Through this single judgment, I propose to decide the titled Criminal Appeals filed by appellants, namely , Arsalan Zohaib and Zeeshan (separately tried] against impugied judgments dated 20.11.2018, passed, on the conclusion of trial, in case FIR No. 707. dated 27.10.201 4, registered at Police Station Gaggb Burewala, District Vehari in respect of offences under Sections 302, 392, 411 & 109, PPC, whereby they have been convicted and sentenced as under:-
(i) Arsalan Zohaib Under Section 392, PPC Rigorous Imprisonment for 10-years and fine of Rs. 50,000/-and in case of default, to undergo simple imprisonment for three months .
(ii) Zeeshan Under Section 302(b), PPC Imprisonment for life and Compensation of Rs. 5,00,000/-payable to the legal heirs of the deceased under Section 544-A, Cr .P.C, failing which to further undergo six months S.I Under Section 392, PPC Rigorous Imprisonment for 10-years and fine of Rs. 50,0001- and in case of default, to undergo simple imprisonment for three months .
Benefit under Section 382-B, Cr.P.C. was extended to both the accused/convic ts. The sentences of appellant Zeeshan were directed to run concurrently .
2. It is pertinent to mention here that two separate trials of the aforesaid case have been conducted, one against appellant. Zeeshan being juvenile and other against appellant Arsalan Zohaib and acquitted co- accused Mirza Afzaal Mandi.
3. The case of the prosecution as contained in the FIR (Exh.P A) lodged on the written complaint (Exh.P A/1) of the complainant Khan Bahadar (PW-6) is to the effect that on 27.10.2014 at 07:00 p.m., he along with Shaukat Ali (deceased) were proceedings towards main road from their land on a motorcycle; Munir Ahmad Nazir Ahmad (given up), Sultan Mahmood S/o Ghulam Haider (PW-7) were also with them on other motorcycle; when they reached at `Soling', two unknown persons, boarded on a motorcycle-125. waylaid them on gun point, started searching and took out cash amount of Rs. 1500/- from his pocket, Rs. 2700/- from Shaukat Ali; During search, they tied to apprehend the accused persons whereupon, accused No. 1 made fire hitting at the chest of Shoukat Ali, who fell down on the ground; they attended him but in the meanwhile, the accused persons made their escape good.
4. The investigation was encapsulated into report under Section 173, Cr.P.C. against the appellants. During trial, the learned trial Court, vide order dated 02.06.2016, declared appellant Zeesha n Juvenile, therefore, to extent, separate report under Section 173, Cr.P.C. was submitted and his trial conducted separately . While taking cognizance of the offence, the learned trial Judge after supplying the requisite copies of the statements to the appellants as required under Section 265(c), Cr.P.C., charge sheeted them, to which they pleaded not guilty , while professing their innocence and claimed trial. The learned trial Judge directed the prosecution to produce its evidence for establishing the charge. The prosecution, in both trials, in order to prove the charge against the appellants, has produced as many as 09 PWs . In both the trials, medical evidence has been furnished by Dr. Khalid Maqsood, Medical Officer (PW-4), who stated that on 28.10.2014, he conducted the post-mortem examination on the dead body of deceased Shoukat Ali and observed the following injury:
1. A lacerated wound by fire arm measuring about .5 cm x .5 cm x on right sided chest x about 2 cm from right nipple medially x over 5th-6th rib x margins inverted x burnt x corresponding hole present on Qamiz. Right sided chest tube placed and intact.
In his opinion, death was occurred due to Injury No. 1, i.e. by fire arm injury which is sufficient in ordinary course of nature to cause death due to hemorrhage shock. The probable time that elapse between injury and death was about 1 hours and between death and post-mortem was about 4 hours.
5. The ocular account in this case has been furnished by Khan Bahadar/complainant (PW-6) and eye-witness Sultan Mehmood (PW-7). The matter was investigated by Muhammad Eyyaz S.I (PW-9). Identification parade in this case was conducted by Mr. Muhammad Asim Shafique, Magistrate who appeared before the Court as PW-5.
