2023 PLP 926 (YLR)

FAROOQ HAIDER, J.

This single judgment shall decide Criminal Appeal No. 116-J of 2011 and Criminal Revision No. 142 of 2011. Through the aforementioned Criminal Appeal No.116-J of 2011, Muhammad Shaban alias Shabani (appellant) has assailed the judgment dated 24.02.2011 passed by learned Additional Sessions Judge, Chishtian, whereby he has been convicted and sentenced under section 302(b), P.P.C. to "Imprisonment for Life" as Taz'ir for committing qatl-e-amd of Allah Yar alias Yaroo (deceased) along with payment of compensation of Rs.2,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.C. and under section 394, P.P.C. to "Imprisonment for Life"; both the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to the appellant; whereas through Criminal Revision No. 142 of 2011, Bakht Ali (complainant) has sought enhancement of aforementioned sentence awarded to Muhammad Shaban alias Shabani by the trial court.

2. Brief facts, as per Fard Bayan (Ex.PA) got recorded by Bakht Ali complainant/PW-1, are that on 01.06.2005, complainant along with his brother Allah Yar alias Yaroo, Ahmad Hassan and Ghulam Qadir, went to Khoo Reham Shah, Mouza Jhedowan in order to see his ailing relative and when they were returning, complainant and his brother were on one motorbike while leading whereas Ahmad Hassan and Ghulam Qadir were following them on another motorbike; at about 08:30 p.m. when they reached on metaled road opposite to the agricultural land of Sahibzadah Muhammad Aslam Pervaiz within the area of Mouza Kot Babul, all of a sudden, four unknown persons emerged from behind the constructed house of Allah Bakhsh Awan and got stopped the complainant party on gun point; Allah Yar alias Yaroo was driving the motorbike. Complainant saw the accused persons in the light of motorbike and noted a tall man of medium physique with some beard of young age armed with pistol, a fat man of medium height and strong body armed with .12 bore repeater, third was of medium height, slim body aged about 18/19 years armed with pistol and fourth person was of medium height, slim body aged about 23/24 years armed with pistol; the accused persons attempted to snatch their motorbike, upon resistance, accused having repeater made a straight fire shot, which hit at the left flank of Allah Yar alias Yaroo, who fell down on the ground, then accused having long height also made fire shot with his pistol hitting at his left shin; in the meantime, Ahmad Hassan and Ghulam Qadir PWs while watching reached at the place of occurrence and raised lalkara to the accused persons, upon which, they fled away from the spot on their motorbike; the complainant along with PWs attended his brother but he succumbed to the injuries at the spot. On the basis of abovementioned Fard Bayan/complaint, formal FIR No.92, dated 01.06.2005, under sections 302, 34, P.P.C. (Ex.PA/1) was registered at Police Station Shaher Fareed, District Bahawalnagar; present appellant was arrested in this case on 21.06.2009 by Lal Khan A.S.I. (PW-8). After conclusion of investigation, appellant was challaned to the Court; he was formally charged under sections 302, 394, 34, P.P.C., to which he pleaded not guilty and claimed trial. The prosecution during trial examined fourteen witnesses, out of which, ocular account was furnished by Bakht Ali (PW-1) and Ahmad Hassan (PW-2). Dr. Muhammad Afzal (PW-6) provided medical evidence, Muhammad Akhtar (PW-3) provided evidence of Waj Takkar ( ), whereas evidence of extra-judicial confession was provided by Noor Muhammad (PW-4) and Muhammad Ghulam Nabi (PW-5).

3. Appellant was examined under Section 342, Cr.P.C. wherein he denied the allegations and professed his innocence; appellant neither made statement under section 340(2), Cr.P.C., nor produced any evidence in his defence. After conclusion of trial, learned trial Court convicted and sentenced the appellant as mentioned above, through the impugned judgment.

4. During pendency of the titled appeal, the convict/appellant Muhammad Shaban alias Shabani filed application bearing Crl. Misc. No. 4044 of 2019 for having due permission with respect to compromise effected between the parties, which was sent to learned Sessions Judge, Bahawalnagar for conducting entire due proceedings including ascertaining detail of the legal heirs, recording their statements, watching interest of the minor legal heirs, if any and submitting report regarding genuineness of the compromise; in compliance thereof, learned Sessions Judge, Bahawalnagar sent his report bearing No. D&SJ/BWN-58, dated 15.06.2019, which has been placed on record of instant criminal appeal; perusal of the same reveals that all surviving legal heirs of Allah Yar (deceased) i.e. his wife Ghulam Jannat Bibi (widow) and four brothers namely Bakht Ali, Barkat Ali, Ahmad Bakhsh and Muhammad Bakhsh appeared and got recorded their statements to the effect that they have entered into compromise with the appellant i.e. Muhammad Shaban alias Shabani, compounded the offence, forgiven him in the name of Almighty Allah, waived of their right of Qisas and Diyat and made their statements with their own free will and consent, without any duress and coercion. According to said report, Allah Yar (deceased) was having no minor legal heirs and his parents are also not alive; compromise is without any pressure or coercion rather with free will and consent of all the surviving legal heirs of the deceased and same is genuine; in this regard, Paragraph Nos. c and d of the aforementioned report, are hereby being reproduced: - c) As far as the safeguard of the interest of minors is concerned, as per list of legal heirs and statements of all the legal heirs of the deceased no issue was born out of wedlock of Allah yar deceased and Ghulam Jannat. Hence, there is no minor legal heir in this case to safeguard his/her interest. d) I have personally examined the above mentioned legal heirs in presence of their counsel. I am satisfied that all the legal heirs have made statements without any duress and coercion and with their own free will and consent. I find the compromise between the parties to be valid and genuine.

