2002 PLP 2130 (YLR)

The skull was found converted into multiple pieces shown in the diagram. Haematoma was present under scalp and brain matter and membranes were congested and brain matter was coming out from the exit wound. The bullet entered from right temporal bone into right temporal lobe and left temporal lobe and exited from left side of parietal bone. All other organs were found healthy and normal. He opined that the cause of death in this case was haemorrhage and shock due to the injury No. 1 caused by fire‑arm weapon and was ante mortem in nature, which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was immediate and between death and post‑mortem was about 12 hours. He testified that Exh. P.A. was correct carbon copy of post mortem report.

8. The statement of Tariq Javed (P.W.11) and Muhammad Asghar Sultan (P.W.12) are to the effect that on the night between 17/18‑1‑2000, they were on their way from Faisalabad to Lahore accompanied by Naeem Khalid (given up P.W.) in a car bearing Registration No.BRD/33333. They were at some distance from Gatt Wala‑Bridge, when they saw the car of Dr. Shamsul Haq Tayyab (deceased) proceeding ahead when all of a sudden at about 12‑15 a.m., the car of Dr. Shamsul Haq struck with a truck, which was parked without lights on the road. After striking with the truck it slided towards right side and went into the. 'Khatans'. They immediately reached near the car of Dr.Shamsul Haq and saw in the headlights of their car three persons coming out of the car of Dr. Shamsul Haq. Tariq Javed stated that he observed the features of those three persons very promptly, while Muhammad Asghar Sultan (P.W.12). stated that he fully saw and identified the culprits. While giving description of the features both stated that one of them was of medium height and other one was thin and smart while the third one was a bit tall. They also identified the accused in Court, when asked by the Court. After the decampment of the accused, they found Dr. Shamsul Haq Tayyab lying on the rear seat of the car in an injured condition with his hands and feat tied with a string. He was alive at that time, therefore, they put him in their own car and rushed towards Allied Hospital, Faisalabad. They noticed that the wrist watch, the golden ring and the mobile telephone set of the deceased were missing. According to him, Dr. Shamsul Haq Tayyab had died before they reached Allied Hospital. Tariq Javed left Allied Hospital for Police Station Khurrianwala and made statement Exh. P.E. Both these witnesses have been subjected to lengthy cross‑examinations. Tariq Javed explained that on 17‑1‑2000 at about 5‑30 p.m., they had come to Faisalabad from Lahore to attend the ceremony of ' Aamin' of the son of Dr. Shamsul Haq (deceased), which started at about 6‑00 p.m., and continued for 3/4 hours and the deceased had also attended the ceremony. They left the house of the deceased at 11‑30 p.m. for Lahore. According to Tariq Javed the car of the deceased when they first saw it was at a distance of 100 meters ahead, which was going at a very high speed, therefore, they could not cross the car. After the accident, he turned his car towards the car of the deceased and stopped at a distance of about eight feet from the car of the deceased and saw the accused coming out of the car from a distance of about eight feet. He firmly stated that the accused did not come towards them and that they ran towards the Southern side He further stated that the faces of the accused were clearly visible and they were carrying some weapons in their hands, which he could not clearly distinguish. He also stated to have witnessed the striking of motorcycle with the truck.

9. Tariq Javed admitted that Muhammad Asghar Sultan (P.W.12) is the husband of her sister and Shabbir Ahmad (P.W.6) is related to Dr. Shamsul Haq (deceased), whereas Arshad Iqbal (P. W.10), Malik Mubashar Ahmad (P.W.9) and that the witnesses, who have been given up by the prosecution, namely Naeem Khalid, Muhammad Ahmad and Sheikh Muhammad Naeem are not related to him. However, they belong to Jamaat‑e‑Ahmadia.

