MUHAMMAD AMJAD RAFIQ, J:- Muhammad Ammar Shafi, Mateen Bilal and Muhammad Burhan, accused/appellants faced trial before learned Additional Sessions Judge, Lahore in case FIR No.311, dated 14.06.2018 under sections 302/34 PPC (offence under Sections 337-F(i)/420/468 and 471 PPC were added during investigation) registered at Police Station Millat Park, Lahore and on conclusion of trial vide judgment dated 24.04.2024 accused/appellants were convicted under section 316 PPC read with Section 34 PPC and sentenced to diyat of Rs.19,35,594/-, to be paid by all the accused/appellants jointly and in lump-sum to the legal heirs of Rashid Ali, deceased and simple imprisonment for five years each. However, neither charge under Sections 337-F(i)/420/468/471 PPC was framed against the appellants nor any conviction was handed down by the learned trial Court for the said offences. Criminal Appeal No.26878 of 2024 has been filed by accused/appellants against their above conviction and sentence, whereas, Criminal Revision No.32182 of 2024 has been brought by the complainant seeking enhancement of sentence of accused/ appellants; both these matters are being decided by this single judgment.
Pending trial, an application filed by Mateen Bilal, appellant No.2 for declaring him "juvenile offender" was allowed, however, his prayer for holding separate trial was declined which was pursuant to section 12(2) of Juvenile Justice System Act, 2018.
2. As per complaint (Ex.PB) & FIR (Ex.PA) Wajid Hussain complainant (PW-3) was working at Ghousia Milk Shop, Nadeem Shaheed Road, Samanabad. On 14.06.2018 in wee hours of morning at about 05:45 a.m., his brother, namely Rashid Ali son of Shah Muhammad caste Gujjar resident of Bastami Road was coming from his residence towards Ghousia Milk Shop, when unknown accused persons sitting in an ambush at Shahab Chowk suddenly attacked his brother Rashid Ali and raised lalkara that today he would not be spared. Rashid Ali by running arrived in front of shop and called the complainant to rescue him from the accused persons. Complainant (PW-3) and his nephew, Zahid Maqbool (PW-4) came out from the shop. The said accused persons started beating Rashid Ali; they tried to save him but he became unconscious and fell down on the ground. In the meanwhile, Ahmad Khan son of Abdullah resident of Sabzi Mandi, Lahore (given up PW) also arrived at the spot. On seeing brother of the deceased as unconscious and fallen on the ground, accused persons fled away from the spot on motorcycle. It was claimed that accused persons could be identified if come across again. They shifted Rashid Ali to nearby Hospital Samanabad through Rescue Service 1122 where doctor verified his death.
3. Matter was reported to the police by the complainant through written application on arrival of Wafa Ali T/SI PW-9 at Govt. Hospital Samanabad, Lahore Thereafter, Ghulam Ali, Sub-Inspector (PW-12) investigating officer reached said Hospital on the same day, examined the dead body of Rashid Ali, deceased, prepared injury statement (Exh.PN) and inquest report (Exh.PO). He also drafted application for post mortem examination (Exh.PP) and sent the same to dead house for autopsy, prepared rough site plan of the place of occurrence (Exh.PR), recorded statements of witnesses u/s 161 Cr.P.C., inspected CCTV video, got it secured in a CD (P-1) from the office of Safe City Project vide memo (Exh.PE), recorded supplementary statement of the complainant. On 09.10.2018 Ashiq Hussain SI (PW-13) arrested the accused/ appellants, produced them before Judicial Magistrate for physical remand. On 12.10.2018 accused/appellant Ammar Shafi led to the recovery of motorcycle Honda CD-70 bearing registration No. LEY-8922 (P-4) along with two number plates bearing registration No. LEK/1624/17 (P-3/1-2). After completion of investigation, he submitted report under Section 173 Cr.P.C, the accused were charge sheeted to which they pleaded not guilty, whereupon, prosecution produced, as many as, fourteen PWs including eye witnesses, namely, Wajid Hussain complainant (PW-3) and Zahid Maqbool (PW-4) & one witness was recorded as CW-1. After close of prosecution evidence, the accused/appellant were examined under Section 342 Cr.P.C. and while responding to a question that why this case is against them and why PWs deposed against them? have stated as under: "The instant case was registered against unknown persons but the police urged and investigate the complainant (sic), just to show their efficiency, to involve me and my co-accused in this case by nominating us through his supplementary statement which he did just on direction of police.
