Delay in recording statement u/S. 161 of Cr.P.C
Delay in recording
statement u/S. 161 of Cr.P.C.--Injury statement--Non produced of injured
PW--Night time occurrence--light of electric bulbs--Dishonest
improvements--Recovery--
PLJ
2024 Cr.C. (Note) 6
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ.
SAEED FAREED and others--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 335, 1003, Crl. Rev. No. 184 & M.R. No. 46 of 2019,
heard on 10.10.2023.
Pakistan Penal Code, 1860
(XLV of 1860)--
----S. 302--Qatl-i-amd--Injured
PW’s--Delay in recording statement u/S. 161 of Cr.P.C.--Injury statement--Non
produced of injured PW--Night time occurrence--light of electric
bulbs--Dishonest improvements--Recovery--Benefit of doubt--Acquittal
of--Appellants contends that whole case is fabricated and false and prosecution
remained unable to prove facts in issue and did not produce any unimpeachable,
admissible, and relevant evidence--Prosecution witnesses PW-1 and PW-2 were
injured during occurrence--The stamp of injuries on person of a witness may be
proof of his presence at place of occurrence, at time of occurrence, same can
never guarantee a truthful deposition--A witness who suffered injuries during
occurrence will depose nothing but truth--It is not simple presence of a witness
at crime scene but his credibility, which makes him a reliable witness--If
prosecution witness PW-1 was injured during occurrence on then he did not
appear before Dr. Mukhtar Ahmad (PW-8) till 27.06.2017--Claim of PW-2 of being
injured during occurrence was only a claim, having no basis in reality--No
injury statement related to observation of injuries on person of PW-2 was
available on record--PW-8 also admitted that he never handed over any clothes
of prosecution witnesses PW-1 and PW-2 to police officials--No physical proof
of establishment of a cattle shed at place of occurrence, in shape of any
utensils or even cows retained there for purpose of milking, was produced
before Investigating Officer of case, during investigation of case--The conduct
of accused as narrated by prosecution witnesses PW-1 and PW-2 was opposed to
common course of human conduct and natural events and being against that normal
course, can be taken notice of as provided under Article 129 of
Qanun-e-Shahadat Order, 1984--They had witnessed occurrence in light of
electric bulbs which were lit at place of occurrence, however, were confronted
with their previous statements and it was brought on record that prosecution
witnesses PW-1 and PW-2 had made dishonest and blatant improvements in their
previous statements with regard to availability of electric bulbs lit at place
of occurrence, whereas they had made no such claim in their previous
statements--PW-1 had not mentioned fact of identifying accused in light of
electricity bulbs lit at place of occurrence in his oral statement/Exh.PA
itself proves that no such light source was available at place of
occurrence--Investigating Officer of case, during his visit to place of
occurrence, did not take into possession any such electric bulbs--No such
electric bulb out of many which were allegedly lit at place of occurrence was
taken into possession by Investigating Officer--Presence of any light source
lit at place of occurrence has not been marked either in notes in red ink as
given by Investigating Officer in scaled site-plan Exh.PB or in notes as given
by draftsmen PW-3 in scaled site plan--It was admitted by witnesses themselves
that it was a dark night and they had used light of electric bulbs lit at place
of occurrence, never produced, to identify assailants during occurrence--The
prosecution witnesses PW-1 and PW-2 made a deliberate and dishonest departure
from their earlier narrations of occurrence while deposing before trial
Court--By improving their previous statements, prosecution witnesses PW-1 and
PW-2 impeached their own credit--Evidence of prosecution witnesses PW-1 &
PW-2 has no intrinsic worth and is to be rejected out rightly--Investigating
Officer of case got information about occurrence reached place of occurrence
and thereafter recorded oral statement Exh.PA of PW-1 at place of
occurrence--Doubt attached to statements for registration of case recorded at
place of occurrence--Sufficient doubts have arisen and inference against
prosecution has to be drawn in this regard--Recovery of pistol P-3 from
appellant namely Saeed Fareed and recovery of pistol P-5 from appellant same
cannot be relied upon as Investigating Officer of case, did not join any
witness of locality during recovery--Violation of Section 103 Code of
Cr.P.C.--Recovery of P-5 from appellant namely cannot be used as incriminating
evidence against appellants, being evidence that was obtained through illegal
means and hit by exclusionary rule of evidence--I.O of case, admitted that no
entry had been made in Register 19 maintained at police Station with regard to
depositing of recovered pistols at police station after their
recoveries--Report of Punjab Forensic Science Agency, Lahore (Exh.PBB) has no
evidentiary value as possibility of fabricating matching empties is apparent--Prosecution
witnesses failed to provide evidence enabling high to determine truthfulness of
motive alleged--As all other pieces of evidence relied upon by prosecution in
this case have been disbelieved and discarded by appellants’ conviction cannot be
upheld on basis of medical evidence alone--Convictions and sentences of both
appellants awarded by Trial Court through impugned judgment are hereby
set-aside--The appellants are ordered to be acquitted by extending them benefit
of doubt--Criminal Revision No. 184 of 2019, seeking enhancement of sentence of
convicts, is hereby dismissed--According to established principle of criminal
administration of justice once an acquittal is recorded in favour of accused
facing criminal charge he enjoys double presumption of innocence, Courts
competent to interfere in acquittal order should be slow in converting same
into conviction, unless and until said order is patently illegal, shocking,
based on misreading and non-reading of record or perverse.
[Para
10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24 & 25] A, B, D,
E,
F, G, I, J, L, M, N, O, P, Q, O, P, Q, R, T, U, V, W, X,
Y,
Z, AA, BB, CC, EE, FF, GG
PLD
1985 SC 11; 1998 SCMR 1854; 2015 SCMR 1142; 2017 SCMR 1189; 2006 SCMR 1628;
2010 SCMR 1972; 2017 SCMR 135; 2017 SCMR 564; 2018 SCMR 772; 2019 SCMR 631;
2011 SCMR 323; 2017 SCMR 1155; 2017 SCMR 898; 2017 SCMR 724; 2018 SCMR 707;
2016 SCMR 2021; 2017 SCMR 986; PLD 2021 SC 600 ref.
Pakistan Penal Code, 1860
(XLV of 1860)--
----S.
302--Qatl-i-amd--Injured witness--An injured witness narrates are not to be
implicitly accepted rather, they are to be attested and appraised on principles
applied for appreciation of evidence.
[Para
13] C
2011
SCMR 527; 2011 SCMR 323 ref.
Criminal Procedure Code,
1898 (V of 1898)--
----S. 161--Delayed
statement--Delayed recording of statement of a prosecution witness under
Section 161 of Code of Criminal Procedure, 1898 reduces its value to nothing
unless there is a plausible explanation for such delay. [Para
14] H
1996
SCMR 1553; 1998 SCMR 570; 1993 SCMR 550.
Qanun-e-Shahadat Order,
1984 (10 of 1984)--
----Art. 129--Article 129
of Qanun-e-Shahadat Order, 1984 allows Courts to presume existence of any fact,
which it thinks likely to have happened, regard being had to common course of
natural events and human conduct in relation to facts of particular case.
[Para
15] J
Qanun-e-Shahadat Order,
1984 (10 of 1984)--
----Art. 151--Dishonest
Improvements--Introduced dishonest, blatant and substantial improvements to
their previous statements and were duly confronted with their former
statements, hence their credit stands impeached and prosecution witnesses
namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) cannot be relied upon on, being proved to have deposed with a slight,
intended to mislead
Court. [Para
17] S
2012
SCMR 419 ref.
Benefit of doubt--
----For giving benefit of
doubt it is not necessary that there should be so many circumstances rather if
only a single circumstance creating reasonable doubt in mind of a prudent
person is available then such benefit is to be extended to an accused not as a
matter of concession but as of right. [Para 22] DD
2018
SCMR 772; 2021 SCMR 736 ref.
Mr.
Umar Hayat, Advocate for Appellants.
Malik
Riaz Ahmad Saghla, Additional Prosecutor General for State
Khawaja
Qaiser Butt, Advocate for Complainant.
Date
of hearing: 10.10.2023.
Judgment
Sadiq
Mahmud Khurram, J.--Saeed Fareed son of Ghulam Fareed and Muhammad Hamid Ali son of Ghulam
Fareed (convicts) were tried along with Danish, Ghulam Fareed, Nadeem Ahmad,
Muhammad Naeem son of Munir, Muhammad Naeem son of Tufail, Muhammad Azhar, Ali
ur Rehman alias AD, Muhammad Imran alias Munna,
Muhammad Kamran, Muhammad Rashid alias Chanda, Saleem Ahmad,
Aqil and Aqib Sunara (all since acquitted), the co-accused of the convicts, by
the learned Additional Sessions Judge, Multan in case F.I.R. No. 488 of 2017
dated 25.06.2017 registered in respect of offences under Sections 302, 324,
337-F(iii), 337-L(2), 148 and 149 PP.C. at the Police Station New Multan,
District Multan for committing the Qatl-i-Amd of Nisar Ahmad son of Ali
Muhammad (deceased). The learned trial Court vide judgment
dated 08.04.2019, convicted Saeed Fareed son of Ghulam Fareed and Muhammad
Hamid Ali son of Ghulam Fareed (convicts) and sentenced them as infra:
Saeed
Fareed son of Ghulam Fareed:
Death under Section 302(b) PP.C. as Tazir for committing Outl-i-Amd of
Nisar Ahmad son of Ali Muhammad (deceased) and directed to pay Rs. 200,000/- as
compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased
namely Nisar Ahmad son of Ali Muhammad (deceased) and in case of default
thereof, the convict was directed to further undergo six months of simple
imprisonment.
The convict was ordered to be hanged by his neck till dead.
