CH. IFTIKHAR HUSSAIN, J.-- Appellant Sarfraz alias Mattu along with others namely Shabber Shah alias Muhammad AN and Syed Ghulam Raza Naqvi was tried for offence under section 324 read with section 34 PPC and 5 of the Explosive Substances Act, 1908 in case FIR No.254 registered with Police Station Shahdara, Lahore on 22.04.1994.
2. He vide the judgment delivered on 02.08.2002 by Mr. Manzoor Hussain Dogar, learned Judge Anti Terrorism Court No.In, Lahore was convicted and sentenced as follows:- U/S 7(c) of the ATA. 1997 To suffer 14 years R.I and to pay i.e of Rs.1,00,000/- and in default of the same to further suffer R.I for two years.
U/S 5 of the Explosive Substances Act, 1908 To suffer 10 years' R.I.
Both his sentences were to run concurrently. He was extended the benefit of section 382-B Cr.P.C.
3. However, his aforesaid co-accused were acquitted of the charge for want of evidence against them.
4. He feeling himself aggrieved of the impugned judgment of h is conviction and sentence has assailed the same by way of the instant appeal.
5. The brief facts relevant for the disposal of the appeal are that the said case has been registered on the statement Exh.PA of complainant Mian Maqsood Ahmad (PW-3). He has mentioned therein that on 22.4.1994 at about 5.10 P.M. He was present opposite Jamia Masjid Muhammad, Sheikhupura Road, Jiamusa. At that time many persons were saying Asar prayer in the mosque. All of a sudden there were heard two blasts. He immediately went towards the mosque and saw Imam of the Mosque Qari Muhammad Saeed, Abu Bakar, Haji Abdul Rashid, Haji Muhammad Younus, Haji Muhammad Ishaq, Haji Muhammad Munir, Hafiz Muhammad Kashif, Hafiz Samad and many others, who were saying prayer there, coming out of the same in an injured condition. The blasts were made by two unknown persons, who were riding on a Honda 70 CC. They had entered through the main gate and threw hand grenades on the Namazian to murder them. They thereafter, fled away on the motorcycle towards Shahdara More.
6. The accused could not be traced out and the case, therefore, was filed.
7. On 16.2.1995, the appellant was arrested along with two others namely Safqat and Falak Sher.
They came riding on a motorcycle from Awan Town. The police party headed by Shah Nawaz, S.I, (PW-14), arrested him and Safqat, and Falak Sher managed good his escape therefrom. The appellant in the I investigation disclosed that he along with Ghulam Raza Naqvi, Shabbar Shah alias Muhammad Ali; Mubashar and Zaheer Abbas while riding in a car and motorcycle had gone to Jiamusa Shahdara and there they had thrown the grenades in the mosque at Asar prayer time.
8. He along with his aforementioned acquitted co- accused was challaned to the Court.
9. They were formally charged under section 5 of the Explosive Substances Act, 1908 and section 324 read with section 149 PPC. They plead not guilty to the charge.
10. The prosecution at their trial had examined it's 22 witnesses. They were Muhammad Aslam, Constable (PW.1), Rehmat Ali, Constable (PW.2), complainant Maqsood Ahmad (PW.3), Zafar Iqbal (PW.4), Fiaz Hussain, Constable (PW.5), Muhammad Saeed, Head Constable (PW-6), Abdul Qayyum (PW.7), Muhammad Saeed (PW.8), Hafiz Abdus Samad (PW.9), Muhammad Ishaq (PW.10), Hafiz Muhammad Kashif (PW.11), Muhammad Akhtar (R) S.I (PW.12), Khuram Abbas, S.I. (PWs. 13), Shah Nawaz, S.I. (PW-14), Mushtaq Ahmad Bhatti, Inspector (R) PW-15), Mr. Aftab Ahmad, Magistrate (PW.l6), Muhammad Nadeem, AS1 (PW.1 7), Muhammad Ashraf, AS1 (PW.18), Abdul Rashid (PW-19), Muhammad Munir (PW.20), Abu Bakar (PW.21) and Muhammad Aslam, S.J (PW.22).
