2025 PLP 427 (YLR)

Muhammad Amjad Rafiq, J.

Usama Ali accused/ appellant was tried, in case FIR No. 167 dated 24.06.2016 registered under Sections 302/109/148/149, P.P.C. at Police Station Bambanwala, Daska District Sialkot, by the learned Additional Sessions Judge, Daska District Sialkot and after conclusion of the trial, vide judgment dated 14.09.2019, he was convicted and sentenced as under: Imprisonment for Life on three counts as Ta'zir under Section 302(b), P.P.C. for committing qatl-e-amd of Rabbi Umais, Hamid Ali and Zain-ul-Hassan. He was further directed to pay Rs.200,000/- (Rupees two hundred thousand only) each as compensation to the legal heirs of all the deceased as envisaged under Section 544-A of Cr.P.C. All the sentences were directed to run concurrently. Benefit of Section 382-B Cr.P.C., was extended in his favour. Against above conviction and sentence, accused/appellant filed Criminal Appeal No. 77969-J of 2019, whereas, complainant filed Criminal Revision No. 62123 of 2019 for enhancement of above sentence.

2. Prosecution unfolds a scene of 23.06.2016 at 6.00 p.m. when a young lad of 19 years, Rabbi Umais sought permission from his father Muhammad Aslam, complainant PW-1, resident of Kundan Sayian, that he and his friends Zain-ul-Hassan and Hamid Ali are on invite for Aftari with some friend at Daska. They went on ride by motorcycle CD-70 SJM-7155 Model 2013, colour red but did not return till late night. Complainant tried to contact him through phone, receiving no response went panic and started his search with the help of Muhammad Azam and Istikhar Ahamd, fathers of Zain ul Hassan and Hamid Ali respectively. Finally, early in the morning at 6.00 a.m. on 24.06.2016 one unknown person informed them of three dead bodies allegedly lying on bank of BRB canal near mouza Malianwala. Complainant along with above two persons went there and found the dead bodies of Rabbi Umais, Zain-ul-Hassan and Hamid Ali. All had received firearm injuries on their persons; some spent shells were also found lying scattered near the dead bodies.

3. First Information Report was registered at 7:15 a.m. on 24.06.2016, Investigating officer PW-17 reached to the place of occurrence, attended the dead bodies, prepared injury statements, inquest reports and sent them for postmortem examination. He claimed spot recoveries like some hair in clenched palm of Rabbi Umais, one shoe of left foot (allegedly of accused), 3 set of shoes and two mufflers (of deceased persons), thirteen spent shells of pistol, motorcycle, broken mobile of Rabbi Umais and blood-stained earth. Crime scene and dead bodies were photographed on his direction by Tayyab Luqman PW-3 and snaps handed over by him were taken into possession on 27.06.2016. On 30.06.2016 Yasir Abass 579-C computer operator Police station Bambanwala handed over CDR of phone numbers 0334-7941801 w.e.f. 21.06.2016 to 23.06.2016; phone number 0348-1472673 w.e.f. 01.04.2016 to 23.06.2016; phone number 0348-8636799 w.e.f. 01.04.2016 to 23.06.2016. Blood-stained earth, Hair, and Swabs taken from inside the shoe, as well as spent shells were sent to PFSA on 28.06.2016. Through first supplementary statement of the complainant on 24.06.2016, accused/appellant, his father Khalid and four unknowns were suspected to be involved in commission of offence yet second supplementary statement bracketed (1) Adil (2) Malik Shakeel (3) Mubashir (4) Hafiz Usman (5) Shabbir and (6) Sunaina; however, except Adil (PO), Khalid and later nominated accused were exonerated during the investigation, neither challaned nor summoned by the Court. Accused/appellant's arrest was shown on 14.09.2016 and later on 16.09.2016, for his DNA analysis and polygraph test, he was taken to PFSA. On 18.09.2016, accused/appellant led to the recovery of motorcycle (P-14) used by him during the occurrence and second shoe (P-15) from house of his uncle Malik Shabbir situated at Street No. 5, Pasrur road, Daska. Both shoes were got identified from Muhammad Azam and Istikhar PWs who claimed them of one person. On 27.09.2016 accused/appellant pointed out the place of murder. On 28.09.2016 accused/appellant led to the recovery of pistol .30 bore (P-10) from the same house of his uncle. PFSA reports returned with opinion of identification of human blood on earth sent for analysis, DNA profile obtained from hair and swabs taken from inside of shoe was declared consistent with DNA profile of accused/appellant. Pistol sent to PFSA was found wedded with spent shells. An attempt for polygraph test stood failed because accused allegedly confessed his guilt before the expert on 16.09.2016; such confession was claimed to have been recorded separately by the expert as reflected from PFSA report Exh. PQQ. Finally Report under section 173, Cr.P.C was put into the Court.

