2012 YLR 2481 (PLP)

MEHMOOD MAQBOOL BAJWA, J.

By this judgment, we intend to dispose of Criminal Appeal No.1794 of 2006 titled "MANSOOR AHMED AND OTHERS V. THE STATE" preferred by Mansoor Ahmad alias Shehzad, Nadeem Abbas and Zaheer Ahmad against their conviction, Appeal No.1387 of 2006 titled "SHAHID AKRAM V. NADEEM ABBAS AND OTHERS", acquitting Nadeem Abbas and Zaheer Ahmad from the charge under section 302 of The Pakistan Penal Code, 1860, and Murder Reference No.605 of 2006 for confirmation of death sentence or otherwise awarded to Mansoor Ahmad (convict) as all the matters arise out of one and the same judgment dated 18-7-2006 recorded by learned Additional Sessions Judge, Sheikhupura, after conclusion of trial in case F.I.R. No.84 of 2004 registered under sections 302 read with section 460 of The Pakistan Penal Code, 1860, at Police . Station Farooqabad, Sheikhupura.

2. Occurrence was reported to the police by Shahid Ikram Bhatti (P.W.8) by lodging F.I.R. (Exh.PA-1) on the strength of complaint (Exh.PK) with the allegation that on 19-5-2004 at 11-30 p.m. four un known persons armed with firearms entered in the house of his maternal grandmother, Iqbal Begum (deceased) while two assailants armed with firearms remained at guard on the roof top of the house. The accused stepping down from the staircase on gun point while extending threats to kill, after getting the rooms opened started search and took gold ornaments weighing 14 tolas, V. C. R. , two mobile phones Nokia and cash to the tune of Rs.22,

