SADIQ MAHMUD KHURRAM, J. -- The appellant namely Nazir Ahmad alias Jeera son of Muhammad Sharif was tried by the learned Additional Sessions Judge, Vehari in case F.I.R. No. 314 of 2011, dated 04.6.201 1 registered at Police Station Saddar Vehari, under Sections 302, 394, 411, P.P.C. for committing the Qatl-e-Amd of Abdul Hafeez (deceased). The learned Trial Court vide judgment dated 28.9.2013 convicted Nazir Ahmad alias Jeera (convict) and sentenced him as infra:-- Nazir Ahmed alias Jeera:
(1) Death under Section 302( b), P.P.C. as Tazir for committing Qatl-e-Amd of Abdul Hafeez (deceased) and pay Rs. 1 Lac as compensation under Section 544-A, Cr.P.C., to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
(2) Rigorous imprisonment for five years under Section 394, P.P.C. with fine of Rs. 20000/- and in default thereof, to further undergo three months of simple imprisonment.
All the sentences were directed to run concurrently . The benefit available under Section 382-B of Cr.P.C. was also given to the appellant.
2. , Feeling aggrieved, Nazir Ahmad alias Jeera (convict) lodged Criminal Appeal No. 95-J of 2014 against his conviction and sentences. The learned Trial Court submitted Murder Reference No. 92 of 2013 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Nazir Ahmad alias Jeera.
We intend to dispose of both the Criminal Appeal No. 95-J of 2014 and Murder Reference No. 92 of 2013 through this single judgment.
3. According to the prosecution story , set forth in the oral statement of Allah Ditta (PW-7), on the night of 3.6.201 1 at 11.45 p.m. Abdul Hafeez (deceased) and Muhammad Shahbaz (PW-8) were proceeding from Chak No. 184/EB to Chak No. 180/EB on their motorcycle and when they had travelled to a distance of 6 acre from 184/EB, two unknown accused, stopped them and disembarked them from the motorcycle. It was further recorded in the statement of Allah Ditta (PW-7) that out of the two, one was of short height of normal body , young of age and armed with rifle 7 mm while the other accused had normal height, slightly heavy built, young of age and was armed with hockey . It was further recorded in the oral statement (Exh.PI) that Abdul Hafeez (deceased) tried to put his keys in the ignition of motorcycle and on this the accused armed with rifle 7 mm fired at him which hit Abdul Hafeez (deceased) on the right side of his urinary bladder . It was further recorded in the statement of Allah Ditta (PW-7) that the second fire hit the road and the third fire again hit the road. It was also recorded in the oral statement of Allah Ditta (PW-7) that person armed with rifle took out the phone from the pocket of Abdul Hafeez (deceased) which had the SIM installed in it. It was further recorded in the statement of Allah Ditta (PW-7) that Muhammad Shahbaz (PW-8) resisted whereupon the accused armed with hockey made several blows on his person resulting injury to his right hand. It was also recorded in the statement of Allah Ditta (PW-7) that the accused took away motorcycle valuing Rs. 50000/-however , left the same at some distance which was then taken by the complainant to his home and Abdul Hafeez (deceased) and Muhammad Shahaz (PW-8) were admitted to the Hospital. The said statement of Allah Ditta (PW-7) was reduced into writing by Zulfiqar Ali, S.I. (PW-10) and formal F.I.R. (Exh.PF) was registered at the Police Station.
