MUNIR AHMAD Versus State

ISHTIAQ IBRAHIM, J.--- Munir Ahmed, Zulfiqar alias Kala and Naseer Ahmed, the appellants, charged for committing murder of Ghulam Sarwar, the deceased, vide case FIR No.610/2010 dated 17.12.2010, under sections 302 and 34 of the Pakistan Penal Code, 1860 ( P.P.C. ), registered at Police Station Saddar Lodhran, were tried by the Additional Sessions Judge, Lodhran ( Trial Court ). Upon conclusion of the trial, the Trial Court vide judgment dated 24.09.2011, convicted the appellants under section 302(b), P.P.C. and sentenced appellants Munir Ahmed and Zulfiqar alias Kala to death as Ta azir with direction to pay Rs.1,00,000/-, each, as compensation under section 544-A of the Code of Criminal Procedure, 1898 ( the Code ) to legal heirs of the deceased to be recovered as arrears of land revenue while appellant Naseer Ahmed was sentenced to undergo imprisonment for life as Ta azir and to pay Rs.1,00,000/-, as compensation to legal heirs of the deceased under section 544-A of the Code, to be recovered as arrears of land revenue. Benefit of Section 382-B of the Code was extended to the appellants.

2.The learned Lahore High Court, Lahore ( the High Court ), while dismissing Criminal Appeal No.1021 of 2011 filed by the appellants-convicts, maintained their conviction under section 302(b), P.P.C.; however, it commuted the death sentences of appellants-convicts Munir Ahmed and Zulfiqar alias Kala to imprisonment for life. Consequently, Murder Reference No.148 of 2011, submitted by the Trial Court for confirmation of their death sentence, was answered in the negative vide judgment dated 09.01.2017 ( the impugned judgment ). The sentence of appellant Naseer Ahmed was also maintained. The direction regarding payment of compensation under section 544-A of the Code as imposed by the Trial Court upon all the appellants, was upheld. The benefit of section 382-B of the Code was also extended to them.

3.Being aggrieved by the judgment of the High Court, the appellants-convicts filed Jail Petitions Nos.154 and 220 of 2017 before this Court. Leave to appeal was granted vide order dated 18.01.2021 to reappraise the entire evidence in light of the contentions raised by learned counsel for the appellants-convicts. Conversely, Rao Muhammad Anwar, the complainant-petitioner, filed Criminal Petition No.394-L of 2017, seeking enhancement of the sentence of the respondents-convicts from life imprisonment to the normal penalty of death prescribed for the offence of murder.

4.The prosecution s case as unfolded in the First Information Report ( FIR ) Exh.PC/1, registered on the complaint Exh.PC of complainant Khushi Muhammad (PW.3) is that on 17.12.2010 at about 01.15 p.m. when he along with Muhammad Wakeel (PW.7) and Liaqat Ali (given up) reached Makhdoom Pur Loni Morr on a motorbike, they saw his son Ghulam Sarwar deceased present there. In the meantime, the appellants-convicts Munir Ahmed, armed with .7MM rifle, Zulfiqar alias Shama, armed with .44 bore rifle and Naseer Ahmed, armed with .30 bore pistol, arrived there on a motorcycle and after raising Lalkara to teach a lesson to the deceased for lodging a case against them, appellant Zulfiqar alias Shama fired a burst with his rifle at the deceased, as a result, he got hit on right side of his head and fell to the ground. In the falling position, appellant Naseer Ahmed fired with his pistol .30 bore which hit the deceased on right and left sides of his chest. Appellant Munir Ahmed then fired at the deceased with his weapon, as a result, he got hit on back side of his head. Appellant Zulfiqar again made fire shot which landed on the back side of thigh of the deceased. Then appellant Munir Ahmad made fire shots hitting the deceased at his buttock while with further fire shot of appellant Naseer Ahmed the deceased got hit on his left knee. The complainant and his companions named above when tried to intervene, the appellants extended them threats of dire consequences. Motive behind the occurrence as disclosed in the FIR was that appellant Munir Ahmed etc had kidnapped wife of the deceased and in this regard case FIR No.578/2010 dated 26.11.2010, under section 365-B, P.P.C. was registered at Police Station Saddar. It is alleged that appellant Munir Ahmed etc had nourished grudge of that case due to which all the appellants in connivance with each other committed murder of the deceased.

