2018 PLP 48 (YLRN)

The Criminal Appeal No.28 of 2010 titled Aftab Ahmed v. The State has been addressed against the judgment of the Shariat Court dated 08.04.2010, whereby, while accepting the appeal filed by the complainant, the convict-appellant, herein, Aftab Ahmed was convicted and sentenced to death as Hadd. Whereas, the rest of the appeals (supra) have been filed against the common judgment of the Shariat Court dated 19.11.2015, whereby, while partly accepting the appeals filed by the convict-appellants, Muhammad Javaid and Zaheer Ahmed, the death sentences awarded to them by the trial Court have been converted into the life imprisonment, the appeal filed by the complainant was dismissed and the reference sent by the trial Court was answered in negative.

2. The facts necessary for the disposal of instant appeals are that on 02.08.2003, at about 08:15 p.m., five dacoits while covering their faces with masks and armed with pistols and revolvers, barricaded the Samwal Chak Sagar road and started to stop the motorcyclists, pedestrians and the passing by vehicles. They robed the valuable belongings of the victims and made them hostages. Meanwhile, Ch. Muhammad Din who at that time was District Councillor of the area, was informed about the on-going occurrence. Ch. Muhammad Din along with Qamar Sajjad, Ramzan and others reached at the place of occurrence. Muhammad Din (deceased) left his vehicle and tried to catch hold of the dacoits/convicts. All the dacoits started reckless firing at Muhammad Din (deceased). Some bullets fired by them hit he deceased on his body and he fell down. He was taken to the hospital but in the way he succumbed to the injuries. The occurrence was witnessed by Qamar Mehmood, Sajjad and other victims of the incident. During the whole incident, one of the dacoits also sustained injuries. On this report, a case in the offences under sections 302, 341, A.P.C. read with section 17(3)(4) of The Offences Against Property (Enforcement of Hudood) Act, 1985 was registered against the convict-appellants. After registration of the case, the police conducted investigation and arrested convict-appellants, Zaheer Ahmed and Aftab Ahmed. On 10.12.2003, a chollan was presented in the District Court of Criminal Jurisdiction, Mirpur. On 24.01.2004, the convict-appellants were examined under section 242, Cr.P.C., wherein they pleaded not guilty and opted for the trial of the case. The learned trial Court directed the prosecution to produce evidence in support of its case. The prosecution produced as many as 22 witnesses. After completion of prosecution evidence, the learned District Court of Criminal Jurisdiction entrusted the case to the learned Additional District Court of Criminal Jurisdiction, Mirpur. The Court concerned after hearing the parties sentenced the convict-appellants under section 396, A.P.C., to 10 years' each rigorous imprisonment and Rs.100,000/- each as fine and under section 341, APC, 1 year each simple imprisonment and Rs.500/- each as fine with a condition that in default of payment of fine they shall undergo a further sentence of 6 months each simple imprisonment. The convict-appellants, Aftab Ahmed and Muhammad Javed were also sentenced under sections 13 of the Arms Act, 1965 for 2 years' each' rigorous imprisonment and Rs.5000/- each as fine with a condition that in default of payment of fine they shall further undergo a sentence of 3 months' each, simple imprisonment, vide judgment dated 25.06.2008. Against the aforesaid judgment of the trial Court, appeals were preferred by the convict-appellants as the complainant before the Shariat Court. The learned Shariat Court vide consolidated judgment dated 08.04.2010, while accepting the appeal filed by the heirs of the deceased awarded death sentence as Hadd to the convict-appellants, upon which appeals were filed before this Court. This Court vide judgment dated 15.10.2012, remanded the case to the trial Court, Mirpur for recording the statements again under section 342, Cr.P.C. to the extent of convict-appellants, Muhammad Javed and Zaheer Ahmed. The trial Court after due process of law awarded the death sentence as Tazir and a fine of Rs.100,000/- each to the convict-appellants, Muhammad Javaid and Zaheer Ahmed and under section 341, A.P.C., 1 month each simple imprisonment and under sections 13 of the Arms Act, 2 years' each simple imprisonment and fine of Rs.10,000/- each. In case of non-payment of fine, further sentence of 6 months' each simple imprisonment was awarded. The convict-appellants were also ordered to pay Rs.10,00,000/- jointly (5 lac each) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. A reference was also sent by the trial Court to the learned Shariat Court for confirmation of the death sentences awarded to the convict-appellants. Against the aforesaid judgment, an appeal was filed by the convict-appellants before the Shariat Court. The learned Shariat Court remanded the case to the trial Court with the observations that as one of the members i.e. District & Sessions Judge, had already given his findings as member of the Court at that time as Additional District & Sessions Judge, therefore, it was not appropriate for him to record the findings once again, in the same matter. On this, the learned Court below again after hearing the parties awarded the death sentence as Tazir to the convict-appellant, Zaheer Ahmed and Muhammad Javed, under section 396, A.P.C, 1 month each simple imprisonment under section 341, A.P.C., 2 years' each simple imprisonment and a fine of Rs.10,000/- each under section 13 of the Arms Act with a condition that in case of non-payment of fine they shall undergo further imprisonment of 6 months' each and ordered for payment of Rs.500,000/- each under section 544-A, Cr.P.C. as compensation to be paid to the legal heirs of the deceased vide its judgment dated 24.09.2013. Feeling aggrieved, Muhammad Javaid and Zaheer Ahmed, convict-appellants, and the complainant filed separate appeals before the Shariat Court. The learned Shariat Court while partly accepting the appeals of convict-appellants modified the judgment of the trial Court while converting the death sentences into life imprisonment. The appeal filed by the heirs of the deceased was dismissed and the reference sent by the trial Court was answered in negative, hence, these appeals.

3. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the convict-appellants, Aftab Ahmed and Zaheer Ahmed, argued that the judgments of both the Courts below are based on misreading and non-reading of evidence. The prosecution failed to prove the case beyond reasonable doubt. He contended that the evidence brought on record by the prosecution is contradictory which cannot be made basis for conviction. Moreover, the convict-appellant were not nominated in the FIR, and later on, they were roped in the case on account of disinformation, suspicion and fake evidence. He contended that the crime weapon alleged to have been recovered on the pointation of the convict-appellant, Zaheer Ahmed, was not sent to the arms expert for examination. All the witnesses are interested. The FIR was lodged after due deliberation and preliminary investigation, particularly after the arrest of another accused alleged to have been involved in the incident. He further added that as per prosecution story, the convict-appellants were arrested on the pointation of another convict-appellant, Muhammad Javaid, whereas, the record shows that the convict-appellant, Aftab Ahmed was arrested on 05.03.2008 prior to the arrest of said convict-appellant who was arrested on 21.03.2008. In this way, the story established by the prosecution is unbelievable. He further contended that the convict-appellants are innocent and the investigating agency roped them in the case just to fill up the lacunas. He prayed for acquittal of the convict-appellants. He relied upon the case law reported as Tasawar Hussain v. The State and 9 others 2016 SCR 373.

4. Mr. Muhammad Reaz Alam, Advocate, who was appointed as counsel for the convict-appellant, Muhammad Javaid, by the Court as the convict shown his inability to engage a counsel, argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that it is a case of no evidence, but this fact has not taken into consideration by the Courts below. He submitted that FIR was lodged against unknown persons who had muffled their faces at the time of occurrence. No identification parade was conducted which is mandatory under law and the convict-appellant has falsely been implicated in the case by the police just to show the efficiency. He added that the prosecution failed to prove the case against the convict-appellant with cogent evidence. In continuation of the arguments, he submitted that the occurrence took place on 02.08.2003, whereas, the convict-appellant, Muhammad Javaid has been shown to be arrested on 21.08.2003. He added that as per ocular account the convict-appellant was apprehended by the people on the spot. In this way, the ocular account does not support the story established by the prosecution. He further added that a fake recovery of pistol alleged to have been made on the pointation of the convict-appellant after one month of the occurrence which has no evidentiary value in the eye of law. He contended that the record shows that the convict-appellant also become injured during the occurrence due to the firearm injury and he remained admitted in the hospital for treatment but: no such entry has been made in the daily diary of the policy which itself shows that the prosecution story is fabricated and invented one. He further contended that there are lot of improvements and padding in the case in hand which are fatal for the prosecution. He added that the facts narrated in the statements recorded under section 161, Cr.P.C. are different from the story established later on by the prosecution. He added that it is a case of bundle of doubts and in such like cases the conviction cannot be recorded. He further added that almost 13 years have been elapsed ant convict-appellant is behind the bars for an offence which he has not committed.

