ZAFAR ABBAS Versus State

MALIK SHAHZAD AHMAD KHAN, J.--- This judgment shall dispose of Criminal Appeal No.186-J of 2009 titled as "Zafar Abbas and others v. The State" filed by Zafar Abbas and Saeed Ahmad (appellants) against their convictions and sentences and Murder Reference No.393 of 2009 titled as "The State v. Zafar Abbas" submitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Zafar Abbas (appellant), as both these matters have arisen out of the same judgment dated 14-5-2009 passed by the learned Additional Sessions Judge, Faisalabad in case F.I.R. No.411 dated 27-7-2008, offence under sections 302, 392 and 324, P.P.C. (sections 411 and 34, P.P.C. were added in charge sheet), registered at Police Station Dijkot District Faisalabad whereby, Zafar Abbas and Saeed Ahmad (appellants) were convicted under section 302(b), P.P.C., as a result whereof, Zafar Abbas (appellant) was sentenced to death as Tazir and Saeed Ahmad (appellant) was sentenced to imprisonment for life. Both the appellants were also directed to pay Rs.1,00,000 (rupees one lac) each as compensation to the legal heirs of deceased Kamran, as envisaged under section 544-A of the Code of Criminal Procedure and in default thereof to further undergo simple imprisonment for six months each. Both the appellants were further convicted under section 392, P.P.C. and sentenced to rigorous imprisonment for ten years each with the direction to pay Rs.50,000 (rupees fifty thousand) each as fine and in default thereof to further undergo simple imprisonment for one year. All the sentences were ordered to run concurrently. The appellants were also given the benefit of section 382-B of the Code of Criminal Procedure.

2. Brief facts of the case, as disclosed by Mosa Khan, complainant (P.W.1) in his application (Exh.PA), on the basis of which the formal F.I.R. (Exh.PA/1) was registered, are that he (complainant) was resident of Chak No.132/GB and a businessman by profession. On 26-7-2008 at about 11-30 p.m (night), he was going to his village from Panwan on. bicycle and when he reached at the turn of Square No.34 Link Road, suddenly, three persons armed with pistol and carbine came out of sugarcane crop at the road and stopped the complainant. They aimed their weapons towards the complainant and asked him to take out everything he had with him otherwise; they would kill him. He (complainant) identified them as they were residents of the adjacent village and he (complainant) had already seen them while visiting his village. He (complainant) refused to let them search him and started resistance. Upon which, Saeed Ahmad (appellant) made a fire shot with his pistol at him but luckily he escaped. Second fire shot was made by Zafar Abbas (appellant) with Carbine which, due to resistance, hit Kamran (deceased). The accused persons snatched Rs.500, a Nokia mobile and one watch on gun-point from the complainant and fled away towards forest along with Kamran injured. He (complainant), after getting opportunity, ran towards his village and in the morning, he informed the other villagers and they all with the help of footprints from the place of occurrence traced out the dead body of accused (Kamran) in reeds.

3. Zafar Abbas and Saeed Ahmad (appellants) were arrested in this case on 15-8-2008 by Muhammad Saleem, S.I. (P.W.14). On 24-8-2008, Zafar Abbas (appellant), while in police custody, after making disclosure, got recovered Carbine (P-1.) along with two live cartridges (P-2/1-2) and an empty (P-3), which were taken into possession recovery memo Exh.PE. On the same day i.e. 24-8-2008, both the appellants also got recovered motorcycle (P-4), which was taken into possession vide recovery memo Exh-PE. On 28-8-2008, both the appellants, while in police custody, after making disclosure, got recovered mobile phone (P-5), wrist watch (P-6) and five currency notes of the denomination of one hundred each (P-7/1-5), which were taken into possession vide recovery memo. Exh.PF. On the same day i.e. 28-8-2008, Saeed Ahmad (appellant), while in police custody, after making disclosure, got recovered .30 bore pistol (P-8) along with three live bullets (P-9/1-3), which were taken into possession vide recovery memo Exh-PG. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants on 16-12-2008, to which they pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution produced fourteen witnesses, during the trial. Mosa Khan, complainant (P.W.1) and Khalid Rashid (P.W.2) furnished the ocular account of the case. Hakoomat Ali 1930/C (P.W.5) is the witness of recovery of Carbine (P-1) along with two live cartridges (P-2/1-2) allegedly recovered at the instance of Zafar Abbas (appellant) and motorcycle (P-4) allegedly recovered at the instance of both the appellants. Anwaar Hussain 5264/C (P.W.8) is the witness of recovery of mobile phone (P-5), wrist watch (P-6) and five notes of the denomination of one hundred (P-7/1-5) allegedly recovered at the instance of both the appellants. He is also the witness of recovery of .30 bore pistol (P-8) along with three live bullets (P-9/1-3) allegedly recovered at the instance of Saeed Ahmad (appellant). Abdul Ghafoor (P.W.13) is the witness of identification of motorcycle (P-4).

