Muhammad Sabir Versus State

Aalia Neelum, C.J .--- Muhammad Sabir son of Lehrasib, Caste Gujjar, resident of Barnali, Police Station Khurrianwala, District Gujrat-the appellant has assailed his conviction and sentence recorded by the learned Additional Sessions Judge, Lahore, vide judgment dated 06.02.2023 in case FIR No.58 of 1998, dated 24.03.1998, offences under sections 302, 109, 148, 149, 201 of P.P.C, registered at the police station, Wahdat Colony, District Lahore, whereby the trial court convicted the appellant under Section 302 (b) P.P.C and sentenced to Death as Tazir for committing Qatl-e-Amd of Inayat Meeran, with the direction to pay compensation of Rs.3,00,000/- as envisaged under section 544-A of Cr.P.C, and in case of default thereof, to undergo 06-months S.I. The appellant was also convicted under Section 201 of P.P.C. and sentenced to rigorous imprisonment for 05 years, with the direction to pay a fine of Rs.50,000/- and, in case of default thereof, undergo 02 months.

2.Feeling aggrieved by the judgment of the trial court, Muhammad Sabir, the appellant, has assailed his conviction and sentence by filing Criminal Appeal No.14716-J of 2023. The trial court also sent M.R. No.37 of 2023 ( The State v. Muhammad Sabir ) to confirm the death sentence awarded to the appellant, Muhammad Sabir. Both matters arising from the same judgment of the trial court are being disposed of through a single judgment.

3.The prosecution's story, as alleged in the FIR (Ex. PD) lodged on the statement of Nisar Jillani (the complainant died during trial), is that on 24.03.1998, the complainant (died during trial) came to meet his brother Inayat Meeran (since dead), who was working in the Punjab Assembly. After getting free from the office, the complainant (died during trial), along with Zafar Patwari, came to his house situated at 41-A, Wahdat Colony, Lahore, and they were sitting in the courtyard of the house. When Inayat Meeran offered Maghrib prayer, meanwhile, a knock at the door was made, and Inayat Meeran, after opening the door, made the guests sit in the drawing room of the house. After some time, the noise of an altercation arose. Complainant (died during trial), Zafar Iqbal (PW-11), and Farkhanda Bibi (PW-1) went inside the room and saw that the accused Sabir was holding a pistol in his hand, who pointed the same towards Inayat Meeran. The accused Sabir fired a shot that hit Inayat Meeran on the chest at the front, and he fell. Sabir ran out of the room, and the complainant followed him out. Liaquat Topa, armed with a Kalashnikov, was standing near the door, who threatened him that if he came forward, he would also be killed. Out of fear, the complainant stood in the doorway. Liaquat Topa and Sabir ran away. A white car was parked at short distance away, and two-armed persons he could identify who were sitting in it; they escaped. The motive for the murder is that Nazir's co-accused father was killed by the complainant s paternal cousin, Pir Muhammad. Inayat Meeran followed the case and secured Pir Muhammad's acquittal from the High Court. Furthermore, since then, Nazir, the co-accused, has been trying to get Inayat Meera killed. For the past six/seven days, they have been receiving news from different sources. Nazir from London consulted Sabir and others about the murder of Inayat Meera. Nazir Ahmed and Muhammad Iqbal provided information about the abetment. Action should be taken.

4.After the occurrence, the complainant reported the incident at the police station through his statement to Rana Abdul Sattar S.I (not produced), on the same day, i.e., 24.03.1998, based on which Ghias-ud-Din, DSP (PW-7) chalked out a formal FIR (Exh-PD). After registration of the case, the investigation of the case was conducted by Ashiq Ali, S.I. (PW-12), who arrested the accused persons, and having found them guilty, prepared a challan under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction while placing the names of all accused persons in Column No.3 of the challan. On 04.10.2021, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as fourteen (14) witnesses.

5.After the closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein neither he opted to appear as his own witness in terms of Section 340 (2) Cr.P.C., nor opted to produce any evidence in his defence. In response to a particular question that why this case was against him and why the PWs had deposed against him, the appellant made the following deposition: -

6.After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant s conviction in the afore-stated terms.

7.We have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.

