefore.   
10. 
There is another important aspect of the case, which is required 
to be seen that it is not a case of defence that injuries were not caused 
with firearm and some other crime weapon was used. Both the 
prosecution and defence are one on the point that firearm has been 
used, therefore, looking the case from this angle as well, one can 
conveniently hold that there is no contradiction in the ocular testimony 
of Ashfaq Saeed (PW-1) and Muhammad Arif (PW-2) and the medical 
evidence furnished by Dr. Naseer Ahmad Chaudhry (PW-7), Dr. 
Muhammad Iftikhar Alam (PW-8) and Dr. Zainab Perveen (PW-14).  
11. 
Now it would be considered whether the learned trial Court has 
rightly awarded him sentence under section 302(a) PPC instead of 
302(b) PPC, according to which “whoever commits qatl-i-amd shall, subject 
to the provisions of this Chapter be punished with death as qisas”. Whereas 
u/s 304 PPC proof of qatl-i-amd liable to qisas has to be proved in the 
form that if the accused makes before a Court competent to try the 
offence a voluntary and true confession of the commission of the 
offence, which is not the case of the appellant, therefore, next 
consideration for awarding sentence of qisas shall depend upon the 
evidence as provided under section 304(1)(b) PPC, which reads as 
under:- 
“304.  (1) 
Proof of qatl-i-amd liable to qisas shall be in any of the 
 
following forms, namely:- 
 
 
(a) 
…….. 
Crl.A.652/09 
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(b) 
by the evidence as provided in Article 17 of the  
 
 
 
Qanun-e-Shahadat, 1984(P.O.10 of 1984).” 
12. 
Admittedly the convict has not made confession before the trial 
Court. As far as standard of evidence provided in Article 17 of Qanun-
e-Shahadat, 1984 (P.O. 10 of 1984) is concerned, it depends upon the 
standard laid down under Islamic Law, which is that the witness must 
stand the test of Tazkiya-tul-Shahood. This very question came for 
consideration before a larger bench of this Court in the case of Abdus 
Salam Vs. The State (2000 SCMR 338). Relevant para there from is 
reproduced herein below:- 
“In this case, the trial Court recorded conviction of the appellant under 
section 302(a), PPC i.e. Qatl-i-amd, punished with death as Qisas and such 
conviction was confirmed by the High Court. We are, however, of the view 
that this was a case for conviction under section 302(b) as proof in this case 
against the appellant was not available in either of the forms specified in 
section 304, P.P.C. under section 304(1), P.P.C., proof of Qatl-i-amd is 
required to be in one of the following forms, namely:- 
(a) The accused makes before a Court competent to try the offence 
a voluntary and true confession of the commission of the offence; or 
(b) by the evidence as provided in Article 17 of the Qanun-e-
Shahadat, 1984. 
Reply to the charge and his statement under section 342, Cr.P.C. by the 
appellant did not amount to confession as required under section 304(1)(a). 
Evidence of the three witnesses also did not satisfy the test provided in Article 
17 of Qanun-e-Shahadat, 1984, as the said witnesses had not been subject of 
this Court in Manzoor v. State (1992 SCMR 2307) where it was held as 
follows:-- 
“As regards it being a case of Qatl-i-amd liable to death by Qisas the 
requirement of the Islamic Law is that the witnesses must stand the test 
of Tazkiya-tul-Shahood (        ) and the importance of it has been 
Crl.A.652/09 
11 
emphasized in Sanaullah v.The State PLD 1991 Federal Shariat Court 
186, in the following words:-- 
“Tazkiya-tul-Shahood (            )is obligatory in cases punishable with 
Hadd and Qisas, even if the competency of a witness is not challenged 
by the Mashood Alaih(           )”. 
In the case of Ghulam Ali  v. The State PLD 1986 SC 741 it was held 
that where proper Tazkiya-tul-Shahood (                  )was not done of an 
eye-witness, the conviction under Islamic Law could not be sustained. 
In the present case, this requirement having not been satisfied, the 
conviction under injunctions of Islam could not be awarded.”  
We accordingly of the view that, in this matter where the prosecution 
had established its case against the appellant for the Qatl-i-amd of his mother, 
conviction was required to be recorded under section 302(b), P.P.C. and not 
under section 302(a), P.P.C.” 
In the instant case, admittedly no exercise was carried out by the 
learned trial Court or by the High Court to ascertain whether PWs 
Ashfaq Saeed and Muhammad Arif fulfill the requirement of Tazkiya-
tul-Shahood, for which an inquiry has to be conducted and this aspect of 
the case has been highlighted in the case of Ghulam Ali v. The State 
(PLD 1986 SC 741), therefore if the prosecution had succeeded in 
establishing the offence of qatl-i-amd of Ghulam Ghous, there was no 
necessity to award the punishment of death to the convict as qisas u/s 
302(a) PPC because the Court is empowered to award punishment of 
death or life imprisonment as Ta’azir u/s 302(b) PPC. 
13. 
 In view of the above discussion, we are of the opinion that the 
appellant was entitled to punishment u/s 302(b) PPC instead of 302(a) 
PPC, therefore, the sentence of death is maintained u/s 302(b) PPC. He 
Crl.A.652/09 
12 
shall also be liable to pay Rs.1,00,000/- as compensation to the legal 
heirs of the deceased as has been observed by the trial Court vide 
judgment dated 2.4.2003, maintained by the High Court on 19.1.2009.  
14. 
Consequently, the appeal is dismissed with the observations 
made hereinabove.  
Chief Justice 
 
Judge 
 
 
Judge 
Announced on 5.1.2011   
at Islamabad 
Nisar/* 
 
 
 
 
Approved For Reporting 
 
 
