MEHENDI KHAN Versus State
MANZOOR AHMAD MALIK, J.--- This judgment shall decide Criminal Appeal No.620 of 2008 (Mehendi Khan etc. v. The State) and Murder Reference No.139/08 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to appellants Mehendi Khan, Abdul Sattar, Shabbir @ Sheera, Pervaiz Iqbal and Abbas Ali, as both these matters have arisen out of the same judgment dated 31.05.2008 passed by the learned Additional Sessions Judge, Sheikhpura, whereby, Mehendi Khan, Abdul Sattar, Shabbir @ Sheera, Pervaiz Iqbal and Abbas Ali (appellants) were convicted and sentenced as under:-
(i) UNDER SECTION 460, P.P.C.: to imprisonment for life each.
(ii) UNDER SECTION 302(b) P.P.C.: to death as Tazir each.
(iii) FOR CAUSING INJURIES ON THE PERSON OF MUHAMMAD JAVAID(PW14):- a. UNDER SECTION 337-A(i), P.P.C. : to Daman of Rs.10,000/- (Rupees ten thousand only) each with a direction to undergo two years RI each as Tazir; b. UNDER SECTION 337-F(i), P.P.C.: to Daman of Rs.5,000/- (Rupees five thousand) each with a direction to undergo one year s RI each as Tazir: c. UNDER SECTION 337-L(2), P.P.C.: to Daman amounting to Rs.2,000/- (Rupees two thousand only) each.
(iv) All the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. was extended to the appellants.
(v) The appellants were directed to pay a compensation of Rs.50,000/- (Rupees fifty thousand only) to the legal heirs of the deceased as provided under section 544-A Cr.P.C., and in default whereof they were directed to suffer four months SI each.
(vi) Accused Irshad @ Shadi died during the trial, whereas, Amjid and Nasir were declared as Proclaimed Offenders.
2. Brief facts of the case , as given by Muhammad Khalid Pervaiz complainant (PW13) in the FIR(Exh.PY/1) are that during the intervening night of 2nd/3rd December, 2005, the complainant along with his other family members i.e. brothers Muhammad Younis, Muhammad Javaid Ahmad and Muhammad Latif, nephews Yasir Javaid and Nasir Javaid were sleeping in the house and the electric bulb was lit in the courtyard. At about 1.15 a.m. (night), eight/nine unknown persons, who were between 30 to 40 years of ages and were armed with firearms, entered the house by scaling over walls, brought Asif and Yasir down in the courtyard from the upper portion and got awakened Muhammad Younis, Muhammad Javaid Ahmad, Muhammad Latif and Rasheeda Bibi, on the gun points. Accused took Rs.400/- forcibly from the pocket of complainant s father Muhammad Latif and started search of the room of his parents. Accused detained Muhammad Younis, Yasir Javed, Muhammad Javaid and his parents in the room and asked Asif about Nasir Javaid. They took Asif towards Nasir Javaid. Meanwhile, Younis etc., who were detained in a room, started raising alarm, whereupon, the accused left them, stepped forward towards the room of the detained persons and asked them to stop raising alarm otherwise they would be killed. According to the complainant, remaining womenfolk and the complainant came in the courtyard after hearing noise of Nasir Javaid. The accused starting firing with their respective weapons at the room where Muhammad Younis, Muhammad Javaid Ahmad, Muhammad Latif and Mst. Rasheeda Bibi were detained. The complainant and womenfolk raised hue and cry but the accused continued firing. One fire hit Muhammad Younis on his mouth who fell down on the ground, whereas, complainant s father Muhammad Latif and Muhammad Javaid Ahmad also received injuries. Thereafter, the accused persons ran away from the spot while making firing. Complainant s brother Muhammad Younis died at the spot as a result of the firearm injuries. The complainant has stated that they can identify the assailants in case they come in front of them.
