1992 P Cr (PLP)

JUSTICE MUHAMMAD RAFIQ TARAR, (CHAIRMAN).

Asif alias Achhu (21) son of Bashir Ahmed, Akhtar Ali (24) son of Abdul Khaliq, Ashfaq alias Saqi (20) son of Muhammad Ishaq, Mian Ashfaq (20) son of Noor Ahmed and Muhammad Afzal .alias Achhi (21-1/2) son of Farman Ali, residents of Faisalabad were tried under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance; 1979, sections 395, 396 and 302 and 324 read with section 34 of the P.P.C by the learned Special Court for Speedy Trials No.2, Lahore. Vide judgment dated 22-12-1991, the charge under sections 395 and 396/34, P.P.C. was dropped but on the remaining charges all of them were convicted under section 17(4) of the Ordinance of 1979. Asif, Afzal and Mian Ashfaq were sentenced to death as Hadd and Akhtar Ali and Ashfaq alias Saqi were sentenced to imprisonment for life and a fine of Rs.10,000 each or in default in the payment thereof to undergo further R.I. for two years each under section 302/34, P.P.C. Asif, Afzal and Mian Ashfaq were sentenced to death as Qisas while Akhtar and Ashfaq alias Saqi were sentenced to imprisonment for life and a fine of Rs.10,000 each or in default in the payment thereof to undergo further R.I. for two years each. Under section 324/34, P.P.C. all of them were sentenced to R.I. for 10 years and a fine of Rs.10,000 each and in default in the payment thereof to undergo further R.I. for two years. The amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation. Asif alias Achhu, Muhammad Ashfaq alias Saqi and Akhtar Ali alias Popi have filed Criminal Appeals Nos.44, 52 and 54 of 1991 respectively, while Ashfaq son of Noor Ahmed and Muhammad Afzal alias Achhi have tiled Criminal Appeal No.50 of 1991 to challenge their aforesaid convictions and sentences. All these appeals are being disposed of through this consolidated judgment. .

2. The F.I.R. version of the occurrence is that Akbar Ali complainant is running his business under the name of Zafar Traders and Muhammad Akram Imperial Sweet House in Street No.4, Jhang Bazar, Faisalabad. On 7-3-1991 at, about 6-30 p.m. he alongwith Mian Zafar, Majid Rashid, Muhammad Arshad Javed P.Ws., Ehtabar Hussain deceased, Syed Ejaz-ur-Rehman and Muhammad Ramzan (not produced) was checking cash receipts etc. in his office when all of a sudden three persons armed with a rifle and mousers entered the office. One of them was 5-6/7 feet tall, of fair colour, stout built and longish face, the second was 5-1 /2 feet tall, fair coloured and slim with longish face; the third was of wheatish complexion stout built and 5-6/7 feet tall. They pointed their weapons toward the complainant and his companions and commanded them to surrender whatever they had. The cash lying on the table approximately amounting to Rs.1,25,000 was consequently handed over to the Mulzeman (accused persons). In the meantime Ehtabar Hussain caught hold of one of the accused upon which his companion fired at the deceased hitting him on the right flank as a result of which he fell down. On seeing him lying on the ground, Majid Rashid and Zafar also started grappling with the accused persons and during the course the accused fired at them hitting left knee of Zafar and back of chest of Majid. The complainant raised alarm upon which the accused persons ran away while firing taking Rs.1,25,000 in a bag. Thereafter the complainant, Syed Ejaz-ur-Rehman and Muhammad Arshad Javed took Ehtabar Hussain, Zafar and Majid to Civil Hospital, Faisalabad, where Ehtabar Hussain succumbed to his injuries and Zafar and Majid were admitted. Leaving dead body of Ehtabar Hussain with Syed Ejaz-ur-Rehman, the complainant started for the police station. On the way Safdar Hussain Inspector/S.H.O. Police Station, Rail Bazar, met him at Qaisari Gate and he reported the occurrence to him at 8-15 p.m. vide his statement Exh.P.G. on the basis of which formal F.I.R. Exh.P.G./1 was recorded at the police station at 8-20 p.m.

