BASHIR AHMAD alias Phero Versus State

IRFAN SAADAT KHAN, J.--- Through the instant Jail Petition, Bashir Ahmad alias Phero (the 'petitioner' ) has challenged the judgment of the Lahore High Court, Lahore, dated 11.10.2017, in respect of Murder Reference No.264 of 2014 and Criminal Appeal No.437-J of 2014, whereby the sentence of death awarded to the petitioner for committing the murder of Samar Iqbal (the 'deceased' ) was converted into imprisonment for life, however, the compensation and sentence awarded for default in making such payment were maintained. The benefit under section 382-B of the Code of Criminal Procedure, 1898 ( 'Cr.P.C.' ) was also extended to the petitioner, while the conviction awarded by the Trial Court under sections 393/34 of the Pakistan Penal Code, 1860 ( 'P.P.C.' ) was set aside. The High Court also set aside the conviction under section 302(b), P.P.C. awarded to the petitioner by the Trial Court for murdering the deceased Muhammad Yaseen.

2.Briefly stated the facts of the case as per the complainant Ahmad Ali (PW-2) are that a FIR No.681/2010 was registered on 19.09.2010 at 9:40 p.m., in respect of an incident which took place on the same date at about 07:15 p.m. As per the said FIR, the complainant is a resident of Chak-12/JB, South Branch and is engaged in the profession of cultivation, for which land was taken by him from one Mulazam Hussain on lease and on which he cultivates maize. That on the said date, he alongside Muhammad Yasin, Samar Iqbal son of Muhammad Ali, Nasir Ali son of Bashir Ahmed and Tahir Maqsood son of Nazeer Ahmed after harvesting the maize, loaded it onto a tractor trolley for sale in Chiniot Market. However, at about 07:15 evening time, when they were near the land belonging to Muhammad Nawaz Salotra, all of a sudden Sajid Ali armed with a rifle, accompanied by two unknown persons of moderate complexions, average heights, young and duly armed with rifles, came in front of their tractor and asked them to stop it. The complainant, along with his companions, saw the said persons in the light of the tractor and duly identified Sajid Ali. They then asked Sajid Ali as to what had happened upon which Sajid Ali raised his voice by saying to his co-accused that since they have been identified hence kill all the persons. By saying so Sajid Ali opened fire, which hit the left flank of Muhammad Yasin, while the unknown persons fired direct shots, which hit Samar Iqbal on his left shoulder and left side ribs. The complainant party cried for help upon which the accused fired another volley at them which they narrowly escaped. From around the nearby bushes some people also opened fire on the accused whereafter they fled away from the scene. When the complainant party attended to their injured companions, they saw that Samar Iqbal had died on the spot. Thereafter, they immediately rushed Muhammad Yasin to the DHQ Hospital, Chiniot who after some time also succumbed to his injuries. As per the complainant, the motive and reason behind this occurrence was that Sajid Ali and his companions intended to commit dacoity but when they were duly identified by the complainant party, they opened fire, due to which Muhammad Yasin and Samar Iqbal had expired. The complainant also mentioned that he, Nasir and Tahir could easily identify the two unknown persons, if seen again. After leaving the dead bodies at the DHQ Hospital, Chiniot, the complainant then arrived at the Police Station for lodging the FIR, however, on the way he met Zafar Ullah Khan, SI to whom he narrated the whole story.

3.The matter proceeded before the Trial Court, which recorded the evidence of as many as 12 witnesses convicted the petitioner under sections 302, 34 of the P.P.C. through its judgment dated 26.06.2014 in Sessions Case No. 12-SC of 2012 and Trial Case No.40 of 2012 and sentenced him to death by way of Ta'zir . The Trial Court additionally directed the petitioner to pay Rs.2,00,000/- to the deceased's legal heirs as compensation or to suffer SI for six months in default thereof. The petitioner was also found guilty under sections 393/34 of the P.P.C. and was sentenced to seven years RI, along with being fined for Rs.50,000/- or to suffer SI for four months in default of such payment. The benefit under section 382-B, Cr.P.C. was however granted to him. The accused Sajid Ali, however, was not found involved in the occurrence and by extending benefit of doubt he was acquitted of the charges. Thereafter, an appeal was preferred by the petitioner before the Lahore High Court, Lahore, which decided the Criminal Appeal No.437/J of 2014 of the petitioner and the corresponding Murder Reference No.264 of 2014 in the terms supra . It is against this judgment of the High Court that the present Jail Petition has been filed.

