Full Judgment Text & Judicial Ruling

2021 P Cr. L J Note 27 [Lahore] Before Malik Shahzad Ahmad Khan, J SAQIB ALI---Appellant Versus The STATE and another---Respondents Criminal Appeal No. 671 and Criminal Revision No. 839 of 2016, heard on 10th June, 2020. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 363, 364-A & 201---Qatl-i-amd, kidnapping, kidnapping or abducting a person under the age of ten years, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence--- Benefit of doubt---Ocular and medical evidence-- Contradictions---Scope---Accused was charged for abducting two minor sons of the complainant and thereafter committed their murders---Ocular account of the occurrence had been furnished by one witness, who had seen accused and co-accused while throwing two minor boys in the canal---Said witness stated that a girl was also sitting in the car along with accused and co-accused at the time of occurrence-Said witness had admitted during his cross-examination that his statement was recorded by the police on 22.01.2010---If said witness had witnessed the occurrence of a heinous crime and seen the accused and co-accused while throwing two boys in the canal on 16.11.2009, then as to why he remained mum till 22.01.2010 i.e. for a period of two months and six days from the date of occurrence---Said witness had also stated in his examination-in-chief that on the next day of occurrence, he visited Police Station in connection with personal affair where he identified all the accused persons of that case but even then he did not make statement regarding the above stated fact to the police on the said day and made his statement before the police for the first time on 22.01.2010---No plausible explanation had been given by the said witness for remaining mum for such a long period---Statement of said witness was in conflict with the medical evidence produced by the prosecution in that case---Medical Officer, who conducted post-mortem examination on the dead body of one minor/deceased stated the time that elapsed between the injuries and death as immediate and the time that elapsed between the death and post-mortem examination as six to twelve days; meaning thereby that the death of minor deceased took place between 26.11.2009 to 02.12.2009 whereas according to the statement of witness, deceased was thrown in the canal by accused and co-accused on 16.11.2009 and as such there was difference of ten days regarding the date of death as given by witness and the Medical Officer---Moreover, said witness did not state that he had seen accused and his co-accused while throwing dead bodies of the minors in the canal rather he stated that he had seen the accused and co-accused while throwing two children in the canal----Statement of witness showed that he had seen the accused and co-accused while throwing two children in the canal and not their dead bodies---On the other hand, according to the medical evidence, there were five injuries on the body of minor deceased which were ante mortem and bones under injuries were also found to be fractured, meaning thereby that minor deceased was murdered before throwing his dead body in the canal but witness did not state that the accused and his co-accused threw the dead body of any minor in the canal or the minors were thrown in injured condition in the canal and as such the evidence of said witness was in conflict with the medical evidence of the prosecution---Ocular evidence produced by the prosecution, in circumstances through sole witness was not worthy of reliance---Appeal against conviction was allowed, in circumstances. (b) Criminal trial--- ----Circumstantial evidence---Scope---Circumstances should be linked with each other and should form such a continuous chain that its one end touched the dead body and other to the neck of the accused---If any link in the chain was missing then its benefit must go to the accused. Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. The State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 363, 364-A & 201---Qatl-i-amd, kidnapping, kidnapping or abducting a person under the age of ten years, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for abducting two minor sons of the complainant and thereafter committed their murders---Last seen evidence was produced by the prosecution through two witnesses---Both the said witnesses stated that on 16.11.2009, accused brought one minor boy to the house of one of the witnesses, so that he played with goats and thereafter the accused left his house, however, after sometime, accused came back and took the minor boy with him---Other witness stated that on 16.11.2009, he lastly seen accused in the company of a minor boy to whom he later on recognized with the help