3. During the course of investigation, Nazir Ahmad SI(PW23), inspected the spot on 3.12.2005 and took into possession two crime empties of .12 bore and two crime empties of .44 bore which were taken into possession through memo Exh.PB. On 9.12.2005, he arrested Mehendi, Abdul Sattar and Pervaiz Iqbal, recorded their first pleas, covered their faces and sent them to the judicial lock-up on the next day, for the purpose of identification parade. On 3.12.2005 Dr. Abdul Majeed (PW6) medically examined Muhammad Javaid (PW14). On the same day, he also medically examined Muhammad Latif, whereas, Dr. Sohail Khizer (PW9) conducted the postmortem examination on the dead body of Muhammad Younis (deceased). On 6.2.2006, Zafar Iqbal Inspector (PW22) arrested Shabbir, covered his face and sent him to the judicial lock-up on the next day for the purpose of identification parade. According to Munir Ahmad Retired SI (PW24), during the course of investigation, on 13.3.2006 Shabbir @ Sheera (appellant) led to the recovery of .44 bore rifle (P5) from an iron box lying beside the northern wall of his residential room which was taken into possession through memo Exh.PU, whereas, Mehendi Khan (appellant) got recovered a double barrel gun (P6) fron an iron box lying beside eastern wall of his residential room which was taken into possession through memo. Exh.PV and Abdul Sattar (appellant) got recovered a Pump Action (P7) from an iron box lying besides southern wall of his residential room which the I.O. took into possession through memo Exh.PW, Pervaiz Iqbal (appellant) led to the recovery of .30 bore pistol (P8) from an iron box lying in the south-eastern corner of his house which the Investigating Officer took into possession through memo Exh.PX. On 24.06.2006, he formally arrested Abbas Ali (appellant) after summoning him from Jail, who was confined there in connection with some other case, and sent him back for the purpose of Identification Parade. On 31.7.2006, during the course of investigation conducted by Munir Ahmad Retired SI (PW24), Abbas Ali (appellant) led to the recovery of gun (P4) from a cluster of reeds which was taken into possession through memo Exh.PD.
On 6.7.2006, Mr. Imran Safdar Luck, Civil Judge/Magistrate Ist Class, Sheikhupura (PW16) supervised the Identification Parade of Abbas Ali (appellant) held in the District Jail Sheikhupura, whereas, on 27.2.2006 Mr. Afzaal Ahmad Butt, Civil Judge/Magistrate Ist Class, Sheikhupura (PW17) conducted the identification parade qua Pervaiz Iqbal, Mehendi Khan and Abdul Sattar (appellants) in the said Jail and on 24.2.2006, Identification Parade regarding Shabbir Hussain (appellant) was held in the said Jail under the supervision of Mr. Ahsan Yaqoob Saqib, Civil Judge/Magistrate Ist Class, Sheikhupura (PW18).
After completion of investigation, the challan was prepared and submitted against the appellants. The learned trial Court, after observing the required legal formalities, as provided under the Code of Criminal Procedure, re-framed the charge against the appellants on 10.10.2006 under sections 302/460/324, P.P.C., to which, they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has produced 24 witnesses, during the trial. The appellants were examined under section 342 of the Code of Criminal Procedure. The appellants neither produced any evidence in defence nor opted to depose on Oath as provided under section 340(2) of the Code of Criminal Procedure and pleaded their innocence. In an answer to the question why this case against you and why the PWs have deposed against you , Pervaiz Iqbal (appellant), in his statement recorded under section 342 of the Code of Criminal Procedure, stated as under:-
I am innocent. My land is adjacent to the land of complainant party. The complainant and P.Ws known me very well before the occurrence and involved me in this case due to suspicion and party faction. The complainant involved me falsely after the proceeding of detective dogs .
Shabbir @ Sheera(appellant) replied as under:-
Complainant and PWs are close relatives of each other. They involved me and deposed against me due to enmity .
Answer of Mehendi Khan(appellant) was as under:-
I am innocent. My house is situated three houses away from the house of complainant in the same bazaar and in the same village, but my name do not figure in the FIR. This would clearly show that the complainant and the P.Ws. involved me in this case due to party faction. P.Ws. are inter-se related, who deposed against me due to party faction .
