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Petitioner: MUHAMMAD ASHGAR VS Respondent: StateHonorable Justice Raja Shahid Mehmood AbbasiMuhammad Yar Khan Daha
2019 P Cr. L J Note 90 [Lahore] Before Raja Shahid Mehmood Abbasi, J MUHAMMAD ASHGAR and another---Appellants Versus The STATE and others---Respondents Criminal Appeal No. 75 of 2016 and Criminal Revision No. 2113 of 2015, heard on 11th February, 2019.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused along with his co-accused committed murder of the brother of complainant by firing---Ocular account of the incident was furnished by real brother and uncle of the deceased---Record revealed that occurrence in the case had taken place twelve kilometres away from the residences of eye-witnesses---Said witnesses were chance witnesses and very closely related to deceased as they had claimed to have witnessed the occurrence when they were going to the office of Patwari, 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 official at such early hours of the day when even his office was yet to open---Said eye-witnesses had, therefore, failed to establish any plausible reason for their availability near the place of occurrence at the relevant time---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---Complainant in crime report as well as in his statement before Trial Court maintained that the assailants had made two fire shots targeting left flank and left eye of deceased--- Medical history of the deceased showed that the firearm injury on his left eye was in fact an exit wound of injury on back of his head, which was attributed to co-accused, since acquitted---Such conflict between ocular and medical evidence was 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 being brother and uncle of deceased---If said witnesses were present there at the relevant time, they must have correctly described the seat of entry wound on the person of the deceased---Record showed that complainant while making dishonest improvements deviated from his earlier statement---Testimony of other eye-witness could not be accounted for to maintain conviction and sentences of the accused when he himself had stated in categorical terms that he never made any statement before the police during the course of investigation---Circumstances suggested that the eye-witnesses were not present at the spot at the time of occurrence, therefore reliance on their depositions could not be placed---Prosecution had failed to prove its case beyond shadow of doubt, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.
Arshad Khan v. The State 2017 SCMR 564 and Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 848 rel.
(b) Criminal trial---
----Witness, testimony of--- Improvements made by eye-witness--- Scope---Improvements made by eye-witness in order to strengthen the prosecution case, would not be reliable.
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 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Identification parade---Scope---Record showed that accused was arrested by the Investigating Officer on 13.2.2013 being suspect under S. 54, Cr.P.C. and his identification parade was conducted on 20.2.2013 under the supervision of Judicial Magistrate---Statement of complainant showed that the accused was arrested by the police much earlier than the said date of his arrest and exposure of the accused to the prosecution witnesses before his identification parade was also not free from doubts---In such state of affairs, said identification parade had lost its evidentiary value---Complainant, during cross-examination had stated that he had submitted application before the Investigating Officer 2/3 days after the murder of his brother whereby he nominated co-accused, since acquitted---In that application, complainant had categorically mentioned about the arrest and identification of accused-appellant---Said circumstances showed that accused was already in the custody of 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 in the crime report and eye-witness in his statement under S. 161, Cr.P.C.---Correctly capturing the fleeting features of accused during the occurrence was not beleivable---Identification parade was inconsequential in circumstances.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art. 22---Identification parade---Scope---Identification parade must be held at the earliest possible opportunity after the occurrence---If witnesses had seen the accused after his arrest, identification parade would become worthless---Identification parade was not a substantive piece of evidence rather a corroborative evidence, which was not acceptable in absence of other independent evidence.
Mah Gul v. the State 2009 SCMR 4 and Shafqat Mehmood and others v. The State 2011 SCMR 537 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Medical evidence---Scope---Medical evidence could 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.
Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of crime weapon and empties---Reliance---Scope---Record showed that Report of Forensic Science Laboratory was received in positive in respect of matching of the firearm recovered from the custody of accused with a crime empty secured from the place of occurrence---Prosecution had failed to prove save transmission of crime empties secured during spot inspection by withholding evidence of police constable who had allegedly deposited the crime empties in the office of said Laboratory---Positive report was of no avail to the prosecution, in circumstances.
(g) Criminal trial---
----Benefit of doubt---Principle---Single circumstance creating doubt is enough to extend its benefit to the accused not as a matter of grace but as a matter of right.
Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.
Muhammad Yar Khan Daha for Appellants.
Imdad Ali Chatha, D.P.G. for the State.
Zafar Iqbal Bhatti for the Complainant.
Date of hearing: 11th February, 2019.
JUDGMENT
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…
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