MOHSIN AKHT AR KAYANI, J. Through this criminal appeal, Shahzad Khan/appellant has assailed the judgment of the learned Additional Sessions Judge (West), Islamabad, dated 31.03.2015, whereby the appellant has been convicted in case FIR No.89, dated 12.03.2012, under Section 302, 392, 411/34 PPC, P.S. Sabzi Mandi, Islamabad and sentenced to life imprisonment with fine of Rs.200,000/-, in default whereof, the appellant has to further undergo simple imprisonment for six (06) months. Benefit of Section 382-B Cr.P.C. has been extended to the accused.
2. Brief facts as referred in the aforesaid FIR (Exh.PC), lodged on the compl aint submitted by PW-6 Sakhir Ullah/complainant, are that, on 12.03.2012, the complainant' s brother namely Nazeer Ullah, who had been working as Driver with Unique Enterprises for two and a half years, driving an Oil Tanker (TLL-807), was going to district Karak from Rawalpindi, he also joined his brother from Pir Wadai, Mandi More, Rawalpindi in order to reach Sarai Norang, District Lakki Marwat, however when they crossed the Toll Plaza situated at IJP Road, near Sector I-11, Islamabad, at about 9:45 p.m. in the night, his brother Nazeer Ullah decided to pull over the vehicle in order to attend the call of nature in a nearby field. The complainant and PW-5 Tayyab Ullah i.e. conductor of the vehicle remained inside the vehicle. However , in the meanwhile they had heard fire shot sound and when they opened the door of vehicle, the complainant saw his brother Nazeer Ullah calling for help while two persons armed with pistol were fleeing away from the place, who have been spotted in streetlight and described as of medium height and small body wearing Shalwar Qameez. Nazeer Ullah had received a fire-arm injury on his right leg, which went through his thigh and the same resulted into his death on spot. The police on receiv ing such information reached at spot and received complaint Exh.PL from PW-6 Sakhir Ullah/complainant, which was converted into the case FIR No.89/2012 (Exh.PC). PW-14 Asjad Mehmood/S.I. prepared inquest report Exh.PZ, rough site plan Exh.P AB, collected bloodstained earth from spot vide Exh.PE, one empty of .30 bore pistol through recovery memo Exh.PF , along with the oil tanker (TLL 807) vide Exh.PH. He has also taken over the last worn clothes of deceased after the postmortem examination through Exh.P A and prepared the identification memo of deceased Exh.PG. The Investigating Officer also got prepared the scaled site plan through Draftsman vide Exh.PW and has also filed an application for requisitioning of CDR, which was obtained through Exh.PQ. The postmortem report has been given by the Doctor as Exh.PN. After completion of investigation, report under Section 173 Cr.P.C. was submitted in the Court, on the basis of which charge was framed against the appellant, to which the appellant pleaded not guilty and claimed trial. In order to bring home the guilt of appellant, the prosecution has produced 15 PWs and the learned trial Court pursuant to recording of prosecution evidence, recorded the statement of appellant under Section 342 Cr.P.C. and passed the impugned judgment, whereby the appellant has been sentenced to life imprisonment with fine of Rs.200,000/-, in default whereof, the appellant has to further undergo simple imprisonment for six (06) months. Hence, the instant criminal appeal.
3. Learned counsel for appellant contended that the learned trial Court has failed to noticed that on same set of evidence co-accused persons have been acquitted while the appellant has been convicted and sentenced vide the impugned judgment, which is a patently illegal in the eyes of law; that the appellant was neither nominated in FIR, nor any specific role has been attributed to him, even nothing has been recovered from the possession of appellant, but the learned trial Court without deeper appreciation of evidence passed the impugned judgment in haste; that the occurrence is unseen one and there are major contradictions in the statements recorded by the prosecution witnesses; that the identification parade was not conducted in accordance with law because the police had shown the video footage and pictures of appellant to the prosecution witnesses before the identification parade proceedings; that the learned trial Court has failed to appreciate that nothing incriminating was recovered from the appellant, but even then the appellant has been convicted and sentenced vide the impugned judgment in violation of settled principles of law, therefore, the same is liable to be set-aside and appellant may be acquitted of the charge.
