2017 PCrLJN 174

GHAZANFAR alias MUNOON Versus State

Citation2017 PCrLJN 174

CourtLahore High Court

Judge(s)Sayyed Mazahar Ali Akbar Naqvi and Syed Shahbaz Ali Rizvi

SAYYED MAZAHAR ALI AKBAR NAQVI, J.--- Ghazanfar alias Munoon son of Muhammad Waris, caste Maiken, resident of Habib Pur Kangra, Tehsil Sahiwal, District Sargodha (appellant in Crl. Appeal No.2242/2010) and Muhammad Irfan alias Jaji son of Zafar Hayat, caste Sial, resident of mauza Sheikh, Tehsil Sahiwal, District Sargodha (appellant in Crl. Appeal No.2252/2010) along with Khizar Hayat, co-accused (since proclaimed offender) being involved in case FIR No.396, dated 13.09.2008, offence under sections 302, 392, 411, 34, P.P.C., registered with Police Station, Sahiwal, District Sargodha, were tried by the learned Additional Sessions Judge, Sargodha. The learned trial court seized with the matter in terms of judgment 31.08.2010 and convicted/sentenced the appellants as under:-

Sr. #

Name of the appellant

Conviction and sentence

(1)

Ghazanfar alias Munoon

> Under section 302(b), P.P.C., sentenced to death with direction to pay Rs.1,00,000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof to undergo S.I. for six months. > Under section 392, P.P.C., sentenced to seven years' R.I. with fine of Rs.10,000/-. In case of default in payment of the same, to further undergo three months' S.I. Benefit of section 382-B, Cr.P.C. was extended in favour of the accused.

(2)

Muhammad Irfan alias Jaji

2. Feeling aggrieved by the judgment of the learned trial court, Ghazanfar alias Munoon (appellant) has assailed his conviction and sentence through filing Crl. Appeal No.2242/2010 whereas Muhammad Irfan alias Jaji (appellant) preferred Crl. Appeal No.2252/10, while the learned trial court forwarded Murder Reference No.506/2010 for confirmation of death sentence in terms of section 374, Cr.P.C., inflicted upon Ghazanfar alias Munoon as well as Muhammad Irfan alias Jaji (convicts). As all these matters are arising out of one and the same judgment of the learned trial court, therefore, the same are being disposed of through this single judgment.

3. Prosecution story as contained in the FIR (Exh.PF) lodged on the statement of Aziz ur Rehman, complainant (PW-7) is that he is resident of Ahli Nizam and a cultivator by profession. On 13.09.2008 they had a turn of water. The elder brother of the complainant Abdul Rehman and Muhammad Sher son of Salhoon Muhammad, Ahmad Khan son of Mamand, caste Kalyar, residents of Dera were going to their dera on motorcycle CD-70 bearing No.8907/SKA to irrigate their land. The complainant was also going behind them at some distance on motorcycle. When his brother reached near Saim Nala Dera Qadeem at about 9:00 p.m. three unknown accused persons armed with firearms were standing there and motorcycle CD/70 red colour was also standing beside them. One accused person was of light black colour (sanwala), height 5/6 feet, aged about 30/32 years, armed with rifle. The other person was of wheatish colour, height 5 feet, smart body, aged about 20/22 years armed with pistol .30-bore. The third person was of wheatish colour, height about 5-feet 2-inches, aged about 21/22 years, empty handed. All the accused persons were wearing shalwar qameez and they could be recognized on coming across. They signaled to stop motorcycle on gun point, upon which the brother of the complainant along with others estopped the motorcycle. The complainant also reached over there. The accused persons also signaled to stop him, upon which the complainant also stopped. The person who was empty handed took search of Muhammad Sher and took out Rs.500/- and a mobile phone Nokia 1112 forcibly from his pocket. Thereafter he took search of the brother of the complainant and took out Rs.2000/- along with mobile phone 1100 valuing Rs.4500/- from his pocket. In the meanwhile the brother of the complainant Abdul Rehman showed resistance, upon which the accused person with light black colour (sanwla) having height of 5/6 feet, armed with rifle, made straight fire shot upon the brother of the complainant, which hit at the back of head of the complainant, due to which he fell down. They did not go near due to fear of death. The accused persons went towards north side on bank of Saim Nala while riding on motorcycle. Besides the complainant, the occurrence was witnessed by Muhammad Sher and Ahmad Khan. They attended the brother of the complainant, but he died at the spot due to fire shot.

