IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE VAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI
JAIL PETITION NO. 154 OF 2016 AND
CRIMINAL PETITION NO. 108-1 OF 2016
(Against the judgment dated 23,12,2015 passed by the Lahore
High Court, Lahore passed in Criminal Appeal No. 810/2011 &
Murder Reference No. 209/2011)
Shamsher Ahmad 
On JP 154/2016)
Manzoor Ahmed (complainant) 
(In Cr.P. 108-L/2016)
Petitioner(s)
VERSUS
The State 
(In JP 1S4/2016)
ShamsherAhmad and another 
(In Cr.P. 108-L/20161
...Respondent(s)
For the Petitioner(s): 
Malik Matee UIlah, ASC
(in J p 154/2o16)cv %a or ciso Unic iDLakeyt).
Mr. Saiful Malook, ASC
(In Cr.P. 108-LJ2016)
For the State: 
Mirza Abid Majeed, DPG
Date of Hearing: 01.08.2022
JUDGMENT
SAWED MAZAHAR All AKBAR NAQVI, 3.- Petitioner Shamsher Ahmed was
tried by the learned Sessions Judge, Mianwali pursuant to a case
registered vide FIR No. 185 dated 03.06.2009 under Section 302 PPC at
Police Station Kundian, District Mianwali for committing murder of Ishtiaq
Ahmed, son of the complainant. The learned Trial Court vide its judgment
dated 28.04.2011 convicted petitioner Shamsher Ahmed under Section
302(b) PPC and sentenced him to death. He was also directed to pay
compensation amounting to Rs.200,000/- 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
.
.,
I 
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JAIL PETITION NO. 154 OF 2016 AND 
-: 2
CRIMINAL PETITION NO, 108-L OF 2016
petitioner/convict under Section 302(b) PPC, altered the sentence of death
into 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. 154/2016 whereas
the complainant has filed Criminal Petition No. 108-L/2016 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 case are that Manzoor Ahmed
complainant (PW-6) got registered FIR (Ex.PE) alleging that he is
resident of Doaba and serving as a teacher in Elementary School, JaaI
Shuniali, his sister Mst. Wazir Khatoon widow of Malik GuI Sher is
residing in Mohallah Seelwan, Kundian along with her children and is a
patient of paralysis. Yesterday at Degar vela he along with Ishtiaq
Ahmed his son aged 18 years and Riaz Ahmed son of Allah Ditta went
to inquire about her health, after having dinner he along with Riaz
Ahmed, Ishtiaq Ahmed his son and Sami Ullah son of his sister came on
Jernaili Road for easy load and did the needful after having tea at the
hotel and then returned back at about 10.15 PM when they reached in
front of house of Malik GuI Sher deceased, then Shamsher Ahmed
accused armed with double barrel 12 bore gun came from the front
street and raised a lalkara at Ishtiaq Ahmed his son to be prepared as
he has come to teach him a lesson being an impediment in his
marriage from the house of GuI Sher and fired a shot with his 12 bore
double barrel gun hitting his son Ishtiaq Ahmed on the Chest who fell
down after receiving the injury; that the occurrence was seen by Riaz
Ahmed and Sami Ullah in the tube light installed on the main gate
along with the complainant. The motive for the occurrence is that
Shamsher Ahmed accused wanted to tie the knot with the daughter of
his sister but his sister had refused to accede to his request to which
the accused Shamsher Ahmed had a grouse that the deceased was
hurdle in his way to be married from the house of Gui Sher, therefore,
due to this reason he has committed Qatl-e-Amad of Ishtiaq Ahmed,
his son with 12 bore double barrel gun. The accused ran away while
brandishing the gun towards east, they did not went near due to fear
and took Ishtiaq Ahmed in injured condition to hospital who
succumbed to the injuries after reaching in the hospital."
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 11 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
JAIL PETITION NO. 154 OF 2015 AND
CRIMINAL PETITION NO. 108-L OF 2016
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. Learned counsel for the petitioner/convict contended that
there is a delay of about three hours in lodging the FIR whereas the inter
se distance between the place of occurrence and the police station was 1
& 'I, kilometers. Contends that it was a night time occurrence and it was
not possible for the prosecution witnesses to identify the accused.
Contends 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 the recovery of
weapon of offence in absence of recovery of empty is inconsequential.
Contends that the postmortem was conducted after eight hours of the
occurrence for which no reason is given. Lastly contends that the reasons
given by the learned High Court to sustain conviction of the petitioner are
speculative and artificial in nature, therefore, the impugned judgment has
to be set at naught.
S. On the other hand, learned Law Officer assisted by 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. Contend that to sustain conviction of an accused on
a capital charge, un-rebutted ocular evidence alone is sufficient. Lastly
contend that the ocular account is supported by the medical evidence,
therefore, the petitioner/convict does not deserve any leniency by this
Court. Learned counsel for the complainant vehemently argued that the
entence of the petitioner/convict may be enhanced.
