SAJJAD BHATTI Versus State

SHEHRAM SARWAR CH. J.--- Sajjad Bhatti (appellant in Criminal Appeal No.23-J of 2013) and Atta-ur-Rehman (appellant in Criminal Appeal No. 76 of 2013) were tried by the learned Additional Sessions Judge, Daska in case FIR No. 380 dated 24.12.2010, offence under section 302, P.P.C. registered at Police Station Bambanwala District Sialkot for the murder of Syed Iftikhar Ali Shah (deceased). Vide judgment dated 20.12.2012 passed by the learned Additional Sessions Judge, Daska, the appellants have been convicted and sentenced as under:-

"20 They are firstly convicted under section 302(b) of P.P.C. for Qatl-i-amd of the deceased Iftikhar Ali Shah and are awarded death sentences each and both shall be hanged by their necks till their death. They are also ordered to pay compensation of Rs.2,00,000/- (Two Lacs Rupees) each to the legal heirs of the deceased under section 544-A of Cr.P.C. In default of payment of compensation, the convicts will further undergo 06 months' simple imprisonment each. Secondly they are also held guilty under section 392 of P.P.C. and are punished with 10 years' RI each and also awarded a fine of Rs.30,000/- (Thirty Thousand) each. In default of payment of fine, they will have to further undergo simple imprisonment for 03 Months' SI each...."

Assailing the above convictions and sentences, the appellants have filed the appeals in hand whereas the learned trial court has sent Murder Reference No.24 of 2013 for confirmation or otherwise of Sajjad Bhatti and Atta-ur-Rehman, appellants' sentence of death, as required under section 374, Code of Criminal Procedure. As all these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the statement (Ex.PA) of Syed Imtiaz Ali Shah alias Babli Shah, complainant (PW.1) is that his brother Syed Iftikhar Ali Shah (deceased) was a taxi driver. On 23.12.2010, Syed Iftikhar Ali Shah (deceased) was present at Taxi Stand College Road, Daska along with his car LEA-09-7659 Toyota Corolla XLI, Model-2008, Engine No.X-829989, Chassis No.1402002894. At about 04.30 p.m. two persons reached near the Taxi Stand while riding on a black coloured car out of whom one person having darkish colour, healthy body, moustaches, 05-feet and 6/7 inches height aged about 30/32 years alighted from the said car and hired the car of his brother for going to Gujrat. Syed Iftikhar Ali Shah settled Rs.1300/- as fare of the said journey and proceeded with them. The accused persons were talking with each other that they would come back after visiting the police station. At about 09.00 p.m. complainant's brother Iftikhar Shah (deceased) made a call from telephone number 0301-6670278 at home and informed that he would come back till 12.00 (night) but did not return, due to which the complainant's side got worried. Complainant along with his brother Syed Sarfraz Ali Shah (PW since given up) and Mehmood Salar Butt (PW.2) started his search. During search, they came to know that a dead body was lying in a wheat field near Upper Chanab Canal in the area of village Othian. The complainant along with other witnesses reached at the said place and found that it was the dead-body of his brother namely Syed Iftikhar Ali Shah. It was further alleged in the FIR that some unknown accused persons due to some unknown reasons had committed the murder of Syed Iftikhar Ali Shah and took away car, two mobile phones, original I.D. card, original driving license and photocopy of registration book, belonging to the deceased with them.

3. After completion of investigation, report under section 173, Code of Criminal Procedure was submitted before the learned trial Court. The appellants Sajjad Bhatti and Atta-ur-Rehman were summoned by the learned Additional Sessions Judge, Daska to face the trial. Copies of relevant documents were provided to them, as required under section 265-C, Code of Criminal Procedure and formal charge under sections 302 and 392, P.P.C. was framed against them on 17.05.2011, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellants under section 342, Code of Criminal Procedure were recorded on 06.12.2012, wherein they refuted all the allegations of the prosecution and professed their innocence. In answer to a question as to why the case against them and why the prosecution witnesses had deposed against them, Sajjad Bhatti (appellant) stated as under:-

"I am driver by profession. Natural rivalry of the profession was always present between me and the deceased. We were resident of the same locality. We also quarreled on the business rivalry. All these facts were well known to the complainant (brother of the deceased) and PWs (friends of the deceased) and I have been involved due to the previous grudge only."