4. On the same day, i.e. on 13.09.2008, Aziz ur Rehman, complainant (PW-7) reached at the police station and got recorded his statement to Zulifqar Ali Shah, S.I. (PW-9), who reduced the same into writing without any addition or omission. The complainant signed the same in token of its correctness. On the basis of which, Zulifqar Ali Shah, SI/Investigating Officer (PW-9) recorded formal FIR (Exh.PF). Thereafter the Investigating Officer went to the place of occurrence, found the dead body of Abdul Rehman (deceased) lying at the spot, prepared injury statement (Exh.PB) and inquest report (Exh.PC). The Investigating Officer handed over the dead body of Abdul Rehman (deceased) along with relevant papers to Muhammad Ahsan Ullah, 924/C for escorting the same to the mortuary for postmortem examination upon his dead body. The Investigating Officer prepared rough site plan of the place of occurrence (Exh.PK) and collected bloodstained earth from the spot vide recovery memo (Exh.PG). On 14.09.2008, Muhammad Ahsan Ullah, 924/C, produced postmortem report along with last worn clothes of the deceased i.e. qameez (P-1), shalwar (P-2) which were taken into possession by the Investigating Officer vide recovery memo (Exh. PD). The Investigating Officer recorded statements of the PWs under section 161, Cr.P.C. On 19.09.2008, the Investigating Officer summoned Muhammad Javaid Patwari (PW-6) who on the pointations of the prosecution witnesses and directions of the Investigating Officer took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PE and Exh.PE/1) on 22.09.2008. On 03.10.2008, the Investigating Officer arrested Muhammad Irfan alias Jajji and Ghazanfar (accused) in this case and sent them to judicial lock-up on 04.10.2009. On 07.10.2008, the Investigating Officer submitted application before the learned Illaqa Magistrate for conducting test identification parade. On 08.10.2008, Hafiz Ahmad Tariq, Special Judicial Magistrate (PW-10) carried out test identification parade in District Jail, Sargodha. On 09.10.2008, the Investigating Officer submitted an application before the learned Illaqa Magistrate for summoning the accused, who were summoned for 10.10.2008. The Investigating Officer obtained their physical remand from the learned Illaqa Magistrate. On 12.10.2008, during the course of investigation after making disclosure, the accused got recovered rifle (P 3) along with 50 bullets (P-4/1-50) which were taken into possession by the Investigating Officer vide recovery memo (Exh.PH). On the same day, Ghazanfar (accused) also got recorded two mobile phones (P6/1-2) and Rs.2500/- from his cattle-shed, which were taken into possession by the Investigating Officer vide recovery memo (Exh.P.1). The currency notes are (Exh.P-7, Exh.P-8 and Exh.P-9). The Investigating Officer prepared rough site plan of place of recovery (Exh.P1/1). On the same day, Muhammad Irfan alias Jaji (accused) got recovered gun pump action (P-10) and bag (P-11) containing 10-cartridges (P-12/1-10), which were taken into possession by the Investigating Officer vide recovery memo (Exh.PJ). The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PJ/1). The Investigating Officer recorded statements of the PWs under section 161, Cr.P.C. and sent the accused to judicial lock-up.

5. During the course of investigation, having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. while placing their names in column No. 3 and sent the same to the Court of Session en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. On 25.02.2009, learned Additional Sessions Judge, Sargodha, formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as ten (10) prosecution witnesses.

