1994 PLP 152 (SCMR)

10. According to the prosecution besides the respondents three other persons, namely, Nazar, Akbar and Sharif, had also taken part in the occurrence. They absconded soon after the occurrence and were thus not available at the trial.

11. The respondents pleaded not guilty to the charges against them. They denied that they had taken part in the occurrence and alleged that local police had falsely implicated them to save its own skin consequent upon the processions and hartal which followed the occurrence. They appeared as their own witnesses in defence.

12. Admittedly, the strangers responsible for the occurrence were not known to the eye‑witnesses prior to the occurrence. However, their names were mentioned in the first information report. According to Haji Muhammad Din (P.W. 17) the particulars of the strangers were provided to him by their companion Liaqat Ali who stayed back at the spot after being seriously wounded. The trial Court thought that the first information report which included the names of the respondents and had been promptly recorded furnished strong confirmatory evidence for .the ocular account. It also took notice of the fact that one of the empty cartridges recovered from the scene of occurrence had been fired from the gun recovered from Shah alias Shana respondent and that the gun found with Jafar Hussain alias Kala belonged to Irshad, deceased. Accordingly, it held the respondents guilty of all the offences with which they were charged. On the other hand, the High Court was not satisfied if the first information report was recorded with promptness and if Liaqat Ali had given or was physically in a fit condition to give the names of his companions to Haji Muhammad Din (P.W. 17). It also thought the story with regard to the recoveries of the guns from the possessions of Shah alias Shana and Jafar Hussain alias Kala was attended by dubious circumstances. Accordingly it gave the respondents the benefit of doubt and held them not guilty of the charges against them.

13. The law with regard to appeals against acquittal has been recapitulated at some length in the judgment of this Court reported as Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11). One of the principles reiterated in this judgment is that this Court would not interfere with a judgment of acquittal merely because on a reappraisal of the evidence it comes to a conclusion different from that of the Court, which acquitted the accused provided that both the conclusions are reasonably possible. The fate, of the appeal before us hinges on the question whether the prosecution has been able to satisfactorily establish the identity of the persons who were responsible for the occurrence, for there seem no reason to doubt that the occurrence took place in the manner stated by the eye‑witnesses.

14. Neither the trial Court nor the High Court relied upon the proceedings of the identification parade held by Sh. Iftikhar Ali (P.W.2), and for good reasons. It appears that some days before the parade was held Sub -Inspector Nazir Ahmad (P.W. 26) had the heads of the respondents shaved off. Quite obviously he had done so to help the eye‑witnesses in identifying them. It appears he was not sure if the eye‑witnesses would be able to pick them out. Although, Sh. Iftikhar Ali did state that he had joined a number of persons in the parade whose heads were also shaved off but the trial Court as well as the High Court did not accept his statement on the ground that he had made no mention of his having done so in the record of the proceedings. It may also be mentioned that his statement was at variance with the statement made by Mst. Yasmin (P.W. 15) who took part in the parade. She stated: "The hair of the accused had been shaved from head. They had small hair on the head. Some other persons who had joined the parade had long hair. Only the hair of the accused were short." By getting the heads of the respondents shaved off Sub‑Inspector Nazir Ahmad did incalculable damage to the case of the prosecution, for by his overzealous act he destroyed a possible means that could have been available to the prosecution to establish the identity of the culprits.

