IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAWED MAZAHAR ALl AKBAR NAQVI
CRIMINAL PETITION NO. 499 OF 2019
Con appeal against the judgment dated 20022019
passed by the Lahore High Court, Rawalpindi
Bench in Criminal Appeal No. 393/2018)
Tajamal Hussain Shah
Petitioner
VERSUS
The State and another
Respondents
For the Petitioner: 
Mr. Talat Mehmood Zaidi, ASC
Mr. Muhammad Sharif Janjua, AOR
For the State: 
Mirza Muhammad Usman, DPG
Date of Hearing: 21042022
JUDGMENT
SAYVED MAZAHAR All AKBAR NAQVI. J.- Petitioner was tried by the
learned Additional Sessions Judge, Jand, Attock pursuant to a case
registered vide FIR No. 238 dated 07.11.2009 under Sections 302/34 PPC
at Police Station Jand, Attock, for committing murder of Muhammad
Sajjad, son of the complainant. The learned Trial Court vide its judgment
dated 06.04.2018 convicted the petitioner under Section 302(b) PPC and
sentenced him to imprisonment for life. He was also directed to pay
compensation amounting to Rs. 300,000/- to the legal heirs of the
deceased Muhammad Sajjad or in default whereof to further undergo SI
for six months. Benefit of Section 382-B Cr.P.C. was also extended to him.
In appeal, the learned High Court maintained the conviction and sentences
recorded by the learned Trial Court,
2. The prosecution story as given in the judgment of the
learned Trial Court reads as under:-
CRIMINAL PETITION NO. 499 OF 2019
"2. As per brief facts narrated in complaint Exh.PL, complainant
Muhammad Aslam son of Khan Mulakh (since deceased) was
resident of Chapri, he was cultivator by profession. On 07.11.2009 at
about 0430 p.m. complainant was present at Hussain! Chowk
Chapri, while his son Muhammad Sajjad (since deceased) was
proceeding to the shop of one Jabir for purchasing mobile card.
Aashiq Hussain Shah son of Dildar Hussain Shah, Tajamal Hussain
and Nazakat Hussain sons of Aashiq Hussain residents of Chapri
were sitting on the chairs outside their Baitakh. After purchasing the
card on returning back to home, when Muhammad Sajjad son of
complainant reached near the house of Ashiq Hussain Shah, Nazakat
Hussain son of Ashiq Hussain caught hold of Muhammad Sajjad
while abusing, he started scuffling and called his father and brother
that today Muhammad Sajjad beaten him. On which Tajamal
Hussain son of Ashiq Hussain while abusing took out pistol 30 bore
from his Dhab and made fire shot on Muhammad Sajjad, which
landed on his chest, who became injured and fell down. On seeing
the occurrence, complainant went forward to rescue his son, on
which Ashiq Hussain Shah son of Dildar Hussain took out pistol and
made fire shot on complainant, which landed on the right arm of
complainant, Ashiq Hussain made 2d fire shot, which landed on the
rib of right side; in the meanwhile, Ghulam Raza son of Jewan Khan,
Zulfiqar Ahmad son of Bashir Ahrnad, Muhammad Razzaq son of
Noor Khan alongwith other people while seeing the occurrence
came and rescued them. Motive behind the occurrence is that
quarrel had took place between Nazakat Hussain Shah and Wajid
son of complainant prior, due to which Ashiq Hussain Shah along
with his son, in furtherance of common intention, in order to take
revenge of their disgrace injured them. Complainant alongwith his
son Muhammad Sajjad were being taken to hospital in injured
condition for medical treatment, on the way Muhammad Sajjad
succumbed to the injuries."
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 19 witnesses and one CW. In his
statement recorded under Section 342 Cr.P.C, the petitioner 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.
4.
At the very outset, learned counsel for the petitioner argued
that there are material contradictions and discrepancies in the prosecution
evidence, which have not been properly dealt with by the courts below.
Contends that the injury ascribed to the petitioner by the witnesses of the
CRIMINAL PETITION NO. 499 OF 2019 
3
ocular account was on chest of the deceased but the same is contradicted
by the medical evidence. Contends that the plea of alibi of the petitioner
was verified by the Investigating Officer but the same has not been given
any credence. Contends that the prosecution has to prove its case without
any shadow of doubt but it has miserably failed to prove its case.
