PLJ 2024 Cr.C. (Note) 66
[Lahore High Court, Lahore]
Present: Syed Shahbaz Ali Rizvi and Shakil Ahmad, JJ.
SHEHARYAR alias SHERI and others--Appellants
versus
STATE and others--Respondents
Crl. A. No. 65734-J, 62215, 66602, Criminal Revision No. 66603 &
M.R. No. 336 of 2019, heard on 4.10.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 (b) & 34--Conviction and sentence--Challenge to--Qatl-e-amd--It comes to surface that eyes and mouth of deceased were open during time of post-mortem examination while eyes of deceased were open--It normally happens when none from close ones attends dead body prior to development of rigor mortis--Had complainant and other eye-witnesses, related to poor deceased persons, been with them at time of their death within no time after sustaining of their injuries in cultural background of region, dead bodies of two would have been with close eyes and mouth--According to ocular account furnished by eye-witnesses, it was appellant who and none else caused fire shot injuries to both deceased with his pistol but statement of Medical Officer with regard to dimensions of injuries sustained-- The above reproduced part of statement of Investigation Officer also creates doubt about veracity of motive alleged--The above reproduced excerpts from statements of PWs create doubts about credibility of recovery proceedings and safe custody of case property--Even otherwise, when direct evidence furnished by eye-witnesses is not trustworthy, conviction cannot be inflicted on basis of just corroboratory piece of evidence--Prosecution remained fail to prove its case against appellants beyond shadow of a reasonable doubt-- Prosecution has to stand on its own legs--There remains no cavil about proposition that even a single reasonable doubt is sufficient to warrant acquittal of an accused while we have observed so many.
[Para 12, 13 & 14] A, B, C, D & F
Benefit of Doubt--
---- It is now an established proposition that responsibility to prove its case squarely lies upon shoulders of prosecution and no benefit of weak, false or even absence of defence can be derived to strengthen prosecution case and prove same against accused. [Para 14] E
M/s. Muhammad Ahsan Bhoon, Syed Ali Zuhair Kirmani and Iftikhar Ahmed Mayo, Advocates for Appellant (Sheharyar).
Ch. Sarfraz Ahmad Ghuman, Advocate for Appellant (Muhammad Umar).
M/s. Kamran Javed Malik and Aatif Mumtaz Bhatti, Advocates for Appellant (Ahmed Faraz Bhalli).
Mr. Muhammad Waqas Anwar, Deputy Prosecutor General for State.
Rai Bashir Ahmad, Advocate for Complainant.
Date of hearing: 4.10.2023.
Judgment
Syed Shehbaz Ali Rizvi, J.--This judgment shall dispose of Criminal Appeal No. 65734-J of 2019 filed by Sheharyar alias Sheri, Ahmad Faraz Bhalli, Muhammad Umar, Muhammad Sajjad Rizvi alias Muhammad Ali Rizvi, appellants/convicts through jail and Criminal Appeal No. 62215 of 2019 filed by Sheharyar alias Sheri, through a private learned counsel, against their convictions and sentences awarded to them by the learned trial Court, Criminal Appeal No. 66602 of 2019 filed by Mudassar-ul-Majid, complainant against acquittal of Waji-ul-Hassan alias Hassan Shah, respondent therein, Criminal Revision No. 66603 of 2019 filed by Mudassar-ul-Majid, complainant for enhancement of sentence awarded to Respondents No. 2 & 3 therein and Murder Reference No. 336 of 2019 sent by the learned trial Court for confirmation or otherwise of sentence of death awarded to Sheharyar alias Sheri, convict as all these have arisen out of same judgment dated 04.10.2019 passed by the learned Addl. Sessions Judge, Sialkot in case FIR No. 399 dated 12.06.2018 registered for offence under Sections 302, 324, 109, 148 and 149, PPC at Police Station Cantt District Sialkot whereby, the appellants were convicted under Section 302(b) read with 34, PPC, as a result whereof, Sheharyar alias Sheri, appellant was sentenced to death on two counts whereas, Muhammad Umar and Ahmad Faraz Bhalli, appellants were sentenced to imprisonment for life on two counts for committing the murder of Muhammad Pervaiz and Muhammad Yasir, deceased persons. They were also directed to pay Rs. 500,000/-each to the legal heirs of each deceased as envisaged under Section 544-A of the Code of Criminal Procedure, 1898 which was ordered to be recovered as arrears of land revenue and in default thereof, to undergo simple imprisonment for six months each. All the appellants except Muhammad Sajjad Rizvi alias Muhammad Ali Rizvi (tried separately being juvenile) were also convicted under Section 324, PPC and sentenced to rigorous imprisonment for seven years each with fine of Rs. 10,000/-each and in default thereof, to further undergo simple imprisonment for two months each. They were further convicted under Section 337-F(v), PPC and sentenced to rigorous imprisonment for five years each with the direction to pay Daman amounting to Rs. 10,000/-, (collectively in equal share) to injured Muhammad Asim. They were further convicted under Section 337-F(iii), PPC and sentenced to rigorous imprisonment for three years each with the direction to pay Daman amounting to Rs. 10,000/-(collectively in equal share) to injured Shaukat Ali. The appellants were granted benefit of Section 382-B of the Code of Criminal Procedure, 1898. All the sentences of imprisonment were ordered to run concurrently. The learned trial Court, through the same judgment, acquitted Waji-ul-Hassan alias Hassan Shah, co-accused while giving him the benefit of doubt.
