MUHAMMAD HAYAT Versus State
ABDUL SAMI KHAN, J.--- Through this appeal under section 25 of the Anti-Terrorism Act, 1997 read with section 410, Cr.P.C. Muhammad Hayat, Shahbaz Ahmed, Tasawer and Sajid appellants have called in question the judgment dated 18.12.2008 handed down by the learned Judge, Anti-Terrorism Court-I, Gujranwala through which the appellants were convicted under section 7(a) of Anti-Terrorism Act, 1997 read with section 302(b), P.P.C. for Qatl-i-amd of Faiz Ahmed, Zulfiqar Ahmed, Jahangir alias Jangi and Saif Ullah alias Phallu and were sentenced to death each on four counts. They were also ordered to pay compensation of Rs.100,000/- (Rupees one hundred thousand only) to the legal heirs of all the four deceased under section 544-A, Cr.P.C. In case of non-payment thereof they shall undergo simple imprisonment for six months. The appellants have filed the instant appeal against their convictions and sentences whereas the learned trial court has sent Capital Sentence Reference under section 374, Cr.P.C. which has been numbered as Capital Sentence Reference No.11-T of 2009 for confirmation or otherwise of the death sentences passed against the appellants. We propose to decide both these matters together through this single judgment.
2. The prosecution story set forth in the private complaint by the complainant is that he is resident of Kuthiala Sheikhan and shop-keeper by profession. On 20.03.2007 at about 10.00 am his real brother Faiz Ahmad, Saif Ullah alias Phallu, Zulfiqar Ahmad and Jehangir alias Jangi were proceedings to cattle-market, Kharian by car bearing registration No. LXF-8685 whereas the complainant along with Muhammad Azam and Amjad Iqbal proceeded in their separate car to Mandi Bahauddin. The car of Faiz Ahmad was ahead of them at some distance. When at about 10.20 am the car of Faiz Ahmad reached near Bridge of Canal Kakuwal in front of shops, Muhammad Hayat, Shahbaz Ahmad, Khizar Hayat, Tasawer Iqbal Sajid and two unknown persons (later on one was introduced as Naseem alias Nomi), residents of the same locality, all armed with firearms who were standing behind the trolleys loaded by sugar-cane at the bank of canal emerged at the road and they starting firing burst from their respective firearms at the car of Faiz Ahmad when it reached near to them which hit all the four riders upon which the car stopped after crossing bridge in trembling condition. All the assailants fled away towards West by firing bursts. The complainant and his companions stopped the car behind the venue of occurrence due to fear. After the assailants fled away, they reached near the car of Faiz Ahmad and they noted firearms injuries on the bodies of all the four persons who were smeared with blood, succumbed to their injuries and died at the spot. It is stated by the complainant that the occurrence was also witnessed by Muhammad Azam and Amjad Iqbal along with him. The motive set up by the prosecution in the FIR is stated to be previous enmity between the parties and due to that enmity the assailants waylaid on highway and after firing bursts killed four persons. Upon statement of the complainant formal FIR No. 139/07, dated 20.03.2007 was registered at Police Station Kuthiala Sheikhan, District Mandi Bahauddin in respect of offences under sections 302/148/149/109, P.P.C. During the investigation section 7 of Anti -Terrorism Act, 1997 was added to the FIR but later on the complainant dissatisfied with the investigation and he instituted a private complaint, the story of which has been mentioned above.
3. To substantiate its version at the trial, the prosecution produced as many as fourteen prosecution witnesses before the learned trial court. The ocular account was furnished by Mumtaz Ahmad complainant (PW12) and Amjad Iqbal (PW13). Mushtaq Ahmad SI (PW14) is the investigating officer who appeared before the learned trial court and stated about various steps taken by him during the course of investigation of this case. The medical evidence in this case had beed furnished by Dr. Umer Murtaza, CMO, District Headquarter Hospital, Mandi Bahauddin (PW11) who had conducted the postmortem examination on the dead bodies of the deceased Faiz Ahmad, Saif Ullah alias Phalu, Zulfiqar and Jehangir alias Jhangi. Rest of the evidence adduced by the prosecution is almost formal in nature. After tendering in evidence report of Chemical Examiner (Ex. PHH to PLL) and report of Serologist (Ex.PMM to PPP) the prosecution closed its evidence.
