1992 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN (MEMBER)

Asif alias Achhu (21), son of Bashir Ahmad, Afzal (21), son of Farman, Mian Ashfaq (22), son of Noor Ahmad and Muhammad Ishfaq alias Saqi (20) son of Muhammad Ishaq were tried by the learned Judge Special Court for Speedy Trial No.II, Lahore, under section 17(4) of the Offence Against Property (Enforcement of Hadd) Ordinance, VI of 1979 read with sections 34, 395/34, 396/34 and 302/34, P.P.C. Vide judgment dated 22-12-1991, the learned trial Judge convicted the aforesaid accused under section 17(4) of Ordinance VI of 1979 read with section 34, P.P.C. and sentenced each of them to death as Hadd. Similarly, they were convicted and sentenced to death as Qisas under section 302/34, P.P.C. It was directed that the cash amount recovered from the accused appellants shall be divided proportionately between the complainant of this case and the complainants of the two other cases Nos.41 of 1991 and 97 of 1991 bf Police Station Rail Bazar, Faisalabad. The fifth accused, namely, Ahmad Khan alias Teddi did not appear and as such was declared absconder; by the learned trial Court. Asif alias Achhu has filed Criminal Appeal No.47/SAC of 1991 against his conviction and sentence while Criminal Appeal 48/SAC of 1991 has been instituted by ANA and Mian Ashfaq jointly. The third Appeal No.53/SAC of 1991 was filed by Muhammad Ashfaq against his conviction and sentence before this Court. We propose to dispose of these appeals together by this judgment.

2. Shortly stated the facts of the case are that Bashir Ahmad (complainant) son of Barkat Ali and his son Muhammad Ameen (21/22) (deceased) had continuously been doing the iron scrap business in the Kabar Market, Partab Nagar, Faisalabad, for the last 15/16 years. They had been sending one truckload of scrap to Lahore from Faisalabad daily to their customers. On 29-4-1991 at about 8-00 p.m. Muhammad Ameen went to, Neelam Market, Dijkot Road, Faisalabad, on his Scooter No.5455/FDC in connection with his business. On return, when he reached the street between Rehmania Road and Nazimabad, Faisalabad, three persons emerged therefrom suddenly. The first was of wheatish colour, stout body and long face aged about 24/25 years, armed with a revolver. The second accused was of medium size long face aged about 22/23 years and was armed with a revolver. The third person was of wheatish colour, long face aged about 26/27 years armed with a revolver. All the three accused came there on their motorcycles. They fired at Muhammad Ameen which hit him on his abdomen. Muhammad Ameen fell down. The accused ran away after taking away the scooter, alongwith the money. This incident was narrated to Bashir Ahmad, complainant by Dildar Muhammad and Niaz Ahmad P.Ws. who were present at the spot and witnessed the whole occurrence. They claimed to have identified the assailants in the light of a bulb. Muhammad Ameen was taken to Civil Hospital iii an injured condition.

