Muhammad Qasim Khan, J.--Vide judgment dated 29.01.2015 passed by learned Judge, Anti-T errorism Court-1, Gujranwala, Muhammad Umair convict/ap pellant after trial in case FIR No. 807 dated- 09.11.2013 under Sections 302/34 PPC read with section 7(a) of Anti-Terrorism Act, 1997, police station Baghbanpura, Gujranwala, was, convicted u/S. 302(b)/34, PPC and sentenced to death on two counts, with compensation of Rs. 200,000/- to be paid to the legal heirs of each deceased and in case of default in payment of compensation, to further serve simple imprisonment for six months on each default. He was also convicted under section 7(a) of Anti-T errorism Act, 1997 and sentenced to death on two counts, with, further orders to pay Rs. 200,000/- to the legal heirs of each of the deceased, and in case of default, to further undergo simple imprisotiment for six months on two counts. Hence, the instant capital sentence reference sent by the learned trial Court and the criminal appeal filed by the convict/appellant.
2. Briefly the facts of the case as shall be seen from the complaint Ex.PM filed by complainant Kausar Ali (PW-11), on the basis whereof formal FIR (Ex.P A) was chalked out, are that on 09.11.2013 at 5.15 a.m. Muhammad Yousaf (cousin of the complainant) went to Ali Masjid Imambargah for Azan. After Azan, Haji Amanat Ali also reached in the Masjid for offering prayer . After hearing voice of firing, Kausar complainant along with Irfan Haider reached the Masjid from their nearby houses and found that Muhammad Yousaf and Haji Amanat were lying dead smeared with blood. According to the complaint some unknown persons had committed murders on sectarian ground.
3. After registration of case during the course of investigation on 01.02.2014 the JIT arrested Muhammad Umair convict/appellant under Section 54 PPC, identification parade was conducted on 07.02.2014 and thereafter , on 20.02.2014 he was formally arrested in the instant case. On completion of investigation, Muhammad Umair convict/appellant was sent up to face trial. The gist of statements of the prosecution witnesses and the stance of the convict/appellant has been given in the impugned judgment of the learned trial Court itself, therefore, the same need not to be reiterated here.
4. We have heard the arguments of learned counsel for the convict/appellant, learned counsel for the complainant as well as learned law of ficer and perused the record with their assistance.
5. It remains an admitted position that FIR had been lodged against unknown accused person. According to the complainant two hours after the occurrence he met with Safdar Hussain (given up) and Babar Hussain (PW-12) at place of occurrence, who both told him that they had come to the mosque at 5.15 a.m. and saw four unknown accused persons coming outside the mosque, while Safdar Hussain and Babar Hussain were about to enter the mosque, but due to fear they did not intervene. According to the complainant when four accused came out of the mosque they expressed to Safdar Hussain and Babar Hussain that they had murdered Haji Amanat Ali and Yousaf as they were preaching shia sect. In this respect supplementary statement of the complainant was recorded. From the above narration of facts it becomes obvious that statement of the complainant is just hear-say , and the ocular account has been furnished by Babar Hussain (PW-12), whereas, the other witne ss namely Safdar Hussain has been given up by the prosecution.
6. While analyzing the evidence of Babar Hussain (PW-12), we have noticed that according to the complaint the occurrence took place on 09.11.2013 at 5.15 a.m. According to the supplementary statement of the complainant just after two hours of the occurrence, Babar Hussain PW-12 and Safdar Hussain (given up PW) met and explained the occurrence by explaining that one of the accused himself disclosed that they had committed the murders as Haji Amanat Ali and Yousaf used to preach shia sect. Babar Hussain (PW-12) while appearing before the Court stated that on 09.11.2013 at about 5.15 am, he went to offer prayer in Imambargah. In the way, Safdar Hussain PW met him, when they both reached in front of the main gate of Imambargah, they were about to enter , when heard the voice of firing from inside . In their sight four persons came out of the room of Ziarat, one person armed with pistol stopped them on pistol point and said that they had murdered Haji Amanat and Yousaf and that if anyone raised noise, they will also be murdered, as such, he went to his house and after some time when people gathered he again went to the scene of occurrence and told the incident to the complainant. It is consistent stance of the prosecution that it was sectarian occurrence and for this reason section 7 of the Anti-T errorism Act, was added. Keeping this aspect in mind, we see the entire prosecution case and observe that: i) It is matter of fact that in the complaint Ex.PM or even in supplementary statemen t of the complainant, the names of accused were not mentioned; however , their features were given by Babar Hussain PW -12; ii) As shall be seen from the above the complainant gave the occurrence a color of sectarian killing attributing a story that one of the accused had told Babar Hussain PW-12 that they had comm itted the murders as deceased were preaching shia sect, but while going through the statement of Babar Hussain (PW-12) we have noticed that this witness did not utter a single word on this aspect; iii) Even if it is believed that it was secta rian killing, then firstly it does not appeal to mind that accused himself would have explained the said reason to the witnesses, and secondly if the witnes s was also present at the place of occurrence and the assault had been mounted with some sectarian thought, and not because of any, personal vendetta against the victims, then it is not believable that terrorist would have left the witness alive; iv)From the statement of Babar Hussain PW-12, it also appears that he was, still outside the Imambargah When he heard the noise of firing from inside and that there were four persons who came out of the mosque, but,-- a) His statement is totally silent that he himself had seen the four persons, or any one of them making fires at the deceased persons; b) From the statement of this witness it cannot be said that what kind of weapon was carried by all the four accused persons; c) It therefore, remains obvious that no direct attribution could be leveled against the accused persons; d) Although it is alleged that one of the accused armed with pistol stopped them but again it cannot be said that this was the person who also made fires at the deceased per sons.