It is pertinent to mention here that Sheharyar alias Sheri, appellant filed Crl. Appeal No. 62215 of 2019 through a private learned counsel whereas, he also filed Crl. Appeal No. 65734-J of 2019 through jail along with Ahmad Faraz Bhalli, Muhammad Umar, Muhammad Sajjad Rizvi alias Muhammad Ali Rizvi, appellants. Muhammad Sajjad Rizvi alias Muhammad Ali Rizvi, appellant was tried separately being juvenile, therefore, he also filed a separate appeal bearing Crl. Appeal No. 65738 of 2019 (also being decided today), therefore, Crl. Appeal No. 65734-J of 2019, to the extent of Sheharyar alias Sheri and Muhammad Sajjad Rizvi alias Muhammad Ali Rizvi, appellants, is hereby dismissed being superfluous.
2. Per prosecution, the brief facts of the case, as disclosed by Mudassar-ul-Majid, complainant (PW-10) in his complaint (Exh-PQ) on the basis of which formal crime report (Exh-PD) was registered, are that on 11.06.2018 at about 11.30 p.m, Sheharyar alias Sheri and Hassan Shah while armed with fire-arms along with three unknown co-accused (later on identified as Muhammad Sajjad Ali Rizvi alias Muhammad Ali Rizvi, Ahmad Faraz Bhalli and Muhammad Umar) committed the murder of Muhammad Pervaiz and Muhammad Yasir, made murderous assault on the lives of Shabbir Hussain, Asim and Shaukat and caused them fire-arm injuries.
The motive behind the occurrence, as disclosed by the complainant, was that Sheharyar alias Sheri, appellant, due to his behavior, was not included in Volleyball team and due to this grudge, he along with his co-accused committed the occurrence.
3. Sheharyar alias Sheri, appellant was arrested in this case by Irfan Ashraf, SI (PW-14) on 24.06.2018 who, on 02.07.2018, while in police custody, after making disclosure, got recovered car bearing Registration No. LXH-3363 Suzuki Mehran (P-15) which was taken into possession vide recovery memo. Exh-PV. On the same day, he also got recovered pistol (P-7) along with three live bullets (P-8/1-3) which was taken into possession vide recovery memo. Exh-PX. On 31.07.2018, Irfan Ashraf, SI (PW-14) arrested Ahmad Faraz Bhalli, appellant who, on 03.09.2018, while in police custody, after making disclosure, got recovered .30 bore pistol (P-9) along with four live bullets (P-10/1-4) which were taken into possession vide recovery memo. Exh-PY. Muhammad Umar, appellant was arrested by PW-14 on 08.09.2018 who, on 14.09.2018 being in police custody, after making disclosure, got recovered .30 bore pistol (P-13) along with five live bullets (P-14/1-5) which were taken into possession vide recovery memo. Exh-PAA. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial Court, after observing pre-trial codal formalities, framed the charge against the appellants and their co-accused on 12.06.2019 to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as nineteen witnesses during the trial. Mudassar-ul-Majid, complainant (PW-10), Shaukat Ali, injured (PW-11), Muhammad Asim, injured (PW-12) and Muhammad Iqbal (PW-13) furnished the ocular account. Muhammad Iqbal (PW-13) is also the witness of recovery of car and crime weapons allegedly recovered at the instance of the appellants.