Muhammad Hamid Ali son of Ghulam Fareed:-
Imprisonment for life under Section 302(b), P.P.C. as Tazir for
committing Qatl-i-Amd of Nisar Ahmad son of Ali Muhammad
(deceased) and directed to pay Rs 200,000/- as compensation under Section
544-A, Cr.P.C. to the legal heirs of the deceased and in case of default
thereof, the convict was directed to further undergo six months of simple
imprisonment
Both the convicts were
extended the benefit available under Section 382-B of the Code of Criminal
Procedure, 1898 by the learned trial Court.
Danish,
Ghulam Fareed, Nadeem Ahmad, Muhammad Naeem son of Munir, Muhammad Naeem son of
Tufail, Muhammad Azhar, Ali-ur-Rehman alias AD, Muhammad Imran
alias Munna, Muhammad Kamran, Muhammad Rashid alias Chanda,
Saleem Ahmad, Aqil and Aqib Sunara, the co-accused of the convicts, were
however acquitted by the learned trial Court
2.
Feeling aggrieved, Saeed Fareed son of Ghulam Fareed and Muhammad Hamid Ali son
of Ghulam Fareed (convicts) lodged Criminal Appeal No. 335 of 2019, assailing
their convictions and sentences. The learned trial Court submitted Murder
Reference No. 46 of 2019 under Section 374, Cr.P.C. seeking confirmation or
otherwise of the sentence of death awarded to the appellant namely Saeed Fareed
son of Ghulam Fareed. Nasir Ali, the complainant of the case, filed Criminal
Revision 184 of 2019 seeking the enhancement of the sentence of the convict
namely Muhammad Hamid Ali son of Ghulam Fareed. The complainant of the case
namely Nasir Ali also filed Criminal Appeal No. 1003 of 2019 against the
acquittal of the accused namely Danish, Ghulam Fareed, Nadeem Ahmad, Muhammad
Naeem son of Munir, Muhammad Naeem son of Tufail, Muhammad Azhar,
Ali-ur-Rehman alias AD, Muhammad Imran alias Munna,
Muhammad Kamran, Muhammad Rashid alias Chanda, Saleem Ahmad,
Aqil and Aqib Sunara by the learned trial Court (In the memo of appeal
as filed on behalf of Nasir Ali, the names of Faizan, Babar and Muhammad Saleem
have been mentioned as Respondents No. 15 to 17, though neither, the said
Faizan, Babar and Muhammad Saleem were tried by the learned trial Court nor they
were acquitted). We intend to dispose of the Criminal Appeal No. 335
of 2019, the Criminal Appeal No. 1003 of 2019, the Criminal Revision 184 of
2019 and Murder Reference No. 46 of 2019 through this single judgment.
3.
Precisely, the necessary facts of the prosecution case, as stated by Nasir Ali
(PW-1), the complainant of the case, are as under:
“Stated that we have cattle shed at Rehman Colony, Multan. On 25.06.2017
at about 6:00 p.m. Hamid and Saeed Ahmad accused persons present in Court, came
at cattle shed for milk whereupon Nisar Ahmad told to them that it was first
night of lunar month (4) and milk had finished. Accused persons Hamid and Saeed
started quarreling with Nisar Ahmad Meanwhile Ashfaq. Altaf and Suleman PW’s
came there. Above said PWs beseeched the two accused persons Hamid and Saeed.
Hamid and Saeed went from cattle shed while extending threats, for dire
consequences for not giving milk. Muhammad Ashfaq PW made a phone call at
police service counter 15, local police came there, remained at the spot for
some time and thereafter proceeded towards P.S. After the departure of police van,
we started our work. At about 8:00 p.m. Saeed Ahmad, Hamid, Danish sons of
Fareed. Fareed son of Asghar Ali Caste Sheikh Qureshi, R/O Muhallah Ashraf
Abad, Nadeem Councilor, Naeem. Saleem sons of Munir Ahmad Caste Sheikh Qureshi
R/O Muhallah Tariq Abad, Naeem son of Tufail R/O Lohari Gate armed with pistols
accused persons came there, I identified them in the light of electric bulb.
Imran alias Munna, Kamran, Ali Rehman alias A.D.
Azhar son of Mühammad Hussain, Rashid alias Chanda, Aqil. Aqib
Sunara, Chand, Babar and Faizan accused persons, present in Court, armed
with pistols also came there. After arrival, all the accused
persons started firing. Hamid accused present in Court made a fire shot which
hit Nisar Ahmad on his right thigh. Saeed Ahmad, accused present in Court, made
a fire shot which hit Nisar Ahmad on his chest. Rashid alias Chanda
accused present in Court made fire shot which hit Muzaffar alias Pomi
on his right thigh Naeem accused present in Court inflicted pistol butt blow on
left side of my back. All the accused persons also made indiscriminate firing
at Muhallah Tariq Abad Chowk. Ashfaq, Altaf and Suleman PW’s also attracted to
the spot. I attended Nisar Ahmad but he died at the spot. Police came at the
spot, I got recorded my statement Ex P.A which bears my thumb impression.
On
25.06.2017. I alongwith police went to P.S and thereafter case was registered.
On 13.08.2017, I alongwith Muzaffar alias Pomi PW went to
District Jail, Multan where I identified the accused Imran alias Munna,
Kamran, Ali Rehman alias AD and Azhar in identification parade
proceedings before learned Judicial Magistrate”
4.
After the formal investigation of the case, the report under Section 173 of the
Code of Criminal Procedure, 1898 was submitted before the learned trial Court
and the accused were sent to face trial. The learned trial Court framed the
charge against the accused on 19.02.2019, to which the accused pleaded not
guilty and claimed trial.
5. The
prosecution, in order to prove its case, got statements of as many as fifteen
witnesses recorded. The ocular account of the case was furnished by prosecution
witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2). Irfan Hayat, draftsman (PW-3) prepared the scaled site-plan of the
place of occurrence (Exh.PB). Aleem Haider 3136/HC (PW-6) stated that on
25.06.2017, he took the oral statement (Exh.PA) of Nasir Ali (PW-1) as recorded
by the Investigating Officer of the case to the Police Station and on
30.06.2017, Muhammad Anwar 634/HC (PW-4) handed over ten photographs (P-1/1 to
10) of the place of occurrence to the Investigating Officer of the case and on
04.08.2017, the appellant namely Saeed Fareed got recovered the pistol (P-3)
and the appellant namely Hamid Ali got recovered the pistol (P-5)
Muhammad Asghar (PW-7) stated that on 25.06.2017, he identified the dead body
of the deceased at the time of post-mortem examination and the Medical Officer
handed over the last worn clothes of the deceased to the police after
post-mortem examination. Shahid Nawaz 204/HC (PW-9) stated that on 25.06.2017,
he recorded the formal FIR (Exh PA/1) and Muhammad Baqir Shah, SI (PW-12)
handed over to him seven sealed parcels which sealed parcels on 20.09.2017, he
handed back to Muhammad Baqir Shah, SI (PW-12) for their onward transmission to
the office of the Punjab Forensic Science Agency, Lahore. Muhammad Amjad 3871/C
(PW-14) stated that on 25.06 2017, the Investigating Officer of the case, took
into possession the blood stained cotton and empty shells of the bullets from
the place of occurrence and he escorted the dead body of the deceased to the
hospital and received the last worn clothes of the deceased from the Medical
Officer after the post-mortem examination of the dead body of the deceased.
Muhammad Amjad 3871/C (PW-14) further stated that on 04.08.2017, the
Investigating Officer of the case took into possession two pistols
Mr. Zahoor Hussain, Magistrate (PW-15) stated that on 12.08 2017, he supervised
the test identification parade proceedings held to establish the identities of
Muhammad Azhar, Ali-ur-Rehman alias AD, Muhammad Imran alias Munna
and Muhammad Kamran (all since acquitted) and prepared his report (Exh PZ).
Muhammad Baqir Shah, SI (PW-12), investigated the case from 25.06.2017 till
18.01.2018, arrested the appellants namely Saeed Fareed and Muhammad Hamid Ali
on 01.08.2017 and detailed the facts of the investigation as conducted by him
in his statement before the learned trial Court.
6. The
prosecution also got Dr. Mukhtar Ahmad (PW-8) examined, who on 25.06.2017 was
posted as Senior Demonstrator, Forensic Medicine Department Nishtar Medical
College, Multan and on the same day conducted the post-mortem examination of
the dead body of the deceased namely Nisar Ahmad son of Ali Muhammad. Dr.
Mukhtar Ahmad (PW-8),on examining the dead body of the deceased namely Nisar
Ahmad son of Ali Muhammad, observed as under:
“Injuries
1. A
lacerated would of entry having abraded color inverted margins 3/4 cm x 3/4 cm
on front of upper chest on right side, 2 cm below medical end of right clavicle
going deep.
1.A. A
lacerated wound of exit having everted margins 1 cm x 1 cm on back of right
chest, 2 cm on right of midline,
6 cm infro-medial to infenor angle and right scapula.
2. A
lacerated wound of entry 0.75 cm x 0.75 cm having abraded collar inverted
margins on back side of right thigh, 12 cm below right inguinal region going
deep.
2.A A
lacerated wound of exit 1 cm x 1 cm on back of right thigh in the middle. 20 cm
above popliteal fossa.
......
OPINION
In my opinion
both injuries were ante-mortem in nature and inflicted by firearm weapon
Injuries No. 1 and 1-A individually and Injuries No. 1, 1-A, 2 and 2-A
collectively were sufficient to cause death in ordinary course of nature. Death
had occurred due to excessive hemorrhage which led to shock and later on
death.”
On the same day i.e. 25.06.2017,
Dr. Mukhtar Ahmad (PW-8) also medically examined the injured namely Ghazanfar
Iqbal Muzaffar alias Pomi (PW-2) and observed as under:
“INJURIES:
1. A
lacerated wound 0.7 cm x 0.7 cm on outer side of right upper thigh, 14 con
below right illiac crest having abraded collar and inverted margins going deep.
