PLJ 2022 Cr.C. 1555 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/392/396--Chance witness--Site plan, contradictory--Delay in recording statement of PW--Withholding evidence--Source of light--identification parade--Acquittal of--Initially FIR was lodged against unknown accused persons in respect of offences u/S. 396, 302 PPC subsequently, moharrir of police station informed Investigating Officer that accused have been arrested in Police Station--The accused persons disclosed about present occurrence--On same day, PW-19 got sent accused persons to judicial remand for identification parade--During proceedings of identification parade, PW-11 identified appellants--The incident occurred at night time--The prosecution has not described any source of light in FIR--There are two rough site-plans and in one rough site-plan, no light has been shown, whereas light has been shown in rough site-plan--The ocular account of prosecution was produced through PW-11, who was working in Arid University as Security Supervisor--PW has failed to establish during investigation that he was employee of Arid University--Statement of PW-11 u/S. 161 Cr.P.C was recorded with delay of 26-days of occurrence--Investigating Officer/PW-18, recorded boiled statements of two students of University, who stated to have witnessed occurrence but said witnesses have not come forward to support prosecution case even Investigating Officer did not bother to record their statements under section 161 Cr.P.C--No independent witness was examined by prosecution--Direct or substantive evidence is brought on record, conviction cannot be recorded on basis of such type of evidence--Medical evidence is a type of supporting evidence, which may confirm prosecution version with regard to receipt of injury, nature of injury, kind of weapon used in occurrence but it would not identify assailant--Judgment passed by trial Court are set aside and they are acquitted of charge. [Pp. 1559, 1562, 1564, 1565, 1566 &
1567] A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P
2011 SCMR 1473; 2017 SCMR 344; 2017 SCMR 1189; 2022 SCMR 393; 2015 SCMR 1142; 2017 SCMR 142; 2020 SCMR 192; 2010 SCMR 584; 2012 SCMR 327; 2017 SCMR 898; 2017 SCMR 142; 2018 SCMR 772; 2018 SCMR 772; 2009 SCMR 916; PLD 2021 SC 600 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/392/396--Site plan--Source of light--There are two rough site-plans and in one rough site-plan, no light has been shown, whereas light has been shown in rough site-plan. [P. 1562] C
2011 SCMR 1473; 2017 SCMR 344; 2017 SCMR 1189;
2022 SCMR 393 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/392/396--Delay in recording statement of PW--Unexplained delay in recording statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon.
[P. 1564] E & F
2010 SCMR 584; 2017 SCMR 486 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/392/396--Identification parade--PW had not described the, physiques, and complexions of any of unknown accused persons--No features of culprits had been described by PW-11 during his testimony--Said identification parade was not held in accordance with law as same was conducted jointly--In first information report mentions their height, bodily size and colour of skin--Here is no description of accused in FIR. [Pp. 1564 & 1565] H, I, J, K
2009 SCMR 436; 2011 SCMR 563; 2017 SCMR 524; 1993 SCMR 585; 2009 SCMR 436; 2011 SCMR 563; AIR 1983 SC 367;
2019 SCMR 956 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/392/396--Joint Identification parade--Joint parade passes for suggestive and indicative identification, compromising reliability of witness and opening doors to misidentification, rendering TIP unsafe and untrustworthy--Placing two or more suspects jointly in an identification parade (or joint parade), tarnishes homogeneity, sameness and identicalness of members of parade. [P. 1565] J & K
PLD 2019 SC 488; 2019 SCMR 956 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/392/396--Benefit of doubt--If there is single circumstance which creates doubt regarding prosecution case, same is sufficient which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused. [P. 1567] P
PLD 2021 SC 600 ref.
M/s. Baharat Ullah Khan and Amjad Khan, Advocates for Appellants
Ms. Memoona Ahsan-ul-Haq, DDPP for State.
Malik Mubashar Raffaq, Advocate for Complainant.
Date of hearing: 7.6.2022.
