2009 SCMR 436 (PLP)

CH. EJAZ YOUSAF, J.

These appeals by way of leave are directed against the judgment, dated 27-6-2002 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No.393-J of 2001 filed by the appellants/accused persons was dismissed and Murder Reference No.58-T of 2001 was answered in the affirmative.

2. Briefly, stated, facts of the case are that on 24-10-2000 complaint Exh.P.B. was lodged by one Javed Ahmed with Zulfiqar Ali; A.S.-I. of Police Station Nishatabad, District Faisalabad, wherein it was alleged that in the night between 23 and 24-10-2000, electricity supply line developed some fault whereupon the complainant along with Sagheer Ahmed, Driver and Muhammad Khalid, proceeded to Hajiabad Sub-Division in vehicle No.FDW-6471, to bring WAPDA employees. On their way back, at about 2-00 a.m., near Dhanola, they were intercepted by seven unknown dacoits who were equipped with fire-arms, hatchets and Sotas. As the driver stopped the vehicle and tried to turn the same back, one of the culprits fired from driver's side hitting Sagheer Ahmed in his head. ,The bullet after injuring said Sagheer Ahmed also landed on the neck of the complainant, who at the relevant time was sitting by the side of the driver. Resultantly, the vehicle went out of control and moved into the fields. All the accused persons then reached there and on gun point snatched away an amount of Rs.300 from the complainant and cash as well as documents from Irshad Hussain, Muhammad Shafique, Abdul Ghaffar and Mushtaq Ali and fled away. Sagheer Ahmed was immediately taken to Allied Hospital, Faisalabad, where he succumbed to the injuries. On the stated allegations formal F.I.R. bearing No.659 was registered under sections 302/396/324/249/148/149 and 412, P.P.C. at Police Station Nishatabad, Faisalabad and. investigation was carried out in pursuance thereof. On the completion of the investigation accused persons were challaned to the Court for trial.

3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused persons produced 12 witnesses in all, whereafter statements of the accused persons were recorded under section 342, Cr.P.C. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of section 340(2), Cr.P.C. On conclusion of the trial the learned trial Court convicted the accused persons and sentenced them to the punishments as under:-- Muhammad Afzal alias Abdullah alias Acchu son of Muhammad Sharif Under section 148, P.P.C. 3 years' R.I. Under section 396, P.P.C. Death and to pay fine of Rs.1,00,000 or in default to undergo R.I. for 10 years. Under section 395, P.P.C. Life imprisonment Under sections 324/149, P.P.C. 10 years' R.I. and to pay fine of Rs.50,000 or in default to further undergo R.I. for 2-1/2 years Under section 412, P.P.C. 7 years' R.I. and to pay fine of Rs.20,000 or in default to further undergo R.I. for 1-3/4 years. Under section 7, A.T.A., 1997 Death and to pay fine of Rs.1,00,000 or in default to undergo R.I. for 10 years. Muhammad Afzal son of Muhammad Aslam, Suhail Abbas, Muhammad Nadeem, Muhammad Maajid, Muhammad Fayyaz, Muhammad Abrar Under section 148, P.P.C. 3 years' R.I. each. Under sections 302(b)/149, P.P.C. L.I. each and to pay compensation of Rs.50,000 to the legal heirs of the deceased each. Under section 396, P.P.C. L.I. each and to pay fine of Rs.50,000 or in default to further undergo R.I. for 7 years each. Under section 395, P.P.C. Life Imprisonment each. Under sections 324/149, P.P.C. 10 years' R.I. each and to pay fine of Rs.50,000 or in default to further undergo R.I. for 2-1/2 years, each. Under section 412, P.P.C. 7 years' R.I. each (except Muhammad Nadeem) and to pay fine of Rs.20,000 or in default to further undergo R.I. for 1-3/4 years, each (except Muhammad Nadeem) Under section 7, A.T.A., 1997 L.I. each and to pay fine of Rs.50,000 or in default to further undergo R.I. for 7 years, each.

