--Ss. 302(b)/449/34--Claim of the prosecution that the incident was an outcome of robbery---Identification Parade-

 PLJ 2021 Cr.C. 960

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302(b)/449/34--Identification Parade--No role ascribed--Dishonest improvements--Positive report of PFSA report--Benefit of doubt-Acquittal of--Claim of the prosecution that the incident was an outcome of robbery--Two perpetrators uttered not a single word so as to give rise to hypothesis that deceased fell prey to an attempt robbery--Assailants were standing at a close distance from them and one of them appellant was gripped in clasp by deceased--During this grappling, neither two eye-witnesses nor PW made any endeavour to overpower any of the assailant--One of the perpetrators fired shot at the deceased when he was holding appellant in his clasp--Fire-arm entry wound was on the middle part of left inguinal ligament, whereas, the exit wound was on the back of the deceased-Identification proceedings reveals that the eye-witnesses picked up the appellant from the dummies, however mentioned nothing in which context they have identified him--Improvement was duly attended by the defence and the two eye-witnesses were confronted with their previous statements--Role assigned to appellant was not attributed to him during identification test/parade--Accused was not identified in reference to the role played by him--Positive report of PFSA is nothing but an overzealous effort of the prosecution to provide some support to the case of prosecution--Appeal is allowed.

                                             [Pp. 964, 965 & 966] A, B, C, D, E, F & G

2019 SCMR 631; 2012 SCMR 522; 1995 SCMR 127;
2017 SCMR 135 ref.

M/s. Khawaja Qaiser Butt, Muhammad Shahbaz Khokhar and Syed Muhammad Ali Bokhari, Advocates for Appellant.

Syed Nadeem Haider Rizvi, Deputy Prosecutor General & Mr. Muhammad Laeeq-ur-Rehman, ADPP for State.

Date of hearing: 7.12.2020.

 PLJ 2021 Cr.C. 960
[Lahore High Court, Lahore]
Present: Ch. Abdul Aziz, J.
MUHAMMAD RAFIQUE--Appellant
versus
STATE and another--Respondents
Crl. A. No. 208 of 2011, heard on 7.12.2020.

Judgment

Ch. Abdul Aziz, J.--Muhammad Rafique (appellant) involved in case FIR No. 350/2009 dated 01.07.2009 registered under Sections 459,302 & 34, PPC at Police Station City Mianchannun, District Khanewal, was tried by learned Sessions Judge, Khanewal. The learned trial Court vide judgment dated 27.10.2010 proceeded to convict and sentence the appellant in the following terms:

“(i).Under Section 302 (b)/34, PPC to suffer imprisonment for life. He was also directed to pay Rs. 200,000/- to the legal heirs of the decease as required under Section 544-A, Cr.P.C. and in default whereof to further undergo six months SI.

(ii).Under Section 449, PPC to suffer rigorous imprisonment for ten years with fine of Rs. 100,000/- and in default whereof to further undergo six months SI”.

Challenging his conviction and sentence, appellant filed the instant appeal.

2. Precisely stated the case of the prosecution as unveiled by Complainant Khadim Hussain (PW.10) in FIR (Exh.PC) is to the effect that his brother Ghulam Hussain was working as servant of Israr Hussain Shah Gillani, Advocate for the last ten years; that on 01.07.2009 at about 5:00 p.m., he came to the house of Israr Hussain Shah Gillani to see his brother; that he and his brother were descending from the roof and his brother was ahead of him; that when they reached in the porch of the house, two unknown persons equipped with pistols were already present there; that his brother tried to catch hold of them and the person who was wearing pent-shirt made a pistol shot which hit at his abdomen, due to which his brother became injured and fell on the ground; that upon the hue and cry of the complainant, PWs Fazal-e-Miran and Muhammad Aslam attracted the spot and witnessed the occurrence and that after seeing the PWs, the accused made good their escape while boarding the motorcycle.

3. On 01.07.2009 at about 6:00 p.m., Zafar Iqbal SI (PW.12.) after the receipt of information about the incident reached the place of occurrence. He prepared rough site-plan (Exh.PP) and secured blood stained earth vide memo Exh.PJ. He also took into possession one bullet and one helmet vide memo Exh.PL, Zafar Iqbal SI (PW.12) arrested Muhammad Rafique (appellant) on 25.12.2009 when he was coming on a motorcycle from Chak No. 131/15-L and during interrogation he disclosed about the commission of the incident in question. He also got conducted the identification test/parade under the supervision of Illaqa Magistrate on 06.01.2010 in Central Jail, Multan where Complainant Khadim Hussain, Muhammad Afzal and Fazal-e-Miran PWs were present there. On 13.01.2010, Muhammad Rafique (appellant) made disclosure and in pursuance thereof led to the recovery of pistol (P.6) which was taken into possession vide memo Exh.PN. He recorded the statements of witnesses under Section 161, Cr.P.C. and finally submitted report under Section 173, Cr.P.C. against the appellant.

