Crl. A. No. 402 of 2013 (1).doc 
IN THE SUPREME COURT OF PAKISTAN 
( Appellate Jurisdiction ) 
 
 
 
 
PRESENT: 
 
 
Mr. Justice Gulzar Ahmed 
 
 
Mr. Justice Sardar Tariq Masood 
 
 
Mr. Justice Faisal Arab 
 
CRIMINAL APPEALS NO. 402 & 403 OF 2013 
(On appeal against the judgment dated 15.06.2009 passed by  
Lahore High Court, Lahore in Crl. A. No. 615 of 2003) 
 
Sardar Bibi widow of Muhammad 
(In Crl. A. No. 402 of 2013) 
Qamar Abbas & another 
(In Crl. A. No. 403 of 2013) … Appellant (s) 
Versus 
Munir Ahmed etc.. 
(In Crl. A. No. 402 of 2013)  
The state 
(In Crl. A. No. 403 of 2013) … Respondent (s) 
  
 
For the appellant (s) 
(In Crl. A. No. 402 of 2013) 
: Mr. Ghulam Mustafa Kandwal, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
 
 
In Crl. A. No. 403 of 2013 
: Mrs. Bushra Qamar, ASC 
Mrs. Tasneem Ameen, AOR (Absent) 
 
 
 
For the respondent (s) 
(In Crl. A. No. 402 of 2013) 
: Mrs. Bushra Qamar, ASC 
Mrs. Tasneem Ameen, AOR (Absent) 
 
 
 
For the state 
: Ch. Muhammad Waheed Khan, Addl. P.G. Pb. 
 
 
 
Date of Hearing 
: 29.11.2016 
  
 
JUDGMENT 
 
 
SARDAR TARIQ MASOOD, J. 
Qamar Abbas and Falak Sher 
(appellants in Criminal Appeal No. 403 of 2013) along with acquitted accused 
persons i.e. Munir Ahmed, Sikandar Hayat, Fateh Muhammad, Mulazim 
Hussain, Nasar Iqbal (Respondents No. 1 to 5 in Criminal Appeal No. 402 of 
2013) along with Sultan Ahmad, Akram and Baati, allegedly committed 
murder of Zafar Iqbal and Sarwar within the area of village Rairka Bala within 
the jurisdiction of P.S. Miana Gondal, District Mandi Baha-ud-Din on 
12.06.2001 at 2:00 a.m.. All the above mentioned accused persons were 
booked in case FIR No. 158 registered on the same day at the same police 
station. It is alleged in the FIR that after the occurrence the accused persons 
took away the chopped head of Zafar Iqbal to their Daira and had shown the 
same to their father Shana accused (since dead) and told him that they had 
taken the revenge of the murder of their brother whereupon Shana directed 
them to cause the said head disappear. The motive mentioned in the FIR was 
that Khizer Hayat, the maternal nephew of complainant, had murdered 
Crl. A. No. 402 of 2013 (1).doc 
Muhammad Ameer son of Shana accused, 4/5 years prior to the occurrence. 
After the conclusion of trial, both the appellants of Criminal Appeal No. 403 of 
2013 along with respondents No. 1 to 5 were convicted under Section 148 
P.P.C. and were sentenced to three years R.I. each along with fine of Rs. 
20,000/- each or in default thereof to further undergo S.I. for six months. 
Falak Sher, Qamar Abbas, Munir Ahmed, Sikandar and Mulazam Hussain 
were also convicted under Section 302 (b) read with Section 149 P.P.C. and 
were sentenced to death on two counts as Tazir and to pay Rs. 100,000/- each 
on two counts as compensation under Section 544-A Cr.P.C. or in default 
thereof to further undergo S.I. for six months whereas Nasar Iqbal and Fateh 
Muhammad were convicted under Section 302 (c) read with Section 149 P.P.C. 
and were sentenced to ten years R.I. on two counts. They were also directed to 
pay compensation of Rs. 25,000/- each or in default thereof to further 
undergo six months S.I.. The conviction and sentence of Falak Sher and 
Qamar Abbas was upheld by the Division Bench of the Lahore High Court only 
for the murder of Zafar Iqbal deceased whereas the conviction and sentences 
of Munir Ahmed, Mulazam Hussain, Sikandar Hayat, Fateh Muhammad and 
Nasar Iqbal were set aside by the High Court. Hence the present appeals, by 
leave of this Court granted on 05.12.2013, to re-appraise the entire evidence 
and with the assistance of the learned counsel for the parties, we have 
undertaken that exercise and also perused the record. . 
2. 
 
