MUHAMMAD ASGHAR alias NANNA H and another vs THE STATE

' RAHMAT HUSSAIN JAFFERI, J.---The appellants, namely Muhammad Asghar alias Nannah and Miraj Khalid alias Khalid along with the co-convict Abid alias Rana Ehsan alias Tahir alias Abi were tried for committing the murders of two police officials, namely Muhammad Jamil and Muhammad Akram and causing injuries to Manzoor Hussain on the report of Inspector Makhan Khan of CIA Police, which was recorded on 29-3-2000 at 10 pm at Police Station Muridkey, District Sheikhupura.

The complainant alleged that on the above date, he received a spy information that the proclaimed offenders, namely Muhammad Hanif, Muhammad Siddique alias Seeko and Muhammad Ashraf of Crime No,1009 of 1999 registered under sections 302/34, P.P.C. At Police Station Saddar, Sheikhupura, were going towards Muridkey through Bus of Route No,1 and if an immediate raid was conducted, they could be arrested. On the said information, the complainant (P.W.30) sent ASI Muhammad Jamil (deceased), HC Muzaffar Hussain (injured P.W.) and PC Muhammad Akram (deceased) duly armed with their official weapons to arrest the said proclaimed offenders. After some time, the complainant along with PC Muhammad Ashiq (P.W.3) and HC Abdul Hameed (P.W.4) followed the police party, which consisted of the deceased and the injured P.W. They reached the Bus Stop at 8 p.m. And by the electric bulb light saw the proclaimed offenders Muhammad Hanif, Muhammad Siddique alias Seeko and Muhammad Ashraf along with two other unknown persons trying to save themselves from arrest and during that process they took out their firearm weapons and started indiscriminate firing, which hit ASI Muhammad Jamil, HC Muzaffar Hussain and PC Muhammad Akram, who fell on the ground being seriously injured. The complainant, P.W.3 and P.W.4 concealed themselves in order to save 'their lives. During that process, the proclaimed offenders took away the official weapons of the deceased police officials and ran away. PC Muhammad Akram died at the spot; whereas ASI Muhammad Jamil and HC Muzaffar Hussain were seriously injured. They were shifted to Mayo Hospital, but ASI Muhammad Jamil succumbed to the injuries, whereas HC Muzaffar Hussain was admitted in Hospital.

2. At the trial, the prosecution examined 33 witnesses, including the complainant (P.W.30) and eyewitnesses. The trial Court after considering the evidence available on record convicted and sentenced the appellants along with the co-convict in the following manner:-- "(i) Under section 302(b)/34, P.P.C. To DEATH on two counts with compensation of Rs,2.00,000 each to be paid to the legal heirs of each deceased and in default thereof to suffer SI for six months.

(ii) Under section 324/34, P.P.C. To TEN YEARS' RI with fine of Rs,50,000 or in default of payment thereof to undergo RI for six months each.

(iii) Under section 382/34, P.P.C. To TEN YEARS' RI with fine of Rs,25,000/- or in default to suffer RI for six months each.

(iv) Under section 353/34, P.P.C. To TWO YEARS' RI and a fine of Rs,25,000 or in default thereof to undergo RI for six months each.

(v) Under section 225/34, P.P.C. To TWO YEARS' RI and a fine of Rs,25,000 or in default of payment to suffer RI for six months each.

(vi) Under section 337-A(i), P.P.C. To TWO YEARS' RI and a fine of Rs,25,000/- as Daman to Muzaffar Hussain.

' All the sentences were directed to run concurrently with benefit of section 382-B, Cr.PC.

' The appellants and the co-convict preferred appeals before Lahore High Court, Lahore. The High Court found the co- convict guilty for offence punishable under section 382/34, P.P.C., whereas it was held that the remaining offences could not be proved against him, as such, the conviction and sentences awarded to him by the trial Court with regard to those offences were set aside. However, the appeal filed by the appellants was dismissed, their conviction and sentences were upheld and Murder References sent by the trial Court for confirmation of their death sentences were answered in the affirmative, under the impugned judgment dated 5-6-2002. Hence, the appellants have filed the present appeal with leave of the Court. The leave granting order reads as under:-- ' "It is contended that in this case the names of the petitioners are not mentioned in the F.I.R.