PLJ 2022 Cr.C. 1555 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Muhammad Tariq Nadeem, JJ.
ABDUL HAMEED alias Kora and others--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 711, 658 & M.R. No. 6 of 2021, heard on 7.6.2022.
Judgment
Muhammad Tariq Nadeem, J.--Through this single judgment, we intend to dispose of Crl. Appeal No. 711 of 2020 & Criminal Appeal No. 658 of 2020 filed by Abdul Hameed alias Kora, Rehmat Gul and Amir Sohail, appellants against their convictions and sentences and Murder Reference No. 06 of 2021 transmitted by learned trial Court for confirmation or otherwise of death sentence of Abdul Hameed alias Kora, appellant originated from the same judgment dated 23-11-2020 passed by learned Addl. Sessions Judge, Rawalpindi in case FIR No. 1195 dated 04-11-2019 under sections 302, 392, PPC registered at Police Station Sadiqabad, whereby, the learned trial Court after conclusion of trial, convicted and sentenced the appellants for committing murder of Muhammad Danish Ghauri, and attempting to commit robbery as under:-
1. Abdul Hameed alias Kora, appellant
U/S. 302 (b), PPC
Death sentence with the direction to pay a sum of
Rs. 5,00,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of Muhammad Danish Ghauri (deceased), recoverable as arrears of land revenue; in default thereof to further undergo six months S.I.
U/S. 393, PPC
07 Years R.I with fine of Rs. 50,000/-; in default thereof to further undergo 01 months S.I.
2. Appellants Rehmat Gul and Amir Sohail
U/S. 302 (b), PPC
Imprisonment for life with the direction to pay a sum of Rs. 5,00,000/-each as compensation under Section 544-A, Cr.P.C. to the legal heirs of Muhammad Danish Ghauri (deceased), recoverable as arrears of land revenue; in default thereof to further undergo six months S.I each.
U/S. 393, PPC
07 Years R.I each with fine of Rs. 50,000/-each; in default thereof to further undergo 01 months S.I each.
All the sentences of Rehmat Gul and Amir Sohail convicts except the sentence for non-payment of fine, shall run concurrently. The benefit of Section 382-B, Cr.P.C. was also extended to the convicts Rehmat Gul and Amir Sohail.
2. The brief facts as narrated in FIR (Ex.PE) lodged by Abdul Rehman, complainant (PW.15) are that on 04-11-2019 at 10:15 p.m. complainant presented written application (Ex.PR) to Muhammad Ramzan, SI (PW.18) in DHQ, Hospital, Rawalpindi alleging therein that he received call from mobile phone of his son Muhammad Danish Ghauri, aged 21/22 years, studying in N & D, 7th semester in Barani University, Rawalpindi at 07:54 p.m. The caller introduced himself to be the official of Rescue 1122 and informed him that his son has been murdered in a bid of dacoity, whose dead body was lying in DHQ, Hospital, Rawalpindi. On this information, he (complainant) along with his relatives went to DHQ, Hospital, Rawalpindi where dead body of his son was lying in pool of blood. The complainant alleged that some unknown accused persons had committed murder of his son during bid of dacoity. Hence, the above-mentioned FIR.
It is noteworthy that initially the FIR (Ex.PE) was lodged against unknown accused persons in respect of offences under sections 396, 302, PPC subsequently on 23-04-2020, moharrir of Police Station Sadiqabad informed Khalil Ahmad, SI/Investigating Officer (PW.19) that accused have been arrested in Police Station New Town in case FIR No. 888 of 2020, under Section 13-2 (A)PAO/337-H(ii), PPC. The accused persons disclosed about the present occurrence on which he (PW.19) went to Police Station New Town, Rawalpindi. He received copies of the case FIR No. 888 of 2020 from Muhammad Nadeem, ASI/I.O (PW.13). He (PW.19) joined Abdul Hameed alias Kora, Rehmat Gull and Amir Sohail, appellants in the investigation. On the same day, he (PW.19) got sent the accused persons to judicial remand for identification parade. On 28-04-2020, Sardar Omar Hassan, learned Magistrate Ist Class, Rawalpindi (PW.7) supervised the identification parade of the appellants vide reports (Ex.PH, Ex.PH/1 and Ex.PH/2) and during the proceedings of identification parade, Rashid Mehmood (PW.11) identified the appellants.
