2009 P Cr (PLP)

ABDUR RAHMAN FARUQ PIRZADA, J.

This criminal appeal is directed against the impugned judgment passed by learned Judge, Anti-Terrorism Court-II, Sukkur and Larkana Division at Sukkur in Special Case No.3 of 2006 and Special Case No.4 of 2006 titled State v. Muhammad Ramzan vide Crime No.5 of 2006 and Crime No.6 of 2006 of Police Station Lakha Road, District Naushero Feroze for offences under sections 302,324, 353, 34, P.P.C. read with section 13(e) of Arms Ordinance and section 7, Anti-Terrorism Act, 1997, whereby the appellant/accused was convicted for an offence punishable under section 302(b) read with section 34, P.P.C., and sentenced to suffer imprisonment for life and to pay Rs.1,00,000 as compensation under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased and in case of default in payment of compensation he shall suffer further S.I. for six months more, along with convictions awarded against each charge separately. All the sentences awarded to appellant/accused were to run concurrently. Appellant was extended the benefit of section 382-B, Cr.P.C.

2. Brief facts leading to this appeal emanate from the F.I.R. registered by complainant H.C. Ghulam Asghar at Police Station Lakha Road, District Naushero Feroze on 25-1-2006 at 0315 hours for offence under sections 302, 353, 324, 34, P.P.C.-, section 13, D.A.O. and section 7, A.T.A. are that on the date of incident the complainant along with subordinate police personnel namely P.C. Aijaz Ali, P.C. Abdul Latif and P.C. Muhammad Daud, in uniforms and armed with official weapons and ammunition, proceeded from police station vide Roznamcha Entry No.16, dated 25-1-2006 at 0015 hours for patrolling on foot in the town. After patrolling at different places, when at 0230 hours they reached near the common street, near the house of Pehalwan Lakho, Mohallah Gharibabad, they saw three persons going ahead of them in the street, out of whom one was armed with kalashnikov whereas remaining two persons had pistols. The complainant challenged them while enquiring about their identity, who on seeing the police personnel in uniforms, fired straight shots with Kalashnikov and pistols upon complainant party, with intention to commit murder; the fire shots hit P.C. Aijaz Ali, who fell down. The complainant party in self-defence made firing on the accused, who ran away while taking advantage of narrow streets. Thereafter the complainant party saw that P.C. Aijaz Ali had suffer fire-arm injury on the left side of his head, his brain matter had oozed out and he was dead. While leaving behind P.C. Abdul Latif and P.C. Muhammad Daud to look after the dead body, the complainant proceeded to police station to lodge the F.I.R. It was also stated in F.I.R. that the above mentioned three armed persons created hindrance in the official duty of complainant party, with intention to commit murder, fired shots with Kalashnikov and pistols upon them, thereby murdering P.C. Aijaz Ali, and created an atmosphere of terrorism. The complainant party had properly seen the accused in the light of electric bulbs installed at the doors of houses, and could identify them on sight. The complainant in self-defence had fired 10 shots with his official SMG, whereas the details of firing made by other police personnel would be given by themselves.

3. After registration of above F.I.R vide Crime No.5 of 2006 at Police Station Lakha Road, the Investigating Officer had visited the place of incident, where the Mashirnama of Wardat and inquest report of the dead body were prepared. Two empties of T.T. pistol as well as blood-stained earth were secured. The dead body was dispatched to Taluka Hospital Kandiaro for post-mortem report. During investigation Investigating Officer arrested appellant/accused Muhammad Ramzan on 6-2-2006 and on the same date, allegedly the appellant volunteered to produce the crime weapon viz. T.T. pistol, which was stated to be recovered from his house, for which a separate F.I.R. vide Crime No.6 of 2006 Police Station Lakha Road was registered by the Investigation Officer on behalf of State.

4. After completion of investigation, both the above mentioned cases were challaned before the learned trial Court, and the same were amalgamated for joint trial of both the cases under the provisions of section 21-M of the A.T.A., 1997.

