Abbas Versus State
Tariq Mahmood Bajwa, J .--- Appellants (Abbas, Shoukat Ali, Nadeem, Saleem, Muhammad Arshad and Muhammad Waris), have been tried by the trial Court in case FIR No.01 dated 03.01.2019 in offence under Sections 302, 396, 412 P.P.C., Police Station Saddar Chunian, District Kasur and were convicted and sentenced vide judgment dated 20.09.2023 as under:-
➤ Under Section 396 P.P.C. the accused persons namely Abbas, Shoukat Ali, Nadeem, Saleem, Muhammad Arshad and Muhamınad Waris, are held guilty of the offence under section 396 P.P.C., and are convicted under section 396 P.P.C. to undergo life imprisonment (R.I) with fine of Rs.2,00,000/- each. In case of non-payment of the amount of fine, the defaulter will further undergo six months S.I. Each of the convict will pay Rs.2,00,000/-as compensation under section 544-A Cr.P.C to the legal heirs of the deceased. In case of non-payment of the amount of compensation, it would be recoverable as an arrear of land revenue from the assets of the defaulter convict. Benefit of Section 382(b) Cr.P.C is extended to all the convicts.
2. Appellants have filed Criminal Appeal against their conviction whereas the complainant has also filed Criminal Revision 69594 of 2023 for enhancement of sentence, which are being decided through this single judgment.
3. The prosecution's version of the case, as mentioned in para No.1 of impugned judgment is reproduced as follows:
"Above referred case FIR No.01/2019 dated 02.01.2019 was registered against unknown accused persons on the application Ex. PB moved by Muhammad Shehzad son of Miraajdin (complainant). As per contents of application Ex.PB and the FIR, on 02.01.2019 at about 08:30 pm complainant was present in his house along with his family members and his father Miraajdin had gone outside on his car in connection with some personal engagement and when he returned to home, on the gate of his house, accused persons made him hostage on the gunpoint and knocked the door and responding to the knock, as soon as the complainant opened the gate, the accused persons at once caught hold of him and snatched his mobile phone Samsung J-7 having sims No. 0300-46169323 and 0305-4123909 and the accused had already snatched mobile phone of his father Nokia-105 having sim No.0300-9479536. The accused forcibly entered into the house of the complainant and then they entered into the bedroom of the complainant and robbed 08-Tolas Gold Ornaments and Rs.25,000/-. After that accused went to the bedroom of his brother Haider Ali and the room of the Haider Ali was locked from inside. Accused asked Haider Ali to open the door and when he did not open the door, the accused got fureiated and attempted to break the door with kicks and butts of their weapons which created a gap in the door and accused started straight firing from their respective weapons through that gap and meanwhile his brother Haider, in his self defence, made firing from his Kalashnikove which hit three unknown accused persons, out of whom one injured accused person succumbed to the injuries at the spot. Then again the accused persons started straight firing from the gap of the door which hit on the different parts of the body of his brother Haider Ali and he succumbed to the injuries at the spot. Occurrence was witnessed by the complainant and his father Miraajdin. Accused fled away along with their injured accused persons and robbed articles and amount while leaving the dead body of their co-accused at the site of occurrence."
4. After registration of the FIR, investigation was concluded and a report under Section 173 Cr.P.C. was submitted against the appellants. Charge was framed under Sections 302, 396 and 412 P.P.C., to which they pleaded not guilty and claimed trial. The prosecution examined nineteen witnesses in support of its case. Statements under Section 342 Cr.P.C. were recorded wherein the accused denied the allegations and alleged false implication. Vide judgment dated 20.09.2023, the learned trial Court acquitted all six appellants under Section 412 P.P.C., however, convicted them under Section 396 P.P.C., sentencing each to imprisonment for life with fine and compensation of Rs.2,00,000/- each. Feeling aggrieved, the appellants have preferred the instant appeal.