3. After completion of investigation, a report under Section 173 Cr.P.C. was prepared and submitted before the learned trial Court. The learned trial Court after observing all codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge under sections 302, 392, PPC against the appellants on 30-09-2020, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 19 witnesses during the trial; Abdul Rehman (PW.15) was the complainant of the case, who reiterated the contents of FIR (Ex.PE). Rashid Mehmood, (PW.11) has furnished the ocular account. Sardar Omar Hassan, learned Magistrate (PW.7) supervised the proceedings of identification parade vide reports (Ex.PH, Ex.PH/1 and Ex.PH/2) of appellants. Muhammad Nadeem Khan, ASI (PW.13), Ameer Ali Gondal, SI (PW.16), Muhammad Ramzan, SI (PW.18) and Khalil Ahmad, SI (PW.19) being the Investigating Officers stated about the various steps taken by them during investigation of the case. The medical evidence was furnished by Doctor Ahmad Bilal (PW.9), who conducted autopsy on the dead body of Muhammad Danish Ghauri (deceased) and issued post-mortem report (Ex.PK).
Rest of the prosecution witnesses are formal in nature. The prosecution gave up Sarfraz/C and Muhammad Habib Tahir, PWs being unnecessary. The prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PY
4. Thereafter the statements under Section 342, Cr.P.C. of the appellants were recorded wherein they refuted the allegations leveled against them and professed their innocence. While answering to a question, “Why this case has been registered against you and why PWs have deposed against you?, all the appellants unanimously replied as under:
“... I am innocent. I was riding motorcycle CD-70. Nadeem ASI stopped me on barricade on 18.04.2020 and asked me to show papers of motorcycle. I replied that original papers are lying in my house upon which Nadeem ASI demanded money which I refused to pay. On this, Nadeem ASI involved me in this false F.I.R. later on…”
The appellants neither opted to appear as their own witnesses on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation levelled against them, nor produced any defence evidence.
5. The learned trial Court vide judgment dated 23-11-2020 found the appellants guilty, convicted and sentenced them as mentioned above, hence, the criminal appeals, and connected murder reference before us.
6. Learned counsel appearing on behalf of the appellants, inter alia, maintains that the evidence on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice; that the prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence, which aspect of the matter went unnoticed, causing serious prejudice against the appellants; that no CCTV footage was taken into possession from the Ojhri camp to connect the appellants with the commission of crime even mobile data does not show anything to connect them with the alleged crime; that it was a blind murder committed by some unknown accused and the appellants had been made scapegoats by the police only to show unwarranted efficiency; that the identification parade of the appellants is pregnant with material legal defects as the same was joint one, which has no legal value in the eye of law, making the identification parade highly doubtful and unreliable piece of evidence; that the presence of eye witness Rashid Mehmood (PW.11) at the time and place of occurrence is doubtful even statement of Rashid Mehmood (PW.11) under Section 161, Cr.P.C. was recorded after 26 days of the occurrence, which makes his testimony highly doubtful and unreliable; that the medical evidence is not in line with the ocular account; that the recoveries have been planted on the appellants just to strengthen the prosecution case; that alleged occurrence took place in the night and though in one site-plan light has been shown but no such light was taken into possession by the investigating officer during the course of investigation, which makes the identity of the appellants at the place of occurrence at the relevant time highly doubtful; that the material available on record does not justify the convictions and sentences awarded to the appellants and the same are not maintainable in the eyes of law; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, therefore, the appellants deserve clean acquittal.
