IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE SARDAR TARIQ MASOOD 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
MR. JUSTICE JAMAL KHAN MANDOKHAIL  
 
CRIMINAL APPEAL NO. 293 OF 2020 
(On appeal against the judgment dated 09.03.2016 
passed by the Lahore High Court, Rawalpindi Bench in 
Criminal Appeal No. 19-J/2012 and Murder Reference 
No. 16/2012) 
 
Bashir Muhammad Khan 
 
 
… Appellant 
Versus 
The State 
 
 
…Respondent(s) 
 
For the Appellant: 
Raja Muhammad Rizwan Ibrahim Satti, ASC 
 
 
For the State: 
Mr. Muhammad Jaffer, Addl. P.G. 
 
 
Date of Hearing: 
07.02.2022 
 
JUDGMENT 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant Bashir 
Muhammad Khan along with three co-accused was proceeded 
against in terms of the case registered vide FIR No. 387/2008 dated 
29.11.2008 under Sections 302/109/34 PPC at Police Station 
Kahuta, District Rawalpindi for committing murder of Sagheer 
Hussain son of the complainant. However, co-accused Muhammad 
Waqar and Muhammad Shahid were discharged from the case on 
the basis of supplementary statement of the complainant while co-
accused Badshah Khan was declared proclaimed offender. The 
learned Trial Court vide its judgment dated 22.02.2012 convicted 
the appellant under Section 302(b) PPC and sentenced him to death. 
He was also directed to pay compensation amounting to 
Rs.100,000/- to the legal heirs of the deceased to be recoverable as 
arrears of land revenue. In default of payment of fine, the appellant 
was directed to further undergo imprisonment for a period of six 
months. However, in appeal the learned High Court altered the 
sentence of death into imprisonment for life. The amount of 
Criminal Appeal No. 293/2020 
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compensation and the sentence in default whereof was maintained. 
Benefit of Section 382-B Cr.P.C. was also extended to the appellant.  
2. 
 
The prosecution story as given in the judgment of the 
learned Trial Court reads as under:- 
“Muhammad Saleem complainant maintained through 
the above petition that his son Sagheer Hussain was 
doing the business of shuttering with Zakir Mehmood, 
Rustam Javed and Habir ur Rehman, at Punjaar Chowk, 
Kahuta. Sagheer Hussain deceased victim had obtained 
contract of under construction house of Zia Ullah. The 
contract for the construction of above said house was 
obtained by Badshah Khan who had sublet the contract 
for the plaster of said house to Muhammad Bashir 
accused, Shahid and Waqar. On the fateful morning of 
29.11.2008 Sagheer Hussain son of the complainant 
alongwith Zakir, Rustam and Habib ur Rehman went to 
the place of work. At about 9.00 AM when son of the 
complainant took the pipe for having water, Muhammad 
Bashir accused pulled the said pipe upon which 
altercation took place between them. During this 
altercation Bashir accused made straight fireshot of 
pistol .30 bore hitting Sagheer Hussain on his mouth 
and teeth. The second fireshot made by Shahid with 
pistol .30 bore hit right buttock of Sagheer Hussain. In 
the meanwhile Waqar made third fire with pistol .30 
bore hitting on left buttock of Sagheer Hussain who fell 
down and succumbed to the injuries at the spot. The 
motive behind had been altercation taking place on 
28.11.2008 about taking of water. The occurrence was 
committed at the instance of Badshah Khan accused.”  
 
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 15 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 opt to appear under Section 340(2) Cr.P.C. to 
lead defence evidence. 
4. 
 
