2001 PLP 424 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

These appeals are by leave of the Court and we intend to decide them by this judgment as in all the matters identical questions of facts and law arising from common impugned judgment, dated 1st March, 1999 passed by Lahore High Court, Multan Bench/Appellate Bench are involved. "FACTS OF THE CASE AS PER FARD-E-BAYAN OF P.W. IJAZ AHMAD (Exh. P/Q)."

2. The prosecution case as gleaned from Fard-e-Bayan (Exh.P/Q), dated 20th February, 1997 got recorded by P.W. Ijaz Ahmad son of Riaz Hussain, Constable of Police Guard posted at Khana-e-Farhang, Multan is that at about 12-00. noon he alongwith Rahim Dad, Chowkidar (deceased) was on duty on the gate when three young boys (described by their complexion, stature and age), came there and asked to allow them to meet the Director Agha Syed Muhammad Ali Rahimi as one of them used to there off and on. The Chowkidar after obtaining permission on intercom sent them inside. They went to the Reception. After a little while four other young boys wearing Shalwar and Qameez came there out of whom one has wrapped himself into a Chaddar. The description of their complexion, size and age ,was also mentioned in the statement. They also entered in the main gate on the pretext to meet with Agha Syed Muhammad Ali Rahimi. In the meanwhile reports of firing were heard from the Reception Room. The person standing near them who had wrapped himself into Chaddar took out a Klashnikov and fired on the Chowkidar who due to injuries fell down whereas remaining accused took out the pistols. The complainant apprehending danger pointed out his service Rifle 9-MM towards them but in the meanwhile one of the accused has thrown powdered chillies on his face whereas one of the accused snatched official rifle from him due to which he became helpless. In the meanwhile he had been hearing reports of firing from inside. Thereafter, all the three accused persons having pistols in their hands came running from inside towards the gate. Then all the 7 accused alongwith arms and ammunition fled away in a Blue Carry Van, white Potohar Jeep and a motorcycle parked there. The commotion of the complainant attracted P.Ws. Khalid Mehmood 1685/C and Khurshid Ahmad 1129/C and they had also seen the accused persons running away in Carry Van, Potohar Jeep and motorcycle. Latter on with the assistance of his other companions he managed the dead bodies of (i) Rahim Dad Chowkidar, (ii) Habib Driver, (iii) Faqir Muhammad, Chowkidar, (iv) Dildar Hussain, Librarian, (v) Syed Agha Muhammad Ali Rahimi, Director (employees of Khana-e-Farhang) and two other unknown persons (subsequently their names were disclosed to be Nizamuddin and Safdar Hussain). During the firing one Rasool Bakhsh, Electrician was also seriously injured who subsequently succumbed to, the injuries as well. The complainant also stated that his service rifle was taken by the accused persons with them.

3. P.W. Muhammad Nausherwan, SI/SHO (Investigating Officer) Police Station Old Kotwali, District Multan dispatched Fard-e-Bayan of P.W. Ijaz Ahmad (Exh. PIQ) to Police Station for registration of the case. Accordingly at 12-45 p.m. F.I.R. No.32 of 1997 (Exh. PQ/1), dated 20th February, 1997 was registered under sections 302/324/396 /148/149, P.P.C.

4. On registration of case investigation commenced. The Investigating Officer after preparing inquest reports and injury statement of Rasool Bakhsh dispatched dead bodies of the deceased and also referred Rasool Bakhsh injured to the hospital. Thereafter, the Investigating Officer secured blood stained earth from underneath the dead bodies. He also recovered 13 empties vide recovery memo. Exh.PY as Articles P.43/1-13 and sealed them into a parcel. Three bullet leads Articles P.44/1-3 were also taken into possession and same were sealed into a parcel vide recovery memo. Exh.PZ. He also prepared Naqsha Wardat (site plan) without scale as Exh.PRR wherein 4 persons were shown .to be the witnesses of the incident namely P.W. Ijaz Ahmad, P.W. Khalid Mehmood and Khurshid Ahmad (not produced). It is important to note that contents of site plan as well as statement of P.W. Nausherwan does not indicate that on whose pointation it was prepared. Similarly P.W. Ijaz Ahmad in his Court deposition did not depose that on whose pointation the Investigating Officer has prepared the site plan. Besides it, statements of witnesses under section 161, Cr.P.C. were recorded by him. The scaled plan Exh.P/A was subsequently got prepared by the Investigating Officer from P.W. Irfan Hayat as Exh. PA/1 and Exh. PA/2 dated 11th March, 1997. In the Inquest Reports of Rasool Bakhsh son of Haji Ahmad Bakhsh, Exh.PC/2, Faqir Muhammad son of Malik Bahawal, Exh. PD/2, Dildar Hussain son of Ashiq Hussain Exh. PE/2, Nizamuddin alias Nadeem son of Ikramuddin Exh.PF/2, Muhammad Habib son of Muhammad Ibrahim Exh. PG/2, Rahim Dad son of Muhammad Hussain, Exh.PH/2, Agha Syed Muhammad Ali Rahimi, Exh. P1/2 and Safdar Hussain son of Manzoor Hussain Exh. PJ/2 it is mentioned that P.W. Ijaz Ahmad and two other constables namely Khalid Mehmood and Khurshid Ahmad (not produced) witnessed the incident.

5. It is noteworthy that service rifle of P.W. Ijaz Ahmad allegedly snatched by the culprits from him .at the time of incident was recovered on the same day from a street of Bukar Mandi vide recovery memo. Exh.P/L whereas its magazine Article P/38 was shown to have been recovered on 11th March, 1997 vide recovery memo. Exh. PN which was lying in a drain. On the day of incident acquitted accused Iftikhar Ahmad alias Khara was arrested. On the following day i.e. 21st February, 1997 appellant Abdul Hannan was arrested. Perusal of statement of P.W. Shahid Niaz Inspector/S.H.O., Police Station Mumtazabad, Multan shows that he alongwith Ijaz Shafi Inspector were deputed for arrest of accused Sh. Ashfaq from Bahawalpur. As per his version he dialed a specific number of Bahawalpur end passed on message that they should bring their guest at a particular place whereupon Qari Sadiq alongwith his two sons brought Sh. Ashfaq with them. Initially Abdul Hannan disclosed his name as Ashfaq but when he was brought to Multan during investigation he divulged his name to be Sh. Abdul Hannan. It is the case of the prosecution that during interrogation Abdul Hannan led the police for recovery of huge quantity of arms and ammunition including Kalashnikov, pistols 30 bore, rocket Launchers and other articles (P.-46 to P.93). These articles were recovered under the supervision of P.W. Mirza Maqbool Baig, D.S.P./SDPO, Kotwali Circle. In respect of recovery of arms and ammunition a separate case bearing No.80 of 1997 under section 13(a)/13(b)/20 of Arms Ordinance, 1965 was registered as Police Station New Multan. These articles alongwith a white colour jeep bearing Registration No. 6789/MNF were recovered from Kohti No.346-F Shah Rukan-e-Alam Colony, Multan. At his pointaition clothes Articles. P/1 to P/33 were secured vide memo. Exh. PK from House No. 139-K Shah Rukan-e-Alam Colony, Multan City. Out of these clothes Shirt Article.P/21 was found to be blood-stained, as such it was separately sealed into vide recovery memo. Exh. PK/4.

6. P.W. Muhammad Nausherwan SI/SHO prepared injury statement of P. W. Ijaz Ahmad on 24th February, 1997 vide Exh. PBB/A and sent him to the hospital for examination. In application it was mentioned that statedly on the day of incident (i.e. 20th February, 1997) accused persons have thrown chillies in his eyes and during the scuffle he has also received bruises on his left hand, therefore, his examination be conducted. Accordingly P.W. Dr. Syed Raza Mohiuddin examined P.W. Ijaz Ahmad on the same day and furnished Report No.335/97 (Exh. P/BB). P.W. Muhammad Nausherwan arrested acquitted accused Ghulam Mujtaba, Hafiz Muhammad Aslam, Muhammad Afzal alias Afzaal and Abdul Salam alias Amjad on 3rd March. 1997 and 9th March, 1997 respectively. 7-A Incomplete challan. against 5 accused persons namely Wbdul Hannan son of Abdul Waheed, Iftikhar Ahmad alias Khara son of Bashir Ahmad, Ghulam Mujtaba son of Atiqur Rehman, Hafiz Muhammad Afzal son of Muhammad Sadiq, Muhammad Afzal alias Afzaal son of Sakhi Muhammad was submitted on 6th April, 1997. ' 7-B. It may not be out of place to mention here that as per prosecution version during interrogation of appellants Sh. Abdul Hannan and acquitted accused Iftikhar Ahmad alias Khara, record of Telephone Nos. 564759 (Exh.P/35), 562000 (Exh.P/37), and record of Pager No.1125 (Exh.P/36) was taken into possession on 23rd February. 1997 vide recovery memo. Exh.PM and in pursuance of the same Shafique-ur-Rehman son of Suleman was arrested. Thus, on his arrest another incomplete challan, dated 7th May. 1997 was filed in the Court. It may also be noted that last-mentioned challan was followed by another challan dated 16th May, 1997 wherein for the first time some of the appellants namely Ghulam Rasool Shah alias Asghar Shah, Abu-Bakar alias Usman alias Zarrar alias Rashid son of Qari Muhammad Tayyab and Malik Muhammad Ishaque son of Ali Ahmad were shown as absconders, therefore, proceedings as provided under section 87, Cr.P.C. were taken in hand. On receipt of report of Serologist another incomplete challan dated 1st August, 1997 was filed in the Court. This challan was followed by another challan dated 7th August, 1997 wherein Ghulam Rasool Shah alias Asghar Shah alias Aslam Shah alias Hafiz Shah son of Tufail Shah and appellant Hafiz Shafique-ur-Rehman alias Akram alias Abid son of Ali Muhammad were shown to have been arrested with effect from 16th July, 1997 and 20th July, 1997 respectively with further statement that from the same date they are on judicial remand. 7-C. On 13th September, 1997 another incomplete challan was filed with correct addresses of the witnesses. This challan was followed by another incomplete challan dated 28th September, 1997 wherein Muhammad Ishaque son of Malik Ali Muhammad (proclaimed offender) was shown to have been arrested on 13th September, 1997 with the statement that he was already in custody in Case No. 154 dated 3rd May, 1997 under section 302/34, P.P.C. registered at Thana Kotwali, Faisalabad. This appellant was kept on police remand with effect f4pm 14th September, 1997 to 20-9-1997 and in the meanwhile on 19th September, 1997 he was examined at Faisalabad by Arshad Hussain PDSP/SDPO Old, Kotwali, Multan who recorded his statement under section 164, Cr.P.C. and also prepared a Vedio Film. 7-D. It may not be out of place to note at this stage that appellants Muhammad Yousuf alias Yaqub son of Shafaqat Rasool and Zubair alias Anwar son of Qaisar Hussain who were confined in Central Jail, Bahawalpur and were shown to have been arrested on 29th September, 1997 whereas Abu Bakar alias Usman alias Zarrar alias Rashid was shown to have been arrested with effect from 13th October, 1997 although he was already detained in Central Jail, Bahawalpur in Case No.182 dated 25th September, 1997 under sections 302/353/427/34/109/120-B, P.P.C. of Police Station Saddar, Bahawalpur alongwith Muhammad Yousuf and Zubair. 7-E. It is to be added that Ghulam Rasool Shah Bukhari was detained in Police Station Kotwali, Faisalabad alongwith Muhammad Ishaque son of Malik Ali Muhammad. Both of them were also shifted to District Jail. Multan. Appellants Abdul Hannan, Hafiz Shafique-ur-Rehman alias Akram alias Abid son of Ali Muhammad and Ghulam Rasool Shah alias Asghar Shah alias Aslam Shah alias Hafeez Shah son of Tufail Shah were subjected to Identification test parade inside the District Jail, Multan on 15th September, 1997 whereas appellants Muhammad Yousuf alias Yaqub, Zubair alias Akram, Abu Bakar alias Usman alias Zarrar alias Rashid were also subjected to identification' test parade on 27th October, 1997 in New Central Jail, Bahawalpur. On completion of identification test parade successive incomplete challan dated 27th October, 1997 was filed in the Court. 7-F. Perusal of record particularly contents of challan dated 16th December, 1997 reveals that appellant Muhammad Ishaque during interrogation disclosed in his confessional statement before Arshad Hussain PDSP/SDPO that appellant Imran Ashraf alias Tarar alias Amjad alias Tahir alias Haji Tayyab son of Muhammad Ashraf also participated in the commission of the offence. On this disclosure he was also arrested on 2nd December, 1997 though he was already in custody in District Jail: Sahiwal in Case No.152/1997, dated 30th July, 1997 under sections 302/34/109, P.P.C. registered at Thana Fateh Sher, District Sahiwal. He was also subjected to identification parade on 3rd December, 1997 and 4th December, 1997 inside the jail. On completion of his identification parade another incomplete challan dated 16-12-1997 was filed wherein 13 accused persons including the appellants were shown in custody whereas 8 accused persons including Qari Allah Wasaya were indicated to have not been arrested as such they were declared absconders. During hearing of the case it was reported that Qari Allah Wasaya has died on 10th January, 1998 in an encounter, as such another incomplete challan dated 31st March, 1998 was also submitted in the Court.

8. Learned trial Court read out the charge to the accused facing the trial including the appellants under sections 302/396/449/109/149, P.P.C. read with section 7 of Anti-Terrorism Act, 1997. They did not plead guilty to the charge and claimed to be tried. The prosecution produced as many as 44 witnesses including the ocular testimony of P.Ws. Ijaz Ahmed. Allah Diwaya and Manzoor Hussain. Thereafter, on 4th June, 1998 the Deputy District Attorney tiled a statement mentioning the names of the witnesses to whom the prosecution has given up including P.Ws. Badur-ul-Islam, Khalid Mehmood and Khurshid Ahmad.

9. It is pertinent to observe that both the last-mentioned two witnesses were shown to be the witnesses of the incident in the Fard-e-Bayan (Exh.P/Q), F.I.R. (Exh. PQ/1) and in the site plans Exh. PL and Exh.PN/l, as well as in the calendar of the witnesses appended with the challan except the one which was tiled on 16th December, 1997.

10. On completion of recording prosecution evidence and statements of appellants under section 342, Cr.P.C. C. W.1 Syed Qalandar Ali Shah, filed an application on 12th October, 1998 alongwith his affidavit seeking permission to appear as witness in the Court because he has seen the incident of 20th February, 1997 because he was present in his shop situated in front of Khana-e-Farhang Iran, Multan. The application was allowed on 20th October, 1998. After recording of his statement the accused were examined under section 342, Cr.P.C. and ultimately vide judgment dated 16-12-1998 appellants were found guilty and they were sentenced as under:-- (i) Under sections 302/149, P.P.C. read with section 7 of Anti- Terrorism Act, 1997 to the normal penalty of death on eight counts subject to confirmation by the High Court. They were also directed to pay fine of Rs.1,00,000 each. (ii) Under section 148, P.P.C. sentenced to three years' R.I. (iii) Hafiz Shafique-Rehman was also convicted and sentenced to 10 years' R.I. under section 382, P.P.C. The remaining accused are concerned they were exonerated of the charge as prosecution failed to establish guilt against them. "APPELLATE COURT (A DIVISION BENCH OF LAHORE HIGH COURT, MULTAN) PROCEEDINGS"

11. Appellants preferred Criminal Appeals Nos.57 to 64 of 1998 before learned Lahore High Court, Multan Bench which have been dismissed by the impugned judgment dated 1-3-1999.

12. Appellants preferred Criminal Jail Petitions for Leave to Appeal Nos.56, 58, 60, 63, 65, 69, 70 and 71 of 1999 in this Court. Leave was granted by this Court vide order dated 10th February; 2000 to consider the question of jurisdiction of Special Court Anti-Terrorism, Multan and the points as to whether the principles of safe administration of justice in the criminal cases have been followed in this case while appraising the prosecution evidence as also to find out if the view which found favour with the learned Judges of the Division Bench is in consonance with law as enunciated by this Court in various cases from time to time.

13. Learned counsel for appellants contended that all the appellants have been convicted/sentenced to death on 8 counts under section 7 of the Anti- Terrorism Act, 1997 (hereinafter referred to as the "Act"), without jurisdiction by the Special Court. Because original section 7 was substituted by means of Anti-Terrorism (Amendment) Ordinance (IV of 1999) with effect from 27th April, 1999 according to which for terrorist acts sentence of death has been prescribed, therefore, the appellants were not liable to be convicted under this section as the offence for which they were charged had taken place on 20th February, 1997, therefore, the section being substantive in nature would not have its application with retrospective effect. Learned counsel for the State contended that the objection raised on behalf of appellants has no force in view of the provisions of section 38 of the Act. On having carefully gone through both the provisions i.e. section 7 and section 38 of the Act, we are of the opinion that no prejudice has been caused to the appellants nor the impugned order is without jurisdiction because the appellants have been convicted/sentenced besides under section 7 of the Act under sections 302/149, P.P.C. as well. Presuming for the sake of arguments that they were not liable for conviction/sentence under section 7 of the Act but if the prosecution had succeeded in establishing the offence of murder against them then they would be liable for punishment as provided under section 302, P.P.C.. As the appellants have been sentenced to death for the alleged murder of eight persons, therefore, their such sentence would not be deemed under section 7 of the Act but under section 302, P.P.C. Thus, it is concluded that the Special Judge Anti-Terrorist Court, constituted under the Act has decided instant case with jurisdiction. "REAPPRAISAL (ASSESSMENT OF PROSECUTION EVIDENCE)"

14. Learned counsel for appellants contended that prosecution has miserably failed to bring the guilt home against the convicts by producing trustworthy and convincing evidence. The trial Court as well as Appellate Court mainly relied on ocular testimony of P.W. Ijaz Ahmad (complainant) and accepting his version convicted/sentenced them: As far as the evidence furnished by this witness is concerned it was not worthy of credence because he was a set up witness to whom the prosecution has produced because the incident was unwitnessed and no one amongst the inmates including P.W. Zaheer-ul-Islam (Accountant Khana-e-Farhang) were prepared to substantiate the commission of offence. Inasmuch as the presence of the witnesses at the spot is highly doubtful in view of the facts and circumstances which have come on record during his statement as well as the statements recorded by the other prosecution witnesses including the Investigating Officer coupled with the recoveries as well as identification parade, therefore, the Appellate Court as well as trial Court instead of scrutinizing the evidence of this witness in accordance with recognized principles of reappraisal of evidence available on record took a somersault and just mentioned that he has proved accusations against the culprits. He further contended that although P.Ws. Manzoor Hussain and Syed Allah Diwaya have also been produced as eye-witnesses but their version relating to the happening of incident on 20th February, 1997 has been discarded as neither their statements were discussed nor referred to but at the same time partake of his statement relating to identification of the accused persons in Central Jail Multan, Bahawalpur and Sahiwal was accepted contrary to the principles laid down by the superior Courts for safe administration of justice. He emphasized that Supreme Court normally avoids to undertake exercise of reappraising of evidence but at the same time if justice demands this Court never feel hesitation in scanning the evidence available on record for just decision of the case as it has been held in PLD 1978 SC 298.