7. This Court is aware of the legal position that it is always for the prosecution, to choose as to how many witnesses, it wants to be examined and there is also no cavil to the proposition that conviction can be based even on solitary statement, but considering the facts and circumstances of the instant case, apparently when the statement of Babar Hussain (PW-12) has been found deficient on material aspects, it was incumbent for the prosecution to have produced Safdar Hussain, who according to the prosecution case was accompanying Babar Hussain and had also seen the occurrence, but he was not produced before the Court and presumption will go against the prosecution in terms of Article 129(g) of Qanoon-e-Shahadat Order , 1984 that had this witness been produced in the witness box, he would not have supported the prosecution case.
8. Further the prosecution tried to establish its case by identification of the accused, but on this aspect we have noticed that Ansar Hayat, Special Judic ial Magistrate (PW-9) who supervised the identification parade; during cross-examination admitted that in his identification report Ex.PK he did not mention that accused was offered opportunity to change his position before start of proceedings of second witness. He also admitted it to be correct that he did not mention in his report that accused had a wound mark on his forehead which had been observed by him. In this view of the matter: i) When the accused was not offered to change his position before the second witness had to come and identify him, serious doubt is cast on such identification parade; ii) Moreover , when it is admitted that accu sed was having a wound mark on his forehead, it was incumbent for the Magistrate supervising the identification parade to have ensures that accused/dummies were not only similar in feature but their special identification marks, if any, must have been covered, so that the witnesses could not use such mark to their benefit and identify the accused; iii) Another important aspect is that although according to Masood Ahmad Bhatti Inspector/IO (PW-15), the convict/appellant was arrested on 01.02.2014, but there has been consistent stance of the accused that in fact he had been abducted on 10.12.2013, regarding which FIR was got lodged and even the matter was agitated up to this Court and out of that grudge he was involved in fake cases. In this respect documentary proof was also brought on the record of the learned trial Court. It therefore, also remains a possib ility that accused was already in the custody of the police and the witnesses had opportunity to see him prior to formal identification parade.
9. Another important aspect of the matter is that though the occurrence took place on 09.11.2003 at 5.15 am, but the post mortem was conducted on the same day at 8.30 pm i.e. almost fifteen hours after the occurrence and no explanation whatsoever has come on the record on this aspect. This delay further damages the case of the prosecution when we observe that according to Babar Hussain PW-12 at 11.00 am, they escorted the dead bodies to Civil Hospital. It is not the case of the prosecution that during the interregnum period no, medical officer was available at the hospital and this resulted in delayed post mortem of the dead bodie s. The only inference which can be drawn from such inordinate delay in conduct of post-mortem is that the prosecution story was built after due deliberation and consultation and thereafter , FIR was recorded with ante-time. Further , it has' been held by the Hon'ble Courts that such unexplained delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination of the deceased and this happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in cases of un-witnessed occurrence. Hence, we are of the view that the presence of the witnesses at the scene of occurrence at the relevant time is doubtful. In this regard, reliance is placed on the case of "Muhammad Riaz versus. The State " (2009 P .Cr.LJ 1022 Lahore) wherein, this Court has observed as under: "13. ... It is also not found correct that the F.I.R. had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the post-mortem examination was conducted at 1-00 p.m. and there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently , otherwise, they have failed to establish their presence at the spot ..."
Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case "Irshad Ahmed versus The State "
(2011 SCMR 1 190), wherein - the Hon'ble Supreme Court was pleased to observe as under: "3. ... We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable, delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted ..."
10. For what has been discussed above, we are of the firm view that prosecution has failed to bring home the guilt against the convict/ appellant "beyond any shadow of doubt. Consequently , the Criminal Appeal No. 188/2015 is allowed, conviction of Muhammad Umair convict/appellant is set-aside and he is ordered to be released forthwith if not required in any other case.
Capital Sentence Reference is answered in the negative. SENTENCE OF DEA TH IS NOT CONFIRMED .