AMJAD SAEED alias DOCTOR AMJAD Versus State
AFTAB AHMED GORAR, J.--- By this common judgment I would like to dispose of two Criminal Appeals cited supra because same are arising out of one and the same crime. Appellants Amjad Saeed alias Doctor Amjad son of Khalid Saeed and Ismail Shah son of Dilbar Khan Mian were found guilty of offences fall under sections 147, 148, 149, 324 and 302, P.P.C.; whereby appellants have been convicted under section 265-H(ii), Cr.P.C. For offence punishable under section 147, P.P.C., appellants were sentenced to undergo rigorous imprisonment for two years; for offence punishable under section 148, P.P.C. appellants were sentenced to suffer rigorous imprisonment for three years; for offence punishable under section 324, P.P.C.; appellants were sentenced to undergo rigorous imprisonment for ten years with fine of Rs.30,000/- and further directed appellants to pay Rs.25,000/- each as Daman to injured Dua Zohra, Mohammad Ali, Shamroz, Jahangir, Mohammad Ishaque, Noor Hassan and Mohammad Naveed; for offence punishable under section 302, P.P.C.; appellants were sentenced to undergo imprisonment for life by committing murder of deceased Mohammad Kamran son of Aziz Ahmed, Mohammad Kamran son of Mohammad Saeed, Mohammad Jawaid, Rashid and Waqar Ahmed, appellants were directed to pay fine of Rs.50,000/- each; appellants were also directed to pay compensation as provided under section 544-A, Cr.P.C. of Rs.300.000/- each which is to be paid to the legal heirs of every deceased Mohammad Kamran son of Aziz Ahmed, Mohammad Kamran son of Mohammad Saeed, Mohammad Jawaid, Rashid and Waqar Ahmed.
2. In a nutshell the prosecution story as is envisaged in the FIR is that complainant Muhammad Nazeer recorded his statement under section 154, Cr.P.C. alleging therein that:-
"On 13-01-2011 at about 11.40 p.m., he was driving bus bearing registration No.MNB-1610 of route No.1-D, when bus reached Bakra Perri near City Hospital, all of sudden six and seven young persons wearing shalwar kameez and pant shirts came; they all were armed with T.T. pistols, their faces were muffled; stopped the bus and dragged him out from the bus and some boys entered in the bus through back side gate whereas some boys entered from the ladies gate; they all started firing with intention to kill; during the course of firing he ran away and stood in hidden position; after continuing of five six minutes firing; they alighted from bus and went away, in the meanwhile police and ambulances reached there; in this incident about six persons died and fourteen persons were injured."
3. After usual recourse, Investigation Officer, submitted charge sheet before the competent court under sections 147, 148, 149, 324, 302 and 34, P.P.C. Charge has been framed at Ex.2 against the appellant. To the charge accused pleaded not guilty and claims trial vide their plea at Ex.2 and 2/B respectively.
4. Prosecution in order to establish the guilt of the accused examined PW-1 driver Muhammad Nazeer at Ex.3, who being complainant has produced his 154, Cr.P.C. at Ex.3/A, FIR at Ex.3/B and memo of site inspection at Ex.3/C; PW-2 Naeem Ameen at Ex.5 who produced two memo of inspection of dead bodies and two inquest reports of deceased at Ex.5/A, 5/B, 5/C and 5/D and receipt of the dead bodies at Ex.5/E; PW-3 Tanveer Anwar at Ex.7 who is brother of deceased Rashid and an eye-witness of the incident, and co-mushir of site inspection memo produced the same at Ex.3/C; PW-4 Muhammad Ali at Ex.8 who was injured and eye-witness; PW-5 Shamroz Alam at Ex.9 he was also injured and eye-witness; PW-6 Allauddin at Ex.10 an eye-witness of the incident and produced memo of ITP at Ex.10/A; PW-7 Muhammad Sheeraz at Ex.11 who being an eye-witness produced memo of ITP at Ex.11/A and PW-8 Shah Ghulam Ahmed at Ex.12 an eye-witness of the incident produced memo of ITP at Ex.12/A thereafter learned DDPP closed the prosecution side vide Ex.5.