15. Mr. Maqbool Ellahi Malik, learned Advocate-General stressed that in cases pertaining to the commission of offences committed in pursuance of terrorism etc. the Court seized with the matter should have a dynamic approach instead of considering as to whether the prosecution has succeeded in fulfilling the intricacies of law has substantially established the accusation against the accused persons in view of overall material available on record and if the Court feels satisfied that no prejudice or injustice .has been caused to the accused facing trial then it may not express reservations in maintaining the convictions/sentences awarded to the convicts for committing brutal, wanton and gruesome crimes of murder, terrorism etc. if the prosecution could not succeed to produce evidence of the standard which is ordinarily required to establish a crime committed in an ordinary way by the accused persons because in such-like cases it is not possible for the agencies to procure direct evidence involving the terrorists in the commission of the charged offences. He placed reliance on the judgments reported in PLD 1995 SC 1, PLD 1996 SC 305, PLD 1998 SC 1445 and an unreported judgment in Criminal Appeal No. 20-J and Murder Reference No. T-161 of 1997 (Mehrum Ali alias Yawar Ali son of Ali Ahmad v. The State).

16. We have carefully gone through voluminous record of the case including the impugned judgment dated 1-3-1999 passed by Lahore High Court as well as judgment dated 16-12-1998 of the trial Court. Before discussing the points put forth by the parties counsel in support of their respective contentions we feel it appropriate to observe that learned Presiding Officer of the trial Court delivered the judgment dated 16-12-1998 contrary to the provisions of section 367, Cr.P.C. Similarly learned Division Bench of the High Court formulated its opinion without discussing the evidence available on record inasmuch as the perusal of appellate judgment suggests that though the judgment of the trial Court has been maintained but entirely on the basis of inconsistent findings on various points. Moreover, both the judgments under scrutiny failed to depict specifically that which portion of the evidence has been discarded and for what reasons and if so then following which principle of law relating to appreciation of evidence.

17. Ordinarily this Court would be chary in reappraisal and assessing the evidence in exercise of jurisdiction conferred upon it under Article 185(2) of the Constitution of Islamic Republic of Pakistan but in view of the importance of the case and for the interest of justice because both the Courts i.e. appellate and trial have failed to appraise the evidence on record and also pronounced judgments contrary to mandatory provisions of law as well as judgments of superior Courts, therefore, we have considered it proper to dispose of the matter on merits after considering the material available on record in view of judgments reported in the cases of Noora and another v. The State (PLD 1973 SC 469) Muhammad Ashraf and another v. The State (PLD 177 SC 538) and Muhammad Aslam and another v. The State (PLD 1978 SC 298). Relevant observations from the case of Noora (supra) are reproduced hereunder for reference:-- "The conclusion, therefore, to which I am driven after the examination of the relevant decisions and the Constitutional provisions relating to the jurisdiction of this Court, is that this Court has every right to examine the evidence in criminal appeal, if it is necessary in the interest of justice. In what circumstances it will do so is a matter on which it is neither possible nor desirable to lay down any hard and fast rule. Each case will have to be judged upon its own facts and circumstances; but, at the same time, I must point out that although under the Constitutional provisions the powers of this Court are in no way fettered, yet from the very nature of things, there must be some difference in its approach towards the cases which come before it directly as an appeal and cases in which leave to appeal has first to be obtained."

18. Adverting towards merits of the case it is to be noted that the prosecution produced following kind of evidence to establish the accusations against the convicts: - (i) Ocular evidence. (ii) Identification of the convicts except Malik Muhammad Ishaque. (iii) Recoveries of incriminating articles. (iv) Medical evidence. (v) Circumstantial evidence. OCULAR EVIDENCE.

19. P.W. Ijaz Ahriad is the star witness of the prosecution and evidence furnished by him according to prosecution case gets corroboration from the ocular testimony of P.W. Manzoor Hussain, Syed Allah Diwaya and Court witness Syed Qalandar Ali. It is important to reiterate known principle of reappraisal of evidence in criminal case namely that if a witness is trustworthy and reliable then conviction can safely be based on his evidence. In view of his evidence but if he is an unreliable witness then it cannot be utilized for the purpose of passing conviction against the accused. However, if the witness has given partially reliable and partially unreliable evidence then applying the device of sifting the grain from chaff and seeking independent corroboration from other reliable evidence on material particulars conviction can be based on it. Thus it would be seen as to whether ocular testimony furnished by the witnesses named hereinabove falls under which category enabling the Court to, decide the matter without departing from the principles of justice notwithstanding the fact whether the Investigating Agency has not adhered to technical and procedural formalities because in cases of terrorism etc. where there is remote possibility to collect direct evidence against culprits, the Court is required to satisfy itself as to whether substantially guilt has been proved against them and without fulfilling procedural formalities whether intrinsic value of the incriminating evidence has been effected or not.

20. P.W. Ijaz Ahmad being foot constable stated before the trial Court that on 20th February, 1997 he was posted as police guard at Khana-e- Farhang, Multan alongwith Rahim Dad, Chowkidar. It was about 12-00 noon when three young boys appeared on the gate of Khana-e-Farhang Iran, and asked Rahim Dad (deceased) to arrange their meeting with Director of Khana-e-Farhang. The witness identified the aforesaid three young persons as "Ghulam Rasool", "Abu Bakar" and "Imran Ashraf", present in the Court. Accused Ghulam Rasool Shah was previous visitor of Khana-e-Farhang. Rahim Dad obtained permission through intercom and sent them inside the building. According to the witness he was not aware as to with whom they wanted to meet or intended to have meeting. He further deposed that after a shortwhile four other young boys arrived there and they started talking with Rahim Dad. The witness identified those 4 young boys as "Abdul Hanan", and "Muhammad Yousuf" who was armed with Kalashnikov, "Zubair Khan" and "Shafique-ur-Rehman". He further stated that Abdul Hanan accused had thrown grinded chillies on his face. While these four accused was (were) busy talking with Rahim Dad he heard fire-shots from inside the building. All of a sudden Abdul Hanan accused threw chillies on his face. Rahim Dad tried to run when Muhammad Yousuf accused fired at him with Kalashnikov (emphasis provided). He tried to aim his rifle but accused Abdul Hanan caught hold of him. Accused Shafique snatched his rifle. The remaining accused who were armed with pistols gave threats of dire consequences to him. He became helpless. During this period firing continued inside the building. The aforesaid three accused came outside the building having pistols in their hands. They joined their remaining four accused and went outside on the road where a carry van, a Potohar and 'a motorcycle were parked. There were other persons also present at the road who were companions of the said assailants. They all boarded the aforesaid vehicles and left the place of occurrence. He raised hue and cry which attracted Khalid Mehmood and Khurshid Ahmad, Constable (not produced) who also saw them while leaving the place of occurrence. As per version of the witness he entered in the main building and found Rasool Bakhsh electrician in injured condition while Rahim Dad, Habib, Faqir Muhammad, Dildar Hussain, Director Syed Agha Muhammad Ali Rahimi, Nizam Din and Safdar had succumbed to the injuries. The accused had taken away his service rifle. The S.H.O. (P.W. Muhammad Nausherwan) arrived at the place of occurrence who recorded his statement Exh. P/Q. It was read over to him and he signed the same in token of its correctness. The witness joined the investigation of the case on the same day i.e. 20-2-1997 in his presence the Investigating Officer secured blood-stained earth from underneath the dead bodies and sealed the same into parcels vide recovery memos. Exhs.PR, PS, PT, PU, PV, PW and PX respectively. In his presence the Investigating Officer also secured crime empties from different places P.43/1-13 and sealed them into a parcel vide memo Exh.PY. He also stood witness for the recovery of bullet lead i.e. P.44/1-3 which were sealed into parcel vide recovery memo. Exh.PZ. A curtain Exh.P.46 was also taken into possession in his presence by the Investigating Officer vide memo. Exh.PAA. The witness further stated that on the same day S.-I. Faiz Rasool produced last worn clothes of deceased Faqir Muhammad i.e. shirt P.40, Shalwar P.41 and a sealed bottle P.42 and secured these articles vide memo. Exh.PP attested by him. The witness also joined identification test parade in District Jail, Multan on 15th September, 1997 where he identified appellants Ghulam Rasool Shah, Shafique- ur-Rehman and Abdul Hanan and as per his version during the process of identification parade he also disclosed the role of each of the accused before the Magistrate played by them at the time of occurrence. Again on 27th September, 1997 he attended identification test parade in Central Jail, Bahawalpur held under the supervision of a Magistrate he identified Abu Bakar, Zubair and Muhammad Yousuf and also narrated their roles at the time of the occurrence. Appellant Imran Ashraf was identified by him in Central Jail, Sahiwal and he also narrated his role at the time of commission of the offence.

21. Learned counsel for the appellants objected on admissibility of evidence furnished by him. According to him the story narrated by the witness his examination-in-chief is self-contradictory because if appellant Abdul Hanan had thrown chillies powder on his face then it must have affected his eyes as well due to which it was impossible for him to see around then how it was possible for him to have identified all the accused to whom allegedly he had seen running away in the vehicles after completion of the crime. In addition to it, if due to throwing chillies powder on his face he must have borne resistance in his eyes, therefore, it was not possible for him to stay on the spot as an associate of P.W. Muhammad Nausherwan Investigating Officer at the investigation of the case, during which he prepared inquest reports of dead bodies, dispatching them to hospital, securing incriminating articles including blood-stained earth underneath the dead bodies, collecting of crime empties, preparing of their parcels as well as memos attested by the witness, preparation of site plan as well as recording of statements of the witnesses at the spot on the said date etc. According to learned counsel the important aspect of the case which goes to negate his presence at the spot is that the uniform of the witness which must have smeared with chillies powder was not taken into possession nor chillies powder was collected from the place where he was posted on duty. Besides above the witness was not subjected to medical examination to prove the story of throwing chillies on his face because statement of injuries in his eyes as well as bruises on his left hand was prepared on 24th February, 1997, and therefore, he was referred for medical opinion to hospital where he was medically examined by P.W. Dr. Syed Raza Mohiuddin and he issued medical certificate Exh.P.BB.

22. Learned State Counsel contradicted the arguments of appellants' Advocate and contended that the presence of P.W. Ijaz Ahmad cannot be doubted for the reasons advanced by him because there is no denial of the fact that he being a constable was on guard duty at Khana-e-Farhang and his presence at the spot can also not be objected to for being incapacitated to see around because chillies powder was thrown on his face. According to learned counsel in such situation congestion remain in the eyes for temporary period and in the meanwhile affected person gains normalcy in his vision.

23. P.W. Dr. Syed Raza Mohiuddin, Senior Officer, Civil Hospital Multan conducted medico-legal examination of P.W. Ijaz Ahmad on 24th February, 1997 at 8-00 a.m. He noticed following injuries on his person:

"(1) Left eye congested. Subcinguctibal haemorrhage was present. Examinee complained of blurring of vision on left side. (2) Multiple abrasion (five in number) in an area 6 c.m. is 4 c.m. on back of let hand at the base of thumb and index finger. Seal formation was present. It is an admitted position that Dr. Syed Raza Mohiuddin is not an Eye Specialist. However, when confronted with the certificate (report) Exh.P.BB/A he admitted that there is no mention of any injury pertaining to eye. As far as injury No. l reproduced hereinabove is concerned he stated that it could be caused by any blunt object and even by finger if put forcibly. He also stated that he had not reported any remnants of chillies powder in the eyes of Ijaz Ahmad. In respect of injury No.2 he also stated that possibility regarding injury No.2 cannot be ruled out as being self-suffered. Voluntarily stated that this possibility is very remote. The damage of this injury was extremely superficial in nature. The witness further explained that since the injury No. l was the result of congestion, therefore, no duration can be measured. It is not understandable that if P. W. Ijaz Ahmad had suffered an injury in his eyes due to throwing of chillies powder on his face on the day of incident then what prevented the Investigating Officer for not referring him immediately to the hospital for obtaining expert opinion in this behalf. At this juncture it would not be out of place to note here that the defence has raised a serious objection concerning registration of the case on 20th February, 1997. It is their version that the incident was an unwitnessed one and the inmates of Khana-e-Farhang particularly P. W. Zaheer-ul-Islam were not coming forward to narrate the actual story, therefore, the F.I.R. was lodged with considerable delay on 23rd/24th February, 1997 but to cover the delay in registration of case the story of throwing chillies powder on the face of P.W. Ijaz Ahmad was concocted inasmuch as the stand taken by the prosecution has not been substantiated that the witness was posted on guard duty at the relevant time. The prosecution did not produce duty, roster showing the names of all the guards posted at Khana-e-Farhand alongwith their complete details. Subsequently to cover this aspect of the case it was alleged that P. W. Ijaz Ahmad had a 9-MM rifle fully loaded with 20 bullets which was snatched by one of the assailants and to strengthen this argument prosecution had shown the recovery of the rifle from a street in Bakra Mandi on the day of incident i.e. 20th February, 1997 whereas recovery of its magazine was effected on 11th March, 1997 from the same place i.e. Bakra Mandi lying in a surface drain at a distance of 15 feet away from where the rifle was recovered. No evidence was produced that as to whether the service rifle 9-MM was at all issued either in the name of P. W. Ijaz Ahmad or for the guard of Khana-e-Farhang. Neither in this behalf any document has been produced nor the incharge of the guard namely Badar-ul-Islam or any of the other witnesses particularly named in the Fard-e-Bayan Exh.PQ i.e. Khalid Mehmood and Khurshid Ahmad came forward to establish that this rifle was entrusted to P. W. Ijaz Ahmad and at the relevant time he was present on duty. We would take into consideration this aspect subsequently while dealing with the injuries allegedly received by P. W. Ijaz Ahmad but we consider it appropriate at this stage to make reference to the memo. Exh.P.BB/A written by P.W. Muhammad Nausherwan Investigating Officer to the Medical Officer for medico-legal examination of the witness. It my be seen the initially 20th. February, 1997 was written as the date on this document but subsequently 20th was changed and it was made to be 24th. This manipulation on the Fard is very much visible. The contents of the letter reveal that reference for medico-legal examination was made to examine the eyes because on the-day of incident the accused persons have thrown chilies powder in his eyes and also to examine the injuries which he received during the scuffle. It is also to be noted that Fard-e-Bayan Exh, PQ does not find mention that he (Ijaz Ahmad) received injuries on his left hand as well. A careful perusal of the medical examination further suggest that P.W. Dr. Syed Raza Mohiuddin had not given opinion that the eyes of the witness were found congested because of chillies thrown in them as alleged by the witness. To the contrary he agreed with the suggestion that the injuries in his eyes may be caused by any blunt object or even by finger. Above all he did not disclose duration of the injuries, therefore, safely it can be held that attempt made by the prosecution to procure the medical opinion to support he plea of throwing chillies in his eyes failed to succeed. In addition to it, injury No.2 noted hereinabove was also found to be result of any hard object and possibility of its being self-suffered was also not overruled by the doctor. As far as this injury is concerned it, was not disclosed by the witness in Fard-e-Bayan Exh.PQ as well as in his examination-in-chief before the trial Court. The medical examination of the witness on 4th day of the occurrence without offering any plausible explanation as to why arrangements were not made for getting him examined soon after the incident creates a condition where his presence at the spot can be doubted. This argument gets reinforcement from the statement of P.W. Mirza Maqbool Ahmad who deposed in cross-examination that "I have gone through the police file, dated 20-2-1997 and 21-2--1997. I did not see P.W. Ijaz Ahmad in an injured condition nor such fact is mentioned in the police file recorded by me". This lapse on the part of the prosecution though is very glaring but to avoid the technicalities one might have ignored it provided the prosecution had collected remnant of chillies powder from the uniform (clothes) of the witness where it have sprinkled to justify the plea but non -attending this aspect of the investigation the prosecution cannot claim any concession. The concealment of injury No.2 as well in the complaint as well Court statement has also created a circumstance to doubt the truthfulness of his testimony.

