PLJ 2023 Cr.C. 709
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum and Asjad Javaid Ghural, JJ.
TAHA AZAAM ULLAH etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 27767, M.R. No. 241 & P.S.L.A No. 41181 of 2019,
heard on 14.06.2023.
Police Rules, 1934--
----R. 24.5(1)--Criminal Procedure Code, (V of 1898), S. 154--Cognizable offence--First information report register--Whenever information regarding cognizable offence is lodged with police officer, he is obliged to take same down in writing if it is made orally or receive complaint in writing and straightaway proceed to enter substance of it in book/register kept for that purpose in terms of Section 154 of Criminal Procedure Code--Chapter XIV CRPC deals with giving/reporting information to police in cognizable cases and its power of investigation--Section 154 of CrPC deals with registration of FIR by officer in charge of a police station based on information about a cognizable offence--It casts a statutory duty on him to enter substance of such information in prescribed register/ form, which is commonly called FIR, and act of entering it is called registration of a crime or case--The police did not register F.I.R. in book/register kept for registration of cases and instead entered complaint in computer and assigned a number--No explanation has been furnished regarding how FIR registration number and E-tag number appeared on this document--It leads to only one inference that document is prepared later--The evidential value of First Information Report will be reduced if it is made after unexplained delay, particularly when same was not entered in printed Form 24.5 (1) of Police Rules 1934. [P. 720] A
Police Order, 2002 (22 of 2022)--
----Art. 112--Police Rules, 1934, Rr. 22.3, 22.4 & 24.5--According to Article 112 of Police Order, 2002 (22 of 2002), Provincial Police Officer/Inspector General of Police, Punjab, with approval of Government of Punjab, made amendments in Rules 22.3 and 22.4 of Police Rules, 1934 and notified through Notification--A bare perusal of amendment would show no reference to Rule 24.5 to be amended--The fact that lodging FIR was made on computer due to above amendment cannot justify that FIR was legally lodged--No amendment to Rule 24.5 was made--The act of S.I. (CW-2) does not align with law and, thereby, is in absolute violation and non-compliance with Section 154 Criminal Procedure Code and Rule 24.5 of Police Rules, 1934--The FIR is document entered into a book/register maintained at police station under Rule 24.5 of Police Rules, 1934--The statement of complainant is entered therein under Section 154 Criminal Procedure Code--Based on this, law is set into motion--The mandatory provisions of law were departed, which creates doubt about truthfulness of allegation leveled in FIR and that when incident was reported to police and left unexplained holes in prosecution story, benefit of which must accrue to accused.
[Pp. 721, 722 & 723] B & C
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--The deposition of Dr. (CW-5) reveals that documents were received at 05:30 a.m., and till that time, complaint and F.I.R. were not existing--The absence of those details is indicative of fact that prosecution story was still in an embryo state and had not been given any shape and that first information report came to be recorded later on after due deliberation and consultation and was then ante-timed to provide it with color of promptly lodged first information report--Prosecution witnesses, i.e., (PW-1)-the complainant, and (PW-2), failed to establish their presence at place of occurrence--The prosecution witnesses were not only inimical towards accused persons but were also closely related to deceased, and they had reasons to implicate accused persons falsely--There is no independent evidence to corroborate evidence of interested witnesses in this case--The entire prosecution evidence is silent on this aspect of case--The whole prosecution evidence is silent on this aspect of case--There was no link evidence to prove that pistol 9-MM (P-4) recovered from accused and 13 crime empties P-1/1-13 secured from place of occurrence were again received back from S.I. (CW-7)-investigating officer or any other police officer by moharrar Malkhana, and same were re-deposited in Malkhana or handed over to Moharrar--It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in Malkhana Register and also at time when case property is re-deposited in Malkhana--Case property in murder cases must be kept in safe custody from date of seizure till its production in Court--Said metallic body was neither sent to Forensic Science Laboratory for its comparison with pistol 9-MM (P-4) recovered at pointing of appellant nor same was exhibited in evidence of prosecution--Thus, it was established from evidence of CW-3 and post-mortem report that Dr. (CW-5) recovered metallic body from left lung of deceased and handed over to police, therefore, an adverse inference is to be drawn that had metallic body, been sent to Forensic Science Laboratory for its comparison then said report would have been unfavorable to prosecution--Taking cumulative effect of circumstances and testimony of witnesses into consideration, we believe that prosecution has failed to bring true facts before Court--The prosecution could not lead incriminating, corroborative/independent evidence to bring home accused’s guilt in case of a capital charge--Trial Court was not justified in convicting appellant while basing upon such un-trustworthy, un-corroborated evidence, and conviction passed by learned trial Court in circumstances is against all cannons of law recognized for dispensation of criminal justice--As per dictates of law, benefit of every doubt is to be extended in favour of accused--The upshot of above discussion is that prosecution had badly failed to bring home a charge against appellant beyond any reasonable doubt; therefore, in interest of safe administration of Criminal Justice, Crl. Appeal is accepted in toto.
[Pp. 726, 728, 729, 730, 731, 733 & 734] D, E, F, G, H, I & K
2011 SCMR 1193 & 2009 SCMR 230.
Principle of law--
----It is a golden principle of law that Court should let off 100 guilty but not convict one innocent person. [P. 733] J
PLD 2002 SC 1048.
M/s. Ch. Muhammad Ashraf Kamboh, Amer Shahbaz Siddiqui, Ms. Maryem Yasin Khan and Sajid Hussain Chaudhary, Advocates for Appellants.
Rana Ahsan Aziz, Additional Prosecutor General for State.
Mr. Nasir-ud-Din Khan Nayyar, Advocate for Complainant.
Date of hearing: 14.06.2023.
Judgment
Miss Aalia Neelum, J.--The appellant-Taha Azam Ullah, son of Tariq Saif-ur-Rehman, Caste Pathan, resident of Street Store Wali near Ali Baba Centre, Farooqabad Tehsil and District, Sheikhupura, has assailed his conviction and sentence recorded by the learned Additional Sessions Judge, District Sheikhupura vide judgment dated 30.04.2019 in a private complaint filed under Sections 302, 324, 34, PPC, P.S. City Farooqabad, District Sheikhupura titled “Adnan Abdullah vs. Taha Azaam Ullah, etc.”, whereby the learned trial Court convicted the appellant-Taha Azam Ullah under Section 302(b), PPC as Tazir and sentenced to Death for committing Qatl-e-Amd of Shahzad Abdullah Khan (the deceased), with the direction to pay compensation of Rs. 5,00,000/-to the legal heirs of the deceased as envisaged under Section 544-A of Cr.P.C. which would be recoverable as arrears of land revenue and in case of default thereof, to undergo 06-months S.I further.
