2006 P Cr (PLP)

AHMED KHAN LASHARI, J.

The learned Judge, Anti-Terrorism Court, Khuzdar, vide judgment, dated 31-10-2003, passed in A.T.A. Case No.19 of 2003, convicted accused Abdul Majeed and absconding accused Muhammad Mussa under section 302(b), P.P.C. read with section 7(a) of Anti-Terrorism Act, 1997 and sentenced them to death with fine of Rs.1,00,000 each in default whereof to further suffer five years' SI, under section 395, P.P.C. to suffer ten years' R.I., with fine of 45,000 each in default whereof to further suffer six months'. S.I. and has sent Murder Reference No.12 of 2003 provided under section 374, Cr.P.C. for confirmation of the sentence or otherwise. The accused facing trial has filed A.T.A. Criminal Appeal No.62 of 2003 seeking his acquittal in the case. Since Murder Reference and criminal appeal are outcome of one and the same judgment therefore, we propose to dispose of these matters with this common judgment.

2. The stated facts of the prosecution case are that P.W. complainant Attaullah in his written report dated 14-2-2003 registered at Levies Thana Khuzdar vide F.I.R. No.2 of 2003, under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 stated that on the said date he along with his friends Habibullah, Sikandar and Rashid Ahmed (since deceased) had gone to Sasol for picnic, at about 2-00 p.m., when they were returning to their homes, a long height man came there and after drinking water went away, soon after, the said person having kalashnikov along with his companion, who was fatty with short height equipped with pistol apprehended them and demanded keys of the motorcycles, on their refusal the long height man made firing with kalashnikov. as a result of which a bullet hit on the belly of Rashid Ahmed, who fell down and died at the spot. The accused after taking the fuel of CD Motorcycle Model No.92 cut down its wires and drove away CD Motorcycle Model No.98 black in colour. The dead body was shifted to District Headquarter Hospital, Khuzdar, at about 6-00 a.in. Tehsildar Khuzdar on receiving information of the incident reached at hospital and he produced the report Exh.P.1/A, on the basis of which F.I.R. Exh.P.10/A was registered. Tehsildar proceeded to the place of incident and prepared site sketch Exh.P.10/E, secured blood-stained stones, one empty and one live bullet of kalashnikov were collected. The statements of witnesses were recorded. The S.H.O. Police Station Saddar Khuzdar recovered the motorcycle and handed over it to Tehsildar vide memo. Exh.P.6/A. The appellant as a result of raid conducted at his house was arrested from Gunni Sasol on 8-4-2003, one kalashnikov Butt No.49584, Body No.19149485 with magazine containing 10 live bullets were recovered from his possession and seized vide memo. Exh.P.5/A. The appellant did not produce licence of the weapon as such case under Arms Ordinance was registered against him, during investigation the appellant vide disclosure memo. Exh.P.8/D admitted that he along with absconding accused Muhammad Mussa while snatching the motorcycle, committed murder of Rashid Ahmed. On 9-4-2003 the eye-witnesses Habibullah, Attaullah and Sikandar identified the appellant in identification parade held under the supervision of Naib Tehsildar Baghbana and memos. Exh.P.8/A to Exh.P.8/C were prepared. On 9-5-2003 the Investigating Officer sent the kalashnikov and the collected empty to Assistant Inspector-General Police Criminalistic Cell, Sindh for analysation. He filed incomplete challan Exh.P.10/F and Exh. P.10/J including Expert's report Exh. P.10/G in the Court against the appellant and absconding accused.

