-Ss. 302(b) & 393--Sentence--Challenge to--Committing robbery and murder--Un-witnessed occurrence--Accused were not nominated in FIR--Descriptions were not mentioned in FIR--Validity--

 PLJ 2021 Cr.C. (Lahore) 501

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

----Ss. 302(b) & 393--Sentence--Challenge to--Committing robbery and murder--Un-witnessed occurrence--Accused were not nominated in FIR--Descriptions were not mentioned in FIR--Validity--No descriptions/features such as height, complexion, physique and age etc. of accused persons were given in FIR or disclosed by complainant (PW.3) and (PW.4), alleged eye-witnesses before trial Court and words “accused persons/unknown dacoits” were used by them--Held: It is well settled that identification parade is of no value when descriptions/features of accused are not given in contents of FIR.                                                                [P. 505] A

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

----Ss. 302(b) & 393--Sentence--Challenge to--Committing robbery and murder--Identification parade--Unseen occurrence--So far as test identification parade is concerned, eye-witnesses who allegedly picked up appellant during test identification parade have not mentioned role of appellant and it was stance of Mian Qaisar Javaid, Special Judicial Magistrate during his cross-examination that eye-witnesses  and (given up PW) stated before him that they saw three persons boarded on motorcycle, who were going from there rashly--Same was version of complainant in his statement recorded in proceedings of test identification parade--Complainant party attracted to parking stand and three accused decamped from spot on motorcycle while making firing, which suggests that they have not seen accused while committing murder of deceased under above circumstances--Test identification parade conducted in this case carries no value in eye of law.                            [Pp. 505, 506 & 507] B & C

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

----Ss. 302(b) & 393--Sentence--Challenge to--Committing robbery and murder--Recovery of pistol--Medical evidence--As far as alleged recovery of .30 bore pistol (P.1) at instance of appellant which was taken into possession vide recovery memo. is concerned, same is inconsequential because of reason that report of Punjab Forensic Science Agency is simply to effect that pistol was in mechanical operating condition--Same is only a supporting piece of evidence because it may confirm ocular evidence with regard to receipt of injury, its locale, kind of weapon used for causing injury, duration between injury and death but it would not tell name of assailant. 

                                                                                      [P. 507] D & E

Criminal Procedure Code, 1898 (V of 1898)--

----S. 342--Statement of accused--Version--Benefit of doubt--Court have considered all pros and cons of this case and have come to this irresistible conclusion that, prosecution could not prove its case against appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to, discharge its responsibility of proving case against appellant--Further held: It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [Pp. 507] F, G & H

Mr. Muhammad Akram Khaksaar, Advocate appointed as Defence Counsel at State expense for Appellant.

Mr. Ahmad Saeed, Deputy Prosecutor General for State.

Nemo for Complainant.

Date of hearing: 19.2.2021.

 PLJ 2021 Cr.C. (Lahore) 501
Present: Shehram Sarwar Ch., J.
MUHAMMAD SHARIF alias PAPU--Appellant
versus
STATE--Respondent
Crl. A. No. 153-J of 2015, decided on 19.2.2021.

Judgment

Muhammad Sharif alias Papu (appellant) was tried by the learned Addl. Sessions Judge, Faisalabad in case FIR No. 189 dated 20.02.2013, offence under Sections 302 and 393, PPC registered at Police Station Peoples Colony District Faisalabad for committing robbery and murder of Muhammad Shafique Ali (deceased) brother of complainant. Vide judgment dated 09.04.2015 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to life imprisonment, with a further direction to pay Rs. 1,00,000/- (rupees one lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased. The appellant has also been convicted under Section 393, PPC and sentenced to rigorous imprisonment for five years with fine of Rs. 20,000/- (rupees twenty thousand only) and in default thereof to further undergo simple imprisonment for three months. Both the sentences of the appellant were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Assailing the above convictions and sentences, the appellant has filed the appeal in hand.

2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the statement (Ex.PA) of Muhammad Tanveer, complainant (PW.3) is that on 20.2.2013, a child was born through operation in Faisal Hospital of Mst. Yasmin Arfan sister of complainant. At around 8.30 p.m. the complainant along with his brother Muhammad Shafique Ali, Arfan Mehmood and Saeed-ul-Hassan came to Faisal Hospital on a Car Bearing Registration No. 499-FSK to see his sister. When they reached hospital, Muhammad Shafique Ali dropped them at the gate of hospital and went to nearby parking stand to park the car. Street lights were lit on the gate of hospital and in the street. Meanwhile, four unknown accused armed with pistols arrived there and tried to snatch car from brother of complainant, who resisted; whereupon the accused resorted to firing and a fire of accused hit brother of complainant on left side of his head and exited from other right side. One of the accused also sustained firearm injury on his forehead and succumbed to the injuries on the spot. On hearing report of firing, the complainant party attracted to the parking stand and three accused decamped from the spot on motorcycle while making firing.

