2002 PLP 1759 (YLR)

Mrs. Yasmin Sehgal, Asstt. A.‑G. for the State. Dates of hearing: 8th and 9th July, 2002. ASIF SAEED KHAN KHOSA, J.‑‑ Ghulam Abbas, Abdul Wahid, Muhammad Azim alias Nikka, Faiz Ahmad and Muhammad Arshad appellants were convicted for an offence under section 396, P.P.C. vide judgment dated 30‑11‑2000 rendered by the learned Judge, Special Court No.II, Anti Terrorism, Gujranwala and were sentenced to each and a fine of Rs.20,000 each or in default of payment thereof to undergo rigorous imprisonment for one year each. The appellants were also convicted for an offence under sections 302/149, P.P.C. and were sentenced to imprisonment for life each. All the appellants were further convicted for an offence under section 457, P.P.C. and were sentenced to rigorous imprisonment for five years each and a fine of Rs.10,000 each or in default of payment thereof to undergo rigorous imprisonment for six months each. All the sentences of imprisonment passed against the appellants were ordered by the learned trial Court to run concurrently. Ghulam Abbas, Muhammad Azim alias Nika, Abdul Wahid and Faiz Ahmad appellants have challenged their convictions and sentences before this Court through Criminal Appeal No.305‑H of 2000 filed through the jail authorities. Ghulam Abbas appellant he also filed Criminal Appeal No. 1870 of 2000, Abdul. Wahid appellant has filed Criminal Appeal No.1880 of 2000 and Muhammad Arshad appellant has filed Criminal Appeal No.1888 of ‑2000 before this Court in this regard through their own learned counsel as well. We have heard all these appeals together alongwith Murder Reference No.20‑T of 2001 and we propose to decide all these matters together through the present consolidated judgment.

2. The prosecution's case unfolded in the F.I.R. was that at about 3‑00 a.m. on.14‑10‑1999 six young men, armed with fire‑arm, had entered the house of Muhammad Ahsan complainant situated in Naseer Colony, Wazirabad for the purpose of committing a dacoity during which a golden finger‑ring and a pair of golden ear‑rings were snatched away from the complainant's wife namely Mst. Tanvir Begum and subsequently upon her raising hue and cry she was fired at in her abdomen by one of the culprits. Apart from the complainant, the said incident was allegedly witnessed by the complainant's son namely Fawad Ahsan and the complainant's servant namely Mumtaz. Soon after the incident the said six culprits decamped from the place of occurrence on a motorcycle alongwith their two co‑culprits standing outside the house of the complainant.

3. Upon receiving a telephonic message regarding the said incident Gohar Abbas, S.I./S.H.O. (P.W.14) reached the place of occurrence, recorded a statement of the complainant (Exh.PA) at 4‑30 a.m. on 14‑10‑1999 and sent the said statement to the police station for registration of an F.I.R. Formal F.I.R. No.463 (Exh.PA/1) was subsequently registered in that regard at Police Station Saddar, Wazirabad; District Gujranwala at 4‑50 a.m. on 14‑10‑1999 for offences under sections 459/395, P.P.C. Gohar Abbas, S.‑I./S.H.O. (P.W.14) then took up the investigation of this case, recorded a supplementary statement of the complainant and statements of witnesses under section 161, Cr.P.C. inspected the place of occurrence, secured blood‑stained earth and prepared a rough site‑plan of the place of occurrence. On 25‑10‑1999 he applied before the relevant doctor for recording the statement of Mst. Tanvir Begum but the doctor did not allow him to do so as the patient was declared by him to be unfit for making a statement. On 27‑10‑1999 he recovered a telephonic message regarding expiry of Mst. Tanvir Begum in the hospital where after he prepared an inquest report and dispatched the dead body to the mortuary for autopsy.

4. While in. an injured condition Mst. Tanvir Begum was medically examined by Dr. Muhammad Yousaf (P. W. 9) on 14‑10‑1999 and after her death post mortem examination of her dead body was conducted by Dr. Qudsia Hassan (P.W.11) on 27‑10‑1999.

