Yasir Arfat Versus State
Muhammad Ayub Khan Tareen, J .--- This common judgment disposes of Criminal Appeals Nos.35 and 36 of 2024 filed by the appellants (Yasir Arfat son of Nazeer Ahmed and Babar Ali son of Hidayatullah) against the judgment dated 29.02.2024 (hereinafter the impugned judgment ) passed by learned Sessions Judge, Naseerabad at Dera Murad Jamali (hereinafter the trial Court ) in Sessions case No.65/2023 (FIR No.52/2023, Police Station Saddar Dera Murad Jamali) whereby both the appellants have been convicted under section 302 (b) P.P.C and sentenced to suffer R.I for life imprisonment, in addition to pay compensation of Rs.500,000/- (Rupees Five Lakhs) each to the legal heirs of deceased Lal Bakhsh as envisaged under section 544-A Cr.P.C, and in default whereof, to suffer S.I for six months. The benefit of section 382-B Cr.P.C also extended in favour of the appellants.
The complainant Khan Muhammad son of Ghulam Mustafa has also filed Criminal Revision No.(S) 05/2024 against the impugned judgment dated 29.02.2024 passed by the learned trial Court in Sessions case No.65/2023 (FIR No.52/2023 Police Station Saddar Dera Murad Jamali) for enhancement of the sentence awarded to the appellants by awarding death sentence.
3. Facts of the case are that on the basis of Fard-e-Bayan (Ex.P/1-A) of the complainant Khan Muhammad son of Ghulam Mustafa, a case vide FIR No.52/2023 (Ex.P/6-A) dated 30.07.2023 under section 302 P.P.C was lodged with Police Station Saddar Dera Murad Jamali reporting therein that he lives with his family at Dera Murad Jamali and earn his livelihood by doing labour; that on 30.07.2023, he along with his brother Lal Bakhsh was sitting at MashaAllah Hotel; at about 06:45 p.m., Yasir Arfat and Babar Ali having pistol in their hands came there on a motorcycle and made Lalkara that today they would not leave them alive; the accused Yasir Arfat caught hold to his brother Lal Bakhsh and the other accused Babar Ali made firing upon his brother, due to which, the brother of the complainant fell down and succumbed to the injuries on the spot; that being empty handed and fear, he could not save his brother and went inside the hotel; after the incident, the accused persons fled away towards Uch Power National Highway; the motive behind the incident is stated to be the previous enmity, hence this case.
4. After registration of the case, the appellants were arrested, investigation started and on completion of investigation, Challan of the case was submitted before the trial Court where trial commenced, charge was framed, to which, the appellants Yasir Arfat and Babar Ali did not plead guilty and claimed trial.
5. At the trial, the prosecution in order to prove its case, produced and examined the following witnesses:
PW-1 Khan Muhammad. He is complainant of the case who produced Fard-e-Bayan Ex.P/1-A.
PW-2 Constable Samiullah. He is witness of disclosure memos of both the accused/appellants as well as witness of pointation of memo. about the place of incident and brought on record the same as Ex.P/2-A to Ex.P/2-C.
PW-3 Head Constable Ali Bakhsh. He is recovery witness and brought on record recovery memo. of T.T. pistol 30-bore, magazine containing two live cartridges and recovery memo. of bloodstained clothes of deceased Lal Bakhsh as Ex.P/3-A and Ex.P/3-B and also produced the crime weapon, magazine, two live cartridges and bloodstained clothes of deceased along with parcels and specimen of seals as Art.P/1 to Art.P/6.
PW-4 Dr. Naseer Muhammad Umrani, Medical Officer. He examined the dead body of deceased and after conducting external postmortem, issued MLC and brought the same on record as Ex.P/4-A.
PW-5 Constable Mukhtiar Ahmed. He is witness of memo. of site inspection, recovery memo. of bloodstained earth of deceased and bullet empties of T.T. pistol as Ex.P/5-A to Ex.P/5-C and brought on record bloodstained earth of deceased, two bullet empties of T.T pistol of 30-Bore along with parcel and specimen of seals as Art.P/7 to Art.P/12.
