Mian Hamid Farooq, J.-- For the reasons to be recorded later, this criminal appeal is allowed, the impugned judgment dated 23.2.2006 of the Lahore High Court, Lahore, is set aside and appellant Muhammad Asghar is acquitted from the charge. He shall be released forthwith, if not required in any other case".
2. Following are the detailed reasons for the above noted short order dated 7.4.2008.
3. Present appeal, by leave of the Court, filed by Muhammad Asghar, the appellant/convict, proceeds against the judgment dated 23.2.2006, whereby, the learned Division Bench of Lahore High Court at Lahore accepted the appeal (Cr.A. 1641/2002) filed by Shaukat Ali and Muhammad Arif, their conviction and sentence were set aside and they were acquitted of the charge; appeal (Cr.A. 1586/2002) filed by Muhammad Asghar, (the appellant) was dismissed, however, his sentence of death was altered to imprisonment for life with the direction to pay Rs, 1,00,000/- as compensation to the legal heirs of each deceased, his conviction and sentence under Sections 324/34 PPC was maintained and the appeal (Cr.A. No, 1664/2002) filed by Amanullah against acquittal of Muhammad Ameer alias Meeri was dismissed and Murder Reference (M.R. No, 99/2002) was disposed of.
4. The Facts of the case as recorded in the impugned judgment are reproduced below:- "2. "The occurrence took place on 12.12.2000 at about 08.30 p.m. on Chunian road near Mauza Dhool Choor. According to the prosecution, Muhammad Azam, Inspector/SHO Police Station Hujra Shah Muqeem, District Okara (PW-15) accompanied by Ahmad Ali, ASI, Muhammad Ashraf, head Constable (deceased), Qaiser Naeem, Constable (deceased) Ghulam Abbas, Constable (injured PW-13), Ashfaq Ahmad, Constable (PW-14) and Munawar Taj, Constable was patrolling in his area of jurisdiction in a private Hiace wagon bearing Registration No, LHO 174 driven by one Muhammad Boota son of Allah Ditta. He was at Chunian Road when he received a spy information that few armed men were moving around in a white Toyota Corolla car bearing Registration No, MNM. 216 in front of Abdullah Sugar Mills in suspicious manger. On receipt of this information the police party barricaded near the shop of Ghulam Mustafa, a Tyre Vulcanizer after taking necessary protective measures. In the meantime, the said car arrived from the side of Hujra Shah Muqeem: On a signal given by the police party the car stopped and the person, sitting on the front seat came out of it.
On search conducted by Ghulam Abbas (PW-13), the said person was found carrying .30 bore pistol in his right hand. In the meantime the remaining three passengers also alighted from the car.
One of them was tall with long face and stout body aged about 30/32 years with a height of 5' and 8/9' aimed with .222 rifle. The second one, who was of wheatish complexion and stout body, was also of the same height and age. He was carrying a 7MM rifle with him. The third one was also of wheatish complexion having round face, stout body aged about 28/30 years armed with .222 rifle, These persons opened fire at the police party with their respective weapons just after they alighted from the car. Muhammad Ashraf, head Constable and Qaiser Naeem, Constable, after receiving firearm injuries died at the spot while Ghulam Abbas, Constable (PW-I3) also received serious injuries and fell on the ground. Thereafter the police party also opened fire in the right of exercise of private defence upon which one of the perpetrators shouted, "Zubair alias Jeeri Dogar, Asghar hurry up, the policemen have been killed after receiving injuries with firearms. Try to escape". All the four perpetrators resorted to indiscriminate firing, got into the car and decamped towards Chunian. A stepney of Toyota Corolla car bearing Registration No, MNM 216 was found lying near the vulcanizing shop. Muhammad Azam, Inspector/SHO in his report (Exh.PL) which he sent to the Police Station at 08.30 p.m. from Abdullah Sugar Mills alleged that Zubair alias Jeeri Dogar and Muhammad Asghar accused in consultation with their two unknown companions had fired and killed two police officials and injured one and thereby had committed offences under Sections 302, 324,353/34, PPC.