3. After recording the statement of complainant the S.H.O. reached the spot. He secured some blood-stained earth and made it into a sealed 'parcel vide memo. Exh.P.L. He also took into his possession a licence No.20991 (Exh.P.O./1) of the rifle of Tanveer Ahmed son of Muhammad Latif resident of Chak No.613/R.B. vide memo. EXh.P.Q. Then he reached Civil Hospital, Faisalabad, and prepared the injury statement Exh.P.K. and inquest report Exh.P.Y. of Ehtabar Hussain deceased and despatched his dead body to the mortuary for post-mortem examination.

4. On 7-3-1991 at 7-00 p.m. Dr. Muhammad Akram examined Majid P.W. and found a fire-arm wound of entry 1/2 c.m. x 1/2 c.m. x DNP with inverted margins on back -of left side of chest. He was in shock, blood pressure was markedly low, pulse was feeble and condition serious. Injury was kept under observation and referred to surgical ward for expert opinion. The injury was fresh. On the same day, the same doctor examined Zafar Iqbal P.W. and found a fire-arm wound of entry 2 c.m. x 2 c.m. with inverted and blackened margins on inner side of left knee with a wound of exit on front of the left knee. The injury was kept under observation and referred to surgical ward for expert opinion. Later on this injury was declared grievous. 'No opinion could be given by the doctor about the injury of Majid Ali as he was shifted to Allied Hospital and then to a hospital at Karachi.

5. On 3-3-1991 at 10-00 a.m. Dr. Zahid Hussain, Medical Officer, S.H.Q. Hospital, Faisalabad conducted the autopsy on the dead body of Ehtabar Hussain deceased and found the following injuries on it. (1) A fire-arm wound with inverted and blackened margins, 7 c.m. x 4-1/2 c.m. on outer side of right abdomen. (2) Three fire-arm wounds of entry with blackened inverted margins 1/3 c.m. x 1/3 c.m. each, 1-1/2 c.m. from injury No.1. In the opinion of the doctor death was due to shock and harmorrhage resulting from the above, injuries. Injury No.1 could cause death individually.

6. On 8-3-1991 Safdar Ali S.H.O. inquired from the doctor if Zafar and Majid Rashid were fit to make statements to which he replied in the negative. Ultimately he recorded the statement of Zafar on 12-3-1991 and that of Majid Rashid on 23-3-1991. The accused remained untraced during investigation by Safdar Hussain S.H.O: He was suspended on 15-6-1991 and Ghulam Abbas (P.W.2) was posted as S.H.O. Police Station Rail Bazar. He took over the Investigation of this case on 8-9-1991. On the said day Muhammad Hussain Sub-Inspector P.W.10 arrested Asif accused and recovered unlicensed mouser 5 containing 8 bullets from him. Ghulam Abbas S.H.O. interrogated Muhammad Asif accused. On the same day he arrested Akhtar Ali accused and asked both, of them to cover their faces as they were to be subjected to identification test. On the next day he submitted application Exh.P.V. for their judicial remand which was granted and they were sent to jail. On 2-10-1991 he submitted application for identification parade of the aforesaid accused persons which was held on 3-10-1991 under the supervision of Duty Magistrate which Akbar Ali and Arshad Javed P.Ws. correctly identified them. On 15-10-1991 Akhtar Ali while in custody led to the recovery of Rs.9,000 from his house vide memo. Exh.P.J. On the same day Asif led to the recovery of Rs.7,000 from his shop vide memo. Exh.P.H. Ghulam Abbas H.O. was transferred from Police Station Rail Bazar on 16-10-1991 and Tahir Maqsood took over.

7. On 20-10-1991 Tahir Maqsood S.H.O. arrested Ashfaq Ahmed son of Noor Ahmed accused and on his personal search recovered .12 bore gun P.9 with four cartridges vide memo. Exh.P.T: He also arrested Afzal and Ashfaq alias Saqi and produced all the three in Court from where they were sent to jail. He moved application Exh.P.F. for their identification parade which was held on 23-10-1991 in which Akbar Ali,. Zafar, Muhammad Arshad Javed, Muhammad Ramzan and Ejaz-ur-Rehman correctly identified them. On 23-10-1991 Tahir Maqsood S.H.O. was transferred and Muhammad Rafiq S.I. took over as S.H.O. Police Station Rail Bazar. He interrogated Ashfaq alias Saqi on 30-10-1991 who led to the recovery of Rs.23,654 from a box lying in his house vide memo. Exh.P.K. After the investigation the accused persons were sent up to stand their trial. .