PW-6 SI Bashir Ahmed Khosa. He is Investigation Officer of the case. He brought on record FIR, site sketch place of incident, inquest report, site plan regarding place of recovery, incomplete Challan, FSL report and supplementary Challans as Ex.P/6-A to Ex.P/6-H.
6. On completion of prosecution evidence, the appellants Yasir Arfat and Babar Ali were examined under section 342, Cr.P.C, wherein they denied the prosecution allegations and claimed trial. However, the appellants did not opt to record their statements on oath as envisaged under section 340 (2) Cr.P.C nor produced any witness in their defense.
7. After concluding evidence and hearing arguments, the trial Court awarded conviction and sentence to the appellants Yasir Arfat and Babar Ali as mentioned in para-1 above.
8. Being aggrieved of the impugned judgment passed by the trial Court, the appellants Yasir Arfat and Babar Ali have filed Criminal Appeals Nos.(S) 35 and 36 of 2024 respectively, whereas the complainant (Khan Muhammad son of Ghulam Mustafa) has filed Criminal Revision No.(S) 05/2024 for enhancement of sentence of the appellants by awarding death sentence.
9. Learned counsel for the appellants argued that although the police arrived at the scene within ten minutes, the FIR was filed with a delay of 30-minutes, indicating that the complainant was not present when it was lodged and that it was filed after his arrival. He further argued that the complainant is the only eye-witness. However, his behavior appears unnatural because he neither tried to save his real brother nor was it shown in the MLC that he had taken the deceased to the hospital. It was suggested that it does not seem reasonable that someone who has been shot would be held by another person. He claimed that the eye-witness stated the deceased was shot from a distance of one and a half or two feet, yet the MLC shows no signs of blackening. He argued that the prosecution had not proven its case, but the benefit of the doubt was not given to the appellants. Finally, he requested the Court to acquit the appellants by giving them the benefit of the doubt.
10. Conversely, the learned counsel for the complainant and the learned Additional Prosecutor General for the state argued that the FIR was immediately lodged and the appellants were explicitly named in it, along with the specific details of the firing and holding the deceased. They further stated that a single eye-witness statement is enough for the conviction of the appellants, which the learned trial Court rightly relied upon. They contended that the prosecution successfully proved the case against the appellants and the trial Court's findings were appropriate. However, they argued there were no mitigating circumstances in favor of the appellants and they requested an increase in the sentence from life to death in the revision petition filed by the complainant.
11. We have listened to the learned counsel for the parties and reviewed the record with their helpful guidance.
12. Brief facts of the present case as gathered from the FIR are that the complainant Khan Muhammad (PW-1) lodged an FIR at the Police Station Saddar Dera Murad Jamali alleging that on 30.07.2023, he and his brother Lal Bakhsh were sitting at MashaAllah Hotel when around 6:45 p.m., the appellants arrived on a motorcycle and threatened them saying they would not be allowed to live today. The appellant, Yasir Arfat caught hold of his brother Lal Bakhsh and appellant Babar Ali fired at him causing injuries that led to his death. Accordingly, FIR was lodged based on the written complaint.
13. It is a well-established principle of law that each case has its own unique facts and circumstances and these rarely align on key features. Admittedly, it is an unfortunate incident in which the brother of the complainant lost his life after sustaining a firearm injury. Nevertheless, to balance the facts and circumstances in the pursuit of fair justice, we have thoroughly examined all the evidence on record, evaluating it in a legal context. We have noted that the prosecution has presented evidence including eye-witness testimony, medical evidence, details of the investigation and recovery along with other relevant circumstances.
14. The key question we need to answer is whether the complainant (PW-1), the alleged eye-witness was present at the scene at the relevant time and actually saw the tragedy as he claims and whether his behavior aligns with what an ordinary, prudent person would consider acceptable. To answer this critical question, we sifted through his statement and found that although he claims to have been present at the scene and to have witnessed the tragedy, the prosecution has failed to substantiate his presence through his own conduct at the scene.
