2025 PLP 1448 (MLD)

Farooq Haider, J.

This single judgment will dispose of Crl. Appeal No.39118/2021 filed by Yasir Shaban (appellant) as well as Crl. Appeal No.40003-J/2021 filed through jail authorities by Ali Raza and Yasir Shaban (appellants) against their "conviction and sentences", Murder Reference No.152/2022 sent by trial court under Section 374, Cr.P.C. for confirmation of death sentence awarded to both appellants as all the matters have arisen out of one and the same judgment dated: 12.06.2021 passed by learned Additional Sessions Judge, Lahore/trial court.

2. Yasir Shaban and Ali Raza (appellants) were tried in case arising out of FIR No.2087, dated 04.11.2019, registered under Sections 394, 302, P.P.C at Police Station: Sabzazaar, Lahore and trial Court vide impugned judgment dated 12.06.2021, has convicted and sentenced both the appellants as under: - i) Under Section 302(b), P.P.C: 'Death' to each appellant as Ta'zir for committing Qatl-e-amd of Muhammad Rafique with payment of compensation Rs.7,00,000/- each under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further suffer S.I. for six months each. ii) Under Section 394, P.P.C: 'life imprisonment' to each appellant for voluntarily causing hurt to Muhammad Rafique (deceased) during commission of robbery and fine of Rs.50,000/- each and in default thereof to further suffer S.I. for six months each. Since appellant Yasir Shaban in Crl.A.No.40003-J/2021 has also filed Crl.Appeal No.39118/2021 through his privately engaged counsel, therefore, Crl.Appeal No.40003-J/21 filed through jail authorities to the extent of appellant Shaban has become superfluous/redundant and the same stands disposed of as such to his extent.

3. Primarily, Muhammad Shafiq (complainant/PW-8) set the machinery of law into motion by moving application (Ex.PB) regarding commission of robbery with his brother namely Muhammad Rafiq against two unknown accused to Zaigham Abbas T/SI (PW-1) in Jinnah Hospital, Lahore mentioning therein that he is resident of Dubban Pura, Lahore and has a shop of 'karyana' there; his brother Muhammad Rafiq was residing at 586-N Sabzazar and running 'Karyana' store with name and style of "Usman Super Store" N-block Makkah Chowk; on 04.11.2019 at about 12.40 AM (night) his brother Muhammad Rafique and his neighbourer Abdul Majeed son of Muhammad Anwar (PW-9) were closing shop, in the meantime, two unknown accused persons having slim/active body, wheatish complexion, ages 24/25 years and height 5 feet and 7/8 inches, who can be identified by him on appearance, while boarding on red colour United Motorcycle without number plate, came at store of his brother and attempted to commit robbery on gun point, upon resistance one accused who was armed with pistol fired straight shots upon Muhammad Rafique, out of which one fire shot hit on his belly, second fire shot hit on his left thigh and another fire hit him on his left knee who by receiving severe injuries fell on the ground and was taken to Jinnah Hospital through 1122; further mentioning that Muhammad Rafique and Abdul Majeed can identify the accused persons if they appear before them. On the basis of aforementioned application (Ex.PB), case was registered vide FIR No.2087/2019 (Ex.PH) on 04.11.2019 under Section 394, P.P.C. (subsequently, after death of Muhammad Rafique, offence under Section: 302, P.P.C was also added) at Police Station: Sabzazar, District Lahore.

4. After completion of investigation, challan report under Section: 173, Cr.P.C. was submitted against the appellants; they were formally charge sheeted but they pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; after recording of prosecution evidence, they were examined under Section 342, Cr.P.C. but they refuted the allegations levelled against them; they did not appear as their own witness under Section 340(2), Cr.P.C and also did not opt to produce defence evidence. Trial Court after conclusion of trial has convicted and sentenced the appellants as mentioned above through impugned judgment dated: 12.06.2021.

5. Learned counsel for the appellants have submitted that conviction recorded and sentence awarded to the appellants through impugned judgment are against the 'law and facts' of the case; ocular account is neither trustworthy nor corroborated by any other independent evidence; prosecution has remained unable to prove its case. Learned counsel for the appellants finally prayed for acquittal of the appellants.

6. Learned Deputy Prosecutor General and learned counsel for the complainant while supporting the impugned judgment submit that prosecution has proved its case beyond shadow of doubt against the appellants through cogent and reliable evidence and prayed for dismissal of the both appeals.