4. Prosecution examined, as many as, twenty PWs including witnesses of last seen, namely, Muhammad Nadeem (PW-7) and Muhammad Imran (PW-8). After close of prosecution evidence, the appellant was examined under Section 342, Cr.P.C., and he while responding to a question that why this case is against him and why PWs deposed against him? has stated as under: "All the witnesses are inter-se related. They have involved me in this case merely on the basis of suspicions. In fact at the time of occurrence I was not present at place of occurrence. I have been falsely roped in this case. I am innocent." The appellant neither appeared as his own witness in terms of Section 340(2), Cr.P.C., nor produced documentary evidence, and the trial ended in the terms as detailed above.

5. Learned proponent and opponent were heard at length while examining the whole evidence.

6. Case of the prosecution was structured through last seen evidence as a first clue for the involvement of accused/ appellant, which was deposed by Muhammad Nadeem (PW-7) and Muhammad Imran (PW-8), cousins inter se and relative of complainant. Nadeem was a fruit vender and Imran a property dealer. Both stated that on 23.06.2016 at 8.30 p.m. they went to Ramzan town for business work of Imran. They were on walk over the bank of BRB Canal near Stadium and Ramzan town when saw deceased persons riding on motor cycle were going on the western bank of canal and just after them saw accused/appellant on another motorcycle. After some time, they saw accused/ appellant coming back alone on his motorcycle being driven rashly. It was admitted by them that they informed the complainant about this fact on 25.06.2016 (after two days). This delayed information was with the justification that they came back from Multan together on the said date but no proof of their being gone to Multan was produced on the record. PW-7 was simply a fruit vender and had no hand or share in property business of Imran. His presence in the month of Ramadhan at 8.30 p.m. in Ramzan town for the purpose of observing an activity of plotting is nothing but a story. It was an occurrence in the month of June and both the witnesses are not expected to there at 8.30 p.m., that too in the month of Ramadhan when Muslims are busy in offering their Esha prayer followed by Taravih. It has further come in the evidence that there was no mosque in Ramzan town that could justify that after offering Esha prayer they were on walk from Ramzan town to bank of canal which was allegedly at a distance of 1/2 kilometer. However, site plan does not indicate any road leading to Stadium or the Ramzan town. Both the witnesses neither have shown their place of presence to the police nor police has sketched or photographed that place. As per statement of PW-7, they did not go to western bank of canal; no proof of light on the western bank of canal though claimed street lights on their side. He was not resident of locality where accused/appellant resided, however, claimed that his cousin Imran was married in the locality of accused/appellant but he knew nothing about the father of accused/appellant. From the above facts if a little acquittance of this witness with accused/appellant is conceded, he is not expected to have identified the accused from a distance with intervening BRB canal and that too in dark night, because source of light they deposed was at distance of 1/2 kilometer at Ramazan town and nearby hospital. Testimony of PW-7 does not inspire confidence and I have reached to the conclusion that his presence at acclaimed place was highly doubtful due to above highlighted facts and the followings; He conceded that no body met them during their walk on the bank of canal and admitted that no persons were gathered at that time to make a plan of Ramzan town. He specifically stated that at 8.30 p.m. except them, no other person was present. It was also deposed that the person whom Imran PW had come to meet was not produced before the investigating officer nor security guard of Ramzan town was associated into investigation.