3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Muhammad Sharif alias Papu (appellant) was summoned by the learned Addl. Sessions Judge, Faisalabad to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302 and 393, PPC was framed against him on 27.09.2013, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 06.04.2015, wherein he refuted all the allegations of prosecution and professed his innocence. The appellant did not opt to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) Code of Criminal Procedure, however, he produced certain documents (Ex.DB to Ex.DF & Mark-A) as defence evidence. After conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal.

4. I have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.

5. This case was got registered by Muhammad Tanveer, complainant (PW.3) for the murder of his brother namely Muhammad Shafique Ali, which was allegedly committed on 20.02.2013 at about 8.30 p.m. in the area of Faisal Hospital situated within the territorial jurisdiction of Police Station Peoples Colony District Faisalabad. The distance between the police station and the place of occurrence was one and a half kilometers. The matter was reported to the police through statement (Ex.PA) of complainant (PW.3) on the same night at 9.15 p.m. and formal FIR (Ex.PA/1) was got registered at 9.30 p.m. However, the post-mortem examination of the dead body of Muhammad Shafique Ali (deceased) was conducted on the next day on 21.2.2013 at 10.45 a.m. i.e. about fourteen hours and fifteen minutes after the incident. Therefore, possibility exists that it was an unwitnessed murder and time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. In this regard, reliance is placed on the case of “Muhammad Riaz vs. The State” (2009 P.Cr.LJ. 1022 Lahore), wherein this Court has observed as under:

“13. ... It is also not found correct that the F.I.R. had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the post-mortem examination was conducted at 1-00 p.m. and there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot ...”

Same view was affirmed by the Hon’ble Supreme Court of Pakistan in the case of “Irshad Ahmed vs. The State” (2011 SCMR 1190), wherein it was observed as under:

 “3. ... We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted ...”

The above said view has been further fortified in another case titled as Nazeer Ahmed vs. The State (2016 SCMR 1628).

6. Admittedly, the FIR was got registered against three unknown accused and the appellant is not named in the FIR in any manner whatsoever. I have observed that no descriptions/features such as height, complexion, physique and age etc. of the accused persons were given in the FIR or disclosed by Muhammad Tanveer, complainant (PW.3) and Saeed-ul-Hassan (PW.4), alleged eye-witnesses before the learned trial Court and the words “accused persons/unknown dacoits” were used by them. It is well settled that identification parade is of no value when descriptions/features of the accused are not given in the contents of the FIR. I may also refer here the case of “Sabir Ali alias Fauji versus The State” (2011 SCMR 563) wherein, at page 570, the Hon’ble Supreme Court of Pakistan was pleased to observe as under:

“6. ... It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the F.I.R. It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of F.I.R., the benefit of doubt be given to the accused persons coupled with the fact that according to the prosecution witnesses they had opportunity to see them on the day of incident in moonlight ...”.

7. So far as test identification parade is concerned, the eye-witnesses who allegedly picked up the appellant during the test identification parade have not mentioned the role of the appellant and it was stance of Mian Qaisar Javaid, Special Judicial Magistrate (PW.7) during his cross-examination that the eye-witnesses (PW.3 & 4) and Arfan Mehmood (given up PW) stated before him that they saw three persons boarded on motorcycle, who were going from there rashly. Same was the version of complainant in his statement (Ex.PE/1) recorded in the proceedings of test identification parade. 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. If 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 as 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).”

Even in the FIR, it was case of prosecution that on hearing report of firing, the complainant party attracted to the parking stand and three accused decamped from the spot on motorcycle while making firing, which suggests that they have not seen the accused while committing murder of deceased. Under the above circumstances, I am of the view that the test identification parade conducted in this case carries no value in the eye of law.

8. As far as the alleged recovery of .30 bore pistol (P.1) at the instance of appellant which was taken into possession vide recovery memo. (Ex.PB) is concerned, the same is inconsequential because of the reason that the report of Punjab Forensic Science Agency (Ex.PT) is simply to the effect that the pistol was in mechanical operating condition.

9. So far as the medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailant. Reliance is placed on “Ata Muhammad and another vs. The State” (1995 SCMR 599).

10. So far as version of the appellant taken by him in his statement recorded 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.

11. I 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 appellant 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 appellant. 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 this regard, reliance may be

placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).

12. For the foregoing reason, Crl. Appeal No. 153-J of 2015 filed by Muhammad Sharif alias Papu (appellant) is allowed, convictions and sentences awarded to the appellant vide judgment dated 9.4.2015 passed by the learned Addl. Sessions Judge, Faisalabad are set aside and he is acquitted of the charges while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

(R.A.S.)           Appeal allowed