7. On the other hand, learned Deputy District Public Prosecutor appearing on behalf of the State duly assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellants and submits that the matter was reported to the police within shortest span of time and all the details of occurrence have been specifically mentioned in the promptly lodged FIR; that the prosecution has proved its case against the appellants beyond the shadow of any doubt through reliable and trustworthy evidence of eye witness Rashid Mehmood (PW.11) as well as other circumstantial evidence, therefore, they were rightly convicted and sentenced by the learned trial Court; that the appellants were also identified by Rashid Mehmood (PW.11) during the identification parade; that the eye witness while appearing before learned trial Court remained consistent on each and every minor as well as material point and although he was subjected to lengthy cross-examination, but nothing adverse to the prosecution story had been extracted from his mouth, which could provide any advantage or favour to the appellants; that the eye witness had no malice or enmity against the appellants to implicate them falsely, as such his deposition can be safely relied upon; that the medical evidence is in complete harmony with the ocular account which fully corroborates the story of the FIR; that the case of the prosecution is duly corroborated by the recoveries effected on the pointing out of the appellants; that the judgment of learned trial Court is well reasoned and sufficient incriminating evidence is available on record, justifying convictions and sentences awarded to appellants; that the prosecution case stands proved from all corners and as there is no mitigating circumstance in favour of the appellants, learned trial Court had rightly sentenced them, hence, prays for maintaining the convictions and sentences awarded to the appellants and answering the murder reference in affirmative.
8. We have heard the arguments of the learned counsel for the appellants and learned Deputy District Public Prosecutor assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.
9. The detail of the prosecution case as set forth in the FIR (Ex.PE) has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.
10. According to the prosecution's version, the incident occurred at night time. The prosecution has not described any source of light in FIR (Ex.PE). Though, there are two rough site-plans and in one rough site-plan (Ex.PW-18/A), no light has been shown at point No. 5 whereas light has been shown in rough site-plan (Ex.PU) but Rashid Mehmood (PW.11) has not described the source of light in his statement nor the investigating officer had taken into possession any source of light. The prosecution failed to establish the fact of the availability of a light source and in the absence of its inability to do so, we cannot presume the existence of source of light at the place of occurrence. Wisdom is derived from the case laws reported as “Nazeer Ahmad vs. Gehne Khan and others” (2011 SCMR 1473), “Sardar Bibi and another vs. Munir Ahmad and others” (2017 SCMR 344), “Gulfam and another v. The State” (2017 SCMR 1189) and Pervaiz Khan and another vs. The State” (2022 SCMR 393).
11. The ocular account of the prosecution was produced through Rashid Mehmood (PW.11), who was working in Arid University as Security Supervisor. According to him on the fateful day i.e.04-11-2019, he witnessed the occurrence. We have noticed that supra mentioned PW has failed to establish during investigation that he was employee of Arid University. Relevant lines of cross examination read as under:-
“… I did not produce my service card to the I.O to show that I am employee of university. I.O did not record statement of my seniors regarding my being employee of the university. The I.O did not take into possession any record of university to show that I was present on duty on that day ...”
Similarly, Muhammad Ramzan, SI/Investigating Officer (PW.19) has admitted in his cross-examination as infra:
“…. I did not collect any data to shows that Rashid was employee of University or of some security agency. I did not record statement of any higher officer of the university to shows that Rashid PW was their employee. I did not collect any written proof that Rashid PW as security incharge. I did not took into possession any attendance register of the university to show that Rashid PW was on duty. Traffic remains available on Murree Road 7/24. I tried to join in investigation security guard of Ojhari camp but they did not ready to join investigation ….”
In the light of above mentioned reproduced portion of cross examination of Rashid Mehmood (PW.11) and Muhammad Ramzan,
SI (PW.18), we have no hesitation to hold that Rashid Mehmood (PW.11) had failed to prove his presence at the time and place of occurrence. The Hon’ble Supreme Court of Pakistan in the case of “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) at para No. 14, observed regarding the chance witnesses as under:
“14. … A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt ...”