The medical evidence was furnished by Dr. Asif Sajjad (PW-1), Dr. Shaban Anwar (PW-7) and Dr. Ahmad Afnan Ali (PW-18). Dr. Asif Sajjad (PW-1), on 12.06.2018, medico legally examined Shaukat Ali, injured and noted one fire-arm injury on his body. He, on the same day, also medico legally examined Shabbir Hussain, injured and noted four fire-arm injuries on his body.
Dr. Shaban Anwar (PW-7), on 12.06.2018 at 08.30 am. conducted post-mortem examination on the dead body of Muhammad Yasir, deceased and noted four fire-arm wounds, two entry and two exit, on his body. In his opinion, all the injuries were ante-mortem, caused by fire-arm, leading to damage to vital organs and excessive haemorrhage which were sufficient to cause shock, cardiopulmonary arrest and death in ordinary course of nature. Probable duration between injuries and death was sudden whereas, between death and post-mortem examination within 12 hours.
He, on the same day, at 07.30 a.m. conducted the post-mortem examination on the dead body of Muhammad Pervaiz, deceased and noted eight fire-arm wounds, three entry, four exit and one abrasion, on his body. In his opinion, all the injuries were ante-mortem in nature, caused by fire-arm leading to damage to vital organs and excessive haemorrhage which were sufficient to cause shock, cardiopulmonary arrest and death in ordinary course of nature. Probable duration between injuries and death was sudden and between death and post-mortem examination within 12 hours.
Dr. Ahmad Afnan Ali (PW-18) furnished secondary evidence regarding operation notes prepared by Dr. Jamal Anwar who was not available at the time of evidence.
Mr. Muhammad Qamar Zia, learned Judicial Magistrate First Class (PW-15) supervised the Identification Parade of Ahmad Faraz Bhalli, appellant conducted on 07.08.2018. Irfan Ashraf, SI (PW-14) and Mian Muhammad Arif, Inspector (PW-17) are the Investigation Officers of this case. Mirza Tahir Tasleem, Draftsman (PW-9) prepared scaled site-plans (Exh-PP & Exh-PP/1) of the place of occurrence whereas, rest of the witnesses are formal in nature. Complainant gave up Shabbir Hussain, Muhammad Nazir, Zulfiqar Ali PWs being won over by the accused, Saqib Ali PW being unnecessary, Ghulam Mustafa PW being disabled and Muhammad Boota PW being dead. Learned Deputy District Public Prosecutor gave up Danial Raza, 2214/C PW being unnecessary and after tendering in evidence reports of the Punjab Forensic Science Agency (Exh-PQQ, Exh-PRR, Exh-PRR/1 and Exh-PSS) closed the prosecution evidence.
5. After completion of prosecution evidence, statements of the appellants under Section 342 of the Code of Criminal Procedure 1898 were recorded wherein, they refuted the allegations levelled against them and professed their innocence. Sheharyar alias Sheri, appellant further stated that he had falsely been involved in this case being son of his co-accused Bao Muhammad Anwar on the asking of Muhammad Iqbal (PW-13). He also averred that his father is political worker of PTI and contested election of Chairman of Union Council, Dalowali and that he had falsely been involved in this case due to political rivalry. Muhammad Umar, appellant stated that he had been implicated in this case falsely on the asking of Saqib PW with whom he had a quarrel on 01.08.2018 and his father Muhammad Iqbal (PW-13) being incharge of the case got him involved in this case whereas, Ahmad Faraz Bhalli, appellant asserted that he had falsely been implicated in this case on the basis of suspicion. He was neither nominated in the FIR nor any role was assigned to him and for the first time he was assigned a role during identification parade. He also averred that he was shown to the PWs at the police station and all the PWs were provided opportunity to take his photographs. Neither they opted to appear as their own witnesses as provided under Section 340(2) of the Code of the Criminal Procedure, 1898 in disproof of the allegation levelled against them nor did they produce evidence in their defence.