The medical evidence was furnished by Dr. Javaid Nabi (P.W.3), who conducted the postmortem examination on the dead body of Kamran (deceased).

Muhammad Saleem, S.I. (P.W.14) is the Investigating Officer of the case. Muhammad Khan, MHC/2333 (P.W.4), Abdul Sattar (P.W.6). Muhammad Sharif HC/2025 (P.W.7), Mahmood Ali, (P.W.9), Akbar Ali Niazami, Draftsman (P.W.10), Zafar Iqbal 5015/C (P.W.11) and Nazakat Ali SI (P.W.12) are the formal witnesses. The prosecution also produced documentary evidence in the shape of application for registration of case (Exh.PA), F.I.R. (Exh. PA/1), recovery memo of blood-stained earth (Exh.PB), postmortem report along with pictorial diagram (Exh.PC and Exh.PC/1), recovery memo of Carbine (P-1) along with two live cartridges (P-2/1-2) allegedly recovered at the instance of Zafar Abbas appellant (Exh. PI)), recovery memo of motorcycle P-4 (Exh.PE), recovery memo of mobile. phone P-5, wrist watch P-6 and Rs.500, five currency notes of the denomination of one hundred each, (Exh-PF), rough site plan of the place of recovery of .30 bore pistol along with three live bullets (Exh.PF/1), recovery memo of .30 bore pistol P-8 along with three live bullets P-9/1-3 (Exh.PG), scaled site plan, in duplicate, of the place of occurrence (Exh.PH and Exh.PH/1) recovery memo of last worn clothes of the deceased (Exh.PJ), identification memo of motorcycle (Exh.PK), inquest report (Exh.PL,), injury statement of the deceased (Exh.PM), rough site plan of the place of occurrence (Exh.PN), rough site plan of the place of recovery of Carbine P-1 along with two live cartridges P-2/1-2 (Exh.PP), report of the Chemical Examiner (Exh.PQ), report of the Serologist (Exh.PR) and closed its evidence.

The statements of the appellants, under section 342 of the Code of Criminal Procedure, were recorded on 27-2-2009. They refuted the allegations levelled against them and professed their innocence. While answering to a question that 'Why this case against you and why the P.Ws. have deposed against you?, both the appellants replied as under:--

"Case is false. I and my co-accused Saeed Ahmad were going on Dijkot Road and there was an altercation between us and the police and the police had brought us to the-police station and locked in the police station. Meanwhile the present occurrence took place between the complainant Musa and Kamran deceased and that fire shot made by Musa complainant hit Kamran deceased and he died. The police in connivance with the complainant Musa falsely involved us in the case in order to show its Carvai in this case. All the recovery witnesses are police officials and they have deposed falsely being subordinate to the I.O."

Both the appellants neither opted to make statements on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against them nor produced any evidence in their defence.

5. The learned trial Court vide its judgment dated 14-5-2009, found the appellants guilty, convicted and sentenced them as mentioned and detailed above.

6. Learned counsel for both the appellants, in support of this appeal, contends that there is a delay of more than thirteen hours in reporting the matter to the police without there being any explanation; that the version of the complainant in the F.I.R. (Exh.PA/1) is altogether different from his statement recorded by the learned trial Court as in the F.I.R., the complainant has not only named the appellants and his co-accused with their parentage and their addresses are also mentioned therein but while appearing before the learned trial Court, the complainant has stated that accused persons present in court who are the appellants were not known to him and only Kamran (deceased) of this case was known to him; that in the F.I.R., the complainant stated that after the incident, he went to his village and in the morning, he informed his co-villagers about the occurrence and they went to the place of occurrence and with the help of footprints, they found the dead body of deceased in the reed bushes but while appearing before the learned trial Court he stated that Zafar Abbas (appellant) was arrested by the people and he (Zafar Abbas appellant) led to the recovery of dead body of Kamran (deceased) while in police custody; that the evidence of Khalid Rashid (P.W.2) is not helpful for the prosecution because he, in his examination-in-chief, has stated that he was informed about the story by the complainant i.e. Mosa Khan (P.W.1) and in the circumstances, he is not an eye-witness rather his evidence is hearsay. Further contends that so far as the recovery or Rs.500 is concerned, no denomination of the currency notes was mentioned in the F.I.R. and even it was a joint recovery allegedly made on the pointation of both the appellants which is inadmissible in evidence; that even otherwise, it is highly improbable that the appellants will keep the same currency with them for such a long time; that similarly, no description or model number of Nokia mobile phone and wrist watch is mentioned in the F.I.R. or in the statement of the complainant before the learned trial Court and that too is a joint recovery having no evidentiary value; that recovery of motorcycle is not connected with the instant case in any manner; that alleged recovery of carbine (P-1) along with two live cartridges (P-2/1-2) and .30 bore pistol (P-8) along with three live bullets (P-9/l-3) from the appellants is of no help to the prosecution as there is no report of the Forensic Science Laboratory; that from all angles, the prosecution case is of doubtful nature; that the prosecution has failed to prove its case against the appellants; that this appeal may be accepted, the appellants may be acquitted and murder reference may be answered in the negative.

