2018 S C M R 344

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Umar Ata Bandial and Manzoor Ahmed Malik, JJ

IMTIAZ alias TAJ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 88-L of 2009, decided on 26th December, 2017.

(Against the judgment dated 13.11.2008 passed by the Lahore High Court, Lahore in Criminal Appeal No.
1581 of 2005 and Murder Reference No. 582 of 2005)

(a) Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Reappraisal of evidence---Benefit of doubt---Four

co-accused of the accused attributed effective firing at and specific injuries to the deceased had been
acquitted by the Trial Court---No independent corroboration to the ocular account furnished by two
prosecution eye-witnesses was forthcoming---Place of occurrence was an open field in an uninhabited
area, and according to the FIR the occurrence had taken place at about 05.30 a.m. whereas the medical
evidence did not rule out the possibility that actually the occurrence had taken place around midnight---
Both the eye-witnesses produced by the prosecution, were not only real brothers of deceased but they
were also chance witnesses who had failed to explain and establish the reason for their presence with
the deceased at the time of occurrence---After sustaining firearm injuries the deceased allegedly
reached the health center on his own, which was situated about 17 kilometers away from the scene of
the crime---Medico-legal Certificate did not disclose that the eye-witnesses were accompanying the
deceased when he had presented himself before the concerned doctor after the occurrence---One of
the firearm injuries received by the deceased was on his buttock which had also made an exit wound
from the deceased's waist and with such firearm injury it was almost impossible for the deceased to
walk for a distance of about 17 kilometers so as to present himself for medical examination---
Furthermore according to the prosecution a firearm had been recovered from the custody of accused
during the investigation but a positive report statedly received from the Forensic Science Laboratory in
respect of the said firearm had not been put to the accused at the time of recording of his statement
under S. 342, Cr.P.C.---Motive alleged by the prosecution had been discarded and disbelieved by the
Trial Court and the High Court had failed to record any reason for observing that the motive asserted by
the prosecution had been established by it---Cases which, according to the prosecution, were being
pursued by the deceased against the accused party did not show the accused to be directly connected
with the said cases and, thus, the said motive could not to be considered against the accused for the
purpose of providing corroboration to the ocular account---Prosecution had failed to prove its case
against the accused beyond reasonable doubt---Conviction and sentence of the accused were set aside
and he was acquitted of the charge of murder by extending the benefit of doubt to him---Appeal was
allowed accordingly.

(b) Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Eye-witnesses, evidence of---Corroboration---When the eye-witnesses had

been disbelieved against some accused persons attributed effective roles then the same eye-witnesses
could not be believed against the co-accused attributed a similar role unless such eyewitnesses received
independent corroboration qua the co-accused.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11; Sarfraz alias Sappi v. The State 2000 SCMR
1758; Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Akhtar Ali v. The State 2008 SCMR 6
ref.

(c) Criminal Procedure Code (V of 1898)---

----S. 342---Examination of accused by the court---Scope---Piece of evidence or a circumstance not put to

an accused person at the time of recording his statement under S. 342, Cr.P.C. could not be considered
against him.
(d) Criminal trial---

----Acquittal--- Effect upon non-appealing co-convict--- Benefit of acquittal of a convict could be

extended to a non-appealing co-convict if the circumstances of the case so warranted.

Shabbir Ahmed v. The State 2011 SCMR 1142 ref.

Shahid Azeem, Advocate Supreme Court for Appellant.

M. Shafique Bhandara, Advocate Supreme Court for the Complainant.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 26th December, 2017.

JUDGMENT

ASIF SAEED KHAN KHOSA, J.---Imtiaz alias Taj appellant and some others had allegedly fired at and
killed one Rustam Ali at about 05.30 a.m. on 16.06.2003 in an open filed in village Shereen in the area of
Police Station Gogera, District Okara in the backdrop of a motive according to which Rustam Ali
deceased was pursuing two criminal cases involving the accused party of the present case. With the said
allegations the appellant and his co-accused were booked in case FIR No. 273 registered at the above
mentioned Police Station during the same morning and after a regular trial four co-accused of the
appellant were acquitted by the trial court whereas the appellant and his co-accused namely Imtiaz son
of Muhammad Ramzan were convicted for an offence under section 302(b), P.P.C. read with section 34,
P.P.C. and the appellant was sentenced to death and to pay compensation whereas his co-convict
namely Imtiaz son of Muhammad Ramzan was sentenced to imprisonment for life and to pay
compensation. The appellant and his co-convict assailed their convictions and sentences before the High
Court through an appeal which was dismissed, the convictions and sentences of the appellant and his
co-convict recorded by the trial court were upheld and maintained and the sentence of death passed
against the appellant was confirmed. We have been informed that the appellant's co-convict namely
Imtiaz son of Muhammad Ramzan had repeatedly requested the Superintendent of the concerned jail to
file a Jail Petition before this Court against his conviction and sentence but no such petition has so far
been filed. The appellant had, however, filed Criminal Petition No.162-L of 2009 before this Court
against his conviction and sentence wherein leave to appeal had been granted by this Court on
08.04.2009. Hence, the present appeal by leave of this Court.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the
assistance of the learned counsel for the parties we have undertaken that exercise.

