Full Judgment Text & Judicial Ruling

2021 Y L R Note 67 [Lahore] Before Malik Shahzad Ahmad Khan , J Syed SAQLAIN SHAH---Appellant Versus The STATE---Respondent Criminal Appeal No. 2227 of 2014 and Criminal Revision No. 24 of 2015, heard on 17th November, 2020. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Failure of prosecution to collect Call Data Record---Effect---Accused were charged for committing murder of brother of the complainant by firing---Motive behind the occurrence was that lady co-accused, since acquitted wanted to marry with deceased but the complainant's family members did not agree with the proposal and got contracted marriage of deceased at some other place and due to the said grudge, the accused persons, in furtherance of their common object committed the murder of deceased---In order to prove its ocular account, the prosecution had produced two eye-witnesses including complainant---Occurrence took place near Petrol Station situated at G.T. Road---Both the said eye-witnesses were not residents of the place of Occurrence---Complainant stated that on the day of occurrence, deceased received a phone call and on inquiry of complainant, deceased informed that lady co-accused had called him and he was going to meet her---On the said information, the complainant suspected something wrong and followed his brother/deceased---No telephone number of lady co-accused had been mentioned in the FIR or in the statement of any prosecution witnesses recorded by the police or by the Trial Court---Likewise, no phone number of deceased had been mentioned in the FIR or in the evidence of any prosecution witnesses recorded by the police or by the Trial Court---No call data record of the phone numbers of the deceased and lady co-accused had been collected in that case by the police to support the said story of the complainant---Circumstances established that the prosecution had failed to prove its case beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Dishonest improvement made by eye-witness---Effect---Accused were charged for committing murder of brother of the complainant by firing---In the present case, although eye-witness made dishonest improvement during his cross-examination that he told the Investigating Officer that he along with another person went to the place of occurrence to see a plot in a housing scheme but he conceded that the said reason was not mentioned in his statements recorded under S.161, Cr.P.C. or even in his examination-in-chief---Evidently said witness made dishonest improvement during his cross-examination by giving another reason for his presence at the spot at the relevant time by stating for the first time in the court that he went to the place of occurrence to see a plot in a housing scheme---Witness could not give any valid reason for not getting petrol from petrol station situated near his house---Said fact did not appeal to a prudent mind that instead of getting petrol from the petrol stations situated near his house, in his own town, he would go all the way to another town situated at a distance of 15-kilometres just to get petrol for his motorcycle---Circumstances established that the prosecution had failed to prove its case beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances. Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Non-availability of justification for the presence of eye-witnesses at the spot--- Chance witnesses--- Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that both the eye-witnesses could not justify the reason given by them for their presence at the spot at the time of occurrence---Prosecution eye-witnesses were chance witnesses and they could not prove the reason of their presence at the spot at the time of occurrence, therefore, their very presence at the spot at the relevant time become doubtful--- Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Delay of about more than twenty four hours in conducting the post-mortem---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the occurrence took place at 9:00 a.m. but as per statement of Medical Officer the post-mortem examination on the body of deceased was conducted at 9:15 a.m. with the delay of more than 24-hours from the occurrence---Although, complainant stated during his cross-examination that the said delay in conducting the postmortem examination on the body of deceased had occurred due to non-availability of the Medical Officer but no such statement had been made by Medical Officer that, no Medical Officer was available in the concerned mortuary---Said witness rather stated that the dead body was brought at about 12:15 p.m. without police papers and police papers were brought next day at 9:15 a.m. and then he conducted the post-mortem examination on the body of the deceased---Said delay in conducting the postmortem examination on the body of the deceased was suggestive of the fact that the prosecution eye-witnesses were not present at the spot at the relevant time and the said delay was consumed in procuring the attendance of fake eye-witnesses---Circumstances established that the prosecution had failed to prove its case beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances. Zafar v. The State and others 2018 SCMR 326 and Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Motive not proved---Effect---Accused were charged for committing murder of brother of the complainant by firing---Prosecution case was that the motive behind the occurrence was that family members of lady co-accused wanted to marry her with deceased but the family members of the complainant