1994 P Cr (PLP)

MIAN NAZIR AKHTAR, J.

This judgment will dispose of Criminal Appeal No.948 of 1991 filed by Muhammad Sharif and Muhammad Boota appellants and Criminal Appeal No.1079 of 1991 filed by Muhammad Abbas appellant. The appellants alongwith 3 others, namely, Ghulam Abbas son of Ahmad, Muhammad Abbas son of Sher and Iftikhar alias Ittu were tried for an offence under section 396/460 of the P.P.C. for committing the murder of Ghulam Rasool deceased during the course of dacoity. The trial Court found the appellants guilty and sentenced them under section 460, P.P.C. to life imprisonment with a fine of Rs.10,000 each or in default of payment to undergo R.I. for 2 years each. They were further ordered to pay a sum of Rs.15,000 each to the heirs of the deceased by way of compensation under section 544-A of the Cr.P.C. or in default of payment to undergo R.I. for 2-1/2 years each. They were given the benefit of section 382-B of the Cr.P.C.

2. The occurrence took place at 2-30/3-00 a.m. in the night between 24th/25th of December, 1989 in the house of Ghulam Rasool deceased who lived in Mohallah Sharif Abad Mandi Farooq Abad. The complainant had gone to see his nephew Ghulam Rasool deceased on 24-12-1989. The complainant, Muhammad Riaz, P.W.7, Imran P.W.8 and Ghulam Rasool deceased, his wife and children went to their beds in separate rooms. At about 2-30/3-00 a.m. there was some noise in the courtyard, whereupon the inmates of the house got up. The electric bulb was on. Five persons were found to be present in the courtyard of the house out of whom one was armed with iron rod and one with a carbine. The others also had fire-arms with them. The tall man having a carbine directed the deceased to give him whatsoever was in the house. The other accused frightened the complainant and the P.Ws. by hurling out threats of being killed. The three accused with average heights started searching the house by unlocking the boxes. They robbed cash worth Rs.15,000, golden ornaments (2 pairs of the ear Kantas, 4 bangles, a necklace, 2 rings) and a pistol with its licence. The short-statured accused forcibly took off golden ear rings from the ears of Mst. Akbari Bibi. When the accused were about to leave, the deceased raised alarm whereupon the taller accused fired with carbine hitting the deceased at his belly. Thereafter, the accused managed to escape in the darkness of the night. The injured person was being carried on a cot to the hospital when he expired in the way. The F.I.R. Exh.P.A. was recorded on the statement of Muhammad Siddique P.W.6 by Zulfiqar Ali A.S.I. (since dead) at Police Station Farooq Abad at 4-45 a.m. on 25-12-1989. The formal F.I.R. Exh.P.A./1 was got proved through the statement of Zafar Mehmood A.S.I. P.W.1. Zulfqar (deceased) S.I. recovered blood-stained earth from the spot on 25-12-1989 and gave its parcel to P.W.1. In the end of December, 1989, Muhammad Ashraf, Inspector C.I.A. was posted as S.H.O. at Police Station Farooq Abad, who arrested Muhammad Abbas son of Ahmad Ali on 15-1-1990 and recovered .7 mm rifle with 43 live bullets from him. Iftikhar alias Ittu and Abbas son of Sher Muhammad accused were arrested by Rashid Mehmood S.H.O. P.W.12. The five other accused namely Muhammad Sharif, Muhammad Boota, Muhammad Abbas son of Khurshid, Nazar Hussain (since dead) and Shahnaz alias Shahna (since dead) were arrested by Zahid Khan, A.S.I. P.W.13 on 18-3-1990. The following recoveries were said to have been made from the appellants and their co-accused Muhammad Abbas alias Basoo son of Khurshid, Licence Exh.P.10 and .25 bore pistol P.11 belonging to the deceased vide recovery memo Exh.P.H., dated 20-4-1990. Nishan alias Shana, A pair of Kantas Exh.P.7/1-2 from -his house vide recovery memo. Exh.P.K. Nazar Hussain alias Nazra, A pair of Kantas Exh.P.8/1-2 from his residential house vide recovery memo. Exh.P.L. Muhammad Boota, Ear-rings Exhs.P.5. and P.6 vide recovery memo. Exh.PJ. Muhammad Sharif, A pair of ear-rings Exh.P.9/1-2 vide recovery memo Exh.P.I. Nazar Hussain alias Nazara .24 bore pistol P.11 vide recovery memo. Exh.P.R., dated 8-4-1990. The stolen articles were identified by the complainant as well as Imran Mubashar and Mst. Akbari Bibi P.Ws. on 8-4-1990.

