2002 P Cr (PLP)

MUHAMMAD NAWAZ ABBASI, J.‑‑‑ The appellants namely Gul Bahar alias Bhakkar Khan in Criminal Appeal No. 37-T of 2000 and Mujahid Hussain Shah son of Tilla Muhammad Khan in Criminal Appeal No.45/T of 2000 were tried for the charge under sections 302/353 395/396, P.P.C. by Special Court II established uncles Anti-Terrorism Act, 1997. The learned trial Judge having found the appellants guilty of the abovesaid charges convicted and sentenced them vide judgment, dated 24‑1‑2000 as under:‑‑ (a) Under section 302/34, P.P.C. Gul Bahar was sentenced to death and Mujahid Hussain was sentenced to imprisonment for life. (b) Under section 353, P.P.C. R.I. for two years with a fine of Rs.2,000 each and in default of the payment of fine to undergo S.I. for six months each. (c) Under section 395, P.P.C. R.I. for ten years with a fine of Rs.10,000 each and in default of the payment of fine to undergo S.I. for six months each. (d) Under section 396, P.P.C. R .I. for ten years with a fine of Rs.50,000 each and in default of the payment of fine to undergo S.I. for six months each.

2. Gul Bahar appellant was also burdened with the payment of compensation of Rs.3,00,000 to the legal heirs of the deceased and in default of payment of compensation to undergo S.I for six months under: section 544‑A, Cr P.C. The sentences of imprisonment of both the appellants were directed to run concurrently with benefit of section 382‑B, Cr.P.C.

3. The record was sent to this Court for confirmation of sentence of death awarded to Gul Bahar appellant. The above‑referred criminal appeals filed on behalf of the appellants are proposed to be disposed of through this single judgment.

4. The co‑accused of the appellants namely Muhammad Idrees being fugitive from law was declared proclaimed offender and his case was separated under section 512, Cr.P.C.

5. The prosecution case in brief as contained in F.I.R. Exh.P.D. recorded by Mansab Mahmood, A.S.‑I. P.W.16 was that on 19‑6‑1998 at about 8‑00 p.m Gulfaraz Akhtar, Constable P.W.5 (complainant) alongwith Abdul Qayum, Constable P.W.6 armed with SMG Rifle and Ishtiaq Hussain, S.‑I./S.H.O. with..30 bore revolver were patrolling in the official vehicle bearing No.CH‑1707 being driven by him in the area of Police Station Dhudhial at about 11‑00 p.m. and while they were on their way from Village Dorey to Chakwal‑Dhudhial Road when reached near Jhaley Maswal, two persons namely Abdul Rashid P. W.7 and one Raja Siraj (given up P.W.) met them who were searched and nothing objectionable was recovered from them. Meanwhile, a vehicle (ambulance type) arrived there from Dhudial side, which was stopped for checking purposes, it was found that eight persons including the driver were sitting in the vehicle. Abdul Qayyum under the instruction of the S.H.O. when stepped towards them for their search, four of them snatched the rifle from him and meanwhile the S.H.O. came out 'of his when the remaining three persons taking out their pistols opened firing at the S.H.O. who having sustained injuries at different parts of the body fell on the ground. The said three persons having snatched the official revolver of the S.H.O. boarded in the vehicle with their companions and one of them armed with pistol while again coming out of the vehicle forcibly took into possession the keys of the police vehicle. The culprits then fled away through their vehicle.

6. Mansab Mahmood, A.S.‑I. having reached at the place of occurrence collected the blood‑stained earth from the spot in a sealed parcel and during the spot inspection took into possession photostat copy of the identity card of Muhammad Idrees accused vide memo. EXh:P.B. The Investigating Officer having prepared the site plan of the place of occurrence, injury statement Exh.P.Q. and inquest report Exh.P.R. of the dead body of the deceased sent the dead body for post‑mortem examination under the escort of Wazahat Hussain, Constable. The blood‑stained earth was later sent to the office of Examiner, Lahore, through Mazhar Hussain, Constable.

7. Dr. Muhammad Iqbal Ghanni P.W.7 conducted the post‑mortem examination on the dead body of Ishtiaq Hussain deceased. The post mortem examination report Exh.P.E. and pictorial diagram of the injuries Exh.P.E./1 was placed on record according to which nine fire arm injuries were sustained by the deceased out of which three injuries were entry wound caused with fire‑arm with two exit wounds and remaining injuries were caused with blunt weapon. All the injuries were found ante‑mortem in nature and three injuries, were found fatal which were sufficient to cause death in the ordinary course of nature.

8. Muhammad Ilyas, Inspector/S.H.O. of the concerned police station recovered vehicle bearing KTA No.6044, which was allegedly used by the culprits in the occurrence, from the possession of Mujahid Hussain Shah appellant on 21‑6‑1998 during the Nakabandi, Mujahid Hussain Shah accused was immediately sent to judicial lock‑up and on 1‑7‑ 1998 he was put to identification parade in jail under the supervision of a Magistrate Gul Bahar accused upon arrest on 31‑5‑1999 by Nazir Ahmad, Inspector P.W.13 was immediately sent to judicial lock‑up and was put to identification parade on 5‑6‑1999 in jail under the supervision of a Magistrate. The memo. of the place or occurrence was prepared on the pointation of Gul Bahar accused while in police custody.

9. The accused in their statement under section 342, Cr.P.C . while denying the charge pleaded innocence.

10. The sole evidence against the appellants brought by the prosecution on record was the identification of the accused by Gulfraz Akhtar, Constable P.W.5, Abdul Qayyum P W.6 who being members of the police party, and Abdul Rashid son of Muhammad Sher P. W .7 who, while passing through . the road at the relevant time witnessed the occurrence and identified the accused at the spot and in the identification parade held in jail and subsequently in the Court‑ Gulfraz Akhtar P.W.5 and Abdul Qayyum P.W.6 to their statements in cross‑examination have categorically stated that there was no electric light on the road‑side where the occurrence took place. There is nothing in the statements of these witnesses that either, the electric light or any other light was available at the time of occurrence to identify the accused. The witnesses have not stated that the accused were identified in the light of the vehicle. There is also no evidence that either it was a moonlit night or that the assailants were identified in the torch light. The description of the accused without their identification at the time of occurrence could not possibly be given in the complaint Exh. P. D and the statements of the witnesses. The identification of the appellants in the dark night as stated by the P. Ws. was not possible and consequently their identification in the jail would be of no consequence. It is an admitted tact that Gul Bahar accused was arrested in the case in hand while he was under arrest in another case, therefore, the possibility that the accused was shown to the witnesses who were police officials before identification parade would not be ruled out. Similarly, Mujahid Hussain accused who having been found in possession the vehicle allegedly used, to the occurrence on arrest much later to the occurrence was sent to h judicial lock‑up and thus the app6lants could easily be exposed to the witnesses (police officials), in the police station as well as in jail, therefore, the identification of the appellants in jail and subsequently in Court would be of no evidentiary value to connect them with the commission of offence. We may observe that even if the vehicle allegedly recovered from Mujahid Hussain was used in the occurrence, it would not be a proof of participation of Mujahid Hussain in the occurrence. The prosecution has not been able to bring any other evidence direct or circumstantial to connect the appellants with the crime. The, sole evidence of identification being highly doubtful and having not been proved up to the required standard would trot be attached any weight and with the exclusion of the evidence of identification, it would be a case of no evidence.

11. For the foregoing reasons, the conviction and sentence awarded to the appellants by the trial Court is set aside and they are directed to be released from jail forthwith if not required to be detained in any other case. These appeals arc allowed. H.B.T./G‑194/L Appeals allowed.