4. All the accused persons challenged their convictions and sentences by way of Criminal Appeal No.393/J of 2001 which was accepted to the extent of accused persons, namely, Muhammad Nadeem, Muhammad Maajid, Muhammad Fayyaz and Muhammad Ibrar, and they were acquitted of the charges. Convictions and sentences recorded against the appellants under section 7 of the Anti-Terrorism Act, 1997, and under sections 302/149, 395, P.P.C., were also set aside. Convictions recorded against Muhammad Afzal alias Abdullah son of Muhammad Sharif, Muhammad Afzal son of Muhammad Aslam and Sohail Abbas son of Shafaat Ali, under sections 396/324/148/149 and 412, P.P.C. were maintained, however, the sentences of life imprisonment inflicted on Muhammad Afzal son of Muhammad Aslam and Sohail Abbas son of Shafaat Ali, under section 396, P.P.C. were reduced to ten years' R.I. with fine of Rs.50,000 or in default to further undergo R.I. for 2 years. Convictions and sentences inflicted on all the three above named accused persons under section 412, P.P.C. were reduced from 7 years' R.I. each to that of 3 years' R.I. each along with a fine of Rs.20,000 each or in default thereof to further undergo R.I. for one year each. Convictions and sentences recorded against all the afore named three accused persons under sections 324/149, P.P.C. were also maintained however, in case of default, in payment of fine, period of imprisonment was reduced from 2-1/2 years to that of 2 years. Sentence of death inflicted on Muhammad Afzal alias Abdullah son of Muhammad Sharif under section 396, P.P.C. was also maintained.

5. It has been contended by the learned counsel for the appellants/accused that since the occurrence took place at night and neither description by appearance of any of the accused persons was given in the F.I.R. nor specific roles were attributed to each of them, therefore, identification of the appellants, at the test was of no help to the prosecution; that as per evidence on record accused persons prior to the identification parade were shown to the P. Ws. therefore, their identification subsequently, at the test was of no legal significance; that occurrence took place at night whereas the identification test was conducted in day time; that since P.W.7 Mr. Muhammad Kazim Awan, Magistrate, who had supervised the identification test, himself, at the trial, had admitted that the accused persons, prior to identification test had complained to him that they as well as their photographs were shown to the identifying witnesses, therefore, identification of the appellants at the test was of no value; that the very fact that the accused persons were initially produced before the Magistrate on 3-11-2000 but the identification test was postponed to 6-11-2000, militates against bona fides of the prosecution; that the evidence of recoveries in the absence of any direct evidence was of no use for the prosecution. The learned counsel maintained that in the circumstances of the case, since identification of any of the culprits was not possible, therefore, the appellants were wrongly convicted for the offence.

6. Mian Asif Mumtaz, learned Deputy Prosecutor-General, Punjab, while controverting the contentions raised by the learned counsel for the appellants has submitted that since charge against the appellants was fully brought home through independent and reliable evidence and ocular evidence was corroborated by the evidence of identification, recoveries and the medical evidence, therefore, the appellants were rightly convicted for the offence.

7. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case, minutely with their assistance.

8. In the instant case the prosecution evidence comprises of the ocular evidence account whereof, at the trial, was furnished by P.W.2 Javed Ahmed, P.W.4 Irshad Hussain and P.W.5 Syed Muhammad Shafique, the evidence of recoveries i.e. .222 bore gun from the possession of appellant Muhammad Afzal son of Muhammad Sharif, along with other articles, i.e. wrist watch P.4, driving license P.5, and a .12 bore gun from the possession of Muhammad Afzal son of Muhammad Aslam, the medical evidence, Chemical Examiner's Report, the Report of Serologist and the Forensic Science Laboratory Report.

