PLJ 2023 Cr.C. (Note) 66
[Lahore High Court, Lahore]
Present:
Shehram Sarwar Ch. and Ali Zia Bajwa,
JJ.
ALI
HAIDER etc.--Appellants
versus
STATE,
etc.--Respondents
Crl. A.
Nos. 258910-J, 258906-J of 2018 & M.R. No. 413 of 2019,
heard on 19.10.2022.
Identification Parade--
----Test of--It
is established proposition of law that Test Identification Parade (hereinafter
‘TIP’) is of no avail to prosecution case when description/features of accused
were not given in contents of FIR.
[Para
11] A
2011 SCMR 563
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)
& 398--Murder reference--Conviction and sentence--Challenge to--Benefit of
doubt--Identification parade--It is a case of delayed postmortem, which casts
serious doubt regarding time at which FIR was recorded and inference can be
drawn that intervening period had been consumed in fabricating prosecution
story after preliminary investigation, otherwise there was no justification for
conducting postmortem with such delay--If fire is made from such a distance, no
question of blackening occurs--The only inference that can be drawn is that
medical evidence is in conflict with ocular account and keeping in view
pronouncements of Superior Courts of country, on subject, benefit of this
conflict will go in favor of appellants--When High Court has discarded ocular
account and observed that ‘the same is squarely contradicted by medical
evidence coupled with fact that identity of appellants could not be
established, would be against cannons recognized for safe administration of
criminal justice to maintain
conviction/sentences on basis of supportive corroborative evidence.
[Para
13, 14 & 15] B, C & D
2012 SCMR 419, 2011 SCMR
1190, 2012 SCMR 327, 2021 SCMR 736 & PLD 2021 SC 600.
Benefit of doubt--
----It is established principle of law that for extending
benefit shadow of doubt, it is not necessary that there should be several
circumstances, rather one reasonable doubt is sufficient to acquit an accused,
not as a matter of grace but as of right. [Para
16] E
2018 SCMR 772, 2021 SCMR
873, PLD 2021 SC 600, PLD 2022 SC 1048, 2021 SCMR 873.
M/s. Sheeba Qaiser, Sumera Hussain and Syed Shafique Hussain,
Advocates for Appellants.
Mr. Sultan Akbar Chatha, Deputy Prosecutor General for State.
Rai Ashfaq Ahmed Kharal, Advocate for Complainant.
Date of hearing: 19.10.2022.
Judgment
Ali Zia Bajwa, J.--Through
this single judgment, we intend to decide Crl. Appeal No. 258910-J/2018 titled ‘Ali
Haider vs. The State’ filed by Ali Haider appellant, Crl Appeal No.
258906-J/2018 titled ‘Suleman alias Sallu & another vs. The State’
filed by Suleman alias Sallu and Kamran Khalid, appellants, against
their conviction and sentences and Murder Reference No. 413/2019, titled ‘The State vs. Ali Haider’ forwarded by
the learned trial Court under Section 374 Cr.P.C. for confirmation or otherwise
of sentence of death awarded to Ali Haider/convict, as these are arising out of
one and the same judgment of the learned trial Court.
2. Ali Haider son of Faiz Ahmed, caste Jatt Cheeraa, resident
of Chak No. 133/RB Kamal Pur, Faisalabad, Suleman alias Sallu son of
Riaz Ahmed, caste Jatt Cheema, resident of Chak No. 133/RB, Kamal Pur,
Faisalabad and Kamran Khalid son of Muhammad Khalid, caste Jatt Dhillon,
resident of Chak No. 130/RB Rattian, Chak Jhumrah, Faisalabad, appellants, were
involved in case F.I.R. No. 159/2015, dated 26.04.2015, offences under Sections
302, 398 & 34 PPC registered with Police Station Sahianwala, District
Faisalabad. They were tried by learned Additional Sessions Judge, Faisalabad
(hereinafter ‘trial Court’), under the afore-mentioned offences. Learned trial
Court seized with the matter, vide judgment dated 31.10.2018
(hereinafter ‘the impugned judgment’), convicted and sentenced the appellants
in the following terms:-
|
Sr# |
Name
of the appellant(s) |
Conviction/sentence |
|
1 |
Ø Ali
Haider |
Ø Under
Section 302(b) PC, sentenced to death as Ta’zir with direction to pay Rs.