3. The identification parade of the accused persons was conducted on 25-3-1990 by Muhammad Wakeel, M.I.C. who appeared as P.W.15 and proved his report Exh.P.O. The post-mortem on the dead body of the deceased was conducted by Dr. Abdul Bari on 25-12-1989 at 4-00 p.m. who found the following injuries on the dead body of the deceased:-- (1) Fire-arm wound of enterance 4 c.m. x 4 c.m. on front of right side of abdomen upper part, 8 c.m. above the umbilicus, blackening present around edges. Plastic cock was removed from the wound. Pellets travelled backwards and downwards. Four pellets were removed from posterior abdominal wall. The pellets punctured small and large intestines, peritoneum and large blood vessels of the abdomen. Scalp, skull, vertebrae, brain and spinal cord were healthy. All the organs of the thorax were healthy. Heart was empty. Excepting walls, peritoneum small and large intestines, all the organs of the abdomen were healthy. Stomach was empty. Small intestines contained semi digested food. Large intestines contained faecal matter. The injury was ante-mortem and caused by fire-arm. In my opinion, death occurred due to severe shock and haemorrhage due to the injury, which was sufficient to cause death in ordinary course of nature. The /probable time that elapsed between: the injury and death, was within one hour; and death and post-mortem, 10-14 hours." Amanullah S.I. P.W.16 recorded the statements of all the P.Ws. under section 161 of the Cr.P.C. completed the investigation and submitted challan against the accused persons. It may be mentioned that Nazar Hussain alias Nazra and Nishan alias Shana accused were killed on 14-5-1990 in a police encounter.

4. The trial Court framed charge against the appellants under section 460 of the P.P.C. to which they pleaded not guilty and claimed to be tried.

5. In support of its case the prosecution produced 16 witnesses. P.W.1 Zafar Mehmood, A.S.I. had recorded the formal F.I.R. Exh.P.A./1 on receipt of the complaint Exh.PA. He had worked with Zulfiqar, S.I. and was conversant with his handwritings. He proved the complaint Exh.PA. and the Kariwai Exh.PA./2 which were in the handwriting of the deceased S.I. He had received the parcel of the blood-stained earth from the deceased S.I. and kept it in the Malkhana. He gave it to Iftikhar Ahmad, Constable on 16-1-1990 for delivering the same in the office of the Chemical Examiner, Lahore. P.W.2 Muhammad Ashraf, Inspector C.I.A. and arrested Muhammad Abbas son of Ahmad accused and recovered .7 mm rifle with 43 live bullets from him. P.W.3 Naseer Ahmad, Constable had taken the dead body of Ghulam Rasool deceased from the place of occurrence for post-mortem examination. After the post-mortem examination the doctor gave last-worn clothes, shirt P.1, Shalwar P.2 and sweater P.3 (all blood-stained) and a sealed bottle P.4 containing pellets to this witness. He delivered the said articles to the Investigating Officer who recovered the same vide memo. Exh.P.E. P.W.4 Doctor Abdul Bari conducted the post-mortem on the dead body of Ghulam Rasool deceased. P.W.5 Mukhtar Ahmad, Constable had delivered parcel of blood-stained earth in the office of the chemical examination, Lahore on 15-1-1990. P.W.6 Muhammad Siddique is the complainant who supported the prosecution story narrated in the F.I.R. He had also taken part in the identification parade and identified some of the accused persons. He again identified Muhammad Sharif and Shahana accused in the Court. However, when asked to pick out Khurshid son of Dost Muhammad, he wrongly picked out Abbas son of Khurshid. In the like manner, when called upon to point out Sher Muhammad, he pointed out to Iftikhar alias lttu appellant. Again, when required to point out Dost Muhammad, he picked out Abbas son of Sher Muhammad. P.W.7 Muhammad Riaz and P.W.8 Imran Mubashar supported the complainant's version. P.W.9 Muhammad Nasim Khan, S.I. had recorded the statement of the draftsman under section 161 of the Cr.P.C. and recorded his notes in read ink on the site plans Exhs.P.N. and P.N./1. He arrested Nazra, Shana, Abbas son of Khurshid, Boota and Sharif accused in the present case on 22-3-1990 (accused were. actually arrested by Zahid Khan, A.S.I. on 18-3-1990 in another case bearing F.I.R. No.163 under section 399/402 of the P.P.C. P.W.10 Muhammad Riaz Ahmad is the draftsman who had prepared site plan Exhs.P.N. and P.N./1. P.W.11 Aftab Shah was given the; summons for service of Zulfiqar S.I. He learnt that he had expired on 26-2-1990. and made a report on the summons accordingly. P.W.12 Rashid Mehmood, Inspector had arrested Iftikhar alias Ittu and Abbas son of Sher Muhammad on 12-2-1990 in case registered vide F.I.R. No.12, dated 19-1-1990 under section 382 of the P.P.C..P.W.13 Zahid Khan, S.I. had arrested Nishan alias Shanu, Channan, Nazr?. Muhammad Boota alias Sharhana, Abbas son of Khurshid and Muhammad Sharif on 18-3-1990. In case F.I.R. No.163/90, dated 18-3-1990. P.W.14 Constable Muhammad Latif was given summons for service of Amjad Hussain, S.I. He returned the summons with his report that the S.I. has suffered an attack of paralysis and was confined in the Services Hospital, Lahore. P.W.15 Ch. Muhammad Wakeel, M.I.C., Lahore had conducted the identification parade of the accused persons on 5-3-1990 in the District Jail, Sheikhupura. P.W.16 Amanullah Khan, S.I. had partly conducted the investigation in the case.

