Awan for ' RUSTAM ALI MALIK, J.--- This judgment will dispose of Criminal Appeal No,1583 of 2002, Criminal Appeal No,1668 of 2002 and also Murder Reference No,80-T of 2002, all arising out of the judgment, dated 4-9-2002 passed by the learned Judge, Anti-Terrorism Court No,I, Gujranwala. Vide the impugned judgment the appellants namely Tanvir Ahmad, Basharat Ali, Muhammad Tasawwar and Qamar Shahzad were convicted by the learned trial Court under section 7(a) of the Anti- Terrorism Act, 1997 and section 302, P.P.C. And were sentenced to death and were also directed to make payment of fine of Rs,1,00,000 each. It was directed that on recovery, the amount of fine shall be paid to the legal heirs of the deceased (as compensation). The appellants were also convicted under section 324, P.P.C. And section 7(1) of the Anti-Terrorism Act, 1997 for committing murderous assault on the police party and were sentenced to 10 years' R.I. And a fine of Rs,10,000. It was directed that in case of default in payment of fine, the defaulting accused will have to undergo S.I.
For 3 months. The appellants were further convicted under section 353, P.P.C. And were sentenced to two years' R.I. The learned trial Court however, acquitted Muhammad Akbar and Shahbaz Ahmad accused by extending to them benefit of doubt.
2. The case against the appellants and their co-accused is based on F.I.R. No,40 of 2002 registered on 24-2-2002 at 11-15 p.m. In Police Station Phalia, District Mandi Baha-ud-Din under sections 396, 353, 148, 324 and 149, P.P.C. The formal F.I.R. Exh.P.A. Was registered on the basis of the statement Exh.P.A./1 of Ghous Ali Shah, A.S.-I. (P.W.1) of Police Station Phalia and wherein he had stated that on the day of occurrence i,e, on 24-2-2002, around 9-45 p.m., he and Muhammad Khan, Constable No,468 were proceeding towards Mumtaz Filling Station on Motorcycle No,5903-MB, in connection with routine patrolling duty and Nakabandi and when they reached on the passage leading to the Dera of Iftikhar Ahmad Tarar, Advocate, six unknown culprits equipped with fire-arms were looting there the Trolleys loaded with sugarcane and other vehicles passing from there. When they reached near them, the accused started firing at them. The complainant stopped the motorcycle and Muhammad Khan, Constable No,468 who was armed ' with a kalashnikovs fired in self- defence. However, the accused fired bursts, hitting Muhammad Khan, Constable on his chest. The complainant fell down from the motorcycle while Muhammad Khan also fell down after being hit by fire shots. The complainant received injury on the wrist of his right hand by falling on the ground.
In the meanwhile, Asif Javed and Aziz Ahmad who had also been stopped by the accused raised Lalkara and in the meanwhile Imtiaz Ahmad Constable No,27 and Munir- Ahmad P.Q.R. Who were coming behind them on a private motorcycle also reached there. The complainant, Imtiaz Ahmad, constable and Munir Ahmad P.Q.R. Asif Javed and Aziz Ahmad P.Ws. Raised Lalkara and pursued the accused but taking advantage of the darkness the accused fled away towards the north.
Muhammad Khan constable succumbed to the injuries at the spot. In the meanwhile, the Inspector/S.H.O. Reached the spot and the matter was reported to him by the complainant.
3. During the course of investigation the appellants and their co-accused i,e, Shahbaz Ahmad and Muhammad Akbar were apprehended and on the conclusion of investigation, challan was submitted against them in the Anti-Terrorism Court. The accused were formally charged by the learned trial Court and to which they pleaded not guilty and hence the prosecution was asked to produce its evidence.
