PLJ 2022 Cr.C. 1603 (DB)
Joint Identification--
----Rule of prudence--But identification proceedings are desired to be conducted separately in pursuance of rule of prudence--Secondly, Hon’ble Apex Court in above para used word “ordinarily” and expression can be taken in suggestive form and not as mandatory in nature--If identification test proceedings are otherwise impeccable in nature, these cannot be discarded solely on account of having been jointly conducted in respect of more than one accused, more importantly when each suspect is placed in a separate row and mixed with required quantity of dummies. [P. 1611] A
2020 SCMR 342.
Identification test--
----Evidence of identification test proceedings cannot be discarded solely because these were held jointly in respect of three suspects/ convicts along with required number of dummies. [P. 1612] B
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 396--Conviction and sentence--Challenge to--Murder reference--Court is also duly pondered upon conviction awarded to appellant u/S. 396, PPC and are of view that in reference to peculiar facts of case, it was unwarranted--As per prosecution case alluding from deposition of both eye-witnesses, only two persons emerged on scene and committed crime in question--Though later appellant was also implicated in case but only with allegation of having been seen decamping from spot while boarding a motorcycle--In foregoing circumstances, it is being mentioned that offence u/S. 396, PPC will be attracted if five or more persons conjointly commit a dacoity and during such incident commit murder of a person--Similarly, though co-accused were also implicated in case but none of them was seen by eye-witnesses at spot and even otherwise they were acquitted by trial Court--Prosecution could only prove that there were only two participants of crime, thus conviction u/S. 396, PPC will not be legal--Appellant is guilty of an offence u/S. 392, PPC--If in a robbery incident hurt is caused it entails consequences u/S. 394, PPC but it does not attract in instant case. [Pp. 1615 & 1616] E & F
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 396 & 412--Conviction and sentence--Qatl-e-amd--Challenge to--Murder reference--Identification test--Rule of prudence--These recoveries are called in question by counsel for appellant, solely on ground that same were affected in violation of Section 103, Cr.P.C. as no witness from vicinity was associated during recovery proceedings by police--Above-mentioned articles were recovered upon disclosure of appellant, thus were admissible u/A. 40 of Qanun-e-Shahadat Order, 1984--Moreover, for recoveries which are effected under Article 40 of Order ibid there is no need of associating two respectable persons of locality--Such recoveries can be proved even through statements of any two persons, even police officials--It convincingly emerges that if in pursuance of a trauma victim dies, punishment cannot be awarded to delinquent for hurt and can only be inflicted if injured ultimately survives--Court set-aside conviction and sentence of appellant u/S. 396, PPC, however convict him u/S. 392, PPC and sentence to suffer rigorous imprisonment for 10-years with fine of Rs. 100,000/- and in default whereof to further undergo 6-months SI. Since mischief of Section 412, PPC attracts upon a person who dishonestly receives or retains property snatched in commission of dacoity, hence conviction and sentence under foregoing provision is also set-aside and instead appellant is convicted u/S. 411, PPC and sentenced to suffer rigorous imprisonment for 3-years with fine of Rs. 50,000/- and in case of non-payment of fine, he is ordered to further undergo 6-months SI--All afore-mentioned sentences shall run concurrently and benefit of Section 382-B, Cr.P.C. will also be available to appellant--Appeal dismissed.
[Pp. 1613 & 1616] C, D, G & H
1994 PCr.LJ 20 & PLJ 2004 SC (India) 90.
M/s. Shaheen Akhtar and Amir Iqbal Malik, Advocate for Appellant (in Criminal Appeal No. 776 of 2018).
Syed Azmat Ali Shah Bokhari, Advocate for Appellant (in Criminal Appeal No. 956 of 2018).
Sheikh Muhammad Yaqoob, Advocate for Complainant.
Mr. Sajjad Hussain Bhatti, Deputy Prosecutor General Punjab State.
Date of hearing: 13.1.2022.