5. A formal charge against the appellant/accused was framed, to which he pleaded not guilty and claimed trial.

6. The prosecution, in order to establish its case examined 11 prosecution witnesses viz. P.W. Muhammad Ibraheem, Medical Officer, P.W.2 complainant Ghulam Asghar, P.W.3 Abdul Latif, P.W.4 Mumtaz Hussain, P.W.5 Nawab, Mashir of arrest and recovery of T.T. pistol, P.W.6 Ghulam Mustafa Shah, Mashir of Wardat and recovery of empties and blood-stained earth, P.W.7 Ghulam Mustafa Chohan, S.H.O. Operation Police Station Lakha Road, P.W.8 Javed Haider, Civil Judge and Judicial Magistrate, P.W.9 Allahando, Mashir of clothes of deceased, P.W.10 Juma Khan, T.I.O. and P.W.11 Riaz Ahmed, . Incharge Investigation Team Police Station Lakha Road.

7. The statement of accused under section 342, Cr.P.C. was recorded in which he denied all the allegations made by prosecution against him. He stated that actually he was arrested on 25-1-2006 and was illegally confined by police. On 25-1-2006 police raided his father's house and had taken away the licensed pistol of his father along with some live bullets and empties. He did not own any house, but the place of recovery viz. house belonged to his father.

8. Learned counsel for appellant submitted that the name of appellant did not transpire in the F.I.R, nor any description and features of appellant were mentioned in F.I.R. The prosecution case suffered from material contradictions and exaggerations. The identification parade was not conducted according to provisions of law. The learned Magistrate did not affix his certificate at the bottom of Mashirnama of identification, which is a gross violation of law. After his arrest, the appellant was confined at the police station, where the complainant as well as eye-witnesses, who were posted at Police Station Lakha Road, had every opportunity to see the accused, prior to the identification parade. The identification parade was also defective, in the sense that no specific role was assigned by P.Ws. to the appellant/accused, and it was not mentioned as to which weapon was carried by him. Only two empties of pistol were allegedly recovered from Wardat, although as per prosecution case, several shots were fired by complainant party as well as accused persons. According to prosecution witnesses, the dead body of decease Aijaz Ali was taken at about 6-00 a.m. from Wardat to be carried to Hospital, whereas according to Medical Officer the dead body had already been received at the hospital at 4-30 a.m. Learned counsel argued that the alleged incident took place in the dark hours of night, and the source of identification could not be established by prosecution, in that although as per F.I.R. the accused were identified in the light of electric bulbs installed at the doors of nearby houses, but neither the same bulbs were shown in he Mashirnama of Wardat, nor the same were secured by police. The evidence with regard to alleged recovery of pistol from appellant, is defective and unreliable. The exclusive possession of appellant was not established, so also the provisions of section 103, Cr.P.C. were violated.

9. Learned counsel for appellant argued that allegedly three accused persons, being armed with kalashnikov and pistols, had fired, however, the deceased had sustained only one fire-arm injury. It was not clear as to which of the accused had fired the said specific shot, nor it can be said as to whether it was fired by kalashnikov or a pistol. He also contended that in the light of post-mortem report, the injuries suffered by deceased could not be caused by a single bullet, but the same could only be caused by a cartridge of gun, containing several pellets.

10. Learned counsel for appellant, arguing on the legal aspect of the case, submitted that the Presiding Officer of learned trial Court did not take oath at the commencement of the proceeding, thereby violating the mandatory provision of section 16 of the Anti-Terrorism Act, 1997. Moreover, the investigation was carried out by A.S.-I. Riaz Ahmed, Incharge Investigation Police Station Lakha Road, which too was violative of section 19 of the Act, thus, according to him, the case proceedings were completely vitiated. Learned counsel for appellant placed reliance upon the case of Imran Ashraf and 7 others v. The State 2001 SCMR 424, Yar Muhammad and 3 others v. The State 1992 SCMR 96, Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538, Muhammad Iqbal v. Abid Hussain alias Mitho and 6 others 1994 SCMR 1928, Bashir Ahmed alias Mannu v. The State 1996 SCMR 308, Umar Farooque v. The State 2006 SCMR 1605, Khadim Hussain v. The State 1985 SCMR 721, Ghulam Rasool and 3 others v. The State 1988 SCMR 557, Mehmood Ahmed and 3 others v. The State 1995 SCMR 127, Dr. Khalid Moin and others v. The State and others 2006 PCr.LJ 639, Khalid Javed and Aleem Ahmed v. The State 2003 SCMR 1419 and Muhammad Afzal v. The State 1983 SCMR 1.