4. The appellants in their statements recorded under section 342, Cr.P.C. controverted all the allegations levelled against them by the prosecution and they had also professed their innocence and pleaded false implication in this case. The appellants did not opt to record their statements under section 340(2), Cr.P.C. in disproof of allegations leveled against them by the prosecution. However, the learned trial court has examined twelve Court-Witnesses in this case.
5. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellants as mentioned in paragraph No.1 of this judgment.
6. Learned counsel for the appellants contends that the judgment is against law and facts of the case and is result of misinterpretation of evidence available on record because the learned trial court at the time of awarding capital sentence of death to the appellants has not considered evidence adduced before it by the Court-Witnesses. There is a delay of three months and twenty-six days in institution of the private complaint which prima facie shows that the same has been instituted after deliberations and consultations. Initially the occurrence was reported on wireless through which only three culprits were mentioned who after perpetrating offence fled away on Suzuki Cultus but later on the appellants and their co-convict have been implicated in this case with mala fide intention who were found innocent by the police during the investigation of this case. The story narrated in the private complaint is highly improbable because if the complainant and other eye-witness were present at the scene of crime at relevant time they would have not been spared by the assailants who have enmity with him. The complainant has spread the net wide and falsely involved the whole family of the appellants in this case in connivance with the local police so that nobody would left behind to pursue this case. The prosecution witnesses are related inter se and interested witnesses. The prosecution has not produced any corroborative piece of evidence in respect of these witnesses rather it has let off Muhammad Azam eye-witness so an adverse inference can be drawn that had he be produced before the lerned trial court he would not have supported the prosecution story set forth in the private complaint. The complainant had made dishonest improvements in the private complaint and introduced one Naseem alias Nomi one of unknown person. There are glaring contradictions in the statements of the prosecution witnesses. There is glaring contradiction between the ocular account and medical evidence regarding the distance from where the firing was made. The motive has not been proved by the prosecution because the previous enmity of the complainant was with one Irshad and not with the present appellants. Nothing has been recovered from the appellants to connect them with the commission of offence. In the circumstances the story narrated by the prosecution has become doubtful and the benefit of doubt always goes to the accused person being favourate child of law. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. The learned counsel prays that the appeal filed by the appellants be allowed and they be acquitted from the charge.
7. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that it was a broad daylight occurrence wherein all the appellants have been nominated in the promptly lodged FIR with their specific roles. The roles attributed to the appellants are borne out from the postmortem examination report of all the four deceased persons. The police have connived with accused party and have wrongly declared the appellants to be innocent during the investigation of this case which prompted the complainant to institute private complaint. The prosecution has successfully proved its case against the appellants by adducing ocular account and medical evidence. The ocular account is in line with the medical evidence. There are some minor discrepancies which cropped up with the passage of time but those are not fatal to the prosecution case. The complainant Mumtaz Ahmad (PW12) is brother of the deceased Faiz Ahmad so it is not expected from a close kith and kin to leave the real culprits and falsely involve the appellants in this case. The appellants acted in a brutal and callous manner at the spot and murdered four innocent persons. Relation inter se is no ground to disbelieve the confidence inspiring evidence adduced by the prosecution witnesses. Non-recovery of weapons of offence is a lapse which is on the part of the police and the appellants cannot be burdened for such a lapse. The motive has been proved by the prosecution. The prosecution witnesses are consistent on each and every material point. There seem no discrepancies in their statements. The prosecution has successfully proved its case against the appellants beyond any doubt, thus, the appeal filed by the appellants is liable to be dismissed.
8. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also scanned the record with their able assistance.
