2016 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Asif Shah son of Sultan Shah, caste Syed, resident of House No.ZA/2371, Mahalla Safdarabad Pir Wadahi, Rawalpindi, appellant/convict, was involved in case FIR No.74, dated 17.03.2008, offence under section 302, P.P.C., registered at Police Station Pir Wadahi, Rawalpindi and was tried by Mr. Muhammad Tanveer Akbar, learned Additional Sessions Judge, Rawalpindi. The learned trial court seized with the matter in terms of judgment dated 31.07.2009 convicted the appellant under section 302(b), P.P.C., and sentenced him to death with direction to pay Rs.1,00,000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof to undergo S.I. for six months.

2. Being aggrieved by the judgment of the learned trial court, Asif Shah/appellant impugned the same through filing Crl. Appeal No.313 of 2009, whereas, for the confirmation of death sentence inflicted upon Asif Shah/convict, the learned trial court forwarded Murder Reference No.52/RWP of 2009. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through single judgment.

3. Prosecution story, in brief, as per contents of the crime report (Exh.PG) lodged on the complaint (Exh.PR) of Ahmed Khan son of Allah Ditta, caste Khokhar, resident of House No.2351, Mohalla Safdarabad Pirwadahi, Rawalpindi (PW-17)/complainant is that the complainant runs a snooker shop in Mohalla Safdar Abad. On 16.03.2008 at 10:30 p.m. the complainant along with his son Muhammad Imran was present at his shop when Asif Shah son of Sultan Shah came there and took Muhammad Imran son of the complainant with him. At 11:00 p.m. Umar Hayat son of Khizar Hayat approached the complainant and informed him that Imran was lying in an injured condition in street No.3 in front of house of Sher Bahadur. On receipt of information the complainant rushed towards the place of occurrence and saw that his son had already succumbed to the firearm injury inflicted upon his head. The complainant was on way to Police Station to report the matter when he met with Muhammad Sharif, S.I. (PW-13) who had reached there on receipt of information regarding the occurrence. He recorded the statement (Exh.PR) of the complainant and sent the same to Police Station through Shah Jahan 2635/C for registration of formal FIR. After registration of the case the investigation was entrusted to Mazhar Hussain, S.I. (PW-14), who in the company of police constables proceeded to the spot, inspected the place of occurrence and prepared rough site plan (Exh.PS). The Investigating Officer handed over the dead body to Khalid Pervaiz constable for escorting the same to autopsy. He also secured bloodstained earth from the place of occurrence vide recovery memo Exh.PD. At the time of spot inspection the Investigating Officer collected three crime empties of pistol .30-bore and made into sealed parcel vide recovery memo Exh.PC. After the post mortem examination last worn clothes of the deceased shalwar (P-1), qameez (P-2) and Azarband (P-3) were produced before the Investigating Officer, which he took into possession vide recovery memo Exh.PA. On 19.03.2008 the draftsman took rough notes of the place of occurrence and thereafter prepared scaled site plan, which was made part of the file as Exh.PB and Exh.PB/1. The Investigating Officer also recorded his statement under section 161, Cr.P.C. On 26.03.2008 the Investigating Officer arrested Asif Shah appellant and obtained his physical remand. During the course of investigation on 03.04.2008, the accused after making disclosure led to the recovery of pistol .30-bore (P-4) along with six live bullets (P-5 to P-10), which the Investigating Officer took into possession vide recovery memo Exh.PE attested by the PWs and their statements under section 161, Cr.P.C. were also recorded.

6. During the course of investigation, the Investigating Officer found the accused guilty and while placing his name in column No.3 submitted report under section 173, Cr.P.C, to the court of competent jurisdiction, which was en-routed through Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned Additional Sessions Judge, Rawalpindi vide order dated 01.07.2007, formally charge sheeted the accused to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as seventeen (17) prosecution witnesses.

