2017 P Cr (PLP)

MIRZA VIQAS RAUF, J.

By way of this single .judgment, we intend to decide the instant appeal as well connected Crl. Appeal No.2117 of 2012 filed by the appellants namely Sarfraz alias Safri and Muhammad Akhtar and another respectively, Crl. Revision No.143 of 2013 filed by the complainant seeking enhancement of sentence and Murder Reference No.16 of 2013 submitted by the Additional Sessions Judge, Sheikhupura for confirmation or otherwise of death sentence awarded to the appellant Sarfraz alias Safri in terms of section 374 of The Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C.").

2. The appellant Sarfraz alias Safri along with Muhammad Akhtar and Muhammad Shahid (appellants in Crl. No.2117/2012) and Sana Ullah alias Sani was tried in case FIR No.536 dated 12th of August, 2010, registered under sections 302/324/353/186/412/148/149 of The Pakistan Penal Code, 1860 (hereinafter referred as "P.P.C.") at Police Station, Sharqpur Sharif on the allegations embodied in the statement of Muhammad Yousaf, S.I/complainant, who appeared as PW-9 and stated as under:- "On 12.08.10, I was posted at P.S. Sharqpur. I was on patrolling duty on Sheikhupura Sharqpur road from 12.00 mid night till 6.00 a.m. I was present at the time of occurrence at Marh Bhangooan at about 1.00/1.30 a.m. night. I received a wireless call that a Dhalla (Vehicle) had been snatched in dacoity from Char Chak Risala near Jadool Poultry Farm and dacoits were going towards Sharqpur road. Near Marh Bhangwan bridge Canal Dhalla crossed us we tried to stop it, but dacoits crossed us and turned to Mehadavi road. We chased them. When the Dhalla crossed bridge of Mehadavi road, then returned on western side on the bank of Canal. After covering short distance Dhalla was stopped and dacoits started towards police. Police tried to circle the accused/dacoit. But in the meanwhile from the firing of dacoit one fire hit to Ali Ahmad Constable on his forehead. The dacoits while running away from the place of occurrence also injured the Driver of Dhalla by firing. We caught red handed two accused after efforts and got recovered Pistol .30 bore. The accused who were apprehended by us one was Shahid and the other was Akhtar. Other accused succeeded to run away from the place of occurrence. The fire was made by Sarfraz alias Safri accused to Ali Ahmad Constable. I collected crime empties .44 bore rifle from the place of occurrence P-5/1-5 and crime empties of 30 bore Pistol P-6/1-11 through recovery Memo Ex.PF, which was prepared by me. I also took into possession blood stained earth through recovery Memo Ex.PE. The recoveries of Pistol P-7 from the accused were taken into possession through recovery memo Ex.PH along with 4/5 live bullets P-8/1-3 which were taken into possession. I, prepared complaint Ex.PR. which was sent to P.S. through Zulfiqar 1085/C for registration of FIR. And injured were sent to Hospital and efforts were made for arrest of other accused persons. I prepared unscaled site plan Ex.PS. I recorded the statements of witnesses under section 161, Cr.P.C. and prepared injury statement Ali Ahmed Ex.PT. On the same day Sohail 1496/C came to me and informed that Ali Ahmad Constable had expired and he handed over rupt No.9 to me. I along with Police officials went to Mayo Hospital, Lahore, received dead body, prepared application for postmortem Ex.PU, Inquest report Ex.PN. Dead body was sent to T.H.Q. Hospital. Muridkey through Zulfiqar Ali and Sohail Constables for autopsy and also prepared complaint under section 13/XX/65, A.O. against accused and recorded the statements of witnesses under section 161, Cr.P.C. constable Zulfiqar came back after post mortem, offence under section 302, P.P.C. was added. On the next date arrested accused were produced before Magistrate and three days remand was obtained and on the same day I was transferred." After formal investigation, a report under section 173 of "Cr.P.C." was submitted before the learned Additional Sessions Judge, Sheikhupura wherein the appellant was placed in column No.3 along with co-appellants and Sana Ullah alias Sani whereas two other co-accused Zafar Iqbal alias Zafri and Shafqat were placed in column No.2, who were never summoned by the learned trial Court. While taking cognizance of the case, the learned trial Court framed the charge against the appellants and his co-accused to which they pleaded not guilty and claimed trial.

3. The prosecution produced as many as fifteen witnesses and also tendered certain documents in order to bring home guilt of the accused named in the report under section 173 of "Cr.P.C.". After completion of prosecution evidence, the statements of accused were recorded under section 342 of "Cr.P.C.". The appellant Muhammad Shahid produced three witnesses in his defence, however, none of the appellants opted to record their statements under section 340(2) of "Cr.P.C.".