24. In this sequence it is pertinent to mention as to whether P.W. Ijaz Ahmad was posted on the guard, duty of Khana-e-Farhang alongwith other members of the force at the time of the incident. The defence specifically took the plea during his cross-examination that he was not present at the spot and he was set up as a witness being a member of Fiqa-e-Jaffaria. Suggestion was denied to be correct by the witness with the explanation that he was performing his duties at the place of occurrence 10/12 days prior to the occurrence. Before that he was performing duty at the place of occurrence. He also admitted that Investigating Officer (P.W. Muhammad Nausherwan) did not obtain his Duty Roster to verify about his duty in the Irani Centre. P.W. Muhammad Nausherwan has also not produced any such material on record to establish that at the relevant time P.W. Ijaz Ahmad was on Sentry duty. Although he has categorically stated that the, instant case was registered after due deliberations on 23rd February, 1997. In such view of allegation it was incumbent upon him to have rendered in his statement the Duty Roster or alternatively he may have produced Badur-ul-Islam who according to him was the Incharge of the Guard. In complaint Exh.P/Q. P.W. Ijaz Ahmad got mentioned that P.Ws. Khalid Mehmood and Khurshid Ahmad, Police Constables (not produced) had also seen the accused persons while running away after commission of the crime. Perusal of certain documents available on record reveal that one of them i.e. Khalid Mehmood was also posted at Khana-e-Farhang. To further ascertain whether P.W. Ijaz Ahmad was at all present on his duty at the spot reference can be made to Chapter XVIII, Rule 18.5(2) of the Police Rules, 1934, according to which Sentries and the next relief for duty shall be in uniform and accoutered day and night. During the day the next relief for duty shall sit outside the guard-room near the Sentry. Whereas according to its sub-rule (3) the Officer in command of the guard shall remain in uniform for two hours before dark every day and shall during this time post and relieve all sentries himself. At other hours, the sentries shall be relieved by the police officers next for relief without the intervention of the officer in command who shall, however, visit his sentries at least four times during the hours between reveille and retreat and once between each relief during the night. When visiting the officer in command shall he in uniform and accoutered. It may be noted that in the instant matter the prosecution case is that about one month before the untoward incident a similar type of sectarian incident took place at Lahore in which about 22/23 persons lost their lives besides a good number of persons who received injuries. Therefore, in such like prevailing situation it was all the more necessary for the guard posted at Khana-e-Farhang to adhere to the Police Rules strictly in order to avoid any other incident. As far as Badur-ul-Islam is concerned his presence was also shown in the unscaled site plan Exh.PRR but he was also not produced to establish the presence of P.W. Ijaz Ahmad at the time of occurrence. It may be clarified here that as per statement of P.W. Muhammad Nausherwan Investigating Officer Badur-ul-Islam was the Incharge of the guard whereas Mirza Maqbool Baig, DSP/SDPO, Kotwali Circle Multan deposed that according to his investigation Head Constable Abdul Salam, Incharge Police Guard, was present in the building of the occurrence. In the same sequel there is yet another important piece of material on record namely the recovery of 9-MM Rifle No.28 MNP Serial No.A 42829 from Bakra Mandi, Multan. City. It is the version of the prosecution that P.W. Ijaz Ahmad being on guard duty at the time of incident was armed with 9-MM Rifle fully-loaded. The assailants to make him helpless snatched the rifle it from him and while decamping it was thrown in the street which was recovered by P.W. Muhammad Nausherwan vide recovery memo. Exh.PL. He also prepared the site plan Exh.PL/1 of the place from where it was taken into possession on the day of the incident. The Investigating Officer also deposed that on 9th March, 1997 he recovered magazine P/38 from the vicinity of Bakra Mandi Multan City vide Exh.PN. Whereas according to memo. its recovery was effected on 11th March, 1997 from a drain. The manner in which the recovery of rifle and its magazine with the intervals of about 20 days from the recovery of each other appears to be suspected because how it is possible that police found the rifle lying either in the street or in ~ the drain openly in the area which is situated near a thoroughfare and from the same vicinity the magazine was recovered after about 20 days and no one has removed it particularly when the street and the drains are cleansed oftenly. Thus we are of the opinion that to justify presence of P.W. Ijaz Ahmad at Khana-e-Farhang story of snatching service rifle from him at the time of occurrence was introduced. But the prosecution failed to substantiate its version by producing convincing evidence like register of distribution of arms and ammunition maintained by the incharge of the Kot as provided by Rule 6.8, Chapter VI of Police Rules, 1934 pertaining to distribution of arms. P.W. Ijaz Ahmad in cross-examination could not tell the date when this rifle was issued to him. He also admitted that 9-MM Rifle was never shown to him during the course of investigation. According to him only 20 bullets and a magazine was issued by the department. He further stated that these bullets and the Magazine were never produced or taken into possession in his presence during the course of investigation. He also deposed that Rifle 9-MM was fully automatic and was loaded with 20 bullets. P.W. Muhammad Nausherwan admitted the contents of application filed by him for physical remand of one of the appellants Abdul Hanan; dated 22nd February, 1997 Exh.DL wherein concerned Magistrate was requested to grant his remand for the recovery of illicit arms and ammunition as well as 9-MM Service Rifle. The request was acceded to and accused was remanded to police custody up to 7th March, 1997. However, the question for consideration is as to whether on 20th February, 1997 the recovery of 9-MM Rifle was shown fictitiously or what was the reason to prevent real truth to come on record. It may also be observed that as per examination-in-chief of P.W. Ijaz Ahmad appellant Abdul Hanan (to whom he has identified in an identification parade subsequently) had thrown grinded chillies on his face whereas accused Shafique snatched his rifle. The admission of glaring contradiction by P.W. Muhammad Nausherwan concerning the recovery of 9-MM Service Rifle either on 20th February, 1997 or subsequent to 22nd February, 1997 from the possession of Abdul Hanan provides a substantial support to the defence plea relating to fabricating evidence of snatching 9-MM Rifle from P.W. Ijaz Ahmad on the day of incident. In this context it may also be seen that version of P.W. Ijaz Ahmad that he was present on guard duty at Khana-e-Farhang with fully loaded 9-MM Service Rifle having 20 bullets in its magazine when the culprits reached on the gate and to overpower him one of them has thrown chillies powder on his face whereas the other accused appellant Muhammad Yousuf (identified after his arrest by the witness) fired at Chowkidar Rahim Dad who tried to run away seems to be against the human conduct and appears to be improbable. It has been noted in number of criminal cases that the assailants always make first attempt .to render helpless to the person confronted with him or them if he is equipped to be equipped with arms and ammunition to prevent any reaction from his die instead of gunning down the person who is empty-handed. Undoubtedly it is always for the accused to select his target but normally accused makes, attempt on the person from whom he apprehends danger to his life because he has a lethal weapon with him. Thus, if viewed from this angle as well one feels convinced to disagree with said version of the prosecution.

25. From the side of the prosecution it is argued that the incident took place on 20th February, 1997 at 12-00 noon whereas after recording complaint Exh.PQ at the spot by P.W. Muhammad Nausherwan, he dispatched the same through Constable Muhammad Jamil for registration of the case. Accordingly at 12.45 p.m. case was registered at the police station, therefore, presence of P.W. Ijaz Ahmad at the place of Wardat cannot be questioned. In our opinion on careful consideration probably this version is not acceptable to be true as a whole because admittedly 4th copy of the F.I.R. which was required to be supplied to the complainant as per Rule 24.5 of Chapter 24 of Police Rules, 1934 has been undelivered to him in Police Lines on 23rd February, 1997 whereas in F.I.R. Ezh.PQ/l. it is stated that the F.I.R. has been sent for delivery to the complainant. This fact is admitted by P.W. Ijaz Ahmad himself during his cross-examination but no explanation has been offered by the prosecution to canvass that what was the reason for delivering copy of the same to him on the said date. Experience tells us that whenever an offence cognizable by police is reported to it under section 154, Cr.P.C. no promptness is shown in lodging the report without causing delay with the result that at the stage of trial the prosecution and the complainant party suffer a great deal of difficulty in offering explanation for non- registration of the case just after its reporting to the police. Section 154, Cr.P.C lays down procedure for registration of an information in cognizable cases .and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the Investigating Agency in completing the process of investigation expeditiously. Any slackness or lukewarm attitude by the registering authority of FI.R. in fact intend to help the accused involved in the commission of the offence. Thus, it is advisable that the provision's of section 154 Cr.P.C. read with Rule 24.5 (c) of the Police Rules, 1934 be adhered to strictly. There should not be any negligence in recording the of F.I.R. and supplying copies to concerned quarters because departure from the mandatory provision of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in F.I.R. As it has been observed hereinabove that in instant case the prosecution remained under serious criticism by the defence even on the question of promptly lodging of F.I.R. The defence case is that the incident had not taken place in the manner as it is being put forward by the prosecution. Therefore, after deliberation and consultation F.I.R. was registered on 23rd February, 1997 when 4th copy was delivered to the complainant and on the following day i.e. 24th February, 1997 he was referred for medico-legal examination to establish that P.W. Ijaz Ahmad was present at the time when incident took place. Manipulation in the date mentioned in letter Exh.PBB in pursuance whereof P.W. Ijaz Ahmad was sent to hospital and non-registration of the case for the above reasons coupled with the story of snatching 9-MM Service Rifle from P.W. Ijaz Ahmad reflect adversely against the prosecution and creates strong reasons to doubt the manner in which happening of the incident has been disclosed.

26. The presence of P.W. Ijaz Ahmad at the scene of occurrence can also be considered by making reference to site plan Exh. PRR prepared by P.W. Muhammad Nausherwan Investigating Officer soon after reaching/ Khana-e-Farhang because if P.W. Ijaz Ahmad was really present on guard duty then except him no one else can guide the Investigating Officer to prepare the site plan as well as to inspect place of Wardat. P.W. Muhammad Nausherwan stated that he prepared site plan (Exh.PRR) without scale at the place of occurrence. The witness has however, not deposed that on whose pointation it was prepared. The study of site plan also suggests that it was not prepared by the Investigating Officer at the instance of P.W. Ijaz Ahmad. The preparation of the first site plan immediately after the happening was one of the most important aspect of the investigation of the case. Surprisingly instead of showing P.W. Ijaz Ahmad as witness at the site plan his presence has been shown on the other documents including recovery memos etc. Therefore, the prosecution was under obligation that if his presence can be shown on these documents then what was the reason for not preparing the site plan at his pointation. Subsequently on 21st February, 1997 the Investigating Agency statedly got prepared scaled site plan Exh.PA, Exh. PA/1 and Exh.PA/2 but again without showing that the site plans were prepared at the pointation of P.W. Ijaz Ahmad. However in cross -examination P.W. Irfan Hayat who prepared the site plan stated that S.H.O. told him about the complainant that he is Ijaz Ahmad. The examination-in- chief and cross-examination of P.W. Irfan Hayat does not indicate as to whether on the pointation of Ijaz Ahmad scaled site plan was prepared. To the contrary the witness stated that S.H.O. had pointed out all the points Nos. l to 11 which were written by him with black ink. He also admitted that he consulted the S.H.O. regarding point No.1 before final preparation of Exh.PA, Exh.PA/1 and Exh.PA/2. We are conscious of the fact that as far as site plan is concerned it has no evidentiary value but its importance can also not be denied to determine the location of the incident as well as the position of the witnesses particularly in those matters where presence or otherwise of the witnesses has been challenged. Reference may be made to 1997 SCMR

89. On the question of non-preparation of a site plan at the pointation of a witness this Court has held' in the case of Gul Mir v. The State (PLD 1980 SC 185) that if it was not prepared on the pointation of a witness it will loose its evidentiary value. Thus, inference would be that original site plan Exh.PRR was not prepared on the indication of P.W. Ijaz Ahmad for no other reason except that he was not present at the site when the incident took place. In this very context it is also to be observed that in the recovery memo. Exh.PAA of 13 empties Articles P.43/1-13 it has not been indicated that on whose pointation and from which places these articles were taken into possession. However, we are of the opinion that to further clarify the manner in which the incident took place these recoveries should have been made at the pointation of P.W. Ijaz Ahmad by preparing separate memos. for taking these incriminating articles into possession. Thus, seen the case of prosecution even in broad spectrum leaving aside all technicalities still prosecution failed to offer satisfactory explanation whether P.W. Ijaz Ahmad was present at Khana-e-Farhang when incident took place.

27. Besides the discrepancies noted hereinabove in the statement of P.W. Ijaz Ahmad yet another attempt can be made to adjudge the truthfulness or otherwise of his evidence on merits to ascertain whether evidence furnished by him has any intrinsic value independent of technicalities for bringing the guilt home against assailants or not. In this context reference to his cross-examination would be essential to see whether he stood to its test or not. Simultaneously it is to be noted that he was examined thrice by the police initially when on 20th February, 1997 his first statement was recorded as complaint Exh.PQ (incorporated in F.I.R. Exh.PQ/1) whereas his second statement under section 161, Cr.P.C. Exh.DD) was recorded on 1st March, 1997. In the Fard-e-Bayan (Exh.P/Q) the witness has, given the features of the assailants who approached in Khana -e-Farhang in two groups consisting of 3 + 4 members each on the day of incident. These two groups of the assailants reached Khana-e-Farhang one after the other out of which the first group comprising three persons entered inside the building after seeking permission from Rahim Dad deceased (Chowkidar) whereas the second group of 4 persons came there after a while because during identification parade he statedly identified correctly all the assailants, therefore, he disclosed the names of the members of the first group as "Ghulam Rasool, Abu Bakar and Imran Ashraf". in respect of Ghulam Rasool Shah he deposed that he was a previous visitor of Khana-e- Farhang. As far as the second group is concerned their names were disclosed by him to be Abdul Hanan who has thrown grinded chillies powder on his face, Muhammad Yousuf armed with Kalashnikov, Zubair Khan and Shafique-ur-Rehman. As the witness has not seen the incident which took place inside the building of Khana-e-Farhang, therefore, no criminal overt act regarding the members of the first group if committed by them in the building were disclosed. However, as far as remaining accused persons who were present outside the building he deposed that appellant Abdul Hanan has thrown grinded chillies on his face whereas appellant Yousuf fired on Chowkidar with Kalashnikov and when he aimed his rifle appellant Abdul Hanan caught hold of him and appellant Shafique-ur-Rehman snatched his service rifle whereas remaining accused who were armed with pistols issued threats of dire consequences to him. After the firing the members of the first group who have entered inside the building came out having pistols in their hands and then all of them went outside on the road where a carry van, a Potohar Jeep and motorcycle were parked. As per his further version there were other persons also present at the road and they were companions of the assailants and then they all boarded the aforesaid vehicles and left the place of occurrence. He raised hue and cry, which attracted Khalid Mehmood, and Khurshid Ahmad, Constables who also saw them while leaving the place of occurrence. The witness was confronted with his previous statement, dated 1st March, 1997 in cross-examination and it was marked as Exh.DD. In police statement (Exh.DD) the witness had deposed that he identified Abdul Hanan who was under arrest and he committed the murder of Rahim Dad by firing with Kalashnikov. However, he denied making of such statement by uttering that his statement is based on falsehood. Volunteered I never gave such statement before the Investigating Officer Confronted with such portion "A to A" where the role of Abdul Hanan is mentioned. P.W. Muhammad Nausherwan ascribe of Exh.DD when confronted with it, he admitted it to be correct carbon copy of the statement of Ijaz Ahmad No.2260, the first informant. The Investigating Officer further deposed that "except the statement of Ijaz Ahmad P.W. Exh.DD he could not collect any evidence against accused Abdul Hanan to be responsible for the murder of Rahim Dad deceased. As far as P.W. Ijaz Ahmad's third statement before the Investigating Officer is concerned though he was confronted with it as well but its reference cannot be made because it was not got proved from the officer who has written it. However, from the statement of P.W. Ijaz Ahmad which he has given in the Court and earlier statement (Exh.DD) it is established that he has falsely deposed before the Court that convict Abdul Hanan has thrown chillies on his face whereas convict Muhammad Yousuf fired upon Rahim Dad Chowkidar. Thus, both the versions being contradictory are not reconcilable. As it has been discussed hereinabove that if P.W. Ijaz Ahmad had a loaded rifle in his possession and the murder of Chowkidar. Rahim Dad was being committed in his presence by any of the assailants then what prevented him from opening fire in discharge of his duties. Moreover the assailants had no danger from Rahim Dad, Chowkidar who was empty-handed whereas supposedly if they were seeing that there is a constable who had a rifle in his hand then instead of targeting Rahim Dad they would have obviously fired at the constable to pave safe way to go inside the building or to eliminate the obstacle from the way of their co-assailants who have already entered inside the building. It is equally important to note that there was a Reception Room before entering into the main building of Khana-e-Farhang. Such offices are maintained to record the particulars of the visitors if they are allowed to enter inside the building particularly in those organizations where the security arrangements are beefed up for any convincing reason. Surprisingly no record was produced to prove details of the members of the first group who were allowed to meet with the Director of Khana-e-Farhang, to ascertain that whether they made entry inside forcibly or with the permission of the inmates and if one of the three members was a previous visitor of Khana-e -Farhang then what particulars including his name was got entered by him in the register we are confident that in the premises which are considered to be sensitive from security point of view free entry to the outsider is not allowed just on request that they want to meet with a particular person. In addition to it in such-like institutions security measures are followed strictly because as per prosecution case some times before the happening of this incident, an incident of murder on sectarian considerations had taken place in the premises of Sessions Court, Lahore. This aspect of the case persuades us to draw inference that P.W. Ijaz Ahmad was not present on duty being guard sentry with the result that some of the assailants made forcible entry after overpowering the Chowkidar by adopting such device that the inmates could not know that what is happening on the gate and who has entered inside the building for the commission of the offence. Because if P.W. Ijaz Ahmad had fired a single bullet it was sufficient to attract outsiders to intervene due to which escape of some of the accused after commission of the offence could have been made impossible. The witness has also stated that on account of his hue and cry P.W. Khalid Mehmood and Khurshid Ahmad Constables (not produced) were attracted and they had seen the assailants fleeing away. This portion of his statement has not been proved because both these witnesses who also belong to Police Department did not appear to corroborate his version. Thus, safely it can be concluded that because P. W. Ijaz Alim ad did not show any resistance as he was not present on the gate, therefore, assailants after commission of the offence successfully made their escape good and he was subsequently set up as a witness by the prosecution to take the stand that the offence was committed in his presence. P.W. Ijaz Ahmad was statedly remained P.W. Muhammad Nausherwan for 3 to 4 hours during investigation. This version of the witness seems to be incorrect in view of the prosecution evidence produced through P.W. Dr. Raza Mohiuddin who filed medical certificate of the witness Exh. PBB/A because if till 4th day of incident there was congestion in the eyes of the witness then how it was possible for him to remain associated with the Investigating Officer for 3/4 hours. P.W. Ijaz Ahmad that has also stated that when the accused persons successfully made their escape good he went out of gate of Khana-e-Farhang and saw that culprits boarded carry van, Potohar Jeep and a motorcycle and left place of incident. In cross-examination he admitted that he did not mention in Exh. PQ that apart from abovementioned seven accused their other companions were also present near the vehicles on the road. Then he stated that he did not go out from the main gate. The main gate remained shut during the entire occurrence and the accused managed to escape through the small gate affixed in the main gate. Perusal of site plan Exh. PRR indicates that there was no small gate fitted in the main gate of the building. Again he stated that he did not go outside himself. Voluntarily stated that he peeped through the small door. He further stated that he came out of the main gate through small door, again said he only peeped through the small door. Once again maintained that he took one step outside the gate. Therefore from contradictory stand of the witness an inference can be drawn that he had been changing his stand just to persuade the Court to believe that he was present at the spot at the time of incident but he miserably failed to do so. There are so many other legal flaws in the statement of P. W. Ijaz Ahmad which will be discussed later under the subject of re-identification of the accused through him.

28. The reappraisal of the statement of P.W. Ijaz Ahmad made hereinabove so far leads us to draw an inference that evidence furnished by him suffers from inherent improbabilities, improvements and contradictions which are sufficient to discard his evidence but for safe administration of justice we thought it proper to examine other ocular witnesses keeping in view importance of the matter where eight persons have been murdered and capital sentence has been awarded to present appellants by the trial Court and confirmed by the First Appellate Court mainly placing reliance on his ocular testimony.