PLJ 2022 Cr.C. 1603 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi And Ch.Abdul Aziz, JJ.
HAMZA YAQOOB and others--Petitioners
versus
STATE and another--Respondents
Crl. A. Nos. 776 & 956, M.R No. 71 of 2018, decided on 13.1.2022.
Judgment
Ch. Abdul Aziz, J.--Hamza Yaqoob and Zeeshan Mehmood alias Shani (appellants) along with two others, namely, Kashif Ansari and Malik Ahmed Shehzad involved in case FIR No. 546/2016 dated 18.10.2016 registered under Sections 302, 396 & 412, PPC at Police Station Taxila were tried by learned Additional Sessions Judge, Taxila. Trial Court vide judgment dated 01.10.2018 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:
(1) Hamza Yaqoob (appellant)
“(i) Under Section 302 (b) read with Section 34, PPC to suffer death sentence. He was also directed to pay compensation of Rs. 100,000/- to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in default whereof to undergo six months S.I.
(ii) Under Section 396, PPC to suffer death sentence. He was also directed to pay fine of Rs. 100,000/- and in default whereof to undergo six months S.I.
(iii) Under Section 412, PPC to suffer rigorous imprisonment for 10-years with fine of Rs. 50,000/- and in default whereof to further undergo six month S.I.
(2) Zeeshan alias Shani (appellant)
(i) Under Section 302(b) read with Section 34, PPC to suffer life imprisonment. He was also directed to pay compensation of Rs. 100,000/- to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. and in default whereof to undergo six months S.I.
(ii) Under Section 396, PPC to suffer rigorous imprisonment for 10- years. He was also directed to pay fine of Rs. 50,000/- and in default whereof to undergo six months S.I.
(iii) Under Section 412, PPC to suffer rigorous imprisonment for 10-years with fine of Rs. 50,000/- and in default whereof to further undergo six month S.I.
All the sentences of convicts were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to them.
Challenging their conviction and sentence Hamza Yaqoob and Zeeshan Mehmood alias Shani (appellants) filed Criminal Appeals Nos. 776 & 956 of 2018 respectively, whereas trial Court sent reference under Section 374, Cr.P.C. which was numbered as Murder Reference No. 71 of 2018 for the confirmation or otherwise of death sentence awarded to Hamza Yaqoob (convict). All these matters are being disposed of through this single judgment.
2. Succinctly stated the case of the prosecution as unveiled by Muhammad Awarish Mehmood Awan (PW.18) in FIR (Exh.PF/2) is to the effect that he along with Haris Munir works at the workshop “Taxila Steel Corporation” owned by his uncle Taimoor; that on 18.10.2016 after working hours, by keeping the cash amount of
Rs. 7,50,000/- and accounts register in a grey bag, he along with Haris Munir went to drop Farhad Ali at his house while boarding motorcycle bearing Registration No. RIL-264 Honda-125; that Haris was sitting behind the complainant, whereas Farhad Ali was sitting next to him; that at about 7:00 p.m. they reached Mohallah Mashraqiabad and in front of the house of Farhad Ali he stopped the motorcycle where one Zarar Akhtar was already present; that meanwhile two unknown armed accused, one clad in sky colour shalwar qameez and other in black colour shalwar qameez emerged on the scene; that one of the accused on pistol point snatched the bag containing cash and stepped backward; that when Haris Munir was about to deboard from the motorcycle, the other accused clad in black colour shalwar qameez made a pistol shot which landed at the chest of Haris Munir; that both the accused ran way towards the vacant plot; that light of bulb was available at the time of incident in front of house; that Haris Munir succumbed to the injuries on the way to the hospital.
