Stereo HCJDA-38

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT

CRL.A. NO.1348/05
( ALLAH DITTA @ BHOLI VS. THE STATE )

MR NO.719/05

JUDGMENT

DATE OF HEARING: 02.03.2011

APPELLANT BY: MR.ARSHAD MEHMOOD SHEIKH,
ADVOCATE.
STATE BY: CH.MUHAMMAD MUSTAFA, DPG.

MANZOOR AHMAD MALIK, J.- This judgment

shall dispose of Criminal Appeal No.1348/05 (Allah Ditta @ Bholi

vs. The State) and Murder Reference No.719/05 sent by the learned

trial Court, for confirmation or otherwise, of the sentence of death

awarded to the appellant, as both these matters have arisen out of the

same judgment dated 29.06.2005 passed by Mr.Muhammd Saleem

Uppal, Additional Sessions Judge, Pattoki, whereby, Allah Ditta @

Bholi (appellant) was convicted under section 302(b) PPC for the

murder of Muhammad Khalid(deceased) and sentenced to death with

a further direction to pay a compensation of Rs.50,000/- (Rupees fifty

thousand only) to the legal heirs of the deceased, as provided under

section 544-A Cr.P.C. in default whereof to further undergo SI for six

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months. The appellant was also convicted under section 392 PPC and

sentenced to five years RI with a fine of Rs.10,000/- in default

whereof to further undergo two months SI.. However, Ramzan @

Jani, a co-accused of the appellant, was declared Proclaimed

Offender and perpetual warrants for his arrest were ordered by the

learned trial Court.

2. Brief facts of the case, as given by PW6 Khushi

Muhammad(complainant) in the FIR(Exh.PE) are that on 16.7.2001

at about 3.00/4.00 p.m., his elder son Muhammad Khalid(deceased)

alongwith Muhammad Boota and Mukhtar Ahmad, were returning

home from Lambay Jagir on the motorcycle. When they reached near

the graveyard of Ballooki Road Pukhta, two unknown accused armed

with firearms followed them and stopped their motorcycle. Both the

accused came down from their motorcycle while his son and others

also alighted from their motorcycle. Faced with the situation,

Mukhtar handed over Rs.2,600/- to them(accused), while, Khalid also

gave his wrist watch to the said two unknown persons. However,

Muhammad Khalid(deceased) refused to give his gold locket, upon

which, the assailants fired from the rifle which landed on Khalid’s

thigh who fell down. Both the accused persons took the said locket

and ran away from the spot alongwith the firearm. Boota and

Mukhtar took complainant’s son to the Bhai Pheru hospital, who,

was referred to the Jinnah Hospital, Lahore, but, Khalid breathed his
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last on the way to hospital, whereafter, they brought the dead body

back.

3. After registration of case, the complainant got recorded his

supplementary statement on 19.1.2002 wherein he nominated Allah

Ditta @ Bholi (appellant) and his co-accused Ramzan @ Jani(P.O.).

Investigation was completed; challan was prepared and submitted

before the learned trial Court. After observing required legal

formalities, as provided under the Code of Criminal Procedure,

charge was framed, to which, the appellant pleaded not guilty and

claimed trial.

4. In order to prove its case, the prosecution has produced as

many as 11 witnesses during the trial. The appellant was examined

under section 342 Cr.P.C. while his co-accused Ramzaqn @ Jani

absconded. The appellant examined Muhammad Akhtar and Babu as

DW1 and DW2, respectively. According to DW1, his residence is at a

distance of about 10 yards from the house of the appellant. On the

day of occurrence, the appellant remained with him in his house from

morning to evening and that appellant’s false involvement in the case

was on account of Allah Ditta(appellant)’s enmity with one Taj

Muhammad Patwari of Jamber Kalan. DW2 has stated that his house

is situated at a distance of 20 feet from appellant’s house and on the

day of the occurrence, the appellant remained with him for the whole

day while Muhammad Akhtar(DW1) was also with them. He has also
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stated that the appellant has been involved in this case on account of

his enmity with one Taj Muhammad Patwari in connivance with the

police. The appellant did not opt to depose on Oath as required under

section 340(2) Cr.P.C. In an answer to the question “why this case

has been registered against you and why the PWs have deposed

against you”, the appellant, in his statement recorded under section

342 Cr.P.C., stated as under:-

“I am innocent. I am not nominated in the FIR and

complainant and PWs were not known to me prior to my
arrest. No identification parade was held, as required by
law. Complainant and PWs deposed falsely against me on
behest of Taj Patwari of Jamber who had murder enmity
with me and in order to take revenge of murder enmity he
got me implicated in this case”.