Petitioner No,1 (Muhammad Asghar alias Nannah) was arrested on 27-6-2000 while he was in custody in another case, whereas petitioner No,2, namely, Miraj Khalid alias Khalid was arrested on 3-11-2000 who was also in custody in another case but they were not put to the identification test though all the witnesses were police officials. According to him both the courts below have not given any cogent reasons about the said lacuna in the case. Assistant Advocate-General, Punjab conceded to the above contentions and raised no objection to grant leave to appeal.

2. Accordingly, in order to reappraise and re-examine the contentions raised by the learned counsel for the petitioners, leave to appeal is granted in this case for safe administration of criminal justice."

3. Learned counsel for the appellants has argued that the names of the appellants are not mentioned in the that the initial story of the prosecution furnished by the complainant in the F.I.R.

Has been changed; that the names of the culprits have been substituted with the names of the appellants; that substitution of story and culprits have been made on the strength of supplementary statement made by the complainant, which was recorded in Hospital on the same night at 11-30 p.m. And thereafter the witnesses took the said changed stand; that if other witnesses knew the appellants then they could have easily told such facts to the complainant, who met with them during this process before lodging the F.I.R.; that the investigation conducted by the police is mala fide; that there is no identification test of the appellants and that the property has been foisted upon the appellants in order to strengthen the prosecution case and to conceal the mala fide investigation. He has further stated that the case has not been proved beyond a reasonable doubt. He has relied upon Muhammad Rafique v. State (2010 SCM R 385), Khalid Javed v. State (2003 SCM R 1419) and Falak Sher v. State (1995 SCM R 1350).

4. Conversely, learned Deputy Prosecutor-General has admitted that the prosecution story and the names of the culprits have been changed by the complainant in his statement before the Court, but it is as per his supplementary statement; that the injured P.W.14, eye-witnesses P.Ws.3 and 4 and one private and independent witness P.W.15 have not only nominated the appellants, but identified them in the Court to be the culprits; that the stolen property was recovered from the possession of the appellant Miraj Khalid alias Khalid; that the ocular evidence is corroborated by the medical evidence and recovery of weapons, which is sufficient to convict the appellants and that the case has been proved beyond a reasonable doubt. He has supported the impugned judgment.

5. Before we discuss the evidence, it is pointed out that initially Sessions trial used to be Jury trial.

For that separate provisions were made in the Code of Criminal Procedure. During that trial the Judge used to inform the Jurors that if the prosecution proves the case beyond a reasonable doubt then they can return a verdict of guilt. However, subsequently trial through jury was abolished. Nevertheless the expression "proof beyond a reasonable doubt" has been ingrained in our judicial system, which is continuing to this day. Both the counsel have relied upon the phrase "proof beyond a reasonable doubt", as the learned counsel for the appellants has stated that the prosecution has not proved the case beyond a reasonable doubt, whereas the learned Deputy Prosecutor General has stated that the case has been proved beyond a reasonable doubt. The expression "proof beyond a reasonable doubt" has been echoing down the centuries in the words of depictive simplicity. It is being used for a very long time and is a part of our history and traditions of justice. It is so ingrained in our judicial system that some think it needs no explanation, yet something must be said regarding its definition. Therefore, we find it expedient in the interest of justice and for the assistance to set out the principles for the Courts on the duty of the prosecution to prove the guilt of the accused beyond a reasonable doubt, It is now settled that the onus is resting upon the prosecution to prove the guilt of the accused beyond a reasonable doubt throughout the trial and it never shifts to the accused except in the cases falling under Article 121 of Qanun-e-Shahadat Order, 1984, but it is inextricably linked to the presumption of innocence of the accused. The presumption of innocence remains throughout the case until such time, the prosecution on the evidence satisfies the Court/Judge beyond a reasonable doubt that the accused is guilty. The two concepts i,e, "proof beyond a reasonable doubt" and "presumption of innocence" are so closely 'linked together, that they must be presented as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal justice. Therefore, the expression is of fundamental importance to our criminal justice system. It is one of the principles, which seeks to ensure that no innocent person is convicted. Thus, there cannot be a fair trial, which is the goal of criminal justice, if the Judges have not clearly understood the basic and fundamentally important concept of the standard of proof that the prosecution must meet in order to obtain a conviction. Therefore, the Court/Judge must appreciate the meaning and importance of the expression. Reference is invited to a decision of Supreme Court of Canada indexed as (R. v.

