2004 P Cr (PLP)

12. The incident as is obvious from the 'above position had taken place on 24‑9‑2000. The identification parade, as per their showing had been held on 13‑3‑2001. It, thus was about six months after the same.

13. Muhammad Tariq Qureshi (P.W.14) has supervised the identification test. According to him, the appellant was picked up by the witnesses in the parade in his presence. He has proved his report Exh.P.K./A in this respect. In the cross‑examination, he has stated that he cannot tell the exact age of the accused at the time of the parade and he also did not remember his exact colour, height and feature as according to him till then eight months had elapsed in the identification parade. However, this thing is not such to be given much weight as till then the above said period had expired. He might have supervised such other parades as well during this period and he was not expected to remember the features etc. of each accused in such parades. So, his having not stated the feature and height etc. of the appellant when asked has no much adverse effect on the question of reliability of his evidence. However, one thing is very significant in his cross‑examination and that is he has admitted that the appellant at the time of parade had raised objection that he was shown to the witnesses by the police prior to the same and he has recorded his such objection in the proceedings of the parade.

14. Even this too is not to be given much importance in the receiving of the evidence of identification parade against him but the whole proceedings of the identification parade appear to have not been conducted in accordance with law.

15. In the case of Kirir v. The State PL D 1996 Kar. 246, the learned Division Bench has observed that precaution and necessary steps are to be taken before identification parade.. In this regard the relevant para. of the judgment recorded in the same is important to be referred here for facility of reference. The same is as follows:‑‑ "Now there remains only the evidence of identification test which took place on 19‑6‑1991 under the supervision of T.C.M. and Assistant Mukhtiarkar Allah Bux. The mechanism of identification proceedings are well‑known and does not require repetition. Reference in this regard may be made to rules 26.7, 26.32 and also rule 27.25 (Vol. III) of the Police Rules, 1934. However, in order .to ensure that the proceedings are properly conducted and are entirely above suspicion it is essential that the rules and the principle governing the holding of identification test parade should be strictly followed. So far as the identification of persons is concerned, it is a very weak type of evidence the value of which is easily destroyed if there is any suspicion that the conduct of the investigation agency was not absolutely above board. Therefore, precautions are necessary to conceal the identity of the accused while he is being removed from one place to the other and it is also the duty of the police that all necessary steps should be taken to ensure that the accused should not be seen by the witnesses before the identification test parade. The Police Officer who arrests. the accused should get his face covered and .take him to .the police station in that State. In the police station the lock‑up in which such an accused is kept should be covered with a curtain so that no one is able to see his face. When he is taken to Court or to jail his face should be kept covered. In jail also no outsider should be allowed to see his face. All these prosecutions should not only taken but should be proved to have been taken. That these precautions were taken should be recorded in official records like the general diary of the police station and the Jail Register and the same should be produced in Court. In the absence of such evidence, no value can be attached to the identification of one accused person made by a witness. In other words it is the duty of prosecution to establish during the trial that every necessary precaution was taken to ensure fair identification. "

16. There is nothing in the evidence of the Magistrate that he had taken such precautions before the identification test of the appellant.

17. I have gone through the document Exh.P.K./A. There is no such thing in the same to say that such precautions were taken before the identification test of the appellant.

18. The prosecution, therefore, has failed to establish that fair identification of the appellant was held. In such situation, the objection of the appellant that he was shown to the witnesses by the police before the identification test becomes of significance. This when seen with the above defect in the parade, then it cannot be ignored.

19. In view of this position, I have not the least hesitation in saying that the evidence of identification test could not validly be used against the appellant as the same carried no value in the eyes of law. The same, therefore, is liable to be discarded.

20. The same, if is discarded, then there remains no incriminatory evidence at all against the appellant (Muhammad Ramzan alias Phanna). His involvement, therefore, in the matter of Qatl‑e‑Amd of the deceased had remained not proved beyond any shadow of reasonable doubt.

21. As regards the appellant Muhammad Abbas, the prosecution has mainly relied upon the evidence of extra judicial confession, the recovery of crime weapon .30 bore pistol P.1 and motorcycle P.2.

22. The evidence of extra judicial confession has been furnished by Haji Ijaz‑ul‑Haq (P.W.11) and Tariq Mehmood (P.W.12). According to them, appellant (Muhammad Abbas) on 23‑2‑2001 at about 6‑30 p.m. had confessed that he and Muhammad Ramzan alias Phanna about five months prior to the same had murdered the deceased by firing at him at Katcha Shahzada Road. He also told them that due to the same he was up set and could not sleep. According to Ijaz‑ul‑Haq, he has said to him that the complainant is under his influence and he should get him pardon from him. However, according to him, the complainant had not agreed to enter into compromise with him.

23. Anyway, it is clear from the above that the alleged extra‑judicial confession of the appellant was with the delay of about five months from the incident.

24. This is in .the evidence of Muhammad Mushtaq that love letters of some girls were recovered from the shop of the deceased. Muhammad Sharif (C.W.1) has also mentioned in his evidence that love letters of different girls were brought before him by the accused party during the investigation. Rafique Sabir, S.‑I. (P.W.13) has also admitted that Beenish and some other girls were joined in the investigation. This perhaps was due to the suspicion of their involvement in the murder of the deceased. He has also admitted to have received some similar type of letters in the investigation.

25. He has also admitted that the deceased had contacts with the ladies although it according to him was in connection with his business. However, leaving aside the question of truth or otherwise in the liaison or connection of the deceased with the ladies but one thing is quite clear from this admitted position in the evidence that some ladies were also interrogated in the matter of the murder of the deceased and perhaps on the basis of suspicion of their involvement in the same. This also heavily suggests that the police when could not get clue of real culprit, it then has created such type of evidence. So, the delay in the alleged extra judicial confession of the appellant makes the matter doubtful.