2. Feeling aggrieved by the judgment of the learned trial Court, Taha Azam Ullah, the appellant, has assailed his conviction by filing the instant appeal bearing Criminal Appeal No. 27767 of 2019. The learned trial Court also referred M.R. No. 241 of 2019 (The State vs. Taha Azaam Ullah) for confirmation of the death sentence awarded to the appellant-Taha Azam Ullah. Whereas the complainant also filed Crl. P.S.L.A No. 41181 of 2019 against the acquittal of Respondents Nos. 1 to 3, namely Junaid Ahmad Khan, Quadrat Ullah Shahab, and Tariq Saif-ur-Rehman. All the matters arising from the same judgment of the learned trial Court are being disposed of through a single judgment.
3. Briefly, the prosecution story as alleged in the private complaint (Ex. PC) of Adnan Abdullah Khan (PW-1)-the complainant is that on 28.06.2017, at about 06:00 p.m., the complainant (PW-1) along with his brother, namely, Shahzad Abdullah Khan (deceased), Ejaz Ahmad Khan (given up PW) and Saif Ullah Khan (PW-2) were proceedings towards chowk of Mirza Ghafoor to offer swings to the children and when they reached the chowk of Mirza Ghafoor, meanwhile, Taha Azam Ullah-the appellant armed with a pistol, Junaid, Quadrat Ullah and Tariq Saif-ur-Rehman (co-accused since acquitted), all while armed with fire-arm weapons, came there. Tariq Saif-ur-Rehman (co-accused since acquitted) raised Lalkara that Shahzad Abdullah Khan (deceased) be not spared and he be done to death. After that, the accused-Taha Azam Ullah made a fire shot which hit Shahzad Abdullah Khan (deceased) on the upper part of the left shoulder. The accused-Taha Azam Ullah made another fire, which hit the deceased on the left side of his back towards the upper side. The accused-Taha Azam Ullah made a third fire, which hit the deceased on the right side of the abdomen. The accused-Taha Azam Ullah made a fourth fire, which hit the deceased on the left side of the abdomen. After that, the accused-Junaid fired four shots at Shahzad Abdullah Khan (deceased), of which three fires were hit near his left knee while the fourth hit his thigh. Then, the accused, Quadrat-Ullah Shahab, fired at the deceased, which hit him on the right thigh, and second fire of the accused, Quadrat-Ullah Shahab, was hit on the right leg of the deceased, Shahzad Abdullah Khan, due to which the deceased fell and succumbed to the injuries. Due to the firing of accused persons, a passerby child also sustained fire-arm injury. The complainant and prosecution witnesses witnessed the alleged occurrence.
4. The motive behind the occurrence was that one Tahir Ishfaq-ur-Rehman, brother-in-law of the complainant, was serving as Sub-Inspector in Punjab Police and was martyred in 2010. The property left by him was illegally possessed and usurped by Tariq Saif-ur-Rehman and his sons; the issues relating to said property were being looked after by the widow of the deceased and brother of the complainant, namely Shahzad Abdullah Khan (deceased). Due to said grudge, all the accused persons, in prosecuting their common object, murdered Shahzad Abdullah Khan, deceased.
5. Based on the complaint (Ex. PA), formal FIR (Ex. PB) was chalked out by Muhammad Yaqoob, S.I. (CW-2). After the registration of the case, the investigation of this case was conducted by Zafar Fareed, S.I. (CW-7), who found the accused/appellant guilty, prepared a report under Section 173 of Cr.P.C. Being dissatisfied with the result of the investigation, as the investigating officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file a private complaint (Ex. PC). After recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of the offence, so they were summoned to face the charge. After that, the learned trial Court formally charged the appellant and his co-accused on 01.03.2018, to which they pleaded not guilty and claimed trial. In support of his version, the complainant produced as many as four (04) witnesses, whereas the prosecution produced the witnesses as C.W-1 to C.W-7.
6. Ocular account, in this case, has come out from the statements of Adnan Abdullah (PW-1)-the complainant, and Saif Ullah Khan (PW-2) the eye-witness, whereas Dr. Rao Taimoor Hameed Khan (CW-5), who conducted the post-mortem examination of Shahzad Abdullah Khan (the deceased) found the following injuries on his person:--
INJURIES
1. A penetrating fire-arm entry wound of 1 x 1 cm on the left shoulder, 2 cm behind the acromion end of the clavicle, making an exit of 1.5 cm x 1 cm in front of the left shoulder with blackening and shooting present.
2. A penetrating fire-arm entry wound of 1 x 1 cm behind the left shoulder just below the spine of the left scapula with no apparent exit wound.
3. A penetrating fire-arm entry wound of 1 x 1 cm on the right side of the abdomen 14 cm from the umbilicus, making an exit of 2 x 1 cm behind the right buttock.
4. A penetrating fire-arm entry wound of 1 x 1 cm on the left side of the abdomen, making an exit of 1 x 2 cm above the right buttock.
5. A penetrating fire-arm entry wound of 1 x 1 cm on the left-right front side 10 cm from the inguinal ligament, making an exit of 2 x 2 cm behind the left thigh.
6. A penetrating fire-arm entry wound of 0.5 x 0.5 cm above the left knee joint, making an exit of 1 x 1 cm behind the left knee in the left popliteal fossa.
7. A penetrating fire-arm entry wound of 2 x 2 cm on the left leg 8 cm below the knee joint, making an exit of 2 x 2 cm on the medial side of the left knee.
8. A 7 x 2 cm lacerated wound due to grazing injury of a fire-arm in front of the left tibia 7 cm below the knee joint, causing fracture of left tibia/fibula.
9. A 3 x 1 cm graze injury of bullet 14 cm above the medial malleolus.
10. A penetrating fire-arm entry wound of 1 x 1 cm on the right thigh 4 cm from the inguinal ligament, making an exit of 2 x 2 cm on the right buttock.
11. A penetrating fire-arm entry wound of 1 x 1.5 cm on the right thigh 13 cm from the inguinal ligament, making an exit of 1 x 2 cm on the right thigh.
12. A penetrating fire-arm entry wound of 1 x 1 cm above the right knee, making an exit of 2 x 2 cm on the medial side of the right knee.
13. A penetrating fire-arm entry wound of 1 x 1 cm on the right thigh’s lateral side, exit 2 x 2 cm behind the right buttock.
After conducting the post-mortem examination, the doctor opined that the cause of death was severe hemorrhage and shock, leading to cardiopulmonary arrest. However, Injuries No. 2, 3, and 4 themselves are sufficient to cause the death of an ordinary human being following the normal course of nature. The probable time between injury and death was immediate, whereas between death and post-mortem was about 09 to 12 hours.