5.Upon arrest of the appellants-convicts and completion of investigation, report under section 173 of the Code was submitted against them before the Trial Court. After facing full-dressed trial, the appellants were convicted and sentenced by the Trial Court. Their conviction was maintained by the High Court, however, sentence of death of the two appellants was commuted to imprisonment for life through the impugned judgment, as noted in detail above.

6.We have heard the arguments of learned counsel for the parties as well as the learned Additional Prosecutor General Punjab, appearing on behalf of the State and perused the record, evidence and the judgments of the Courts below with their able assistance.

7.Complainant Khushi Muhammad (PW-3), father of the deceased along with Muhammad Wakeel (PW-7), uncle of the deceased, have furnished the ocular account of the occurrence. Both are residents of Chak (village) Liaqat Abad, Mauza Wahi Motenmal, District Lodhran , and were cultivators (zamindars) by profession during the days of occurrence. The place of occurrence, as reflected in the FIR, is Makhdoom Pur Loni Morr . However, according to statements of the alleged eye-witnesses neither they have residential houses nor possesses any landed property near the place of occurrence. In these circumstances, both the alleged eye-witnesses fall within the category of chance witnesses . It is a settled and consistently reiterated principle of criminal jurisprudence that before an eye-witness can be safely relied upon by the Court, he must establish beyond reasonable doubt his presence at the spot at the time of the occurrence through some strong, independent, and confidence-inspiring evidence. Although ocular evidence constitutes direct evidence, its probative value is wholly dependent upon the credibility of the witness, which is inseparably linked with proof of his presence at the scene of occurrence. Where the presence of an eye-witness becomes doubtful, his entire testimony is rendered suspect and unsafe for reliance. A significant dimension of this doctrine arises in cases involving chance witnesses, persons who claim to have been present at the place of occurrence by sheer coincidence, where, in the normal course of human conduct, their presence would not ordinarily be expected. Such witnesses are required to furnish a plausible, natural, and convincing explanation for their presence at the spot at the relevant time. Failure to offer a satisfactory explanation gives rise to a presumption that the witness was not present at the scene, and such unexplained presence gravely undermines his credibility, rendering his testimony unsafe for sustaining a conviction.

8.Khushi Muhammad complainant (PW-3), neither in the FIR nor in his examination-in-chief uttered a single word regarding the purpose of his presence at the place of occurrence or the reason for accompanying Muhammad Wakeel (PW-7) on the fateful day. Likewise, PW Muhammad Wakeel also did not disclose, in his examination-in-chief, the purpose of his visit to the spot and his company with the complainant. It was only during their cross-examination, in response to questions put by the defence, that both the alleged eye-witnesses introduced, for the first time, a story that on the fateful day they had gone to village Beharri to purchase a buffalo from one Yameen and, while returning therefrom, when they reached the place of occurrence, they allegedly witnessed the incident. This belated explanation, introduced for the first time by the alleged eye-witnesses is actually an effort on their part so as to justify their presence at the spot at the time of occurrence. What pinches our mind is the sheer coincidence that at the very moment the alleged eye-witnesses reached the spot, the appellants also arrived there and committed the murder of the deceased in front of the eye-witnesses. Such an unnatural and improbable coincidence renders the version of the alleged eye-witnesses highly suspect.