29. As per complaint (Exh. PQ) (F. I. R. Exh. PQ/ 1) two other constables namely Khalid Mehmood and Khurshid Ahmad (not produced) have also seen the assailants running away after the commission of the offence whereas in the site plan Exh.PRR the name of another police official Badur-ul-Islam, Head Constable was mentioned to be the witness of the incident but no one amongst them was produced during the trial. Contrary to it they were given up being unnecessary as per statement of Prosecutor filed by him in trial Court on 4th June, 1998. Surprisingly two other persons whose statement will be discussed hereinbelow were shown to be the eye-witnesses although their presence was not acknowledged by P.W. Ijaz Ahmad or P.Ws. Muhammad Nausherwan and Mirza Maqbool Baig. 29-A. P.Ws. Manzoor Hussain and Syed Allah Diwaya were produced as eye-witnesses. At this stage it may be noted that as per version of P.W. Muhammad Nausherwan Investigating Officer he marked attendance of 18 persons who were present when he reached at the place of incident after receiving the information. The names of both these- witnesses namely Manzoor Hussain and Syed Allah Diwaya were not mentioned inasmuch as P.W. Muhammad Nausherwan, Investigating Officer in cross-examination admitted that according to his investigation there are only two persons namely Ijaz Ahmad and Badur-ul-Islam, Head Constable who had witnessed the occurrence. He further stated that Head Constable was Incharge of the Guard stationed at Khana-e-Farhang. According to his investigation none from the employees of Khan-e-Farhang had witnessed the occurrence. It may be noted here that one of the employee of Khana-e-Farhang namely P.W. Zaheer-ul-Islam was present inside the building when the incident took place but he did not come forward to support the prosecution case. Similarly P.W. Mirza Maqbool Baig, D.S.P., C.I.A. in cross-examination stated that during his investigation none from public had appeared who could name any of the present accused as assailants or abettors in absentia. 29-B. As per statement of P.W. Sadat Mehdi, Inspector/S.H.O. the name of P.W. Manzoor Hussain was mentioned by him for the first time in the list of witnesses filed along with challan dated 27-10-1997 when he agreed to make statement against appellant Malik Muhammad Ishaque. Voluntarily stated that the witnesses were terrified and afraid of the accused. Perusal of calendar of witnesses attached with the challan dated 27th October, 1997 also indicates that the name of P.W. Syed Allah Diwaya was inserted for the first time in the calendar of witnesses attached with interim challans number of which is stated to be

7. Learned State Counsel argued that as per evidence of P.W. Muhammad Nausherwan Investigating Officer when he marked the attendance of 18 persons present at the spot names of both these witnesses were not included because they reported in the evening time, therefore, on that very day i.e. 20th February, 1997 their statements under section 161 CrPC were recorded. Photostat copies of their such statements are available on record. In our considered opinion the prosecution's stand in this behalf appears to be self-contradictory. If we accept the version of learned State Counsel that Manzoor Hussain and Syed Allah Diwaya were examined on the day of incident Le. 20th February, 1997 then it would mean that P.W. Muhammad Nausherwan and other successor Investigating Officers including P. W. Sadat Mehdi have made false statements before the Court. Suffice it to observe that if both these witnesses have contacted the police in the evening of the day of incident then as to why their names were not mentioned in the calendar of witnesses attached with the challans submitted from 6th April, 1997 to onward up to 27th October, 1997 when for the first time their names appeared in the list of witnesses attached with the last-mentioned challan.

30. Because the prosecution claims that P. W. Manzoor Hussain and Syed Allah Diwaya are eye-witnesses whereas the defence claims that they were also set up witnesses of the incident, therefore, it is necessary to examine the impact of recording of evidence of the witnesses who claim themselves to be the eye-witnesses. This Court has already held in 1993 SCMR 550 and 1995 SCMR. 127 that if no plausible explanation is offered by prosecution to record the statement of eye-witnesses immediately after the registration of the case then the evidence of such witness becomes incredible. This question can be examined from another view-point that F.I.R. was not registered with promptitude because it does not contain the name of the accused and witness then the conclusion could be that lodging of F.I.R. was delayed purposely because in the meanwhile consultation and deliberation had taken place to involve the accused persons at the behest of the complainant and also to set up witnesses to support them. As has been observed hereinabove the lodging of F.I.R. with promptitude has been seriously objected to, as according to the defence version no F.I.R. was lodged on the day of incident because no witness who had seen the incident was available, therefore, in the meanwhile after fabricating the evidence case was registered on 23rd February, 1997 in which besides the complainant names of two other persons namely Khalid Mehmood and Khurshid Ahmad, Constables (not examined) were mentioned but when the prosecution sniffed that they are not supporting the prosecution case they introduced P. Ws. Manzoor Hussain and Syed Allah Diwaya stamping them to be the eye witnesses. The objection so raised carries weight because inclusion of names of these two witnesses for the first time in the calendar of witnesses attached with challan dated 27th October, 1997 they were never examined by the police inasmuch as per record Investigating Officer Sadat Mehdi during his examination-in-chief stated that the statements of these two witnesses were not recorded. Thus it is not understandable as to how the prosecution managed to get their statements recorded under section 161, Cr.P.C. on 20th February, 1997. Photostat copies of which have been placed on record.

31. Learned trial and Appellate Courts without assigning any cogent reasons partially discarded the evidence of these two witnesses i.e. their depositions were accepted to the extent of identifying the accused but were not considered as far as their testimony relating to happening of the incident. It is to be observed that in criminal administration of justice it is the duty of the Court to evaluate the evidence available on record as a whole notwithstanding the fact whether the benefit of the same will go to defence instead to prosecution. It is also the duty of the Court seized with the matter to consider the cumulative effect of total evidence and not to consider it in isolation during the process of assessing its evidentiary value as it has been held by this Court in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) and Mst. Razia Regum v. Hijrayat Ali and 3 others (PLD 1976 SC 44).

32. Perusal of the statement of P.W. Manzoor Hussain and Syed Allah Diwaya reveal that they were the chance witnesses because as per the version of the former, on the day of incident i.e. 20th February, 1997 he was proceeding from Octroi No.9 after obtaining money from a person and arrived at a Tikka shop opposite to Khana-e-Farhng. It was at 11-00/12-00 noon. He asked for a glass of water from the said shop. He was given a glass of water and then he sat on a stool lying in front of the said shop. As far as latter is concerned he deposed -that on the said date he went to Khana-e -Farhang to get a Visa for the Holy places in Iran, Syria etc. It was at about 10-30 when he arrived at the gate of Khana-e-Farhang where a Chowkidar was present at the gate. He told him that since the concerned clerk was not present, therefore, he directed him to wait for him. I then sat at the shop in front of Khana-e-Farhang. Another person was also sitting at that shop whom he did not know previously. That man inquired from him and he told him the purpose of his visit. According to his version it was about 11-40/12-00 noon when two persons riding on the motorcycle came there. One of the person riding on the motorcycle went inside Khana-e-Farhang and the other remained standing with the motorcycle. Both of them have failed to establish their object of visiting the place of incident because firstly as per the site plan Exh.PRR there is no Tikka shops situated in front of Khana-e-Farhang; and secondly the former did not disclose the particulars of the person from whom he had to take the money and in which area from the side of Octroi No. 9 he met with him. Similarly the later witness in cross-examination admitted that he thereafter never visited Khana-e-Farhang to contact the said clerk for obtaining visa of Iran for visiting Holy places inasmuch as neither the passport or the application for getting the visa was got exhibited in order to establish his presence. The presence of both the witnesses also become doubtful because they had not stated that as to whether at the relevant time when they were present in front of Khan-e-Farhang a police constable (P.W. Ijaz Ahmad) was present on duty or not. The evidence of chance witnesses in criminal cases can be accepted if they successfully establish their presence at the place of incident otherwise Court has to undertake an exercise to find out strong corroboration to their statements in order to make them admissible. In the case of Javed Ahmad alias Jaida v. The State and another (1978 SCMRI 114) this Court has held that "when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation for their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony". This principle was reiterated by this Court in the case of Muhammad Ahmad and another v. The State and others (1997 SCMR 89).

33. P.W. Manzoor Ahmad in his statement stated that he saw two persons on the motorcycle and one of them went inside Khana-e-Farhang. 3/4 persons came out of the said jeep and 6/7 persons came out of Van. They all entered into the building of Khana-e-Farhang. After about five minutes, during his stay firing started in the building. Immediately after the firing the aforesaid persons came out of the building. He did not see any of them being armed. Then all of them boarded in the said vehicles and fled away from the spot towards Octroi No.9. Whereas on this point P.W. Syed Allah Diwaya deposed that two persons were riding on the motorcycle. One of the persons riding on the motorcycle went inside the Khana-e-Farhang and other remained stood with the motorcycle. Two persons from one jeep and three persons from the second (Carry Van) emerged out and went inside Khana-e -Farhang. The remaining three/four persons remained in the Carry Van while two in the second Jeep. After about 5/6 minutes he heard reports of firing from inside Khan-e-Farhang. Apparently statements are not only contradictory to each other but also to the statement of P.W. Ijaz Ahmad. So much so that one of them i.e. Manzoor Hussain categorically stated that when all the persons who entered in the building came out he has not seen them armed whereas P.W. Syed Allah Diwaya has stated nothing in this behalf. None of them stated that firing had also taken place on the gate of Khana-e-Farhang which resulted in the death of Rahim Dad, Chowkidar and snatching of 9-MM Rifle from guard posted on the gate of Khane-e-Farhang after throwing chillies on his face. Neither they have furnished any count that if there was a Chowkidar or guard what happened to them. P.W. Maznoor Hussain deposed that amongst the assailants he identified accused Abu Bakar, Imran Ashraf and Muhammad Yousuf accused present in the Court who were among the said persons on the day of occurrence and he did not identify the persons who were riding on the motorcycle but identified the persons who were boarding the aforesaid two vehicles when they were leaving the place of occurrence. In cross-examination he improved his statement to offer the explanation as to why the persons who entered inside the building were not seen by him armed or otherwise. In this behalf he stated that the persons who had arrived in front of the building of occurrence were wrapped in Chadars, therefore, he did not see any of them being armed. In this behalf he further stated that he had seen the persons armed when they arrived in the respective vehicles. In the next sentence he again offered another explanation to justify his statement that the accused were not armed when they arrived in front of the building is false and my statement made before the police is based on truth. According to him he had stated before the police that when the accused persons came out of the building of Khana-e-Farhang they were armed. Further he deposed that my statement made in Court, that they were not armed is false. It may be stated that in the Court he was making the statement on oath. P.W. Manzoor Hussain not only contradicted himself in the Court statement but also failed to record a statement consistent to his previous statement got recorded by him before the Investigating Officer. It was inquired from him whether in earlier statement he has narrated his purpose of visit to Police at Multan City. He explained that he had narrated his purpose of visit to the police at Multan City. He was confronted with Exh.DF in which it was not so recorded. He stated that he had not narrated to the police that he was sitting at Tikka shop because he had to take water and that a glass of water was given to him. It may be noted that this question was put to him with the object to verify as to whether story narrated by him to obtain money from some person from the side of Octroi No. 9 is correct or not. He did not offer plausible explanation in this behalf. It was further inquired from him as to whether he stated before the police that one of the two persons riding on the motorcycle went into the building but when he was confronted with his statement it was not found so. These contradictions were got proved by the defence from P.W. Muhammad Nausherwan who affirmed that he correctly recorded statement of Manzoor Hussain P.W., the copy of which was shown as Exh.D.F. It may be noted that in accordance with Article 140 of Qanun-e- Shahadat Order, 1984 the contradictions in the police statement and Court, statement are required to be proved because in the instant case P.W. Muhammad Nausherwan himself was the ascribe, therefore, he admitted the contents of statement (Exh.D.F.) allegedly recorded by him as correct. By proving these contradictions the defence has successfully established that P.W. Manzoor Hussain is a unreliable witness. Similarly P.W. Syed Allah Diwaya in his previous statement before the police Exh.D.K. stated that 12/13 armed persons came in front of gate of Khana-e-Farhang in a Carry Van, Potohar Jeep and motorcycle. Chowkidar opened the gate and out of them 6/7 persons entered in the gate whereas rest of them remained standing in armed position near the Carry Van, Jeep and motorcycle. But in the Court statement during cross-examination he did not support his earlier version as he deposed that he did not state in his statement Exh.D.K. that 12/13 persons arrived in the vehicles and motorcycle and out of them 6/7 armed persons went inside while remaining stood armed with the vehicles and motorcycle. In this behalf he further deposed that his statement that persons were not armed according to his view when they entered into the building .of occurrence is correct and his statement Exh.DK is false in this respect. This glaring contradiction was also got proved by the defence through P.W. Muhammad Nausherwan who admitted that Exh.DK is the correct copy of the statement of P.W. Syed Allah Diwaya. P.W. Syed Allah Diwaya was also cited as witness for identification test parade. His deposition on this point will be discussed in detail subsequently under the heading of the identification of the assailants/accused but at this stage it would be sufficient to make reference to his Court statement in which he has identified some of the accused appellants facing the trial. According to his version after firing he had identified the accused present in the Court and divulged his name to be Abu Bakar Zarrar. He has also identified another person naming him as Ashraf. He further deposed that since the accused were standing at a distance, therefore, he is not able to identify any other accused person who has participated in the occurrence on 20th February, 1997. The accused persons to whom he identified as Abu Bakar Zarrar stood up and he divulged his name as Ghulam Rasool. Similarly the other accused who was identified by him as Muhammad Ashraf by the witness has stood up and has divulged his name as Abu Bakar Zarrar. The defence and State Counsel verified the correct names of both the persons to whom the witness has wrongly identified. On considering the statements of both the witnesses in juxtaposition with the statement of P.W. Ijaz Ahmad it emerges that at least one set of witnesses namely either P.W. Ijaz Ahmad or P.Ws. Manzoor Hussain and Syed Allah Diwaya have furnished false evidence or on account of major contradictions cropped up in their statements, or without proving relevant facts or for want of independent corroboration on material particulars all of them have rendered inadmissible and valueless evidence, furnishing strong reasons for the Court to reject their statements outrightly.

34. Prosecution after leading evidence possessed by it, closed its side. Thereafter, statements of the appellants and other accused facing trial were recorded under section 342, Cr.P.C. However, when the case was nearing to completion all of a sudden an application, dated 12th October, 1997 signed by applicant Syed Qalandar Ali Shah and his counsel namely Ch.Afzal Ahmad, Advocate, was filed. The application was duly supported by an affidavit of the applicant. The contents of both the documents in substance were the same. In this application request was made by the-applicant that h may be allowed to give evidence as according to him he had witnessed the incident of 20th February, 1997. A perusal of proceedings available on record particularly admissions/explanations made by the applicant in this behalf in his Court statement reveal that the applicant came forward on the behest of prosecution to make the statement. The application was contested by the accused facing trial. However, the said application was allowed by the trial Judge vide order dated 20th October, 1998.

35. Order dated 20-10-1998 was challenged by the accused by filing writ petition in the Lahore High Court but the same was dismissed vide order dated 10th November, 1998. Accordingly the applicant was examined as C.W.1. A perusal of his examination-in-chief shows that he has not attributed overt act to any of the appellants or the persons who faced trial and have now been acquitted. In other words the examination-in-chief was got recorded in consistent to the affidavit (CW-1/B) filed by the witness. It would be appropriate to reproduce hereinbelow the contents of the affidavit:- 36 Surprisingly the witness during the cross-examination by the learned counsel for the State (Prosecutor) involved amongst others all the appellants to be the accused to whom he had seen at the place of the incident on 20th February, 1997. It is equally important to note that during his examination- in-chief he deposed that the persons who came out from Khana-e-Farhang Building can be identified by him. When repeatedly asked the witness replied that he has nothing more to add. After completion of examination-in-chief on 11th November, 1998 the case was adjourned for 12th November, 1998. In cross-examination by the prosecutor the witness was asked to identify the accused persons who came out from Khana-e-Farhang Building. Before his answer following objection was raised:-- "At this stage learned defence counsel vehemently opposed the construction of the question regarding identification of the accused persons. They have also objected that in law and facts involved in the present case the question in import being prejudicial to the interest, valuable rights as to their innocence is not permissible under the law. They have also objected that allowing the above question tantamounts to allowing the prosecution to fill up their lacunas as to the identification of the accused at this belated stage. It is also vehemently objected that the witnesses have been imported and introduced after having been prompted in toto and also getting the accused persons identified by their faces in the jail premises." Learned trial Court after recording the objection observed as under:- "The objections have been recorded and the same shall be resolved at the time of the final arguments". It is important to note that neither the above objection was disposed of by the trial Court nor by the High Court in the impugned judgment. 36-A. Learned counsel for the appellants at this stage contended that in view of the contents of the application dated 20th October, 1998 and the affidavit reproduced hereinabove there were no reasonable grounds to allow the application because the evidence intended to be furnished by the prosecution was not essential for the just decision of the case. But in order to provide an opportunity to the prosecution to fill up the lacunas at the cost of appellants arbitrarily the application was allowed and in cross-examination opportunity was provided to the State to get identify the accused who were already in custody for the last about more than one year and possibility cannot be ruled out that the witness might have seen the accused persons at number of occasions in the jail premises during the trial, therefore, bringing incriminating evidence against them in this manner is violative of all norms of justice and fairplay. According to the learned counsel such steps were taken by the Court in exercise of jurisdiction not vested in it under section 540, Cr.P.C. On the other hand learned State Counsel contended that the Court seized with the matter enjoys unfettered powers to exercise jurisdiction for summoning at any stage any person during trial under section 540, Cr.P.C. for just decision of the case notwithstanding the fact whether prejudice has been caused or not. Reliance was placed by her on the case of Mst. Amina Bibi v. Kashif-ur-Rehman (1995 PCr.LJ. 730). Before dilating upon respective contentions of parties' counsel we want to clarify that judicial functionaries bestowed with the powers to exercise the jurisdiction conferred upon them are legally bound to decide the cases correctly. In other words no wrong decision on law is expected from a judicial functionary as held in PLD 1987 SC 427. 36-B. It would not be out of context to observe that an exercise of jurisdiction in violation of law for extraneous considerations can make liable the concerned judicial officer for action under the relevant provision governing and controlling his conduct as well affairs of his service. It is also well-settled by now that a party should not suffer on account of wrongs L committed by the judicial functionaries as has been held by this Court in the case of State v. Asif Adil (1997 SCMR 209). 36-C. There is no cavil with the proposition that under section 540, IM Cr.P.C. the Court seized with the matter retains jurisdiction to examine any witness at any stage of the trial if his evidence appears to be essential for the just decision of the case. This proposition of law has been dealt with IM exhaustively by this Court in the case of Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95). Relevant paras. from this judgment are reproduced hereunder:- "It needs to be observed that for purpose of acting under section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different. Sometimes apprehension is expressed that' any action by the trial Court under section 540, Criminal Procedure Code would amount to filing the gaps and omissions in the version or evidence of one or the other party. It may straightway be observed that in so, far as the second part of section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v. Lt.-Col Muhammad Yusuf (PLD 1963 SC 51) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court-witness at an earlier stage than notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court-witness, it would not affect the power of the Court (under section 540, Cr.P.C.) to summon and examine the witness if, of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case. Again in The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court could avoid any prejudice to the defence by acting under section 540, Cr.P.C. After holding so a very weighty observation was made which needs to be reproduced:

'This section empowers a Court at any stage of inquiry, trial or any other proceeding under the Code, to summon any person as witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re examine any such person, if his evidence appears to it essential for the just decision of the case.' In yet another case Rashid Ahmad v. The State (PLD 1971 SC 709), this Court made it more clear that 'a Criminal Court is fully within the rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused' and, it was held that 'there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.P.C.' In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. They are: Bashir Ahmad v. The State and another (1975 SCMR 171) and Yasin alias Cheema and another v. The State (1980 SCMR 575). A seemingly contrary view regarding filling of the gaps taken in Rameshwar Dayal and others v. State of U.P. (AIR 1978 SC 1558), when properly appreciated, in reality, does not appear to be so. It was held that a Judge who has to decide a case should not himself become a witness therein by making a statement on oath before a Court of law and thus 'should not fill up gaps left by the prosecution'. The circumstances in which this type of filling the gap was not approved, were totally different. Otherwise, it is pointed out that the learned Judges held that 'it is true that under section 540 of the Cr. P. C. the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be list exercise.' I would, with respect, add that if it is essential for the just decision of the case to exercise this power then (although the conclusion with regard to the finding whether or not it is essential for the just decision of the case has to be reached with due care, but once it is-reached) in that case it will not be proper for the Court to hesitate in admitting the additional evidence. At this stage it is necessary to notice another somewhat contrary view expressed in The Crown v. Rafiq Ahmad an another (PLD 1955 Ba1.12), wherein it was held that it is discretionary for the Court under both parts of section 540, Criminal Procedure Code to summon or not to summon a witness. With respect, it is pointed out that with regard to the second part if it was meant to convery that the Court (after reaching the conclusion that it was essential for the just decision of the case) had a discretion not to admit the relevant evidence, then this decision has not laid down the correct law. It would also be not correct to say that the process of reaching conclusion whether or not it is essential for the just decision of the case to summon an item of evidence is merely an exercise of discretion; because, while appreciating the material or circumstances in which a conclusion has to be reached one way or the other, the Judge goes through an exercise in which logical constraints are to be followed and he cannot in his discretion follow the course contrary to what the clear logic of the situation demands. In that sense, with respect, it is again pointed out that this exercise would not be a mere exercise of discretion. The use of the expression 'appears to it' in the second part of section 540 gives ample indication that even when it is not possible to give a conclusive verdict with regard to the item of evidence being essential or otherwise, yet lit must in any case at least 'appear' to the Court that it is essential, before taking action under the said part of section

540. And for that matter as observed earlier, it would not be necessary for the trial Court to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision of the case. It would be enough if it appears so to the Court from any material or inference from the material including that which is already available to the Court in any form admitted evidence or material otherwise lying on the judicial and other files before it. It is in the foregoing context that another judgment namely Abdul Latif and others v. State of Uttar Pradesh (AIR 1978 SC 472), has to be viewed. It was held therein that if there is a finding of the High Court that the evidence of any witness is not necessary for just decision of the case, it is a finding of fact and unless there is some substantial error in the judgment of the High Court, the Supreme Court would not interfere in a case of special leave. I agree with the-proposition but would, with respect, add that if the High Court itself commits an error in interpreting the second part of section 540, Cr.P.C. in a manner contrary to what has been stated earlier, it might become a case for interference by this Court. The question regarding so-called bar against filling of gaps, has to be considered in another context also. If it is found to be a salutary rule, then the same, without any distinction vis-a-vis the nature of the offence, should be applicable in all criminal trials. It would be noticed that in murder cases; the application of this rule, when the controversy is with regard to the filling or otherwise of a gap in the defence evidence by the resort to section 540, and in case denial thereof would result in conviction and no other sentence than death would be likely to be awarded, it would not be possible to convass that in observation of the so-called rule of avoidance to fill the gaps, evidence which is essential for the just decision of the case, would not be admitted for this reason. It would not only be the negation of justice in a. general sense, but would also contravene another rule namely that no party should suffer on account of mere technicalities. The procedural law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fairplay. It may be added that the language of section 165 of the Evidence Act also lends full support to the view regarding interpretation of second part of section 540, Cr.P.C. It reads as follows:-- '

165. Judge's power to put questions or order production.--The. Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at my time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.' The power conferred on the Court by second part of section 540, Cr.P.C. and the one conferred by section 165, Evidence Act are indeed complementary to each other. If the power under section 165 is so wide as sometimes even to go beyond what is conferred by section 540 then it would not be proper to assume any 4nificial limitations on the exercise of one or the other power and they have to be treated as supplementary to each other. This view finds support from elaborate reasoning in the Indian case of Jamatraj Kewalji Govani v. State of Maharashtra (AIR 1968 SC 178). Another illustrative case from India might also be noticed. It is Raghunandan v. State of U. P. (AIR 1974 SC 463)." From the above judgment it is abundantly clear that jurisdiction under section 540, Cr.P.C. is always subject to the satisfaction of the Court that the evidence intended to be produced on record would be a stepping stone necessary for just decision of the case only then permission can be accorded. In the instant case the prosecution has produced the evidence which has been discussed hereinabove in detail but despite of that it adopted, advice to introduce a witness whose statement was neither recorded during investigation of the case nor there was any indication on record that he had any knowledge about the events in pursuance whereof the culprits accomplished their object. However, the trial Court instead of exercising jurisdiction under section 540, Cr.P.C. independently allowed the application despite the fact that as per contents of the affidavit reproduced hereinabove the witness had not uttered a single word in respect of ally of the accused facing trial and in this manner by causing serious prejudice to them concerning their innocence or otherwise an opportunity was also provided to the State to cross-examine the witness. It is also to be observed that as far as cross-examination under Article 133 of Qanun-e-Shahadat Order, 19$4 of the Court-witness is concerned it cannot be restricted for any of the plies before the Court. However, as it has been held that if the Court had minutely examined the affidavit alongwith the application it may have reused to exercise the jurisdiction under section 540, Cr.P.C, and the Court had avoided injustice to the accused persons which they have suffered because they were got identified directly in the Court after about a period of more than one year of their confinement in jail.

37. Be that as it may, as the statement of C.W.1 Syed Qalandar Ali duly recorded on oath by the Court is available on record, therefore, it will be subjected to evaluation keeping in view the principles pertaining to appraisal of evidence, to assess as to whether he has furnished trustworthy evidence or not. In this behalf it is to be seen that ordinarily unless the prosecution has not furnished an explanation by examining a witness with the delay the evidence of such witness had to be subjected to close scrutiny. Therefore, the same principle would also be applied to the statement of a Court-witness whose name was not mentioned any where right from the registration of the case till the date of filing of the application inasmuch as none of the prosecution witnesses introduced him to be a person who has seen the incident. C.W.1 has made an explanation that he was present on his Tikka shop in front of Khana-e-Farhang building but as it has been observed hereinabove firstly, there is no Tikka shop in front of said building as per the contents of site plan Exh.PRR, and secondly if he was so anxious to bring truth on record he being the owner, of the shop situated in front of the place where an unpleasant incident had taken place would himself had gone to the police for recording of his statement on the date of incident or on any subsequent day during the period of investigation. Remaining silent for such a long period itself indicates that he was set up later on to involve the accused persons probably for want of insufficient evidence which has been produced till then.

38. So far as the -statement of C.W. 1 Syed Qalandar Ali on merits is concerned it is not- consistent with the statement of P.W. Ijaz Ahmad inasmuch as the witness has not shown his presence on duty on the gate of building of Khana-e-Farhang. Similarly his evidence is contradictory to the evidence furnished by P.W. Manzoor Hussain as well as Syed Allah Diwaya. This witness never came forward to participate in the identification parade which was held subsequently in different places, therefore, in such situation it would not be safe to place reliance on his evidence. The authority cited by learned counsel in support of her argument to justify exercise of jurisdiction by the trial Court in allowing application under section 540, Cr.P.C. being distinguishable on facts is of no help to the State. Similarly the authorities cited by her reported in 1994 PCr.LJ. 140 need not be referred in view of the peculiar circumstances of the case.

39. Learned counsel for appellants contended that evidence of P.W. Zahid Hussain produced by the prosecution to establish that appellants and others had hatched a conspiracy at Chowk Kamhacan in the morning of day of incident and then leaving together .towards Octroi No.9 has wrongly been considered to involve them in the commission of the offence. According to him this witness has made an attempt to establish his presence at Cshowk Kamharan Wala by saying that he has gone there for correction of Sui Gas bill but no such document was produced on record and on the basis of such evidence no adverse inference about the involvement of the appellants in the commission of offence can be drawn. He further stated that the prosecution fabricated evidence of this witness afterthought as initially this witness was examined by the prosecution only for identifying dead body of Faqir Muhammad. Learned counsel for State contended that presence of this witness at Chowk Kamharan Wala cannot be disputed in view of explanation offered by him to be present there before happening of the incident. Detailed discussion on the statement of this witness will be undertaken while discussing the question of conspiracy. However, regarding his status to be a witness of the circumstances it is observed that admittedly he .was relative of Faqir Muhammad son of Malik Bahawal, Caste Khokhar. On 20th February, 1997 he identified his dead body alongwith P.W. Kifayat Hussain son of Ahmad Bakhsh (not produced). The identification of the dead body had taken place inside the building of Khana-e-Farhang vide inquest report Exh.PDl2 prepared by P.W. Muhammad Nausherwan after happening of the incident. This witness accompanied the dead body to the hospital for the purpose of post-mortem under the escort of Fiaz Rasool, S.-I. and Muhammad Javed, Constable. His name was included in the calendar of witnesses appended with the challan submitted on 6-4-1997. In his statement he involved Iftikhar alias Khara, Aslam Ansari and Afzal Muna who have been acquitted. In cross-examination he stated that on the day of incident he had gone to Multan City for correction of gas bill. The concerned office had converted the bill into instalments. He did not deposit the instalments. He deposited his bill after two months from 20-2-1997. His instalment bill is not traceable. A perusal of this portion of the statement suggests to hold that he was a chance witness. However, at the same time no bill, original or converted one, was got exhibited inasmuch as he has not shown the instalment bill if made afterwards, therefore, his presence at Chowk Kamharan Wala has become doubtful. In support of this observation reliance is placed on the cases of Muhammad Ahmad and another v. The State (1997 SCMR 89), Guli Chand and others v. State of Rajasthan (AIR 1974. SC 274), Bahal Singh v. State of Haryana (AIR 1976 SC 2032) and Dayaramsingh v. The State of M.P. (1981 Cr.LJ 530).

40. Learned counsel argued that re-identification parade of the appellants except Malik Muhammad Ishaq has not been conducted by the concerned authorities in accordance with the provisions of law as well as instructions issued by the Punjab Government published in Lahore High Courts Rules and Orders Volume III, Chapter 11-C. Prosecution witnesses Ijaz Ahmad, Manzoor Hussain and Syed Allah Diwaya failed to furnish confidence inspiring ocular testimony, therefore, on the basis of such evidence appellants cannot he said to have been identified correctly by them. Besides it, before identification parade the witnesses have already seen the accused (appellants) because majority of them was already confined in different jails from where they were shown to have been arrested in this case and their identification parade was arranged subsequently after a considerable long time. According to him none of the, prosecution witnesses identifying the appellants had pointed out specific role which they had played at the time of alleged commission of the crime by them. He further stated that in such situation while taking into consideration this piece of evidence learned trial and Appellate Courts have erred in law in accepting such defective evidence against them which has occasioned injustice to them. Learned counsel for the State controverting the stand taken by. appellants' counsel stressed on acceptance of identification test parade as according to her the instructions issued by the Provincial Government as well as relevant provision of law have been fully complied with inasmuch as some of the accused facing trial were duly informed to muffle their faces before identification test parade. She placed reliance in support of her contention on PLD 1996 SC 97, 1992 SCMR 338 and 2000 P.Cr.L.J. 331.

41. As the incident was committed by the assailants who were not apprehended at the spot because according to the prosecution they being armed with lethal weapons successfully made their escape good after commission of the offence and at the initial stages Investigating Agency had no clue of the accused persons except their features which were described in the complaint Exh.PQ and other consideration that the crime is the by product of sactarian groups going on since long in the country, therefore, probably keeping in view the latter consideration Investigating Agency statedly arrested acquitted accused Iftikhar alias Khara on the day of the incident from Shah Rukan-e-Alam Colony, Multan as per statement of P.W.39 Zahid Hussain who accompanied the S.H.O. At this juncture it is important to point out that this person was already declared as proclaimed offender in 1996 in the case registered under sections 302/109, P.P.C. etc. of Police Station Vitro Vehari and according to his version he was arrested in this case on 17th February, 1997 and after the present incident he was shown arrested in instant case as well. It is alleged by the prosecution that due to revealation of the accused it was learnt that appellant Malik Muhammad Ishaque has got a Pager No. 1125 details whereof were produced in the Court vide Article

36. It may be noted that as per details the Pager is not on his name. In the details, however, it is mentioned that its subscriber has received messages from different persons of different dates including on the date of incident after its commission. As such on basis of such information arrest of appellant Abdul Hanan was managed from the house of Qari, Muhammad Siddique by P.W. Shahid Niaz. It is also to be pointed out that the appellant firstly introduced himself by the name of Sh. Ashfaq but when he was brought to Multan and produced before P.W. Mirza Maqbool Baig, D.S.P. he disclosed his correct name to be Sh. Abdul Hanan. This appellant was subjected to interrogation during course whereof at his pointation from Hduse No.346-F Shah Rukan-e-Alam Colony, Multan which was stated to be in the use of group of appellants huge quantity of arms and ammunition including fax machine, literature, official jeep, golden cards, silver cards etc. were taken into possession. Details whereof will be discussed subsequently while dealing with the subject of recoveries. One thing important which requires to be noted here is that although the recovery and arrest of Abdul Hanan were shown on 21st February, 1997 but vide application Exh. DL his remand was obtained on 22nd February, 1997 for the purpose of recovery of incriminating articles as well as Service Rifle 9 MM which was already recovered on 20th February, 1997 vide Exh.PL from Bakar Mandi, Multan City. Subsequent thereto the arrests of other appellants except Malik Muhammad Ishaque was carried out from different jails and police stations where they were arrested and confined. The arrested accused were put to identification parade in District Jail, Multan, Central Jail Bahwalpur and District Jail Sahiwal and their identification test parades were arranged on 15th September, 1997, 27th October, 1997 and 2nd December, 1997 respectively.

42. Thus their cases require 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:--

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. (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.

43. The process of identification of the accused persons by the time has gained significance due to non-arresting of the accused persons at the spot. Therefore, relying on such identification a greater amount of care should be applied in order to avoid injustice and prejudice to the accused persons who have not been accurately identified but convicted believing such evidence against them. In this regard, in the foreign countries lot of works has been done. Relevant paras. from the treaties of Lord Devlin are reproduced hereinbelow- "Lord Devlin begins by referring to some. very celebrated cases totally illegal convictions in the last seventy or eighty years. Thus about eighty years ago a man called Adolf Beck was convicted and Lord Devlin writes:-- Beck was twice wrongly convicted, having been identified in 1896, by eleven witnesses and in 1904., by four. This miscarriage of justice was the goad which finally pricked Parliament into setting up the Court of Criminal Appeal ....In 1911, a man on a charge of murder was identified by no less than seventeen witnesses, but fortunately, was able to establish an irrefutable alibi. In 1928, Oscar Slater, after he had spent nineteen years in prison and after a public agitation in which many distinguished people joined, he had his conviction for murder quashed; he had been identified by fourteen witnesses. " Then the learned author refers to the two cases which led the Home Secretary to request him to hold a fresh enquiry. The learned author writes:-- "In 1974, two shattering cases of mistaken identity came to light within four weeks of each other. In the first of them Mr. Doughery was convicted of shop-lifting, having been identified by two witnesses, at a time when he was on an excursion with some twenty other persons. The accidents and blunders which led to his conviction, and to his appeal from it being dismissed, are not relevant here. After he had served most of his sentence in prison and on a reference back to the Court of Appeal by the Home Secretary, Mr. Dougherty got his alibi evidence before the Court and the prosecution threw up the sponge. This was on 14th March, 1974. On 5th April, the Home Secretary discharged with the grant of a free pardon a Mr. Virag from the prison in which he had been for five years. As was conclusively provided in the subsequent inquiry, he had been wrongly identified by eight witnesses, four of them Police Officers, on six different occasions." This brief of illegal convictions is all the more depressing because it is clear that errors in identification cannot be prevented by increasing the number of identifying witnesses or by having resort to the evidence of Police Officers, and indeed Virag's case proves beyond doubt the fallacy of assuming that Police Officers have extraordinary powers of observation, What then is the solution of this harrowing problem? In our opinion, the only safeguard against illegal convictions is that the Judge or Judges hearing the case should be conscious of the dangers inherent in the identification of accused by witnesses who are total strangers to them. Reverting, however to the learned author, he made two recommendations to the British Government. In this connection, the learned author writes:-- "The first recommendation was for an absolute and unconditional rule that the jury should be directed or warned about the dangers of identification evidence. The second was for a general rule that the jury should not be allowed to 'convict on eye-witness evidence alone. This rule had to be general and not absolute because admittedly there would be exceptions, e.g. when the witness was identifying someone he knew well or who had been under frequent or prolonged observation." As we do not have the jury system, the first recommendation would be translated into our procedure, mean that the Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses, who have seen them very briefly and this coincides with our own views on the matter. The second recommendation, however, is very wide, and it is not necessary for us to decide so wide a proposition, as the question before us is whether it would be safe to base a conviction on the evidence of one identifying witness only, because he was an honest witness. Now, although the witness was an honest witness, the dangers of errors in identification are so great that in our humble opinion, safe in exceptional circumstances, it would not be safe to base a conviction on the evidence of a solitary eye witness if the witness has only had a fleeting glips of the assilant, And, as in the instant case, there are no special circumstances, we hold that the learned Chief Justice erred in convicting the respondent solely on Saadullah Khan's ,evidence.

44. Now the cases of the groups of the appellants whose identification test parade arranged on different dates and in different jails with short details relating to their arrest etc. will be considered hereinbelow:-- S. No. Name of Accused Date of arrest Place of arrest Place, date & name of supervising Magistrate of identification parade. Name of the witness who identified the accused. 1.

