P L D 1995 Federal Shariat Court 20 (PLP)

NASIR ASLAM ZAHID, J.‑‑‑This appeal has been filed by convicts Ahmed Sher son of Sakhi Awan and Zakaullah son of Ghulam Sarwar Niazi against the judgment dated 11‑12‑1994 of the learned Additional Sessions Judge‑III, Quetta, whereby both the accused were convicted of the charge under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and sentenced both the appellants to death. There was a third accused in the trial, namely, Arshad Mehmood brother of appellant Ahmed Sher, but he was acquitted, as according to the impugned judgment, the prosecution had failed to produce any connecting material against him. The arguments of Malik Rab Nawaz Khan Noon, learned counsel for appellant Ahmed Sher and Dr.G.S. Khan (alongwith Malik Muhammad Anwar and Rao Fazal Khan Akhtar, Advocates), learned counsel for appellant Zakaullah and Mr. Salahuddin Mengal, Assistant Advocate‑General, Balochistan, for the State were heard and, with their assistance, the record was perused which included the evidence, statements of three accused under section 342, Cr.P.C. and under section 340(2), Cr.P.C., the exhibits and the impugned judgment. On conclusion of the arguments on 22‑2‑1995, by our short order, this appeal was allowed and the two appellants were acquitted of the charge. Reasons for the short order are given in this judgment.

2. On 25‑10‑1992, P.W. Muhammad Alam made a complaint registered at Police Station, Satellite Town, Quetta, (located at a distance of about 6 furlongs from the place of occurrence) that on the same day at about 7‑00 p.m. the complainant, deceased Jandal Khan, acquitted Arshad Mehmood and Lal Muhammad were busy in counting the cash amount of sale of Ghee of Haleem Ghee Depot in the house of the deceased situated in Lower Karez, Quetta, when there was a knock on the door of the house which was opened by the deceased on which two persons with muffled faces entered the house and one of them proceeded directly towards the room where the money was being counted but the second assailant was caught hold by the deceased and in the meantime deceased's mother, Mst. Gul Pari, also intervened but the assailant who had been caught by the deceased fired upon the deceased which hit him on the chest and he fell down. Both the culprits then made good their escape but deceased Jandal Khan died at the spot. The complainant, Yar Muhammad, Arshad and Mst. Gul Pari removed the deceased to the Civil Hospital in a vehicle and complainant was making this report for this incident. According to the complaint, both the persons, whose faces were muffled, were speaking Urdu but by appearance they appeared to be Pathan. Pursuant to the said report made by complainant, Muhammad Alain, F.I.R. No. 106 of 1992 was registered under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Investigation was commenced and police arrested accused Arshad Mehmood on 4‑11‑1992, Ahmed Sher on 6‑i1‑1992 and Zakaullah who was already in custody in another case of Bijli Road, Police Station, was arrested in this case on 14‑11‑1992. After the investigation was completed, challan was submitted in the Court of the learned Sessions Judge, Quetta. The case was transferred to the learned Additional Sessions Judge‑III, Quetta, who held the trial against the three accused. Charge was framed on 10‑3‑1993 by the trial Court against all the three accused who denied the charge and claimed trial. During the trial, the prosecution examined 12 witnesses. Magistrate Shabbir Ahmad Shah was examined twice; first as P.W.3 when he gave evidence relating to the identification parades held in his presence in the premises of the police station and then examined as P.W.13 to give evidence regarding the judicial confession made by the appellant Ahmad Sher before him.