5. After the evidence absconding accused, Ameer Zaib alias Bawani son of Khan Zada was arrested; who joined the trial compliance of section 265-C were also carried out subsequently amended charge was framed against the accused Amjad Saeed alias Doctor Amjad, Ismail Shah and Ameer Zaib alias Bawani to the charge accused pleaded not guilty and claimed trial vide their plea at Ex.14/A, 14/B and 14/C respectively. Accused Anwar Hussain and Umair had been acquitted from the charge under section 265-K, Cr.P.C. by the learned court of IV-Additional Sessions Judge, Karachi West, vide order dated 26-03-2012; again accused Ameer Zaib alias Bawani was also acquitted from the charge under section 265-K, Cr.P.C. by the learned IV-Additional Sessions Judge, Karachi West vide order dated 19-11-2012 thereafter after framing of amended charge; prosecution has again examined PW-1 PC lintiaz Hussain at Ex.l5 who produced carbon copy of memo of dead body inspection of another deceased Kamran at Ex.15/A. PW-2 PC Muhammad Sabir at Ex.16, who produced memo of formal arrest of both accused at Ex.l6/A, PW-3 complainant Muhammad Nazeer at Ex.17, PW-4 Judicial Magistrate Muhammad Afzal at Ex.18 who testified memos of ITP already produced; PW-5 Inspector Muhammad. Naeem at Ex.19, who produced nine medico legal certificates as Ex.19/A/1 to 19/A/9; he also produced five post mortem report of deceased persons from Ex.19/B/1 to 19/B/5; who also produced cause of death of deceased Kaman and another inquest report of the deceased Waqar Ahmed at Ex.19/C and 19/D and also produced entry at Ex.19/E. and two FSL reports at Ex.19/F and 19/G; PW-6 MLO Dr. Qarar Ahmed at Ex.21, who produced carbon copy of cause of death of deceased Waqar Ahmed at Ex.21/A; PW-8 MLO Dr. Sajjad Ali at Ex.23, who testified Ex.19/A/l to 19/A/9 already on record, thereafter learned DDPP closed the prosecution side vide statement at Ex.24.
6. Statement of accused were recorded under section 342, Cr.P.C. at Ex.25 and Ex.26 respectively wherein appellants denied the charge levelled against them and claims to be innocent and but appellants did not choice to examine themselves on oath under section 340(2), Cr.P.C. in disprove of the charge or wishes to produce any defence witnesses in their defence though an opportunity was provided to the appellants.
7. Syed Zakir Hussain, advocate representing the appellants contended that appellants are quite innocent instead learned trial Court at his own wisdom awarded punishment to the appellants even otherwise the identification parade is defective in its natures and the ingredients thereof are missing as is provided under section 164, Cr.P.C.; per learned counsel the crime empties as alleged have been recovered from the venue of occurrence would not match with the alleged crime weapon: per learned counsel the conclusion of the learned trial Court is based upon conjectures and surmises and is delivered in a hasty manner and had not appreciated the evidences as a whole and in failure thereof appellants are entitled for acquittal extending them benefit of doubt: per learned counsel very statements recorded under section 161, Cr.P.C. are belated of twenty and twenty five days after the alleged incident; per learned counsel trial Court has failed to apply judicious mind; per learned counsel the identification parade has lost its evidentiary value because it was held after seven days after arrest of the accused; per learned counsel learned Magistrate has failed to issue certificate of so-called identification parade; per learned counsel in the judgment as is delivered by the learned trial Court carries no justification and there are series of material illegalities and irregularities while appreciating the evidences of entire prosecution witnesses; per learned counsel in such a view of glaring contradiction exists from the evidences of prosecution witnesses would ultimately covered the case of the appellants within the domain of benefit of doubt; per learned counsel the appellants crave leave of this Court in interfering with the findings delivered by the learned trial Court in the impugned judgment; per learned counsel the alleged vehicle i.e. Bus which has not been produced before the trial Court; per learned counsel the judgment of the learned trial Court is not sustainable under the Law; per learned counsel the impugned judgment is based upon misreading and non-reading of the evidences on record; per learned counsel no case against the appellants have been proved; per learned counsel there are series of material contradictions which ultimately entail this Court for acquittal of the appellants; per learned counsel there is no direct, cogent, reliable and trustworthy evidence available on record, therefore, in absentia of all these aspects of the case the appellants are liable to be acquitted; per learned counsel in the statement recorded under section 342, Cr.P.C. appellants have not been provided fair opportunity of inserting questions which led the trial Court for conviction of the appellants but all the material questions are missing in the statement recorded under section 342, Cr.P.C.; lastly learned counsel for the appellants prayed that the impugned judgment may be set aside and the appellants may be acquitted from the charged offence.