We have no concern with the instant occurrence. Police officials and the complainant nominated us while presuming us as the accused persons just to complete untraced cases. Said facts coupled with the snaps and CD presented by prosecution also prove that the occurrence was not committed by us. The witnesses of the case were managed by the concerned police officer to complete the file of untraced case."
The accused/appellants did not appear as their own witness in terms of Section 340(2) Cr.P.C., however, produced documents (Mark-A to Mark-D) in their evidence and the trial ended in the terms as detailed above.
4. Heard. Record perused.
5. The complaint through which crime was reported does not bear any time of reporting and it was also not taken care of by the police because Wafa Ali T/SI did not mention the time of receiving such complaint. Place of receiving complaint was also disputed in this case. Wafa Ali T/SI PW-9 claimed receiving of complaint at Government Hospital Samanabad, whereas accompanying constable Muhammad Amin PW-14 deposed receiving of such complaint at first roundabout of Samanabad. Such facts created a shadow of doubt on prosecution case from the very inception which in turn doubts presence of witnesses at the time of alleged occurrence, particularly when the dead body was received in the mortuary after three hours at 8:45 a.m. but the police papers were given to the doctor with a further delay of more than four hours at 1:00 p.m. Yet neither the name of complainant PW-3 nor of Zahid Maqbool, PW-4 is mentioned in inquest report or the postmortem report. Therefore, transportation of deceased to the hospital by the PWs through Rescue Service 1122 became an answered situation. PW-12 investigating officer also conceded that he did not record the statement of any member of Rescue Service 1122 about this fact. He further conceded that no CDRs of the witnesses were obtained by him in order to verify their presence at the place of occurrence at the relevant time. Thus, apparently it was an unseen occurrence.
6. In a criminal case, first and foremost question of utmost importance is the identity of the assailants/accused involved in the commission of the occurrence. While dealing with the case of unknown accused, care and caution must be taken in ensuring that an unknown accused is correctly identified and there must be very bleak chances of any misidentification of the culprit, who is being identified in the process either through test identification parade as held in a case reported as 'Mian Sohail Ahmed Vs State' (2019 SCMR 956), or through any other means, but surprisingly in this case even no identification parade was opted to be conducted rather the identification was rested on supplementary statement and pictures/CD obtained from the office of Safe City Project.
7. Ocular account was furnished by Wajid Hussain complainant (PW-3) and Zahid Maqbool (PW-4).
It is in the evidence that Zahid Maqbool (PW-4) was resident of Gulabpura Gujranwala Cantt, whereas, the occurrence took place at Samanabad, Lahore about 100 kilometers away from his house. In his statement before the Court, he has failed to advance any reason of his presence at the place of occurrence in the wee hours of morning, as such he is a chance witness and his testimony cannot be relied upon.
