IN THE SUPREME COURT OF PAKISTAN
LAPPELLA EJURISDIGION
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SAYYED MAZAHAR All AKBAR NAQVI
)Aii PETITION NO. 190 OF 2017 AND
CRIMINAL PETITION NO 398 1 OF 2 Onl
'OOZ ^017 Pa ssed by the
Lahore High Court, Mijitan Bench In Murder Ref prence Na.
111/2012 & Cdmlr.aj Appeal No. 77212012)
VERSUS
Azhar Hussain
Hafl Ghous Bakhsh (complainant)
The State & others
(In JP 190/2017)
(In Cr.P. 398-L/2017)
...Petitioner(s)
(In both cases)
Respondent(s)
For the Petitioner(s). Ms. Saba Saeed Sheik!,, ASC
(In JP fJ/zot)V. Via video link Lahore
Mr. Sikancjar Javed, ASC
(In Cr.P. 398-1.12017. Via video link Lahore
For the State:
N. R.
Date of Hearing: 
16.08.2022
YYED MAZAHAR All AKBAR
JUDGMEN
 NAQVI, J.- Petitioner Azhar Hussain along
with two co-accused was tried by the learned Additional Sessions Judge,
Jatoi, District Muzaffargarh pursuant to a case registered vide FIR No.
731/2010 dated 05.10.2010 under Sections 302/34 PPC at Police Station
Jatoi for committing murder of Mst. Sajda Bibi, daughter of the
complainant The learned Trial Court vide its judgment dated 17.11.2012
while acquitting CO-accused convicted petitioner Azhar Hussain under
Section 302(b) PPC and sentenced him to death. He was also directed to
pay compensation amounting to Rs.100,000,L. to the legal heirs of the
deceased or in default whereof to further suffer six months SI. In appeal
the learned High Court while maintaining the conviction of the petitioner
under Section 302(b) PPC, altered the sentence of death into
JAIL PETITION NO. 190 OF 2017 AND
CRIMINAL PETITION NO. 3981 OF 2017
imprisonment for life. The amount of compensation and the sentence in
default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also
extended to the petitioner/convict. Being aggrieved by the impugned
judgment, the petitioner/convict filed Jail Petition No. 190/2017 whereas
the complainant has filed Criminal Petition No. 398-L/2017 before this
Court seeking enhancement of the sentence of the petitioner/convict.
2.
The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
"2. The brief facts of the prosecution case are that on
05.10.2010, the complainant of this case namely Hap Ghaus Bakhsh
appeared before the police and got recorded his statement Exh.P.E.
contending therein that today at morning time he (complainant)
alongwith his wife Mst. Ashraf and children was cultivating vegetable
near his house while his daughter namely Mst. Sajda aged 16/17 years
was present in the house. At about 7.30 AM he heard hue and cry and
rushed towards his house and saw that two unknown persons were
coming out form his Havaili. He reached in the house and saw that his
daughter Mst. Sajda had grappled with accused Azhar Hussain. When
he (complainant) reached near, the accused Azhar Hussain made fire
with his pistol which hit in the belly of Saida Bibi who fell on the
ground. In the meanwhile PWs namely Mukhtiar Hussain and
Muhammad Siddique reached at the spot and they tried to catch
accused Azhar Hussain but accused gave threats while raising his pistol
but PW namely Mukhtiar Hussain chased the accused Azhar Hussain
and caught hold him in the cotton crop near the house and they
grappled with each others. The accused Azhar Hussain fled away while
leaving his Qamiz, Shalwar alongwith broken Azarband, pair of shoe
and identity card before they reached there. His daughter succumbed
to the injuries. On these facts and circumstances, the above
mentioned case was registered."
3.
After completion of the investigation, report under Section
173 Cr.P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced nine witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner/convict pleaded his innocence
and refuted all the allegations leveled against him. However, he did not
make his statement on oath under Section 340(2) Cr.P.0 in disproof of
allegations leveled against him. He also did not produce any evidence in
his defence.
JAIL PETITION NO. 190 OF 2017 AND 
-: 3
CRIMINAL PETITION NO. 398-L OF 2017
4. Learned counsel for the petitioner/convict contended that
there are glaring contradictions and dishonest improvements in the
statements of the eye-witnesses, which have escaped the notice of the
learned courts below. Contends that the prosecution witnesses are
interested and related, therefore, their evidence has lost its sanctity and
the conviction cannot be based upon it. Contends that the prosecution
case is based on whims and surmises and it has to prove its case without
any shadow of doubt but it has miserably failed to do so. Contends that
the prosecution has not been able to prove motive as alleged, which
causes serious dent in the prosecution case. Contends that there was no
blood stained earth at the place of occurrence, which shows that the
occurrence took place somewhere else. Lastly contends that the impugned
judgment is based on misreading and non-reading of the evidence,
therefore, the same may be set at naught.
5.
On the other hand, learned counsel for the complainant
submitted that the learned High Court has converted the sentence of
death of the petitioner on the grounds, which are not tenable in law.