6. Ocular account in this case has come out from the statements of Aziz ur Rehman, complainant (PW-7), and Ahmad Khan (PW-8). Muhammad Javaid, Patwari (PW-6)) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Zulifqar Ali Shah, S.I. (PW-9).

On 14.09.2008 at 3:00 a.m. Dr. Nazir Ahmad (PW-1) had conducted postmortem examination upon the dead body of Abdul Rehman (deceased) and observed following injuries: -

1. A firearm wound of entry 2 cm x 2 cm on the left side of head 5 cm above the left ear with inverted margin.

2. A firearm wound of exit 8 cm x 5 cm on the left side of the head 2 cm below injury No.1 with everted margins. Left mastoid bone and upper half of the left ear was shattered. Brain matter was coming out through the wound".

OPINION.

In my opinion death in this case had occurred due to injury No.1 leading to brain damage, shock and death. Injury No.1 was sufficient to cause death in ordinary course of life. All injuries were ante mortem and inflicted by firearm. Probable time between injuries and death was 2 to 3 minutes and between death and post mortem was about 4 to 6 hours".

7. On 11.06.2010, learned ADPP after tendering in evidence report of Chemical Examiner (Exh.PQ), report of Serologist (Exh.PR) and previous record of Muhammad Irfan alias Jaji and Ghazanfar alias Manoo accused (Exh. PS) closed the prosecution evidence.

8. The appellants were examined under section 342, Cr.P.C., wherein they opted not to appear as witness of their own in terms of section 340(2), Cr.P.C. in disproof of allegations levelled against them in the prosecution evidence. however opted to adduce evidence in their defence. While replying to the question why this case against him and why the PWs deposed against him, Ghazanfar alias Manoo (appellant) made following deposition:-

"The PWs have made false statement and involved me in this case due to enmity and party politician".

While replying to the similar question, Muhammad Irfan alias Jaji (appellant) deposed:-

"Our opponents got me implicated in this case. The PWs are interested".

In defence evidence, Ghazanfar (accused) produced copy of register haqdaran zamin for the year 2004-2005 (Exh.DG) whereas Irfan (accused) produced certified copy of wireless message (Exh.DC/1-2), certified copy of petition (Exh.DD) along with report of police (Exh.DE), report prepared on the orders of RPO (Mark-A), disclosure made by Mukhtar Akhtar, etc. accused (Mark-B/1-3) and cutting of newspaper (Mark-C/1-4).

9. Learned trial court after evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt against the appellants resulting into their conviction in the afore-stated terms.

10. Learned counsel for the appellants while opening his arguments contended that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to the real facts of the case, which even otherwise is in sheer violation to the evidence available on the record. It was argued that the learned trial court had missed the vital aspects of the case while passing conviction against the appellants. Learned counsel went on arguing that it is an admitted fact that the occurrence had taken place in darkness, but the prosecution witnesses had claimed to have seen the occurrence without mentioning any source of light. It was argued that the complainant had got lodged the instant case against unknown accused persons while giving their body features in the absence of mentioning any source of light which does not sound sense. It was submitted that the question that amongst three accused persons, who had caused fire shot to the deceased, is still uncertain and the same was resolved by the learned trial court without assigning any cogent reasoning. Learned counsel contended that (Exh.DA) which was recorded by Zulifqar Ali Shah, S.I./Investigating Officer (PW-9) on 19.09.2008 had altogether been denied by the prosecution witnesses of ocular account while appearing before the learned trial court. It was argued that the test identification parade was carried out after the arrest of the appellants but the same cannot be given any legal sanctity as the prosecution version qua identification of the accused at the scene of occurrence is not beyond reasonable doubt. Learned counsel contended that Muhammad Sher, real brother of the complainant as well as the deceased, who was an eye-witness of the occurrence, was withheld by the prosecution being unnecessary and if he would have been produced before the learned trial court, it was obvious that he would have not supported the prosecution version. Learned counsel vehemently argued that as per disclosure report (Mark-B/1-3), it is mentioned that Muhammad Akhtar, Ameer Mukhtar and Muhammad Ijaz, had made disclosure that they had committed the instant occurrence. It was contended that recovery of rifle from Ghazanfar alias Manoon (appellant) and recovery of gun pump action from Muhammad Irfan alias Jajji (appellant) along with mobile phones, etc. had been planted by the Investigating Officer only in order to strengthen the prosecution case. It was submitted that recovery of firearms from the appellants would be of no avail to the prosecution because no crime empty was taken into possession by the Investigating Officer from the spot and as such no report of Forensic Science Laboratory is available on the record. As a matter of fact, learned counsel argued that no incriminating material is available on the record to connect the appellants with the crime alleged. In such backdrop, it was contended that the appellants are entitled to their clean acquittal from the instant case.

11. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellants. It was argued that the appellants had rightly been identified by the prosecution witnesses during test identification parade. It was submitted that the occurrence was witnessed by the prosecution witnesses in the light of motorcycle. It was contended that the ocular account in this case is fully corroborated by medical evidence. It was submitted that recovery of firearms along with mobile phones and cash had been made from the appellants which sufficiently connect them with the crime alleged. It was argued that the complainant had no previous enmity with the accused persons to falsely implicate them in this case. Added that both the appellants were found guilty during the course of investigation as such their names were placed in column No.3 of the report prepared in terms of section 173, Cr.P.C. It was finally argued that in view of overwhelming material brought on record the learned trial court while advancing cogent reasons, convicted the appellants, therefore, the appellants do not deserve any leniency.

12. We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellants, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.

13. It is cordial principle of law that each criminal case has its own peculiar facts and circumstances and same has to be weighed on the judicial parlance while taking into consideration whether it meets the satisfaction of a man of ordinary prudence. It is very unfortunate occurrence in which brother of the complainant was done to death by the accused persons during the course of committing dacoity only due to the resistance shown by him. The stamp of injuries on the person of the deceased can only reflect the cause of death, severity of injuries and weapon used during the occurrence, but the same cannot disclose the name of assailants. There is no denial to this fact that the occurrence in this case had taken place in darkness at 9:00 p.m. The complainant had got lodged the instant case against unknown accused persons. He had not mentioned the source of light in the crime report, however astonishingly he had given the body features of the accused persons who allegedly committed the occurrence. The complainant had even mentioned the colours, ages, heights as well as the firearms with which they were armed with at the time of occurrence. Such stance of the complainant taken in the crime report in the absence of source of light itself speaks volumes qua doubtfulness of the prosecution version. However, during the course of trial, Ahmad Khan, eye-witness, while appearing in the witness box as (PW-8) by way of making dishonest improvements had claimed that he had seen the height of the accused in the light of motorcycle. So much so, Aziz ur Rehman, complainant (PW 7) had stated that he was passing from the place of occurrence by chance when he saw the occurrence, but no such aspect is given in the crime report. In the dictum of law laid down by august Supreme Court of Pakistan in the case of Muhammad Rafique and others v. The State and others (2010 SCMR 385), it has been held that the statement of any witness improved at trial is not worth relying rather such improvement creates serious doubts about its veracity and credibility. Similar view was held in another case reported as Saeed Ahmed Shah v. The State (1993 SCMR 550).

14. Another salient aspect of the case in hand is that stance of the prosecution witnesses is that they were told the names of the accused persons by the Judicial Magistrate after the test identification parade. It is an admitted fact that the occurrence in this case had taken place on 13.09.2008 whereas the test identification parade was carried out on 08.10.2008. However, while appearing in the witness box as (PW-9), Zulifqar Ali Shah, SI/Investigating Officer had stated that Aziz ur Rehman, complainant (PW-7) had made statement (Exh.DA) with the claim that some persons had come to him for condolence and they had told the names of present accused. The relevant portion of his statement reads as under:-

"---On 19.09.2008, I recorded the statement of Aziz ur Rehman Exh.DA. The said statement is in the case diaries and is not a separate statement under section 161, Cr.P.C. It was informal. According to Exh.DA some persons had come to the Aziz ur Rehman for condolence and they had told the names of present accused---".