While lodging the FIR, Wajid Hussain complainant (PW-3) has not mentioned the features of the unknown accused persons who had allegedly committed the occurrence though he claimed that the accused could be identified on seeing again. However, while submitting his application before the police in the form of his supplementary version (Exh.PF), the complainant stated that he was informed by the police about the presence of the accused persons on 05.09.2018 before learned Addl. Sessions Judge and when the complainant party reached, accused persons escaped from there. In the aforementioned statement, the complainant not only improved his version by stating himself to be the injured of occurrence but also admitted the identification of the accused persons on the information of the police. Relevant part of his statement recorded in (Exh.PF) is hereby reproduced for ready reference:- In the aforementioned version which was submitted by the complainant after about three months of the occurrence, the complainant has not only made dishonest improvement regarding his injury but the said statement was also self-contradictory because the complainant himself stated that on seeing the complainant party the accused/appellants fled away from the spot however, on second call of the Court they appeared before the Court and the complainant party identified them. It is not appealable to a prudent mind that had the accused fled away from the spot on seeing the complainant party then they would have re-appeared in order to make them fully identified by the complainant party and to create evidence against them. In support of acclaimed version, neither the prosecution opted to produce copy of bail application of the accused/appellants nor the order sheet of the Court to show attendance of accused/appellants and the complainant on 05.09.2018. Under the circumstances, it is apparent that complainant had neither seen the accused/appellants in the Court nor at the place of occurrence; therefore, his testimony is under serious clouds of doubt which cannot be relied upon.
8. It is further noteworthy that the alleged eye witnesses manifested unnatural conduct at the place of occurrence. According to the prosecution case, the complainant party was comprising of four persons including the deceased, whereas, the appellants allegedly three in numbers, were not armed with any sort of weapon and the aforementioned eye witnesses, being close relatives of Rashid Ali (deceased), did not dare to capture any of the accused persons nor made serious efforts to save the deceased during the occurrence. They stood like silent spectators and gave free hand to the accused persons to inflict fist blows to their kith and kin and thereafter, to flee away from the spot. I am therefore, of the view that conduct of the eye witnesses, who were closely related to Rashid Ali (deceased) was highly unnatural; therefore, their presence at the spot is doubtful and their evidence is not worthy of reliance. Reference in this context may be made to the cases of "LIAQUAT ALI Vs. THE STATE" (2008 SMCR 95), "PATHAN Vs. THE STATE" (2015 SCMR 315) & "ZAFAR Vs. THE STATE and others" (2018 SCMR 326).
9. Another piece of evidence produced by the prosecution before the Court in respect of identification of the accused/appellants was in the form of footage allegedly contained in a CD (P- 1) and photographs P2/1-22 retrieved from CCTVs Installed by Punjab Safe City Authority, Lahore.
Complainant talked about handing over of CD & Photographs by the Expert/Incharge of Safe City Project to investigating officer but PW-12 Ghulam Ali SI/IO deposed about handing over of CD (P-1) only. No certificate of an expert was available nor he or any other witness appeared in the dock to depose about making of video or preparation of photographs from above CCTV footage. PW-12 investigating officer conceded that he did not submit application to SP investigation Iqbal town Lahore seeking permission to see CCTV footage at the office of Safe City Project. He also did not tender in evidence the copy of application made by him before said Incharge nor he recorded his statement. It was claimed by him that though he examined the private CCTV as well which were installed at the place of occurrence, yet did not record the statement of any person in this respect nor took into possession the DVR etc. Thus, it remained a missing fact that who prepared the CD (P- 1) & photographs P2/1-22. It is now well settled that photographs can be used as evidence yet it is essential to prove its source. Judgment approved for reporting Crl. Appeal No. 812-22 "ABDUL BASIT VS STATE ETC." (2024 LHC 4466) is referred in this respect.
10. PW-12 once again went to the office of Safe City Project on 21.06.2018 where he again saw the CCTV footages from where it revealed that motorcycle having registration number LEK-17/1624 was visible in such footage. Such motorcycle with original number was registered in the name of Muhammad Arshad s/o Muhammad Anwar who when associated into investigation could not pass any information in respect of use of motorcycle in the occurrence except promise to produce his son Haziq for further information. On the same day Haziq PW-7 appeared before him and after viewing the photographs stated that persons present in photographs are his friends, i.e., the accused/appellants. Prosecution has also produced Muhammad Aleem Butt PW-6, employer of Ammar Shafi, appellant who claimed his identification through photographs P2/1-22 but did not state the date in his deposition before the Court that as and when he identified him. Such in-direct identification was of no use for the prosecution when photographs were not proved to be genuine.