3. Upon the receipt of information about the incident, Israr Hussain SI (PW.20) along with other police officials reached THQ Hospital, Taxila, where Muhammad Awarish Mehmood (PW.18) got recorded his statement (Exh.PF) against unknown accused. He then examined the dead body of Haris Munir Sheikh (deceased), prepared application for autopsy (Exh.PD), inquest report (Exh.PE) and handed over the dead body to Abdul Wajid 1064/C for postmortem examination from THQ Hospital, Taxila. Thereafter, he sent complaint (Exh.PF) to the police station through Waseem Sabir 8674/C after endorsing his proceedings. He also inspected the place of occurrence and secured blood stained earth through memo. Exh.PH. From the spot, he also took into possession one crime empty of pistol .30 bore and Honda-125 (P.15) vide memos. Exh.PJ and Exh.PK, respectively. On 01.11.2016 he recorded the supplementary statement of Muhammad Awarish, who nominated Kashif Ansari, Hamza Yaqoob, Ahmed Shehzad, Ahmed Ali alias Sadam and Zeeshan alias Shani as the culprits of crime. He also collected CDR of certain mobile numbers (P.36) vide memo. Exh.PT. He arrested Hamza Yaqoob, Zeeshan alias Shani and Ahmed Ali on 17.11.2016. He after complying codal formalities got conducted the identification test parade of Hamza, Ahmed Ali alias Saddam and Zeeshan alias Shani accused. On 28.11.2016 Zeeshan alias Shani (appellant) made disclosure and in pursuance thereof led to the recovery of currency notes of Rs. 30,000/- (P.21/1-30) & motorcycle (P.22) and these articles were taken into possession vide memo. Exh.PN. On 04.12.2016, Hamza Yaqoob (appellant) made disclosure and got recovered pistol .30 bore (P.23), Rs. 120,000/- and registration book of motorcycle (P.28) which were secured vide memo. Exh.PZ. He recorded statements of witnesses under Section 161, Cr.P.C. and submitted the file to the concerned SHO for submission of report under Section 173, Cr.P.C.
4. Prosecution in order to prove its case against the appellants produced 21-PWs including Dr. Khawar Razzaq (PW.5) who on 18.10.2016 at about 9:30 p.m. conducted autopsy of Muhammad Haris (deceased) and issued PMR No. 36/2016 (Exh.PC) as well as its pictorial diagrams (Exh.PC/1 & Exh.PC/2), Sh. Farhad Ali Taimoor (PW.17) & Muhammad Awarish Mehmood Awan (PW.18) who narrated the ocular account, Israr Hussain SI (PW.20) who is Investigating Officer of the case and Zafar Hussain Special Judicial Magistrate (PW.21) who supervised the identification test parade and issued report (Exh.PCC). The remaining witnesses, more or less, were formal in nature.
5. After conclusion of prosecution evidence, appellants were examined under Section 342, Cr.P.C., who refuted the allegations levelled against them and pleaded their innocence. The appellants did not make statements under Section 340 (2), Cr.P.C., however produced certain documents/audio recordings (Exh.DB, Exh.DC, Exh.DE & Exh.DF) in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore- sated, hence the instant criminal appeals and murder reference.
6. It is contended on behalf of appellants that the incident occurred in the dark hours of the night and prosecution miserably failed to prove the presence of light at the spot; that the absence of light gains importance when seen in the context that the accused were not previously known to the eye-witnesses; that though later the appellants were identified by the witnesses in identification proceedings but it loses significance when seen in the backdrop of night time occurrence and absence of light; that the presence of eye-witnesses at the spot remained unproved during trial as both of them failed to produce their blood stained clothes to the police; that even the identification proceedings have no legal significance due to infirmities arising out of record; that the recovery of pistol from Hamza Yaqoob since was affected in violation of Section 103, Cr.P.C. hence has no legal sanctity; that the recovery of cash and registration book was also not witnessed by any resident of the locality thus is to be out-rightly discarded; that admittedly appellant Zeeshan Mehmood was not identified by the two eye-witnesses of the occurrence thus on this score alone his conviction is to be set aside. With these submissions, it was urged that conviction awarded to the appellants be set aside.
7. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the case is arising out of a promptly lodged FIR and this fact alone is sufficient to establish the presence of eye-witnesses at the spot; that the eye-witnesses had no previous enmity with the appellants and even otherwise they were not nominated in the crime report as accused; that the involvement of appellants in the commission of crime is well established from the identification test proceedings in which they were correctly picked up as the culprits of crime; that the involvement of appellant Hamza Yaqoob in the commission of crime is further established from the recovery of pistol which matched with the crime empty secured from the spot as well as from the recovery of looted amount and registration book of the motorcycle belonging to one of the eye-witnesses; that the defence version put forth by the appellants is an after- thought story and even otherwise no material in its support was brought on record and that since prosecution successfully proved its case against the appellants, thus the conviction awarded to them calls for no interference.
8. Arguments heard. Record perused.
9. It is discernible from record that the case in hand is arising out of an incident having occurred on 18.10.2016 at about 07:00 p.m. during which one Haris Munir aged about 18-years lost his life after the receipt of a single firearm injury on his chest. The incident occurred in a vicinity known as Mohallah Mashriqiabad situated within the territorial jurisdiction of Police Station Taxila and the law was set into motion through the statement (Ex.PF) of Muhammad Awarish Mehmood (PW.18) made before Israr Hussain S.I. (PW.20) upon his arrival at THQ, Taxila. From the facts canvassed in the crime report (Ex.PF/2) it evinces that Haris Munir (deceased) fell victim to a robbery incident committed by two unknown persons.
10. A wade through the record unfolds that the actual murder incident was witnessed by Sheikh Farhad Ali Taimoor and Muhammad Awarish (PW.17 & 18). At the cost of repetition, it is mentioned that the eye-witnesses had no previous acquaintance with the assailants and accordingly none was named as accused in the case on the first day of incident. Another witness namely Sh. Abdul Rauf (PW.16) also appeared before the trial Court and claimed to have seen three persons shortly after the incident while decamping from the spot on a motorcycle. As per prosecution case, the veil was lifted from the identity of the culprits through identification test proceedings conducted on 21.11.2016 under the supervision of Zafar Hussain, Special Judicial Magistrate (PW.21).
11. Before appraising the ocular account, it is considered appropriate by us that the actual murder incident was committed by two persons who during identification test proceedings were identified as Hamza Yaqoob (appellant) and Ahmad Ali (co-convict). So far as Ahmad Ali (appellant in Criminal Appeal No. 703 of 2020) is concerned, he was initially arrested and was jointly indicted along with four other co-accused on 17.03.2017. During trial, Ahmad Ali absconded from the Court premises on 19.07.2017 but was later re-arrested on 28.02.2019. The fate of case was decided in the absence of Ahmad Ali through judgment dated 01.10.2018 which was to the extent of Hamza Yaqoob (appellant), Zeeshan Mehmood (appellant), Kashif (since acquitted) and Ahmad Shahzad (since acquitted). Subsequent thereto, Ahmad Ali was re-arrested, tried and later convicted through separate judgment dated 22.10.2020 which is assailed by him separately vide Criminal Appeal No. 703 of 2020.
