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Petitioner: Muhammad Akram alias Akri VS Respondent: The State
Court Name: Lahore High Court Judge(s): Muhammad Tariq Nadeem Title: Muhammad Akram alias Akri vs The State Case No.: Crl. Appeal No. 47529 of 2017, Crl. Appeal No. 224696 of 2018 Date of Judgment:2022-03-29 Reported As: 2022 LHC 2979 Result: N/A
JUDGMENT
JUDGMENT Muhammad Tariq Nadeem. J. Muhammad Akram alias Akri and Zulfiq ar Ahmad, appellants along with co- accused Amjad Iqbal (since acquitted) were tried, for committing the murder of Hafiz Muhammad Khan and for commission of robbery , by the learned Additional Sessions Judge, Malakwal in case FIR No.25 dated 19-01-2014 registered under sections 302, 460, 412, 34 PPC, at Police Station Gojra, Mandi Bahauddin, and after conclusion of trial, vide judgment dated 31-05-2017 , while acquitting co-accused Amjad Iqbal, convicted and sentenced the appellants as under:- 1. Muhammad Akram alias Akri, appellant U/S 302 (b) PPC Life imprisonment along with compensation of Rs.2,00,000/- to the legal heirs of deceased Hafiz Muhammad Khan, under section 544-A Cr.P.C. recoverable as arrears of land revenue and in default thereof to further undergo 06 months S.I U/S 392 PPC 10 years R.I. along with fine of Rs.100000/- and in default thereof to undergo 03 months S.I. U/S 451 PPC 07 years R.I. along with fine of Rs.50000/- and in default thereof to undergo 02 months S.I. The sentences were ordered to run concurrently . Benefit of section 382-B Cr .P.C. was extended to the convict. 2. Zulfiqar Ahmad, appellant U/S 392 PPC 07 years R.I. along with fine of Rs.50000/- and in default thereof to undergo 02 months S.I. U/S 451 PPC 07 years R.I. along with fine of Rs.50000/- and in default thereof to undergo 02 months S.I.
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The convict shall pay compensation of Rs.1,00,000/- under section 544-A Cr.P.C. to the complainant and Matloob Bibi (PW.2) for suffering mental anguish, which was ordered to be recovered as arrears of land revenue and in default thereof to undergo 06 months S.I. The sentences were ordered to run concurrently . Benefit of section 382-B Cr .P.C. was extended to the convict. Feeling aggrieved from the judgment of the learned trial court, the appellants have assailed their convictions and sentences through the titled appeals. 2. The brief facts of the case as narrated by Muhammad Tayyab, complainant (PW.22) in the FIR (Ex.P A) are that he was resident of Bosal Sukha and was a shopkeeper . On the fateful day i.e. 19-01-2014 at about 03:00 a.m., he was sleeping in his "Baithak", when three unknown persons entered into the Baithak by scaling over the wall, put the pistol on his temporal region and snatched Rs.1200/- and mobile phone NOKIA from him. Thereafter , the accused persons took him to the residential room where his other family members were sleeping. The accused persons also snatched two mobile phones NOKIA from his mother . Thereafter , the accused persons inquired from the complainant about the room in which his father was sleeping. He took the accused persons towards the room of his father and his father asked from him, who they were. He replied to his father that there were dacoits upon which complainant' s father closed the door of his room. The accused persons tortured him upon which his father after opening the door, came out with club and tried to inflict the same to accused persons, upon which, one accused who had middle height, made a fire shot with his pistol 30 bore which landed on the upper side of right ear of his father , who succumbed to the injury at the spot. On their hue and cry, Muhammad Rafique and Qamar Abbas came at the spot and upon seeing them, the accused persons fled away from the spot. Hence, the above- mentioned FIR. 3. It is noteworthy that the FIR was registered against unknown accused persons. The appellants were arrested on 19-04-2014 and were sent to judicial lockup for the purpose of identification parade, which was conducted on 26- 04-2014 in District Jail Mandi Bahauddin under the supervision of Raja Ehtesham Muqarab, Judicial Magistrate Ist Class, Malakwal (PW.23) where Muhammad Tayyab, complainant (PW.22) identified Zulfiqar Ahmad, appellant but remaining accused persons were not identified by him. Thereafter , on 08-05-20 14, he nominated the present appellants and Amjad Iqbal (since acquitted) in this case through supplementary statement (Ex.PP). 