Muhammad Arshad did not enter into the dock nor his son Haziq PW-7 uttered a single word that how such motorcycle had gone into the custody of accused/appellants. Using of fake number plates on motorcycle were also not proved during the trial because accused appellants were not convicted under said charges.
11. Coming back to video evidence contained in CD (P-1), it is noteworthy that no certificate of expert was tendered in evidence nor an expert appeared in the witness box to verify the sanctity/ genuineness of the aforementioned video. It was also incumbent to get a photogrammetry test of accused/appellants from PFSA in order to provide evidence that they are the person visible in video retrieved from CCTV footage. Moreover, neither the Court has examined such CD while playing it in the Court nor it was shown to any witness during his statement who could have identified the assailants in the video. PW-12 investigating officer conceded to this effect in following words; "Video contained in CD is not being played at the moment in the court room"
Thus, trial Court has not met the requirement of Article 71 & 139 of Qanun-e-Shahadat Order, 1984 because CCTV footage can be used either as the documentary evidence or the real evidence.
When it is being used as documentary evidence it must be shown to the witness while recording his statement and when it is used as real evidence then court must inspect it with some observations and mere marking it as "P" does not fulfill the requirement. Thus, prosecution has failed to prove the contents of CD in accordance with the principles of evidence. Reliance in this respect is placed on case reported as "NUMAN alias NOMI and others Versus The STATE" (2023 PCr.LJ 1394) & a case approved for reporting, Crl. Appeal No.592- 23"FAKHAR IQBAL SHAH VS STATE ETC." (2024 LHC 4364).
12. In the instant case CD was obtained from the office of Punjab Safe City project which is being operated under Punjab Safe City Authority Act 2016 and it maintains entirely a separate regime to make admissible the data retrieved from CCTVs installed by the Authority. Let's see what it says.
Punjab Safe City Authority was established for the purposes of construction, development and maintenance of a city-wide integrated command, control and communications (IC3) system in the major cities of the Punjab in order to ensure safety and security of the people, and for other purposes. The powers and functions assigned to the Authority under section 4 (2) (g) & (k) of Punjab Safe City Authority Act 2016 (PSCA, 2016) include, to establish and maintain an effective oversight mechanism, and, to perform such other related functions as the Government may assign. Section 14(2) of PSCA, 2016 identifies an employee of such authority as an expert of following category;
(2) An employee of the Authority working with information technology related matters shall be deemed to be an expert within the meaning of Article 59 of the Qanun-e-Shahadat Order, 1984 (X of 1984), and shall be deemed to have been appointed under section 510 of the Code of Criminal Procedure, 1898 (V of 1898).
Section 19 of PSCA, 2016 requires that subject to the Act and the rules, the Authority may, by notification in the official Gazette, frame regulations for giving effect to the provisions of the Act.
Thus, Punjab Safe Cities Authority Electronic Data Regulations 2016 were framed by Notification No. 6027/PSCA/2016 which were published through Gazette Notification No. 178/2016 dated 2nd December, 2016. According to which "Electronic Data" means any probative data or information in form of video/audio/picture, stored or transmitted in electronic format or on electronic media duly collected, recorded, generated or extracted through the ancillary facilities/equipment installed under the Act. Such data is analysed in "Electronic Data Analysis Cell", which means a room/cabin/office space at IC3 dedicated and equipped for the investigation officers/law enforcement agencies to view/analyse/examine the information/video/audio/ picture for investigation/inquiry or for any lawful purpose.