3. The charge, framed under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 302/34, P.P.C., was read over to the accused facing trial which was denied and it was presumed that the absconding accused also pleaded not guilty and claimed trial. The prosecution to prove the accusation produced P. W.1 complainant Attaullah P.W.2 Sikandar-e-Azam, P.W.3 Habibullah as eye-witnesses of the incident, P.W.4 Dr. Muhammad Asif, he examined the dead body, P.W.5, Munir Ahmed in his presence a kalashnikov was recovered from the possession of appellant, P.W.6 Abdul Nabi is witness to the recovery of motorcycle, P.W.7 Zubair Ahmed in his presence one empty and one live bullet of kalashnikov rifle were collected from the place of incident. P. W.8 Abdul Khalique in his presence the eye-witnesses identified the appellant in identification parade; P. W.9 Haq Nawaz Naib Tehsildar, Baghbana supervised the identification parade. P.W.10 Muhammad Hanif Shahwani, Tehsildar, is the Investigating Officer. The appellant in his statement under section 342, Cr.P.C., denied the prosecution allegation and claimed to be innocent, however, he did not opt to record his statement on oath or produce any witness in defence. The learned trial Court after close of parties' evidence vide judgment impugned herein convicted and sentenced the appellant and co-accused as mentioned hereinabove, hence this appeal and Murder Reference.

4. Mr. Farooq Anwar, Advocate, who was appointed to assist the Court on behalf of absconding accused, argued that there is no iota of evidence against accused Muhammad Mussa implicating him in the commission of offence. The learned trial Court without referring the incriminating evidence if any in a fanciful manner sentenced the accused to death.

5. Mr. Naseer Ahmed Bangulzai, Advocate, learned counsel for the appellant contended that the identification parade was not conducted in presence of First Class Magistrate and was held under the supervision of Naib Tehsildar Baghbana, who participated in the raid conducted at the house of appellant: The identification parade in the given circumstances loses the evidentiary value to nil. He next argued that the appellant, P.W. Attaullah and deceased belong to one tribe and are known to each other besides that there are material contradictions and improvements in the statements of interested prosecution witnesses and the learned trial Court by ignoring all these aspects of the case on misappreciation and wrong conclusion of evidence convicted and sentenced the appellant. It was lastly argued that the F.I.R. was lodged with a delay of six hours without any plausible explanation .and appellant was not nominated therein, thus, he be acquitted of the charge. The counsel in support of his arguments relied on the judgments reported in 2002 PCr.LJ 518; 1996 PCr.LJ 503; 1995 SCMR 127; PLD 2004 Kar. 319; 1996 PCr.LJ 662; PLD 1996 Kar. 246.

6. Mr. Khalid Dogar, learned Public Prosecutor conceded to the arguments of Mr. Farooq Anwar, Advocate to the extent of conviction and sentence of absconding accused. However, he contended that the prosecution has successfully proved the case against the appellant beyond and reasonable doubt. P.Ws. 1, 2 and 3 who are eye-witnesses of the incident have identified the appellant. The account furnished by the witnesses corroborates each other on material points and in cross-examination no contradiction or improvement cropped up damaging the case of prosecution.