9.A careful scrutiny of the testimony of both alleged eye-witnesses reveals glaring and material contradictions, striking at the root of their claimed presence at the scene at the time of occurrence. According to the complainant, they departed from their village to village Beharri at about 11:30 a.m., whereas PW Muhammad Wakeel stated that they left their village at about 10:00 or 10:30 a.m. The complainant stated that village Beharri is situated at a distance of about 3⅓ kilometres towards the east of the place of occurrence, while PW Muhammad Wakeel asserted that the said village is located at a distance of 7 to 8 kilometres from the crime spot. The complainant stated that they stayed at Yameen s house for about 10 to 15 minutes, whereas PW Muhammad Wakeel claimed that they remained there for about one hour or even one and a half hours. According to PW Muhammad Wakeel, they saw a buffalo along with its calf, but no bargain was struck with Yameen, while the complainant stated that they only saw a buffalo and no calf. PW Muhammad Wakeel stated that they reached Yameen s house at about 11:00 a.m., whereas the complainant asserted that they reached there at about 1:00 p.m. The complainant in order to justify his escape from the firing by making dishonest improvement stated that during the occurrence he took shelter behind a heap of cotton sticks lying on the northern side of the place of occurrence. This version of the complainant was categorically contradicted by PW Muhammad Wakeel, who stated that there was no place for hiding at the spot. The statement of PW Muhammad Wakeel also creates serious doubt regarding the timing of the occurrence and report. He stated that after the occurrence the police reached the spot within 25 to 30 minutes, inspected the dead body, and then shifted it to the hospital. In the FIR the time of occurrence is shown as 1.15 p.m. and time of report as 2.20 p.m. If the version of PW Muhammad Wakeel is accepted, then the police must have reached the spot at about 1:45 p.m., whereas in the FIR the time of report is mentioned as 2:20 p.m. PW Muhammad Wakeel further stated that the dead body was shifted to the hospital at about 2:00 or 2:15 p.m. and that the post-mortem examination was conducted at about 5:00 or 5:30 p.m. However, according to Dr. Qurban Hussain (PW.1), the post-mortem examination of the deceased was conducted at 4:30 p.m., creating yet another inconsistency in the prosecution case. Yameen, from whose house the alleged eye-witnesses claimed to be returning on the fateful day, was neither examined by the investigating officer nor produced by the eye-witnesses to corroborate and justify their alleged visit to his house and then to the spot.

10.The cumulative effect of the material contradictions, inconsistencies, and dishonest improvements noted above creates serious doubt regarding the presence of the alleged eye-witnesses at the place of occurrence at the relevant time. The unnatural conduct of the alleged eye-witnesses is yet another strong circumstance which negates their presence at the crime scene. Both the alleged eye-witnesses have given minute details of each shot fired by each appellant and parts of body of the deceased hit by each bullet. Such conduct is wholly inconsistent with normal human behaviour. In the ordinary course of human conduct, a father witnessing his son being attacked would instinctively attempt to rescue him, even at the risk of his own life, rather than act as a passive spectator meticulously observing and memorising the details of each fire shot of the assailants. Even otherwise, keeping in view the speed and velocity of a firearm projectile, it is highly improbable for a person to notice and accurately attribute each bullet fired by different assailants to specific injuries on the body of the deceased. This Court has repeatedly observed that in many criminal cases of murder and attempt to murder, particularly from the Province of Punjab, FIRs and ocular accounts contain stereotyped narrations assigning specific roles to each accused by detailing each fire shot and its corresponding injury on the person of the victim/deceased, which is an exercise humanly impossible and indicative of subsequent deliberation, often aimed at roping in as many accused as possible with assigned roles. The learned courts below have squarely overlooked the material contradictions, inconsistencies, and dishonest improvements appearing in the testimony of the alleged eye-witnesses and have, thus, wrongly believed and relied upon their evidence. The peculiar facts and circumstances of the case, coupled with the admitted position that the village of the alleged eye-witnesses is situated at a distance of about two kilometers from the place of occurrence, strongly suggest that their presence at the spot was procured after the incident and that they were subsequently introduced as eye-witnesses to the occurrence.

