State, Bagga, Manjhi vs Bagga, Manjhi, The State

ALI ZIA BAJWA, J. Through this single judgment, we intend to decide Crl. Appeal No.441-J/2018, titled 'Bagga vs. The State', Crl. Appeal No.442-J/2018, titled 'Manjhi vs. The State', and Capital Sentence Reference No.03/2018, titled 'The State vs. Bagga and another' as these are arising out of one and the same judgment of the learned trial court.

2. Bagga son of Younas, caste Kosh, resident of Mouza Daulat Abad, District Rahim Yar Khan (Crl. Appeal No.441-J/2018) and Manjhi son of Younas, caste Kosh, resident of Mouza Daulat Abad, Tehsil Sadiqabad, District Rahim Yar Khan (Crl. Appeal No.442-J/2018), appellants were involved in case FIR No.18/2010, dated 20.04.2010, offences under Sections 302, 324, 353, 337-F(i), 337-F(iii), 337-F(iv), 337 F(vi), 337-L(2), 427, 148, 149, PPC, read with Sections 7(a), 7(c), 7(h) and 21(I) of Anti-Terrorism Act, 1997, registered with Police Station Machka, District Rahim Yar Khan. They were tried by learned Judge Anti-Terrorism Court, Bahawalpur, under the afore-mentioned offences. Learned trial court seized with the matter vide judgment dated 23.05.2018 convicted and sentenced the appellants in the following terms:- Under Section 302(b)/149, PPC, sentenced to death as Taz'ir with a direction to pay Rs.5,00,000/- as compensation to legal heirs of the 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 324/149, PPC, sentenced to undergo R.I. for ten years with fine of Rs.50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 148/149, PPC, sentenced to undergo R.I. for three years with fine of Rs.50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 353/149, PPC, sentenced to undergo R.I. for two years with fine of Rs.50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 427/149, PPC, sentenced to undergo R.I. for two years with fine of Rs.50,000/- and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs.50,000/- to injured Mohammad Khalid 4809/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs.50,000/- to injured Pervaiz Iqbal/C, and till payment of Daman, the convicts were directed to be kept in jail.

Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs.50,000/- to injured Munawar Hussain/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs.50,000/- to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs.50,000/- to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(i)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs.50,000/- to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iii)/149, PPC, sentenced to undergo R.I. for three years and to pay Daman of Rs.1,00,000/- to injured Pervaiz Iqbal/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iii)/149, PPC, sentenced to undergo R.I. for three years and to pay Daman of Rs.1,00,000/- to injured Munawar Hussain/C, and till payment of Daman, the convicts were directed to remain in jail. Under Section 337-F(iii)/149, PPC, sentenced to undergo R.I. for three years and to pay Daman of Rs.1,00,000/- to injured Munawar Hussain/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iii)/149, PPC, sentenced to undergo R.I. for three years and to pay Daman of Rs.1,00,000/- to injured Riffat Kiyani/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(iv)/149, PPC, sentenced to undergo R.I. for five years and to pay Daman of Rs.1,00,000/- to injured Niaz Ali ASI and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-F(vi)/149, PPC, sentenced to undergo R.I. for seven years and to pay Daman of Rs.2,00,000/- to injured Niaz Ali ASI and till payment of Daman, the convicts were directed to be kept in jail. Under Section 337-L(2)/149, PPC, sentenced to undergo R.I. for one year and to pay Daman of Rs.50,000/- to injured Khalid Mehmood/C, and till payment of Daman, the convicts were directed to be kept in jail. Under Section 7(a) of the Anti-Terrorism Act, 1997 read with Section 149, PPC, sentenced to death as Ta'zir with a direction to pay fine of Rs.2,00,000/-. Under Section 7(c) of the Anti-Terrorism Act, 1997 read with Section 149, PPC, sentenced to undergo R.I. for ten years with fine of Rs.50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Under Section 7(h) of the Anti-Terrorism Act, 1997 read with Section 149, PPC, sentenced to undergo R.I. for five years with fine of Rs.50,000/-, and in case of default in payment thereof, to further undergo S.I. for six months. Sentences of imprisonment awarded to the appellants were directed to run concurrently and to that extent they were extended benefit of Section 382-B of Cr.P.C.

