2019 P Cr (PLP)

RAJA SHAHID MEHMOOD ABBASI, J.

Through this appeal under section 410, Cr.P.C. Muhammad Asghar appellant has called in question vires of the judgment dated 30.11.2015 handed down by learned Additional Sessions Judge, Arifwala, in case FIR No.271 dated 07.12.2012 registered under sections 302, 109, 34, P.P.C., at Police Station Ahmad Yar, District Pakpattan Sharif, whereby he was convicted under section 302(b), P.P.C. and was sentenced to imprisonment for life on the charge of committing murder of Faiz Farid deceased. He was directed to pay an amount of Rs.2,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof to further undergo 06-months' S.I. The benefit of section 382-B, Cr.P.C. was extended in his favour. However, learned trial court while extending the benefit of doubt, acquitted the co-accused Allahi Sain, Noor Ahmad and Muhammad Nawaz. The appellant has filed the instant appeal against his conviction and sentence whereas the complainant has filed Criminal Revision No.2113 of 2015 for the enhancement of sentence of the appellant. I intend to decide both matters through this single judgment.

2. Brief facts of the case as stated by Afzal Farid complainant (PW5) in FIR (Ex.PC/2) are that on 07.12.2012, his brother Faiz Farid who was a police employee, left his house from Balara Arjan to Qaboola Sharif on his motorcycle bearing registration No.SLO-1249. The complainant along with Ghulam Rasool and Ashiq Farid also followed him on their motorcycle. They were at a bit distance from Faiz Farid. At about 07:15 a.m. when the complainant party reached on the metalled road near the brick kiln in the area of Chak No.123/EB, two persons on a motorcycle overtook them and intercepted Faiz Farid. Both persons were of medium height but one of them was of heavy body while the other was of medium body. They took out their pistols, deboarded from the motorcycle and took Faiz Farid towards north and then the person with heavy body made a fire shot with his pistol .30 bore targeting left eye of Faiz Farid, while the fire shot made by the other accused person hit Faiz Farid at left flank and he fell down on the ground. Meanwhile, the complainant and his companions also reached there while witnessing the occurrence and seeing them, the accused persons decamped from the spot by riding on their motorcycle and went towards east, hence, the crime report.

3. The investigation of the case was entrusted to Ali Hassan S.I. and thereafter to Ghulam Hussain S.I. During investigation, Muhammad Asghar appellant was implicated in this case in place of one of the two unknown accused persons and after completion of investigation, the investigating officer challaned him along with his co-accused Muhammad Nawaz, Noor Ahmad and Allahi Sain to face the trial before the trial court.

4. Upon indictment, the accused pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as nineteen witnesses before the trial court, out of whom Afzal Farid complainant (PW5) and Ghulam Rasool (PW6) furnished ocular account. Muhammad Aslam, Magistrate Section-30 (PW17) supervised the identification parade in which Muhammad Asghar appellant was picked up by the witnesses as one of the culprits of offence. Ali Hassan S.I. (PW14) and Ghulam Hussain S.I. (PW 19) testified about various steps taken by them during the investigation of this case. Dr. Shahid Aziz (PW18) conducted autopsy on the dead body of Faiz Farid deceased and observed the following injuries:-

1. A lacerated wound of 1 cm x 1 cm x going deep with burnt inverted margin on back of head, left side 8 cm behind the left ear (entry wound).

2. A lacerated wound 3cm x 2cm x going deep with averted margins on left eye. Eye ball missing. (exit wound of injury No.1)

3. A lacerated wound of lcm x lcm x going deep with burnt inverted margins on left side of abdomen 8 cm above the left hip bone. (entry wound)

4. A lacerated wound of 2cm x 2cm x going deep with averted margins. 6 cm above the hip bone close to midline on the right side of abdomen (exit of injury No.3) According to the doctor (PW18), death in this case had occurred due to rupture of brain and spleen due to the above firearm injuries, which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was about 10-15 minutes while between death and postmortem was within seven hours. Ex.PL is the copy of postmortem report. The remaining prosecution witnesses, more or less, are formal in nature. After tendering in evidence the reports of Punjab Forensic Science Agency (Ex.PM and Ex.PN), the prosecution closed its evidence.

5. After completion of prosecution evidence, the accused recorded their statements under section 342, Cr.P.C. wherein they professed innocence and pleaded their false implication in the case. However, they did not opt to record their statements on oath under section 340(2), Cr.P.C. and also did not produce any witness in their defence.