4. Conversely , learned State Counsel as well as learned counsel for respondent No.2/complainant opposed the instant appeal and supported the impugned judgment of the learned trial Court by contending that the prosecution has successfully proved the case against the appellant and the learned trial Court has rightly sentenced the appellant; that the appellant has led to recovery of bloodstained currency notes snatched from the deceased after the commission of offence; that the appellant has correctly been identified during the identification parade proceedings in presence of Magistrate and the learned trial Court has rightly passed the impugned judgment, which is liable to be upheld.
5. Arguments heard, record perused.
6. Perusal of record reveals that the prose cution in order to prove the case against the appellant has produced PW- 7 Muhammad Farrukh Kamal/MLO, Deputy Director , PIMS Hospital, who conducted postmortem examination of Nazeer Ullah/deceased and referred the following facts: "External appearance.
Middle aged man, height 5'x8" wearing dark blue colour shalwar qamiz, hairs mustaches black and white, not shaved, eyes closed, mouth semi open. Following injuries were noted on the body .
(i) Entry wound 1.5x1 C.M. circular averted margins, bloodstained 21 c.m. from right interiors superiors, iliac spine front of right thigh.
(ii) Exit wound 1x1 c.m. irregular averted margin and bloodstained 18 C.M. from popliteal fossae back of right thigh.
Internal Examination.
Right femoral vessels and muscles of right thigh were ruptured and damaged. All other organs were intact.
Opinion.
In my opinion, deceased died due to fire-arm injury which caused ruptured and damaged right femoral vessels, bleeding shock and death. All injuries were anti mortem in nature and sufficient to cause death in ordinary course of nature.
Variable time between injury and death few minutes to half-02 hours approxim ately. Time between death and postmortem 1 1 to 13 hours.
7. During the course of cross-examination, PW-7 Dr. Muhammad Farrukh Kamal has acknowledged the following facts: a) The dead body was brought to hospital on 12.03.2015 by police official namely Asjad/S.I. and Muhammad Rashid/constable. b) Dead body was brought to emergency of hospital and entry ticket was prepared. c) In the entry ticket name of father of deceased was not mentioned. d) There was no mark of blackening or burning on the entry wound that is why I did not mention the mark of burning and blackening in the postmortem report. e) It is correct that fire-arm injury on thigh/leg does not always cause death of the victim. f) There were corresponding holes of bullet on the Shalwar of deceased/victim.
8. PW-14 Asjad Mehmood/Inspector/I.O. while appearing in the Court stated that on 09.04.2012, he associated one Amir son of Sher Zaman in the investigation, who nominated three (03) accused persons namely Sameer alias Sunny , Imran Shahzad and Shahzad Khan (present appellant). The appellant was apprehended on 12.04.2012 from Mandi More, Sector I-11/4, Islamabad, who led to recovery of bloodstained currency notes amounting to Rs.3,030/-. On 13.04.2012, the appellant was sent to judicial custody for identification parade, whereby he was identified in presence of PW-13 Syed Hussain Bahadur , Magistrate, who submitted the identification parade report Exh.PX (1-4) and contended that the appellant was correctly identified by PW-5 Tayyab Ullah and PW-6 Sakhir Ullah/complainant. However , during the course of cross examination, the said Magistrate acknowledged that the witnesses did not attribute specific role to the appellant at the time of commissi on of offence while making the identification of appellant. The said Magistrate also acknowledged that the witnesses appeared in the identification parade stated that they had not alighted from the truck at the time of occurrence while PW-6 Sakhir Ullah/complainant stated that he had not seen any of the accused persons firing at the deceased, whereas PW-5 Tayyab Ullah also confirmed that he did not see the appellant firing upon the deceased.