Lifchus, [1997] 3 S.C.R. 320).

6. The meaning of reasonable doubt can be arrived at by emphasizing the word "reasonable". It is not a surmise, a guess or mere conjecture (State v. Griffin, 253 Conn. 195, 206 (2000). It is not a doubt raised by anyone simply for the sake of raising a I doubt. It is such a doubt as, in serious affairs that concern any one and that such a doubt would cause reasonable men and women to hesitate to act upon it in matters of importance (State v. Morant, 242 Conn. 666, 688 (1997). It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by the decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence (State v. Velasco, 253 Conn. 210, 249 (2000). It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence (State v. Torres, 82 Conn. App. 823, 836-37 (2004).

7. Furthermore, the Court must be aware that the standard of proof is higher than the standard applied in civil actions or proof based upon a balance of probabilities yet less than to an absolute certainty. The expression "beyond a reasonable doubt" is composed of words, which are commonly used in every day speech. However, they have a specific meaning in the legal context. It is important to note that the special meaning of words "reasonable doubt" may not correspond precisely to the meaning ordinarily attributed to them. In criminal cases, when the liberty of the subject is at stake, it is of fundamental importance that the Court fully understands the nature of the burden of proof that the law requires to apply. Scott C.J.M. Of Court of Appeal, Manitoba Canada in his judgment reported as (1996), 107 C.C.C. (3d) 226 at pages 234 & 235) comments as under:-- "Reasonable doubt, no matter how elusive the concept, cannot be equated to an ordinary everyday phrase. It is not, as we have seen, a "perfectly ordinary concept" - far from it. The reason for this is that the word 'reasonable' can, depending on the circumstances, have two very different meanings. The first is the meaning thoroughly canvassed by Wood J.A. In Brydon. The other more common use is that in ordinary parlance: we hold 'reasonable' views, we have 'reasonable' opinions, and we make 'reasonable' prognostications. This is the standard by which we make our everyday decisions and by which we habitually govern ourselves. It is a standard of probability and, often within that, at the low end of the scale. It is very different from the criminal standard of proof which requires a much higher degree of certitude to arrive at a conclusion of guilt."

8. It is also not out of place to mention here that the proof beyond a reasonable doubt cannot be described as proof to a "moral certainty". The Supreme Court of United States in a case of (Victor v.

Nebraska, 127 L Ed 2d 583 (1994) comments that "moral certainty" may not be equated by jurors with "evidentiary certainty". Thus, if the standard of proof is equivalent to "moral certainty" without more, the jurors may think that he is entitled to convict if he feels "certain", even though the State has failed to prove its case beyond a reasonable doubt. In the case of (Boucher v. The Queen, [1995] S.C.R. 16), it has been observed by the Supreme Court of Canada that finally, qualifications of the word "doubt", other than by way of adjective "reasonable" should be avoided. For instance, instructing the jury that a "reasonable doubt" is a "haunting" doubt or a "serious" doubt may have the effect of misleading the jury, which may be considered "haunting", "substantial" or "serious" is bound to vary with the background and perceptions of each individual juror. As a result of the use of these words jurors will be likely to understand that they should apply a standard of proof that could be higher or lower than that required. Similarly, to advise jurors that a "reasonable doubt" is a doubt, which is so serious, as to prevent them from eating or sleeping is manifestly misleading.

These words would lead a juror to set an unacceptably high standard of certainty. Reference is also invited to the decisions of Supreme Court of Canada reported as (R. v. Girard (1996),' 109 C.C.C. (3d)

545) and (R. v. Bergeron (1996), 109 C.C.C. (3d) 571 (Que. C.A.) at page 576).

9. Thus the proof beyond a reasonable doubt should be based on reasons and commonsense, which must be logically based upon the evidence or lack of evidence, however, it cannot be based on sympathy or prejudice, or be imaginary or frivolous. Nevertheless, the prosecution is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved. Proof beyond a reasonable doubt does not mean proof beyond all doubts. The law does not require absolute certainty on the part of the Court before it returns a verdict of guilty. The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of Judges, as reasonable men reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted, even if the Court/Judge believes that the accused is probably guilty or likely to be guilty, that is not sufficient. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion. Reference is invited to (State v. Ryerson, 201 Conn. 333, 342 (1986), (State v. Hires, 243 Conn 796, 820 (1998) and (State v.