5. After post‑mortem examination of the dead body the last‑worn clothes of the deceased were secured by Gohar Abbas, S.I./S.H.O. (P.W.14) on 27‑10‑1999. Subsequently he got a formal site‑plan of the place of occurrence prepared by a draftsman. The investigation of this case was then transferred to Asif Mahmood, S.‑I. (P.W.15) who arrested all the appellants on 25‑11‑1999. He recovered a motorcycle from Muhammad Azam alias Nikka appellant at the time of his arrest. He then arranged for holding of a test identification parade in the Central Jail, Gujranwala on 6‑12‑1999. On 15‑12‑1999 he recovered a mobile phone from Faiz Ahmad appellant, a finger‑ring from Ghalam Abbas appellant, a pair of ear rings from Abdul Wahid appellant, another motorcycle from Muhammad Azim alias Nikka appellant and two golden bangles from Muhammad Arshad appellant. On the same day, i.e. 15‑12‑1999 he got the recovered articles identified by Muhammad Ahsan complainant and his son namely Fawad Ahsan. On 19‑12‑1999 he recovered 30 bore pistols from the custody of Ghulam Abbas, Abdul Wahid, Muhammad Arshad, Muhammad Azim alias Nika and Faiz Ahmad appellants. Thereafter, he completed the investigation of this case and forwarded the matter to the Station. House Officer of Police Station Saddar, Wazirabad for submission of a challan.

6. At the commencement of the trial the learned trial Court framed a charge with four heads under sections 148; 457/149, 396/149 and 302/149, P.P.C. against, the appellants who pleaded not guilty to the same and claimed a trial.

7. During the trial the prosecution produced as many as fifteen witnesses in support of its case against the appellants. Muhammad Ahsan complainant (P.W.1) and Fawad Ahsan (P.W.2) furnished the ocular account of the incident in question and also stated about identifying the appellants during a test identification parade. Malik Mushtaq Ahmed Awan, Magistrate First Class (P.W.8) deposed about the test identification parade supervised by him. Shaukat Ali, F.C. (P.W.10), Muhammad Afzal, F.C. (P.W.12) and Muhammad Ashraf, F.C. (P.W.13) stated about the recoveries effected from the appellants during the investigation of this case. Dr. Muhammad Yousaf (P.W.9) and Dr. Qudsia Hassan (P.W.11) provided the medical evidence. Gohar Abbas, S.‑I./S.H.O. (P. W.14) and Asif Mehmood, S.‑I. (P. W.15) deposed about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

8. In their statements recorded under section 342, Cr.P.C. the appellants denied and controverted all the allegations of act leveled against them by the prosecution and professed their innocence. However, they opted not to make any statement on oath under section 340(2), Cr.P.C. and they also did not produce any witness in their defence.

9. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.

10. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that identity of the appellants as the culprits who had perpetrated the offences in question had remained far from being established beyond reasonable doubt; the test identification parade held in this case was legally laconic; the recoveries allegedly effected from the appellants during the investigation of this case were nothing but sham; and the medical evidence did not provide support to the ocular account. It has, thus, been argued that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned Assistant Advocate‑General appearing for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court do not warrant any interference by this Court.

11. After hearing the learned counsel for the parties and going through the record we have noticed that the occurrence in this case had taken place during the dead of a night and the culprits who had perpetrated the offences in question were not previously known to the complainant and the other eye‑witnesses and this is why the culprits had not been nominated in the F.I.R., Muhammad Ahsan complainant (P.W.1) and Fawad Ahsan (P.W.2) had never claimed previous acquaintance with the present appellants. In that backdrop the prosecution has heavily relied upon a test identification parade wherein the present appellants had statedly been correctly picked up and on identification of the present appellants by the complainant and his son before the learned trial Court. As regards the test identification parade we have noticed that during the deposition of Muhammad Ahsan complainant (P. W.1) had been noticed by the learned trial Court that the original proceedings of the test identification parade were not available on the record of the learned trial Court. The Said test identification parade had been conducted almost two months after the occurrence: The documents available on the record as Exh.PF/1 shows that none of the appellants was picked up or identified by the complainant and is son during the said test identification parade with reference to the role played by him during the occurrence. So much so that the complainant and his son had not even mentioned or specified as to which of the appellants had fired the solitary shot at the deceased during the occurrence. Exh‑PF/1 further shows that one of the appellants had raised an objection before the supervising Magistrate that the appellants had been shown to the witnesses by the police prior to holding of the said parade. This fact about raising of the said objection had been confirmed by Malik Mushtaq Ahmed Awan, Magistrate First Class (P.W.8) before the learned trial Court. Apart from that we have found, and the same is evident from Exh.PF/1 and the statement of Malik Mushtaq Ahmed Awan. Magistrate First Class (P. W.8), that the proceedings of the test identification parade were indeed legally laconic and deficient in legal formalities. Muhammad Ahsan complainant (P.W.1) had categorically statea before the learned trial Court that at the time of identification of the appellants during the said parade two officials from the police department were present with the Magistrate. In view of these factors the test identification parade relied upon by the, prosecution in this case was surely denuded of any sanctity or reliability.