5. The compromise as on today stands completed in all respects, as all the surviving legal heirs of the deceased have entered into compromise with the appellant without any coercion and duress, and have no reservations if the appellant is acquitted on the basis of compromise. In view thereof, when the proposed compromise between the surviving legal heirs of the deceased and appellant is likely to promote the cause of peace in the locality, and shall also result betterment of present and coming generations of the parties, then it is appropriate to grant permission/leave for effecting the compromise within the meaning of section 345(2)(5), Cr.P.C. It is trite of law that surviving legal heirs of a deceased are quite competent to effect compromise with the appellant to the extent of offence under section 302(b), P.P.C. in the light of section 345, Cr.P.C. read with all other enabling provisions of law, because conviction and sentence have been recorded under Ta'zir. In this regard, guidance has been sought from the dictum laid down by the larger Bench of august Supreme Court of Pakistan in case titled as "Muhammad Yousaf v. The State and others" (PLD 2019 Supreme Court 461). Hence, by allowing Crl. Misc. No. 4044 of 2019, permission/leave for effecting the compromise between the appellant and legal heirs of the deceased as required under section 345(2)(5), Cr.P.C. is granted. Resultantly, instant appeal to the extent of section 302(b), P.P.C. is allowed/accepted, conviction recorded and sentence awarded to the appellant under section 302(b), P.P.C. as mentioned above, through the impugned judgment dated 24.02.2011 are hereby set aside and appellant is acquitted of the charge under section 302(b), P.P.C. on the basis of compromise.

6. Since, the appellant also stands convicted and sentenced under section 394, P.P.C., which is a non-compoundable offence, hence, instant appeal is being decided on merits to the extent of said offence.

7. Learned counsel for the appellant submitted that impugned conviction recorded and sentence awarded to the appellant under section 394, P.P.C., are against the law and facts, therefore, same are not sustainable in the eyes of the law and prayed for acquittal of the appellant; complainant present in Court also requested for acquittal of the appellant; whereas learned Deputy Prosecutor General has supported the impugned judgment to the extent of offence under section 394, P.P.C. and prayed for dismissal of instant appeal.

