PLJ 2019 Cr.C. (Note) 14
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 392, 397, 511 & 34--Conviction and death sentenced--Murder Reference--Challenge to--Informer--False implication through supplementary Statement--Unseen incident--Appellants were not nominated in FIR--Joint identification parade--Recovery of weapon--No specific role of causing injuries to deceased--Acquittal of--In the supplementary statement it was the case of complainant that he came to know about the name of assailants through informer but it has not been brought on record as to how the informer gained knowledge about the names of the culprits and moreover the informer neither joined the police investigation nor produced by the prosecution during the trial--Identification parade of the appellants was held under the supervision of Judicial Magistrate wherein both the above said appellants had been made to sit jointly alongwith many other dummies--Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Hon’ble Supreme Court of Pakistan--Appeal is allowed, convictions and sentences awarded to the appellants are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt.
[Para 8, 9 & 14] A, B & G
2017 SCMR 1189 & 1995 SCMR 127, ref.
Medical Evidence--
----Evidentiary Value--Medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprits implicated in this case--Held: It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. [Para 10 & 11] C & D
2007 SCMR 525 & 2008 SCMR 707, ref.
Recovery of Motorcycle--
----There is nothing on record as to who was the owner of the said motorcycle and moreover no registration book of said motorcycle was produced during the trial--Even in the FIR, the motorcycle 125 is mentioned whereas the recovery of PH-70 was got effected by the said appellant. [Para 11] E
Benefit of doubt--
----Shadow of doubt--Weakness of defence--Held: It is by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence--In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants--Further held: It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. [Para 13] F
2009 SCMR 230, ref.
Mr. Faisal Shahzad Gondal, Advocate for Appellants.
Mr. Munir Ahmad Sial, D.P.G. for State.
M/s. S.M. Zeeshan Mirza, Zahir Abbas and M. Sajjad Ch. Advocates for Complainant.
Date of hearing: 29.5.2018.
PLJ 2019 Cr.C. (Note) 14
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch. JJ.
versus
STATE--Respondent
Crl. Appeal No. 74739-J of 2017 and M.R. No. 484 of 2017,
heard on 29.5.2018.
Judgment
Shehram Sarwar Ch. J.--Amjad Ali alias Jajji and Kashif alias Kashi (appellants) were tried by the learned Sessions Judge, Nankana Sahib in case FIR No. 272, dated 17.07.2011, offence under Sections 302, 324, 392, 397, 511 and 34 PPC registered at Police Station Faizabad District Nankana Sahib for committing robbery, murder of Nafees Ahmad (deceased) brother of complainant and launching murderous assault on Munir Ahmad (injured) his father. Vide judgment dated 24.07.2017 passed by the learned Sessions Judge, Nankana Sahib, Amjad Ali alias Jajji (appellant) has been convicted under Section 302(b) PPC and sentenced to death. Kashif alias Kashi (appellant) has also been convicted under Section 302(b) read with Section 34 PPC and sentenced to life imprisonment. Both the appellants were ordered to pay Rs. 3,00,000/- (rupees three lakh only) each as compensation under Section 544-A, Cr.P.C. to the legal heirs of Nafees Ahmad (deceased) and in default whereof to further undergo simple imprisonment for six months each. The appellants have also been convicted under Section 397 PPC and sentenced to seven years rigorous imprisonment each with fine of Rs. 50,000/- (rupees fifty thousand only) each and in default thereof, to further undergo six months simple imprisonment each. Kashif alias Kashi (appellant) has further been convicted under Section 324 PPC and sentenced to ten years rigorous imprisonment with fine of Rs. 50,000/- (rupees fifty thousand only) and in case of non-payment of fine, he shall further undergo six months simple imprisonment. Amjad Ali alias Jajji (appellant) has also been convicted under Section 324 read with Section 34 PPC and sentenced to ten years rigorous imprisonment with fine of Rs. 50,0000/- (rupees fifty thousand only) and in case of non-payment of fine, he shall further undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was also extended to the appellants. Assailing the above conviction and sentence, the appellants have filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 484 of 2017 for confirmation or otherwise of Amjad Ali alias Jajji, appellant’s sentence of death, as required under Section 374, Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the