4. The learned Trial Court framed charge against the appellant on 10.11.201 1 and thereafter amended charge was framed on 6.4.2012, as the co-accused Hanif (since acquitted) was declared a "child" as defined under Juvenile Justice System Ordinance, 2000, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution/complainant in order to prove its case got recorded statements of thirteen witnesses. Allah Ditta (PW-7) and Shahbaz (PW-8) gave evidence regarding the ocular account. Ghulam Nabi 691/C (PW-1) stated that on 8.8.201 1 he was handed over one sealed parcel of rifle 7 mm for its onward transmission to Forensic Science Laboratory , Punjab, Lahore. Abdul Khaliq 291/C (PW-2) stated that on 15.6.201 1 he escorted the dead-body of Abdul Hafeez (deceased) to the hospital for conducting the post-mortem and also received the last worn clothes of the deceased from the Doctor . Raja Muhammad Iqbal, Draftsman (PW-4) prepared the scaled site plan of the place of occurrence (Exh.PE). Muhammad Mansha, S.I. 817/HC (PW-5) stated that on 4.6.201 1 he registered the formal F.I.R. (Exh.PF) and on 6.8.201 1 Mushtaq Ahmad, Inspector (PW-12) handed over to him one sealed parcel said to contain rifle 7 mm for 'safe custody which he gave to Ghulam Nabi 691/C (PW-1), Muhammad Ahmad (PW-9) identified the dead-body of the deceased and was also witnessed the recovery memo. relating to the last worn clothes of the deceased. Mian Muhammad Hassan Sandhu, Judicial Magistrate (PW-13) stated that on 7.7.201 1 he supervised the test identification parade conducted with respect to the identity of the Nazir Ahmad alias Jeera (appellant) and his co-accused Hanif alias Kala (since acquitted). Zulfiqar Ali, S.I. (PW-10) investigated the case on the first date of occurrence. Mushtaq Ahmad, Inspector (PW-12) investigated the case from 2.7.201 1 till 6.8.201 1 and detailed about the investigation conducted by him before the learned Trial Court.
6. The prosecution got examined Dr. Mujeeb-ur-Rehman (PW-11), who was posted as Medical Officer at DHQ Hospital, Vehari, and on 4.6.201 1 conducted the medical examination of Abdul Hafeez (then injured now deceased). Dr . Mujeeb-ur-Rehman (PW -11) observed as under:--- "INJURIES:
(1) A lacerated wound 0.5 cm x .5 cm margins inverted going in deep inside 12 cm from left iliac crest at lower and left side of abdomen. At the site no blackening, tattooing was observed.
(2) A lacerated wound 2 cm x 1 cm with everted margin at upper end of mid glacial region.
He was advice X-ray abdomen and X-ray lumbosacral spine. Injuries were fire-arm weapon and fresh. Due to critical condition of injured he was immediately referred to BVH Bahawalpur for surgical purpose and further treatment."
Dr. Mujeeb-ur-Rehman (PW-11), on 4.6.201 1 also conducted the medical examination of Shahbaz (PW-8). Dr. Mujeeb-ur-Rehman (PW -11) observed as under:-- "A lacerated wound 1.5 cm x 1.5 cm muscle deep on the right ring finger . Nail of the finger was displaced from tip of the finger . The injury was fresh and by blunt weapon. He was advised X-ray of right hand. The copy of Ex.PR is in my hand and bears my signature."
7. The prosecution also get examined Dr. Abdul Qayyum Khan (PW-3) who was posted as Senior Medical Officer, DHQ, Hospital, Vehari, and on 15.6.201 1 conducted the post-mortem examination of Abdul Hafeez (deceased). Dr. Abdul Qayyum Khan (PW -3) while examining Abdul Hafeez son of Allah Ditta (deceased) observed as under:--- "INJURIES:
(1) A linear surgical wound 20 c.m. x 0.2 c.m. in mid line on abdomen was present.
(2) A surgical wound of drain 1.5 c.m. x 1.5 c.m. x going deep on right side, of abdomen 11 c.m. from and at level of umbilicus.
(3) A wound of fire-arm injury measuring 0.5 c.m. x 0.5 c.m. with inverted margins and going deep on right side of abdomen 7 c. m. from mid line and 5 c. m. below umbilical level.
(4) (A) A wound of ileostomy 7 c.m. x 7 c.m on left side of abdomen at umbilical level with intestines fixed within it.