party did not agree with the said proposal and due to the said reason, the accused and co-accused (since acquitted) committed the murder of deceased---Complainant conceded that deceased was already married prior to the occurrence---Complainant also conceded that lady co-accused was already married prior to the occurrence with accused---Said witness further conceded that no particular date, time, month and year of the alleged marriage offer made by lady co-accused or her family members with the deceased had been mentioned in the FIR---Witness also conceded that he did not produce any elder of his family regarding the offer and refusal of marriage proposal given by lady co-accused with the deceased during the investigation of that case---Motive was alleged against lady co-accused and she had been acquitted by the Trial Court and appeal filed against her acquittal had already been dismissed by the Court due to non-prosecution and restoration application filed by the complainant had also been dismissed being time barred---Motive was alleged against lady co-accused and no motive whatsoever had been alleged by the prosecution against the accused---Keeping in view all the said facts, the prosecution could not prove any motive against the accused---Circumstances established that the prosecution had failed to prove its case beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Recovery of crime empties and weapon of offence---Reliance---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the empties recovered from the spot and the pistol were deposited together in the office of Forensic Science Agency on 08.07.2014 by Police Constable---As the empties and pistol were deposited together in the office of Forensic Science Agency, which meant that empties and pistol remained together at the police station---Under the circumstances, possibility could not be ruled out that fake empties were prepared from pistol allegedly recovered on the pointation of the accused and the same were sent to the office of Forensic Science Agency, for their comparison with the said pistol---Witness, who deposited the empties and pistol with the Office of Forensic Science Agency had not been produced in the witness box by the prosecution---Recovery of pistol on the pointation of the accused and positive report of the Forensic Science Agency was of no avail to the prosecution---Circumstances established that the prosecution had failed to prove its case beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances. Mushtaq and 3 others v. The State PLD 2009 SC 1 and Jehangir v. Nazar Farid and another 2002 SCMR 1986 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt----Accused were charged for committing murder of brother of the complainant by firing---Record showed that the accused and co-accused were assigned a joint role of making fire shots at deceased which landed on the different parts of his body, however, the co-accused had been acquitted by the Trial Court vide the impugned judgment, whereas accused had been convicted and sentenced on the basis of same prosecution evidence---If the same prosecution evidence was disbelieved qua one accused then the said evidence could not be believed against the other accused without independent corroboration which was very much lacking in the case---Trial Court distinguished the case of the accused with the case of co-accused on the ground that accused was declared guilty during the police investigation whereas co-accused was declared innocent on the ground that no weapon was recovered from her possession whereas pistol had been recovered from the possession of the accused---Police opinion/ finding regarding innocence of accused became irrelevant after recording of evidence of the parties by the Trial Court---Opinion of the police was inadmissible in evidence---Case of the accused could not be distinguished from the case of co-accused on the basis of police opinion---Case of the accused was not distinguishable from the case of co-accused and as such, the prosecution evidence which had been disbelieved against co-accused could not be believed against the accused without independent corroboration which was very much lacking in the case, therefore, the accused was also entitled to acquittal from the charge---Circumstances established that the prosecution had failed to prove its case beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances. Muhammad Ahmad (Mahmood Ahmed) and another v. The State 2010 SCMR 660; Muhammad Akram v. The State 2012 SCMR 440; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Ali v. The State 2015 SCMR 137 and Ulfat Hussain v. The State 2018 SCMR 313 rel. Ch. Imran Raza Chadhar and Ch. Qasim Raza Chadhar for Appellant as well as Respondent No.1 (in Criminal Revision No.24 of 2015). Ch. Muhammad Ishaq, Additional Prosecutor General for the State. Sajid Hussain Butt for the Complainant as well as Petitioner (in Criminal Revision No.24 of 2015). Date of hearing: 17th November, 2020. JUDGMENT MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.2227 of 2014, filed by Syed Saqlain Shah (appellant) against his conviction and sentence, as well as Criminal Revision No.24 of 2015, filed by Imran Haider petitioner/ complainant for enhancement of sentence from imprisonment for life to death awarded to Syed Saqlain Shah (respondent No.1 of the said criminal revision), as both these matters have arisen out of the same judgment dated 28.11.2014, passed by learned Additional Sessions Judge, Ferozewala. 