Being aggrieved of the judgment passed by the learned trial court, the appellants have impugned their conviction and sentence through their respective appeals while learned trial court forwarded Capital Sentence Reference No.3/2018 as envisaged under Section 374, Cr.P.C. for confirmation or otherwise of sentences of death awarded to the convicts.

3. The prosecution case structured upon the story as narrated in the FIR (Exh.PA) lodged on the complaint (Exh.PA/1) of Muhammad Yousaf, Inspector/SHO (PW-9), is that on 20.04.2010 at 06:00 p.m. an information was passed on regarding presence of proclaimed offenders namely Bagga, Manjhi, Khawaja, Mitha, Khatoor, Zahoor, Adam, Jamal, Haasil, Godha, Malawa and Qutab required in case FIR No.11/2002, offences under Sections 302, 395, 397, 353, 324, 365, PPC; FIR No.22/2005, offences under Sections 302, 365, 436, 148, 149, PPC; FIR No.23/2005, offences under Sections 302, 148, 149, PPC; F.I.R. No.24/2005, offences under Sections 302, 324, 148, 149, PPC, and F.I.R. No.35/2009, offences under Sections 302, 324, 148, 149, 201, PPC, at their residence. In pursuance of which two raiding teams, one headed by Tabasum Hussain Virk, Inspector and other headed by ASP/SDPO Circle Sadiqabad were constituted and raid was conducted at the house of accused Bagga son of Younas where accused persons namely Bagga, Manjhi, Khawaja, Godha, Mitha, Khatoor, Zahoor, Adam, Jamal, Haasil, Malawa, Qutab, Eidan, Tarat Janan and Bada while armed with Kalashnikov G-3 and Anti-Aircraft Gun along with 20/22 unknown persons were present. On seeing the police party, they while taking positions in the bunkers encircled the police officials and made indiscriminate firing on the APC (armored personnel carrier) due to which Tabbasum Hussain Virk, Inspector was done to death while Niaz Ali, S.I., Amjad Ali 4890/C, Munawar Hussain 603/C, Riffat Kiyani 4673/C and Khalid Mehmood 5544/C along with others sustained injuries. Accused persons also made firing with Anti-Aircraft Gun on other police vehicle due to which Pervaiz Iqbal 601/C and Nazir Ahmad 4609/C sustained injuries. The police vehicles were also damaged as a result of firing. Police party made firing in self-defense due to which accused persons scattered. Out of accused: Janan, Bada and Eidan succumbed to the injuries caused by the firing of their co-accused. The dead bodies of accused Janan and Bada drowned in Sindh River whereas dead body of accused Eidan along with his Kalashnikov was taken into possession. The injured police officials were evacuated and shifted to Sheikh Zayed Hospital, Rahim Yar Khan through ambulance for their medical treatment.

Muhammad Yousaf, Inspector (PW-9) drafted the complaint (Exh.PA/1) and sent the same to police station for registration of FIR through Asad Mahmood 1465/C.

4. After registration of the case investigation was entrusted to Mukhtar Ahmed, S.I. (PW-5), who visited the place of occurrence and prepared rough site plan (Exh.PT). On spot inspection, Investigating Officer secured blood-stained soil underneath the dead body of Eiden deceased vide recovery memo Exh.PU. He took into possession one Kalashnikov (P-4) lying besides the dead body of deceased Eiden along with ten live bullets (P5/1-10) through recovery memo Exh.PV. He also secured blood from the APC vehicle through recovery memo Exh.PX. Thereafter, investigating officer prepared injury statement (Exh.PH) and inquest report (Exh.PJ) of Eiden deceased and handed over his dead body to Noor Muhammad 1264/C for autopsy. He went to the Sheikh Zayed Hospital where he recorded statements of the injured PWs namely Niaz Ali, SI, Pervaiz Iqbal, Khalid Mahmood, Munawar Hussain, Amjad Ali, Mohammad Khalid and Riffat Kiyani constables and prepared their injury statements (Exh.PR/1, Exh.PL/1, Exh.PS/1, Exh.PN/1, Exh.PP/1, Exh.PQ/1 and Exh.PM/1), respectively.