DNP, K.U.O. for ward report/X-Ray (337-F (iii) PPC.
The injury was caused by fire arm weapon and duration of injury was
within four hours”
Dr. Mukhtar Ahmad (PW-8)
also medically examined the injured namely Nasir Ali (PW-1) on 27.06.2017 and
observed as under:
1. A
lacerated wound measuring 1.5 cm x 0.5 cm with swelling around on back of chest
on left side 10 cm below scapula, 10 cm on left of midline. On cleaning dirty
wound underlying upper muscles were turn.
2. A
contused swelling 6 cm x 4 cm bluish in colour on outer side of right fore-arm
below elbow joint.”
The prosecution also got
Dr. Naveed Haider (PW-10) examined who stated that on 22.08.2017, he had
exposed X-rays related to Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) and prepared the X-ray reports (Exh. PT, Esh.PT/1 and Exh PT/2). The
prosecution also got Dr. Farrukh Jalal (PW-13) examined who stated that on
25.07.2017, he had prepared the report (Exh PR/1) related to Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2).
7. On
14.03 2019, the learned Assistant District Public Prosecutor gave up the
prosecution witness namely Muhammad Saleem 2353/C as being unnecessary. On
16.3.2019, the learned Assistant District Public Prosecutor gave up the
prosecution witnesses namely Ishfaq, Altaf, Abdul Sattar, Abdul Ghaffar,
Suleman and Muhammad Akram as being unnecessary. On 04.04.2019, the learned
Deputy District Public Prosecutor closed the prosecution evidence after
tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore
(Exh. PAA., Exh. PBB. and Exh. PCC).
8.
After the closure of prosecution evidence, the learned trial Court examined the
appellants namely Saeed Fareed son of Ghulam Fareed and Muhammad Hamid Ali son
of Ghulam Fareed under Section 342, Cr.P.C. and in answer to the question why
this case against you and why the P.W.s have deposed against you, they
replied that they had been involved in the case falsely and were innocent. The
appellants namely Saeed Fareed son of Ghulam Fareed and Muhammad Hamid Ali son
of Ghulam Fareed opted not to get themselves examined under Section 340(2),
Cr.P.C and did not adduce any evidence in their defence.
9. At
the conclusion of the trial, the learned Additional Sessions Judge, Multan
convicted and sentenced the appellant as referred to above.
10.
The contention of the learned counsel for the appellants namely Saeed Fareed
son of Ghulam Fareed and Muhammad Hamid Ali son of Ghulam Fareed precisely is
that the whole case is fabricated and false and the prosecution remained unable
to prove the facts in issue and did not produce any unimpeachable, admissible,
and relevant evidence. Learned counsel for the appellants further contended
that the story of the prosecution mentioned in the statements of the witnesses,
on the face of it, was highly improbable. Learned counsel for the appellants
further contended that the statements of the prosecution witnesses were not
worthy of any reliance. The learned counsel for the appellants also submitted
that the recovery of the pistol (P-3) from the appellant
namely Saeed Fareed son of Ghulam Fareed and the recovery of the pistol (P-5)
from the appellant namely Muhammad Hamid Ali son of Ghulam Fareed were full of
procedural defects, of no legal worth and value, and were result of fake
proceedings. The learned counsel for the appellants also argued that the
appellants had been involved in the occurrence only on suspicion. The learned
counsel for the appellants finally submitted that the prosecution had totally
failed to prove the case against the accused beyond the shadow of a doubt.
11. On
the other hand, the learned Additional Prosecutor General along with the
learned counsel for the complainant, contended that the prosecution had proved
its case beyond the shadow of doubt by producing independent witnesses. The
learned Additional Prosecutor General along with the learned counsel for the
complainant further argued that the deceased died as a result of injuries
suffered at the hands of the appellants. The learned Additional Prosecutor
General along with the learned counsel for the complainant further contended
that the medical evidence also corroborated the statements of the
eye-witnesses. The learned Additional Prosecutor General along with the learned
counsel for the complainant, further argued that the recovery of the pistol (P-3)
from the appellant namely Saeed Fareed son of Ghulam Fareed and the recovery of
the pistol (P-5) from the appellant namely Muhammad Hamid Ali
son of Ghulam Fareed also corroborated the ocular account. The learned
Additional Prosecutor General along with the learned counsel for the
complainant, further contended that there was no occasion for the prosecution
witnesses, who were related to the deceased, to substitute the real offenders
with the innocent in this case, Lastly, the learned Additional Prosecutor
General along with the learned counsel for the complainant prayed for the
rejection of the appeal as lodged by the appellants namely Saeed Fareed son of
Ghalam Fareed and Muhammad Hamid Ali son of Ghulam Fareed. The learned counsel
for the complainant also argued that the Criminal Appeal No. 1003 of 2019,
assailing the acquittal of Danish, Ghulam Fareed, Nadeem Ahmad, Muhammad Naeem
son of Munir, Muhammad Naeem son of Tufail, Muhammad Azhar, Ali-ur-Rehman alias AD,
Muhammad Imran alias Munna, Muhammad Kamran, Muhammad
Rashid alias Chanda, Saleem Ahmad, Aqil and Aqib Sunara by the
learned trial Court from the charges also merited acceptance.
12. We
have heard the learned counsel for the appellants, the learned counsel for the
complainant, the learned Additional Prosecutor General and with their
assistance carefully perused the record and evidence recorded during the trial.
13.
The learned Additional Prosecutor General has vehemently argued that as the
prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) were injured during the occurrence,
therefore, their statements could not be doubted in any manner. The Stamp of
injuries on the person of a witness may be proof of his presence at the place
of occurrence, at the time of occurrence, however the same can never guarantee
a truthful deposition. Injuries received by a witness during an incident do not
warrant acceptance of his evidence without scrutiny. At the most, such traumas
can be taken as an indication of his presence on the spot, but still his
evidence is to be scrutinized on the benchmark of principles laid down for the
appraisal of evidence It is not a given that a witness who suffered injuries
during the occurrence will depose nothing but the truth. Even otherwise, it is
not the simple presence of a witness at the crime scene but his credibility,
which makes him a reliable witness. It has been held by the august Supreme
Court of Pakistan repeatedly that the facts that an injured witness narrates
are not to be implicitly accepted rather, they are to be attested and appraised
on the principles applied for the appreciation of evidence of any prosecution
witness regardless of him being injured or not. Guidance is sought from the
principle enunciated by the august Supreme Court of Pakistan in the case
of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527)
where at page 534 the august Supreme Court of Pakistan, was pleased to hold as
under:
“It is settled law that injuries of P.W. are only indication of his
presence at the spot but are not affirmative proof of his credibility and
truth.”
Guidance is also sought
from the principle enunciated by the august Supreme Court of Pakistan in the
case of Amin Ali and another vs. The State (2011 SCMR 323)
where the august Supreme Court of Pakistan was pleased to hold that the
presence of injuries does not stamp a witness to be a truthful one and observed
as under:
12. Certainly, the presence of the injured witnesses cannot be doubted at
the place of incident, but the question is as to whether they are truthful
witnesses or otherwise, because merely the juries on the persons of P We would
not stamp them truthful witnesses. It has been held in the case of Said Ahmed
supra as under:
“It
is correct that the two eye-witnesses are injured and the injuries on their
persons do indicate that they were not self-suffered. But that by itself would
not show that they had, in view of the aforenoted circumstances told the truth
in the Court about the occurrence: particularly, also the role of
the deceased and the eye-witnesses. It cannot be ignored that these two
witnesses are closely related to the deceased, while the two other
eye-witnesses mentioned in the F.I.R. namely, Abdur Rashid and Riasat were not
examined at the trial. This further shows that the injured eye-witnesses wanted
to withhold the material aspects of the case from the Court and the prosecution
was apprehensive that if Independent witnesses are examined, their depositions
might support the plea of the accused.”
In the case of Mehmood Hayat supra at page 1417, it has been observed as
under:
“10.
There is no cavil with the proposition laid down in the case of Zaab Din and
another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws had
stamp of firearm injuries on their person was no per se tantamount to a stamp
of credence on their testimony.”
In the case of Mehmood Ahmed supra, this Court at page 7 observed as
under:
“For
an injured witness whose presence at the occurrence is not disputed it can
safely be concluded that he had witnessed the incident. But the facts he
narrates are not to be implicitly accepted merely because he is an injured
witness. His testimony is to be tested and appraised on the principles applied
for appreciation of any other prosecution witness.”
13. From the above evidence of the P. Ws, they do not appear to be
truthful witnesses, therefore, no implicit reliance can be placed on their
evidence.”
With this principle of
appreciation of evidence in our minds that an injured witness cannot be
presumed to be also a truthful witness, we have proceeded to examine the
statements of the prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar
Iqbal Muzaffar alias Pomi (PW-2). With regard to the claim of
the prosecution witness namely Nasir Ali (PW-1) that he was injured during the
occurrence, we have noted that the said prosecution witness namely Nasir Ali
(PW-1) appeared before Dr. Mukhtar Ahmad (PW-8) only on 27.06.2017 at 03.00
p.m, whereas the occurrence had taken Place on 25.06.2017 at about 08.00 p.m.