However, after conclusion of the trial, the learned trial Court

convicted and sentenced the appellant as mentioned above.

5. Learned counsel for the appellant, in support of this

appeal, contends that PW6 Khushi Muhammad(complainant) is not

an eye-witness of the occurrence as he has categorically admitted this

fact while appearing before the learned trial Court; that moreover,

none is nominated in the FIR as an accused; that even no description

or feature of the accused is mentioned in the FIR; that it is the case of

the complainant in the FIR that his deceased son was accompanied by

Muhammad Boota and Mukhtar Ahmad and even both of them were

with the complainant at the time of registration of the FIR, but, even

then, description of the assailants was not given in the FIR; that no
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identification parade, in accordance with the High Court Rules and

Orders was held in this case; that appellant’s identification parade in

the Police Station is of no value; that in the FIR it is mentioned that

two persons fired at the deceased and it is not clear as to whose fire

proved fatal because the deceased received only one firearm injury;

that the appellant was implicated by the complainant through the

supplementary statement which was recorded on 19.1.2002 i.e. about

six months after registration of the FIR and even in the

supplementary statement complainant has merely shown a suspicion

on the appellant and has not disclosed the source of information

regarding appellant’s involvement in the occurrence; that even

involvement of the appellant through the supplementary statement is

doubtful in nature because the other Investigating Officer of the

case(PW9 Muhammad Aslam Inspector) has stated that the

application was submitted by the complainant on 31.8.2001 in which

he named the appellant but the said application was not brought on

record; that the recovery of wrist watch(P4) and cash of Rs.2,600/-

(P5 to P11), which were taken into possession through Exh.PK, is

also of no avail to the prosecution for the reason that no description

of the wrist watch is given in the FIR and similar is the position of the

currency notes coupled with the fact that the said recovery was

affected from the house of one Haji Akram with whom the appellant

has no concern and the prosecution has not proved that the place of

recovery was in the exclusive possession of the appellant; that the

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learned trial Court has disbelieved the said recovery; that the

prosecution case against the appellant is highly doubtful in nature and

he is entitled to acquittal by extending him benefit of doubt because

every doubt is to be resolved in favour of the appellant.

6. On the other hand, the learned Deputy Prosecutor General

for the State, while vehemently opposing this appeal, contends

that the complainant of the case has no enmity with the appellant to

falsely depose against him and similar is the position of PW7

Muhammad Boota and PW8 Mukhtar Ahmad; that the PWs have

fully implicated the appellant in this case; that the ocular account in

this case is corroborated by the medical evidence and the evidence of

recovery of looted articles i.e. wrist watch and cash; that, in such like

cases substitution is a rare phenomenon; that the prosecution has

proved its case against the appellant beyond any shadow of doubt and

that the appeal filed by the appellant against his conviction and

sentence be dismissed.

7. We have heard learned counsel for the parties at length,

have given anxious consideration to their arguments and have
also scanned the evidence on record with their able assistance.

8. The occurrence in this case, as per FIR(Exh.PE), took place on

16.7.2001 at about 3.00/4.00 p.m., the matter was reported to the

police by PW6 Khushi Muhammad(complainant) at about 9.30 p.m.,

the formal FIR was registered at the same time while the distance
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between the place of occurrence and the Police Station was about 04

kilometers, so, there is an unexplained delay of about 06 hours in

reporting the matter to the police.

