2012 PLP 428 (SCMR)

EJAZ AFZAL KHAN, J.

This appeal, by leave of this Court, has arisen out of the judgment of Division Bench of Lahore High Court dated 9-6-2009 passed in Criminal Appeal No.477-T of 2006.

2. Brief facts of the case, as narrated in the F.I.R. are that on the eventful night at about 3-15 a.m. complainant Riaz Hussain Shah Inspector along with prosecution witnesses Ghulam Abbas Constable and Inayatullah Constable was patrolling in a private car driven by deceased Amjad Mahmood Constable; that when they reached Quaid -e-Azam Colony near Zulfiqar clinic, an Alto-car came from Dhamial Camp; that Amjad Mahmood gave a signal to stop it on account of suspicion; that the said car, which was driven by Zeeshan alias Shani, appellant herein, stopped near the car of the police; that the deceased and the complainant identified him as they knew him all along; that the appellant on being seen fired shots from his 30 bore pistol which hit Amjad Mahmood Constable as well as the body of the car; that as soon as the complainant and his companions alighted from the car, the appellant also fired at them but they escaped unhurt. The appellant then fled from the spot. On report of the incident, a case under sections 302, 324, 186 and 353, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 was registered vide F.I.R. No.117 dated 2-3-2006 in Police Station Saddar Barooni District Rawalpindi.

3. The appellant after his arrest and completion of investigation was forwarded to the learned Special Judge, ATC, who on its conclusion sentenced him as under:-- "

25. For the above said reasons I hold that prosecution has fully proved its case. Charge under section 7(a), A.T.A. and 7(b), A.T.A. 1997 is fully proved against the accused. I hold him guilty of the said offences and convict him accordingly. He is sentenced to death under section 7(a), A.T.A. 1997 for the murder of Amjad Mehmood constable. He is also sentenced to pay a fine of Rs.20,000 or in default to undergo further RI for one year if the sentence of death is not confirmed. The sentence of death shall be subject to confirmation by honourable Lahore High Court regarding which a separate reference shall be made. On confirmation of the death sentence, he shall be hanged by neck till he is dead. He is also sentenced to 10 years' R.I. and a fine of Rs.20,000 or in default to undergo R.I. for one year under section 7(b), A.T.A. 1997." Vide his judgment dated 30-11-2006.

4. The appellant preferred an appeal before the High Court which was partially allowed with the result that sentence of death was converted into imprisonment for life vide judgment dated 9-6-2009.

5. Learned counsel appearing on behalf of the appellant contended that the occurrence has taken place late in the night, that no source of light has been mentioned in the F.I.R.; that in the absence of any evidence showing that the complainant and his companions knew the appellant all along his identification cannot be said to have been established on the record; that though according to the prosecution version the headlights of both the cars were on at the relevant time but such lights being forward-oriented could not enable, the persons boarding them to see and identify each other, when both the cars stood parallel to one another with their faces in opposite directions. The learned counsel next contended that though identification of the appellant has been alleged with reference to his criminal background but nothing has been brought on the record to substantiate the same. The learned counsel by concluding his arguments submitted that when identity of the assailant has not been proved on the record his conviction and sentence cannot be maintained.

6. As against that Ch. Zubair Ahmed Farooq, learned Additional Prosecutor-General appearing on behalf of the State contended that when appellant was identified on the spot; the empties recovered from the spot matched with the pistol recovered from the person of the appellant at the time of his arrest and the seats of injuries on the dead body of the deceased as per medical evidence are in line with the ocular account furnished by the prosecution witnesses, the guilt of the appellant stands proved beyond doubt. While controverting the argument of the learned counsel for the appellant as to the source of light, the learned Additional Prosecutor-General submitted that the lights lit on the gate of the residence of Capt. Raja Altaf were sufficient by all means to enable the complainant and the prosecution witnesses to see and identify the appellant, therefore, no doubt could be entertained about his identity. The conviction and sentence, the learned Additional Prosecutor-General added, being based on proper appraisal of evidence warrant no interference.