Investigating Officer went to the mortuary where he prepared injury statement and inquest report of Tabassum Hussain, Inspector (Exh.PE and (Exh.PF respectively).

After post-mortem examination, Medical Officer handed over the Investigating Officer last worn clothes of deceased Tabassum Hussain i.e. Qameez (P-6), belt (P-7), vest (P-8), pent (P-9) and underwear (P-10), which he took into possession through recovery memo Exh.PY. After post-mortem examination of deceased accused Eiden, Noor Ahmad 1264/C (PW-6), produced last worn clothes i.e. shalwar (P-11) along with a sealed jar before the investigating officer, which he took into possession through recovery memo Exh.PZ. On 21.04.2010, after obtaining MLCs of injured PWs the same were made part of the police file. On 22.04.2010, he handed over the dead body of accused Eiden to his legal heirs. On 15.08.2010, he recorded supplementary statement of complainant. On 29.09.2010 he obtained non-bailable warrants of arrest of appellants and thereafter proclamations. After completing codal requirements, he submitted the report under section 512 Cr.P.C. On 20.04.2010, Aamer Hayat, Halqa Patwari (PW-2) on the direction of investigating officer and pointing out of PWs prepared scaled site plan (Exh.PB & Exh.PB/1), which was made part of the police file.

On 03.05.2016, investigation of this case was entrusted to Jam Munir Hussain, SI (PW-13). On 21.02.2017, he along with other police officials conducted raid at Mouza Daulat Abad, arrested the appellants namely Bagga and Manjhi and recovered Kalashnikovs from their possession, for which separate criminal cases under relevant offence were registered against them. During the course of interrogation on 21.04.2017, in pursuance of disclosure, appellant Bagga led to the recovery of Anti-Aircraft Gun (P-1) which was taken into possession by the investigating officer through recovery memo Exh.PC. Thereafter Manjhi appellant led to the recovery of stand of Anti-Aircraft Gun (P-2) along with 20 live rounds (P-3/1-20) which were taken into possession through recovery memo Exh.PD. Investigating Officer prepared rough site plans of the places of recoveries (Exh.PC/1 and Exh.PD/1 respectively) and also registered separate FIRs regarding the incriminating articles recovered on the pointing out of appellants. Having found the accused persons involved in this case, report under Section 173 Cr.P.C. was prepared against them.

5. After submission of the report under Section 173 Cr.P.C, learned trial court formally indicted the appellants vide order dated 23.06.2017, to which they pleaded not guilty and claimed trial. Prosecution, in order to establish its case against the appellants, produced as many as thirteen (13) prosecution witnesses.

6. Ocular account in this case was furnished through Muhammad Yousaf, Inspector (PW-9)/complainant, Noor Ahmad 1264/C (PW-6), Niaz Ali, S.I. (PW-7), Munawar Hussain 603/C (PW-11) and Pervaiz Iqbal 601/C (PW- 12). Aamer Hayat, Patwari (PW-2) prepared scaled site plan of the place of occurrence. Investigation in this case was conducted by Mukhtar Ahmad, SI (PW-5) and Jam Munir Hussain, SI (PW-13).

7. On 20.04.2010, post-mortem examination over the dead body of deceased Tabbasam Hussain, Inspector was conducted by the Medical Board of Sheikh Zayed Hospital, Rahim Yar Khan and following injuries were observed on his person:- Injury No.1 A lacerated wound with inverted margins (fire arm entry wound) measuring 1cm x 1cm on right side of neck 04 cm above right clavical.

Injury No.2-A A fire-arm entry wound measuring lcm x 1cm on lateral aspect of right arm just below deltoid area.

Injury No.2-B A fire arm entry wound measuring lcm x 1cm just 2 cm below injury No.2-A (on right arm).

