PLJ 2024 Cr.C. (Note) 230
[Lahore High Court Lahore]
Present: Asif Saeed Khan Khosa and Kh. Muhammad Sharif, JJ.
SHEHZAD alias VIKKI etc.--Appellants
versus
STATE etc.--Respondents
Crl. As. Nos. 1816, 1818, 2044, 2009, 1857, Crl. Rev. No. 1018 of 2003 and M.R. No. 144 of 2004, heard on 19.4.2007.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 396--Dacoity with murder--Conviction and sentence--Challenge to--Murder reference--Test identification--Eye-witnesses by us case in hand has become one of an unwitnessed occurrence and even during test identification parades no particular role had been ascribed by so-called eye-witnesses to appellants individually--In these circumstances medical evidence produced by prosecution has lost its supportive value because there is nothing available on record to which medical evidence can provide support vis-à-vis culpability of appellants--According to prosecution photocopy of National Identity Card of deceased had been recovered from possession of appellant and a wrist-which of said deceased had allegedly been recovered groin possession of appellant but both eye-witnesses produced by prosecution had never even alleged that at time of alleged occurrence any photocopy of National Identity Card of deceased or any wrist-watch of said deceased had been taken away by culprits--All above mentioned recoveries have, thus, been found by us to be legally inconsequential and of no good use to prosecution--The prosecution had failed to prove its case against appellants beyond reasonable doubt--All above mentioned appeals are, therefore, allowed, convictions and sentences of all appellants recorded by trial Court are set aside and they are acquitted of charge--They shall be released from jail forthwith if not required to be detained in connection with any other case.
[Para 12, 13 & 14] A, B & C
Rai Shabbir Ahmad, Advocate for Appellant (in Criminal Appeal No. 1816 of 2003).
Rana Asim Khan, Advocate for Appellant (in Criminal Appeal No. 1818 of 2003).
Ch. Imran Raza Chadhar, Advocate for Appellant (in Criminal Appeal No. 2044 of 2003).
Sardar Mashkoor Ahmad, Advocate for Appellant (in Criminal Appeal No. 2009 of 2003).
Mian Abdul Qudoos, Advocate for Appellant (in Criminal Appeal No. 1857 of 2003).
Mian Sikandar Hayat, Advocate for Petitioner (in Criminal Revision No. 1018 of 2003).
Mr. Naseer-ud-Din Khan Nayyar, Additional Prosecutor-General for State in all the matters.
Mrs. Erum Sajjad Gul, Advocate for State (in Criminal Appeal No. 1816 of 2003).
Mian Sikandar Hayat, Advocate for Complainant (in all the appeals).
Date of hearing: 19.4.2007.
Judgment
Asif Saeed Khan Khosa, J.--Shehzad alias Vikki, Muhammad Rasheed, Muhammad Jamil. Naumaan and Rehan appellants were convicted for an offence under Section 396, PPC vide judgment dated 02.10.2003 handed down by the learned Additional Sessions Judge, Sheikhupura and Shehzad alias Vikki and Muhammad Rasheed appellants were sentenced to death each and to pay a sum of Rs. 50,000/- each to the heirs of Muhammad Ishaq and Tariq Mustafa deceased respectively by way of compensation under Section 544-A, Cr.P.C. or in default of payment thereof to undergo imprisonment for six months each whereas the other three appellants were sentenced to imprisonment for life each and to pay a sum of Rs. 25,000/-each to the heirs of the above mentioned deceased by way of compensation or in default of payment thereof to undergo imprisonment for six months each. The benefit under Section 382-B, Cr.P.C. was extended to the said appellants. Shehzad alias Vikki appellant has challenged his conviction and sentence before this Court through Criminal Appeal No. 1816 of 2003, Muhammad Rasheed appellant has filed Criminal Appeal No. 1818 of 2003. Muhammad Jamil appellant has preferred Criminal Appeal No. 2044 of 2003, Naumaan appellant has filed Criminal Appeal No. 2009 of 2003 and Rehan appellant has challenged has conviction and sentence before this Court through Criminal Appeal No. 1857 of 2003. Sheikh Mumtaz Iqbal complainant has preferred Criminal Revision No. 1018 of 2003 before this Court seeking enhancement of the sentences passed by the learned trial Court against all the convicts-appellants. We have heard all these matters together along with Murder Reference No. 144 of 2004 seeking confirmation of the sentences of death passed by the learned trial Court against Shehzad alias Vikki and Muhammad Rasheed appellants and we propose to decide all these matters together through the present consolidated judgment.