Learned counsel for the appellant contended that the 
complainant had not witnessed the occurrence himself and had 
nominated three accused in the case for making effective firing on 
the person of the deceased on the basis of information conveyed to 
him by Habib-ur-Rehman, Zakir Mehmood (PW-9) and Rustam Javed 
Criminal Appeal No. 293/2020 
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(PW-10) but Habib-ur-Rehman was not produced as a witness before 
the Trial Court whereas Zakir Mehmood (PW-9) and Rustam Javed 
(PW-10) subsequently resiled from their earlier statement recorded 
under Section 161 Cr.P.C and testified that the co-accused Shahid 
and Waqar had not fired upon the deceased. Contends that the 
complainant in his supplementary statement has also exonerated 
the said two co-accused. Contends that the three crime empties 
recovered from the place of occurrence did not match with the pistol 
allegedly recovered from the appellant but the learned courts below 
did not take this into consideration. Lastly contends that the learned 
High Court while passing the impugned judgment has not taken into 
consideration the above-said aspects of the matter and has not 
appreciated the evidence in its true prospective, therefore, a great 
miscarriage of justice has been done.  
5. 
 
 On the other hand, learned Law Officer has defended 
the impugned judgment. He contended that the appellant has 
committed murder of an innocent person and the evidence available 
on record is sufficient to prove the case against him, 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 the record with 
their able assistance.  
 
 
The perusal of the record clearly reveals that the 
complainant had not seen the occurrence and had nominated the 
appellant and co-accused in the crime report for committing murder 
of his son by firing upon him on the basis of information received 
from Habib-ur-Rehman, Zakir Mehmood (PW-9) and Rustam Javed 
(PW-10). However, Habib-ur-Rehman was not produced as a 
prosecution witness while Zakir Mehmood (PW-9) and Rustam Javed 
(PW-10) subsequently resiled from their earlier statement recorded 
under Section 161 Cr.P.C and testified that the co-accused Shahid 
and Waqar had not fired upon the deceased. It is also an admitted 
position that the complainant in his supplementary statement 
recorded after one and half month of the occurrence i.e. 15.01.2009 
had also exonerated the said two co-accused Muhammad Waqar 
Criminal Appeal No. 293/2020 
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and Muhammad Shahid. When during the cross-examination the 
PWs were confronted about their earlier statements recorded under 
Section 161 Cr.P.C. they could not give any plausible explanation. 
Delayed recording of statement of PW under Section 161 Cr.P.C. 
reduces its value to nil unless and until it is explained rendering 
justiciable reasonings. Reliance is placed on the judgment reported 
as Abdul Khaliq Vs. The State (1996 SCMR 1553). This judgment 
was followed by this Court in another judgment reported as Noor 
Muhammad Vs. The State (2020 SCMR 1049) as also in an 
unreported judgment passed in Criminal Petition No. 537/2021. 
Keeping in view the conduct of the PWs, it would not be safe to only 
rely upon their statements to sustain conviction of the appellant and 
there must be some independent corroboration to the extent of his 
involvement in commission of the crime. So far as the recovery of 
pistol .30 bore from the appellant is concerned, as per the report of 
the Forensic Science Laboratory the crime empties of .30 bore did not 
match with the pistol, therefore, the recovery is held inconsequential. 
As far as the abscondence of the appellant for a period of about six 
months is concerned, this question was not put to the appellant in 
his statement under Section 342 Cr.P.C, therefore, the same cannot 
be used against him. The medical evidence is inconsistent with the 
ocular account as regards injury No. 3 on the right hip of the 
deceased is concerned, which in-fact was an exit wound but 
according to the prosecution witnesses of ocular account the same 
was an entry wound. In these circumstances, a dent in the 
prosecution’s case has been created, benefit of which must be given 
to the appellant. It is a settled law that 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’s case is to be resolved in favour of the 
accused and burden of proof is always on prosecution to prove its 
case beyond reasonable shadow of doubt. 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. 293/2020 
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7. 
 
For what has been discussed above, this appeal is 
allowed and the impugned judgment is set aside. Appellant is 
acquitted of the charge. He shall be released from jail forthwith 
unless detained in any other case.  
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
7th of February, 2022 
Approved For Reporting 
Khurram 