3. It is not disputed that four co-accused of the appellant attributed effective firing at and specific
injuries to Rustam Ali deceased had been acquitted by the trial court. The law is settled that if the eye-
witnesses have been disbelieved against some accused persons attributed effective roles then the same
eye-witnesses cannot be believed against another accused person attributed a similar role unless such
eye-witnesses receive independent corroboration qua the other accused person and a reference in this
respect may be made to the cases of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11), Sarfraz alias
Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and
Akhtar Ali v. The State (2008 SCMR 6). In the case in hand no independent corroboration to the ocular
account furnished by two eye-witnesses produced by the prosecution was forthcoming. The place of
occurrence was an open field in an uninhabited area. According to the FIR the occurrence in issue had
taken place at about 05.30 a.m. on the fateful day whereas the medical evidence did not rule out a
possibility that actually the occurrence had taken place around midnight. Both the eye-witnesses
produced by the prosecution, i.e. Mahmood Khan complainant (PW9) and Muhammad Akram (PW-10)
were not only real brothers of Rustam Ali deceased but they were also chance witnesses who had failed
to explain and establish the reason for their presence with the deceased at the time of occurrence. A
peculiar feature of this case is that Rustam Ali deceased had himself reached a Rural Health Centre after
the occurrence which Rural Health Centre was situated about 17 kilometers away from the scene of the
crime and according to the relevant doctor as well as the Medical-legal Certificate it was the deceased
himself who had presented himself personally for his medical examination at the said Rural Health
Centre. The statement made by the concerned doctor as well as the Medico-legal Certificate do not
disclose that the above mentioned real brothers of the deceased were accompanying the deceased
when he had presented himself before the concerned doctor at the relevant Rural Health Centre after
the occurrence. One of the firearm injuries received by the deceased was on his buttock which had also
made an exit wound from the deceased's waist and with that kind of a firearm injury received by the
deceased it was almost impossible for him to walk for a distance of about 17 kilometers so as to present
himself for medical examination at a Rural Health Centre. This by itself is a circumstance which is
sufficient to raise an eyebrow. As already observed above, the duration between death and post-
mortem examination as well as the duration between receipt of injuries and death did not rule out a
possibility of the occurrence taking place around midnight rather than at about 05.30 a.m. as asserted in
the FIR. According to the prosecution a firearm had been recovered from the appellant's custody during
the investigation but it is undeniable that a positive report statedly received from the Forensic Science
Laboratory in respect of the said firearm had not been put to the appellant at the time of recording of
his statement under section 342, Cr.P.C. The law is settled that a piece of evidence or a circumstance not
put to an accused person at the time of recording his statement under section 342, Cr.P.C. cannot be
considered against him and, thus, no corroboration to the ocular account was forthcoming on this score.
The motive alleged by the prosecution had been discarded and disbelieved by the trial court and the
High Court had failed to record any reason for observing that the motive asserted by the prosecution
had been established by it. The FIRs which, according to the prosecution, were being pursued by the
deceased against the accused party of this case did not show the appellant to be directly connected with
the said criminal cases and, thus, the said motive could not to be considered against the appellant for
the purpose of providing corroboration to the ocular account. It has already been noticed by us that the
medical evidence had gone a long way in discrediting the eye-witnesses produced by the prosecution
rather than providing them support. Apart from that the injury allegedly caused by the appellant (Injury
No. 1) to the deceased was not, found by the concerned doctor to be individually fatal.

4. For what has been discussed above a conclusion is inescapable and irresistible that the
prosecution had failed to prove its case against Imtiaz alias Taj appellant beyond reasonable doubt. This
appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the
courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He
shall be released from the jail forthwith if not required to be detained in connection with any other case.

5. Before parting with this judgment it may be observed that we have been informed that Imtiaz
son of Muhammad Ramzan co-convict had been convicted by the trial court for an offence under section
302(b), P.P.C. read with section 34, P.P.C. for the same murder and he was sentenced to imprisonment
for life and the High Court had upheld his conviction and sentence. We have further been informed that
despite his insistence the Superintendent of the concerned jail has not forwarded any Jail Petition
challenging the said co-convict's conviction and sentence before this Court. We have found that the case
against Imtiaz son, of Muhammad Ramzan co-convict was a better case for acquittal than that against
the appellant namely Imtiaz alias Taj inasmuch as the report received from the Forensic Science
Laboratory was in the negative to the extent of Imtiaz son of Muhammad Ramzan and he too had no
direct connection with the motive asserted by the prosecution. As if this were not enough, the trial court
had expressly observed in the impugned judgment passed by it that the said co-convict was merely
present at the scene of the crime at the relevant time and, according to the conclusion reached by the
trial court, the said co-convict had not fired at the deceased at all and had not caused any injury to the
deceased. It had been held by this Court in the case of Shabbir Ahmed v. The State (2011 SCMR 1142)
that the benefit of acquittal of an appellant can be extended to a non-appealing co-convict if the
circumstances of the case so warrant. We have found that the prosecution had utterly failed to prove its
case against Imtiaz son of Muhammad Ramzan co-convict as well and, thus, he too is entitled to be
acquitted of the charge. As a consequence of this conclusion reached by us it is ordered that Imtiaz son
of Muhammad Ramzan co-convict's conviction and sentence recorded and upheld by the courts below
are also set aside and he too is acquitted of the charge by extending the benefit of doubt to him. He
shall also be released from the jail forthwith if not required to be detained in connection with any other
case.

MWA/I-1/SC Appeal allowed.