8. In support of its case the prosecution examined 21 witnesses in all. Akbar Ali complainant, Majid Rashid, Zafar and Arshad Javed furnished the ocular account of the occurrence. The prosecution also relied on the evidence relating to the recoveries of money from Asif, Akhtar Ali and Ashfaq alias Saqi accused and recovery of mouser; gun and pistol from Asif, Ashfaq son of Noor Ahmed and Afzal accused respectively.

9. The appellants pleaded not -guilty to the charge and denied the prosecution allegations against them. They stated that the eye-witnesses were able to identify them because they had already been shown to them at the police station. Akhtar Ali accused examined Amin Hashmi as a defence witness who stated that at the relevant time Akhtar Ali was present in the club. Both of them learnt about the occurrence from the Mohalla and were requested by various persons to supply blood for the injured. They went to the hospital where Akhtar Ali supplied a bottle of his blood.

10. After examining the evidence on the record the learned trial Judge came to the conclusion that the case against all the accused persons stood proved beyond all reasonable doubts. He, therefore, convicted and sentenced them as mentioned above. However, in para 14 of the impugned judgment it was observed that the prosecution was unable to connect the weapons recovered from Asif, Afzal and Mian Ashfaq with, the commission of murder and injuries to the eye-witnesses. In para 16 it was observed that Mr. Abdul Majeed. Magistrate who supervised the identification parade on 3-10-1991 was not an experienced officer and did not conduct the proceedings in accordance with the rules. He did not inquire from the witnesses in what connection they had come to identify the accused. The learned trial Court however, concluded that it could not be held that the identification parade was conducted dishonestly. The learned trial Judge also took serious note of the efforts of the police in getting Tanveer Ahmed discharged in this case. Licence of his rifle was recovered from the place of occurrence. He was arrested in this case and in the impugned judgment it has been observed that he could not give any satisfactory explanation how his licence was found at the place of occurrence. The conduct of the police officers who dealt with him was strongly disapproved.

11. The learned counsel for the appellants have contended that the identification parade was just a farce and the mere fact that the eye-witnesses had no previous enmity with the accused persons would not clothe them with credibility because it is the intrinsic worth of the statements of the witnesses that matters. They submitted that the eye-witnesses changed the whole complexion of the case at the trial, therefore, they are unworthy of credence and their evidence is not at all sufficient to warrant the conviction. They further maintained that recovery of weapons being of no consequence, was not relied upon by the trial Court and recovery of money too does-not advance the case of the prosecution. The learned counsel for the State and the complainant however contended that the eye-witnesses had absolutely no motive to falsely implicate the appellants in a heinous crime like the present one; the appellants were correctly identified by the eye-witnesses other than Majid Rashid at the identification parade, therefore, their evidence was rightly relied upon by the trial Court.

