MUHAMMAD ARIF alias ZAFARI Versus State

ASJAD JAVAID GHURAL, J.--- Through this criminal appeal under section 410, Cr.P.C., appellants Muhammad Arif alias Zafari and Muhammad Balawal have challenged the vires of judgment dated 27.06.2009 passed by the learned Additional Sessions Judge, Sheikhupura in case FIR No.70 dated 25.02.2007, in respect of offences under sections 302, 393 and 34, P.P.C., registered at Police Station, Safdarabad, District Sheikhupura whereby they were convicted and sentenced as under:-

Under sections 302 (c) and 34, P.P.C.

Imprisonment for five years each and to pay the fine of Rs.10,000/- each payable to the legal heirs of the deceased. The amount of fine shall be recoverable as arrears of land revenue each, in default thereof, to further undergo simple imprisonment for three months each.

Under section 393, P.P.C.

Simple imprisonment for two years each and to pay fine of Rs.5,000/- each and in default thereof, to further undergo simple imprisonment for two months each.

They were held entitled to the benefit of section 382-B, Cr.P.C. and their sentences were directed to run concurrently.

2. Complainant Abbas Ali has preferred Criminal Revision No.854 of 2009 seeking enhancement of sentence of the respondents Nos.1 and 2, which is also going to be decided through this common judgment.

3. The prosecution case is that complainant Abbas Ali (PW-2) got registered FIR (Ex.PA/1) against three unknown accused with the allegation that they had murdered his father Muhammad Bashir on 25.02.2007 at 08:30 p.m. at Goband Garh Road near Official Tube Well. Altaf Hussain S.I. (PW-18) arrested three persons and sent them to the judicial lockup for test identification parade which was conducted on 06.06.2009 under the supervision of Mian Shahid Mehmood, Judicial Magistrate (PW-20) wherein the complainant along with Muhammad Mansha identified the appellants being the actual culprits.

4. Dr. Khalid Mehmood (PW-6) held autopsy on the dead body of deceased Muhammad Bashir on 26.02.2007 and observed a firearm wound of entry 1/2 cm x 1/2 cm on the left upper chest with an exit wound 1 cm x 1 cm on the right back of chest.

The cause of death was due to damaged skin, pleura, left lung, head and right lung and liver due to injury No.1 which were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was immediate, whereas between death and post mortem examination was 12-hours.

5. At the commencement of the trial, learned trial Court had framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.

6. The prosecution examined 20-witnesses besides the reports of Chemical Examiner, the report of Serologist and that of the Punjab Forensic Science Agency (Ex.PN, Ex.PP and Ex.PQ). The appellants, in their statements recorded under section 342, Cr.P.C., had denied and controverted all the allegations of fact levelled against them. The appellants neither opted to make statement under section 340(2), Cr.P.C. nor produced any witness in their defence.

7. Learned trial Court, upon conclusion of the trial convicted and sentenced the appellants, as stated above. Hence, this criminal appeal as well as the connected revision petition.

8. It would not be out of place to mention here that the appellants Muhammad Arif alias Zafari and Muhammad Balawal were tried separately and convicted and sentenced accordingly.

9. Learned counsel for the appellants have submitted in unison that the appellants are quite innocent and had nothing to do with the alleged occurrence; that the appellants were introduced as accused in this case through supplementary statement made by the complainant at belated stage and that too without mentioning any source of information with specific role; that no eye-witness has been mentioned in the crime report but after consultation and deliberation the names of the claimed eye-witnesses were introduced subsequently; that the occurrence had taken place at Gobandh Garh Road, about 3/4 acres away from village Abadi where the claimed eye-witnesses could not establish their presence in the darkness of night; that no source of light has been mentioned to justify the identification of the appellants in any manner; that the eye-witnesses made an abortive attempt to prove their presence at the venue of occurrence in the supplementary statement, which was quite different and deviating from the previous stance taken by the complainant in the crime report; that Zaheer Abbas (PW-16) had deposed that at the time of occurrence he and the other witnesses of ocular account were present in their house, meaning thereby none of them was accompanying the deceased at the relevant time; that according to the complainant's version all the three accused were wrapped with "Chadar" and after committing the murder of his father, they succeeded to flee away; that the identification parade conducted under the supervision of learned Magistrate in the jail premises was a futile exercise as the accused and the complainant party belonging to same village; that the prosecution has failed to prove the charge against the appellant beyond shadow of reasonable doubt. At the end, prayer for acceptance of the appeal has been made.

10. Conversely, learned District Public Prosecutor appearing for the State assisted by the learned counsel for the complainant has vehemently contended that both the eye-witnesses were very much available at the crime scene and they identified the assailants at the spot; that the eye-witnesses remained consistent inter-se coupled with the medical evidence; that the prosecution has successfully proved the charge of robbery and murder against the appellants and thus, they did not deserve any leniency by this Court. Finally, he has prayed for dismissal of the appeal and enhancement of the appellants' sentence to the capital punishment.