2. According to the prosecution at about 09.00 P.M. on 29.03.2000 some unknown culprits had entered the house of Sheikh Mumtaz Iqbal complainant’s father namely Muhammad Ishaq situated at Shah Kot Road, opposite Government Degree College, Sangla Hill, District Sheikhupura for the purpose of committing a dacoity and in the process they had injured the complainant’s father namely Muhammad Ishaq and the complainant’s brother namely Tariq Mustafa. Upon receiving an information regarding that incident the complainant reached Hussain Trust Hospital, Sangla Hill and found his father and brother there in an injured condition as they had received firearm injuries on their person. Soon after the complainant’s arrival at the said hospital his father namely Muhammad Ishaq breathed his last and died whereas the complainant’s brother namely Tariq Mustafa was referred to a hospital at Faisalabad. Upon coming to know of the incident in issue through some undisclosed source the local police arrived at Hussain Trust Hospital, Sangla Hill and recorded the complainant’s statement at 08.30 P.M. on 29.03.2000 whereafter formal FIR No. 27 was registered at Police Station City Sangla Hill, District Sheikhupura at 08.50 P.M. during the same night in respect of offences under Sections 302 and 324, PPC.
3. The investigation of this case was conducted by Faiz Ullah, SI (PW21) and Ahmad Yar, SI (PW22). The injured brother of the complainant namely Tariq Mustafa also died after some time of the alleged occurrence. The present appellants were arrested in connection with some other criminal case and they were found by the police to be involved in the present case as well. Two test identification parades were conducted wherein two eye-witnesses of the alleged occurrence subsequently becoming available correctly picked up the appellants as the culprits who had perpetrated the alleged offences. Upon completion of the investigation a challan was submitted before the learned trial Court in connection with the present case.
4. At the commencement of the trial the learned trial Court framed a charge containing four heads under Sections 395, 302/396, 302/396, PPC and Section 7 of the Anti-Terrorism Act, 1997 against the appellants to which they pleaded not guilty and Claimed a trial.
5. During the trial the prosecution produced as many as twenty-two witnesses in support of its case against the appellants. Sheikh Muhammad Iqbal (PW19) and Masood Rafique (PW20) furnished the ocular account of the incident in question. Mr. S. D. Khalid, Special Judicial Magistrate (PW9) stated about conducting two test identification parades in connection with this case. Different recoveries affected from the appellants were proved before the learned trial Court by Munawar Hussain, SI (PW11), Muhammad Akbar, FC (PW12), Muhammad Abbas, FC (PW13), Javaid Iqbal (PW16) and Muhammad Nadeem (PW17). The medical evidence was provided by Dr. Tariq Farooq (PW1), Dr. Muhammad Maqsood Sayan (PW2) and Dr. Masood Ahmad Rafi (PW15). Faiz Ullah, SI (PW21) and Ahmad Yar, SI (PW22) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under Section 342, Cr.P.C. the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make statements on oath under Section 340(2), Cr.P.C. but produced Fida Muhammad (DW1), a journalist, in order to establish that soon after their arrest photographs of some of the appellants had been taken and published in some newspapers and, thus, their identity had become known to all and sundry.
