2022 S C M R 1882

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ

SAJID MEHMOOD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 398 of 2020, decided on 31st May, 2022.

(Against the judgment dated 01.02.2018 passed by the Lahore High Court, Rawalpindi Bench in Criminal
Appeal No. 281/2015, Criminal Revision No. 130/2015 and Murder Reference No. 36/2015)

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Prosecution witnesses were subjected to lengthy cross-

examination by the defence but nothing favourable to the accused or adverse to the prosecution could be
produced on record---Ocular account furnished by the prosecution was reliable, straightforward and confidence
inspiring---Both prosecution witnesses were inmates of the house, in front of which occurrence took place,
therefore, their presence was natural and the same was fully established from the record---Medical evidence
available on the record corroborated the ocular account so far as the nature, time and impact of the injury on the
person of the deceased was concerned---Counsel for the accused could not point out any plausible reason as to
why the complainant would falsely involve the accused in the present case and let off the real culprit, who had
committed murder of his real brother---Substitution in such like cases was a rare phenomenon---According to the
report of the Forensic Science Labo-ratory, the crime empty was found fired from the pistol recovered from the
accused---Conviction of accused under section 302(b), P.P.C. was maintained---Appeal was dismissed.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Medical evidence and ocular account---Preference---Where ocular evidence is found

trustworthy and confidence inspiring, the same is given preference over medical evidence---Casual discrepancies
and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons---
During an incident when live shots are being fired, witnesses in a momentary glance make only tentative
assessment of points where such fire shots appear to land and it becomes highly improbable to mention their
location with exactitude.

(c) Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd---Prosecution witnesses related to the deceased---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.

(d) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Minor discrepancies in prosecution case---While appreciating the evidence, the court
must not attach undue importance to minor discrepancies---Such minor discrepancies which do not shake the
salient features of the prosecution case should be ignored---Accused cannot claim premium of such minor
discrepancies---If importance is given to such insignificant inconsistencies then there would hardly be any
conviction.

(e) Criminal Procedure Code (V of 1898)---

----Ss. 161, 265-F(2), 265-F(7) & 540---Witness mentioned in FIR but whose statement is not recorded under
section 161, Cr.P.C.---Whether such witness could be examined under section 256-F or section 540, Cr.P.C. and
his evidence relied upon---Held, that perusal of section 265-F, Cr.P.C. shows that nowhere in the said section it is
mentioned that only those witnesses could be examined whose statements under section 161, Cr.P.C. have been
recorded---Under section 265-F, Cr.P.C. the Trial Court is not bound to record the statements of only those
witnesses who have been listed in the calendar of witnesses---Furthermore there is no bar that a witness, whose
statement under section 161, Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to be
examined under section 540, Cr.P.C.---When a witness is examined in Court, whose statement has not been
recorded at the time of investigation under section 161, Cr.P.C., the evidentiary value to be attached to the
evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused
then the evidence of such witness may or may not be acted upon.

To arrive at a just conclusion, the courts can call any person likely to be acquainted with the facts of the
case after ascertaining it from the Public Prosecutor or the complainant, subject to general provisions that
summoning of any such witness does not cause delay or defeat the ends of justice. Section 265-F(2) of Cr.P.C
empowers the Courts to summon a person, after having been ascertained from the Public Prosecutor or the
complainant, who is likely to be acquainted with the facts of the case, to be able to give evidence for the
prosecution. Section 265-F(7), Cr.P.C grants even to the accused a right to apply for summoning any witness and
production of documents. The very purpose of section 265-F, Cr.P.C is to ensure the concept of a fair trial and to
achieve this purpose equal opportunity has been given to both the accused and the prosecution for summoning
the evidence. It is nowhere mentioned in this section that only those witnesses could be examined whose
statements under section 161, Cr.P.C. have been recorded. Under this provision of law i.e. section 265-F, Cr.P.C
the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar
of witnesses.

