2022 PLP 172 (YLRN)

SOHAIL NASIR, J.

By way of this single judgment Murder Reference (23 of 2020) and Criminal Appeal (588 of 2020) filed by Saeed Ahmad, Shahbaz alias Phoki and Javed (appellants) are being decided together as arise out from judgment dated 22.02.2020 passed by the learned Additional Sessions Judge Sahiwal on the basis of which all three appellants were convicted and sentenced as under: - Saeed Ahmad i. Under section 302(b), P.P.C. to death penalty as Tazir. ii. Under section 394, P.P.C. to life Imprisonment and fine of Rs.100000/- (one lac). In default of payment of fine he was ordered to further undergo six months S.I. iii. He was also ordered to pay an amount of Rs.1000000/- (ten lacs) as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I. Javed and Shahbaz alias Phoki. i. Under section 394, P.P.C. to imprisonment for life each and fine of Rs.100000/- (one lac) each. In default of payment of fine they were ordered to further undergo six months S.I. each. ii. They were also ordered to pay Rs.500000/- (five lacs) each as compensation in terms of section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo six months S.I. each.

2. The convictions are outcome of First Information Report (FIR) No. 281 (PA) recorded at Police Station Dera Rahim district Sahiwal on 03.08.2017 under sections 302/34, P.P.C. on the complaint of Ibrar Hussain (Pw-4) for the allegations of commission of Qatl-e-Amad (murder) of Haq Nawaz.

3. Facts of the case are that on 04.08.2017 (midnight) Fayyaz Ahmad Sub Inspector (Pw-9) was present on duty at Mor-130/9-L, where Ibrar Hussain presented an application (PD) who maintained that he was running a snack bar at Adda Teri Wala where his brother Haq Nawaz (deceased) also used to work with him; on 03.08.2017 at about 09:40 pm after closing the shop he along with his brother Haq Nawaz on motorbike No.SLM-8480 were returning to their home; at the same time their other brother Muhammad Riaz Ahmad (Pw-5) Sibtain (not produced) and Saeed Ahmad (Pw-10) on another motorbike were also returning from Sahiwal and moving with them side by side; when all they arrived opposite to Master Zawwar Hussain Tube well, there emerged three unknown persons on a motorbike that was without number; there features were as under:-- i. Mid height, slim physique colour, young and in possession of .30-bore pistol. ii. Mid height, slim physique, light weight colour' young, having moustaches and armed with .30 bore pistol. iii. Slim and active physique colour young and with a long face who was driving motorbike; The complainant further added that the assailants asked them to stop motorbike and thereafter unknown person (No.1) made a fire that hit on the back side of right shoulder of Haq Nawaz and made its exit from left side of chest; thereafter all the unknown assailants were succeeded to escape whereas Haq Nawaz had died at spot. According to complainant they were in a position to identify the assailants in case they were brought face to face.

4. An endorsement was made on this application by Fayyaz Ahmad, S.I., which was sent to police station through Abdul Majeed Constable on the basis of which FIR was recorded by Rasheed Ahmad Head Constable (Pw-1).

5. It is in the statement of Ghulam Mohi ud Din SI that during the investigation, on 01.09.2017, he received information from one Asghar Ali ASI (Pw-6) that Saeed Ahmed and Javed were under arrest in case FIR No. 320 dated 01.09.2017 under sections 399/402, P.P.C. at Police Station Dera Rahim and they had disclosed about the instant occurrence. He interrogated both of them, produced before the learned area Magistrate and they were sent to Jail for the purpose of identification parade.

6. According to Fayyaz Ahmad SI, Shahbaz alias Phoki was in Camp Jail Lahore in another case who was interrogated and after necessary formalities he was shifted to district Sahiwal and he too was sent to Jail for identification parade. It is important to mention here that he did not give the dates of arrest of Shahbaz and for forwarding him to the Magistrate.

7. Finally the identification parade was supervised by Mr. Hammad Raza the learned Magistrate (Pw.12) where the witnesses identified all the appellants. Subsequent thereto, certain recoveries were also affected at the instances of appellants.

8. On conclusion of investigation report under section 173, Cr.P.C. (Challan) was submitted in court.

9. A charge under sections 302/ 394/34, P.P.C. on 08.06.2018 was framed against appellants. They pleaded not guilty and demanded their trial.