1. Abdul Hanan 21-2-1997 Bahawalpur 15-9-1997 at District Jail, Multan supervision of Mr. Irshad Mohiuddin, Judicial Magistrate P. W.22. Ijaz Ahmad, P. W. (Khalid Mehmood Khurshid Ahmed did not identify the accused and given up)

2. Ghulam Rasool 16-7-1997 Faislabad

3. Hafiz Shafique-ur-Rehman 20-7-1997 Mianwali The above-noted appellants were not identified by P.Ws. Khalid Mehmood and Khurshid Ahmad Constables though as per the contents of complaint (Fard-e-Bayan) (Exh. PQ) as well as site plan Exh. PRR they have seen the culprits fleeing away after the commission of the offence. So far as P. W. Ijaz Ahmad is concerned identification through him cannot legally be accepted to be accurate because he remained with the police with effect from 21st February, 1997 till the expiry of the police remand. P.W. Muhammad Nausherwan in examination-in-chief deposed that since P.W. Ijaz Ahmad had been joining investigation with him in presence of accused Abdul Harlan, therefore, he was not subjected to identification parade. Besides it as per previous statement under section 161, Cr.P.C. of Ijaz Ahmad Exh. DD, dated 1st March, 1997 he deposed that on the day of incident the person who has concealed a Kalashnikove in his Chaddar and to whom he has seen, he was Abdul Hanan son of Abdul Waheed, resident of Rehman Colony, Bahawalpur to whom he has identified. He has further stated that he has committed the murder of Rahim Dad, Chowidar. This aspect of his statement has already been discussed hereinabove, therefore, in such circumstances no evidentiary value can be attached to the evidence furnished by P.W. Ijaz Ahmad in respect of Abdul Hanan's identification test parade. From perusal of the above table it is manifest that appellant Ghulam Rasool Shah and Shafique-ur-Rehman were initially arrested in the cases registered against them at Faisalabad and Darya Khan (Mianwali) and in those cases statedly they were declared proclaimed offenders and after the happening of incident of 20th February, 1997 both of them were arrested in the instant case by P.W. Sadat Mehdi on 16th July, 1997 and 20th July, 1997 respectively. Thereafter, they were shifted from Faisalabad and Central Jail, Mianwali to District Jail, Multan, Admittedly no precautionary measures were adopted by the police to avoid that no one could see them before holding of their identification parade. Even otherwise it was not possible because they were made to travel from Faisalabad to District Jail Multan and after their confinement again the identification test parade was held on 15th September, 1997 after passing of considerable period for which no explanation of whatsoever nature has been offered by the prosecution. It is equally important to note that P.W. Ijaz Ahmad in his Court statement recorded on 30th March, 1998 had ascribed the role to Ghulam Rasool of entering the building of Khana-e-Farhang alongwith two other persons whereas in respect of Shafique-ur-Rehman he deposed that he was amongst the second group of the assailants who snatched service rifle from him. Because this witness has disclosed the features of both the groups of the assailants in his Fard-e-Bayan (Exh. PQ), therefore, it was obligatory to have mixed them alongwith such dummies who had somewhat similar resemblance. It may be noted that amongst the first group of 3 young boys he had stated that their colours were whitish, slim bodies with middle stature aged 20/25 years and out of them one had a lean face wearing pent and shirt whereas remaining two were wearing Shalwar and Kameez, one of whom used to visit Khana-e-Farhang off and on. From this version of the witness it can be inferred that if he was recognized Ghulam Rasool Shah having whitish colour then the person to whom he recognized to be Ghulam Rasool Shah and he has a fair complexion then it would mean that he had wrongly identified him. In cross-examination he admitted that accused Ghulam Rasool is of fair complexion and. not whitish. The perusal of the proceedings of identification parade (Exh.PEE/4) supervised P.W. Irshad Mohiuddin, Judicial Magistrate, Multan reveal that it does not contain the names, parentage and addresses and occupation of each member of the parade, therefore, question would arise that who were those dummies, what were their features, with whom they were mixed up. Although in the proceedings Exh. PEE the role played by the appellants were recorded by P.W. Irshad Mohidduin but the roles so written are entirely in contradiction to the contents of Fard-e-Bayan (Exh. PQ) as well as Court statement of P.W. Ijaz Ahmad. As far as appellant Hafiz Shafique-ur-Rehman is concerned, in respect of his role he stated that he had a pistol in his hand and he threatened him to hand over his rifle to him otherwise he will be killed. Whereas in respect of holding a pistol by Shafique-ur-Rehman is concerned nothing was stated nor he deposed that threats of killing him were advanced by him. Contrary to it he deposed that remaining accused who were armed with pistols issued threats of dire consequences. As far as appellant Ghulam Rasool is concerned he specified the role of having a pistol in his hand during the Wardat whereas in his Court statement he deposed that convict alongwith two others i.e. Abu Bakar and Imran went inside the building of Khana-e-Farhang. Besides non-compliance of the instructions referred to and discrepancies pointed out hereinabove the proceedings' of identification parade Exh. PEE were not drawn according to the settled practice namely the accused who is to be identified will be placed in a line alongwith other dummies and after the completion of his identification parade the other accused who were confined in the same jail shall be brought if their identification test parade is required to be done. According to the contents of the proceedings, the three accused persons were made to stand in three different lines marked "A", "B" "C" at a time and on completion of identification by one person in respect of the same accused second and third witnesses were summoned and this procedure went on till the completion of the proceedings. Although there are instructions that some precautionary measures are taken but nothing is mentioned in the proceedings that what precautionary measures were taken by him. At this juncture it may not be out of place to note that refusing to re-identify the convicts/appellants Abdul Hanan, Ghulam Rasool Shah and Shafique-ur-Rehman by P.Ws. Khalid Mehmood and Khurshid Ahmad (not produced) would lead us to draw an adverse inference against the prosecution that they have not seen these persons at the place of incident, therefore, they refused to identify them. All the three convicts had specifically stated that the witnesses have already seen their photographs and movies etc. which have been prepared in different police stations. As it has been pointed out hereinabove that all of them were declared proclaimed offenders in the cases registered prior to 20th February, 1997, -therefore, following the procedure to declare them proclaimed offenders and 'also to cause their arrest could give rise to possibility of availability of their photographs etc. in different police stations. As far as implication of non-compliance and non-observing precautionary measures and following the provisions of law as well as instructions pointed out hereinabove in the light of the precedented law cited by both the parties, shall be discussed after dealing with the identification parade of remaining appellants: 44-A IDENTIFICATION PARADE HELD AT CENTRAL JAIL, BAHWALPUR S. No. Name of Accused Date of arrest Place of arrest Place, date & name of supervising Magistrate of identification parade. Name of the witness who identified the accused. 2

1. Muhammad Yousaf 29-9-1997 Bahawalpur 27-10-1997 at Central Jail, Bahawalpur supervision of Mr. Muhammad Yaqub Khan Magistrate P. W.29. Ijaz Ahmad, P. W. 18 Manzoor Hussain P.W.19.

2. Zubair 29-9-1997 3.Abu Bakar 13-10-1997 The perusal of above details reveals that convicts Muhammad Yousuf, Zubair and Abu Bakar Zerrar were also declared proclaimed offenders in the criminal cases registered against them prior to happening of the incident of 20th February, 1997 and in those cases they were confined at Bahawalpur and P.W. Mehboob, Sub-Inspector has shown their arrest in the instant case on 29th September, 1997 and 13th October, 1997. The record is silent whether any precautionary measures were adopted by the prosecution before conducting re-identification parade on 27th October, 1997 in Central Jail, Bahawalpur under the supervision of P.W. Muhammad Yaqub Khan Magistrate. Similarty it can also be inferred that except showing their arrest in the instant case on documents by P.W. Mehboob Ahmad S.-I. their custody was not taken physically by the police. Thus, without interrogating them they were subjected to identification parade. The identification parade of these convicts was also held with delay after showing their arrest in the instant case. The prosecution case as it has been unfolded in Fard-e-Bayan is that P.Ws. Khalid Mehmood and Khurshid Ahmad (given up) had witnessed the assailants running away after the commission of the offence but both these witnesses were not called upon to identify them. However, besides Ijaz Ahmad and two others i.e. P.W. Manzoor Hussain and Syed Allah, Diwaya were asked to identify the accused persons. The evidence furnished by them has been discussed hereinabove in detail under the subject of reappraisal of evidence. P.W. Muhammad Yaqub Khan vide Exh. PLL/1 dated 27th October, 1997 completed the process of the identification parade. He instead of mixing up all the above convicts/appellants separately with the dummies with ordinary proportionate of 1 to 10 mixed all of them with 33 dummies whose names and parentage were mentioned but their addresses were not noted to establish as to whether they were inmates of the Central Jail, Bahawalpur or they were outsiders. The proceedings also does not contain the features of the dummies mentioning whereof was necessary to prove that the convicts were mixed up with those persons who have somewhat close resemblance with them as per the statement of the witnesses particularly the contents of Fard-e-Bayan of Ijaz Ahmad. Such procedure was avoided to overrule chances of misidentification and to ensure that all precautionary measures were taken to prove the accuracy of identification parade. All the three P.Ws. Ijaz Ahmad, Manzoor Hussain and Syed Allah Diwaya were directed to pick up the three accused persons from crowd of 33 dummies. Before the commencement of identification parade admittedly the witnesses were not informed that to whom they have to identify amongst the dummies as is indicative from the statement of P.W.- Muhammad Yaqub Khan. The accused had specifically pointed out to the supervising Magistrate that their photographs and movies etc. were made in Faislabad Saddar and Sargodha Road Police Stations. They also informed that their photographs were also taken in Bahawalpur. All of them categorically raised objection that on 25th October, 1997 police came to jail for interrogation. They were also called in the room of the Superintendent. There is possibility that at that time they might have been shown to the witnesses, therefore, they had no confidence in such identification parade. As per contents of Exh. PLL/1 first of all it is to be noted that as per the contents of this document all the three witnesses identified the convicts/appellants whose place of standing was changed on the turn of identifying the accused by each of the witness. It is noteworthy that all the three witnesses have not ascribed respective roles of the convicts/appellants allegedly performed by them during the commission of offence. However, the witnesses "Helfan" stated before the Magistrate that they have not seen the convicts before attending their identification test parade in the jail. It may be noted that P.W. Ijaz Ahmad in his Court statement stated that Muhammad Yousuf was armed with Kalashnikov and he fired with it on Rahim Dad, Chowkidar. As far as appellant Zubair is concerned role of extending threats was attributed to him. So far as Abu Bakar Zarrar is concerned he was shown to have entered inside the building alongwith Ghulam kasool and Imran Ashraf appellants after the firing when he alongwith other came out he had a pistol in his hand. The defence has objected on the genuineness of the identification parade held on 27th October, 1997. In this respect it was alleged against prosecution that no identification parade was held on 27th October, 1997 because the envelope in which the proceedings were sealed beam the date 3rd April, 1998, therefore, according to the defence on this date fictitious identification proceedings were shown to strengthen the case. Thus, in view of such objection by the defence mentioning of complete particulars of the dummies has all the more become necessary because in absence of such details at least a plausible inference can be drawn in favour of the defence. In this case it is also important to note that the envelope containing identification test parade (Exh. P/1) was endorsed by P.W. Muhammad Yaqub Khan Magistrate to Mr. Nayyar Iqbal Ghauri, Special Judge, Multan who had taken the cognizance of the case on 22-8-1997. If the identification parade actually had taken place on 27th October, 1997 then the Magistrate should have deposited the same in the office of District Magistrate. There was no occasion for P.W. Muhammad Yaqub Khan to directly dispatch the envelope to the Presiding Officer of the Special Court. As far as non-compliance of provisions of law, instructions are concerned they shall be considered in the light of the judgments of the superior Courts later on, (44-B) IDENTIFICATION PARADE OF IMRAN ASHRAF HELD IN CENTRAL JAIL SAHIWAL S. No. Name of Accused Date of arrest Place of arrest Place, date & name of supervising Magistrate of identification parade. Name of the witness who identified the accused.

3. Imran Ashraf 16-11-1997 / 3-12-1997 Central Jail Sahiwal 3-12-1997 and 4-12-1997 at Central Jail,Sahiwal under the supervision of Mr. Sikandar Ali Bokhari, M.I.C P. W.21.

1. Ijaz Ahmad, P. W. 18.

2. Allah Diwaya P.W. 43

3. Manzoor Hussain P.W.19 This appellant was also in custody at Central Jail, Sahiwal in a case already registered against him with effect from 20th November, 1997, He was shown to have been arrested in this case on 3rd December, 1997 by P.W. Javed Ashraf. During custody of the convict/appellant in a case earlier registered against him. He arranged his identification test parade on 3rd December, 1997 through P.W. Ijaz Ahmad and Allah Diwaya whereas P.W. Manzoor Hussain was put to identify this accused on 4th December, 1997. However, on both the dates P.W. Sikandai Ali Bukhari supervised the process of identification parade. In this case as well physical remand was not obtained by the police and after getting him identified from the witnesses he was subsequently shifted to District Jail, Multan for facing the trial. As per the proceedings Exh.PPC dated 3rd December, 1997 convict/appellant was made to sit with 10 dummies whose names are mentioned in the proceedings but without their addresses. Both the witnesses i.e. P.W. Ijaz Ahmad and Syed Allah Diwaya identified him without describing his role during the alleged commission of the crime. Whereas P.W. Ijaz Ahmad in his Court statement deposed that he entered alongwith two others in the building of Khana-e-Farhang whereas P.S. Syed Allah Diwaya did not ascribe his role iii his Court-statement. However, in the Court-statement he identified Ashraf considering him to be Abu Bakar whereas he disclosed the name of Ghulam Rasool Shah as Abu Bakar. Appellant Imran Ashraf objected on the identification parade on the plea that his photographs and movies have already been prepared and have been shown to the opposite groups. On 4th December, 1997 appellant was got identified from P.W: Manzoor Hussain in the same manner as it was adopted on 3rd December, 1997 inasmuch as during the proceedings Exh.PDD/2 no role was ascribed by the witness to the accused which was played by him during the commission of the offence. It is noteworthy that in the Court-statement as well he did not ascribe any overt act to appellant Imran Ashraf as well as Abu Bakar arid Muhammad Yousaf except stating that out of the assailants he identified certain persons i.e. Abu Bakar, Imran Ashraf and Muhammad Yousaf who were present among the aforesaid persons on the day of occurrence. During the process of identification test parade through P.W. Manzoor Ahmad convict/appellant got registered similar objections. P.W. Sikandar Ali Bukhari MIC when inquired as to why all the three witnesses namely P.W. Ijaz Ahmad, Manzoor Hussain and Syed Allah Diwaya were not put to identification parade on 3rd December, 1997 as per the application filed by trim before the District Magistrate to supervise the identification parade in which the names of, all the three witnesses were mentioned, he replied that the names of the persons were mentioned who had to identify accused Imran Ashraf but the I.O. only produced Ijaz Ahmad and Allah Diwaya P.Ws. for the said purpose. He further stated that he verbally inquired from Investigating Officer regarding non-production of third P.W. namely Manzoor Hussain who replied that the said person had not come. It is important to note that this witness -being a Magistrate admitted that I am conscious of the fact that piecemeal identification parade has no evidentiary value. This witness had not recorded any where as to why P.W. Manzoor Hussain was not produced on the first day. But to justify his action he stated that non-production of Manzoor Hussain P.W. on the first day and the explanation offered by the Investigating Officer were verbal due to inadvertence and rush of work. It is also important to note that during the process of identification by all the three persons the appellant/convict was not asked to change his physical appearance/clothes etc. It is also important to note that on both the days i.e. 3rd and 4th December, 1997 he was made to sit at S. No. 3 because P.W. Sikandar Ali did not ask him to change his position. P.W. Sikandar Ali Bukhari, MIC admitted that objections of the' accused in presence of the witnesses who identified him were not recorded on both the days and he recorded such objections on the next day when the witnesses had already left the venue of identification parade. It may be noted that recording of-objections during the process of identification parade in presence of identifying witnesses is essential to ascertain the validity of the objection because if such opportunity is not afforded to the appellant in presence of identifying witnesses it would not be considered against him because he was not confronted with the same. However such discrepancies in the proceedings of identification parade can be considered in favour of the accused at the time of evaluating overall corroborative piece of evidence. The procedure relating to conducting identification parade on 3rd and 4th December, 1997 separately is under consideration, therefore, on account of this discrepancy a strong inference can be drawn that either on the first day P.W. Manzoor Hussain was reluctant to identify the accused genuinely or prosecution wanted to give him and opportunity to see the accused before identification test parade, therefore, in such situation the Supervising Officer must have made efforts to conduct identification parade on the same and one day in the interest of justice and fairplay otherwise the identification parade of one accused through two different witnesses on different dates has to be considered highly doubtful. 44-C. As it has been observed in the preceding paras. that as per instructions reproduced hereinabove Magistrate supervising the identification parade is bound to follow the same to minimize the chances of mis identification of the accused, therefore, they are to be followed consistently and departure' therefrom would not be condonable because some of them namely describing the role of the accused played by him at the time of commission of the offence has been approved by this Court in various pronouncements including the cases of (i) Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088) and (ii) Mehmood Ahmad and 3 others v. The State and another (1985 SCMR 127). Relevant para. is reproduced hereinbelow:-- "

8. The prosecution also relied upon identification parade in which Qamaruzzaman had identified the appellants. The learned Judges of the High Court have relied upon it as a corroborative piece of evidence. We have examined the record of the identification proceedings and find that it suffers from infirmity and illegality. There were 24 persons mixed with the appellants jointly and it seems that on a query from the Magistrate whether the police had got them identified their answer was in the negative and further that they had come with muffled faces. According to the report Qamaruzzaman was called in, who without any hesitation identified Muhammad Safdar, Mehmood Ahmad and Nasir Ahmad and the identification parade ended. It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law is that identification could not be relied upon and was of no evidence value. Reference can be made to Khadim Hussain v. The State (1985 SCMR 721), where Shafiur Rahman, J.), observed as follows:-- 'It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown (ILR 51 Lah. 396) in following words:-- 'The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was-in a position to show that he knew a certain accused person by sight' " Besides above authorities reference may also be made to the case of Qurban and another v. The State (1994 PCr.LJ 150). Learned State Counsel argued that non-attribution of the role played by the accused at the time of commission of offence cannot be considered fatal if the witness identified the accused by describing his role in the Court. Reference was made to the judgments reported in 1992 SCMR 338 and PLD 1996 SC

97. We have examined the argument put forth by her. The role of the accused at the time of commission of the crime is necessary to be established to achieve two-fold objects that in which capacity he identified the person during identification parade, and secondly that his such evidence must be corroborated in the Court if he remains consistent to his statement which he made during identification of the accused. This principle has been discussed elaborately in the case of Lal Singh v. The Crown (ILR 51 Lahore 396). Relevant para. therefrom is reproduced hereinbelow:-- "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to simple fact that a witness was in a position to show that he knew a certain accused person by sight. " Similarly in the case of Khadim Hussain v. State (1985 SCMR 721) it was held as under:-- "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. " Likewise in the case of Ghulam Rasul and 3 others v. The State (1988 SCMR 557) the principles discussed hereinabove were reiterated as under:-- "