12. The F.I.R. version of the occurrence has been detailed in the earlier portion of this judgment and need not be repeated here. It may, however, be mentioned that in the F.I.R: it was stated that three culprits entered the office of the complainant.. They were armed with a rifle and mousers and the impression gained from the F.I.R. is that there were only three culprits and the entire occurrence took place inside the office: At the trial, however, Akbar Ali complainant came up with the version that Ahmed Khan, absconder, Afzal and Asif accused entered his office, Afzal was armed with pistol, Asif with mouser and Ahmed Khan with carbine. He further stated: "Ahmed Khan absconder raised Lalkara, abused us and told us to raise our hands. He threatened us with death in case we moved. We raised our hands. Afzal accused put the cash in the bag. Majid Rashid told the accused to return the receipt book as it was no use to them whereupon he slapped him". He continued: "In the meantime Ehtabar Hussain deceased grappled with ADA accused. Afzal accused dragged him out. Mian Ashfaq accused was present outside my office. He was armed with gun. The barrel of his gun had been-cut. Afzal accused shouted at the co-accused for help whereupon Ahmed Khan absconder fired shot at Ehtabar deceased. In the meantime we came out of the office. Zafar P.W. caught hold of Akhtar accused while Majid P.W. caught hold of Ashfaq alias Saqi. Mian Ashfaq fired shot at Zafar P.W. which hit him on the knee. Asif accused fired shot at Majid Rashid which hit him on the back. From the above narration of facts it is abundantly clear that the whole complexion of the case has been changed at the trial. According to the above statement of the complainant. Ehtabar Hussain, Majid Rashid and Zafar P.W. suffered injuries at the hands of their assailants outside the office in the street. In the F.I.R. it was nowhere mentioned that besides the three culprits who entered the office, the other three were standing in the street. The statements of the other eye-witnesses namely Majid Rashid, Muhammad Zafar and Arshad Javed also suffer from the same defect. In cross-examination Akbar Ali admitted that he did not state in the F.I.R. that three accused were present outside the office and came up with the explanation that at the relevant time he was not in proper state of mind due to the occurrence. However, later on, he made a self-contradictory statement saying that he was in proper state of mind when he made statement Exh.P.G. to the police. Furthermore he denied having stated in the F.I.R. that the occurrence took place in the office and voluntarily stated that it partly took place in the office and partly outside the office. He was confronted with the statement Exh.P.G. where it was not so recorded. At the trial he asserted having stated before the police that one accused gave out a Lalkara, abused them and asked them to raise their hands; one accused dragged out the deceased and one fired at him outside his office. He was confronted with the statement Exh.P.G. wherein it was not so recorded. The other eye-witnesses were also confronted with their police statements regarding above details` wherein the same were found not recorded. Majid Rashid P.W. asserted having stated before the police that three accused kept standing outside the office. He was confronted with his statement under section 161, Cr.P.C. (Copy DA.) wherein it was not so recorded. It is important to note that in the identification parade proceedings dated 3-10-1991 conducted by Abdul Majeed, Magistrate 1stClass, Arshad Javed and Akbar Ali did not make any statement although each of them identified Asif and Akhtar Ali by placing hand on them. In the second identification parade held on 23-10-1991 Akbar Ali stated that three persons entered his office and three were present outside. Zafar Iqbal and Arshad Javed P.Ws. and Muhammad Rahman not produced, however, made no mention of the three accused who remained present outside the office. It will thus be seen that the eye-witnesses had changed the very structure of the prosecution version including the place of occurrence. In that view of the matter and for the reasons hereinafter following regarding identification of the culprits it will be hazardous to place implicit reliance on their testimony.

13. It is very interesting to note that Akhtar Ali appellant is a resident of the same street in which the occurrence took place. According to the investigating officer his house is at a distance of only 300 yards from the place of occurrence. It is not the prosecution case that any one of the culprits had a muffled face. It is in evidence that various other persons had also seen the occurrence. The question is whether Akhtar Ali would participate in this dacoity-cum-murder case taking place in his own street at a distance of 300 yards from his house. The probability is strongly in favour of the view that he will not because of fear of being identified. The matter does not end here. He examined Amin Hashmi as a defence witness who stated that at the relevant time Akhtar was with him in the club. On reaching the Mohalla they came to know about the occurrence. Some persons requested them to supply blood for the injured persons. Both of them went to the Hospital and supplied blood for transfusion. Akbar Ali complainant also admitted this fact. He stated that it is correct that Akhtar Ali supplied blood to Majid Rashid on the day of occurrence. Such conduct as was demonstrated by Akhtar Ali could not be of a person who had participated in a dacoity-cum-murder occurrence just half, an hour earlier. Majid Rashid, it may be mentioned, was examined in the hospital at 7-00 p.m.

14. Perusal of the record reveals that the identification parade was a mock of proceeding. Akbar Ali complainant admitted that "police had arrested 13/14 A persons including Tanveer Ahmed and the police called us for the identification of these persons but I informed the police that none from them had committed the present occurrence. Tanveer was shown to us at Kotwali. I visited Kotwali office for three times. On these three occasions I was shown various persons". The investigating officer namely Safdar Hussain P.W.21 stated that he joined several persons as suspects in this case and wherever the witnesses were available he called them at police station `in order to show them suspects in this case'. The case of the appellants was that they had been shown, to the witnesses before the identification parades conducted on 3-10-1991 and 23-10-1991. The statement of the Investigating Officer referred to above lends substantial support to their plea. It needs be mentioned that Zafar and Majid P.Ws. had not participated in the identification parades.

