2025 PLP 1685 (MLD)

Raja Ghazanfar Ali Khan, J.

Through this single judgment, we intend to dispose of Criminal Appeal No.4189 of 2024, filed by Shahid Mahmood alias Demo, appellant against his conviction and sentence along with Murder Reference No.323 of 2023 transmitted by learned trial court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 15.12.2023 passed by learned Additional Sessions Judge Nankana Sahib in case FIR No.274/2018 dated 29.08.2018 in respect of offences under sections 302, 396, P.P.C. read with Section 7 of the Anti Terrorism Act, 1997 registered at Police Station Syedwala, District Nankana Sahib whereby, after conclusion of trial in the said case, he convicted the appellant as under:- i) Under section 302(b), P.P.C.: sentenced to death for Qatl-i-amd of Zafar Ullah. He was also ordered to pay compensation under section 544-A, Cr.P.C in the sum of Rs.200,000/- to the legal heirs of the deceased, failing which he was ordered to further undergo S.I for 6 months. ii) 302(b), P.P.C.: sentenced to death for Qatl-i-amd of Umar Hayat. He was also ordered to pay compensation under section 544-A, Cr.P.C in the sum of Rs.200,000/- to the legal heirs of the deceased, failing which he was ordered to further undergo S.I for 6 months. iii) Under section 396, P.P.C.: sentenced to death for committing dacoity with murder of Zafar Ullah. He was also ordered to pay compensation under section 544-A, Cr.P.C in the sum of Rs.100,000/- to the legal heirs of the deceased, failing which he was ordered to further undergo S.I for 6 months. All the sentences of imprisonment were ordered to run concurrently.

2. The prosecution case, as unfolded through the FIR (Ex.PM), lodged by Basharat Ahmad complainant, is that on 29.08.2018, at about 06:00 PM, he was present in his jewelry shop along with his son Muhammad Zafar Ullah, Abdul Salam, Ghulam Sabir, and security guard Ghulam Rasool, when 6 or 7 unknown armed persons, riding on three motorcycles (Honda 125, United 70 CC, and Honda 70 CC), arrived. Two of them were carrying Kalashnikovs, one was armed with a pistol and a hand grenade, while two others had .12-bore repeaters. The intruders pointed their weapons, issued threats to kill, and forcibly entered the shop. They looted around 200 tolas of gold (including 150 tolas new and 50 tolas old), 900 tolas of silver, Rs. 6,15,000 from the almirah and Rs. 3,20,000/- from the counter. One of the assailants gave a blow with butt of pistol on head of Ghulam Rasool and snatched his weapon. When Zafar Ullah resisted, one of the accused fired three straight shots hitting him in the chest, neck, and right cheek, causing him to fall on the ground. The culprits then resorted to indiscriminate firing. While fleeing, a bullet struck a passerby Umar Hayat in the chest near the heart, who died on the spot. His companion Abdul Hafeez narrowly escaped. Zafar Ullah succumbed to his injuries on the way to the hospital. The accused fled away from the scene while firing.

3. Initially, the FIR was lodged against unknown persons. During investigation, Muhammad Nawaz alias Bhalli, an injured co-accused, was arrested. He allegedly disclosed the names of his companions including Shahid Mahmood alias Demo appellant, who was arrested on 05.03.2020 and subsequently identified in an identification parade conducted on 30.04.2020. The recovery of a Kalashnikov with three bullets was also shown to have been effected at his instance on 11.05.2020. After finalization of investigation, report under Section 173, Cr.P.C. was submitted in the trial court. Then the appellant was charge sheeted, who pleaded not guilty and claimed for trial.