5,00,000/- as compensation to the legal heirs of the deceased in terms of
Section 544-A Cr.P.C. to be recovered as arrears of land revenue and in case
of default in payment thereof, to undergo simple imprisonment for six months. Ø Under
Section 398 PPC, sentenced undergo rigorous imprisonment for seven years. |
|
2 |
Ø Muhammad
Suleman alias Sallu Ø Kamran
Khalid |
Ø Under
Section 302(b) PPC, sentenced to undergo imprisonment for life (rigorous
imprisonment) each as Ta’zir with direction to pay Rs. 3,00,000/- each as
compensation to the legal heirs of the deceased in terms of Section Ø Under
Section 398 PPC, sentenced to undergo rigorous imprisonment for seven years
each. Ø Sentences
awarded to the appellants were directed to run concurrently and benefit of
Section 382-B, Cr.P.C. was also extended in their favour. |
3. The prosecution accusations, in
brief, as per contents of the FIR (Exh.PA/1), lodged on the application
(Exh.PA) of Muhammad Ahmed Khan son of Muhammad Yaseen Khan (PW-11), is that,
on the intervening night of 25/26.04.2015, at 1:00 a.m., the complainant along
with Muhammad Ahmed (hereinafter ‘the deceased’), Anwar Hussain (given
up) and Tanveer Ahmed (PW-12), boarding on car, were going to Darbar Sharif
Dar-ul-Ahsan Salar Wala. Near Railway Phattak Behlol Pur, three accused were
standing out of whom one accused made signal to stop, however, the driver
didn’t stop it on which the accused made firing on the car hitting the deceased
on his back, which subsequently proved fatal.
4. On receipt of information regarding the occurrence, Muhammad
Abdullah, S.I. (PW-15) reached RHC Chak Jhumra. He inspected the dead body,
prepared injury statement (Exh.PN), drafted inquest report (Exh.PO) and handed
over the dead body to Sana Ullah 5025/C (PW-3) for autopsy. Thereafter,
investigation was entrusted to Shoukat Ali, Inspector (PW-8), who visited the
place of occurrence and prepared rough site-plan (Exh.PD). He took into
possession car through recovery memo Exh.PE. From the place he took into
possession two empty cartridges of Kalashnikov vide recovery memo
Exh.PG. After the postmortem examination last worn clothes of the deceased were
produced before the Investigating Officer, which he took into possession
vide recovery memo Exh.PB. On the direction of the Investigating Officer
and pointing out of the PWs, on 28.04.2015, Muhammad Nawaz, Draftsman (PW-4)
took rough notes of the place of occurrence and thereafter prepared scaled
site-plan (Exh.PC), which was made part of the file. On 16.05.2015, Kamran
Klialid appellant was arrested and his identification parade was conducted on
19.05.2015 under the supervision of Imtiaz Ali, Special Judicial Magistrate
(PW-13). During the course of interrogation, on 01.06.2015, Kamran Khalid
appellant got recovered pistol .30-bore (P-4) along with three live bullets
(P-5 to P-7), which the Investigating Officer took into possession vide recovery
memo Exh.PJ. On 28.08.2015, Suleman alias Sallu appellant was arrested,
who was lodged at jail for identification parade, which was conducted on
02.09.2015 under the supervision of PW-13. Subsequently investigation was
entrusted to Farzand Ali, S.I., who was not available at the time of making
statement on oath, and in his place Arif Hussain 2211/HC (PW-14) appeared in
secondary evidence. As per his statement, during the course of investigation on
08.09.2015, Suleman alias Sallu appellant led to the recovery of pistol
.30-bore (P-8) along with five live bullets (P-9/1-5), which were taken into
possession vide recovery Exh.PP. After arrest of Ali Haider appellant,
his identification parade was conducted on 19.09.2015 under the supervision of
PW-13. Subsequently during the course of investigation, on 01.10.2015, Ali
Haider appellant led to the recovery of Kalashnikov (P-10) along with ten live
bullets (P-11/1-10), which the Investigating Officer took into possession
vide recovery memo Exh.PQ.
During the course of investigation, the appellants were found
involved in the crime in question, consequently, report under Section 173
Cr.P.C. was prepared while placing their names in Column No. 3.
5. After submission of the report under Section 173 Cr.P.C.,
learned trial Court formally indicted the appellants, vide order dated
04.01.2016, to which they pleaded not guilty and claimed trial. Prosecution, in
order to establish its case, produced as many as fifteen (15) prosecution
witnesses.
6. Ocular account in this case consists of the statements of
Muhammad Ahmad Khan complainant (PW-11) and Tanveer Ahmed (PW-12). Arif Hussain
2211/MHC (PW-5) chalked out formal FIR. Muhammad Nawaz Draftsman (PW-4)
prepared scaled site-plan of the place of the occurrence. Investigation in this
case was conducted by Muhammad Abdullah SI (PW-15), Farzand Ali, S.I. and
Shaukat Ali, Inspector (PW-8).
