IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR, JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYVED MAZAHAR ALl AKBAR NAUVI
CRIMINAL APPEAL NO. 250 OF 2020
(Against the judgment dated 31.03.2014 of the
Lahore High Court, Lahore passed in Criminal
Appeal No.217-J/2010 and Murder Reference
No.329/2010)
Abdul Ghafoor
...Appellant(s)
VERSUS
The State
Respondent(s)
For the Appellant(s): 
Nemo
For the State: 
Mr. Ahmed Raza Gillani, AddI.P.G.
Date of Hearing: 
30.05.2022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI, J.- Appellant along with three co-
accused was tried by the learned Additional Sessions Judge, Jhang,
pursuant to a case registered vide FIR No. 110 dated 12.02.2007 under
Sections 302/337-F(ii)/34 PPC for committing murder f Riasat Ali, son of
the complainant. The learned Trial Court vide its judgment dated
23.04.2010 while acquitting three co-accused, convicted the appellant
under Section 302(b) PPC and sentenced him to death. He was also
directed to pay compensation amounting to Rs. 50,000/- to the legal heirs
of the deceased or in default whereof to further undergo SI for six months.
He was also convicted under Section 337-F(ii) PPC for causing injury to
Kalay Khan and was directed to pay Daman amounting to Rs.10,000/- to
the injured. In appeal, the learned High Court while maintaining the
conviction under Section 302(b) PPC, altered the sentence of death into
imprisonment for life. The amount of compensation and the sentence in
CRIMINAL APPEAL NO2500F2020 
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default whereof was maintained. Conviction and sentence under Section
337-F(ii) PPC was also maintained Benefit of Section 382-B Cr.P.C. was
extended to him Being aggrieved by the impugned judgment, the
appellant filed Jail Petition No. 123/2016 before this Court wherein leave
was granted on 23.04.2020 and the present Criminal Appeal has arisen
thereafter.
2. The prosecution story as given in the impugned judgment
reads as under:-
"2. Brief facts of the case as narrated in the FIR recorded
on the statement of Sarang complainant (PW-09) are that on
01.02.2007 at about 04.30 pm, he along with his son Riasat
All (deceased) and Kalay Khan injured (PW-10) was present.
Abdul Ghafoor appellant came outside his house and peeped
into the house of iabbar from over the wall upon which
Riasat Au (deceased) admonished him. Abdul Ghafoor went
into his house while giving threats to him. After about ten
minutes, Abdul Ghafoor appellant and Zakir both armed with
dagger, Asif empty handed, Nazar armed with sota, came
there. Asif and Nazar raised lalkara to murder Riasat Ali on
which Abdul Ghafoor appellant inflicted dagger blow which
hit Riasat Ali on his head behind the right ear. Zakir accused
inflict second blow with his dagger which hit Riasat All on his
left shoulder. Kalay Khan (PW-10) tried to rescue Riasat Ali
(deceased), upon which, Abdul Ghafoor inflicted dagger blow
to him which landed on his abdomen. On hearing hue and
cry, Zulfiqar and Mushtaq attracted towards the scene of
occurrence, on which the accused fled away. Riasat Ali
(deceased) was shifted to the Allied Hospital Faisalabad
where he succumbed to the injuries on 12.02.2007.
The motive behind the occurrence was that one
month ago Abdul Chafoor appellant had abducted Mst.
Mumtaz Bibi, niece of the complainant, but her custody was
restored on the intervention of the respectables and the
appellant peeped into the house to see Mst. Mumtaz Bibi.
3. After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. In order to prove its case the
prosecution produced as many as 12 witnesses. In his statement recorded
under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted
all the allegations leveled against him. However, he did not make his
FT
CRIMINAL APPEAL NO.250 OF 2020 
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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. Vide order dated 23.04.2020, Mr. Anees Muhammad
Shahzad, learned ASC was appointed by this Court to represent the
appellant at State expense. However, despite repeated calls, the learned
counsel did not turn up today to argue this case. However, in the interest
of justice, we decided to proceed with the case on merits.
s. with the able assistance of learned Law Officer, the record of
the case was perused in detail and it was pointed out that there are
serious lapses on the part of the prosecution. The learned Law Officer
though defended the impugned judgment but the same was done half-
heartedly because of evidence available on the record, which was hard to
rebut. However, he stressed upon that the prosecution has succeeded to
establish the case against the appellant. He contended that the evidence
led by the prosecution in the shape of ocular version duly supported by
medical evidence is sufficient to sustain conviction in the given
circumstances, therefore, he does not deserve any leniency by this Court.
6. We have heard learned Law Officer at considerable length
and have perused the evidence available on record.