10. In order to prove its case prosecution had produced Rasheed Ahmad Head Constable/author of FIR (Pw-1), Zahid Ali/draftsman (Pw-2), Zaheer ul Hassan (Pw-3), Ibrar Hussain/complainant (Pw-4), Muhammad Riaz/eye-witness (Pw-5), Asghar Ali SI (Pw-6), Muhammad Arshad ASI (Pw-7), Dr.Tariq Hameed/Senior Medical Officer (Pw-8), Fayyaz Ahmad SI/Investigating Officer (Pw-9), Saeed Ahmad/eye-witness (Pw-10), Ghulam Mohi Lid Din SI/Investigating Officer (Pw-11), Mr. Hammad Raza Magistrate (Pw-12) and Jahanzaib SI (Pw-13).

11. Sibtain and Zahoor were given up being unnecessary by the learned Deputy District Public Prosecutor (DDPP) who after producing the report of PFSA (PR and PS) had closed the prosecution's evidence.

12. In their examinations made under section 342, Cr.P.C. version of all the three appellants was common and as under:- "It is an un-witnessed and blind occurrence got registered against unknown accused persons. PWs are related inter-se and the deceased, hence, are interested witnesses. PWs have made serious improvements by introducing searchlight of oil depot near the occurrence. PWs have falsely introduced identification of the accused in the search lights. There is no mention of Searchlight in the FIR, statement under section 161, Cr.P.C. rough site plan and scaled site plan of the occurrence. There is no evidence of involvement of accused. The police have arrested us in a false case in FIR No.320/17 under section 399/402, P.P.C. and sent us to jail for identification parade. We have never made any confession or disclosure before the police in this case. Even otherwise any confession made before police does not qualify as evidence. Police of Dera Rahim also managed my arrest and that of my co-accused Shahbaz by police station Yousafwala in an untraceable case of murder in which we were acquitted by the honorable Court vide judgment 28.06.2019. Police involved us in this untraced case without evidence on the basis of identification parade (I. P) which is also illegal as Riaz PW was not witness of identification parade but he falsely deposed in the Court that the joined the identification parade and identified the accused. He told a blatant lie and deposited falsely in the Court. Another witness Saeed Ahmad stated in the court that he has never made any statement before the police and if there is any statement it was prepared by police. As per record of the identification parade we all accused objected that we were shown to the PWs at the police station and our snaps were taken by the PWs while in police custody before the identification parade. We were produced before the court twice with open faces where the PWs also seen us. None of the witnesses gave specific role qua any of accused at I.P. Joint role mentioned by witnesses at I.P. against me and my co-accused is not an admissible evidence. Kind of weapon, seat of injury, features of accused were not given by PWs in their statements before the learned Magistrate at I.P. PWs attributed the murder of their brother at the hands of all three accused while police have planted pistol on me (Saeed) and my co-accused Javed with the allegations that I committed murder with the pistol. Thus, identification parade is of no value. It is pertinent to note the name of deceased in FIR and the statement under section 161, Cr.P.C. rough site plan, scaled site plan, post mortem report, injury statement, inquest report and till the finalization of report under section 173, Cr.P.C. was mentioned as Haqnawaz son of Wali but surprisingly in identification parade name of deceased was mentioned as Shaukat. No explanation by any PWs has been offered to learned Magistrate or to this Court that Shaukat Ali was known as Haqnawaz. It is still shrouded in mystery that why the PWs made a dishonest improvements in this regard. We have been falsely involved. We have been made a scapegoat for an untraceable occurrence. Me and my co-accused are innocent"

13. Appellants did not opt to produce defence evidence or to appear in terms of section 340(2), Cr.P.C.

14. Learned counsel for appellants contended that no source of light was available at crime scene, so there was no question to remember faces/features of the appellants, therefore, the identification parade shall play no role; witnesses during identification parade proceedings were in contradiction about role of assailants; one of the eye-witnesses disowned joining the identification parade and maintained that he had seen appellants in police station; identification parade is weak type of evidence and cannot be relied upon unless gets strong corroboration, recovery of pistols at the instances of Javed and Shahbaz are of no consequence as those have not been proved and when it is so the positive report of firearm expert is of no consequence.