Injury No.3-A A fire-arm exit wound measuring 1.5 cm x 1.5 cm on medial aspect of right arm.

Injury No.3-B A fire arm exit wound measuring 2 cm x 1.5 cm medial aspect of right arm 2 cm below injury No. 3-A.

Injury No.4 A fire-arm entry wound measuring 1 cm x 1 cm on back of right arm near right shoulder joint and was situated 7.5 cm from injury No. 2-A.

Injury No.5 A fire-arm entry wound measuring 1 cm x 1 cm below right ear lobule. The ear lobule was also lacerated.

Injury No.6 A fire-arm entry wound measuring on the mastoid area of head 1 cm x 0.5 cm, 2 cm behind right ear.

On deep dissection, injury No.2-A & B communicate injury No.3-A & B. On dissection of injury No.1 the bullet after piercing above right clavical damaged trachea and right carotid sheath and deformed bullet recovered from left side of base of neck on front of left side of chest and was handed over to police. On dissection of injury No.4 the track of bullets was from injury No.4 to right side of chest fracturing 4th ribs on right side of front of chest under line, right lung found healthy.

After conducting post-mortem examination, following opinion was rendered by the Medical Board: - "After conducting thorough autopsy, the Board was of the unanimous opinion that the cause of death was individually injury No.1 and all injuries collectively leading to severe hemorrhage hypovalemic shock and chocking and death. All injuries were anti-mortem in nature and caused by fire-arm. Probable time that elapsed between injury and death was within few minutes and between death and postmortem was within 4 to 8 hours approximately."

Statements of rest of the prosecution witnesses are formal in nature.

8. After completion of prosecution evidence, statements of the appellants under Section 342, Cr.P.C. were recorded by the learned trial court. They professed their innocence and pleaded false implication in the case.

They did not opt to appear as their own witnesses on oath as provided under Section 340(2), Cr.P.C, however they opted to adduce evidence in their defense. Upon completion of trial, the learned trial court found case against the appellants to have been proved to the hilt, thus, convicted and sentenced them as mentioned and detailed above. It is also pertinent to mention here that vide the same judgment, Khatoor and Nooru, co- accused were acquitted of the charges.

9. Arguments heard, record perused.

10. Perusal of record available on file reflects that this unfortunate occurrence is result of a raid conducted by the police party in pursuance of receipt of information regarding presence of proclaimed offenders namely Bagga, Manjhi, Khawaja, Mitha, Khatoor, Zahoor, Adam, Jamal, Haasil, Godha, Malawa and Qutab involved in five different criminal cases. The accused persons while using most sophisticated weapons like Kalashnikovs and Anti-Aircraft Gun encircled the police officials and made indiscriminate firing on them resulting into injuries to Tabussam Hussain Virk, Inspector, Niaz Ali, S.I. (PW-7), Munawar Hussain 603/C (PW-11), Pervaiz Iqbal 601/C (PW-12), Khalid Mehmood 5544/C (not produced), Amjad Ali 4890/C (not produced), Muhammad Khalid 4809/C (not produced), Nazir Ahmed 4609/C (not produced) and Riffat Kiyani 4673/C (not produced).

Out of them Tabussam Hussain Virk, Inspector subsequently succumbed to the injuries. Three persons from the accused side were also murdered at the hands of their accomplices during cross-firing. However, this Court has to evaluate from the facts and circumstances whether evidence adduced by the prosecution during the course of trial is sufficient to maintain conviction of the appellants.

11. In this case, prosecution version hinges upon ocular account, medical evidence and recoveries allegedly effected on the pointing out of the appellants.