15. The record shows that the incident was reported to have happened at 6:45 p.m., while the police report was filed at 7:30 p.m. The complainant (PW-1) states that he was present at the scene and claims that police arrived within ten minutes of the incident, with his brother dying twenty minutes afterward. He did not touch his brother after he was shot until he died. However, there is a significant discrepancy because the FIR was filed with delay of 30-minutes. The Medico Legal Certificate ( MLC ) shows that the deceased reached the hospital at 7:05 p.m., within twenty minutes of the incident, suggesting the deceased was taken to the hospital while the police waited for the complainant to arrive and file the report. This indicates that the complainant was not at the scene during the incident.
16. The complainant (PW-1) is the real brother of the deceased and the motive for the incident is alleged to be previous enmity. He stated before the trial Court that as soon as the accused arrived at the scene, they shouted that they would not let him or his brother survive that day, pulled out their pistols and began firing at his brother Lal Bakhsh. The complainant was approximately 12 to 15 feet away from his brother when the firing was made, yet, surprisingly he did not suffer any firearm injuries. It is hard to believe that in killing someone in front of close relatives, the accused would not have tried to cause any injury to the prosecution witness, leaving evidence behind to incriminate themselves. Considering this, the false implication of the appellants by the complainant due to previous enmity cannot be ruled out of consideration. Reliance in this regard is placed on the case of Rafaqat Ali alias Foji v. The State, 2024 SCMR 1579, wherein it was held;
7. PW-2 is the real brother of the deceased and PW-3 is nephew of the deceased. The motive of the occurrence has been alleged by PW-2 as previous enmity and in this regard two FIRs have been brought on record which were got registered by the real brother and paternal uncle of the convict against the deceased. PW-2 and PW-3 claim to accompany the deceased at the time of occurrence but surprisingly they did not receive any fire arm injury. It is not believable that by killing a person in presence of his close relatives accused would not attempt to cause any injury to the prosecution witnesses leaving for them evidence to be hanged.
17. The Honourable Supreme Court of Pakistan took the same view in the case of Riasat Ali v. The State, 2024 SCMR 1224.
18. Another aspect of the case we observed is that according to the complainant's statement, the deceased was grabbed by the accused Yasir Arfat and then Baber Ali fired at him. The MLC (Ex.P/4-A) presented by PW-4 Dr. Naseer Muhammad Umrani shows an entrance wound on the left side of the neck with an exit wound on the left side of the back of the neck. However, the accused Yasir Arfat, who was holding the deceased, did not sustain any injury. This does not appeal to a prudent mind, leading us to believe that the complainant has just narrated a story, proving he is not an eye-witness to the incident.
19. We have noted that during cross-examination, the complainant responded to question Nos.54 and 55 by stating that my brother died 20 minutes after being shot and he did not touch his brother after the shooting until he died, which lasted for those twenty minutes. This implies that the deceased was lying at the scene for twenty minutes with a gunshot wound to the neck, yet he was not taken to the hospital. It is hard to believe and goes against human nature that the complainant's brother received a gunshot wound and was left bleeding for twenty minutes without any attempt to provide medical care or try to save his life. This fact also indicates that PW-1 was not present at the scene; if he had been, he would have surely taken the deceased to the hospital. It is common human conduct to try to get the injured person to the hospital for medical treatment. Based on the witness's behavior, it appears that the complainant was not at the scene.
20. While responding to question No.24, the complainant stated that the fire was made at the deceased from a distance of one and a half feet. However, the external post-mortem examination of the deceased Lal Bakhsh does not show any blackening or tattooing marks on his injury, which indicates that the fire was likely made from a distance greater than one and a half feet. According to Modis Medical Jurisprudence and Toxicology, blackening occurs if a fire-like shotgun is discharged from a distance of no more than three feet and a revolver or pistol is discharged within two feet. References regarding this are made to the cases of Mir Muhammad v. The State, 1995 SCMR 610, Amin Ali v. The State, 2011 SCMR 323 and Riasat Ali v. The State, 2024 SCMR 1224.
21. The prosecution witness has not provided any explanation as to whether the deceased was shot from a distance of one and a half feet with a pistol and why his entrance wound was not surrounded by blackening and burning.