10. Malik Mubashar Ahmad (P.W.9) stated about the extra‑judicial confession made before him by Mahmood Hussain accused alone. According to him, Mahmood Hussain accused, who was known to him for the last 5/7 years, came to him on 12‑5‑2000 in the evening in a perplexed conditions and asked him for obtaining pardon. The accused disclosed that he used to go to the house of Dr. Shamsul Haq (deceased) to repair Dish Antenna and other electric‑goods. He thought that Dr. Shamsul Haq was a rich man. He also wanted to become rich and in order to achieve this object, he associated two relations of his Mohallah and two other persons namely Imran and Nadeem from Sheikhupura. Mahmood Hussain accused further told that he had sent two of his companions to Sheikhupura to wait for them and he himself armed with a pistol accompanied by Babar and Nadeem, who were carrying 'Churries' and a string went to Sahal Hospital and told Dr. Shamsul Haq that the mother of Babar accused was seriously ill and that they wanted him (Dr. Shamsul Haq) to accompany them. Dr. Shamsul Haq accompanied by the accused left his hospital and drove his car towards the Motorway. When they reached near the Boys Hostel at Sargodha Road, Babar Rasheed accused put his pistol on the temple of Dr. Shamsul Haq, who was then made to sit on the rear seat in the middle alongwith Babar and Nadeem accused. His hand and feet were tied. Babar Rasheed and Nadeem accused asked Dr. Shamsul Haq about his wealth. When they reached near the Grid Station Khtirrianwala, the car struck with a truck, which was wrongly parked with no parking lights. The car slided towards the wrong side and fell into the ' Khatanz' . The other accused came out of the car. Babar Rasheed accused feeling that they may be identified, fired at Dr. Shamsul Haq hitting on his right temple and then they ran away towards Nishat Abad. Malik Mubashar Ahmad stated that he promised with the accused that he would try for a compromise and asked Mahmood Hussain to leave. In cross‑examination, he stated that on the following day, he went to Lahore ant oil 16‑5‑2000 at 6-00 p.m., he went to the police station after reading the news of the arrest of Mahmood Hussain accused. He first identified the accused in Police lock‑up and then met Rana Asad‑ur -Rehman, S. H. O., who recorded his statement.

11. The prosecution has also relied upon the evidence of recovery of wrist watch (P.12) recovered from the pocket of Mahmood Hussain accused and the golden ring (P.13) from the possession of Babar Rasheed accused at the time of their arrest on 15‑5‑2002 from the graveyard of Mohallah Nighabanpura. Asad‑ur‑Rehman (P.W.14) and Arshad Iqbal (P.W.10) have deposed about it. The occurrence took place within the area of Police Station Khurrianwala, but on 15‑5‑2000, Asad‑ur‑Rehman, Inspector/ S.H.O., Police Station Sargodha Road, Faisalabad, took up the investigation of the case, which as per his own statement, was entrusted to him by the S.S.P., Faisalabad, on the same day. Asad‑ur‑Rehman was on patrol duty at Akbar Chowk, Gulistan Colony, Faisalabad, when he met Arshad Iqbal and his son Muhammad Ahmad at about 3‑00 p.m. While on patrol duty, he reached the graveyard of Mohallah Nighabanpura. He made his entry through the broken eastern wall of the graveyard alongwith Arshad Iqbal and Muhammad Ahmad (P.Ws.) besides his subordinates. He found five boys sitting under the shade of People tree. When questioned by Asad‑ur‑Rehman, Inspector, all the five became perplexed and could not give satisfactory answers and on search, a wrist watch was recovered from the pocket of Mahmood Hussain accused on which the name of Dr. Shamsul Haq was engraved and a golden ring on the top of which the words "S.H" were written was recovered from the right side pocket of Babar Rasheed. Both these articles were taken into possession vide recovery memo. (Exh. P.K) and (Exp. PL) attested by Arshad Iqbal (P.W.10) and his son Muhammad Ahmad (given up P.W.). Arshad Iqbal (P.W.10) also deposed that on 15‑5‑2000, he joined the investigation of this case alongwith his son Muhammad Ahmad and went to graveyard of Mohallah Nighabanpura alongwith the police party, where all the five accused were found sitting along 'the eastern wall of the graveyard. On personal search of the accused, a wrist watch was recovered from the possession of Mahmood Hussain, while golden ring was recovered from the possession of Babar Rasheed. Both these articles were taken into possession vide recovery memos. (Exh. P.K and Exh.P.L). This witness is a property dealer and resides at Chak No. 120 (Bawa Chak), where he has made his office as property dealer near the school at Adda Bawa Chak, which is‑at a distance of 9 Kilometer from city Faisalabad. During cross examination, it transpired that he also belongs to Jamaat‑e‑Ahmadia and on that day he had gone to meet his partner Muhammad Akbar. He could not tell the number of his bungalow. So, he came to Faisalabad by chance and met Asad‑ur‑Rehman, Inspector, at Akbar Chowk, from where he in the company of the police party went straight to the graveyard.