7. PW-8 Mohammad Imran for his presence at Ramzan town, deposed as under; "One Asif Ilyas, one of my friend, who used to deal in property business, apprised me regarding plotting of Ramazan Town. We went at Ramazan Town for the purpose of planning of the plotting at 8.00 p.m. None other was present there, at that time. I do not know the name of owner/proprietor of Ramzan Town." He admitted it correct that during the period at BRB canal, none from the public met them, none of the vehicle was passing thereby at the relevant time. He also conceded that he does not know the person whom they visited at Multan. Surprisingly, they made the statement on 25.06.2016 to the police but complainant had already nominated the accused/appellant on 24.06.2016. As per his testimony, he had received information of murders on 24.06.2016 but did not contact the complainant (his maternal uncle) or PWs namely Muhammad Azam and Istikhar on phone on the said day despite the fact his two brothers Luqman and Irfan were also witnesses in this case. It is clear from the above facts that present two witnesses were installed by the prosecution in support of hunch of the complainant who was suspecting involvement of accused/appellant. These witnesses have not seen any weapon in the hand of accused/appellant, nor claimed seeing the accused/appellant coming back on motorcycle without left shoe in his foot. Prosecution has not opted to procure CDR of these witnesses to justify their acclaimed presence near BRB Canal at the relevant time. Last but not the least they have not seen the commission of murder by the accused/appellant.

8. Circumstantial evidence, in the form of DNA matching with some hair in the clenched palm of one of the deceased and on swabs taken from shoe , is mind-boggling evidence and raises many question that how such evidence was collected and procured by the police. The first eye brow raiser is the situation in which dead bodies were lying on the place of occurrence. An impression was created that deceased were targeted when they were on motorcycle and after sustaining injuries they fell down on the ground, because snaps of place of murder as well as statements of PWs show that motorcycle was lying over the dead body of one of the deceased, but surprisingly no blood spots or splashing on the motorcycle were found, which fact was conceded by investigating officer PW-17 as under; "There was no scratches on the motorcycle. I do not remember that there was any stain of blood on motorbike. I have not mentioned in Exh. PI, i.e., recovery memo. of motorcycle that motorcycle was blood stained." Furthermore, doctor has also not observed any injury on the body of deceased due to fall from motorcycle. Doctor has also observed no blackening or burning around the injuries of any of the deceased which shows that deceased were hit from quite a distance. When the accused was not within the reach of deceased, some hair in the clenched palm of Rabbi Umais deceased has no meanings. Similarly, when nobody has seen the accused while committing murder, showing running of accused in haste while leaving his left shoe at the place of occurrence is a story that may not find a buyer. Tayyab Luqman 1039/C PW-3, on call reached the place of occurrence, and photographed the dead bodies (Exh.PB/1-20). When he was asked about hair in the clenched palm of Rabbi Umais; he responded as under; "None of the pictures (P1-P20) shows the recovery of human hairs from the fist of Rabi Umais deceased." PW-17 Muhammad Akhtar Inspector, the first investigator admitted during cross-examination as under; "It is correct that there is no reference of capturing hair by dead body of Rabbi Umais in his injury statement prepared by me. It is correct that no photograph of fist of Rabbi Umais was captured, wherein, he was carrying hair." I have also examined the snaps P1-P20, which show that every effort has been made to develop the pictures in a form so as to conceal the hands of Rabbi Umais deceased. I have also not found in said snaps any shoe near or around the dead bodies of deceased persons. Thus, above evidence was created to book the accused/appellant.

9. Identification and comparison of recovered shoes of accuses/appellant was yet another issue with the prosecution. Investigating Officer PW-17 deposed that on 19.09.2016, he was present in HIU Office Daska when two witnesses namely Azam and Istikhar appeared before him and joined the investigation whom he had shown one right shoe of rubber leather which was recovered by him on the lead of accused/appellant. After comparison and identification by the PWs that both shoes are of same person, he prepared Memo. of identification duly signed by the PWs. I am afraid this arrangement for identification of shoes is not recognized by law, particularly when Investigating Officer admitted during cross-examination as under; "The chappal of rubber/chamra was not got comparison by me from the accused." And also; "I cannot tell the size and company of rubber shoe P7." Investigating Officer has not recorded the statement of any witness who could have deposed about the fact they had seen the accused/appellant wearing such shoes on such and such occasion. In a case reported as "Mehr Ali and others v. The State" (1968 SCMR 161), Supreme Court of Pakistan believed such evidence only when cobbler appeared as witness for identification of shoe with the explanation that accused got it repaired from him, and a supervisor also appeared who had seen the accused wearing such shoe at work place. Even otherwise, the law on the subject is very clear that if no witness as referred above was available then shoes must have been examined by an expert to know about its size to be fit in the feet of accused. Case reported as "Muhammad Tayyab and another v. The State and others" (2023 YLR 2207) is referred. It has been held in a case reported as "The State v. Zafar Ahmad and others" (KLR 1991 Criminal Cases 418) that such shoe had no special features rather was of common pattern, therefore, it hardly connects the accused with the crime. Similarly, in a case reported as "Qamar Abbas Shah v. The State" (2012 YLR 2663), it was commented that there are so many shoes of the same company owned by many other persons. Thus, prosecution has failed to prove that recovered shoes belong to the accused/appellant.