7. On 26.04.2015, Dr. Muhammad Umer Saeed, Medical Officer
(PW-10) conducted the postmortem examination over the dead body of the deceased
and observed following injuries on his person:--
“Injury No. 1:-
An entry fire-arm wound of 1.5 x 1.5 x DNP on the back of left chest, blood
oozing from it. 20 cm from left shoulder and 8 cm from vertebra. Blacking (sic)
was present.
Injury No. 2:-
An entry fire-arm wound of 1x1 cm x DNP on the back of left chest, 1.5 cm away
and upper side from Injury No. 1.
Injury No. 3:-
An entry fire-arm wound of 1 x 1 cm on left chest and on lateral side from
Injury No. 1 and 1 cm away from it.
Injury No. 4:-
An abrasion of 2 x 1 cm red in colour at midline.
Injury No. 5:-
An entry fire-arm wound on the back of chest left side 0.5 x 0.5 cm x DNP, 1.5
cm from Injury No. 1, blood oozing from it.
Injury No. 6:- An abrasion of 1.5 x 1 cm, red in colour on back of
the chest, 1 cm from Injury No. 4.”
After post-mortem examination, doctor
(PW-10) opined as under:--
“All injuries are ante-mortem. Injury
Nos. 1, 2, 3 and 5 are caused by some fire-arm weapon. All injuries
collectively can cause death in ordinary course of nature in this case the
cause of death is hemorrhage, shock leading to cardiopulmonary arrest.
Probable time that elapsed between
injury and death was 20 to 30 minutes and between death and post- mortem 10 to
11 hours.”
8. After completion of the prosecution evidence, statements of
the appellants under Section 342 Cr.P.C. were recorded by the learned trial
Court. The appellants professed their innocence and pleaded false implication
in this case. Upon completion of the trial, the learned trial Court found the
prosecution case having been proved to the hilt against the appellants, thus,
convicted and sentenced them as mentioned and detailed above.
9. Arguments heard; record perused.
10. Prosecution version hinges upon ocular account, identity of
the appellants/test identification parades, medical evidence and recovery of
crime weapons effected from the appellants.
11. As far as the ocular account in this case is concerned,
that has been advanced through the statements of Muhammad Ahmed Khan,
complainant/PW-11 and Tanveer Ahmed (PW-12). According to the prosecution
version, the occurrence took place at odd hours of night (1:00 a.m.) in an
unpopulated area. The entire prosecution case revolves around the
identification of the appellants, which is a most crucial aspect for decision
of this case. Perusal of the crime report (Exh.PA/1) reflects that although it
was mentioned that one person who signaled to stop the car was of smart body and
tall height, however, his facial features were not provided in the crime
report. Nothing was mentioned about rest of the two accused persons standing
there. It is established proposition of law that Test Identification Parade
(hereinafter ‘TIP’) is of no avail to the prosecution case when
description/features of the accused were not given in the contents of the FIR. In
Sabir Ali alias Fauji[1]
it was observed by the prestigious Supreme Court of Pakistan as infra:
“6. ... It is also settled
principle that identification test is of no value, when description/feature of
accused is not given in the contents of the FIR. It appears from the record
that accused persons are complete strangers to the prosecution witnesses,
therefore, in the absence of description in the contents of FIR, the benefit of
doubt be given to the accused persons ...”
TIP of all the appellants were
conducted separately and on different dates viz. Kamran Khalid appellant on
19.05.2015 (Exh.PT and Exh.PT/1), Suleman alias Sallu appellant on 02.09.2015
(Exh.PR and Exh.PR/1) and Ali Haider appellant on 19.09.2015 (Exh.PS and
Exh.PS/1). TIP proceedings are silent qua
the description of facial features, complexion, exact heights and other
resembling features of the accused persons with dummies which seriously
diminished the evidentiary value of such identification parade. Reliance can be
placed on MIAN SOHAIL[2]
wherein it was held that:
“5. The Test
Identification Parade (“TIP”) (Ex/PN) which was conducted by the Special
Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmities
diminishing its probative and evidentiary value. Brief description of the two
unknown persons (later on identified as the appellants) in the first
information report mentions their height, bodily size and colour of the skin.
TIP proceedings are silent regarding the description of the unknown accused
given by the complainant in the report. TIP can only commence, once suspects
matching the description in the crime report or in the statements of the witnesses
under Section 161, Cr.P.C. have been arrested. Matching the description in the
first information report is the starting point towards identification of the
unknown accused. It is, therefore, uncertain how the appellants were hurled and
lined-up for the identification parade without the Magistrate first matching
the description given by the complainant. Selection of the suspects, without
any correlation with description of the accused in the first information
report, raises doubts and makes the identification proceedings unsafe and
doubtful rendering the identification evidence inconsequential.”