4.Malik Muhammad Suleman Awan, learned ASC has appeared on behalf of the petitioner ( via video-link, Lahore Branch Registry of this Court ) and submitted that under identical circumstances, accused Sajid Ali had been acquitted by the Trial Court, when a similar role of firing upon the complainant party was attributed to the said co-accused. According to him, astoundingly, only the present petitioner was found guilty of the offence - a conclusion which, according to him, is both illegal and unwarranted. The learned counsel submitted that the complainant party has let off Sajid Ali after taking heavy sums from him and that since the petitioner is a poor person who could not fulfil the illegal demand of compensation raised by the complainant, therefore, he was unnecessarily implicated in the instant matter. He contended that the prosecution has failed to ascribe any motive to the petitioner. He next stated that the occurrence took place in the darkness at night time and the only source of light mentioned was that of the tractor which was not taken into possession. He stated that when the petitioner was arrested nothing was recovered from his possession. He contended next that the manner in which identification parade took place was highly doubtful. The learned counsel argued that the crime weapon was recovered after a considerable time and that there was no forensic report linking the recovered gun with the empties recovered from the spot.

The learned counsel prominently stated that when the High Court has observed that neither the motive was proved nor was the recovery held to be consequential, there was no justification to award a sentence of imprisonment for life to the petitioner and that petitioner's case should be treated identically to that of Sajid Ali, who was granted the benefit of doubt, whereas the petitioner has been deprived of the said relief. He stated that there are marked contradictions in the depositions of the various PWs, which have not been considered by the Trial Court as well as the High Court. He further argued that the charges levelled against the petitioner under sections 393/34 of the P.P.C. have not been proved and the petitioner has already been acquitted by the High Court from the said charges, which clearly establishes that the allegations made in the FIR, as well as, the prosecution's eye-witnesses depositions to the effect that the petitioner had accosted the complainant party with the intention of committing robbery-remained unsubstantiated/unproved. He therefore finally prayed that in view of these factors the petitioner deserves to be acquitted by extending him the benefit of doubt.

5.Mirza Abid Majeed, Deputy Prosecutor General, Punjab ( 'DPG' ) has appeared on behalf of the State and argued that even if it is presumed that the motive of robbery was not proved and that the recovery of the weapon of offence was declared to be inconsequential, substantial relief on these aspects has already been granted to the petitioner by the High Court by converting his death sentence into that of life imprisonment. He added that the petitioner was duly identified by the complainant and other PWs after a proper identification parade, which was conducted under the supervision of a Judicial Magistrate, after fulfilling all the legal and codal formalities. He next contended that the depositions of the PWs have remained consistent on all material aspects of the case. He further argued that the case of Sajid Ali co-accused was different from that of present petitioner and that no parity in this regard could be claimed by the petitioner by arguing that since Sajid Ali co-accused has been acquitted by giving him benefit of doubt, the same relief may also be accorded to the petitioner. He next contended that it was on the pointing out of the petitioner that the crime weapon was recovered. He however, has conceded that the empties recovered from the spot were never sent for forensic examination. Finally, he submitted that the order of the High Court is unblemished and since the petitioner is responsible for murdering a young boy of 10 years, he does not deserve any leniency and the conviction, sentence and the amount of compensation awarded by the High Court may be maintained, by dismissing the instant Jail Petition.

6.We have heard the learned counsel for the petitioner as well as the learned DPG for the State, at length and have also perused the record with their able assistance. Nobody has appeared on behalf of the complainant.