8.According to the prosecution, the incident occurred on 24.03.1998 at 7:15 p.m. in Wahdat Colony, located within the jurisdiction of Wahdat Colony Police Station, District Lahore, which is only two furlongs from the place of occurrence. The formal FIR (Ex.PD) was registered on 24.03.1998 at 7:40 p.m., based on a verbal statement (not on record) made by Ch. Nisar Jillani, the complainant, at 7:30 p.m., before Rana Abdul Sattar, S.I. (since dead). According to the police proceedings incorporated at the bottom of the FIR, Rana Abdul Sattar, SI (since dead), along with police officers, was on patrol duty in the official vehicle at Bukhari Market when he received information about the incident and reached the spot. Chaudhry Nisar Jilani, the complainant (since dead), appeared before him and made the verbal statement (not on record), which was recorded, read out, and explained to him. Rana Abdul Sattar, SI (since dead), forwarded the Fard Biyan (not on record) through Shabbir Hussain, 8459/C (not cited as a witness) to the police station for the formal registration of the FIR. Relevant portion of FIR is hereby reproduced:-

As per the proceedings taken in the police station, it appears that upon receiving the complaint from Shabbir Hussain 8459/C (not cited as a witness), Ghais-ud- Din, D.S.P. (PW-7, then S.I.), prepared the FIR (Ex.PD) and admitted that the complaint is not available on record. Ghais-ud-Din D.S.P admitted during cross-examination that:-

During the examination-in-chief of Ghais-ud-Din D.S.P (PW-7), the defence has raised an objection that the original FIR chalked out by the prosecution witness is not available on the record, and an attested copy of the FIR cannot be exhibited. The objection of the learned defence counsel was repelled by the trial court while observing that an attested copy of the FIR is available in the file for the reason that the file was reconstructed under the order of the competent authority after the loss of the original record. However, upon review of the record, no order from the competent authority to reconstruct it has been found. A photocopy of the FIR is marked as Ex. PD. We examined the FIR (Ex.PD), which is not attested; it has only the stamp of police station without certificate. The mere imposition of a stamp on a document does not make it an attested document. It is not mentioned as a true copy of FIR (original not available on record) prepared in connection with the incident. A photocopy of a document is totally inadmissible in law as it is not secondary evidence. Apparently, the prosecution is unaware of the significance of a court's rejection of such a copy of a public document. Therefore, this FIR, which is treated as unauthenticated and marked as Ex. PD lacks its legal validity/sanctity, hence of no avail to the prosecution. It goes without saying that original copy of the FIR always remains available for the period of 60 years in the police station but same has also not been produced in this case and any reason whatsoever regarding non production of the same has also not been brought on the record by the prosecution, which further raises eyebrows on the subject.

It is also notable that the occurrence took place at 07:15 p.m. on 24.03.1998, and the distance between the police station and the place of the occurrence was two furlongs. The police reached the place of the occurrence, and further proceedings occurred there, as described at the bottom of FIR (Ex.PD) registered on the verbal complaint made by Ch. Nisar Jillani (who has since passed away) to Abdul Sattar S.I. (also dead) at 07:30 p.m. on the same day. The dead body of Inayat Meeran reached the mortuary of K.E. Medical University, Lahore, at 1:15 a.m. on 25.03.1998.

During the trial, the learned DDPP made an oral request to examine Zia-ud-Din Chishti, a draftsman, and Saeed Ahmad/C as secondary evidence of Hameed-ud-Din Chishti and Abdul Sattar S.I. (both since dead). Notice was given to the defence, and they raised no objection, allowing both to be produced as secondary evidence. Saeed Ahmad 9956/C appeared as PW-14. He appeared twice in the witness box; first, as PW-5, when he testified that on 24.03.1998, he, along with Miraj Din constable (who was later given up as PW) and Abdul Sattar S.I., went to the place of the incident, where Abdul Sattar S.I. handed over the dead body of Inayat Meeran along with relevant papers for deposit in the dead house. Later, Saeed Ahmad, 9956/C, was produced as PW-14 in secondary evidence for Abdul Sattar, S.I. During cross-examination, Saeed Ahmad 9956/C (PW-14) stated as follows:

He (PW-14) produced the inquest report of Inayat Meeran-deceased (Ex.PG), injury statement (Ex.PH), application for postmortem examination (Ex.PJ), and also placed on the record memo of recovery (Ex.PC) whereby the last worn clothes were taken into possession handed over by him (PW-14) to Abdul Sattar SI. (since dead). Saeed Ahmad 9956/C while appearing as PW-5 deposed during cross-examination that:-