In the instant case, there is no denial to this fact that the FIR
was registered after an inordinate delay of 11 days whereas Medico Legal
Examination Certificate (Ex.PD) indicates that the injured PWs (one died
later on) were medically examined in injured condition on the same day
with reference to Rapat No. 16 dated 01.02.2007 lodged in Police Station
Saddar ihang through Constable Muhammad Daraz. However, the learned
High Court while handing down the judgment, in paragraph 8 of the
impugned judgment, has tried to establish that the delay in lodging the FIR
is not fatal but unfortunately no valid reason has been assigned at all,
which can be considered as justiciable reasoning within the parameters of
the law. It would be advantageous to reproduce the said paragraph 8,
which reads as under:-
CRIMINAL APPEAL NO.250 OF 2020 
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"8. So far delay in lodging the FIR is concerned, it is mentioned
by the complainant that immediately after the occurrence they
took Riasat Ali in injured condition to the hospital and thereafter
to Allied Hospital Faisalabad for treatment where they remained
busy in taking care of Riasat Ali but when he died on 12.02.2007,
the complainant brought the dead body to the police station and
lodged the FIR.
The record reveals that Kalay Khan (PW-10) and Riasat All
(deceased) were medically examined on the day of occurrence at
06:15 pm in DHQ Hospital Jhang. The doctor categorically stated
that Riasat Ali was drowsy and disoriented, which indicates his
serious condition. In the MLC of Kalay Khan and Riasat All, it is
specifically mentioned that the said medical examination was
conducted on the request of the police through rapt No. 16. Injury
statements Ex.PE and Ex.PB clearly indicate that firstly, rapt No.
16 was incorporated in the Roznamcha of police station, on the
day of occurrence and thereafter injury statement of Riasat Au
and Kalay Khan were prepared. In the injury statements, it is
specifically mentioned that Abdul Ghafoor etc and Zakir etc (three
in number) caused injuries to Riasat AU (deceased) and Kalay Khan
(PW-10), So, one thing is quite clear that on the day of occurrence
firstly the complainant party went to the police station and lodged
rapt No. 16, in which, the name of the appellant and Zakir was
specifically given as assailants, by the deceased, injured witness
and the complainant.
The stance of the complainant was that he was stopped by
the respectable of the Illaqa for lodging the FIR is also supported
from the fact that only rapt was lodged for medical examination
and at that time no FIR was chalked out. It is also a circumstance
that both the parties are known to each other and there could be
no mistaken identity. In that eventuality the delay of eleven days
in lodging the Fir is not fatal to the prosecution case because the
same was properly explained by the complainant while lodging
the FIR whereas the name of the appellant is specifically
mentioned in the injury statement Ex.PB as assailant"
We have noted that the said Rapat has not been exhibited in
evidence and it is not clear from the evidence as to whether the appellant
was nominated therein for the stated crime. This Court has repeatedly
considered the delay in lodging the FIR a serious lapse unless and until it is
plausibly explained. Delay per se is a valid ground to gauge the veracity of
the prosecution witnesses. In the case of Mehmood Ahmad Vs. The State
(1995 SCMR 127), there was a delay of two hours in lodging the FIR. This
Court while holding that the delay of two hours in lodging the FIR has
assumed great significance as the same can be attributed to consultation,
- 
-
CRIMINAL APPEAL NO.250 OF 2020 
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taking instructions and calculatedly preparing the report keeping the
names of the accused open for roping in such persons whom ultimately
the prosecution may wish to implicate charge and put to trial. In the FIR,
the co-accused, Zakir was ascribed the role of causing injury with dagger
on the left shoulder of the deceased and both the injured witnesses
namely Kalay Khan (PW-10) and Mushtaq (PW-11) had testified to this
effect but subsequently through written statements they exonerated the
said co-accused contradicting his previous statement. The complainant in
an affidavit ExDA had himself mentioned that Zakir was not armed with
dagger and he was only present at the place of occurrence, as such, he has
exonerated him from accusation of causing dragger blow. During
investigation, it was also found that accused Zakir was not having a dagger
at the time of occurrence and he was only present at the place of
occurrence. In these circumstances, the co-accused Zakir was acquitted of
the charge by the learned Trial Court. The appellant's case is based on the
same set of evidence and the role ascribed to him is similar to that of the
co-accused Zakir. The conduct of the prosecution witnesses casts serious
doubt on their credibility. The somersault taken by the complainant
regarding the accusation leveled against the appellant and co-accused,
since acquitted, persuade us to extend benefit of doubt to the appellant
not as a matter of grace rather as a matter of right. Keeping in view the
fact that the FIR was registered with a delay of 11 days without any
plausible explanation and the conduct of the prosecution witnesses, the
possibility of throwing a wider net by the complainant cannot be ruled out.
In these circumstances, a shadow of doubt in the prosecution case has
been created, benefit of which must be given to the appellant. 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. The conviction
must be based on unimpeachable, trustworthy and reliable evidence. Any
doubt arising in prosecution case is to be resolved in favour of the
accused. However, as discussed above, in the present case the prosecution
has failed to prove its case beyond any reasonable shadow of doubt.
- 
CRIMINAL APPEAL NO.250 OF 2020 
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8. For what has been discussed above, this appeal is allowed
and the impugned judgment is set aside. The appellant is acquitted of the
charge. He 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
30" of May, 2022
Approved to 
porting
Ianuiira,i