9. 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 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. Subsequent thereto in the case of Murid Abbas and 2 others v. The State and 2 others (1992 SCMR 338) Mr. Justice Ajmal Mian (as he then was) relying on another judgment in the case of Ali Muhammad and another v. The State (1985 SCMR 1834) observed that the identifying of the part played by each of the accused persons while identifying them in an identification parade by a witness, is of some importance but is not an inviolable rule. The effect of the above omission will depend on the identification of each case. With reference to the facts involved in the case it was stated that eye-witnesses had gone to attend the identification parade with the object to identify the persons who had committed decoity in their 'Bank and, therefore, the factum that they had picked up the appellants implies that they were the persons who committed the above offence. The omission to identify the part of each of the above appellants in the present case by the witnesses may not be fatal. In the case of Yaqoob Khan etc. v. State (PLD 1996 SC 471) this Court did not declare that if a witness at the time of identifying a person in identification parade did not state about the role played by that person in the crime he is precluded from giving evidence in the Court with regard to his specific role in the crime and that if such evidence is adduced at the trial, the same is to be excluded from consideration meaning thereby that if during identification test parade he omitted to describe the role played by the accused during his identification parade he can disclose his role even in the Court-statement but both the judgments relied upon by the learned counsel had not advanced the case of the prosecution in any manner for the reason that as it is evident from the discussion of evidence referred to hereinabove while dealing with the cases of appellants individually it has been noticed that the identifying witnesses either have not described the roles of the accused during the identification parade or during their Court-statement and in some of the cases particular reference may be made to the case of appellant Abdul Hanan and Shafique ur-Rehman altogether different version was put forward. Thus in view of these circumstances we are inclined to hold that at the first instance the identifying witnesses did not disclose the role played by the appellants at the time of commission of the offence and if it was so disclosed they did not remain consistent to it while recording their statements in the Court. The testimony of P.Ws. Ijaz Ahmad, Manzoor Hussain as well as Syed Allah Diwaya and Court-witness Syed Qalandar Ali has not been found acceptable for more than one reasons discussed while dealing with their statements in the above paras., therefore, no corroboration can be sought to their tainted statements from any other tainted piece of evidence of 0 identification parade as held in the cases of Ali Akhtar Hussain v. The State (1972 SCMR 40) and Muhammad Ilyas and another v. The State (1993 SCMR 1602). Relevant para. from the case of Muhammad Ilyas is reproduced hereunder:-- "In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against appellants beyond doubt. Ocular evidence of two eye-witnesses does not inspire confidence and it is doubtful whether they had seen the incident. No doubt unfortunate incident has taken place in which two persons have lost their lives but not in the manner asserted by the prosecution. On the basis of evidence of these eye-witnesses co-accused Abbas is acquitted by the trial Court and finding .is maintained by the High Court. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence and recoveries, but each piece of this evidence is defective and failing in intrinsic value, hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence. We, therefore, hold that it is fit case in which benefit of doubt can be given to the appellants. Conviction and sentence of appellant is set aside and appeal is allowed. They may be set at liberty if not wanted in any other case. " It is also to be noted that the prosecution has absolutely failed to establish that identifying witnesses had no occasion to see the accused after the commission of the offence till the holding of the identification parade. It is to be observed that in order to ensure that the identification parade was conducted fairly it becomes the duty of the prosecution to adopt such measures so that identifying witnesses may not see the accused after the commission of the crime till the identification parade is held immediately after the arrest of the accused persons as early as possible. As far as identification parade held in Central Jail, Bahawalpur relating to appellants Muhammad Yousuf, Zubair and Abu Bakar Zarrar is concerned it suffers from another material discrepancy namely that they were mixed up with total number of 33 persons. Such practice is contrary to law laid down from time to time by the superior Courts. In this behalf reference may be made to the cases of Ashrafi and another v. The State (AIR 1961 Allahabad 153) and Lal Pasand v. The State (PLD 1981 SC 142). Relevant para. from the judgment of Lal Pasand is reproduced hereinbelow:-- "And, we may, further point out that the ratio of ten other under trials to one accused had been prescribed by the Government of the United Provinces in its Government Orders for the Police (See paragraph 23 of the judgment in Asharfi and another v. The State (AIR 1961 All. 153)). Therefore, it would be monstrous for the Courts to permit a departure from a rule accepted by Government in the absence of some explanation by the prosecution. Now, in the instant case, the explanation of the State is that there had been a joint identification parade with the result that it was not possible to find a sufficient number of other persons to be intermingled with the accused. And, the learned Magistrate who conducted the identification parade appears to have assumed that all the five accused had to be identified. That assumption was wholly erroneous, because Saadullah Khan has seen only two of the five assailants. However, on the footing that five persons had to be identified, it would have been unreasonable to mix them with fifty other persons, because such a large number of persons could only have confused the identifying witnesses. Therefore, the proper course in such cases is to have separate identification parades for each accused. And, no explanation has been given in the instant case for not holding separate identification parades." The record of the identification test parades (Exhs.PCC/2, PDD/2, PEE/2, and Exh.PLL/1) reveal that all the accused specifically raised objections before the concerned Magistrate that their videos and photographs had been prepared. The objection so raised by them carries weight because as it has been observed earlier that all the accused/appellants except Abdul Hanan were declared proclaimed offenders in the cases earlier registered against them in different police stations. Thus due to this objection the identification of the convicts has become doubtful. In the circumstances the prosecution was under legal obligation to explain by producing evidence that identifying witnesses had no occasion to see them before holding of identification test parade. Actually it was impossible altogether because in the identification test parade conducted in District Jail, Multan vide Exh.PEE/2 convict Abdul Hanan remained in police custody with effect from 21st February, 1997 till the period of expiry of his remand. Appellant Ghulam Rasool was proclaimed offender in a case registered against him, therefore, he was arrested by the police of Faisalabad District where his custody was obtained by P.W. Sadat Mehdi who formally arrested him on 16th July, 1997 in the instant case. Whereas appellant Shafique-ur-Rehman was also arrested by the police of Darya Khan Bakhar in a criminal case also registered against him and he was confined in Central Jail, Mianwali. His arrest was shown by P.W. Sadat Mehdi on 20th July, 1997. Both these appellants were then brought to District Jail, Multan where their identification parade was carried out after long period i.e. 15th September, 1997. Appellants Muhammad Yousuf, and Zubair were in custody in a case already registered against them and their arrest in this case was shown by Mehboob S.-I. on 27th September, 1997. As far as Abu Bakar Zarrar is concerned he was also involved in a case at Bahawalpur and on 13th October, 1997 his arrest was shown by P.W. Mehboob Ahmad outside the Court on 13th October, 1997. Surprisingly these three persons were put to identification test parade on 27th October, 1997 vide Exh.PLL/1 in Central Jail, Bahawalpur. Apparently no measures were adopted by the prosecution to ensure that the witnesses who will identify them may not see their faces till the time of identification parade. Because possibility cannot be ruled out that during the process of arrest of all the accused persons the witnesses i.e. Ijaz Ahmad and others may have accompanied the police party deputed to cause their arrest. So far as the identification of Muhammad Yousuf and two others in Bahawalpur Jail is concerned though it is stated to have been conducted on 27th October, 1997 but as per record the envelope in which the proceedings were sealed were sent on 3-4-1998 by P.W. Muhammad Yaqub Khan, Magistrate directly to the Presiding Officer of the Court. Thus, to the extent of their case the possibility cannot be ruled out that the prosecution had prepared fictitiously the proceedings Exh.PLL/1 of identification parade of these three persons, otherwise there was no occasion to send it directly to the Presiding Officer on 3rd April, 1998 who had already taken the cognizance of the case on 22-8-1997. It is also to be observed that if P.Ws. Muhammad Yaqub Khan had an intention to send the identification parade proceedings Exh.PLL/1 directly to the Presiding Officer ATC, Multan he should have done so on 27th October, 1997 instead of sending the same on 3rd April, 1998 after a long period of about 5 months without offering explanation that under which authority he kept these proceedings with him even without bringing in the notice of concerned Sessions Judge or District Magistrate. So far as the identification of Imran Ashraf is concerned it was also not conducted properly as explained hereinabove. Neither any explanation is available on record as to why he was put to identification parade on two different dates i.e. 3rd and 4th December, 1997 by P.Ws. Ijaz Ahmad, Syed Allah Diwaya and Manzoor Hussain respectively. The discrepancies pointed out hereinabove in the re-identification test parades have extinguished its evidentiary value and as such cannot provide corroboration to the ocular evidence. RECOVERIES OF INCRIMINATING ARTICLES.

45. The Investigating Agency recovered following incriminating articles during the investigation of the case:-- (a) Recovery of blood-stained earth underneath the dead bodies of the deceased vide recovery memos. Exhs.PR to PX. (b) Recovery of empties vide recovery memo. Exh.PY from Khana-e -Farhang. (d) Recovery of clothes from House No. 139-K Shah Rukan-e-Alam Colony, Multan City at the instance of acquitted accused Iftikhar Ahmad alias Khara including a blood-stained shirt which was taken into possession vide recovery Memo. Exh.PK/l. It was alleged by the accused that the shirt so recovered belongs to Muhammad (e) Recovery of following articles by Mirza Maqbool Baig, DSP/SDPO at the instance of convict/appellant Abdul Hanan from House No.346-F, Shah Rukan-e-Alam Colony, Multan City:-- (i) One Kalashnikov No.56-14120598. (ii) One Kalashnikov No. 56-5729537 (iii) One Klashnikov without number. (iv) One Mauser 30 bore (v) One Mauser 30 bore No.9827 (vi) One Mauser 30 bore No.8830 (vii) One pistol 30 bore (viii) One pistol 30 bore No.A 1311 (ix) One pistol 30 bore No.5366 (x) One pistol 30 bore No. M20 (xi) One pistol 30 bore without number (xii) One pistol 30 bore No.B1490 (xiii) One pistol 30 bore without number (xiv) One Launcher No. 69-401th 733971 (xv) One Rocket No.40 80 22 (xvi) One Rocket No.022-85-5823 (xvii) One Rocket No..05-8971 (xix) One Rocket No.8-77-5523 (xx) One Rocket No.11-53-87 (xxi) One Rocket No.378-9-88K (xxii) One Rocket No.05-89-71 (xxiii) One Rocket No.378-10-85K (xxiv) Four Rockets without number (xxv) One Hand Grenade No. 147-88-k-3PRM (xxvi) One hand Grenade No.84-Y3 PRM2 (xxvii) One Hand Grenade No. 83-Y3PRM2 (xxviii) One Hand Grenade No.85 Y 3 PRM2 (xxix) One Hand Grenade No.ARGES (xxx) Bullets of Kalashnikov 525 numbers. (xxxi) Bullets of pistol 30 bore 9 numbers (xxxii) 45 bottles of ammunition. (xxxiii) 13 fuez. (xxxiv) Six Magazines of Kalashnikov (xxxv) Seven Magazines of 30 bore pistol. (F) Recovery of Official Rifle 9-MM (G) Recovery of Magazine of the Official Rilfe on 11th March, 1997 vide recovery memo. Exh.PN. Learned counsel for appellants contended that above recoveries cannot be used against them as incriminating articles because no iota of evidence has been produced by the prosecution to connect them with these recoveries inasmuch the reports of Forensic Science Laboratory and Serologist Exhs.PUU, PVV, PWW and PXX has not advanced the prosecution case in any manner, therefore, the -recoveries cannot be used against them. Learned counsel for the State controverting the arguments of appellants' counsel contended that in such-like cases it is always impossible to connect the accused with the commission of the offence by producing direct evidence against them but inference has to be drawn them in view of the fact that huge arms and ammunition and blood-stained clothes were recovered from the houses which were in the use and occupation of the appellants before the commission of the offence.

46. As far as the house No. 139-K, Shah Rukan-e-Alam Colony, Multan and house bearing No.346-F, Shah Rukan-e-Alam Colony, Multan are concerned they were neither owned by appellants nor they have been shown tenants in any one of them. So far as former house is concerned it was owned by Bashir Ahmad son of Dost Muhammad who entered into negotiation for renting it out to one Abdul Rauf and two other persons out of whom he identified accused Ghulam Rasool Shah as one of them. He agreed to rent out the house to them at the monthly rental of Rs.2,

000. According to him Telephone No.562000 was already installed in it. The witness did not state that the house was exclusively leased out to convict Ghulam Rasool Shah. Even if it is assumed that the house was obtained on lease by him, it would not be sufficient to connect him with the commission of the offence because except an incriminating blood-stained shirt no other incriminating articles were recovered from it. As far as the shirt is concerned it was not got identified from any of the witness to establish that he was wearing the same at the time of incident. So far as the latter house is concerned it is owned by one Muhammad Bakhsh who leased out the same to acquitted accused Ghulam Mujtaba through P.W. Muhammad Ramzan. This witness also stated that Telephone No.564759 had already installed in it. No evidence has been brought on record through any independent source that the house remained in the use and occupation of any of the appellants. No doubt a good number of articles including arms and ammunition have been recovered from this house inasmuch as the 30 bore pistols recovered from this house were found weeded with some of the empties recovered from the place of occurrence on 20th February, 1997 vide recovery Memo. Exh.PAA as per Forensic Science Laboratory Report Exh.PXX. In respect of prosecution case, the recoveries of incriminating articles were made at the instance of one of the accused Abdul Hanan who was arrested on 21-2-1997, learned counsel stated that the recovery of these articles has been foisted by the police against him because as per recovery memo. Exh.PL this house was searched on 20th February, 1997 whereas as per application Exh.DL dated 22nd February, 1997 request was made by P.W. Muhammad Nausherwan for effecting recovery of incriminating articles at his pointation including recovery of 9-MM Service Rifle which had already been effected on 20th February, 1997. The objection of the learned counsel that recovery of the arms and ammunition from house No.346-F, Shah Rukan-e-Alam Colony, Multan is false, does not appear to be convincing because admittedly Abdul Hanan was brought from Bahawalpur on 21st February, 1997 and the police had discretion to keep him in custody up to 24 hours under section 61, Cr.P.C. and then to produce him further police remand if need be before the Magistrate as contemplated under section 167, Cr.P.C., therefore, the possibility that he would have led the police for the recovery of these articles on 21st February, 1997 cannot be doubted. However, for this reason alone appellant Abdul Hanan cannot be held responsible for commission of the offence because of P.W. Ijaz Ahmad has assigned him role of throwing chillies on his face. In addition to it this aspect cannot be dealt with in detail because a separate case for keeping arms and ammunition has been registered against the accused persons and we are informed that said case has not so far been finally disposed of. 46-A. At this juncture it is also important to note that a Potohar Jeep bearing official registration number has been recovered from this house but the prosecution admittedly did not probe into the matter that how this jeep was recovered from the said house and as to whether the official number was fake etc. But in our opinion this jeep would have provided a proper clue to the police to lay hands on the accused who were actual assailants involved in the commission of the offence. 46-B. As far as the recovery of blood-stained earth and other articles are concerned they cannot be used against the appellants for connecting them with the commission of the offence.

47. It is to be noted that as far as the recovery of incriminating articles are concerned they are used for the purpose of providing corroboration to the ocular testimony and to reach at a just conclusion, therefore, both the ocular evidence and recoveries are to be considered simultaneously as it has been held by this Court in the case of Asadullah v. Muhammad Ali and 5 others (PLD 1971 SC 541). Relevant para. is reproduced hereinbelow:-- "The learned Judges further fell in error in isolating the ocular evidence furnished by Mst. Rajan and Mst. Munawr Bibi from the corroborative evidence comprising of the incriminating recoveries to which reference has been made earlier. The learned Judges in the first instance rejected the evidence of Mst. Rajan and Mst. Munawar and then proceeded to rule out the corroborative evidence on the ground that it did not connect the accused persons with the crime 'more particularly as the entire ocular evidence had been disbelieved'. The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judges did in the instant case. Indeed it would be anomalous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot by itself be basis of conviction. The view formed by the learned Judges that the evidence of recoveries did not connect the accused persons with the crime was, therefore, plainly fallacious." It is also a known principle of criminal administration of justice that if the ocular testimony suffers from material discrepancies and for the, reasons more than one it has lost its intrinsic value then the corroborative evidence namely recovery of crime weapons, medical evidence etc. cannot be used to corroborate the ocular testimony as held in the case of Dhunda v. The Crown (ILR 16 Lahore 995) as under:-- "We have examined the evidence and we come to the same conclusion as the learned Judge as regards the eye-witnesses. The contradictions and discrepancies are so many and so material that it is almost impossible to believe that these witnesses saw anything of importance. Their evidence is so unreliable as to be worth precisely nothing. It appears to us, therefore, to be impossible in law to corroborate this evidence. Nothing cannot be multiplied or corroborated."

48. Prosecution produced post-mortem reports of the deceased as Exs.PC/1, PD/l, PE/l, PF/1, PG/1, PH/1, PI/l, PJ/1 through various doctors perusal whereof confirm their deaths with the fire-arms therefore, the happening of incident cannot be denied during course whereof 8 persons were done to death. However, these pieces of evidence cannot furnish corroboration to the ocular testimony and the other evidence discussed hereinabove in view of the principle of law that such evidence being supporting in its nature can only be helpful to prosecution if it had succeeded in establishing its case on basis of direct ocular or circumstantial evidence against the accused. Reference in this behalf may be made to the case of Muhammad Hanif v. The State (PLD 1993 SC 895).