OCULAR ACCOUNT

12. As far as ocular account in this case is concerned, the same has been advanced through the statements of Muhammad Yousaf, Inspector/complainant (PW-9), Noor Ahmed 1264/C (PW-6), Niaz Ali, S.I. (PW-7), Munawar Hussain 603/C (PW-11) and Pervaiz Iqbal 601/C (PW12). According to prosecution version except the complainant and PW-6 rest of the prosecution witnesses received fire-arm injuries during the occurrence and usually statement of an injured witness particularly a police official, who receives injuries during the performance of his official duty, is given extra weightage. However, while going through the record we have observed that eye-witnesses, Noor Ahmed 1264/C (PW.6), Niaz Ali Si (PW.7), Munawar Hussain 603/C (PW-11) and Pervaiz Iqbal 601/C (PW-12), while making their statements during the course of trial ascribed generalized role to the appellants, as well as, co-accused namely Khatoor and Nooru (since acquitted). Learned trial court while rendering the judgment by disbelieving their deposition to the extent of Khatoor and Nooru acquitted them of the charges and no appeal against their acquittal was filed. It is an established proposition of law laid down in catena of decisions^[1] of apex Court that where same set of witnesses was disbelieved qua number of accused persons implicated in the case, it cannot be made foundation of conviction of rest of the accused persons in absence of strong and independent corroboration, which, we are afraid, is conspicuously missing in this case. Reliance can be placed on Altaf Hussain^[2] wherein it was pronounced that: "It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration."

This view was further reiterated in LIAQAT ALI^[3] as infra: "When three co-accused attributed effective firing at the deceased and the injured victims had been acquitted in this case it was incumbent upon the courts below to look for independent corroboration to the ocular account before convicting and sentencing the present appellants."

13. Adverting to argument that injured witnesses are natural witnesses, having no axe to grind with appellants, should be believed, it goes without saying that testimony of an injured cannot be taken as a gospel truth. It is an established proposition of criminal law that merely injuries on the person of a witness cannot stamp him a truthful and reliable witness. It was observed in Qaiser Mahmood^[4] by the prestigious Supreme Court of Pakistan that: "direct evidence furnished even by the injured witnesses, apparently with no axe to grind, can be dismissed, if otherwise found lacking the ring of truth"

It was held in Nazir Ahmed^[5] while addressing the question of credibility of injured witness by the prestigious Supreme Court of Pakistan as infra: "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth."

In Amin Ali^[6] apex Court of the Country reiterated the view in the following terms: "Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses."

In the case of Mehmood Hayat^[7] it has been laid down as under: "merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony."

In the case of Mehmood Ahmed^[8] it was pronounced as under: "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."

Further reliance can be placed on Said Ahmad v. Zammured Hussain (1981 SCMR 795), Muhammad Pervez and others v. The State (2007 SCMR 670), Muhammad Hayat v. State (1996 SCMR 1411), and Mehmood Ahmad v. State (1995 SCMR 127).

14. Watchful analysis of statement of complainant Muhammad Yousaf, Inspector/(PW-9) reflects that during the course of trial, while deposing on oath, he assigned specific role of making firing with Anti-Aircraft Gun, to both the appellants, which caused damage to APC and injuries to Tabassum Hussain Virk Inspector, Niaz Ali SI and other police officials present in that APC. He was duly confronted by the defense side with his complaint Exh.PA/1, where general role of indiscriminate firing was attributed to all the accused nominated therein including Khatoor and Nooru (since acquitted).

15. It is settled that where a witness makes dishonest improvements in his statement before the court, his testimony is not worthy of reliance in absence of strong and independent corroboration, which is noticeably lacking in the instant case. Aforementioned witness, who made dishonest improvements in his statement while deposing on oath, is not worthy of reliance/credence. It was held in Naveed Asghar^[9] after discussing a plethora of judgments^[10] of Constitutional courts as infra: "Deliberate and dishonest improvements made by a witness in his statement to strengthen the prosecution case cast serious doubts on his veracity, and makes him untrustworthy and unreliable. It is quite unsafe to rely on testimony of such witness, even on facts deposed by him other than those improvements unless it receives corroboration from some other independent piece of reliable evidence."

Same view was taken in Muhammad Mansha^[11] wherein the Honorable Supreme Court of Pakistan held as under: - "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses."