7. Mosa Khan, complainant present in person, on the last date of hearing i.e. 25-6-2013, stated that due to financial constraints, he was not in a position to hire the services of a learned counsel and will be satisfied with the arguments of learned DPG. Today, complainant is present in person and learned Deputy Prosecutor-General assisted by the complainant opposes this appeal on the grounds that the complainant has absolutely no enmity with either of the appellants to falsely implicate them in this case; that delay in reporting the matter to the police in such like cases is not material as the incident of robbery took place at night and the complainant thereafter because of fear went to his house and on the next day, he informed the police; that both the appellants have correctly been identified by the complainant before the learned trial Court; that the prosecution case is also corroborated by the recovery of different articles such as, Nokia mobile phone, wrist watch and Rs.500 snatched from the complainant during the occurrence; that the prosecution case is further strengthened by the recovery of carbine (P-1) along with two live cartridges (P-2/1-2) and .30 bore pistol (P-8) along with three live bullets (P-9/1-3) from Zafar Abbas and Saeed Ahmad (appellants) respectively; that the prosecution has proved its case against both the appellants beyond the shadow of any doubt; that this appeal may be dismissed and the sentence of death awarded to Zafar Abbas (appellant) and sentence of imprisonment for life awarded to Saeed Ahmad (appellant) may be maintained and the murder reference be answered in affirmative.

8. We have heard the arguments of learned counsel for both the appellants, learned Deputy Prosecutor-General, assisted by the complainant and have also gone through the record with their able assistance.

9. The detail of the prosecution case, as set forth in the F.I.R. (Exh.PA/1) has already been given in paragraph No.2 of this judgment, therefore, there is no need to repeat the same. The occurrence in this case took place on 26-7-2008 at 11-30 p.m. The matter was reported to the police on the next day i.e. 27-7-2008 at 12-55 p.m. and the F.I.R. (Exh.PA/1) was also lodged on 27-7-2008 at 1-15 p.m. with the delay of more than thirteen hours from the occurrence. No plausible explanation has been mentioned in the F.I.R. (Exh.PA/1) for the aforementioned delay in reporting the matter to the police. The only eye-witness of the occurrence namely, Mosa Khan, complainant (P.W.1) has made contradictory statement regarding informing the police about the occurrence. During his cross-examination, at the First instance, he stated that the police arrived at the spot within about half an hour of the occurrence whereas, in the later part of his cross-examination, he has stated that the police arrived at the spot at about 10-00 a.m. but even then, the matter was reported to the police at 12-55 p.m. There is absolutely no plausible or convincing reason for the aforementioned gross delay of more than thirteen hours in reporting the matter to the police which has created serious doubt regarding the truthfulness of the prosecution story. The Hon'ble Supreme Court of Pakistan, while discussing the issue of delay in lodging the F.I.R., in the case of "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127), at page 131, was pleased to observe as under:--

"5. ...Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate..."

Similar view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of "Nazeer Ahmad v. Gehne Khan and others" (2011 SCMR 1473) wherein, the delay of seven hours in lodging the F.I.R. was considered to be a ground which adversely reflected on the credibility of prosecution version.

10. We have also noted that the postmortem examination on the dead body of Kamran (deceased) was conducted on 28-7-2008 at 9-20 a.m. whereas, the occurrence in this case took place on 26-7-2008 at 11-30 p.m., which means that the postmortem examination on the dead body of Kamran (deceased) was conducted with the delay of about thirty-four hours. There is no plausible explanation for the above-mentioned delay in the postmortem examination of the deceased. The said delay in the postmortem examination has further created serious doubt about the truthfulness of the story of the prosecution. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCMR 1190), wherein, it has been held that the post-mortem examination of the dead body 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 cooking up a story for the prosecution before preparing police papers necessary for getting the postmortem examination of the dead body conducted.