5. Arguments heard. Annexed record perused.
6. The unfortunate occurrence took place on 02.01.2019 at about 08:30 p.m., whereas the formal FIR was registered at 12:15 a.m. on 03.01.2019, reflecting a delay of approximately three hours and forty-five minutes. Although the prosecution has attempted to explain this delay on account of the chaotic situation prevailing at the spot, it is nevertheless an admitted fact that the FIR was lodged against unknown persons without furnishing any description whatsoever of the alleged culprits, despite the fact that the complainant/PW-3 and his father Miraajdin were allegedly present throughout the occurrence and had allegedly witnessed the accused persons at close quarters during the commission of the offence. The delay in lodging the FIR suggests deliberation and consultation. Reliance is placed upon precedents reported as "Zafar Ali Abbasi and another v. Zafar Ali Abbas" (2024 SCMR 1773), "Muhammad Nawaz and another v. The State and others" (2024 SCMR 1731), "Abid Hussain and another v. The State and others" (2024 SCMR 1608). Furthermore, according to PW-10 Dr. Muhammad Riaz, the dead body of deceased Haider Ali was received in the mortuary and postmortem examination was conducted at 04:00 a.m. on 03.01.2019, thus showing a delay of approximately seven hours and thirty minutes from the time of occurrence at 08:30 p.m. on 02.01.2019. No plausible explanation has been furnished by the prosecution as to why the dead body was not received in the mortuary until 03:30 a.m. The cumulative effect of the delayed lodging of the FIR at 12:15 a.m. on 03.01.2019, despite the occurrence having taken place at 08:30 p.m. on 02.01.2019, and the belated postmortem examination indicates sufficient time having been available to the complainant party for deliberation, consultation and possible improvement in the prosecution story, which circumstance adversely affects the intrinsic worth and spontaneity of the prosecution version. The delay in reporting the occurrence and in conducting the postmortem examination is always considered sound material to entertain doubt unless the same is satisfactorily explained, and no convincing explanation was offered by the prosecution in relation to the said delays. Reliance is placed upon "Nazeer Ahmed v. The State" (2016 SCMR 1628), "Irshad Ahmed v. The State" (2011 SCMR 1190) and "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068).
7. The ocular account is the foundation of the prosecution case, therefore, it requires a deeper scrutiny to determine whether the witnesses were natural, reliable and had the opportunity to identify the assailants beyond any shadow of doubt. The most important eye-witness of the occurrence namely Miraj Din, father of deceased Haider Ali and complainant of the case, resident of the same house i.e. venue of crime was withheld by the prosecution on the plea of his illness, although he was the person who was allegedly present at the spot and had direct knowledge of the occurrence. The non-production of such a material witness creates an adverse inference against the prosecution, particularly when the remaining witnesses are not direct witnesses of the actual occurrence. The alleged eye-witness account of Muhammad Shehzad/complainant also remained doubtful as he had not identify the accused persons before the Court and only testified he identified the accused during identification parade. The remaining witnesses i.e. PW-4 Muhammad Ashraf and PW-5 Saqlain Haider were not residents of that house where the occurrence had taken place, both were chance witnesses, they both witnesses belonged to village Noor Pur Jattan, whereas the occurrence allegedly took place at Bihari Pur, and the distance between the two villages has been admitted to be about 1-2 kilometers. Their claim that they heard firing shots and immediately reached the place of occurrence requires careful consideration, particularly when they could not provide any convincing explanation regarding their presence at or near the place of occurrence at that odd hour of night. It is normally not possible for a human being to hear the fire shot from 1-2 km away in the night time and reach at the exact location of the fire shot within no time. The narration of the facts suggest that they did not witness the actual occurrence of firing upon the deceased. Their presence being doubtful and unexplained, their testimony cannot be treated at par with that of a natural witness. Moreover, both PW-4 and PW-5 are closely related to the deceased, PW-4 was the cousin of the mother of deceased while PW-5 was his maternal uncle, therefore their testimony requires independent corroboration. The prosecution has failed to produce any independent witness from the locality to support their version. Nowhere in the evidence of PW-3 that he identified the accused persons before the Court. Keeping in view that the FIR was against unknown persons, absence of description of culprits, delayed identification proceedings, non-production of the material eye-witness Miraj Din, non-identifying the accused by PW-3 before the Court and the doubtful presence of PW-4 and PW-5 as chance witnesses, the ocular account does not inspire confidence and requires corroboration from other reliable evidence before being relied upon for conviction. The version of PW-4 and PW-5 that they reached the place of occurrence after hearing firing shots from a distance also requires careful consideration. Relating to the chance witness, it was held in case law reported as "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) as under:-
"A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
Reliance in this respect is also placed on case law reported as Abdul Hayee and Abdullah alias Ghazali and another v. The State and others (2025 SCMR 281) and Iftikhar Hussain alias Kharoo v. The State" (2024 SCMR 1449).