Denson, 67 Conn, App 803, 802-22 (2002). Thus, if the Judge is sure, on the evidence produced by the prosecution that the accused has committed the offence, then he should be convicted as it shows that. The Judge is satisfied of guilt of the accused beyond a reasonable doubt.

10. The Supreme Court of Canada, in the case of Lifchus (supra) after examining various aspects of the expression concluded as under:-- "The standard of proof beyond a reasonable doubt is inextricably intertwined with that principal fundamental W all criminal trials, the presumption of innocence; ' the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; ' a reasonable doubt is not a doubt based upon sympathy or prejudice; ' rather , it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it ' does not involve proof to an absolute certainity; ' it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and ' more is required than proof that the accused is probably guilty---a jury which concludes only that the accused is probably guilty must acquit.

37. On the other hand, certain references to the required standard of proof should be avoided. For example: ' describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context; inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives; ' equating proof "beyond a reasonable doubt" to proof "to a moral certainty"; ' qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and ' instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt" ."

11. Reverting to the evidence and having heard the counsel for the appellants, Deputy Prosecutor- General, perusing the record and keeping in view the above discussion, we find that in the evidence the initial story furnished by the complainant in the F.I.R. Has been completely changed along with the names of the culprits. The prosecution case set up in the evidence is that when the first .Raiding party, consisted of the deceased and injured, raided the place of incident, they found the co- convict coming down from the roof of the Bus through stairs and entered into the Bus, therefore, the police party also went inside the Bus and brought him out of it and on search, a carbine .12 bore was secured from his possession. In the meantime, the appellants and one Waheed also de- boarded from the Bus and started firing with the result that both the deceased and PW,14 received serious injuries and then the culprits took away the weapons of police officials and fled away.

12. The above story narrated by the witnesses in the evidence is completely different from that narrated by the complainant in the F.I.R.. The prosecution case was that three persons namely Muhammad Hanif, Muhammad Siddique alias Seeko and Muhammad Ashraf were proclaimed offenders and the complainant identified them at the place of incident. They were accompanied by two unknown persons. Further the complainant did not state anything about the co-convict or the appellants. This story and the names of the culprits were substituted with the appellants in the supplementary statement made by the complainant in the Hospital at about 11-30 p.m. If the witnesses had identified the culprits, then they could have easily given their names to the complainant, who would have nominated them in the F.I.R., but throughout the period from the receipt of information till lodging the F.I.R., the complainant insisted that he identified three proclaimed offenders, nominated by him in the F.I.R., and two persons were unknown to him.

13. Admittedly, the story narrated in the F.I.R. Has been changed after recording the supplementary statement of the complainant in the Hospital. Now it is to be seen as to what is the value of the supplementary statement made by the complainant. On the above aspect of the case, learned counsel for the appellants has relied upon three decisions of this Court. In the case of Falak Sher supra, it was observed that any statement or further statement of the first informant recorded during investigation by police would neither be equated with F.I.R. Nor read as part of it and involvement of additional accused in such statement was false improvement which made the basis for other eye-witnesses as well as for his false implication. The said rule was relied upon in the case of Khalid Javed supra and it was further observed that such witness would be unreliable.

This rule was further reiterated by this Court in the case of Muhammad Rafique supra. Thus, the involvement of the appellants through a supplementary statement, which has made basis for other. Witnesses to involve the appellants in the case, creates reasonable doubt qua the prosecution story and involvement of the appellants.

