MANZOOR HUSSAIN and others vs The STATE
This appeal, with leave of the Court, is directed against the judgment of the Lahore High Court upholding the conviction and sentence of life imprisonment awarded to the appellants under sections 396 and 397 of the Pakistan Penal Code 1860 for dacoity with murder. The core legal question revolves around whether the conviction of the appellants could be sustained when the ocular testimony attributing specific fatal and injury shots to co-accused had been disbelieved, resulting in the acquittal of those co-accused by the High Court, and whether identification parades and weapon recoveries in the absence of attributed roles and corroborative forensic evidence are sufficient to maintain a conviction. The Supreme Court of Pakistan allowed the appeal, setting aside the convictions and sentences, holding that once the ocular account attributing the fatal shots is disbelieved and the identification parade lacks specific roles ascribed to the appellants, identification loses its evidentiary value, and recoveries of weapons inconsistent with forensic reports or unsupported by material witnesses cannot sustain a conviction. The key principle laid down is that where the primary ocular testimony is discredited regarding the principal offenders and recoveries are contradicted by forensic evidence, the benefit of the doubt must be extended to the remaining accused.
- Can the conviction of appellants for dacoity with murder be sustained when the prosecution witnesses attribute specific fatal shots to co-accused who were subsequently acquitted by the High Court?
- What is the evidentiary value of an identification parade where witnesses identify the accused persons in court but fail to describe any specific role attributed to them during the parade?
- Does the recovery of weapons alone connect the accused to the crime when the forensic science laboratory report does not match the crime empties with the recovered weapons?
- Can reliance be placed on police recoveries when a material witness from whom a weapon was allegedly snatched is withheld by the prosecution?
- Section 396, Pakistan Penal Code 1860
- Section 397, Pakistan Penal Code 1860
' SARDAR TARIQ MASOOD, J.---This appeal, with leave of the Court, is directed against the judgment dated 19.03.2010, passed by the Lahore High Court (Lahore) whereby Criminal Appeals No, 1981 and 1980 of 2006, filed by the appellants (Manzoor Hussain, Ghulam Abbas, Muhammad Nawab alias Nibba), Muhammad Husnain son of Muhammad Aslam and Muhammad Hasnain son of Sona Khan against their convictions and sentences and Criminal Revision No, 109 of 2007 filed by the complainant (Shaukat Hayat) for enhancement of sentences of the appellants, were dismissed and the sentence of life imprisonment awarded by the learned trial Court to the appellants was upheld. Co-convict Mohammad Hasnain son of Muhammad Aslam and Mohammad Hasnain son of Sona Khan were acquitted vide the same judgment.
2. Brief facts of the case, mentioned in the FIR, are that four unknown persons stopped the bus No, 496/LYA which was proceeding towards Bhakkar from Lahore and was driven by Muhammad Iqbal (PW-15) and committed robbery during which one of the robber wearing blue clothes fired at Haq Nawaz gunman (deceased) whereas a robber wearing black clothes fired at Muhammad Farooq (Abdul Rauf alias Farooq) (CW-1). Haq Nawaz succumbed to the injury whereas four unknown robbers snatched Rs, 1,000/- from the driver and Rs, 2,000/-from the conductor. It is mentioned in the FIR that in the meanwhile two police officials arrived there on a motorcycle who had been patrolling in routine and they were also stopped by the accused persons and the person wearing blue clothes snatched the gun from one of the police official. It is alleged that accused persons also took away the licensed gun of the deceased. Although in the FIR, robbers were four in number but subsequently the number was enhanced and the appellants along with two others namely Muhammad Hasnain son of Muhammad Aslam and Muhammad Hasnain son of Sona Khan were tried. After a full fledged trial, the trial Court vide judgment dated 30.11.2006 convicted the appellants and their co-accused mentioned above under sections 396/397, P.P.C. And sentenced them to life imprisonment along with fine of Rs,1,00,000/- each or in default thereof to further undergo six months' S .I. They were further directed to pay compensation of Rs, 1,00,000/- each to the legal heirs of the deceased. They were further convicted under sections 397/396, P.P.C. For causing grievous hurt to Abdul Rauf during the commission of dacoity and sentenced them to undergo ten years' R.I. Each with fine of Rs,50,000/- each or in default thereof to further undergo six months' S.I. The High Court vide impugned judgment dated 19.03.2010 while upholding the conviction and sentence of the appellants (Manzoor Hussain, Ghulam Abbas and Muhammad Nawab) dismissed their appeals and accepted the appeals filed by Mohammad Hasnain son of Muhammad Aslam and Mohammad Hasnain son of Sona Khan and acquitted them.