Similar view was reiterated in the case of “Muhammad Irshad vs. Allah Ditta and others” (2017 SCMR 142). Relevant part of the said judgement at Para No. 2 reads as under:
“…… Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial Court through any independent evidence ….”
Likewise, in the case of “Sufyan Nawaz and another vs. The State and others” (2020 SCMR 192) at Para No. 5, the Apex Court of the country was pleased to observe as under:
“…… He admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt ...”
More so, it is not out of place to mention here that the statement of Rashid Mehmood (PW.11) under Section 161, Cr.P.C. was recorded on 30-11-2019 with the delay of 26 days of the occurrence. He (PW.1) stated that he did not disclose about the occurrence to his senior earlier. No one inquired from him so he did not tell due to fear. The conduct of the said witness was highly unnatural. He remained silent for long days and introduced by the prosecution later on, only to strengthen the prosecution case. There are plethora of precedents of Hon’ble Supreme Court and this Court that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon. Reliance is placed upon the cases titled as “Rahat Ali vs. The State” (2010 SCMR 584) and “Muhammad Asif vs. The State” (2017 SCMR 486).
12. Apart from the above, no features of the culprits had been described by Rashid Mehmood (PW.11) during his testimony. Even otherwise, I have already observed in the preceding paragraph that the prosecution witness, even if he was present at the scene of the occurrence, was not in a position to identify the appellants owing to the darkness of night. Keeping in view the facts and circumstances of the case, an identification parade has no evidentiary value in the eyes of the law and it cannot be used against the appellants as a corroborative piece of evidence. The PW had not described the, physiques, and complexions of any of the unknown accused persons. As such the test identification parade loses its authenticity as observed by the august Supreme Court of Pakistan in the cases titled as, “Muhammad Afzal alias Abdullah v. The State and others” (2009 SCMR 436), “Sabir Ali alias Fauji vs. The State” (2011 SCMR 563) and “Javed Khan alias Bacha and another vs. The State and another” (2017 SCMR 524).
13. It is noteworthy that the said identification parade was not held in accordance with law as the same was conducted jointly, so it was unreliable. Rashid Mehmood (PW.11) during his cross examination has admitted this fact by stating that there were three rows at a distance of three feet when he identified the accused persons. The August Supreme Court of Pakistan in case of “Mian Sohail Ahmad and others versus The State and others” (2019 SCMR 956) while enunciating the principles of law relating to the identification parade has held as under:
“… 5. The Test Identification Parade (“TIP”) (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmities diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under Section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367).
6. Both the appellants were jointly seated in the lineup. The idea of identification parade or lineup is to stand or seat the suspect in a group of persons (dummies or fillers) that closely resemble the characteristics of the suspect, in order to test the recognition, memory, perception and observation of the witness and thus verify the testimony of the witness. Placing two or more suspects jointly in an identification parade (or joint parade), tarnishes the homogeneity, sameness and identicalness of the members of the parade and defeats the very purpose
of having a 11/3/21, 12:24 PM 2019 S C M R 956 test identification parade. Joint parade passes for suggestive and indicative identification, compromising the reliability of the witness and opening doors to misidentification, rendering TIP unsafe and untrustworthy. See: In the matter of Kanwar Anwaar Ali (PLD 2019 SC 488) on joint identification parade.
7. No role was assigned to the suspects by the witnesses, especially when the first information report clearly describes two different roles to the appellants; one that of an assailant, while the other of a driver of a motorcycle who drove the assailant away. If a witness fails to give the description of the part played by the suspect in the crime, the credibility of the witness stands questioned as he fails to complete the picture of the crime scene, thus inviting caution and circumspection in assessing the evidentiary value of the identification evidence. This Court over the years has placed little reliance on such identification evidence. Even in the subsequent identification by the complainant in Court, which has little evidentiary value, he failed to point an accusing finger at the appellants to say who did what, therefore the parts played by the appellants in the crime remain a mystery. See: In the matter of Kanwar Anwaar Ali (PLD 2019 SC 488) on the absence of a role assigned by the witness in an identification parade ….”