500. The armed assailants forcibly removed `Bangles' and 'Karas' weighing 15 tolas from the wrist of his maternal grandmother who raised noise and one of the armed accused opened fire landed on the chest of his grandmother who succumbed to the injuries at the spot. Occurrence is stated to be seen not only by complainant (P.W.8) but also by Haji Muhammad Sarwar (P.W.9), Humera Shehzad and Farah Asif (not cited as witnesses). Initial investigation was conducted by Zafar Iqbal, Inspector (P.W.14) who prepared inquest report (Exh.PP), injury statement (Ex.PO) and application for postmortem examination (Exh.PN). Dead body was dispatched to mortuary for autopsy conducted by Dr. Farida Sheraz (P.W.11) and. after postmortem, last worn clothes of deceased i.e. Shalwar (P12), Shirt (P13), Dupatta (P14), two sealed phial containing swabs and led bullets were produced by Ejaz Qadir constable to the Investigating Officer (PW-14) who took the same into custody vide memo (Ex.PJ). On 23-5-2004, Muhammad Riaz, Draftsman (P. W.10), surveyed the place of occurrence, took rough notes and prepared scaled site plan in duplicate (Exh.PL & Exh.PL-1). Zafar Iqbal, Inspector (P.W.14) arrested Shehzad and Nadeem Abbas on 5-7-2004 who were sent to judicial lock up for identification purpose and identification test was held on 15-7-2004 supervised by Tariq Khan Niazi, Magistrate (P.W.12) and the above-named appellants were correctly picked up by the witnesses (P.W.8 and P.W.9). During the course of investigation, Nadeem Abbas appellant, after making disclosure got recovered V.C.R. (P6) with remote control (P7) secured vide recovery memo (Exh: PE) who also got recovered pistol (P4) and two live bullets (P5-1 to P5-2), taken into custody vide memo (Exh.PD). Shehzad alias Mansoor, appellant also got recovered mobile phone(P3) and .30 bore pistol (P1) and three live bullets (P2-1 to 3) taken into custody vide memos (Ex.PC and Ex.PB) respectively. On 27-7-2004, the same Investigating Officer arrested Zaheer (appellant) whose identification parade was held on 17-8-2004 conducted by Tariq Niazi, Special Judicial Magistrate (P.W.12) and the witnesses (P.W,8 and P.W.9) correctly identified him. On 19-8-2004, Abdul Hameed Dar; S.-I./I.O. (P.W.13) took his physical remand who on 26-8-2004, led recovery of gold bangles (P-8/1-8) and gold 'Karas' P-9/1-2), taken into custody vide memo (Exh.PF). The said appellant also led recovery of 30-bore pistol (P10) and one live bullet (P11) vide memo. (Exh.PG). Looted articles were identified by Allah Bakhsh and Iftikhar P.Ws. (not produced) vide Fard Shanakht (Exh.PV). After conclusion of investigation, report under section 173 of The Code of Criminal Procedure, 1898, was submitted putting all the three appellants to face trial who pleaded not guilty and claimed trial. In order to prove the charge, prosecution produced Mahmood Ahmad-Head-constable (P.W.1), Muhammad Riaz, Head-Constable (P.W.2), Muhammad Yasin-Constable (P. W.3), Shehzad Iftikhar Ahmad, recovery witness (P.W.4), Mukhtar Ahmad. (P.W.5), Muhammad Mansha-Constable (P.W.6), Munawar Hussain-Constable (P.W.7), Shahid Ikram Bhatti-complainant (P.W.8), Muhammad Sarwar, an eye-witness (P.W.9), Muhammad Riaz, Draftsman (P.W.10), Dr. Farida Sheraz (P.W.11), Tariq Khan Niazi, Special . Judicial Magistrate (P.W.12), Abdul Hameed Dar, S.-I./1.O. (P.W.13), Zafar Igbal, Inspector/1.0. (P.W. 14). After producing report of Chemical Examiner (Exh.PZ), report of Forensic Science Laboratory (Exh. PAA) and that of Serologist (Exh. PBB) evidence of prosecution was closed. The appellants in their respective statements under section 342 of The Code of Criminal Procedure, 1898, while controverting the incriminating material pleaded false implication. The learned trial Court vide impugned judgment while recording conviction against Mansoor alias Shehzad (appellant) under section 302(b), of The Pakistan Penal Code, 1860, awarded him sentence of death and payment of compensation to the tune of Rs.1,00,000 under section .544-A of The Code of Criminal Procedure, 1898, but acquitted Nadeem Abbas and Zaheer Ahmad, appellants under section 302(b) of The Pakistan Penal Code. Holding that offence section 460 of The Pakistan Penal Code, stands established against all the three appellants, each of them was awarded life imprisonment. The appellants were also awarded sentence of 10 years' R.I., each and fine of Rs, 50,000 each under section 392 of The Pakistan Penal Code, (though were charged under section 380 of The Pakistan Penal Code). Finding the appellants guilty under section 411 of The Pakistan Penal Code, sentence of three years' R.I. and fine of Rs.20,000 each was also imposed.

3. The appellants through Appeal No.1794 of 2006 have assailed the legality of judgment recording conviction and awarding sentence while the complainant by preferring Appeal No.1387 of 2006 has questioned the judgment acquitting Nadeem Abbas and Zaheer under section 302 of The Pakistan Penal Code, 1860.

4. During the pendency of appeals, it was informed that Nadeem Abbas(appellant) died in jail on 4-1-2012. Keeping in view 'report submitted by Superintendent, Central Jail, Lahore and death certificate, Criminal Appeal No.1794 of 2006 to his extent stands abated and notice issued in his name in connected Criminal Appeal No.1387 of 2006 was withdrawn.