6. Arguments heard. Record perused.
7. The fateful occurrence of this case, as per case canvassed by the prosecution witnesses, took place at 11.30 p.m. on 11.06.2018. The police station is situated at a distance of eight Kilometers as mentioned in the relevant column of crime report (Exh-PD). The complainant even, during his cross-examination, admits that he was having a cell phone during the days of occurrence which is also mentioned at the bottom of Exh-PQ. He further stated that ho informed Rescue 1122 from the place of occurrence regarding the incident whereupon, the van of Rescue 1122 met them on their way to hospital in the area of village Abadi of Dalowali near HBL Bank PW-6 Muhammad Anwar SI who examined the injured persens Shabbir Hussain, Muhammad Asim and Shaukat Ali in the hospital and prepared their injury statements for the purposes of their medico legal examinations, during his cross-examination, also states at page 71 of the paper book that he received the information from Rescue 15 regarding the occurrence. Upon this information, he proceeded to hospital Sialkot where after, the injury statements were handed over by him to Zafar Ali 1454/C (PW-2) who got the three injured persons medico legally examined. As per the Medical Officer (PW-7), all the three injured persons reached in the Emergency of the hospital at 11.30 p.m. on 11.06.2018 and they were medico legally examined by him at 11.45 p.m. i.e. within 15 to 20 minutes of the occurrence. The Medical Officer also confirms that the injured persons were brought to him by Zafar Ali 1454/C (PW-2). The complainant also claims that he accompanied the three injured along with dead bodies of deceased Pervaiz and Muhammad Yasir to the hospital which shows that at the time of preparation of injury statements by Muhammad Anwar SI (PW-6), the complainant was available in the hospital. During his cross-examination, he also avowed that he even was available in the hospital when Muhammad Asim, his brother was referred to Lahore and that of course was done after issuance of medico legal examination certificate. According to the Medical Officer (PW-7), Shaukat Ali and Shabbir Hussain, injured were completely in senses being oriented in time, space and person when they were medico legally examined by him. Above all, Muhammad Anwar, SI (PW-6) also concedes that the injuries sustained by the injured persons constitute offence cognizable in nature and also admits that Shaukat Ali and Shabbir Hussain were in complete senses at that time yet he expressed his inability to record their statements by stating at page 71 of the paper book as under:
“… If anyone records his statement regarding a cognizable offence then I am under legal obligation to record it under Section 154, Cr.P.C. I received the information from Rescue-15 that the occurrence had taken place so I did not collect further information to prepare the dockets. It is correct that the injuries observed by me were constituting the cognizable offence. I cannot tell any reason that why I did not record the version of injured persons under Section 154 Cr.P.C.…” (Underlining for emphasis is ours)
From the supra given facts, we have gathered that the complainant and at least two of the injured witnesses Shaukat Ali and Shabbir Hussain were not having any legitimate plausible reason to avoid their statements regarding the fateful occurrence immediately when they came and remained in contact with Muhammad Anwar, SI (PW-6). The conduct of Muhammad Anwar, SI (PW-6) to the effect that he just prepared injury statements of three injured witnesses of a double murder case without asking them or their attendants if any was there, about the details of occurrence, is quite against the normal course. His supra reproduced reply “I cannot tell any reason that why I did not record the version of injured persons under Section 154 Cr.P.C.” is astonishing, misleading and unbelievable. Being so, the inordinate delay in reporting such an heinous offence to police reflects adverse to the credibility of the prosecution case canvassed in Exh-PQ & Exh-PD rendering the ocular account doubtful. It is also relevant to keep into consideration here that the Investigation Officer (PW-17) concedes that Muhammad Anwar, SI (PW-6) who, as per prosecution’s own case, was first police official being Incharge of Police Chowki Suchait Garh in the territorial jurisdiction of which the place of occurrence admittedly falls, came into contact with the witnesses of this case. He prepared the injury statements of three injured witnesses but why he did not attend the dead bodies of Muhammad Pervaiz and Muhammad Yasir then available there in the hospital for the purpose of autopsy, why the availability of dead bodies is not mentioned in the statements of said Muhammad Anwar, SI (PW-6) as well as Zafar Ali 1454/C (PW-2) recorded under Section 161 of the Code of Criminal Procedure, 1898 by the Investigation Officer (PW-17), are the questions which too remained unanswered and shrouded in mystery.
