SAYYED MAZAHAR ALI AKBAR NAQVI, J. Naeem alias Titu son of Khushi, caste Joya, resident of Santaika, District Bahawal Nagar , Azeem Ilyas son of Muhammad Ilyas, caste Pathan, resident of Basti Pathana Wali, Kashif Chowk, Tehsil Pattoki, District Kasur , Abdul Razzaq alias Ranjhi son of Talib Hussain, caste Chena, resident of Eid Ghah Road, Phool Nagar , Tehsil Pattoki, District Kasur , Manzoor Ahmed alias Juni son of Farzand Ali, caste Machi, resident of Mohallah Islampura, Phool Nagar, Tehsil Pattoki, District Kasur and Muhammad As.lam son of Shameer Ahmed, caste Fatyana Sial, resident of Thatha Galoi, District Sahiwal, appellan ts, were involved in case FIR No.400/2013, dated 30.09.2013, offence under Sections 302, 396, 397, P.P.C., registered with Police Station City Phool Nagar . They were tried by learned Additional Sessions Judge Pattoki under the afore-mentioned offences.
Learned trial court seized with the matter in terms of judgment dated 28.02.2017 convicted and sentenced the appellants in the allowing terms:-- Sr# Name of the appellant/ convict Sentence/Conviction
(1) Naeem alias Titu > Under Section 302(b)/ 149, P .P.C., sentenced to death as Ta'zir with direction to pay Rs.2,00,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof to undergo S.I. for six months. > Under Section 396, P .P.C., sentenced to death as Ta'zir with fine of Rs.50,000/- and in case of default in payment thereof to undergo S.I. for six months. > Under Section 397, P .P.C., sentenced to undergo R.I for seven years. > Under Sections 324/149, P .P.C., sentenced to undergo R.I. or five years with direction to pay Rs.50,000/- to Allah Ditta injured under Section 544-A, Cr .P.C. and in case of default in payment thereof to further undergo S.I. for three months. > Under Sections 148/149,P .P.C., sentenced to undergo R.I. for two years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo S.I. for three months.
(2) Azeem Ilyas > Under Sections 302(b)/ 149, P .P.C., sentenced to undergo imprison- ment for life as Ta'zir with direction to pay Rs.2,00,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr .P.C. and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 396, P .P.C., sentenced to undergo imprisonment for life as Ta'zir with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 397, P .P.C., sentenced to undergo R.I. for seven years.
(3) Abdul Razzaq alias Ranjhi > Under Sections 302(b)/ 149, P .P.C., sentenced to undergo imprisonment for life as Ta'zir with direction to pay Rs.2,00,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr .P.C. and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 396, P .P.C., sentenced to undergo imprisonment for life as Ta'zir with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 397, P .P.C., sentenced to undergo R.I. for seven years. > Under Sections 324/149, P .P.C., sentenced to undergo R.I. or five years with direction to pay Rs.50,000/- to Allah Ditta injured under Section 544-A, Cr .P.C. and in case of default in payment thereof to further undergo S.I. for three months. > Under Sections 148/149,P .P.C., sentenced to undergo R.I. for two years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo S.I. for three months.
(4) Manzoor Ahmed alias Juri > Under Sections 302(b)/ 149, P .P.C., sentenced to undergo imprisonment for life as Ta'zir with direction to pay Rs.2,00,000/- as com-pensation to legal heirs of deceased in terms of Section 544-A, Cr .P.C. and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 396, P .P.C., sentenced to undergo imprisonment for life as Ta'zir with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 397, P .P.C., sentenced to undergo R.I. for seven years. > Under Sections 324/149, P .P.C., sentenced to undergo R.I. for five years with direction to pay Rs.50,000/- to Allah Ditta injured under Section 544-A, Cr .P.C. and in case of default in payment thereof, to
(5) Muhammad Aslam > Under Sections 302(b)/149, P .P.C., sentenced to undergo imprisonment for life as Ta'zir with direction to pay Rs.2,00,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr ,P.C., and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 396, P .P.C., sentenced to undergo imprisonment for life as Ta'zir with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months. > Under Section 397, P .P.C., sentenced to undergo R.I. for seven years. > Under Sections 324/149, P .P.C., sentenced to undergo R.I. for five years with direction to pay Rs.50,000/- to Allah Ditta injured under Section 544-A, Cr.P.C. and in case of default in payment thereof, to further undergo S.I. for three months. > Under Sections 148/149; P .P.C., sentenced to undergo R.I. for two years with fine of Rs.10,000/- and in case of default in payment thereof, to further undergo S.I. for three months.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction and sentence through filing Crl. Appeal No.2 44-J/2017 whereas the learned trial court forwarded Murder Reference No.323/2017 for confirmation or otherwise of sentence of death inflicted upon Naeem alias Titu/convict in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of f through consolidated judgment.