12. Lastly, the prosecution has relied upon the report (Exh. P.H) relating to the proceedings of the identification test supervised by Muhammad Shakeel, Magistrate 1st Class, Faisalabad, (P.W.8). Asad‑ur‑Rehman, Inspector, (P.W.14) stated that he submitted an application dated 17‑5‑2000 (Exh. P.G.) in order to obtain permission for holding identification parade, which was accepted vide an order dated 20‑5‑2000. Muhammad Shakeel, Magistrate 1st Class, (P.W.8) deposed that he reached District Jail, Faisalabad, at 12‑50 p.m. on 23‑5‑2000 for holding identification parade in the instant case. He directed the Assistant Superintendent Jail, Faisalabad, that 16/ 17 under trials of the same similarity and complexion of the accused be arranged and produced at the venue. The present accused were mixed up with Muhammad Nadeem, Babar Rasheed and Mahmood Hussain, accused, and made to sit down in a semi circle. Naeem Khalid, Muhammad Asghar Sultan and Tariq Javed (P.Ws.) were called one after the other to identify the accused. All the three accused were correctly identified by the witnesses. He affirmed that he had signed every page of the report (Exh. P.H) and given certificate (Exh.P.H/1). He denied the suggestion that before holding identification parade, accused raised their objections as to the fact that they were confined at the police station and the police had shown them to the witnesses and they were also produced by the police in different Courts and in that duration their photographs were taken for showing them to the P.Ws. He admitted that identification parade was held jointly and that it was his first experience of conducting the identification parade. He also admitted that the ratio of the participants was not one to ten and that he had not asked the witnesses about the role of each accused at the time of occurrence.

13. The learned trial Court relying upon the prosecution evidence brought on the record came to the conclusion that the prosecution had established its case against Mahmood Hussain, Babar Rasheed and Muhammad Nadeem accused beyond any reasonable doubt under sections 302(b)/34, 392/34, 365/34, P.P.C. and they were accordingly convicted and awarded the aforesaid sentences.

14. Learned counsel for the appellants While assailing the conviction, inter alia, argued:‑ That the presence of the P.Ws. at the time when the car of Dr. Shamsul Haq (deceased) collided with a truck within the area of Police Station Khurrianwala is not established; That it was a dark and foggy night in the mid January. The visibility was so poor that not only the car of the deceased struck with the said truck but also a motorcycle on the same night with two persons on it and it was not possible for the P. Ws., who had just a glimpse of the accused from a distance of about 28 Karams to see the perpetrators in the headlights of a car and keep their features in memory and identify them after about four months of the alleged occurrence; That the features of the, accused given by the P.Ws. are of general nature and that they were merely picked up by the P.Ws. during the identification parade, which was otherwise not held strictly in accordance with the law and the guidelines laid down by the Superior Courts; That the evidence of extra‑judicial confession has been fabricated after the arrest of the accused as there was no reason for Mahmood Hussain accused to approach Malik Mubashar Ahmad (P.W.9) to seek pardon just three days prior to his arrest from the legal heirs of the deceased, who had absolutely no concern with, the P.W.; That the proceedings showing recovery of wrist watch (P.12) and golden ring (P.12) are fake.

