MUHAMMAD AKHTAR Versus State
This criminal appeal arises from a judgment of the Lahore High Court concerning convictions for murder and related offences. The core legal question was whether the prosecution had established the guilt of the accused beyond reasonable doubt, particularly in light of significant evidentiary gaps and contradictions. The Supreme Court found that the prosecution's case suffered from critical infirmities, including the failure to send recovered weapons for forensic analysis, the absence of independent corroboration for ocular testimony, and material contradictions in the statements of prosecution witnesses. Furthermore, the court drew an adverse presumption under Article 129(g) of the Qanun-e-Shahadat, 1984, due to the non-production of key witnesses. The Court held that the prosecution failed to prove the charges against the appellant beyond reasonable doubt. Consequently, the Supreme Court accepted the appellant's appeal, acquitted him of all charges, and dismissed the complainant's appeals against the acquittal of co-accused and for sentence enhancement. The key principle laid down is that where prosecution evidence is riddled with material contradictions and lacks independent corroboration, the benefit of reasonable doubt must be extended to the accused.
- Does the failure of the prosecution to send recovered weapons for forensic analysis create a reasonable doubt in the case?
- What is the legal consequence of the prosecution's failure to produce material witnesses at trial?
- Can a conviction be sustained when the ocular testimony of an alleged eye-witness is contradicted by medical evidence and lacks independent corroboration?
- Is the benefit of reasonable doubt mandatory when prosecution witnesses make dishonest improvements in their testimony?
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 302(b), Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
- Section 7, Anti-Terrorism Act 1997
- Article 129(g), Qanun-e-Shahadat 1984
NAEEM AKHTAR AFGHAN, J.--- While acquitting accused Ghulam Sarwar and Abdul Ghafoor, the co-accused Muhammad Makki, Muhammad Mazhar, Muhammad Akhtar, Ghulam Mustafa and Muhammad Aslam (the convicts) were awarded conviction and sentence as follows by Anti-Terrorism Court-I, Multan (the Trial Court) vide judgment dated 29 June 2009 in FIR No.296/2007 registered with Police Station Qureshiwala, District Lodhra on 4 September 2007 on the basis of statement of Muhammad Arshad son of Haji Muhammad (the complainant) for the allegation of committing murder of Haji Muhammad (father of the complainant), Muhammad Umer, Sajida Bibi and causing firearm injuries to Muhammad Siddique (PW.15) and Muhammad Umair (not produced at the trial). It was further alleged by the complainant that accused Ghulam Sarwar had abetted the co-accused for committing the offence due to previous enmity:
"Therefore, I convict Muhammad Makki, Muhammad Mazhar, Muhammad Akhtar, Ghulam Mustafa and Muhammad Aslam accused for committing rioting and award sentence under section 148, P.P.C. to undergo 2 years R.I. and a fine of Rs.10000/- each to accused, in default of which, they shall further undergo 3 months S.I. Muhammad Makki, Muhammad Mazhar, Muhammad Akhtar, Ghulam Mustafa and Muhammad Aslam accused committed Qatl-i-amd of Haji Muhammad, Muhammad Umar and Sajida Bibi and awarded death sentence under section 302-B, P.P.C. read with section 149, P.P.C. on 3 counts and they be hanged by neck till death subject to confirmation by the Hon'able Lahore High Court. Each convict shall pay compensation under section 544-A, Cr.P.C. of Rs.100,000/- to the legal heirs of each deceased Haji Muhammad, Muhammad Umar and Sajida Bibi, in default of which, shall further undergo 6 months S.I. Muhammad Makki, Muhammad Mazhar, Muhammad Akhtar, Ghulam Mustafa and Muhammad Aslam accused are convicted for causing injuries to Muhammad Siddique and awarded sentence under section 324/ 149, P.P.C. for 10 years R.I. and to pay Rs.20000/- as Daman by each of accused, in default of which, shall further undergo 3 months S.I. They are also convicted for committing house trespass of the house of complainant and awarded sentence u under sections 452/149, P.P.C. for 3 ye0ars R.I. and a fine of Rs.10000/- each of accused, in default of which, shall further undergo 3 months S.I. Act of the accused created panic, insecurity and sense of terrorism, as such, they are convicted and awarded death sentence under section 7 of Anti-Terrorism Act, 1997 and a fine of Rs.100, 000/-, in default of which, they shall further undergo 6 months S.I.
All the sentences shall run concurrently. Convicts are given benefit of section 382-B, Cr.P.C."
2. Capital Sentence Reference (CSR) No.12/2009 was forwarded by the Trial Court to the Lahore High Court (the Appellate Court) for confirmation or otherwise of the death sentence of the convicts. The convicts challenged their conviction and sentence by filing Criminal Appeals Nos. 21-ATA/2009 and 29-ATA/2010 before the Appellate Court.