According to the prosecution, the occurrence took place at    2:00 
a.m. in odd hours of the night. Although prosecution alleged that sufficient 
light of bulbs was available there but during investigation, no such bulbs 
(source of light) were taken into possession by the I.O.. In that eventuality, the 
identification of the assailants became doubtful especially when Mehmand 
complainant, PW-11 and Muhammad Yar PW-12 allegedly saw the occurrence 
from a distance of more than 100 feet. Learned counsel for the complainant 
and learned Additional Prosecutor General are unable to give any explanation 
as to why the source of light was not taken into possession. We have also 
observed that the residential house of complainant was at a distance of 3 acre 
from the place of occurrence whereas the residential house of Muhammad Yar 
PW-12 was at the distance of 1-1/2 mile from the place of occurrence. The 
Crl. A. No. 402 of 2013 (1).doc 
sons of the complainant were sleeping in front of the cattle shed. In that 
eventuality, the presence of Mehmand, complainant and Muhammad Yar, 
across the road, upon the roof top of his another Haveli is a sheer chance 
because at such odd hour of the night they were supposed to be present in 
their residences which is far away from the place of occurrence. According to 
Muhammad Yar, PW-12, normally at the time of occurrence he used to be at 
his residence which is 1-1/2 mile away from the place of occurrence. He did 
not put forward any reason for his presence at the place of occurrence except 
that he was sleeping on the roof of the cattle shed of complainant. Both the 
witnesses of the ocular account in their statements before the court claimed 
that they were sleeping on the roof top of the cattle shed of the complainant. 
The site plan (Exb-PL) totally negate this version as the cattle shed and the 
open place where both the deceased were sleeping, were on the northern side 
of the road whereas the complainant and Muhammad Yar were allegedly 
sleeping across the road on the roof top of the Haveli of complainant shown at 
point “E” of the site plan. The presence of the said witnesses at the roof top of 
the cattle shed is not shown in the site plan. So the presence of both the 
witnesses at the place of occurrence is doubtful. In the FIR, the complainant 
claimed that Qamar Abbas and Mulazam were armed with Tokas whereas rest 
of the accused, eight in numbers, were armed with firearm weapons. No 
specification of said firearm weapons were given in the FIR or in the statement 
under Section 161 Cr.P.C.. From the place of occurrence, only two crime 
empties of .12 bore have been recovered. Both the witnesses for the first time 
during trial specified the weapons and alleged that such and such specific 
weapon was in the hand of such and such accused. Both the witnesses had 
been duly confronted with their previous statements where such specification 
of weapons was not mentioned. As doctor, while conducting postmortem 
examination, declared that the deceased persons received bullet injuries hence 
for the first time during trial, Falak Sher and Sikandar were shown to be 
armed with .30 bore pistol and Munir being armed with 7mm rifle. This willful 
and dishonest improvement was made by both the witnesses in order to bring 
the prosecution case in line with the medical evidence. In the FIR the 
complainant alleged that fire shot of Falak Sher hit Zafar Iqbal deceased on 
Crl. A. No. 402 of 2013 (1).doc 
his chest and the fire shot of Sultan Ahmed accused also hit on the chest of 
deceased Zafar Iqbal. According to doctor, there was only one fire arm entry 
wound on the chest of the deceased Zafar Iqbal. In order to meet this 
situation, witnesses for the first time, during trial made omission and did not 
allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So 
the improvements and omissions were made by the witnesses in order to bring 
the case of prosecution in line with the medical evidence. Such dishonest and 
deliberate improvement and omission made them unreliable and they are not 
trustworthy witnesses. It is held in the case of Amir Zaman Vs. Mahboob and 
others (1985 SCMR 685) that testimony of witnesses containing material 
improvements are not believable and trustworthy. Likewise in Akhtar Ali’s 
case (2008 SCMR 6) it was held that when a witness made improvement 
dishonestly to strengthen the prosecution’s case then his credibility becomes 
doubtful on the well-known principle of criminal jurisprudence that 
improvement once found deliberate and dishonest, cast serious doubt on the 
veracity of such witness. In Khalid Javed’s case (2003 SCMR 149) such 
witness who improved his version during the trial was found wholly unreliable. 
Further reference in this respect may be made to the cases of Mohammad 
Shafique Ahmad Vs. The State (PLD 1981 SC 472), Syed Saeed 
Mohammad Shah and another Vs. The State (1993 SCMR 550), and 
Mohammad Saleem Vs. Mohammad Azam (2011 SCMR 474).  
 