The statements of the remaining prosecution witnesses are formal in nature.
7. The complainant gave up Haji Ahmad, Aamir Khan, and Ijaz Ahmad Khan, being unnecessary. The learned Assistant District Public Prosecutor closed the prosecution evidence after tendering the Punjab Forensic Science Agency reports and fire-arms & Tool marks Examination (Ex. PH & Ex. PJ).
8. The appellant was also examined under Section 342, Cr.P.C., wherein neither he opted to appear as his own witness under Section 340(2), Cr.P.C., nor he produced defence evidence. In response to a particular question that why this case was against him and why the PWs deposed against him, the appellant made the following deposition:
“Complainant and PWs are inter-se related, and they deposed falsely against me just to blackmail. The complainant & witnesses were belatedly summoned as they have no concern at the place of occurrence.”
9. After evaluating the evidence available on record in light of arguments advanced from both sides, the learned trial Court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant’s conviction in the afore-stated terms.
10. We have given our anxious and most thoughtful consideration to both sides’ rival submissions. We have minutely gone through the evidence on record.
11. As per the prosecution case, the incident took place on 28.06.2017 at 06:00 p.m. in the area of Chowk Mirza Ghaffar, Farooq Abad, within the area of Police Station, City Farooq Abad, District Sheikhupura, which is at a distance of 03-Farlang from the place of occurrence. Adnan Abdullah Khan (PW-1)-the complainant reported the incident through written complaint (Exh. PA) to Muhammad Yaqoob, S.I. (CW-2) at P.S. City Farooq Abad, after that F.I.R. (Ex. CW-2/A) was registered at 07:15 p.m. Adnan Abdullah Khan (PW-1)-the complainant, took one hour and fifteen minutes to report the incident to the police. Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that after about 15 minutes of the occurrence, he went to Bazar and got drafted a written complaint. In this regard, Adnan Abdullah Khan (PW-1)-the complainant, deposed during cross-examination that: -
“After about 15 minutes of the occurrence I went to Bazzar got drafted an application for registration of criminal case by operator of photo state machine. I did not write the application for registration of case myself. The shop of photo state operator is about 2 Farlang from the place of occurrence. I did not produce the said operator of photo state machine before the police nor I introduce his name to the police to verify the fact I got drafted the application from him. I did not telephonically informed the police immediately regarding the occurrence. The witness volunteered I produced the application before the police. The police station and the place of occurrence both situates within the town of Farooqabad. The distance between the place of occurrence by a motorbike is about 10/15 minutes. The distance between place of occurrence and police station city Farooqabad is about 3 Farlang. I went to up to photo state machine on foot. During this way there are so many shops and markets. The distance between the place of photo state machine and police station is about 2 and half Farlang. The photo machine operator was known to me earlier.----------Though I had to prepare an application for registration of case so, I did not opt to go police station first.”
Contrary to the above, Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that:
“Police arrived at the place of occurrence after about one and half/two hours after the occurrence. The witness volunteered that upon arrival of the police I got written the application for registration of case and went to police station and then police came at the spot and then after police brought the dead body.”
Muhammad Yaqoob S.I. (CW-2) deposed during cross-examination that:
“The application for registration for Criminal case Ex.PA is undated and untimed.”
Saif Ullah (PW-2) deposed during cross-examination that: -
“Police firstly arrived at the place of occurrence after about one and a half hour.”
Whereas, Zafar Fareed S.I. (CW-7)-the investigating officer deposed during cross-examination that:
“On 28.06.2017 I received the copy of the FIR alongwith the original application for registration of FIR at about 07:30. The occurrence in this case took place at 06:00 PM on 28.06.2017 and the FIR stood registered at the police station at 07.15 pm on the same day.---------------On receiving of FIR I immediately rushed to place of occurrence where Saif Ullah Khan, Ijaz Ahmad Khan, Adnan Abdullah Khan, Qaisar and Aamir were present.----------------I prepared inquest report in accordance with law with due care.”
Contrary to the depositions of the above witnesses i.e. Adnan Abdullah Khan (PW-1)-the complainant, Saif Ullah (PW-2) and Zafar Fareed S.I. (CW-7)-the investigating officer, Muhammad Yaqoob S.I. (CW-2) deposed during examination-in-chief that on receiving the complaint (Ex. PA), moved by Adnan Abdullah Khan (PW-1)-the complainant, on his dictation, F.I.R. (Ex. CW-2/A) was generated through the computer system. In this regard, he (CW-2) deposed during examination-in-chief that:
“I lodged formal FIR through the computer system. I dictated the contents of FIR to the computer operator. The copy of FIR generated through computer system is Ex.CW-2/A. This copy of FIR bears correct contents according to application and my endorsement upon the application and bear my signatures. Then afterwards I sent the original application for registration of case and copy of FIR to Zafar Fareed SI In-charge Homicide Wing Saddar Circle by Zahid Javed 938/C.”
During cross-examination, Muhammad Yaqoob S.I. (CW-2) admitted that:
“Whenever an application for registration of criminal case is presented, an E-Tag number is marked upon such FIR with date. The E-Tag number of this FIR is CF-6/29/207-609 dated 29-06-2017. -------------According to FIR the case was registered on 28.06.2017 at 07:15 P.M dated 29-06-2017.”
Adnan Abdullah Khan (PW-1)-the complainant admitted during cross-examination that:
“Might be I received a receipt for submission of my application for registration of case from police station city Farooqabad. I signed over receipt Ex. DA for submission of my application for registration of case. ----------My I.D card number and Cell phone number have been written on Ex. DA. The time of reporting the matter is written in Ex. DA on 29.06.2018 at 1:42 am.”
On perusal of FIR (Ex. PB), it reveals that on its top E-Tag No. CF-6/29/2017-609, Serial No. SKP-CFA-000129 was written. Admittedly, the serial number was written at the top of the FIR along with its E-Tag number, while chalking out FIR (Ex. PB), and the serial number and the E-Tag number cannot be inserted later on. If the contents of the FIR were written and the computer operator cannot complete the FIR in one go, they can save the data already entered by choosing the “SAVE” tab. After writing complete data in the online FIR themselves and clicking the “FINAL SUBMIT” button, no change will be possible/ entertained if required. The E-Tag No. CF-6/29/2017-609, and Serial No. SKP-CFA-000129 was not handwritten. Rather, before submitting FIR, E-Tag No. CF-6/29/2017-609, and Serial No. SKP-CFA-000129 was written. After entering data online, changing the entries in the FIR is impossible. There is a specific column in the FIR i.e., Column No. 1 wherein date and time of the report of the crime are to be mentioned and Muhammad Yaqoob S.I. (CW-2) deposed that on his dictation the contents of FIR were typed by the computer operator. So, in the Column No. 1 of FIR (Ex. CW-2/A) the time of reporting 07:15 pm on 28.06.2017 was typed by the computer operator as dictated by Muhammad Yaqoob S.I. (CW-2). Muhammad Yaqoob S.I. (CW-2) made the following answer to the question of the Court: -
“The copy of FIR Ex.PB and Ex.CW-2/A are the copy of the same FIR which was exhibited twice, however I signed upon the copy of Ex.CW-2/A.”