7.Perusal of the record reveals that according to Azhar Iqbal (PW-1), his statement was not recorded by the police at the spot. Moreover, he stated that the dead bodies of the deceased were first taken to his house and then to the hospital which statement totally contradicts with the depositions of other PWs who have stated that the dead body of Samar Iqbal and the injured Yaseen were taken directly to the hospital and not to the house of Azhar Iqbal (PW-1). As per the deposition of the complainant, he stated that he saw the accused Sajid Ali and two unknown persons in the light of the tractor, which clearly establishes that there was no other source of light available at the crime scene. It is also an admitted fact that he described the incident as having taken place at 7:15 p.m. on 19.09.2010, which is well after sunset. It is also a matter of record that the basic allegation against Sajid Ali and the two unknown persons was that first they attempted to commit robbery and when Sajid Ali (co-accused since acquitted) was identified by the eye-witnesses then the accused opened firing and committed the murder of Samar lqbal and Muhammad Yaseen (deceased) however, it is evident from the record that Sajid Ali co-accused who was the only nominated accused in the FIR was acquitted by giving him the benefit of doubt and the conviction awarded to the present petitioner under sections 393/34, P.P.C. was also set aside by the High Court which shows that the alleged motive of robbery was not proved in this case and it further shows that the occurrence did not take place in the manner stated by the prosecution's eye-witnesses which also negates their presence at the spot at the relevant time. It is further a matter of record that the present petitioner was arrested by the Police on 20.01.2012, in some other case and nothing was recovered from him at the time of his arrest. Moreover, the weapon of offence (gun) was statedly recovered from the house of one Asghar Ali and as such the place of alleged recovery of gun was neither owned nor possessed by the petitioner. Moreover, no crime empty was recovered from the spot, therefore, the alleged recovery of gun on the pointing out of the petitioner is consequential for the prosecution and the same has rightly been declared so by the High Court in para No.15 of the impugned judgment.

8.It is also noted that as per the statement of Nawab Ali and Zubair (PW-4), the petitioner and one namely Asghar Ali came to Nawab's house on 21.09.2010 and confessed that it was the two of them who had killed the deceased, Samar Iqbal and Muhammad Yasin. However, it is strange that Nawab Ali and Zubair (PW-4) did not make any attempt to have the petitioner and Asghar Ali apprehended while they were present at their house on 21.09.2010. The identification parade, in our view, also appears to be quite dubious as it has been mentioned in the petitioner's statement under section 342, Cr.P.C. that he was shown to the complainant party before the parade and in this regard he had also made a complaint to the Judicial Magistrate stating that he was already shown to the identifying complainant party but the Judicial Magistrate simply ignored his assertion and objection and proceeded to conduct the identification parade. As per deposition of Nasir Ali (PW-3) it is evident that he did not mention the complete physical features of the unknown accused in his statement before the police. It was also admitted that the identification parade of the accused took place after a period of one year and four months from the incident. From the deposition of Zubair (PW-4) it is evident that though he narrated to the complainant that Bashir Ahmad and Asghar came to the house of Nawab on 21.09.2010 to confess their guilt and that he thereafter went alongside the complainant to the police station to record his statement but in the same deposition he admitted that he went to the police station for the first time after the arrest of the petitioner for identification which has contradicted his earlier statement and has made his deposition quite dubious insofar as going to the police station is concerned. He has also admitted that the thanedar showed the petitioner to him and told him that he is the accused of their case. Under the circumstances identification of the petitioner in the identification parade is not free from doubt.

9.It is also a matter of record that all the witnesses are close relatives of the complainant and that Sajid Ali was exonerated by the complainant party though he was the only accused who was nominated in the FIR whereas, the petitioner was not named therein. No motive has been proved in the instant matter for the murder of Samar Iqbal deceased, as the aspect of robbery has not been proved nor does there appear to be any other apparent motive that could be considered confidence-inspiring or attributable to the petitioner for killing Samar Iqbal deceased.

10.If all these factors are considered in juxtaposition it would reveal that the present case is full of doubts, conjecture and surmises and the depositions of the PWs could also not be considered to be confidence-inspiring. The discussion above clearly demonstrates the material flaws in the prosecution case, rendering it doubtful. Since the instant case is one that is replete with reasonable doubts we are of the view that the prosecution has failed to prove its case against the present petitioner beyond reasonable doubt. This Court has already ruled countless times and has recently reiterated in the case of Ahmed Ali and another v. The State (2023 SCMR 781) that in cases where there is even a single doubt, the benefit of that doubt would accrue as of right to an accused. In the foregoing case, this Court held that:

11.We, therefore, convert this petition into appeal and allow the same. Consequently, we set aside the judgments of the Trial Court and the High Court dated 26.06.2014 and 11.10.2017 respectively. The appellant is acquitted from the charge while extending the benefit of doubt. If the petitioner is not required to be detained in jail in any other matter/case, he shall forthwith be released.

12.These are the reasons of our short order dated 30.06.2025 which is reproduced hereinbelow:

JK/B-5/SC Appeal allowed.