9. The PW-6 Sakhir Ullah/complainant while appearing before the Court narrated the story referred in his complaint Exh.PL as he stated that on 12.03.2012, when his brother Nazeer Ullah was going back to District Karak after loading of oil in the Oil Tanker , he also joined him from Mandi More, Pir Wadai, Rawalpindi and when they crossed the Toll Plaza, situated at IJP Road, the deceased decided to pull over the vehic le in order to ease himself in a nearby field. After a while, PW-6 Sakhir Ullah/complainant and PW-5 Tayyab Ullah heard a fire shot sound, whereafter they saw two persons in front of their vehicle carrying pistols in their hands as the headlights of the vehicle were turned on. PW-6 Sakhir Ullah/complainant stated that he and PW-5 Tayyab Ullah tried to stop the vehicles on road for getting help for the injured person (deceased), but no one stopped, whereafter PW-6 Sakhir Ullah/complainant asked PW-5 Tayyab Ullah to call help from the Toll Plaza. The security guards stationed at the Toll Plaza on knowing about the incident informed the local police, however due to excess of bleeding the deceased succumbed to injuries on spot. It was disclosed that the accused persons while fleeing away took away mobile phone set, SIM (0301-2848190), cash amounting to Rs.3,030/-, CNIC and Service Card. PW-6 Sakhir Ullah/complainant also stated that when the police arrived at spot they searched the dead body of deceased and took into possession cash amounting to Rs.3,030/-, driving licence, copy of registration book of vehicle as well as some visiting cards vide recovery memo Exh.PD. He also confirmed the preparation of rough site plan by the Investigating Of ficer and recovery of bloodstained earth as well as fire-arm empties from spot.
10. During the course of cross-examination, PW -6 Sakhir Ullah/complainant has acknowledged the following facts: i) It is correct that factum of appearance of two persons duly armed in front of our vehicle is not mentioned in my application submitted to the local police. ii) It is correct that the factum of head lights being ON at the time of appearance of two culprits of the our vehicle is not mentioned in my application submitted to the local police. iii) It is correct that I have not mentioned in my application submitted to the local police about our alighting from the vehicle after hearing the firing shot. iv) It is correct that I have not mentioned in my submitted to the local police that we tried to seek help from the vehicles passing by on the road but could not get the help. v) It is not mentioned in my application submitted to the local police that I sent conductor Tayyab Ullah near by toll plaza for seeking help, who in turn, informed the local police about the occurrence. vi) It is correct that I have not seen any of the accused facing trial while making fire shot at the deceased. it is correct that I have not mentioned in my application submitted to the local police about the make, model, colour or number of the mobile phone set of the deceased. Similarly , I have not mentioned about the missing of ID card, cash amount and duty card in my application submitted to the local police. vii) I did not chase the culprits from the spot of occurrence as we got busy in rescue of my deceased then injured brother . We did not raise hue and cry at the spot of occurrence to attract help. IJP road is a busy road. It is correct that there is Abadi surroundings of the place of occurrence. viii) The witness explained that the said place was a little deeper from the road. The distance between the oil tanker and the place where my brother went for easing himself would be about 10/12 feet. ix) I have not seen any of the accused facing trial while taking away or snatching the mobile phone set, CNIC and cash amount from the deceased. x) I saw accused Shahzad Khan at the spot of occurrence for the first time and at Adiala Jail for the second time at the time of identification parade. xi) When the deceased was injured, he kept on changing positions but after expiry , he laid straight facing upwards.
We did not provide any first aid to the deceased nor tried to provide water etc to him when he was injured. xii) The dead body was shifted to the hospital by the local police in ambulance accompanied by me. xiii) It is correct that I have not mentioned any identification mark of any of the accused in my application submitted to the local police however , general description has been mentioned. It is correct that I have not mentioned ages of the accused in my application submitted to the local police. xiv) The local police was informed by staff of the toll plaza. I do not remembe r as to when PW Tayyab Ullah informed the staff of toll plaza about the occurrence. I do not remember the time of arrival of the ambulance at the spot of occurrence however , the same arrived at the spot along with the local police. xv) I had informed the hospital officials about the father 's name of deceased, but they did not mention the same. I do not know that the hospital officials entered the time of arrival of the deceased at the hospital to be 10:54 p.m. It is correct that the hospital officials had made the entries on our arrival at the hospital at my instance and my information. xvi) I identified only Shahzad Khan accused during identification parade held at Adiala Jail. It is correct that I never identified accused Imran Shahzad in any identification parade. xvii) It is correct that at the time of occurrence, street lights were on. It is correct that I have not mentioned the name of accused Sameer in my application submitted to the local police. Similarly , I have not nominated accused Sameer in any of my supplementary statement. According to my application, I charged only persons for the murder of my deceased person.