2. Syed Saqlain Shah (appellant) along with Muhammad Saleem alias Kali Gujar (co-accused since acquitted), Syed Raza Shah (co-accused since acquitted) and Mst. Umm-i-Naila alias Laila (co-accused since acquitted) was tried in case FIR No.1130/2010 dated 16.12.2010, registered at Police Station Ferozewala District Sheikhupura in respect of offences under sections 302/148/149, P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 28.11.2014, has convicted and sentenced the appellant as under:- Under section 302(b), P.P.C. to imprisonment for life. The appellant was also directed to pay an amount of Rs.2,00,000/- (Rupees two hundred thousand only), as compensation to the legal heirs of Kamran Haider (deceased) 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. However, vide the same impugned judgment Muhammad Saleem alias Kali Gujjar, Syed Raza Shah and Mst. Umm-i-Naila alias Laila (co-accused) were acquitted by the learned trial Court while extending them the benefit of doubt. 3. Brief facts of the case as given by the complainant Imran Haider (PW-7) in the FIR (Ex.PG/1) are that on 16.12.2010, at about 9.00 a.m., his brother namely Kamran Haider (deceased) received a call on his mobile phone. On the query of the complainant, Kamran Haider (deceased) told that Mst. Umm-i-Naila alias Laila (co-accused since acquitted) had called him for meeting. The complainant suspected something wrong, therefore, he (complainant) along with his younger brother Farhan Haider followed Kamran Haider (deceased) on their motorcycle. Kamran Haider (deceased) proceeded towards Gujranwal a on G .T. road on his motorcycle Honda-CG-125 (black colour) bearing registration No.LEV-09/ 4030 and when he reached on G.T. Road Total Petrol Pump near Rice Farm, Kala Shah Kaku, Saqlain Shah (appellant), Kali Gujjar (co-accused since acquitted), Mst. Umm-i-Naila alias Laila (co-accused since acquitted), Raza Ali Shah (co-accused since acquitted) and Riaz Shah (co-accused since P.O), along with one unknown accused person emerged at the spot and intercepted him. Saqlain Shah (appellant) and Muhammad Saleem alias Kali Gujjar (co-accused since acquitted) thereafter, made indiscriminate firing with their respective pistols at Kamran Haider (deceased), which landed on the different parts of his body, who after sustaining serious injuries fell down on the ground. Upon seeing the whole occurrence, the complainant along with Farhan Haider (PW) stepped forward on which, the accused persons while making firing and raising 'Lalkaras' fled away from the spot while saying that they had taken the revenge of their insult. The occurrence was also witnessed by Abdul Rehman (given up PW), Durrab Hussain (PW.8) and Ahmad Subhani (given up PW). Kamran Haider succumbed to the injuries at the spot, hence the abovementioned FIR. The motive behind the occurrence was that Umm-i-Naila alias Laila (co-accused since acquitted) wanted to marry with Kamran Haider (deceased) and family members of said co-accused also visited the complainant's house for 2/3 times for the said purpose but the complainant's family members did not agree with the proposal. The complainant's family got contracted marriage of Kamran Haider deceased at some other place and due to the said grudge, the accused persons, in furtherance of their common object, committed the murder of Kamran Haider (deceased). 4. The appellant was arrested in this case by the police 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 on 26.10.2011 to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution produced ten witnesses. Aftab Ahmad, DSP and Abdul Aziz, 982/C were examined as Court witnesses (CW.1 and CW.2, respectively). Prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PT during the trial. The statements of the appellant and his co-accused under section 342, Cr.P.C were recorded, wherein they refuted the allegations levelled against them and professed their innocence. 5. The learned trial Court vide the impugned judgment dated 28.11.2014, 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 wrongly been convicted and sentenced by the learned trial Court; that both the eye-witnesses of the prosecution are chance witnesses because their houses were situated at the distances of 10/15-KMs and 20/25-KMs from the place of occurrence; that the prosecution eye-witnesses could not justify their presence at the spot at the relevant time through any cogent reason, therefore, their evidence is not worthy of reliance; that there is a delay of 24-hours in conducting postmortem examination of Kamran Haider (deceased) which also shows that the prosecution witnesses were not present at the spot at the time of occurrence; that the motive alleged against the appellant has also not been proved in this case by the prosecution and the same has rightly been disbelieved by the learned trial Court; that the recovery of weapon of offence and positive report of the Punjab Forensic Science Agency, Lahore (Ex.PT) is of no avail to the complainant party because the empties and pistol were deposited together in the office of Punjab Forensic Science Agency, Lahore; that the witness, namely, Shahzada Qeqous (837/C) who deposited the pistol and empties in the office of Punjab Forensic Science Agency, Lahore, did not appear in the witness box; that the appellant and Muhammad Saleem alias Kali Gujjar, co-accused were attributed a joint role of firing at the deceased but the said Muhammad Saleem alias Kali Gujjar, co-accused has been acquitted by the learned trial Court and criminal appeal filed against his acquittal i.e. Crl. Appeal No.39 of 2015, has also been dismissed by this Court vide order dated 20.11.2019, therefore, the prosecution evidence which has been disbelieved against the above mentioned co-accused, 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 charge. 