Learned counsel for the appellants has relied upon the case law reported as 2017 SCMR 486, 1998 SCMR 570, (1) 1971 Law Notes 202, 1974 PCr.LJ 400, 2012 SCMR 82, 2011 SCMR 527, 2011 SCMR 537, 2011 SCMR 563, 2009 SCMR 84, SBLR 2017 Sindh 516, 2017 SCMR 1710, 1971 SCMR 357, 2017 SCMR 1601, 2017 SCMR 986.
8. Seema Zaidi, Deputy Prosecutor General Sindh supported the impugned judgment delivered by the learned trial Court; per learned DPG the learned trial Court has rightly convicted the appellants while appreciating all the evidences so brought on record by the prosecution witnesses; per learned DPG there is sufficient material collected by the prosecution which prima facie connect the appellants with the commission of alleged offence: per learned DPG there are no material irregularities or illegalities in the judgment delivered by the learned trial Court; per learned DPG the impugned judgment is sound reasoning and would not warrant any interference by this Court; per learned DPG the appellants did not deserve any concession of acquittal; per learned counsel the judgment delivered by the learned trial Court may be up held.
9. Heard and perused.
10. It is now by settled provisions of criminal law that this Court has to reappraise the entire evidence For sale administration of justice. I would like to introduce some piece of evidence of PW-1 Nazeer Ahmed at Ex.3 who being complainant of the case and driver of the Bus which was being driven by him.
"I was going to Habib Bank to Banaras as a Driver of 1-D bus. About 6/7 armed persons stopped the bus and one get me off from the bus on gun point. All culprits were muffled faces. The accused persons present in Court are not who fired upon me as they were muffled faces.
In the cross-examination this witness admitted that:-
"This incident took place between 11 and 12 in the night. The date was 13 of last years. The firing was remained continue for 4/5 minutes. I was watching the firing hiddenly but I cannot identify the culprits. I fled away before the culprits from the place of incident. I do not remember on how many pages police obtained my signatures. The statement recorded by police was not explained to me. 6 empties recovered as per my statement was not confronted to me. No blood stained mud was collected in my presence."
PW-3 Tanveer Ahmed (eye-witness and brother of injured Muhammad Rashid), in his examination in chief deposed as follows:-
"When Bus reach near catchi para we heard firing at the same time my brother received fire arm injury in his person. I grappled him. My brother told to me he will going die due to firearm injury as such all blood from his body spread on me. Due to such I became unconscious when I came sense at hospital found Tahir and brother were in the Hospital. I enquired from them about Mohammad Rashid they disclosed he murdered due to this shock I remain unconscious. Again says the place of wardat was not inspected in my presence nor empties were sealed in my presence nor bears my signature. I also do not identify the accused present in the Court who opened firing upon my deceased brother.
In the cross-examination this witness admitted that:-
"My statement was recorded at house after ten days of wardat by P.S Head Mohrrir"
PW-4 Muhammad Ali (injured and eye-witness) at Ex.8 in his examination in chief stated that:-
"I reach at Banars near cattle pan in the 1-D bus then bus was full with passenger at about 11.15 p.m., I. was sitting on left side in the bus the firing started upon the bus therefore the bus stopped. I received fire bullet on my left hand at the (smallest finger) and received bullet on my chest due to whom blood started there and then I also run towards Banaras covering my son with my brother. I cannot identify the accused present before are same for the reason at the time of incident it was dark."
In the cross-examination this witness admitted that:-
"It is correct that I am injured as well as eye-witness of occurrence but cannot identify the accused person who fired upon the bus."
PW-5 Shamroz (injured and eye-witness) at Ex.9 in his examination in chief stated that:-
"After fourteen days I was discharged and bullet was removed. My statement was recorded by police. I cannot identify the accused present in the court as during firing due to darkness. I am eye-witness and injured of the occurrence."