6. At the culmination of trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, learned trial court found the prosecution's case against Muhammad Asghar appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.1 above, however, his co-accused Muhammad Nawaz, Noor Ahmad and Allahi Sain were acquitted of the charge by extending the benefit of doubt in their favour, hence, the instant appeal of Muhammad Asghar appellant and connected criminal revision of Afzal Farid petitioner/complainant fo r enhancement of sentence of Muhammad Asghar respondent before this Court.

7. Learned counsel for the appellant, in support of this appeal, contends that the judgment passed by learned trial court is against law, facts and material available on the file; that the appellant was not named in the FIR and he had been falsely roped in this case merely on the basis of suspicion; that the alleged eye-witnesses were not present at the spot at the time of occurrence and they were subsequent summoned by the police to become eye-witnesses in this case; that there are lot of discrepancies in the statements of prosecution witnesses, so the conviction and sentence of the appellant cannot be maintained; that the ocular account is in direct conflict with the medical evidence which not only dislodged the presence of alleged eye-witnesses at the spot at relevant time but also made them false and untrue witnesses; that the identification parade had been conducted in violation of the settled principles, rules and procedure and as such it carries no evidentiary value in the eyes of law; that the recovery allegedly effected from the appellant is highly doubtful and has been planted upon him just to strengthen the case of prosecution and the learned trial court has already held this piece of evidence as inconsequential against the appellant; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, his appeal may be accepted and he may be acquitted of the charge.

8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellant and contends that the matter was reported to the police without any element of deliberation and consultation; that by lodging FIR against unknown accused and by not straightway involving any innocent person in this case, the complainant had shown his bona fide; that after his arrest under section 54, Cr.P.C. the appellant put to the identification test, during which he was correctly picked up by the eye-witnesses as one of the two accused persons who had caused firearm injury on left flank of the deceased, that the ocular account is duly supported by medical evidence and is further corroborated by recovery of weapon of offence from the appellant as well as positive report of the Punjab Forensic Science Agency; that the complainant and the PWs had no enmity, ill-will or grudge against the appellant to falsely implicate him in this case of heinous nature and even otherwise; the defence has not brought on record any ulterior motive of the complainant side to falsely involve the appellant in the murder of Faiz Farid deceased; that substitution of real culprits in such like case is rare phenomena; that the prosecution case against the appellant stands proved from all corners, hence, prays that his appeal may be dismissed. While arguing in support of criminal revision, learned counsel for the petitioner/ complainant contends that the appellant is a hardened, dangerous and desperate criminal and is involved in innumerous criminal cases of murder, dacoity and robbery; that no mitigating circumstance was existing in favour of the appellant who was a paid murderer in this case, but even then learned trial court has taken a lenient view by awarding lesser sentence of life imprisonment to him; prays that the sentence of the appellant may be enhanced and he be awarded exemplary punishment.

9. I have given anxious hearing to the arguments advanced by learned counsel for the appellant, learned counsel for the complainant as well as learned Deputy Prosecutor General and have gone through the record with their able assistance.

10. In this sadistic incident, real brother of Afzal Farid complainant (PWS) namely Faiz Farid, who was a police official, was done to death when he was proceeding to join his duties, initially the allegation was levelled against two unknown accused persons. During investigation, the present appellant along with his co-accused Muhammad Nawaz, Noor Ahmad and Allahi Sain (since acquitted) had been implicated in this case, but the record of the case is absolutely silent as to how and what was the basis upon which appellant had been roped into this case as he was not named in the crime report (Ex.PC/2) in any capacity as an accused and even his descriptive features i.e. age and general appearance were not sufficiently explained therein. It was, however, mentioned in crime report (Ex.PC/2) that the incident in issue had been committed by two unknown accused persons of medium height, amongst whom one was of heavy while the other was of medium body structure. Subsequently Muhammad Asghar appellant was apprehended under section 54, Cr.P.C. being suspect of the case and was implicated in this case along with his co-accused Muhammad Nawaz (since acquitted) with the allegation that he (appellant) was the person of medium height and body structure who made fire-shot at left flank of Faiz Farid deceased, whereas description of co-accused Muhammad Nawaz (since acquitted) was given as medium height and heavy body structure with the role of causing firearm injury on left eye of the deceased.