11. The ocular account of the prosecution was furnished by Mosa Khan, complainant (P.W.1) whereas, the evidence of Khalid Rashid (P.W.2) is based on hearsay evidence because he has categorically stated in his examination-in-chief that Mosa Khan, complainant (P.W.1) told the story qua the occurrence to him when he (complainant) reached in the village. The evidence of Mosa Khan, complainant (P.W.1) is highly contradictory. In the F.I.R. (Exh.PA/1), he stated that the occurrence took place on 26-7-2008 at 11-30 p.m. and on the next morning, he along with his co-villagers traced out the dead body of Kamran with the help of footprints but while making statement before the learned trial Court, he stated that on the next day of the occurrence, Zafar Abbas, (appellant) was apprehended by the people at a picket and he (Zafar Abbas appellant) during the investigation of the case got recovered the dead body of Kamran (deceased) from the bushes of forest. The complainant Mosa Khan (P.W.1) has mentioned in the F.I.R. (Exh.PA/1) that at the time of occurrence, he identified the accused persons as he already knew them. He has also named all the accused persons in the F.I.R. with their parentage and respective residential address but while appearing before the learned trial Court, the complainant stated that the accused persons present in the court were not known to him and only Kamran (deceased) who was resident of his village was known to him. No identification parade of the appellants has been held in this case. The prosecution evidence regarding the arrest of Zafar Abbas (appellant) is also self-contradictory because according to the statement of complainant Mosa Khan (P.W.1) recorded by the learned trial Court, Zafar Abbas (appellant) was apprehended by the villagers at a picket on the following day of the occurrence at 7-00 a.m. but according to the statement of Muhammad Saleem, S.I. (P.W.14), Zafar Abbas and Saeed Ahmad (appellants) were arrested on 15-8-2008 whereas, the occurrence took place, on 26-7-2008. Although Mosa Khan, complainant (P.W.1) has stated in his examination-in-chief that Zafar Abbas (appellant) was arrested on the next morning at 7-00 a.m. and he got recovered the dead body of Kamran (deceased) but the fact regarding the arrest of Zafar Abbas (appellant) was not mentioned in the F.I.R. (Exh.PA/1.) which was lodged on the next day i.e. 27-7-2008 at 1-15 p.m. Considering all the aforementioned facts, we are of the view that the ocular account of the prosecution furnished by the complainant Mosa Khan (P.W.1) is not worthy of reliance.

12. The prosecution has also produced the evidence qua recovery of mobile phone (P-5), wrist watch (P-6) and cash amount of Rs.500 (P-7/1-5). We have noted that no denomination of currency notes snatched by the appellants from the complainant was either mentioned in the F.I.R. or in the statement of the complainant Mosa Khan (P.W.1) made before the learned trial Court. Similarly, neither any specific identification mark on the mobile phone neither the make or any identification mark on the wrist watch was mentioned in the F.I.R. or in the statement of Mosa Khan, complainant (P.W.1) recorded by the learned trial Court. Even as per prosecution's own case, the alleged recovery, of mobile phone (P-5), wrist watch (P-6) and cash amount of Rs.500 (P-7/l-5) was jointly effected from both the appellants, thus, the said joint recovery is not helpful to the prosecution in the instant case.

Similarly, the alleged recovery of motorcycle (P-4) is not helpful to the prosecution case because there was nowhere mentioned in the F.I.R. that the accused persons used any motorcycle at the time of occurrence, therefore, the alleged recovery of motorcycle from both the appellants which was effected in some other case is not helpful to the prosecution in the instant case.

13. So far as the recovery of Carbine, (P-1) along with two live cartridges (P-2/1-2) and .30 bore pistol (P-8) along with three live bullets (P-9/1-3) allegedly effected from Zafar Abbas and Saeed Ahmad (appellants), respectively is concerned, suffice to mention that no crime empty was taken into possession from the spot. Even there is no report of the Forensic Science Laboratory regarding Carbine (P-1) and pistol (P-8). In the absence of matching report of any crime empty with Carbine (P-1) and .30 bore pistol (P-8), the alleged recovery of abovementioned Carbine and pistol is inconsequential and the same is of no avail to the prosecution.

14. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond the shadow of doubt. It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In "Tariq Pervez v. The State" (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:--

"5. ...The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram v. The State" (2009 SCMR 230), at page 236, observed as under:--

"13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

15. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, we accept Criminal Appeal No.186-J of 2009 filed by Zafar Abbas and Saeed Ahmad (appellants), set aside their convictions and sentences and acquit them from the charges by extending them the benefit of doubt. Saeed Ahmad (appellant) is on bail, his bail bond is discharged and surety is released whereas, Zafar Abbas (appellant) is in custody, he be released forthwith if not required in any other case.

16. Murder Reference No.393 of 2009 is answered in the NEGATIVE and the sentence of death of Zafar Abbas (convict) is NOT CONFIRMED.

HBT/Z-24/K Appeal accepted.