Though Shaukat Ali (PW-11) and Muhammad Asim (PW-12) are the injured witnesses of the occurrence yet there is no doubt about the established proposition of law that the injuries available on their person though establish their availability at the relevant time yet the same do not stamp their deposition with truthfulness. There is no denial to the fact that the statements of Shaukat Ali and Muhammad Asim (PW-11 and PW-12, respectively) under Section 161 of the Code of Criminal Procedure, 1898 are not taken in normal course of events. Shaukat Ali being conscious at the time of his medico legal examination admitted that he did not disclose the names of culprits and other details of occurrence to Muhammad Anwar, SI (PW-6) who prepared their injury statements or any other official like Zafar Ali, constable (PW-2), the Medical Officer, the officials of 1122. Similarly, the statement of Muhammad Asim, injured (PW-12) could not be recorded till 07.07.2018 i.e. almost one month after the occurrence. Admittedly neither of the two Investigation Officers bothered to record his statement under Section 161 of the Code of Criminal Procedure, 1898 by approaching him or the Medical Officer treating him in the hospitals at Sialkot and Lahore.
Surprising is also that till 06.15 am, the FIR was not registered regarding the occurrence heinous in nature during which two young persons lost their lives and three sustained injuries. Though the complainant tried to explain the same by maintaining in his examination in chief that on 12.06.2018, he appeared before the Sub-Inspector of police and told him that condition of his brother Asim PW is very serious due to which he has been shifted to Mayo Hospital, Lahore and due to same reason, the FIR was lodged with delay but making himself unreliable during his cross-examination, he admitted that he did not accompany Asim injured PW to Lahore. He further states that at the time of referring Asim injured PW to Lahore, the police was present in the hospital. He also concedes that he did not disclose even the names of culprits/assailants to the police at that time and even he did not make any statement with regard to the mode of subject occurrence to the police there. In this regard, it is also noticeable that the injury statements prepared by PW-6 Muhammad Anwar, SI do not carry the name of the complainant. In the column of brief history available in the medico legal examination certificates, the names of the culprits are not mentioned and it is just inconsistently mentioned therein that 4 to 5 and 5 to 6 persons made firing in the crowd. Even the name of Sheharyar alias Sheri, appellant and Hassan Shah also named Waji-ul-Hassan are not mentioned by the persons accompanying the injured including the complainant. This fact becomes more relevant and material when we notice that the FIR was got registered with the delay of six hours and forty-five minutes despite the fact that the complainant as well as injured especially Shaukat Ali and Shabbir Hussain during the intervening time were there in contact with the police, Rescue-15 and Rescue-1122. This conduct of the witnesses, the complainant and of course the police makes credibility of the contents of FIR and that of the statements of the witnesses seriously doubtful. We have taken notice of the fact with concern that the prosecution has not even attempted to bring the record of Rescue-15 and Rescue-1122 on record by tendering the same in evidence.
8. It is also relevant to mention here that earlier to 05.30 and 06.30 am, the dead bodies of deceased Pervaiz and Muhammad Yasir were not brought to mortuary and also that even after receiving the same, the Medical Officer who was on duty from 08.00 p.m, the preceding night could not receive police papers required to initiate the post-mortem examination of the dead bodies earlier to 07.30 a.m. and 08.30 a.m, respectively despite of the fact that the dead bodies were available in the hospital.