9. Before we proceed further into the matter and record our observations we shall feel it imperative to mention here that this appeal has been filed by four appellants namely Muhammad Hayat, Shahbaz Ahmed, Tasawer iqbal and Sajid who have surrendered themselves before the authority but Khizer Hayat appellant slipped away at the time of pronouncement of impugned judgment from the learned trial court whereas Capital Sentence Reference has been forwarded against five convicts seeking confirmation or otherwise of their sentences of death. Hence, in the peculiar circumstances of this case we are not inclined to take up case of Khizer Hayat convict rather we deem it appropriate to consider his Capital Sentence Reference pending before this Court till the time of his arrest. His perpetual warrants of arrest have already been issued by the learned trial court. Similarly Naseem alias Nomi has also been arrayed as an accused in private complaint by the complainant and he was summoned to face trial by the learned trial court but he absconded and learned trial court has not framed charge against him rather the learned trial court issued his perpetual warrants of arrest. His trial has been separated which according to the learned trial court would start after his arrest. In this eventuality now we shall confine ourselves to extend our observations to the extent of Muhammad Hayat, Shahbaz Ahmed, Tasawer Iqbal and Sajid appellants.
10. In the present case the occurrence took place on 20.03.2007 at 10.20 am and the matter was reported to the police at 11.00 a.m. and thereafter the FIR was chalked out at 11.25 a.m. on the same day whereas the distance between the place of occurrence and the Police Station is just seven miles towards North. We have particularly observed that although the FIR has been shown to be registered within a span of one hour and yet the fact remains that Post mortem Examination on the deadbody of Faiz Ahmad deceased was conducted at 6.00 p.m. on 20.03.2007 with an unexplained delay of seven hours and forty minutes. This fact shows that the FIR was not registered at the time mentioned therein and possibility cannot be ruled out of consideration that the FIR has been recorded after due deliberations and consultations. Reliance is placed on the case of Irshad Ahmed v. The State (2011 SCMR 1190) wherein it has been held 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."
Even otherwise it is trite that reporting the matter to the police with reasonable promptitude does not by itself provide a clean chit to the complainant and the other eye-witnesses that all that they have reported in the FIR is a gospel truth rather in the background of existed pitched enmity the complainant and eye-witnesses can in league with the police and can manage timing of reporting the matter as well as can carve a false story against the persons of their own wishes.
11. The ocular account in this case has been furnished by Mumtaz Ahmad complainant (PW12) and Amjad Iqbal (PW13). A perusal of the record shows that initially the complainant has set the machinery of criminal law into motion by lodging the FIR but during investigation of this case the set of accused has been changed and the police after thrashing and probing the matter found the appellants to be innocent in this case. The investigating officer has got recorded statements under section 161, Cr.P.C. of two persons namely Mazhar Iqbal and Rafique Amjad who have duly appeared before the learned trial court in the witness-box as CW10 and CW11 and adduced evidence to the effect that as a matter of fact the occurrence in this case has been comitted by Muhammad Nawaz and Qamar Ameer. The investigation of this case was conducted by Rai Riaz Ahmad, Inspector/SHO who appeared before the learned trial court as CW9 and he has categorically stated that the appellants were not present at the scene of crime at relevant time and that was also the first version of all the appellants before the police after their arrest recorded by Muhammad Zaman, SI (CW2). It is also admitted at all hands that during the investigation of this case the investigating officer has, at one stage, prepared discharge report of Tasawer Iqbal and Sajid appellants. The outcome of investigation obviously frustrated the complainant who later on prompted to institute private complaint but in the private complaint he has improved the story narrated in the FIR and nominated one more person namely Naseem alias Nomi as an accused from unknown person. Such falsity/improvement in the story narrated by the complainant in the private complaint has further opened the door of fabrication on his part when the defence has exhibited pages of Log-Book (Ex.DS and Ex.DT) in defence evidence and according to entry dated 20.03.2007 it has clearly been mentioned in the wireless message that three persons who were boarded in white colour Suzuki Cultus Car bearing registration No. 1357 have committed the occurrence and out of three one assailant was wearing cap on his head. This documentary proof of course falsify the story cooked up by the complainant in the private complaint that the appellants emerged at the venue of crime from behind the tractor trolley loaded with sugar-cane. The mode and manner adopted by the complainant to prove the ocular account constrained us to believe that the behavior of the complainant itself is sufficient to disbelieve his evidence and to conclusively determined that neither he was present at the scene of crime at relevant time nor has he seen the occurrence rather he has been summoned after taking place of occurrence to become an eye-witness being brother of the deceased. The dishonest improvements made by him forbade us to disbelieve his evidence and the evidence adduced by Amjad Iqbal (PW13). It is settled law that evidence of a witness who made dishonest improvement in order to bring his statement in line with the ocular account lost its credibility. Reliance in this regard can be placed on the cases of Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812) and Amin Ali and another v. The State (2011 SCMR 323). So the medical evidence in this case has not provided support to the ocular account.