To the same question Atta-ur-Rehman (appellant) replied as under:-

"The prosecution has involved me in the case on just suspicion. I have nothing to do with the case. The local police have joined hands with the complainant and unjustly declared me guilty in the case."

The appellants neither opted to appear as their own witness, in disproof of the allegations levelled against them, as provided under section 340(2), Code of Criminal Procedure, nor produced any evidence in their defense. After conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed above. Hence these appeals and murder reference.

4. Learned counsel for the appellants, in support of these appeals, contends that the appellants have falsely been implicated in this case; that it was an unseen incident; that there is no direct evidence against the appellants; that evidence of last seen furnished by Arif Mehmood (PW.3) and Babar Khan alias Foreman (PW4) does not advance the case of prosecution; that medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case; that the alleged recoveries of mobile phones (P.9 and P.10), photocopy of I.D. Card (P.11), photocopy of driving license (P.12), copy of registration book (P.13), and pistols (P.14 and P.16) at the instance of appellants are inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.

5. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes these appeals on the grounds that there is no conscious or deliberate delay in reporting the matter to the police; that the complainant's side had no enmity against the appellants for their false implication in this case; that the evidence in the form of last seen, identification parade and abscondance is available on the record which connects the appellants with the commission of crime; that complainant's version about the murder of Syed Iftikhar Ali Shah at the hands of appellants is fully supported by medical evidence and corroborated by the recoveries of mobile phones, photocopy of I.D. Card, photocopy of driving license, copy of registration book, and pistols at the instance of appellants; that the prosecution has successfully brought home guilt against the appellants beyond any shadow of doubt and there is no merit in these appeals.

6. We have heard learned counsel for the parties as well as the learned Deputy District Public Prosecutor for the State and gone through the record with their able assistance.

7. This unfortunate incident wherein Syed Iftikhar Hussain Shah bother of the complainant was done to death, as per FIR (Ex.PA/1), took place on 24.12.2010 but no exact time of incident has been mentioned in the FIR and in the relevant column meant for the date and time of occurrence the word is mentioned. The matter was reported to the police on 24.12.2010 at 3:00 p.m. As per contents of FIR the accused persons hired the car of Syed Iftikhar Ali Shah on 23.12.2010 at 4:30 p.m. and thereafter took the deceased with them. At about 9:00 p.m. the deceased informed the complainant's side through telephone that he would come back at 12:00 night meaning thereby the complainant had no contact with Syed Iftikhar Ali Shah after 9:00 p.m. but even then he reported the matter to the police at 3:00 p.m. on 24.12.2010 i.e. eighteen hours after the incident. The distance between police station and the place of occurrence was just sixteen kilometers. There is absolutely no plausible or convincing reason for the aforesaid delay in reporting the matter to the police which casts serious doubt about the veracity of prosecution story. Reliance may be placed on case laws titled as "Mehmood Ahmed and three others v. The State and another" (1995 SCMR 127) and "Nazeer Ahmad v. Gehne Khan and others" (2011 SCMR 1473).

8. Admittedly, there is no eyewitness in this case so far as the actual incident of murder of Syed Iftikhar Ali Shah (deceased) is concerned. The prosecution case is based on the following pieces of evidence:-

(i) Evidence of last seen;

(ii) Evidence of Identification parade;

(iii) Recovery of dead body of Syed Iftikhar Ali Shah (deceased)

(iv) Joint recoveries of car (P.8) mobile phones (P.9 and P.10), photocopy of I.D. Card (P.11), photocopy of driving license (P.12) and copy of registration book (P.13), belonging to the deceased, at the instance of the appellants.

(v) Recoveries of pistols (P.14 and P.16) at the instance of Sajjad Bhatti and Atta-ur-Rehman (appellants), respectively.

(vi) Abscondance of the appellants.

(vii) Medical evidence.