For obtaining of any such data a request is made on "Electronic Data Request Form" which means a document for formal requisition of electronic data stored in the main data centres of IC3 administered/managed by the authority. Such data is provided with a document known as "Electronic Data Certificate" which means document issued by an authorized officer, certifying the genuineness of the electronic material recorded at IC3 with a detailed report of protocols applied by him for collection/extraction/ submission of evidence and said data is provided in "Electronic Data Storage Device" which means a disc/ USB/ CD/ DVD or any other storage medium, in which the electronic data is stored/transmitted/provided/sent/made available, for Investigation, Inquiry or Trial.
13. Regulation-9 makes such data as an admissible piece of evidence and explains its presentation in proper form before the Court, format of report with protocols, rearrangement of evidence in consultation with prosecutor; understanding of electronic evidence by the Court; clarity and reexamination by Chief operating officer. Here it is for reference;
9. Procedure to present Electronic, Evidence. - (1) The Electronic Data Storage Device shall be produced and transmitted by the Authority to the Investigation Officers, Law Enforcement Agencies, Courts, Tribunals or any other authorized person for investigation, inquiry or trial as an admissible piece of evidence.
(2) The Chief Operating Officer or any other authorized officer of the authority shall issue an Electronic Data Certificate (Annex-B) to verify the genuineness of the Electronic Data and related information.
(3) The duly signed and verified Electronic Data Certificate shall be the formal confirmation from the authority of the genuineness of the data and information contained in the Electronic Data Storage device.
(4) The Electronic Data Certificate shall contain the technical details of the electronic data in the Electronic Data Storage device.
(5) The expert at IC3 centre shall provide full technical assistance to the court or any law enforcement agency in understanding of the forensic or electronic evidence or preparation of copies of the electronic data; if so required.
(6) The investigation officer shall make the evidence presentable before the court in consultation with the prosecutor.
(7) If the prosecutor requires the collection, recording, generation or extraction of any evidence from any equipment or facility in a particular manner, the investigation officer shall refer the matter to the Chief Operating Officer, who shall re-arrange. the evidence in proper form.
(8) If, during any proceeding of Court, Tribunal or any other authorized person finds that opinion of expert is not clear, the matter shall be referred to Chief Operating Officer for clarification, who shall send clarification on the question within 03 days of the receipt of the reference.
(9) If the Court or Tribunal directs the Managing Director or the Chief Operating Officer for re- examination of the expert opinion, the Chief Operating Officer shall constitute a panel for the purpose and present the report within 03 days thereof.
The cumulative effect of above provisions explains that data in the form of video/audio/pictures obtained from IC3 under Punjab Safe City Authority Act 2016 and regulations made thereunder in due course of process shall be deemed genuine and admissible in evidence without sending such video/audio/pictures to Punjab Forensic Science Agency. However, such electronic data shall be read in evidence in conjunction with other explanation like photogrammetry test etc. of accused visible therein. In the instant case prosecution has failed to prove the due process adopted for obtaining the data from Safe City Authority nor Electronic Data Certificate was produced about genuineness of such data. Thus, CD or the pictures, the sole alleged impactful evidence of the prosecution, are not helpful to be read in the evidence.
14. It was claimed that due to beating by accused/appellants, Rashid Ali (deceased) fell on the ground and became unconscious who was shifted to the hospital where the doctor has verified his death. On the other hand, Dr. Rifat Hayat Sukhera (PW-11) while noting the shalwar, qameez and vest of the deceased as not stained with blood or mud observed that there were no marks of bruises or abrasions over his dead body. In his final opinion as mentioned in postmortem report, he wrote as under; "I am unable to comment on the cause of death in this case which may be due to natural course."
Said doctor has not mentioned the time elapsed between injury and death rather kept it under observation (KUO) which is another factor creating doubt about the death of deceased in the circumstance as alleged by the prosecution. Dr. Faisal Shahid (CW-1) who was one of the members of the District Standing Medical Board, stated that DSMB has given its opinion in respect of cause of death as under: - "The cause of death in this case is acute cardiac event that leads to cardiopulmonary arrest and death. (May be due to extreme physical stress)."