7. Arguments heard. Record perused.

8. It has been noticed that as per case of prosecution, occurrence took place on 04.11.2019 at 12.40 a.m. (night) whereas it was reported to the police on 04.11.2019 at 2.40 a.m. (night) in Jinnah Hospital, Lahore through written application (Exh.PB) submitted by Muhammad Shafiq complainant of the case/PW.8 (brother of Muhammad Rafiq deceased) which was sent to Police Station for registration of the case and ultimately crime report (FIR Exh.PH) was registered at 3.00 a.m. (night); as per application (Exh.PB), two unknown accused persons having slim and active body wheatish complexion, height 5 foot 7/8 inches and ages about 24/25 years (who can be identified on appearance), came on motorcycle, on gun point attempted for looting, however, on resistance, one of them, who was armed with pistol, fired straight shots at Muhammad Rafiq (brother of the complainant), due to which one shot hit on abdomen, second at left thigh and another shot hit at left knee, due to which Muhammad Rafique became severely injured who was sent to Jinnah Hospital through 1122. It is relevant to mention here that in application for registration of the case (Exh.PB) at one place it is mentioned that accused can be identified on further appearance by the complainant whereas at other place it is mentioned that brother of the complainant and Abdul Majeed (eye-witness/PW-9) can identify the accused. It is noteworthy here that it has not been expressly mentioned anywhere in application (Exh.PB) that complainant was also available at the place of occurrence at the relevant time. As column No.4 of the FIR (Exh.PH), place of occurrence was just about 01 K.M. from the concerned Police Station and as per statement of Abdul Majeed (PW-9) police arrived at the place of occurrence before arrival of 1122 and relevant portion of his statement is hereby reproduced:- "Police reached at the spot prior to the 1122. After reaching police, 1122 came there within 5-10 minutes." Now question does arise that if complainant (PW-8) was present at the relevant time on the place of occurrence and police reached before arrival of Rescue 1122, then why he did not make statement regarding occurrence to the police there and why police did not record his statement for registration of the case then and there; however, any plausible reason to explain said factor has not been brought on the record by the prosecution; it has been stated by the complainant in his statement before court that he was having Wagoner car then why he did not shift his brother Muhammad Rafiq (deceased) in injured condition immediately through his aforesaid car to the hospital; furthermore, in Medicolegal Examination Certificate of Muhammad Rafiq (Exh.PQ), there is nowhere mention that Muhammad Rafiq was accompanied at that time by the complainant or Abdul Majeed (eye-witness/PW-9). It goes without saying that perusal of aforementioned MLC of the deceased reveals that he was well oriented and vitally stable when he was examined in the hospital and he even signed and thumb-marked the Medico Legal Examination Certificate but name of complainant (PW-8) or Abdul Majeed (eye-witness/PW-9) as the persons accompanying him at the time of occurrence or in hospital having not been got mentioned by Muhammad Rafiq in the M.L.C. It is also relevant to mention here that complainant is brother of the deceased of the case and if he was present at the time of occurrence and tried to manage Muhammad Rafiq when he was in injured condition or tried to shift him in the Rescue 1122 van along with Abdul Majeed (eye-witness/PW-9) then their wearing clothes might have been stained with blood of the deceased but any such clothes have not been produced during investigation of this case. In this regard relevant portion of statement of Muhammad Shafiq (PW-8) is hereby reproduced:- "I lifted my brother in injured condition. I cannot tell whether Majeed lifted my brother or not. My clothes were smeared in blood while lifting my brother. I did not produce my clothes before local police." Neither complainant nor Abdul Majeed (eye-witness/PW-9) informed police about occurrence, complainant did not make call to 1122 and even complainant could not tell that whether Abdul Majeed (PW-9) made call to Rescue 1122 or not. In this regard, relevant portion of statement of complainant (PW-8) is hereby reproduced:- "I as well as Majeed did not inform local police about the occurrence. I also did not made call on 1122. I cannot tell whether Majeed made a call on 1122 or not". Availability of any source of light at the time of occurrence has not been mentioned in the application for registration of the case (Exh.PB) and though in site-plan (Exh.PJ) it has been got mentioned that light was available but any bulb or source of light has not been secured from there during investigation. Though complexion, height and stature of unknown accused persons was mentioned in application for registration of the case (Exh.PB) yet it is relevant to mention here that there might be so many persons having ages 24/25 years, height 5 foot 7/8 inches, wheatish complexion and active/slim body so on the basis of only these features, identification cannot be termed as conclusive rather it is well established that facial features of the unknown accused persons are mandatory to identify him on re-seeing along with other features i.e. height, complexion, age and stature etc (mentioned above) and in this case, facial features of both unknown accused persons were neither mentioned in application for registration of case (Exh.PB) nor during investigation or trial of the case. In this regard, relevant portion of statement of Mr. Aman Ullah Bhatti, learned Judicial Magistrate, Bhawana, District Chiniot (PW-14) is also reproduced as under:- "It is correct that when police file was perused by me, specific features of accused were not mentioned therein." Hence, identification of both accused persons during identification parade cannot be termed as of conclusive nature or having any judicial efficacy to be relied upon to prove the charge regarding offence which is punishable with death. In this regard, guidance has been sought from the case of "Noor Islam v. Ghani Ur Rehman and another" (2020 SCMR 310) and relevant portion from paragraph No.4 of said case law is hereby reproduced: - "