11. Conversely, learned Assistant Advocate-General argued that the prosecution case had been fully proved against appellant. The reliable ocular evidence was available on record, having been corroborated by medical evidence as well as circumstantial evidence in the shape of recoveries of empties, blood-stained earth and crime weapon. Although the name of appellant did not transpire in the F.I.R. but he was put to identification parade conducted by learned Magistrate, in which the prosecution witnesses correctly picked him as an accused. On the pointation of appellant, the T.T. pistol used by him during the commission of alleged offence, was recovered from the house of his father. The accused persons had clearly committed an act of Terrorism, by intentionally firing upon the police party, who were performing their official duty. With regard to the legal defects in the case as pointed out by defence counsel, learned Assistant Advocate-General submitted that although the provisions of sections 16 and 19 of the Act were not complied with, but the case proceedings would not stand vitiated, in the light of the provisions of section 537, Cr.P.C.

12. We carefully considered the arguments, advanced by learned counsel for appellant and Assistant Advocate-General respectively, and also perused the depositions and other material available on record.

13. The ocular evidence, comprised of three eye-witnesses viz. complainant Ghulam Asghar and P.Ws. Abdul Latif and Muhammad Daud. Out of the said three eye-witnesses P.W. Muhammad Daud was not examined by he prosecution. So far as the evidence of P.W.2 complainant Ghulam Asghar and P.W.3 Abdul Latif is concerned, they have stated that on the night of incident at about 2-30 a.m., during patrolling when they reached on the common street of Mohallah Gharibabad near the house of Pehlawan Lakho, they saw three accused persons who were going ahead of them; out of them one person was armed with Kalashnikov, whereas remaining two persons were armed with pistols. On the challenge made by complainant, the accused persons started firing upon complainant party, as a result of which P.C. Aijaz Ali sustained fire-arm injury and died at the spot. Admittedly, the names of accused persons were not given in F.I.R. Even the description and features of accused were not mentioned. Accused were stated to have been identified in the light of electric bulbs installed at the doors of houses. It may be significant to note that in the Mashirnama of Wardat there is no mention of any electric bulbs installed at the doors of nearby houses. However, an electric pole is mentioned in the Mashirnama, of which no reference is made by P.Ws. The Investigation Officer himself did not state about the existence of any such electric bulbs at the doors of houses, although he too had mentioned an electric pole near the scene of offence. As per prosecution the Mashirnama of Wardat was prepared during the night of incident at 4-00 a.m. According to P.W.2 complainant Ghulam Asghar, Investigating Officer had prepared the Mashirnama of Wardat in torch light. This admission on the part of complainant would seem to be very strange, if the theory of electric bulbs at the doors of houses as well as the existence of electric pole at Wardat, is taken into consideration. It is understandable that there was absolutely no need for the Investigating Officer to prepare the Mashirnama at Wardat in the torch light. This factum leads to an adverse presumption that no other light in the shape of any electric bulbs was' available at Wardat at the time of alleged offence.

14. According to eye-witnesses, three accused persons, were seen going ahead of them in the street; on being challenged, the accused persons immediately fired straight shots upon complainant party. In the given circumstances, it will remain open to question, if the complainant party were really in a position to see the accused properly, since the complainant party admittedly saw the accused from their back sides, and later the accused on being challenged, immediately fired straight shots upon them. In such a situation, the natural instinct compels a person to look for his own safety, rather than trying to identify the accused persons. An encounter was stated to have taken place between accused persons and police, wherein several shots were fired by both the parties. Prima facie, there was no likelihood that the complainant party could properly see the accused; at the most only a glimpse of the faces of accused may have been seen, at the time when accused persons allegedly turned back to fire upon the complainant party, thus, leaving room for doubt regarding their proper identification.