4. In this case the prosecution examined as many as 17 P.Ws. Of them, P.W.17 is Fakhar Bashir, Inspector/S.H.O. Who on 24-2-2002 was on routine patrolling duty at Kathiala Road. He went to check the Police Check Post near the Mumtaz Filling Station where one of the police employees namely Muhammad Khan constable had been murdered and his dead body was lying on the road side and Ghous Ali Shah, A.S.-I. Was present there alongwith an other constable, one Razakar and three or four persons from the public. He recorded the statement of Ghous Ali Shah, A.S.-I. As Exh.P.A. And sent the same to the police station for registration of the case and on which formal F.I.R. Exh.P.A./1 was registered. He prepared the injury statement, the inquest report and also the application for post-mortem examination. He sent the dead body to the mortuary under the escort of a constable. He collected 26 empties of kalashnikovs and 8 empties of pistol .30 bore and secured the same vide memo. Exh.P.F. He also collected the blood-stained earth from the place of occurrence. Basharat and Tanvir accused were arrested by the police of Police Station Kathiala Sheikhan on 27-2-2002 and who were sent to jail for identification parade. On 11-3-2002, the Dera of Tasawwar was raided and from there the accused namely Tasawwar, Qamar Shahbaz and Akbar were arrested. They were produced before the Judicial Magistrate on 12-3-2002 and before the Anti-Terrorism Court on 13-3-2002. On an application for identification parade, the learned Sessions Judge, Mandi Baha-ud-Din deputed learned Judicial Magistrate to conduct/supervise the identification parade on 21-3-2002. On 5-4-2002, P.W.17 i,e, the Investigating Officer interrogated the accused namely Tanvir, Basharat, Qamar Shahzad and Tasawwar. On a disclosure made by them, they were taken to Police Station Kathiala Sheikhan where they identified their arms i,e, kalashnikovs and pistol. He stated that on 5-4-2002, on their way to Police Station Phalia from Kathiala Sheikhan, Tanvir and Basharat accused got stopped the official vehicle near the place of occurrence and produced before him a Seiko 5 wrist watch which was taken into possession by him. On 4-4-2002 Tanvir and Basharat accused were brought from jail and their physical remand was obtained for two days and after effecting recovery from them, they were again sent to judicial lock-up on 6-4-2002. He investigated the case and thereafter the accused were challaned by him.
5. P.W.6 is Dr. Khalid Mahmood Khokhar, S.M.O. Who on 25-2-2002 at 11-30 a.m. Alongwith the M.S. Of D.H.Q. Hospital Mandi Baha-ud-Din namely Dr. Asif Ali Khan and D.M.S. Namely Dr. Yar Ahmad Zia and D.H.O. i,e, Dr. Arshad Mahmood Tabassum conducted the post-mortem examination on the dead body of Muhammad Khan deceased and found four external injuries on the dead body, besides which there were three exit wounds. According to the opinion of P.W.6, the death had occurred due to fire-arm injuries to vital organs like heart, lungs and liver. The time between injuries and death was immediate and the time between death and post-mortem examination was 12 to 14 hours. Exh.P.C. Is the carbon copy of M.L.R. While Exh.P.C./1 is the sketch of injuries.
6. P.W.1 is Ghous Ali Shah, A.S.-I. Complainant who deposed on the same lines as indicated in the F.I.R. He also stated that Imtiaz Ahmad and Munir Ahmad P.W. Were coming behind them on a private motorcycle and they alongwith him chased the accused and recognized them in the light of the car coming from the opposite side. He stated that the accused ran towards the north and Muhammad Khan succumbed to the injuries. He also deposed that Asif Javed and Aziz Ahmad were residents of Phalia who had been stopped by the accused. They met them and told them that the accused had snatched money and wrist watches from them. They also informed them that they could recognize the accused if brought before them. The S.H.O. Reached the spot after receiving the information about the occurrence and recorded the statement Exh.P.A. On 25-2-2002 he made a supplementary statement before him. On 21-3-2002 he identified Tasawwar, Qamar Shahzad, Tanvir and Basharat as accused who had fired at the police party and had committed murder of Muhammad Khan constable.
7. P.W.3 lmtiaz Ahmad Constable 217 and P.W.4 Aziz Ahmad also claim to be the eye-witnesses of the occurrence. They had also participated in the identification parade.
8. P.W.2 is Hamid Mahmood Khan, Magistrate who on 21-3-2002 had conducted the identification parade of Tasawwar, Basharat Ali, Qamar Shahzad and Tanvir Ahmad accused at the premises of Jail, Mandi Baha-ud-Din. The report prepared by him is Exh.P.B.
9. P.W.10 Muhammad Azam Constable No,495 has been examined as a recovery witness in this case.
10. P.W.12 Ahmad Khan and P.W.13 are the witnesses of extrajudicial confession of Shahbaz, Akbar and Muhammad Yar accused.
