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2024 S C M R 1731
[Supreme Court of Pakistan]
Present: Jamal Khan Mandokhail, Ayesha A. Malik and Syed Hasan Azhar Rizvi, JJ
MUHAMMAD NAWAZ and another---Petitioners
Versus
The STATE and others---Respondents
Crl. Petitions Nos. 522-L of 2018, 1008-L of 2014, 599-L and 557-L of 2018, decided on
25th September, 2023.
(On appeal from the judgment of the Lahore High Court, Lahore dated 26.02.2018 passed
in M.R. No. 264 of 2013, Crl. A. No.1717 of 2013, Crl. A. No. 1171 of 2013, Crl. A. No.
1377 of 2013 and Crl. Revision No. 677 of 2013).
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Delay in lodging FIR not plausibly
explained---Probability of false implication---Co-accused persons acquitted on the same set
of evidence---Rule of consistency, applicability of---Complainant did not explain the delay
in taking the dead body from the scene of the occurrence to the hospital---Besides, the time
of death mentioned by the complainant in the FIR is 7.30 a.m., but the FIR was registered
after a delay of more than two hours, without any explanation in this behalf, therefore, there
was a probability of consultation and deliberations before reporting the matter to the police
by the complainant---Under such circumstances, false involvement of the petitioner in the
case could not be ruled out---Besides, in the postmortem report, the doctor opined that the
cause of death was excessive loss of blood and haemorrhagic shock as a result of four
injuries---These injuries were assigned by the complainant jointly to all the accused
persons---It was a fact that except the petitioner, rest of the accused were acquitted of the
charge by the High Court and one of them by the Trial Court on the same set of evidence---
Complainant has ascribed injuries jointly to all the accused and did not single out the
petitioner---Under such circumstances, it would not be safe to hold him alone responsible
for causing death of the deceased---Role of the petitioner was similar to that of the other co-
accused, therefore, he was also entitled for equal treatment, hence, deserved the benefit of
doubt---There were also a number of flaws and contradictions in the statements of
witnesses, which created doubts in the prosecution story---Petition for leave to appeal was
converted into and appeal and allowed, and the conviction and sentence awarded to the
petitioner was set-aside.
(b) Criminal trial---
----Benefit of doubt---Scope---While extending a benefit of doubt to an accused, it is not
necessary that there must be multiple infirmities and doubts in the prosecution case---Single
or slightest doubt in the prosecution case would be sufficient to extend its benefit in favour
of an accused.
Ahmad Ali s case 2023 SCMR 781 ref.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 200 & 417(2)---Appeal against acquittal, filing of---Pre-requisites---Conviction in a
private complaint---Under section 417(2) of the Cr.P.C., appeal against acquittal in a case
instituted upon a (private) complaint, can only be filed upon grant of special leave to appeal
by a High Court---Thus, seeking special leave to appeal is a condition precedent for
challenging an order of acquittal passed by any court, other than a High Court.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 309 & 310---Qatl-i-amd---Waiver and compounding of qisas in qatl-i-
amd-----Locus standi of deceased s brother to challenge judgment of acquittal in
circumstances where legal heirs of deceased entered into a compromise with the accused---
Estoppel---Scope---Accused was convicted and sentenced to death by the Trial Court---
During the pendency of his appeal before the High Court, legal heirs of the deceased
(widow and a minor) entered into a compromise with the accused, on the basis whereof, he
was acquitted of the charge through the impugned judgment---Validity---Under the
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injunctions of Quran and Sunnah, and under section 309 PPC, only an adult sane Wali
(legal heirs) may at any time waive their right of Qisas without any compensation or may