8. The FIR, which is the first version of the occurrence, was lodged against unknown accused persons and no description, identification marks, physical features, age, height, complexion, clothes or any other distinguishing characteristics of the alleged culprits were provided in the basic version of the prosecution. In such circumstances, the subsequent identification of the accused persons during identification parade proceedings assumes vital importance; however, where the witnesses had no prior description of the accused persons in the FIR or in their earliest statements, the evidentiary value of such identification parade becomes doubtful and requires independent corroboration. The very purpose of an identification parade is to test the memory and capacity of a witness to identify a person whom he had not previously known, but where no features of the unknown accused were ever disclosed by the witnesses at the earliest possible opportunity, the possibility of mistaken identification or subsequent improvement cannot be ruled out. It is established proposition of law that Test Identification Parade is of no avail to the prosecution case when description/features of the accused were not given in the contents of the FIR. In case law reported as "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) it was observed by the prestigious Supreme Court of Pakistan as infra:
"6....It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the FIR. It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of FIR, the benefit of doubt be given to the accused persons coupled with the face that according to the prosecution witnesses they had opportunity to see them on the day of incident in moonlight...
TIP proceedings are silent qua the description of facial features complexion, exact heights and other resembling features of the unknown accused persons with dummies which seriously diminished the evidentiary value of such identification parade. Reliance can be placed on case law reported as "Mian Sohail Ahmed and others v. The State and others" (2019 SCMR 956), wherein it was held that:-
"The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmities diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161. Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential."
9. Another material circumstance affecting the reliability of the ocular account is the absence of any proved source of light at the place of occurrence. The alleged incident took place during night hours at about 08:30 p.m., when natural light was not available. Although PW-5 attempted to explain the identification of the assailants by stating that a beam was present at the spot, however, the said source of light was neither taken into possession by the Investigating Officer nor was it made part of the investigation through any recovery memo. The Investigating Officer also admitted that no source of light was shown in the site plan. In the absence of any recovery or independent evidence regarding the existence and intensity of such source of light, the alleged identification of unknown assailants during a sudden night occurrence becomes doubtful, particularly when no description or distinguishing features of the accused persons were mentioned in the FIR or during the initial investigation. In the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), the Hon'ble Supreme Court observed as under:-
"Although the prosecution alleged that sufficient light of bulbs was available there but during investigation, no such bulbs (source of light) were taken into possession by I.O. In that eventuality, the identification of eh assailants became doubtful especially when Melimood complainant, PW-11 and Muhammad Yar PW-12 allegedly saw the occurrence from a distance of more than 100 feet. Learned counsel for the appellant and learned Additional Prosecutor General are unable to give any explanation as to why the source of light was not taken into possession."
Guidance in this respect is also solicited from the cases reported as "Muhammad Waseem v. The State" (2026 SCMR 434), "Chetan v. The State" (2025 SCMR 944), "Khalil v. State" (2017 SCMR 960) and "Jan Muhammad alias Jani v. The State" (2024 YLR 94). No cavil to the proposition, it was duty of the prosecution to establish light at the relevant time, the segment of prosecution evidence to that extent is deficient.