3. After the dispatch of complaint (Exh.PL) through Muhammad Ashfaq, Constable (PW-14), Muhammad Azam, Inspector/SHO completed formalities and sent the dead bodies for postmortem examination. During spot inspection, he had collected identity card of Ameer Ali accused from the spot besides eight empties of .30 bore pistol, eight empties of 7MM rifle and 14 empties of .222 rifle which he took into possession vide memo Exh.PW14/M. It transpired that rifle of Muhammad Ashraf (deceased) MP-5 was missing which the accused persons had taken away with them. On 14.12.2000 Muhammad Ishaq, Draftsman (PW-9) visited the spot on the direction of the investigating officer, took rough notes and prepared site-plan of the place of occurrence in triplicate. On 22.12.2000 he seized Car No, MNM-216 on spy information from the possession of one Muhammad Ikram, who was driving the car.
4. Muhammad Ameer Ali accused (since acquitted) was arrested by Muhammad Azam, Inspector on 27.12.2000. He was found in possession of a .222 bore rifle (P14). Muhammad Ashraf, SI (PW16) had arrested Shaukat Ali, Muhammad Arif and Asghar Ali appellants on 27.2.2001, 23.3.2001 and 25.4.2001. Pistol (P18), .222 bore rifle (P17) and pistol (P19) were recovered from them respectively.
After the completion of the investigation, the SHO submitted his report under Section 173, Cr.P.C. in which the present three appellants and Muhammad Ameer Ali besides Zubair alias Jabbar alias Jeeri (since absconder) were arraigned as accused".
5. In the above perspective, (i) Muhammad Asghar (the appellant) (ii) Shaukat Ali and (iii)
Muhammad Arif (acquitted by High Court) along with (iv) Muhammad Ameer alias Meeri (acquitted by the trial Court) were tried by the learned Special Judge, Anti Terrorism Court'No, 1 Lahore, constituted under Anti Terrorism Act, 1997, in case FIR No, 795/2000 dated 12.12.2000 registered at Police Station Hujra Shah Moqeem District Okara under Sections 302/324/353/34 PPC.
The trial Court framed formal charge to which the appellant pleaded not guilty and claimed trial.
The prosecution examined as many as 18 witnesses and tendered the reports of Chemical Examiner and Forensic Science Laboratory in evidence. Medical evidence was furnished by Dr. Muhammad Yahya (PW-7) and Dr. Abid Hussain (PW-8). All the accused persons in their statements recorded under Section 342 Cr.P.C. denied the allegations and pleaded innocence.
Muhammad Asghar, the appellant, in his statement took the plea that Jabbar alias Jeeri, who was a man of bad character, took away his taxi car on rent and used the same in the commission of crime. All the accused persons neither produced any evidence in their defence nor appeared as witnesses under Section 340(2), Cr.P.C. The learned trial Court concluded the trial, acquitted Muhammad Ameer alias Meeri, held that the prosecution has succeeded in establishing its case against Shaukat Ali, Muhammad Arif and Muhammad Asghar, they were convicted and sentenced under Section 302(b) read with Section 34, PPC and were sentenced to death for committing Qatl- e-Amd of Muhammad Ashraf and Qaiser Naeem, constables; they were also convicted under Section 7 of the Anti Terrorism Act, 1997 and sentenced to death besides being burdened with Rs, 1,00,000/- as compensation to be paid to the legal heirs of each deceased; they were also convicted under Section 324 read with Section 34, PPC and sentenced to rigorous imprisonment for 10 years each and fine of Rs, 10,000/- each or in default of payment thereof to undergo further simple imprisonment for two months each and the fine, if recovered, was ordered to be paid to Ghulam Abbas injured, vide judgment dated 31.8.2002. Shaukat Ali and Muhammad Arif challenged their conviction and sentence through appeal (Cr.A. 1641/2002), Muhammad Asghar, the appellant, filed appeal (Cr.A. 1586/2002), whereas, Amanullah also filed appeal (Cr.A. 1664/2002) against acquittal of Muhammad Ameer Ali alias Meeri and reference (MR. No, 99-T/2002) was sent by the trial Court. The learned Division Bench of Lahore High Court at Lahore decided all the afore-noted matters vide single judgment dated 23.2.2006 in the following manner:-- "As a sequel to the discussion made above, we have come to the conclusion that the prosecution has succeeded in establishing its case against Muhammad Asghar appellant to the hilt whereas it has failed to prove its case against Shaukat Ali and Muhammad Arif appellants beyond reasonable doubt. Accordingly, we extend the concession of doubt and accept Criminal Appeal No, 1641 of 2002. The conviction and sentenced of Shaukat Ali and Muhammad Arif appellants is, therefore, set aside, They shall be set as liberty forthwith if not required in any other case. The appeal filed by Muhammad Asghar appellant fails and is hereby dismissed. Since it is not certain as to which of the victim received which injury at the hands of which of the accused, so we, keeping in view the principles of safe administration justice, consider it proper to alter the sentence of Muhammad Asghar appellant from death to imprisonment for life. However, he shall pay Rs, 1,00,000/- (Rupees one hundred thousand) as compensation to the legal heirs of each of the deceased as ordered by the learned trial Court. His conviction and sentence under Section 324/34, PPC is also maintained.