of his snaps as deceased son of complainant but he made statement before police on 02.01.2010---Circumstances suggested that there was delay of one month and seventeen days in making the statement of witness before the police---Evidently, one of the witnesses was himself interrogated in that case as a suspect and he was under police custody when he made statement against the accused on 02.01.2010---To rely upon the evidence of last seen produced by the prosecution through said two witnesses could not be relied---Appeal against conviction was allowed, in circumstances. (d) Qanun-e-Shahadat (10 of 1984)--- ----Art. 140---Cross-examination---Non-conducting of cross-examination on the statement of witness---Scope---Statement of a witness, which was not subjected to cross-examination, was inadmissible in evidence and was of no legal effect. Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63 and Jan Sher Khan v. The State 2013 MLD 1554 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 363, 364-A & 201---Qatl-i-amd, kidnapping, kidnapping or abducting a person under the age of ten years, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Recovery of shoes and feeder of deceased minor on the pointation of accused---Reliance---Scope---Accused was charged for abducting two minor sons of the complainant and thereafter committed their murders---In the present case, recovery of shoes and feeder belonging to deceased child was effected, but said articles were not mentioned by the complainant in his complaint---Complainant had alleged in the complaint that his minor son was wearing trouser suite of sky blue colour and pink jacket---Although, the said clothes have been shown recovered in the recovery memo but the recovery witness, while appearing in the witness box, did not state that any such garments of deceased were recovered on the pointation of the accused---Recoveries of shoes and feeder of deceased on the pointation of the accused, in circumstances, were inconsequential for the prosecution---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 363, 364-A & 201---Qati-i-amd, kidnapping, kidnapping or abducting a person under the age of ten years, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Motive not proved---Effect---Accused was charged for abducting two minor sons of the complainant and thereafter committed their murders---Prosecution evidence qua the motive had been produced through complainant, who stated that accused was posing himself as a fake 'Peer' (Saint) and accused used to entice his family members, therefore, complainant forbade him from doing so; due to the said grudge, the accused committed murder of two minor sons of the complainant---Prosecution case was that the complainant who forbade accused from posing himself as a fake 'Peer' and enticing away his family members and it was not the prosecution case that the minor children of the complainant, aged about five years and aged about three years, ever forbade the accused from posing himself as a fake 'Peer'---If the motive of the prosecution was presumed to be correct then it was complainant who should have been the prime target of accused because even, according to the prosecution case itself, the accused had no grudge against the minors, therefore, there was no reason with the accused to commit their murder---Complainant also stated in his examination-in-chief that his family members were enticed by the accused while posing himself as a fake 'Peer' but he did not name any such person who was enticed away by the accused---No family member of the complainant appeared during the course of investigation or before the Trial Court in support of the motive alleged by the complainant---Motive as alleged by the prosecution, in circumstances, had not been proved---Appeal against conviction was allowed, in circumstances (g) Criminal trial--- ----Medical evidence---Scope---Medical evidence tells about the probable time of death, the kind of injuries, kind of weapon used in the occurrence but it would not identify the assailant. Muhammad Tasawar v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel. (h) Criminal trial--- ----Benefit of doubt---Principle---A single circumstance creating reasonable doubt regarding the prosecution case would be sufficient to give benefit of doubt to the accused. Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Mansha v. The State 2018 SCMR 772 rel. M. Asad Manzoor Butt for Appellant (in Criminal Appeal No. 671 of 2015 as well as Respondent in Criminal Revision No. 839 of 2016). Ms. Tahira Parveen, District Public Prosecutor for the State. Rana Arif Mehmood for the Complainant (in Criminal Appeal No. 671 of 2015 as well as Petitioner in Criminal Revision No. 839 of 2016). Date of hearing: 10th June, 2020. JUDGMENT MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.671 of 2016, filed by Saqib Ali (appellant) against his conviction and sentence, as well as Criminal Revision No.839 of 2016, filed by Muhammad Azam Butt petitioner/complainant for enhancement of sentence awarded to Saqib Ali (respondent of said criminal revision), from imprisonment for life to death, as both these matters have arisen out of the same judgment dated 09.03.2016, passed by learned Additional Sessions Judge, Lahore. 2. Saqib Ali (appellant) along with his co-accused was tried in case FIR No.905/2009 dated 17.11.2009, registered at Police Station Ghazi Abad, Lahore in respect of offences under sections 302/363/364-A/201, P.P.C. After conclusion of the trial, the learned trial Court vide its impugned judgment dated 09.03.2016, has convicted and sentenced the appellant as under: - Under section 364-A, P.P.C. to imprisonment for life. Under section 302(b), P.P.C. to imprisonment for life. The appellant was also directed to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only), to the legal heirs of Hashir (deceased), as provided under section 544-A, Cr.P.C. and in case of default to further undergo six months simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended to the appellant. Both the sentences of imprisonment were ordered to run concurrently. Through the same impugned judgment, the appellant was acquitted from the charges under sections 364-A, 302(b) and 201 of P.P.C. regarding the abduction and murder of Muhammad Ahmad (minor deceased) and disappearance of evidence to the extent of said deceased whereas, co-accused of the appellant, namely, Atif Zaman, Iftikhar Alam and Mst. Ayesha were acquitted from all the charges. 3. Brief facts of the case as given by Muhammad Azam Butt (complainant/PW-5) in his complaint Ex.PA, on the basis of which formal FIR Ex.PA/1 was chalked out, are that the complainant was employed in the Daily Express News. On 16.11.2009, at about 6.00 p.m. (evening), the children of the complainant namely Muhammad Ahmed aged about 5 years, Muhammad Hashir aged about 3, were playing with the brother-in-law of the complainant namely Saqib Ashrafi alias Saqib Ali (appellant), who came to the house of the complainant and stayed there for about 2 to 3 hours and thereafter he (appellant) left the said house. After half an hour from the departure of the appellant, the above mentioned children of the complainant also disappeared from his house. The complainant expressed his suspicion that his children had been abducted by Saqib Ashrafi alias Saqib Ali (appellant) because he (appellant) used to pose himself as a fake "Peer" and entice the family members of the complainant, therefore, the complainant forbade the appellant from doing so and posing himself as a fake "Peer", due to which he (appellant) abducted the children of the complainant, hence the abovementioned FIR. Initially the FIR was lodged under section 363, P.P.C. On 02.12.2009, the dead body of an unknown minor was found in a canal situated within the area of Police Station Satto Katla, Lahore whereupon FIR No.1420/2009, under section 302, P.P.C., was lodged at police station Satto Katla against unknown accused persons. Later on, the dead body of abovementioned unknown minor was identified to be that of Muhammad Hashir (minor son of the complainant), therefore, offences under sections 302/201, P.P.C., were added in the instant case. 4. The appellant was arrested in this case by the police on 15.12.2009 and after completion of investigation the challan was prepared and submitted before the learned trial court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced sixteen witnesses during the trial. The statement of the appellant under section 342, Cr.P.C. was recorded, wherein he refuted the allegations levelled against him and professed his innocence. 5. The learned trial Court vide its judgment dated 09.03.2016, found the appellant guilty, convicted and sentenced him as mentioned and detailed above. 6. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that the evidence of Muhammad Yaqoob, PW.3 who allegedly saw the appellant and his co-accused while throwing two minor boys in the canal, is not worthy of reliance because the said witness appeared before the police with considerable delay of two months and six days from the date of occurrence; that the circumstantial evidence produced by the prosecution is very weak thus, the same is not worthy of reliance; that the dead body of Muhammad Ahmad, deceased has not been recovered in this case and the appellant has been acquitted from the charges of abduction and murder of Muhammad Ahmad, deceased; that insofar as the murder of Muhammad Hashir, deceased is concerned, according to his postmortem examination report, there were five injuries on his body but no weapon of offence has been recovered from the possession of the appellant; that the alleged recoveries of last worn clothes of the minor deceased, namely, Muhammad Ahmad and Muhammad Hashir were not stained with blood and the said recoveries were also rightly disbelieved by the learned trial Court; that the evidence of last seen produced by the prosecution through Roheel Ahmad, PW.11 and Atif Mehmood, PW.12 is not worthy of reliance because they made their statements before the police with the delay of one month and seventeen days from the occurrence; that the prosecution evidence regarding the alleged pointation of the place of occurrence by the appellant is also inconsequential because nothing incriminating was recovered from the said place; that the motive alleged by the prosecution has also not been proved through any reliable evidence and the same has rightly been discarded by the learned trial Court; that the prosecution evidence has been disbelieved by the learned trial Court against Mst. Ayesha, Atif Zaman and Iftikhar Alam, co-accused, therefore, the same evidence cannot be believed against the appellant without independent corroboration which is very much lacking in this case; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, this appeal may be accepted and the appellant may be acquitted from the charges. 7. On the other hand, it is argued by the learned District Public Prosecutor assisted by learned counsel for the complainant that the prosecution has proved its case against the appellant beyond the shadow of any doubt; that the co-accused of the appellant, namely, Mst. Ayesha, Atif Zaman and Iftikhar Alam were not nominated in the FIR or by the prosecution witnesses of last seen evidence, namely, Roheel Ahmad, PW.11 and Atif Mehmood, PW.12, therefore, their case is distinguishable from the case of Saqib Ali, appellant and as such the acquittal of the said co-accused is of no avail to the appellant; that convincing and reliable prosecution evidence is available on the record against the appellant in the shape of statement of Muhammad Yaqoob, PW.3, who saw the appellant and his co-accused while throwing the minor boys in the canal; that there is evidence of lastly seeing alive the minor sons of the complainant in the company of the appellant which was produced by the prosecution through Roheel Ahmad, PW.11 and Atif Mehmood, PW.12; that last worn clothes and articles of both the deceased boys were recovered on the pointation of the appellant and the recoveries of the said clothes/articles have been proved by the prosecution through Abdul Basit PW.4; that Muhammad Azam Butt, complainant/PW.5 also proved the motive alleged in this case that the appellant used to pose himself as a fake 'Peer' and he was forbidden by the complainant, therefore, due to the said grudge, he (appellant) committed the murder of his (complainant's) two minor sons; that the prosecution witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that there is no substance in this appeal, therefore, the same may be dismissed. Learned counsel for the complainant while arguing Crl. Revision No.839 of 2016, contends that Saqib Ali, respondent (appellant in Crl. Appeal No.671 of 2016) has wrongly been awarded lesser punishment by the learned trial Court whereas there was no mitigating circumstance in his favour, therefore, he may be awarded capital punishment. 8. Arguments heard and record perused. 9. The detail of the prosecution case as set forth in the FIR (Ex.PA/1) and in the complaint (Ex.PA) has already been given in paragraph No.3 of this judgment, therefore, there is no need to repeat the same. 10. As mentioned earlier, all the accused including Saqib Ali, appellant have been acquitted from the charges of abduction and murder of Muhammad Ahmad, minor deceased, however, Saqib Ali, appellant has been convicted and sentenced only for the abduction and murder of Muhammad Hashir, deceased, as mentioned and detailed above. 