11. P.W.15 Imtiaz Ahmad is Moharrar Head Constable who stated that on 5-4-2002 Ejaz Ahmad, S.H.O.
Had deposited in Malkhana one kalashnikov, one .30 bore pistol allegedly recovered from Basharat, one kalashnikov allegedly recovered from Tanvir Ahmad and which were the case property in cases relating to F.I.R. Nos.49, 50, and 51 of 2002 registered under section 7 of the Surrender of Illicit Arms Act, 1997. On 5-4-2003 Fakhar Bashir, Inspector from Police Station Phalia visited Police Station Kathiala Sheikhan and brought with him Basharat, Tavnir and two other accused at 9/10 a.m. He brought but the weapons from Malkhana and Basharat and Tanvir recognized the weapons allegedly recovered from them. He deposed that Basharat accused identified one kalashnikov and one .30 bore pistol whereas Tanvir accused identified one kalashnikov and .30 bore pistol (he again stated that Tanvir accused identified only one kalashnikovs). He deposed that the Thanedar had taken into possession the said weapons and had sealed them in the parcels. On 27-6-2002 the Prosecutor closed the prosecution evidence after tendering in evidence report of Forensic Science Laboratory Exh.P.R. Report of Chemical Examiner Exh.P.S. And report of Serologist Exh.P.T.
12. After the conclusion of prosecution evidence the statements of the accused were recorded under section 342, Cr.P.C. Wherein they denied all the incriminating circumstances, Tanvir Ahmad accused in answer to the question as to why this case against him and why the P. Ws. Deposed against him replied that the witnesses had not seen the occurrence and that the private witnesses were police touts and the police witnesses were introduced only to strengthen the case of the prosecution and unfortunately he and his family had old enmity in their village Mir Khani with Gujjar Tribe and their enemies conspired with Ijaz Warriach, S.H.O. Police Station Kathiala Sheikhan and Fakhar Bashir S.H.O. Police Station Phalia and thus, involved him falsely in this case.
13. Basharat Ali accused adopted the same reply of Tanvir Ahmad accused in answer to the above mentioned question. Muhammad Akbar accused in answer to the above mentioned question replied that his stepbrother Muhammad Yar was inimical towards him. Unfortunately the present occurrence took place near his Dera. Police came to his village to trace out the culprits. Aforesaid Muhammad Yar conspired against him and his co-accused and gave wrong information to the police, on which police joined him, his two sons namely Qamar Shahzad and Shahbaz Ahmad and his son-in-law Muhammad Tasawwar as accused in this case.
14. Shahbaz Ahmad, Muhammad Tasawwar and Qamar Shahzad accused, in reply to the above question, adopted the reply of their co-accused Muhammad Akbar.
15. After the conclusion of trial, the learned trial Court convicted and sentenced the appellants as aforesaid.
16. Aggrieved of the impugned judgment, Muhammad Tasawwar and Qamar Shahzad accused filed Criminal Appeal No,1583 of 2002 whereas Tanvir Ahmad and Basharat Ali also filed an Appeal (Criminal Appeal No,1668 of 2002). The learned trial Court has also sent a Reference (Murder Reference No,80/T of 2002) for confirmation of sentence of death awarded to the appellants.
17. The learned counsel for the appellants has argued that actually it was an unseen occurrence which had taken place during the darkness of night and hence it was improbable that the P.Ws.
Could identify the culprits; that the ocular account in this case does not inspire confidence and it could not be believed that the eye-witnesses had identified the culprits (who were not known to them) even in the darkness of night and were able to identify them later in the identification parade and which had been conducted in an illegal manner and that the appellants were shown to the P.Ws. While they were in the police station and it was subsequently, that they were sent to jail where the identification parade was held. He has argued that it was a delayed identification parade and, furthermore, there was no description of the accused in the F.I.R. And hence the identification parade held in this case has no importance; that it is highly probable that the P.Ws.
Who claim to have seen the accused running away from the place of occurrence, could identify them subsequently, even if they had not seen their faces. He has relied upon State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1, Lal Pasand v. The State PLD 1981 SC 142, Abdul Sattar and others v. The State 1981 SCM R 678 and has argued that the identification parade in this case was held in violation of the guiding principles laid down by the superior Courts for such an identification parade and that the identification of the accused by the P.Ws. At the time of occurrence was improbable, the recoveries were fake and as the deceased was a police official, the investigation was not conducted in an impartial manner. He has argued that the prosecution evidence in this case is replete with inconsistencies and contradictions and does not inspire confidence and hence the appellants are entitled to be acquitted.