PW-6 Allahuddin (eye-witness) at Ex.10 in examination in chief stated that:-
"After few days of incident through newspaper I came to know arrest of culprits by police I then went to P.S Orangi Town and disclosed the facts to the I.O. I was examined by police under section 161, Cr.P.C. thereafter I was called by concerned P.S to appear before J.M. for recording statement. Then on 14-02-2011, I appeared before J.MV. Karachi West where identified the culprits during identification parade in which I identified Amjad and Ismail. I also signed the mashirnama of identification parade."
In the cross-examination this witness admitted as follows:-
"It is incorrect to suggest there was darkness in the area. It is correct the other accused of occurrence except two of which I have identified are not present into the Court. The accused Anwar Hussain present before the Court was not the among the culprits who open fire upon the passengers of the bus. I read about arrest of accused in daily Jisarat publication of 2/3 days after the alleged incident. I contact to my friend and then after consultation with friend went to Police Station.
PW-7 Muhammad Sheraz (eye-witness) at Ex. 11 in his examination in chief stated that:-
"I came to know arrest of accused by police through newspaper. I was directed by police to come into Court to identify the accused person in the Court V JM. Before JM I identified two accused among 10/dummies namely Amjad and Ismail. The witness identified the accused Ismail and Amjad present in the Court they were armed with pistol at the time of firing. The remaining accused Anwar were not present at the time of occurrence".
In the cross-examination this witness admitted that:-
"It is correct I did not inform huliya of the accused persons to police. It is correct accused persons were muffled face."
PW-8 Shah Ghulam Ahmed (eye-witness) at Ex.12 stated in examination in chief as follows:-
"There were many other passengers in 1-D bus when bus reached near Bakra Pari Beacon-house College at 11.40 or 45 p.m. suddenly 8/10 culprit encircle the bus and stop after entering they arm in the ladies compott. they stared firing upon the passengers wearing pant shirt. I was sitting near ladies compott. I then started to run to save myself. I heard about arrest of culprits who fired upon the bus passengers. I went to P.S who recorded my statement under section 161, Cr.P.C.
In the cross-examination, this witness admitted that:-
"It is correct that my statement under section 161, Cr.P.C. was recorded after one month. I read the newspaper. After reading newspaper I went to P.S but I don't know after how many days. I also do not remember the name of newspaper. I boarded in bus at about 11:00 a.m., there was enough covered in the bus. It is correct that at the place of wardat darkness and building.
PW-5 Muhammad Naeem, Inspector/SIO PS North Nazimabad Karachi examined at Ex.19, who deposed in examination-in-chief as follows:-
"On 14-01-2011 I was posted at P.S Orangi Town, as SHO. I received the investigation of crime No. 19 of 2011 for the purpose of investigation along with copy of FIR, ML, reports, inquest report under section 174, C.P.C. and other necessary documents. I received an information from SIU Saddar that in crime No. 42/2011 under sections 353, 324/34, P.P.C. accused Dr. Amjad and Ismail Shah have been arrested, who made disclosure of commission of this crime."
In the cross-examination, this witnesses admitted as follows:-
It is correct to suggest that none of the accused has been nominated in the FIR. It is correct to suggest that it is written in the FIR that accused persons were with muffled faces. I do not remember that in their statement under section 161, Cr.P.C. PWs Nazeer and Tanveer have stated that due to darkness and the accused being muffled faces, they cannot identify them. I do not know that the injured witnesses had stated in their 161, Cr.P.C. statements that they cannot identify the accused persons as there was darkness and the accused were muffled faces. I do not remember the time and the person who had informed me from the SIU. After seven days of arrest of accused, ITP was held. It is correct to suggest that the bus was not made as case property in this case. The bus was bearing registration No.MNB-1610. The registration number mentioned in the site inspection memo is MNA-1610. It is correct to suggest that I had not got recorded the statement under section 164, Cr.P.C. of any eye-witness. It is correct to suggest that in the relevant column of challan, I had not mentioned regarding recovery of blood sample. The pistol from which these empties were fired which were recovered by me from the place of incident, has not been recovered. It is correct to suggest that today blood samples collected by me from the bus are not available in the Court. Vol. says that the blood samples are used to be destroyed by the chemical examiner. The blood samples were collected by me from the various places of the floor of the bus."
