PLJ 2023 Cr.C. (Note) 203
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ.
MUHAMMAD NAEEM ANWAR and another--Appellants
versus
STATE--Respondents
Crl. A. No. 116135-J & M.R. No. 576 of 2017, decided on 10.6.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 392--Murder reference--Qatl-e-amd--Conviction and sentence--Challenge to--Identification parade--Ocular accused--No explanation whatsoever has been given by prosecution qua delay in conducting post-mortem examination of deceased which is obviously suggestive of fact that time was consumed to fabricate whole proceedings--The proceedings of test identification parade further reveals that there is no mention of either heights” of other prisoners used as dummies, features nor colour of their skin--Only source of light available with PWs by which they saw appellants firing at deceased was headlight of motorcycle--Identification of accused in head light of motorcycle is a weak type of evidence--Witnesses of recovery are police constables, Even otherwise mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated hence this piece of evidence is also of no avail to prosecution--No independent witness has been associated in recovery of proceedings--In inevitability of above said realities recuperation of pistol is immaterial.
[Para 5, 6, 7, 8 & 9] A, B, C, D & E
2011 SCMR 1190, 2014 YLR 1180, 2017 SCMR 1546,
2018 PCr.LJ 1064 & 2017 SCMR 898 ref.
M/s. Muhammad Arshad Bhatti and Kamran Javed Malik, Advocate for Appellants.
Mr. Munir Ahmad Sial, Deputy Prosecutor General Complainant for State.
Date of hearing: 10.6.2021.
Judgment
Muhammad Tariq Nadeem, J.--Muhammad Naeem Anwar and Muhammad Shahbaz appellants were tried by the learned trial court in case FIR No. 39 dated 23.01.2016 for offences under Sections 302/392/34, PPC registered at Police Station Murad Pur, Sialkot and vide judgment dated 24-10-2017, convicted and sentenced the appellants as under:
Muhammad Naeem Anwar
Under Section 302(b), PPC death as Tazir for the murder of Fayyaz Ahmad (deceased) along with compensation under Section 544-A, Cr.P.C. of Rs. 2,00,000/- to the legal heirs of deceased and in default thereof to further undergo 06 months S.I.
Under Section 392, PPC for ten years R.I. with fine of
Rs. 1,00,00 and in default thereof to further undergo one year S.I.
Benefit of Section 382-B, Cr.P.C. was extended to him.
Muhammad Shahbaz
Under Section 302 (b), PPC life imprisonment as Tazir for the murder of Fayyaz Ahmad (deceased) along with compensation under Section 544-A, Cr.P.C. of Rs. 2,00,000/-to the legal heirs of deceased and in default thereof to further undergo 06 months S.I.
Under Section 392, PPC for ten years R.I. with fine of
Rs. 1,00,00 and in default thereof to further undergo one year S.I.
Benefit of Section 382-B, Cr.P.C. was extended to him.
The appellants have filed titled appeal against their convictions and sentences whereas the learned trial Court has sent Murder Reference for the confirmation of death sentence of Muhammad Naeem Anwar appellant or otherwise. Since common questions of law and facts are involved, therefore, all these matters are being disposed of by means of this single judgment.
2. The facts of the case have been stated by Naeem complainant (PW2) in his statement before the learned trial court, which are hereby reproduced for narration of the same:
“Stated that on 23.01.2016 at about 08.15 p.m., I along with my brother Fayyaz (deceased), Muhammad Jamil and Shahid PWs were going from Gohad Pur towards our village Gadaray on. motorcycles. When we reached near Gadaray Pulli, suddenly accused persons namely. Shahbaz and Muhammad Naeem preent in court came there on motorbike CD 70. They were armed with pistols 30 bore. They stopped us. I saw them in the light of motorcycles. They pointed their pistols towards us and accused Shahbaz present in court snatched Rs. 7000/- and coloured copy of CNIC from Shahid PW. On resistance of my brother Fayyaz, accused Naeem present in court made firing (burst) on Fayyaz at his head and face. Accused persons snatched Q mobile phone of black coloured from my brother Fayyaz. Thereafter, by making aerial firing, accused persons decamped from spot towards Gohad Pur on their motorbike. My brother Fayyaz succumbed to the injuries at spot. Then, police came at spot. I. presented application Exh. PB to the police for the registration of case, which bears my signature Exh. PB/1.”
After post-mortem examination, I received the dead body of my real brother Fayyaz deceased. On 07.3.2016, I identified accused persons present in court during identification prade at District Jail, Sialkot, in presence of learned Judicial Magistrate.
