2018 PLP 84 (YLRN)

SHAHID HAMEED DAR, J.

This criminal appeal arises from the judgment dated 11.6.2014, whereby the learned additional sessions judge, Tandlianwala (Faisalabad) has convicted Zafar Iqbal alias Zafri (appellant) under section 302(b), P.P.C. and sentenced him to imprisonment for life with direction to pay a sum of Rs.1,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default, to undergo simple imprisonment for six months. Benefit of section 382-B Cr.P.C. was extended to him. His co-accused, Ijaz Ahmad, Abu-ul-Hassan and Waris alias Shakoor alias Shakoori were, however, acquitted of the charge on extension of benefit of doubt to them. It all happened on conclusion of their trial in case FIR No.78/2011, dated 11.2.2011, under sectionS 302, 148, 149 P.P.C., registered at police station Saddar Tandlianwala (Faisalabad).

2. Precisely, the prosecution story as narrated by Ghulam Abbas (complainant/P.W.5) in the FIR (Exh.PA) is that he worked as a Naib Qasid in UBL Bank, Main Branch, Faisalabad; he was on the way to his house from the bank in the evening of 11.2.2011, when he found his son Adnan Abbas, aged about 18/19, standing alongside his rickshaw at Adda Chak No.412/GB; Muhammad Hussain and Ahmad Hassan were also there: it was at about 7.00 p.m., when they all boarded the said rickshaw and drove it to their residential Chak No.407/GB; it was being driven by Adnan Abbas; two more persons Abu-ul-Hassan and his wife also sat with them, who alighted at a little short of Pull Khan Muhammad; his son Adnan Abbas had driven the rickshaw a bit ahead, when it was intercepted by five unknown armed men, who could be identified by him and his companions, if they ever saw them again, after having seen them in the headlight of the rickshaw; Adnan Abbas had stopped his rickshaw by then; one of the interceptors raised Lalkara that Adnan Abbas be killed, whereon his unknown companions opened straight firing at him; one of the fire shots hit his frontal neck and the other, front part of his chest; two fire-shots hit the body of rickshaw; Adnan Abbas leaned forward being badly injured; he and his companions challenged the unknown shooters, who entered a nearby sugarcane field still firing; they held Adnan Abbas and thought of shifting him to the hospital, but he succumbed to the injuries before they could do so; the unknown accused had committed the crime on the abetment of someone. The complainant reported the matter to Tariq Mehmood SI (P.W.12) at 8.00 p.m. on 11.2.2011, at Chak No.407/GB, who drew up complaint (Exh.PE) and despatched it to police station through Muhammad Ashraf 2060/C for registration of case, on receipt of which Perviaz Akhtar ASI (P.W.2) drafted formal FIR (Exh.PA), at 8.30 p.m., the same day.

3. Dr.Naseer-ul-Islam MO (P.W.13) performed autopsy on the dead body of Adnan Abbas, at 9.00 a.m. on 12.2.2011, vide postmortem examination report (Exh.PK) and observed following injuries thereon:- i) A round lacerated entry wound measuring 1% cm x 11/4 cm on middle of front of left arm. Margins were inverted and blackening was present. On dissection, a projectile was removed from this injury. ii) A round lacerated entry wound measuring 11/4 cm x11/4 cm on left side of chest, 2.5 cm medial to nipple. Margins were inverted and blackening around the wound was present. On dissection, a metallic projectile was removed from this injury. iii) A round lacerated entry wound measuring 11/4 cm x 11/4 cm on right side of middle of neck. Margins were inverted and blackening around the wound was present. He opined that death in this case was due to haemorrhage and shock, resulting from injuries No.2 & 3 collectively, which were sufficient to cause death in ordinary course of nature. The mode of death was homicidal. The probable time that elapsed between injuries and death was "within 20 to 30 minutes approximately" and that elapsed between death and postmortem examination was "within 12 to 14 hours".