(B) A wound of exit of fire-arm 2 c. m. x 2 c. m. on upper part of mid-glutieal line 1 c.m. left to mid line. Margins are everted and wound is going deep.
OPINION: After conducting post-mortem, I was of the opinion that cause of death was to be given after receipt of operation notes from BVH Bahawalpur . The injury Nos. 4-A and 4-B were caused by fire-arm and were ante-mortem. Rest of the injuries were surgical wounds.
Note:- In fact, injury No. 3 was caused by fire-arm injury which was mentioned inadvertently in column No. 6 of P.MR as "4-A"
Probable time that elapse between injury and death was 11-days approximately and between death and post- mortem 6-hours and 20-minutes."
8. On 04.9.2013, the learned ADPP gave up witnesses namely Muhammad Saeed son of Allah Ditta, Muhammad Arshad son of Abdul Sattar and Manzoor Ahmad son of Ghulam Hussain being unnecessary . The learned ADPP closed the prosecution evidence on 25.9.2013 after tendering the report of Forensic Science Laboratory dated 27.8.201 1 (Exh.PX).
9. After the closure of prosecution evidence, the learned Trial Court examined Nazir Ahmad alias Jeera (appellant) under Section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he gave the following reply:--- "I am innocent. I have falsely been involv ed in this case. The PWs are inimical towards me and they have made false deposition against me because of their relation with the deceased and complainant."
Neither the appellant opted to get himself examined under Section 340(2), Cr.P.C. nor adduced any evidence in his defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge, Vehari convicted and sentenced the appellant as referred to above.
11. The contention of the learned counsels for the appellant precisely is that whole case is fabricated and false.
That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. They further contended that the statements of Allah Ditta (PW-7) and Shahbaz (PW-8) are not worthy of reliance. They further contended that the appellant is neith er nominated in the F.I.R. nor in the statements of witnesses and the test identification parade conducted was full of procedural defects and of no worth. They also argued that the medical evidence was not supportive of the prosecution case. They also argued that the recoveries were result of fake proceedings. They finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
12. On the other hand, learned Deputy Prosecutor General alongwith the learn ed counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.
Learned counsels further argued that the deceased died as a result of injuries suffered at the hand of the appellant.
They further contended that the medical evidence also corroborated the Statements of Allah Ditta (PW-7) and Shahbaz (PW-8). They further argued that the recovery of rifle 7 mm from Nazir Ahmad alias Jeera (appellant) also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , they prayed for the rejection of appeal.
13. We have heard the learned counsels for the appellant and learned Deputy Prosecutor General alongwith the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
14. We have perused the oral statement (Exh.PI) of Allah Ditta (PW-1) which was reduced into writing by Zulfiqar Ali, S.I. (PW-10). It is evident from the narrative of the said oral statement (Exh.PI) that Allah Ditta (PW-7) was neither accompanying his son Abdul Hafeez (deceased) or Muhammad Shahbaz (PW-8) nor he claimed to have witnessed the occurrence while getting recorded the said statement (Exh.PI). Rather it is recorded in black and white that after getting the information of the occurrence he, Allah Ditta (PW-7) and many other people came at the spot. Similarly , we have perused the formal F.I.R. (Exh.PF) wherein it is also recorded that after getting the information of occurrence he, Allah Ditta (PW-7) and many other people came at the spot. We have carefully gone through the inquest report (Exh.PD), which was prepared on 15th June, 2011, about twelve days after the occurrence, and in that too it has been recorded at page 3 that after getting the information of the occurrence he, Allah Ditta (PW-7), and many other people came at the spot. The analysis of the said document reveals that Allah Ditta (PW-7) never claimed to be present at the time of occurrence, at the place of occurrence. Moreover , Allah Ditta (PW-7) admitted during the cross-examination that his house was at a distance of one kilometer from the place of occurrence and he reached there riding his bicycle. The occurrence was of a short span and only three fires were made and it was not explained as to how Allah Ditta (PW-7) reached the said crime scene from his house within this short span of time, espe cially when he had no cause to leave his house at the late hours of night.