9. PW6 Khushi Muhammad(complainant) has stated in the FIR

that on 16.7.2001 at about 3.00/4.00 p.m., his elder son Muhammad

Khalid(deceased) alongwith Muhammad Boota(PW7) and Mukhtar

Ahmad(PW8), were returning home from Lambay Jagir on a

motorcycle and when they reached near the graveyard of Ballooki

Road Pukhta, two unknown persons armed with firearms stopped

their motorcycle. The said two unknown persons came down from the

motorcycle and similarly his son and others also alighted from their

motorcycle. Mukhtar handed over Rs.2,600/- to the assailants while

Khalid also gave them his wrist watch, but, his son Muhammad

Khalid(deceased) refused to give his gold locket to the assailants,

upon which, both the said persons fired a shot from their rifle which

landed on Khalid’s thigh who fell down and both the accused persons

took the said locket and ran away from the spot alongwith the

firearm. Thereafter, Boota and Mukhtar took his son to the Bhai

Pheru hospital, wherefrom, he was referred to Jinnah Hospital,

Lahore, but, Khalid died on the way to hospital, whereafter, PW7 and

PW8 brought his dead body back. Narration of the facts, given in the

FIR, shows that PW6 Khushi Muhammad(complainant) was not

present at the spot at the time of alleged occurrence. Moreover, while

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appearing before the learned trial Court as PW6, Khushi

Muhammad(complainant), in his cross-examination, admitted as

under:-

“It is correct that I was not present at the time of

occurrence and the facts told to me by Boota and Mukhtar
were narrated before the police………It is correct that it is
first time I have narrated about the suspicion against the
acused. It is correct that in my supplementary statement, I
have not disclosed the source of information that present
accused are involved in the occurrence……”.

Therefore, in the above scenario, PW6 Khushi

Muhammad(complainant), cannot be termed as an eye-witness of the

incident of the murder of his son Khalid(deceased).

10. So far as supplementary statement of the complainant is

concerned, we may observe here that PW6 Khushi

Muhammad(complainant) has not disclosed any source of

information about the involvement of the appellant in the incident in

question and merely relied upon the statements of two other witnesses

i.e. PW7 Muhammad Boota and PW8 Mukhtar Ahmad, on account of

which, this supplementary statement of Khushi Muhammad(PW6),

carries no value.

11. As far as statements of PW7 Muhammad Boota and PW8

Mukhtar Ahmad are concerned, their claim is that they were present

at the scene of crime, alongwith the deceased, at the time of

occurrence. According to them, they gave description of the

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assailants to the police but no description of the appellant and his co-

accused is mentioned either in the FIR or any other document. It is in

the statement of PW7 Muhammad Boota that he was present with the

complainant at the time of registration of the case. If it is accepted as

correct then question arises, why description of the features of the

appellant and his co-accused was not given by the complainant in the

FIR. According to PW7 and PW8, six months after the occurrence,

they were called by the police at the Police Station where they

identified the appellant, being assailant. Relevant portion of the cross-

examination of PW7 Muhammad Boota, reads as under:-

“…..The complainant informed me about the availability

of accused in the Police Station. I went to P.S. for
identification. I never went to Jamber to see any person.
Prior to identification in P.S. I alongwith complainant
went to Jamber to recognize the accused. I went to Jamber
15/20 days prior to identification of accused in the P.S.
We went in the house of Allah Ditta where accused Allah
Ditta and his brother met us. I alongwith Boota, Khushi
Muhammad, father of Khushi Muhammad and other
three/four persons went to the house of Allah Ditta.
Accused met us in the Bazar……..It is not in my memory
how many policemen were present at the time of
identification. The accused was standing at the time of
identification. I cannot tell the number of accused present
in the police lock up…..”.

In his examination-in-chief, PW8 Mukhtar Ahmad, stated as under:-

“I was summoned by the police at P.S. where the accused

Allah Ditta was in police lock up. I alongwith Boota
identified the accused Allah Ditta in the P.S.. My
statement was recorded at Police Station”.

Following admissions were made by PW8 in his cross-examination:-

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“……..Once, I visited Jamber alongwith Boota PW and

relatives of the deceased, ten/twenty days prior to the
occurrence. We went in the house of accused Allah Ditta.
We stayed in the house for 30 minutes. Again said we
stayed in the hotel. We did not take tea there. Only
accused Allah Ditta met us. The owner of the tea stall was
also present. I, Boota PW, father of the deceased and
uncle of the deceased went to P.S. for identification. I
alongwith Boota PW identified accused Allah Ditta. The
father of the deceased and his uncle were also present. I
and Boota together identified the accused. It is correct that
before identification we have already seen the accused
Allah Ditta”.