7. We have heard learned counsel for the parties and have gone through the record as well as impugned judgment and cited case-laws. The case of prosecution is that on 14-2-2003 at about 2-00 p.m. when the deceased along with, complainant Attaullah, Sikandar and Habibullah after enjoying picnic trip were coming back to their homes, the appellant armed with kalashnikov rifle and absconding accused Muhammad Mussa equipped with pistol, apprehended them and demanded the keys of CD motorcycles, on their refusal the appellant shot dead Rashid Ahmed and drove away one of the motorcycles. P.W.1 Attaullah stated that on 14-2-2003 he along with Habibullah, Rashid Ahmed and Sikandar went to Sasol for picnic, at about 1-00 p.m., when they were collecting luggage and preparing for departure a person came there and after drinking water went back, at a distance of about half kilometer the said person having a kalashnikov rifle along with an other accused equipped with pistol apprehended them and demanded the keys of motorcycle from Rashid, on his refusal the man ha,-:ng kalashnikov rifle made firing, a bullet hit on the belly of deceased resulting into his death at the spot, the dead body was brought to Khuzdar, he submitted written report Exh.P.1/A to Tehsildar, and identified the appellant present in the Court at identification parade held on 9-4-2003. P.W.2 Sikandar-e-Azam stated that on 14-2-2003, lie, Habibullah, deceased Rashid and Attaullah after purchasing fruit etc. from Bazar, at about 12-00 or 1-00 p.m. reached at Sasol for a picnic. They after eating fruit came to a place known as Nishania and were making tea, a person from eastern side mountain came there and after drinking water from the stream went back, when they started to their homes all of sudden two persons, one of them having kalashnikov rifle-while the other was also armed and muffled appeared and made them hands-up, the accused demanded keys of the motorcycles, when he succeeded to remove the veil of the muffled accused he smashed him, Rashid put the keys of motorcycle in the dub of his Shalwar, the accused present in the Court made firing with kalashnikov rifle due to which Rashid sustained a bullet injury and died at the spot, the accused after taking the petrol, cut down the wires of one motorcycle and drove away the other. Attaullah went to Sasol and fetched the men of Sardar, who helped them in shifting the dead body to Khuzdar. He identified the accused at identification parade held on 9-4-2003. P.W. Attaullah reported the matter. P.W.3 Habibullah deposed that on 14-2-2003 he along with Attaullah deceased Rashid and Sikandar on two motorcycles after buying fruit from Khuzdar Bazar, about 12-00 or 1-00 p.m., reached at Sasol, when they were enjoying the picnic trip a person came from mountain and after drinking water went back, they started collecting their luggage and left for their homes, all of sudden two persons one armed with kalashnikov rifle while the other was muffled and equipped with pistol emerged behind a big stone. The man with kalashnikov rifle asked them to make their search, as soon Sikandar removed the veil of muffled accused Rashid put the keys of motorcycle in the dub of his Shalwar, the accused, present in the Court, fired upon Rashid with kalashnikov rifle. The accused after disconnecting the wires of one motorcycle and filling the fuel in the other escaped from the scene. Attaullah informed the men of Sardar about the incident who came and helped them in shifting the dead body to hospital, he identified the accused thricely at identification parade held on 9-4-2003. P.W. Dr. Muhammad Asif Medical Officer R.H.C. Nal District Khuzdar stated that on 14-2-2003 at about 6-30 p.m., on examination of dead body of Rashid Ahmed, he noted the following injuries vide certificate Exh. P.4/A:

(1) A wound of entrance of bullets is about 1" on posterior side of the right lumber region. It is circular in shape. (2) A wound of exit of bullet is about 2" on left iliac fossa interiorly. It is oval in shape. Nature of injuries????????????????????????????????? Grievous/dangerous. Type of weapon used?????????????????????????? Fire-arm/rifle. Cause of death???????????????????????? Cause of death is most probably internal bleeding. P.W.5 Munir Ahmed deposed that on 8-4-2003 he along with Tehsildar and other levies personnel conducted raid at the house of appellant at Sasol and after exchange of fires his arrest was made, upon search a kalashnikov, ten live bullets and 20 used empties were recovered from his possession vide memo. Exh.P.5/A. P.W.6 Abdul Nabi deposed that on 15-2-2003 at about 10/11 a.m., Tehsildar Khuzdar in his presence seized a black colour motorcycle Model 1998, two keys, one Chaddar from S.H.O. Police Station Khuzdar vide memo. Exh.P.6/A. P.W.7 Zubair Ahmed deposed that on 14-2-2003 in his presence Tehsildar collected blood-stained stones, one empty and one live bullet of kalashnikov rifle vide memo. Exh.P.7/A from the place of incident at Sasol. P.W.8 Abdul Khaliq stated that on 9-4-2003 he along with Sardar Khair Muhammad had come to 'I'ehsil Office Khuzdar in connection with their personal work, Tehsildar asked them to witness the identification parade. P.W. Sikandar from three counts identified the appellant amongst ten dummies in line Naib Tehsildar Haq Nawaz was also present there. P. Ws. Habibullah and Attaullah accordingly identified the accused at identification parade for three terms, the Investigating Officer prepared memos. Exh. P.8/A, Exh. P.8/13 and Exh. P.8/C mitt he stood Mashir to it. The accused made admission of the guilt before the Investigating Officer vide memo. Exh.P.8/D and on his pointation place of incident was inspected and sketch Exh.P.8/E was prepared. P.W.9 Haq Nawaz Naib Tehsildar stated that on 9-4-2003 under his supervision as a Magistrate identification parade of the accused was held, P.Ws. Sikandar, Habibullah and Attaullah individually identified the accused for three counts, the memos. Exh.P.8/A, Exh.P.8/B and Exh.P.8/C were signed by him. P. W.10 Tehsildar, Muhammad Hanif Shawani during investigation collected the evidence, the appellant refuted the allegation and the incriminating evidence produced by prosecution and claimed to be innocent.