While dilating upon the ocular account, we at the very outset are confronted with the question of foremost importance and it pertains to the acclaimed presence of eye-witnesses at the spot. As per record, Haris Munir (deceased) and two eye-witnesses Sh. Farhad Ali and Muhammad Awarish (PW.17 & PW.18) used to work at Taxila Steel Corporation. The incident occurred when all the three after getting free from their work place reached the house of Sh. Farhad Ali (PW.17) while boarding a motorcycle for dropping him. The crime scene is situated almost at the door step of Farhad Ali as is evident from site plan (Ex.PO). The foregoing aspect is sufficient to prove the presence of both the eye-witnesses at the spot. Even otherwise, it is observed by us that the incident occurred at 07:00 p.m., whereas the statement (Ex.PF) of Muhammad Awarish (PW.18) was recorded without any delay in THQ Taxila at about 08:45 p.m. Such prompt reporting of crime, more importantly by describing the assailants as unknown, out-rightly excludes all hypothesis about the absence of eye-witnesses from the spot. Since the incident took place after the dusk, thus we have also pondered upon the presence of light at the spot so as to satisfy ourselves about any chance of mistaken identification. In this regard, it is noticed that the homicide incident took place in a residential locality and at point No. 9 of the site plan (Ex.PO), the presence of electricity bulb is clearly shown. The presence of light at the spot is further substantiated from the deposition of eye-witnesses who specifically mentioned that two electricity bulbs were lit at the eventful time. The purity of the ocular account is further evident from the fact that two eye-witnesses were having no previous enmity with the appellants, thus there is not even a remote possibility of false implication through substitution. Last but not the least, both the eye-witnesses provided confidence inspiring details of the incident including the number of assailants, the time and manner of incident, the description of snatched articles, the mode of shifting the deceased to hospital and the arrival of police at THQ, Taxila. To be precise, the presence of eye-witnesses at the spot is satisfactorily proved by the prosecution. We have intentionally opted to discuss the legal worth of the deposition of Sh. Abdul Rauf (PW.16) in the later part of judgment which otherwise pertains only to Zeeshan Mehmood (appellant).
12. After having formed an opinion favourable to the acclaimed presence of eye-witnesses at the spot, we also scrutinized the evidence of identification test proceedings. According to record, Hamza Yaqoob, Zeeshan Mehmood and Ahmad Ali were arrested on 17.11.2016 and immediately thereafter were lodged in judicial custody for holding of identification test. As per record, the identification proceedings were held without any delay on 21.11.2016 under the supervision of Zafar Hussain, Special Judicial Magistrate (PW.21). During these proceedings the two eye-witnesses, namely, Sh. Farhad Ali and Muhammad Awarish (PW.17 & PW.18) identified Hamza Yaqoob (appellant) and Ahmad Ali (co-convict) and that too in reference to their specific roles. Keeping in view the fact that instant judgment only pertains to the Murder Reference No. 71 of 2018, Criminal Appeal No. 776 of 2018 filed by Hamza Yaqoob (appellant) and Criminal Appeal No. 956 of 2018 filed by Zeeshan Mehmood alias Shani (appellant), hence we consider it appropriate to restrict ourselves only to their extent. It is being reiterated that Ahmad Ali was convicted through a separate judgment and has filed a separate appeal thus its fate is obviously to be decided by us through a separate judgment. To be precise, during identification proceedings, Hamza Yaqoob was burdened by the afore- mentioned two eye-witnesses with the allegation of inflicting fatal shot upon the chest of Haris Munir. It is observed by us that Hamza Yaqoob was subjected to identification proceedings in consonance with the instructions laid down in Rules and Orders of the Lahore High Court, Lahore, Chapter 11, Part-C. We feel a pressing need to mention here that both the eye-witnesses namely Sh. Farhad Ali and Muhammad Awarish (PW.17 & PW.18) were cross-examined at length by the defence but nothing could be extracted which may cast doubt about the legal worth and credibility of the identification proceedings. Similar situation arises from the perusal of proceedings of Zafar Hussain, Judicial Magistrate (PW.21) and from his deposition recorded during trial. The solitary objection raised by the learned counsel for Hamza Yaqoob (appellant) about the identification proceedings is to the effect that it was jointly held in respect of Hamza Yaqoob, Ahmad Ali and Zeeshan Mehmood. In this regard, we consider it appropriate to mention here that the Hon’ble Supreme Court of Pakistan in the case of Kanwar Anwaar Ali (PLD 2019 Supreme Court 488), dilated in-depth upon the test identification parade and about the joint identification proceedings held as under:
“If there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the Superior Courts is that separate identification parades should ordinarily be held in respect of each accused person”. (emphasis supplied)
From the above extract, it evinces that the joint identification is not prohibited by Rules & Orders of the Lahore High Court, Lahore, Chapter 11, Part-C but identification proceedings are desired to be conducted separately in pursuance of rule of prudence. Secondly, the Hon’ble Apex Court in the above para used the word “ordinarily” and the expression can be taken in suggestive form and not as mandatory in nature. In our humble view, if identification test proceedings are otherwise impeccable in nature, these cannot be discarded solely on account of having been jointly conducted in respect of more than one accused, more importantly when each suspect is placed in a separate row and mixed with required quantity of dummies. The judgment in Kanwar Anwaar Ali's case (supra) was authored by the two members Bench of the Hon’ble Supreme Court of Pakistan and the guidelines so given came under discussion of a three members Bench of Hon’ble Apex Court in the case of Muhammad Siddique and others v. The State (2020 SCMR 342) and expounded upon through the following observations:
“Castigating severely the evidence of test identification parade, the learned counsel relied upon the guidelines laid down in the case of Kanwar Anwaar Ali (PLD 2019 Supreme Court 488) to urge exclusion thereof. The supra case, indeed a fine piece of juridical literature, nevertheless, does not extend much help to the convicts; it mainly addressed laconic approach adopted by a Magistrate in holding the test identification parade in the said case while highlighting general principles of law on the subject.”