18. From the other side, the learned counsel for the State supported the judgment of the learned trial Court and has argued that there is sufficient evidence in this case to warrant conviction and keeping the nature of offence in view, the appellants who had committed Qatl-e-Amd of a police official on duty and had indulged in acts of terror, have been rightly convicted by the learned trial Court and, therefore, the judgment of the learned trial Court be upheld.
19. We have carefully considered the arguments.
20. Admittedly, in the F.I.R. There was no description whatsoever of the accused. Features of none of the accused were not mentioned in the F.I.R. Nor it was mentioned therein that either the complainant or Aziz Ahmad P.W.4 had identified or had even properly seen the accused from A the opposite side. Anyhow, it is not understandable as to how Imtiaz Ahmad and Munir Ahmad who were coming behind the complainant and Muhammad Khan deceased on motorcycle had managed to "recognize" the accused in the light of a car coming from the opposite side. Obviously the accused were ahead of aforesaid P.Ws. And the headlight of the car coming from the opposite direction could be on the faces of the culprits but the complainant, Imitaz Ahmad and Munir Ahmad P.Ws. Were behind the accused and not ahead of them and it is not understandable as to how they had seen their faces. P.W.1 Ghous Ali Shah, A.S.-I. In his examination-in-chief also stated that on 21-3-2002 he had identified Tasawwar, Qamar Shahzad, Tanvir and Basharat accused (in the course of test identification parade). In the F.I.R. The complainant had not mentioned the features of the accused. He says that Imitaz Ahmad and Munir Ahmad who were coming behind them on a motorcycle had chased the accused alongwith him. He and Muhammad Khan deceased had fallen from the motorcycle and in the process the right wrist of the complainant was also fractured. It was a night occurrence and the accused had fled away after firing at the deceased. The question arises as to how the complainant who had fallen from the motorcycle had sufficient time to see the faces of the accused. In case he had not seen the features of the accused, how he could identify them subsequently in the course of test identification parade.
Imtiaz Ahmad Constable appeared as P.W.3 and he deposed on the same lines as P.W.1. According to his statement, the accused had fired at the complainant and Muhammad -Khan and the accused had decamped towards the north while Ghous Ali Shah, A.S.-I. Was injured by falling from the motorcycle. P.W.3 deposed that the accused were not known to him at that time. However, he claims to have seen their faces. He further claims that he identified Tanvir, Basharat, Tasawwar and Qamar accused. During the cross-examination he even claimed that he had mentioned the names of the accused persons namely Tanvir, Basharat, Qamar and Tasawwar in his statement before the police (Exh.D.A.). He was confronted with his aforesaid statement during the course of cross-examination and contents whereof contradicted him. Even otherwise, it is obvious that if the accused were not previously known to him, how could he mention their names in his statement Exh.D.A. Which was recorded by the Investigating Officer under section 161, Cr.P.C. After the occurrence. During the cross-examination he also stated that he was armed with G.3 rifle at the time of occurrence with 50 bullets but he did not fire because the owners of the Tractor Trolleys were also running towards the accused in the same direction. He again stated in the course of cross-examination that the owners of the Tractor Trolleys were 4/5 in number. However, they were not running with the accused but were standing on the northern side and that they were not previously known to him. During the course of cross-examination he could not say whether Ghous Ali Shah complainant had any weapon with him or not as he was ahead of him. It is very strange that a man who claims to be an eyewitness of the occurrence does not know whether Ghous Ali Shah A.S.-I./complainant had any weapon with him or not. In his cross-examination he further stated that he did not remember the colour of the dresses of the accused which they were wearing at that time. This also casts doubt on his credibility.
21. Another eye-witness i,e, Aziz Ahmad has been examined as P.W.4. He stated that he had himself chased the accused. During cross-examination he stated that no sooner they reached there, the police came and at the same time the accused fired at the police. He also stated that he had mentioned the features and the height of the accused in his statement under section 161, Cr.P.C. He was confronted with his statement under section 161, Cr.P.C. On this point and contents whereof contradicted him. He stated that (at the time of identification parade) he did not inform the Magistrate as to which of the accused was armed with kalashnikovs and which of them was armed with the pistol. He stated that the accused were arrested 3/4 days after the occurrence and he had visited the police station in order to know whether the accused had been arrested or not and that the P.Ws. Who were police officials had also accompanied him to the police station at that time.