4. Tariq Mehmood, S.I. (P.W.12) carried out the investigation of this case. He reached the spot, inspected the dead body of Adnan Abbas, prepared injury statement (Exh.PF), inquest report (Exh.PH) and despatched it to the mortuary for autopsy under the escort of Khushi Muhammad 3590/C (P.W.10); he prepared visual site-plan (Exh.PG) of the place of occurrence; collected blood-stained earth, made it into a sealed parcel and prepared seizure memo Exh.PB; he got prepared site-plan in-scale (Exh.PC and Exh.PC/1) of the place of occurrence by Akbar Ali Nizami, draftsman (P.W.7); the complainant presented an at,, application before him on 17.4.2011, whereby he nominated the accused, Ijaz, Zafar alias Zafri (appellant), Shakoor and Abu-ul-Hassan; thereafter, he was transferred and investigation was entrusted to Zafar Iqbal, Incharge Investigation (P.W.14), who arrested the appellant and Ijaz (since acquitted) on 3.6.2011 and sent them to judicial lock-up for their test identification parade, which was held on 13.6.2011 by Rana Aneel Arshad, learned magistrate, Faisalabad; he formally arrested the accused in this case and subjected them to interrogation; Ijaz accused (since acquitted) got recovered pistol .30-bore (P3) and three live bullets (P1-P3), vide memo of recovery Exh.PM. On completion of investigation, he prepared report under section 173, Cr.P.C. and submitted it before the learned trial court for trial of the accused in accordance with the law.

5. On indictment, the appellant and his acquitted co-accused pleaded not guilty and claimed a trial. The prosecution produced seventeen witnesses, namely Muhabbat Ali 1002/C (P.W.1), Pervaiz Akhtar ASI (P.W.2), Subah Sadiq (P.W.3), Muhammad Hussain (P.W.4), Ghulam Abbas (complainant/P.W.5), Muhammad Ramzan 4938/HC (P.W.6), Akbar Ali Nizami draftsman (P.W.7), Abdul Razzaq 4177/HC (P.W.8), Fateh Khan, Incharge Investigation (P.W.9), Khushi Muhammad 3590/C (P.W.10), Mumtaz Hussain SI (P.W.11), Tariq Mehmood SI/I0 (P.W.12), Dr.Naseer-ul-Islam MO (P.W.13), Zafar Iqbal, Incharge Investigation (P.W.14), Ghulam Mustafa 3478/C (P.W.15), Rana Aneel Arshad, civil judge (P.W.16) and Ahmad Hassan (P.W.17), to prove its case. Thereafter, the accused were examined under section 342, Cr.P.C, whereby they proclaimed their absolute innocence in the matter. While answering the question, why the complainant and PWs had deposed against him, the appellant stated as under:- "Due to suspicion and on the asking of police because already illegal custody of the police and the Hon'ble Mr.Justice Syed Kazin Raza Shansi ordered to initiate proceedings against the concerned police officials SHO P/S Saddar Tandlianwala, I.O. P/S Saddar Tandliamvala, S.P. CIA Rai Zameer Hassan and Malik Muhammad Saleem S.I. CIA staff due to my illegal detention." The appellant and his acquitted co-accused declined to appear under section 340(2) Cr.P.C., but they, except Abu-ul-Hassan, opted to adduce evidence in defence. The appellant relied on the documentary evidence (Exh.D 1 and Exh.D2) led by his acquitted co-accused, Ijaz and closed the defence. Learned trial court concluded trial of the appellant through the impugned judgment by holding him guilty of the charge and awarded him the sentence, in mentioned terms.

6. Learned counsel for the appellant has contended that Adnan Abbas was murdered by some unknown accused in the darkness of the night on 11.2.2011, which fact is fully evident from the complaint (Exh.PE) recorded by Tariq Mehmood SI (P.W.12) at 8.00 p.m., the same day; the complainant did not mention bodily features of the assassins in the FIR, therefore, test identification of the appellant on 13.6.2011 carries no value in the eye of law; the appellant and his acquitted co-accused Ijaz Ahmad were identified in a joint test identification parade, which militated against the law itself; the testimonies of the eyewitnesses, Muhammad Hussain (P.W.4) and Ghulam Abbas (complainant/P.W.5) are filled with countless discrepancies and they seemingly admitted therein that there was no source of light at the spot at the relevant time of the occurrence; the eyewitnesses admitted to have visited police station Makowana on knowing that the appellant and his acquitted co-accused had been arrested by the police and confined there, where they saw them not only on the said occasion, but also many times thereafter 'before identifying them on 13.6.2011; Ijaz Ahmad co-accused, whose role was at par with the appellant, rather worse, being linked with the motive-issue as well, has been acquitted of the charge and the same rejected evidence has unjustly been believed against the appellant to convict and sentence him, which is patently illegal; the impugned judgment has been passed irrationally, therefore, it may be set aside and the appellant may be acquitted of the charge.