4. On conclusion of evidence and hearing both the sides, the learned trial Court, while acquitting accused Sana Ullah alias Sani convicted the appellants in the following manner:- (i) Sarfraz alias Safri (appellant) was convicted under section 302(b)/34, of P.P.C. and sentenced to death as Tazir. He be hanged by neck till he is dead. This sentence shall be enforced subject to the confirmation by Hon'ble High Court, Lahore. Convict shall also be liable to pay an amount of Rs.1,00,000/- as compensation under section 544-A of Cr.P.C. to the legal heirs of deceased which if not paid convict shall further undergo for six months' S.I. He was also convicted under section 324/34, P.P.C. as Tazir and sentenced to five years' R.I. He shall also pay fine of Rs.15000/- which will be paid to Attique-ur-Rehman injured. In case of non-payment of fine, convict shall further undergo for two months' S.I. He was Also convicted under section 353/34, P.P.C. and sentenced to six months' R.I. He was also convicted under section 186/34 and sentenced for one month R.I. (ii) Muhammad Akhtar (appellant) was convicted under section 302/34 of P.P.C. as Tazir and awarded imprisonment for life. He shall also be liable to pay an amount of Rs.1,00 000/- as compensation under section 544-A of Cr.P.C. to the legal heirs of deceased which if not paid convict shall further undergo for six months' SI. He was also convicted under section 324/34, P.P.C. as Tazir and sentenced to five years' R.I. He shall also pay fine of Rs.15000/- which will be paid to Attique-ur-Rehman injured. In case of non-payment of fine, convict shall further undergo for two months' S.I. He was also convicted under section 353/34, P.P.C. and sentenced to six months' R.I. He was also convicted under section 186/34 and sentenced for one month R.I. (iii) Muhammad Shahid (appellant) was convicted under section 302/34 of P.P.C. as Tazir and awarded imprisonment for life. He shall also be liable to pay an amount of Rs. 1,00,000/- as compensation under section 544-A of Cr.P.C. to the legal heirs of deceased which if not paid convict shall further undergo for six months' S.I. He was also convicted under section 324/34, P.P.C. as Tazir and sentenced to five years' R.I. He shall also pay fine of Rs.15000/- which will be paid to Attique-ur-Rehman injured. In case of non-payment of fine, convict shall further undergo for two months' S.I. he was also convicted under section 353/34, P.P.C. and sentenced to six months' R.I. He was also convicted under section 186/34 and sentenced for one month R.I.

5. Mr. Usman Naseem Advocate representing the appellant Sarfraz alias Safri, while assailing the vires of impugned judgment contended that in view of serious discrepancies in the statements of the prosecution witnesses, the conviction of the appellant is not sustainable. In support of his contentions, he took us to the various documents available on the record including crime report (Exhibit-PR/1) and postmortem report (Exhibit-PP). Learned counsel submitted that evidence of the prosecution was not trustworthy and no implicit reliance can be placed on such weak evidence for awarding maximum penalty of death. Learned counsel maintained that identification of the appellant remained shrouded in mystery but this aspect has been completely ignored by the learned trial Court, while forming the opinion of guilt about the appellant. Learned counsel argued that the alleged occurrence took place at about midnight and prosecution withheld the material evidence which renders the impugned judgment nullity in the eye of law.

6. Mr. Imtiaz Hussain Bhatti, Advocate appearing on behalf of appellants in Crl. Appeal No.2117/2012, while adding to the submissions made by learned counsel for the co-appellant submitted that Sana Ullah alias Sani having similar role was acquitted by the learned trial Court and there was no occasion to record conviction of the appellants on the basis of same evidence. Learned counsel emphasized that no direct evidence is available with the prosecution and witnesses produced by the prosecution are highly un-believable and the judgment of conviction cannot sustain.

7. Learned Deputy District Public Prosecutor assisted by learned counsel for the complainant, while controverting the arguments advanced by learned counsel for the appellants submitted that culpability of appellants have been established without any hint of doubt. He added that overwhelming evidence is available on record justifying the findings of conviction recorded by the learned trial Court.

8. On the other hand, learned counsel for the complainant in support of Crl. Revision No. 143/2013 contended that sentence awarded to the appellants Muhammad Akhtar and Muhammad Shahid is inadequate as compared to their criminal act.

9. We have heard learned counsel for both the sides as well as learned Prosecutor and also gone through the record with their assistance.

10. The alleged offence started on 11th of August, 2010, when Attique-ur-Rehman (PW-8) along with Babir Ali (not produced) at 11:00 p.m. was going to Jadool Poultry Farm and after covering distance of about 6/7 kilometers on the bank of Canal was stopped by 5/6 dacoits on the gun point. They snatched certain cash amount as well as Mobile from Babir Ali. They also stopped a Honda Car and continued process of looting the people for about 2.00/2-1/2 hours. It is in the statement of Attique-ur-Rehman (PW-8) that after spending 2-1/2 hours, the dacoits took him and Babir Ali with them on the pick-up back to the way from where they came. When they reached near Nagheena police post, Police Patrolling party signaled to stop them but as he was directed by one of the accused seated beside him, so he did not stop and accelerated. They were then chased by the police party and after covering a short distance, they were constrained to stop. The accused started firing towards the police as they were encircled but in the process one fire hit Ali Ahmed Constable on his forehead whereas he also sustained firearm injury in the said process. The appellants namely Muhammad Shahid and Muhammad Akhtar were allegedly caught red-handed at the spot along with their respective pistols .30 bore whereas rest of the accused, including Sarfraz alias Safri succeeded to flee away.