JAIL PETITION NO. 154 OF 2016 AND 
4:-
CRIMINAL PETITION NO. 108-L OF 2016
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
ManzoOr Ahmed, complainant (PW-6) and Samiullah (PW-7). 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 produced 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,
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. So far as the argument of learned counsel for
the petitioner that the medical evidence contradicts the ocular version is
concerned, we may observe that where ocular evidence is found
trustworthy and confidence inspiring, the same is given preference over
medical evidence. It is settled that casual discrepancies and conflicts
appearing in medical evidence and the ocular version are quite possible
for variety of reasons. During occurrence when live shots are being fired,
witnesses in a momentary glance make only tentative assessment of
points where such fire shots appeared to have landed and it becomes
highly improbable to mention their location with exactitude. However,
learned counsel could not point out as to how the medical evidence
contradicts the ocular evidence. 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, it
is by now a well established principle of law 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.
samiullah (PW-7) was son of Mst. Wazir Khatoon, sister of the complainant
EJ
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JAIL PETITION NO, 154 OF 2016 AND 
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CRIMINAL PETITION NO. 108-L OF 2016
and resident of the same area where the occurrence took place whereas
the complainant has reasonably explained his presence at the place of
occurrence. According to him, he went to his paralyzed sister's house to
inquire about her health. Learned counsel for the petitioner/convict could
not point out any 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 son. Substitution in such like cases is a
rare phenomenon. The complainant would not prefer to spare the real
culprit who murdered his son and falsely involve the petitioner without
any rhyme and reason. 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 he 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). So far as the delay of about 2
hours 45 minutes in lodging the FIR is concerned, the complainant in his
cross-examination has reasonably explained the delay by furnishing the
details about the consuming of time as it took 15/20 minutes at the spot,
about 30 minutes in reaching the hospital, he remained in hospital for
about one hour and then reached the police station in another 35-40
minutes where he had to wait for the SHO for more than an hour. Learned
counsel for the petitioner/convict had argued that as it was a night time
occurrence, therefore, it was not possible for the prosecution witnesses to
identify the accused. However, this argument of the learned counsel is
misconceived as the petitioner is paternal cousin of Samiullah (PW-7),
therefore, the parties were known to each other and no question of
mistaken identify arises. Even otherwise, the prosecution witnesses of
ocular account had clearly mentioned that a tube-light was glowing at the
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JAIL PETITION NO. 154 OF 2016 AND 
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CRIMINAI PETITION NO. 108-1 OF 2016
main gate of Mst. Wazir Khatoon, sister of the complainant, in front of
which the occurrence took place. Although it has been argued that the
tube-light, which has been shown as source of the light was not taken into
possession and as such it hampers the prosecution case. However, this
aspect of the argument has no legal foundation. Firstly, it depends upon
the ownership of the article, which ultimately provided the source for
identification, and secondly, it is for the Investigating Officer either he
deems it essential or otherwise Even if this aspect of the argument is
evaluated broadly, it is suffice to state that this principle is not absolute
because it depends upon (i) source, (ii) question of ownership, (iii) public
or private, & (iv) essential to show the source. When all these matters are
taken into consideration, it is established that it was a tube-light and as
such the same cannot be made part of case property merely on the
ground that the assailant was identified from the source, which has been
shown. This source of light is also established from the rough site plan as
well as scaled site plan, which is essential part of the prosecution case. The
delay of about eight hours in conducting postmortem examination is also
not beneficial to the petitioner/convict. The occurrence took place at
10.15 PM whereas the FIR was lodged at 1.00 am (mid night) and it was
after the registration of FIR that the state machinery came into action and
after usual proceedings the postmortem examination was conducted at
6.15 am in the morning i.e. after five hours of registration of FIR. After the
occurrence, the petitioner also remained absconder for about six months,
which is also a corroboratory piece of evidence against him. The learned
High Court has rightly disbelieved the motive by holding that there is no
positive proof that the deceased was instrumental in rejection of
matrimonial proposal sent by the petitioner. So far as the recovery of
weapon of offence i.e. .12 bore rifle is concerned, admittedly no empty
was recovered from the place of occurrence, which could be sent to
Forensic Science Laboratory for analysis, therefore, the recovery is
inconsequential. In these circumstances, there is sufficient evidence
available to sustain the conviction of the petitioner/convict. So far as the
antum of punishment is concerned, keeping in view the fact that
I
JAIL PETITION NO. 154 OF 2016 AND 
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CRIMINAL PETITION NO, 108-L OF 2016
recovery is inconsequential 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. The impugned judgment is well reasoned, proceeds on correct
principles of law on the subject and does not call for interference by this
Court.
For what has been discussed above, we do not find any merit
in these petitions, which are dismissed and leave to appeal is refused. The
above are the detailed reasons of our short order of even date.
Islamabad, the
I' of August, 2022
Approved For Reporting
Iiti,iit.i.ii