It has not been explained as to why if the prosecution witness namely Nasir Ali
(PW-1) was injured during the occurrence on 25.06.2017, then he did not appear
before Dr. Mukhtar Ahmad (PW-8) till 27.06.2017. Dr. Mukhtar Ahmad (PW-8)
further Explained that the prosecution witness namely Nasir Ali (PW-1) was
brought for his medical examination on 27.06.2017 at 03.00 pm by Aleem Haider
3136. Dr. Mukhtar Ahmad (PW-8) in his statement recorded by the learned trial
Court stated as under:
On 27.06.2017, I medically examined Nasir Ali son
of Ali Muhammad Caste Gujjar aged 31 years occupation milkman R/O KhuMaghWala
P.S. New Multan brought by Aleem Haider 3136-C.” (emphasis supplied)
Moreover, during
cross-examination, Dr Mukhtar Ahmad (PW-8) opined that the prosecution witness
namely Nasir Ali (PW-1) had not received any earlier medical treatment for the
injuries suffered by him and according to his estimation the prosecution witness
namely Nasir Ali (PW-1) had suffered the injuries on his body on 26.06.2017 at
about 03.00 p.m and not on 25.06.2017 at about 08.00 p.m. Dr. Mukhtar Ahmad
(PW-8) stated during cross-examination, as under:
“It is correct that the injury statement of Nasir Ali injured was
produced along with the injured on 27.06 2017 at 3:00 pm. It
is correct that in injury statement Ex P.Q/1, the IO did not mention the Injury
No. 2 as mentioned by me in MLC ExPQ. It is correct that at the time of
examination of Nasir Ali injured, his wound was not earlier dressed or
bandaged, Keeping in view the duration between injuries and examination, the
injured might have received injuries on 26.06.2017 at 3:00 pm. (emphasis
supplied)
The last fact, but not the
least, which proves that the prosecution witness namely Nasir Ali (PW-1) was
never injured during the incident are the statements of both the prosecution
witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) who never stated that the prosecution witness namely Nasir Ali (PW-1)
was also taken to the hospital in an injured condition or that Nasir Ali (PW-1)
was ever examined by any Medical Officer. The prosecution witness namely Nasir
Ali (PW-1), during examination in chief, before the learned trial Court, stated
as under:
“I attended Nisar Ahmad but he diet at the spot. Police came at the spot,
I got recorded my statement Ex P.A which bears my thumb impression.
On 25.06.2017, I alongwith police went to P.S and thereafter case was
registered. On 13.08.2017, I alongwith Muzaffar alias Pomi PW
went to “District Jail, Multan where I identified the accused Imran alias Munna,
Kamran All Rehman alias AD and Azhar in identification parade
proceedings before learned Judicial Magistrate.”
The above referred portion
of the statement of Nasir Ali (PW-1) conclusively proves that he himself never
even made a claim that after being injured during the occurrence he was taken
to the hospital for being examined by any Medical Officer or that he was indeed
examined by any Medical Officer. When the prosecution witness namely Nasir Ali
(PW-1) himself never claimed to had been examined by any Medical Officer in an
injured condition, we cannot assume it on our own. The learned Additional
Prosecutor General, despite our repeated enquiries, has shown his inability to
explain this inherent and fatal flaw in the prosecution case with regard to
whether Nasir Ali (PW-1) was ever injured during the occurrence. The evidence
in the case has been collected in an abject lax manner, working more to create
further confusion regarding the facts in issue rather than proving the said
facts. In this manner, it is conclusively proved that neither Nasir Ali (PW-1)
was injured during the occurrence nor he was ever examined by any Medical
Officer.
14.
With regard to the claim of the prosecution witness namely Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) that he was also injured during the
occurrence, we have concluded that the said claim was also not proved and the
perusal of the prosecution evidence amply proves that the said claim of
Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) of being injured
during the occurrence was only a claim, having no basis in reality. The most
important fact that proves that the prosecution witness namely Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) was never injured during the
incident are the statements of both the prosecution witnesses namely Nasir Ali
(PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) who
never stated that the prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) was also taken to the hospital in an injured condition or that Ghazanfar
Iqbal Muzaffar alias Pomi (PW-2) was ever examined by any
Medical Officer The prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2), in his statement before the learned trial Court, stated as under:
“…… Accused persons while making indiscriminate firing went from the
spot.
Motive behind the occurrence is that at evening time, Hamid and Saeed
Ahmad came at cattle shed for taking milk but on account of not giving milk to
them, they started quarreling. The accused persons Saeed Ahmad and Hamid also
extended threats for not giving milk to them. I had witnessed the whole
occurrence in the light of electric bulb installed in the street
On 13.08.2017, I alongwith Nasir complainant had joined the
identification parade proceedings at District Jail where I identified Kamran,
Ali Rehman alias A.D, Imran alias Munna and
Azhar Arain accused persons before learned Judicial Magistrate.”
The above referred portion
of the statement of Ghazanfar Iqbal Muzaffar alias Pomi (PW-2)
conclusively proves that he himself never even made a statement that after
being injured during the occurrence he was taken to the hospital for being
examined by any Medical Officer or that he was indeed examined by any Medical
Officer. When the prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) himself never stated to have been examined by any Medical Officer in an
injured condition, we cannot assume it on our own. The learned Additional
Prosecutor General and the learned counsel for the complainant, despite our
repeated enquiries, have shown their failure to explain this intrinsic and
incurable fault in the prosecution case with regard to whether Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) was ever injured during the
occurrence. Moreover, Muhammad Baqir Shah, SI (PW-12), the Investigating
Officer of the case, admitted during cross-examination they no injury statement
related to the Observation of the injuries on the person of Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) was available on record and stated
as under:
“Injury statement of Ghazanfar Iqbal is not available in the record
prepared by me.”
Even Dr Mukhtar Ahmad
(PW-8) stated during cross-examination that no injury statement related to the
observation of the injuries on the person of Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) was available on record and stated as under:
“At this time, the injury statement of Ghazanfar Iqbal PW is not
available on file”
According to the statement
of Muhammad Baqir Shah, SI (PW-12), the Investigating Officer of the case, the
prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) was not present at the place of occurrence when the Investigating
Officer of the case reached there and thereafter the Investigating Officer of
the case started a search for Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) and met him subsequently and recorded his statement. Muhammad Baqir
Shah, SI (PW-12) in his statement recorded by the learned trial Court, stated
as under:
“After making the proceedings of the place of occurrence, I proceeded to
Nishtar Hospital, Multan and searched the injured Ghazenffer alias Pomi
and met to him and submission an application for requisitioning of ward report
Ex-PX”
Dr. Mukhtar Ahmad (PW-8)
also admitted that he never handed over any clothes of the prosecution
witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) to the police official Dr Mukhtar Ahmad (PW-8), during
cross-examination, admitted as under:
“I had not handed over the clothes of injured Ghazanfar Iqbal and Nasir
Ali to the I.O. or Constable”
Muhammad Baqir Shah, SI
(PW-12), the Investigating Officer of the case also admitted that the statement
of the prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) was not recorded on the right of the occurrence, rather it was recorded
on 27.06.2017 i.e after two days of the occurrence. Muhammad
Baqir Shah, SI (PW-12), the Investigating Officer of the case, during
cross-examination, stated as under:
It is correct the statement of Ghazanfer Iqbal was recorded on
27.06.2017.
Even the prosecution
witness namely Ghazanfar Iqbal Muzaffar alias Pomi (PW-2)
admitted that he got recorded his statement on 27.06.2017 and stated during
cross-examination as under:
“I had got recorded my first statement to the I.O. on 27.06.2017.”
It is trite that the
delayed recording of the statement of a prosecution witness under Section 161
of the Code of Criminal Procedure, 1898 reduces its value to nothing unless
there is a plausible explanation for such delay. No explanation, much less plausible
has been given by the prosecution witness namely Ghazanfar Iqbal Muraffar alias Pomi
(PW-2) for not getting his statement under Section 161 of the Code of Criminal
Procedure, 1898 recorded immediately and therefore no value can be attached to
his statement. The august Supreme Court of Pakistan in the case of “Abdul
Khaliq vs. The State” (1996 SCMR 1553) has held as under:
“It is a settled position of law that late recording of 161, Cr.P.C.
statement of a prosecution witness reduces its value to nill unless there is
plausible explanation for such delay.”
The august Supreme Court
of Pakistan in the case of “Muhammad Khan vs Maula Bakhsh” (1998
SCMR 570) has held as under:
“It is a settled law that credibility of a witness is looked with serious
suspicion if his statement under Section 161, Cr PC is recorded with delay
without offering any plausible explanation.”
The august Supreme Court
of Pakistan in the case of “Syed Saeed Muhammad Shah and another vs.
The State” (1993 SCMR 550) at page 571 has held as under.
“In the absence of satisfactory nature of explanation normally rule is
that statements recorded by police after delay and without explanation are to
be ruled out of consecration. In this case unsatisfactory explanation which is
not substantiated can be equated with no explanation”
All the above mentioned
facts of the prosecution case itself amply prove that the prosecution witnesses
namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW 2) failed to verify that they were injured during the occurrence. The
evidence in the case has been collected in a careless way, employed more to
create further muddle regarding the facts in issue rather than proving the said
facts.
15. We
have also noted that the prosecution witnesses namely Nasir Ali (PW-1) and
Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) claimed that the
occurrence had taken place when they were present at the cattle shed of the
deceased established at Rehman Colony Multan, however, it was admitted by the
prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) that they did not provide any
evidence to the Investigating Officer of the case to prove that the deceased
had indeed established a cattle shed where he used to engage in the sale of
milk and it was due to the refusal of the deceased to sell milk to the
appellants that the occurrence took place. In this regard, the prosecution
witness namely Nasir Ali (PW-1) admitted during cross-examination that that no
no physical proof of the establishment of a cattle shed at the place of
occurrence, in the shape of any utensils or even the cows retained there for
the purpose of milking, was produced before the Investigating Officer of the
case or taken into possession by the Investigating Officer of the case, during
the investigation of the case. The prosecution witness namely Nasir Ali (PW-1)
also admitted during cross-examination that he did not provide any documentary
evidence to the Investigating Officer of the case that the deceased was indeed
engaged in the business of selling milk earlier to the occurrence. The
prosecution witness namely Nasir Ali (PW-1), during cross-examination, admitted
as under:
“It is correct that on the visit of I.O., I had not produced before him
the buffaloes, cows buckets, Phatta, dairy rate list or any other article
relating to Cattle shed. It is not in my knowledge that Government has already
established Gawala Colony out of the city Witness volunteered, I had cattle
shed in Rehman Colony. It is incorrect to suggest that my voluntary part is
incorrect. We had not produced the documents of ownership of the cattle shed to
the IO during investigation.
