Azmat Khan Versus State
Dr. Syed Muhammad Anwer, J .--- This judgment decides the captioned criminal appeal arising out of the judgment passed by the Model Criminal Trial Court-II/IVth Additional Sessions Judge, Hyderabad, dated 20.11.2021, whereby the appellant Azmat Khan has been convicted in Crime No.34, dated 11.04.2008, under Section 17(4) of the Offences against Property (Enforcement of Hudood), Ordinance, 1979, P.S. Makki Shah, Hyderabad.
2. Brief facts of the case are that on 11.04.2008, at about 08:30 p.m., when complainant Asif Ali Kalhoro along with his younger brother Safdar Ali and servants namely Aftab Jiskani, Muhammad Ayoub Palari and Ghulam Nabi Buriro were present in Mobilink Franchise shop, owned by complainant s brother Aijaz Hussain, situated in Fazal-e-Rabbi Heights, Fatima Jinnah Road, Hyderabad, two persons, duly armed with pistols, entered and snatched repeater gun from Muhammad Ayoub Palari, cash of Rs.70,000/- and four mobile phones along with SIMS from the complainant. In the meanwhile, when complainant s brother namely Aijaz Hussain followed by a police official in uniform entered the shop, the perpetrators opened direct fires with their pistols upon the complainant party hitting the complainant s brother Aijaz Hussain, his servant Muhammad Ayoub Palari and the police official, who was identified as Mevo Khan, where-after the perpetrators fled the scene. The injured persons were shifted to hospital but they succumbed to injuries.
3. The complainant reported the matter at Police Station Makki Shah that two unknown persons with un-muffled faces committed murder of his brother Aijaz Hussain, servant Muhammad Ayoub Palari as well as police constable Mevo Khan and took away the abovementioned articles. He also reported that he (complainant), his brother Safdar Ali, servants Aftab Jiskani and Ghulam Nabi Buriro have seen the culprits and they could be identified if confronted again.
4. During investigation of the case, names of Azmat Khan (appellant) and Muhammad Nisar alias Foji (proclaimed offender) surfaced being suspects, and when Nek Muhammad (I.O) showed their photographs to the complainant, he identified both of them to be the real culprits of the incident. Resultantly, the I.O submitted charge sheet against Azmat Khan (appellant) and Muhammad Nisar alias Foji as absconders. On 05.10.2009, the appellant was arrested from Central Jail, Rawalpindi, but his custody was not produced on account of his involvement in some other criminal cases in Faisalabad, as such, on 14.01.2019, he was produced before the learned Trial Court, where after a formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial.
5. The prosecution produced as many as eight witnesses to bring home the guilt of the appellant. After recording of pro and contra evidence of the parties, the learned Trial Court, vide judgment dated 01.09.2020, convicted the appellant Azmat Khan under section 265-H(2) Cr.P.C and sentenced him for an offence punishable under section 17(4) of the Offences against Property (EoH) Ordinance, 1979 to suffer life imprisonment as Tazir with direction to pay compensation of Rs.200,000/- (Two Hundred Thousands) to the legal heirs of three deceased each under section 544-A Cr.P.C, and in case of default, he shall further suffer simple imprisonment for six (06) months.
6. Feeling aggrieved with the above-mentioned conviction, the appellant assailed the judgment of the learned Trial Court, dated 01.09.2020, before this Court by filing Criminal Appeal No.08-K/2020 (Azmat Khan v. The State), whereby accepting the appeal vide judgment dated 11.08.2021, this Court remanded the matter back to the learned Trial Court for re-writing of judgment by adhering to the mandatory provisions of law and affording opportunity of hearing to the parties concerned as mandated by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
7. In the post remand proceedings, the learned Trial Court after reevaluating the evidence found the appellant guilty beyond reasonable shadow of doubt for committing robbery and murders of Aijaz Hussain, Muhammad Ayoub Palari and police constable Mevo Khan, therefore, vide the impugned judgment, dated 20.11.2021, convicted the appellant as under:
SR#
FOR OFFENCE
CONVICTION
1.
392, 34 P.P.C
10 years R.I for committing robbery and fine of Rs.50,000/- (Fifty Thousand) and in case of default, he shall further undergo S.I for three month.
2.