3. Muhammad Hussain 'S.I. P.W.15 received an information about an unknown person that he was keeping in his possession a mauser without licence. He conducted a raid and from the green-belt of Faisalabad City, Muhammad Asif was arrested and on his personal search, Mauscr P.5 and 8 bullets P.6/1-8 were recovered. The weapon was taken into possession vide recovery memo. Exh.P.M. On interrogation, Asif disclosed that he was involved in as many as 22 cases including the case in hand. Muhammad Ayub S.I. P.W.16 deposed that he arrested Afzal accused and from his personal search, a pistol P.7 and 3 bullets P.8/1-3 were recovered. The accused was unable to produce any licence to keep the said weapon with him. These articles were taken into possession vide recovery memo. Exh.P.N Muhammad Rafique S.H.O. P.W.17 investigated the case. On 20-10-1991 Ashfaq son of Noor Ahmad disclosed that he could lead to the recovery of the case property. Accordingly, he led the police party to the recovery of Rs. 27,345 (Exh.P.l). The cash amount was taken into possession de recovery memo. EAT which was attested by Riaz Ahmad and Manzoor Ahmad P.Ws. Similarly, on 30-10-1991 Ashfaq alias Saqi made a statement that he could lead to the recovery of cash and consequently got recovered a sum of Rs.23,654 (Exh.P.15).The cash was taken into possession vide recovery memo Exh.P.K. which was attested by Akber Ali and Muhammad Akram P.Ws. Rab Nawaz S.I. P.W.18 stated that on 29-4-1991 at about 10 p.m. he was present at Chowk Lal Mills, Faisalabad, on patrol duty. Bashir Ahmad (complainant) approached him there and made the complain which was recorded by him vide Exh.P.E. The complaint was forwarded to the police station by the witness and accordingly formal F.I.R Exh.P.E./1 was recorded by Nazir Hussain Moharrar P.W.14. The witness went to Civil Hospital Faisalabad where the complainant made a supplemently statement before him. Muhammad Ameen died in the hospital at 4-45 a.m. An offence under section 302, P.P.C. was added to the charge. Injury statement Exh.P.R. and Inquest report Exh.P.S. of the deceased were prepared by the Police Officer. Dead body was sent to mortuary for post-mortem examination under the escort of Willayat Hussain F.C. Last-worn clothes of the deceased shirt P.1 and Shalwar P.2 were taken into possession vide memo. Exh.P.F. Rough plan of the place of occurrence was prepared vide Exh.P.T. He continued investigating the case till 6-6-1991 when he was transferred from the police station. Muhammad Fazil S.I. Police Post Factory Area P.W.19 also partly' investigated the case. He arrested Muhammad Asif on 15-10-1991. He produced Asif before the Court on 16-10-1991 for obtaining his judicial remand. He asked the accused to cover his face because he was to be identified by the witnesses in an identification parade. On 19-10-1991 the identification parade was held in Camp Jail, Lahore. The Police Officer arrested Muhammad Afzal, Mian Ashfaq and Ashfaq alias Saqi accused on 20-10-1991. These accused were also directed to cover up their faces because they were to be subjected to joint identification parade. A judicial remand of the accused was also obtained by the Police Officer. Second identification parade was held in Camp Jail, Lahore, on 23-10-1991 at 10-30 a.m. On 24-10-1991 Asif disclosed that he could lead to the recovery of cash from his house. Accordingly, a sum of Rs.4,270 (Exh.P.3) was recovered from his house at his instance. The money was taken into possession vide recovery memo. Exh.P.G. Muhammad Afzal led to the recovery of Vespa Scooter No.5455/FDC and a cash of Rs.26,729 from his house. These articles were taken into possession vide memo. Exh.P.H. The recovery was attested by Rafique and Saleem P.Ws. Muhammad Ishfaq alias Saqi led to the recovery of Rs.23,664 from his house. The money was taken into possession vide memo. Exh.P.K. The recovery memo was attested by Akber Ali and Muhammad Akram P.Ws.

4. Dr. Aziz Ahmad P.W.1 medically examined Muhammad Ameen on 29-4-1991 at 9-30 a.m. and found the following injury on his person:-- (1) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. x DNO margins inverted arid blackening present on the lateral side, of left side of abdomen. The injury was found to be grievous in nature. It was fresh and was caused by a fire-arm. On 30-4-1991 at 9-45 a.m. Dr. Masood Iqbal Bukhari P.W.2 conducted the post-mortem examination on the dead body of Muhammad Ameen and found the following injury:-- (1) A lire-arm wound of entry 1/2 c.m. x 1/2 c.m. x abdominal cavity with three stitched perforations of small gut, one in large gut, two in descending, colon and one in sigamoid colon which were present after passing the foreign body from outer left of the abdomen and coming out as exise wound of the size of 1 c.m. x 1 c.m. with everted margins on right side of abdomen 7 c.m. above and lateral to umbilicus. In the opinion of the doctor, death was caused on account of shock and haemorrhage as a result of injury No.1. The injury was ante-mortem and grevious in nature. It was observed that the injury was sufficient to cause death in the ordinary course of nature. The probable time between the injury and death was about 8 hours while the time between death and post-mortem examination was about 5 hours.

5. Eye-witness account was provided by Dildar P.W.7 and Niaa Ahmad P.W.8. Javed lqbal M.I.C. P.W.3 supervised the identification parades on 19-10-1991 and 23-10-1991 in the Jail premises. The eye-witnesses correctly picked up the accused from an assembly of under-trial prisoners during their identification parades.