............
I had not produced any or any
proof of sale and purchase of milk to accused persons before the I.O.”
More importantly, the
prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) admitted during cross-examination that the houses of the accused were at
a distance of as many as three kilometres from the place of occurrence, whereas
they were situated at a distance of only one kilometre from Rewari Mohalla and
there were numerous shops selling milk established at Rewari Mohalla. The
prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2), during cross-examination, stated as under:
“The house of accused persons Ghulam Farid, Danish and Sheed is situated
at a distance of three kilometers from the alleged place of occurrence and one
kilometer from Rewari Muhallah. All the shops of Rewari Muhallah are milk
shops” (emphasis supplied)
In this manner, the
prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) admited that there did not exist any reason for the accused to have
travelled to the place of occurrence for the purpose of purchasing milk when
many shops selling milk were present just near to their houses Article 129 of
the Qanun-e-Shahadat Order, 1984 allows the Courts to presume the existence of
any fact, which it thinks likely to have happened, regard being had to the
common course of natural events and human conduct in relation to the facts of
the particular case. The conduct of the accused as narrated by the prosecution
witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) was opposed to the common course of human conduct and natural events and
being against that normal course, can be taken notice of as provided under
Article 129 of the Qanun-e-Shahadat Order, 1984 and therefore the statements of
the prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) are rejected as not being true.
16. We
have noted that according to the prosecution witnesses namely Nasir Ali (PW-1)
and Ghazanfar Iqbal Muzaffar alias Pomi (PW-2), the occurrence
took place at about 08.00 p.m. on the night of 25.6.2017, however, admittedly,
no source of light, which could have enabled the witnesses to have right,
identified the accused and also allowed the witnesses to have noted the
individual roles of each and every accused present at the place of occurrence,
at the time of occurrence, was produced by the witnesses during the
investigation of case or even before the learned trial Court. The prosecution
witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2), in their statements recorded by the learned trial Court, claimed that
they had witnessed the occurrence in the light of the electric bulbs which were
lit at the place of occurrence, however, were confronted with their previous
statements and it was brought on record that the prosecution witnesses namely
Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) had made dishonest and blatant improvements in their previous statements
with regard to the availability of the electric bulbs lit at the place of
occurrence, whereas they had made no such claim in their previous statements.
Both the prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) were duly confronted in this
regard. During the course of cross-examination of prosecution witness namely
Nasir Ali (PW-1), the learned trial Court observe an under:
“It is correct that on line complaint No. 1595 Ex. D.A was also
registered on the same day 26.06 2017 I had not got recorded in my statement Ex
PA that I identified the accused persons in the light of electric bulb.
............
I had got recorded to the learned Magistrate that I identified the
accused persons in the Light of electric bulb, confronted with Ex.D.B
wherein it is not so recorded. After the identification parade proceedings,
my statement was also recorded by IO. I had also got recorded in my said
statement that identified the accused persons in the light of electric
bulb, confronted with Ex.D.C wherein it is not so recorded” (emphasis
supplied)
During the course of the
cross-examination of Muhammad Baqir Shah, SI (PW-12), the Investigating Officer
of the case admitted during cross-examination, as under:
“It is correct that Nasir Ali complainant had not stated before me while
getting his first statement Ex-PA recorded before me that he witnessed the
occurrence in the light of electricity bulb.”
The candid admission of
the prosecution witness namely Nasir Ali (PW-1) that he had not mentioned the
fact of identifying the accused in the light of the electricity bulbs lit at
the place of occurrence in his oral statement (Exh.PA) itself proves the no
such light source was available at the place of occurrence and had it been then
the prosecution witness namely Nasir Ali (PW-1) would have surety mentioned the
presence of the same in his statement (Exh PA). As mentioned above, the said
electric bulbs, which were allegedly lit at the place of occurrence and in the
light of which the prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar
Iqbal Muzaffar alias Pomi (PW-2) allegedly had witnessed the
occurrence, were neither produced by the prosecution witnesses namely Nasir Ali
(PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) before
the the Investigation Officer of the case nor Muhammad Baqir Shah, SI (PW-12),
the Investigating Officer of the case, during his visit to the place of
occurrence, took into possession any such electric bulbs. During the course of
the cross-examination of Muhammad Baqir Shah, SI (PW-12), the Investigating
Officer of the case admitted during cross-examination, as under:
“I did not take into possession electricity bulb during my investigation”
The failure of the
complainant of the case to produce the same before the learned trial Court
leads to only one conclusion, and that being that no such source of light was
available at the place of occurrence which could have enabled the eye-witnesses
to have identified the assailants and also witness the individual roles of the
assailants as acted by them during the occurrence. Even the prosecution witness
namely Aleem Haider 3136/C (PW-6) admitted during cross-examination that the
police officials at the place of occurrence had used electric torches. Aleem
Haider 3136/C (PW-6) stated as under:
“According to picture No 289 of place of occurrence the police official
is holding a torch in his hand”
As mentioned above, no
such electric bulb out of the many which were allegedly lit at the place of
occurrence was taken into possession by the Investigating Officer. The learned
Additional Prosecutor General argued that light bulbs had been drawn in the scaled
site-plan (Exh. P.B) as prepared by Irfan Hayat, draftsman (PW-3) We have
perused the scaled site-plan of the place of occurrence (Exh. P.B) as prepared
by Irfan Hayat draftsman (PW-3) and have noted that the presence of any light
source lit at the place of occurrence has not been marked either in the notes
in red ink as given by the Investigating officer in the scaled site-plan (Exh.
P.B.) or in the notes as given by Irfan Hayat, draftsman (PW-3) in the scaled
site-plan (Exh P.B) as prepared by Irfan Hayat, draftsman (PW-3), denuding the
drawing of the bulbs in the scaled site-plan (Exh. PB.) as a subsequent
interpolation, worthy of no reliance According to the prosecution evidence, the
Investigating Officer of the case, visited the place of occurrence after the
occurrence, still, the electric bulbs, which were allegedly available and lit
at the place of occurrence, at the time of occurrence, were not taken into
possession at the spot by the Investigating Officer along with the other
recoveries, though there was no occasion for the said electric bulbs not to
have been present at the place of occurrence or they being not produced by the
witnesses before the Investigating Officer or them being not taken into
possession by the Investigating Officer during his visit at the place of
occurrence. The joint failure of the prosecution witnesses namely Nasir Ali
(PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) and
Muhammad Baqir Shah, SI (PW-12), the Investigating officer of the case to
produce the electric bulbs allegedly present at the place of occurrence and lit
up at the time of occurrence, proves that none was available and only an invented
and false claim of such electric bulbs being available was made by the said
witnesses. The prosecution witnesses failed to establish the fact of such
availability of a light source and in the absence of their ability to do so, we
cannot presume the existence of such a light source. The absence of any light
source has put the whole prosecution case in the dark. It was admitted by the
witnesses themselves that it was a dark night and they had used the light of
the electric bulbs lit at the place of occurrence, never produce to identify
the assailants during the occurrence and as the prosecution witnesses failed to
prove the availability of such a light source, their statements with regard to
them identifying the assailants cannot be relied upon. The failure of the
prosecution witnesses to prove the presence of any light source at the place of
occurrence, at the time of occurrence has repercussions, entailing the failure
of the prosecution case. Reliance is placed on the case of “Gulfam and
another v. The State” (2017 SCMR 1189) wherein the august Supreme
Court of Pakistan observed as under:
“The occurrence in this case had taken place at about 11.45 p.m. during
the fateful night and the source of light at the spot had never been
established by the prosecution. It had been presumed by the Courts below that
as the occurrence had taken place at a medical store, therefore, some electric
light must be available at the spot. The Courts below ought to have realized
that presumptions have very little scope in a criminal case unless such
presumption is allowed by the law to be raised”
Reliance is also placed on
the case of “Hameed Gul v. Tahir and two others” (2006 SCMR
1628) wherein the august Supreme Court of Pakistan observed as under:
“Next is the identification of the accused on the spot. The torch in the
light of which the accused were identified, was produced before the
Investigating Officer sixteen days after the occurrence. The one Haid Akbar who
produced the same before he Investigating Officer was never produced at the
trial and hence there is no satisfactory evidence that the torch produced in
the given circumstances was the same, available at the time of occurrence. It
has never found on the spot along with other recoveries though there was no
occasion for the injured and the deceased to have carried it along.”
Reliance is also placed on
the case of “Bazar vs. Zulfiqar Ali and others” (2010 SCMR
1972) where in the august Supreme Court of Pakistan observed as under:
“7. It is also allged by the prosecution that the witnesses had
Identified the culprits on torch lights. The complainant and
PWs. did not produce the torches before the police immediately but the same
were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the
prosecution has failed to prove the case against the respondents beyond any
reasonable doubt.
Reliance is also placed on
the case of “Azhar Mehmood and others v. The State (2017 SCMR
135) wherein the august Supreme Court of Pakistan observed as under:
“It has straightaway been noticed by us that the occurrence in this case
had taken place after dark and in the FLR no source of light at the spot had
been mentioned by the complainant Although in the site-plan of the place of
occurrence availability of an electric bulb ear the spot had been shown yet no
such bulb had been secured by the Investigating officer during the
investigation of his case.”