compound his/their right of Qisas on accepting badal-i-Sulh (compensation) as provided by
section 310 PPC.---No doubt, the petitioner (complainant) who was brother of the deceased,
informant of the FIR as well as a complainant in the private complaint, could challenge the
impugned judgment of acquittal being an aggrieved person, but the legal heirs of the
deceased did not want to pursue the matter further against the respondent---If the legal heirs
of the deceased did not wish to pursue the matter, the petitioner had no authority to
undermine their right guaranteed by law---Permitting the petitioner to pursue the matter
would amount to promoting frivolous litigation---Petitioner had not been able to show that
the right of compounding the offence exercised by the legal heirs was a result of coercion,
duress or undue pressure---Thus, under such circumstances, the petitioner was estopped
under the law to challenge the impugned judgment (of acquittal) before the Supreme
Court---Petition for leave to appeal was dismissed.
Zaheer Zulfiqar, Advocate Supreme Court (in Crl. P. No.1008-L of 2014), Zahid Aslam
Malik, Advocate Supreme Court (in Crl. P. No. 522-L of 2018) and M. Irfan Malik,
Advocate Supreme Court (in Crl. Ps. Nos. 557-L and 599-L of 2018) for Petitioners (All
through video link from Lahore).
Mirza Abid Majeed, D.P.G., Punjab for the State.
Date of hearing: 25th September, 2023.
ORDER
JAMAL KHAN MANDOKHAIL, J.---The petitioner-convict Muhammad Nawaz and
respondents Muhammad Ehsan, Qasim Ali, Muhammad Arshad, Muhammad Ramzan and
Muhammad Ali were indicted in FIR lodged by Muhammad Iqbal, brother of the deceased
(Complainant), for offences under sections 302, 148, 149 of the Pakistan Penal Code
("PPC"), Police Station Saddar, Sargodha. The complainant dissatisfied with the police
investigation, instituted a Private Complaint ("complaint') before the court of Additional
Sessions Judge, Sargodha ("Trial Court"). The Trial Court convicted and sentenced
Muhammad Nawaz, Muhammad Ali and Muhammad Ramzan under section 302(b), P.P.C.
and sentenced them to death. Muhammad Arshad and Qasim Ali were convicted under
section 302(b), P.P.C. and sentenced for life each, whereas, the accused Muhammad Ehsan
was acquitted of the charge. The convicts being aggrieved of their convictions and
sentences, filed criminal appeals before the Lahore High Court, Lahore. A murder reference
was sent by the Trial Court to the High Court for confirmation of death sentences. The
complainant also filed a criminal appeal against the acquittal of Muhammad Ehsan and a
criminal revision seeking enhancement of sentence of Qasim Ali and Muhammad Arshad
and for enhancement of compensation awarded by the Trial Court to Muhammad Nawaz
and Muhammad Ramzan.
2. The High Court dismissed the criminal appeal of Muhammad Nawaz with slight
modification in the judgment by converting his sentence of death to imprisonment for life,
whereas, the appeals of Muhammad Ramzan, Muhammad Arshad and Qasim Ali were
accepted and they were acquitted of the charge. On the other hand, the criminal appeal and
criminal revision filed by the complainant were also dismissed. During pendency of the
appeal, Muhammad Ali entered into a compromise with the legal heirs of the deceased, on
the basis whereof, the High Court allowed the appeal and acquitted Muhammad Ali of the
charge. The murder reference was answered in the negative.
3. Feeling aggrieved, convict Muhammad Nawaz filed Crl. Petition No. 522-L of 2018
against the impugned judgment dated 26.02.2018, challenging his conviction. Similarly,
complainant Muhammad Iqbal filed Crl. Petition No. 1008-L of 2014, Crl. Petition No.
557-L of 2018 and Crl. Petition No. 599-L, of 2018 challenging the acquittal of Muhammad
Ali, Qasim Ali, Muhammad Arshad, Muhammad Ramzan and Muhammad Ehsan, as well as
the conversion of death sentence of Muhammad Nawaz into imprisonment for life. All these
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petitions arising out of the same FIR, are being disposed of through this consolidated
judgment.
Crl. Petition No. 522 of 2018:

4. The petitioner in this case was convicted and sentenced to death by the Trial Court. On his
appeal, his death sentence was converted into imprisonment for life by the High Court, hence,
this petition. Brief background of the case is that the FIR was registered on 19.06.2010 at 9.40
am, wherein the time of occurrence was shown as 7.30 am on the same day. After conducting
the postmortem, the doctor in his report and in his court statement, opined that the probable
time between death and postmortem was nine hours. The complainant did not explain the delay
in taking the dead body from the scene of the occurrence to the hospital. Besides, the time of
death mentioned by the complainant in the FIR is 7.30 a.m., but the FIR was registered after a
delay of more than two hours, without any explanation in this behalf, therefore, there is a
probability of consultation and deliberations before reporting the matter to the police by the
complainant. Under such circumstances, false involvement of the petitioner in the case cannot
be ruled out.

5. Besides, in the postmortem report, the Doctor opined that the cause of death was excessive
loss of blood and hemorrhagic shock as a result of injuries Nos. 5, 7, 9 and 11. These injuries
were assigned by the complainant jointly to all the accused persons. It is a fact that except the
petitioner, rest of the accused were acquitted of the charge by the High Court and one of them
by the Trial Court on the same set of evidence. The complainant has ascribed injuries jointly to
all the accused and did not single out the petitioner. Under such circumstances, it would not be
safe to hold him alone responsible for causing death of the deceased. It is a well settled
principle of law that while extending a benefit of doubt to an accused, it is not necessary that
there must be multiple infirmities and doubts in the prosecution case. A single or slightest
doubt in the prosecution case, would be sufficient to be extended its benefit in favour of an
accused, as has been held by this Court in the case of Ahmad Ali1. There are a number of flaws
and contradictions in the statements of witnesses, which created doubts in the prosecution
story, benefit whereof has already been extended by the fora below to rest of the accused. For
the sake of repetition, as discussed in preceding paras, one of the convict Muhammad Ali was
acquitted of the charge by the High Court on account of accepting badal-i-sulh by the legal
heirs of the deceased and compounded their right of gisas, as provided by section 310, P.P.C.,
therefore, the Wali of deceased do not want to pursue the matter furthermore, hence did not
challenge the impugned judgment. By entering into compromise with one of the co-accused,
the legal heirs have limited the scope of allegation to the extent of said accused, therefore, the
petitioner cannot be singled out for a single murder, in respect of which, more than one person
has been charged. The role of the petitioner is similar to that of the other co-accused, therefore,
he is also entitled for equal treatment, hence, deserves the benefit of doubt. The learned counsel
for the petitioner has succeeded in making out a case, enabling us to convert the petition into
appeal, allow it and set aside the conviction and sentence awarded to the petitioner.

Crl. Petition No. 557-L/2018:

6. Muhammad Ehsan ("respondent') was nominated in the FIR and was also an accused along
with others in a private complaint filed by the petitioner (complainant). The respondent was
acquitted of the charge by the Trial Court in the case, instituted upon the complaint, whereas
remaining accused were convicted and sentenced, as alluded to in Para 1 above. The petitioner
filed an appeal before the High Court against the order of acquittal passed by the Trial Court.
Under section 417(2) of the Cr.P.C., appeal against acquittal in a case instituted upon a
complaint, can only be filed upon grant of special leave to appeal by a High Court. Thus,
seeking special leave to appeal is a condition precedent for challenging an order of acquittal
passed by any court, other than a High Court. The record of the High Court does not reflect that
any request for seeking special leave to appeal was sought by the petitioner, while filing the
appeal. Under such circumstances, without grant of special leave to appeal from the order of
acquittal passed by a court subordinate to a High Court in a case instituted upon a complaint,
the appeal filed by the complainant was incompetent before the High Court.
7. Besides, as has been discussed herein above, the deceased was survived by his legal
heirs, who participated in the proceedings before the Trial Court as well as the High Court,
but did not challenge the order of acquittal of the respondents passed by the fora below
concurrently. The legal heirs have compounded the matter with one of the accused, who has
compensated the legal heirs. This proves the fact that the legal heirs of the deceased do not
want to further pursue the matter. Though the petitioner was a complainant in the private
complaint and a brother of the deceased, but in the given circumstances, he has no right to
go against the will of the legal heirs, who by their conduct have accepted the verdict of
acquittal. Without prejudice to above, even otherwise, what has been stated and discussed
herein, the prosecution has failed to succeed in proving its case against the respondent. The
Courts below have declared the respondent innocent, because of lack of evidence against
him. After his acquittal by two fora below, the respondent has earned a double presumption
of innocence. The judgments passed by the courts below are based on law and facts,
therefore, have reached a correct conclusion. Learned counsel for the petitioner has not
been able point out any substantial question of law, illegality, procedural irregularity, or
jurisdictional defect in the impugned judgment of the High Court, warranting interference.
Crl. Petition No. 1008-L of 2014

