SADI AHMAD and another Vs The STATE

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supreme court Islamabad
supreme court Islamabad

SADI AHMAD and another—Appellants

Vs

The STATE—Respondent

Criminal Appeal No. 107-L of 2017, decided on 23rd May, 2019.

(On appeal from the judgment dated 28.4.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1668 of 2010 and M.R. No. 333 of 2010)

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

(a) Penal Code (XLV of 1860)—

—-Ss. 302(b) & 392—Qatl-i-amd, robbery—Reappraisal of evidence—Benefit of doubt—Prosecution case was that the accused and co-accused hired a cab driven by the deceased; that they robbed and killed the deceased and while they were on their way to dispose of the vehicle, they met an accident wherein a woman died; that the accused became unconscious after the accident, while co-accused fled from the scene—Prosecution relied upon evidence of last seen and a confessional statement by one of the accused, beside certain recoveries, to drive home the charge—Held, that according to the crime report, three prosecution witnesses saw the deceased departing with the accused persons—In the totality of circumstances, statements of the complainant, and prosecution witnesses, there was little evidence to safely frame the co-accused with the crime as he was never exposed to the witnesses in the identification test—Prosecution’s case was that accused impersonated himself when he met an accident while trying to dispose of the stolen vehicle and his real identity was established subsequent thereto—No one had been produced to establish identity of accused in injured condition, when apprehended after the accident—Nothing was available on the record to infer that a woman died in the accident, so what was left in the field was deficient last scene evidence and confessional statement of co-accused , recorded by the Trial Court— Last seen evidence was outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring—Prosecution had not been able to drive home the charge beyond reasonable doubt, therefore, in the absence of reliable evidence against the accused and co-accused, they were acquitted by extending them the benefit of doubt—Appeal was allowed accordingly.

(b) Penal Code (XLV of 1860)—

—-Ss. 302(b) & 392—Qatl-i-amd, robbery—Reappraisal of evidence—Cause of death—Weapons, recovery of—According to the autopsy report, asphyxia was the cause of death, therefore recoveries of weapons on the pointation of accused did not advance prosecution case—Accused and co-accused were acquitted by extending them the benefit of doubt—Appeal was allowed accordingly.

(c) Penal Code (XLV of 1860)—

—-Ss. 302(b) & 392—Qatl-i-amd, robbery—Reappraisal of evidence—Confessional statement of accused before Trial Court, reliance upon—Confessional statement of accused was not in line with prosecution case set up in the crime report, and was so diametrically different that one could not be accepted without exclusion of other and vice versa—Said confessional statement was exculpatory in nature as the accused was reticent about his individual role and liability in the crime—According to accused, the deceased was blind folded and thrown in a sugarcane field with his hands tied with a rope, whereas as per autopsy report cause of death was asphyxia—Motive for the murder during robbery was far from clear, thus confessional statement of accused was certainly not a truthful account of events leading to deceased’s death—When confronted during his examination under S. 342, Cr.P.C., the accused denied to have confessed to his guilt—Prosecution had not been able to drive home the charge beyond reasonable doubt, therefore, in the absence of reliable evidence against the accused and co-accused, they were acquitted by extending them the benefit of doubt—Appeal was allowed accordingly.

Rana Liaqat Ali Khan, Advocate Supreme Court along with Ms. Nighat Saeed Mughal, Advocate Supreme Court for Appellants.

Complainant in person.

Ch. Mustafa, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 23rd May, 2019.

JUDGMENT

QAZI MUHAMMAD AMIN AHMED, J.—Sadi Ahmad and Mukhtar Ahmad alias Bari, appellants herein, were indicted by a learned Additional Sessions Judge at Okara for committing murder of Javed Iqbal in the course of robbery on 2.4.2007 within the remit of Police Station Satgarha. It is alleged that Sadi Ahmad, appellant and Ijaz alias Jajji and two unknown assailants hired deceased’s cab within witnesses’ view, subsequently vanished. A corpse was spotted subsequently identified as that of Javed Iqbal and in this backdrop, the appellants and co-accused were suspected for the crime. Vehicle was taken into possession on 3.4.2007; it was traced in consequence of an accident in the province of Khyber Pakhtunkhwa; it is prosecution case that the passengers impersonated themselves to hush up their identity; Sadi Ahmad, appellant was formally arrested on 13.4.2007; upon disclosure, he led to the recovery of various incriminatory items, followed by Mukhtar Ahmad on 27.2.2008. Indicted on 29.5.2008, they claimed trial.

2. Prosecution case in nutshell is that the appellants hired the cab, done away with the deceased and while they were on their way to dispose of the vehicle, in the province of Khyber Pakhtunkhwa they met an accident wherein Shamim Bibi died and Sadi Ahmad, appellant become unconscious, while Mukhtar Ahmad fled from the scene; in this backdrop, it relied upon evidence of last seen and a confessional statement by Sadi Ahmad, beside certain recoveries, to drive home the charge.

According to the crime report, Taj Muhammad, PW along with Tariq Mahmood and Tanvir Amjad, saw the deceased departing with Sadi Ahmad and Ijaz alias Jajji, P.O. with two unknown persons. In the totality of circumstances, statements of the complainant, Tariq Mahmood and Saeed Anwar, notwithstanding, there is little evidence to safely frame Mukhtar Ahmad alias Bari with the crime as he was never exposed to the witnesses in the identification test. It is prosecution case that Sadi Ahmad impersonated himself when he met an accident in Khyber Pakhtunkhwa and his real identity was established subsequent thereto. None has been produced to establish identity of Sadi Ahmad in injured condition, when apprehended after the accident. There is nothing on the record to infer that some woman by the name of Shamim Bibi died in the accident so what is left in the field is deficient last scene evidence and confessional statement of Mukhtar Ahmad alias Bari, recorded by the learned trial Judge in the midst. We are not much impressed by the evidence of last seen for being outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring. According to the autopsy report, asphyxia is the cause of death, therefore recoveries of weapons do not advance prosecution case. Pointing out of place of occurrence by the accused and memo thereof being inadmissible is entirely beside the mark. It does not constitute information within the contemplation of Article 40 of the Qanun-e-Shahadat Order, 1984. Adverting to confessional statement of Mukhtar Ahmad alias Bari recorded on 14.1.2019, we do not feel persuaded to rely upon the disclosure; it is not in line with prosecution case set up in the crime report; so diametrically different that one cannot be accepted without exclusion of other and vice versa; it is exculpatory in nature as Mukhtar Ahmad is reticent about his individual role and liability in the crime. According to him, the deceased was blind folded, thrown in a sugarcane field with his hands tied with a rope, whereas as per autopsy report cause of death is asphyxia. Motive behind sudden move by the appellant, Mukhtar Ahmad alias Bari during the trial is far from clear; disclosure is certainly not a truthful account of event leading to deceased’s death. When confronted during his examination under Section 342 of the Code of Criminal Procedure, 1898, he denied to have confessed his guilt; he repudiated pangs of conscience, mistakenly observed by the learned trial Judge. Prosecution has not been able to drive home the charge beyond reasonable doubt, therefore, in the absence of reliable evidence appellants’ conviction on moral satisfaction alone cannot sustain; they are extended the benefit of the doubt. Criminal Appeal 107-L/2017 is allowed, impugned judgment is set aside; they shall be released forthwith, if not required in any other case.

MWA/S-32/SC Appeal allowed.

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