4. Prosecution in order to prove its case against the appellant produced thirteen PWs including Khadim Hussain (PW.10) & Fazal-e-Miran (PW.11), who narrated the ocular account, Dr. Muhammad Akbar (PW.4) who furnished the medical evidence, Zafar Iqbal SI (PW.12) who is Investigating Officer of the case and Saad Salman Khan Magistrate Section-30 (PW.13) who supervised the identification parade held on 06.01.2010. The remaining PWs more or less were formal in nature.

5. Dr. Muhammad Akbar (PW.4) on 01.07.2009 conducted the autopsy of Ghulam Hussain and noted the following injuries:

(1)      Fire-arm injury 1.5 cm x 1.25 cm with inverted margins just above middle part of left inguinal ligament on front of left abdomen, in its lower most part going deep towards the abdominal cavity going backwards, slightly upwards and towards the right side.

(2).     Fire-arm wound 2 cm x 1.5 cm with everted margins on right half of back, 5 cm on right side of vertebral column and 5 cm right buttock going deep forward slightly downwards and towards the left side towards the abdominal civility.

According to the opinion of the doctor, the cause of death in this case was due to haemorrhage and shock resulted by injuries No. 1 & 2 which were caused by Fire-arm weapon. The doctor described the probable duration between injuries and death as immediate.

6. After the conclusion of prosecution evidence, the learned trial Court also examined the appellant under Section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and involvement in the case. Appellant neither made statement under Section 340(2) of, Cr.P.C. nor produced any witness in his defence, however produced photocopy of FIR No. 591/2009 dated 18.11.2009 as Mark-A. On the conclusion of trial, the appellant was convicted and sentenced as afore-stated, hence, the instant appeal.

7. It is contended by the learned counsel that though apparently the case in hand is arising out of promptly lodged FIR, however, it was made to look so by concealing actual facts and through tampering of record; that admittedly the eye-witnesses were having no acquaintance with the Appellant and his credentials were brought on record through identification test/parade which was not conducted in consonance with law; that even during this identification parade, no specific role was attributed to the Appellant, thus the same has no legal sanctity; that the incident was projected as an outcome of attempted robbery, however the attending circumstances provide no strength to such claim; that indeed the incident in question went un-witnessed and subsequently the relatives of the deceased were summoned and made as eye-witnesses to prove some support to the frail prosecution case; that though the pistol recovered from the Appellant was found wedded with the crime empty, however the report of PFSA has no consequence as the anomaly was brought on record about the safe transmission of the pistol and empty to the office of PFSA and that since the prosecution has failed to prove its case, hence the conviction awarded to the Appellant is uncalled for. With these submissions, it was urged that the conviction awarded to the Appellant is not sustainable and the Appellant’s appeal is liable to be accepted.

8. On the other hand, learned law officer argued with vehemence that the case in hand is arising out of promptly lodged FIR and this aspect is sufficient to prove the presence of eye-witnesses at the spot; that admittedly the Appellant is not nominated in the FIR. and this fact is sufficient to demonstrate that the Complainant or other eye-witnesses had no enmity with the Appellant so as to implicate him in the crime report; that the eye-witnesses successfully narrated all the essential detail of the incident and their testimony is supported from the medical evidence and other attending circumstances; that the positive report of PFSA is another factor to prove the guilt of the Appellant and his involvement in the commission of crime. Learned law officer, thus prays that the instant appeal merits dismissal.

9. Arguments heard. Record perused.

10. It is discernable from the record that the case in hand was registered for an incident having occurred on 01.07.2009 at about 5:00 p.m., during which one Ghulam Hussain lost his life after the receipt of solitary Fire-arm injury at his abdomen. The law was set into motion by the brother of the deceased, namely, Khadim Hussain through written application (Exh.PC/1) presented before Zafar Iqbal SI (PW.12) during his visit to the crime scene at about 5:30 p.m. A wade through the contents of the FIR unveils that the incident was canvassed as an outcome of attempted robbery and the accusation of committing the crime in question was pointed towards two unknown persons.

11. According to the prosecution version, Ghulam Hussain (deceased) used to work with Peer Israr Hussain Gillani, who was an advocate by profession and the incident in question occurred in the house of Peer Israr Hussain Gillani, Advocate but neither he joined the investigation nor appeared as witness during trial. The ocular account in this case was furnished by Khadim Hussain and Fazl-e-Miran (PW.10 & PW.ll) who were related with the deceased as brother and maternal nephew, having their abode in Chak No. 123/15-L, Mianchannu. The vicinity of crime was known as Fakhar Town, Mianchannu and was situated at a distance of about 12/13 Kilometers from Chak No. 123/15-L where the eye-witnesses were residing. Since two eye-witnesses offered no reason for their presence at the crime scene, hence inexorably are to be treated as chance witnesses. Instead of discarding the testimony of both the two eye-witnesses, this Court resorted to a cautious approach and formed view to examine their deposition with utmost watchfulness.

