2002 PLP 466 (YLR)

BASHIR A. MUJAHID, J.

Abid Hussain son of Partab Khan, Muhammad Arshad son of Rasool Shah and Abdul Sattar son of Sumir Shah have challenged judgment dated 7-6-1999 passed by Special Judge Anti Terrorism, Sargodha whereby they were convicted under sections 302/324/394/34, P.P.C. for commission of murder of Muhammad Akram and causing murderous assault on Muhammad Ijaz, P.W.11 in the course of committing dacoity and sentenced as under:- Under section 302/34, P.P.C. All the appellants were sentenced to death and fine of Rs.one lac each or in default thereof to undergo 10 years' R.I. Under section 324/34, P.P.C. All the appellants were sentenced to 10 years R.I. each and fine of Rs.10,000 each or in default of payment of fine to undergo six months R.I. Under section 394/34, P.P.C. All the appellants were sentenced 10 years R.I. each and fine of Rs.10,000 each or in default thereof six months R.I. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased, while the half to be paid to Muhammad Ijaz injured P.W., under section 544-A, Cr.P.C. Briefly stated the facts of the case are that F.I.R. No.8 dated 9-1-1998 Exh.P.Q was got registered at the Police Station Jauharabad, District Khushab at 8-30 p.m. on the statement Exh.P.Q/1 of Muhammad 1jaz, P.W.11 recorded on the same day by Ghazanfar Ali Shah, S.1 P.W.14 at Octroi Post Zubairabad at 7-45 p.m., wherein it was alleged that at 6-30 p.m. the complainant Muhammad Ijaz alongwith Muhammad Akram son of Ghulam Muhammad resident of Khaliqabad were going on motorcycle cowards Chak No.55/MB on a metalled road while on the other motorcycle Sher Muhammad, P.W.12 and Haji Muhammad Iqbal were also going alongwith them. When hey reached near Nala Bridge at 7-30 p.m. within area of Chak No.55/MB, they found Three unknown persons of young age wearing Shalwar-Qameez armed with fire-arms came from southern side, and they fired at Muhammad Akram and the complainant. , The tire hit on the back of Muhammad Akram who fell on the ground from the motorcycle after receiving the injuries while Muhammad Ijaz complainant also fell from the motorcycle it some distance ahead. Meanwhile Sher Muhammad and Muhammad Iqbal also cached the bridge of Nala. They challenged the accused who escaped towards south while firing in the air. Muhammad Akram succumbed to the injuries at the spot. Muhammad Ijaz complainant was being moved to Civil Hospital Jauharabad in injured condition and on the way Ghazanfar Ali Shah, S.I P.W.14 met them and the statement Exh.P.Q/1 was got recorded. Ghazanfar Ali Shah, S.I. P.W.14 after recording the statement Exh.P.Q.1 of Muhammad Ijaz sent the same for registration of formal F.I.R. He prepared the injury statement Exh.P.T of Muhammad Ijaz and sent him for medical examination through Atta Muhammad, Constable and he himself came at the spot and took the dead body of Muhammad Akram and prepared his injury statement Exh.P.F. and inquest report Exh.P.G and inspected the place of occurrence and took into possession Motorcycle Yaharna Registration No.631/MB from the spot through memo. Exh.P.I. He collected blood-stained earth from the spot through memo. Exh.P.J. and also recovered the currency notes of Rs.461 from the pock of deceased through memo. Exh.P.U and dispatched the dead body for post-mortem examination through Muhammad Ashiq, F.C On 10-1-1998 Atta Muhammad, F.C produced before him blood-stained clothes Muhammad Ijaz P.W. which were taken in possession through memo. Exh.P.L. On the same day Muhammad Ashiq, F.C. produce before him last worn blood-stained clothes of Muhammad Akram, deceased which were taken into possession through memo Exh.P.K. He searched for the accused but they were untraced. Thereafter, on his transfer, the investigation was entrusted to Nazar Hussain, S.I. P.W.15. On 6-2-199 the accused/appellants were arrested by Aurangzeb, A.S.I. P.W.13, who sent them judicial-lock up for their identification parade. On 6-2-1999, Nazar Hussain, S.I. moved an application before S.D.M Khushab for deputing Magistrate for conducting identification parade of the accused/appellants. On which