302(b), 34 P.P.C
(i) Life Imprisonment (R.I) for committing murder of deceased Aijaz Hussain and to pay fine of Rs.300,000/- (Three Lacs) only to legal heirs of said deceased under section 544-A Cr.P.C. read with Judgment of Honourable Supreme Court of Pakistan, reported as 1995 SCMR 1776 and in case of default, he shall suffer S.I. for one year more;
(ii) Life Imprisonment (R.I) for committing murder of deceased Muhammad Ayoub Palari and to pay fine of Rs.300,000/- (Three Lacs) only to legal heirs of said deceased under section 544-A Cr.P.C. read with Judgment of Honourable Supreme Court of Pakistan, reported as 1995 SCMR 1776 and in case of default, he shall suffer S.I. for one year more;
(iii) Life Imprisonment (R.I) for committing murder of deceased Constable Mevo Khan, and to pay fine of Rs.300,000/- (Three Lacs) only to legal heirs of said deceased under section 544-A Cr.P.C. read with Judgment of Honourable Supreme Court of Pakistan, reported as 1995 SCMR 1776 and in case of default, he shall suffer S.I. for one year more.
All the above sentences shall run concurrently and benefit of Section 382-B Cr.P.C has also been extended to the appellant.
8. Learned counsel for the appellant at the very outset contended that the appellant had no nexus with the commission of offence, rather he has been booked in this case based on suspicion; that initially the FIR was registered against unknown accused culprits but the complainant with due deliberation got nominated the appellant in the present case without any solid source of information; that no identification parade was conducted to formally identify the appellant as one of the culprit who actually committed the offence, which plainly creates a serious doubt in the prosecution case, even otherwise, the evidence led by the prosecution with regard to oral, documentary and medical evidence itself blows the case of the prosecution. He further stressed that all the PWs are interested witnesses and the prosecution has failed to produce any independent witness despite the fact that the alleged place of occurrence is thickly populated area and is a busy place. He also maintained that the complainant has not attributed any specific role to the appellant. He finally concluded that the case as set out by the prosecution suffers from material contradictions and could not link the appellant with the commission of offence, therefore, the instant appeal may kindly be accepted, the impugned judgment may be set-aside and the appellant may be acquitted of the charge.
9. Conversely, the learned counsel for the complainant as well as the Assistant Prosecutor General, Sindh opposed the filing of instant appeal and stressed that sufficient evidence is available on record to connect the appellant with the commission of offence, even the appellant while recording his statement under Section 342 Cr.P.C has neither disputed the material relating to his presence at the place of incident, postmortem report, memo. of dead body, Danistnamas, memo. of place of incident, nor he has produced any concrete material or documentary evidence to show that he has been implicated in this case by the complainant due to malafide or personal grudge. They concluded that the appellant is a hardened criminal and the prosecution has successfully linked him with the commission of offence, as such, the learned Trial Court has rightly convicted and sentenced him vide the impugned judgment, which is liable to be sustained and the appeal demands dismissal.
10. We have heard the arguments advanced by both the sides and meticulously perused the record with their able assistance.
11. At the very outset, upon reading of the impugned judgment, we have observed that the learned Trial Court has committed mistake while deciding the matter after it was remanded to it by this Court vide its judgment, dated 11.08.2021, wherein the learned Trial Court was directed to rewrite the judgment. The learned Trial Court apparently could not comprehend the direction and did not differentiate between rewriting of a judgment under Section 367 Cr.P.C and conducting re-trial of a case after it is remanded to it under Section 423 Cr.P.C. The scope for rewriting of a judgment by the learned Trial Court is clearly mentioned in Section 367 Cr.P.C. The same section sets the limits and parameters of rewriting of judgment, when an appellate court remands a case to the trial court for rewriting of a judgment.