3. Prosecution story as embodied in the FIR (Exh.P A/A) lodged on the application (Exh.P A) of Liaquat Ali son of Hakim Ali, caste Jatt, resident of Chak Saharankey , Tehsil Pattoki, District Kasur (PW-1) is that the complainant is involved in Zamindara. On 30.09.2013 at 7:00 p.m. brother of the complainant namely Khadim Hussain along with his friend Allah Ditta son of Fateh Muhammad, caste Gujjar , resident of Saharan while riding on motorcycle bearing registration No.OKG/3054 and Abdul Raheem son of Abdul Waheed, caste Rajput, resident of Julleki, Naveed son of Abdul Waheed, caste Rajput, resident of Julleki while riding on another motorcycle were proceedings from Phoolnagar towards Saharan-key . When they reached near the brick kiln of Julleki at a distance of 2-Ares, all of sudden, 7/8 unknown accused persons armed with firearms emerged there, who signaled to stop the motorcycle.
Khadim Hussain etc. did not stop the motorcycle on which the unknown accused persons made firing which resulted into injuries on the back of Khad im Hussain and at the palm of right hand of Allah Ditta. After receiving injuries both of them fell down on the ground. In the meanwhile one fire shot hit Abdul Raheem on back side of head while one fire shot hit Naveed at his forehead. The dacoits made Search of Khadim Hussain and took out his mobile phone bearing SIM No.03354381997. Brother of the complainant succumbed to the injuries at the spot. In the meanwhile Farmaish Ali son of Nazar Muhammad, caste Jatt, resident of Saharan-key and Maratab Ali son of Muhammad Ashiq, caste Jatt Dhaban attracted to the spot and they witnessed the occurrence. The complainant averred that the accused could be identified.
4. In order to report the matter to police, the complainant reached police station and on his application formal FIR was chalked out. After registration of the case, investigation was entrusted to Noor Ahmed, S.I. (PW-13), who along with other police officials reached the place of occurrence. After inspecting dead body , Investigating Officer prepared inquest report (Exh.PR), drafted injury statement (Exh.PS), jotted down application for postmortem examination (Exh.PT) and dispatched the dead body to mortuary under the escort of Muhammad Hussain 766/C (PW-5). From the spot Investigating Officer secured blood stained earth vide recovery memo Exh.PB. He also prepared rough site plan of the place of occurrence (Exh.PQ). After postmortem examination last worn clothes of the deceased viz. qameez (P-1), shalwar (P-2) along with a phial were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PC. On the direction of Investigating Officer and pointing out of the PWs on 02.10.2013, Master Sadiq Ali, Draftsman (PW-10) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PK and Exh.PK/A), which was made part of the file. On 17.12.2013, Investigating Officer arrested Naeem alias Titu, Azeem Ilyas, Abdul Razzaq alias Ranjhi and Manzoor Ahmed alias Jurri in connection with case FIR No.485/2013, offence under Sections 399, 402, P.P.C. During the course of investigation, the accused made disclosure regarding the instant occurrence, hence they were lodged at judicial lock up for test identification, which was conducted on 23.12.2013 under the supervision of Ghulam Farid Qureshi, learned Magistrate Section 30 (PW-12). Subsequently Investigating Officer obtained their physical remand. On 25.12.2013, Investigating Officer arrested Muhammad Aslam appellant, and recovered pistol .30-bore (P-8). On the next day, Muhammad Aslam was lodged at judicial lock up for test identification parade, which was conducted. During the course of interroga tion in pursuance of disclosure on 04.01.2014 Abdul Razzaq appellant led to the recovery of mobile phone G-5 (P-2), which was taken into possession vide recovery memo Exh.PE. On the same day Azeem Ilyas appellant led to the recovery of Mobile Phone NOKIA (P-3), which was secured vide recovery memo Exh.PF . On the disclosure of the appellants, pistols (P-4 to P-7) already recovered from them in connection with case FIR No.485/2013, offence under Sections 399, 402, P.P.C., deposited with Malkhana were taken into possession vide recovery memo Exh. PF , Exh. PG, Exh. PH and Exh.P .J.