7. We have read out the evidence on the record with the assistance of learned counsel for the parties and have also considered the arguments they addressed at the bar.

8. The prosecution case, so to speak, mainly hinges on the evidence of identification. The case of the prosecution is that appellant was already known to the complainant and the prosecution witnesses on account of his criminal background and involvement in a number of cases. But there is absolutely no evidence on the record to show that appellant had any criminal background. There is also no evidence on record to show that he was ever involved in any criminal case. The allegation that he was already known to the complainant and the prosecution witnesses remained unproved and unsubstantiated. When neither criminal background nor involvement of the appellant has been proved on the record, how could the complainant and the prosecution witnesses identify him is a question which also went unanswered. It has been stated in the F.I.R. that when the car driven by the appellant stopped near the car driven by the deceased, the appellant was identified in the light. But where did that light come from, finds no mention in the F.I.R. It was not a case where an illiterate person reported the incident and thus lost sight of such an important aspect of the case. It was an incident witnessed and reported by an experienced Inspector Police. During the course of trial an effort was made to improve the original version by saying that the complainant and the prosecution witnesses saw and identified the appellant in the light of the headlights of the cars. But this appears to be an improvement on the face of it. Assuming that this is not an improvement yet the headlights of the car being forward-oriented could not shed light on the face of the person sitting outside the range of such lights unless, of course, the assailant had come out of the car and stood in front of the headlights. But this is not the case of the prosecution. To cover up the lapse street lights were introduced but this too being an afterthought cannot be given much weight. Delay of more than an hour in lodging the report would also give rise to the inference that the occurrence has not taken place in the manner projected by the prosecution and that this time was consumed in making an effort to give a coherent attire to the prosecution case, which hardly proved successful. This delay is all the more fatal when admittedly the Police Station, besides being connected with the scene of occurrence through a mettalled road, is at a distance of 11 kilometers from the latter. Such delay would also militate against the veracity of the prosecution witnesses when it is not their case that they had no vehicular means to reach the Police Station soon after the occurrence. Granted that the lights were lit on the gate of the house mentioned above, but whether they could shed sufficient light on the face of the appellant whose car according to the site plan seems to have been over-shadowed by the car of the complainant is yet another query which finds no answer. We, therefore, are constrained to hold that the identification of the assailant has not been established beyond doubt.

9. The other piece of evidence connecting the appellant with the crime is the report of the Ballistic Expert according to which the empties recovered from the spot matched with the pistol recovered from his possession. This report, at its best, can be taken as corroborative and not evidence of the charge. This, per se, cannot prove the guilt of the appellant where his identification has not been established beyond doubt. Nor recovery of the empties has been established by an aboveboard evidence. Their recovery from the spot has no doubt been alleged but their ejection outside the car is highly doubtful when according to the complainant the assailant did not stretch his arm outside the window of the car to fire at the deceased. The report of the Ballistic Expert, therefore, would also do little to advance the case of the prosecution.

10. Escape of the complainant and the prosecution witnesses also raises serious doubts about their presence at the spot when according to the prosecution the assailant fired as many as six shots. The complainant who was sitting next to the deceased could not have escaped unhurt. Yes, coincidence cannot be ruled out but in the matrix of this case we would be stretching its arm too long by attributing his escape to that. Even escape of the assailant does not fit in with the surrounding when the deceased, complainant and the P.Ws. were admittedly armed and there is nothing on the record to show as to what restrained them to retaliate with immediacy, after the assailant fired the first shot. In the absence of any explanation the story so narrated would not appear to be credible from any angle it is looked at.

11. The standard of proof in this case should have been far higher as compared to any other criminal case when according to the prosecution it was a case of police encounter. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction in a charge involving capital sentence, that too when it is riddled with many lacunas and loopholes listed above, quite apart from the after thoughts and improvements. It would not be in accord of safe administration of justice to maintain the conviction and sentence of the appellant in the circumstances of the case. We, therefore, by extending the benefit of doubt allow this appeal, set aside the conviction and sentence awarded and acquit the appellant of the charges. He be set free forthwith if not required in any other case. M.H./Z-1/SC Appeal allowed.