15. The learned counsel for the complainant while supporting the judgment and praying for the dismissal of the appeals contended that the P.Ws. have absolutely no motive to falsely implicate the accused and the recovery of wrist watch and golden ring of the deceased from the possession of the accused strongly corroborates the prosecution case.

16. We have considered the arguments put forth by the learned counsel for the parties with utmost care and caution being conscious of the fact that a person belonging to a very noble profession has been brutally murdered out of sheer greed and passion for money but at the same time, we are also conscious of the onerous duty to ensure that innocent people are not punished on mere conjectures and surmises. The consequences of error in conviction are more harmful to the society than the consequences of error in acquittal. The circumstances under which Dr. Shamsul Haq (deceased) was abducted were and are still a mystery because we feel reluctant to place implicit reliance upon the testimony of Mubashar Ahmad (P.W.9), who tried to show his least concern with the deceased, although, he admittedly belongs to Jamaat‑e‑Ahmadia of which the deceased was an active member. According to him, Mahmood Hussain accused came to his house on 12‑5‑2002 and narrated the entire story, confessed his guilt and sought pardon. It is strange that he remained in active and silent till the arrest of the accused. For him, Dr. Shamsul Haq Tayyab was not an ordinary man. The moment Mahmood Hussain accused made confession before him, he (P.W.9) should have apprehended him or at least he should have informed the family of the deceased or the police. In cross‑examination, lie stated that he was not familiar with the complainant party and that he came to know about them in the Court premises. If he had no concern with the complainant ' party, then what for did he go to the police station on 16‑5‑2000, joined the investigation, identified Mahmood Hussain accused and opted to become a witness by getting his statement recorded under section 161, Cr.P.C. His statement and conduct both do not inspire confidence. Therefore, his testimony cannot be safely relied upon.