6. The prosecution gave up Mst. Akbari Bibi, Mst. Sajida Bibi, Muhammad Sarwar, Constable, Ghulam Sabir, Muhammad Rafique, Abdul JAR Liaqat Ali and Manzoor Ahmad P.Ws. as being unnecessary. The A.P.P. produced in evidence the reports of the Chemical Examiner and the Serologist as Exh.P.T. and Exh.P.U. and closed the prosecution evidence.

7. The appellants were examined under section 342 of the Cr.P.C. They claimed that they were falsely implicated in the case and were shown to the P.Ws. before the identification parade. They refused to make any statement under section 340(2) of the Cr.P.C. Abbas appellant produced Doctor Muhammad Yousaf Kazmi as D.W.1 in his defence. He stated that he had medically examined Abbas alias Basoo son of Khurshid and recorded the following observations:-- "He has old healed scar marks on the back of left forearm 28 c.m. long and 2-1/2 c.m. in breadth and 21 c.m. x 2 c.m. on back of right forearm. The muscles and tundones of left hand have become stiff and contracted due to which left hand is also disfunctional and disabled. In the same way right wrist joint is also disfunctional due to contracture of muscles. He needs very advance surgical intervention for restoration of their function and ability which is not possible in Jail Hospital."

8. The appellants learned counsel contends that the occurrence had taken place in the darkness of the night, real culprits were not identified and the appellants were implicated on mere suspicion. He submitted that in the F.I.R. only five accused were mentioned but challan was submitted against eight persons. He further submitted that on the same evidence, three co accused were acquitted and that the appellants could not be convicted without exceptionally strong corroboration which was lacking in the present case. He urged that the identification parade was conducted after about 3 months of the incident and had no legal value particularly when the same was not conducted in accordance with the legal requirements and the accused persons were shown to the witnesses before identification parade. He added that Boota appellant No.2 was only 13-1/2 years old at the time of the occurrence and could not have been joined in the dacoity when his elder brother Nazar was taking part in it. As regards Abbas appellant, the learned counsel submitted that he was a disabled person and could not use the gun. According to the prosecution evidence the shot was fired by the accused who was taller and admittedly Muhammad Abbas appellant is taller than others. He also urged that the recoveries were highly doubtful and could not be relied upon to form basis of the appellants' conviction. On the other hand, the learned State counsel supported the appellants' conviction and urged that the accused persons were duly identified and recoveries of stolen articles were made from them. He further urged that the accused, persons remained at the place of occurrence for a fairly long time during which they were properly seen and identified in the light of the electric bulb. The appellants were arrested on 22-3-1990 in the present case and their identification parade was held on 25-3-1990 under the supervision of the Magistrate in which the appellants were properly identified.