49. Learned counsel for the State vehemently argued that P.W. Zahid Hussain has produced last seen evidence which constitutes a strong circumstance against all the appellants including Malik Muhammad Ishaque and furnishes compatible evidence about their involvement in the commission of the offence. She also referred to letter Exh.P69/A which was written on the Letter Head of Lashkar-e-Jhangvi, Pakistan. As per its contents Amir-e- Lashkar Abul Qasim Malik Muhammad Israque has accepted responsibility for commission of the offence in Khana-e-Farhang Iran. According to .her this letter was procured during the search of house No.346-F, Shah Rukan-e- Alam Colony, Multan City when it was about to be released as this letter bears the name of Amir-e-Lashkar Abul Qasim Malik Muhammad Ishaque and his Pak Tel No.0361-365660 and it also bears date 19-2-1997 and signatures of Secretary, Information of Lashkar-e-Jhangvi, therefore, in view of such strong circumstantial evidence involvement of the appellants cannot be overruled. She further argued that in such-like cases where production of incriminating material in corroborative manner is impossible then the Court may not into consideration technicalities and decide the case by pragmative approach. Learned counsel for the appellants opposing the arguments of learned State Counsel contended that as far as P. W Zahid Hussain is, concerned he has not furnished trustworthy and convincing evidence to establish that appellants and others hatched a conspiracy in Chowk Kamharan Wala, Multan City and the manner in which he has attempted to involve the appellants in the commission of the offence is not only improbable but ridiculous because it has never happened that the culprits who intended to commit a heinous crime will consult each other in a thickly populated bazar from where they have to move towards their destination for achieving the object. He further pointed out that it is absolutely inconceivable that the accused persons in respect of whom it is stated that they went from Chowk Kamharan Wala to Chungi No.9 they must have gone to commit the offence in the building of Khana-e-Farhang. The proposition of accepting circumstantial evidence to establish guilt against the accused has not to be accepted merely in view of the arguments unless any unimpeachable circumstantial evidence is brought on record to justify the inference of guilt against them. The circumstantial incriminating evidence must be incompatible with the innocence of accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt as has been held in the case of Mst. Sairan alias Saleema v. The State (PLD 1970 SC 56). With reference to the facts of the instant case 'and in view of the discussion on the testimony of P.W. Zahid Hussain we are of the opinion that his evidence is not sufficient to stand to the test of the above proposition. As far as the judgment cited by learned State Counsel in the case of Allah Ditta v. The Crown (1969 SCMR 558) being inapt does not apply on the facts of the instant case. So far as the reported judgment in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) is concerned it has not dealt with merits of the case because proceedings in this case were originated from Constitutional petition filed in the jurisdiction of Lahore High Court and as in the matter placed before this Court purely a question of law was involved, therefore, merits of the case were not elaborately discussed, as such in absence of any material it is not possible for us to hold that conviction against appellant Mehram Ali was recorded solely in view of the circumstantial evidence. As far as the contention of the learned counsel relating to drawing inference in favour of State on the basis of letter Exh.P69/A, dated 19th February, 1997 is concerned it has also no merits because the document which is being relied against the appellants was not proved in the Court either by producing primary or secondary evidence to establish its contents for the purpose of proving a circumstance against at least one of the appellants Malik Muhammad Ishaque. Moreover, in absence of trust-worthy evidence the contents of document cannot be considered incriminating against appellant firstly for the reason that it bears the date as 19th February, 1997 a day earlier before happening of the incident; and secondly the accused howsoever he may be bold can never leave his foot prints for the purpose of providing opportunity to the State to follow and catch hold of him. It is beyond the comprehension of a person that an accused who was allegedly involved in the commission of offence would writ down his telephone and Pak Tel number with his own hand enabling the agencies to find out concrete clue for causing his arrest and involving him in the commission of the offence. Similarly the next judgment cited by learned State Counsel in the case of Khurshid v. The State (PLD 1996 SC 305) is distinguishable because in this case the prosecution has succeeded in proving through unimpeachable circumstantial evidence that the appellant was guilty of commission of the offence whereas in the case in hand to establish the circumstantial evidence P.W. Zahid Hussain was produced who is a chance witness who failed to justify his presence at Chowk Kumharan Wala, therefore, the proposition of law laid down in this case by this Court is not applicable at all on the facts and circumstances of the instant case.

50. As far as pragmatic or dynamic approach by the Court in such-like cases is concerned there is no cavil with the same. However, this Court while making such observations simultaneously has held that technicalities should be overlooked without causing any miscarriage of justice. Reference to relevant para. from the Majority Judgment of State v. Farman Hussain (PLD . 1995 SC 1) is reproduced hereinbelow:-- "It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling insecured. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice." In the judgment of Khurshid v. The State (PLD 1996 SC 305) this Court while discussing the circumstantial evidence observed that "the Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency/prosecution, IV provided the same have not prejudiced the accused in the fair trial".

51. As far as judgment in the case of Mehram Ali (supra) is concerned there too, it was held that the "access to justice to all is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e., judicial hierarchy". Keeping in mind this principle notwithstanding the fact that the charges against accused persons are of heinous nature but still they have a right to claim justice to them in view of the set procedure in-vogue in the country. The case of an accused involved in a heinous offence of course cannot be decided except in accordance with the laid down procedure. As it has been time and again held that mere technicalities cannot hinder the course of justice but at the same time in criminal cases onus is always upon the prosecution to establish guilt against accused for the commission of offence in terms of Article 121 of Qanune-e-Shahadat Order, 1984. However, accusation cannot be established on basis of surmises, conjectures and probabilities etc. and prosecution is always bound to establish guilt against the accused facing trial beyond reasonable doubt as it has been held in the cases of Safdar Ali v. The Crown (PLD 1953 FC 93), Muhammad Luqman v. The State (PLD 1970 SC 10). It has further been held by this Court in the case of Abdul Haque v. The State and another (PLD 1996 SC 1) "that in criminal jurisprudence general principle is that the prosecution is to prove the case against the accused beyond doubt and such burden does not shift from prosecution even if accused takes up any particular plea and fails in it and if there is any room for benefit of doubt in the case of prosecution the same will go to accused and not to prosecution. Thus, in view of above discussion we are of the opinion that the circumstantial evidence being relied by learned State Counsel instead of establishing the case of prosecution has created doubt in it.

52. Learned counsel for the appellants contended that in appeal proceedings learned Division Bench of Lahore High Court maintained the judgment, dated 16th December, 1998 of the trial Court against the convicts principally on the ground that before the happening of unfortunate incident of 20th February, 1997 a criminal conspiracy was hatched between the accused facing trial and the absconders, therefore, they have been rightly sentenced for the offence charged against them; whereas the trial Court has convicted/sentenced them for the offence under sections 302/149, P.P.C. As per his contention under the circumstances both the judgments deserve to be set aside besides there is no trustworthy evidence on record against all of them to establish accusation of hatching a criminal conspiracy as defined under section 120-A, P.P.C. Learned State Counsel conversely argued that P.W. Zahid Hussain and C.W. Syed Qalandar Ali both have furnished strong evidence to establish accusation against the accused for hatching a conspiracy for the commission of the offence. Alternately it was contended that prosecution has successfully established that on account of vicarious liabilities they were rightly found guilty for the commission of the offence falling within the mischief of section 302/149 P P C. It is to be observed that the learned trial Court while framing charge, dated 5th January, 1998 charged the appellants including the others for a criminal conspiracy for committing the murder of Syed Muhammad Ali Rahimi, Director, Khana-e-Farhang Iran and others. However, section 120-B, P.P.C., was not inserted in the charge placed at Serial No.First of the charges read over to them as in this para. sections 302/396/449/109, P.P.C., read with section 7 of Anti-Terrorism Act, 1997 were mentioned. Likewise no one amongst them have been convicted/sentenced for the offence of hatching a criminal conspiracy falling within the definition of section 120-B, P.P.C., but surprisingly the Appellate Court i.e., learned Division Bench of the High Court vide judgment, dated 1-3-1999 maintained the judgment of the trial Court, dated 16th December, 1998 against all of them for the reasons that they were the members of the conspiracy. Undoubtedly a Criminal Trial Court is competent to alter the charge at any stage in exercise of its inherent jurisdiction conferred on it under section 535 read with section 537, Cr.P.C. As far as Criminal Appellate Court is concerned it also enjoys the same powers particularly in the matters where a reference under section 374, Cr.P.C., has been filed for confirmation or otherwise of the death sentence awarded to convict under section 302, P.P.C., because whole case becomes open before it. This view was confirmed in PLD 1957 SC (Ind.)

381. However, we are of the view that if the Appellate Court seized with the criminal appeal and a murder reference intends to alter the sentence it should assign cogent reasons to substantiate the changed findings. In the instant case although the Appellate Court has maintained the conviction/sentences awarded by the trial Court to the appellants being the members of the conspiracy but reasons have not been assigned to substantiate as to whether on the basis of evidence so produced by the prosecution the essential ingredients laid down by the law i.e., section 120-A, P.P.C., and trend set up subsequent thereto by the superior Courts were available or otherwise. Be that as it may, in the interest of justice it has been decided to examine this aspect of the case as well at this stage by appreciating the evidence available on record. However, it would be appropriate to reproduce hereinbelow section 120-A, P.P.C., in extenso:-- "120-A. Definition of criminal conspiracy.

When two or mort persons agree to do, or cause to be done,

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." As far as commitment between two or more persons who have conspired together to commit an offence etc., is concerned it is a relevant fact as against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of the conspiracy as far as the purpose of showing that any such person was a party to it within the meaning of Article 23 of Qanun-e-Shahadat Order, 1984. For convenience it is reproduced hereinbelow:-- "

23. Things said or done by conspirator in reference to common design.

Where there is reasonable ground to believe that two or more persons have conspired together to commit an. offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such persons was a party to it." A perusal of above Article of Qanun-e-Shahadat Order suggests that the Court seized with the matter has a duty to satisfy itself that there is a reasonable ground to believe the existence of conspiracy in pursuance of an agreement among them to commit an unlawful act etc. existed, therefore, it becomes obligatory upon the prosecution to produce evidence for the purpose of establishing that two or-more persons have conspired for the commission of a crime or unlawful act by way of entering into an agreement and making commitment to fulfill it for the purpose of achieving the object. If the prosecution has failed to bring on record evidence to show that before the actual commission of the offence there was any agreement may be oral or written amongst two or more persons for the commission of the offence then it would not be possible to conclude that prior to the commission of the offence any criminal conspiracy was hatched to attract the provisions of section 120-B, P.P.C. In this behalf reference may be made to AIR 1965 SC 682, PLD 1979 SC 53, 1985 PCr.LJ 2638, 1995 PCr.LJ 1424, .1998 PCr.LJ 1486 and 1990=1903 The All England Law Reports, page

1. Before, embarking upon the prosecution evidence produced before trial Court to substantiate the accusation we consider it appropriate to observe that privacy and secrecy of an agreement may be oral or written to enter into a criminal conspiracy is the essence to establish that prior to commission of offence two or more persons have entered into a conspiracy for committing an unlawful wrong as it has been held in Bayyappanavara Munishwamy and others v. State (AIR 1954 Mysore 81). Relevant portion from the judgment is reproduced hereinbelow;-- "Privacy and secrecy are more characteristic of a conspiracy than a loud discussion in an elevated place open to public view in the garden of a stranger. These are considerations for assessing the evidence of these witnesses with special care and caution."

53. The prosecution produced P.W. Zahid Hussain in support of the accusation of. conspiracy. As far as this prosecution witness is concerned he deposed in his testimony that on 20th February, 1997 he and Kifayat Hussain (not produced) were present at Chowk Kamharan Wala, Multan City as they were waiting for a wagon. At about 11-00 a.m. when a wagon stopped near them three persons got down from that wagon. The witness recognized them to be the persons i.e., Iftikhar Khara, Aslam Ansari and Afzal Muna (acquitted accused). They started talking with each other. The witness turned his face and took up the position of caves dropper and heard accused Khara saying that it was a proper chance and there was no adequate arrangement of security at Khana-e-Farhang and that the Chowkidar was an old man. It is alleged that he further stated that Ameer Sahib had not yet arrived and that it was a most suitable chance to do the Karvai if Ameer arrive in time. He further deposed that in the meanwhile a Blue Catty Van arrived there, out of which appellants Muhammad Ishaque, Abdul Hanan, Abu Bakar Zarrar and Shakil Anwar and others emerged. This carry van was followed by a Potohar Jeep, which had official registration No.MNS 7789. Out of this jeep appellant Hafiz Shafique, Shabbir Fouji, Tanvir Tanns, Qari Allay Waasaya, Amanat Ali Makhan and Sultan came out. This jeep was followed by 100 CC Yamaha which was driven by Ghulam Rasool Shah and Akram Lahori was sitting on back seat. Accused Khara narrated the entire Karvai to all the abovesaid persons and then they all proceeded towards Octroi No.9. The witness and Kifayat Hussain arrived at Ghanta Ghar and from there they arrived at Suraj Miani. As per his deposition it was his programme to contact some leader of Faqia-e-Jaffaria to further contact with the S. P. As soon as they arrived at Suraj Miani the report of present occurrence was transmitted in the Town that 7 persons were murdered at Khana-e-Farhang and one had sustained injuries. It may be noted that through this witness the prosecution had not arranged the identification test parade of any of the appellants as well as acquitted accused. However, in cross-examination he stated that Ghulam Rasool Shah was seen by him three years prior to 20th February, 1997 in a public meeting of Sipah-e-Sahaba. He further stated that during this intervening period he had seen accused Ghulam Rasool Shah at public meetings. The witness further stated that he did not see Ghulam Rasool Shah during this period of three years. In a subsequent question he re-affirmed last-mentioned version namely that during the intervening period of three years he had not seen Ghulam Rasool Shah and confirmed that his version that he had seen Ghulam Rasool Shah in public meetings during this intervening period is incorrect. He further stated that accuses. Ghulam Rasool Shah is absconder for many years and that the Government has fixed reward for his arrest. Similarly he stated that he had seen Abdul Hanan 6 months prior to 20-2-1997 at their village Surai Miani. Whereas accused Iftikhar Khara had been seen about three years prior to 20-2-1997 at a public meeting, which was held at Qila Kohna Qasim Bhag. The witness admitted that Chowk Kamharan Wala is a busy place and during day and night the police is on watch and ward duty. It is important to note that as per his own version there is a big Imam Bargah in the centre of that Chowk as well as a booth of Traffic Police. A plain reading of his evidence suggests to hold that because the witness had allegedly seen the accused persons considerably after long period spreading over from six months to three years as pointed out hereinabove, therefore, it was obligatory upon the prosecution to have got identified the accused persons from him. Even otherwise on merits his deposition would have strong evidence if witness Kifayat Hussain (not produced) may have corroborated his version on material points. In absence of any corroboration to his statement it becomes duty of the Court to undertake close scrutiny of his evidence. As it has already been stated that it is a cardinal principle of appreciating of evidence that if the evidence of a witness appears to be wholly reliable then such evidence can be accepted even without corroboration but if the evidence is unreliable then it can be brushed aside without any reservations and as per third category of witnesses namely reliable halfly unless strong corroboration is not available on record such evidence cannot be accepted. Applying these standards on the statement of P.W. Zahid Hussain one can conveniently conclude that the statement of the witness on its face appears to be unreliable because it is not expected even from a layman or a man having little prudence that the accused persons will gather in a thickly populated/busy Chowk of Multan Town and loudly will disclose about their plan to do Karvai in Khana-e-Farhang Iran not only exposing themselves to the general public including the witnesses in respect of a Karvai of a heinous crime but on basis of same if proved they alongwith their other conspirators would be sent straight to gallows and secondly without consulting to the other conspirators who have not reached there and how it is possible that they would guide them at their arrival to go in Khana e-Farhang for commission of Karvai for the reason that Chowkidar is an old person and it is appropriate time for commission of the offence. It is important to note that if at all it is presumed for the sake of arguments that acquitted accused Iftikhar Khara and two others had made up their mind for Karvai they would not choose a thickly populated area to enter into an agreement with the co-conspirators to accomplish their act. It is also impossible that for commission of such high magnitude offence the three accused persons will remain present in Chowk Kamharan Wala waiting for their co-conspirators and on their arrival they would narrate the entire Karvai to them so loudly that it could not only be heard by the witnesses but by other persons present in the Chowk. Besides it, if at all the witness had heard the conversation between the acquitted accused by taking up of the position of caves dropper he would have immediately informed about their such design to the police incidentally available at Chowk Kamharan at Traffic Booth. Although he claims that he has informed P.W. Nausherrvan, S.H.O. about the above story but the S.H.O. instead of further materializing this aspect of the case told him to wait. As far as P.W. Nausherwan S.H.O. is concerned he had not uttered a single word in respect of this story either in his examination-in-chief or in cross-examination. In fact the witness happened to be the relative of Faqir Muhammad (deceased) and he had gone to Khana-e-Farhang to identify the dead body. Thus, he came to know about the incident over there and due to this reason he came forward to depose against the accused persons otherwise the story put forth by him to establish the element of conspiracy against accused persons being highly improbable is not acceptable. The statement of the witness also does not indicate that before hatching the conspiracy accused entered into an agreement written or oral to do Karvai in Khana-e-Farhang nor his evidence fulfils other conditions to establish that crime was committed in pursuance of a conspiracy by the accused. Thus, we are of the considered opinion that the observations of the High Court in the impugned judgment considering the appellants as members of conspiracy hatched by them to accomplish the crime is not sustainable.

54. Learned Appellate Court categorically found the appellants to be members of conspiracy but such conclusions arc in contradiction to the observations made in the same judgment while dealing with the question of non-inflicting of sentence under section 109, P.P.C. In this context it was noted that all the appellants were present at the place of occurrence, therefore, their role in facilitating the commission of murder can be determined by application of section 149, P.P.C. They being 5 or more than 5 persons acted in prosecution of their common object of the assembly. Section 109, P.P.C., would only have application if their liability was limited only to abetment through conspiracy but being present at the spot on the day of occurrence by application of section 114, P.P.C., read with section 149, P.P.C., they stand convicted under sections 302/149, P.P.C. It is to be noted that learned appellate Bench of the High Court failed to take notice of the fact whether essential ingredients of section 149, P. P. C. , have been fulfilled to award conviction to appellants on this score. Firstly in this context it is to be observed that the trial Court has also not discussed evidence to establish whether appellants alongwith others have accomplished the crime in prosecution of their common object and the evidence so brought on record has proved the charge under section 149, P.P.C., against them. Learned Appellate Court, thus, in view of such deficiency in the judgment of the trial Court was not under an obligation to attend this important aspect of .the case categorically. We have gone through the prosecution evidence and have discussed it in detail hereinabove in the preceding paras. and on the basis of the same we are not inclined to agree that the appellants were vicariously liable for the commission of the offence because the prosecution has failed to prove that all of them alongwith others constituted an, unlawful assembly to prosecute the common object nor they can be adjudged to be the members of an unlawful assembly for want of trustworthy evidence. Therefore, notwithstanding the fact whether any one of them remained standing near the place of incident i.e., Khana-e-Farhang or actually participated in the commission of the crime allegedly committed inside the building or on its main gate cannot be found equally liable for the principal offence which had taken place on 20th February, 1997. Thus, no case of even vicarious liabilities falling within the mischief of section 149, P.P.C., is made out. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case. In such situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of doubt the Court can conclude on considering agglomerated effect of the evidence available on record as held in the cases of Safdar Ali v. The Crown (PLD 1953 FC 93) and Muhammad Luqman v. The State (PLD 1970 SC 10). In the instant case we have scanned the prosecution evidence in depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellants. Conversely the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused persons intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently Would not be sustainable in the eye of law in view of the principles laid down by this Court in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent to each other, thus, on basis of the same appellants cannot further be immured because they have every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with law. Since both the judgments have been pronounced contrary to the substantive as well as precedented law relied while appreciating the evidence in detail. Therefore, in view of what has been discussed hereinabove we accept these appeals, set aside impugned judgment, dated 1st March, 1999 and acquit the appellants. They shall be released forthwith if not required to be detained in any other case pending against them. N.H.Q./I-20/S Appeals accepted