12. As per contents of the crime report (Exh.PA/1), the
complainant (PW-11) along with Tanveer Ahmed (PW-12) and Anwaar Hussain (given
up) were accompanying the deceased when he was aimed at by the assailants and
as a result of firing he received fire-arm injuries, which proved fatal.
Inquest report (Exh.PO) prepared by the Investigating Officer (PW-15), in Column
No. 20, the cause of death is mentioned as torture. During the course of trial,
this aspect was not got clarified by the prosecution. Moreover, the doctor
while conducting the postmortem examination observed that at the time of
autopsy, eyes were closed, however, mouth was partially open. In reply to
question, during the course of cross-examination, the doctor explained that in
case mouth of the dead body is not closed immediately after death and the same
is tried to be closed after the elapse of 5/6 hours, it remains partially
opened. Relevant extract out of statement of the doctor has been reproduced
hereinafter:
“In case of death of
any person if the mouth of the dead person is not closed immediately and the
same is tried to be closed after the elapse of five or six hours, the mouth
partially opened like in the case.”
This fact straightway raises serious
questions about the presence of the prosecution witnesses at the place of
occurrence, at the relevant time, as claimed by them.
13. According
to the prosecution version, soon after the occurrence, the prosecution
witnesses shifted the deceased to R.H.C. Chak Jhumra on the same car. After
registration of the FIR, Muhammad Abdullah, S.I. (PW-15) reached R.H.C, he
prepared injury statement/inquest report etc. and thereafter he handed over the
dead body to PW-3 for autopsy. However, as per statement of the doctor (PW-10),
he received the dead body in the mortuary at 11:00 a.m. while police papers
were received at 12:00 p.m. i.e. after eleven hours of the occurrence. So it is
a case of delayed postmortem, which casts serious doubt regarding the time at
which the FIR was recorded and the inference can be drawn that the intervening
period had been consumed in fabricating the prosecution story after the
preliminary investigation, otherwise there was no justification for conducting
the post-mortem with such delay. The Hon’ble Supreme Court of Pakistan in Muhammad
Ashraf vs. The State - 2012 SCMR 419 ruled as under:
“Incident in the
present case had taken place, according to the prosecution on 3-7-2003 at
evening time and case of the prosecution is that F.I.R. was recorded at 9-00
p.m. without inordinate delay and on the other hand postmortem was conducted by
P. W.3 Dr. Asghar Ali Hunjra on the next day i.e. 4-7-2003 at 10-00 a.m. If
F.I.R. was recorded with such a promptitude then why the post-mortem was
conducted with such a delay. Even otherwise, according to P. W.3 Dr. Asghar Ali
Hunjra, the time between death and post-mortem was 15 to 16 hours. So, the
F.I.R. was recorded with a delay and cannot be used against the appellant as a
corroborative piece of evidence.”
In the case of Irshad Ahmed vs. The
State - 2011 SCMR 1190, the august Supreme Court of Pakistan was pleased to
observe as under:
“We have further
observed that the post-mortem examination of the deadbody of Shehzad Ahmed
deceased had been conducted with a noticeable delay and such delay is generally
suggestive of a real possibility that time had been consumed by the police in
procuring and planting eye-witnesses and in cooking up a story for the
prosecution before preparing police papers necessary for getting a post-mortem
examination of the deadbody conducted.”
Furthermore, in Khalid @ Khalidi and
2 others vs. The State - 2012 SCMR 327, it has been held as under:
“--Incident took
place at 2-00 a.m. FIR was recorded at 4/5 a.m., Dr. Muhammad Pervaiz medically
examined injured persons at 4 a.m. but conducted post-mortem examination of
deceased at 3-00 p.m. i.e. after about ten hours, such fact clearly shows that
the F.I.R. was not lodged at the given time…...”
This fact further creates doubt about
the authenticity of the prosecution version.
14. According to the prosecution version when the car was not
stopped on the signal made by one of the accused (subsequently brought on the
record as Ali Haider appellant), he made firing and the fire shots hit the
deceased on his back. According to the scaled site- plan prepared by Muhammad
Nawaz Draftsman (PW-4), on the pointing out of the prosecution, witnesses,
distance between point 1 (where the deceased received injuries) and point 2
(where Ali Haider appellant was standing and he made firing) is 8 feet. At the
time of conducting post-mortem examination the doctor (PW-10 observed
blackening around Injury No. 1. Relevant extract out of his statement has been
reproduced as infra:-
“There is blackening
on Injury No. 1 only.”