On the other hand, section 540, Cr.P.C. empowers the Trial Court to summon a material witness even if
his name did not appear in the column of witnesses, provided his evidence is deemed essential for the just and
proper decision of the case. Section 540 is divisible in two parts. In the first part, discretion is given to the Court
and enables it at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a
witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose
evidence had already been recorded. On the other hand, the second part appears to be mandatory and requires the
Court to take any of the steps mentioned above if the new evidence appears to be essential to the just decision of
the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused
and the prosecution but also justice from the point of view of the society. The Court examines evidence under
this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the
prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is
whether the Court considers this evidence necessary in the facts and circumstances of the particular case before
it. If this results in only "filling of lacuna" that is purely a subsidiary factor and cannot be taken into
consideration. There is no bar that a witness, whose statement under section 161, Cr.P.C. had not been recorded
at the time of investigation, cannot be allowed to be examined under section 540, Cr.P.C. When a witness is
examined in Court, whose statement has not been recorded at the time of investigation under section 161,
Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if it is
found that prejudice has been caused to the accused then the evidence of such witness may or may not be acted
upon.

(f) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Witness, evidence of---Scope---Believing or disbelieving a witness, depends upon

intrinsic value of the statement made by him---No universal principle that in every case, interested witnesses
should be disbelieved or disinterested witnesses be believed; it all depends upon the rule of prudence and
reasonableness to hold that a particular witness was present on scene of crime and that he is making a true
statement---What is relevant is what statement has been given and it is not the person but the statement of that
person which is to be seen and adjudged.

Abid Ali v. The State 2011 SCMR 208 ref.

(g) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Testimony of single witness---Conviction---Scope---Conviction in a murder case can

be based on the testimony of a single witness, if court is satisfied that he is reliable---Quality of evidence matters
and not its quantity.

Niaz-ud-Din v. The State 2011 SCMR 725; Asim v. The State 2005 SCMR 417; Lal Khan v. The State
2006 SCMR 1846 and Muhammad Sadiq v. The State 2022 SCMR 690 ref.

(h) Medical jurisprudence---

----Concept of 'rigor mortis' and factors affecting the same explained.

The phrase rigor mortis is latin with rigor meaning stiffness and mortis meaning death. Rigor mortis is a
temporary condition. Depending on body temperature and other conditions, rigor mortis lasts proximately for 72
hours. The phenomenon is caused by the skeletal muscles partially contracting. The muscles are unable to relax,
so the joints become fixed in place. Factors that affect rigor mortis include (i) temperature/weather, (ii) physical
exertion, (iii) age, (iv) body fat, (v) any illness the person had at the time of death, (vi) sun exposure, (vii)
gender, (viii) body structure, (ix) genetics, (x) tribe and (xi) inhabitation.

(i) Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence reduced to life
imprisonment---High Court while taking into consideration the fact that the motive part of the prosecution story
was not proved; there was no blood feud between the parties; what actually preceded just before the occurrence
remained shrouded in mystery; accused only fired single shot and co-accused of the accused had been acquitted
by the Trial Court, had rightly taken a lenient view and converted the sentence of death into imprisonment for
life---No further leniency could be shown to the accused in the matter of his sentence---Appeal was dismissed.

Muhammad Ahsan Bhoon, Advocate Supreme Court, Syed Ali Imran, Advocate Supreme Court and Syed
Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Ahmed Raza Gillani, Additional P.G. for the State.

Date of hearing: 31st May, 2022.

JUDGMENT

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Appellant Sajid Mehmood along with three co-
accused was tried by the learned Sessions Judge, Jhelum in terms of the case registered vide FIR No. 13 dated
16.01.2014 under sections 302/34, P.P.C. at Police Station Civil Line, District Jhelum, for committing murder of
Azeem Ahmed, brother of the complainant. The learned Trial Court vide its judgment dated 23.06.2015 while
acquitting the co-accused, convicted appellant Sajid Mehmood under section 302(b), P.P.C. and sentenced him to
death. He was also directed to pay compensation amounting to Rs.500,000/- to the legal heirs of the deceased. In
case of non-payment of the compensation, the same was ordered to be recovered as arrears of land revenue and
the appellant was to suffer SI for six months. In appeal the learned High Court while maintaining the conviction
of the appellant under section 302(b), P.P.C., altered the sentence of death into imprisonment for life. The
amount of compensation and the mode of recovery thereof was maintained. Benefit of section 382-B, Cr.P.C. was
also extended to the appellant. Being aggrieved by the impugned judgment, the appellant filed Jail Petition No.
160/2018 wherein leave was granted by this Court on 02.06.2020 and the present appeal has arisen out of the
same.