3. The, witnesses to the incident who were examined are P.W.1, complainant, Muhammad Alam and P.W.2 Mst. Gul Pari, mother of the deceased. Yar Muhammad was also present at the time of incident but was not examined by the prosecution. As observed, P.W.3 is Magistrate Shabbir Ahmad Shah (also examined as P.W.13); P.W.4 is Dr. Muhammad Umar, who conducted post‑mortem; P.W.5 is S.I. Sultan Ali, who gave evidence in connection with the recovery of motor‑cycle alleged to have been used by the two appellants when they came to the house of the deceased; H.C. Muhammad Khan is a witness to the pointation of the place of occurrence by appellant Ahmad Sher; P.W.7 is Constable Muhammad Hanif in whose presence the blood‑stained clothes of the deceased were taken into possession by the police at Civil Hospital, Quetta, in the mortuary and placed in a parcel which was sealed and also signed by the witness; P.W.8 is a private witness Miran Jan, who was a witness to the recovery of an empty cartridge and blood‑stained earth; P.W.9 is Patwari Abdul Haleem of Tehsil Quetta, who had been taken by the Investigating Officer, Abdul Wahab, Additional S.H.O., Police Station, Satellite Town, Quetta, for preparing the sketch of the place of occurrence (Exh.P/9‑A); P.W.10 is Chemical Examiner Syed Abdullah of Forensic Science Laboratory, Quetta, who had received two sealed parcels from Police Station Satellite Town, Quetta, and in one of the parcels he found blood‑stained earth and in the other he found a blood‑stained shirt and, according to his report, both the articles were stained with human blood group `A' positive; P.W.11 is Investigating Officer, Abdul Wahab, and he was the Additional S.H.O. of the police station at the relevant time; and P.W.12 is Inspector Muhammad Sabar, who had presented the challan against the three accused.

4. As observed, statements of the three accused were recorded under section 342, Cr.P.C. and they also gave evidence on Oath under section 340(2), Cr.P.C. Although in the evidence, only the confession of Ahmed Sher was brought on record, but the Investigating Officer Abdul Wahab has stated in his evidence that both Ahmed Sher as well as Zakaullah had given confessions, In his evidence, no mention was made by the I.O. regarding any confession having been given by acquitted accused Arshad Mehmood. However, not only Ahmed Sher, but also Arshad Mehmood as well as Zakaullah were asked the question that they got their confessional statements recorded before the Magistrate wherein they implicated themselves in the murder of deceased Jandal Khan. As noted, neither by confession of Zakaullah nor that of Arshad Mehmood has been placed on record during the trial. All the 3 accused denied the prosecution case and stated that they had been falsely implicated. Ahmed Sher also denied that he had given any confession or had pointed out the place of occurrence alongwith Zakaullah. In his evidence under section 340(2), Cr.P.C., Arshad Mehmood stated that he had not committed any offence and had been falsely implicated and he had not given any confession and no identification parade was held for him and that he was innocent. He denied that he was sitting in the Bathak of the deceased for counting money when appellants Ahmed Sher and Zakaullah entered the house and committed murder in order to snatch money. He denied the preparation of plan in furtherance of the common intention with the other co‑accused to enter into the house of the deceased and to snatch the cash amount. Ahmed Sher in his evidence under section 340(2), Cr.P.C. also denied the prosecution case and said that no confession was given by him and no identification parade was held for him and that he did not point out the place of incident in the presence of a Magistrate. He denied that he had been identified by Muhammad Alam, Yar Muhammad and Gul Pari in any identification parade. Zakaullah's statement on Oath is similar to that of Ahmed Sher.

5. In this case the fact that Jandal Khan had met with a violent death is admitted. According to the appellants, they had not entered the house of the deceased and denied that they had murdered the deceased.

6. The trial Court in its judgment has observed that the case of the prosecution rests upon medical evidence, confessional statements, identification parade, pointation of place of occurrence by the accused, recoveries and the ocular evidence.

7. Medical evidence has no importance in this case as the fact that deceased Jandal Khan had died is admitted but the charge that he had been killed by the appellants is denied and without there being evidence otherwise connecting the appellants with the crime, medical evidence by itself does not take the prosecution case any further.

8. Then as regards recoveries, nothing has been recovered from the appellants. No gun has been recovered. One empty cartridge recovered from the place of incident would not by itself connect the appellants with the crime in absence of any recovery of gun from the appellants. The blood‑stained earth and blood‑stained clothes of the deceased also do not connect the appellants with the crime. The fact that deceased had been murdered, the blood would be found on the earth where he fell down and his clothes would be blood‑stained. It would have been another matter if bloods-stained clothes of the appellants or either of them had been recovered which then might have been used as recoveries for the purposes of corroboration of the case against the appellants.