He (PW-5) also deposed during cross-examination that they reached the place of occurrence at about 08:00/08:15 p.m. Self-contradictory statements have been made by Saeed Ahmad 9956/C (PW-5) during cross-examination by stating that he, along with I.O., reached the place of occurrence at 07:30 p.m. After that, he stated that they reached the place of occurrence at 08:00/08:15 p.m. On perusal of the inquest report (Ex.PG), in column No.3 of the time and date of receiving information of death, it is mentioned that 07:00 p.m. on 24.03.1998. It is the case of the prosecution that Inayat Meeran offered Maghrib prayer; after that, the door was knocked on, and the incident took place. In March, the time of Maghrib was from 06:15 p.m. to 06:45 p.m., whereas, as per police documents, i.e., the inquest report (Ex.PG), information of death was received at 07:00 p.m. by Abdul Sattar, SI. (since dead). In the column of death in the post-mortem examination report, the time and date of death were mentioned as per police papers at 7 p.m. on 24.03.1998. Zafar Iqbal (PW-11)-the eye-witness deposed during cross-examination that:-

Whereas the police proceedings incorporated at the end of FIR (Ex.PD) reveal that on receiving the information of the incident at Bukhari Market, Abdul Sattar S.I. (since dead) reached the place of occurrence, where Ch. Nisar Jillani, the complainant (since dead), met the I.O and got his statement recorded. As per the documentary evidence, i.e., FIR (Ex.PD), the statement was made at 07:30 p.m. on 24.03.1998 and the same was referred to the police station for registration of FIR, which was chalked out at 07:40 p.m. Whereas, inquest report (Ex.PG) contained particles of FIR, revealing that information of death was received at 07:00 p.m. The column relating to a brief history of the case reveals that the verbal statement of the complainant, Fard Biyan, was prepared and referred to the police station through Shabbir Hussain 8459/C for registration of the FIR. Injury statement of the dead body of Inayat Meeran for postmortem examination was prepared, and the dead body was sent through Saeed Ahmad 9956/C (PW-5) and Miraj Din 13312/C along with witnesses for identification of the dead body, to the dead house on 24.03.1998. The scanned copy of the relevant portion of the inquest report (Ex.PG) is as follows: -

No witness identified the dead body. It is also noted that Saeed Ahmad 9956/C, while appearing as PW-5, deposed during cross-examination that:-

As per the deposition of Saeed Ahmad 9956/C (P-5), it consumes 30/40 minutes to reach the hospital. Whereas the postmortem report (Ex.PE) of Inayat Meeran, the deceased, reveals that the dead body was received in the department at 01:15 a.m. on 25.03.1998, and this fact has been mentioned in column No. V Muscles, Bones, Joints, and before Column No.VI Remarks by Medical Officer . As per the opinion of the doctor, the probable time elapsed between death and postmortem was 6 to 10 hours, which suggests that the incident took place between 06:00 p.m. and 10:00 p.m. on 24.03.1998. If the dead body was handed over at the place of occurrence to Saeed Ahmad 9956/C (PW-5) with Miraj Din 13312/C at 07:30 p.m. or 08:00/08:15 p.m., it has to be received in the dead house before 09:00 p.m. on 24.03.1998. Whereas the documents reveal that the dead body was received in the department on 25.03.1998 at 01:15 a.m. and postmortem was conducted on the dead body of Inayat Meeran at 04:00 a.m, for which the prosecution has rendered no plausible explanation. The recovery memo of the last worn clothes (Ex.PC) produced by Saeed Ahmad 9956/C (PW-14) and Miraj Din/C (given up PW) reveals that after writing the place was left blank. It suggests that until the receipt of the last worn clothes on 25.03.1998 and the preparation of the memo of the last worn clothes, the accused was not known to the prosecution. Even the column for the date and time of preparation of the inquest report (Ex.PG) was left blank. In the above circumstances, it appears that the FIR was not registered when it was stated to have been, and the prosecution's story is doubtful.