9. Perusal of prosecution evidence further reveals that the complainant remained in the hospital interacting with the injured police and other witnesses but even column of affidavit available in the medico legal examination certificate of Muhammad Asim (PW-12), according to the Medical Officer (PW-7) to be signed or thumb marked by the injured or in case of his being unconscious to be signed by his relative, remained blank. Had the complainant been there in hospital at the relevant time, he being real brother of Muhammad Asim, injured (PW-12) would have signed or thumb marked the said column. While responding the cross-examination by learned defence counsel, the Medical Officer (PW-7) at page 47 of the paper book stated as under:
“... As per record, at the time of medical examination Shaukat and Shabbir were in senses whereas Asim was semi conscious. It is correct that affidavit portion of MLC is meant for the attestation of injured if he was in senses and in case he was not in senses at the relevant time, then attestation from the accompanying persons relative and friends etc. It is correct that affidavit portion of MLC of Asim injured Exh.PN is blank. On the affidavit portion of Shaukat injured only the signatures of one Sharif in Urdu without parentage and mobile phone are available whereas in the affidavit portion of Shabbir signatures in Urdu of one Nazir Ahmad without mobile phone and parentage is available. I have not mentioned the relevant column of history that Shuakat was accompanying with Sharif and Shabbir was accompanying with Nazir …”
At the same page, the Medical Officer also answered as under:
“In the history of Shaukat, this fact is mentioned that 5 to 6 persons made firing on the crowed. In the history of Asim, the number of persons is 4 to 5 whereas in the history of Shabbir, the number of persons is 5 to 6. The said three facts were not deposed by me in my examination in chief, volunteered it may be omission on my part and it was not intentional.
He while responding another question replied as under:
“In the history column of post-mortem report of Pervaiz, this fact is mentioned that as per information conveyed by the police 4 to 5 persons made firing in the crowed whereas history portion of Yasir 5 to 6 persons made firing in the crowed. These two facts were omitted by me in my examination in chief, volunteered it was omission and not intentional.” (Underlining is ours)
These facts transpire; firstly, that the firing was made in the crowd; (ii). The information was available to the police to the effect that 4 to 5 or 5 to 6 persons resorted to firing; and that (iii) till the post-mortem examination report, names of the assailants were actually not known and that aspect of the case in issue renders even the registration of FIR at 06.15 a.m, questionable.
The witnesses during cross-examination admitted that the FIR, the inquest report, unscaled as well as scaled site-plans and site inspection note are silent about the features or any identification mark of the unknown culprits mentioned in the crime report etc. Even the above mentioned documents do not carry the specific roles subsequently assigned by the eye-witnesses to them. Similarly, with regard to the availability of source of light at the relevant time, the evidence produced by the prosecution to establish the said fact does not sound credible. Admittedly, nothing is mentioned about the availability of poles in the site inspection note prepared by the Investigation Officer (PW-17) during his site inspection while the draftsman (PW-9) in this regard at page 76 of the paper book states as under:
“… It is correct that the place of occurrence had no street lights. The pole shown by me is private and perhaps made of metal. It is correct that the pole is situated at a distance of 40 feet from the alleged place of occurrence. It is correct that points specified by me in scaled site-plan Ex.PP are shown beyond towards the northern side from the said pole. It is correct that point C, D and E are situated at a distance of approximately 20 to 25 feet from the pole. I did not see any electricity meter outside the under construction house of Muhammad Malik shown in the site-plan…I did not find any sign of blood at point A, B and at the alleged place of occurrence when I inspected the spot. I myself did not observe the presence of any bulb at the place of occurrence as shown at the site-plan.” (Underlining for emphasis only)
Perusal of statements of the witnesses as well as the site-plan reveals that the place of occurrence is on Soling path having cultivated fields on its both sides.
10. We have also noticed that the prosecution case from the time of registration of FIR says that the Sheharyar alias Sheri and Waji-ul-Hassan alias Hassan Shah were the nominated culprits who caused injuries to the deceased persons and the witnesses but this stance of prosecution stands disbelieved to the extent of Waji-ul-Hassan alias Hassan Shah during the investigation and by the learned trial Judge.