7. Ahmed Khan (PW-17) is the complainant, as well as, witness of last seen. Khadim Hussain (PW-9) is the witness of waj-takkar, whereas, the accused had made extra-judicial confession before Muhammad Pervaiz. On presentation of complaint Zafar Iqbal, S.I. (PW-12) had chalked out formal FIR, whereas, Khurram Shehzad draftsman (PW-4) had prepared scaled site plan of the place of occurrence. The case was investigated by Mazahar Hussain, S.I. (PW-14). Dr. Hafiz Muhammad Qasim, CMO DHQ Hospital, Rawalpindi, (PW-16) had conducted post mortem examination upon the dead body of Imran deceased and found following injuries on his person:- "i. Lacerated fire arm wound 1 cm x 1 cm on left temporal area of skull 6 cm from left ear with inverted margin no blackening. ii. Fire arm exit wound 5 cm x 4 cm on right temporal area of skull with inverted margin. iii. Multiple abrasion on right side of forehead. iv. Two abrasions lateral to right eye. v. An abrasion on right side of nostril." After the postmortem examination, the doctor rendered the following opinion:- "In my opinion cause of death was injury to brain which is sufficient to cause death in ordinary course of life. All injuries ante mortem in nature. Injury Nos.1 and 2 were caused by fire arm. Rest by blunt weapon. PROBABLE TIME: I. Between injury and death. Immediate. II. Between death and post mortem. Within 9 hours." Statements of rest of the prosecution witnesses are formal in nature. Vide his statement recorded on 08.10.2008 the learned DDPP gave up Umar Hayat and Khizar Hayat, PWs, being unnecessary. On 23.07.2009 after tendering in evidence the report of Chemical Examiner (Exh.PV), report of Serologist (Exh.PW) and report of Forensic Science Laboratory (Exh.PX), learned DDPP closed the prosecution evidence.

8. After conclusion of the prosecution evidence, the appellant was also examined under section 342, Cr.P.C., wherein he opted neither to produce defence evidence nor to appear as his own witness in terms of section 340(2), Cr.P.C. in disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:- "the complainant party is an old criminal litigant party and are very greedy people. They booked me in this false case due to some domestic rivalries and for the huge amount which the complainant is asking for effecting compromise."

9. Learned trial court after evaluating the evidence available on record found the version of the prosecution proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore stated terms.

10. Learned counsel for the appellant while advancing his arguments submitted that there is no eye-witness of the occurrence and the whole prosecution case hinges upon circumstantial evidence without independent corroboration from other attending circumstances. Learned counsel further argued that the medical evidence is in contradiction with the occular account as while conducting post mortem examination Dr. Hafiz Muhammad Qasim (PW-16) observed injuries Nos.3 to 5 as result of blunt weapon whereas it is not the prosecution case that the accused was holding any blunt weapon. Learned counsel next contended that Muhammad Pervaiz (PW-11) is neither close relative of the complainant nor has any political importance, therefore, there was no fun with the appellant to have confessed before him. It was further contended that the story advanced by Ahmed Khan complainant (PW-17) with regard to lastly seen the deceased with the appellant does not find corroboration from any other independent source especially when it has also come in the evidence of the complainant that the accused had asked him to forbid the deceased not to visit their house then how he let his young lad to accompany the appellant at the odd hours of night. Learned counsel went on arguing that except in the statement of Nazir Ahmed (PW-10) it has not come on record that there was scuffle between the appellant and the deceased 8/9 hours before the unfortunate occurrence. Added that crime empties having been sent to the office of Forensic Science Laboratory after arrest of the appellant, the positive report in respect thereof does not carry any credence. Learned counsel lastly submitted that this is a case of no evidence, which squarely lacks sufficient incriminating evidence to convict any person on the capital charge, prosecution badly failed to prove its case against the appellant beyond shadow of reasonable doubt, therefore, he is entitled to be extended the benefit of doubt and thereby ultimate acquittal from the charge.