8. The case of prosecution rests on the ocular account furnished by P.W. Attaullah, P.W.2 Sikandar `Azam and P.W.3 Habibullah, who at the time of incident were accompanying the deceased. The positive report of Fire-Arms Expert in respect of kalashnikov recovered from the A possession of appellant and the empty collected from the place of incident, the identification of appellant by the witnesses at identification parade. P.W.??????????? Attaullah, P.W.2 Siakandar-e-Azam and P.W.3 Habibullah in their ocular account stated that on the day of incident they after picnic were preparing to return to their houses, the appellant came there and after taking water from the stream went back towards mountain, after a short while the appellant having a kalashnikov and co-accused with a pistol apprehended them and demanded keys of the motorcycles, on refusal of deceased Rashid the appellant made firing upon hint and a bullet hit at his belly resulting into his sudden death, they identified the appellant at identification parade separately conducted under the supervision of P.W.9 Haq Nawaz. P. W.1 and P.W.2 in cross-examination denied that they had committed murder of Rashid to deprive him from his motorcycle or P.W. I had lodged a false report against the appellant. In cross-examination the witnesses stated that the appellant was identified amongst ten dummies in line, who were not known to them. P.W.3 in cross-examination denied the suggestion that he did not identify the appellant, however, he in his police statement deposed that the absconding accused, who was muffled remained unidentified. It may be noted that the appellant cut down the wires of one motorcycle and after taking the fuel drove away the other. It was broad day incident and there was sufficient time for the witnesses to identify the appellant. The record indicates that the identification parade was conducted under the supervision of P.W.9 Haq Nawaz, Naib Tehsildar with the powers of Magistrate Third Class. The value of identification depends on two most important facts i.e. first that the persons who identify the accused have had no opportunity of seeing him after the commission of crime and secondly that no mistakes have been made by these witnesses or the mistake made by them are negligible. P.W.10 just after arrest of the appellant took him to police station and then after the witnesses were summoned and seated in a separate room who identified the appellant amongst ten dummies in line for three counts one by one. P.W.9 Haq Nawaz, Naib Tehsildar Baghbana stated that he conducted identification parade and the witnesses in his presence and in presence of P.W.8 identified the appellant for three counts individually out of ten dummies in line and he signed the memo. The witnesses were subjected to lengthy cross-examination but no contradiction was brought on record damaging the evidentiary value of identification parade. The learned counsel contended that the identification parade supervised by P.W.9 Naib Tchsildar Haq Nawaz loses its evidentiary value for two reasons; (i) the witness was enjoying the powers of 3rd Class Magistrate and was not competent to supervise the identification parade; (ii) he participated in raid proceedings conducted at the house of appellant. There is no hard and fast rule that the identification parade must be supervised by a Magistrate with the powers of 1st Class. The High Court Rules and Orders Vol. III, Chapter II(c) provide instructions for the guidance of Magistrates in their conduct of identification parades including the certificates which the Magistrate should append with the statement containing his signature, seal and also to be disclosed his class. There is no prohibition in the rules, that a Magistrate of particular Class can only supervise the identification parade even two notables of the area can inspect the identification tests. Rule 26,32 of Police Rules, 1934 Vol. III lays down the procedure confronting of arrested suspects with the witnesses, who claim to be able to identify the accused, sub-Rule (I)(a) to the Rule provides that the proceedings shall be conducted in presence of a Magistrate or gazetted Police Officer or, if the case is of great urgency and no such officer is available two or more respectable witnesses in the case should be asked to satisfy themselves that the identification has been conducted under conditions precluding collusion. There is nothing on record to show that the witnesses had any enmity with the appellant or any ill-will was suggested to them in cross-examination for false implication of the appellant in the case. It was day time incident, the accused after taking the petrol cut down the wires of the motorcycle disabling them to chase, as such, we are of the view that the witnesses correctly identified the appellant to be the accused and they had no reason to implicate him falsely. The evidence furnished by the witnesses is straightforward, natural and reliable, their testimony in cross-examination remained unshaken and no material contradiction or improvement cropped up damaging the case of prosecution, thus, the contention of appellant's counsel is repelled and we may not agree will the findings arrived at on the point in the case of Shafique Ahmed and others v. The State reported in 2002 PCr.LJ