In reference to the claim of the prosecution that the incident was an outcome of robbery, it is observed that the two perpetrators uttered not a single word so as to give rise to hypothesis that Ghulam Hussain fell prey to an attempted robbery. Two eye-witnesses claimed that the assailants were standing at a close distance from them and one of them (Appellant) was gripped in clasp by Ghulam Hussain. It was at this moment when other perpetrator caused Fire-arm injury to the deceased. From the foregoing narration, it is observed that during this grappling, neither two eye-witnesses nor Muhammad Afzal (given up PW) made any endeavour to overpower any of the assailant, so much so the eye-witnesses raised no hue and cry for the help of other residents of the locality.

The most important aspect discernable from the ocular account is to the effect that one of the perpetrators fired shot at the deceased when he was holding Muhammad Rafique (appellant) in his clasp. According to the medical evidence furnished by Dr. Muhammad Akbar (PW.4), the Fire-arm entry wound was on the middle part of left inguinal ligament, whereas, the exit wound was on the back of the deceased. Now the question arises that if at all the deceased was holding Muhammad Rafique (appellant) in his clasp, then how the bullet made ingress into the body of the deceased from the abdomen. This anomaly unfortunately remained unaddressed during trial as well as before this Court during arguments.

From above-mentioned anomaly, an inevitable conclusion can be drawn which is adverse to the acclaimed presence of eye-witnesses at the spot.

12. According to record, the veil was lifted from the identity of the perpetrators through identification test/parade which was held under the supervision of Saad Salman Khan Magistrate Section-30 (PW. 13) on 06.01.2020 in New Central Jail, Multan. An in-depth review of identification proceedings reveals that the eye-witnesses picked up the appellant from the dummies, however mentioned nothing in which context they have identified him. Saad Salman Khan Magistrate Section-30 (PW.13) admitted this lacuna through the following excerpt of his cross-examination:

“None from the PWs had mentioned the role of accused Muhammad Rafique while identifying him as an accused.”

Both the eye-witnesses i.e. Khadim Hussain and Fazl-e-Miran (PW.10 & PW.11) while appearing in the dock tried to cover up this lacuna and made an improvement in their Court statements whereby they described Muhammad Rafique (appellant) as the one who was held in clasp by the deceased. This-improvement was duly attended by the defence and the two eye-witnesses were confronted with their previous statements and duly, proved it as an addition. Needless to mention here that as’per settled principles laid down for the appraisal of evidence, any factor introduced through tool of dishonest improvement is destined to be discarded. Reference in this context can be made to the case reported as Muhammad Arif v. The State (2019 SCMR 631) wherein the Hon’ble Supreme Court of Pakistan held as under:

“It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.”

After having observed that the role assigned to Muhammad Rafique (appellant) was not attributed to him during identification test/parade rather given during trial through dishonest improvement, this Court is confronted with the query as to what is its impact on the prosecution case. As per law on the identification, if any accused is not picked up during these proceedings by the witnesses in reference to the specific role, identification proceedings lose legal significance. Reliance in
this regard can be placed upon the case reported as Muhammad Fayyaz v. The State (2012 SCMR 522) wherein the Hon’ble Supreme Court of Pakistan rendered the identification test of no legal significance in which the accused was not identified in reference to the role played by him in the commission of crime, with the following observation:

“After his arrest the appellant was put to a test identification parade and although he had been correctly picked up by the eye-witnesses yet indisputably such identification had been made without any reference to the role allegedly played by the appellant during the incident in issue. The law is by now settled that evidentiary value of such an identification in a test identification is next to nothing”.

If any further reference in this regard is needed that can be made to the cases reported as Mehmood Ahmed and 3 others v. The State (1995 SCMR 127) and Azhar Mehmood and others v. The State (2017 SCMR 135).

13. This Court has also given a considered thought to the recovery of pistol effected from Muhammad Rafique (appellant) which according to PFSA report (Exh.PU) matched with the crime empty secured from the spot. In this regard, it is noted that Muhammad Hanif 281/C who brought the pistol and crime empty to the office of PFSA was not produced during trial. The non-production of Muhammad Hanif 281/C is sufficient to create dent in the case of prosecution as far as it relates to the safe transmission of crime weapon as well as the empty to the office of PFSA. It is also observed that since Muhammad Rafique (appellant) was not assigned the role of resorting to firing, hence the positive report of PFSA is nothing but an overzealous effort of the prosecution to provide some support to the case of prosecution.

14. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond scintilla of any doubt.  We allow Criminal Appeal No. 208 of 2011 while giving benefit of doubt to Muhammad Rafique (appellant), set-aside his conviction and sentence and consequence there of he stands acquitted of the charge. The appellant is on bail and as such his sureties stand discharge from their bail bonds.

(M.A.B.)         Appeal allowed