5. Heard adversaries. The learned counsel for the appellant Mansoor alias Shehzad while making reference to the contents of F.I.R. (Exh. PA-1) submitted that the appellants were not nominated in the F.I.R. and prosecution has relied upon the evidence of identification test to connect the appellants in the offence but the evidence is not worthy of credit suffering from material contradictions. Referring to the contents of F.I.R. (Exh.PA-1) and placing reliance upon the dictum laid down in "SABIR ALI alias FAUJI V. THE STATE" (2011 SCMR 563) it was maintained that since description of the accused was not given in the F.I.R., therefore, proceedings of identification are of no value. Again relying upon the dictum laid down in "SABIR ALI" and referring to the proceedings of identification 'test (Exh.PQ), it was contended that role of appellants as an accused was not disclosed and as such no implicit reliance can be placed upon identification proceedings. Making reference to the statement of Shahid Ikram Bhatti, complainant (P.W.8), it was argued that he is resident of Sheikhupura and as such his presence at the spot is doubtful. Submitted that complainant at the most is "chance witness" whose evidence as such cannot be acted upon. Referring to the statement of Muhammad Sarwar (P.W.9) with reference to his place of residence and inter se distance between places of residence and occurrence, it was maintained that his presence at the spot is also doubtful. Again referring to the contents of F.I.R., it was pleaded that prosecution did not produce Humera Shehzad and Farah Asif both present in the house being inmates and as such adverse presumption is to be drawn against prosecution. Adverting to the factum of recovery of looted articles, it was submitted that witnesses of "Fard Shanakhat" were not produced and as such no implicit reliance can be placed upon factum of recovery as confirmatory evidence. Learned counsel for Zaheer Ahmad (appellant) while adopting arguments canvassed at the instance of Mansoor Ahmad alias Shehzad (appellant) placing reliance upon "SHAFQAT MEHMOOD and others V. THE STATE" (2011 SCMR 537), "NAZIR AHMAD V. MUHAMMAD IQBAL and another" (2011 SCMR 527) and "BACHA ZEB V. THE STATE" (2010 SCMR 1189) contended that due to delay in conduct of identification proceedings and omission of the witnesses (P.W.8 and P.W.9) to ascribe role of appellant, identification; test cannot provide incriminating evidence.' Further submitted that the witnesses (P.W.8 and P'W.9) have made improvements in their statements while appearing in court and as such no implicit reliance can be placed upon their evidence. Help was, sought from the dictum laid down in "Syed SAEED MUHAMMAD SHAH and 'another V. THE STATE"(1993 SCMR 550). Making an attempt to rule out recovery of weapon of offence and looted articles from consideration, it was maintained that since there was no proper identification of said articles, therefore, cannot advance plea of prosecution. Conversely, learned Deputy Prosecutor General and learned counsel for the complainant maintained that the witnesses (P.W.8 and P.W.9) have no bias or malice against the appellants to implicate them, falsely and as such their deposition can be safely relied upon who picked up the appellants in identification test correctly. Submitted that both the witnesses while appearing in the court also explained the role of appellant and as such no exception can be taken to the statements of witnesses. Replying the argument advance at the instance of appellants questioning the presence of witnesses (P.W.8 and P.W.9) at the spot submitted that F.I.R. was lodged promptly, just within 45 minutes of the occurrence and as such presence of both the witnesses at the place of occurrence stands established. Referring to the evidence of Shehzad Iftikhar Ahmad (P.W.4) it was contended that robbed articles were recovered from both the appellants which were duly identified, providing sufficient corroboration to the ocular account. Submitting arguments with reference to acquittal of Zaheer Ahmad (appellant) under section 302 of The Pakistan Penal Code, it was argued that since offence under section 460 of The Pakistan Penal Code, was established against him, therefore, was also liable to be convicted under section 302(b) of The Pakistan Penal Code.

6. We have anxiously considered the arguments and perused the record minutely.

7. The prosecution in order to prove the guilt of the appellants banked upon the evidence of identification parade besides factum of recovery and medical evidence.