Reliance is also placed on
the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein
the august Supreme Court of Pakistan observed as under-
“The occurrence in this case had taken place before Fajar prayers at
about 05:00 am and according to the F.I.R. the occurrence in issue had been
witnessed by the eye-witness in the light of an electric bulb but during the
investigation no such electric bulb had been secured by the investigating
officer.”
17.
Another aspect drawing our grave concern is the fact that the prosecution
witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) made blatant improvements to their previous statements in order to bring
the ocular account as narrated by them in line with the opinion and
observations of Dr. Mukhtar Ahmad (PW-8). The prosecution witnesses namely
Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) made a deliberate and dishonest departure from their earlier narrations
of the occurrence while deposing before the learned trial Court. The
prosecution witness namely Nasir Ali (PW-1) was cross-examined in this regard
and the learned trial Court observed as under:
“It is correct that name of Rashid alias Chanda accused
was not got recorded in my first statement Ex P.A with the role that he made
fire shot at the body of Muazafar alias Pomi PW.
...........
I had not got recorded in my statement Ex DB that many persons
armed with firearms while riding on motorcycles came there, made firing and
resultantly my brother died at the spot, confronted with Ex D.B wherein it is
so recorded. I had not got recorded in my statement Ex D.C that I was
present at the spot, many persons armed with firearms came while riding on
motorcycle at the spot and started firing and my brother died there confronted
with Ex.DC wherein it is so recorded “(emphasis supplied).
The other prosecution
witness namely Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) was
cross examined and the learned trial Court observed as under:
“I had got recorded in my statement under Section 161, Cr.P.C. that
Rashid accused trade fire shot which hit on my right thigh, confronted with
Ex.D.D wherein it is not so recorded”
By improving their
previous statements, the prosecution witnesses namely Nasir Ali (PW-1) and
Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) impeached their own
credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under:
“151. Impeaching credit of witness. The credit of a witness may be
impeached in the allowing ways by the adverse party, or, with the consent of
the Court by the party who calls him.
(1) By the evidence of persons who testify that they, from their
knowledge of the witness, believe him to be un worthy of credit.
(2) By proof that the witness has been bribed, or has accepted the offer
of a bribe, or has received any other corrupt inducement to give his evidence.
(3) By proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted;”
As the prosecution
witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) introduced dishonest, blatant and substantial improvements to their
previous statements and were duly confronted with their former statements,
hence their credit stands impeached and the prosecution witnesses namely Nasir
Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi (PW-2)
cannot be relied upon on, being proved to have deposed with a slight, intended
to mislead the Court. The august Supreme Court of Pakistan in the case of “Muhammad
Ashraf vs. State” (2012 SCMR 419) took serious notice of the
improvements introduced by witnesses and rejected their evidence We, thus, are
satisfied that the evidence of the prosecution witnesses namely Nasir Ali
(PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) has no
intrinsic worth and is be rejected out rightly). The august Supreme Court of
Pakistan in a recent case reported as “Muhammad Mansha vs. The
State” (2018 SCMR 772) has 4 enunciated the following principle:
“Once the Court comes to the conclusion that the eye-witnesses had made
dishonest improvements in their statements then it is not safe to place
reliance on their statements. It is also settled by this Court that whenever a
witness made dishonest improvement in his version in order to bring his case in
line with the medical evidence or in order to strengthen the prosecution case
then his testimony is not worthy of credence”
The august Supreme Court
of Pakistan in the case reported as Muhammad Arif vs The State (2019
SCMR 631) has enunciated the following principle:
“It is well established by now that when a witness improves his statement
and moment it is observed that the said improvement was made dishonestly to
strengthen the prosecution, such portion of his statement is to be discarded
out of consideration. Having observed the improvements in the statements of
both the witnesses of ocular account, we hold that it is not safe to rely on
their testimony to maintain conviction and sentence of Muhammad Arif
(appellant) on a capital charge.”
Guidance is sought from
the principle enunciated by the august Supreme Court of Pakistan in the case
of “Amin Ali and another vs. The State” (2011 SCMR 323) where
the august Supreme Court of Pakistan was pleased to Reject the evidence of
injured witnesses and held as under:
“11. All the three witnesses deposed that the deceased had received three
injuries, but the Medical Officer found six injuries on the person of the
deceased. One of them had blackening. None of the witnesses deposed that any of
the appellants had caused the injuries from a close range but in the contrary
in the site-plan the place of firing has been shown 8 feet away from the
deceased. Thus from such a distance injury with blackening cannot be caused as
it can be caused from a distance of less than 3 feet as per Modi’s Medical
Jurisprudence. The Medical Officer did not show as to which of the injury was
entry or exit wound on the person of the deceased. The medical officer stated
that metalic projectile was recovered from wound No 1/B which was an exit wound.
If I was an exit wound then the metalic projectile would have been out of the
body. The presence of metalic projectile in the body clearly establishes the
fact that it is not an exit wound but an entry wound The medical officer has
not shown that any of the injuries had inverted or averted margins so as to
ascertain as to which of the injuries is entry or exit wound. Thus on this
count there is a conflict between the medical and oral evidence Furthermore,
according to Medical Officer, the PW-15 had four injuries out of them two were
entry and two were exit wounds but the P.Ws. 13 and 14 deposed the injured had
received three injuries Thus the PW’s have shown one exit wound as entry wound.
With regard to the Injured Tanveer Hussain, the Medical Officer showed two
injuries one entry wound on the chest and one exit wound on the back but all
the three eye-witnesses deposed that PW 14 had received two injuries on his
chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical
Officer found one entry wound on her back with Blackening, whereas PWs. 13, 14
and 15 deposed that the fire shot was fired from the roof of the shop. Entry
wound with blackening marks cannot be caused from such a long distance From the
above position it is manifest that the ocular testimony is in conflict with the
medical evidence Thus, the deceased and injured did not receive the injuries in
the manner, as alleged by the prosecution.
..........................
13. From the above evidence of the P.Ws, they do not appear to be
truthful witnesses; therefore, no implicit reliance can be placed on their
evidence.”
18.
The learned Additional Prosecutor General and the learned counsel for the
complainant placed much emphasis on the promptitude with which the oral
statement (Exh. PA) of Nasir Ali (PW-1) was recorded by Muhammad Baqir Shah, SI
(PW-12), the Investigating Officer of the case and stated that this excluded
the possibility of any pre-concert prior to the recording of the oral statement
(Exh. PA). We have already mentioned that the prosecution witness namely Nasir
Ali (PW-1) appeared before Dr. Mukhtar Ahmad (PW-8) for the first time on 27
06.2017 at 03.00 p.m for the purpose of being medically examined whereas the
prosecution witness namely Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) did not get his statement recorded under Section 161 of the Code of
Criminal Procedure, 1898 till 27 06 2017. The Investigating Officer of the
case, admitted during cross-examination that he prepared the injury statements
of the prosecution Witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) only on 27.06.2017 and that too at
01.30 p.m. Muhammad Baqir Shah, SI (PW-12), the Investigating Officer of the
case, during cross-examination, stated as under:
“According to my record I prepared injury statements of injured of
instant case on 27-06-2017 at 1:30 pm
According to the
prosecution case, Muhammad Baqir Shah, SI (PW-12), the Investigating Officer of
the case got the information about the occurrence reached the place of
occurrence and thereafter recorded the oral statement (Exh.PA) of Nasir Ali
(PW-1) at the place of occurrence. The august Supreme Court of Pakistan in the
case of “Abdul Jabbar alias Jabbari v. The State (2017 SCMR
1155) has observed regarding the doubt attached to the statements for the
registration of the case recorded at the place of occurrence as under:
“An FIR in respect of the incident in issue had not been lodged at the
local Police Station giving rise to an inference that the FIR had been chalked
out after deliberations and preliminary investigation at the spot.
The scrutiny of the
statements of the prosecution witnesses reveals that the oral statement (Exh.
P.A.) of Nasir Ali (PW-1) was neither prompt nor spontaneous nor natural,
rather was a contrived, manufactured and a compromised document. No
corroboration of the prosecution evidence can be had from the said oral
statement (Exh. PA) of Nasir Ali (PW-1). Sufficient doubts have arisen and
inference against the prosecution has to be drawn in this regard.
19.
The learned Additional Prosecutor General and the learned counsel for the
complainant, have submitted that the recovery of the Pistol (P-3)
from the appellant namely Saeed Fareed and the recovery of the Pistol (P-5)
from the appellant namely Muhammad Hamid Ali offered sufficient corroboration
of the statements of the prosecution witnesses namely Nasir Ali (PW-1) and
Ghazanfar Iqbal Muzaffar alias Pomi (PW-2). Regarding the
recovery of the Pistol (P.3) from the appellant namely Saeed
Fareed and the recovery of the Pistol (P-5) from the appellant
namely Muhammad Hamid Ali, the same cannot be relied upon as the Investigating
Officer of the case, did not join any witness of the locality during the
recovery of the Pistol (P-3) from the appellant namely Saeed
Fareed and the recovery of the Pistol (P-5) from the appellant
namely Muhammad Hamid Ali which was in clear violation of Section 103 Code of
Criminal Procedure, 1898 Aleem Haider 3136/C (PW-6), admitted during
cross-examination, as under:
“It is correct that the witnesses of the recovery memes are police
officials. The I.O also did not join in recovery proceedings any respectable
Lumberdar MPA, Councilor or Chairman of locality. It is correct that the all
the places of recoveries are located in thickly populated areas”
The provisions of Section
103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in
disuse than compliance. To appreciate it better, this section is being
reproduced:
“103-(1) Before making a search under this chapter, the officer or other
person about to make it shall call upon two or more respectable
inhabitants of the locality in which the place to be searched is situate to
attend and witness the search and may issue an order in writing to them or any
of them so to do.”