11.Yet another striking feature of the case is that the alleged eye-witnesses assigned specific and distinct roles of firing to each appellant, along with the particular weapon allegedly used by them. According to the alleged eye-witnesses, appellant Munir Ahmed was armed with a .7-MM rifle, appellant Zulfiqar alias Kala with a .44 bore rifle, and appellant Naseer Ahmed with a .30-bore pistol. The learned Trial Court, however, in paragraph No.26 of the judgment, categorically observed that no empty of .30 bore was recovered from the place allegedly occupied by appellant Naseer Ahmed at the time of occurrence, nor was any crime weapon recovered on his pointation, except a motorcycle. In view of the above, the Trial Court reached the conclusion that appellant Naseer Ahmed had not participated in the firing and, therefore, attributed to him only the role of a facilitator of the remaining two appellants. We have also noted that no empty of 7-MM bore was recovered from the spot, despite the specific role of firing with a .7-MM rifle having been assigned to appellant Munir Ahmed. During spot inspection, the Investigating Officer recovered only five empties, one missed bullet, and two bullets of .44-bore vide recovery memo Exh.PE. The role of firing with a .44-bore rifle was assigned to appellant Zulfiqar alias Kala. The empties were sent to the PFSA and as per report (Exh.PQ), the empties were fired from two weapons. The learned High Court has held this recovery as inconsequential, inter alia, on the ground that the empties were dispatched to the PFSA after an unexplained delay of three days from the arrest of appellant Zulfiqar alias Kala. These findings of the High Court are rooted in a correct application of the principles consistently settled by this Court with regard to delayed, unsafe, and doubtful forensic evidence. Even otherwise, such piece of circumstantial evidence, being purely corroborative in nature, in our considered view, is not by itself sufficient to bring home the charge against the appellants in the absence of any direct or substantive evidence. It is by now well settled that unless the prosecution succeeds in producing reliable direct evidence, a conviction cannot be recorded merely on the basis of other forms of evidence, howsoever strong, convincing, or persuasive they may appear. The recovery of incriminating articles is primarily meant to lend corroboration to the ocular account. Ocular evidence and recoveries, therefore, are to be examined and evaluated in juxtaposition with each other so as to arrive at a just and proper conclusion.

12.The findings of the learned High Court regarding the non-proof of motive are likewise founded upon a proper and judicious appreciation of the evidence available on record and are fully in consonance with the principles consistently laid down by this Court. Furthermore, the medical evidence furnished by Dr. Qurban Hussain (PW-1), who conducted the post-mortem examination, does not support the ocular account, particularly in respect of the specific injuries on the person of the deceased attributed by the alleged eye-witnesses to each appellant. Similarly, medical evidence is only a supporting piece of evidence, which may confirm the ocular account in respect of the receipt of injury, the nature of the injury, and the type of weapon used in the occurrence, but it cannot, by itself, identify the assailant. In this regard, reference may be made to the judgments of this Court in Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103) and Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410) .

13.The cumulative effect of the foregoing discussion is that the prosecution has miserably failed to prove the guilt of the appellants through cogent, confidence-inspiring direct evidence duly corroborated by reliable circumstantial evidence and supported by medical evidence. The learned courts below, while overlooking the material contradictions and glaring discrepancies in the prosecution evidence which created serious doubt in the prosecution case, arrived at an erroneous conclusion by holding the appellants guilty of the offence. It is settled law that while giving the benefit of doubt to an accused, it is not necessary that multiple circumstances creating doubt must exist. If a single circumstance raises a reasonable doubt in the mind of a prudent person regarding the guilt of the accused, the accused is entitled to such benefit, not as a matter of grace or concession, but as a matter of right. This principle is founded on the maxim that it is better that ten guilty persons be acquitted than that one innocent person be convicted.

14.Consequently, Criminal Appeals Nos. 11-L and 12-L of 2021 are allowed. The convictions and sentences of the appellants recorded by the courts below are set aside, and while extending them benefit of doubt, they are acquitted of the charge levelled against them. They shall be set at liberty forthwith, if not required to be detained in connection with any other case.

Criminal Petition No.394-L of 2017

15.On acquittal of the respondents-convicts, the instant petition for enhancement of sentence has become infructuous which is hereby dismissed as such.

JK/M-3/SC Appeals allowed.