Ch. Zafar Elahi Magistrate, P.W.8 was deputed to conduct the identification parade in District Jail, Shahpur on 10-2-1999. On 11-2-1999, Nazar Hussain, S.I. obtained the physical remand of the accused for recovery of weapons of offence. On 17-2-1999, Abid Hussain while in police custody led to the recovery of gun P.9 which was taken into possession through memo. Exh.P.R. On the same day, Abdus Sattar accused led to the recovery of Gun P.10 which was taken into possession through Exh.P.S. On 18-2-1999 Muhammad Arshad accused led to the recovery of .12 bore gun P.8 which was, taken into possession through memo. Exh.P.P. He completed the investigation and submitted the challan before the trial Court. The trial Court framed the charge. The accused denied the same and claimed trial. Medical evidence was furnished by Dr. Mukhtar Hussain, P.W.1 who on 9-1-1998 at 7-45 p.m. medically examined Muhammad Ijaz P.W.11 and found following injuries on his person:- (1) Three fire-arm entrance wounds lying very close to each other, each of the size of 1 x 1 c.m. present on the back of right side of chest. Wounds had inverted edges, there were corresponding holes on shirt and jacket. (2) Single fire-arm entrance wound, size 1 x 1 c.m. present on back of chest, near vertebral column, about 13 c.m. away (medial) to the first injury with inverted edges. (3) Single exit wound 1 x 1 c.m. on front of chest, right side near sternum. Wound had everted edges. Dr. Ajmal Nadeem Khan Niazi, P.W.2 on 10-1-1998 at 7-30 p.m. conducted the post-mortem examination on the dead body of Muhammad Akram and found the following injuries on his person:- (1) An entrance wound of fire-arm projectile x c.m. inverted edges on back of right side of chest in second inter coastal space. 4 c.m. right to mid-line. (2) An entrance wound of fire-arm projectile x c.m. on back of right side of chest, on second inter -coastal space. 12 c.m. right to mid line on the back. (3) An entrance wound of fire-arm projectile 1/2 x 1/2 c.m. just right to injury No.2. (4) An entrance wound of fire-arm x c.m. on the back of right side of chest in 4th inter coastal space, 11 c.m. right to mid-line. (5) An entrance wound of tire-arm x c.m. on the back of right side of chest in 5th inter coastal space, 10 c.m. right to mid-line. (6) An entrance wound of fire-arm projectile x c.m. on the top of right shoulder. (7) An entrance wound of fire-arm projectile 1 x c.m. on lateral side of middle of right arm. (8) An entrance wound of fire-arm x c.m on outer side right elbow. (9) An entrance wound of fire-arm x c.m. just below injury No.8. (10) An exit wound of fire-arm projectile x c.m. on inner side of right elbow. It is the exit of injury No.8. It is through and through the skin. (11) An exit wound of fire-arm projectile below injury No. 10 and it is the exit wound of injury No.9. (12) An exit wound of fire-arm projectile 1 x c.m. on front of right side of chest, 3 c.m. right to mid-line, just below right clavical edges everted. (13) An exit wound of fire-arm projectile 1 x c.m. in second inter coastal space, 8 c.m. right to mid-line: (14) An exit wound of fire-arm projectile 1 x 1 c.m. on front of right side of chest in 3rd inter coastal space, 9 c.m. away from mid-line. (15) An exit wound of fire-arm 1 x 1 c.m. on front of right side of chest, 15 c.m. away from mid-line in 5th inter coastal space. In the opinion of the doctor, injuries Nos.1 to 6 were sufficient to cause death in ordinary course of nature on account of bleeding and shock. The ocular account was furnished by Muhammad Ijaz P.W.11 who supported the version of the F.I.R. and stated that he participated in identification parade and identified the appellants/accused in District Jail Shahpur before Ch. Zafar Elahi Magistrate P.W.8, Sher Muhammad was also eye-witness of the occurrence. He was examined as P. W.12. He narrated that on the fateful day he was driving motorcycle alongwith Muhammad Iqbal (given up) and the other motorcycle was being driven by Muhammad Ijaz, P.W.11 and behind him Muhammad Akram was sitting and were going metalled road towards Chak No. 55/MB