According to prosecution, Falak Sher appellant and his co-accused 
Sultan Ahmed effectively fired at the chest of Zafar Iqbal deceased but the trial 
court had acquitted Sultan Ahmed vide judgment dated 09.04.2003 and the 
eye witnesses produced by the prosecution i.e. Mehmand complainant (PW-11) 
and Muhammad Yar (PW-12) were not believed to the extent of the said co-
accused. The said acquittal has not been challenged by the complainant or 
state. Likewise it was the prosecution case that Qamar Abbas appellant along 
with his co-accused Mulazam chopped the neck of Zafar Iqbal with Tokas. It 
was also the case of the prosecution that the neck of the deceased Zafar Iqbal 
was still attached with the body of the deceased when Akram and Baati 
accused persons separated the same from the body by pulling it. The trial 
Crl. A. No. 402 of 2013 (1).doc 
court acquitted Akram and Baati accused whereas Mulazam Hussain had 
been acquitted by the High Court meaning thereby the eye witnesses had not 
been believed to the extent of said co-accused who actively participated in the 
process of chopping and detaching the head of Zafar Iqbal from his body. This 
court had already settled the law on the point that if the eye witnesses 
produced by the prosecution are disbelieved to the extent of some accused 
person attributed effective role, then the said eye witnesses cannot be relied 
upon for the purpose of convicting another accused person attributed a 
similar role, without availability of independent corroboration to the extent of 
such other person. Reference in this respect may be made to the cases of 
Ghulam Sikandar Vs. Mamaraz Khan (PLD 1985 S.C. 11), Sarfraz alias 
Sappi Vs. The State (2000 SCMR 1758), Iftikhar Hussain and others Vs. 
The State (2004 SCMR 1185), Farman Ahmed Vs. Muhammad Inayat and 
others (2007 SCMR 1825), Akhtar Ali Vs. The State (PLJ 2008 SC 269), 
Irfan Ali Vs. The State (2015 SCMR 840) and Shahbaz Vs. The State (2016 
SCMR 1763) and Akhtar Ali and Others Vs. The State (2008 SCMR 6) 
 
Although, the High Court considered the recovery of pistol from Falak 
Sher as corroboratory piece of evidence but we observe that in the FIR no 
specific weapon was shown in the hands of the appellant Falak Sher. Even no 
crime empty of .30 bore was recovered from the place of occurrence and there 
is no positive report of FSL regarding matching of any crime empty with the 
allegedly recovered pistol from Falak Sher. So the said recovery is 
inconsequential and cannot be considered as the corroborative piece of 
evidence. So far recovery of Toka from Qamar Abbas appellant is concerned, 
we observe that such recovery was effective after about one month of 
occurrence and Talib Hussain PW-4 admitted that the place of recovery was 
collectively inhabited by all the accused so the place of recovery is a joint 
house and was not in the exclusive possession of Qamar Abbas appellant. 
Allegedly, the recovery was effected after about one month of the occurrence 
and it is not expected from an accused person to keep such weapon (stained 
with blood) as souvenir because during the said period there was ample time 
to destroy or at least washout the said weapon. The Toka was recovered from 
Crl. A. No. 402 of 2013 (1).doc 
behind the door of a house which according to PW was collectively inhabited 
by many persons. In these circumstances, it could not be said that the 
recovery was made from the exclusive knowledge and possession of the 
accused. So no reliance can be placed to such recovery and the High Court 
had wrongly considered such doubtful recoveries as corroborative piece of 
evidence to the unreliable ocular account. In the absence of any independent 
corroboration, the appellants, Falak Sher and Qamar Abbas deserve the 
acquittal, in view of the case law referred above.  
3. 
 