11. After arrest of co-accused Ameer Zaib alias Bawan charge was amended and again framed, evidence of prosecution witnesses were again recorded but all above witnesses have testified their earlier statement. Remaining witnesses are PC-Imtiaz Hussain at Ex.15. PC-Muhammad Sabir at Ex.16. PW-Judicial Magistrate at Ex.18, PW-Inspector Muhammad Naeem at Ex.19. PW-MLO Dr.Qarar Ahmed Abbasi at Ex.20, PW-MLO Dr. Zahoor Ahmed at Ex.21 and PW- MLO Dr. Sajjad Ali at Ex.23.
12. In the First Information Report PW-2 driver Nazeer Ahmed says that there was darkness and accused were muffled faces therefore he could not be able to identify any of the culprits due to darkness because it was midnight occurrence. PW-3 Tanveer Ahmed being eyewitness of the incident also supported the version of complainant by saying he also could not identify the accused persons due to firing. PW-2 and PW-3 are also mashirs of place of wardat and arrest of the appellants both have not supported the prosecution case at all. PW-4 Muhammad Ali also corroborated the version of above two eye-witnesses by saying that I cannot identify the accused present before the Court are not same for the reason at the time of incident it was dark. PW-5 Shamroz Alam being eye-witness corroborated the version of above witnesses by saying that I, cannot identify the accused present in the court during firing due to darkness. I am eye-witness and injured of the occurrence.
13. PW-6 Allauddin. PW-7 Muhammad Sheeraz and PW-8 Ghulam Ahmed claimed to have identified Amjad and Ismail. As per evidence of eye-witnesses PW-1 Nazeer Ahmed driver of the Bus, PW-3 Tanveer Ahmed at Ex.7, PW-4 Muhammad Ali at Ex.8 and PW-5 Shamroz Ali could not identify the accused persons because of muffled faces and darkness. The prosecution witnesses have collided over their own testimony and belied their evidences by making improvements with regard to the venue of occurrence and identification of the accused. PW-6. PW-7 and PW-8 while claiming to be eye-witnesses failed to specify any specific role attributed to the accused as well as source of identification when there was midnight occurrence and it was darkness, in failure thereof their testimony could not be relied upon: if for the sake PW-6, PW-7 and PW-8 identified the accused at the venue of occurrence but they did not disclose any specific role to the accused and they kept mum but could not choice to report the matter at-once instead PW-1 Nazeer Ahmed being driver of the bus was said to have been acted as a complainant of the occurrence. All the prosecution witnesses were trying to improve their testimony instead it has not been mentioned in the First Information Report. Prosecution case is lacking of series of lacuna, no doubt there was killing and unnatural death, injured persons have received injuries on their person and are said to have been eye-witnesses of the venue of occurrence but the credibility of their evidence is not trust worthy nor reliable. Solely medical evidence is on record which is natural because deceased died due to unnatural death: there would be no need to reproduce the medical evidence while in failure-of ocular account as is evident from the evidence of prosecution witnesses i.e. Driver of the Bus, non-production of bus, eye-witnesses and the injured too; because there was darkness and their credibility is not reliable as well because the identity of the accused is lacking and is doubtful.
14. No doubt eye-witnesses are natural but after perusing through evidences on record the credibility of eye-witnesses seems to have been unnatural whose witnesses were fraught with improvements, discrepancies and conditions; role attributed to the appellants was not stated by the witnesses, separate identification parade for each accused was not held and such omission was not explained: and that the accused had been sentenced to life imprisonment on the same evidence on which co-accused Anwar Hussain and Umair had been acquitted under section 265-K, Cr.P.C. by the learned IV-Additional Session Judge, Karachi-West vide order dated 26-03-2012. It is also settled principle of law that when witnesses giving no description of the accused previous to identification parade, such type of identification cannot be reliable. In this regard guideline has been taken from Maula Dad's case (AIR 1925 Lah. 426). It is an admitted fact that in terms of contents of FIR witnesses did not know the appellants and co-accused before occurrence. Identification parade was not held in accordance with law therefore. identification in court by the witnesses is also of no value in terms of law laid down in Sultan's case (PLD 1976 BJ 10). Thus this fact was also not considered by the courts below in its true perspective coupled with the fact that material improvements were made by the witnesses before the Court which were noted by the trial court in their cross-examination but did not draw right conclusion to the tie of recording of finding of guilt against the appellants. It is settled law that an accused can be convicted and sentenced on the basis of circumstantial evidence if the chain has not been broken on each and every circumstance must connect with each other. The basic piece of evidence in this case is the identification parade which is not proved in accordance with law even the eye-witnesses did not bring on record sufficient material in view of inconsistency between the statements of eye-witnesses to connect the appellants with commission of offence.