Criminal Appeal No, 1664/1002 also fails and is hereby dismissed and Murder Reference No, 99-T of 2002 stands disposed of."
6. The appellant filed petition for leave to appeal (JP. 175/2006) against the afore-noted judgment and this Court, on 10.5.2007, granted leave to appeal to reappraise the evidence. Leave granting order dated 10.5.2007 reads as under:-- "The learned counsel for the petitioner contends that admittedly petitioner was not known to the witnesses by face and except that his name was mentioned in the FIR, no other evidence direct or circumstantial to identify him as assailant was brought on record to connect him with the crime and in view of the fact that no identification parade was held on his arrest, the petitioner would stand at much better footing for the purpose of grant of benefit of doubt to that of his co-accused, who have been acquitted by the High Court.
2. We having heard the learned counsel for the petitioner and perused the record with his assistance, have found sufficient force in the above contention and thus grant leave in this petition to reappraise the evidence for the purpose of ascertaining the question of guilt or innocence of the petitioner".
7. Learned counsel for the appellant while specifically referring to the statements of PWs-10, 11 & 15 submitted that the prosecution failed to prove the case against the appellant; statement of an accused recorded under Section 342 Cr.P.C. is to be taken as a whole, the appellant was not named in the FIR and according to the report of Forensic Science Laboratory the empties recovered from the place of occurrence did not match with the pistol allegedly recovered from the appellant.
He has further submitted that there is no evidence on record to identify the appellant as assailant and no identification parade was conducted on his arrest. He summarised his arguments by submitting that the appellant's case stood at much better footing for grant of benefit of doubt to that of his co-accused who were acquitted by the High Court. Learned Deputy Prosecutor General has, however, supported the impugned judgment.
8. We have heard the learned counsel for the appellant as well as DPG and examined the available material on record. The High Court in para-13 of the impugned judgment dealt with the case of the appellant and while mainly relying upon a portion of his statement, recorded under Section 342 Cr.P.C, (whereby, the appellant admitted the use of his car in the occurrence) and in view of some itinerants heard by PWs from the mouth of one of the perpetrators dismissed his appeal, however, reduced his sentence from death to life imprisonment. The basis of his conviction is that the participation of Jeeri Dogar and the use of Muhammad Asghar's car is established and that had the car of Muhammad Asghar would not have been used in the commission of occurrence, it would have been difficult for prosecution to prove the charge against the appellant. The appellant was convicted on the basis of a fraction of his total statement, recorded under Section 342 Cr.P.C. viz that the car of Muhammad Asghar was used in the commission of crime. We have examined the said statement of the appellant and find that he in his statement has categorically denied his presence at the place of occurrence; also stated that he was neither in the car nor armed with any weapon nor fired at any of the police personnel; empties of .30 bore pistol were added later on; the recoveries attributed to him were false, it has been planted upon him; Jabbar alias Jeeri who was a man of bad character took away his taxi car which was used m the commission of occurrence and the police officials were killed/injured as a result of quarrel occurred between Jeeri and the police officials. The learned High Court picked up a small portion out of his statement, to the extent that Jabbar alias Jeeri took away his taxi car which was used in the commission of crime, and convicted him completely bypassing the rest of the statement of the appellant, which was very relevant and material. It is settled law by now that a statement of an accused recorded under Section 342 Cr.P.C. is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused person.
Reference can be made to the cases of Shabbir Ahmad u The State (PLD 1995 SC 343) and The State u. Muhammad Hanif and 5 others (1992 SCM R 2047). It has been held by this Court in the judgment reported as Waqar Ahmad v. Shaukat Ali and others (2006 SCM R 1139), that prosecution is bound to establish its own case independently instead of depending upon the weaknesses of the defence, and the assertion of the accused in his statement under Section 342 Cr.P.C. was not sufficient to establish the prosecution case regarding guilt of the accused and such statement of the accused could be accepted in toto in the absence of any other prosecution evidence. In the case in hand, the High Court should have either accepted appellant's statement in its entirety or rejected it altogether, but it had misdirected itself while choosing a portion of the statement, which went against the appellant, and convicting him.