Contends that the reasons given by the learned courts below to sustain
conviction of the petitioner are speculative and artificial in nature and
resulted into miscarriage of justice, therefore, the impugned judgment
may be set aside.
5. On the other hand, learned Law Officer has supported the
impugned judgment. He contended that the evidence led by the
prosecution in the shape of ocular version duly supported by medical
evidence is sufficient to sustain the conviction of the petitioner. He
contends that any minor discrepancy in the prosecution evidence does not
entitle the petitioner for acquittal Lastly contends that the petitioner
remained absconder for ten years, which clearly indicates that he was fully
involved in the commission of the crime, therefore, he does not deserve
any leniency by this Court.
6. We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
The ocular account in this case is furnished by Zulfiqar
Ahmed (PW-18) and Muhammad Daraz (PW-19). According to these PWs
of the ocular account, the petitioner while armed with .30 bore pistol
made a straight fire shot on Muhammad Sajjad, deceased, which landed
on his chest, due to which he fell down and ultimately succumbed to the
injury. However, this stance is contradicted by the medical evidence.
According to Dr. Raheem Khan (PW-15), who conducted postmortem
examination of the deceased Muhammad Sajjad, the injury on the chest,
just above the nipple of the deceased, was an exit wound and the margins
of the wound were black whereas the entry wound was on the back of the
deceased i.e. at thoracic spine. The blackening around the wound shows
that the fire shot would have been made from a close range but according
CRIMINAL PETITION NO. 49$ OF 2019 
4
to the site plan, the petitioner was shown standing at a distance of 18
steps away from the deceased. This major discrepancy raises serious
doubts on the credibility of the prosecution witnesses of the ocular
account. It was petitioner's stance that on the fateful day and time, he was
not present at the place of occurrence and was visiting his cousin, who
was posted at 62 signal Battalion Misrial Road, Rawalpindi and in-fact the
deceased alongwith 25/30 persons attacked upon his house while armed
with lethal weapons and beat his father. This plea of alibi of the petitioner
was inquired into by the Investigating Officer i.e. Mehmood Khan, SI (PW-
17), who after thorough investigation found the same to be true. The 10.
also got a verification letter dated 2.02.2017 issued by the Commanding
Officer of 62 Battalion, which was placed on record. In support of this
assertion, Havaldar Tamraiz Khan, 62 Signal Battalion appeared as DW-7
and stated on oath that on the fateful day and time, the petitioner was
physically present at 62 signal Battalion. This plea of alibi finds support
from record produced by DW-7. The pistol .30 bore allegedly recovered on
the pointation of the petitioner was transmitted to the Punjab Forensic
Science Agency but the matching report of the same with crime empties
recovered from the spot was negative, therefore, the recovery of pistol
becomes inconsequential. According to the prosecution the motive of the
occurrence was previous quarrel between co-accused Nazakat Hussain
Shah (tried separately) and Wajid, son of the complainant. However, the
prosecution failed to produce the said Wajid in order to prove the motive
part, therefore, it can safely be concluded that prosecution could not
prove the motive part of the story. So far as the argument of the learned
Law Officer about the absconsion of the petitioner is concerned, it is
settled law that absconsion cannot be viewed as a proof for the offence,
which cannot be made basis for conviction, rather it is the prosecution
who has to prove its case independently without any reasonable shadow
of doubt. In Rasool Muhammad Vs. Asal Muhammad (PU 1995 SC 477) this
Court has held that mere absconsion cannot be made a ground to discard
the relief sought for as disappearance of a person after the occurrence is
 but natural if he is involved in a murder case rightly or wrongly. In these
CRIMINAL PETITION NO. 49P OF 2019 
5
circumstances, a doubt in the prosecution case has arisen, benefit of
which must be given to the petitioner. It is a 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.
7. For what has been discussed above, this petition is
converted into appeal and allowed and the impugned judgment is set
aside. The petitioner 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
21" of April, 2022
Approved For Reporting
I (,. Itid till'