12. There are many decisions of the apex court, which set the parameter of rewriting of a judgment within the context of Section 367 of the Cr.P.C, for example, when the trial court sentences an accused person under any section of the Pakistan Penal Code without recording mitigating grounds, then the appellate court may ask the trial court to rewrite the judgment with the same conclusion but after clearly mentioning the grounds and reasons of mitigating circumstances explaining why lesser sentence was awarded under a penal section of law. In the instant case this was the main reason why this case was remanded for rewriting of the judgment to the trial court. In this regard, guidance can be taken from the following judgments reported as 2004 SCMR 1 ( Farrukh Sayyar v. Chairman NAB ), 2016 SCMR 1190 ( Irfan v. Muhammad Yousaf ), 2025 SCMR 993 ( Fida Hussain v. The State ), 2024 PCr.LJ 499 FSC ( Saddam Hussain v. The State ) and PLD 1958 Pesh.31 ( Gul Zaman v. The State ). The relevant portion of the latter judgment is reproduced herein under for further clarity:
According to the former section (367 Cr.P.C), the judgment should contain the point or points for determination, the decision thereon, and the reasons for the decision. It should specify the offence, if any, of which and the section of the P.P.C. under which the accused is convicted and the punishment to which he is sentenced. The object of this provision is that it should be quite apparent on the face of the judgment that the Court has applied its mind to the case and has arrived at the final conclusion after considering the case before it in all its bearings. A judgment, therefore, which only says that the judge has perused the grounds of appeal and the order appealed against and has arrived at the conclusion that there is no substance in the appeal is no judgment in the eye of law. It is vague, indefinite, and highly defective.
13. In addition to that we have noted that FIR was registered against unknown persons, even no description or features of the accused persons were mentioned in the FIR, naturally the accused was not nominated in the FIR, consequently, this fact was admitted by the investigating officer namely Nek Muhammad (PW-8) in the cross-examination as under:
It is correct to suggest that I have not lodged FIR against accused Azmat."
The law is very clear on this point that whenever the case is registered against unknown persons and no description of the accused person is mentioned in the FIR, then identification parade is mandatory before framing of any charge against any person. Whereas, on the contrary in the instant case no identification parade was conducted. In addition to that even no specific role was assigned by the complainant to the appellant and PW-3 Sajid Ali Kalhoro admitted the fact as he stated in his cross-examination that:
It is correct to suggest that I have not stated the description and features of accused in my FIR and chief.
In such cases also the identification parade is mandatory, the apex court has taken a serious note for not conducting the identification parade, as held in case reported as 1997 SCMR 971 (Farman Ali v. The State). The relevant portion is as follow:
7. Holding of identification test becomes necessary in cases, where names of the culprits are not given in the FIR. Holding of such test is a checker against the false implication and it is a good piece of evidence against the genuine culprits. Holding of identification test cannot be dispensed with, simply because the person accused of committing the robbery has been subsequently found in possession of the robbed goods.
Here we further rely upon another judgment of the apex court, reported as 2010 SCMR 1706 (Muhammad Asghar and another v. The State), the facts of which are relatively similar to this case, wherein it has been held as under while granting leave to appeal:
It is contended that in this case the names of the petitioners are not mentioned in the FIR Petitioner No.1 (Muhammad Asghar alias Nannah) was arrested on 27-6-2000 while he was in custody in another case, whereas petitioner No.2, namely, Miraj Khalid alias Khalid was arrested on 3-11-2000 who was also in custody in another case but they were not put to the identification test though all the witnesses were police officials. According to him both the courts below have not given any cogent reasons about the said lacuna in the case. Assistant Advocate-General, Punjab conceded to the above contentions and raised no objection to grant leave to appeal.
14. When the prosecution was asked why the identification parade was not conducted in this case the prosecution relied upon the statement of the complainant, wherein he acknowledged the presence of the accused in the court equivalent to the identification parade. The relevant portion of the statement from the examination-in-chief of complainant is as follows:
Accused Azmat Khan present in court is same, he has committed robbery and at the time of committing robbery, he has issued straight fires upon us, which were hit to Aijaz Hussain, Ayoob Palai and Mevo Khan due to which they were expired."
Such recognition of a person as an accused in the court can only be considered relevant when either the accused is nominated in the FIR or some description is given by the complainant in the FIR. Whereas, both these ingredients are missing in the instant case, hence proper identification parade as per law was mandatory, which was never conducted by the prosecution in this case regarding the accused.