15. Admittedly neither the names of accused were given in F.I.R., nor their description and features were mentioned. It may be important to note that P.W.3 Abdul Latif stated during trial that he and present accused were residing at Lakha Road, and that the accused and his father were known to him prior to the incident. Later in his deposition, he tried to change his version, by stating that only father of the accused was known to him. For the sake of convenience the relevant part of his deposition may be reproduced as under:

"It is correct to suggest that myself and present accused are residing at Lakha Road. Muhammad Sulleman is my brother. It is correct to suggest that my brother Muhammad Sulleman is Hari of Muhammad Iqbal Daheri. It is correct to suggest that Muhammad Iqbal Daheri is Marot of the father of present accused. It is correct to suggest that the agricultural lands of Muhammad Iqbal Daheri are adjacent to the lands of father of the present accused. It is correct to suggest that accused and his father are known to me prior to this incident." It is clear from the above statement that the prosecution witness had thorough knowledge about the father and other family members of appellant. In such a case, there was no apparent justification for this witness to withhold such information. Rather, at the very first instance, the witness ought to have disclosed such facts relating to identification of accused. Moreover, if the accused party were previously known to P.W. Abdul Latif, then any subsequent identification parade of accused would necessarily loose its legal value.

16. The prosecution case mainly hinges upon the identification parade of accused, since the names of accused were not mentioned in F.I.R. This piece of evidence is very important in the context of above facts. It was incumbent upon the prosecution to show that the identification parade was held in a transparent and legal manner, and that the eye-witnesses had no chance of seeing the accused prior to his identification test. In this regard the deposition of P.W.7 Ghulam Mustafa Chohan, S.H.O. Operation at Police Station Lakha Road would be significant, who stated that after arresting the accused he was brought at police station and handed over to Incharge Investigation Team. He admitted that the lock-up of the Operation and Investigation of Police Station Lakha Road was same. In cross-examination, he categorically stated that the police party directly came to the police station after arresting the accused from the place of his arrest, along with the accused. While reading this statement in the context of his entire deposition, it is very clear that the witness has stated about Police Station Lakha Road, where he himself as well as other eye-witnesses viz. P.Ws. Abdul Latif and Muhammad Daud were then posted. As per prosecution case, on 6-2-2006 at 8-30 a.m. accused was arrested, whereafter he was taken to police station and later produced before learned Magistrate for identification test on the same day at 1-00 p.m. After the arrest of accused at 8-30 a.m., he remained in the lock-up of Police Station Lakha Road, until he was produced before learned Magistrate at Kandiaro. Obviously, it may be presumed that the complainant as well other eye-witnesses had every chance and opportunity of having seen the accused, before he was taken for identification test.

17. It may be pertinent to note P.W.10 Juma Khan T.I.O. and P.W. 11 Riaz Ahmed Incharge Investigation stated that after arresting the appellant, he was brought to Police Station Kandiaro, from where he was produced before the learned Judicial Magistrate Kandiaro, for the purpose of identification parade. However, P.W.11 Riaz Ahmed Incharge Investigation clearly stated as under:

"After arresting the accused we took him to Police Station Kandiaro and from there he was produced before the Magistrate for the purpose of identification parade of accused. At that time all the Police Officers who were present at the time of arresting the accused, were present at Police Station Kandiaro." It is clear from the above statement that all the police officials who were eye-witnesses of the incident were present at Police Station Kandiaro, when the accused was brought and kept there, prior to identification parade. Thus, the eye-witnesses had every opportunity of having seen the accused. With regard to the discrepancy between the statements of prosecution witnesses, as to where the accused was brought after his arrest, it may suffice to say that it is an established principle of law that in case of any variant statements made by different prosecution witnesses, the statement favouring the accused, has to be given preference. Even otherwise, in both the eventualities i.e. accused was kept at Police Station Lakha Road or at Police Station Kandiaro, in view of the statements by P.W.7 Ghulam Mustafa Chohan and P.W.11 Riaz Ahmed Incharge Investigation, the accused was clearly exposed to eye-witnesses before being produced before the learned Magistrate.

18. P.W.11 Riaz Ahmed, Incharge Investigation stated that he had produced the accused as well as prosecution witnesses before learned Magistrate, for the purpose of conducing identification parade. He conceded that at the time of producing accused before the learned Magistrate, eye-witnesses of the case were available outside the court-room.