Therefore, the evidence of
the recovery of the Pistol (P-3) from the appellant namely
Saeed Fareed and the recovery of the Pistol (P-5) from the
appellant namely Muhammad Hamid Ali cannot be used as incriminating evidence
against the appellants, being evidence that was obtained through illegal means
and hence hit by the exclusionary rule of evidence. The august Supreme Court of
Pakistan in the case of Muhammad Ismail and others vs. The State (2017
SCMR 898) at page 901 has held as under:
“For the above mentioned recovery of weapons the prosecution had failed
to associate any independent witness of the locality and, thus, the mandatory
provisions of Section 103, Cr. P.C. had flagrantly been violated in that
regard.
It is also a fact of the
prosecution case itself that the Pistol (P-3) recovered from
the appellant namely Saeed Fareed and the Pistol (P-5)
recovered from the appellant name, Muhammad Hamid Ali, were recovered from
places which were not in the exclusive possession of the appellants, rather
they were recovered from houses which were inhabited by other people. According
to the prosecution witness namely Aleem Haider 3136/C (PW-6), the Pistol (P-3)
was recovered from the house of Khurram Shahzad, the brother-in-law (sister’s
husband of the appellant namely Saeed Fareed, whereas the Pistol
(P-5) was recovered from the house of maternal uncle of the appellant namely
Muhammad Hamid Ali. More grave is the fact that Muhammad Baqir Shah, SI
(PW-12), the Investigating Officer of the case, admitted that no entry had been
made in Register 19 maintained at the Police Station with regard to the
depositing of the recovered pistols at the Police Station after
their recoveries. Muhammad Baqır Shah, SI (PW-12), the Investigating Officer of
the case, admitted during cross-examination, as under:
“Book No. 19 relating to Malkhana of police station New Multan is before
me, however I am unable to trace the entries regarding recoveries from spot as
well as recoveries of weapon of offence-in-the said register”
Furthermore, on the
perusal of the report of Punjab Forensic Science Agency, Lahore (Exh. PBB)
regarding the analysis of the Pistol (P-3) recovered from the
appellant namely Saeed Fareed and the Pistol (P-5) recovered
from the appellant namely Muhammad Hamid Ali and the empty shells of the
bullets collected from the place of occurrence, we have noticed that the empty
shells of the bullets recovered from the place of occurrence and the Pistol (P-3)
recovered from the appellant namely Saeed Fareed and the Pistol (P-5)
recovered from the appellant namely Muhammad Hamid Ali were received by Punjab
Forensic Science Agency, Lahore on the same day ie. 22.09.2017. In this manner
the said report of Punjab Forensic Science Agency, Lahore. (Exh. PBB) has no
evidentiary value as the possibility of fabricating matching empties is
apparent. The august Supreme Court of Pakistan has held in the case of Nasrullah
alias Nasro v. The State (2017 SCMR 724) as under:
The alleged recovery of a pistol from the appellant’s possession during
the investigation was legally inconsequential because the report of the
Forensic Science Laboratory brought on the record shows that the recovered
pistol and the secured crime-empties had been received by the Forensic Science
Laboratory together on one and the same day
The august Supreme Court
of Pakistan has held in the case of Nasrullah alias Ali Sher v. The
State (2008 SCMR 707) as under:
The crime-empties having been allegedly found at the place of occurrence
and having been retained for so long the police station and having been sent to
the F.S.L. along with the crime weapons and that also 12 does after the alleged
weapons of offence had been allegedly recovered destroys and evidentiary value
of the said piece of evidence. These recoveries therefore, cannot offer any
corroboration to the ocular testimony.
Moreover, the appellants
namely Saeed Fareed and Muhammad Hamid Ali were arrested on 1.8.2017, the Pistol (P-3)
from the appellant namely Saeed Fareed and the Pistol (P-5) from the appellant
namely Muhammad Hamid Ali were on recovered 04.08.2017, however the empty
shells of the bullets taken into possession from the place of occurrence were
sent to Punjab Forensic Science Agency, Lahore on 22.09.2017 and there was no
reason for keeping the empty shells of the bullets which were taken into
possession of 25.06.2017 at the Police Station and not sending them to the
office of Punjab Forensic Science Agency, Lahore till 22.09.2017, till after
the arrest of the appellants and the recoveries of the pistols (P-3
and P-5) In this manner the said report of Punjab Forensic Science Agency,
Lahore (Exh. PBB) has no evidentiary value as the possibility of fabrication is
apparent. Reliance is placed on the case of Muhammad Amin vs The State
and another (2019 SCMR 2057) wherein the august Supreme Court of
Pakistan has held as under:
“Interestingly, two empty cartridges (P-4/1-2) were secured from the
place of occurrence by the investigating officer Akhtar Ali, SI (PW-12) on the
night of 11.10.2012 but the same were sent to the office of Punjab Forensic
Science Agency on 23.01.2013 i.e after arrest of the appellant in this case. In
these circumstances, the positive report of FSL is of no avail to the
prosecution and is inconsequential.”
Therefore, the recovery of
the Pistol (P-3) from the appellant namely Saeed Fareed and
the recovery of the Pistol (P-5) from the appellant namely
Muhammad Hamid Ali do not further the case of the prosecution in any manner. In
view of the above mentioned facts, the recovery of the Pistol (P-3)
from the appellant namely Saeed Fareed and the recovery of the Pistol (P-5)
from the appellant namely Muhammad Hamid Ali are not proved and the same cannot
be used as a circumstance against the appellants.
20.
The learned Additional Prosecutor General and the learned counsel for the
complainant have also relied upon the evidence of motive and submitted that it
corroborated the ocular account. The motive of the occurrence as stated by the
prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) was that the deceased had refused
to sell milk to the appellants which resulted in the occurrence. We have
scrutinized the statements of the prosecution witnesses and find that the
motive as alleged could not be proved. The prosecution witness namely Ghazanfar
Iqbal Muzaffar alias Pomi (PW-2) candidly admitted that he was
not a witness of the incident which became the motive of the occurrence and
stated during cross-examination, as under:
“I had not witnessed the alleged motive part which took place between
Nisar Ahmad and accused persons namely Hamid and Saeed”
We have already discussed
that the prosecution witness namely Nasir Ali (PW-1) admitted not having
provided any evidence with regard to the fact that the appellants had ever been
purchasing milk from the deceased or even that the deceased was in the business
of selling milk. Furthermore, during the course of the investigation, the
Investigating Officer of the case did not collect any evidence to establish
that there was any grievance developing in the heart of the appellants as
against the deceased which motivated him to act in the manner in which he did.
The prosecution witnesses failed to provide evidence enabling us to determine
the truthfulness of the motive alleged allege and the fact that the said motive
was so compelling that it could have led the appellants to have committed the
Qatl-i-Amd of the deceased namely Nisar Ahmad. There is a haunting silence with
regard to the minutiae of motive alleged. No independent witness was produced
by the prosecution to prove the motive as alleged. Even otherwise a tainted
piece of evidence cannot corroborate another tainted piece of evidence. The
august Supreme Court of Pakistan has held in the case of Muhammad Javed
v. The State (2016 SCMR 2021) as under:
“The said related and chance witnesses had failed to receive any
independent corroboration inasmuch as no independent proof of the motive set up
to the prosecution had been brought on the record of the case.”
Moreover, it is an
admitted rule of appreciation of evidence that motive is only supporting piece
of evidence and if the ocular account is found to be unreliable then motive
alone cannot be made basis of conviction.
21.
The only other piece of evidence left to be considered is the medical evidence
with regard to the injuries observed on the dead body of the deceased by Dr.
Mukhtar Ahmad (PW-8) but the same is of no assistance in this case as medical
evidence by its nature and character, cannot recognize a culprit in case of an
unobserved incidence. As all the other pieces of evidence relied upon by the
prosecution in this case have been disbelieved and discarded by us, therefore,
the appellants’ conviction cannot be upheld on the basis of medical evidence
alone. The august Supreme Court of Pakistan in its binding judgment
titled “Hashim Qasim and another vs. The State” (2017 SCMR
986) has enunciated the following principle of law:
“The medical evidence is only confirmatory or of supporting nature and is
never held to be corroboratory evidence, to identify the culprit”
The august Supreme Court
of Pakistan in its binding judgment titled “Naveed Asghar and two
others vs. The State” (PLD 2021 Supreme Court 600) has enunciated the
following principle of law:
“31. The prosecution has attempted to complete the chain of
circumstantial evidence by medical evidence relating to the post-mortem
examinations of the deceased persons. This evidence proves only the factum that
death of the deceased persons was caused by cutting their throats through some
sharp edge weapon; it does in no way indicate who had cut their throats and
with what particular weapon. Medical evidence is in the nature of supporting,
confirmatory or explanatory of the direct or circumstantial evidence, and is
not “corroborative evidence” in the sense the term is used in legal parlance
for a piece of evidence that itself also has some probative force to connect
the accused person with the commission of offence. Medical evidence by itself
does not throw any light on the identity of the offender. Such evidence may
confirm the available substantive evidence with regard to certain facts
including seat of the injury, nature of the Injury, cause of the death, kind of
the weapon used in the occurrence duration between the injuries and the death,
and presence of an injured witness or the injured accused at the place of
occurrence, but it does not connect the accused with the commission of the
offence. It cannоt constitute carroboration for proving involvement of the
accused person in the commission of offence, as it does not establish the
identity of the accused person. Therefore, the medical evidence is of little
help to the prosecution for bringing home the guilt to the petitioners.”