10. Mr. Hassan Anwaar Pannun, learned counsel for the appellant has very elegantly pointed out the fabrication of above evidence while claiming that in fact accused/appellant was arrested on the day of occurrence and his hair and shoe were used to provide evidence in this unwitnessed occurrence. Learned counsel for the appellant regarded it a tunnel vision, a practice inherent in police whose ideology speaks that "accused is guilty until proven innocent", therefore they book the offender on the hunch and then start creating evidence in support of their bias. Learned counsel in this respect has referred the portion of cross-examination on some prosecution witnesses. According to him, PW-1 Muhammad Aslam, complainant deposed as under; "It is correct that Adil was arrested in this case by the police on the night of Janaza. It is correct that on the same day, Usama accused was also arrested. It is correct that formal arrest of Usama was not shown by the police for three months." (Emphasis supplied) PW-13 Muhammad Afzal, who had identified the dead body of Zain ul Hassan had responded, the question asked about arrest of accused, as under; "I cannot tell that accused Rahat Saleem was arrested from Janaza, volunteered that a person was arrested but I do not know about his name." PW-18 Muhammad Baqir Inspector, 2nd investigator deposed as under; "The first IO might have arrested accused Usama on the basis of suspicion but I do not know about it." He conceded that he did not join into investigation the earlier investigator. The above highlights further get strength from the fact that no investigating officer deposed before the court that any process like warrants or proclamation was ever issued against the accused/appellant for his arrest despite the fact he allegedly remained out of reach by the police for three months. Thus, it is clear that accused was arrested on the same day and police was in a position to create the evidence, as made available in this case.

11. Prosecution has claimed that accused appellant also pointed out the place of murder of the deceased which is relevant evidence. I am afraid this fact was already in the notice of prosecution and cannot be regarded as a fact in the exclusive knowledge of the accused/ appellant and was discovered only on his information so as to make it admissible evidence under Article 40 of the Qanun-e-Shahadat Order 1984. Thus, this piece of evidence cannot be read against him.

12. Mr. Hassan Anwaar Pannun, learned counsel for the appellant while sharing his gut feelings stated that in fact place of commission of murder is different from place where dead bodies of deceased were found. It seems that dead bodies along with spent shells and motorcycle were placed in order to mislead and distract the police; had it been an occurrence at 10.00/11.00 p.m. on bank of canal the crime had immediately been reported to the police because prosecution claimed it a road having nearby urban area for ply of traffic round the clock. In support of his arguments learned counsel for the appellant has read the following portion of cross-examination on Fazal Ahmad Sarra Inspector, PW-20 (third investigator); "It is correct that complainant Aslam while appearing before me stated that "where dead bodies of our kids were lying and blood was also oozed there; one sandal of deceased Hamid was not there; mobile phone of Zain-ul-Hassan was not there; there was no scratch of wound due to falling from motor bike; there was also no scratch/wound for falling on the ground; the motor bike was in fine condition and it seemed that the same was laid down intentionally; the crime empties were lying under the dead body which connoted that the deceased persons were murdered somewhere else and their dead bodies were shifted there later on; because an alone person cannot make firing solely while driving motorbike." Further deposed; It is correct that PW Luqman stated before me that the averments made by the complainant before me are true. It is correct that PW Luqman stated before me that "deceased Zain, Rabi and Hamid were murdered somewhere else but their dead bodies were shifted at the alleged place of occurrence later on" The above reference shows that laymen like complainant and witnesses after viewing the condition of dead bodies and articles lying near them, did observe that it was not the place of murder, then it was not expected that investigating officer being expert witness had oversighted such fact. The best course, in the situation was lifting of finger prints from the mobile, shoes of deceased and spent shells so as to rule out any interference with the articles, but failing in such exercise police has further made place of murder as doubtful. From the above reference of the statement of PW-20 and observations made by this Court herein and in preceding paragraphs, it is apparent that prosecution has even failed to prove the actual place of murder, which has never been pointed out by the accused/appellant.