4. After completion of investigation, report under section 173 Cr.P.C. was submitt ed against the appellants along with their acquitted co-accused Amjad Iqbal. The charge against the appellants was framed on 05-07-2014 to which they pleaded not guilty and claimed trial. In order to bring home the guilt of the accused, the prosecution got examined as many as 23-witnesses. Muhammad Rafique (PW.20), Matloob Bibi (PW.21) and Muhammad Tayyab, complainant (PW.22) have furnished the ocular account. Gulzar Ahmad, draftsman (PW.6) prepared scaled site plan of the place of occurrence (Ex.PG and Ex.PG/1). Sajid Hussain 1543/C (PW.11) was the witness of recovery of Rs.1200 (P.6), vide recovery memo (Ex.PJ), Churi (P.7) vide recovery mem o (Ex.PK), hatchet (P.8), vide recovery memo (Ex.PL) and motorcycle (P.9) vide recovery memo (Ex.PM). Mudas sar Iqbal 65/C (PW.16) was the witness of recovery of pistol 30 bore and SIM No.0345-6507361, which were taken into possession vide recovery memo (Ex.PH) at the instance of appellant Muhammad Akram alias Akri. Raja Ehtesham Muqarab, Judicial Magistrate Ist Class, Malakwal (PW.23), supervised the identification parade (Ex.PQ/1-5) of appellants. Tariq Mehmood, SI (PW.7) and Jahangir Khan, SI (PW.19) being investigating officers stated about various steps taken by them during investigation of the case. The medical evidence was furnished by Doctor Muhammad Javed Akhtar (PW.5), who conducted autopsy on the dead body of deceased Hafiz Muhammad Khan and issued this PMR (Ex.PC.) The remaining prosecution witnesses, are formal in nature. The prosecution gave up Muhammad Ashraf Hussaini, Rafaqat Bashir 355/C, Matee-ur-Rehman , Fakhar Ijaz 1575/C, Rashid Riaz 1252/C, Qamar Abbas and Mumtaz, PWs being unnecessary and after tendering in evidence report of Punjab Forensic Science Agency regarding Forensic Serology Analysis Report (Ex.PR/A) and Firearms and Toolmarks Examination Report (Ex.PS/A), closed its evidence. 5. After completion of prosecution evidence, statements of the appellants under section 342 Cr. P.C. along with their acquitted co-accused were recorded wherein they denied the allegations levelled against them and claimed
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their innocence. They neither opted to appear as their own witnesses within the scope of section 340 (2) Cr.P.C. nor produced any defence evidence. 6. The learned trial court vide judgment dated 31-05-2017 found the appellants guilty , convicted and sentenced them as mentioned above, however , acquitted their co-accused namely Amjad Iqbal of the charges through the same judgment by giving him the benefit of doubt, hence, the criminal appeals. 7. I have heard learned counsel for the appellants and learned Deputy Prosecutor General for the State at length and perused the record with their able assistance. 8. The incident in the present case, according to the prosecution, was alleged to have taken place on 19-01-2014 at about 3:00 a.m. (night) within the area of Bosal Sukha, about 05 Kilometers away from Police Station, Gojra, District Mandi Bahauddin and the same was reported by Muhammad Tayyab, complainant (PW.22) through complaint (Ex.P A/1) to Jahangir Khan, SI (PW.19) on the same night on the basis of which formal FIR (Ex.P A) was chalked out by Muhammad Inayat, ASI (PW.2) at 04:00 a.m within 01 hour but the postmortem examination on the dead body of the deceased Hafiz Muhammad Khan was conducted by Doctor Muhammad Javed Akhtar (PW.5) on 19-01-2014 at about 10:00 a.m.. with the delay of 07 hours after the occurrence. Keeping in view this material discrepancy arising out from the prosecution case, an adverse inference to the prosecution' s case can be drawn that the intervening period had been consumed in fabricating a story creatin g serious doubt regarding the prosecution case. Reliance in this regard is placed upon the cases titled as "Muhammad Adnan and another Vs. The State and others" ( 2021 SCMR 16 ) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "....the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly , post-mortem examinat ion on the dead body of Muhammad Tayyab was conducted on 19-09- 20018 at 6:30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross examination that at THQ, Hospital, Depalpur, the arrangements for conducting posts-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m. on 19 09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours." Wisdom is also derived from the judgment reported as "Pervaiz Khan and another Vs. The State" (2022 SCMR 393) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "....There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but postmortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed postmortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case..." 9. Another aspect of the case is that, according to the prosecution's version, the incident occurred at night time. The prosecution has not described any source of light in FIR (Ex.P A). Similarly , scaled site plan (Ex.PG) and un- scaled site plan (Ex.PR) are silent with respect to the source of light. More so, none amongst the witnesses have described the source of light in their state ments nor the investigating officer had taken into possession any source of light. The prosecution failed to establish the fact of the availability of a light source and in the absence of their inability to do so, I cannot presume the existence of source of light at the place of occurrence. Wisdom is derived from the case laws reported as "Nazeer Ahmad Vs Gehne Khan and others" (2011 SCMR 1473 ), "Sardar Bibi and another Vs. Munir Ahmad and others" (2017 SCMR 344), "Gulfam and another v. The State" (2017 SCMR 1 189) and Pervaiz Khan and another Vs. The State" ( 2022 SCMR 393 ). 10. The ocular account of the prosecution was produced through Muhammad Tayyab, complainant (PW.22), Muhammad Rafique (PW.20) and Matloob Bibi (PW.21) inasmuch as Muhamma d Tayyab, complainant (PW.22) was the son of Hafiz Muhammad Khan (deceased) whereas Muhammad Rafique (PW.20) and Matloob Bibi (PW.21) were the neighbor and widow of Hafiz Muhammad Khan (deceased) respectively . I have noted that appellants were not nominated in the FIR. Occurrence in this case took place on 19-01-2014 at about 03:00 a.m.. whereas the appellants were arrested on 19-04-2014 and were sent to jail for the purpose of identification parade, which was held on 26-04-2014 in District Jail, Mandi Bahauddin. It is noteworthy that only Muhammad Tayyab,
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complainant (PW.22) joined the proceeding of that identification parade, where only Zulfiqar Ahmad, appellant was identified by Muhammad Tayyab, complainant (PW.22) whereas Muhammad Akram alias Akri, appellant was not identified by the complainant during the course of identification parade. Although , the complainant identified the appellant Zulfiqar Ahmad during the course of identification parade but he did not disclose the role played by the said appellant during the occurrence in issue. It has repeatedly been held by the august Supreme Court that identification of an accused person without reference to the role allegedly played by him during the occurrence is shorn of any evidentiary value. Reliance is placed upon cases "Muhammad Fayyaz Vs. The State" (2012 SCMR 522), "Azhar Mehmood and others Vs. The State" (2017 SCMR 135) and "Kamal Din alias Kamala Vs. The State" ( 2018 SCMR 577 ). 11. Apart from the above, no proper features of the culprits had been mentioned in the FIR (Ex.PA). Even otherwise, I have already observed in the preceding paragraph that the prosecution witnesses, even if they were present at the scene of the occurrence, were not in a position to identify the appellants owing to the darkness of night. Keeping in view the facts and circumstances of the case, an identification parade has no evidentiary value in the eyes of the law and it cannot be used against the appellant Zulfiqar Ahmad as a corroborative piece of evidence. The PWs had not described the complete features, physiques, and complexions of any of the unknown accused persons. As such the test identification parade loses its authenticity as observed by the august Supreme Court of Pakistan in the cases titled as, "Muhammad Afzal alias Abdullah v. The State and others" (2009 SCMR 436), "Sabir Ali alias Fauji Vs. The State" (2011 SCMR 563) and "Javed Khan alias Bacha and another Vs. The State and another" ( 2017 SCMR 524 ). 12. It is noteworthy that the said identification parade was not held in accorda nce with law as the same was conducted jointly , so it was unreliable. The August Supreme Court of Pakistan in case of "Mian Sohail Ahmad and others Versus The State and others" (2019 SCMR 956) while enunciating the principles of law relating to the identification parade has held as under:- 5. The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW- 13) on 13.6.2006 is fraught with several infirmities diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367). 