2. The prosecution story as given in the impugned judgment reads as under:-

"2. The brief facts of the case as unfolded in the FIR, recorded on the statement of Jameel Hussain,
complainant (PW-10) are that on 16.01.2014, he (complainant) along with his father Karamat Hussain,
PW and his brother Zameer Ahmad was present outside the gate of his house for participating in Milad
Sharif in the mosque, when at about 8.30 p.m. Azeem Ahmed, deceased (brother of complainant) came
there on his white coloured cultus car bearing registration No. LW/9991 from city side. Azeem Ahmad
(deceased) parked his car in front of his house and as soon as he alighted from his car, accused persons
namely Sajid Mehmood alias Saja, Aurangzeb alias Ranga, Abdul Samad all armed with the pistol 30 bore
respectively also arrived thereon white colour car being driven by Shahid alias Sando, the accused
Aurangzeb alias Rangha raised a lalkara and consequently Sajid Mehmood alias Saja made a straight fire
shot of his pistol targeting left thigh of Azeem Ahmad. On receipt of this pistol's fire Azeem Ahmad fell
down on the ground and succumbed to his injuries on the spot and accused persons on their car vanished
from the place of occurrence. The occurrence was witnessed by complainant, Zameer Hussain (PW-1) and
Karamat Hussain (since given up).
The motive behind the occurrence was that on the previous night of the occurrence, the accused persons
had got set on fire the Haveli of the complainant party and falsely involved Junaid and others in the
occurrence; the respectable of the locality had patched up that matter between the complainant party and
Junaid and others; due to this grudge, the accused committed the murder of complainant's brother. Hence,
the crime report."

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 13 witnesses. In his statement recorded under section
342, Cr.P.C. the appellant pleaded his innocence and refuted all the allegations levelled against him. However, he
did not make his statement on oath under section 340(2), Cr.P.C. in disproof of allegations levelled against him.
He also did not produce any evidence in his defence.

4. Learned counsel for the appellant contended that it was an un-witnessed occurrence and the whole
prosecution case is concocted one. Contends that even 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 complainant was brother of the deceased, therefore, his testimony cannot be believed to sustain
the conviction of the appellant. Contends that there is conflict between medical and ocular account. Contends that
the postmortem examination was conducted after two hours of the occurrence and in such a short span of time,
the rigor mortis could not develop as such contradicted time of occurrence. Contends that according to
prosecution witnesses, the dead body of the deceased was brought to the hospital in car whereas according to Dr.
Saeed Anwar (PW-7), the dead body was brought by Rescue 1122, which speaks volumes on the conduct of the
prosecution witnesses. Contends that although Zameer Hussain (PW-11) was mentioned as witness in the FIR but
the Police did not record his statement under section 161, Cr.P.C., therefore, the said witness could not be
examined to corroborate the solitary evidence of other eye-witness i.e. the complainant.

5. On the other hand, learned Law Officer has defended the impugned judgment by contending that the
judgment of the learned High Court is well reasoned, based on correct principles of law and has examined the
evidence in its true perspective, therefore, the same does not call for any interference 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 ocular account in this case has been furnished by Ch. Jameel Hussain, complainant (PW-10) and
Zameer Hussain (PW-11). These prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the appellant 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 and impact of the injury on the person of
the deceased is concerned. So far as the argument of learned counsel for the appellant 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 turmoil 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. As far as the question that the complainant was brother of the deceased, therefore, his
testimony cannot be believed to sustain conviction of the appellant 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. Both these PWs were inmates of the house, in front of which occurrence took
place, therefore, their presence was natural and the same is fully established from the record. Learned counsel for
the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the
present case and let off the real culprit, who has committed murder of his real brother. Substitution in such like
cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his brother
and falsely involve the appellant 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.