12. Identification of the appellants by the complainant and before the learned trial Court during has also been found by us to undependable. It is not disputed before us that before commencement of their trial the appellants had repeatedly been produced by the police before the Area Magistrate for the purpose of obtaining their remand and they had also been appearing before the learned trial Court for supply of copies of statements under section 265‑C, Cr.P.C. and at the time of framing of the charge against them. Thus, the complainant and his son had ample opportunity to see the appellants in police custody before the complainant and his son had made their statements before the learned trial Court as P.W.1 and P.W.2 respectively. It is of critical importance in this context that even before the learned trial Court the complainant and his son had never pointed towards any particular appellant with reference to the role played by him during the incident in question and so much so that even the appellant who had allegedly fired the solitary shot at the deceased had not been individually identified or specified by them. In this view of the matter identification of the present appellants by the complainant and his son before the learned trial Court after about seven months of the occurrence has also been found by us to be unworthy of satisfactory reliance in a case involving a charge entailing I capital sentence.

13. The recoveries allegedly effected I from the appellants during the investigation of this case have utterly failed to inspire our confidence. The pistol allegedly recovered from the appellants never stood connected with the alleged offences as no crime‑empty had been recovered in this case and, thus, the said pistols were never sent for matching to the Forensic Science Laboratory. It was never alleged in the F.I.R. that the culprits had also taken away bangles or a mobile phone from the place of occurrence and it was also not mentioned in the F.I.R. that the finger‑ring of the deceased taken away by the culprits had her named inscribed thereon. These factors had statedly been introduced by the complainant through a supplementary statement made by him before the Investigating Officer but such supplementary statement of the complainant was never exhibited on the record of this case. The stolen articles allegedly recovered from the appellants in this case were never proved before the learned trial Court to be belonging to the deceased or the complainant party as neither any receipt regarding purchase of the same was produced in evidence before the learned trial Court nor the goldsmith who had prepared the relevant golden ornaments had been produced as a witness. Apart from that it has been found by us to be intriguing that at the stolen articles had statedly been recovered from various appellant, on one and the same day, i.e, 15‑12‑1999 and all the pistols had also been recovered from different appellants on one and the same day, i.e. 19‑12‑1999. Muhammad Ashraf, F.C. (P.W.13) had maintained that all the recoveries had been effected from all the accused persons from the same house but from separate rooms occupied by the respective accused persons. It has, however, been conceded before us that all the appellants lived in different houses situated in different areas. Apart from that the recovery witnesses as well as the Investigating Officers had admitted before the learned trial Court that the houses from where the alleged recoveries had been effected were residential houses wherein other persons also lived and, thus, the recoveries had not been effected from exclusive possession of the appellants. It is also significant to mention here that despite having ample opportunity to associate independent witnesses from the public with the alleged recoveries no such independent witness was made to witness the alleged recoveries effected in this case and all the witnesses of all such recoveries belonged to the police department. Such a blatant viola tion of the provisions of section 103, Cr.P.C. has not been appreciated by us. In these circumstances we have found the alleged recoveries to be not only doubtful but also to be not of any avail to the prosecution.

14. Although we have found that some of the injuries found by Dr. Muhammad Yousaf (P.W.9) on the person of Mst. Tanvir Begum deceased before her death were incompatible with the prosecution's story contained in the F.I.R. besides being inconsistent with the injuries noticed on the said lady's dead body by Dr. Qudsia Hassan (P. W .11) during the post‑mortem examination yet we are mindful of the fact that in a case where identity of the culprits is otherwise doubtful there medical evidence is of no avail as it cannot by itself establish identity of the culprits. Thus nothing turns on the medical evidence in this) case.

15. For what has been discussed above we have felt no hesitation in concluding that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and the benefit of such doubt must be extended to the appellants. All these appeals are, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. They shall be released from the jail forthwith if not required in any other case.

16. Murder Reference No.29‑T of 2001 is hereby answered in the negative. Death sentences are not confirmed. S.M.A.H./G‑206/L Appeal accepted.