7. Upon conclusion of the trial the learned trial Court found the prosecution’s case against the appellants to have been proved beyond reasonable doubt and, thus, it convicted and sentenced them as mentioned and detailed above. Hence, the present appeals, revision petition and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that according to the FIR the alleged occurrence had remained unwitnessed and the eye-witnesses belatedly surfacing in this case were chance witnesses who had failed to advance any plausible explanation for their presence at the scene of the crime at the relevant time. They have further argued that the test identification parades held in this case were legally laconic in many respects; the prosecution had failed to allege any motive against the appellants; the recoveries allegedly affected from the appellants were legally inconsequential; the medical evidence was of no avail to the prosecution; and, therefore, the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned Additional Prosecution-General and the learned counsel for the State and the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in establishing the appellants’ guilt to the hilt and, therefore, their convictions recorded by the learned trial Court do not warrant any interference by this Court. The learned counsel for the complainant has gone on to submit that in the peculiar circumstances of this case the sentences passed by the learned trial Court against the appellants ought to be suitably enhanced by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the occurrence in issue had taken place during a night and admittedly Sheikh Mumtaz Iqbal complainant (PW18), a son of one deceased and a brother of the other deceased, had not witnessed the occurrence himself. According to the FIR lodged in this case the alleged offence had been committed by some unknown culprits and availability of any eye-witness at the spot had not been mentioned in the FIR at all. According to the record of this case two eye-witnesses namely Sheikh Muhammad Iqbal (PW19) and Masood Rafique (PW20) had surfaced in this case for the first time after recording of the FIR and they had claimed to have seen the occurrence themselves. It has pertinently been noticed by us that both the said witnesses were neither related to nor in any manner connected with the deceased, both of them had their places of residence situated about one and a half kilometers away from the place of occurrence and admittedly they too had failed to identify the culprits at the time of the alleged occurrence. In their examinations-in-chief recorded before the learned trial Court both the said witnesses had failed to disclose any reason whatsoever for their presence in the house of the deceased at the time of the alleged incident and the reason for the same disclosed by them during their cross-examination was neither plausible nor the same had satisfactorily been established before the learned trial Court. Masood Rafi (PW20) had maintained that a lady by the name of Mst. Kubra needed some financial assistance in connection with marriage of her daughter and he had gone to the house of Muhammad Ishaq deceased to request him for some financial assistance by him for the benefit of the said lady. Sheikh Muhammad Iqbal (PW19) had only maintained that he had simply accompanied Masood Rafi (PW20) to the house of the deceased on that occasion. It is admitted at all hands that no such lady by the name of Mst. Kubra had ever been produced before the Investigating Officer or before the learned trial Court nor her financial need was ever independently established either during the investigation or during the trial. It is of some significance to mention here that both the said eye-witnesses had not taken the injured victims to the hospital for medical treatment and the record shows that the injured victims had been brought to the hospital by the local police. The statements made by Izhar Hussain, FC (PW6) and Altaf Hussain, FC (PW7) before the learned trial Court clearly show that upon their arrival at the house of the deceased soon after the alleged occurrence the said police officers had not found both the above mentioned eye-witnesses to be present there at a time when both the injured victims were still available in the relevant house. We have, thus, entertained no manner of doubt that both the above mentioned eye-witnesses produced by the prosecution had been procured and planted in this case at some subsequent stage and they were not present with the deceased at the time of the alleged occurrence.
10. We have found the contention of the learned counsel for the appellants regarding laconic nature of the test identification parades to be quite correct. According to the prosecution both the above mentioned eye-witnesses had correctly picked up Muhammad Rasheed and Muhammad Jamil appellants during a test identification parade held on 20.05.2000 and the same eye-witnesses had subsequently correctly picked up Shehzad alias Vikki. Naumaan and Rehan appellants during a test identification parade held on 13.06.2000. Both the said test identification parades had been supervised by Mr. S. D. Khalid, Special Judicial Magistrate (PW9). A perusal of the statement made by the said Magistrate before the learned trial Court shows that the proceedings pertaining to the test identification parade statedly held on 20.05.2000 had never been exhibited and brought on the judicial file of this case. Both the above mentioned test identification parades had been held with a noticeable delay after the arrest of the present appellants. It had been conceded by the above mentioned Magistrate that before holding of the test identification parades the appellants had got their objections recorded to the effect that they had already been shown to the eye-witnesses, their photographs had been taken by the police and their photographs had also been published in different newspapers after their arrest. The factum regarding publishing of photographs of some of the appellants in different newspapers after the arrest of the said appellants had been proved before the learned trial Court by a journalist named Fida Muhammad who had appeared as DW1. It had been conceded by the above mentioned Magistrate before the learned trial Court that at the time of identification of the appellants during the test identification parades the eye-witnesses had failed to specify any particular or specific role played by the appellants during the incident in issue. For all these reasons we have found the evidence produced by the prosecution regarding holding of test identification parades to be not only legally laconic but also unworthy of any serious credence.