3. Arguments heard and record perused.
4. The most vital point in the case attracting the Court’s attention is that FIR, having not been lodged at Police Station rather recorded at the crime spot, in a murder case, would create reasonable suspicion that the crime was un-witnessed one, therefore, preliminary investigation was carried out and witnesses were set up. True that in each and every case, if FIR is lodged at the crime spot, the entire case of the prosecution cannot be thrown away but there must be some plausible reasons in that regard and when the very reason is absent, many suspicions and doubts would arise and inference against the prosecution has to be drawn in this regard. Reliance is placed upon case law titled as “Mst. Nazia Anwar versus The State and others” (2018 SCMR 911).
5. It has straightway been noticed by us that Fayyaz Ahmad son of Muhammad Munir was kiss to dust on 23.01.2016 at 08.15 p.m., whereas, post-mortem on the dead body of deceased was conducted on 24.01.2016 at 01.20 a.m. i.e. after about five hours of the occurrence. No explanation whatsoever has been given by the prosecution qua the delay in conducting the post-mortem examination of the deceased which is obviously suggestive of the fact that time was consumed to fabricate whole proceedings. We fortify our view from the case laws titled as “Irshad Ahmad vs. The State” (2011 SCMR 1190) and “Hunar Shah alias Anar Shah and another vs. Khalid Zad Gul” (2014 YLR1180).
6. The ocular account of the incident in issue has been provided by Muhammad Naeem Complainant (PW2) and Shahid Ali (PW3) inasmuch as PW2 is brother and PW3 is paternal cousin of the deceased. It is pertinent to mention here that both the appellants were not nominated in the FIR and even the features of the assailants have also not been shown therein. Both the appellants were arrested in this case on 02.03.2016, whereas, the joint identification parade was held on 15.3.2016. It is admitted by Sher Afghan Bakhsh, learned Magistrate (PW14) in his cross-examination that at the time of identification parade while identifying the accused persons, no PW specifically assigned the role to the accused persons who were identified. The perusal of the proceedings of the test identification parade (Exh.PR) reveals that the said identification parade of two accused was conducted jointly. It is further recorded in the proceedings of the test identification parade (Exh.PR) that two accused were made to sit in front of each other along with the dummies at different serial numbers. The proceedings of test identification parade (Exh.PR) further reveals that there is no mention of either the heights of the other prisoners used as dummies, features nor the colour of their skin. The August Supreme Court of Pakistan in case of “Hakeem and other vs. The State” (2017 SCMR 1546) at page 1550 while enunciating the principles of law relating to the identification parade has held as under:
“The proper course is to have separate identification parades for each accused”
7. We have noted that the only source of light available with the PWs by which they saw the appellants firing at the deceased was the headlight of motorcycle. Identification of the accused in the head light of motorcycle is a weak type of evidence. A reference in this regard may be made to the case of “Jamshaid Ali Khan vs. Zahoor Ahmad alias Zahoori and two others” (2018 P.Cr.L.J. 1064).
8. Now we advert to recoveries affected from the appellants in this case. According to the prosecution case on 07.04.2016 recovery of CNIC card of Fayyaz Ahmad (since deceased) and Rs. 1500/- at the pointation of Muhammad Naeem Anwar appellant was taken into possession vide recovery memo. Exh. PG. No numbers of the currency notes have been mentioned in the FIR nor in Exh. PG, even otherwise, currency notes are easily available and can be planted comfortably. A reference in this respect may be made to the case reported as “Muhammad Imran and others vs. The State” (2021 YLR 95). We have noted that witnesses of recovery Exh. PG are the police constables, Even otherwise the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated hence this piece of evidence is also of no avail to the prosecution. Reference in this context may be made to the case of “Muhammad Ismail and others vs. The State” (2017 SCMR 898). For the foregoing reasons the recovery of pistol has lost its evidentiary worth.
9. Insofar as the recovery of pistol from the possession of Muhammad Shahbaz appellant through Exh. PK and recovery of pistol from the possession of Muhammad Naeem Anwar through Exh. PL is concerned, we have observed that both the recoveries were shown to be effected from abundant Iahata which is an open place and accessible to the public at large. Even otherwise, no independent witness has been associated in the recovery of proceedings. In the inevitability of the above said realities the recuperation of pistol is immaterial.
10. Resume of the above discussion is that the prosecution has failed to prove its case against the appellants beyond any shadow of’ doubt, therefore, we accept appeal filed by Muhammad Naeem Anwar and Muhammad Shahbaz appellants, set aside their convictions and sentences recorded by the learned trial court and acquit them of all the charges by extending them the benefit of doubt. The appellants are in jail, they be released from the jail forthwith if not required in any other case. Murder Reference is answered in the NEGATIVE and the sentence of death of Muhammad Naeem Anwar appellant is NOT CONFIRMED.
(A.A.K.) Appeal accepted
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