7. It was one of the arguments of learned counsel for the appellant that although Zameer Hussain (PW-11)
was mentioned as witness in the FIR but his statement under section 161, Cr.P.C. was not recorded, therefore, his
testimony cannot be relied upon to sustain conviction of the appellant. However, we do not tend to agree with the
learned counsel. To arrive at a just conclusion, the courts can call any person likely to be acquainted with the
facts of the case after ascertaining it from the Public Prosecutor or the complainant, subject to general provisions
that summoning of any such witness does not cause delay or defeat the ends of justice. Section 265-F(2) of the
Code of Criminal Procedure empowers the Courts to summon a person, after having been ascertained from the
Public Prosecutor or the complainant, who is likely to be acquainted with the facts of the case and to be able to
give evidence for the prosecution. Section 265-F(7) grants even to the accused a right to apply for summoning
any witness and production of documents. The very purpose of section 265-F is to ensure the concept of a fair
trial and to achieve this purpose equal opportunity has been given to both the accused and the prosecution for
summoning the evidence. There is nowhere mentioned in this Section that only those witnesses could be
examined whose statements under section 161, Cr.P.C. have been recorded. Under this provision of law i.e.
section 265-F the Trial Court is not bound to record the statements of only those witnesses who have been listed
in the calendar of witnesses. On the other hand, section 540, Cr.P.C. empowers the Trial Court to summon a
material witness even if his name did not appear in the column of witnesses provided his evidence is deemed
essential for the just and proper decision of the case. In the present case, although the statement of Zameer
Hussain (PW-11) under section 161, Cr.P.C. could not be recorded by the Police yet the fact remains that he was
named as an eye-witness in the very FIR and was fully acquainted with the facts and circumstances of the case. It
would be advantageous to reproduce section 540, Cr.P.C., which is as follows:-
"540. Power to summon material witness, or examine persons present. Any Court may, at any stage of any
inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any
person in attendance, though not summoned as a witness, or recall and re-examine any person already
examined; and the Court shall summon and examine or recall and re -examine any such person if his
evidence appears to it to be essential to the just decision of the case".

8. This section is divisible in two parts. In the first part, discretion is given to the Court and enables it at any
stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to
examine any person present in the Court, or (c) to recall and re-examine any person whose evidence had already
been recorded. On the other hand, the second part appears to be mandatory and requires the Court to take any of
the steps mentioned above if the new evidence appears to it essential to the just decision of the case. The object
of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution
but also justice from the point of view of the society. The Court examines evidence under this section neither to
help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor
to give it any unfair advantage against the accused. Fundamental thing to be seen is whether the Court considers
this evidence necessary in the facts and circumstances of the particular case before it. If this results in only
"filling of lacuna" that is purely a subsidiary factor and cannot be taken into consideration. There is no bar that a
witness, whose statement under section 161, Cr.P.C. had not been recorded at the time of investigation, cannot be
allowed to examine under section 540, Cr.P.C. When a witness examined in Court, whose statement has not been
recorded at the time of investigation under section 161, Cr.P.C., the evidentiary value to be attached to the
evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused
then the evidence of such witness may or may not be acted upon. Therefore, the argument of the learned counsel
for the appellant is misconceived.