Such view of the matter reflects that the prosecution witnesses were aware about the accused persons even prior to carrying out of test identification parade leaving a question mark on the authenticity of test identification parade.

15. Moreover, as per disclosure report (Mark-B/1-3), Muhammad Akhtar, Ameer Mukhtar and Muhammad Ijaz, (some other accused, not put to trial) had made disclosure that they had committed the instant occurrence. It is worth mentioning here that the said report had duly been sent by the DSP/SDPO, Sahilwal, to the Regional Police Officer on 08.05.2009. If such circumstances are taken into consideration conjointly with the other attending circumstances of the instant case, it makes presence of prosecution witnesses at the spot at the relevant time doubtful. It is settled principle of law that ocular evidence should be excluded from consideration when presence of eye-witnesses on the spot is doubtful. Reliance in this regard is placed upon the dictum of law laid down in the case of Ghulam Mustafa v. The State (1995 SCMR 1735), wherein it has been held as under:-

"Ocular evidence should be excluded from consideration when there is no judicial certainty or circumstantial guarantee about presence of eye-witnesses on spot".

16. Another important aspect of this case is that evidence of Muhammad Sher, eye-witnesses, who is real brother of the complainant as well as the deceased was withheld by the prosecution for the reasons best known to it. In such backdrop, argument of learned counsel for the appellants that if he would have been produced before the court, it was obvious that he would not have supported the prosecution version seems plausible. In such circumstances, the prosecution case is squarely hit by the Article 129(g) of Qanun-e-Shahadat Order, 1984, as is held by august Supreme Court of Pakistan in the case of Lal Khan v. The State (2006 SCMR 1846) in the following terms:-

----Art. 129(g), Criminal trial---Withholding natural witness---Presumption---Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution---Prosecution, in such eventuality must not be in a position to avoid the consequence".

As far as the recovery of rifle from Ghazanfar alias Manoon (appellant) and recovery of gun pump action from Muhammad Irfan (appellant) is concerned. The same would not advance the prosecution case as no crime empty was taken into possession by the Investigating officer from the place of occurrence and as such no report of Forensic Science Laboratory is available on the record to substantiate stance of the prosecution. So far as recovery of mobile phone belonging to Muhammad Sher, PW, is concerned. It is worth mentioning here that said PW was not produced before the learned trial court during trial proceedings.

17. In the instant case after examining the prosecution case from all corners and evaluating it on the touchstone of interpretation of dictum of "safe administration of criminal justice" this Court has arrived at the conclusion that in this case the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt.

18. Moreover, it is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable doubt in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v. The State" (1995 SCMR 1345) "Riaz Masih alias Mithoo v. The State" (1995 SCMR 1730) and "Muhammad Akram v. The State" (2009 SCMR 230). In the case of "Tariq Pervez v. The State" (1995 SCMR 1345), the august Supreme Court of Pakistan has held as under:-

"---Art.4---Benefit of doubt, grant of---For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---1f a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".

19. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to substantiate its case against the appellants to the hilt and the learned trial court was not justified in convicting them while basing upon such untrustworthy/ uncorroborated evidence, which even otherwise is full of material contradictions especially doubtful presence of the prosecution witnesses at the place of occurrence at the relevant time and other circumstances discussed supra, and conviction passed by the learned trial court in the circumstances is against all cannons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 31.08.2010, Crl. Appeal No.2242/2010 filed by Ghazanfar alias Munoon (appellant) and Crl. Appeal No.2252/2010 filed by Muhammad Irfan alias Jaji (appellant) is ACCEPTED IN TOTO. Consequently they are ordered to be acquitted of the charge in this case. They be released forthwith if not required to be detained in any other case.

Murder Reference No.506/2010 forwarded by the learned trial court for confirmation of sentence of death inflicted upon Ghazanfar alias Munoon and Muhammad Irfan alias Jaji (convicts) fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.

JK/G-24/L Appeal allowed.