However , during the identification parade, held to establish the identity of the assailants, Allah Ditta (PW-7) not only took part in the same but also deposed regarding it before the learned Trial Court, Allah Ditta (PW-7) who had not even witnessed the occurrence was called for participating in the test identification parade. For what has been discussed above, a conclusion is inescap able and irresistible that Allah Ditta (PW-7) has proved to be a dishonest witness. He attempted to deceive the Courts of law by claiming to be an eye-witness to the occurrence when in fact, by his own version recorded in oral statement (Exh.PI), which was reduced into writing by Zulfiqar Ali. S.I. ( PW-10), he had arrived at the place of occurrence only after being informed of the occurrence. Such unscrupulous conduct of Allah Ditta (PW-7) has raised a question mark against the whole prosecution evidence. If Allah Ditta (PW-7)' was capable of exacting such a fraud upon the Courts of law, then what can be expected of the other witnesses.
15. There is no denial to this fact that Abdul Hafeez lost his life and Shahbaz (PW-8) received injuries, but the fact remains that the names of the assailants were not mentioned in the oral statement (Exh.P1). Zulfiqar Ali (PW-10) during his cross-examination admitted that On 9.6.201 1 Allah Ditta (PW-7) moved an application (Exh.PK) hereby he named out the accused persons. We have perused the said application (Exh.PK). In the said application not only the names of the assailants bet their parentage, caste and residence is also clearly mentioned. When every detail regarding the assailants was disclosed by Allah Ditta (PW-7) through his application (Exh.PK), then the holding of test identification parade even otherwise was an exercise in futility . Allah Ditta (PW-7) during his cross- examination further revealed that he nominated the accused on 9.6.201 1 as the people of the village informed him about the accused persons. The question begs an answer that when the village people had already informed Allah Ditta (PW -7) about the details of the accused then for what purpose the test identification parade was held.
16. We have also noted that no source of light was mentioned in the oral statement (Exh.P1) of Allah Ditta (PW-7) despite the fact that as per prosecution's own claim the occurrence had taken place .during the night. Allah Ditta (PW-7) during his cross-examination admitted that the place of occurrence was not a populated area. Similarly , Shahbaz (PW-8) during cross-examination stated that the place of occurrence was a barren area. Both these witnesses claimed to have identified the assailants in the light of motorcycle of the deceased before the learned Trial Court. The theory of light is that only those articles can be seen on which the light falls whereas the others remain in shadow . The deceased received only one fire-arm injury which was from the front. As per the statements of both Allah Ditta (PW-7) and Shahbaz ( PW-8) the accused stopped the deceased and disembarked him from the motorcycle and when Abdul Hafeez (deceased) tried to put his keys in the ignition of motorcycle, a fire was made which hit Abdul Hafeez (decesed) on the right side of his urinary bladder . The scenario which ciur be visualized from these statements is that none of the assailants was in front of the light as the deceased had already disembarked from the motorcycle and was standing on the road and received the fire only when he was nutting in the keys. If the assailants were standing in front of the motorcycle then the deceas ed should base received the fire from side as he was on the road, standing beside the motorcycle. However , the fire hit him in front which shows that the assailants were facing him and not his motorcycle hence no light was focused on them, making their identification not possible. Furthermore, the said motorcycle was not available at the spot at the time of visiting of the Investigating Officer. Allah Ditta himself produced the said motorcycle and handed it over to the Investigating Officer. This also creates a doubt regarding availability of the motorcycle at the spot as the prosecution evidence is silent as to why the motorcycle was taken to the home of Allah Ditta (PW-7) even prior to the arrival of the Investigating Officer. Such identification of the appellants in a test identification parade, in the circumstances, is laconic and is of no evidentiary value.