17. The presence of Tariq Javed (P.W.11) and Muhammad Asghar Sultan (P.W.12) has also been seriously challenged on behalf of the accused. Both these witnesses, in fact, belong to Bahawalnagar and at the relevant time, they were posted at Lahore. Both these witnesses in their statement before the police had not specified the purpose of their visit to Faisalabad on 17‑1‑2000. Both are educated, therefore, they must have realized that they would be required to explain their presence at the relevant time. Therefore, at the trial, they must have come prepared. Both during cross examination unanimously stated that they had come to Faisalabad to attend the 'Aamin' ceremony of the son of. Dr. Shamsul Haq Tayyab (deceased). According to Tariq Javed, the ceremony started at about 6‑00 p.m. and continued for 3/4 hours, which the deceased also attended and they remained at the house of the deceased and started at 11‑30 p.m. for Lahore. Both these witnesses claim to have removed Dr. Shamsul Haq (deceased) in an injured condition from the place of occurrence to Allied Hospital. Tariq Javed, in his cross‑examination, stated that after making his statement before the police, he accompanied by the Sub‑Inspector after 1‑50 a. m. reached the snot, where he found a motorcycle lying near the truck. Muhammad Asghar Sultan (P. W.12) also deposed that one motorcycle was also present there at that time, but he did not note at what time the motorcycle struck with the truck as they were busy in handling the case of deceased doctor. In this regard, Jahangir Khan, S.I. (P.W.13) admitted in his cross‑examination that he joined one Muhammad Ameer son of Nazar Muhammad, who was the Cleaner of the aforesaid truck, who stated before him that at the time of accident, he was sleeping in his truck and on the alarm of the accident, he woke up and saw the said car at a distance of 20/22 Karams lying in the 'Khatans'. After hearing alarm of the accident, he saw two persons coming out the said car and running away from that place and he did not hear any report of fire‑arm shot and due to fear he ran towards Western away from the truck. He further admitted that Muhammad Aslam son of Peer Muhammad, Caste Rajpute, resident of Katchi Abadi, Jaranwala, driver of Ambulance also joined the investigation of this case and stated that he was driver of Ambulance and on 17‑1‑2000, he alongwith one Fateh Khan was going in the said Ambulance towards Arzoo Mills, Faisalabad, and that at about 12‑20 a.m., when they reached near the Grid Station Khurrianwala, some persons from public and police officials were present there and that they all stopped Ambulance and told him that an accident had taken place and one person was seriously injured was to be taken to the Hospital and that he agreed and that the police officials and other persons from public took out the said injured persons from the said car, which was lying in the 'Khatans' and boarded him in his Ambulance alongwith two other persons whose accident had also taken place with the said truck, while they were riding on the motorcycle and that he took all the three injured persons to the Allied Hospital, Faisalabad, alongwith a Constable, who was saying that one person was still breathing and the others (injured persons) succumbed to the injuries and that thereafter that he came back from Allied Hospital, Faisalabad. It is strange that the statements of Muhammad Ameer son of Nazar Muhammad, Cleaner of the truck, and Muhammad Aslam, driver of the Ambulance, were recorded during the investigation of the case but they have not been examined in Court. A perusal of the case‑diary shows that these persons were examined by the Investigating Officer on the very first day. The presence of the Cleaner of the truck at the relevant time cannot be doubted. If a truck goes out of order on the way, it is never left unattended. Either the driver would stay with the truck to guard or the conductor. It is established from the record that a motorcycle with two persons on it had also struck with the truck on the same night. Even in his complaint (Exh. P.E), Tariq Javed had mentioned that motorcycle bearing Registration No.3346/ FDN had also struck with the said truck, which was driven by two persons. Tariq Javed concealed this fact in his examination‑in‑chief but in cross examination, he had no option but to concede that a motorcycle had also met an accident with the same truck .on the same night. Therefore, the statement of Muhammad Aslam recorded by Jahangir Khan, S.I., in this case to the effect that three injured persons including the one, who was taken out of the car were removed to Allied Hospital by him in his Ambulance also appears to be probable in the circumstances of the case. The presence of these two persons at the relevant time appears to be more natural than the presence of P. W.11 and P.W .12. These witnesses appear to have been introduced after due deliberations. Unfortunately, the time of occurrence recorded in the F.I.R. is not always genuine and in some of the cases F.I.R. is the last document recorded by the police after completing the investigation. This practice has been disapproved by the superior Courts in a large number of cases. It would not be out of place to quote the observation made by Mr. Justice Muhammad Munir Khan, of the Supreme Court of Pakistan in the case of Ata Muhammad and Muhammad Yousaf v. The State (1995 SCMR 599), which is as under:‑ "We know by our experience that time of recording of F.I.R. is not always genuine. The police, after learning about the commission of the crime keeps the space in the daily diary (Roznamcha) and a page in the F.I.R. register blank for incorporating therein the gist of the information, the factum of registration of the case and the detailed report subsequently, in the light of preliminary investigation made by it." In the instant case, the F.I.R. cannot be said to have been lodged promptly. After going through the police file, we are constrained to observe that the first two sheets of the case diary dated 18‑1‑2000 appear to have been changed. The prosecution appears to have deliberately withheld this piece of evidence being in direct conflict with the prosecution story. We are, therefore, of the view that the presence of P.W.11 and P.W.12 at the spot is highly doubtful.

18. P.W.11 and P.W.12 have been confronted with their earlier statements recorded by the police. It can be said safely that they both have made lot of omissions and improvements at the trial. For example, Tariq Javed, while appearing as P. W .11, stated that he saw in the headlights of his car three persons coming out of the car of fire‑arm. He admitted to have stated in Exh.P.E. that all the three unknown persons were armed with fire‑arm, while running from the spot. He admitted to have stated Exh.P.E. that the deceased might have been murdered by some religious fanatics but at trial, he omitted to mention this fact.