15. As already noticed, the learned trial Court was impressed by the promptness with which the F.I.R. had been recorded and the fact that the names and details of all the respondents were mentioned therein. the case of the prosecution was that the names and other particulars of the respondents were provided to Haji Muhammad Din (P.W. 17) by Liaqat Ali. On the other hand, the High Court found both the considerations which weighed with the trial Court to be of questionable validity. In this context, it took into account the contradiction in the statements of the witnesses as also the nature of the injuries of Liaqat Ali. The doctor had examined Liaqat Ali at 2‑50 a.m. He was unconscious at that time. Sub‑Inspector Zulfiqar (P.W. 24) reached the hospital at 1‑30 a.m. He too found Liaqat Ali in an unconscious state. It was not the case of the prosecution that he ever regained consciousness till his death on 6‑4‑1987. One of the fire‑arm injuries suffered by .him was 5 c.m. x 5 c.m. on the front and outer side of the right chest. In addition, he also had a lacerated wound on his head. Considering the nature of his injuries the High Court does not seem to be unjustified in thinking that it was unlikely that soon after the occurrence he would be in. a position to give particulars of his companions in such details as have been given in the first information report. Obviously the detail and perhaps even the names of the culprits were added much latter. This circumstance by itself is sufficient to compromise the authenticity of the first information report.

16. The eye‑witnesses made contradictory statements with regard to the extent of the particulars provided by Liaqat Ali in respect of his companions. Thus Liaqat Ali P.W. 16 stated: "Liaqat deceased‑accused disclosed his name only. He also disclosed the names of his co‑accused. He did not disclose the parentage, caste and place of residence, the police station or the District of his co -accused or himself." Haji Muhammad Din (P.W.17) stated: "I gave names, parentage, caste and residences of the co‑accused of Liaqat accused in my statement Exh. PU. I gave the details about accused as Liaqat accused had told me." Basharat Ali (P.W.18) deposed: "When Liaqat, deceased accused, was giving description of the accused I wrote down the same. I gave that writing to police. I did not take down the parentage, castes and residence of the accused narrated by Liaqat accused. I took their names only. I had taken down the name of Jafar Hussain alias Kala." It is to be noticed that the document given by this witness to the police was not produced by the prosecution at the trial. On the other hand; Nathey Khan (P.W. 20) deposed: "Liaqat did not disclose to me the names of the co‑accused. In my presence he did not tell the names of his co‑accused to others." It may be mentioned that this .witness had stayed at the spot throughout for he was one of the persons who took Liaqat Ali to the hospital.

17. At this stage it may also be mentioned that though according to the prosecution Liaqat Ali gave the particulars of all his companions in great details yet it is somewhat strange that he did not give his own particulars to the witnesses for the doctor who examined him did not record even his father's name in the medico‑legal report as initially prepared by him.

18. The recoveries of guns from the possessions of Shah alias Shana and Jafar Hussain alias Kala were effected by Sub‑Inspector. Nazir Ahmad (P.W. 24). He is the same officer who had the heads of the respondents shaved off before the identification parade. It seems difficult to place any reliance upon the recoveries with which this officer was associated. However, that may be, the assertion of the prosecution that all the respondents were arrested on 26‑4‑1987 does not appear to be correct. The case of the defence was that two of them, namely, Shah alias Shana and Jafar Hussain alias Kala, were arrested by the police on the day following the occurrence. In support of its version defence referred to a news item which appeared in the Daily `Jang'. Although we are not prepared to take notice of the newspaper report we find support for the defence version from the statement of one of the witnesses produced by the prosecution itself. Thus, Liaqat Ali (P.W. 16) stated: "It is correct that two co‑accused of the present six accused were apprehended by the police on the following morning. Those two accused were apprehended by Rana Mumtaz of Salar P.W. They were produced before the Police by him at the spot." In view of this position the story of the prosecution that all the respondents were arrested on 26‑4‑1987 from the back of a hotel on the Lahore‑Rawalpindi Road and that at the time of their arrest they were carrying guns must be rejected as unworthy of credit.

19. Considering the state of evidence as it is, the High Court was justified in taking the view that there was no satisfactory material on the record to establish the identity of the culprits and in the circumstances it was difficult to hold that with any measure of certainty that the respondents had taken part in the occurrence. We find no basis for interfering with the judgment of acquittal recorded by the High Court. This appeal is without any merit and is hereby dismissed. N.H.Q./S‑782/S Appeal dismissed.