12. In this situation, question arises as to what is the evidentiary

value of this identification parade which was conducted in the Police

Station, especially, when no description of the appellant was given in

the FIR or any other document of the prosecution. Admittedly, no

identification parade was conducted under the supervision of a

Magistrate. Therefore, we are of the view that this identification of

the appellant by PW7 Muhammad Boota and PW8 Mukhtar Ahmad

in the Police Station carries no value. In this regard, we have fortified

our view by a judgment of the Hon’ble Federal Shariat Court,

reported as NADIR KHAN VS. THE STATE (PLD 1992 Federal

Shariat Court 390), wherein, at page 394, the learned Federal

Shariat Court has been pleased to lay emphasis on the point as under:-

“……..In case where the culprits are not known to the

witnesses either by face or name an identification parade
through such witnesses in presence of Magistrate is a
must. The novel way of the police getting identified the
appellant through Hanif Ahmad and Muhammad Saeed
has not impressed me. In such view of the fact no
reliance can be placed on such identification. If some
authority is needed the same may be found in Muhammad
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Bashir Alam v. The State (PLD 1958 SC Pak. 1), wherein

Muhammad Munir, C.J. who wrote the leading judgment,
while referring to his earlier decision in Ibrahim Bhak’s
case PLD 1955 FC 113 observed that “And finally let me
address a warning to those police officers who are charged
with the investigation of crime where the question of
identity of a criminal is a vital factor in the case. Let them
not run away with the idea that this Court’s decision in
Ibrahim Bhak’s case provides them an excuse to do away
with the presence of a Magistrate at an identification test.
I pointed out in that case that ordinarily not much weight
can be attached to such identification where the
investigating officer gives no explanation of why a
Magistrate was not called to supervise the parade. Where
a Magistrate is available and is not called the result of the
identification parade, unless the circumstances be quite
exceptional, would be valueless and no Court will act on
such evidence where everything is arranged by the
investigating officer himself and no nearby Magistrate is
called”.

In the case reported as ZAMEEN GUL VS. THE STATE (1996

P.Cr.L.J. 662), at page 665, the Hon’ble Federal Shariat Court has
been pleased to observe as under:-

“From the above evidence given by the complainant in his

examination-in-chief, it is evident that the complainant
had been called to the C.I.A. Centre for identification of
the two accused including the appellant and later on the
identification parade before the Magistrate was held. This
admission on the part of the complainant destroys the
credibility of the identification parade”.

In UMAID ALI VS. THE STATE (2008 SCMR 1419), the Hon’ble
Supreme Court of Pakistan, at page 1421 of the judgment, after
observing that “It is categorically admitted by all the witnesses to the
identification that it was conducted at the Police Station”, discarded
the evidence of identification parade.

13. As far as alleged recovery of wrist watch(P4) and cash of

Rs.2,600/-(P5 to P11), at the instance of the appellant, which items

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were taken into possession through Exh.PK, is concerned, the same is

of no avail to the prosecution for the reason that no description of the

wrist watch or numbers of the currency notes has been given in the

FIR, moreso, the said recovery was affected from the house of one

Haji Muhammad Akram and there is nothing on the record to show

that the place of recovery was in the possession of the appellant. Even

there is no evidence on the record regarding any relationship of the

appellant with the said Haji Muhammad Akram. Moreover, such

items are easily available in the market, so, their plantation on the

appellant cannot be ruled out. Even otherwise, in the above

circumstances when evidence of both the eye-witnesses(PW7 and

PW8) has been disbelieved by this Court, then merely on account of

recovery of these articles conviction of the appellant cannot be

maintained because this piece of evidence is only a supportive one.

The learned trial Court has rightly disbelieved the alleged recovery of

wrist watch and cash at the instance of the appellant.

14. As far as medical evidence is concerned, we may observe here

that it may confirm ocular account with regard to seat of injuries on

the body of the deceased, its duration, nature of injuries and kind of

weapon, with which those injuries were caused, but the injuries

cannot tell the name of its inflictor.