19. According to the rough site plan (Exh. P.C) prepared by the Investigating Officer and (Exh. P.D.) prepared by Umar Hayat, Patwari, (P.W.2), Point No.2 indicates the place where the truck bearing Registration No.2460/MR was standing on the left side of the road and point No. 1 indicates the place where the car of Dr. Shamsul Haq feel into the 'Khatans' after having struck with the said truck. Umar Hayat (P.W.2) categorically stated that he took rough notes of the spot inspection on the pointation of the P.Ws. and prepared site plan (Exh. P.D). In cross‑examination, he stated that Point No.3 indicates the presence of the witnesses and the distance between point No. 1 and Point No.3 is 28 Karams. In this situation, it was not possible for the P.Ws. to observe the features of the culprits in, the headlights of their car, especially when the f accused, as per statement of Tariq Javed (P.W.11) ran towards the Southern side and did not come towards them. The P.Ws. could only see the back of the culprits. The P.Ws. in the given situation, could only have a fleeing glimpse of the back of the accused, as such it was not possible for them to identify the accused in the identification parade.

20. The accused are shown to have been, arrested on 15‑5‑2000 after 3‑00 p.m. and were kept in the police lock‑up of Police Station Sargodha Road. They were produced before a Magistrate on 16‑5‑2000 and allowed to remain in police custody for one more day. The record shows that they were sent to judicial lock-up on 17‑5‑2000. It is in evidence that Malik Mubashar. Ahmad (P. W.9) identified Mahmood Hussain accused at 6/7 p.m. in the police lock‑up. If one P.W. can be allowed by the police to identify the accused, why not the others who were really concerned and more anxious to see the culprits. Admittedly, all the three accused were put to identification test jointly without observing the ratio approved by the Courts. The police has shown to have arrested the accused on 15‑5‑2000, whereas the identification parade was held on 23‑5‑2002. The delay in holding identification parade has not been satisfactorily explained by the prosecution. The Supreme Court of Pakistan disapproved the delay of seven days in the case of Lal Pasand v. The State (PLD 1981 SC 142). According to the rules laid down by the Superior Courts, the accused should have been intermingled with the strangers in the proportion approved by the Courts in Karim and others v. The State (PLD 1961 Karachi 728), Wahid Bakhsh v. The State (1969 P.Cr.L.J. 1317) and Shabbir Ahmad v. The State (1972 P.Cr.L.J. 310). In view of the above‑noted formal defects, the report of identification test cannot be accepted as corroborative piece of evidence.

21. Lastly, the prosecution has relied upon the recovery of wrist watch and golden ring of the deceased from the possession of Mahmood Hussain and Babar Rasheed accused, respectively, besides .30 bore pistol (P.19), which Mahmood Hussain accused allegedly got recovered from his house on 27‑5‑2000. Tariq Javed and Muhammad Asghar Sultan (P.Ws.) did not say as to when and how Dr. Shamsul Haq was kidnapped but both stated before the police immediately after the occurrence that the wrist watch and the golden ring of Dr. Shamsul Haq Tayyab were found missing and that on the back of both these articles the name of Dr. Shamsul Haq was engraved. Since we are not convinced that these P.Ws. were present at the relevant time, therefore, this portion of their statement that the watch and the golden ring of the deceased were found missing appears to have been mentioned in the F.I.R. craftily. It appears to be a miracle that Asad ur‑Rehman took up the investigation of the case on 15‑5‑2000 just before leaving the police station for patrol duty. He met Arshad Iqbal and his son Muhammad Ahmad at Akbar Chowk and straightaway went to the graveyard, where he apprehended all the five accused as if they were waiting for the Investigating Officer to return the articles of the deceased. The manner in which these recoveries are shown to have been made does not appeal to reasons. The Investigating Officer did not recover any empty. There is no evidence to show that pistol (P.19) was actually used in commission of the crime, therefore, the recovery of pistol (P.19) cannot be treated as corroborative piece of evidence.

22. Under the above discussion, we are of the considered view that the prosecution has not been able to prove the charge against the accused beyond reasonable doubt. Accordingly, we allow the appeals, set aside the judgment dated 162‑2001 of the H trial Court. The appellants shall be set at liberty forthwith if pot required in any other case. Murder Reference No.6‑T of 2001 is answered in the negative. Appeals accepted. N.H.Q./M‑1358/L