11. As there are specific allegations against the appellants, so it would be apt to deal with their cases separately. First of all, we would like to ponder upon the status of appellant Sarfraz alias Safri. The prosecution examined Adeel Atif (PW-3), Muhammad Arshad (PW-4), Atique-ur-Rehman (PW-8) and Muhammad Yousaf (PW-9) to bring home guilt of the accused. While analyzing their statements, we have observed that Adeel Atif (PW-3) did not utter even a single word about the appellant Sarfraz alias Safri. His name came into picture through the statement of Muhammad Arshad (PW-4) who stated as under:- "The arrested accused disclosed the names of accused who fled away from the spot as Shafqat, Sana Ullah, Zafar Iqbal and Sarfraz." It is quite obvious that the appellant Sarfraz alias Safri was previously not known to the prosecution witnesses, however, injured Attique-ur-Rehman (PW-8) and Muhammad Yousaf, complainant (PW-9) duly implicated the appellant in their examination-in-chief. We when analyzed their statements one by one, it appears that those are the outcome of padding and dishonest improvements. Attique-ur-Rehman (PW-8) though ascribed the role to the appellant of causing firearm injury to him as well as Ali Ahmed deceased but his stance vanished (luring the test of cross-examination. It is in the statement that he was joined with the investigation after 26/27 days of the occurrence when for the first time his statement was recorded by the Investigating Officer. The prosecution failed to bring on record any material that he was unable to record his statement during the said period. He was duly confronted with his statement from where it is established that he has introduced certain material facts which were not available in his statement before the police. Same was the position of Muhammad Yousaf (PW-9). From the statements of both these material witnesses, it is duly established that the appellant was having no acquaintance with them prior to the alleged crime. It is quite strange that FIR was chalked out on the same date wherein the appellant was specifically named as one of the accused. The appellant was arrested on 2nd of September, 2010 but admittedly no identification parade was arranged in order to affirm his identity. We have also noticed that medical evidence is not in line with the ocular account as the matter was reported at 03:45 a.m. whereas injured was medically examined on the same day at 02:00 a.m. by Dr. Muhammad Umar (PW-15). Reliance in this respect can be placed on "Nazir Ahmad v. Muhammad Iqbal and another" (2011 SCMR 527), "Sabir Ali and Fauji v. The State" (2011 SCMR 563), "Ghulam Shabbir Ahmed and another v. The State" (2011 SCMR 683) and "Muhammad Asghar alias Nannah and another v. The State" (2010 SCMR 1706).

12. It was a night occurrence and identity of the appellant remained in mystery. The prosecution did not examine Babir Ali who was accompanying Attique-ur-Rehman (PW-8) at the relevant time neither pick-up was produced to establish the happening of first episode. No plausible reason is shown by the prosecution about withholding of material witness. Thus negative inference in terms of Article 129(g) of The Qanun-e -Shahadat Order, 1984, can easily be drawn against the prosecution on account of non-examination of Babir Ali. Though it is the case of the prosecution that the accused had remained active in robbing the public at the first venue of occurrence for about 2-1/2 hours but no evidence is-available to this effect. We are thus of unanimous view that the prosecution has badly failed to prove the involvement of the appellant Sarfraz alias Safri in the alleged offence.

13. Now adverting to the case of appellants Muhammad Shahid and Muhammad Akhtar, it is observed that both these appellants have been shown to be arrested from the scene of occurrence but in view of serious dents in the prosecution evidence noted hereinabove, it appears that defense taken by the appellants is more plausible, especially when none of the appellants have been found guilty under section 392 of "P.P.C.". At the most, there is a charge of ineffective firing against the appellants which is even not proved by the prosecution. The recoveries in the shape of pistol .30 bore and empties are also not believable and same are inconsequential as those were sent to the laboratory on 4th of May, 2012 after lapse of almost two years as is evident from Exhibit-PZ.

14. In view of above discussions, we feel no hesitation to observe that evidence of the prosecution was highly insufficient and not at all worth of credence to sustain the conviction of the appellants. We thus, while extending the benefit of doubt acquit all the appellants from the charge against them, while allowing the instant appeal as well as connected criminal Appeal No.2117/2012; consequently, Murder Reference is answered in negative.

15. For the foregoing reasons, we did not find any substance in Crl. Revision No.143/2013 which is accordingly dismissed. JK/S-79/L Appeals allowed.