9.There is another aspect of the case that throws a cloud of doubt on the prosecution story. Farkhanda Yasmeen (PW-1), widow and eye-witness of the incident, deposed that on 24.03.1998, she along with her husband Ch. Inayat Meeran was present in their house; Nisar Ahmad Jilani (since dead)-the complainant and Zafar Iqbal Patwari came there; they were sitting, and in the meanwhile, after Maghrib prayer, the bell of the door rang and Ch. Inayat opened the door; he along with one person, went to the drawing room; she was in the kitchen, and guests were sitting in the courtyard. On perusal of un-scaled site plan (Ex.PL), it reveals that before the incident, the deceased, the complainant and witnesses were present at point F , which is courtyard at the southern side of the quarter, whereas at the end of the quarter facing north, there was a door opening in the street, which is adjacent to drawing room, where the alleged incident took place. Farkhanda Yasmeen (PW-1) admitted during cross-examination that she had not mentioned in her statement that guests were sitting in the courtyard. In this regard, she (PW-1) deposed during cross-examination as under:-

In addition, Farkhanda Yasmeen (PW-1) also deposed about the surroundings of the house, contrary to the site plan. She (PW-1) deposed during cross-examination that:-

According to the scaled site plan (Exh.PF), the main gate is on the southern side, while the small gate is on the northern side, just behind the house. There are no gates to the quarter on the east and west sides. Quarter No. 42-A is on the eastern side, while there is an open paved road on the western side, 12 feet wide. While Farkhunda Yasmeen (PW-1) deposed during cross-examination that she had been living in the same quarter since her marriage. She deposed that, I was married with Inayat Meeran in 1980. I am residing at Lahore after my marriage. If she was living in the same quarter and occasionally had to go to her village, then she should have had a correct knowledge of the surroundings of the quarter. This indicates that the deposition of Farkhunda Yasmeen (PW-1) is doubtful, casting doubt on her presence at the spot.

Even Farkhanda Yasmeen (PW-1) and Zafar Iqbal (PW-11) tried to conceal their relationship with each other. Farkhanda Yasmeen (PW-1) deposed during cross-examination that she was not aware that her husband was having any relationship with Zafar Iqbal (PW-11). However, she (PW-1) stated that she had family ties with others. Although the defence brought on the record through cross-examination that Zafar Iqbal (PW-11) was a close relative of the deceased Inayat Meeran. Farkhanda Yasmeen (PW-1) deposed during cross-examination that:-

Farkhanda Yasmeen (PW-1) and Zafar Iqbal (PW-11), the eye-witnesses, are interested witnesses, and they have also tried to conceal their relationship. Admittedly, the complainant party was accused in the murder case of the father and brother of Nazir Ahmad (co-accused since acquitted). Under such circumstances, the entire prosecution's story is called into question. Farkhanda Yasmeen (PW-1) deposed during cross-examination that:-

This portion of the cross-examination suggests that the police arrived at the scene soon after the incident. The investigation of this case was entrusted to Ashique Ali S.I. (PW-12) on 28.01.2021, when on the same day, he made necessary correspondence for taking custody of the accused Muhammad Sabir from District Jail, Gujrat; on 08.12.2021, he went to District Jail, Gujrat, where he interrogated accused Muhammad Sabir and formally arrested him in this case and recorded his version.

Ashique Ali (PW-12)-the investigating officer admitted during cross-examination that the accused Sabir returned from England himself and was arrested at the airport in connection with a case registered against him at Kharian. During the investigation, no efforts were made to arrest him through Interpol. He (PW-12) admitted that the investigation against the accused remained with him and that no further officer had conducted any further investigation after the accused's arrest. The relevant portion of the cross-examination of Ashique Ali (PW-12)-the investigating officer is as follows:-

As far as the appellant's abscondence is concerned, the evidence against him is that he absconded after the incident. Mushtaq Ahmad ASI (PW-4) deposed during examination-in-chief that on 07.10.1999, Mushtaq Ahmad SI handed over to him the non-bailable warrants of arrest of the accused, Muhammad Sabir and Nazir Ahmad, for execution; thereafter, on 11.10.1999, he returned the non-bailable warrants of arrest with his report on the overleaf. After that, on 12.10.1999, the investigating officer handed him the proclamation to be pasted at a thoroughfare outside the accused person's residence and at the main entrance of the district court. On 19.10.1999, the investigating officer recorded his statement. Mushtaq Ahmad ASI (PW-4) admitted during cross-examination that, I made my report on overleaf of warrant. Warrant and report thereon are not available on police file. There is nothing to show that the proceedings under Sections 87 and 88 of the Cr.P.C. took place against the appellant as prescribed in the law. In the present case, the substantive piece of evidence in the shape of an ocular account has been disbelieved; therefore, no conviction can be based on absconsion alone. Reliance is placed on the case reported as Rohtas Khan v. The State (2010 SCMR 566).