when three persons fired at Muhammad Akram and Muhammad Ijaz. Muhammad Akram succumbed to tae injuries at the spot while Muhammad Ijaz was taken to hospital where he was medically examined. He stated that the assailants fired at Muhammad Akram and Muhammad Ijaz in order to commit dacoity. He further stated that during the identification parade he identified the appellants accused having committed the instant offence. Muhammad Akmal P.W.3 had prepared the site plan of the place of occurrence. Muhammad Aslam, P.W.4 had identified the deed body of Muhammad Akram deceased. Haq Nawaz, P.W.5 had attested the recovery memos. of Exh.P.1 and Exh.P.J. whereby the Investigating Office had taken into possession motor-cycle and blood-stained earth from the sp, Muhammad Ashiq, F.C. P.W.6 had escorted the dead body of Muhammad Akram for post mortem examination and produced his last worn clothes before the Investigating Office which were taken into possession through Exh.P.K. Atta Muhammad P.W.7 h escorted Muhammad Ijaz injured witness hospital for his medical examination and treatment. Ch. Zafar Elahi, Assista,, Commissioner P.W.8 had supervised the identification parade in District Jail Shahpur on 10-2-1999 wherein Muhammad Ijal P.W.11 and Sher Muhammad P.W.12 had identified the accused and prepared the identification proceedings Exh.P.N. Ghulam Habib, F.C. was examined as P.W.9, who had delivered the parcels of blood-stained earth at the office of Chemical Examine Lahore on 20-1-1998 and he also attested the recovery memo. Exh.P.P where' Muhammad Arshad had got recovered gun .12 bore P.8. Ali Nawaz, H. C. P.W.10 had recorded the formal F.I.R. Exh.P.Q at the police station on 9-1-1998. The statements of the accused/appellants were recorded under section 342 Cr.P.C. towards the end of the trial. They denied the allegations and claimed their innocence and false involvement due to enmity of Haq Nawaz Moharrar at the instance of one Ali Muhammad. Ashraf Ali was examined as D.W.1 in defence, who stated that he was Imam Masjid of Chak No.62/MB and the accused/appellants were arrested in his presence on 22-1-1998 by the police. The trial culminated into conviction of the appellants as mentioned above. They have filed Criminal Appeal No.602 of 1999 against their conviction and sentence. While the trial Court has sent up Murder Reference No.338-T of 1999 for confirmation of death sentence. Both the matters are being disposed of by this judgment. Learned counsel for the appellants has argued that the accused were not nominated in the F.I.R. No description or heir features were given in the F.I.R. except that three accused of young-age wearing Shalwar-Qameez fired at the deceased and the complainant that no reason whatsoever has been given for causing their arrest and the prosecution witnesses have not identified them during the identification parade as what role was played by each appellant in commission of the crime that no motive for commission of offence has been alleged in the F.I.R. or established during the trial 'that it was a night unwtinessed occurrence and the appellants have been falsely implicated that the injuries on Muhammad Ijaz P.W.11 and Muhammad Akram deceased is result of one :ire shot and nothing has been brought on record as which of the accused fired at them that recovery of weapons of offence has been planted and the same in absence of any recovery of crime empty is of no consequence shat the case of the prosecution is doubtful and the appellants be acquitted by accepting their appeal. Conversely, the appeal has been opposed by learned counsel for the complainant and for the State. Heard. Record perused. It is correct that none of the accused was nominated in the F. I. R. The complainant' in his statement Exh.P.Q/1 only stated that three persons attacked at him and the deceased who were of young-age wearing Shalwar-Qameez and no description of the accused whatsoever was given in the F.I.R. It was also not stated that the prosecution witnesses could identify the accused if brought before them. It was also not mentioned that why they were fired at. The