6. The allegations levelled against the appellants were denied by them in their statements under section 342, Cr.P.C. Muhammad Asif took the plea that the eye-witnesses and the complainant remained with him in the police station for some time and as such they were able to identify him. He further stated that he was subjected to torture by the police. It was added that he was falsely involved in the case. Muhammad Afzal appellant pleaded that he was not arrested by Muhammad Ayub S.I. from Chowk American Hospital. He claimed to have been arrested by Malik Abbas S.I. in the month of August, 1991. He disclosed that one Ahsan Ullah was interrogated by the police and was subjected to severe torture and as a result thereof he died in the police station. He further disclosed that he was an eye-witness of the beating given to Ahsan Ullah by the police and that he also saw' the disposal of the dead body of the accused police. In this view of the matter, he was implicated in the case with an ulterior motive to save their skin. The plea taken by Mian Ashfaq was that he was implicated in the case because the police wanted to show its efficiency in apprehending the accused in criminal cases. Muhammad Ashfaq alias Saqi deposed that he was a member of Shotocan Karatey Club, regularly. He stated that he was well-known the city. He also took the plea that he was implicated in the case falsely.

7. The learned trial Judge believed the ocular account of Dildar and Niaz Ahmad P.Ws. and the recovery of the case property and on the basis of the aforesaid evidence the appellants were convicted and sentenced as already observed above:

8. Learned counsel for the appellants forcefully argue that there was not 1, an iota of evidence, to connect them with the commission of the crime. They submit that Dildar P.W.7 and Niaz Ahmad P.W .8 are merely chance witnesses, and that their evidence was grossly inadequate to record any conviction against the appellants. Their evidence demonstrates beyond any shadow of doubt that they were not in a position to properly identify the appellants at the time of occurrence. The learned counsel for the state and the complainant support the conviction and sentence of the appellants by adopting the reasons mentioned in the judgment. They add that the witnesses had no animosity to falsely implicate the appellants in the commission of the crime. They, therefore, submit that there is absolutely no justification to discard the evidence of the truthful prosecution witnesses.