19. The identification parade was said to be held before the Mashirs Niaz Hussain and Ghulam Abbas. However, surprisingly both the said H Mashirs were not examined by prosecution. No reason was advanced by prosecution for not leading their evidence. In the background of above given facts and circumstances, the non-examination of said Mashirs of identification, may lead to adverse presumption against the prosecution case.

20. With regard to the identification parade, we have noticed that learned Judicial Magistrate did not append any certificate below the Mashirnama of identification, which was required under the law. The list of all persons included in the parade was not prepared. The accused was not specifically assigned the role, nor the weapon carried by him was mentioned. The objections or statement by accused did not seem to be recorded by Magistrate. It is also not clear from the Mashirnama of identification as well as the statement of learned Magistrate, if all the precautions required under the law were taken by him. In this regard, reliance may be placed on the case of Imran Ashraf and 7 others v. The State reported in 2001 SCMR 424, in which the guidelines for holding identification test of accused were provided as under:

"Thus their cases required to be dealt with separately but we consider it proper to reproduce Article 22 of Qanun-e-Shahadat Order, 1984 which deals with the facts necessary to explain or introduce relevant facts as well as some of the instructions issued by the Provincial Government to ensure proper and accurate identification parade as under:-- Article 22

22. Facts necessary to explain or introduce relevant facts.

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant is so far as they are necessary for that purpose. Instructions (1) List of all persons included in the parade should be prepared.

The Magistrate in charge of an identification parade should prepare a list of all persons, including the accused, who form part of the parade. This list should contain the parentage, address and occupation of each member of the parade. (2) Note about identification by witnesses.

When any witness identifies a member of the parade, the Magistrate should note in what connection he is identified. A note should also be made if the witness identifies a person wrongly; in such a case it is incorrect to note that the witness identified nobody. All persons identified must be mentioned, whether the identification is right or wrong. If a witness, on being called for the purpose, states that he cannot make any identification, a note should be recorded by the Magistrate to this effect. (3) Objection or statements by accused or identification witnesses to be recorded and power of Magistrate to decide objections.

Should the accused make any complaint or statement it should be recorded by the Magistrate. If from his personal knowledge the Magistrate is able to decide beyond doubt that the complaint is false or futile, a note of this effect should be made, but in other cases it is advisable to leave any decision as to the value to be attached to the objection to the Court trying the case. The Magistrate should also record any statement made by a witness before making an identification. (4) Duty of Magistrate to record precautions taken and to note other points.

The Magistrate should state

(a) what precautions he has taken to ensure

(i) that the witnesses do not see the person to be identified by them before the identification proceedings commence; (ii) that no communication which would facilitate identification is made to any witness who is awaiting his turn to identify, and (iii) that after making identification, the witnesses do not communicate with other witnesses who have yet to do so; (b) whether the person to be identified is handcuffed or is wearing fetters; and if so, whether or not other persons taking part in the parade are handcuffed or are wearing fetters, and also whether or not they are inmates of the jail."

21. In the case of Ghulam Rasool and 3 others v. The State as reported in 1988 SCMR 557, it was laid down as under:

"The second piece of evidence which has been relied upon by the prosecution is the identification parade. The perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the identification parade also carried an inherent defect and that is that Abdul Majid P.W. did not describe the role played by each of the appellants at the time of the commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case of Khadim Hussain v. The State reported in 1985 SCMR 721."

22. As a corroborative piece of evidence, two empties of pistol were stated to have been recovered from Wardat. It may be worthwhile to note that as per ocular evidence, the accused as well as police party fired several shots with kalashnikovs and T.T. pistols upon each other, and such firing continued for about 10/15 minutes. In such situation, several empties may have been available at Wardat. Recovery of only two empties of pistol clearly contradicts the ocular version. Moreover, not a single empty of bullets fired by the police was recovered from the place of incident. This factual position would make doubtful the very occurrence of the alleged incident.

23. All the prosecution witnesses are police personnel. Not a single person from the vicinity of place of incident was associated with the case as witness or Mashir, although admittedly the place of incident was situated in a Mohallah where 100-150 houses were situated nearby.