Although in the FIR, complainant alleged specific motive 
regarding the murder of son of Shana accused by maternal nephew of 
complainant but during cross examination complainant admitted that besides 
Khizar Hayat, Nawaz and Ejaz were also involved in the said murder case and 
all the said accused had been acquitted due to a compromise arrived at 
between the parties. He also admitted that neither he nor his deceased sons 
were involved in any manner in the said murder case. In that eventuality, 
there was hardly any occasion for the appellants to commit the murder of 
deceased person. The complainant during cross examination tried to meet this 
situation and claimed that he was blamed by the accused person about the 
said murder. This explanation and improvement is not helpful to the 
prosecution as in that situation the complainant should be the first target, if 
present at the spot. From the above discussion, it is quite clear that appellants 
and their co-accused had no motive or reason to commit murder of the 
deceased persons and the asserted motive has not been proved. Although 
occurrence took place at 2:00 a.m. and police station was at a distance of 9 
kilometer but report had been lodged not at the police station rather at the 
spot at about 6:00 a.m. which gave inference that FIR had been lodged after 
deliberation and consultation. The complainant also admitted during cross-
examination that police recorded his statement after the spot inspection. He 
further deposed that police remained at the spot till 9:30 a.m. and after their 
departure, he went to police station and told the name of accused again in the 
police station and his thumb impression was obtained on his statement in the 
police station, whereas according to prosecution the complaint/fard bayan 
Crl. A. No. 402 of 2013 (1).doc 
was prepared at the spot. Subsequent statement of complainant in the police 
station after 9:30 a.m. further confirms the deliberation and consultation on 
the part of complainant and the police. According to prosecution, the matter 
was reported at 6:00 a.m. but postmortem examination on the dead body was 
conducted at 1:00 p.m. i.e. after 7 hours of the lodging of FIR. This delay 
raised suspicion regarding the registration of the FIR at the given time. The 
investigation officer, who initially investigated this case was Tariq Mehmood 
Ghani, but he was not produced by the prosecution as prosecution had 
claimed that the said witnesses had gone abroad. Although, secondary 
evidence has been produced to the extent of said I.O. but prosecution did not 
establish, by producing the constable, who made report that the said witness 
had gone abroad. Due to said reason, defence was deprived of valuable right to 
cross-examine the said I.O. through whom all the facts and circumstances 
favoring the accused could have been brought on the record. 
4. 
 
From the above discussion, it is quite clear that in this case FIR 
was chalked out after consultation and deliberation. The delay in the FIR and 
postmortem examination further confirms that FIR and documents i.e. inquest 
report etc. were prepared much after the given time. The source of light i.e. 
bulbs etc. was not taken into possession during investigation to establish that 
the witnesses who were allegedly at the distance of more than 100 feet could 
identify the assailants. So the identification of the assailants was also doubtful 
in such circumstances of the case. The witnesses of the ocular account are 
closely related to the deceased and were chance witnesses as their places of 
residence were far away from the spot. They could not establish their presence 
at the place of occurrence. Besides that these two witnesses made dishonest 
and willful improvements and omission in order to strengthen the prosecution 
case and bring their case in line with the medical evidence. In that eventuality, 
no reliance can be placed on their testimony as they were not truthful 
witnesses. The motive in this case remained unproved as neither the deceased 
nor the complainant were involved in any manner in the murder case of the 
son of accused Shana and there is no occasion for the accused party to launch 
attack upon the deceased person. The recovery of pistol from Falak Sher 
Crl. A. No. 402 of 2013 (1).doc 
without any positive report of FSL is inconsequential, as discussed above, and 
the recovery of Toka from Qamar Abbas from a house inhabited by many 
persons is also not legally helpful to the prosecution. The prosecution had 
involved the whole family of Shana accused and other relatives and due to the 
said reason, certain accused persons had been acquitted by the trial court 
whereas respondents No. 1 to 5 of Criminal Appeal No. 402 of 2013 have been 
acquitted by the High Court. In that eventuality, independent strong 
corroboration was required to uphold the conviction and sentence of the 
appellants in Criminal Appeal No. 403 of 2013 but we have failed to find out 
any independent corroboration to the ocular account furnished by the above 
mentioned eye witnesses and the fate of the present appellants i.e. Qamar 
Abbas and Falak Sher cannot be any different from that of their acquitted co-
accused. Consequently, Criminal Appeal No. 402 of 2013 against the acquittal 
of respondents No. 1 to 5 is dismissed and sureties along with P.R. bonds 
deposited with the Additional Registrar (Judicial) of this Court are hereby 
discharged. Criminal Appeal No. 403 of 2015, filed by Qamar Abbas and Falak 
Sher appellants is, therefore, allowed. Their conviction and sentence, recorded 
and upheld by the courts below, are set aside and they are acquitted of the 
charge by extending the benefit of doubt to them. They shall be released from 
jail forthwith if not required to be detained in connection with any other case.  
 
 
 
 
 
 
      Judge 
 
 
 
      Judge 
 
 
Islamabad, the 
 
      Judge 
29th November, 2016 
Atif*/ 
APPROVED FOR REPORTING 
 
 
Announced in the open Court on __________ at Islamabad.  
 
 
Judge 