Rest of the witnesses being formal in nature, are not of much importance, therefore, in order to avoid unnecessary account, the detail thereof is not being given.
6. When examined under Section 342, Cr.P.C., appellants denied every bit of incriminating material so produced.
While replying the question that as to why this case against them and why the prosecution witnesses had deposed against them, they replied as follows: Arsalan Zohaib "All the PWs are related inter se, interes ted and inimical towards me as well as my co-accused. They deposed against me due to political grudge as the real cousin of complainant party Muhammad Yousaf Kasalia is sitting MPA frcm our area and I alongwith my father and other family member are not supporter and voter for the said MPA. My father has also elected as counc ilor from said area. Moreover , I alongwith the complainant and PWs used to reside in the same vicinity . The compla inant and PWs are well known to me and my other family member , as my mother is running a maternity hospital in the same town Gaggo, where they complainant party used to visit regularly . The Complainant has own piece of land in Chak No. 187/EB and 245/EB, whereas I and my father are also owners of landed property . If I was present at the time of alleged occurrence the complainant have no reason to nominate me in this case. Furthermore, according to prosecution evidence prior to my implication in this case complainant was fully aware of my name as well as name of my father alongwith my address. So the alleged proceedings of identification parade are fake and prosecution has maneuvered the false evidence against me.
During the alleged identification proceedings one of the witnesses Sultan Mehmood PW-7 stated before the judicial Magistrate that I am not his accused as is evident from the report of identification parade Exh.PG, Ex.PGI 1 and ExhPGI2. During the course of evidence none of the alleged eye-witnesses including complainant utter single word regarding my identification during the dark night. Furthermore, no source of light was taken into possession by the I.O. nor it was produced by the prosecution during the course of evidence. All the evidence was maneuvered and fabricated by the I.O. I have been falsely Implicated by the complainant due to above said as well as other grudge."
Zeeshan "My father was a contractor of supplying the labour . In the days of occurrence, he used to supply labour to Ganjshakara Gaee Mills situated at Gaggo. He snatched this contracted from the complainant party . Due to this grudge the complainant party falsely involved me in this unseen occurrence. One day after this unseen occurrence, the complainant alongwith police came the residential quarter of my father situated in the said mill to arrest me.
Luckily I was not present in the above house and they could not cause my arrest. All the PWs are related inter se and they deposed against me due to above said grudge. Moreover , the alleged occurrence was of dark night prosecution did not adduce any evidence regarding identification of the assailants. During the course of evidence alleged prosecution witnesses did not utter a single word regarding the identification of assailants. Furthermore, no source of light was taken into possession during the course of investigation. The prosecution witnesses are highly inimical towards me and are interested witnesses."
7. Learned trial Court, on conclusion of the trial, proceeded to convict the appellants as aforesaid. Hence, the titled appeals.
8. Learned counsel for the appellants submits that initially , the FIR was lodged against four unknown accused persons, however , later on name of two accused surfaced through supplementa ry statement of one Mehmood Akhtar dated 02.11.2019 but the said witness was not produced before the Court; that the identification parade of the appellants was jointly conducted under the supervision of Judicial Magistrate which is not permissibly under the law; that during identification parade, no role was assigned to the appellants; that recovery of cash amount is joint.
9. Conversely , learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that the appellants were duly identified by the complainant and the witnesses in the motorcycle lights; that during identification parade, the complainant and the witness identified the appellants while assigning specific roles; that recovery of weapons of of fence have been ef fected on pointing out of the appellants.