Muhammad Yaqoob S.I. (CW-2) signed the copy of Ex. CW-2/A and on the top of the copy of Ex.CW-2/A -Tag No. CF-6/29/2017-609, and Serial No. SKP-CFA-000129 are mentioned. The E-Tag number reveals that the complaint was made on 29.06.2017 at 01:42 a.m. On perusal of the online receipt (Ex. DA), it reveals that the same was signed by Adnan Abdullah Khan (PW-1)-the complainant, and the online receipt of the online complaint number mentioned therein is CF-6/29/2017-609 dated 29 June 2017 at 01:42 am and status was pending, and the incident was reported about the murder and complaint was handed over to Zafar Fareed S.I. Zafar Fareed S.I.
(CW-7)-the investigating officer deposed during cross-examination that “E-tag Number written on copy of FIR is 609 dated 29.06.2017.” The learned trial Court, while dealing with the issue, held that the computer at the front desk did not work due to interception in the supply of electricity. As and when such FIR is uploaded on the internet, an independent E-tag number containing the time and date of its uploading is automatically generated by the internet system itself according to software prepared for linking up these FIRs to the internet. This date and time given in E-tag cannot be manually marked. Rather computer and internet system itself mark such a particular number. While holding that there is no delay in the registration of FIR, the learned trial Court overlooked the fact that FIR was not entered in the register meant for registration of FIRs available at each police station. Muhammad Yaqoob S.I. (CW-2) deposed that he lodged the FIR through the computer system, and on his dictation to the computer operator, the contents of the FIR were generated. It suggests that there was no electricity breakdown in the police station at the time of lodging of FIR, as stated by Muhammad Yaqoob S.I (CW-2). Admittedly, the statement under Section 154, Cr.P.C. of Adnan Abdullah Khan (PW-1)-the complainant was not incorporated in the register for FIRs registration. Muhammad Yaqoob S.I (CW-2) admitted in his examination-in-chief that FIR was lodged through the computer system on his dictation, and the computer operator entered the same. The prosecution has not produced the Computer Operator to whom dictation was given by Muhammad Yaqoob S.I. (CW-2), and he typed the FIR (Exh.CW-2/A), nor the name of the computer operator came on the record. According to Rule 24.5 of Police Rules 1934, the F.I.R. shall be filled in the printed Form in Form 24.5(1) with pages serially numbered with three carbon copies (each of the four pages of the register bearing the same serial number). Since the written complaint (Ex. PA) was not recorded in the first information report register, it throws doubt on the time of reporting the incident to the police. Whenever information regarding cognizable offence is lodged with the police officer, he is obliged to take the same down in writing if it is made orally or receive the complaint in writing and straightaway proceed to enter the substance of it in the book/ register kept for that purpose in terms of Section 154 of the Criminal Procedure Code. Chapter XIV CRPC deals with giving/reporting information to police in cognizable cases and its power of investigation. Section 154 of Cr.PC deals with the registration of FIR by the officer in charge of a police station based on the information about a cognizable offence. It casts a statutory duty on him to enter the substance of such information in the prescribed register/form, which is commonly called FIR, and the act of entering it is called registration of a crime or case. The police did not register F.I.R. (Exh.CW-2/A) in the book/register kept for registration of cases and instead entered the complaint in the computer and assigned a number. No explanation has been furnished regarding how the FIR registration number and E-tag number appeared on this document. It leads to only one inference that the document is prepared later. The evidential value of the First Information Report will be reduced if it is made after the unexplained delay, particularly when the same was not entered in the printed Form 24.5 (1) of Police Rules 1934. At this stage, it is relevant to reproduce Rule 24.5. hereunder:
“24.5. First Information Report Register.-----(1) The First Information Report Register shall be a printed book in Form 24.5. (1) consisting of 200 pages and shall be completely filled before a new one is commenced cases shall bear an annual serial number in each police station for each calendar year. Every four pages of the register shall be numbered with the same number and shall be written at the same time by means of the carbon copying process.
The original copy shall be preserved in the Police Station for a period of sixty years. The other three copies shall be submitted as follows:--
(a) One to the Superintendent of Police or other gazetted officer nominated by him.
(b) One to the Magistrate empowered to take cognizance of the offence as is required by Section 157, Criminal Procedure Code.
(c) One to the complainant unless a written report in Form 24.2(1) has been received in which case the check receipt prescribed will be sent.
(3) In the case of the railway police, the copy intended for the magistrate empowered to take cognizance of the offence shall be submitted through the Superintendent of the district police; Provided that at railway police station, other than district headquarter stations, where there is a Magistrate having jurisdiction, one copy shall be sent to such magistrate direct, one to the Deputy Superintendent of the Railway Police and another to the Superintendent of District Police. The extra copy required in such cases will be made by inserting an extra sheet of paper and carbon paper and afterwards filling the printed headings, etc., by hand.
(4) All information required by the form shall be filled in, and thereafter the serial number of each case diary submitted shall be noted on the reverse of the original copy which is to remain at the police station.
(5) On the conclusion of the case the particulars contained in the charge sheet slip shall be filled in on the reverse of the original copy and the slip returned to the Superintendent’s office.”
According to Article 112 of the Police Order, 2002 (22 of 2002), the Provincial Police Officer/Inspector General of Police, Punjab, with the approval of the Government of Punjab, made amendments in Rules 22.3 and 22.4 of Police Rules, 1934 and notified through Notification No. 43604/DIG/I.T. dated 15.12.2017 which are as under:
“In the Police Rule, 1934, in Chapter XXII:
(1) for Rule 22.3, the following shall be substituted:
“22.3. Station Clerk:-(1) A Station clerk shall:
(a) be a literate head constable or IT literate officer;
(b) work under the supervision of the officer incharge of the police station;
(c) act as a clerk, accountant and record keeper; and
(d) be the custodian of the property at the police station.
(2) A station clerk may be assisted by one or more assistant clerks.