3. While acquitting the co-convicts Muhammad Makki, Muhammad Mazhar and Ghulam Mustafa vide common judgment dated 12 February 2015 and answering CSR No.12/2009 in negative, the conviction of the convicts Muhammad Aslam and Muhammad Akhtar under section 302(b) P.P.C. was maintained but their death sentence were commuted to imprisonment for life with amount of compensation as directed by the Trial Court. Their conviction and sentence under sections 452, 324/34, P.P.C. was also maintained. However, their conviction and sentence under section 7 of the Anti-Terrorism Act, 1997 and under section 148, P.P.C. was set aside. The Appellate Court further ordered that all the sentences shall run concurrently with benefit of section 382-B, Cr.P.C.
4. The convicts Muhammad Aslam and Muhammad Akhtar challenged their conviction and sentence by filing Jail Petition No.251/ 2015 wherein leave to appeal was granted on 30 October 2019 and same was converted to Criminal Appeal No. 505/2019.
The complainant filed Criminal Petitions for Leave to
Appeals Nos.314-L/2015 and 391-L of 2015 challenging the acquittal of accused as well as for enhancement of the sentence of the convicts wherein leave to appeal was granted vide order dated 30 October 2019 and same were converted into Criminal Appeals Nos.506/19 and 507/ 19 respectively.
5. During pendency of appeals, convict Muhammad Aslam passed away in jail due to which Criminal Appeal No.505/2019, to his extent, stood abated.
6. After hearing learned counsel for the appellants and learned Additional Prosecutor General, we have perused the available record. According to case of the prosecution, during investigation, twenty four empties of Kalashnikov, two empty cartridges of 12 bore, one missed bullet and one missed cartridge of 12 bore were recovered from the place of occurrence but same along with .44 bore rifle (allegedly recovered from the appellant Muhammad Akhtar), 222 bore rifle (allegedly recovered from acquitted accused Muhammad Makki), 12 bore repeater (allegedly recovered from acquitted accused Muhammad Mazhar alias Shakar), Kalashnikov (allegedly recovered from acquitted accused Abdul Ghafoor), Kalashnikov (allegedly recovered from acquitted accused Ghulam Mustafa) and Mouzer .30 bore (allegedly recovered from deceased convict Muhammad Aslam) were not sent to the firearm expert for analysis and in this regard no explanation has been offered by the prosecution at the trial.
7. The complainant is son of deceased Haji Muhammad and is having blood relations with all the deceased and the injured. According to his statement recorded at the trial as PW.14, he along with his brothers Muhammad Shafique and Muhammad Akhtar were sleeping on the roof of their residential room in the night of the occurrence while his father along with other inmates (the deceased and injured) were sleeping in the courtyard. At about 5:30 am they heard the sound of motorbikes and saw the nominated accused present in their courtyard with firearms making firing upon the deceased and injured. PW.14 has specifically nominated all the accused with specific firearms in their hands and he has attributed specific firearm injuries on different parts of the bodies of the deceased as well as the injured to all the accused with precision. Surprisingly, PW.14 did not receive a single firearm injury in the whole occurrence despite indiscriminate firing by six nominated accused and despite allegedly witnessing the entire occurrence from a close range.
8. Non-receiving of any firearm injury by PW.14 during the occurrence and his accurate attribution of each injury of the deceased and injured to each accused specifically with specific firearms casts serious doubt about his presence at the place of occurrence and his planation as an eye-witness of the occurrence due to previous enmity with the nominated accused cannot be ruled out of consideration particularly when his testimony is lacking independent corroboration in material aspects.
9. There is no medico legal certificate of alleged injured Muhammad Umair on record. The alleged injured Muhammad Umair and Muhammad Shafique (brother of the complainant allegedly present at the place of occurrence) have not been produced as prosecution witnesses at the trial. Presumption under Article 129(g) of the Qanun-e-Shahadat, 1984 is drawn to the effect that had these two witnesses been produced at the trial, they would have not supported the prosecution version.
10. The ocular testimony of the injured witnesses is contradictory to the medico legal evidence.
11. The recovery of 44 bore rifle from the appellant Muhammad Akhtar is lacking independent corroboration and as earlier observed, same was not sent to the firearm expert with the crime empties for analysis. Hence the said recovery is held inconsequential.
12. The statements of complainant/ PW. 14, PW.16 Muhammad Akhtar and the injured witness (PW.15) are suffering from dishonest improvements and material contradictions rendering their testimony doubtful.
13. The infirmities in the case of the prosecution and the contradictory statements of the prosecution witnesses, which are also suffering from dishonest improvements, have created reasonable doubt in the case of the prosecution. According to settled principle of law, benefit of reasonable doubt has to be extended in favour of accused.
14. On reappraisal of the evidence available on record, it is concluded that the prosecution has failed to prove the charge against the appellant Muhammad Akhtar and acquitted accused beyond reasonable doubt. It is further concluded that the acquittal of co-accused by the Appellate Court is not suffering from any illegality or irregularity.
15. For the above reasons drawn today, vide our short order of even date, Criminal Appeal No. 505/2019 (filed by the convict Muhammad Akhtar) has been accepted and he has been acquitted of the charge while Criminal Appeals Nos. 506/2019 and 507/2019 (filed by the complainant against acquittal of the co-accused and for enhancement of the sentence of the convicts) have been dismissed.
MWA/M-49/SC Order accordingly.