11. The other eyewitness namely PW-5 Tayyab Ullah has narrated the same story as recorded by PW-6 Sakhir Ullah/complainant. However , during the course of cross-examination, he acknowledged the following facts. i) It is correct that I have not recorded in my statement U/S 161 Cr.P.C. that I saw the culprits in the head lights of the vehicle fact to face while attempting to attack the vehicle. ii) It is correct that I did not record in my statement U/S 161 Cr .P.C. that we opened the door to confront the culprits. iii) It is correct that I have not recorded in my statement U/S 161 Cr.P.C. that after seeing the accused in injured condition, we tried to get help from the passing by vehicles but no one stopped to help us. iv) It is also correct that I have not recorded in my statement U/S 161 Cr.P.C. that after failing to get help from the passing by vehicles, we approached to the toll paza for help. v) It is also correct that I have not stated in my statement U/S 161 Cr.P.C. that at the toll plaza we met the Incharge who came with us to the spot of occurrence where we found the deceased in expired condition. vi) I have not recorded in my statement U/S 161 Cr.P.C. that the said person inform ed the local police and the local police brought ambulance to the spot. vii) I have not recorded in my statement U/S 161 that the local police boarded the dead body of the deceased in to the ambulance and shifted to the hospital. viii) It is correct that I have not recorded in my statement U/S 161 Cr.P.C. that the police recovered Rs.1030/- an empty and one Chaadar from the spot of occurrence. ix) I have also not recorded U/S 161 Cr.P.C. that we arranged another driver and brought the oil tanker to the police station. x) It is correct that I did not see the accused while taking away Rs.7030/- mobile phone of the deceased, CNIC and other card from the deceased. The witness explained that the said articles were missing from the person of the deceased that is why I have made the statement that those were taken away by the culprits. xi) I heard single fire shot at the time of occurrence. it is correct that I did not see any of the accused at the time of making fire shot at the deceased. xii) The witness explained that just after the occurrence, 02 accused armed with pistols were seen by us. We did not raise hue and cry and did not chase the accused as they immediately fled away in the darkness. We did not try to administer any sort of first aid to the deceased then injured at the spot. Immediately after the occurrence, nobody attracted the spot from the surroundings however people gathered at the spot after arrival of the local police. xiii) It is correct that I had not identified accused Imran Shahzad in any identification parade. xiv) It is correct that I did not know the name of accused Imran Shahzad when I saw him at the spot of occurrence and that is why I have not mentioned in my statement recorded U/S 161 Cr .P.C. recorded to the local police.
12. PW-1 Rashid Mehmood/HC, who remained associated with PW-14 Asjad Mehmood/I.O. during the entire investigation, has acknowledged during the course of cross-examination that the last worn clothes of deceased handed over by the doctor were bloodstained and were not torn, except where the fire shot was hit to the deceased. However , on the request of learned counsel for accused/appellant, the Court directed the Naib Court to open up the shopping bag containing the last worn clothes of deceased and after desealing the same, following factors have been observed: "The last worn clothes have been kept accordingly . Naib Court opened the said bag wherein, it was found that there was no bullet mark on the right thigh of shalwar/trouser P1."
13. It has further been observed from the record that PW-14 Asjad Mehmood/S.I. arrested one Amir in this case on 09.04.2012, who disclosed three (03) accused persons namely Sameer alias Sunn y, Imran Shahzad and Shahzad Khan (appellant). The appellant was arrested on 12.04.2012, who led to recovery of bloodstained currency notes amounting to Rs.3,030/- vide Exh.PS, though the Investigating Officer has not transmitted the recovered currency notes to FSL for the purpose of verification. On 13.04.2012, the appellant has been identified through identification parade in presence of Magistrate. Similarly, Imran Shahzad/co-accused was arrested on 06.11.2012, who disclosed about the mobile phone and ID card of the deceased, which was got recovered on his pointation on 09.11.2012 through Exh.P AF together with .30 bore pistol along with bullets on 12.1 1.2012.