written application (Ex.PA) of Sheikh Saleem Ahmad, complainant (PW.6) is that he was resident of Mandi Faizabad and running the business of milk and curd. On 16.07.2011 at about 9.00/10.00 p.m. the complainant, his brother Nafees Ahmad and father Munir Ahmad were boiling the milk in their shop, all of a sudden, two unknown dacoits armued with pistols came on motorcycle 125 and entered the shop of complainant and immediately thereafter, both the dacoits pointed their pistols at Nafees Ahmad and Munir Ahmad and while extending threats of life demanded all their belongings. Nafees Ahmad made resistance, whereupon one of the dacoits fired with pistol at him which landed under his left armpit near heart, who fell down in injured condition. The other dacoit fired with pistol at Munir Ahmad hitting him on left shoulder’s side on the chest, who also fell in injured condition. The complainant hid himself to save his life. On hearing report of fires, Muhammad Usman, Adnan and other people attracted there. There was enough light of electricity in the shop and they (witnesses) witnessed the occurrence as well as dacoits while making firing. It is mentioned in the FIR that the dacoits can be identified on confrontation. The complainant along with Muhammad Usman and Adnan shifted Nafees Ahmad and Munir Ahmad to Mayo Hospital, Lahore in injured condition but Nafees Ahmad succumbed to the injuries. The appellants were implicated in this case through supplementary statement of the complainant got recorded on 19.07.2011.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellants were summoned by the learned Addl. Sessions Judge, Nankana Sahib to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 392, 397, 511 and 34 PPC was framed against them on 29.10.2011, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellants under Section 342, Code of Criminal Procedure were recorded on 18.07.2017, wherein they refuted all the allegations of the prosecution and professed their innocence. In answer to question as to why this case against him and why the prosecution witnesses had deposed against him, Amjad Ali alias Jajji (appellant) stated as under:
“In-fact it is a false case. I have been falsely involved in this case due to suspicion. It was a blind murder. In-fact prior to instant occurrence, quarrel was taken place between me and the complainant that is why complainant involved me falsely in this case on the asking of some one. In-fact citizen of Mandi Faizabad arranged a protest against the police on the early hours of the day when the instant occurrence took place and said protest was against the criminals. One Munir fertilizer dealer was injured by “Wandra” group on the issue of extortion and three other businessmen were injured on the issue of extortion. The criminals who indulged in extortion of money, police became complainant in different cases of extortion. In-fact some one who was demanding extortion from the deceased has committed the instant occurrence and I have been made scapegoat in this case by the local police just to show efficiency. No case of extortion has ever been registered against me in any police station.”
To the above said question, same was the standpoint of Kashif alias Kashi (appellant). The appellants neither opted to appear as their own witnesses, in disproof of the allegations levelled against them, as provided under Section 340(2), Code of Criminal Procedure nor did they produce any evidence in their defence. However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellants, as detailed above. Hence this appeal and murder reference.
4. It is pertinent to mention here that earlier the appellants were by tried by the learned trial Court in this case and convicted/sentenced vide judgment dated 28.01.2014 but on appeals filed by the appellants, this Court vide judgment dated 02.06.2017, remanded the case back to the learned trial Court for its decision afresh.
5. Learned counsel for the appellants, in support of this appeal, contends that the appellants have falsely been implicated in this case; that it was an unseen incident; that the appellants were not nominated in the FIR either by name or by description; that identification parade conducted in this case has no value in the eye of law; that medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case; that alleged recoveries of .30 bore pistols (P.4 and P.6) at the instance of Amjad alias Jajji and Kashif alias Kashi (appellants), respectively, are inconsequential; that similarly alleged recovery of motorcycle (P.5) at the instance of Amjad alias Jajji (appellant) does not advance the case of prosecution; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.
6. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that matter was reported to the police with due promptitude; that though the names of the appellants are not mentioned in the FIR but this sole circumstance goes a long way to establish bona fide of the complainant because had there been any malice on the part of the complainant, the appellants could have straightaway been nominated in the FIR; that all the appellants were rightly identified during the course of identification parade conducted under the supervision of learned Judicial Magistrate (PW.9); that prosecution case is fully supported by medical evidence and further corroborated by the recoveries of .30 bore pistols (P.4 & P.6) at the instance of Amjad alias Jajji and Kashif alias Kashi (appellants), respectively; that prosecution case is further corroborated by the recovery of motorcycle (P.5) at the instance of Amjad alias Jajji (appellant); that the prosecution has successfully brought home guilt against the appellants beyond any shadow of doubt and there is no merit in this appeal.
7. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
8. Undisputedly, the appellants are not nominated in the FIR either by name or by description. The appellants were implicated in this case through supplementary statement of the complainant recorded on 19.07.2011 i.e. about three days after the occurrence without there being any satisfactory explanation. In the supplementary statement no specific role of causing injuries on the person of Nafees Ahmad (deceased) and Munir Ahmad (injured) were attributed to the appellants. Munir Ahmad (PW.7) has stated in his cross-examination that he narrated the name of Amjad and Kashif in his statement, which was recorded on the next day of occurrence whereas Ghulam Qadir S.I. (PW-11) has stated in his cross examination that PWs Usman, Munir Ahmad and Allah Ditta have not named any accused in their statements u/S. 161 Cr.P.C. In the supplementary statement it was the case of complainant that he came to know about the name of assailants through informer but it has not been brought on record as to how the informer gained knowledge about the names of the culprits and moreover the informer neither joined the police investigation nor produced by the prosecution during the trial.
9. The identification parade conducted in this case is of no avail to the prosecution because as per prosecutions’ own case, prior to the identification parade, the appellants had already been implicated in this case on the basis of supplementary statement of the complainant just three days after the incident and if it was so then what was the need of identification parade. Admittedly, identification parade of the appellants was held on 30.7.2011 under the supervision of Abid Mehar, Judicial Magistrate (PW.9) wherein both the above said appellants had been made to sit jointly alongwith many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Hon’ble Supreme Court of Pakistan in a recent Judgment passed in case titled “Gulfam and another versus The State” (2017 SCMR 1189). Even in the proceedings of identification parade, all the witnesses of ocular account have not assigned any specific role to the appellants. In this regard reliance is placed on “Mehmood Ahmad and 3 others versus The State and another” (1995 SCMR 127). The relevant portion of the above said judgment at page 133 reads as under:--
“It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value. Reference can be made to Khadim Hussain v. The State (1985 SCMR 721), where Shafiur Rahman, J. observed as follows:--
“It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. It was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown ILR 51 Lah. 396 in following words:
“The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person has having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight.”
This view was followed in Ghulam Rasool and 3 others v. The State (1988 SCMR 557).”
10. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as “Muhammad Saleem vs. Shabbir Ahmad and others” (2016 SCMR 1605).
11. As far as alleged recoveries of .30 bore pistols (P.4 and P.6) at the instance of Amjad alias Jajji and Kashif alias Kashi (appellants), respectively, are concerned the same are inconsequential because as per report of Forensic Science Laboratory (Exh.PY) both the parcels said to contain crime empty and pistols were received in the said office together on 10.12.2011. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the cases of “Jehangir vs. Nazar Farid and another” (2002 SCMR 1986), “Israr Ali vs. The State” (2007 SCMR 525) and “Ali Sher and others vs. The State” (2008 SCMR 707). As far as alleged recovery of motorcycle (P.5) at the instance of Amjad alias Jajji (appellant) is concerned the same does not advance the case of prosecution because there is nothing on record as to who was the owner of the said motorcycle and moreover no registration book of said motorcycle was produced during the trial. Even in the FIR, the motorcycle 125 is mentioned whereas the recovery of PH-70 was got effected by the said appellant.
12. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
13. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In “Muhammad Akram versus The State” (2009 SCMR 230), the Hon’ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:
“13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
14. For the foregoing reasons, the appeal in hand is allowed, convictions and sentences awarded to the appellants vide judgment dated 24.07.2017 passed by the learned Sessions Judge, Nankana Sahib are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. Amjad alias Jajji and Kashif alias Kashi, appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No. 484 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Amjad alias Jajji (convict) is NOT CONFIRMED.
(M.M.R.) Appeal allowed
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