11. In order to prove the said allegation against the appellant, the prosecution has mainly relied on the statements of Afzal Farid complainant (PW5) and Ghulam Rasool (PW6), identification parade of the appellant held under the supervision of Muhammad Aslam learned Judicial Magistrate Section-30 (PW17), medical evidence, recovery of weapon of offence coupled with the positive report of the Punjab Forensic Science Agency (Ex.PN) and lastly the evidence of motive, subsequently introduced during the investigation of the case, according to which the appellant and his co-accused Muhammad Nawaz were hired by co-accused Noor Ahmad and Allahi Sain in order to settle their personal scores. I would like to discuss these pieces of evidence turn by turn and firstly, I take up the ocular testimony of Afzal Farid complainant (PW5) and Ghulam Rasool (PW6).

12. A careful scrutiny of the record reveals that the occurrence in this case had taken place at the land owned by Rana Rizwan about twelve kilometers away from the residences of Afzal Farid complainant (PW5). and Ghulam Rasool (PW6). Both the eye-witnesses produced by the prosecution were very closely related to Faiz Farid deceased inasmuch as PW5 was real brother and PW6 was maternal uncle of the deceased. Both the said eye-witnesses were also chance witnesses as they had claimed to have witnessed the occurrence when they were going to the office of Patwari at Arifwala, but the very reason advanced by them would not appeal to any man of prudent mind as there would be no occasion to meet the said government official at such an early hours of the day when even his office was yet to open. The said eye-witnesses had, therefore, failed to establish any plausible reason for their availability near the place of occurrence at the relevant time. Reliance in this respect is placed on the cases of "Arshad Khan v. The State" (2017 SCMR 564) and "Nadeem alias Nanha alias Billa Sher v. The State" (2010 SCMR 949), wherein the apex Court, while discussing the evidentiary value of the statements of chance witnesses, has observed as below:- "The complainant PW4 and Muhammad Afzaal PW5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses." It is worthwhile to mention here that the said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive subsequently set by the complainant during the course of investigation had been brought on the record of the case. I have also noticed that Afzal Farid complainant (PW5) in crime report (Ex.PC/2) as well as in his statement before the trial court maintained that the assailants had made two fire shots targeting left flank and left eye of his deceased brother Faiz Farid, but according to medical history of the deceased, the firearm injury on his left eye was in fact an exit wound of injury on back of his head, which is attributed to Muhammad Nawaz co-accused (since acquitted) and this conflict between ocular and medical evidence is enough to dislodge the presence of so-called eye-witnesses at the crime scene and to hold that they were subsequently summoned by the police to become eye-witnesses in this case being real brother and maternal uncle of deceased, otherwise, had they been present there at the relevant time, they must have correctly described the seat of entry wounds on the person of the deceased. Besides, Afzal Farid complainant (PW5) while making dishonest improvements, deviated from his earlier statement which was confronted to him during the trial as under:- "...... I had made application to the police for naming of Muhammad Nawaz alias Jeli son of Muhammad Ali as accused of this case. I made this application for naming of the accused persons, 2-3 days after the murder of my brother. I had nominated only Nawaz alias Jail in that application. It is incorrect that in that application I had nominated Muhammad Azam, caste Malik of Chak No.98/9-L, as well. [Confronted with Ex. DA wherein name of Muhammad Azam caste Malik resident of Chak No.98/9-L, has also been mentioned. (subject to objection by the learned counsel for the complainant). I have not mentioned in the said application that I had already got arrested Asghar Ali alias Asghari and identified him during identification parade, (confronted so recorded in Ex.DA). I have submitted the said application to Ghulam Hussain S.I. (At this stage the application is removed from the police file and has been placed on judicial record)...... I had not got recorded in my application Ex.DB that I had got registered case FIR No.271-12 against two unknown persons and that from the registration of case till to date I along with the witnesses had been searching the real culprits. (Confronted with Ex.DB) where it is so recorded). I may observe here that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain reliable. While holding so I am fortified by the dictum of law laid down by Hon'ble Supreme Court of Pakistan in the cases reported as "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550), "Akhtar Ali and others v. The State" (2008 SCMR 6) and "Muhammad Rafique and others v. The State and others" (2010 SCMR 385), wherein the apex Court of the country has been pleased to observe as under:- "...... This Court in the case of Saeed Muhammad Shah v. State (1993 SCMR 550), observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State (2003 SCMR 1419), while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence". As far as the veracity of the deposition made by other so-called eye-witness namely Ghulam Rasool (PW6) is concerned, his testimony cannot be accounted for to maintain conviction and sentences of the appellant when he himself has stated in categorical terms that he never made any statement before the police during the course of investigation. Keeping in mind the above discussion, I am of the definite view that Afzal Farid complainant (PW5) and Ghulam Rasool (PW6) were not present at the spot at the time of occurrence, therefore, I am not inclined to place any reliance on their depositions against the appellant.