8. After hearing learned counsel for the appellant, complainant, learned Deputy Prosecutor-General and going through the record with their able assistance, it has been noticed that occurrence in this case took place at about 08:30 p.m. on 01.06.2005; matter was reported to the police through Fard Bayan (Ex.PA) got recorded at 10:15 p.m. by Bakht Ali (complainant/PW-1) at the spot, which was sent to the Police Station Shaher Fareed, District Bahawalnagar, whereas F.I.R. (Ex.PA/1) was recorded at 11:20 p.m., however, postmortem examination over the dead body of the deceased was conducted with delay i.e. at 07:30 a.m. on 02.06.2005 and no reason for this delay has been explained by the prosecution, thus, it can be gathered that police papers were prepared with delay, which ultimately caused delay in conducting postmortem examination; this situation further signals that none of the cited eye-witnesses including the complainant was available at the place of occurrence and this time has been consumed by the prosecution for consultation, deliberation, inducing, procuring witnesses and then after tailoring false story, getting the case registered in its present form; guidance in this regard has been sought from the case of "Haroon Shafique v. The State and others" (2018 SCMR 2118) and case of "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068). This aspect has completely discarded the ocular account and smashed the case of prosecution. There is another very crucial aspect of this case i.e. identification of the accused persons including the present appellant; in this regard, it is important to mention here that no source of light has been mentioned in Fard Bayan (Ex.PA) by the complainant except light of motorbike; accused/appellant was not nominated in the said Fard Bayan, meaning thereby that he was not known to the complainant and other cited eye-witnesses till that time, in the stated axiomatic, panic and turmoil situation at the time of occurrence, momentary glimpse of the assailants in the light of motorbike, by any stretch of imagination cannot be termed as sufficient for capturing images of the identifiable features of the assailants, to be made basis for their identification at any subsequent stage; furthermore, the most essential features for identification of human being are his facial features but in Fard Bayan (Ex.PA) and in the statements of the witnesses, no facial features of any accused including the present appellant were mentioned, therefore, identification of the accused without this aspect is near to impossible, thus, identification of the appellant in identification parade is a futile exercise and of no help to the case of prosecution. Furthermore, in this case appellant was nominated by the complainant through supplementary statement and challan report against him was submitted in the Court and same was dealt by learned trial court vide judgment dated 05.07.2007, in this regard statement of Muhammad Zahid Majeed Inspector (PW-13) is being reproduced: - "It is correct that on 29.06.2005 the complainant did not nominate the accused Shaban during interrogation which is incorporated in case Diary dated 29.06.2005, volunteer complainant appeared before me on 04.06.2005 and nominated accused Muhammad Shaban and Munir Ahmad along with two unknown persons." (emphasis added) Similarly, relevant portion of statement of Rao Jamshed Ali, DSP/SDPO Saddar Circle (PW-11) is being reproduced: - "States that on 02.02.2006 I was posted as I/SHO P.S. Shahar Fareed where case file was handed over to me. I submitted the applications Ex-PG and Ex-P-1 before the learned Illaqa Magistrate for obtaining non-bailable warrants of arrest and proclamation of the accused Munir and Shaban. Thereafter, I prepared the report under section 173, Cr.P.C. against the said accused and prepared the Challan under section 512 Cr.P.C." Hence, when appellant was already nominated in the year 2005 by complainant then there was no occasion for his identification parade on 04.07.2009; in this regard, case of "Shahbaz Ahmad v. The State" (2006 Cr.LJ 471) can be safely referred. Nutshell is that prosecution could not prove identification of the appellant as one of the assailant, who committed the occurrence. Even otherwise, complainant and other cited eye-witnesses are chance witnesses, they could not offer any valid reason of unimpeachable character regarding their presence at the place of occurrence; they have claimed that they had gone to see their ailing relative namely Manzoor but surprisingly, he was neither produced during the investigation nor during the trial to verify/corroborate their version in this regard; eyes of the deceased have been mentioned as "open" in the Column No. 8 of the inquest report (Ex.PF/3); if complainant being real brother of the deceased was available at relevant time and place of occurrence, then he must had closed eyes of his deceased brother. In view of what has been discussed above, it has been established that ocular account has not been found as confidence inspiring and truthful, therefore, same is not reliable. As far as evidence of Waj Takkar ( ) produced by the prosecution through Muhammad Akhtar (PW-3) is concerned, same has been found as mere concoction because in his statement recorded by Court on 18.01.2010, he stated that he saw the accused including present appellant 4 months ago, it is important to mention here that occurrence took place in the year 2005; furthermore, this piece of evidence has not been put to the appellant under section 342, Cr.P.C., therefore, same cannot be used against the appellant. As far as evidence of alleged extra-judicial confession made by present appellant before Noor Muhammad (PW-4) and Muhammad Ghulam Nabi (PW-5) is concerned, suffice to observe that it has been stated by Noor Muhammad (PW-4) himself that it was joint extra-judicial confession and in this regard, following portion of his statement is being reproduced: - "It is correct that I appeared as witness in this case on 27.07.2007 and got recorded my statement. It is correct to suggest that at the time of recording my statement I deposed that on 10.07.2007, I and Ghulam Nabi PW were sitting in my Dera, Muhammad Munir and Shaban accused came there and confessed the murder." Hence, same is inadmissible piece of evidence; furthermore, this piece of evidence has also not been put to the appellant while examining him under section 342, Cr.P.C., therefore, same cannot be used against him otherwise it would amount to "audi alteram partem" and guidance in this regard has been sought from the dictum laid down in the case of "Ameer Zeb v. The State" (PLD 2012 Supreme Court 380), relevant portion available at Page No. 398 in Paragraph No. 6, is hereby being reproduced for ready reference: - "It is trite that a piece of evidence not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used against him by the prosecution." (emphasis added) In this regard case of "Imtiaz alias Taj v. The State and others" (2018 SCMR 344) can also be referred advantageously. As far as recovery of carbine (P-3) from the present appellant is concerned; firstly it has not been alleged in Fard Bayan (Ex.PA) that any assailant was carrying carbine; no empty was secured from the place of occurrence, therefore, said recovery, which even otherwise was got effected, after much delay, from an open and public place accessible to every one and not from the exclusive possession/ownership of the appellant, is of no avail to the case of prosecution and while holding so, guidance has been sought from the dictum laid down in the case of "Majeed alias Majeedi and others v. The State and others" (2019 SCMR 301), relevant portion whereof is being reproduced: - " and in the absence of any crime-empty having been secured from the place of occurrence the recovered pistol was not of much avail to the prosecution." In view of what has been discussed above, it has been established that prosecution has been failed to prove its case against the appellant beyond shadow of doubt, therefore, conviction recorded and sentence awarded to the appellant under section 394, P.P.C., are liable to be set-aside.

9. Resultantly, Crl. Appeal No.116-J of 2011 filed by Muhammad Shaban alias Shabani (appellant) is hereby allowed/ accepted, impugned conviction recorded and sentence awarded to him under section 394, P.P.C. vide judgment dated 24.02.2011 passed by learned Addl. Sessions Judge, Chishtian are hereby set-aside, he is acquitted of the charge; he is on bail after suspension of his sentence, therefore, his surety stands discharged from the liability. Criminal Revision No. 142 of 2011 Consequent upon the reasons mentioned above, Crl. Revision No. 142 of 2011, filed by Bakht Ali (complainant) seeking enhancement of sentence of Muhammad Shaban alias Shabani (respondent No.2), stands dismissed. JK/M-128/L ???