14. As regards Muhammad Zaman (P.W.15), he is a private witness, but as per prosecution he is an independent witness. We have examined his evidence, but did not find that he identified the appellants at the time of occurrence, nor he stated so in his deposition. While giving evidence, in the end, he has stated that the appellants were the culprits. The learned Deputy Prosecutor- General has also admitted that the accused were unknown to this witness, but he had identified them in the Court, which is sufficient to prove the identity of the appellants. Thus, it is an admitted fact that the appellants were not known to P.W.15, therefore, in such a circumstance, the identification of the appellants through P.W.15 was essential but no such identification test was held. As such, in the peculiar facts and circumstances of the case, the identification of the culprits in the Court only I through such witness carries no weight. Reliance is placed on a decision of Federal Court reported as Shadeo Gosain v. Emperor (46 Cr.LJ 14 1945), wherein it was observed as under:-- "The witnesses identified some of the rioters. Some of the persons, who were not identified, were also challaned along with the persons who were identified by the witnesses. During the recording of evidence witnesses identified the rioters whose identification test was not held in the Court to be the rioters. The trial Court convicted those persons. The conviction was maintained by the High Court and then the matter went to the Federal Court where the appellants were acquitted by holding that such identification of accused was of no value. It was observed by the Federal Court that where a witness had not named the accused in his evidence at the trial as a person already known to him who had participated in the riot, but had merely picked him out as one of the rioters while identifying those accused persons in the dock whom he had already named in his evidence as participants in the riot, the evidence of this witness against the accused is of no value whatever.

It was further observed that failure of the witness to mention the accused's name in his statement to the Magistrate robs his subsequent statement against such accused made at the trial nearly four months later of all value."

15. Similar point was also raised before this Court in a case of Asghar Ali v. The State (1992 SCM R 2088). In that case an accused was not identified, therefore, not named in the F.I.R. After his arrest an identification test was held. At the trial, the trial Court discarded the identification test but relied upon the identification of the accused in the Court by the witness and convicted him. In such a situation, this Court did not approve such type of identification of the accused by the P.Ws. In the Court, and observed at page 2097 as under:-- "The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving by identity of the culprits."

' In another case of Tayyab v. The State (1995 SCM R 412) similar view was taken and at page 414 it was observed as under:-- "As far as the statement of Muhammad Moosa is concerned he did not appear when the identification parade was arranged and was called for recording his statement at the trial. It was at the time of recording such evidence that he stated, pointing towards Tayyab, that he was the man who abducted him. Such evidence can hardly be relied upon as identification of the accused and corroboration to other evidence and made basis for conviction.

' Thus, the identification of the appellants in Court by the P.Ws. Without holding identification test through the P.Ws. Is of no value, therefore, it cannot be made the basis for conviction."

16. Additionally, the purpose of raid of police party at the Bus stand was to arrest the nominated proclaimed offenders but when they reached there they did not find the proclaimed offenders nominated in the F.I.R. But tried to arrest the co-convict. There is no evidence on record to show that the co-convict was required by the police in any case or he was declared as Proclaimed offender by the Court. As such, there was no justification even to arrest him. It is also not the case of the prosecution that the appellants were required in any case or they were declared as Proclaimed offenders. Thus, this aspect of the case also belies the changed prosecution story.

17. It is important to note that ocular evidence is in conflict with the medical evidence. According to the witnesses, when they were taking. Away the co-convict, the appellants came out from the Bus and started firing at them. The complainant has further stated that he saw the police party taking away the co-convict towards their car and then the other culprits de-boarded from the Bus and started firing at the police party. From the above evidence, it is clear that the firing was made from a distance but the Medical Officer found tattooing marks on the injuries of the deceased. The Medical Officer found six injuries, out of them three were entry wounds and three were exit wounds.

All the three entry wounds were found to be with tattooing marks, therefore, such marks can occur when the firearm shot is fired from a close range of less than 3.Ft, as per Modi's Medical Jurisprudence. There is no evidence to show that firing was made from close range. Thus, on this, aspect of the case the ocular testimony is not supported or corroborated by the medical evidence, which also creates a reasonable doubt in the prosecution evidence.

18. After scrutinizing the evidence available on record, we are of the considered view that the ocular evidence is insufficient to convict the appellants. We also find that the investigation has not been conducted honestly, false improvements have been made in order to involve the accused and with the particular object the evidence was manipulated so as to strengthen the prosecution case.

Therefore, we are not convinced with the evidence of recovery of weapons from the possession of the appellants.

19. In the light of what has been discussed above, the prosecution case is highly doubtful and has not been proved beyond a reasonable doubt. Hence, the appellants are entitled to the benefit of doubt, which was accordingly given to them, while passing the short order of even date that reads as under:-- "For reasons to be recorded later, this appeal is allowed. The conviction and sentences of the appellants are set aside. The appellants are acquitted of the charges framed against them and they shall be set at liberty if not required in any other cause."