14. This Court has also gone through the identification parade report together with testimony recorded thereto and observed that the appellant was identified by both the witnesses, but none had attributed any role to the appellant, except the statement on behalf of PW-5 Tayyab Ullah and PW-6 Sakhir Ullah/complainant that appellant fled away from the scene when they heard the fire shot sound. Surprisingly , the belongings of the deceased together with the weapon of offence (.30 bore pistol) were recovered from Imran Shahzad/co-accused, who was acquitted by the learned trial Court along with a third person nominated in this case.
15. I have also gone through the statement recorded by the appellant under Section 342 Cr.P.C. and observed that the appellant denied all the allegations, even disputed the identification parade Exh.PX (1-4) on the ground that the witnesses had seen him in the police station as his photographs and movie were made by the police during remand proceedings and the same were shown to the prosecution witnesses.
16. While considering the entire proposi tion, I am surprised to see the conduct of star witnesses namely PW-6 Sakhir Ullah/complainant i.e. real brother of deceased and PW-5 Tayyab Ullah/conductor , who have not given any first aid to deceased despite the fact that they were available on spot. Likewise, the oil tanker was also available to them but they had not drove the injured (deceased) to a nearby hospital, rather waited till arrival of police, during which period the deceased died on spot due to excessive bleeding.
17. On the other hand, PW-6 Sakhir Ullah/complainant acknowledged before the Court that he had informed about the deceased' s father name in hospital, but the hospital staff did not mention the same in their record. This aspect, if seen in the light of the record, establishes that PW-6 Sakhir Ullah/complainant was not present at the scene and at the time of occurrence.
18. Similarly , when this Court has gone through the testimony of PW-1 Rashid Mehmood/HC, during whose testimony the learned trial Court has ordered for desealing of the shopping bag containing the last worn clothes of deceased, whereafter it was observed that no bullet mark was present on right side of shalwar/trouser P1. The entire testimony recorded by PW-7 Dr. Muhammad Farrukh Kamal/MLO seems to be contrary to the medical record. These state of affairs create a doubt in the prosecution case as if the trouser is without the corresponding hole, the entire scenario has to be seen differently and it could safely be assum ed that the deceased was not wearing Shalwar at the time of alleged incident and the manner and mode in which the story was narrated is not correct.
19. The recovery of pistol was alleged upon Imran Shahzad/acquitted accused person, but said pistol was never produced in the trial Court, which fact has duly been recorded by the learned trial Court, even no Forensic Science Laboratory report was available on record, regarding which the learned trial Court had given nine opportunities for production of evidence (the FSL report) as observed order sheets dated 19.12.2015, 26.02.2015, 05.03.2015, 07.03.2015, 12.03.2015 and 17.03.2015, whereafter the learned trial Court has closed down the evidence and proceeded in the matter . However , when the record has been requisitioned by this Court, an additional file has also been transmitted by the learned trial Court comprising of the report of Punjab Forensic Science Agency , dated 26.05.2015, which clearly spells out that the "identity of the cartridge could not be made due to lack of sufficient suitable corresponding microscopic marks". This aspect has to be considered by this Court under the judicial notice and it seems that the prosecution has intentionally withheld the said report of PFSA as the Investigating Officer was well aware that the report did not match the recovered pistol (weapon of offence) and the same weakens the case of the prosecution.
However , this conduct of the prosecuting agency is not tolerable and an inquiry is required to be held against such officials, who have withheld the evidence knowing that it damages the prosecution case. The Investigating Officer is under lawful duty to bring all the eviden ce on record being indifferent to prosecution case or accused person.
Hence, if FSL report is available with the Court, the learned trial Court could not convict the appellant, who even has not used the pistol as alleged by the prosecution in this case. Similarly , the appellant was introduced by one Amir/co-accused as observed in the statement recorded by PW-14 Asjad Mehm ood/I.O., but the said Amir/co- accused was neither produced in this case as PW, nor cited as accused person by the Investigating Officer, therefore, such silence on the part of Investigating Officer creates a doubt and adverse inference can be drawn in terms of Article 129(g) of the Qanun-e-Shahadat Order , 1984, even otherwise, if the said Amir is considered to be an accused person, then the statement of accused against a co-accused is not considered valid under the law and is not admissible. The currency notes allegedly recovered on the pointation of appellant were also not verified from any report of FSL and same have no evidentiary value, nor the same connect the appellant with the case as no witness has stated about the amount which was allegedly snatched.