(3) The Provincial Police Officer may, by general or special order, assign any one or more tasks to any officer mentioned above.”; and
(2) in Rule 22.4, for clause (a), the following shall be substituted:
“(a) He shall:
(i) maintain hard as well as soft copy (electronic copy) of the registers as per orders of the Provincial Police Officer;
(ii) dispose of and be responsible for early disposal of all the correspondence as per instructions of the officer incharge of the police station; and
(iii) write all reports and returns called for by the competent authority.”
A bare perusal of the above amendment would show no reference to Rule 24.5 to be amended. The fact that lodging FIR was made on the computer due to the above amendment cannot justify that FIR was legally lodged. No amendment to Rule 24.5 was made. The act of Muhammad Yaqoob S.I. (CW-2) does not align with the law and, thereby, is in absolute violation and non-compliance with Section 154 Criminal Procedure Code and Rule 24.5 of Police Rules, 1934. The FIR is the document entered into a book/register maintained at the police station under Rule 24.5 of Police Rules, 1934. The statement of complainant is entered therein under Section 154 Criminal Procedure Code. Based on this, the law is set into motion. The mandatory provisions of the law were departed, which creates doubt about the truthfulness of the allegation leveled in the FIR and that when the incident was reported to the police and left unexplained holes in the prosecution story, the benefit of which must accrue to the accused.
12. Another aspect of the case makes the prosecution case doubtful. Zafar Fareed (CW-7)-the investigating officer deposed that on receiving of FIR (Exh.CW-2/A), he immediately rushed to the place of occurrence, where Adnan Abdullah Khan (PW-1), Saif Ullah Khan (PW-2), Qaisar Rasheed Khan (PW-3), Ijaz Ahmad Khan (PW given up), and Aamir (PW given up) were present, and he (CW-7) prepared the inquest report by the law with due care. Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that:
“Police arrived at the place of occurrence after about one and half/two hours after the occurrence. The witness volunteered that upon arrival of the police I, got written the application for registration of case and went to police station and then police came at the spot and then after police brought the dead body.”
Saif Ullah (PW-2) deposed during cross-examination that:
“I do not know that upon arrival of police, what document was prepared first by them. Police remained at the place of occurrence for about 1 or 3/4 hour.”
Zafar Fareed S.I. (CW-7)-the investigating officer admitted during cross-examination that:
“I noted the names in Column No. 4 of inquest report the names who were present at the place of occurrence. The witness volunteered that they were also relatives of the complainant. The complainant being brother of deceased is closer relative than the persons stated in Column No. 4 of inquest report. The name of complainant and alleged PWs is not stated in column No. 4 of inquest report. The two persons Aamir Khan and Qaiser Rasheed Khan were present at the time of preparation of inquest report so I noted the names of these two persons in Column No. 4 of the inquest report.”
Zafar Fareed S.I. (CW-7)-the investigating officer prepared an inquest report (Ex.CW-5/C), wherein the names of Adnan Abdullah Khan (PW-1)-the complainant, and Saif Ullah (PW-2) have not been mentioned in Column No. 4, and the inquest report (Ex.CW-5/C) was not signed by any of the eye-witnesses or the complainant. Although Zafar Fareed S.I. (CW-7) the investigating officer, has categorically asserted that he recorded the statements of the witnesses under Section 161 of Cr.P.C. and also made the investigation, which shows that the witnesses were not present at the place of occurrence. The inquest report (Ex. CW-5/C) was signed by Aamir Khan (given up PW) and Qaisar Rasheed Khan (PW-3). Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that:
“Aamir Pw belongs to Faisalabad, whereas the Pw Qaisar Rasheed belongs to Kot Sondha. I did not informed Aamir through Telephone regarding the occurrence. The witness volunteered that he had already come in the house of Qaisar Rasheed.--------------I called Qaisar Rasheed through telephone and informed him about the occurrence. On the day of occurrence my cell phone was active. I did not call the police through telephonically.”
The complainant, after half an hour after the incident, went to the market and got drafted a complaint (Ex. PA), and after that, he went to the police station to report the incident. The above deposition of Adnan Abdullah Khan (PW-1)-the complainant, reveals that before reporting the incident to the police, he (PW-1) managed witnesses, i.e., Aamir Khan (given up PW) and Qaisar Rasheed Khan (PW-3). Admittedly, Aamir Khan belongs to Faisalabad, whereas Qaisar Rasheed Khan (PW-3) belongs to Kot Sondha. During cross-examination, Adnan Abdullah Khan (PW-1)-the complainant, admitted that Amir Khan PW is his maternal cousin and brother-in-law. The distance between the place of occurrence and Faisalabad is about 70/80 kilometers. Qaisar Rasheed-PW is his maternal cousin, and he was a resident of Kot Sondha. Kot Sondha is about 5/7 kilometers away from the place of occurrence. The presence of both these witnesses, i.e., Aamir Khan (given up PW) and Qaisar Rasheed Khan (PW-3), at the time of preparation of the inquest report (Ex. CW-5/C) at 07:15 p.m. on 28.06.2017, suggests that the FIR had been registered after due consultation and deliberation by the complainant and also creates doubt regarding the actual time of proceedings of inquest taken by Zafar Fareed S.I. (CW-7)-the investigating officer, as they were called by the complainant through a telephone call from their respective places, i.e., Faisalabad and Kot Sondha. It also suggests that the complainant (PW-1) and Saif Ullah (PW-2) were not present when the inquest occurred. Saif Ullah (PW-2) is a resident of Dera Malla Singh, and he (PW-2) admitted during cross-examination that:
“The distance between Farooqabad and Dera Malla Singh is about 7/8 kilometers. ------------------------------------When police arrived at the place of occurrence Qaiser Khan and Aamir Khan had already arrived. Qaiser Rahseed is our relative who resides at Kot Sondha. Aamir Khan is also our relative. The distance between Kot Sondha and place of occurrence is about 6/7 km.”
Qaisar Rasheed Khan (PW-3) deposed that he reached the place of occurrence, where the dead body of Shahzad Abdullah was lying in Mirza Gafoor Chowk. He identified the dead body before the investigating officer during the post-mortem examination. He (PW-3) deposed during cross-examination that:
“I recorded in my statement u/S. 161, Cr.P.C. to the effect that I reached at the place of occurrence where dead body of Shahzad Abdulla laying in the Chowk Mirza Gafoor. Confronted with Ex. DB where it is no recorded.”
Considering all these facts, we have no hesitation in concluding that the prosecution has not been able to prove on the record that the incident was reported at the time it was claimed to have been recorded and the presence of the witnesses at the place of occurrence.