5. On the other hand, Sardar Muhammad Azam Khan, Advocate, the learned counsel for the complainant while opposing the arguments advanced by the learned counsel for the convict-appellants argued that prosecution 'fully proved the case through overwhelming evidence and the trial Court after appreciating the same rightly awarded the death penalties to the convict-appellants as it is settled law that once a murder case has been proved the normal penalty of death should be imposed. The learned Shariat Court while converting the death sentences into life imprisonment failed to adhere to the law on the subject. He added that one of the convict-appellants, Muhammad Javaid was apprehended by the people in the injured condition and on his disclosure the other convict-appellants were arrested. He added that admittedly the convict-appellants are belonging to the different cities of Pakistan and no explanation has come on the record as to why they came in the territory of Azad Jammu and Kashmir which itself shows that they came to the scene of occurrence for committing the offence of docaity. He further contended that the arrest of the convict-appellant, Muhammad Javaid has been incorporated in the record on 21.8.2003, due to the injury inflicted to him as he remained in the hospital from the date of occurrence. When the learned counsel was confronted whether any evidence is available on record to substantiate this version, he was unable to satisfy the Court in this regard. He added that there is no mala fide or of the complainant against the convict-appellants to falsely implicate them in the commission of offence. All the convict-appellants with the common intention participated in the occurrence and in the result of indiscriminate firing of the convict-appellants, one person was murdered. He further added that there was no need of identification parade as one of the convict-appellants, was apprehended at the spot by the people and on his disclosure the others were arrested. In such like situation, the identification parade remains to more a requirement of law. He lastly argued that the learned Shariat Court has committed a grave-illegality while converting the death sentences awarded by the trial Court into life imprisonment. He relied upon the cases reported as Shafqat Mehmood and others v. State 2011 SCMR 537 and Shafqat Hussain and others v. State through Advocate-General, Muzaffarabad and others 2012 PCr.LJ 718.

6. Raja Saadat All Kiani, Additional Advocate-General also adopted the arguments advanced by the learned counsel for the complainant.

7. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. According to the contents of FIR, on 02.08.2003, at about 8:15 p.m, 5 muffled faces, accused, armed with pistols and revolvers barricaded the Samwal Chak Sagar Road with the intention of dacoity/robbery. On the intervention of the complainant and others, the said persons started indiscriminate firing, in the result of which one, Ch. Muhammad Din, the uncle of the complainant, badly injured and later on succumbed to the injuries. The main contention of the learned counsel for the convict-appellants is that it is a case of no evidence and the convict-appellants have been falsely implicated. The perusal of the record reveals that in the case in hand the statements of as many as 22 witnesses were recorded out of whom there are 11 eyewitnesses of the occurrence. In the statements of eyewitnesses there is no contradiction regarding the time, manner and place of occurrence. The eyewitnesses are also consistent on the point that the convict-appellants are the persons who are involved in the commission of offence. It is an admitted fact that the eyewitnesses have no enmity or against the convict-appellants to falsely implicate them in the commission of offence as the convict-appellants are the residents of different cities of Pakistan and even the witnesses had not known to them prior to the occurrence. During the course of purgation, the witnesses have also been found Aadil. The recovery of looted article from the convict-appellants also supports the case of the prosecution. Thus, in such state of affairs, it cannot be said that the convict-appellant have been roped in the case falsely.