Abbas Ali(appellant) stated as under:-
I have been falsely booked in this case at the behest of Rana Mukhtar Ahmad S.I. and Rab Nawaz ASI, who nursed a grudge much prior to the present occurrence. On 3.08.05, Rana Mukhtar S.I. and Rab Nawaz ASI and others tresspassed into my house, situated in Chak No.114/15L, Tehsil Mian Chunnoon, District Khanewal and belaboured my father and other family members including the womenfolk. Rana Mukhtar Ahmad S.I. illegally secured Mobile phone of my father and also snatched a sum of Rs.50000/- from him. Against the said high handedness of Police and others, my father, namely, Muhammad Khursheed son of Khushi Muhammad, Caste Dogar, resident of Chak No.111/15-L, Tehsil Mian Channun, District Khanewal, filed an application under section 22-A/22-B of Cr.P.C. before the learned A.S.J./Justice of Peace Mian Channoon for issuance of direction for registration of criminal case but the same was dismissed vide order dated 07.09.05, leaving the petitioner at liberty to file a complaint. Thereafter on 10.09.05, my father Khursheed filed a private complaint against Rana Mukhtar Ahmad S.I.P.S. Saddar Sheikhupura and others in the Court of learned Area Magistrate, P.S. Saddar Mian Channoon, for offence under sections 452/506-B/342/382/148/149, P.P.C. During the proceedings in the said private complaint case statement of my father Muhammad Khursheed was recorded by the learned Judicial Magistrate, on 10.09.05; whereas the statements of Muhammad Ilyas and Muhammad Munir were also recorded on 11.10.05. All of them supported the contents of private complaint in their preliminary statements, during the proceedings of said complaint, I was hault up by the Police of P.S. Saddar Sheikhupura, and was falsely booked. During the investigation of the present case, Rana Mukhtar Ahmad S.I. and others exercised their influence over the I.O. and the witnesses of this case and they falsely got me entangled in this case. Due to this high handedness and malicious conduct of Police of P.S. Saddar Sheikhupura, I and my other family members were harassed, blackmailed and victimized and on account of such compelling circumstances, my father was constrained to abandon the private complaint which was consequently dismissed on 29.9.06. I have been falsely roped in this case .
However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellants, as detailed above.
5. Canvassing their acquittal, learned counsel for all the five appellants, in support of this appeal, jointly contend that admittedly neither any body was named as an assailant nor description thereof has been given in the FIR by the complainant; that it has come on record that appellants Mehendi Khan, Abdul Sattar and Shabbir @ Sheera are residents of the same Mohallah, where this incident took place and the said fact has been admitted by Muhammad Khalid Pervaiz complainant (PW13) in his cross-examination before the learned trial Court; that it has also been admitted by the complainant before the learned trial Court that Shabbir @ Sheera (appellant) was on visiting terms with Mehendi Khan (appellant) while Pervaiz Iqbal (appellant) used to live with Mehendi Khan (appellant) in Village Maddar; that it has further been admitted by the complainant and other witnesses that Shabbir @ Sheera (appellant) resided 5/7/10th houses away from the house of the complainant, whereas, the complainant has also conceded in his cross-examination that an application was submitted by him to the police wherein he mentioned the names of the appellants but the said application was without date and time; that he has further stated that he was sure about the accused persons and also stated that he came to known about their whereabouts from the co-villagers, therefore, in this situation evidence of Identification Parades of the appellants carries no value; that even during the course of identification parades, objections were raised by the appellants that they were already known to the witnesses which objections were not rebutted by the witnesses; that it was case of the complainant that his brother Muhammad Younis (deceased) received firearm injury on his mouth as a result whereof he died at the spot, whereas, it was also case of the complainant that his father Muhammad Latif and Muhammad Javaid also received firearm injuries and both these injured persons were medically examined by Dr. Abdul Majeed (PW6) amongst whom Muhammad Latif was not produced before the learned trial Court and the application filed by the complainant to give-up the said Muhammad Latif on the ground that he was 90 years of age and was not in senses, was not forwarded by the ADPP and even under Article 3 of the Qanun-e-Shahadat Order, 1984 it was for the learned trial Court to see competence of a witness, therefore, an adverse inference may be drawn against the prosecution for his non-production before the learned trial Court, whereas, qua the injuries on the person of Muhammad Javaid (PW14), Dr. Abdul Majeed (PW6) has opined that all those injuries were with blunt means and not by firing and because of this reason, while appearing before the learned trial Court, the complainant has changed his stance and omitted the word of firing qua the injuries on the person of Muhammad Javaid (PW14) that the recoveries of firearms at the instances of the appellants, are immaterial because report of the FSL is negative; that the prosecution has failed to prove abscondence of Shabbir @ Sheera and Abbas Ali(appellants) in accordance with law and even otherwise abscondence is merely a corroborative piece of evidence which can only be used if the primary evidence inspires confidence which is very much lacking in this case; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and they are entitled to acquittal.