4. In this case, the police arrested several suspects and the only piece of evidence on which the two foras below relied, is the identification parade, conducted in the Central Jail where the appellant was identified however, beside being the weakest piece of evidence it loses its judicial efficacy because the face feature complexion etc. were not given in the report " (emphasis added) Furthermore, complainant/PW-8 conceded during statement before Court that he did not mention features of the accused who was driving motorcycle and features of the accused who was on rear seat and features of the accused who made fire shot; in this regard relevant portion from his statement is reproduced:- "I did not mention in my application the features of accused who was driving motorcycle and also the features of accused was on the rear seat. I did not mention in my application the features of that accused who made fire shot." "It is correct that at the time of identification parade, I did not tell the Judge that which accused was driving the motorcycle and which was sitting on rear seat." Resultantly, identification of both the appellants through test identification parade is of no helpful to the case of prosecution. Ocular account in this case comprises of Muhammad Shafiq (complainant/eye -witness/PW-8) and Abdul Majeed (eye-witness/PW-9), however, as per own case of prosecution, Muhammad Shafiq (PW-8) was neither resident of place of occurrence nor was having any business or job over there and he did not offer any valid reason to explain/show his arrival at the time of occurrence at the place of occurrence. In this regard, relevant portion of statement of Muhammad Shafiq (complainant/PW8) is hereby reproduced:- "I am a shop keeper. My shop is situated at 80 Feet Road, Tall Wali Gali in Dubban Pura, Lahore. My residence is situated in Tall Wali Gali, Dubban Pura, Lahore." "Place of occurrence is at a distance of 1-1/2 to 2 kilometers from my shop." Similarly, any shop or residential house of Abdul Majeed (PW-9) at or near the place of occurrence has not been mentioned in the scaled site-plan of the place of occurrence (Exh.PG/1) and relevant portion of statement of Muhammad Younas Bokhari, draftsman/PW-6 is hereby reproduced:- "It is correct that Abdul Majeed witness also did not tell me about shop owned by him." In above scenario, evidence of both aforementioned cited witnesses, who could not explain/establish any valid reason/cause regarding their stated presence at the stated time, at the place of occurrence, is "suspect" evidence and cannot be accepted without pinch of salt; guidance in this regard has been sought from the case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) and relevant portion from paragraph No.14 of said case law is hereby reproduced: - "