8. Since the 'evidentiary value and legality of identification test has been seriously questioned at the instance of appellants, therefore, prior to dealing with respective contention of adversaries, it would be beneficial to know the parameters while holding identification test in order to connect the accused in the commission of crime. Moot point was examined and dealt with by Honourable Apex Court and learned High Courts in the following judgments amongst others. "KAIM and others V. THE STATE" (PLD 1961 Karachi 728), "WAHID BAKHSH and others V. THE STATE" (1969 PCr.LJ 1317), "LAL PASAND V. THE STATE" (PLD 1981 SC 142), "GHULAM RASOOL and 3 others V. THE 'STATE" (1988 SCMR 557), "MEHMOOD AHMAD and 3 others V. THE STATE and another" (1995 SCMR 127), "KHADIM HUSSAIN V. THE STATE" (1985 SCMR 721), "ALIM V. THE STATE" (PLD 1967 SC 307), "ALI MUHAMMAD and another V. THE STATE" (1985 SCMR 1834), "ARIF MASIH and another V. THE STATE" (PLD 2001 SC 398), "MUHAMMAD ZAMAN V. THE STATE" (2007 SCMR 813), "SOLAT ALI KHAN V. THE STATE" (2002 SCMR 820), "LAL SINGH V. 'CROWN" (ILR' 51 Lahore 396), "ASGHAR ALI alias SABAH and others V. THE STATE and others" (1992 SCMR 2088), "BACHA ZEB V. THE STATE" (2010 SCMR 1189), "SIRAJ-UL-HAQ and another V. THE STATE" (2008 SCMR 302), "NAZIR AHMAD V. MUHAMMAD IQBAL and another" (2011 SCMR 527), "SHA.FQAT MEHMOOD and others V. THE STATE" (2011 SCMR 537), "KAMRAN KHAN and others V. STATE" (PLJ 2011 Cr.C. (Lahore) 842) and "SABIR ALI alias FAUJI V. THE STATE" (2011 SCMR 563). By examination of case-law following points can be formulated amongst others to be kept in view while determining the legality and evidentiary value of identification test:

(a) Identification proceedings should be held as early as possible but no hard and fast rule can be formulated. 'However, delay in holding identification 'test will reduce its value; (b) Identification test should not be held at police station; (c) Separate identification parade should be conducted for each accused; (d) Whole proceedings of identification test including lining up accused with dummies should be conducted by the Magistrate himself and the assignment should not be delegated to the jail authorities; (e) Prior to conduct of proceedings, concerned authority is under obligation to conceal the identity of the accused from one place to another place and such measures are not only required to be taken but should be proved to have been taken; (f) It is the duty of Supervising Magistrate to make note of every objection made by accused at the time of parade enabling the court of competent jurisdiction to judge the genuineness of the objection while determining value of identification test; (g) Number of dummy for each accused must be given; (h) Description of dummies as to whether they were of the same structure, age etc. should be mentioned; (i) Number of dummies to be mixed with each accused should not be less than nine or ten; (j) No mark or stamp should be put on the suspected person; (k) The dummies and the suspect should be of same structure. If there is any visible mark on the person of accused (For example, beard), it is advisable to mix up the accused with others of similar appearance; (l) Role of each accused must be described by the witness. The witnesses are required to explain as to how and in what manner they were to identify or pick up the accused person;