12. We have carefully analysis the story mentioned in the private complaint and remained unable to understand that why the complainant and other eye-witness were following the car of the deceased persons at the time of occurrence at a short distance because no explanation or reason whatsoever has been furnished in this regard by the complainant or the other eye-witness while appearing before the learned trial court as PW12 and PW13. Even both of them failed to extend any reason that for what purpose they were proceeding to Mandi Bahauddin on the fateful day. If this is not enough both the eye-witnesses miserably failed to establish their presence at the time of incident because in inquest report of all the four deceased (Ex. PCC to PFF) the names of both the eye-witnesses do not figure as the witnesses who identify the deadbodies. A minute glance of evidence adduced by the eye-witnesses shows that nothing has been brought on record by them that who was driving the car at the time of incident from the deceased persons inasmuch as both of them have categorically stated in their statements that the assailants have launched murderous assault from left side but according to the Post mortem Examination Reports of the deceased (Ex.PH to PL) they have sustained firearm injuries from right side as well. It may not be out of place to point out here that in the FIR and in the private complaint as well the complainant has mentioned two eyewitnesses namely Muhammad Azam and Amjad Iqbal (PW13) but he has not produced former in this case to prove the ocular account, therefore, an adverse inference (under Article 129 of Qanun-e-Shahadat, 1984) can be drawn that had he been produced before the learned trial court he would have not supported the prosecution story narrated in the private complaint. In the backdrop of above mentioned circumstances we are of the considered view that the eye-witnesses were not present at the scene of crime at relevant time and they have been procured later on to become witnesses in this case, that is most probable reason that they inconsolably failed to connect the appellants with the commission of murder of four deceased. Even otherwise the ocular account has been furnished by interesting witnesses the evidentiary value of whom is not trustworthy or above-board to be relieved upon the same in its true spirit. In the above mentioned peculiarity we are confident in our opinion that the quality of evidence produced by the prosecution to prove ocular account is not trustworthy enough to be relied upon by this Court. Thus, the ocular account produced by the prosecution is not proved in this case.
13. The medical evidence has been furnished in this case by Dr. Umar Murtaza (PW11) who has conducted Post-mortem Examination of all the four deceased. We have considered the medical evidence from all pros and cons and have observed that all the injuries sustained by all the four deceased have burnt margin and blackening around the wounds which shows that the deceased were fired by the assailants from a very close range but according to the eye-witnesses and even according to site-plan (Ex. PC) which was prepared on pointing out of the eye-witnesses by Akhtar Naqash, Draftsman (PW3) the distance between the assailants and the deceased was six feet which fact also belies the statements of eye-witnesses as blackening does not occur around the wound unless the weapon is discharged within a range of three feet. More over as stated above the eye-witnesses have categorically stated that the firing was made by the assailants from left side but Post-mortem Examination Report of the deceased shows that they have also sustained injuries from right side. Even otherwise we have particularly observed that the medical evidence can only provide the nature and seat of injury, the firearm used during the occurrence, the distance between the assailant and the deceased and the duration between the death and Post-mortem Examination. The medical evidence in any manner cannot provide any clue regarding the person who has committed the murder of the deceased. Law is quite settled on the point that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence, etc. but medical evidence itself does not constitute any corroboration qua the accused person for proving his culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866). Thus, the medical evidence cannot provide support to the ocular account especially when the ocular account has already been disbelieved by us in view of our discussion made in preceding paragraphs.