11. Though, as per prosecution’s case, the eye-witnesses identified Ahmad Faraz and Waji-ul-Hassan alias Hassan Shah during the identification parade held on 07.08.2018 yet the fact also remains that as per Mr. Muhammad Qamar Zia, learned Judicial Magistrate (PW-15), both raised objections during the proceedings that they were shown by the police to the witnesses at police station and their snaps were also shot prior to the identification parade. Similarly, the learned Magistrate, during his cross-examination, also stated as Under:-
“… I had perused the FIR at the time of conducting of identification parade. It is correct that features of unknown accused persons, their specific roles and kind of weapon which the accused were carrying, were not mentioned in the FIR. I did not check the ages of accused persons from the police record. I have mentioned the age of Sajjad accused as 16 years. Nothing is available on the record of jail (ticket) whether Sajjad accused was confined with the juvenile or not. It is correct that none of the dummies who were sitting with Sajjad accused at the time of I.D parade were less than 18 years. It is correct that except Sajjad accused none of the dummies was 16 years age. It is correct that at the time of start of I.D parade of Sajjad accused, I have not mentioned the presence any dummy as under trial prisoner, volunteered only word prisoners are mentioned…I have not mentioned in my proceedings about the wearing apparels of any kind by the dummies. I have also not mentioned that none of the dummy was having the fetters. It is correct that none of the dummy who was sitting with Ahmad Faraz accused was aged about 40 years whereas three of them including accused are aged about 21 years whereas rest of them were 24 to 26 years age …”
To the extent of identification of Muhammad Umar, appellant by the eye-witnesses on 10.08.2018 at Paris Road Shell Petrol Pump on the basis of information provided by Khalil Ahmad (PW-16) and Zulfiqar (given up PW being won over), we have noticed that Khalil Ahmad (PW-16) is relative of Muhammad Iqbal (PW-13) and Saqib (given up PW). It is not appealing to a prudent mind that after causing the murder of two innocent persons besides fire-arm injuries to three of the eye-witnesses, Muhammad Umar, appellant dared to move in the locality on a motor bike only after two months of the alleged occurrence and moreover, if the eye-witnesses including the victims of the occurrence saw the culprit of such an occurrence especially when he was not armed, then question arises that why they did not attempt to capture him there and then in view of which we are not convinced with the probity and reliability of the evidence produced by the prosecution in this regard. The supra mentioned aspect of the case renders the relevance and credibility of the identification of Ahmad Faraz Bhalli, appellant and Waji-ul-Hassan alias Hassan Shah, accused (since acquitted) seriously doubtful.
12. When we go through the medical evidence, it comes to surface that eyes and mouth of Muhammad Pervaiz, deceased were open during the time of post-mortem examination while eyes of Muhammad Yasir, deceased were open. It normally happens when none from the close ones attends the dead body prior to the development of rigor mortis. Had the complainant and other eye-witnesses, related to the poor deceased persons, been with them at the time of their death within no time after sustaining of their injuries in the cultural background of the region, the dead bodies of the two would have been with close eyes and mouth. Likewise, according to the ocular account furnished by the eye-witnesses, it was appellant Sheharyar alias Sheri who and none else caused fire shot injuries to both the deceased with his pistol but the statement of the Medical Officer (PW-7) with regard to the dimensions of the injuries sustained by the two deceased reads as under:
“… In case of Muhammad Pervaiz deceased, Injury Nos. 1, 3 & 6 are the entry wounds whereas Injury No. 8 is blunt injury. It is correct that in all the entry wounds i.e. Injury Nos. 1, 3 & 6 the dimension of the wounds are 1 x 1 cm. Through the injuries are on different parts of body involving head, right upper arm, right side of chest but the size of the entry wounds are similar. It is correct that the foreign body/bullets are of the same size in case of all the above entry wounds.
It is correct that in case of Yasir deceased, there are two entry wounds i.e. Injury No. 1 and Injury No. 3 having one and the same size of 1.5 c.m x 1.5 c.m. It is correct that Injury No. l is on the upper lateral part of the left arm and its exit is in the inner side of the arm near the armpit. It is correct that Injury No. 3 is the entry wound and is near the armpit, volunteered Injury No. 3 is towards 7 c.m below the nipple line towards left armpit. It is correct that the wounds of Injury No. 2 and Injury No. 3 are approximately as one and the same level as showing in the pictorial diagram of Yasir deceased. The Injury Nos. 1 & 3 of Yasir deceased, the foreign bodies would of the same size as that of the entry wound.
It is correct that the size of entry wounds of Pervaiz is different than that of the size of entry wound of Yasir deceased …”
Perusal of above canvassed excerpts from the statement of the Medical Officer (PW-7) lead us to infer that both Muhammad Yasir and Muhammad Pervaiz victims received injuries by the use of two different weapons. Injury No. 8 available on the face of Muhammad Pervaiz, deceased being a blunt weapon injury is not explained by any of the prosecution witness. In this view of the matter, we are of the opinion that ocular account is not consistent with the medical evidence.