9. Evidence has also been given about a motor‑cycle having been recovered through P.W.5, S.I. Sultan Ali. The motor‑cycle was not produced; neither Sultan Ali nor any other witness has given any evidence in this case connecting the motor‑cycle with the appellants. Even in the memo. P.W.5, S.I., Sultan Ali had produced Exh.P/5‑A regarding motor‑cycle, there is no mention about the recovery of motor‑cycle from either of the appellants or the place where it was recovered from or any connection between the appellants and the said motor‑cycle.

10. It is also considered appropriate to make reference to a major weakness in the case of the prosecution under section 17(4) of the Ordinance. Nothing has been mentioned about the amount of money that was being counted at the time the alleged incident had taken place and then there is no recovery of the money and the bag. If any, in which the money had been placed.

11. In the impugned judgment, reliance has been placed on the pointation of the place of occurrence by the accused. The trial Court has wrongly read the evidence to observe that the place of occurrence had been pointed out by both Ahmed Sher as well as Zakaullah. Actually P/6‑A is the memo. regarding the pointation of place of occurrence only by Ahmed Sher and this is also the evidence of P.W.6 H.C. Muhammad Khan. Learned counsel appearing for the appellants have rightly contended that the said pointation even by Ahmed Sher is of no consequence as it was made on 9‑11‑1992 when everyone knew about the place of occurrence and even site plan had been prepared earlier on 26‑10‑1992 by P.W.8 Patwari Abdul Haleem (Exh.P/9‑A). Reference may be made to Article 40 of the Oanun‑c‑5hahadat, 19$4 which reads as follows:‑‑‑ "

40. How much of information received from accused may be proved

When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." The place of occurrence was known to everyone and even the site plan had been made earlier on 26‑10‑1992, whereas the alleged pointation by Ahmad Sher is on 9‑11‑1992. This fact about the place where the incident had taken place cannot be treated as a discovery to bring it within the four corners of Article 40.

12. The trial Court in its judgment refers to the ocular evidence but the prosecution case throughout being that the culprits had their faces muffled and had not been recognised at the time of the occurrence, the prosecution depended on the identification of the two appellants in the identification parade held on the basis of voice of the culprits heard by the two eye‑witnesses, namely, complainant Muhammad Alain and P.W:2, Mst. Gul Pari, mother of the deceased, apart from the confessional statement of Ahmed Sher on which reliance has been placed by the prosecution.

13. The entire case of the prosecution, therefore, rests upon the identification parade by voice held to identify the culprits and the confessional statement of appellant Ahmed Shirr. We would first deal with the confession of Ahmed Sher (Exh.P/13‑B) alleged to have been made before the Magistrate Shabbir Ahmed Shah (P.W.13/P.W.3). The confession was retracted by Ahmed Sher. From the evidence given by the Magistrate, it follows that no time had been given by the Magistrate to Ahmed Sher to consider whether he would make a confession or not. In Exh.P/13‑B, no question is recorded by the Magistrate as having been put to Ahmed Sher that in case he did not give any confession he would still be sent to judicial lock‑up. The judicial confession is made, according to the prosecution on 10‑11‑1992 by Ahmad Sher before the Magistrate but who himself had remanded Ahmed Sher into the police custody by an earlier order. Though Exh.P.13‑A shows that an order has been passed by the Magistrate that Ahmed Sher had been produced in police custody and his statement‑under section 164, Cr.P.C. had been recorded and he was remanded to jail custody for 7 days but P.W.11 Additional S.H.O., P.S. Satellite Town, Quetta, and the Investigating Officer in his evidence with reference to the remand in very clear terms stated that Ahmed Sher remained in his custody till 15‑11‑1992. Then in answer to one question put to Ahmed Sher before his confession was recorded as to whether the police had tortured him, the reply of Ahmed Sher was " ". It may also be mentioned that the evidence about confession by the Investigating Officer contains other infirmities also. The I.O. has stated that first he got the confession of Ahmed Sher recorded and then Zakaullah's confession was also recorded but there is no evidence about any confession of Zakaullah as noted earlier.

