2002 PLP 1084 (YLR)

Sentenced to five years' R.I. with a fine of Rs.5,000. (c) Under section 324/34 P.P.C. Sentenced to five years' R.I. for murderous assault upon Mahmood Akhtar, Khawaja Bashir, Khalid Pervaiz, Mst. Khadija and Muhammad Mahboob, with a fine of Rs.5,000 on each count. (d) Under section 302/34, P.P.C. Life imprisonment on three counts for Qatl‑e‑Amd of Farhat Abbas, Muhammad Zarat and Muhammad Bashir with a fine of Rs.10,000 on each count and in default of the payment of tine to further undergo S. I. for two years on each count. The fine, if realized was directed to be paid to the‑ legal heirs of the deceased as compensation under section 544‑A, Cr.P.C. The appellant was, however, given the benefit of section 382‑B, Cr.P.C.

2. The charge against the appellant was that on 25‑4‑1993 at about 11‑55 a.m. he armed with a dagger and his co‑accused namely Lai Gul, Sher Afzal, Mehran (all absconders) while carrying fire‑arms with an intention to commit the robbery entered into the building of Habib Bank Limited‑ at G.T Road, Gujjar Khan, caused three deaths and injured five persons. The case was registered vide F.I.R. Exh.P.E/1 on the basis of statement Exh.P.E made by Sardar Muhammad Munir P.W.7 to the following effect:‑ "That on 25‑4‑1993 at 11‑55 a.m. four persons armed with deadly weapons entered in the Bank. One person with tall height was carrying Kalashinikov and another of blackish colour and normal height was armed with pistol, whereas, the third one was armed with Khanjar. The fourth accused a young man with fair colour was armed with pistol. The accused who was carrying kalashinikov directed Farhat Abbas, Cashier of the Bank, to hand over the cash to him and on resistance of Farhat Abbas, the said accused fired which hit on the back of Farhat Abbas and at the same time, the accused armed with Khanjar inflicted a blow to him with Khanjar. On the intervention of Mahmood Akhtar, Head Cashier, the accused who was armed with pistol fired at him and when Muhammad Bashir, Qasid, and Muhammad Zarat. Gunman, made an attempt to catch hold of the accused, the fourth accused who was also armed with pistol fired at Muhammad Bashir, Gunman whereas the accused carrying kalashinikov fired at Muhammad Zarat: The accused made indiscriminate firing in the Bank, as a result of which Khawaja Bashir, a customer and Khalid Wazir, Senior Assistant was also injured. The accused after the occurrence while firing escaped through a Suzuki parked outside National Saving Center and as a result of their firing, Mst. Khadija and Muhammad Mahboob were injured. The accused, however, remained unsuccessful in looting any money from the Bank. The occurrence was witnessed by Khalid Wazir, Senior Assistant, Raja Mahmood Akhtar, Head Cashier, Qazi Muhammad Anwar and Muhammad Zarat Gunmen, Mahmand Kiani, Officer Incharge, Muhammad Nisar, Second Officer and Qazi Naeem Akhtar claimed ‑the identification of the accused. Farhat Abbas, Muhammad Bashir and Muhammad Zarat succumbed to the injuries."

3. The appellant upon arrest was put to the identification parade. The eye‑witnesses namely Sardar Muhammad Munir (P.W.7), Raja Muhammad Mahmood (P.W.18) identified the appellant in the identification parade held in Jail on 22‑5‑1995 in the supervision of Pervaiz Akhtar, Resident Magistrate Wah (P.W.19). Abdul Rauf, A.S.I. (P.W.12) stated that on the receipt of information regarding the occurrence; he while searching the vehicle through which the accused escaped from the place of occurrence found a car bearing registration No.CH‑9596 lying in a deserted place in the area of Police Station Neela and on the search of the car, he found the identity card P.11 of Shadi Khan accused. The car and identity card were taken into possession. The investigation was conducted by Nadir Ali, 'Inspector (P.W.27) and except the identification of the appellant in the identification parade, no other incriminating evidence could be traced out during the investigation. The prosecution in addition to the ocular account of the, eye witnesses and the evidence of police officials who remained associated with the investigation also placed reliance on the recovery of the car and the identity card of the appellant recovered from the car, the medical evidence and the reports of the Chemical Examiner and the Serologist in support of the charge.