6. While opposing this appeal, the learned DPG, assisted by learned counsel for the complainant, contends that there is nothing on record which could even remotely suggest that the complainant and other witnesses had any enmity with the appellants to falsely depose against them; that this incident took place during the intervening night of 2nd/3rd December, 2005 at about 1.15 a.m. and presence of the complainant and other witnesses in their own house cannot be considered unnatural or improbable; that even otherwise the matter was reported to the police at 3.00 a.m. on the same day despite the fact that the distance between the place of occurrence and the Police Station was about 09 miles which rules out the chances of concoction and deliberation on the part of the complainant, especially, when the both the injured i.e. Muhammad Latif (given up) and Muhammad Javaid (PW14) were medically examined by Dr. Abdul Majeed (PW6) on 3.12.2005 at about 7.00 a.m. which is evident from their respective MLRs which are available on the record as Exh.PP and Exh.PQ; that the time and place of occurrence has not been disputed by either of the appellants; that it is not necessary for a witness to know whereabouts of all the co-villagers; that the appellants have correctly been identified in the Identification Parades held under the supervision of learned Judicial Magistrates who have appeared before the learned trial Court to prove those proceedings; that it is prerogative of the prosecution to produce as many witnesses as it deems proper and no adverse inference can be drawn against the prosecution for non-production of Muhammad Latif especially when he was in a state of shock after the death of his son and was not in a position to give rational answers; that the prosecution case finds support by the medical evidence, the evidence of recovery of firearms at the hands of appellants; that the prosecution finds further support from the abscondence of Shabbir @ Sheera and Abbas Ali(appellants); that, even otherwise, in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellants beyond any shadow of doubt and the appeal filed by the appellants against their conviction and sentence be dismissed.
7. We have heard learned counsel for the parties, have given consideration to their respective arguments and have also scanned the record with their able assistance.
8. This unfortunate incident, wherein, Muhammad Younis (deceased) lost his life and Muhammad Latif (given up) and Muhammad Javaid (PW14) received injuries, as per FIR (Exh.PY/1), took place between the night of 2nd/3rd December, 2005 at about 1.15 a.m. in the house of the complainant, within the jurisdiction of Police Station Saddar Sheikhupura, the matter was reported to the police by Muhammad Khalid Pervaiz complainant (PW13) at 3.00 a.m.(night) at the spot at Mauza Madar, the formal FIR was registered at about 4.00 a.m. while the distance between the place of occurrence and the Police Station was about 09 miles.
9. Admittedly, in the FIR (Exh.PY/1), Muhammad Khalid Pervaiz complainant (PW13) has neither disclosed the names of the accused persons nor their features. However, subsequently, the appellants were allegedly identified by Muhammad Khalid Pervaiz complainant (PW13), Muhammad Javaid (PW14) and Yasir Javaid (PW15) during the course of different Identification Parades held under the supervisions of the learned Judicial Magistrates, the detail whereof is that on 6.7.2006, Mr. Imran Safdar Luck, Civil Judge/Magistrate Ist Class, Sheikhupura (PW16) supervised the Identification Parade held qua identification of Abbas Ali (appellant) by Muhammad Khalid Pervaiz complainant (PW13), Muhammad Javaid (PW14) and Yasir Javaid (PW15), in the District Jail Sheikhupura. It has come on record through the statement of this witness that during the course of Identification Parade, The accused raised an objection that his snaps were taken at the P.S. and was shown to the P.Ws. who were called for test identification parade and he also claimed his innocence . This witness has admitted in his cross-examination that The PWs did not describe the role of Abbas accused at the time of his identification .