8. Muhammad Ali ("respondent") was nominated in the FIR and was also an accused along
with others in a private complaint filed by the petitioner (complainant). He was convicted and
sentenced to death by the Trial Court. Feeling aggrieved, he challenged his conviction before
the High Court. During the pendency of the appeal, legal heirs of the deceased (his widow and
a minor) have entered into a compromise with the respondent, on the basis whereof, he was
acquitted of the charge through the impugned judgment. Under the injunctions of Quran and
Sunnah, and under section 309, P.P.C., only an adult sane Wali (legal heirs) may at any time
waive their right of Qisas without any compensation or may compound his! their right of Qisas
on accepting badal-i-Sulh (compensation) as provided by section 310, P.P.C. No doubt, the
petitioner was brother of the deceased, informant of the FIR as well as a complainant in the
Private Complaint, can challenge the judgment of acquittal being an aggrieved person, but in
view of the fact that the legal heirs of the deceased do not want to pursue the matter further
against the respondent. The petitioner has not been able to show that the right of compounding
the offence exercised by the legal heirs was a result of coercion, duress or undue pressure.
Thus, under such circumstances, the petitioner is estopped under the law to challenge the
impugned judgment before this Court. Learned counsel for the petitioner has not been able to
point out any substantial question of law, illegality, procedural irregularity, or jurisdictional
defect in the impugned judgment of the High Court, warranting interference.

Crl. Petition No. 599-L of 2018:

Nawaz (petitioner in Crl. P. 522-L of 2018) were convicted and sentenced to death by the
Trial Court, followed by a murder reference sent to the High Court for confirmation of their
sentences of death. All the convicted persons filed appeals against their convictions and
sentences. The petitioner-complainant filed a criminal revision for enhancement of sentence
of Qasim Ali and Muhammad Arshad, and for enhancement in the amount of compensation
to the extent of Muhammad Nawaz and Muhammad Ramzan. The criminal revision filed by
the petitioner-complainant was dismissed, whereas, the criminal appeals filed by Qasim Ali,
Muhammad Arshad and Muhammad Ramzan were allowed and they were acquitted of the
charge. The appeal filed by Muhammad Nawaz was dismissed by maintaining his
conviction under section 302(b), P.P.C., however, his sentence was converted from death
into imprisonment for life. The murder reference was answered in the negative by the High
Court.
H

10. Through this petition, the petitioner-complainant has assailed the impugned judgment of
the High Court, pursuant to which, the respondents Qasim Ali, Muhammad Arshad and
Muhammad Ramzan were acquitted of the charge. As has been discussed above that the
deceased was survived by his legal heirs, who participated in the proceedings before the High
Court. They accepted Badal-i-Sulh and compounded their right of Qisas, on the basis whereof,
Muhammad Ali was acquitted by the High Court. The legal heirs had the right to challenge the
impugned judgment, participated in the proceedings before the High Court, hence, were aware
about the impugned judgment, but they did not opt to exercise their such right. No doubt, the
petitioner being brother of the deceased, an informer of the FIR and complainant in the private
complaint had also a right to invoke the extraordinary jurisdiction of this Court by seeking
leave to appeal, but if the legal heirs of the deceased do not wish to pursue the matter, the
petitioner has no authority to undermine their right guaranteed by law. On the basis of facts and
circumstances of the case in hand, permitting the petitioner to pursue the matter, would amount
to promoting frivolous litigation. Even otherwise, the respondents were acquitted of the charge
by the High Court, because of lack of incriminating evidence, connecting them with the
commission of the offence. The respondents after their acquittal, earned a double presumption
of innocence. There is no substantial question of law, any illegality, procedural irregularity, or
jurisdictional defect in the impugned judgment of the High Court, warranting interference, nor
is there any extraordinary circumstance for grant of leave.
These are the reasons for our short order dated 25.09.2023, which is reproduced herein
below:
'For reasons to be recorded later, Cr.P.L.As. Nos. 1008-L of 2014, 557-L and 599-L of
2018 are dismissed whereas Cr.P.L.A. No. 522-L of 2018 filed by Muhammad
Nawaz Petitioner is converted into appeal and allowed. Conviction and sentence
awarded to him vide impugned judgment dated 26.02.2018 are set aside. He is
acquitted of the charge. He be set at liberty, if not required, in any other case."
MWA/M-36/SC Order accordingly.

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2023 SCMR 781