13. Prosecution in this case though has made an effort to procure evidence in the form of polygraph test but surprisingly expert did not conduct it due to the reason that accused/appellant allegedly confessed his guilt before him. It was claimed that confession was recorded by him separately. Expert was not a magistrate so as to give words to the alleged confession rather was under duty to conduct polygraph test even in that situation in order to ascertain the truth of such confession. This Court through case reported as "Muhammad Aslam v. The State and others" (PLJ 2023 Cr.C Lahore 765) has regarded the polygraph test an effective tool to provide evidence of facts coming from the mouth of an accused. Refusal by expert to conduct the polygraph test created further doubt that prosecution was not serious to collect impartial evidence rather was motivated to book the offender at every cost. If the confession before the expert is considered as informal admission (commonly known as extra judicial confession), then such confession should have been tendered in evidence with appearance of expert in the dock, but it has not been done.

14. Allegedly no motive was asserted in this case by the prosecution but during investigation a suspicion erupted that sister of accused/appellant was in touch with one of the deceased as a friend which infuriated the accused/appellant to commit the murders but no such link was found because said sister of accused/appellant though implicated as an accused but was exonerated during investigation and trial Court did not opt to summon her. Thus, on this limb prosecution has no case.

15. Medical evidence in this case does not advance the case of prosecution because nobody had seen the occurrence, therefore, locale, dimension and nature of injuries cannot be read as supportive to any fact alleged by the witnesses of circumstantial evidence. However, as observed in preceding paragraphs, nature of fires and injuries do not depict that deceased persons received the same while riding on motorcycle. Similarly, no blackening or burning was observed around the wounds of deceased persons and being distant fires do not provide any opportunity to any of the deceased to catch the hair of accused/appellant as alleged its presence in the clenched palm of Rabbi Umais deceased. Doctor has also conceded, while noting the different sizes of injuries on the person of deceased, that different weapons have been used in commission of murders, which is against the prosecution's case theory.

16. Recovery of pistol on the lead of accused/appellant from the house of his uncle Shabbir Ahmad on 28.09.2016 was mere a fake formality because from the same house on 18.09.2016 accused/ appellant had allegedly got recovered his right shoe/Sandal (P-15), and motor cycle (P-14) used by him in the occurrence and it is not expected that police had not conducted a thorough search of said house so as to collect any other incriminating material, particularly when pistol had yet not been recovered. Thus, recovery was apparently planted upon the accused/appellant. Even otherwise when there is no direct evidence in this case and other circumstantial evidence has also been disbelieved, mere on the basis of recovery conviction cannot be recorded nor sustained.

17. Prosecution has also produced in evidence some CDR of phone numbers but PW-17 conceded that no SIM number was in the name of accused/appellant. Although phone of Rabbi Umais was found present near the dead bodies but it was claimed that cell No. 0334-7941801 recovered from the accused/ appellant at the time of his arrest was found issued in the name of Rabbi Umais. It was alleged that such number was in the possession of Sunaina, sister of accused/appellant which shows her link with the deceased. No chat or voice messages were available in support thereof, that was the reason said Sunaina was not summoned by the Court as an accused nor prosecution was able to establish the fact of her link with any of the deceased. Further, PW-16 Yasir Abbas 579-C who collected such CDR concedes that detail of owner of cell No. 334-7941801 is not given in CDR. He further concedes that CDR was obtained from IT office, DPO Sialkot through email. Neither CDR was obtained from concerned mobile company nor any representative of such company appeared in the dock. Thus, such CDR was not admissible in evidence.