15. We are conscious of the fact that in this unfortunate incident,

PW6 Khushi Muhammad(complainant)’s son Muhammad

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Khalid(deceased) lost his life but, at the same time we are mindful of

the universally recognized principle of law that in a criminal case

conviction can only be maintained if the prosecution evidence

inspires confidence. It is also settled and accepted principle of law

that conviction must be based on unimpeachable evidence and

certainty of guilt and any doubt arising in the prosecution case must

be resolved in favour of the accused. At page 1228 of the judgment

reported as MUHAMMAD KHAN AND ANOTHER VS. THE

STATE (1999 SCMR 1220), the August Supreme Court of Pakistan,

has laid down the following principle:-

“15. It is an axiomatic and universally recognized

principle of law that conviction must be founded on
unimpeachable evidence and certainty of guilt and hence
any doubt that arises in the prosecution case must be
resolved in favour of the accused. It is, therefore,
imperative for the Court to examine and consider all the
relevant events preceding and leading to the occurrence so
as to arrive at a correct conclusion. Where the evidence
examined by the prosecution is found inherently
unreliable, improbable and against natural course of human
conduct, then the conclusion must be that the prosecution
failed to prove guilt beyond reasonable doubt. It would be
unsafe to rely on the ocular evidence which has been
molded, changed and improved step by step so as to fit in
with the other evidence on record. It is obvious that truth
and falsity of the prosecution case can only be judged
when the entire evidence and circumstances are scrutinized
and examined in its correct respective”.

It is also settled by the Apex Court of the country that in case of

doubt, its benefit must go to the accused not as a matter of grace but
of right. The same proposition came up for consideration in the case
reported as MUHAMMAD AKRAM VS. THE STATE (2009
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SCMR 230), wherein, at page 236, the Hon’ble Supreme Court of

Pakistan, held as under:-

“13. The nutshell of the whole discussion is that the

prosecution case is not free from doubt. It is an
axiomatic principle of law that in case of doubt, the
benefit thereof must accrue in favour of the accused as
matter of right and not of grace. It was observed by this
Court in the case of Tariq Pervez v. The State (1995
SCMR 1345) that for giving the benefit of doubt, it was
not necessary that there should be many circumstances
creating doubts. If there is circumstance which created
reasonable doubt in a prudent mind about the guilt of the
accused, then the accused would be entitled to the benefit
of doubt not as a matter of grace and concession but as a
matter of right”. (emphasis supplied)

In AYUB MASIH VS. THE STATE (PLD 2002 Supreme Court

1048), at page 1056, while quoting a saying of the Holy Prophet (PBUH)
that ‘mistake of Qazi(Judge) in releasing a criminal is better than his
mistake in punishing an innocent”, and making reference to the maxim,
that ‘it is better that ten guilty persons be acquitted rather than one
innocent person be convicted’, the learned Apex Court has been pleased
to observe as under:-

“……It is hardly necessary to reiterate that the prosecution

is obliged to prove its case against the accused beyond any
reasonable doubt and if it fails to do so the accused is
entitled to the benefit of doubt as of right. It is also firmly
settled that if there is an element of doubt as to the guilt of
the accused the benefit of that doubt must be extended to
him. The doubt of course must be reasonable and not
imaginary or artificial. The rule of benefit of doubt, which
is described as the golden rule, is essentially a rule of
prudence which cannot be ignored while dispensing justice
in accordance with law. It is based on the maxim, “it is
better that ten guilty persons be acquitted rather than one
innocent person be convicted”. In simple words it means
that utmost care should be taken by the Court in convicting
an accused. It was held in The State vs. Mushtaq Ahmad
(PLD 1973 SC 418) that this rule is antithesis of haphazard
approach or reaching a fitful decision in a case. It will not
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be out of place to mention here that this rule occupies a

pivotal place in the Islamic Law and is enforced rigorously
in view of the saying of the Holy Prophet (P.B.U.H.) that
the “mistake of Qazi(Judge) in releasing a criminal is
better than his mistake in punishing an
innocent”.(emphasis supplied)

13. After considering all the circumstances, this Court is of the

considered view that the prosecution has failed to prove its case

against the appellant beyond any shadow of doubt, therefore, this

appeal is allowed, the impugned judgment is set-aside and the

appellant is acquitted from the charge by extending him the benefit of

doubt. He is behind the bars and shall be released forthwith if not

required to be detained in any other case

14. Before parting with the judgment, we may observe here that

the observations made in this judgment shall not influence case of

appellant’s co-accused Ramzan @ Jani, during trial, after his arrest.

Murder Reference is answered in the NEGATIVE and

sentence of death is NOT CONFIRMED.

(RAUF AHMAD SHAIKH) (MANZOOR AHMAD MALIK)

JUDGE JUDGE
*MIAN ASHFAQ*