5. As a result of investigation, the appellants were found guilty , hence Investigating Officer prepared report under Section 173, Cr.P.C. while placing their names in column No.3, and sent the same to the Court of Session en- routed through the Illaqa Magistrate as provided under Section 190(2), Cr.P.C. The learned trial court formally charge sheeted the accused vide order dated 07.03.2014 to which they pleaded not guilty and claimed trial.
Prosecution in order to substantiate its case produced as many as fourteen 14 prosecution witnesses while two court witnesses also made their statements.
6. The FIR was lodged on the statement of Liaquat Ali, complainant (PW-1) while occular account consists of the statements of Allah Ditta (PW-2) and Maratab Ali (PW-3). Abdul Rasheed, ASI (PW-7) had chalked out formal FIR while Master Sadiq Ali Qamar , Draftsman (PW-10) had prepared scaled site plan of the place of occurrence.
Investigation in this case was conducted by Qurban Shabbir , S.I. (PW -11) and Noor Ahmed, S.I. (PW -13).
Dr. Farrukh Humayoun (PW-14) had medically examined Allah Ditta injured and observed following injuries on his person:- "1. A lacerated penetrated fire arm wound 2.3 x 1.5 cm on back of right hand, margins blackened, track going forward and communicated to injury No.2 on palm, it was entry wound bleeding obviously margins inverted.
2. A lacerated wound 1.6 x 0.5 cm on the palmer surface of right hand, margins outverted, it was exit wound and was communicating with injury No. 1."
Dr. Mansoor Ahmed, Medical Officer had conducted postmortem examination over the dead body of Khadim Hussain. However , during the course of trial he could not be traced out and in his place Dr. Abdul Hafeez Shahid, Medical Officer (CW-2) made his statement. According to postmortem examination report, at the time of conducting autopsy , doctor had observed following injury on the person of deceased:- "1. A lacerated wound of size 1 cm x 1 cm (inverted margins) on back of right side of chest. 11 cm from middle and 15 cm from right of back axilla."
After postmortem examination, doctor rendered the following opinion:- "Probable time that elapsed (a) between injury and death within few minutes. (b) between death and post mortem 12 to 14:30 hours.
In my opinion all the injuries are ante-mortem in nature and caused by fire arm. The deceased had died due to perforation of right lung, perforation of heart (vital organ) major blood vessels haemorrhage and shock. In my opinion injury No.1 is sufficient to cause death in ordinary course of nature."
Statements of rest of the prosecution witnesses are formal in nature .
7. The appellants were examined under Section 342, Cr.P.C, wherein they refuted the allegation levelled against them in the prosecution evidence. The appellants neither opted to appear as their own witnesses in terms of Section 340(2), Cr .P.C. nor did they opt to adduce evidence in their defence.
8. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellants, which resulted into their conviction in the afore-stated terms.
9. Learned counsel for the appellants while advancing his arguments contended that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Learned counsel vigorously argued that story advanced by the prosecution with regard to mode and manner of occurrence is highly improbable. Main crux of arguments of learned counsel. for the appellants is that the occurrence had taken place at dark hours and in absence of source of light, identity of the assailants in this case could not be estab lished and even in the crime report body features of the assailants were not given. Learned counsel argued that in the crime report 7/8 accused persons were mentioned, however , only five, persons were brought on record while the whole file is silent qua rest of the accused. Further contended that test identification parade of the accused was conducted jointly , hence it cannot be given any legal sanctity . Learned counsel submitted that it has come on record that at the time of occurrence Abdu l Razzaq alias Ranjhi, appellant was lodged at Central Jail, Lahore, which fact straightway hits the very basis of the prosecution version. It was argued that medical evidence is of no legal importance in this case. Moreover , the recoveries of crime weapons brought on record were affected in some other case, hence the same cannot be used against the appellants in the instant case. Further argued that even report of Punjab Forensic Science Agency is only working order . It was finally argued that in view of deficit material available on record conviction and sentence recorded by the learned trial court is liable to be set aside.