9. Admittedly, the occurrence took place in the dark hours of the night. It has not been disclosed as to how the witnesses were able to identify the culprits. It can, at the most, be presumed that they were seen in the headlights of the vehicle, however, in that case the culprits could not have been seen by the P.Ws. more than once and that too, for a while. Though it is alleged that the deceased as well as the complainant were fired at by one of the culprits yet, it has not been pointed out as to who was he? Nor his description by appearance was given in the F.I.R. Absence of such details in the report/F.I.R. militates against bona fides of the prosecution and greatly mars evidentiary value of the test identification parade. It is well-settled that when description by appearance of the accused is not given in the report/F.I.R. and specific role is not attributed to him, his identification in Court for the first time, in the absence of strong corroboratory evidence, is not safe to be relied upon because by the passage of time memory fades and possibility that an accused might not have been mistakenly picked out is augmented. In the case of Ghulam Rasul and others v. The State 1988 SCMR 557, role of accused at the time of commission of the offence was not described by the witnesses, it has held that evidence of witnesses identifying accused in such identification parade had lost its efficacy and therefore could not have been relied upon. In a number of cases it has been laid down by this Court that identification test in the absence of description of the accused in the F.I.R. is of no value. Reference in this regard may usefully be made to the cases report as (i) Ghulam Qadir v. The State 2008 SCMR 1221, (ii) State/Government of Sindh v. Sobharo 1993 SCMR 585 and (iii) Ismail and another v. The State 1974 SCMR

175. In the case of Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088, it was held that identification of a person in Court produced as an accused months after the occurrence cannot satisfy the requirements of law for proving the identity of the culprit. It is also explicit on record that prior to holding of the identification test accused persons had complained to P.W.7, the Magistrate, who had supervised the identification test that they were shown to the identifying witnesses and the Magistrate in the course of his statement, at the trial, has in unequivocal terms admitted that he had received such complaint. Another fact which impairs evidentiary value to the identification test is that accused persons were produced before P.W.7 initially on 3-11-2000 but the test was put off and was conducted on 7-11-2000 as a result of freshly made application dated 6-11-2000 and no reason whatsoever for the delay was shown. In the circumstances the possibility that the test was delayed purposely in order to show the accused persons to the identifying witnesses, could not have been ruled out. The evidence of identification, in the circumstances, was of no help to the prosecution.

11. Another fact which cannot be lost sight of is that though it is claimed by all the P.Ws. that a single shot fired by one of the culprits killed the deceased besides injuring the complainant yet, the medical evidence belies the prosecution version. Dr. Muhammad Ishaque, who had conducted post-mortem examination on the dead body of deceased Saghir Ahmad, while appearing as P.W.8 and opinion that cause of death in the instant case was injuries Nos.1 and 3 individually as well as collectively has categorically pointed out that the dead body had the following "three entrance" wounds:

(1) A lacerated fire-arm entry wound measuring 2.5 c.m. x 1 c.m. on the right side of face at the outer angle of right eye with a fire-arm exit 0.25 c.m. x 0.25 c.m. roughly circular in shape in the left temporal region. It was about 2.5 c.m. in front of left ear. (2) A fire-arm lacerated entry wound 1-00 c.m. on the right ear lobule with exit on the inner aspect of the lobule with a fire-arm re-entry 0.25 c.m. x 0.25 c.m., just at the angle of the mandible, on the right with no exit. (3) A lacerated fire-arm entry wound 4.00 x 3.00 c.m. on the right side of head with brain matter visible through the wound with no exit. The entry wound was situated 3.00 c.m. below and behind the middle third of pinna of right ear. Thus, the medical evidence being in direct conflict with the ocular evidence, in our. view it was also not safe to rely on the statements of the eye-witnesses, in the circumstances of the instant case.

12. After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be.

13. For the facts and reasons mentioned above, we are satisfied that the occurrence in the' instant case has not taken place in the manner as suggested by the prosecution. Prosecution has miserably failed to produce confirmatory evidence in this regard. In this case there is a room for doubt, benefit whereof must go to the appellants. Resultantly, Criminal Appeals Nos.30, 32 and 33 of 2004 are allowed. The conviction and sentences of appellants namely, Muhammad Afzal alias Abdullah alias Acchu son of Muhammad Sharif, Muhammad Afzal son of Muhammad Aslam and Sohail Abbass son of Shafaat Ali are set aside. They shall be released forthwith, if not required in any other case. Consequently, Criminal Appeal No.31 of 2004 is dismissed. These are the reasons for our short order of even date announced in open Court. M.H./M-2/SC Appeals allowed.