2005 PLP 1262 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.2178 of 2002 filed by Muhammad Asif son of Muhammad Azam, who was convicted and sentenced by learned Judge, Anti-Terrorism Court No.III, Lahore vide judgment dated 24-12-2002 as under:-- Death and to pay a fine of Rs. One lac and in default thereof two years R.I. under section 7 of Anti-Terrorism Act, 1997 read with section 302(b)/34, P.P.C. 10 years R.I. and to pay a fine of Rs. One lac, in default thereof to undergo further R.I. for two years and To pay compensation of Rs.2,00,000, in default six months S.I. under section 544-A, Cr.P.C. Murder Reference No.1/T of 2003 for confirmation of death sentence or otherwise shall also be replied through this single judgment.

2. The occurrence in this case had taken place at 5-00 p.m. on 5-1-1999 within the jurisdiction of Police Station, Islampura, Lahore and the matter was reported to the police through Faisal Ali Abbassi at 8-55 p.m. through written complaint Exh.P.W.7/1 at Mayo Hospital and the formal F.I.R. Exh.P.W.15/1 was recorded by Sultan Ahmad, A.S.-I.

3. Briefly stated the facts of the case are that on 5-1-1999 at about 5-00 p.m., Shoaib Abbassi, brother of Faisal Ali, complainant, went on a motor cycle to Main Bazaar, Islampura to purchase some articles for Aftari. The house of the complainant is at a distance of 100 yards from Kuku Bakery. In the, meanwhile, noise was heard in the Kuku Bakery and three unknown persons while armed with fire-arms, the complexion of whom is given in the complaint, snatched on gun point Rs.8,000 from the owner of Kuku Bakery and ran towards Saadi Road. Shoaib Abbasi, brother of the complainant was going on a motor cycle on Saadi Road to purchase curd and he entangled with the accused. The accused tried to snatch motor cycle and both the accused and the brother of the complainant grappled with each other. In the meanwhile, the complainant along with his friend Iftikhar Ahmad reached at the place of occurrence while chasing the dacoits. Within the view of complainant and Iftikhar, the accused fired shots with their respective fire-arms. The shot fired by the accused having tall height landed on the abdomen of Shoaib Abbasi. He was removed to the hospital but he succumbed to injuries in the hospital. Two co accused namely Zameer-ul-Hassan alias Bobi and Muhammad Asif son of Rehmat Ullah of the present appellant were tried and vide judgment dated 15-6-2000 passed by trial Court, both were convicted under section 302(b), P.P.C. and sentenced to death. The appellant was declared proclaimed offender and proceedings under section 512, Cr.P.C. were initiated against him. The appellant was taken into custody from Sialkot jail where he was confined in another case. Despite the appellant exhausted the physical remand, but nothing was recovered from him. At the trial of present appellant, the prosecution in order to prove its case produced 15 witnesses in all. Statement of the accused was recorded under section 342, Cr.P.C. in which he pleaded false implication. The accused in his defence also produced Muhammad Aslam as D.W.1. After conclusion of the trial, the accused was convicted and sentenced as stated above. Learned counsel for the appellant submits that the appellant was confined in Sialkot jail in another case and from there, he was transferred to Lahore on 8-7-2001. Further submits that no identification parade of the appellant was held as required under the law and only on the basis of identification of the appellant in the Court, the conviction has been recorded by the trial Court against the appellant. Further submits that nothing incriminating was recovered from the appellant. Adds that case of the present appellant is totally different to that of his co-accused Zameer-ul-Haq and Muhammad Asif who were awarded death sentence by the trial Court and their death sentence was confirmed by this Court because they were identified by the P.Ws. in the identification parade held in the jail. Lastly submits that there is no other evidence against the appellant except his identification by the P.Ws. before the Court. Learned A.A-G. vehemently submits that identification of the appellant before the trial Court is sufficient to maintain conviction against the appellant. When asked to produce any judgment on this point, he had no answer. However, he admits that there is no other evidence against the appellant except the bald statement of the eye-witnesses who had only identified the appellant before the trial Court. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 5-00 p.m. on 5-1-1999 while the matter was reported to the police at 9-25 p.m. on the same night by Faisal Ali, real brother of Shoaib deceased. The prosecution produced Malik Ijaz Mahmood owner of the Kuku Bakery as P.W.1, Muhammad Sharif as P.W.2 and Faisal Abbass, complainant as P.W.4. We have gone through the statements of these P.Ws. Though they had identified the appellant before the trial Court but no identification parade, as required under the law, was held in the jail under the supervision of a Magistrate. The appellant was arrested in this case on deposed to the effect that exchange of firing took place in between the culprits of the incident of this case on the one hand, and the police officials on the other, whereafter police officials caught hold of one of the culprits, they put him in the mobile vehicle and told me that he is my accused. Out of four persons 3 were in helmet and one was opened faced . He further specifically deposed, I cannot identify the accused persons present in Court because when the incident took place they had muffled their faces with helmet. Under such circumstances, the applicant is hereby admitted to bail provided that he shall furnish two sureties each in the sum of Rs.1,00,000 (Rupees one lac) and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./J-19/K Bail allowed.