13. On perusal of complaint (Ex. PA), FIR (Ex. CW-2/A), it reveals that the same was lodged at 07:15 p.m. on 28.06.2017, and post-mortem was conducted by Dr. Rao Taimoor Hameed Khan (CW-5) on 29.06.2017 at 06:00 a.m., with a delay of about 10 hours and 45 minutes from the time of registration of FIR. The fact, however, remains that the post-mortem examination was delayed for ten hours and forty-five minutes. The prosecution did not explain the delay in conducting the post-mortem examination. Dr. Rao Taimoor Hameed Khan (CW-5) deposed during examination-in-chief that:
“On the same day at 08:00 p.m, a dead body of Shahzad Abdullah s/o Abdullah Khan age about 50-52 years, male, caste Pathan, was brought by Shakeel Ahmed 1777/C and Muhammad Asif 1697/C from the police station of city Farooqabad, District Sheikhupura, for the purpose of autopsy.-------------Complete documents from police received at 05:30 a.m. on 29.06.2017 and autopsy conducted at 06:00 a.m. on 29.06.2017. The death according to police papers was occurred on the 28.06.2017 at 07:15 P.M.”
During cross-examination, Dr. Rao Taimoor Hameed Khan (CW-5) deposed that:
“There is no delay on my part for conducting of post-mortem. As soon as I received police paper I started examination.----------In autopsy report Ex.CW-5/A, the column of Book Number and Serial Number has been crossed. No number has been mentioned. I did not initial upon the alphabets of L and R in Ex.CW-5/A/1.”
As per the post-mortem report (Ex. CW-5/A), the time of death was mentioned as 07:15 p.m. on 28.06.2017. Dr. Rao Taimoor Hameed Khan (CW-5) deposed during cross-examination that:
“I signed over the application for conducting autopsy/injury sheet Ex. CW-5/B, inquest report Ex. CW-5/C, application for conducting of post-mortem examination Ex.CW-5/D.”
The absence of signatures of Dr. Rao Taimoor Hameed Khan (CW-5) on the complaint (Ex. PA) and F.I.R (Ex. CW-2/A) led to the conclusion that the FIR was recorded with the delay, and the FIR has not been registered at the time at which it is claimed to have been recorded. It also gets support from the inquest report (Ex. CW-5/C), wherein the reference to the documents is not given in the brief history. The Court observed that even though the inquest report prepared under Section 174 of Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of the statement recorded during inquest proceedings get reflected in the report. The deposition of Dr. Rao Taimoor Hameed Khan (CW-5) reveals that the documents were received at 05:30 a.m., and till that time, the complaint (Ex. PA) and F.I.R. (Ex. CW-2/A) were not existing. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the first information report came to be recorded later on after due deliberation and consultation and was then ante-timed to provide it with the color of the promptly lodged first information report. The Hon’ble Supreme Court of Pakistan, in the case of “Irshad Ahmed v. The State” (2011 SCMR 1193), held that:
“We have further observed that the post-mortem examination of the dead body 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 dead body conducted.”
Admittedly, the incident occurred at Chowk Mirza Ghafoor at 06:00 p.m. on 28.06.2017. As per the prosecution case and deposed by the prosecution witnesses, i.e., Adnan Abdullah Khan (PW-1)-the complainant, and Saif Ullah (PW-2), on 28.06.2017 at about 06:00 p.m., they along with Shehzad Abdullah Khan (the deceased) and Ejaz Ahmad Khan were proceeding towards chowk of Mirza Ghafoor to offer to swing their children and when they reached in chowk of Mirza Ghafoor, where the appellant along with other accused was present and the incident took place. The reason for the presence of prosecution witnesses at the place of occurrence was taking their children to offer them swings. Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that:
“I, Saif Ullah pw, Ijaz pw and Shahzad deceased have no residence or any place of business at the Chowk of Mirza Ghaffor.” He (PW-1) further deposed during cross-examination, “We did not produce the two children before the police. The witness volunteered they were minors. The name of such children Ibraheem Shahzad aged about 5/6 years and second was Mariam Bibi aged about 8/10 years. I did not bring my children for swings. I did not produce the operator of swings before the police to prove the fact of existence of swings.”
Whereas, Saif Ullah (PW-2) deposed during cross-examination that:
“I have wife and children. My brother Ijaz also has wife and children. My children and the children of Ijaz were not with us on the day of the occurrence when we were allegedly going to swing the children. We did not produce any of my family member i.e wife and children before the police during investigation to prove the fact that on the day of occurrence we really came to Farooqabad.”
The investigating officer (CW-7) deposed during cross-examination that:
“There is no mention of the swings and the minor children playing in it in my unscaled site-plan Ex.CW-7/H.------------When I reached at the place of occurrence the persons who were present there to whom I mentioned in my record were majors. I did not refer the children to whom the complainant party had brought for swings in my entire investigation.”
It is admitted that the prosecution witnesses are interested and inimical towards the accused. The appellant is the son of co-accused Tariq Saif-ul-Rehman and the brother of Qudrat Ullah Shahab and Junaid Ahmad Khan (since acquitted). Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that:
“About 6 months earlier to the occurrence I lodged an FIR 449 dated 17.12.2016 u/S. 364, PPC regarding the abduction of Saif Ullah PW of this case, against Tariq accused and his sons.”
Similarly, Saif Ullah (PW-2) deposed during cross-examination that:
“A criminal case was registered against Taha accused and his father etc. regarding my abduction. The said case was registered by the complainant of this case. The said case was cancelled. The witness volunteered that a compromise effected in that case. -----------I cannot produce any document regarding compromise today. I did not produce any document of that compromise during the investigation of this case.”
So, all these facts suggest that both the prosecution witnesses, i.e., Adnan Abdullah Khan (PW-1)-the complainant, and Saif Ullah (PW-2), failed to establish their presence at the place of occurrence. The prosecution witnesses were not only inimical towards the accused persons but were also closely related to the deceased, and they had reasons to implicate the accused persons falsely. During cross-examination, Zafar Fareed S.I. (CW-7)-the investigating officer deposed that:-
“I did not the record the statement of minor injured Muhammad Ahmad.-----------The witness volunteered that the father of injured minor child appeared before the Court of learned Area Magistrate and recorded his statement that they did not want to pursue the case. During my investigation on 22.07.2017, it was not came before me the complainant party was harassing the minor child and his father. The witness volunteered that might be due to clerical mistake it was stated in my case diaries however the father of the minor injured appeared before the learned Area Magistrate and recorded his statement. The investigation remained with me from 22.07.2017 to 10.09.2017. Police file also remained with me during the above said period. During this period I have been writing and reading the police file. I did not correct my any clerical mistake.”
There is no independent evidence to corroborate the evidence of the interested witnesses in this case.