20. The place of recovery of the currency notes is a deserted place and is accessible to everyone, therefore, the recovery itself is not appreciable, even such belated recovery has no worth. Reliance is placed upon 2017 SCMR 564 (Arshad Khan vs. The State), PLD 2017 SC 681 (Asad Khan vs. The State) and 2016 SCMR 1605 (Muhammad Saleem vs. Shabbir Ahmad).
21. The postmortem examination of the deceased was conducted with delay , regarding which no justified reason has been brought on record by the Investigating Of ficer or the prosecution. The eyewitnesses are interested ones and their presence on spot is shacky and doubtful, even the eyewitnesses had not personally seen the crime, rather saw two armed persons fleeing away from the place of occurrence. On the other hand, the conduct of eyewitnesses at the scene of occurrence itself was abnormal as they had not helped out the deceased in providing any first aid. In such proposition, the apex Court has recorded the conduct of PWs with adverse concept and disbelieved them. Reliance is placed upon 2018 SCMR 326 (Zafar vs. The State).
22. It is trite law that in absence of FSL report, the recovery of weapon of offence could not be considered as corroborative piece of evidence and the same could not be made basis of convictio n. Reliance is placed upon 2018 SCMR 772 (Muhammad Mansha vs. The State) and 2019 SCMR 872 (Sajjan Solangi vs. The State).
23. The identification parade conducted in presence of PW-13 Syed Hussain Bahadur/Magistrate is silent qua the role of appellant, therefore, the conviction could not be made on such report as also held in cases reported as 2018 SCMR 577 (Kamal Din alias Kamala vs. The State) and 2017 SCMR 1546 (Hakeem vs. The State) . The apex Court has elaborated the principles i.e. the estimator variables in which the eyewitnesses, due to stress and pressure of the occurrence, could not justify different elements of visualizing the accused person, especially in this case, when the accused persons had been seen in the light of headlights of Oil Tanker , but this aspect was not justified during the course of investigation. This principle has been highlighted by the apex Court in cases reported as 2019 SCMR 956 (Mian Sohail Ahmed vs. The State) and PLD 2019 SC 488 (Kanwar Anwaar Ali, in the matter of Criminal Miscellaneous Application No.183/2019).
24. I have also gone through the bloodstained currency notes allegedly recovered from the appellant, but such currency notes, had it been sent to the FSL for the purpose of matching of blood found on currency notes and last worn clothes of deceased, the result would have been considered as indestructible evidence in such type of case, though the same is not available and omission to do such practice reveals the dishonest conduct on the part of prosecution. Reliance is placed upon 2015 SCMR 1142 (Mst. Sughra Begum vs. Qaiser Pervez) . Even otherwise, both the eyewitnesses had not personally seen the appellant while snatching the mobile phone or CNIC of the deceased, even the medical evidence suggests that cause of death was due to excessive bleeding, which means that deceased was not given first aid at the relevant time and he kept on bleeding after receiving a fire-arm injury , therefore, it is simply a case where the deceased was not carefully handled by the prosecution witnesses at spot, if they were present, otherwise their presence is doubtful.
25. In view of the discrepancies observed in the testimonies of the eyewitnesses and non-availability of weapon of offence, including the FSL report, which are adverse to the prosecution case, hence this Court comes to the irresistible conclusion that incurable defects and doubt emerges on record, even two of the co-accused persons have been acquitted on similar evidence, but the appellant has been convicted on same set of evidence, which is contradictory view on the part of learned trial Court as the learned trial Court has failed to distinguish the role of appellant viz-a-viz other acquitted co-accused persons in the impugned judgment, therefore, the instant criminal appeal is hereby ALLOWED , the impugned judgment dated 01.03.2015 is SET-ASIDE and the appellant is ACQUITTED of the charge. The appellant is on bail, hence his bail bonds stand discharged.