In accordance with the observations of Hon’ble Supreme Court of Pakistan in the case of Muhammad Siddique (ibid), we are of the view that evidence of identification test proceedings cannot be discarded solely because these were held jointly in respect of three suspects/ convicts along with required number of dummies.
13. The ocular account is found by us to be amply supported from the medical evidence furnished by Dr. Khawar Razzaq (PW.5) who received the corpse of Haris Munir at about 08:00 p.m. and conducted the autopsy at about 09:30 p.m. Inevitably, the postmortem examination was conducted without afflux of any uncalled for delay. On one hand such prompt autopsy indicates and reflects positively upon the acclaimed presence of eye-witnesses and on the other hand supports the ocular account as the solitary firearm injury observed by the doctor coincides with the locale described by the eye-witnesses. Even the duration between death and postmortem observed by the medical officer is in consonance with the time of incident narrated by the two eye-witnesses.
14. Though we have formed a view that ocular account is flawless and narrated by natural witnesses having no vengeance against Hamza Yaqoob but still as an abundant caution further scrutinized the record to look for some independent corroboration. This was the stance of both the eye-witnesses that during incident Hamza Yaqoob and Ahmad Ali snatched Rs. 7,50,000/-, registration book of motorcycle RIL-264, accounts register and CNIC of Farhad Ali (PW.17). During investigation Hamza Yaqoob (appellant) made a disclosure and led to the recovery of partial snatched amount of
Rs. 1,20,000/- and the registration book of motorcycle RIL-264 (P.28) on 04.12.2016 through recovery memo Ex.PR. These recovery proceedings were witnessed by Sheikh Taimoor Anjum (PW.12) and he narrated flawless details about them. Needless to mention here that recovery of articles from Hamza Yaqoob, snatched during the crime reflects strongly upon his guilt, more so when he miserably failed to put forth any acceptable explanation in this regard. Similarly, on 04.12.2016, Hamza Yaqoob (appellant) again led to the recovery of .30 bore pistol (P.23) and that too in pursuance of his disclosure through recovery memo Ex.PQ. The importance and relevancy of the recovered pistol (P.23) can well be gauged from the fact that according to PFSA report (Ex.PEE) it was found wedded with the solitary crime empty secured through memo Ex.PJ from the crime scene. During examination under Section 342, Cr.P.C., Hamza Yaqoob (appellant) was specifically confronted with the afore-mentioned recoveries but he miserably failed to put forth any explanation so as to dislodge this part of prosecution case. These recoveries are called in question by the learned counsel for the appellant, solely on the ground that the same were affected in violation of Section 103, Cr.P.C. as no witness from the vicinity was associated during recovery proceedings by the police. Suffice it to say in this regard that above-mentioned articles were recovered upon the disclosure of Hamza Yaqoob (appellant), thus were admissible under Article 40 of Qanun-e-Shahadat Order, 1984. In this regard, reference can be made to the case reported as Hidayatullah and 7 others v. The State and others (1994 PCr.LJ 20) wherein the Hon’ble Supreme Appellate Court of Pakistan held as under:
“The condition precedent for applicability of Article 40 is that there must be discovery of fact, in consequence of some information received from accused, and at that time the accused be in custody of a police officer. In this case, the appellant was in custody and at his instance the recoveries were affected. Therefore, Article 40 is attracted and said recoveries were according to law.”