4. The appellant in his statement under section 342, Cr.P.C. while denying the charge, in reply to Question No.9, made the following answer:‑ "I halve a conspicuous scar mark on my forehead of the size of 4 inch x 3 inch, a cut mark around my nose of the size of inch and a cut mark of the size of inch on the right side of my chits, which if told to the witnesses, even without knowing me they could identify as an accused. These marks were told to the witnesses. I had already been shown to the witnesses prior to the identification parade every day in the police station. I was arrested on 13‑5‑1993 whereas my identification parade was held on 22‑5‑1993 and I had also agitated before the Magistrate and told him that I was continuously shown to the witnesses in the police station." The appellant further having placed on record written statement denied his participation in the occurrence and commission of the offence. The appellant also produced Haji Rozgul D.W.1, Haji Wazir Khan D.W.2, Haji Sher Ullah Khan D.W.3 and Abid Ullah Jan D.W.4 in his defence. The above named defence witnesses have stated that they were told by the appellant in Zhob Baluchistan that he had lost his bag containing various documents including his identity card.

5. Learned counsel for the appellant has contended that except the identification of the appellant, there was no evidence to connect him with the crime and the evidence of identification being not confidence inspiring was not sufficient to sustain conviction. It was argued that since no description of the appellant was given in the F.I.R. therefore, the claim of the witnesses to have identified him in the identification parade was without any foundation. Learned counsel submitted that the appellant was assigned the role of inflicting Khanjar blow to Farhat Abbas deceased and out of four eye‑witnesses, two have stated that the appellant was not seen by them in the occurrence and they were declared hostile whereas the remaining two witnesses namely Sardar Munir and Akhtar Kiani admitted that before recording their statements, they have seen regularly attending the Court and seen the appellant in Court and, therefore, the identification of the accused in he Court would be of no consequence. Learned counsel next argued that the identity card of the appellant was not recovered from the place of occurrence and its subsequent recovery from a vehicle lying at a deserted place would not be the proof of the participation of the appellant in the occurrence.

6. Learned counsel representing the State on the other hand, has contended that non‑description of the appellant in detail in the F.I.R. would not be material as the occurrence had taken place in the Bank in a broad day‑light, therefore, there could be no difficulty in identifying the accused and consequently the identification of the appellant in Jail would be free from any doubt.

7. We have heard the learned counsel for the parties and perused the record with their assistance. The examination of the evidence would show that two witnesses namely Raja Muhammad Akhtar and Muhammad Mahboob have not supported the prosecution against the appellant. However, Sardar Muhammad Munir P. W.7 and Akhtar Kiani have stated that the appellant was included in the culprits who being armed with Khanjar caused injury to Farhat Abbas. The occurrence took place on 28‑4‑1993 and the appellant immediately after arrest was put to the identification parade in Jail on 22‑5‑1993. The description of the appellant was neither given in detail in the F.I.R. nor in the statements of the witnesses. This is correct that an accused could be identifiable at the spot being exposed to the witnesses but in absence of description of the accused in the F.I. R. it is difficult to raise the presumption of identification of the appellant either at the spot or in Jail. The Magistrate, who supervised the identification parade, has stated that the appellant was directed to cover his face with the portion of eye opened and similarly the dummies were directed to put their hands on their forehead. This exercise would show that before the identification parade, the witnesses were instructed about the identification of the accused out of the dummies and consequently the identification of appellant in Jail would loose its credibility and being doubtful was not reliable. The identification of the accused in the Court was also of no consequence as he was known to the witnesses by face before they made statements as admitted by them in the cross -examination. Thus, with the exclusion of identification of the appellant in Jail and in the Court, the only piece of evidence left with the prosecution was the recovery of I.D Card of the appellant from a deserted car. The explanation of the appellant that his identity card with the documents was lost before the occurrence was not probable, as the appellant in this behalf lodged no report. However, the identity card of the appellant admittedly was recovered from a car parked at a deserted place at a reasonable distance from the place of occurrence, therefore, the recovery of identity card would not by itself be a proof of the participation of the appellant in the occurrence. The scrutiny of the evidence would show that the prosecution has not been able to bring on record any incriminating evidence of participation of the appellant in the occurrence and failed to establish the charge against him beyond reasonable doubt and consequently his conviction and sentence was bad in law.

8. We, for the foregoing reasons, allow this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Judge and direct his immediate release, if not required in any other criminal case. N.H.Q./S‑368/L Appeal allowed.