22. Considering
all the above circumstances, we entertain serious doubt in our minds regarding
the involvement of the appellants namely Saeed Fareed son of Ghulam Fareed and
Muhammad Hamid Ali son of Ghulam Fareed in the present case. It is a settled
principle of law that for giving the benefit of the doubt it is not necessary
that there should be so many circumstances rather if only a single circumstance
creating reasonable doubt in the mind of a prudent person is available then
such benefit is to be extended to an accused not as a matter of concession but
as of right. The august Supreme Court of Pakistan in the case of “Muhammad
Mansha vs. The State” (2018 SCMR (sic) has enunciated the following
principle:
“Needless to mention that while giving the benefit of doubt to an accused
it is not necessary that there should be many circumstances creating doubt. If
there is a circumstance which creates reasonable doubt in a prudent mind about
the guilt of the accused, then the accused would be entitled to the benefit of
such doubt, not as a matter of grace and concession, but as a matter of right.
It is based on the maxim, “it is better that ten guilty persons be acquitted
rather than one innocent person be convicted” Reliance in this behalf can be
made upon the cases of Tariq Pervez v The State (1995 SCMR 1345), Ghulam Qadir
and 2 others v The State (2008 SCMR 1221), Muhammad Akram v. The State (2009
SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”
Reliance is also placed of
the judgment of the august Supreme Court of Pakistan Najaf Ali Shah the
State (2021 SCMR 736) in which it has been observed as infra:
“9. Mere heinousness of the offence if not proved to the hilt is not a
ground to avail the majesty of the Court to do complete justice. This is an
established principle of law and equity that it is better that 100 guilty
persons should let off but one innocent person should not suffer. As the
preeminent English jurist William Blackstone wrote “Better that ten guilty
persons escape, than that one innocent suffer “Benjamin Franklin, who was one
of the leading figures of early American history, went further arguing “it is
better a hundred guilty persons should escape than one innocent person should
suffer.” All the contradictions noted by the learned High Court are sufficient
to cast a shadow of doubt on the prosecution’s case, which entitles the
petitioner to the right of benefit of the doubt. It is a well settled principal
of law that for the accused to be afforded this right of the benefit of the
doubt it is not necessary that there should be many circumstances creating
uncertainty and if there is only one doubt the benefit of the same must got to
the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019
SC 64) while relying on the earlier judgments of We have categorically held
that “if a single circumstance creates reasonable doubt in a prudent mind about
the apprehension of guilt of an accused, then he/she shall be entitled to such
benefit not as a matter of grace and concession, but as of right Reference in
this regard may be made to the cases of Tariq Pervaiz v The State (1998 SCMR 1345)
and Ayub Masih v. The State (PLD 2002 SC 1048). The same view was reiterated in
Abdul Jabbar v. State (2010 SCMR 129) when this Court observed that once a
single loophole is observed in a case presented by the prosecution, such as
conflict in the ocular account and medical evidence or presence of
eye-witnesses being doubtful, the benefit of such loophole/lacuna in the
prosecution’s case automatically goes in favour of an accused.”
23.
For what has been discussed above Criminal Appeal No. 335 of 2019 lodged by the
appellants namely Saeed Fareed son of Ghulam Fareed and Muhammad Hamid Ali son
of Ghulam Fareed is allowed and the convictions and sentence of the appellants
namely Saeed Fareed son of Ghulam Fareed and Muhammad Hamid Ali son of Ghulam
Fareed awarded by the learned trial Court through the impugned judgment dated
08.04.2019 are hereby set-aside. The appellants namely Saeed Fareed son of
Ghulam Fareed and Muhammad Hamid Ali son of Ghulam Fareed are ordered to be
acquitted by extending then the benefit of the doubt. The appellants namely
Saeed Fareed son of Ghulam Fareed and Muhammad Hamid Ali son of Ghulam Fareed
are in custody and are directed to be released forthwith if not required in any
other case.
24.
Pursuant to the discussion made and conclusions arrived at above, the Criminal
Revision No. 184 of 2019, seeking the enhancement of the sentence of the
convict namely Muhammad Hamid Ali son of Ghulam Fareed, is hereby dismissed.
25.
The complainant of the case namely Nasir Ali filed Criminal Appeal No. 1003 of
2019 against the acquittal of the accused namely Danish, Ghulam Fareed, Nadeer
Ahmad, Muhammad Naeem son of Munir, Mulsummad Naeem son of Tufail, Muhammad
Azhar, Ali ur Rehman alias AD. Muhammad Imran alias Munna,
Muhammad Kamran, Muhammad Rashid alias Chanda, Saleem Ahmad,
Aqil and Aqib Sunara (all since acquitted), by the learned trial Court. We have
observed that the learned trial Court has rightly acquitted the said accused.
As mentioned above, according to the prosecution witnesses namely Nasir Ali
(PW-1) and Ghazanfar Iqbal Muzaffer alias Pomi (PW-2) the
accused Muhammad Naeem son of Munir (since acquitted), while armed with a pistol had
hit the prosecution Witness namely Nasir Ali (PW-1) with the stock of the same
on his back, however, according to the opinion of Dr. Mukhtar Ahmad (PW-8), the
injuries suffered by Nasir Ali (PW-1) on his back had been inflicted upon him
on 26.06.2017 at about 03.00 p.m and not during the occurrence at all. In this
manner, the prosecution witnesses namely Nasir Ali (PW-1) and Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) were proven to had leveled
absolutely baseless allegations against the accused Muhammad Naeem son of Munir
(since acquitted). It has also been mentioned that the prosecution witness
namely Nasir Ali (PW-1) had not recorded in his oral statement (Exh.PA) that it
was Muhammad Rashid alias Chanda (since acquitted), who while
armed with a pistol fired at the prosecution witness namely Ghazanfar Iqbal
Muzaffar alias Pomi (PW-2) hitting him on the thigh of his
right leg. Even Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) was
confronted during cross-examination with his statement recorded under Section
161 of the Code of Criminal Procedure, 1898 (Exh DD) wherein it had not been
mentioned that Muhammad Rashad alias Chanda (since acquitted),
while armed with a pistol, had fired at the prosecution witness
namely Ghazanfar Iqbal Muzaffar alias Pomi (PW-2), hitting him
on the thigh of his right leg. The prosecution witnesses namely Nasir Ali
(PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi (PW-2) improved
upon their previous statements with regard to Muhammad Rashid alias Chanda
(since acquitted), hence impeaching their own credit. The prosecution witnesses
namely Nasir Ali (PW-1) and Ghazanfar Iqbal Muzaffar alias Pomi
(PW-2) also failed to establish the presence of the accused namely Danish,
Ghulam Fareed, Nadeem Ahmad, Muhammad Naeem son of Tufail, Muhammad Azhar, Ali
Sur Rehman alias AD, Mulammad Imran alias Munna,
Muhammad Kamran, Saleem Ahmad, Aqil and Aqib Sunara (all since acquitted) It is
important to note that according to the established principle of the criminal
administration of justice once an acquittal is recorded in favour of the
accused facing criminal charge he enjoys double presumption of innocence,
therefore, the Courts competent to interfere in the acquittal order should be
slow in converting the same into conviction, unless and until the said order is
patently illegal, shocking, based on misreading and non-reading of the record
or perverse. The said principle has been enunciated by the august Supreme Court
of Pakistan in the judgment reported as “Ghulam Sikandar and another
Versus Mamoraz Khan and Others” (PLD 1985 Supreme Court 11) wherein it
has been held as under:
“The Court would not interfere with acquittal merely because on
re-appraisal of the evidence it comes to the conclusion different from that of
the Court acquitting the accused provided both the conclusions are reasonably
possible. If however the conclusion reached by that Court was such that no
reasonable person would conceivably reach the same and was impossible then this
Court would interfere in exceptional cases on overwhelming proof resulting in
conclusion and irresistible conclusion, and that too with a view only to avoid
grave miscarriage of justice and for no other purpose. The important test
visualised in these cases, in this behalf was that the finding sought to be
interfered with, after scrutiny under the foregoing searching light, should be
found wholly as artificial, shocking and ridiculous”
Reliance is placed on the
case of “Muhammad Inayat versus The State (1998 SCMR 1854)
wherein it has been held as under:
“The judgment of acquitted qua Muhammad Yousaf, Muhammad Sated and
Muhammad Nawaz cannot in the given situation, be termed as perverse or foolish
inasmuch as the view having been taken by the High Court can possibly be taken
for acquitting them in the peculiar facts and circumstances of this case. It
cannot be said that the impugned judgment of the High Court acquitting Muhammad
Yousaf and two others is fanciful, artificial, shocking or ridiculous. It is
based on convincing reasons”
The august Supreme Court
of Pakistan in the case of “Mst. Sughran Begum and another vs. Qaiser
Pervaiz and others” (2015 SCMR 1142) has held as under:
“On acquittal, an accused person earns twofold innocence particularly, in
the case when there are concurrent findings to that effect by the trial Court
and the Court of First Appeal (High Court), is the bedrock principle of
Justice. In a case of acquittal, the standard and principle of appreciation of
Evidence is entirely different from that in a case of conviction. Unless the
concurrent findings of the two Courts below are found perverse, fanciful,
arbitrary and are pased on misreading and non-reading of material evidence
causing miscarriage of justice, the Supreme Court would not lightly disturb the
same because on reappraisal, another view might be possible therefore, sanctity
is attached under the law to such concurrent findings in ordinary course”
Pursuant to the discus on
made and conclusions arrived at above, the Criminal Appeal No. 1003 of 2019,
lodged by the complainant of the case namely Nasir Ali, assailing the acquittal
of Danish, Ghulam Fareed, Nadeem Ahmad, Muhammad Naeem son of Munir, Muhammad
Naeem son of Tufail, Muhammad Azhar, Ali-ur-Rehman alias AD,
Muhammad Imran alias Munna, Muhammad Kamran, Muhammad
Rashid alias Chanda, Saleem Ahmad, Aqil and Aqib Sunara by the
learned trial Court from the charges is hereby dismissed.
26. Murder
Reference No. 46 of 2019 is answered in Negative and the sentence of
death awarded to Saeed Fareed son of Ghulam Fareed is Not Confirmed.
(M.A.B.) Appeal
dismissed