9. In Abid Ali v. The State (2011 SCMR 208), this Court has held that to believe or disbelieve a witness, all
depends upon intrinsic value of the statement made by him. There cannot be universal principle that in every
case, interested witnesses should be disbelieved or disinterested witnesses be believed. It all depends upon the
rule of prudence and reasonableness to hold that a particular witness was present on scene of crime and that he is
making true statement. Person who is reported otherwise to be very honest, aboveboard and very respectable in
society, if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept
such statement. As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity
but quality of evidence. It is not that who is giving evidence and making statement. What is relevant is what
statement has been given and it is not the person but the statement of that person which is to be seen and
adjudged. In Niaz-ud-Din v. The State (2011 SCMR 725), it was held that conviction in a murder case can be
based on the testimony of a single witness, if court is satisfied that he is reliable and it is the quality of evidence
and not the quantity which matters. The same was the view of this Court in Asim v. The State (2005 SCMR 417),
Lal Khan v. The State (2006 SCMR 1846) and Muhammad Sadiq v. The State (2022 SCMR 690). In this view of
the matter, even if the testimony of Zameer Hussain is discarded, the evidence of complainant is sufficient to
sustain conviction of the appellant.

10. So far as recovery of crime weapon is concerned, after his arrest on 26.01.2014, the appellant got
recovered .30 bore pistol and the same was sent to Forensic Science Laboratory on 04.02.2012. The one crime
empty had already been sent to office of Forensic Science Laboratory on 27.01.2012. According to the report, the
empty was found fired from the pistol got recovered from the appellant. Although, the Police sent the crime
empty after ten days of the occurrence to the FSL and the same should have been sent without unnecessary delay
after being collected from the spot but this laziness would not render the recovery inconsequential. It was argued
by the learned counsel that according to prosecution witnesses, the dead body of the deceased was brought to the
hospital in car whereas according to Dr. Saeed Anwar (PW 7), the dead body was brought by Rescue 1122.
However, this could not help the appellant simply for the reason that the document, which shows that the
deceased was taken to hospital by Rescue 1122, is inadmissible in evidence as neither the author of the said
document nor anyone on his behalf appeared before the Trial Court to verify the same. The said document, which
is available at page 196 of the paper book, was also not brought on the judicial record. Even otherwise, the
learned Trial Court has very rightly dealt with this issue and observed that during cross-examination, the doctor
tried to give concession to the accused persons and stated that the dead body was brought by Rescue 1122 but in
his re examination he admitted that in documents there was no mention that the dead body was brought by
Rescue 1122. The learned High Court has disbelieved the motive part of the prosecution story by observing that
the complainant is neither the eye-witness of the incident of burning of haveli nor was present in the meeting
where compromise was effected. According to him, his brother Shakeel had informed him but the said Shakeel
was not examined during the trial in order to prove the motive part of the prosecution story. We find no reason to
differ with this finding of the learned High Court. It was argued by the learned counsel that the postmortem
examination was conducted after two hours of the occurrence and at that time rigor mortis had fully developed,
which according to him, shows that the deceased had died long ago before the given time of incident. The phrase
rigor mortis is latin with rigor meaning stiffness and mortis meaning death. Rigor mortis is a temporary
condition. Depending on body temperature and other conditions, rigor mortis lasts approximately for 72 hours.
The phenomenon is caused by the skeletal muscles partially contracting. The muscles are unable to relax, so the
joints become fixed in place. Factors that affect rigor mortis include (i) temperature/weather, (ii) physical
exertion, (iii) age, (iv) body fat, (v) any illness the person had at the time of death, (vi) sun exposure, (vii)
gender, (viii) body structure, (ix) genetics, (x) tribe and (xi) inhabitation. Admittedly, the occurrence took place
in the night of January and development of rigor mortis in the cold days is not surprising. So far as the quantum
of punishment is concerned, the learned High Court while taking into consideration the fact that the motive part
of the prosecution story is not proved; there was no blood feud between the parties; what actually preceded just
before the occurrence remained shrouded in mystery; appellant only fired single shot and co-accused of the
appellant have been acquitted by the learned Trial 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 appellant. The impugned
judgment is well reasoned, proceeds on correct principles of law on the subject and does not call for interference
by this Court.

11. For what has been discussed above, we do not find any merit in this appeal, which is dismissed. The
above are the detailed reasons of our short order of even date.

MWA/S-28/SC Appeal dismissed.