allegations of decoity have been levelled by making improvement during the trial. The motive for committing dacoity was neither alleged nor proved by the prosecution. The assailants after firing at the victims did not make any attempt to commit dacoity. According to the statement of Dr. Amjad Nadim Khan Niazi, P.W.2 injuries on the body of Muhammad Akram, deceased were at his back. Injuries Nos.1 to 9 were entry wounds of almost same diamension except one which was x c.m. on middle of right arm. The remaining injuries Nos.10 to 15 were exit -wounds. Injuries Nos. 1 and 2 on Muhammad Ijaz P.W.11 who was medically examined by Dr. Mukhtar Hussain P.W.1 were entry wounds on the back of chest while injury No.3 was exit wound. The seat of the injuries on the deceased and Muhammad Ijaz, P.W.11 was on their back towards their right side and the possibility cannot be ruled out that all the injuries could be the result of one fire shot caused from a long distance and the pellets pierced in scattered form at the deceased who was sitting behind the complainant and the pellet passing through his body hit at the back of Muhammad Ijaz, P.W.11 and it is not clear that who out of the accused caused this fire. Regarding the. identification of the accused, no description/features of the accused was given in the F.I.R. or by the prosecution witnesses in their statements recorded under section 161, Cr.P.C. to identify them by their description/ features and the appellants were also not identified by the witnesses before the Magistrate during the identification parade by their respective role. It has been laid down in AIR 1925 Lah. 426 (Mauladad v. Empror) that where evidence of identification is given, the evidence cannot be relied upon if the witnesses who identified the accused had not previously given some description of the persons which coincided with the actual facts. In 1988 SCMR 557 (Ghulam Rasool v. State) it has been laid down that if role of the accused at the time of commission of offence has not been described by the witnesses at the time of identification parade is an inherent defect and such evidence of the identification of the accused in such identification parade lost its efficacy and cannot be relied upon. In 1995 SCMR 127 (Mahmood Ahmad v. State) it has been held that identification of the accused in identification parade without attributing them role of crime is of no evidentiary value. By evaluating the prosecution evidence on this touchstone, we find that neither the eye-witnesses had given the description of the accused prior to the identification parade nor they identified the assailants by the role played by them during the commission of crime and this defect goes to the roots of the prosecution cases. We have also noticed that Aurangzeb, A.S. I. P.W.13 has stated that the arrested the accused on 5-2-1999 but nothing has been brought on record that what was the evidence with the police to arrest the accused or in what case they were arrested and suspected for their involvement in the instant case and to put them for identification parade. The accused/appellants had also taken objection before Ch.Zafar Elahi, Magistrate P.W.8 who supervised the identification parade that they were shown to the prosecution witnesses at the police station as they were taken into custody on 22-1-1999 and they also examined Ashraf Ali, D.W.1 who was Imam Masjid' to show that they were arrested on 22-1-1999 and their formal arrest was not shown. After deep re-appraisal of entire prosecution evidence, we are convinced that the prosecution has miserably failed to connect the appellants with the commission of crime and establish its case against them beyond shadow of doubt, therefore, we accept their appeal, set aside their conviction and sentence and they are acquitted of the charge by giving the benefit of doubt. The death sentence awarded to the appellants by the trial Court is not confirmed. They are directed to be released forthwith if not required to be detained in any other criminal case. Murder Reference is answered in the negative. N.H.Q./A-407/L Appeal accepted.