11. It is not disputed that no private or personal motive had even been alleged by the prosecution against the present appellants either in the FIR or before the learned trial Court.
12. After discarding of the statements of the above mentioned eye-witnesses by us the case in hand has become one of an unwitnessed occurrence and even during the test identification parades no particular role had been ascribed by the so-called eye-witnesses to the appellants individually. In these circumstances the medical evidence produced by the prosecution has lost its supportive value because there is nothing available on the record to which the medical evidence can provide support vis-à-vis culpability of the appellants.
13. The only other piece of evidence left in the field in this case is in the shape of different recoveries allegedly affected from the appellants’ possession. Three crime-empties had allegedly been recovered in this case from the place of occurrence which had subsequently been compared with the weapons already recovered from the possession of different appellants in connection with a different criminal case. The pistol .30 bore allegedly recovered from the possession of Shehzad alias Vikki appellant did not match with any crime-empty. A pump-action recovered from the possession of Naumaan appellant had statedly matched with two crime-empties but according to the prosecution itself the said pump-action was not used by Naumaan appellant during the present occurrence and the said pump-action had statedly been used by Shehzad alias Vikki appellant during that incident. There is, however, no independent evidence available on the record to establish that the said pump-action had been used by Shehzad alias Vikki appellant during the incident which is the subject-matter of the present criminal case. The recovery of the said pump-action from the possession of Naumaan appellant is of no avail to the prosecution because the prosecution itself wants the Court to believe that the said pump-action had not been used by Naumaan appellant in the occurrence in issue and at the same time it is but obvious that said recovery of pump-action and its matching with two crime-empties cannot even be used against Shehzad alias Vikki appellant because the said weapon had not been recovered from his possession. A carbine had statedly been recovered from the possession of Muhammad Jamil appellant but admittedly the said weapon had not matched with any crime-empty. Similarly the pistel .30 bore allegedly recovered from the possession of Rehan appellant had also not matched with any crime-empty recevered in the present case. Although a gun 12 bore allegedly recovered from the possession of Muhammad Rasheed appellant was shown to have matched with one of the crime-empties yet admittedly the said weapon had not been recovered from the possession of the said appellant in connection with the present criminal case and nobody had ever alleged or proved before the learned trial Court that the said appellant was armed with a gun .12 bore and he had fired from the same during the alleged occurrence. A sum of
Rs. 3,000/-in cash allegedly recovered from the possession of Shehzad alias Vikki appellant had remamed unconnected with the alleged offence. According to the prosecution a photocopy of the National Identity Card of Tariq Mustafa deceased had been recovered from the possession of Shehzad alias Vikki appellant and a wrist-which of the said deceased had allegedly been recovered from the possession of Nauman appellant but we have noticed that both the eye-witnesses produced by the prosecution had never even alleged that at the time of the alleged occurrence any photocopy of the National Identity Card of Tariq Mustafa deceased or any wrist-watch of the said deceased had been taken away by the culprits. All the above mentioned recoveries have, thus, been found by us to be legally inconsequential and of no good use to the prosecution.
14. For what has been discussed above we have arrived at an irresistible and inescapable conclusion that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. All the above mentioned appeals are, therefore, allowed, the convictions and sentences of all the appellants recorded by the learned trial Court are set aside and they are acquitted of the charge. They shall be released from the jail forthwith if not required to be detained in connection with any other case.
15. For the reasons recorded above Criminal Revision No. 1018 of 2003 preferred before this Court by Sheikh Mumtaz Iqbal complainant has lost its relevance and the same is hereby dismissed.
16. Murder Reference No. 144 of 2004 is answered in the negative and the sentences of death passed by the learned trial Court against Shehzad alias Vikki and Muhammad Rasheed appellants are not confirmed.
(A.A.K.) Appeals allowed
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