Dishonest improvements made by the complainant Muhammad Yousaf inspector (PW.9) cannot be overlooked, which have rendered his testimony extremely untrustworthy. After exhaustive analysis of catena of judgments^[12]rendered by the apex Court of this Country, we have no hesitation to hold that deliberate and dishonest improvements while deposing at trial cast serious doubts and suspicion qua the veracity of ocular account.

16. Furthermore, if contents of the crime report are evaluated, it reflects that when the police party conducted raid at the residence of the accused, they took positions in the bunkers. Though learned trial court wrongly mentioned word 'trenches' but bare reading of the crime report reflects that accused made firing from 'bunkers'. Bunker is a protective embankment covered from top and sides. It does not appeal to reason that the accused persons making firing from it were seen by the police officials. In the light of aforementioned discussion, we are of the considered view that entire ocular account supporting the prosecution case is full of doubts, unreliable and not worthy of reliance especially in a case carrying capital punishment and conviction cannot be based upon it.

17. There is no cavil to this proposition that the prosecution is at liberty to produce evidence of its own choice and it is quality and not the quantity of evidence which matters.^[13] In the instant case we have observed with much concern that besides deceased and PW-6, PW-7, PW-11 and PW 12, Khalid Mehmood 5544/C, Amjad Ali 4890/C, Muhammad Khalid 4809/C, Riffat Kiyani 4673/C and Nazir Ahmed 4609/C, also sustained firearm injuries during the occurrence as such they were also natural witnesses, however, astonishingly their evidence was withheld by the prosecution. In this backdrop, prosecution case is hit by Article 129(g) of Qanun-e- Shahadat Order, 1984 as highlighted in number of judgments of the superior courts of the country.^[14] It was pronounced by the prestigious Supreme Court of Pakistan in Lal Khan supra that: "The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."

18. It is not out of place to observe that entire pre-trial proceedings including fair and impartial investigation are vital fragment of right to fair trial as guaranteed under article 10-A of the Constitution of Pakistan, 1973.^[15] The 'right to fair trial' under Article 10-A encompasses the entire criminal proceedings from the time when the crime is reported to investigating agency and investigation is started till the conclusion of trial. We are of the considered view that protection of right to fair trial as envisaged under Article 10-A of the Constitution is available at pre-trial proceedings including investigation. It was held in Babubhai^[16] by the Supreme Court of India while elaborating the connection of fair investigation with right to fair trial as infra: "Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law."

In Imbrioscia v. Switzerland [1993]^[17] European Court of Human Rights observed that the principle of fair trial contained in article 6 of the European Convention on Human Rights (ECHR) is not limited to the trial, but is equally applicable to pre-trial proceedings and trial is only the culmination. Relevant extract is reproduced hereinafter: The Court cannot accept the Government's first submission without qualification. Certainly, the primary purpose of Article 6 (art. 6) as far as criminal matters are concerned is to ensure a fair trial by a "tribunal" competent to determine "any criminal charge", but it does not follow that the Article (art. 6) has no application to pre-trial proceedings.

Judicious and transparent investigation is cornerstone of a fair trial, therefore, dishonest and biased investigation is violative of constitutionally ensured right to fair trial. Case in hand is a case of police encounter, involving serious allegation, in which number of police official sustained injuries, one police inspector lost his life and three accused from the appellant side were murdered allegedly by the firing of their co-accused. It was preferable that a fair, independent and impartial investigation of the alleged occurrence, through an investigation agency other than the police, should have been conducted to meet the ends of justice and unearth the actualities. In the case of police encounter, the standard of proof should have been far higher as compared to any other criminal case as in such cases state is directly aggrieved, therefore, bound to prove its case beyond every possible reasonable doubt. In Zeeshan^[18] Supreme Court of Pakistan had occasion to consider the issue of investigation in cases of police encounters and it was pronounced by the apex Court as under: "The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the afterthoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case."