26. Even otherwise, it has appeared from their evidence that these two witnesses were having no such position either to get any benefit to the appellant of his confession from the complainant or the police. They were neither related to .the complainant nor had any influence over the police to let him off from the case. Here one can very easily say that if they were not related to the complainant, then they could not have deposed falsely against the appellant. This is true that they did not have relation with the complainant but mere absence of any relationship of a witness with the party or his being riot inimical towards the accused is not necessarily always can make him a truthful witness. However, this is certain that they were not, having any authority to prevail upon the complainant party and the police. There, thus, could not be any question with him to have made confession of their guilt before them. So, the story of his having made confession before them is absolutely not convincing.

27. Even otherwise, such hype of evidence has always been considered to be of weak type. The superior Courts have always laid emphasis on need for corroboration to such type of evidence. It shall be seen ahead that if theft had forthcome any corroboration to the same.

28. The medical evidence in the instant case is not of the type that it could be used for support to the same. It merely had established that the death of the deceased had taken place due to the fire‑arm injury sustained by him and nothing more. So, the same in the instant case is not of any supportive/corroborative value to the case of the prosecution against the appellant.

29. The prosecution has tried to seek corroboration from the recovery of motorcycle allegedly belonging to the appellant to show that on the same the appellant had called the deceased through his companion Muhammad Ramzan alias Phanna and thereafter had murdered him by firing with pistol shot on him at the above said place. The evidence in this regard has been furnished by P.W.4 Nazeer Hussain (P.W.4) that Yamaha Motorcycle P.2 was purchased by him from the appellant for a sum of Rs.46,000 and he kept the same with him for three months and then he sold it to Muhammad Ilyas (P.W.5) and 'on the asking of the police on 1‑3‑2001, they have produced the same before Rafique Sabir, Investigating Officer who took the same into possession. Muhammad Ilyas has stated that he had purchased this motorcycle from Nazeer Hussain for Rs.46,

000. In the cross‑examination Nazeer Hussain had admitted that at the time of. purchase of motorcycle he had seen documents of the same and according to these documents Muhammad Abbas appellant was not owner of the same. This evidence of him too seems to have been fabricated to create at least some evidence of incriminatory nature against the appellant. This is evident‑from the fact admitied by Nazeer Hussain that he had not got transferred this motorcycle in his name. He has also admitted that the appellant neither issued any receipt of the sale of the motorcycle nor executed any document in this behalf. This witness when had seen the documents and these as per his showing were not containing the name of the appellant but still he had purchased it from him is not understandable and if he had purchased, then why not get transferred the same in his name is all the more doubtful. This thing supports the idea that this evidence has been fabricated when no satisfactory evidence against the appellant, was' forthcoming.. Anyway; it has reflected‑from the same that no bargain in respect of the motorcycle was stuck between them and the appellant and this is mere connection on their part. It also shows that the appellant was not the owner of the motorcycle in question and he did not sell it to Nazeer Hussain. He if was not owner of the same, then how the same could be used to bring the deceased on it at his desired place. This therefore, seems to be an attempt on the part of the prosecution to procure some evidence against him. The prosecution, thus, has failed to link the appellant with the motorcycle. The recovery of the motorcycle therefore, could not be a circumstance in support or corroboration to the evidence of the extra‑judicial confession against the appellant.

30. As regard the evidence of recovery of crime weapon P.1 from the appellant, the same is absolutely inconsequential as the report of Ballistic Expert in this regard is available in the evidence. The same is in the negative.

31. The same too, therefore, could not be used as a piece of corroboration to the extra‑judicial confession.

32. It is also to be mentioned here that there is no evidence of the prosecution on the record to the effect that the deceased ever at any point of time after his taking away by the unknown person till his death was seen in the company of Muhammad Abbas appellant. So no direct evidence of the prosecution on this aspect is available against him. The circumstance of investigation is also needed to be discussed here as it is also available in the prosecution evidence. The investigation was conducted by many Police Officers. However, mainly it was by Rafique Sabir (P.W.13), Muzaffar Khan (P.W.15) and Muhammad Sharif (C. W. I).

33. It has appeared from the evidence of Rafique Sabir and Muzaffar Khan that many suspects were joined in the investigation and among them also included the ladies. This shows that the police when could not get the clue of the real culprit for many months, then they had proceeded to create or procure some evidence in the case to challan some one. It has also appeared from the evidence of Rafique Sabir, S.‑I. that he in connection with the investigation of this case has faced certain allegations and he even was departmentally proceeded against in respect of the same. I, do not want to dilate any further on this aspect as it is hardly necessary. This, however, shows that the investigation in this case was not above board. It would also be interesting to note in this context that Muhammad Sharif (C.W.1) has opined that involvement of the two appellants in the matter was not above doubt. However, as this was' a mere opinion, hence, no much importance is to be attached to the same.

34. I, therefore, for the above reasons have found that the prosecution as per it's evidence on the record has failed to bring home the guilt to the two appellants beyond any shadow of reasonable doubt. The impugned judgment of their conviction, therefore, is not liable to be sustained.

35. As a result of the above discussion, I accept both the above mentioned appeals of the appellants and set aside the impugned judgment of their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in jail. They be set at liberty forthwith, if are not required in(?) any other case.

36. Consequently, the Criminal Revision No.462 of 2002, fails and the same is dismissed. N.H.Q./M‑2420/L Appeals accepted.