14. Another intriguing aspect of the case, which cannot be lost sight of is that according to Muhammad Ramzan, SI/Investigating Officer (PW.18), he recorded boiled statements of Ali Hussain and Waqar Hussain students of NUML, University, who stated to have witnessed the occurrence but said witnesses have not come forward to support the prosecution case even the Investigating Officer did not bother to record their statements under sections 161, Cr.P.C. So withholding of such important witnesses in the peculiar circumstances of this case without any justifiable cause leads the Court to draw an adverse inference against the prosecution within the purview of Article 129 (g) of Qanun-e-Shahadat Order, 1984 that had they been produced before the learned trial Court, they may have not supported the prosecution version. Reliance is placed on the esteemed judgments of the Hon’ble Supreme Court of Pakistan in cases of “Riaz Ahmad versus The State” (2010 SCMR 846) and “Khalid @ Khalidi and 2 others versus The State” (2012 SCMR 327).
15. As far as recovery of the recovery of weapon of offence i.e pistols 30 bore (P.7) (P.10) and dagger (P.13), at the instances of the appellants Abdul Hameed alias Kora, Rehmat Gul and Amir Sohail, vide recovery memos (Ex.PL, Ex.PM and Ex.PN) are concerned, we have noted that the witnesses of said recovery memos are police officials and no independent witness was examined by the prosecution. Thus, the Investigating Officer while effecting the recoveries at the instance of the appellants has committed violation of Section 103, Cr.P.C. which creates doubt with regard to the recovery of supra mentioned weapons of offence. Reliance is placed upon the case law titled as “Muhammad Ismail and others vs. The State” (2017 SCMR 898).
It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence howsoever convincing it may be. Reliance is placed upon the cases titled as “Muhammad Irshad vs. Allah Ditta and others” (2017 SCMR 142) and “Muhammad Mansha vs. The State” (2018 SCMR 772).
16. Insofar as the medical evidence of the prosecution is concerned, it is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of “Muhammad Mansha vs. The State” (2018 SCMR 772), “Ghulam Mustafa vs. The State” (2009 SCMR 916) and “Naveed Asgahr and 2 others vs. The State” (PLD 2021 SC 600).
17. We have considered all the pros and cons of this case and have come to an irresistible conclusion that the prosecution could not prove its case against the appellants beyond 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, but in this case the prosecution remained failed to discharge its responsibility. It is also well established principle of law 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 case of “Naveed Asghar and two others vs. The State” (PLD 2021 SC 600), the Hon'ble Supreme Court of Pakistan, in paragraph No. 33, was pleased to observe as under:
“33 .... The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to
discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession. The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, “It is better that ten guilty persons be acquitted rather than one innocent person be convicted”. While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): “Avert punishments [hudood] when there are doubts”; and” Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader’s mistake in pardon is better than his mistake in punishment”. A three-member Bench of this Court has quoted probably latter part of the last mentioned saying of the Holy Prophet (peace be upon him) in Ayub Masih v. State in the English translation thus: “Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent.”
18. For the foregoing reasons, both the appeals filed by Abdul Hameed alias Kora, Rehmat Gul and Amir Sohail are accepted, convictions and sentences awarded to them vide judgment dated 23.11.2020 passed by the learned trial Court are set aside and they are acquitted of the charge leveled against them by extending the benefit of doubt in their favour. They shall be released forthwith if not required to be detained in any other case.
19. Murder Reference No. 06 of 2021 to the extent of Abdul Hameed alias Kora, appellant is answered in negative and death sentence passed by learned trial Court against Abdul Hameed alias Kora, appellant is not confirmed.
(K.Q.B.) Appeals accepted
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