13. As far as the motive part of occurrence is concerned, we find the statement of Mian Muhammad Arif, Inspector, the Investigation Officer (PW-17) relevant in this regard and for convenience, the excerpt from the cross-examination of the said witness available at page 139 of the paper book is reproduced as under:
“Place of tournament of volleyball is not mentioned anywhere in my record. Had the PWs pointed out the place of said tournament, I was bound to visit/inspect the same. Complainant party neither disclosed the name of any team nor any name of any player of any team (participants of tournament). Nobody including the complainant party produced before me any permission of tournament throughout my investigation. As per record of PS Cantt and Chowki Suchait Garh, there was no information about the said tournament. No player of any team ever stated before me that they were playing the tournament and Sheharyar accused created hurdle during the game and abused. All the PWs in their statements under Section 161, Cr.P.C. recorded by me claimed that they were the spectators of the volleyball tournament on the night of occurrence …”
The above reproduced part of the statement of the Investigation Officer also creates doubt about the veracity of the motive alleged.
14. As regards the recovery of crime weapons effected from Shcharyar alias Sheri, Ahmad Faraz Bhalli and Muhammad Umar, appellants and positive reports of the Punjab Forensic Science Agency (Exh-PRR & Exh-PSS) with regard to their wedding with the crime empties allegedly taken from the place of occurrence by the Investigation Officer (PW-17), we have noticed that the Investigation Officer, during his cross-examination, at page 141 of the paper book states as under:-
“… I deposited the parcels of crime empties and blood-stained cotton in PFSA Lahore on 21.06.2018. I have not mentioned any reason in my record for the said delay in dispatching the said parcels. It is incorrect to suggest that the said parcels were prepared at belated stage while sitting at police station just to fabricate the evidence …”
Likewise, Zulfiqar Ali 1354/HC (PW-3), during cross-examination, at Page 63 of the paper book states as under:
“I have gone through Register No. 19, as per 02.07.2018 entries of the register, no case property of this case has been entered to be received. As per 02.07.2018 of this register neither alleged pistol of Sheharyar accused nor the car LXH-3363 has been mentioned to be received. It is correct that no such entry dated 02.07.2018 is mentioned in Register No. 19 of the Maalkhana of PS Cantt …”
The above reproduced excerpts from the statements of PW-17 and PW-3 create doubts about the credibility of recovery proceedings and the safe custody of case property. Even otherwise, when the direct evidence furnished by the eye-witnesses is not trustworthy, conviction cannot be inflicted on the basis of just corroboratory piece of evidence.
In collective consideration of the facts mentioned above, we are of the considered opinion that the prosecution remained fail to prove its case against the appellants beyond the shadow of a reasonable doubt. It is now an established proposition that responsibility to prove its case squarely lies upon the shoulders of prosecution and no benefit of the weak, false or even absence of defence can be derived to strengthen the prosecution case and prove the same against the accused. Prosecution has to stand on its own legs. Moreover, there remains no cavil about the proposition that even a single reasonable doubt is sufficient to warrant acquittal of an accused while we have observed so many.
15. In the light of above discussion, Criminal Appeal No. 62215 of 2019 filed by Sheharyar alias Sheri, appellant and Criminal Appeal No. 65734-J of 2019 filed by Ahmad Faraz alias Bhalli and Muhammad Umar, appellants are allowed, convictions and sentences awarded to them by the learned trial Court are set aside and they are acquitted of the charge levelled against them by extending them the benefit of doubt. They are in custody, be released forthwith if not required to be detained in any other case.
16. For what has been discussed above, Criminal Appeal No. 66602 of 2019 filed by Mudassar-ul-Majid, complainant against the acquittal of Waji-ul-Hassan alias Hassan Shah, respondent therein is dismissed in limine.
17. In view of supra mentioned discussion, Criminal Revision No. 66603 of 2019 filed by Mudassar-ul-Majid, complainant for enhancement of sentence awarded to Ahmad Faraz Bhalli and Muhammad Umar, respondents therein is also dismissed in limine.
18. Murder Reference No. 336 of 2019 is answered in the NEGATIVE and sentence of death awarded to Sheharyar alias Sheri, convict is NOT CONFIRMED.
(A.A.K.) Appeal allowed
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