6. Both the appellants were jointly seated in the lineup. The idea of identification parade or lineup is to stand or seat the suspect in a group of persons (dummies or fillers) that closely resemble the characteristics of the suspect, in order to test the recognition, memory, perception and observation of the witness and thus verify the testimony of the witness. Placing two or more suspects jointly in an identification parade (or joint parade), tarnishes the homogeneity, sameness and identicalness of the members of the parade and defeats the very purpose of having a 11/3/21, 12:24 PM 2019 SCMR 956 test identification parade. Joint parade passes for suggestive and indicative identification, compromising the reliability of the witness and opening doors to misidentification, rendering TIP unsafe and untrustworthy. See: In the matter of Kanwar Anwaar Ali (PLD 2019 SC 488) on joint identification parade. 7. No role was assigned to the suspects by the witnesses, especially when
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the first information report clearly describes two different roles to the appellants; one that of an assailant, while the other of a driver of a motorcycle who drove the assailant away. If a witness fails to give the description of the part played by the suspect in the crime, the credibility of the witness stands questioned as he fails to complete the picture of the crime scene, thus inviting caution and circumspection in assessing the evidentiary value of the identification evidence. This Court over the years has placed little reliance on such identification evidence. Even in the subsequent identification by the complainant in court, which has little evidentiary value, he failed to point an accusing finger at the appellants to say who did what, therefore the parts played by the appellants in the crime remain a mystery. See: In the matter of Kanwar Anwaar Ali (PLD 2019 SC 488) on the absence of a role assigned by the witness in an identification parade...." 13. Besides the foregoing, Muhammad Tayyab, complainant (PW.22) during his cross examination stated as under:- "....The accused Akram confessed all the details of occurrence before police in my presence at the time of their arrest on 18.04.2014 and the remaining accused Zulfiqar and Amjad were also present with him on the said date in my presence...." He (PW.22) during his cross examination admitted as under:- "...It is correct that police arrested different persons who were record holders and I also joined the police investigation. I do not know whether I appeared before police on 18.04.2014. I am educated person. It is correct that on 18.04.2014 police arrested Hamid Merasi and interrogated him. It is correct that Akram accused, Amjad Iqbal son of Ahmad Khan and Zulfiqar Ahmad son of Ahmad Khan present in the court were arrested by the police----------------------- On 18-04-2014 police interrogated the accused present in the Court..." Whereas, Tariq Mehmood, SI (PW.7) during his court statement stated that the complainant party was previously known to the accused persons. Relevant portion of his cross examination reads as under:- "...It is correct that being co-villagers the complainant party was well known to the accused present in the court prior to this occurrence...." In the eventuality of supra mentioned reproduced portion of evidence got recorded by Muhammad Tayyab, complainant (PW.22), it manifests that when the appellants were already seen by Muhammad Tayyab, complainant (PW.22) and they have allegedly made extra judicial confession before him on 18-04-2014 then the subsequent proceeding of identification parade had lost its significance. Reference in this respect may be made to the cases of "Shafqat Mehmood and others Vs. The State" (2011 SCMR 537), "Samar Abbas vs. The State and others" (2017 YLR 48), "Niaz alias Niazi alias Jumma vs. The State" (2017 MLD 1147) and "Waheed Khan vs. The State, etc" (2021 YLR Note 133). 14. So far as the supplementary statement of Muhammad Tayyab, complainant (PW.22) is concerned, it is noteworthy that after the test identification parade, which was held on 26-04-2014 during which Muhammad Akram alias Akri, appellant and Amjad Iqbal (acquitted co-accused) were not identified by Muhammad Tayyab, complainant (PW.22), he (complainant) got recorded his supplementary statement (Ex.PP) on 08-05-2014 and nominated Muhammad Akram alias Akri, Zulfiqar Ahmad, appellants as well as Amjad Iqbal (since acquitted) and Amir alias Amri (PO) but in the said supplementary statement no source of information has been described rather Muhammad Tayyab, complainant (PW.22) has stated that he came to know through reliable sources that appellants along with their supra mentioned co-accused had committed the murder of his father. The Courts have always deprecated such kind of statements, which are made with the purpose to strengthen the case of the prosecution at the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or crook. Nomination through supplementary statement has always been deprecated and disliked by the Hon'ble Supreme Court and has never been appreciated being afterthought. Here, I would like to refer the cases of "Akhtar Ali and others VS. The State" (2008 SCMR 6) and "Kashif Ali vs. The Judge, Anti-terrorism, court No.II, Lahore and others" (PLD 2016 SC 951). 