18. After evaluating the evidence in this case, it is apparent that this case is a worst form of tunnel vision on the part of police and prosecution. In an article, on "Tunnel vision" inspired by a book written by Brian L. Cutler (Ed.), Conviction of the innocent: Lessons from psychological research (pp. 303.323). American Psychological Association, Findley, K. A. (2012) refers it as under; Tunnel vision is a natural human tendency that has particularly pernicious effects in the criminal justice system. This process leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion. Through that filter, all information that supports the adopted conclusion is elevated in significance, viewed as consistent with the other evidence, and deemed relevant and probative. Evidence inconsistent with the chosen theory is easily overlooked or dismissed as irrelevant, incredible, or unreliable. Properly understood, tunnel vision is more often the product of the human condition, as well as institutional and cultural pressures, than of maliciousness or indifference.

19. Public Prosecution Service of Cananda in its publications explain that tunnel vision in the criminal justice context can be described as a tendency of participants in the system, such as police or prosecutors, to focus on a particular theory of a case and to dismiss or undervalue evidence which contradicts that theory. This mental process leads to "...unconscious filtering in of evidence that will 'build a case' against a particular suspect, while ignoring or suppressing evidence respecting the same suspect that tends to point away from guilt." Legal scholars typically include "confirmation bias" as an element of tunnel vision. Confirmation bias is a powerful psychological process that causes an individual to unconsciously prefer information that supports a conclusion that they have already settled on and to disregard or be overly sceptical about information that contradicts that conclusion. While tunnel vision narrows the focus of an investigation to a single target, confirmation bias leads investigators and prosecutors to filter in evidence supporting their theory and to ignore or undervalue evidence that suggests their theory might be incorrect. Confirmation bias causes people to seek, recall, and even interpret data in ways that support their prior beliefs. "Hindsight bias," or the "knew-it-all-along effect," is another psychological phenomenon that affects tunnel vision in criminal investigations and prosecutions. Hindsight bias occurs when a person mixes new information with old information in their brain. This can result in a person believing an event was predictable and they knew it would happen, even if there was no objective evidence for predicting it would occur at the time. The danger of this process in the course of an investigation or prosecution is that when a theory of a case is developed, hindsight bias can lead to a "rejudgment" process that the given outcome seems inevitable or, at least, more plausible than alternative outcomes." Studies have shown that hindsight bias can also affect judgements about accused persons' past conduct, making the current allegations against them seem all the more probable. In addition to unconscious biases, human psychology also tells us that individuals typically rely on a host of cognitive heuristics or mental shortcuts to make decisions, even complex ones. Decision makers - even the best, the brightest and the highly principled - do not have unlimited mental capacity to process each piece of information that is presented to them in a problem, assign the level of importance each piece has on the decision as a whole, consider all the available alternatives, and then engage in a complex mental algorithm to arrive at their decision. Indeed, research suggests that as the demands on limited cognitive resources increase, the more likely it is that decision-makers will employ cognitive heuristics or other strategies intended to reduce the amount of mental effort required to arrive at a decision. In such cases, the decision-maker is often (unconsciously) seeking a satisfactory solution, rather than an optimal one. An exploratory piece of research conducted by Islam, Weir and Del Fiol (2014), examined decision making in expert clinicians and found they use mental shortcuts in complex cases, particularly when they are faced with significant time constraints, multiple interruptions and simultaneous demands. It is a collection of mental processes that occur in all human beings and, as such, cannot be prevented merely through education on the topic and/or an effort among justice system participants to attempt to consciously avoid tunnel vision through ordinary practices.

20. 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/appellant beyond any shadow of doubt. In the case of "Mst. Hajira Bibi alias Seema and others v. Abdul Qaseem and another" (2023 SCMR 870), 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, but here in this case multiple doubts have marred the prosecution case in its entirety. Thus, prosecution has squarely failed to bring home the guilt against the accused/appellant. Consequently, Crl. Appeal No. 77969-J of 2019 is allowed, impugned judgment of conviction and sentence is set-aide and the accused/appellant is acquitted of the charges against him. He shall be released forthwith if not required 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.

21. For the above reasons, Crl. Revision No.62123 of 2019, filed by the complainant, is dismissed. JK/U-1/L Appeal allowed.