24. Coming to the medical evidence, we have perused the deposition of P.W. Muhammad Ibraheem, Senior Medical Officer Taluka Hospital, Kandiaro, as well as the post-mortem report of deceased, prepared by him. He has stated as under:

"On the external examination of the dead body I found the following injuries:

(1) Lacerated and punctured type of wound of size 1 c.m. x 1 c.m. at left eye with margins inverted through and through with wound of exit of size 12 c.m. x 10 c.m. at left frontal parietal region. (brain matter dribbling out)." During cross-examination the Medical Officer stated as under:

"It is correct to suggest that if a bullet enters in the body it will show its size. The bullet or pellet will cause wound 2/3 times larger from its size. If a cartridge containing pellet is fired from the close range, it will make a single wound corresponding to the size of the barrel used, and exit wound thereof can be of 12/15 c.m. I cannot say whether the cartridge was used in firing upon the deceased." From the above statement of Medical Officer, it may be deduced that possibly the lacerated and punctured type of wound suffered by deceased, with the entrance wound of size 1 c.m. x 1 c.m. and with the exit wound of size 12 c.m. x 10 c.m. may have been caused by a cartridge containing pellets. As opined by Medical Officer, single bullet or pellet while entering in the body will show its size, and will cause 2/3 times larger exit wound. Looking at this aspect of the case in the light of the above opinion of Medical Officer, the possibility that deceased suffered a fire-arm injury caused by a gun containing cartridges, cannot be ruled out.

25. So far as the evidence with regard to recovery of pistol from appellant is concerned, allegedly the pistol was recovered from the house of father of accused. The pistol was licensed, and in the name of his father. Admittedly the pistol was not in exclusive possession of accused, and even the key of the bag containing pistol, was handed over by the lady of the house. Admittedly P.W.5 Nawab, Mashir of recovery is not a resident of locality of place of recovery. No person from the village was taken up to act as Mashir. Considering this piece of evidence, along with the other evidence produced by prosecution, we are not convinced about the veracity of the alleged recovery. Respectfully reference may be made to the case of Yar Muhammad and 3 others v. The State as reported in 1992 SCMR 96, wherein it was laid down as under:

"There were several persons present in that village but no one from the locality was taken as a Mashir. Unless from the facts and circumstances of the case it is not possible to obtain Mashir of the same locality where the recovery and arrest is made the prosecution may pick up any other person to act as such otherwise it is the duty of the investigating agencies to pick up Mashir from the locality itself. In this regard reference can be made to Muhammad Khan v. Dost Muhammad PLD 1975 SC 607, Afzal v. State 1983 SCMR 1, Niaz Muhammad and others v. State PLD 1983 SC (AJ&K) 211, Baila and others v. State 1985 SCMR 854, Malik Aman and others v. State 1986 SCMR 17, Sultan and others v. State 1987 SCMR 1177, Khair Gul v. State 1989 SCMR 491 (Shariat Appellate Bench of the Supreme Court) and PLD 1975 Kar. 92."

26. With regard to the legal aspect of the case, we agree with the learned counsel for appellant that gross illegality was committed in the proceedings of the case. First, the investigation was not conducted by a joint investigation team comprising of a Police Officer not below the rank of an inspector and an officer of any other investigating agency, including an intelligence agency, whom the Federal Government, or as the case may be, the Provincial Government, may nominate for the purpose. Admittedly the investigation in present case was simply conducted by an A.S.-I. which was in clear violation of section 19 of the Anti-Terrorism Act, 1997. Secondly, the oath was not taken by Presiding Officer of learned trial Court under the mandatory provisions of section 16 of the Act. However, as to the effect of violation of above cited provisions of the Act, we are inclined to hold that the entire case proceedings would not stand vitiated, in the light of provisions of section 537, Cr.P.C. Be that as it may, the present case is being decided on its own merits. ?

27. In the light of foregoing facts and circumstances, we are of the considered view that the prosecution did not succeed in establishing its case beyond any reasonable doubt. Accordingly, while giving the benefit of doubt to appellant, we allow this appeal, and acquit the appellant. The conviction and sentences recorded through the impugned judgment are hereby set aside. The appellant be released forthwith if not required in any other case. H.B.T./M-12/K??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.