14. In view of the aforesaid infirmities and contradictions and non -compliance of the requirements regarding time for contemplation, the assurance that the accused will be sent to judicial custody whether he made confession or not and that according to the I.O. the investigation had contained and Ahmed Sher had remained in his custody till 15‑11‑1992, the confession could not be relied upon as admissible.

15. A perusal of the text of the confession shows that it is exculpatory in nature in so far as the charge is considered. First, according to confession, Ahmed Sher had a fake pistol whereas Zakaullah had a real pistol T.T. 30 bore. Then according to confession, Zakaullah had gone forward and had been caught hold by the mother of deceased when Ahmed Sher states that he told Zakaullah to leave and go away and then he came out and when he was out side Zakaullah fired at the deceased and later on when they came out Ahmed Sher asked why he had fired on which he had stated that deceased caught hold of him on which he had fired.

16. Mr. Salahuddin Mengal, learned Assistant Advocate‑General, Balochistan, appearing for the State had submitted that the confession of Ahmed Sher is a substantive piece of evidence and can be used against Zakaullah. According to learned AA.‑G., the said confession places the responsibility of the murder on Zakaullah.

17. It is now established law that the confession of a co‑accused cannot be used as a substantive piece of evidence to make it the basis of conviction of another accused. It can, however, be used as a corroborative piece of evidence. There should be other substantive evidence available on record against the accused before the confession of a co‑accused can be used as a corroborative piece of evidence. Reference may be made for this principle to the judgment of the Supreme Court in the case of Shabiul Hassan v. State PLD 1991 SC 898 Even otherwise we have already held that the said confession of Ahmed Sher was not admissible and, therefore, cannot be used as a piece of evidence against either of the appellants.

18. The only other piece of evidence relied upon by the prosecution is identification parade by voice held for identification of the two appellants. The identification parade of Ahmed Sher was held on 9‑11‑1992 and that of Zakaullah on 17‑11‑1992. Both the tests were held within the precincts of the Police Station, Satellite Town, Quetta. The two prosecution witnesses who, according to the prosecution, identified the appellants in the identification tests by voice are complainant P.W.1 Muhammad Alam and P.W.2 Mst. Gul Pari (mother of the deceased); two other witnesses have given evidence about the identification tests, namely, P.W.3 Magistrate Shabbir Ahmad Shah, before whom the identification was made by the eye‑witnesses and P.W.11 Abdul Wahab, the Investigating Officer and at that time posted as Additional S.H.O. Police Station Satellite Town, Quetta.

19. Identification by voice i.e. where the witnesses had not seen the face of the accused because the accused had muffled his face or on account of darkness but had heard the voice of the accused. Identification of an accused on the basis of voice has been considered to be a weak piece of evidence. Malik Rab Nawaz Noon, learned counsel for the appellants, has relied upon three reported judgments which support his contention that identification by voice through an identification test is a weak piece of evidence and should be supported by other evidence. In the case of Hamzo v. State 1972 PCr.LJ 478, a Division Bench of erstwhile High Court of Sindh and Balochistan had held that the evidence of the witness who had claimed identification of the accused by voice, in an occurrence taking place when the night was cloudy and the moon light was dim, was a very weak piece of evidence and required support by other strong circumstantial evidence and that conviction could not be based on identification by voice only. In the case of Abdul Rashid v. State (1973 PCr.LJ Lah. 428) a Division Bench of the Lahore High Court considered the evidence of a witness relating to identification of the accused, who had heard them for a very short period when the incident had taken place on the basis of voices as incredible in view of the admission of the witness that she had not seen the accused since her childhood and, therefore, she could not be so familiar with their voices as to be able to recognize either of them. A Single Judge of the Sindh High Court also considered identification by voce as doubtful in the case of Misri v. State, reported in 1984 PCr.LJ 2832.