10. Similarly, on 27.2.2006, Mr. Afzaal Ahmad Butt, Civil Judge/Magistrate Ist Class, Sheikhupura (PW17) conducted the identification parade qua identification of Pervaiz Iqbal, Mehendi Khan and Abdul Sattar (appellants) by Muhammad Khalid Pervaiz complainant (PW13), Muhammad Javaid (PW14) and Yasir Javaid (PW15) in the District Jail, Sheikhupura. He has appeared before the learned trial Court as PW17. In his examination-in-chief, this witness has stated as under:-
Then the accused were given opportunity to record the objection. Upon this the accused Mehendi Khan and Abdul Sattar disclosed that they and the complainant were residents of same vicinity and they were well acquainted to the witness Yasir Javed. The third accused Pervaiz Iqbal also stated that the complainant party used to know him well even prior to the occurrence and he has been involved in this case falsely due to his connection with Sardar Dogar party, a rival to the complainant party .The accused Mehedi Khan and Abdul Sattar both submitted that they and the complainant used to live in the same street of same village so they were well known to each other and they had rushed to the place of occurrence along with other inhabitants of locality on hearing noise of womenfolk but the complainant party had falsely involved them in the occurrence merely because of suspicion. Further it was pointed out by accused Mehdi Khan and Abdul Sattar that the complainant had himself pronounced their non-participation in the occurrence, but had asked them to disclose that who had come and stayed in their house in the night of occurrence. Third accused Pervaiz Iqbal reiterated the same objection as raised at the time of his identification by Yasir Javed .The accused Mehendi Khan and Abdul Sattar disclosed that they had been the labourer of complainant party who ran business of carpet making so they knew each other very well, however, they have been involved in this case falsely. The accused Pervaiz Iqbal also reiterated his previously recorded objection .
In his cross-examination, this witness has admitted that Abdul Sattar and Mehendi Khan accused raised objections that they were residents of the street where the PWs resided. The PWs did not rebut it .
11. On 24.2.2006, Identification Parade regarding Shabbir Hussain (appellant) was held in the District Jail, Sheikhupura under the supervision of Mr. Ahsan Yaqoob Saqib, Civil Judge/Magistrate Ist Class, Sheikhupura (PW18) for their identification by Muhammad Khalid Pervaiz complainant (PW13), Muhammad Javaid (PW14) and Yasir Javaid (PW15). In his examination-in-chief, this witness has stated that The accused was inquired about any objection, upon which he took an objection that complainant and witnesses were his neighbours, who were well known to him . In the cross-examination, this witness has admitted that The PWs had not disclosed the role of the accused at the time of identification parade . He has further admitted that The PWs did not rebut the objection raised by the accused at the time of identification parade before me .
12. While appearing before the learned trial Court, Muhammad Khalid Pervaiz complainant (PW13) has admitted in his cross-examination that Shabbir @ Sheera (appellant) had visiting terms with Mehendi accused prior to the occurrence and Pervaiz Iqbal (appellant) used to live with Mehendi Khan (appellant) in Maddar Village and he had witnessed twice Pervaiz Iqbal (appellant) while living with Mehendi Khan (appellant). He has further admitted that he was living in village Maddar since his birth with a further admission that Mehendi Khan, Abdul Sattar and Shabbir @ Sheera (appellants) were living in village Maddar since long. Further admission of the complainant was that the house of Shabbir @ Sheera (appellant) was at 5/7/10th number from his house. The complainant has also admitted that he submitted an application but the same was without date and time. He has conceded that he had narrated the descriptions and features of the assailants to his co-villagers and they had mentioned the names of the accused persons but no such co-villager was examined during the trial coupled with the fact that even the said application was not brought on record by the complainant. Relevant portions of the cross-examination of Muhammad Khalid Pervaiz complainant(PW13) read as under:-
Shabbir accused had visiting terms with Mehendi accused prior to the occurrence. Pervaiz accused used to live with Mehendi accused in Maddar village. I had witnessed twice Pervaiz accused while living with Mehendi accused. I am living in village Maddar since long . The house of Shabbir accused is at 5/7/10th number from my house Mehendi accused and his sons were previously known to me by their faces I told the names of accused persons to the Draftsman when he visited the place of occurrence ..It is correct that the names of accused are not mentioned in said application. It is correct that I have not mentioned any date on said application It is correct that the application through which I nominated the accused does not bear any date or time. I have incorporated in that application that I was sure about the accused then. I became sure about the accused as I had narrated the descriptions and features to my co-villagers and they had mentioned the names of the accused .. .
Similarly, in his cross-examination, Muhammad Javaid (PW14) has admitted in the following terms:-
..The house of Mehendi and Abdul Sattar accused is situated 15-20 houses distant from our house .The accused were known to me by faces but not by names, before the occurrence .. .