It would be necessary to refer case law reported in 2011 SCMR 527 which reads as follows:-
"----Ss.302(b)/149, 324/149, 337-A(i), 337-F(i), 337-L(2) & 148---Constitution of Pakistan, Art. 185(3)---Appeal against acquittal---Occurrence had taken place at midnight---Names of accused were not given in the FIR---Complainant admittedly did not identify the accused during the incident due to their muffled faces and he had only observed their features---High Court had disbelieved ocular testimony for cogent reasons---Identification of accused in identification parade by the eye-witnesses without describing their role in the occurrence was of no value---Identification parade having been conducted after 24 days of the arrest of accused, possibility of the witnesses having seen them could not be excluded---Identification of accused by their build and stature was neither possible, nor the same was safe in electric bulb light at mid night---Identification parade held jointly of all the accused was sufficient for setting aside the conviction of accused, which was not even held according to the prescribed rules---Injuries on the person of prosecution witness could only indicate his presence at the spot, but were not affirmative proof of his credibility and truth---Impugned judgment did not suffer from any illegality or infirmity---Leave to appeal was declined to complainant in circumstances."
15. Mere reading of aforesaid facts clearly envisages that incident took place on January 13th, 2011 and whereas; the appellants Dr. Amjad alias Jawaid son of Khalid Saeed and Ismail Shah son of Dilbar Khan Mian were arrested on 06.02.2011 and identification parade was held on 14-02-2011. This fact alone is sufficient that it is very difficult for the witnesses to identify them after such a long time coupled with the fact that identification parade was held not in accordance with the law as is evident from the record. Thus the identification of the appellants becomes doubtful being dark night incident and no source of light has been established on record to justify the authenticity of prosecution witnesses.
16. There is much delay in carrying out the identification parade of the appellants. In the case in hand the identification parade as has been held after seven days ' delay of arrest of the appellants and the identification parade held is as follows:-
"The accused Amjad stood at serial No.7 and accused Ismail stand at Serial No.2. Both accused were asked to change. The witness namely Allauddin son of Imamuddin was called in the Court room through the peon and having seen the faces of all the persons standing in a row, identified both accused by putting his finger upon them."
I am fortified with the case law reported as 2011 SCMR 537, it has been held as follows:-
----Ss.396 & 394---Anti Terrorism Act (XXVII of 1997), Ss. 7(h) & 21-L---Dacoity with murder---Appraisal of evidence-Identification parade was not held according to the Rules---Prosecution witnesses had already seen the accused---Identification parade was not held separately in respect of each accused, but was held jointly---Witnesses had not described the role of each accused played by him in the occurrence, while identifying him, which was an inherent defect making the identification parade of no value and unreliable---Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful---Identification of accused in court by the witnesses in circumstances, was valueless. Statements of eye-witnesses were not consistent and the same neither inspired confidence nor were trustworthy---Medical evidence had not supported the contents of the FIR---Courts below had given concurrent finding of guilt against the accused in a cursory manner without application of mind---Accused were acquitted in circumstances."
17. Coming to the issue of Bus of route 1-D hearing No. MNB-1610 (prime case property) has not been produced before the trial Court and nowhere its description and features have been mentioned or discussed. I am fortified with the case of Shamim and 2 others v. State and another reported in 2003 SCMR 1466. It has been held as follows:-
"C) Non-production of Vehicle--- The prosecution failed to produce the vehicle in question wherein the victim was allegedly abducted and during such course the firing happened in such vehicle---Thus, production of vehicle was material so as to establish happening of the incident in the manner, as claimed by the prosecution---Non-production of such vehicle also had brought serious cloud over the prosecution story and benefit whereof was also to be given to the accused but the learned trial Court held otherwise."