7. On the other hand, it is argued by the learned Additional Prosecutor General for the State assisted by learned counsel for the complainant that the prosecution has proved its case against the appellant beyond the shadow of any doubt, therefore, he was rightly convicted and sentenced by the learned trial Court; that the prosecution eye-witnesses were cross-examined at length but their evidence could not be shaken; that the occurrence in this case took place in the broad daylight and as such there was no chance of any misidentification of the appellant; that the appellant along with Muhammad Saleem alias Kali Gujjar, co-accused was given specific role of making fire shots at Kamran Haider, deceased and the said role is fully supported by the medical evidence; that the prosecution case against the appellant has further been corroborated by the recovery of pistol (P-5) from the possession of the appellant and the positive report of Punjab Forensic Science Agency, Lahore (Ex. PT); that motive against the appellant has also been proved by the trustworthy and reliable prosecution evidence and the same was wrongly disbelieved by the learned trial Court; that the acquittal of Muhammad Saleem alias Kali Gujjar, co-accused is of no avail to the appellant because the said co-accused was declared innocent by the police and nothing incriminating was recovered from his possession whereas the appellant was found guilty by the police and pistol (P-5) has also been recovered from his possession and as such his case is distinguishable from the case of Muhammad Saleem alias Kali Gujjar, co-accused (since acquitted), therefore, his criminal appeal may be dismissed. While arguing Criminal Revision No.24 of 2015 for enhancement of sentence of Syed Saqlain Shah (convict), it is argued by learned counsel for the complainant that there was no mitigating circumstance in this case, therefore, Syed Saqlain Shah may be awarded the normal penalty of death. 8. Arguments heard and record perused. 9. The detail of the prosecution case as set forth in the FIR (Ex.PG/1) and in the complaint (Ex. PG), has already been given in paragraph No.3 of this judgment, therefore, there is no need to repeat the same. 10. In order to prove its ocular account, the prosecution has produced in the witness box Imran Haider, complainant (PW.7) and Durrab Hussain (PW.8). The occurrence in this case took place near Total Petrol Pump situated at G.T. Road Kala Shah Kaku. Both the above mentioned eye-witnesses are not residents of the place of occurrence. Imran Haider, complainant (PW.7) has stated during his cross-examination that Durrab Hussain (PW.8) is resident of Wandala Dayal Shah Ferozewala which was situated at a distance of 20/25-KMs from the place of occurrence. He further stated that he himself was resident of Ferozewala and distance between Ferozewala and the place of occurrence was about 15-KMs. In order to justify his presence at the spot at the relevant time, Imran Haider, complainant (PW.7) stated that on the day of occurrence, Kamran Haider, deceased received a phone call and on inquiry of Imran Haider, complainant (PW.7), he (deceased) informed that Mst. Umm-i-Naila alias Laila, co-accused had called him and he was going to meet her. On the said information, the complainant suspected something wrong and followed his brother Kamran Haider, deceased. No telephone number of Mst. Umm-i-Naila alias Laila, co-accused has been mentioned in the FIR (Ex.PG/1) or in the statement of any prosecution witness recorded by the police or by the learned trial Court. Likewise, no phone number of Kamran Haider (deceased) has been mentioned in the FIR or in the evidence of any prosecution witness recorded by the police or by the learned trial Court. Furthermore, no call data record of the phone numbers of the deceased and Mst. Umm-i-Naila alias Laila, co-accused has been collected in this case by the police to support the above mentioned story of the complainant that he suspected something wrong due to phone call of Mst. Umm-i-Naila alias Laila, co-accused, therefore, he followed his brother, namely, Kamran Haider (deceased) on the day of occurrence and reached at the spot where he witnessed the occurrence. Similarly, Durrab Hussain (PW.8) has made this excuse for establishing his presence at the spot at the relevant time that he came to the spot which was situated in another town at a distance of 15-KMs from his town, in order to get petrol for his motorcycle but he conceded during his cross-examination that many other petrol pumps were situated near his house. He did not mention any valid reason for not getting petrol from the petrol pump situated near his house and for travelling all the way to another town which was situated at 15/20-KMs from his town to get the petrol for his motorcycle. The relevant part of his statement during cross-examination reads as under:- "It is correct that I have no house, business place or business concern near the place of occurrence. It is correct that in my statement under section 161, Cr.P.C Ex.DB and in examination in chief, the only purpose was mentioned i.e., getting petrol from the petrol pump. The witness volunteered that I mentioned before the I.O that I along with Ahmad Subhani went there to see the plot in a SA garden but the I.O. did not record said portion of my statement. It is incorrect to suggest that my…

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