9. Now we take up the aforementioned pieces of evidence separately.

EVIDENCE OF LAST SEEN

10. The evidence of last seen was furnished by Arif Mehmood (PW.3) and Babar Khan @ Foreman (PW.4) It was the claim of Arif Mehmood (PW.3) that on 23.12.2010 at about 4:45 p.m. he along with Ijaz (PW since given up) was present at Bus Stand Daska, where they had seen Syed Iftikhar Ali Shah (deceased) in the company of Sajjad Bhatti and Atta-ur-Rehman (appellants) in a car. Similarly, it was the claim of Babar Khan alias Foreman (PW.4) that on 23.12.2010 at about 11:30 p.m. he along with Umer Farooq (PW since given up) had seen Syed Iftikhar Ali Shah lastly in the company of the appellants while going towards village Othian on a car but Arif Mehmood (PW.3) informed the complainant about this fact on 30.12.2010 i.e. seven days after the occurrence. Similarly, Babar Khan alias Foreman (PW.4) informed the complainant about seeing the deceased lastly in the company of appellants on 05.01.2011 i.e. about thirteen days after the incident. There is no explanation as to why they kept mum for such a long time despite the fact that Arif Mehmood (PW.3) was the Mohallahdar of complainant, whereas, Babar Khan alias Foreman (PW.4) had business relations with the complainant. The explanation offered by Arif Mehmood (PW.3) was to the effect that after the occurrence he went to Peshawar in order to purchase marble and could not inform the complainant. The story of going to Peshawar cooked by Arif Mehmood (PW.3) is nothing but a lie to lend crutches to another lie. Why did both these witnesses choose to be silent? We don't find any answer to the aforesaid question. There is another circumstance which creates dent in the prosecution story qua seeing the deceased by both the above said PWs in the company of appellants because in the FIR it was the case of prosecution that both the appellants came on a car and hired the car of deceased for going to Gujrat, whereas, complainant (PW.1) has stated in his cross examination that on the day of occurrence Atta-ur-Rehman (appellant) sat in the car of his brother whereas Sajjad Bhatti (appellant) in the other car followed them. It is not understandable as to why the appellants hired the car of the appellants when they had their own car as per the prosecution story and moreover as to how both the above said witnesses had lastly seen the deceased while sitting in the car of the deceased together. Therefore, we hold that evidence of last seen furnished by Arif Mehmood (PW.3) and Babar Khan alias Foreman (PW.4) is of no avail to the prosecution.

EVIDENCE OF IDENTIFICATION PARADE

11. Syed Imtiaz Ali Shah complainant (PW.1), Mehmood Salar Butt (PW.2) and Babar Khan alias Foreman (PW.4) state that they participated in the proceedings of identification parade conducted on 07.03.2011 under the supervision of Ahad Dogar, Judicial Magistrate (PW.12) and identified both the appellants as culprits who were implicated as unknown accused in first information report. The identification parade conducted in this case is not helpful for the prosecution because it was the prosecution's own case that on 30.12.2010 Arif Mehmood (PW.3) had disclosed the names of both the accused persons to the complainant. Moreover, Syed Imtiaz Ali Shah complainant (PW.1) has stated in his cross-examination that when Sajjad Bhatti (appellant) was on physical remand he visited the police station twice. It is not understandable as to why the identification parade of the appellants was conducted when it was already in the knowledge of prosecution witnesses that they were their culprits. We have also noted that Sajjad Bhatti and Atta-ur-Rehman (appellants) were not assigned any role during the test identification parade by the witnesses who identified the appellants as culprits. In this regard reliance is placed on "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127). The relevant portion of the above said judgment at page 133 reads as under:-

"It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law that identification could not be relied upon and was of no evidentiary value. Reference can be made to Khadim Hussain v. The State (1985 SCMR 721), where Shafiur Rahman, J. observed as follows:-

"It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. It was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown ILR 51 Lah.396 in following words:-

"The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person has having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."

This view was followed in Ghulam Rasool and 3 others v. The State (1988 SCMR 557)."

RECOVERY OF DEAD BODY OF SYED IFTIKHAR ALI SHAH (DECEASED).

12. Undeniably, as per prosecution case, during search by the complainant party, the dead-body of deceased Syed Iftikhar Ali Shah was recovered from a wheat field near the bank of Upper Chanab Canal but it has not been brought on the record through any solid and convincing evidence as to who was the actual owner of the wheat field from where the dead-body was recovered. Moreover, it was not the case of prosecution that the dead-body of deceased was recovered on the pointation of the appellants, therefore, this piece of evidence cannot be used against the appellants.