9. Admittedly, the occurrence had taken place after mid-night and according to the F.I.R. only five accused persons had taken part in the same. According to the complainant an electric bulb was on at that time but the site plan prepared by the draftsman and the Investigating Officer does not indicate the place of the electric light/bulb. Moreover, even if it is believed that the electric bulb was on, there is nothing to show whether it was a bulb with low or high watts because the Investigating Officer did not take it into possession. Generally, the electric bulb which is kept on in the courtyard during the night time is a bulb with low watts. Anyhow, since the electric light/bulb was not indicated in the site plan and the electric bulb was not taken into possession, the Court has no option but to conclude that the prosecution had failed to prove that there was some light at the place of occurrence to make the identification of the accused persons possible. Due to this basic infirmity, the result of the identification parade cannot be safely relied upon, moreso, when the identification parade was held after about three months of the, occurrence. Even if it is presumed that the eye-witnesses had seen the culprits in the light of the electric bulb, it was very difficult for them to remember the physical features of the culprits and identify them when they were mixed up in about 43 other inmates of the jail. It is in prosecution evidence that the appellants alongwith Nishan alias Shanoo and Nazar son of Daim were arrested on Pd 18-3-1990 in another case bearing F.I.R. No.163, dated 18-3-1990 under section 399/402 of the P.P.C. by Zahid Khan, S.I. Punjab Constablery, P.W.13. He informed Farooq Abad Police which arrested the appellants and their co accused in the present case on 22-3-1990. Their identification parade was held on 25-3-1990. From 18-3-1990 till the date when the identification parade was held the police had sufficient time to show the accused persons to the prosecution witnesses. In fact, the appellants and their co-accused had raised this objection at the time of the identification parade by saying that they were shown to the P.Ws. in the police station several times. Their objection does not appear to be without substance because the P.Ws. who had seen the culprits three months earlier in the darkness of night had picked them up while they were mixed up with 43 dummies. Ordinarily one accused should be mixed up with about 9/10 dummies as held in the cases of Shabbir Ahmad and 4 others v. The State 1972 P Cr. L J 310, Lal Pasand v. The State P L D 1981 SC

142. However, in the present case, eight accused persons were mixed up with 43 dummies which had practically made it more difficult for them to identify the accused persons but strangely enough they were able to pick out the culprits correctly. This circumstances can, as well, be construed in favour of the prosecution. However, it is settled principal of administration of justice in criminal cases that where two views or inferences are possible, then the one favourable to the accused should be preferred. Therefore, I am inclined to hold that identification of the culprits after three months, in the circumstances of the case, was not possible and that in all probability the accused persons 8 including the appellants were shown to the eye-witnesses before the identification parade. Moreover, the mere identification of an accused in an identification parade without any reference to the role played by him in the occurrence carries no weight. This view finds support from the judgment in the C case of Khadim Hussain v. The State 1985 S C M R

721. The relevant part of the judgment, reads as under:-- "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime." The Honourable Supreme Court had referred to a passage from the judgment in the case of Lal Singh v. Crown I L R 51 Lah. 396 which is also reproduced below:-- "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight." The view expressed in Khadim Hussain's case was subsequently followed in the case of Ghulam Rasool and 3 others v. The State 1988 S C M R

557. In the present case while appearing as witnesses in the Court none of the eye witnesses explained as to how and in what manner he was able to identify or pick out the accused persons. Therefore, the identification parade which C suffers from the above-referred infirmities has no efficacy and cannot be used as corroborative piece of evidence. So far as the recoveries are concerned the same have not been relied upon by the trial Court for cogent reasons. The learned State counsel has not been able to point out any error in the approach of the trial Court in discarding the recoveries it is also significant that in the F.I.R. the number of the culprits was given as 5 but was increased to 8 in the challan. Out of the 5 culprits the taller accused was said to have fired at Ghulam Rasool deceased. The three eye-witnesses had consistently stated that the shot was fired by the taller accused i.e. Muhammad Sharif appellant. However, in fact, Abbas appellant is taller than Muhammad Sharif. This fact was admitted by Muhammad Imran Mubashar P.W.8. Muhammad Riaz P.W.7 wrongly denied the suggestion in the Court that Abbas appellant was taller than Sharif appellant. Upon his wrong statement, the trial Court observed that the witness appeared to be dare-devil in falsehood. Abbas appellant is a handicapped person as his left hand and right wrist joint are disfunctional. This fact is proved by the statement of Doctor Muhammad Yousaf Kazmi who appeared as D.W.1. He could not have possibly joined the co-accused for committing dacoity.

10. There is considerable weight in the argument of the appellants' learned counsel that on the same evidence three co-accused were acquitted I and that the appellants could not be convicted without exceptionally strong corroborative evidence which is clearly lacking in the case.

11. For the foregoing discussion, the prosecution does not appear to have succeeded in proving its case against the appellants beyond a reasonable doubt. Therefore, the appeals filed by Muhammad Boota, Muhammad Sharif and Abbas are accepted and they are acquitted of the charge against them. Muhammad Boota appellant is already on bail. His bail/surety bonds shall stand discharged. Muhammad Sharif and Abbas appellants shall be released from jail forthwith if not required in any other case. N.H.Q./M-1698/L Appeals accepted.