17. We have also noticed that the test identification parade was not conducted. as per the law and in violation of rules of the Police Rules, 1934. The perusal of the proceedings of the test identifi cation parade (Exh.PW) reveals that the said identification parade of two accused was conducted jointly . It is further recorded in the proceedings of the test identification parade (Exh.PW) that both the accused were made to sit in front of each other alongwith the dummies at different serial numbers, The proceedings of test identification parade (Exh.PW) reveals that there is no mention of either the ages of the other prisoner used as dummies, nor their heights or the colour their of skim.
While recording the oral statement (Exh.P1) the only description, given in the said oral statement (Exh.P1), with regard to the assailants was their age, height and weight. However , while holding the test identification parade, Mian Muhammad Hassan Sindhu, Magistrate (PW-13) failed to observe the desc ription of age, height, colour of their skin and weight of the dummies being used during the test identification parade which was necessary to rule out any possibility of mis-identification. The august Supreme Court of Pakistan in case of Hakeem and others v.
The State (2017 SCMR 1546 ) at page 1550 while enunciating the principles of law relating to the identification parade has held as under:-- "The proper course is to have separate identification parades for each accused."
The august Supreme Court of Pakistan in case of Kamal Din, alias. Kamala v. The State (2018 SCMR 577) at page 580 held as under:--- "Apart from that the test identification parade held in, this case was a joint parad e wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go. This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210 ), Bacha Zab v. The State (2010 SCMR 1189), Shafqat Mahmud and others v.
The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that the identification of many accused in one go is not proper besides being unsafe."
18. We have observed that the deceased Abdul Hafeez, whose injuries were examined by Dr. Mujeeb-ur-Rehman (PW-11) had suffered only one entry wound injury No,
1. No blackening was observed as being present as per the statement of Dr. Mujeeb-ur-Rehman (PW-11). Had the appellant and the deceased been in close proximity ,, as suggested by the witnesses and had the deceased died as a result of fire made by the appellant when the deceased, tried to put the keys in the ignition of the motorcycle, then blackening on the wound must have been observed. The absence of blackening on or around the wounds of the deceased proves that the witnesses had not deposed honestly . In such a case, the ocular account is to be rejected as being contrary to the medical evidence.
Reliance is placed on Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812 ) wherein it has been observed as infra:-- "It is a settled law that blackening appe ars on the dead-body in case the dece ased has received injuries at a instance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali 's case 1983 SCMR 1292 , Sain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644 ."
19. Learned Deputy Prosecutor General has also relied upon the recoveries made from the appellant. With respect to recovery of weapon from the appellant it has been observed that report of Foren sic Science Laboratory (Exh.PX) only reveals that the weapon was in working order without any comparison made with test crime empties. In any case Zulfiqar Ali (PW-10) had not collected any empties from the place of occurrence. Such a report has no corroborative value. With respect to the recovery of phone (Exh.P3) and SIM (Exh.P4) from the appellant, suffice is to say that no memo of identification of both the articles was prepared by the Investigating Officer for them to be considered as relevant and incriminating piece of evidence as against the appellant. We have observed that the police did not associate any residents of the locality in the investigation for the purpose of recovery . The said recovery proceedings were conducted in violation of Section 103 of Cr.P.C. and thus are hit by the exclusionary rule of evidence and cannot be considered. As we have disbelieved the ocular account in this case, hence the evidence of recovery would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
20. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Nazir Ahmad alias Jeera appellant in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a pruden t person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. Reliance is placed on the binding judgment of the august Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772) wherein it has observed as under:-- "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reaso nable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right."
21. For what has been discussed above Criminal Appeal No, 95-J of 2014 filed by Nazir Ahmad alias Jeera (appellant) is accepted and the conviction and sentences of the appellant awarded by the learned Trial Court through the impugned judgment dated 28.9.2013 are hereby set aside. Nazir Ahmad alias Jeera (appellant) is ordered to be acquitted. He is directed to be released forthwith if not required in any other case.
22. Murder Reference is answered in Negative and the death sentence of Nazir Ahmad alias Jeera (appellant) is Not Confirmed .