During cross examination he admitted some facts as under; "It is correct that there is no device to determine the quantum of stress. Stress means any sort of worry. It is correct that cardiovascular, respiratory, abdominal and endocrinal are the classification of natural death and all the said aspects carry equal importance."
Under the aforementioned circumstances, medical evidence is not supporting the ocular account rather it is in conflict with the same. In such circumstances, conflict in ocular and medical account is damaging for prosecution. Reliance is placed on case reported as "MUHAMMAD IDREES and another Vs. The STATE and others" (2021 SCMR 612). Moreover, medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Reliance can be placed on the cases reported as "Yaqoob Shah v. State" (PLD 1976 SC 53); "Machia v. State" (PLD 1976 SC 695); "Muhammad Iqbal v. Abid Hussain" (1994 SCMR 1928); "Mehmood Ahmad v. State" (1995 SCMR 127); "Muhammad Sharif v. State" (1997 SCMR 866); "Dildar Hussain v. Muhammad Afzaal" (PLD 2004 SC 663); "Iftikhar Hussain v. State" (2004 SCMR 1185); "Sikandar v. State" (2006 SCMR 1786); "Ghulam Murtaza v. Muhammad Akram" (2007 SCMR 1549); "Altaf Hussain v. Fakhar Hussain" (2008 SCMR 1103) and "Hashim Qasim v. State" (2017 SCMR 986).
15. Despite the fact no evidence of any actus reus was available in this case yet learned trial court convicted that accused/appellant for Qatl shibh-i-amd under section 316 of PPC, which is defined in section 315 PPC as under;
315. Qatl shibh-i-amd Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd.
Illustration A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl shibh-i-amd.
Above definition clearly speaks that if the intention is to cause harm to the body or mind by means of "any weapon or an act" which in ordinary course of nature does not cause death, then such offence would be attracted. In the instant case neither, the prosecution could prove any harm to body or to mind of the deceased through any ocular or medical evidence, or through any forensic techniques; so much so no weapon was proved to have been used in the occurrence. Thus, above offence was not committed in any manner and natural death of deceased was converted into a culpable homicide.
16. As the deceased has been shown to be beaten by the accused persons with fists but no marks of injuries were observed by the doctor. Thus, story of prosecution was not only failed on ocular but on medical aspects as well. Therefore, no question of weapon-recovery arises in this case, and as such nothing incriminating was shown recovered.
17. Prosecution has not put forth any motive nor opted to lead any evidence in this respect. Thus, the same was shrouded in mystery.
18. For what has been discussed above, I have no doubt to hold that here in this case the prosecution has miserably failed to establish the charge against the accused/appellants beyond any shadow of doubt. In the cases of "MAQSOOD ALAM and another Versus The STATE and others" (2024 SCMR 156), "ABDUL QADEER Versus The STATE" (2024 SCMR 1146), "MUHAMMAD IMTIAZ BAIG and another Versus The STATE through Prosecutor General, Punjab, Lahore and another" (2024 SCMR 1191), "MUHAMMAD HASSAN and another Versus The STATE and others"
(2024 SCMR 1427), "KHIAL MUHAMMAD Versus The STATE" (2024 SCMR 1490) & "MUHAMMAD IJAZ alias BILLA and another Versus The STATE and others" (2024 SCMR 1507), the Supreme Court of Pakistan has held that for giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit, whereas, in present case numerous doubts have crept into the evidence making whole edifice of prosecution unreliable. Thus, the prosecution has squarely failed to bring home the guilt against the accused/appellants. Consequently, Crl. Appeal No. 26878 of 2024 is allowed, impugned judgment of conviction & sentence is set-aide and the accused/ appellants are acquitted of the charges against them. They be released forthwith if not required to be detained in any other case. The case property, if any, be disposed of in accordance with law, and record of the learned trial Court be sent back immediately.
19. For the above reasons, Crl. Revision No. 32182 of 2024, filed by the complainant is dismissed.