15. The learned trial Court has rightly observed that identification parade dated 3-10-1991 was not conducted in accordance with rules. The identification parade dated 23-10-1991 was also useless and of no avail to the prosecution. Mr. Javed Iqbal Magistrate 1st Class who conducted this raid stated:-- "It is correct that accused persons had raised objection on the proceedings of LD parade and I had recorded their objections. Accused Muhammad Afzal had claimed that their heads were shaves: in Police Station Rail Bazar in the presence of complainant of the case. Rest of the two accused also supported his version. Accused Ashfaq told that he could identify the witnesses very well as the witnesses remained with him for sufficient time with them at the police station. It is correct that other under-trial accused who joined the I.D. parade had long hair. In order to overcome the objection, caps were brought from Mosque of jail and the three accused and other under-trial accused put on the caps and after doing so, the hair of the three accused appeared similar to other under trial accused. The caps were made of straw. It is correct that after wearing the caps the hair of the temporal region and the backside of the heads were visible. It is correct that the hair which were small in size appeared small after wearing the caps." Furthermore during the second identification parade the accused were asked to change their positions and sit at a place of their choice if they so desired when Muhammad Ramzan (not produced) was sent for from outside to identify them. Muhammad Ramzan was at Serial No.4 on the list. Before him Akbar Ali complainant, Zafar and Muhammad Arshad Javed P.Ws. had already been called in one after the other to identify the accused. The accused were not given choice to change their places before calling in the aforesaid three P.Ws. In the circumstances the evidence relating to identification in jail is of no consequence. As regards the identification of the appellants by the P.Ws. in the trial Court, it need be mentioned that in this case the learned trial Court started recording evidence on 23-11-1991. The first eye-witness namely Akbar Ali was examined on 24-11-1991 and the remaining P.Ws. were examined after him. Majid Rashid PWA admitted that he and the other eye-witnesses remained outside the Court on 23 and 24-11-1991 and had been seeing the accused when they were brought in and taken out of the Court room. The identification in the Court, therefore, is also of no consequence.

16. It is also important to note that the licence of rifle of Tanveer Ahmed who was arrested in this case as suspect was recovered from the place of occurrence. Akbar Ali complainant stated that he picked up two or three empties from outside his office and handed them over to the police. The conspicuous disappearance of the said empties in this case coupled with the recovery of licence of Tanveer Ahmed, his arrest by the police in this very case, and absence of any explanation by the prosecution how the licence of rifle of Tanveer Ahmed happened to be at the place of occurrence and what happened to the empties are the circumstances tending to show that the investigation was not done in a fair and straightforward manner. In this case Safdar Ali S.H.O. who recorded the statement of the complainant on the day of occurrence i.e. 7-3-1991 was suspended on 15-6-1991 and Ghulam Abbas P.W.20 took over as S.H.O. Police Station, Rail Bazar. He took over the investigation of this case on 8-9-1991. He was transferred on 16-10-1991 and Tahir Maqsood took over as the S.H.O. He was also transferred on 23-10-1991 and then Muhammad Rafiq took over as S.H.O. Police Station Rail Bazar who submitted the challan. In cross-examination Safdar Hussain S.H.O. stated that in this case there was a direction from the higher police officers that in case the accused were not traced out departmental action will be taken.

17. Relying on the above facts it is contended that the appellants were roped in by the police officers to save their own skins. Be that as it may, the fact remains that the very texture of the prosecution version was changed at the trial exaggerating the number of accused, changing the place of occurrence and the weapons used by the culprits. Though the eye-witnesses were not shown to have any personal animosity with the appellants, the evidence furnished by them, in view of the infirmities pointed out above, does not inspire any confidence. The recovery of weapons from some of them was rightly not relied upon by the trial Court. The recovery of cash too does not advance the case of the prosecution. Admittedly the money allegedly recovered does not bear any identification mark. In the circumstances the prosecution case bristles with serious doubts and the appellants are entitled to the benefit thereof. For the foregoing reasons we allow these appeals, set aside the convictions and sentences of the appellants and acquit them of all the charges. N.H.Q./26/SAC Appeals allowed,