9. We have heard learned counsel for the parties at considerable length and have read the whole record with utmost care. We are not at all satisfied with the quality of the evidence produced and relied upon by the prosecution in this case against the appellants. The prosecution case mainly depends upon the eye-witness account given by Dildar and Niaz Ahmad P.Ws. Dildar P.W. deposed that on 29-4-1991 at 8-30 p.m. he was going alongwith Niaz Ahmad P.W. on Rehmania Road towards Partab Nagar. When they reached near Chowk Nazimabad, they heard fire-shots behind and stopped then and there. They looked back only to find that Muhammad Ameen had already fallen on the ground from his scooter. The witness categorically stated that he could not give the number of the assailants who fired at the deceased. However, he claimed that the four appellants present in Court alongwith another person picked up the motorcycle of Muhammad Ameen (deceased) and ran away from the spot. He also deposed that he could not notice any weapon with the accused with which Muhammad Amin was injured. To the same effect is the statement made by Niaz Ahmad P.W.8. He deposed that he heard afire-shot behind and looked back for a while to find that Muhammad Ameen had fallen down from his scooter on the road. He further stated that he saw five accused who were riding on two motorcycles at the time of occurrence. He stated that several people from the locality reached the spot. He deposed that he went to give information to father of Muhammad Ameen about the occurrence. He also later on identified the appellants in the identification parades. From the close scrutiny of the eye-witness account, it is evident that there was no sufficient light available on the spot to enable the witnesses to properly identify them beyond doubt. The evidence is that the witnesses were going ahead of Muhammad Ameen and that from behind some assailants fired at the deceased. They looked back momentarily and noted that Muhammad Ameen had fallen on the ground from his vehicle. In nutshell, the case is that five unknown accused fired at Muhammad Ameen who fell down on receipt of injury. The medical evidence of Dr. Aziz Ahmad shows that there was only one fire-shot injury on the abdomen of the deceased. There is absolutely no evidence available on record to show as to whose shot hit Ameen deceased. The witnesses did not at all claim to see the assailants while firing at the deceased. Their evidence is that they heard the fire-shots and looked back and found that the deceased had already fallen down from his scooter. The evidence of the prosecution, therefore, does not in any way connect the appellants with the commission of the crime. The prosecution witnesses were definitely not in a position to correctly identify the assailants at the time of occurrence. It was admittedly a dark night. In our view, the prosecution has failed to establish beyond reasonable doubt that the eye-witnesses were present at the spot t0 witness the occurrence. Even if they were present, it is not proved that they were able to identify the accused in the electricity light. Site plan Exh.P.L. shows that occurrence took place at Point No.1 and the electricity pole was fixed at Point No.3. The distance between Points Nos.1 and 3 is 87 feet. The Investigating Officer also prepared a rough site vide Exh.P.T. It shows that there were two electricity poles. In cross-examination he deposed that the distance of one electric pole from the place of occurrence is 80 feet while the second pole is at a distance of 45 feet. In this view of the matter, it would be difficult for the witnesses to identify the assailants. The evidence further shows that the witnesses had seen the assailants for a very short time while picking up the scooter and as such in our view, they were not at all in a position to retain in their memory the distinctive features of the assailants. It is evident that the complainant also failed to give any distinctive features of the accused for their identification in future. This also appears to be a case of hit and run with scooter and the money. This view is supported by the medical evidence that only one shot was fired at the deceased and it was not repeated by the accused. In our view, the occurrence lasted only for a very short time. The witnesses state that two accused were of wheatish colour with round faces and stout bodies. The majority of people of this area is of wheatish colour with round faces. Similarly, there are innumerable people with long faces and stout bodies. The third accused was of medium size. There is also no dearth of medium size people. In this view of the matter, the features given by the witnesses about the accused cannot be of such a nature which may distinguish them from other people. These ordinary descriptions of the accused, therefore, cannot be held to be eminently distinctive so as to be the basis for their future identification and that too after the lapse of a considerable period, of time. The witnesses claim to have identified the accused in the identification parade of this case after about five months and as such naturally they could not retain the descriptions of the accused in their memory for such a long time. It may be profitable to mention here that in the other two criminal cases, namely, F.I.R. No.41/91 and F.I.R. No.97/91 of Police Station Rail Bazar, Faisalabad, identification parades were not accepted as reliable and valid as they were not held according to law. In the first case, it was observed by this Court that the identification parade was a mock parade on the face of it. We also hold the same view in this case. The reason is that almost the same position prevails in this case as well because the present appellants were also the accused in those cases. In such a situation, it would be difficult to accept this type of identification parade as a valid piece of evidence because it cannot be said at all that this parade like other parades was held fairly and in accordance with the law with a view to provide corroboration to the eye-witnesses. The result of the identification parade, would also become wholly insignificant especially in view of the statement of Dildar P.W.7 that the accused were shown to him in, the police station before the identification parade was held. It is accordingly discarded and is kept out of consideration. Further, the F.I.R. shows that there were three accused who while armed committed the murder and took away the scooter of the deceased alongwith the cash. The evidence demonstrates that the prosecution witnesses made, considerable improvements in their depositions during the trial inasmuch as number of the accused was conveniently increased from three to five. This can be seen from another angle keeping in view the supplementary statement of the first informant. He has attempted to throw a wide net to implicate more people in the case. The possibility cannot be ruled out that the attempt was made under the pressure of the investigating police with an ulterior motive. We are, thus, not prepared to accept the supplementary statement made by the complainant implicating two more accused in the commission of the crime at the belated stage of the case. The evidence also shows that the eye-witnesses were closely linked with the complainant. We fail to understand as to why they did not take the injured Muhammad Ameen to the hospital. Their conduct does not appear to be aboveboard. At any rate, their evidence demonstrates beyond doubt that they did not see the accused for sufficient time so that they may retain the distinctive features of the accused in their memory. They looked behind only when the occurrence had already taken place. The witnesses could hear the. sound of fire-shot only. They did not say that they saw the appellants while firing at the deceased Muhammad Ameen. Somebody else might have fired at Muhammad Ameen in the darkness. In the circumstances, their evidence does not inspire confidence. They are merely chance witnesses. In the circumstances, we are inclined to reject the ocular account of Niaz Ahmad and Dildar P.Ws.

10. The result of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants. In this view of the matter, the appellants are acquitted and their convictions and sentences are set aside. They shall be released forthwith provided of course they are not needed in some other criminal case. The appeals succeed and are allowed. N.H.Q./24/SA.C. Appeals accepted.