18. The proper and the legal way of dealing with a prosecution case evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. and the defence evidence. I have perused the statement of accused recorded under section 342, Cr.P.C; trial Court not put all the material incriminating pieces of evidences. Learned trial Court has failed to formulate the material question to be put to the appellants to answer the same viz. No question was put with regard to the medical evidence i.e. Post Mortem of the deceased(s) and the Forensic Science Laboratory report: no question was put with regard to the arrest of the appellants in presence of respective mushirs; no question was put with regard to the inspection of place of wardat; no question was put with regard to the alleged recovery of six empties as alleged were fired through .30 bore pistol in FSL report. In absentia of all these material questions; meaning thereby appellants have not yet been provided an opportunity of fair trial before the learned trial Court.
In this perspective, I am fortified with the case law reported as 2011 SCMR 323, it has been held in Paragraph No.7, as follows:-
"Taking point No.(i), we find that the prosecution and the accused both parties admitted the occurrence but have given different versions. Onus lies on the prosecution to prove its case through reliable evidence, direct or circumstantial, and that too, beyond reasonable doubt: In the instant case, the High Court has discussed the defence plea/case/evidence first and after rejecting it, has considered and believed the prosecution case/evidence. We cannot help remarking that the High Court has approached the case in an entirely illegal and improper manner in so far as it has discussed the defence case first and then the prosecution case. After rejecting the defence case the High Court has accepted the prosecution case. This is, to say the least, a topsy turvy way of dealing with a criminal case and cannot be approved by this Court. For the guidance of all the Courts in the country we propose to lay down rules/principles for the appreciation of evidence in criminal cases of one version or of two versions. The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/ rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C., believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only.
[The underline is mine]
For this explanation the Hon'ble Supreme Court held in the unreported judgment in Criminal Appeal No. 292 of 2009 dated 28-10-2010 in the case of Muhammad Hassan v. The State held as under:-
In view of the order we propose to pass there is no occasion for going into the factual aspects of this case and it may suffice to observe that the case of the prosecution against the appellant was based upon prompt lodging of the statements of three eye-witnesses, medical evidence, motive, recovery of weapon of offence and a report of the Forensic Science Laboratory regarding matching of some of the crime-empties with the firearm allegedly recovered from the appellant's possession during the investigation but we have found that except for the alleged recovery of Kalashnikov from the appellant's possession during the investigation no other piece of evidence being relied upon by the prosecution against the appellant was put to the appellant at the time of recording of his statement under section 342, Cr.P.C.
It is by now a settled principle of criminal law that each and every material piece of evidence being relied upon by the prosecution against an accused person must be put to him at the time of recording of his statement under section 342, Cr.P.C. so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused person defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a trial. The case in hand is a case of murder entailing a sentence of death and we have truly been shocked by the cursory and casual manner in which the learned trial Court had handled the matter of recording of the appellant's statement under section 342, Cr.P.C. which statement is completely shorn of necessary details which were required to put to the appellant. We have been equally dismayed by the fact that even the learned Judge of the learned Division Bench of the High Court of Sindh deciding the appellants' appeal have failed to take notice of such a glaring illegality committed by the trial Court. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely an irregularity which had vitiated the appellant's conviction and sentence recorded.
In the case of Muhammad Nawaz and others v. The State and others (2016 SCMR 267) Honourable Supreme Court of Pakistan has observed as under:-
"............ There is yet another aspect of the case. While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence."
19. In the present case trial Court did not perform its function diligently and has taken the matter lightly and in a casual manner awarded punishment imprisonment for life coupled with compensation to the appellants. It is by now a settled principle of criminal law that each and every material piece of evidence, which is being relied by the prosecution against an accused must be put to him at the time of recording of his statement under section 342, Cr.P.C. so as to provide them an opportunity of fair trial to explain position in that regard but it appears that in this case. a fair opportunity was not provided to the appellants. It defeats the ends of justice and failure to comply the mandatory requirement of law has vitiated the trial. Omission on the part of learned trial Court was not curable under section 537, Cr.P.C.