Contends that to sustain conviction of an accused on a capital charge, Un-
rebutted ocular evidence alone is sufficient. Lastly contends that the
ocular account is supported by the medical evidence, therefore, the
petitioner/convict does not deserve any leniency by this Court, rather his
sentence may be enhanced.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
The ocular account in this case has been furnished by Ghous
Bakhsh, complainant (PW-3) and Mukhtiar Hussain (PW-6). These
prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the petitioner/convict or adverse to the
prosecution could be brought on record. Both these PWs remained
consistent on each and every material point inasmuch as they made
deposition exactly according to the circumstances happened in this case,
fr,t
--
U
-
JAIL PETITION NO. 190 OF 2017 AND 
-: 4
CRIMINAL PETITION NO. 398-1 OF 2017
therefore, it can safely be concluded that the ocular account furnished by
the prosecution is reliable, straightforward and confidence inspiring. The
medical evidence available on the record corroborates the ocular account
so far as the nature, time, locale and impact of the injury on the person of
the deceased is concerned. As far as the question that the complainant
was father of the deceased, therefore, his testimony cannot be believed to
sustain conviction of the petitioner/convict is concerned, this Court has
time and again held that mere relationship of the prosecution witnesses
with the deceased cannot be a ground to discard the testimony of such
witnesses unless previous enmity or ill will is established on the record to
falsely implicate the accused in the case. Learned counsel for the
petitioner/convict could not point out any plausible reason as to why the
complainant has falsely involved the petitioner/convict in the present case
and let off the real culprit, who has committed murder of his real
daughter. Substitution in such like cases is a rare phenomenon. The
complainant would not prefer to spare the real culprit who murdered his
daughter and falsely involve the petitioner without any rhyme and reason
especially when admittedly there was no previous enmity between the
parties. During the course of proceedings, the learned counsel contended
that there are material discrepancies and contradictions in the statements
of the eye-witnesses but on our specific query she could not point out any
major contradiction, which could shatter the case of the prosecution.
While appreciating the evidence, the court must not attach undue
importance to minor discrepancies and such minor discrepancies which do
not shake the salient features of the prosecution case should be ignored.
The accused cannot claim premium of such minor discrepancies. If
importance be given to such insignificant inconsistencies then there would
hardly be any conviction. Reliance is placed on Allah Bakhsh Vs. Ahmad Din
(1971 SCMR 462). Learned counsel for the petitioner had argued that
there was no blood stained earth at the place of occurrence, which shows
that the occurrence took place somewhere else and just to bring the case
within the prosecution version, the place of occurrence was mentioned at
the complainant's house. However, this argument of the learned counsel is
JAIL PETITION NO. 190 OF 2017 AND 
-: 5 :-
CRIMINAL  PETITION NO. 398-1 OF 2017
misconceived. The postmortem examination clearly suggests that gut was
coming out of the only injury sustained by the deceased. The learned Trial
Court has rightly observed that in such like injuries when the gut comes
out of the belly, it seals the margin of the wound and the blood falls inside
the body cavity instead of oozing outside the body. Dr. Samreen Rasheed,
(PW-2) who had conducted postmortem examination had observed that
the peritoneum was injured anterioly at the level of umbilicus and the
abdominal cavity was full of blood, the small intestines were perforated,
therefore, non-existence of blood at the place of occurrence is easily
understandable and does not shatter the prosecution case. The petitioner
had taken defence plea that he had friendly relations with the deceased
and when he was seen by the complainant's son with the deceased sitting
in the cotton crop, he ran away and later heard that the deceased has
been murdered. However, he could not substantiate his plea by placing on
record cogent evidence. It seems he has concocted a false story just to
save his skin. However, this stance of the petitioner extends support to the
prosecution case that he was followed by Mukhtiar Hussain (PW-6) till the
cotton crop where confrontation took place and his identity card along
with other belongings were left by him in the field. It was one of the
arguments of the learned counsel that the Investigating Officer did not
properly investigate the case, the investigation remained incomplete and
the challan was not properly sent. However, on our specific query, learned
counsel admitted that neither any attempt was made by the defence to
get the Investigating Officer declared hostile nor did they file private
complaint nor even the Investigating Officer was cross-examined on this
aspect of the matter. Therefore, raising this argument at this stage 15 of no
avail to the petitioner. The prosecution had not disclosed the motive,
which resulted in the commission of the offence but since there was no
enmity between the parties, therefore, the complainant did not narrate
any motive in the crime report. So far as recovery is concerned, admittedly
neither the weapon of offence was recovered from the petitioner nor any
empty was collected from place of occurrence. However, we may observe
at where ocular evidence is found trustworthy and confidence Inspiring
I T 
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JAIL PET II[ON NO. 190 OF 20].] AND
CRIMINAL PETITION NO, 398-1 OF 2017
then the conviction can be solely based upon it. In these circumstances,
there is sufficient evidence available to sustain the conviction of the
petitioner/convict. So far as the quantum of punishment is concerned,
keeping in view the fact that no recovery was affected and motive has not
been proved, the learned High Court has rightly taken a lenient view and
converted the sentence of death into imprisonment for life. No further
leniency can be shown to the petitioner/convict. The impugned judgment
is well reasoned, proceeds on correct principles of law on the subject and
does not call for interference by this Court.
7. 
For what has been discussed above, we do not find any merit
in these petitions, which are dismissed and leave to appeal is refused.
Islamabad, the 
16th of August, 2022
r'4Approved For Reporting
ILiIffitii•i