In case reported as Pandurang Kalu Patil and another v. State of Maharashtra {PLJ 2004 SC (India) 90} the Hon’ble Supreme Court of India on the point of recovery of gun at the instance of accused observed as follows:
“The fact discovered by PW 18 is certainly not the gun. The fact discovered is that A2 had concealed the gun (Article No. 5/2) behind the old house under a heap of wood. It was the same gun with which A2 had fired at PW2 and that aspect has been proved with the help of other evidence.”
Moreover, for the recoveries which are effected under Article 40 of Order ibid there is no need of associating two respectable persons of the locality. Such recoveries can be proved even through the statements of any two persons, even the police officials. In this respect, reference can made to the case of Muhammad Ashiq v. The State (1998 PCrLJ 1996). In this situation, the recovery of pistol etc. stands fully proved against Hamza Yaqoob (appellant).
15. While considering the case of Zeeshan Mehmood (appellant), we have noticed that prosecution failed to satisfactorily establish his guilt during trial. Zeeshan Mehmood (appellant) stands convicted mainly on the evidence of Sh. Abdul Rauf (PW.16) who claimed to have seen him while decamping from the spot on a motorcycle along with two unknown persons shortly after the incident. In this regard, firstly it is observed by us that according to Farhad Ali and Muhammad Awarish (PW.17 & PW.18), only two persons participated in the incident. Secondly, Farhad Ali and Muhammad Awarish (PW.17 & PW.18) did not identify Zeeshan Mehmood during identification test proceedings. Thirdly, it is noticed that only Sh. Abdul Rauf (PW.16) picked Zeeshan Mehmood (appellant) as a suspect during identification proceedings and that too with the claim of having seen him at some distance after the incident. We anxiously noticed that Sh. Abdul Rauf (PW.16) claimed that the motorcycle so driven by Zeeshan Mehmood (appellant) collided with his bicycle but this aspect was proved during cross- examination to be an outcome of dishonest improvement as is evident from the following excerpt:
“I had got mentioned in my statement under Section 161, Cr.P.C. about collision. Confronted with Ex.DA wherein nothing is mentioned regarding collision of the PW with motorcycle of accused”.
Thus, Sh.Abdul Rauf (PW.16) made dishonest improvement while appearing in the dock. As per law on the subject, a witness who makes improvement in his Court statement, in fact compromises his own integrity which leaves him not worthy of any credence. If any reference in this regard is needed that 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.”
For the foregoing reasons, we allow Criminal Appeal No. 956 of 2018 while giving benefit of doubt to Zeeshan Mehmood alias Shani (appellant) and acquit him of all the charges; resultantly his conviction and sentence is set-aside. He is in custody; be released forthwith if not required to be detained in any other criminal case.