10. Now attending the medical evidence produced by the prosecution. Medical evidence alone, without specific attribution, is insufficient to connect an accused with the commission of the offence. In the present case, the medical evidence in the shape of post-mortem reports of deceased Haider Ali only establishes the factum of death and the nature of injuries sustained by the deceased persons. The post-mortem reports may confirm the cause of death and the seat of injuries, but they do not provide any assistance regarding the identity of the assailants or as to which particular accused caused the fatal injuries. The prosecution version is that the occurrence took place during a dacoity incident and that deceased Haider Ali caused firearm injuries to three unknown dacoits in his defence, whereas one unknown dacoit expired at the spot and the remaining injured persons were allegedly taken away by their companions. However, despite this specific version, no medical examination, MLC or other evidence regarding the alleged injured dacoits/appellants were collected by the Investigating Officer. The Investigating Officer himself admitted that he did not find or inquire from any hospital, RHC, Civil Hospital or dispensary regarding any injured person having firearm injuries. This omission assumes significance because such evidence could have provided an important link connecting the accused/appellants with the alleged occurrence. Even otherwise, the medical evidence does not support the identification of the accused persons, particularly when the ocular account itself is doubtful and the witnesses claimed to have identified unknown assailants during a night occurrence without any description of their features in the FIR or during initial investigation. It is settled principle that medical evidence is merely supportive in nature and cannot by itself prove the guilt of an accused. Where the presence and reliability of ocular witnesses is under serious doubt and there is no independent corroboration connecting the accused with the crime, medical evidence alone cannot be made the basis for conviction. Reliance is placed upon case law reported as "Israr Ali v. The State" (2007 SCMR 525).
11. The alleged recoveries of cash and weapons at the instance of the appellants also do not provide independent corroboration sufficient to sustain the conviction. The recoveries were effected after considerable delay, i.e. several months after the alleged occurrence, and were made from open places such as bamboo crops and residential quarters, which were not shown to be under the exclusive possession or control of the respective accused persons. The Investigating Officers admitted during cross-examination that ownership and specific details of the places of recovery, including khasra numbers and ownership particulars, were not mentioned in the record. Furthermore, the alleged recoveries were made after the appellants were nominated through delayed investigation and identification proceedings, whereas initially the FIR was against unknown persons. In such circumstances, the recovery evidence cannot be relied upon as independent corroboration, particularly when the ocular account itself suffers from serious doubts regarding identification, presence of witnesses and source of light. Therefore, the alleged recoveries, instead of strengthening the prosecution case, fail to remove the reasonable doubt available to the appellants. Guidance may be sought from case law reported as "Muhammad Jamil v. Muhammad Akram and others" (2009) SCMR 120). Once the ocular account has been disbelieved by this Court, such recovery, standing alone, carries no independent probative value and is of no assistance to the prosecution case. Reliance is placed upon the decision of the Supreme Court of Pakistan in case law reported as "Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) wherein it was held as under:-
"Recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case."
Further reliance can be placed on "Hayat Ullah v. The State" (2018 SCMR 2092), "Nasir Javaid and another v. The State" (2016 SCMR 1144), "Muhammad Nawaz and others v. The State and others" (2016 SCMR 267) and Muhammad Afzal alias Abdullah and others v. The State and others" (2009 SCMR 436).
12. In the said backdrop, it cannot be held that the prosecution had succeeded in establishing its case against the accused/appellants beyond the shadow of doubt. The prosecution has failed to bring on record any convincing and confidence-inspiring material to establish that it were the appellants who had committed the occurrence. It is a settled principle of criminal jurisprudence that the harsher the sentence, the stricter the standard of proof required to sustain a conviction. In order to extend the benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubt. Even a single circumstance, if sufficient to create reasonable doubt in the mind of a prudent person regarding the guilt of the accused, would entitle them to such benefit as a matter of right and not of grace. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons as held by this Court in the cases reported as "Imran v. The State" (2026 SCMR 47), "Asmat Ullah Khan and others v. The State and others" (PLD 2024 SC 1119), "Muhammad Riaz and others v. The State and others" (2024 SCMR 1839).
13. For the foregoing reasons, this appeal is allowed , conviction and sentences of the appellants ( Abbas, Shoukat Ali, Nadeem, Saleem, Muhammad Arshad and Muhammad Waris) awarded by the trial Court through impugned judgment are hereby set-aside. They are acquitted of the charge and directed to be released forthwith, if not required in any other case.
14. For the above reasons, Criminal Revision No. 69594 of 2023 filed by the complainant fails and is accordingly dismissed .
JK/A-9/L Appeal allowed.