10. Arguments heard: Record perused.
11 Before undertaking the judicial scrutiny of the entire prosecution's evidence, it is observed that the occurrence, in this case, has allegedly taken place on 27.10.2014 at 07:00 p.m. The complainan t, who had put the machinery of law into motion, while recording his statement to Muhammad Ayyaz Khan SI (PW-9) in the form of complaint (Exh.P A/1) on the basis whereof, formal FIR (Exh.P A) was chalked out, appeared before the Court as PW-6 narrated the story as mentioned in the FIR.
12. In order to prove the ocular account, the prosecution has depended upon the testimony of Khan Bahadar/complainant (PW-6) and eye-witness Sultan Mehmood (PW-7). Peru sal of record reveals that the appellants have been nominated in this case on the basis of statement of one Mehmood Akhtar S/o Muhaitimad Sharif who was witness of Waj Takkar . Most important aspect of this case, which surprised this Court was non examination of said witness, the star witness of this incident, which too without any explanation, therefore, inference can be drawn that had he been produced before the Court, he would not support the case of the prosecution, in this respect reliance can be placed on the case reported as Shah Izzat alias Shahzad v. Adnan, Constable No. 5355 and another (2017 PCr .LJ 25). Relevant portion therefrom is quoted herein below: "The prosecution has withheld its best evidence. Non-production of said witne ss further makes the story of prosecution dubious. It is well-settled principle of law that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not prociucing the said evidence".
Under Article 129 of Qanun-e-Shahadat Order , 1984, Court may presume existe nce of certain facts. For further convenience the above mentioned Article is quoted herein below: "129. Court may presume existence of certain facts . The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
It is also observed that neither the name of said witness does figure in the report under Section 173, Cr.P.C. in the column of witnesses neither any application was submitted before the learned trial Court for summoning him as witness. He was star witness of the alleged occurrence but his non-appearance before the Court for recording his evidence in support of prosecution's version creates a serious dent in the prosecution case but this important aspect went unattended by the trial Court, which in our perception caused miscarriage of justice.
13. The FIR was lodged against unknown accused persons and after the arrest of the appellants as a result of supplementary statement of one Mehmood Akhtar (not produced), in order to affirm their presence at the place of occurrence, joint test identification parade was conducted under the supervision of Mr. Asim Shafique Magistrate 1st Class, Mailsi (PW-5). Although the witnesses of ocular account have duly identified the appellants during the identification parade but joint test identification parade conducted under the supervision of a Magistrate has been disapproved by the Hon'ble Supreme Court of Pakistan. Such identification parade carries no value in the eye of law because the parade so conducted and held was a joint parade in which the appellants had been made to sit in two different rows along with many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Hon'ble Supreme Court of Pakistan in a recent judgments reported as "Mian Sohail Ahmad and others v. The State and others" (2019 SCMR 956) and "Gulfam and another versus The State" (2017 SCMR 1 189).
14. Dr. Khalid Maqsood (PW-4) had conducted autopsy on the dead body of deceased and observed the injuries as mentioned in the post-mortem examination report. The duration of injuries and death was 11/2 hour whereas between death and post-mortem examination was 41/2 hours. The purpos e of conducting post-mortem examination is always to ascertain the cause of death, number and locale of injuries kind of weapon used in the crime and duration between injuries and death as well as death and post-mortem but the medical evidence by itself does not raise finger towards any specific culprit.
15. Having scanned the entire prosecution evidence and material available on record, I am of the view that the case in hand is replete with doubts and the benefit of reasonable shadow of doubt would always favour the accused as a matter of right and not of grace. Reliance is placed on the case reported as "Muhammad Akram versus The State" (2009 SCMR 230 ) wherein, it has been held as under: "It is an axiomatic principle of law that in case of doubt, the benefit of thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
16. For what has been discussed above, these appeals are allowed , the conviction and sentence of appellants Arsalan Zohaib and Zeeshan are set aside and they are acquitted of the charge by extending the benefit of doubt to them. Appellant Arsalan Zohaib is on bail. His surety stands discharged from his liability . Appellant Zeeshan is in jail. He be released forthwith if not required in any other case.