4. The prosecution, in support of its case, examined 24 witnesses in total. Among them, Ghulam Sabir (PW.3) and Abdul Salam (PW.8) were eye-witnesses of the occurrence allegedly took place inside the shop, whereas Abdul Hafeez (PW.5) and Muhammad Ilyas (PW-6) were present at the time of occurrence, which happened in the bazaar resulting in the death of passerby Umar Hayat. The investigating officers, namely Muhammad Boota SI (PW-15), Azmat Ali Inspector (PW-17) and Muhammad Hayat DSP (PW-23), detailed the sequence of investigation including recovery memos, site plans, and statements of the accused. Rehan-ul-Hassan, Magistrate (PW-11), supervised the identification parade of the appellant. Dr.Faraz Ahmad Bhatti (PW-12) conducted postmortem examination on the dead body of Umar Hayat (deceased) whereas, Dr.Usman Riaz Qadeer Maan (PW.13) conducted autopsy of Muhammad Zafar Ullah. The prosecution also produced documentary evidence including postmortem reports, inquest reports, recovery memos of alleged looted property and weapons of offence, crime scene reports of PFSA, polygraph reports and fingerprint examination reports.

5. After close of the prosecution evidence, the appellant recorded his statement under section 342, Cr.P.C., denied all allegations, pleaded innocence, and claimed that the identification parade was tainted and that no recovery was ever effected at his instance. He also contended that he was not seen in the CCTV footage produced during the trial and alleged that the prosecution had manipulated evidence to falsely implicate him in order to show performance. However, the appellant neither opted to record his statement under Section 340(2), Cr.P.C. on oath nor produced any defence evidence.

6. Learned trial court found the ocular account consistent and corroborated by recovery, medical evidence, and identification parade. On such premises, conviction and sentences were recorded against the appellant through the impugned judgment, hence this appeal.

7. We have heard the arguments from both the sides and found it imperative to reappraise the entire evidence through the lens of settled principles of criminal jurisprudence.

8. It is a trite principle that in a case of capital charge, the prosecution must prove its case beyond reasonable doubt through cogent and convincing evidence. Mere suspicion, howsoever strong, cannot substitute legal proof. We proceed to examine the pillars on which the prosecution case rests, i.e., ocular account, identification parade, medical evidence and recovery.

9. The ocular account was furnished by Ghulam Sabir (PW-3) and Abdul Salam (PW-8), who were related to the deceased Zafar Ullah and complainant Basharat Ahmad. Admittedly, the appellant was not nominated in the FIR. It was after the arrest of Muhammad Nawaz alias Bhalli, an injured co-accused, who was apprehended on the same night and upon his disclosure the present appellant was nominated in this case. It is settled principle of law that statement of accused cannot be used against his co-accused because the same is inadmissible in the eye of law. Reliance is placed upon the following case laws titled as "Shabiul Hassan v. The State" (PLD 1991 SC 898) and "Shafqat Abbas and another v. The State" (2007 SCMR 162).

10. We have further observed that the incident took place on 29.08.2018, but the identification parade was conducted after more than 20 months on 30.04.2020. No explanation has been offered for this considerable delay. The august Supreme Court of Pakistan in case reported as Mehboob Hassan v. Akhtar Islam (2024 SCMR 757) while dilating upon delayed conducting of identification parade held as under:- "The identification was conducted after a lapse of more than two years of the occurrence, therefore, it is hard to believe that the witnesses could still have momentary glimpse of the respondents." Similarly, no features of the appellant and his co-accused have been described in the crime report as well as statements of PWs under section 161, Cr.P.C. In this way, identification parade has no legal worth. Reference can be made to the case law reported as "Javed Khan alias Bacha and another v. The State and another" (2017 SCMR 524) wherein the august Supreme Court of Pakistan held as under:- "

8. The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits." Further reliance can be placed on the case law reported as "Sabir Ali alias Fauji v. The State (2011 SCMR 563). Moreover, according to the prosecution's case when the appellant has already been nominated by his co-accused Muhammad Nawaz alias Bhalli, then subsequent identification parade lost its significance.