11. As against above, learned Law Officer vehemently opposed the contentions raised by learned counsel for the appellant with the submissions that nevertheless the occurrence was unseen, however, through leading cogent and confidence inspiring evidence in the shape of last seen, waj takkar, as well as, extra judicial confession, the prosecution proved its case to the hilt against the appellant, who undoubtedly is sole proprietor of the occurrence. He further submitted that the medical evidence is in line with the prosecution version. Learned Law Officer further argued that statements of Ahmed Khan (PW-17) with regard to last seen and Khadim Hussain (PW-9) straight appeal to reason and even Ahmed Khan/complainant being unfortunate father of the deceased had no ill-will to substitute the appellant in place of real culprits. It was urged that the crime empties collected by the Investigating Officer at the time of spot inspection were sent to the office of Forensic Science Laboratory, which matched with the pistol recovered on the pointing out of the appellant after his arrest. Moreover, the appellant was also found guilty during the course of investigation and his name was placed in column No.3 of the report prepared under section 173, Cr.P.C. Learned Law Officer finally submitted that the prosecution through leading cogent and trustworthy evidence has rightly proved its case against the appellant beyond shadow of reasonable doubt, therefore, learned trial court was well justified in passing conviction against him and inflicting sentence of death as he deprived the complainant family from their young lad.

12. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellant, as well as, learned Law Officer.

13. In the instant case one thing is admitted that the occurrence was unseen as it is not the prosecution case that anybody had witnessed the occurrence. Prosecution in order to substantiate its case adduced evidence in the shape of last seen, waj-takkar, extra judicial confession, medical evidence and over and above the recovery of pistol and its matching with the crime empties collected at the time of spot inspection. While appearing in the witness box Nazeer Ahmed (PW-10), who claims to have very close ties with the complainant party averred that on 16.03.2008 at 2:00 p.m. when he had proceeded to Pir Wadhai Adda to purchase some spare parts of a machine, he saw Imran deceased quarrelling with a young boy, whose name was subsequently disclosed as Asif Shah present appellant. It has also come in his evidence that after dismantling both the boys he had informed the complainant about the incident, however, during the course of cross-examination Ahmed Khan (PW-17)/complainant while replying to a specific question submitted as under:- "My deceased son had no dispute or quarrel with the accused prior to the instant occurrence." The first part of the statement of Ahmed Khan complainant is altogether on different footing where he had stated that nevertheless his deceased son was close friend of the appellant, however, the latter had complained the complainant to forbid his son not to visit their house as the appellant had suspected that the deceased had developed illicit relations with his sister. Moreover, it is also in the testimony of the complainant that he had asked his son not to visit the house of the appellant. If this version is taken to be true then what was fun with the complainant to have allowed his young son to accompany the appellant at the odd hours of night when nothing has come in his statement that the appellant had explained any urgency in this regard. Hence, when examined from every angle statements of Nazir Ahmed (PW-10) and Ahmed Khan (PW-17) contradict each other on salient features of the prosecution version. Even otherwise last seen evidence is, the weakest type of evidence, which as per settled principle of criminal justice, in isolation cannot be made basis for conviction of any person especially in a case of capital charge. Respect reliance in this regard is placed upon the ratio decidendi of august Supreme Court of Pakistan in the cases of Naqibullah and another v. The State (PLD 1978 SC 21), Muhammad Arshad v. Pervez and another (1997 SCMR 532) and Ibrahim and others v. The State (2009 SCMR 407).

14. Before recording our observations with regard to other aspects of the prosecution version i.e. waj-takkar, extra-judicial confession and recovery of pistol and positive report of Forensic Science Laboratory, we are inclined to discuss the medical evidence. Bare perusal of the crime report lodged on the statement of Ahmed Khan (PW 17)/complainant clearly reflects that the deceased had received one fire shot injury (one entry wound and one exit wound) at the hands of the appellant. Even during the course of trial the prosecution witnesses remained consistent with regard to one firearm injury on the head of the deceased and during the course of investigation only pistol was recovered on the pointing out of the appellant, however, while conducting post mortem examination, the doctor observed five injuries on the person of the deceased (two with firearm weapon and rest with blunt weapon). The doctor had further opined that:- "Injury Nos.1 and 2 were caused by fire arm. Rest by blunt weapon." When it is not the prosecution case that the accused had inflicted any blunt weapon injuries on the person of the deceased, it can safely be held that the medical evidence does not support the prosecution version, at all.