JOINT RECOVERIES OF CAR (P.8), MOBILE PHONES (P.9 AND P.10), COPY OF I.D. CARD (P.11), COPY OF DRIVING LICENSE (P.12) AND COPY OF REGISTRATION BOOK (P.13), BELONGING TO THE DECEASED, AT THE INSTANCE OF APPELLANTS.

13. The alleged recoveries of car (P.8), mobile phones (P.9 and P.10), copy of I.D. Card (P.11), copy of driving license (P.12) and copy of registration book (P.13), belonging to the deceased, at the instance of the appellants are inconsequential because all the above said recoveries were jointly effected at the instance of the appellants. Moreover, both the appellants were not owners of the place from where the above said alleged recoveries were effected at the instance of the appellants. Furthermore, in the FIR it was the case of prosecution that after committing the murder of Syed Iftikhar Ali Shah (deceased) the appellants took away cash, original I.D. Card, original driving license, and photocopy of registration book belonging to the deceased, but during the course of investigation photocopies of I.D. Card and driving license were recovered at the instance of the appellants.

RECOVERY OF PISTOLS (P.14 AND P.16) AT THE INSTANCE OF SAJJAD BHATTI AND ATTA-UR -REHMAN (APPELLANTS), RESPECTIVELY.

14. So far as alleged recoveries of pistols (P.14 and P.16) at the instance of Sajjad Bhatti and Atta-ur-Rehman (appellants), respectively, are concerned the same do not advance the case of prosecution because two crime empties of .30 bore pistol were taken into possession by the Investigating Officer (PW.15) on 24.12.2010 but the same were received in the office of Forensic Science Laboratory on 26.01.2011 i.e. about more than one month after the incident without there being any satisfactory explanation. Moreover, as per prosecution's own case Sajjad Bhatti and Atta-ur-Rehman (appellants) were arrested on 28.02.2011 and on their personal search pistols (P.14 and P.16), were recovered from them, respectively. It does not appeal to a prudent mind that why the appellants will keep the pistols with them for such a long time having knowledge that the same can be used against them as an incriminating piece of evidence.

ABSCONDANCE OF THE APPELLANTS

15. As far as appellants' abscondance is concerned, the same is not of much help to the prosecution because the same was not put to the appellants while recording their statements under section 342, Code of Criminal Procedure. It is well settled by now that a piece of evidence not put to the accused while examining him under section 342, Code of Criminal Procedure, cannot be relied for recording/maintaining his/her conviction. Even otherwise the abscondance is merely a corroborative/ supportive piece of evidence and relevant only when the primary evidence inspires confidence but the situation is otherwise in this case.

MEDICAL EVIDENCE

16. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605).

17. It is settled by now that in cases of circumstantial evidence, the Courts are to take extraordinary care and caution before relying on the same. Circumstantial evidence, even if supported by defective or inadequate evidence, cannot be made basis for conviction on a capital charge. More particularly, when there are indications of design in the preparation of a case or introducing any piece of fabricated evidence, the Court should always be mindful to take extraordinary precautions, so that the possibility of it being deliberately misled into false inference and patently wrong conclusion is to be ruled out, therefore hard and fast rules should be applied for carefully and narrowly examining circumstantial evidence in such cases because chances of fabricating such evidence are always there. To justify the inference of guilt of an accused person, the circumstantial evidence must be of a quality to be incompatible with the innocence of the accused. If such circumstantial evidence is not of that standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment. The better and safe course would be not to rely upon it in securing the ends of justice. Reliance is placed on case law titled as "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274).

18. 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 any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established 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 "Muhammad Akram v. The State" (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe 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."

19. For the foregoing reasons, Criminal Appeal No.76 of 2013 and Criminal Appeal No.23-J of 2013 separately filed by the appellants are allowed, convictions and sentences awarded to the appellants vide judgment dated 20.12.2012 passed by the learned Additional Sessions Judge, Daska are set aside and the appellants are acquitted of the charges levelled against them while extending them benefit of doubt. Sajjad Bhatti and Atta-ur-Rehman (appellants) are in jail. They shall be released forthwith if not required to be detained in any other case.

20. Murder Reference No.24 of 2013 is answered in the NEGATIVE and the sentences of death awarded to Sajjad Bhatti and Atta-ur-Rehman (convicts) are NOT CONFIRMED.

JK/A-94/L Appeals allowed.