Now if this is the position, how the statement of this witness regarding identification of accused in jail can have any evidentiary value when he himself admits that he alongwith the police officials (who are the P.Ws. In this case had visited the police station. The obvious purpose of their visit could be to see the accused there before they were sent to jail.
22. In this case the weapons of offence were not recovered from the accused during the investigation of this case. Rather they were taken to the police station where the Moharrar i,e, P.W.15 brought out the aforesaid arms from Malkhana and it was there that Basharat and Tavnir accused who were in custody were stated to have identified the same. Such type of evidence cannot be considered as recovery evidence and it cannot be described as a corroborative piece of evidence.
23. So far as the test identification parade is concerned, it was held in the case Lal Pasand v. The State 1981 SC 142 that as dangers of errors in identification being very great, it was not safe except in exceptional circumstances to base conviction on evidence of solitary eye-witness particularly when the witness could have only a fleeting glimpse of the accused and where no description of assailants was given by the witness in his statement to the police. In this case, Ghous Ali Shah, A.S.- I., P.W./complainant, according to the prosecution story was not the only eye-witness as two others were following behind him, but even if it was so, all of them had only a fleeting glimpse of the accused and that too in the darkness of night. It was held in the case State v. Farman Hussain PLD 1995 SC 1 that where there were discrepancies in the statements of witnesses and improbabilities were inherent in their versions, particularly when there was contradiction in the description of the assailants, evidence of such witnesses could not be accepted.
24. In this case it was a night time occurrence. According to the prosecution version, the culprits had fired as soon as the complainant and the deceased reached near the place of occurrence where the culprits were looting the people passing from there. The deceased had received the fire shot in his chest while the complainant also fell down from the motorcycle and got his wrist fractured. However, he says that Imitaz Ahmad and Munir Ahmad were coming behind them on motorcycle and that they i,e, the complainant and the aforesaid P.Ws. Chased the accused and recognized them in the light of a car coming from the opposite side. It has already been mentioned above that it was highly improbable that the eye-witnesses could identify the culprits when the only source of light is stated to be the headlight of a car coming from the opposite direction and the P.Ws. Were chasing the accused who were ahead of them. The subsequent identification parade had no legal importance when the P.Ws. Had visited the police station after the arrest of the accused.
25. The prosecution story in this case is full of inconsistencies, contradictions and improbabilities.
The eye-witnesses effected improvements in their statements on a number of material points. On the basis of evidence of this nature, conviction cannot be recorded on capital charge. It was held in State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 that while trying a criminal case, it is the duty of the Court to appraise evidence strictly according to the legal requirements described by law, without being swayed away emotionally for any other extraneous reasons which fall outside the pale of legal jurisdiction of appraisement of evidence. In this authority it was also observed that in the criminal jurisprudence which is followed, it is invariably the duty of the prosecution to prove the case against the accused beyond doubt and the accused is presumed to be innocent until the case is fully proved against him and in that process, not only if there is room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted. The Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired results, then it is the duty of the Legislature to amend them suitably to make them effective. Court is not permitted to deviate from the principles and guidelines laid in the law for appraisement of evidence. To bring home guilt to the accused, legal evidence is required to be of incriminating nature to connect accused with the commission of crime beyond the shadow of reasonable doubt.
26. In this case, as mentioned above, the eye-witnesses have clearly failed to establish that they had actually seen the culprits clearly at the time of occurrence or had remembered their features.
Hence subsequent identification of the accused by them during the identification parade was without any legal importance. The recoveries of weapons of offence were not effected in this case, rather the accused were shown the alleged weapons of offence in the police station and which according to the prosecution story were identified by them. The medical evidence is merely a corroborative piece of evidence and in the absence of reliable 'ocular account, the medical evidence cannot be considered as a corroborative piece of evidence. The prosecution story is full of improbabilities, doubts and improvements and the benefit of doubt in all cases has to go to the accused. Hence the conviction of the accused in this case cannot be upheld and is liable to be set aside.
27. In view of what has been stated above, both the Appeals (Nos. 1583 of 2002 and 1668 of 2002) are accepted, the conviction recorded as well as the sentence awarded by the learned trial Court to the appellants is set aside and the accused/appellants are given the benefit of doubt and are acquitted of the charge. If not required in connection with any other case, they be set at liberty forthwith.
28. Sentence of death awarded to the accused/appellants by the learned trial Court is not confirmed. Murder reference is answered in the negative.