20. While intercepting the report of Fire Arms Section Forensic Division Sindh, Karachi dated 23-07-2013 produced at Ex.19/F do it reflects as follows:-
OPINION: The examination of case has revealed as under:-
(i) Six .30 bore crime empties now marked as "C1 to C6" are FIRED empties of .30 bore fire arm/weapon.
Another Report of Chemical Examiner, Government of Sindh dated 23.07.2013 produced at Ex.19/G which reads as follows:-
1.
Parcel Labeled:
PM: No.37/11 dated 14.01.2011 signature MLO. ASHK, clothes of deceased Muhammad Jaweed son of Muhammad Islam.
2.
Parcel Labeled:
PM: No.38/11 dated 14.01.2011 signature of MLO, ASHK, clothes of deceased Rashid son of Muhammad Anwar
3.
Paper Envelop Labeled:
Crime No. 19/11 under sections 302, 324, P.P.C. Police Station Orangi signature of two witnesses and signature of SIO, Dried Blood.
DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL
1. Blue colour Jersey of deceased Muhammad Jawaid son of M. Islam...Parcel No.1
2. White colour blue lines shirt..........) of deceased Rashid.
3. White colour Banyan.........) son of Muhammad Anwer Parcel No.2.
4. Dried blood secured from place of incidence............Parcel No.3.
RESULT OF EXAMINATION
Article No. One to three noted above are stained with human blood.
Article No. Four noted above is human blood.
21. Both respective reports referred supra nowhere discloses regarding marks of blood of deceased persons either it was blood of deceased or something else. Because prosecution out to have referred clothes of deceased, blood stained liquid mud rather dried mud, crime weapon and the empty bullets altogether to the Laboratory for matching thereof to reach a right conclusion and the right conclusion could be drawn but herein this case only reports are kept at the mercy of circumstances rather it reveals any sanctity to each other.
It has been held in the case of Muhammad Asif v. The State reported in 2017 SCMR 486, reads as follows:-
----S.302(b)---Qatl-i-amd---Articles sent to Chemical Examiner and serologist for examination-Practice to be followed by police---Mere sending of blood stained crime weapons to the Chemical Examiner and Serologist would not serve the purpose of the prosecution nor would it provide any evidence to inter link different articles--- Unless the blood-stained earth or cotton and blood-stained clothes of the victim were sent with the crime weapon for opinion of Serologist it could not be conclusively opined that it was human blood on the crime weapon, and that it was of the same group which was available on the clothes of the victim and the blood-stained earth/cotton ---Failure to follow such practice would make the opinion of Chemical Examiner inconclusive, which could not be used as piece of corroboratory evidence.
[The underline is mine]
22. Thus after scrutinizing the evidences. I am of the considered view that the evidence of all the prosecution witnesses is not plausible, just, improbable, unreasonable and there are inherent defects in their evidences, therefore, the case does not fall within any exception where the statement of interested witnesses can be accepted without any corroboration which is also lacking in the present case.
In a case reported in 2010 PCr.LJ 461, Re. Ghulam Murtaza v. The State , it has been held as follows:-
"(b) Penal Code (XLV of 1860)---
----Ss. 302(b)/34 & 324/34---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Single circumstance of doubt sufficient to make the case doubtful---Principles--- Many circumstances creating doubt are not required for giving benefit of doubt to accused---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused would make him entitled to benefit of doubt, not as a matter of grace and concession, but as a matter of right."
C) Muhammadan Law--- The law developed in our country is based on maxim that it is better that ten guilty persons be acquitted rather one innocent person be convicted.
D) Muhammadan Law--- Principle of Administration of Criminal Justice---It is also an established principle of administration of criminal justice coupled with Muhammadan Sharia law that conviction cannot be based on any other type of evidence unless direct or substantive evidence is available and the guilt of accused cannot be based on high probabilities that may be inferred from evidence in a particular case---Held; sufficient discrepancies are appearing in the statements of prosecution witnesses and the memo of place of occurrence and recovery, prepared during investigation, appear to be suspected.
23. In the light of what has been discussed above, the prosecution has failed to prove its case against the appellants beyond any reasonable doubt. Therefore, the conviction and sentence awarded to the appellants under the impugned judgment are set aside. Appellants are acquitted of the charge. They shall be released forthwith if not required in any other case.
Resultantly, the appeal is allowed.
JK/A-26/Sindh Appeal allowed.