8. The argument of the learned counsel for the convict-appellants that the identification parade is mandatory requirement of law which has not been fulfilled in the instant case and in absence of that conviction cannot be recorded, is also not convincing in nature. It may be observed here that although it is a fault on the part of the investigating agency to not conduct the identification parade, however, it can be treated as an irregularity in the circumstances and the whole case cannot be smashed out on the basis of the same as the identification parade is not a substantive piece of evidence. Even otherwise, the eyewitnesses while recording their statements before the trial Court have identified the convict-appellants, therefore, in such circumstances the conviction can be recorded in absence of the identification parade. In this regard, the trial Court has rightly relied upon the case law reported as Dr. Javaid Akhtar v. The State [PLD 2007 SC 249], wherein it has been held that:- "It is settled principle of law that identification parade is not a legal requirement. If the eye-witnesses can identify the accused before the trial Court that is enough for conviction." In a case reported as Muhammad Tasleem and another v. The State and another [2014 SCR 893], this Court while dealing with the proposition observed as under:-- "

9. While attending next limb of the arguments that at the time of occurrence, the accused allegedly were muffled the faces, therefore, identification parade was necessary and in absence of that punishment cannot be sustained, it may be stated that from the record it reveals that while recording statement by Jawad Ayoub, the real son of the deceased has categorically stated that on the fateful day of occurrence before proceeding to Aghar Sharif, he visited his father, where he found sitting all the accused in the lawn of the college building and this fact has not been denied by the defence. It is further stated by the Jawad Ayoub, that when he reached the police station, he identified the accused who met him in the lawn of the college building. The relevant portion of his statement is reproduced as under:- In this state of affairs, when the accused were seen together before the occurrence, the identification parade was not the requirement of law as such the identification parade would lose its significance being not a corroborative piece of evidence. It is also spelt out from the record that before the trial Court some eyewitnesses also identified the articles looted from them by the convict-appellants. All these aspects of the case do not warrant to give the clean chit to the convict-appellant.

9. Keeping in view the circumstances of the case discussed hereinabove, we are of the considered view that it is not a case of acquittal, however, at the same time, there are strong mitigating circumstances available in the case in hand which also cannot be ignored lightly. In FIR, the report under section 173, Cr.P.C. and the statements recorded under section 161, Cr.P.C. it has not been mentioned that one of the convict-appellants, Muhammad Javaid was apprehended on the spot and on his disclosure the other convict-appellants were arrested. Whereas, later on, the prosecution established the case that the convict-appellants were muffled at the time of occurrence and they were traced out on the disclosure of the convict-appellant, Muhammad Javaid, who was apprehended on the spot in the injured condition by the people. After going through the relevant record it appears that the story established by the prosecution later on, is different from the story narrated in the FIR or in the statements recorded under section 161, Cr.P.C. In the record, the date of arrest of the convict-appellant, Muhammad Javaid has been shown as 21.08.2003, i.e. after 18 days of the occurrence. In this regard, the explanation offered by the prosecution is that the convict-appellant was got injured during the occurrence and he remained in hospital all along during these days. It is very surprising aspect of the case, even no evidence, i.e. the medical report of the convict-appellant, in support of this explanation has been brought on the record. During the course of arguments when this position was confronted to the learned counsel for the complainant, he also failed to satisfy the Court in this regard. In the recovery memo, Exh.PG, it has been mentioned that the convict-appellant also fled away from the scene of occurrence along with his companions. The relevant portion of the said document read as under:-- The investigating officer while recording his statement has stated that the injury form ( ) of the convict-appellant, Muhammad Javaid was prepared and he was sent to the hospital for treatment. The relevant portion of the statement reads as under:- The investigating officer has categorically stated that an injury form was prepared but no such form is found part of the record. The eyewitnesses have also narrated the different stories in this regard. Some of the eyewitnesses stated that the convict-appellant fled away in injured condition and later on he was apprehended by the people from a considerable distance, whereas some of them stated that after receiving injury he fell on the ground and apprehended by the people. The complainant also stated in his statement that he did not know that the convict-appellant after receiving the injury fell down or succeeded to run away. The relevant portion of his statement reads as under:- The eyewitness, Abdul Khaliq, stated that the convict-appellant, Muhammad Javaid, after receiving the injury fled away and was apprehended two miles away from the place of occurrence. The relevant portion of his statement reads as under:- The eyewitness, Ashiq Hussain, stated otherwise that:- Moreover, nothing is mentioned in the record about the persons who apprehended the convict-appellant, Muhammad Javaid. The eyewitnesses stated before the Court that while recording the statements under section 161, Cr.P.C., they had disclosed this fact to the police that one of the convict-appellants, Muhammad Javaid has been apprehended by the people in an injured condition but the perusal of the statements under section 161, Cr.P.C. shows that this version of the eyewitnesses has not been mentioned in the same. The recovery of revolver on the pointation of the convict-appellant, Muhammad Javaid has also been made after a considerable delay which cannot be relied upon safely. In spite of serious lapses and dishonesty on the part of the investigating agency discussed hereinabove, the involvement of the convict-appellant cannot be ruled out lightly as has been stated in the preceding paragraph. We have already concluded that it is not a case of acquittal but at the same time, in our view the convict-appellants do not deserve for the normal penalty of death or life imprisonment as the standard of evidence required for awarding such penalties is missing in the case in hand. Keeping in view the evidence available on record against the convict-appellants and the mitigation discussed hereinabove, we are of the view that it is a case of lesser punishment. It may be observed here that it is well settled principle of law that the illegality/irregularity in the investigation cannot affect the trial as well as the result of the case, unless such an illegality which results into grave miscarriage of justice. In the case in hand, the illegality, committed by the investigating agency clearly amounts to grave-miscarriage of justice. Reliance may be placed on a case reported as Sheraz Asghar v. The State [1995 SCMR 1365], wherein it has been held that:- "Besides, any irregularity committed during the investigation of case would neither affect the trial of the case nor the judgment passed by the Courts. Unless it uproots the entire structure and entails to miscarriage of justice which is not in the instant case." The investigating agency has ruthlessly dealt with this case and committed serious lapses. It may be observed here that usually due to such lapses of investigating agency the real culprit succeeded to get the acquittal and the whole responsibility is put on the shoulders of the Courts who are bound to decide the cases on the strength of the evidence collected by the prosecution. In the case in hand, it appears that the investigating officer spoiled the case just to give undue benefit to the convict-appellants and such like officer do not deserve to remain in police force. This Court in a case reported as Muhammad Arshad v. Muhammad Mushtaq and 5 others [2004 MLD 1797] while dealing with the proposition held as under:

"Such a police officer who at the stake of life of one murdered person and the other one seriously injured, spoils the case of prosecution in order to give undue benefit to the accused persons, does not deserve to remain in police service; therefore, a copy of this judgment shall be sent to the President of Azad Jammu and Kashmir, Prime Minister, Azad Government of the State of Jammu and Kashmir and Inspector General of Police to take action against such irresponsible police officer."

10. In the case in hand, the role attributed to all the convict-appellants is the same. After discussing the case of the convict-appellant, Muhammad Javaid, there is no need to discuss the role of other two convict-appellants separately who are alleged to have been traced out and arrested on the disclosure of the convict-appellant, Muhammad Javaid. After thorough examination of the record, we have reached the conclusion that it is not a case of acquittal, moreover, the evidence collected by the prosecution is also not of such a standard on the basis of which the major penalty can be awarded, therefore, we intend to modify the impugned judgments and convert the sentence of death awarded to the convict-appellant, Aftab Ahmed and the sentences of life imprisonment awarded to the convict-appellants, Zaheer Ahmed and Muhammad Javaid, into the sentence already undergone. The impugned judgments to the extent of other sentences awarded by the trial Court and maintained by Shariat Court shall remain intact.

11. Resultantly, the appeals filed by the convict-appellants stands disposed of in the terms indicated above while the appeal filed by the complainant-appellants stands dismissed. Before parting with the judgment, we express our serious concern on the functioning of investigating officer in this case who with mala-fide intention which is apparent from the record, tried his best to extend the maximum benefit to the convict-appellants. Such like officers are required to be taken into task under law, therefore, the office is directed to transmit the copy of this judgment to the Chief Secretary and Inspector General Police to look into the conduct of the investigating officer and hold an inquiry through some independent/honest senior officer not below the rank of DIG to fix, the liability to the delinquent police officer. If he is found guilty of defective investigation, he shall be proceeded against under the relevant law. The compliance should be made within a period of two months from the communication of the judgment and outcome of the inquiry will also be communicated to this Court through Additional Registrar Branch Registry, Mirpur. HBT/40/SC(AJ&K) Sentence reduced.