11. It is also worth mentioning here that the said identification parade was never put to the appellant in his statement under section 342, Cr.P.C. It is settled law that if any piece of prosecution evidence, which has not been put to accused in his statement under section 342, Cr.P.C does not have any legal sanctity. Reliance in this regard is placed on the case titled as "Muhammad Shah v. The State" (2010 SCMR 1009), the relevant excerpt thereof is reproduced hereunder:- "It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."

12. As regards medical evidence, both deceased Zafar Ullah and Umar Hayat were found to have died due to firearm injuries. In the present case, no specific role of inflicting the injuries on the body of any deceased has been attributed to the appellant, thus the medical evidence does not support to his extent. In fact, the allegation of firing was levelled against co-accused Muhammad Nawaz. It is settled by now that the medical evidence is only a corroborative piece of evidence which can tell about nature of injuries, the kind of weapon used etc. but cannot identify the culprit. Guidance in this regard can be sought from the case law reported as "Hashim Qasim and another v. The State" (2017 SCMR 986) wherein the Supreme Court of Pakistan has held as under:- "The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."

13. Another piece of evidence on the basis of which the conviction of the appellant was recorded is the recovery of Kalashnikov (P.15) along with three live bullets, allegedly effected from a "ghair abad dhari" (abandoned house) and taken into possession vide recovery memo. Exh.PJ. To prove the said recovery, the prosecution produced the attesting witnesses of Exh.PJ, namely Ghulam Sabir (PW-3) and Abdul Salam (PW-8). However, the said recovery is totally inconsequential in proving the guilt of the appellant for multiple reasons. Firstly, no crime empty was sent to the Punjab Forensic Science Agency (PFSA) for matching with the recovered Kalashnikov (P.15). The absence of such forensic linkage renders the recovery a disjointed event, unconnected with the actual offence in question. It is now firmly established that mere recovery of a weapon cannot by itself be treated as incriminating unless it is corroborated through forensic comparison with crime empties. Reliance in this regard is placed on the case titled Nasir Ahmed v. The State (2023 SCMR 478), wherein it was held that in the absence of forensic examination linking the recovered weapon of offence, the recovery of the same cannot be given probative value. Secondly, the prosecution failed to prove that the abandoned house from which the Kalashnikov allegedly recovered was in the exclusive possession of the appellant. The site plan prepared by the investigating officer did not establish such exclusive dominion. Nor was there any other circumstantial evidence to connect the place of recovery with the appellant personally. The principle that recovery must be from the conscious and exclusive possession of the accused has been emphasized by the august Supreme Court of Pakistan in case of "Arshad Khan v. The State (2017 SCMR 564) wherein it is held that recoveries effected from open or unoccupied places, or from places not shown to be in exclusive possession of the accused, carry little evidentiary value. Thirdly, the recovery was witnessed and attested only by prosecution witnesses who were related to the complainant and deceased. Therefore, the recovery of Kalashnikov (P.15) along with three live bullets neither meets the requirements of credibility nor fulfills the legal criteria of relevance. The learned trial court erred in giving undue significance to this piece of evidence while convicting the appellant.

14. The prosecution, in our considered view, has miserably failed to prove the guilt of the appellant beyond reasonable doubt. As repeatedly enunciated by the superior courts in a chain of cases including "Tariq Pervez v. The State" (1995 SCMR 1345), "Ayub Masih v. The State" (PLD 2002 SC 1048) and "Sikandar Ali alias Bhola v. The State" (2025 SCMR 552), the benefit of doubt, however, slight, arising from any infirmity in the prosecution case must always go to the accused. It is not simply a procedural requirement; rather it serves as a crucial protection within the criminal justice system that helps preventing wrongful convictions.

15. Resultantly, we allow Criminal Appeal No.4189 of 2024, set-aside the conviction and sentences awarded to Shahid Mahmood alias Demo (appellant), who is in judicial custody and be released forthwith, if not required to be detained in any other criminal case. Murder Reference No. 323 of 2023 is answered in the NEGATIVE and death sentence awarded to Shahid Mahmood alias Demo is NOT CONFIRMED. JK/S-41/L Appeal allowed.