20. On scrutinizing the evidence relating to the identification parades. I have noticed the following infirmities and contradictions:‑‑‑ (a) The accused were sought to be identified by being asked to say the words "hands up collect the money with their faces muffled for the reason that, according to the prosecution case, these were the words uttered by the two appellants before the murder of the deceased took place, but neither. in the F.I.R. nor in the statements of the two eye‑witnesses recorded under section 161, Cr.P.C., it is mentioned that the appellants or either of them had uttered the said words. (b) The identification parades were held in the police station. Generally the identification parades are held in Jail under the supervision of a Magistrate. Although there is no law or rule which prohibits the holding of the identification parades in police stations, yet, as a matter of caution and for safe administration of justice, it is considered desirable that identification parades should not be held in police stations as in such cases the possibility that the accused were shown to the identifiers by the police cannot be ruled out. (c) The identification parade of Ahmad Sher was held on 9‑11‑1992 whereas Zakaullah's held on 17‑11‑1992. In both cases there has been a delay of few days which was explained by the I.O. being on account of I.O.'s official business. According to P.W.2, Mst. Gul Pari, she had visited the police station three times after the occurrence in connection with the identification of the accused. In view of this statement of Mst. Gul Pari, the possibility that she had seen one or the other accused before the identification parades cannot be ruled out. (d) The identification was held on the basis of voice with the accused's faces muffled and the accused asked to shout the aforesaid words. However, Mst. Gul Pari does not say in her evidence at all that the accused were asked to say the said words and on the basis of their voice ,he identified the two accused. On the contrary, she said that she saw the accused in the police station and identified them. (e) As observed, identification parade of Ahmed Sher was held on 9‑11‑1992 and of Zakaullah on 17‑11‑1992, but, according to Mst. Gul Pari, the identification parade of both the appellants was held on one and the same day and the identification of Arshad Mehmood had taken place on another day. (f) According to these prosecution case as well as in the F.I.R., the two assailants with muffled faces were speaking in Urdu but by appearance they appear to be Pathan but, according to complainant P.W. Muhammad Alam and the Investigation Office, both the appellants were Punjabis. (g) According to Mst. Gul Pari, when she had recognized the appellants, they were in handcuffs in the police station. If among dummys, the accused is asked to stand with handcuffs, and the witness identifies the accused with handcuffs on the basis of voice, no reliance could be placed on such identification, the definite indication being that the man with the handcuffs is the culprit. (h) According to prosecution, in each test, the eye‑witness was asked to identify the accused on three separate occasions and on each such occasion, the accused was placed in a different position. According to complainant, Muhammad Alam, on each such occasion, different clothes were worn by the accused but according to the Investigating Officer Abdul Wahab, the dresses of the accused were not changed each time. The Magistrate also stated that the clothes had been changed. (i) According to complainant Muhammad Alam, he had identified the accused on the basis of voice as well as appearance of the accused but, according to the Magistrate, the eye‑witness had identified the accused only on the basis of voice and not on the basis of height. (j) The Magistrate stated in his evidence that he had talked to the witnesses before the identification exercise was conducted whereas, according to the I.O. he had not talked to the witnesses.

21. In view of the aforesaid infirmities and contradictions, it was unsafe. to rely upon the identification of the two appellants by the eye‑witnesses. Having heard only a few remarks by the culprits and having not seen their faces, the identification of the appellants on the basis of voice was by itself a weak piece of evidence and with the aforesaid infirmities and contradictions appearing on record in relation to the said identification tests, the said identifications could not have been made the basis of conviction.

22. In our view, the prosecution had failed to establish its case beyond reasonable doubt against the two appellants. The appeal is, therefore, allowed and the impugned judgment set aside and the appellants acquitted of the charge. Murder Reference No.2‑I of 1994 is not confirmed. N.H.Q./961/FSC Appeal allowed.