14. The motive set up by the prosecution in the FIR is that due to previous enmity the appellants have bumped off all the four deceased. In this context we have observed that the complainant side has got registered number of criminal cases of murders and attempt to commit murders against number of persons including appellant party and similarly the complainant side is also involved in number of criminal cases of murder and attempt to commit murder which fact clearly shows that the complainant party has got enmity with number of persons including the appellants and there is pitched enmity existed between the parties of this case before the instant occurrence. The complainant was also political rival of Khizer Hayat appellant (since PO) and he has contested four elections against Khizer Hayat said Proclaimed Offender and admittedly he has lost all the four elections. Admittedly at the time of occurrence Khizer Hayat convict was Union Nazim of Union Council, Kuthiala Sheikhan and he was also member of Public Safety Commission. So enmity between the parties is an admitted fact and in presence of such severe prevalent animosity strong, cogent, trustworthy and reliable independent evidence is required to prove the motive which is missing in this case. It is settled law that motive is a double-edged weapon which can cut both ways, thus, a possibility cannot be ruled out of consideration that due to previous enmity the complainant has falsely involved the appellants in this case. Law is quite settled on the point that if it is a reason for the accused to commit the occurrence then the same could also be for the complainant and the other eye-witnesses to falsely implicate the accused in the case. Reliance in this regard can easily be placed on the case of Allah Bakhsh and Muhammad Nawaz v. The State (PLD 1978 SC 171) wherein it has been held as under:-
"Now though that occurrence took place a long time ago yet it could be said that the accused had a motive to murder the deceased. But then motive is a double edged weapon. If it could be the reason for the accused to murder the deceased, it could as well be the reason for the PWs who were close relations of the deceased to charge the accused falsely or on suspicion. Motive, therefore by itself proves nothing."
In the background of such a cloudy and shabby circumstances of this case the motive remained far from being proved. Similarly during the course of investigation nothing has been recovered from the appellants and in this eventuality they cannot be positively connected with the commission of offence.
15. The upshot of our discussion made above is that we have come to a definite conclusion that the complainant either under some compelling circumstances or under legal advice tried his level best to falsely entangle the appellants in this case but he miserably failed to fulfill his object in this regard and remained unable to prove guilt of the appellants beyond any shadow of doubt rather shadow of doubts is looming large in this case rendering the same smeared with dishonest and polluted evidence adduced by the related, chance and interested witnesses. Thus, the prosecution has failed to prove its case against Muhammad Hayat, Shahbaz Ahmed, Tasawer Iqbal and Sajid appellants beyond any reasonable shadow of doubt. It is settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather single circumstance creating doubt is enough to extend benefit of same to the accused which too not as a matter of grace but as a matter of right. In the case of Sher Bahadur and another v. The State (1972 SCMR 651) the august Supreme Court of Pakistan has held as under:-
"(a) Penal Code (XLV of 1860), S. 302---Father and son injured with shot-guns by five persons--Father succumbing to injuries and evidence of son as regards three accused disbelieved by trial court and High Court---Prudence, in circumstances, held, required that evidence of son being one by interested witness should have been accepted as against remaining two accused only if corroborated by some other reliable evidence".
Similarly in the case titled Arif Hussain and another v. The State (1983 SCMR 428), the august Supreme Court of Pakistan has laid down the following principle:-
"---S. 302---Murder---Evidence---Benefit of doubt---Prosecution case not free from doubt---Charges not brought home to accused in manner required under law---Accused given benefit of doubt and acquitted."
Similar view was affirmed in the cases of Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 320).
It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person. So by extending the benefit of doubt to the appellants we acquit them of the charge. Criminal Appeal No. 1458 of 2008 filed by the appellants is, therefore, allowed and they are acquitted of the charge. The appellants are in jail, they shall be released forthwith, if not required to be detained in connection with any other case.
16. Capital Sentence Reference No. 11-T of 2009 is answered in the negative and the death sentences passed by the learned trial court against Muhammad Hayat, Shahbaz Ahmed, Tasawer Iqbal and Sajid appellants are not confirmed.
HBT/M-398/L Appeal allowed.