15. On the other hand, learned Additional Prosecutor General contended that appellants are involved in heinous crime who had taken the life of an innocent person without any sin; in court the witnesses introduced about source of light and for this reason they were able to identify the appellants; witnesses were having no enmity whatsoever, therefore, question of false involvement of appellants does not arise; in identification parade proceedings that was supervised by the learned Magistrate all the three appellants rightly picked up and the witnesses also told the role of one of the appellants who made fire; the recoveries of pistols, positive report of PFSA and medical evidence are strong corroboration to the ocular account; during trial defence was unable to shatter the credibility of any of the witnesses. He finally argued that appellants have been convicted on the basis of a well-reasoned judgment recorded by the learned trial court which requires no interference by this Court.

16. HEARD

17. The basic evidence in this case is the identification parade of appellants. It is the settled proposition that identification parade is the weak type of evidence unless prosecution is succeeded to establish that witnesses were in a position to see the faces of accused and on the basis of features they are able to identify them in a proper identification parade. Prosecution has also to prove that the witnesses first time had seen the accused at crime place and second time in identification parade proceedings and during intervening period there was no occasion for any of the witnesses to see them. Prosecution is also supposed to prove that immediately after the accused was arrested his identity was kept secret and no one was able to see the accused.

18. The occurrence took place on 03.08.2017 at 09:40 p.m. In the complaint (PD), Ibrar Hussain did not mention even by imagination that when the occurrence took place there was any source of light at crime scene. It was first time when witnesses in court improved their version by maintaining that there were heavy lights near the crime scene and because of that reason they were able to notice and conceive the features of appellants. They were duly confronted from their earlier statements and they were found under improvements. The settled principle of law cannot be skipped here that a witness who makes deliberate improvements in his statement so as to cover the serious lacuna in prosecution's case no credibility can be attached to said witness (See: Sardar Bibi and another v. Munir Ahniad and others 2017 SCMR 344, Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and (Muhammad Arif v. The State 2019 SCMR 631).

19. The witnesses claimed that assailants came and one of them made fire and then all they escaped. It means that the occurrence might have been completed within seconds or a minute. In such a situation when three unknown assailants who were armed with pistols intercepted the complainant party and there was hardly any possibility for the witnesses to focus on the features of appellants, a serious question had arisen that how the witnesses could keep in their minds the faces of appellants.

20. The features they referred in their statements were also quite common and hundreds of persons can be fitted keeping in view those glimpse. It was stated that one accused was of mid height, slim physique and young; other was mid height, light heavy weight, young and with moustaches and third was with light weight active young and long face. The same features were there in a case before the Apex Court titled "Muhammad Ayaz and others v. The State 2011 SCMR 769":- "Three young men about 25/26 years old. Two of them were tall about 5'/8" 9" with fair complexion. Third of an average height with wheatish complexion wearing shalwar and a shirt and one of them with a red handkerchief around his neck."

21. The Honourable Supreme Court in these circumstances was pleased to hold that said features had no special look because the said description could be given just about any ordinary person.

22. Saeed Ahmad and Javed appellants were already under arrest in another case and in the same Police Station Dera Rahim where they disclosed about the occurrence. It means that prior to 01.09.2017 they were already in police station, so there was every possibility for anyone to see them. The Investigating Officer Ghulam Mohi ud Din SI (Pw-11) never maintained that he observed any precaution to keep the identity of both the appellants as secret. Even he did not say that when he had taken them from police station to the court of learned area Magistrate, their faces were covered. No doubt that in application for judicial it was observed that the appellants were directed to cover their faces but nowhere it was in evidence that from police station to court their faces were not exposed to anyone.

23. Shahbaz alias Phoki was in Kot Lakhpat Jail Lahore. Fayyaz Ahmad SI (Pw-9) did not clear it that when he arrested him and shifted to Sahiwal. For this purpose I have gone through the record of this case which shows that on 12.09.2017 an application was forwarded to the Sessions Judge Sahiwal for shifting of Shahbaz to Sahiwal. Learned Sessions Judge Lahore forwarded the request to a Magistrate on 14.09.2017. Thereafter record is silent that on which date Fayyaz Ahmad SI got the custody of Shahbaz. As he was produced before the learned area Magistrate Sahiwal for purpose of identification parade on 17.09.2017, so it means that in between 14.09.2017 to 17.09.2017 Javed was shifted to Multan from Lahore. Prosecution was completely failed to show that during this period the identity of Shahbaz was kept hidden.