14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt." Further guidance on the subject has been sought from the case of "Muhammad Ashraf alias Acchu v. The State" (2019 SCMR 652), "Mst. Mir and another v. The State" (2020 SCMR 1850) and "Sarfraz and another v. The State" (2023 SCMR 670). It is also relevant to mention here that as per application for registration of the case (Exh.PB), Muhammad Rafiq (deceased of the case) was closing the shop when two unknown accused persons came to loot him on gun point and on resistance, one accused fired shot with pistol, thus, as per application (Exh.PB) Muhammad Rafiq received fire shot outside of his shop and the same fact has been mentioned in scaled site-plan of the place of occurrence (Exh.PG/1) which clearly shows that said place has been mentioned as point "A" and same is outside the shop and in this regard relevant portion of statement of Muhammad Younas Bokhari, Draftsman (PW-6) is hereby reproduced as under:- "Where the deceased received fire shot is situated outside the shop." But contrary to that, while making statement before trial court complainant Muhammad Shafiq (PW-8) introduced contradictions in this regard while mentioning that his brother was inside store; relevant portion of his statement is reproduced as under:- "My brother was inside the store whereas PW Majeed was outside the store." "At the time of occurrence, my deceased brother was inside the store." Similarly, Abdul Majeed (PW-9) also changed the venue/place of occurrence and introduced contradiction in this regard while making statement during trial of the case and he also introduced that Muhammad Rafique (deceased) was inside store at the time of occurrence; in this regard relevant portion from his statement is hereby reproduced:- "Muhammad Rafique was present inside the store and was closing shutter. One accused having pistol in his hand remained with us outside the store while the other accused went inside the store. Muhammad Rafique made resistance, upon which the accused standing with us opened fires upon Muhammad Rafique, which hit on belly, left thigh and knee of Muhammad Rafique, who fell down after sustaining injuries and accused persons fled away from the spot." Khan Hafeez, SI/Investigating Officer (PW-12) also deposed during his statement before Court that injured got fire shot outside the shop; relevant portion from his statement regarding place of occurrence is hereby reproduced:- "According to site plan, the complainant and PW informed me that injured got fire shot outside the shop. I secured blood from outside the shop." Hence, place of occurrence where the deceased received injuries was got changed from outside the shop to inside the shop and thus exact place of occurrence also could not be got established by the prosecution. It is relevant to mention here that Muhammad Shafiq (complainant/PW-8) deposed in his statement before Court that he came to know after 4/5 days about the fact of registration of FIR; in this regard relevant portion from his statement is reproduced as under:- "After 4/5 days, I became aware of the fact that the FIR has been registered." Similarly, PW-9/eye-witness also deposed during statement before Court that he came to know about registration of the case after some days of the occurrence and relevant portion from his statement is reproduced as under:- "I came to know about registration of FIR about some days of occurrence." When all the aforementioned factors are taken into consideration in totality then ocular account has not been found as confidence inspiring or trustworthy and hence, cannot be believed/relied upon. Though it was not mentioned in application for registration of case (Exh.PB) that one accused caught deceased and other made firing at him, however, during trial of the case, complainant Muhammad Shafiq (PW-8) stated that he identified 2nd accused and told to the judge that said accused caught hold his deceased brother; in this regard, relevant portion from his statement is hereby reproduced:- "It is correct that when I identified the second accused, I told to Judge that said accused caught hold my deceased brother." However, common prudent man does not accept that one accused will catch hold of the deceased and other will make firing upon deceased while taking risk of hitting of fire shots fired by him at his own companion i.e. co-accused who was catching hold the deceased.

9. So far as recovery of pistol from Ali Raza (appellant) is concerned, suffice it to say that empties secured from the place of occurrence were found as not having been fired from said pistol as per report of Punjab Forensic Science Agency (Exh.PX), therefore, said recovery is inconsequential and is of no helpful to the case of prosecution. Likewise, so far as recovery of motorcycle from the place of occurrence is concerned, suffice it to say that in the application for registration of the case (Exh.PB), leaving of motorcycle by accused persons at the place of occurrence was not mentioned and even said motorcycle was not having been found as registered in the name of any of the appellants and in this regard relevant portion from the statement of Khan Hafeez SI (PW-12) is hereby reproduced:- "It is correct that motorcycle which was taken into possession from place of occurrence is not registered in the name of both accused." Hence, the said recovery cannot provide any corroboration to the case of the prosecution.

10. As far as, medical evidence is concerned, same is a type of supporting nature evidence which can tell about nature, locale, size and duration of the injury but cannot tell about identity of the assailant and in this regard guidance has been sought from the case of "Muhammad Ramzan v. The State" (2025 SCMR 762), relevant portion from the case law is as under:- "It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant."

11. Nutshell of the above discussion is that prosecution has failed to prove its case against the appellants, therefore, there is no need to discuss defence version.

12. In view of what has been discussed above, Criminal Appeal No.39118/2021 filed by Yasir Shaban (appellant) and Criminal Appeal No.40003/2021 filed by Ali Raza (appellant) are allowed; convictions recorded and sentences awarded to the appellants through impugned judgment dated: 12.06.2021 are hereby set-aside. Both appellants are acquitted of the charge, they be released from jail forthwith, if not required in any other case.

12. Resultantly, death sentence awarded to both the appellants namely Yasir Shaban and Ali Raza is NOT CONFIRMED and Murder Reference (M.R. No.152 of 2022) is answered in NEGATIVE. JK/Y-/L Appeals allowed.