9. Keeping in view the above parameters evidence led by prosecution is to be scanned. Perusal of the record suggests that identification test of Mansoor alias Shehzad and Nadeem Abbas (since dead) was conducted jointly by associating 14 dummies. No reason, whatsoever, has been mentioned in the report (Exh. PQ) and by Supervising Magistrate (P.W.12) for holding of joint identification parade. Similarly, number of dummies as per established practice endorsed by the superior courts were not associated. However, identification test of Zaheer (appellant) was conducted separately on 17-8-2004 as is evident from report (Exh.PR) associating eight dummies. Evidence of Tariq Khan Niazi, Special Judicial Magistrate (P.W.12), Abdul Hameed Dar, SI and Zafar Iqbal, Inspector (both I.Os.) (P.W.13 and P.W.14) is totally silent about the precautions taken by I.Os. in order to conceal their identity while moving the appellants from one place to another place which were not only required to be taken but should have been proved. 'It is to be noted that the appellants raised objection before the Supervising Magistrate (P.W.12) that complainant party saw them in the lock up who are their mohallah fellows and their photographs were also taken. In view of the objection prosecution must have adduced evidence suggesting measures to conceal the identity, of 'both the appellants while producing them before the Ilaqa Magistrate, keeping them in police as well as judicial lock. up. The, most important factor to brush aside the identification proceedings is omission on the part of the witnesses (P.W.8 and P.W.9) to explain the role of Zaheer appellant. Muhammad Sarwar (P.W.9) while participating in the identification proceedings did not disclose the role of Mansoor alias Shehzad (appellant). Though complainant (P.W.8) in proceedings (Exh.PQ) while picking up Mansoor maintained that he fired but said attribution by itself would not be sufficient to implicate him in view of omission describing the role of said appellant in detail and in explicit words: Even if it is presumed, that role was ascribed by complainant stamping Mansoor alias Shehzad as foe, it would not be sufficient to prove case against the said appellant in view of another important factor going to be dealt with in preceding paragraph.

10. Perusal of the contents of F.I.R. suggests that no description of accused, whatsoever, was given in the F.I.R. (Exh.PA-1). In "MAULA .DAD alias MAULA and others V. EMPEROR" (AIR 1925 Lahore 426), while dealing with the evidentiary value of identification test in view of omission to give' particulars it was held that such type of evidence cannot be relied upon. In "STATE/GOVERNMENT OF SINDH through Advocate-General Sindh, Karachi V. SOBHARO" (1993 SCMR 585) evidence of identification test was ruled out for want of description of accused in the F.I.R. Similar rule of law was expounded in "SABIR ALI alias FAUJI V. THE STATE" (2011 SCMR 563).

11. Matter can be looked from another angle which also prompted us not to consider the evidence of identification parade. Occurrence took place at 11-00 p.m. Contents of F.I.R.' are totally silent with reference to provision of any source of light to suggest that both the witnesses (P.W.8 and P.W.9) were able to get momentary glimpse of the appellants as an accused. The learned Deputy Prosecutor General as well as learned counsel for the complainant while making reference to the statements of both the witnesses (P.W.8 and P.W.9) maintained that they saw the accused in the light of bulb and tube light as categorically stated by them. However, this part of deposition would not advance plea of prosecution for two fold reasons. Firstly, both the witnesses are not in agreement with each other regarding exact source of light. According to the complainant (P.W.8) he saw the accused in the light of bulb fixed in the courtyard while according to Muhammad Sarwar (P.W.9) tube-lights were on in 'the courtyard. Both the witnesses were confronted with F.I.R. and statement under section 161 of The Code of Criminal Procedure, in which admittedly source of light was not disclosed. In view of the matter, conscious attempt was made. by both the witnesses to make dishonest improvements before the court and as such are not worthy of credit. Reliance is placed upon "Haji BAKHSH V. THE STATE" (PLD 1963 Karachi 805), "QAIM DIN and others V. THE STATE", (1971 PCr.LJ. 299), "FAZLA and another V. THE STATE" (PLD 1960 Lahore 373), "AMIR ZAMAN V. MEHBOOB and others (1985 SCMR 685) and "Syed SAEED MUHAMMAD SHAH and another v. THE STATE" (1993 SCMR 550).

12. Viewed from whichever angle, evidence of identification test suffers from legal infirmities not conducted according to parameters and High Court Rules and Orders (Vol. III,) and as such cannot be banked upon.