13. During arguments, learned counsel for the complainant has vehemently asserted that the appellant had been correctly identified by the witnesses during his identification parade. According to Ghulam Hussain S.I. (PW-19), Muhammad Asghar appellant was arrested by him on 13.02.2013 being suspect under section 54, Cr.P.C. and his identification parade was conducted on 20.02.2013 under the supervision of Muhammad Aslam, Judicial Magistrate Section-30 (PW17), but plain reading of the statement of Afzal Farid complainant (PW5) shows that the appellant was arrested by the police much earlier than the said date of his arrest and exposure of the appellant to the prosecution witnesses before his identification parade is also not free from doubts rather said identification parade has lost its evidentiary value. During cross-examination, Afzal Farid complainant (PW5) stated that he had submitted application (Ex.DA) before the investigating officer 2/3 days after the murder of his brother Faiz Farid deceased, whereby he nominated Muhammad Nawaz co-accused (since acquitted) and in that application, he (PW5) had categorically mentioned about the arrest and identification of Muhammad Asghar appellant. Meaning thereby, the appellant was already in the custody of the police within 2/3 days after the occurrence, but his arrest was not shown in papers. Even, otherwise, no feature of the assailant with regard to age, face and general appearance had been given by the complainant (PW5) in the crime report and Ghulam Rasool (PW6) in his statement under section 161, Cr.P.C., thus it is not readily believable that they would have correctly captured his fleeting features during the occurrence. It is well settled by now that the identification parade, to inspire confidence must be held at the earliest possible opportunity after the occurrence and further that a test identification where the possibility of the witness having seen the accused after his arrest cannot be ruled out, is worth nothing. Even otherwise identification parade is not a substantive piece of evidence rather is only a corroborative evidence which is not acceptable in absence of other independent evidence which is conspicuously missing in the instant case. Furthermore, possibility that police had shown the appellant to the witnesses prior to his identification parade as stated above cannot be ruled out, therefore, the proceedings of such identification parade carries no legal worth. Reliance is respectfully placed on the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in case of "Mah Gul v. The State" (2009 SCMR 4) and "Shafqat Mehmood and others v. The State" (2011 SCMR 537). In the latter case, the august Supreme Court has been pleased to observe as under:- "....It is also settled principle of law that picking out of accused in identification parade is not a substantive piece of evidence. Such evidence is merely corroborative piece of evidence."

14. Insofar as medical evidence is concerned, no doubt there is no conflict in the medical evidence and the ocular account to the extent of the appellant but it is by now well settled law that/medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103). In the absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance.

15. Although a report (Ex.PN) of the Punjab Forensic Science Agency was received in the positive in respect of matching of the firearm recovered from the appellant's custody with a crime-empty secured from the place of occurrence yet the prosecution miserably failed to prove safe transmission of crime-empties secured during spot inspection by withholding the evidence of Yameen constable who had allegedly deposited the crime empties in the office of said Agency, so this piece of evidence is of no avail to the prosecution and has rightly been discarded by learned trial court.

16. As a result of what has been discussed above, I have come to a definite conclusion that the prosecution remained unable to prove guilt of the appellant to the hilt beyond any shadow of doubt rather shadow of doubts is looming large in this case rendering the same smeared with dishonest and polluted evidence. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather single circumstance creating doubt is enough to extend benefit of same to the accused which too not as a matter of grace but as a matter of right. Reliance in this respect is placed on the cases of "Tariq Pervez v. The State" (1995 SCMR 1345) and "Muhammad Akram v. The State" (2009 SCMR 230). It is also golden principle of Islamic jurisprudence that it is better to acquit hundred guilty persons than to convict a single innocent person.

17. For the foregoing reasons, this appeal is accepted, the impugned judgment is set aside, conviction and sentence of the appellant are set aside. He is acquitted of the charge. He shall be released from the jail forthwith if not required in any other case.

18. In view of the above discussion, Criminal Revision No.2113 of 2015 filed by the complainant for enhancement of the sentence of the appellant having become infructuous is disposed of. JK/M-44/L Order accordingly.