9. As regards utterances heard by the PWs, the learned DPG could not refer-to the statement of any of the witnesses, who stated that they heard the utterances by the co-accused, in which they uttered the name of the appellant. PW-15 did not say about the said utterances rather he had stated that Muhammad Asghar accused came down from the front seat of the car who was armed with pistol of .30 bore. It has neither been so stated in the FIR nor in his statement recorded under Section 161 Cr.P.C. In cross-examination this witness stated that he arrested father, brothers and other relatives of the appellant, recorded their statements and they were sent to the judicial lockup, however, none of them could be identified in the identification parade and the version of the relatives of Muhammad Asghar was that he was not present in the car and was not armed with any weapon. Be that as it may a person cannot be convicted on the basis of mere utterances, when there is no other corroborative evidence available on record to connect the accused with the commission of crime.
10.There is another aspect of the case. According to the prosecution case two .30 bore pistols were used in the commission of crime, one by Shaukat Ali (acquitted accused) and other by the present appellant; a .30 bore pistol (Bearing No, 8147) was recovered from said Shaukat Ali, vide recovery memo Ex.PE and another .30 bore pistol (Bearing No, B159385) was recovered from possession of the "appellant, vide recovery memo Ex.PF. Record of the case manifests that only a .30 bore pistol (Bearing No, 8147) recovered from Shaukat Ali, was sent for report of Forensic Science Laboratory and the other .30 bore pistol allegedly recovered from the appellant was not even sent for report of said Laboratory. We have thoroughly examined the report of Forensic Science Laboratory and find that 8 empties of .30 bore pistol, 14 crime empties of .222 bore rifle, 8 empties of 7MM bore rifle, one rifle of 222-bore, one pistol of .30-bore (8147) and one rifle of .222- bore were sent to Forensic Science Laboratory for report, however, it does not show that 30-bore pistol, allegedly recovered from the appellant, or other empties of the said pistol were sent for the report of the said Laboratory. Hence there is no report of the Forensic Science Laboratory that the empties recovered from the place of occurrence were actually fired from the pistol allegedly recovered from the appellant and the empties recovered from the crime scene actually matched with the pistol of the appellant. In view whereof, the alleged recovery of pistol from the possession of the appellant is of no consequence and is neither here nor there.
11. In addition thereto none of the injuries of the deceased and/or of injured witnesses was attributed to the appellant. This aspect of the case was conveniently ignored by the learned High Court, while convicting the appellant.
12. Furthermore, the learned counsel for the appellant was right in contending that the identification parade was not undertaken qua the appellant. We have thoroughly examined the record and do find that although identification parades of the other co-accused namely Muhammad Ameer, Shaukat All and Muhammad Arif were held, yet there is no proof on record that any effort was made by the prosecution for identification parade of the appellant, inasmuch as, the prosecution never filed any application for holding identification parade of the appellant. We feel that in the attending circumstances of the case as the appellant was not known to the witnesses by face and his name was not mentioned in the FIR, it was all the more necessary for the prosecution to hold identification parade of the appellant.
13. There can possibly be no cavil to the proposition that the prosecution is under an obligation to prove the case against an accused person beyond any shadow of doubt. In this case, there is no evidence on record to connect the appellant with the commission of crime, inasmuch as, according to the prosecution witnesses, he did not fire even a single shot. We have no hesitation in concluding that the appellant case is on much better footing and position as compared to the two accused who were acquitted by the High Court.
14. In the above perspective, we have examined the impugned judgment and find that the learned High Court convicted the appellant on the basis of no evidence and committed grave illegality, inasmuch as, the evidence was completely misread. We after reappraisal of the evidence, as noted above, find that the prosecution comprehensively failed to prove the charge against Muhammad Asghar, and the findings of the learned High Court that the prosecution has succeeded in establishing his case against Muhammad Asghar, the appellant, are erroneous and not sustainable in law. Thus we reverse the said findings and are persuaded to set aside the impugned judgment of the High Court qua the appellant.
15. For the foregoing reasons, the present appeal is allowed, the impugned judgment of the Lahore High Court, Lahore dated 23.2.2006, to the extent of the appellant, is set aside, the conviction and sentence recorded by the High Court is also set aside and the appellant, Muhammad Asghar, is acquitted from the charge. He shall be released forthwith if not required in any other case.