2006 P Cr (PLP)

MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.

Appellants were tried by Additional Sessions Judge, Mianwali in case F.I.R. No.102 of 2001, dated 15-11-2001 for the offence under sections 302/324/393/337-F(iii)/337-F(v)/34, P.P.C. registered at Police Station Kalabagh, who vide judgment, dated 24-2-2003 convicted and sentenced all the appellants which reads as follows:-- Under section 302(b)/34, P.P.C. Sentenced to imprisonment for life and to pay Rs.50,000 as compensation under section 544-A, Cr.P.C. payable to the legal heirs of Amir Ahmad Khan deceased. Under section 324/34, P.P.C. Sentenced to ten years' R.I. and to pay fine of Rs.10,000 or in default whereof to further undergo one year's R.I. Under section 337-F(iii)/34, P.P.C. Sentenced to six months' R.I. and to pay Rs.5,000 as Daman. Under section 337-F(v)/34, P.P.C. Sentenced to one year's R.I. and to pay Rs.10,000 as Daman. Under section 394/34, P.P.C. Sentenced to ten years' R.I. arid to pay fine of Rs.10,000, or in default whereof to further undergo one year's R.I. All the sentences were ordered to run concurrently. Appellants were ordered to be kept in jail till the payment of Daman and the amount of Daman, if recovered or paid, was ordered to be paid to Javaid Mehmood injured P.W. Appellants were also given the benefit of section 382-B, Cr.P.C. Feeling aggrieved by the impugned judgment, the appellants have filed to instant appeal.

2. In brief the case of the prosecution as penned in the F.I.R. is that on 15-11-2001 at 5-30 a.m., three unknown young accused of whitish colour normal structure, clad in Shalwar and Qamiz armed with kalashnikovs fired with their respective weapons at the bus bearing No.LOK/9870 in an attempt to stop it by blocking the road, at Raam Chuti Mor. As a result of that firing, Javaid Mehmood helper/conductor of the bus sitting on the "Toppa" (cover of the engine), two passengers Amir Ahmad Khan and Shamroz Gull sitting on the front seat and the seat behind the front seat were injured. Muhammad Niaz driver drove that bus fastly and arrived at nearby Police Check Post known as Khakkardara Baangi Khel Post. There Shamroz Gul injured was taken away by his relatives travelling in the bus. Amir Ahmad Khan was noticed as dead. Shamroz Gull was taken to a certain hospital by his relatives. Muhammad Niaz came back to Police Station Kalabagh along with Javaid Mehmood injured and Amir Ahmad Khan deceased and lodged F.I.R. at 8-15 a.m.

3. Sher Khan, S.-I. P.W. and Khalid Mahmood Inspector/S.H.O. P.W.17 are the Investigating Officers of the instant case. During the investigation Abdul Qayum and Abdul Hameed appellants were arrested on 27-11-2001 whereas Nasir Jamal was arrested on 28-11-2001. After their arrest appellants were also put to the test of identification parade. These proceedings were conducted by Zahid Hussain Jafri, Judicial Magistrate P. W.19. During the investigation Nasir Jamal appellant led to the recovery of kalashnikov P.7 which had matched with seventeen empties recovered from the spot. In this regard report from Forensic Science Laboratory Exh.P.Z./2 was placed on record by the prosecution. Similarly Abdul Qayum appellant led to the recovery of carbine and Abdul Hameed led to the recovery of kalashnikov which were taken into custody vide recovery memo. Exh.P.L. and Exh.P.K. respectively. After the formal investigation challan was submitted before the trial Court where prosecution produced nineteen witnesses to prove the charge against the appellants. Aulia Khan P.W.14, Muhammad Niaz P.W.15 (complainant) and Javed Mehmood (injured) P.W.16 being the eye-witnesses of occurrence narrated the circumstances under which the appellants in order to loot the bus blocked the road and made firing at the bus. Abdul Jabar P. W.10 and Muhammad Sardar P. W.11 narrated about the extra-judicial confession of the appellants and Wajtakkar evidence. The remaining witnesses are formal in nature. Learned trial Court also examined appellants under section 342, Cr.P.C. All the appellants while denying the charges pleaded innocence. None of the appellants made statement under section 340(2), Cr.P.C., however, they produced one Abdul Manan D.W.1 (Councillor of U.C. Tabbi Sar) in their defence. The crux of the evidence of this defence witness is that Abdul Jabar and Muhammad Sardar P.Ws. had never visited village Jhambra for the purchase of cattle.

4. Learned trial Court after appraisal of evidence vide judgment, dated 24-2-2003 convicted and sentenced the appellants as narrated earlier. Learned counsel for the appellants submits that none of the appellants was known to the complainant party prior to the occurrence, during the occurrence Javed Mehmood P.W. who had received injuries and his presence at the spot stands established from the data available on record, failed to identify the appellants during the identification parade proceedings and before the trial Court his stand was that at the relevant time assailants had muffled their faces. Learned counsel further argues that according to prosecution case all the three appellants had made indiscriminate firing with kalashnikovs but during the investigation seventeen crime-empties were recovered from the spot, which had matched with the kalashnikov recovered at the instance of Nasir Jamal, whereas no empty of the bullet fired from the weapons held by Abdul Qayum and Abdul Hameed was recovered from the spot and thus, this fact is sufficient to shatter the credibility of the prosecution case. Argues that crime weapons and empties recovered from the spot were sent to the Forensic Science Laboratory after the arrest of Nasir Jamal appellant and in the circumstances this piece of evidence would be of no value. Further argues that the evidence of extra-judicial confession is of no value because admittedly all the appellants had confessed their guilt jointly and none of the appellants gave any details of the occurrence nor there was any occasion for the appellants to confess their guilt before Abdul Jabbar P.W.10 and Muhammad Sardar P.W.11, similarly both the witnesses had not given any plausible reason for their presence at the spot when they statedly had seen the appellants running away from the spot carrying crime weapons with them. Learned counsel further argues that the evidence of identification parade relied upon by the prosecution is full of doubts; during the identification proceedings the necessary legalities and formalities were never complied with by the Presiding Officer and that is why learned trial Court has rejected this piece of evidence. It is lastly argued that in the circumstances, conviction and sentence of the appellants are not sustainable. Conversely counsel for the State while supporting the impugned judgment vehemently oppose the arguments raised by learned counsel for the appellants.