Likewise, Yasir Javaid (PW15) has admitted in his cross-examination as under:-
.The house of Mehendi accused is at a distance of 12-15 houses from our house. It is incorrect that it is situated at a distance of 5-7 houses from our house. Abdul Sattar accused is son of Mehendi accused. I cannot tell that since when Mehendi, Abdul Sattar and Shabbir accused have been residing in Village Maddar The accused were known to me by faces but not by names prior to the occurrence . .
Now the question arises if, prior to holding the Identification Parades, the complainant and other witnesses knew the accused persons by name or faces then why their names or features and residences were not disclosed in the FIR and why need arose for holding the Identification Parades. The first question has not been answered by the prosecution. The next question whether, in such a situation, there was a need of holding the Identification Parades. Even during the course of holding of Identification Parades, objections were raised by all the appellants in their respective Identification Parades that prior to the holding those parades, the witnesses knew them but the witnesses were not able to rebut those objections. It is settled law that the Identification Parade loses its evidentiary value when it comes on the record that prior to holding of Identification Parade, witnesses of the parade knew the accused persons. To fortify our view, reliance is placed on Khalid @ Khalidi and 2 others v. The State (2012 SCMR 327) , wherein, at page 333, the Hon ble Supreme Court of Pakistan has been pleased to observe that the Identification Parade loses its veracity when it had been admitted by P.W.4 Muhammad Gulzar while appearing in the Court that Sultan was previously known to the witnesses and also known to Mst. Jannat Bibi who had not been produced .
13. It is prosecution s own case that complainant s brother Muhammad Younis (deceased) received firearm injury on his mouth as a result whereof he died at the spot, whereas, it was also the case of the complainant that during the incident, his real brother Muhammad Javaid (PW14) also received firearm injuries on his person at the hands of the assailants. We have noted that Muhammad Javaid (PW14) was medically examined by Dr. Abdul Majeed (PW6) who noted four injuries on his person but has opined that All injuries were caused by blunt weapon . Surprisingly, this doctor was not declared hostile by the prosecution.
14. It was also the case of the complainant that during the occurrence, his father Muhammad Latif also received firearm injuries at the hands of culprits. Muhammad Latif (given up) was medically examined by Dr. Abdul Majeed (PW6) who noted a firearm injury on his person but during the trial, an application was filed on behalf of the complainant with the prayer that this witness be given up being aged about 90 years as he was not in his senses and not competent to depose rationally but the said application was not forwarded by the learned ADPP. In the interim order dated 30.11.2007, the learned trial Court has observed that When complainant himself is not deeming fit to examine Abdul Latif then mere non-forwarding of the application by the ADPP is not of much significance . However, the request of the complainant was allowed and this witness, along with others, was permitted to be given up. But at the same time, we have noted that Dr. Abdul Majeed (PW6) who medically examined this witness and prepared MLR (Exh.PQ), has noted his age as 75 years. Moreover, there is nothing on the record to show that he was unable to give rational answers to the questions/queries and under Article 3 of the Qanun-e-Shahadat Order, 1984, it is for the learned trial Court to determine that a witness was prevented from understanding the questions put to him or he was unable to give rational answers to the questions on account of tender years or extreme old age, but there is no such finding by the learned trial Court. In our view, Muhammad Latif was the most important witness but the prosecution withheld his evidence and in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984, an adverse inference can be drawn against the prosecution to the effect that if Muhammad Latif (given up PW) would have been examined before the learned trial Court, his evidence would have been unfavourable to the prosecution. In this regard, we have fortified our view by the judgment of the Hon ble Supreme Court of Pakistan reported in Muhammad Rafique and others v. The State and others (2010 SCMR 385) . At page 400 of the judgment, the learned apex Court of the country, has been pleased to observe as under:-
It is well settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 can fairly be drawn that if PW Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution . .
15. It has come on record during the course of investigation conducted by Nazir Ahmad SI (PW23) that he inspected the spot on 3.12.2005 and took into possession two crime empties of .12 bore and two crime empties of .44 bore which were taken into possession through memo Exh.PB. It has also come on record that through the statement of Munir Ahmad Retired SI (PW24) that during the course of investigation, on 13.3.2006 Shabbir @ Sheera (appellant) led to the recovery of .44 bore rifle(P5) from an iron box lying beside the northern wall of his residential room which was taken into possession through memo. Exh.PU, whereas, Mehendi Khan (appellant) got recovered a double barrel gun (P6) from an iron box lying beside eastern wall of his residential room which was taken into possession through memo Exh.PV and Abdul Sattar (appellant) got recovered a Pump Action(P7) from an iron box lying besides southern wall of his residential room which the I.O. took into possession through memo. Exh.PW, Pervaiz Iqbal (appellant) led to the recovery of .30 bore pistol (P8) from an iron box lying in the south-eastern corner of his house which the Investigating Officer took into possession through memo Exh.PX. During the course of investigation conducted by Munir Ahmad Retired SI (PW24), on 31.7.2007 Abbas Ali (appellant) led to the recovery of gun (P4) from a cluster of reeds which was taken into possession through memo Exh.PD. The above mentioned crime empties and firearms recovered from the appellants were sent to the Office of the Forensic Science Laboratory but report of the FSL (Exh.PAP) is negative, therefore, this piece of evidence is not helpful to the prosecution.
16. It has come on record through the statement of Nazir Ahmad SI (PW23) that he obtained non-bailable warrants against Shabbir @ Sheera and Abbas Ali (appellants) through application (Exh.PAK) and Proclamation through application (Exh.PAL) which were handed over to Talib Hussain Constable. The said Talib Hussain has appeared before the learned trial Court as PW5 and placed on record copy of warrants of arrest issued against Abbas Ali (appellant) as Exh.PH with his report as Exh.PH/1, copy of warrants of arrest issued against Shabbir @ Sheera (appellant) as Exh.PJ and his report on the said warrants as Exh.PJ/1, whereas, he has also placed on record a copy of proclamation issued against Abbas Ali (appellant) as Exh.PN and his report as Exh.PN/1. He has further placed on record copy of proclamation issued against Shabbir @ Sheera (appellant) as Exh.PO and his report on the same is as Exh.PO/1. But, in our view, this piece of evidence cannot advance the case of the prosecution because if the ocular account falls on the ground, as has happened in this case, then, at the most, abscondence can be considered a supportive piece of evidence. Even otherwise, it is consistent view of the Hon ble Supreme Court of Pakistan that mere abscondence cannot be considered a corroborative piece of evidence to maintain a conviction. To fortify our view, reliance is placed on Rohtas Khan v. The State (2010 SCMR 566) , wherein, at page 571, the Hon ble Supreme Court of Pakistan, has been pleased to observe as under:-
.This Court in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) observed that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence this Court in the case of Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373) observed that abscondence is only a suspicious circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632) this Court observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State (1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999 SCMR 304) it was observed that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali (1992 SCMR 814), Pir Badshah v. State (1985 SCMR 2070) and Amir Gul v. State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained .. .
17. Now we would like to discuss the medical evidence brought on record through the statement of Dr. Abdul Majeed (PW6) who medically examined Muhammad Javaid (PW14) and Muhammad Latif (given up) who prepared their MLRs (Exh.PP and PQ) and noted four and one injuries on their respective persons and the statement of Dr. Sohail Khizer (PW9) conducted the postmortem examination on the dead body of Muhammad Younis (deceased) and noted a firearm wound on the upper part of lip and nose of the said deceased. But it is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury but it cannot connect the accused with the commission of the crime, in absence of any other evidence, therefore, this piece of evidence is of no avail to the prosecution. In this regard reference is invited to the case reported as Ghulam Mustafa and another v. State (2009 SCMR 916) , wherein, at page 527, the Hon ble Supreme Court of Pakistan, has been pleased to observe as under:-
..However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same .
18. It is universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. In Ayub Masih v. The State (PLD 2002 Supreme Court 1048) , at page 1056, while quoting a saying of the Holy Prophet (PBUH) that mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent , and making reference to the maxim, that it is better that ten guilty persons be acquitted rather than one innocent person be convicted , the learned apex Court of our country has been pleased to observe as under:-
It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted . In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent . (emphasis supplied)
19. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the impugned judgment is set aside and the appellants are acquitted from the charges by extending them the benefit of doubt. They are behind the bars and shall be released forthwith if not required to be detained in any other case.
20. However, before parting with the judgment, it is clarified that the observations made in this judgment are relevant only to the extent of the appellants and the case of absconding co-accused shall be decided on the basis of evidence produced before the learned trial Court by the respective parties, in case they are arrested and tried.
Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED .
HBT/M-66/L Appeal allowed.