14. Per the prosecution case, Zafar Fareed S.I. (CW-7)-the investigating officer, deposed that on 28.06.2017, he (CW-7) collected 13 crimes empties P-1/1-13 of 9MM pistol which were secured from the place of occurrence vide recovery memo (Ex. PE) and on the same day he (CW-7) handed over a sealed parcel of the 13 crimes empties P-1/1-13 to Nazim Hussain 1313/HC (CW-4) for onward transmission to the office of Punjab Forensic Science Agency. Nazim Hussain 1313/HC (CW-4) deposed that he handed over a sealed parcel of the 13 crimes empties P-1/1-13 to Zafar Fareed S.I. (CW-7)-the investigating officer, on 03.07.2017. Zafar Fareed S.I. (CW-7)-the investigating officer deposed that on 03.07.2017, he received a sealed parcel of the 13 crimes empties P-1/1-13 from Nazim Hussain 1313/HC (CW-4) and deposited the same on the same day with the office of Punjab Forensic Science Agency.
Zafar Fareed S.I. (CW-7)-the investigating officer deposed that he arrested Taha Azam Ullah-accused on 14.08.2017. On 24.08.2017, Taha Azam Ullah-accused got recovered a pistol 9-MM (P-4) along with two magazines P-5/1-2 and two live bullets P-6/1-2 and on the same day, Zafar Fareed S.I. (CW-7)-the investigating officer handed over a sealed parcel of the pistol 9-MM (P-4) to Nazim Hussain 1313/HC (CW-4) for onward transmission to the office of Punjab Forensic Science Agency. Nazim Hussain 1313/HC (CW-4) deposed that he handed over a sealed parcel of the pistol 9-MM (P-4) to Zafar Fareed S.I. (CW-7)-the investigating officer on 29.08.2017, the office of Punjab Forensic Science Agency. Zafar Fareed S.I. (CW-7)-the investigating officer deposed that on 29.08.2017, he received a sealed parcel of pistol 9-MM (P-4) from Nazim Hussain 1313/HC (CW-4) and deposited the same on the same day with the office of Punjab Forensic Science Agency. The sealed parcel of case property was handed over to Zafar Fareed S.I. (CW-7)-the investigating officer, but he (CW-7) had not stated that he received back pistol 9-MM (P-4) and the 13 crimes empties P-1/1-13 from the office of Punjab Forensic Science Agency, Lahore. The entire prosecution evidence is silent on this aspect of the case. The whole prosecution evidence is silent on this aspect of the case. Thus, there was no link evidence to prove that the pistol 9-MM (P-4) recovered from the accused and 13 crime empties P-1/1-13 secured from the place of occurrence were again received back from Zafar Fareed S.I. (CW-7)-investigating officer or any other police officer by the moharrar Malkhana, and the same were re-deposited in the Malkhana or handed over to the Moharrar. It is necessary that as and when the case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when the case property is re-deposited in Malkhana. Case property in murder cases must be kept in safe custody from the date of seizure till its production in the Court. On 01.09.2018, 13 crime empties P-1/1-13 and on 15.11.2018, the pistol 9-MM (P-4) were produced in the testimony of Saif Ullah (PW-2) and Ibrar Ahmad
(PW-4) respectively. Nazim Hussain 1313/HC (CW-4) or any other prosecution witness had not stated that they collected 13 crime empties P-1/1-13 and pistol (P-4) from the office of Punjab Forensic Science Laboratory and re-deposited the same with the malkhana. Thus, it casts doubt whether it is the same case properties i.e. pistol (P-4) and crime empties P-1/1-13 respectively, that were recovered from the accused and secured from the place of occurrence, and, after that sent to Punjab Forensic Science Laboratory or whether it was case property of some other case. Pointing out towards above deposition of prosecution witnesses, it reveals that the prosecution did not prove that case property 13 crime empties P-1/1-13 and pistol (P-4) were kept in safe custody. Due to the lack of this evidence, it cannot be held that the alleged recovered 13 crime empties P-1/1-13 and pistol (P-4) were re-deposited in Malkhana, and its benefit will go to the accused. Given prosecution evidence, it would be taken that there was enough chance of the said contraband being tampered with. Zafer Fareed S.I. (CW-7)-investigating officer admitted during cross-examination that:
“I prepared inquest report in accordance with law with due care.-----------I collected crime empties/cases from the place of occurrence. I took into custody the dead body from the place of occurrence. I could not enter the detail of recoveries made at the spot in Column
No. 22 and 23 of inquest report due to inadvertence.-----------I did not inform my superior police officer regarding the mistake committed in column No. 22 and 23.”
The case property, i.e., 13 crime empties P-1/1-13 and pistol (p-4) produced in the Court, could not be related to the case property seized from the place of occurrence. Therefore, 13 crime empties
P-1/1-13 and pistol (P-4) might have been tampered with while in the custody of the police cannot be ruled out. Thus, there is no evidence to connect the Fire-arms & Toolmarks Examination Report (Ex.PJ) with the 13 crime empties P-1/1-13, seized from the place of occurrence and pistol (P-4) secured from the possession of the accused. That being the position, it would not be safe to rely upon the positive report of the forensic science laboratory (Exh.PJ). These combined circumstances only deepen the shadow of doubt cast upon the prosecution’s case.
15. Moreover, we have noted that Dr. Rao Taimoor Khan
(CW-5), who conducted the post-mortem of the dead body of the deceased-Shahzad Abdullah, recovered one metallic Bullet from the left lung and handed it over to the police. Muhammad Asif 1697/C (CW-3) deposed that:
“After conducting the post-mortem doctor handed over to me post-mortem report, last worn clothes comprising Shalwar, Qameez, Banyan coloured white blood stained and sealed box containing metallic bullet which I handed over to the I.O of the case.”
We have noted that the said metallic body was neither sent to the Forensic Science Laboratory for its comparison with the pistol 9-MM (P-4) recovered at the pointing of the appellant nor the same was exhibited in evidence of the prosecution. Thus, it was established from the evidence of Muhammad Asif 1697/C (CW-3) and post-mortem report (Ex. CW-5/A) that Dr. Rao Taimoor Khan (CW-5) recovered the metallic body from the left lung of the deceased and handed over to the police, therefore, an adverse inference is to be drawn that had the metallic body, been sent to Forensic Science Laboratory for its comparison then the said report would have been unfavorable to the prosecution.