16. While reverting back to the case of Hamza Yaqoob (appellant), we have noticed that prosecution was successful in proving its case against him under Section 302 (b), PPC beyond any scintilla of ambiguity and as such no reason to upset the findings qua his conviction on the said charge is available on record. So far as the quantum of sentence awarded to Hamza Yaqoob (appellant) under Section 302 (b), PPC is concerned, it needs our indulgence on twofold grounds. Firstly, it is observed that the primary intention of the perpetrators was to rob the victim and not to take his life. Though Hamza Yaqoob (appellant) fired fatal shot but when Haris Munir (deceased) made an attempt to foil the robbery. Nothing as such is available on record so as to hold that appellant was even previously remained involved in cases of alike nature or had committed murder of some person. Secondly, it is noticed that Hamza Yaqoob (appellant) inflicted a solitary firearm injury on the chest of the deceased and opted against inflicting some more injuries. The infliction of solitary firearm injury is also considered an acknowledged mitigating circumstance warranting conversion of death sentence into imprisonment for life. Guidance in this context can be sought from the case reported as Fayyaz alias Fiazi v. The State (2017 SCMR 2024) wherein the Hon’ble Supreme Court of Pakistan observed as under:-
“However, we hold that it is not a case of capital punishment because only a single fire-shot was attributed to the appellant and there was no allegation of repetition of firing against him.”
Resultantly, we maintain the conviction of Hamza Yaqoob (appellant) under Section 302 (b), PPC and convert his death sentence into imprisonment for life; however, he shall pay the compensation on the same terms and conditions as fixed by the trial Court.
17. We have also duly pondered upon the conviction awarded to Hamza Yaqoob (appellant) under Section 396, PPC and are of the view that in reference to peculiar facts of the case, it was unwarranted. As per prosecution case alluding from the deposition of both the eye-witnesses, only two persons emerged on the scene and committed the crime in question. Though later Zeeshan alias Shani (appellant) was also implicated in the case but only with the allegation of having been seen decamping from the spot while boarding a motorcycle. In the foregoing circumstances, it is being mentioned that offence under Section 396, PPC will be attracted if five or more persons conjointly commit a dacoity and during such incident commit the murder of a person. We have already held that involvement of Zeeshan alias Shani (appellant) in the case remained unproved. Similarly, though Kashif Ansari and Malik Ahmed Shehzad were also implicated in the case but none of them was seen by the eye-witnesses at the spot and even otherwise they were acquitted by the trial Court. To be precise, in the wake of above scenario prosecution could only prove that there were only two participants of the crime, thus conviction under Section 396, PPC will not be legal. In our considered view, Hamza Yaqoob (appellant) is guilty of an offence under Section 392, PPC. We are mindful of the fact that if in a robbery incident hurt is caused it entails consequences under Section 394, PPC but it does not attract in the instant case. In this regard, it is observed that the victim lost his life and the expression “hurt” is defined in Section 332, PPC as under:-
“Whoever causes pain, harm, disease, infirmity or injury to any person or impairs, disables, (disfigures, defaces) or dismembers any organ of the body or part thereof of any person without causing his death, is said to cause hurt”. (emphasis provided)
From above, it convincingly emerges that if in pursuance of a trauma the victim dies, punishment cannot be awarded to the delinquent for hurt and can only be inflicted if the injured ultimately survives. In the given circumstances, we set-aside the conviction and sentence of Hamza Yaqoob (appellant) under Section 396, PPC, however convict him under Section 392, PPC and sentence to suffer rigorous imprisonment for 10-years with fine of Rs. 100,000/- and in default whereof to further undergo 6-months SI. Since the mischief of Section 412, PPC attracts upon a person who dishonestly receives or retains property snatched in the commission of dacoity, hence the conviction and sentence under the foregoing provision is also set-aside and instead Hamza Yaqoob (appellant) is convicted under Section 411, PPC and sentenced to suffer rigorous imprisonment for 3-years with fine of Rs. 50,000/- and in case of non-payment of fine, he is ordered to further undergo 6-months SI. It is made clear that all the afore-mentioned sentences shall run concurrently and benefit of Section 382-B, Cr.P.C. will also be available to Hamza Yaqoob (appellant). With these alterations in the impugned judgment, Criminal Appeal No. 776 of 2018 filed by Hamza Yaqoob (appellant) is dismissed.
18. Resultantly, Murder Reference No. 71 of 2018 is answered in the NEGATIVE and death sentence awarded to Hamza Yaqoob (convict) is NOT CONFIRMED.
(A.A.K.) Appeal dismissed
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