10. As against above, learned Deputy Prosecutor General vehemently opposed the contentions raised on behalf of the appellants. He submitted that althoug h the occurrence had taken place at dark hours while the FIR was lodged against unknown accused persons, however , subsequently during the course of test identification parade, the appellants were duly identified with their specific role. Learned Law Officer argued that during the occurrence Allah Ditta (PW-2) had received firearm injuries, hence, his presence at the relevant time could not be doubted.
Moreover , all the prosecution witnesses while making their statements during the course of trial fully substantiated the prosecution case on minute details and although they were cross examined at length, however , nothing adverse to the prosecution version could be brought on record. It was further argued' that medical evidence also corroborates the prosecution version. It was argued that during the course of investigation the appellants were found guilty as such their names were placed in column No.3 of the report prepar ed under Section 173, Cr.P.C. It was finally argued that in view of overwhelming material available on record against the appellants to connect them with the occurrence, the learned trial court was rightly justified in recording conviction against them.
11. We have considered the arguments advanced by learned counsel for the parties. We have also gone through the record available on file with their able assistance.
12. It is cordial principle of law that each criminal case has its own peculiar A facts and circumstances and same has to be weighed on the judicial parlance . In this unfortunate occurrence, which had taken place on 30.09.2013 at 7:00 p.m. due to firing made by the assailants Khadim Hussain brother of the complainant was done to death when he along with Allah Ditta, injured (PW-2) was heading towards his residence at Saharan-key from Phool Nagar .
According to prosecution version besides them, Abdul Raheem and Naveed (both not produced) also received firearm injuries at the hands of assailants. In order to substantiate its version the prosecution has led evidence in the shape of occular account, test identification parade, medical evidence, recovery of firearms, as well as, investigation.
There is no cavil to this proposition that complainant is not eye-witness of the occurrence while prosecution version qua occular account has been advanced through the statements of Allah Ditta (PW-2) and Maratib Ali (PW-3). As far as date, time and place of occurrenc e is concerned, the same is not disput ed/and the only question to be determined by us in this particular case is identity of the assailants. There is no denial to this fact that in the cases of dacoity ordinarily the assailants are not known to the victim party , however , when it is claimed by the prosecution witnesses that they witnessed the mode and manner of occurrence, body feature s of the assailants are given. In the instant case astonishingly this fact is straightway missing. So much so the occurrence had taken place on the last day of September at 7:00 p.m. while in those days sun sets at 6:00 p.m. and after one hour dark spreads but no source of light was mentioned by the complainant through which the prosecution witnesses had witnessed the minute details of the occurrence. Even otherwise according to contents of the crime report besides Khadim Hussain deceased and Allah Ditta (PW-2), Abdul Raheem and Naveed had also received firearm injuries, however , the whole file is silent to their extent as neither during the course of investigation nor during the course of trial, they were brought on record. During the course of arguments learned Law Officer had vigorously argued that Allah Ditta (PW-2) had received firearm injuries durin g the occurrence, hence he being natural witness, his deposition cannot be discarded. Perusal of record available on file reflects that while making his statement during the course of trial, PW-2 in categorical terms admitted that he never got recorded his statement before the Investigating Officer in terms of Section 161, Cr .P.C. Relevant extract out of his statement is reproduced as under:- "I never got recorded my statement under section 161, Cr. P. C. before the Police . 1.0. had not got recorded my statement under section 161, Cr .P.C."
Even otherwise it is consistent view of the superior courts of the country that the statement of injured PW straightway cannot be taken as a gospel truth in stricto sensu rather it requires to be scrutinized with more care and caution while juxtaposing with other independent circumstances because after receipt of injury , the vindictiveness enhances. Reference in this regard can be made to the dictum of law laid down in the case of Altaf Hussain and 4 others v. The State (PLD 2000 Lahore 216). Similar view was held in the case of Jahangir Hayat v. The State (PLD 1999 Lahore 285 ).