15. As far as statement of Khadim Hussain (PW-9), the witness of waj-takkar is concerned, admittedly he is closely related to the deceased being his maternal uncle (mamoon). Nevertheless he claims to have seen the appellant while fleeing away thereby holding pistol in his hand, however, presence of this prosecution witness, at the relevant time at odd hours of night could not be substantiated through any independent source in the shape of statement of the shop-keeper from where PW-9 had gone to purchase grocery. Muhammad Pervaiz (PW-11), the prosecution witness with regard to extra-judicial confession is neither prominent figure of the area nor he had any close ties with the complainant party, hence it does not appeal to reason that the appellant had opted to approach him; thereby confessing his guilt when PW-11 was not in a position to extend any help for his pardon. Hence, this aspect does not lend any support to the prosecution case, which even otherwise is standing on very weak footing.

16. Much has been emphasized by learned Law Officer that at the time of spot inspection the Investigating Officer had collected three crime empties from the place of occurrence, which were sent to the office of Forensic Science Laboratory along with pistol recovered on the pointing out of the appellant and its report in respect thereof (Exh.PX) is positive. However, nevertheless the Investigating Officer had collected crime empties on 16.03.2008, however, those were sent to the office of Forensic Science Laboratory on 28.03.2008 i.e. twelve days of the occurrence and two days after the arrest of the appellant, hence the same loses its evidentiary value. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Ali Sher and others v. The State (2008 SCMR 707); wherein it was held as under:- "

S. 302

Reappraisal of evidence

Sending of crime-empties

Delay

Crime empties allegedly found at the place of occurrence were retained in police station and were sent to Forensic Science Laboratory, along with the crime empties, 12 days after the recovery of alleged weapons

Effect

Delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the occular testimony." Even otherwise as per prosecution version the appellant had made single fire shot, whereas, the Investigating Officer had collected three crime empties, therefore, the prosecution version is at variance on this score.

17. Another important aspect of the case which cannot go unnoticed is that while lodging the crime report, the complainant had stated that Asif Shah appellant along with other unknown accused persons had committed the occurrence, whereas, neither during the course of investigation nor during the trial proceedings any person was brought on record, who had accompanied/facilitated the appellant during the occurrence.

18. It goes without saying that the whole prosecution case hinges upon circumstantial evidence. It is settled principle of law that to base conviction on circumstantial evidence there should be interlinking chain of credible and cogent corroborative evidence available on the record, which needless to mention is totally missing in this case. We are fortified in our view by dictum of law of the august Supreme Court of Pakistan in the case of Karamat Hussain v. The State (1972 SCMR 15).

19. From the perusal of the whole record there is no tangible/incriminating material available on file to connect the appellant with the commission of offence. It is established principle of law, which has been the practice of superior courts of the country that no one can be sent to gallows on the basis of conjectures and surmises. In the instant case the whole prosecution case is based upon circumstantial evidence. It is settled principle of law that in absence of any direct evidence circumstantial evidence should be beyond all doubts and the same must be in the shape of chain. Before the guilt of the accused can be inferred merely from inculpatory circumstances, those circumstances should be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The hands of this Court are tied and in absence of any cogent/direct material, it is unable to arrive at conclusion of guilt of accused. In the foregoing peculiar facts and circumstances, it seems that it was an unseen occurrence and unknown persons had committed the murder while the appellant was involved only on the basis of suspicion. It is settled principle of criminal justice that mere on the basis of suspicion innocent persons must not be convicted and punished. Moreover, the same has been discouraged by the superior courts of the country. In the case of Muhammad Sarfraz Khan v. The Crown (PLD 1953 FC 317), it has been held as under:- "Evidence

Court canvassing mere probabilities of case and arriving at conclusion of guilt of accused-- Disapproved

Judicial duty is to act on evidence duly admitted and tested according to recognized principles."

20. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellant to the hilt and the learned trial court was not justified in convicting the appellant while basing upon such weakest/uncorroborated evidence and conviction passed by the learned trial court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 31.07.2009, Crl. Appeal No.313/2009 filed by Asif Shah/appellant is ACCEPTED IN TOTO. Consequently, he is ordered to be acquitted of the charge in case FIR No.74, dated 17.03.2008, offence under section 302, P.P.C., registered at Police Station Pir Wadahi, Rawalpindi. He is directed to be released forthwith if not required in any other case.

21. As far as Murder Reference No.52/RWP of 2009 for confirmation of sentence of death inflicted upon Asif Shah/convict is concerned, the same fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED. HBT/A-75/L Appeal accepted.