11. I have heard learned counsel for the appellants, learned District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and perused the record.

12. Complainant Abbas Ali (PW-2) got lodged the complaint against unknown accused persons, who waylaid the complainant and his father and one of them caused fire arm injury at the chest of his father resulting into his death. It was further alleged that the accused had wrapped Chadars, which clearly shows that none of them could be identified and subsequently the complainant as well as Mansha (PW-1) got recorded their statements under section 161, Cr.P.C. on 07.05.2007 after 2-1/2 months, introducing another story claiming that they remained in search of the accused of their own and ultimately found that appellants Muhammad Arif and Balawal and their co-accused Mudassar alias Mudassari had committed this occurrence but no source of information had been furnished as to how they reached at the conclusion that these appellants were the real culprits in the murder in issue. During their depositions before the learned trial court, they were confronted with their statements recorded under section 161, Cr.P.C. on 07.05.2007. They made material improvements to the effect that Muhammad Mansha was accompanying the deceased at the relevant time, the complainant and his father were coming to Mandi Safdarabad but the accused persons stopped and directed them to hand over their belongings, the deceased resisted, upon which the person sitting at the rear seat alighted from the motorcycle and made a straight fire shot, which hit at the chest of the deceased, one of the accused persons threatened them that if they intervened they will be murdered at the spot. All these facts were confronted with their previous statements, where it was not so recorded. If these facts are excluded from the statements of the witnesses, then nothing is left to be discussed for implicating the appellants in the murder in issue.

13. Learned counsel for the complainant has much emphasis that the appellants were identified during identification parade conducted under the supervision of Mian Shahid Mehmood, Magistrate (PW-20) in the jail premises on 30.05.2007 but it is an admitted position that all the accused persons and the complainant party were belonging to the same village and they were already known to each other. With this backdrop, the proceedings of identification parade and that too joint one, were nothing but a futile exercise on part of the prosecution and the same was conducted in order to create evidence against the appellants. The law is well settled by now that the practice of joint test identification parade, in one go, has no worth reliance. We seek guidance from esteemed judgment of august Supreme Court of Pakistan rendered in case titled "Gulfam and another v. The State (2017 SCMR 1189)" wherein it has been held as under:-

"The prosecution had maintained that the present appellants had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in which both the present appellants had been made to stand along with many other dummies. Holding of joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment----"

14. The occurrence had taken place at the Chowk 3/4 acres away from the village Abadi and no source of light was mentioned therein. The place of occurrence was not electrified and no source of light was available there. Keeping in view time and situation of the alleged occurrence, the complainant's first statement seems to be true that three unknown accused persons with muffled faces committed this occurrence and there was no occasion for him to identify them and even at subsequent stage during identification parade. In absence of source of light all the proceedings qua the identification parade are straightway discarded.

15. It is the prosecution's own stance that the complainant and his deceased father were intercepted by the appellants with the intention of robbery, they were directed to hand over their belongings to them but nothing could be looted at the venue of occurrence and that is why no looted article was recovered from them during investigation.

16. Gathering all the facts and circumstances of the case, I am of the considered view that the prosecution has not been able to substantiate the charge of dacoity with murder against the appellants through cogent reliable and confidence inspiring evidence. The complainant initially got recorded his statement under section 154, Cr.P.C. against unknown accused persons, who had covered their faces with Chadar, meaning thereby, they could not be identified at any subsequent stage. Muhammad Mansha (PW-1) was introduced much later as an eye-witness, who was not initially mentioned in the crime report. The subsequent development of the prosecution on 07.05.2007 and their improvements at the time of their depositions before the learned trial court could not be made basis to maintain the conviction and sentence of the appellants. It was a dark-night occurrence and in absence of any source of light, the identity of the culprits was not possible. The appellants were already known to the complainant party being residents of the same village. The practice of test identification parade and that too joint one, was nothing but a futile exercise. Nothing could be recovered from the possession of the appellants during investigation. The medical evidence shows that the deceased met with unnatural death by firearm injury but the same is not sufficient to raise finger towards any specific culprit. I have reached at the irresistible conclusion that the prosecution has miserably failed to establish the charge of homicidal death against the appellants beyond shadow of reasonable doubt.

17. The epitome of above discussion is that the appeal in hand is allowed, the conviction and sentence of the appellants are set aside and they are acquitted of the charge by giving the benefit of doubt to them. They are on bail, their sureties are discharged from the liabilities.

18. For the reasons recorded hereinabove, Criminal Revision No.854 of 2009 seeking enhancement of sentence of respondents Nos.1 and 2 is without any merit, the same stands dismissed in limine.

JK/M-162/L Appeal allowed.