4(sic.) We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor General, Punjab and perused the available record with their assistance.
5. According to the FIR, the person wearing black clothes fired at Abdul Rauf alias Farooq, injured witness (CW-1), whereas the unknown person wearing blue colored clothes fired at Haq Nawaz deceased. The case of the prosecution was that the deceased and injured witness received one fire shot each. For the first time during the trial, the complainant Shaukat Hayat (PW-14) in his examination-in-chief stated that Muhammad Hasnain son of Sona Khan fired at his father i.e, Haq Nawaz (deceased), whereas Muhammad Hasnain son of Muhammad Aslam fired at Abdul Rauf (CW-1). Abdul Rauf (CW-1) injured witness, who was initially given up by the prosecution as having been won over but subsequently was summoned on the application of the prosecutor as CW-1, categorically stated before the learned trial Court that it was Muhammad Hasnain son of Sona Khan who fired at Haq Nawaz (deceased), whereas Muhammad Hasnain son of Muhammad Aslam fired at him which landed on his left arm. Muhammad lqbal (PW-15) didn't attribute any specific injury to anyone as according to him the accused persons resorted to firing but he is not in the position to tell as to whose fireshot hit whom. According to these three witnesses, the appellants did A not cause any injury either to the deceased or to the injured. Although Muhammad Hasnain son of Sona Khan and Muhammad Hasnain son of Muhammad Aslam were convicted by the learned trial Court but their appeal was accepted by the Lahore High Court (Lahore) and they were acquitted of the charge. Neither the complainant nor the State filed any petition for leave to appeal against their acquittal before this Court. In these circumstances, question arises if the evidence of the prosecution regarding those accused persons, who were attributed fatal shot to the deceased and the injured, has not been believed by the Lahore High Court (Lahore), how can it be believed qua the present appellants.
The Lahore High Court (Lahore), while upholding the conviction and sentence of the appellants, mainly relied upon identification parade but we observe that although all the witnesses identified the appellants during the identification parade but none of the witness described any role of the present appellants. The witnesses for the first time, during the trial, ascribed certain roles to all accused persons. So the identification parade loses its evidentiary value and is worthless in these circumstances.
6. So far the recovery of SMG rifle from Ghulam Abbas appellant is concerned, we observe that according to the FIR, SMG rifle was snatched from Muzaffar Constable by the unknown person wearing blue colored clothes. Said Muzaffar was never produced by the prosecution and his evidence was withheld and according to the learned Additional Prosecutor General, he was given up, as being unnecessary. In that eventuality, an inference can be drawn that said Constable was not ready to support the prosecution story to that effect. Although Abdul Rehman, ASI (PW-13) was produced by the prosecution to prove the said aspect of the case but in the absence of the statement of Muzaffar Constable no reliance can be placed on the statement of Abdul Rehman (PW13). In the FIR, it has been mentioned that the person wearing blue Shalwar qameez, fired at the deceased and the same person snatched SMG rifle from Muzaffar Constable. During the trial, the complainant and injured witness categorically stated that Muhammad Hasnain son of Sona Khan fired at the deceased Haq Nawaz but surprisingly according to the prosecution SMG rifle was snatched by Ghulam Abbas appellant so there were contradictions in the statements of PWs to this effect.
So far the recoveries of weapon of offence i.e, rifle and pistol from Nawab alias Nibba, Manzoor Hussain and Ghulam Abbas are cvncerned, the same are inconsequential rather fatal to the prosecution as according to the report of Forensic Science Laboratory, the crime empties recovered from the spot were found to have not been fired from the rifles 7 mm allegedly recovered from the appellants Nawab alias Nibba and Manzoor Hussain whereas according to the said report the pistol allegedly recovered from Ghulam Abbas found in working order only. The ocular account has been disbelieved to the extent of accused person, who fired at the deceased and injured witness and identification parade, without describing the role of the present appellants is valueless and inconsequential. In that eventuality, recovery by itself will not connect the appellants with the commission of crime. The above mentioned circumstances create serious doubts in the prosecution story which is extended to the appellants.
7. Due to the foregoing reasons, this appeal is allowed. Convictions and sentences of the appellants recorded by the learned trial Court and maintained by the Lahore High Court (Lahore) are set aside.
' The appellants shall be released forthwith, if not required to be detained in any other case.