7. On the other hand, learned Deputy Prosecutor General Punjab and learned counsel for the complainant have submitted in unison that the appellant was correctly picked up by the eyewitnesses during his test identification parade and they also mentioned about his fatal role then; the case of Ijaz Ahmad acquitted co-accused was not similar to that of the appellant, therefore, his acquittal may not be beneficial to him; the impugned judgment has been passed with immaculate appraisement of evidence, hence, it may be sustained.

8. After hearing the learned counsel for the parties at length and going through the relevant record, it is observed that Zafar Iqbal alias Zafri accused (appellant) is the most ill-fated person, who had been singled out by the learned trial court whimsically, without any rationale and handed down the impugned verdict of guilt on the basis of same evidence, having been rejected by it in relation to his co-accused, whose case closely assimilated with him and nothing existed on the record to chose between them. It is virtually a case of no evidence against the appellant and so was it in relation to the acquitted co-accused, but his luck did not favour him or it was not his day, when learned trial court convicted and sentenced him in the mentioned terms. A little bit of presence of mind and a bit greater thoughtfulness might have made the difference and resulted in a sustainable judgment by the learned trial court, but it was not to be. It is a bizarre verdict, the impugned judgment, which has no relevance whatsoever with the material available on the record. The eyewitnesses, Muhammad Hussain (P.W.4) and Ghulam Abbas (P.W.5/ complainant) seemingly said it in so many words that Adnan Abbas had been murdered in the darkness of the night by some unknown accused and they were either not present at the spot then and if they were, they could not identify the killers due to darkness of the night. They were so innocent in making the deposition, that they heard about arrest of the unknown accused, including the appellant and his acquitted co-accused by the police of police station Makowana (Faisalabad), whereon they visited the police station, learnt about their names from the police and thereafter, they identified them during their test identification parade held on 13.6.2011.

9. While tendering evidence before the court, they both (P.W.4 and P.W.5) still dubbed the unknown accused as assassins of Adnan Abbas and did not point to the accused facing the trial, that they were the persons who had committed the crime. In their statements they stuck to their stance of having seen the unknown accused murdering Adnan Abbas. They deposed in divergence as to presence of any source of light at the crucial hour and virtually showed their inability to have seen the accused at the relevant time of the occurrence. Ghulam Abbas (P.W.5/complainant) frankly admitted during his examination that Ijaz accused (since acquitted) was a resident of his village, but he did not identify him at the spot though none of the accused had muffled their faces. He by referring to the time of occurrence as 7.10 p.m. on 11 the day of February 2011 innocently said that there was no arrangement of light at the place of occurrence then. Muhammad Hussain (P.W.4) probably believed the headlight of rickshaw too scanty to identify the accused at the crucial hour, so be brought forth the factum of presence of moonlight then. None of them claimed to have identified the accused in the headlight of rickshaw and, being conscious of inadequacy of its brightness, they dropped the idea of saying it so, that they identified the unknown accused in the headlight of rickshaw. It is a matter of common observation that it is darkness everywhere around 7.00 p.m. in the month of February, particularly at a place, where no source of light is available. The visual site-plan (Exh.PG). reveals that the place of occurrence was not located anywhere near a residential area It was surrounded by the open fields, where presence of electricity light or page 6 for type or scan in nature on the file to connect the appellant with the commission of crime. We find that on the available evidence, co-accused had been acquitted by the learned trial court, whereas the same set of evidence against the appellant has been believed and relied upon in a highly uncalled for manner.

13. In view of the foregoing discussion, while extending benefit of doubt in favour of the appellant, he is found entitled to earn acquittal. Consequently, this appeal is accepted, the impugned judgment of the learned trial court is set aside and the appellant is acquitted of the charge. He shall be released from the prison forthwith if not required to be detained in other case. JK/K-17/L Bail granted.