22. Another aspect of the prosecution's case casts doubt on its story as the complainant states that the deceased was taken to the hospital within twenty minutes of the incident. However, PW-4 Dr. Naseer Muhammad Umrani when answering question No.2 said he examined the deceased's body five to six hours after death, indicating that the event occurred much earlier than the prosecution claims. The statement regarding the nature of injuries sustained by the deceased contradicts the external report and the doctor's statement. We recognize that just because the witness is related to the deceased, his testimony cannot be dismissed; however, it is also essential that the testimony of such a witness be scrutinized more carefully and with greater caution. The facts discussed herein make it clear that the conduct of the witness was unnatural. It leads us to conclude that the witness's presence at the time of the incident was doubtful; as such, the occurrence seems to have been unseen.
23. PW-4 exhibited the MLC as Ex.P/4-A at the trial, which reveals that the deceased was brought to the hospital by Constable Hazoor Bakhsh. If the deceased was taken to the hospital by a police official in the absence of any close relative, then the presence of a close relative at the occurrence cannot be believed. In this regard, the Honourable Supreme Court of Pakistan in the case of G.M. Niaz v. The State, 2018 SCMR 506 held as under:
4 .The record of the case shows that Zahid Iqbal deceased was taken to hospital in an injured condition by police constable and not by above mentioned closely related eye-witnesses and this fact completely belied the claim of the eye-witnesses regarding their presence with the deceased at the relevant time ..
24. The prosecution claims that the incident took place at a hotel and the presence of the hotel owner and other people was admitted at that time. However, none of them have appeared as witness to the incident, which was necessary to support the prosecution's case with independent witnesses. The failure to produce independent witnesses despite their availability has further cast doubt on the prosecution's case.
25. Regarding the recovery of the crime weapon i.e. 30-bore T.T pistol from the possession of the accused/appellant (Babar Ali), the accused/appellant was arrested on the day of the incident, i.e., 30.07.2023 and the weapon was taken into custody through a recovery memo. However, the witnesses did not specify on which place/road the accused was arrested nor did they involve any independent witness in the recovery. Despite the recovery of the T.T pistol and the crime empties from the scene on 30.07.2023, these items were only sent to an expert on 09.08.2023 with a delay of nine days. The firearm and the empty casings were sent together to the expert; however, the prosecution has failed to demonstrate the safe custody of these items or their proper transmission to the Forensic Science Laboratory ( FSL ). The prosecution has not explained who was responsible for keeping the weapon and empties during the investigation as no Police Station Malkhana report or witness testimony has been produced to support their case. It is now well-established law that the prosecution must prove the safe custody of the recovered weapon and its safe transmission to the FSL.
26. Based on the facts and circumstances described above, we are convinced that the conviction passed by the trial Court against the appellants Yasir Arfat and Baber Ali contradicts all recognized principles of law essential for the fair administration of criminal justice. According to legal standards, any doubts must be resolved in favor of the accused.
27. For the above reasons, the Criminal Appeals Nos.35 and 36 of 2024 are accepted. The impugned judgment dated 29.02.2024 passed by the learned trial Court is set aside and while extending the benefit of doubt, the appellants (Yasir Arfat son of Nazeer Ahmed in Criminal Appeal No.35/2024) and (Babar Ali son of Hidayatullah in Criminal Appeal No.36/2024) are acquitted of the charge under section 302 Q&D read with section 34 P.P.C in session case No.65/2023 (FIR No.52/2023 Police Station Saddar Dera Murad Jamali). The appellants Yasir Arfat son of Nazeer Ahmed and Babar Ali son of Hidayatullah, being in custody, are ordered to be released forthwith, if not, required in any other case.
28. Since both the Criminal Appeals Nos.35 and 36 of 2024 are accepted and the appellants have been acquitted of the charge, therefore, the Criminal Revision Petition No.(s) 05/2024 filed by the complainant (Khan Muhammad son of Ghulam Mustafa) for enhancement of sentence is hereby dismissed.
JK/130/Bal. Appeals allowed.