According to the prosecution theory of
the case, the firing was made from outside the car while the deceased received
injuries inside the car. Hence, if fire is made from such a distance, no
question of blackening occurs. The only inference that can be drawn is that
medical evidence is in conflict with the ocular account and keeping in view the
pronouncements of the Superior Courts of the country, on the subject, benefit
of this conflict will go in favor of appellants. Reliance can be placed on
Najaf Ali Shah[3]
wherein it was held as under:
“9 ... once a
single loophole is observed in a case presented by the prosecution, such a
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.”
15. Last piece of evidence relied upon by the prosecution to
substantiate its allegation against the appellants is recovery of crime
weapons. According to the prosecution case, during the course of investigation,
Kamran Khalid appellant got recovered pistol .30-bore (P-4) along with three
live bullets (P-5 to P-7), Suleman alias Sallu appellant got recovered
pistol .30-bore (P-8) along with five live bullets (P-9/1-5) and Ali Haider
appellant led to the recovery of Kalashnikov (P-10) along with ten live bullets
(P-11/1-10). As no crime empty of pistol was collected from the place of
occurrence, therefore, recovery of pistols from Kamran Khalid and Suleman alias
Sallu appellants is straightway inconsequential. As far as recovery of Kalashnikov
(P-10) from Ali Haider appellant is concerned, no doubt report of PFSA (Exh.PU)
is positive, however, when this Court has discarded the ocular account and observed
that the same is squarely contradicted by the medical evidence coupled with the
fact that identity of the appellants could not be established, in our humble
view, it would be against the cannons recognized for safe administration of
criminal justice to
maintain conviction/sentences on the basis of supportive corroborative
evidence. Respectful reliance is placed upon the decision of august Supreme
Court of Pakistan in Naveed Asghar and 2 others vs. The State -
PLD 2021 SC 600. Relevant extract of the judgment has been reproduced
hereinafter:
“Even otherwise,
recovery of weapon of offence is only a corroborative piece of evidence; and in
absence of substantive evidence, it is not considered sufficient to hold the
accused person guilty of the offence charged.”
16. All the above narrated facts and circumstances when
evaluated on the yardstick of judicial prescriptions laid down in various
judgments, reflect that the prosecution has failed to prove its case against
the appellants beyond reasonable doubt. It is established principle of law that
for extending the benefit shadow of doubt, it is not necessary that there
should be several circumstances, rather one reasonable doubt is sufficient to
acquit an accused, not as a matter of grace but as of right. Respectful
reliance can be placed on catena of judgments of apex Court.[4]
August Supreme Court of Pakistan in Najaf Ali Shah supra observed as
infra:
“It is a well
settled principle 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 go to the petitioner.”
Same principle was reiterated in Ahmed
Omar Sheikh[5]
in the following terms:
“Even if a single
circumstance create reasonable doubt in a prudent mind regarding guilt of an
accused then the accused shall be entitled to such benefit not as a matter of
grace and concession but as a matter of right and such benefit must be extended
to the accused person(s) by the Courts without any reservation.”
17. In consequence of the aforementioned discussion, Crl.
Appeal No. 258910-J/2018 titled ‘Ali Haider vs. The State’ and Crl.
Appeal No. 258906-J/2018 titled ‘Suleman alias Sallu & another vs. The
State’ are ALLOWED, impugned judgment passed by the learned trial
Court is SET ASIDE and the appellants are acquitted of the charges. They
are directed to be released forthwith if not required, to be detained, in any
other case.
18. Murder Reference No. 413/2019 forwarded by the learned
trial Court is answered in the NEGATIVE. Death Sentence awarded
to Ali Haider/convict is NOT CONFIRMED.
(A.A.K.) Appeal allowed
[1]. SABIR ALI alias FAUJI vs. THE STATE - 2011
SCMR 563.
[2]. Mian SOHAIL AHMED and others vs. The STATE
and others - 2019 SCMR 956.
[3]. Najaf Ali Shah vs. The State - 2021 SCMR
736.
[4]. MUHAMMAD MANSHA vs. The STATE-2018 SCMR
772, The STATE through P.G. Sindh and others vs. AHMED OMAR SHEIKH and others -
2021 SCMR 873, NAVEED ASGHAR and 2 others vs. The STATE-PLD 2021 SC 600 &
AYUB MASIH vs. The STATE - PLD 2002 SC 1048.
[5]. The STATE through P.G. Sindh and others
vs. AHMED OMAR SHEIKH and others - 2021 SCMR 873