15. I have also noted with grave concern that the witnesses, namely Muhammad Tayyab, complainant (PW.22), Muhammad Rafique (PW.20) and Matloob Bibi (PW.21) have made blatant and dishonest improvements in their
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earlier statements. Muhammad Tayyab, complainant (PW.22) was duly confronted with improvements and the relevant portion of his cross-examination highlighting those improvements is as under:- ....I got recorded in my statement that accused persons tied my hands and searched me. Confronted with Exh.PP wherein it is not so recorded. I got recorded in my statement that the mobile phone Nokia was lying on cot. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that accused persons took me to the residential room where my mother was sleeping. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that I took the accused towards the room of my father and my father asked me who are. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that Zulfiqar accused put Churi on my neck. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that Akram put pistol on my temporal region. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that accused extended threats to me to get opened the door of my father's room otherwise you will be killed. Confronted with Exh.PP where it is no so recorded. I got recorded in my statement that accused snatched mobile from my father. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that accused tried to apprehend my father. Confronted with Exh.PP where it is no so recorded. I got recorded in my statement that Akram made fire on right side of head of my father who fell down. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that besides the accused present in the court two other accused were outside of our house. Confronted with Exh.PP where it is no so recorded. I got recorded in my statement that I came to know later on that one was Amir and other is not tracable. Confronted with Exh.PP where it is no so recorded......" Similarly , Muhammad Rafique (PW .20) during his cross examination stated as under:- "....I got recorded in my statement before police that I was sleeping in my Haveli of cattle shed adjacent to the street. Confronted with Exh.DC wherein it is not so mentioned. I got recorded in my statement before police that I went to the Haveli of deceased by scaling over the wall near the main gate. Confronted with Exh.DC wherein "near the main gate" is not mentioned. I got recorded in my statement before police that we saw three person one armed with pistol one armed with hatchet and other was armed with dagger. Confronted with Exh.DC wherein it is not so recorded. I got recorded in my statement before police that one accused having middle height namely Akram present in the court made firing hitting on the person of Muhammad Khan deceased. Confronted with Exh.DC wherein it is not so recorded, however, one accused made fire with pistol hitting on the head of deceased is mentioned. I got recorded in my statement before the police that deceased received firearm injury on the head near the right ear and went through and through. Confronted with Exh.DC where it is not mentioned only head injury on deceased is mentioned. I got recorded in my statement that we stood there due to fear at once. Confronted Exh.DC where it is not so recorded......" Likewise, Matloob Bibi (PW.21) during his statement made so many improvements. Relevant portion of her cross examination is described infra:- " ....I got recorded in my statement before police that the accused present in the court tied the hands of my son Tayyab on his back. Confronted with Exh.DD wherein it is not so recorded. I got recorded in my statement before police that four mobiles were snatched from us. I got recorded in my statement before police that Akram put his pistol on my son. Confronted with Exh.DD wherein it is no so recorded. I got recorded in my statement before police that accused took…
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