16. The motive set up by the prosecution in the private complaint (Exh.PC) and F.I.R. (Exh.PB) and deposed about it by Adnan Abdullah (PW-1)-the complainant and Saif Ullah (PW-2) have been found by us to have remained un-proved. The prosecution case in this regard was vague and could hardly inspire confidence. Adnan Abdullah (PW-1)-the complainant deposed during cross-examination that:
“I did not state the detail of said property in my private complaint. I did not submit any copy of ownership alongwith private complaint. We did not file any complaint for retrieving possession under illegal dispossession Act. The witness volunteer some other litigation was pending before the Court. We did not submit any copy of such pending cases alongwith this private case. It is incorrect to suggest that my stance of pendency of such cases is false. About 15/20 days earlier to the murder of Shahzad, a compromise was effected before District Collector regarding agricultural land left between the accused and us.----------The litigation regarding the case property left by Tahir Ishfaq-Ur- Rehman remained pending for about 2 years before the Court. During such pendency no one from accused side shot fire, struck danda or hatchet to any member of my family. The witness volunteer that Shahzad deceased was received threats. I did not report the matter of threats to the police.”
Saif Ullah (PW-2) deposed during cross-examination that:-
“The two wives and children of Tahir Ishfaq Ur Rehman are alive. None of two wives and children of Tahir Ishfaq Ur Rehman witnesses in this case to prove the motive of the instant case. It is incorrect to suggest that we introduce false motive.”
Adnan Abdullah (PW-1)-the complainant deposed that after 15/20 days of the occurrence, a compromise was effected between the parties. Per the prosecution case, the occurrence occurred on 28.06.2017. The defence relied upon an appeal filed by one Tariq Saif before District Collector, Sheikhupura (Ex.DC), partition deed (Ex.DD), wandajat (Ex.DE), order dated 11.01.2017 (Ex.DF) passed by District Collector, Sheikhupura and order dated 15.02.2017 (Ex.DJ) passed by District Collector, Sheikhupura reveals that compromise was effected between the parties on 11.01.2017 and application for correction of wandajat (Ex.DG) was submitted on 17.01.2017, vide order dated 15.02.2017 (Ex.PJ) passed by District Collector, Sheikhupura amended compromise was replaced with compromise deed 11.01.2017. Rashida Tahir, the widow of Tahir Ishfaq-ur-Rehman, signed the amended compromise deed and order dated 15.02.2017 (Ex.PJ). The documentary evidence on the record reveals that no litigation was pending between the accused persons and the widow of Tahir Ishfaq-ur-Rehman. Zafer Fareed S.I. (CW-7)-the investigating officer admitted during cross-examination that he had not interrogated Rashida Tahir, widow of Tahir Ishfaq-ur-Rehman. Zafer Fareed S.I. (CW-7)-the investigating officer deposed during cross-examination that:-
“The motive was stated to be the property of Rashida Bibi wife of deceased. I did not record the statement off Rashida Bibi in support of motive part.”
Adnan Abdullah Khan (PW-1)-the complainant deposed during cross-examination that:
“Both wives of Tahir Ishfaq-Ur-Rehman and his children are alive. We did not state any of them as my PW. We produced Rashida Bibi my sister one of the wife of Tahir Ishfaq Ur Rehman during the proceedings before the police.”
Therefore, an adverse inference is to be drawn within the meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 that had Rashida Tahir, widow of Tahir Ishfaq-ur-Rehman, appeared in the witness box would have been unfavorable to the prosecution. Reliance is placed on cases reported as “Lal Khan vs. The State” (2006 SCMR 1846) and “The State and others v. Abdul Khaliq and others” (PLD 2011 SC 554). In the circumstances, we cannot avoid the conclusion that the alleged motive was an afterthought and has not been proved by any credible evidence.
17. Taking the cumulative effect of the circumstances and the testimony of the witnesses into consideration, we believe that the prosecution has failed to bring true facts before the Court. The prosecution could not lead incriminating, corroborative/independent evidence to bring home the accused’s guilt in the case of a capital charge. The learned trial Court was not justified in convicting the appellant while basing upon such un-trustworthy, un-corroborated evidence, and the conviction passed by the learned trial Court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of the law, the benefit of every doubt is to be extended in favour of the accused. In the case of “Muhammad Akram v. The State” (2009 SCMR 230), it has been held as under:
“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”
It is a golden principle of law that the Court should let off 100 guilty but not convict one innocent person. In the case of “Ayub Masih v. The State” (PLD 2002 SC 1048), it has been held by the Hon’ble Supreme Court of Pakistan that:-
“----It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in “The State v. Mushtaq Ahmed” (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.
18. The upshot of the above discussion is that the prosecution had badly failed to bring home a charge against the appellant beyond any reasonable doubt; therefore, in the interest of the safe administration of Criminal Justice, Crl. Appeal No. 27767 of 2019 filed by Taha Azaam Ullah, the appellant is accepted in toto. The sentence awarded by the learned Additional Sessions Judge, Sheikhupura vide judgment dated 30.04.2019, is set aside, and the appellant is acquitted of the charge in private complaint filed under Sections 302, 324, 34, PPC, P.S. City Farooqabad, District Sheikhupura titled “Adnan Abdullah vs. Taha Azaam Ullah, etc.” in the case of F.I.R. No. 129 of 2017 dated 28.06.2017, offence under Sections 302, 324, 34, PPC registered at Police Station, City Farooq Abad District, Sheikhupura. The appellant-Taha Azaam Ullah is ordered to be released forthwith if not required in any other case.
19. Murder Reference No. 241 of 2019 is answered in the negative, and the sentence of death awarded to Taha Azaam Ullah son of Tariq Saif-ur-Rehman, Caste Pathan, resident of Street Store Wali near Ali Baba Centre, Farooqabad Tehsil and District, Sheikhupura (convict) is Not Confirmed.
20. As far as P.S.L.A No. 41181/2019 seeking the conviction of Respondents Nos. 1 to 3, namely Junaid Ahmad Khan, Qudrat Ullah Shahab and Tariq Saif-ur-Rehman is concerned, for what has been discussed above in the light of prosecution evidence, medical evidence, and documentary evidence, the acquittal of Respondents Nos. 1 to 3 does not suffer from any illegality to call for interference of this Court with the impugned judgment. This Court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the lower Court’s judgment is perverse or that it is entirely illegal. No other conclusion can be drawn except the guilt of the accused or misreading or non-reading of evidence resulting in a miscarriage of justice. Even otherwise, when a Court of competent jurisdiction acquits the accused, the double presumption of innocence is attached to his case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCMR 477). In this case, the prosecution has not been able to bring on record adequate incriminating evidence against Respondents Nos. 1 to 3, which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favor of Respondents Nos. 1 to 3. The judgment of acquittal does not call for any interference. Consequently, We find no merit in this P.S.L.A No. 41181 of 2019, which is hereby dismissed as being without merits.
(A.A.K.) Appeal accepted
0 Comments