13. Evidence of recovery of looted articles was relied upon by prosecution as corroborative piece of evidence. According to Shehzad Iftikhar Ahmad, a recovery witness (P.W.4), Mansoor alias Shehzad got recovered mobile phone (P3) taken into custody vide memo (Exh. PC). Same witness is the recovery witness of looted articles recovered on the pointation of Zaheer Ahmad (appellant). According to his statement, on the pointation of said appellant gold bangles (Exh.P-8/1-8) and two Karays (P-9/1-2) were recovered taken into custody vide memo (Exh PF). Admittedly, no attempt was made during the course of investigation to get the identification of mobile phone I recovered from Mansoor alias Shehzad (appellant). Though identification memo (Exh. PV) was prepared regarding the identification of gold ornaments recovered on the pointation of Zaheer Ahmad (appellant) but neither identifier Shehzad Iftikhar son of Haji Muhammad Lateef nor witnesses of said memo i.e. Allah Rakha and Sh. Iftikhar Ameen were produced. The said memo were admitted in evidence in the statement of Abdul Hameed Dar, S.-I./I.O. (P.W.13). Though it was argued at the instance of complainant that articles were identified by Shehzad Iftikhar Ahmad (P.W.4) son of deceased but the argument cannot advance plea of the prosecution in view of difference of parentage of this witness and identifier. Even otherwise, the said witness (P.W.4) though disclosed the factum of recovery but did not -utter even a single word regarding identification of gold ornaments. Though this witness is son of deceased but it was not possible for him to identify the said articles. Only women folk were in a position to identify the ornaments. Perusal of the memo (Exh.PV) suggests that gold ornaments were identified by Shehzad Iftikhar. Admittedly, the looted articles were not mixed up with similar type of ornaments. Neither any evidence was led to establish its purchase nor any identification mark existed to establish its ownership. In view of matter, no, implicit reliance can be placed upon this memo to prove factum of identification. We are fortified in our view by law laid down in "SHAFI MUHAMMAD V. THE STATE" (PLD 1971 Karachi 721).

14. Recovery of weapon of offence i.e. .30-bore pistols from both the appellants in the absence of recovery of crime-empty would not advance plea of prosecution to use the said recovery as corroborative piece of evidence. Report of Forensic Science Laboratory (Exh.PAA) suggesting that .30-bore pistol recovered from Shehzad alias Mansoor (appellant) in working order cannot be used. as corroborative piece of evidence.

15. Argument advanced by learned counsel for the complainant that appellants failed to disclose any bias or malice on the part of complainant to implicate them falsely is sufficient to prove veracity of stance of prosecution in view of evidence led by prosecution cannot advance plea of prosecution because it is the duty of prosecution to prove the case against the accused beyond shadow of doubt irrespective of the plea raised by defence. Needless to state that defence is not duty bound to disprove the prosecution case. Defence may take the plea or not and may be sometimes failed to prove the same but it is always the prosecution to prove the case beyond shadow of doubt. It would be sufficient if defence succeeds in putting a doubt in the case of prosecution. Pursuant to discussion made, there can be no two opinions that prosecution failed to prove its case against the appellants beyond shadow of doubt and as such while extending benefit of doubt, setting aside impugned judgment and accepting Criminal Appeal No.1794 of 2006 titled "MANSOOR AHMAD AND OTHERS V. THE STATE" the appellants Mansoor Ahmad alias Shehzad alias Sherri and Zaheer Ahmad are hereby acquitted of the charge.

16. Death sentence awarded to Mansoor Ahmad alias Shehzad appellant is not confirmed. Murder Reference No.605 of 2006 is answered in Negative.

17. Consequent upon acceptance of Criminal Appeal No.1794 of 2006, Criminal Appeal No.1387 of 2006 titled "SHAHID AKRAM V. NADIM ABBAS AND OTHERS" is dismissed.

18. Both the appellants i.e. Mansoor Ahmad alias Shehzad and Zaheer Ahmad are in judicial lock up. They be released forthwith if not required in any other case. NHQ/M-126/L Appeals accepted.