Same view was reiterated by the Courts in number of judgments^[19] emphasizing that investigation in case of police encounter should be conducted by the independent and disinterested investigation agency and not by the aggrieved party i.e. police. It would be advantageous to refer section 19 Anti-terrorism Act, 1997. Relevant portion is reproduced hereafter:-

19. Procedure and Powers of [Anti-Terrorism Court].

(1) An investigating officer under this Act shall be an officer or Police Officer not below the rank of Inspector or equivalent or, if the Government deems necessary Joint Investigation Team to be constituted by the Government shall be headed by an Investigating Officer of Police not below the rank of Superintendent of Police, (BS-18) and other officers of JIT may include equivalent rank from Intelligence Agencies, Armed Forces and Civil Armed Forces. The JIT shall comprise five members and for the meeting purposes the quorum shall consists of three members. "The Joint Investigation Team may co-opt any additional person from any Federal or Provincial institution or department as it deems appropriate for investigation."

Aforementioned self-explanatory provision of law empowers the Government to constitute Joint Investigating Team (JIT). Keeping in view the dictum laid down in Zeeshan supra and adhered to in subsequent judgments, it would be desirable to get the cases of police encounter investigated by JIT comprising of majority of senior officer of other investigating agencies to ensure fair and impartial investigation. In the present case investigation was conducted by the concerned police officials. In cases of police encounter, entrusting the investigation to the police would not lead to any fair outcome and would lack credibility.

MEDICAL EVIDENCE

19. Next comes the medical evidence, which has been advanced through the statement of Dr. Masood Jahangir (PW-4), who being member of Standing Medical Board conducted postmortem examination over the dead body of Tabussam Hussain Virk, Inspector and also medically examined Pervaiz Iqbal 601/C, Riffat Kiyani 467/C, Munawar Hussain 603/C, Amjad Ali 4890/C, Khalid Mehmood 5544/C, Mohammad Khalid 4809/C and Niaz Ali, S.I. As in the crime report no specific role was ascribed to any of the appellants qua inflicting injuries on the person of deceased as well as injured, therefore, medical evidence is of least importance. Supreme Court of Pakistan observed in Liaqat Ali supra that: "the medical evidence was of no avail to the extent of the present appellants because admittedly no specific injury had been attributed to them and, thus, no independent confirmation was available vis-a-vis the allegation levelled against them regarding effectively firing at the deceased and the injured victims."

Moreover, it is well settled proposition of law by now that medical evidence neither itself proves involvement of an accused in the commission of an offence nor establishes his culpability. It is confirmatory in nature and may confirm the ocular evidence with regard to the seat of injury, nature of injury, kind of weapon used in the occurrence and duration between injury and death etc., but such evidence cannot connect the accused with the commission of crime. Where ocular evidence is not worthy of reliance, medical evidence is of no avail to prosecution to prove the guilt of accused.^[20] RECOVERIES

20. As far as recoveries effected on the pointing out of the appellants during the course of investigation viz. Anti-Aircraft Gun (P-1) from Bagga appellant, which was taken into possession vide recovery memo Exh.PC and stand of Anti-Aircraft Gun (P-2) along with twenty live rounds (P-3/1-20) from Manjhi appellant, which were taken into possession vide recovery memo Exh.PD are concerned, admittedly there is no matching report of the Punjab Forensic Science Agency in this regard available on file. Even otherwise, it is trite law that recovery of weapon of offence is only a corroborative piece of evidence and in absence of substantive and direct evidence it is not sufficient to hold an accused guilty of the offence charged. When substantive evidence produced by the prosecution fails to connect an accused person with the commission of crime or is disbelieved then corroborative evidence would be of no help to the prosecution as the corroborative evidence cannot by itself prove the guilt of an accused. It was observed in Naveed Asghar supra by the Supreme Court of Pakistan as infra: "Even otherwise, recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged.

When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case."

Same view was taken by the Supreme Court of Pakistan in Ishtiaq Masih v. The State - 2010 SCMR 1039, Noor Muhammad v. State 2010 SCMR 97 & Muhammad Afzal alias Abdullah and others v. The State and others - 2009 SCMR 436

21. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to bring on record any convincing and reliable evidence/material to establish nexus of the appellants with the occurrence. Court should not hesitate to acquit an accused due to heinousness of the offence alleged against him. Criminal cases are decided on the basis of evidence and evidence alone^[21]. It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right. Respectful reliance can be placed on dictum of august Supreme Court of Pakistan in Najaf Ali Shah^[22] wherein it was held as infra: "It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner."