13. Next piece of evidence available with the prosecution is 'test identification parade, which was conducted under the supervision of Ghulam Farid, A.S.J. (PW-12). Perusal of proceedings of test identification parade available on record as Exh. PO and Exh.P0/1 reflects that the same was conducted jointly of Naeem alias Titu, Azeem Ilyas, Abdul Razzaq and Mansoor Ahmed, appellants during the same proceedings and only rows were changed. The holding of joint test identification parade is not, only against the law on the subject rather the same has been deprecated by the superior courts of the country from time-to-time. In the celebrated judgment handed down in the case of Lal Pasand v. The State (PLD 1981 Supreme Court 142); it has been held by the Apex Court that it would not be safe to rely upon such an evidence to record conviction. Similarly in another case reported as Nazir Ahmad v. Muhammad lqbal and another (2011 SCMR 527) it was held by the august Supreme Court of Pakistan that holding of test identification parade jointly was sufficient to set aside the conviction/ sentence recorded in a criminal case.
Relevant portion out of the judgment is reproduced as under:- "In the case in hand identification parade was held jointly of all the accused, therefore, learned High Court was justified to set aside the conviction of the respondent...."
Similar view was held in the case of Shafqat Mehmood and others v. The State (2011 SCMR 537) wherein it was held as under:- "----Ss. 396 & 394---Anti-T errorism Act (XXVII of 1997), Ss. 7(h) & 21-L---Dac oity with murder ---Appraisal of evidence-- Identification parade was not held according to the Rules---Prosecution witnesses had already seen the accused-- Identification parade was not held separately in respect of each accused, but was held jointly --- ---Accused were acquitted in circumstances ..."
Moreover , it has come on record that Maratab Ali (PW-3) had not put his hands over the head of the culprits during the proceedings. Hence, in all eventualities test identification parade is devoid of legal credence.
14. Another important aspect of the case is that as per prosecution version Abdul Razzaq alias Ranjhi, appellant along with other assailants had participated during the occurrence, which had taken place on 30.09.2013 and he was also identified by the prosecution witnesses during the course of test identification parade. However , during the course of trial he took the plea that at the relevant time he was lodged at Central Jail, Lahore. In this regard report was requisitioned from the Superintendent, Central Jail, Lahore, which was placed on I record as Exh.DA/1.
According to report dated 31.03.2014, Abdul Razzaq alias Ranjhi, appellant remain ed lodged at Central Jail Lahore from 08.08.2013 and was released on 02.10.2013. This fact straightway hits the authenticity of the prosecution version.
15. Another important aspect of the case is that according to prosecution version deceased along with Allah Ditta (PW-2) was riding on a motorcycle at the relevant time when the assailants had intercepted them. However , neither in the crime report the details of the motorcycle were mentioned nor during the course of investigation the same surfaced on record. So much so it was also not produced during the course of trial. This fact also creates flaw in the prosecution version.
16. As far as medical evidence in this case is concerned, as none of the appellants before us was assigned any specific role, therefore, the same is of not of much importance.
17. The recovery of pistols (P-4 toP-7) brought on record as Exh.PF , Exh.PG, Exh.PH and Exh.PJ is of no legal consequence as the same already stood recovered in another case FIR No.485/2013, offence under Sections 399, 402, P .P.C. Even otherwise report of Punjab Forensic Science Agency (Exh.PZ) is of working order .
18. From the above stated facts and circumstances, it is abundant clear that in this case the prosecution version is burdened/loaded with major discrepancies, which create serious doubts in its authenticity . The prosecution could not adduce any cogent evidence to establish link of the appellants with the occurrence. Moreover , the prosecution has absolutely failed to bring on record any convincing material to establish that it were the appellants who had committed the occurrence. It is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v. The State" (1995 SCMR 1345 ) "Riaz Masih alias Mithoo v. The State"
(1995 SCMR 1730 ) and "Muhammad Akram v. The State" (2009 SCMR 230). In the case of "Tariq Pervez v. The State" (1995 SCMR 1345 ), the august Supreme Court of Pakistan has held as under:- "---Art.4---Benefit of doubt, grant of---For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".
Moreover , it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 28.02.2017, Criminal Appeal No.244-J/2017 filed by the appellants is Accepted in toto, as a consequence whereof, they are ordered to be acquitted of the charge in case FIR No.400/2013, dated 30.09.2013, offence under Sections 302, 396, 397, P.P.C., registered with Police Station City Phool Nagar . They are directed to be released forthwith, if not required in any other case.
19. Murder Reference No.323/2017 is answered in negative . Death sentence is not confirmed .