24. The identification parade proceedings were conducted inside the Jail on 25.09.2017 where Ibrar Hussain (Pw-4), Saeed Ahmad (Pw-10) and Sibtain (not produced) had identified all the appellants. I have gone through the said proceedings (PQ) with the assistance of both sides. Prosecution has claimed that all the witnesses disclosed that Saeed Ahmad (appellant) was the one who made the fire but this is not the position. When Ibrar Hussain was called, firstly he identified Saeed Ahmad and then maintained that "said accused along with others attempted to commit the dacoity and murdered my brother with fire". When the same witness identified Shahbaz he repeated the same words "this accused along with others attempted to commit the docoity and committed the murder of my brother Shaukot by way of fire". Even when he identified Javed he uttered the same words. Saeed Ahmad (Pw-10) also did not state specifically that fire was made by Saeed Ahmad and he too like Ibrar Hussain by identifying every appellant maintained that he along with others attempted to commit dacotiy and caused the murder of Shaukat by way of fire.

25. In view of above circumstances, prosecution's version that Saeed was assigned the specific role has been completely negated.

26. Muhammad Riaz (Pw-5) was also shown as an eye-witness as evident from complaint but prosecution is not in a position to tell that why he was not brought to participate in the identification proceedings.

27. I have gone through the statement of said witness where he admitted that he did not join the identification parade and at the same time he maintained that he identified the accused at the place of occurrence and thereafter he had seen them at police station. Non-participation of Muhammad Riaz in identification proceedings and his statement that he had seen the appellants in the police station has made the case of prosecution doubtful.

28. None of three eye-witnesses were also able to tell that at what date the identification parade had taken place who simply said that after 1/11/2 months of the occurrence said proceedings were conducted under the supervision of a Magistrate.

29. Statement of Saeed Ahmad (Pw-10) lost its worth when he answered that he did not get recorded any statement before the police and if police had reflected any of his statement on the record, same was written by the police themselves and it was not of him.

30. In view of above circumstances, we feel no difficulty to hold that identification of appellants was not possible to be conceived by the witnesses and therefore, their identification during those proceedings was just a so-called exercise, in particular when witnesses were also not able to disclose specifically that who had fired on deceased.

31. Prosecution therefore, remains with the recoveries of pistols at the instances of Saeed Ahmad and Shahbaz. As the pistol recovered at the instance of Saeed Ahmad was matched with the empty so our discussion shall be made only to that extent. According to prosecution on 23.10.2017 Saeed got recovered pistol (P3) that was lying under clothes in a room of his house and it was secured vide a memo (PE). The prosecution has not proved that the place of recovery was within the exclusive possession of Saeed Ahmad. The statements of recovery witnesses show that it was commonly occupied house and at the time of recovery proceedings neither the room nor the house was under any key and lock. It is not the case of prosecution also that the pistol was concealed at such place which was in exclusive knowledge of Saeed and no other person could approach that venue, therefore, the recovery of pistol at the instance of Saeed has not been successfully proved by the prosecution and when it is so the positive report of PFSA shall be of no consequence.

32. Coming to medical evidence although it requires no discussion, however, it shows that there were as a whole six injuries on the person of Haq Nawaz. Injuries Nos.1 and 2 were the result of firearm. Injury No.2 was the exit wound. Injuries Nos. 3 to 6 were abrasions. Prosecution was completely failed to establish that how the remaining four injuries were received by Haq Nawaz because it was not their case that at the time of occurrence there was scuffling between assailants and Haq Nawaz, therefore, to our view the medical evidence also does not corroborate the ocular account.

33. Concluding the discussion made above, we finally hold that as prosecution has not been able to prove its case beyond reasonable doubt against all the appellants, therefore, criminal appeal (588 of 2020) is allowed. Impugned judgment is set aside. Appellants are acquitted from the case. They are in custody and shall be released forthwith if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial court.

34. The death sentence is Not Confirmed and Murder Reference is answered in Negative. JKS-116/L Appeal allowed.