Same principle was also echoed in Ahmed Omar Sheikh^[23] in the following terms: - "Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation."

22. In consequence of the aforementioned discussion, Crl. Appeal No.441-J/2018, titled 'Bagga vs. The State' and Crl. Appeal No.442-J/2018, titled 'Manjhi vs. The State' are ALLOWED, judgment dated 23.05.2018 passed by the learned trial court is SET ASIDE and appellants are acquitted of the charges while extending them benefit of doubt. The appellants are directed to be released forthwith if not required in any other case.

23. Capital Sentence Reference No.3/2018 forwarded by the learned trial court is answered in the NEGATIVE.

Death sentences awarded to the convicts are NOT CONFIRMED.

^[1]Mst. YASMEEN v. JAVED and another - 2020 SCMR 505, MUHAMMAD AMIN v. The STATE and another - 2019 SCMR 2057, MUHAMMAD YASIN and another v. The STATE through P.G. Punjab and others - 2020 SCMR 1237 & ZAFAR v. The STATE and others - 2018 SCMR 326 ^[2]Altaf Hussain vs. State - 2019 SCMR 274 ^[3]LIAQAT ALI and others v. The STATE and others-2021 SCMR 455 ^[4]QAISAR MEHMOOD and another v. The STATE - 2021 SCMR 662 ^[5]NAZIR AHMAD v. MUHAMMAD IQBAL and another - 2011 SCMR 527 ^[6]AMIN ALI and another v. THE STATE - 2011 SCMR 323 ^[7]Muhammad Hayat v. State - 1996 SCMR 1411)

^[8]Mehmood Ahmad v. State - 1995 SCMR 127 ^[9]NAVEED ASGHAR v. The STATE - PLD 2021 SC 600 ^[10]Hadi Bakhsh v. State PLD 1963 (W. P.) Karachi 805; Shahzada v. Hamidullah 1968 PCr.LJ 176; Amir Zaman v. Mahboob 1985 SCMR 685; Saeed Muhammad v. State 1993 SCMR 550; Khalid Javed v. State 2003 SCMR 1419; Akhtar Ali v. State 2008 SCMR 6; Muhammad Rafique v. State 2010 SCMR 385; Muhammad Saleem v.

Muhammad Azan 2011 SCMR 474; Sardar Bibi v. Munir Ahmed 2017 SCMR 344 and 1968 PCr.LJ 176 ref.

^[11]MUHAMMAD MANSHA vs. THE STATE - 2018 SCMR 772 ^[12]Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafiqe Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).

^[13]Niaz-Ud-Din v. The State - 2011 SCMR 725 ^[14]Lal Khan v. The State - 2006 SCMR & The State v. Abdul Khaliq - 1846 & PLD 2011 SC 554 ^[15]TAJ INTERNATIONAL (PVT.) LTD. and others v. FEDERAL BOARD OF REVENUE- 2014 PTD 1807 ^[16]Babubhai v. State of Gujarat and others (2010) 12 Supreme Court Cases 254 ^[17]https://cambodia.ohchr.org/~cambodiaohchr/sites/default/files/echrsource/Imbrioscia%20v.%20Switzerla nd%20%5B24%20Nov%201993%5D%20%5BEN%5D.pdf ^[18]Zeeshan alias Shani v. The State - 2012 SCMR 428 ^[19]SOHAIL alias KASHIF v. The STATE - 2021 YLR Note 134, AYAZ v. The STATE - 2021 MLD 2019, MUHAMMAD AMIR and others v. The STATE - 2020 MLD 1777 and MOHAMMAD HAYAT and 3 others v. The STATE - 2018 P Cr.

L J Note 61 ^[20]Naveed Asghar v. The State (PLD 2021 SC 600), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Aslam v. Sabir Hussain (2009 SCMR 985) and Muhammad Sharif and another v. The State (1997 SCMR 866)