10.Admittedly, there is no direct enmity of the appellant with the complainant party; his co-accused, who is his maternal uncle, had enmity with the complainant party. In the present case, the only circumstances that could, at best, be said to have been proved by the prosecution as well as the defence are that there was enmity between the co-accused, Nazir Ahmad, on account of criminal litigation. Enmity, as is well known, is a double-edged weapon that cuts both ways. On the one hand, it provided a motive for the accused to commit the occurrence in question; on the other hand, it equally provided an opportunity to the first informant to implicate his enemy. Proof of motive by itself may not be a ground to hold the accused guilty. The accused's motive to commit the crime, as stated by the co-accused Nazir Ahmad, cannot, by itself, lead to a judgment of conviction against the appellant. The complainant party had not assailed the acquittal of the co-accused, Nazir Ahmad. It is a settled principle of law that if evidence of the prosecution is disbelieved as a major portion of the accused person, it cannot be believed qua the other in the absence of very strong corroboration. Reliance is placed on the case law reported as Akhtar Ali and others v. State (PLJ 2008 SC 269). The Hon ble Supreme Court of Pakistan has also held it, Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758) and Iftikhar Hussain and others v. The State (2004 SCMR 1185). Thus, it becomes clear that the testimonies of prosecution witnesses contain significant contradictions. When it becomes clear that there are major contradictions in the witnesses' statements, their testimonies become doubtful. The story narrated by the prosecution witnesses becomes wholly unbelievable, and such witnesses cannot be relied upon. In this way, the prosecution case becomes doubtful, firstly when Farkhanda Yasmeen (PW-1) tried to conceal the relationship with Zafar Iqbal (PW-11); secondly, it is the prosecution case that Nisar Jillani and Zafar Iqbal, who were the guests were present in the house of the deceased, whereas, this fact has not been stated by Farkhanda Yasmeen (PW-1) widow, in her statement under section 161 of Cr.P.C. The improvement made by Farkhanda Yasmeen (PW-1) has been brought to the record by the defence, which has also been mentioned above. The dead body of the deceased was not identified by any of the witnesses, who were stated to have identified the dead body at the time of postmortem examination. It is the prosecution's case that the file of the case was lost, and the same was reconstructed, whereas the order by which the reconstruction of the file was ordered has not been exhibited. Whereas, on perusal of the record, it reveals that numerous documents are original, which had been exhibited, except for a few documents, which are carbon copies of the original. In these circumstances, it is difficult to accept the testimonies of the prosecution witnesses.

11.As it is difficult to rely upon the testimonies of Farkhanda Yasmeen (PW-1) and Zafar Iqbal (PW-11), and for other reasons enumerated hereinbefore, we are persuaded to hold that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt, as there were many dents in the prosecution's story. The conviction and sentence recorded by the trial court cannot be sustained. It is held in the case of Muhammad Akram v. The State (2009 SCMR 230) that: -

12.Considering the above discussion, we affirm that the prosecution has failed to prove its case against the appellant beyond any shadow of a doubt. Therefore, we accept Criminal Appeal No.14716-J of 2023, filed by Muhammad Sabir-appellant, set aside his conviction and sentence recorded by the learned Additional Sessions Judge, Lahore vide judgment dated 06.02.2023 and acquit him of the charges in case FIR No.58 of 1998, dated 24.03.1998, offences under sections 302, 109, 148, 149, 201 of P.P.C, registered at the police station, Wahdat Colony, District Lahore. The appellant, Muhammad Sabir, is ordered to be released forthwith , if not required in any other case.

13.Murder Reference No.37 of 2023 , forwarded by the trial court for confirmation of the sentence of death inflicted upon the convict, Muhammad Sabir, fails, which is answered in the negative, and the death sentence is not confirmed.

JK/M-70/L Appeal allowed.