518. We may have 'Mt honour to refer the case of Muhammad Bashir Alain v. The State reported in PLD 1958 (Pak.) 1 wherein it has been held that the two cardinal principles laid down for identification of the accused in line-up held by police are to be kept in mind while deciding the cases of such nature; (i) that the evidence of identification test arranged by the police, though admissible, is not of much value where the Investigating Officer gives no explanation of the omission to recall a Magistrate w supervise the test; and (ii) that in cases of this type the real evidence that implicates an accused person is the statement of the identifying witnesses in Court that they had seen a particular person committing an offence. It would be more appropriate to reproduce the findings on the point discussed in the case of Ibrahim Bhak v. The Crown reported in PLD 1955 FC 113 wherein it has been held:

"Identification tests held by the police amount to a desire to test the power of observation of the witness, who has given details of the crime and of the persons engaged in committing it, and when subsequently evidence of the result of such test is given, the object is not to prove or use a statement made to the police in the course of the investigation but to show that the person who was previously unknown to the witness was rightly pointed out by the witness at a test, and such evidence may be rightly given under section 9 of the Evidence Act in proof of the identity of the accused, without contravening the Provisions of section 162 of the Code of Criminal Procedure." The law requires before acting upon the evidence of the identification parade the Courts must look for some independent evidence, direct or circumstantial, to eliminate the chance of false implication. It may be noted that P. W 10 Muhammad Hanif on receiving spy information conducted raid at the house of appellant and after exchange of firing apprehended him, during search a kalashnikov was recovered from his possession and seized, the crime-empty collected from the place of incident and the recovered kalashnikov were sent to the Expert for examination which report is positive and corroborates the ocular account as well as identification of the appellant in Court and during parade. The learned counsel contended that the report was lodged with a delay of six hours and the eye-witnesses were interested as such considering these aspects of the case the appellant be acquitted of the charge. It has come on record that the appellant after committing the offence caused damage to the motorcycle and the dead body was brought to hospital at about 6-00 p.m. from a distance of about ten miles with the help of tribes-men of the area. The lodging of the F.I.R. with delay which otherwise has been explainsed is neither fatal nor adversely affect the case of prosecution, thus, the chance of adulteration of the true account or concocting a false story against the appellant is ruled out. The interested witness is one who has a motive to involve an accused falsely in the case, friendship with the deceased is not sufficient to discredit a witness particularly when there is no motive to falsely implicate the accused and the evidence is worthy of reliance and satisfies the judicial conscience of Judge. For what has been discussed hereinabove, we are of the E considered opinion that there is no incriminating evidence available on record to connect the absconding accused Muhammad Mussa with the commission of offence except the admission of appellant before the Investigating Officer vide memo. Exh.P.8/D which of course is inadmissible and cannot find basis of the conviction of accused. However, the case against the appellant has been proved beyond any shadow of doubt, the conviction and sentence awarded to the appellant by learned trial Court is maintained and murder reference is replied in affirmative while the conviction and sentence awarded to absconding accused Muhammad Mussa is hereby set aside. The appeal filed by appellant being devoid of any merit is dismissed. H.B.T /9/Q?????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.