11. I have noted that the prosecution has produced two types of evidence in this case. The prosecution produced ocular account of the occurrence through Muhammad Yaqoob, PW.3 and at the same time, the prosecution has also produced circumstantial evidence in this case through Abdul Basit (PW.4), Muhammad Azam (PW.5), Roheel Ahmad (PW.11) and Atif Mehmood (PW.12). It is, therefore, evident that the complainant party of this case was not sure that as to whether they (complainant party) should produce direct evidence in the shape of ocular account or to produce circumstantial evidence in this case against the accused persons. Insofar as the ocular account of the prosecution is concerned, I have noted that the prosecution has produced Muhammad Yaqoob, PW.3 who had seen Saqib Ali, appellant and his co-accused while throwing two minor boys in the canal. Ocular account/Evidence regarding throwing two minor boys in the canal by the appellant and his co-accused. The prosecution produced its ocular account through Muhammad Yaqoob, PW.3. He stated that on 16.11.2009, he was proceeding from cavalry ground to Harbanspura, Lahore along with his friend Tariq Hussain and when they were crossing Harbanspura Bridge, they saw Saqib Ali, appellant, Atif Zaman and Iftikhar Alam, co-accused while throwing two minor boys in the canal. He further stated that a girl was also sitting in the car along with Saqib Ali, appellant and his co-accused at the time of occurrence. Muhammad Yaqoob, PW.3 admitted during his cross-examination that his statement was recorded by the police on 22.01.2010. It is not understandable that if Muhammad Yaqoob, PW.3 had witnessed the occurrence of a heinous crime and seen Saqib Ali, appellant and his co-accused while throwing two minor boys in the canal on 16.11.2009 then as to why he remained mum till 22.01.2010 i.e. for a period of two months and six days from the date of occurrence. Muhammad Yaqoob, PW.3 also stated in his examination-in-chief that on the next day of occurrence, he visited Police Station Ghazi Abad in connection with personal affair where he identified all the accused persons of this case but even then he did not make statement regarding the above mentioned fact to the police on the said day and made his statement before the police for the first time on 22.01.2010. No plausible explanation has been given by the said witness for remaining mum for such a long period. It is also noteworthy that the statement of Muhammad Yaqoob, PW.3 is in conflict with the medical evidence produced by the prosecution in this case. Dr. Liaqat Ali, APMO (PW.10) conducted postmortem examination on the dead body of Muhammad Hashir, deceased on 08.12.2009. According to his opinion the time that elapsed between the injuries and death was immediate and the time that elapsed between the death and postmortem examination was six to twelve days meaning thereby that the death of Muhammad Hashir, deceased took place between 26.11.2009 to 02.12.2009 whereas according to the statement of Muhammad Yaqoob, PW.3, Muhammad Hashir, deceased was thrown in the canal by Saqib Ali, appellant and his co-accused on 16.11.2009 and as such there is difference of ten days regarding the date of death as given by Muhammad Yaqoob, PW.3 and the Medical Officer (PW.16). 12. Moreover, Muhammad Yaqoob, PW.3 did not state that he saw Saqib Ali, appellant and his co-accused while throwing dead bodies of the minors in the canal rather he stated that he saw the appellant and his co-accused while throwing two children in the canal. His examination-in-chief in this respect reads as under:- "Stated that on 16.11.2009, I was proceeding to obtain an installment from cavalry ground to Harbanspura at about 10:00/11:00 p.m. along with Tariq Hussain, my friend. When we were crossing Harbanspura Bridge, we saw a vehicle in which a girl was sitting, we saw Saqib, Atif and Iftikhar accused present in the Court throwing two children in the canal. Next day I visited Police Station Ghazi Abad in connection with a personal affair, there was a panchait and there we found out that panchait was regarding missing of two children who allegedly were thrown in the canal. There I identified all the three accused present in the Court. I prior to that did not have any acquaintance with complainant of the case and I told him what I saw the preceding night." (Bold and underlining supplied for emphasis). It is, therefore, evident from the statement of Muhammad Yaqoob, PW.3 that he saw the appellant and his co-accused while throwing two children in the canal and not their dead bodies. On the other hand, according to the medical evidence furnished by Dr. Liaqat Ali, APMO, PW.10, there were five injuries on the body of Muhammad Hashir, deceased which were ante mortem and bones under injuries Nos.1 to 4 were also found to be fractured meaning thereby that Muhammad Hashir, deceased was murdered before throwing his dead body in the canal but as mentioned earlier Muhammad Yaqoob, PW.3 did not state that the appellant and his co-accused threw the dead body of any minor in the canal or the minors were thrown in injured condition in the canal and as such the evidence of Muhammad Yaqoob, PW.3 is in conflict with the medical evidence of the prosecution. Under the circumstances, the ocular evidence produced by the prosecution through Muhammad Yaqoob, PW.3 is not worthy…

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