5. In order to prove the case against the appellants, prosecution has relied upon the evidence of three eye-witnesses namely Aulia Khan P.W.14, Muhammad Niaz P.W.15 (complainant) and Javed Mehmood (injured) P.W.16 and sought corroboration from the evidence of identification parade,' recovery of crime weapons at the instance of the appellants, evidence of extra-judicial confession and that of Wajtakkar. The evidence of identification parade is not the sole criteria to prove the case against the unknown assailants. It is well-settled that prosecution can prove charge against them if the identity of the accused is sufficiently proved by other convincing evidence i.e. direct or circumstantial evidence. In case titled Muhammad Afzal and another v. The State 1982 SCMR 129, while dealing with the question of identification proceedings, their Lordships observed which reads as follows: "Now there is no provision in law that identification proceedings should be held in cases where a crime is committed by persons unknown to the witness or for that matter in any type of cases. The identification has by itself no independent value. As stated by Viscount Haldane, L.C. in King v. Christie 1914 AC 545 "its relevancy is to show that the witness was liable to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake". In practice, however, it is not safe to accept the statement of witness about complicity of an accused in a crime if he did not describe him by name or other particulars during the, investigation and still was not made to identify him out of a group. If, however, the identity of the accused is proved by other convincing evidence, direct or circumstantial, the absence of identification test proceedings will be immaterial." In the present case, I have observed that Aulia Khan P.W.14 and Muhammad Niaz P.W.15 had identified the appellants but Javed Mehmood (P.W.16) failed to do so during the identification parade proceedings conducted by Zahid Hussain Jafari, Judicial Magistrate P.W.19. During the said proceedings legal formalities were not complied with in letter and spirit by the Presiding Officer and the learned trial Court on the basis of cogent reasons has rejected this piece of evidence. On the other hand, during the investigation seventeen crime-empties were recovered from the spot and the same had matched with the crime weapon i.e. kalashnikov recovered at the instance of Nasir Jamal appellant as it is apparent from the report of Forensic Science Laboratory Exh.P.Z./2. During this occurrence Javed Mehmood P.W.16 also received injuries at the hands of assailants. His presence at the spot stands established from the data available on the record. The facts narrated by him reveal that at the time of occurrence all the assailants except Nasir Jamal appellant had muffled their faces. He also identified Nasir Jamal appellant before the trial Court against whom this witness had no enmity or grouse. Abdul Jabar P.W.10 and Muhammad Sardar P.W. 11 also saw Nasir Jamal appellant when after the occurrence he along with other co-accused hurriedly passed by them. Both of them also identified Nasir Jamal appellant and had stated so before the trial Court. With regard to Nasir Jamal appellant in any opinion, there is sufficient evidence i.e. direct and circumstantial to connect him with the commission of this offence and to his extent I see no force in this appeal, same stands dismissed. As far as Abdul Qayum and Abdul Hameed appellants are concerned, none of them was known to the prosecution witnesses prior to the occurrence. During the identification parade Aulia Khan P.W.14 and Muhammad Niaz P.W.15 had identified them but this piece of evidence has already been disbelieved by the trial Court as mentioned above. Co-accused of Nasir Jamal appellant as narrated by Javed Mehmood P.W.16 had muffled their faces, thus, in this view of the matter, the identification of both the appellants by the said witnesses during the identification proceedings is not free of doubts. Even otherwise, statedly at the relevant time Abdul Qayum appellant was armed with kalashnikov, this weapon was never recovered from him. Similarly kalashnikov recovered from Abdul Hameed appellant was never sent to the Forensic Science Laboratory and there is no evidence to show that the weapon was ever used during the occurrence. Thus, this piece of evidence had got no corroborative value. Prosecution has also relied upon the evidence extra-judicial confession of these appellants in order to connect them with the commission of offence and Abdul Jabar P.W.10 and Muhammad Sardar P.W.11 had deposed in this regard. The bare perusal of the statements of these witnesses reveals that all the appellants allegedly had jointly confessed their guilt, statements of these witnesses are also silent with regard to the mode, manners and circumstances under which appellants had allegedly committed the offence. In this view of the matter, it would be unsafe tee rely upon this type of evidence. Statements of the said witnesses with regard to evidence of Wajtakkar qua the said appellants is also not sufficient to be relied upon in the absence of any independent corroborative piece of evidence and in the circumstances, I am of the view that both the appellants are entitled to get the benefit of doubt. Accordingly this appeal to the extent of appellants Abdul Qayum and Abdul Hameed is allowed, both of them stand acquitted from the charges, they shall be released forthwith if not required to be detained in the criminal case. H.B.T./N-103/L Order accordingly.