15. The record further revealed that the accused was arrested on 05.10.2009 by one Mehmood Akhtar (PW-7), but the record is silent as to how the prosecution got the knowledge about the presence of the accused in Adiala Jail, Rawalpindi. The relevant portion of the examination-in-chief of Mahmood Akhtar (PW-7) is reproduced as under:
On 04.10.2009 I was serving as SIP at Investigation Headquarter, Hyderabad. On the same day, I received verbal direction from SP Investigation, Hyderabad, to go Islamabad and arrest accused namely Azmat son of Shahzad involved in present crime and he was already confined in Jail in Crime No.80 of 2009, under section. 365-B P.P.C of Police Station Shahzad Town. Thereafter I, LNK Amjad Ali, PC Muhammad Haroon, PC Muhammad Sabir and complainant along with government arms and ammunition in private vehicle No.JF-1134 vide entry No.56 of Police Station Makki Shah at 0430 hours left Hyderabad and arrived to the Court of Judicial Magistrate Islamabad where I moved application for investigation from accused-Azmat and such permission was granted. Thereafter we went to Central Prison, Rawalpindi where we interrogated the accused and on his admission of the guilt, we arrested him on 05.10.2009 at 1320 hours, under preparation of mashirnama in presence of mashirs PC Sabir and LNK Amjad Ali. On 06.10.2009 I again moved application to Judicial Magistrate Islamabad for keeping the custody of accused Azmat in Jail till completion of investigation of crime. After that we returned back to Hyderabad. I produce order of SP Investigation dated 02.10.2009 at Ex.24/A, order of RPO dated 02.10.2009 at Ex.24/B, entry No.56 at Ex.24/C, application moved to Magistrate for investigation at Ex.24/D, memo. of arrest at Ex.24/E, another application moved to Magistrate at Ex.24/F, which are same, correct and some bear my signatures. I see accused Azmat present in Court is same.
[Emphasis added]
CROSS EXAMINATION TO MR. BABAR ALI MIRANI, ADVOCATE FOR ACCUSED.
We arrived to Islamabad on 05.10.2009 at Fajr time. Before leaving Hyderabad, I obtained permission from my high ups. It is correct to suggest that I have not produced any proof to show that I was informed about arrest of accused in Islamabad. It is incorrect to suggest that I am deposing falsely at the instance of high ups. I do not know if accused has been acquitted in FIR No.80 of 2009, under section. 365-B of Police Station Shahzad Town.
[Emphasis added]
16. Furthermore, Mahmood Akhtar (PW-7) admitted in the cross-examination that he had no proof to show that how he was informed about the arrest of the accused in Islamabad, this statement creates doubt about the involvement of the accused in the instant case, as apparently, he was the person who already was serving his punishment in some other case.
17. In this regard another important fact is revealed from the statement of the investigating officer i.e. Nek Muhammad (PW-8), whereby he admitted that the police showed an album of pictures of some accused persons, including the picture of the present appellant i.e. the accused to the complainant after three (03) days of the commission of crime, upon which the complainant nominated the present appellant in the instant case. The relevant portion of examination-in-chief of Nek Mohammad (PW-8) is as follow:
During investigation I received two names as Nisar Foji and Azmat Pathan being suspected, hence, we shown album of suspect persons to complainant, who identified both of them.
[Emphasis added]
Hence, the I.O. has clearly admitted that he pursued the complainant to nominate the accused in the instant case. This admission of the I.O has made the instant case against the accused person as doubtful.
18. Keeping in juxtaposition the above situation with the contentions of the parties as well as the available record, we are of the considered view that the case as set out by the prosecution is full of doubts, benefit of which has not been extended to the appellant by the learned trial court while passing the impugned judgment, dated 20.11.2021, which apparently suffers from misreading and non-reading of the record, therefore, the instant criminal appeal is hereby ACCEPTED , the conviction and sentence vide the impugned judgment, dated 20.11.2021, passed by the Model Criminal Trial Court-II/IVth Additional Sessions Judge, Hyderabad is SET-ASIDE and the appellant Azmat Khan is ACQUITTED of the charges in Crime No.34, dated 11.04.2008, under Section 17(4) of the Offences against Property (Enforcement of Hudood), Ordinance, 1979, P.S. Makki Shah, Hyderabad, as a result whereof, the appellant Azmat Khan be released forthwith, if not required in any other case. Since the main appeal has been accepted, the accompanying criminal miscellaneous application for suspension of sentence is hereby DISPOSED OF as having become infructuous.
JK/3/FSC Appeal allowed.