11. The appellant in his examination under section 342 Cr.P.C had denied the allegation appearing against him in the prosecution evidence. He attributed his involvement in the case due to his connection with the Shia Sect. He neither produced evidence in his defence nor opted to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
12. The learned trial Court after hearing the parties concluded that the prosecution as per it's evidence on the record had succeeded in proving the charge against him and not against his above named co-accused.
13. It has been contended on his behalf that there is no incriminatory evidence on the record against him except his identification by one witness namely Zafar Iqbal in the parade held for the purpose; that the evidence of the identification parade at best could be used for corroboration purposes and not itself alone to base his conviction; that even otherwise, his identification in the parade held for the purpose was more than 10 months after the incident and so the same carried no value in the etc of law; and that in any case his conviction and sentence absolutely is not justified in law and the facts on the record.
14. On the other hand, their learned State counsel had supported the impugned judgment saying that he on the basis of the evidence of his identification in the parade held for the purpose and identification in the learned trial Court was fully connected with the crime and so was rightly convicted and sentenced.
15. I have carefully considered the submissions made by both the sides and perused the record.
16. AS said above that the prosecution in support of it's case had examined its' 22 witnesses at their trial.
17. The evidence of most of it's witnesses is of formal type.
18. The only evidence relied upon by the learned trial Court against him is his identification in the parade held for the purpose and his identification before it.
19. The incident as is obvious from the above position had taken place on 22.4.2004. He was put to identification test on 28.2.1995. It, thus was more than 10 months after the same.
20. The evidence in this regard against him mainly is of Zafar Iqbal. (PW.4) and Mr. Aftab Ahmad, Magistrate (PW-16).
21. Zafar Iqbal did not identify him with reference to his role in the commission of the crime. Such an identification parade is without any evidentiary value, In this regard reference can be made to the case of Mehmood Ahmad and 2 others. Vs State (PLJ 1995 SC 1).
22. It may be mentioned here that the learned trial Court has also placed reliance upon the above cited esteemed authority. It has applied the same in receiving the evidence of the identification in the parade to base appellant's conviction. The application of the said case law in the manner as has been done by the learned trial Court was not correct as per the view expressed therein.
23. The above indicated delay in holding of the identification parade and not describing his role in the crime and without any corroboration by any other independent evidence on the record carried no value in the eye of law. In this regard reference can be made to the cases of Ghulam Nabi v. The State (2002 P.Cr.L.J. (Kar) 349) and Ghulam Abbas v. The State (2002 YLR (Lah) 1759). In the latter case, the identification of the accused which was more than two months after the incident was considered to be not worthy of any reliance.
24. The learned trial Court has also placed reliance upon the case of Murder Abbas and 2 others v.
The State and 2 others (1992 SCMR 338) in basing the evidence of the identification parade in convincing the appellant. Though it has been mentioned in the esteemed authority that identification of accused in an identification test by a witness is of importance and no mentioning of his role is not an inviolable rule, but such an evidence in the above facts and circumstances of the case that the identification parade of the appellant was held with an inordinate delay of more than, 10 months of the occurrence and too with any with the crime requiring corroboration by the evidence of the type. Hence, the reliance of the learned trial Court on the esteemed authority in convincing the appellant was not apt.
25. The learned trial Court has also placed reliance upon the case of State through Advocate- General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1) in accepting the evidence of the identification parade against the appellant but again the application of the same too was not apt in his case, It has been held in the same that if witness gets a momentary glimpse of accused and claims that he would be able to identify him, then after arrest, identification test becomes very essential and same is to be conducted strictly according to guidelines and legal requirements.
Here in the instant case the significant aspect is that the Original record of the identification parade had missed, and Ex.PE is the carbon copy of the same. The is so available from the evidence of the above named learned Magistrate, It has also not appeared from his evidence that he had properly observed the. Requirements of holding of identification test.
26. The learned trial Court has also placed reliance upon the case of Mehmood AH Vs The State (1991 MLD 2455 Karachi) in observing that Abdul Qayyum (PW.7) has supported the main incident, It may be mentioned here that the said witness could not identify the appellant in the identification test. I am afraid that the application of the esteemed authority again on part of the learned trial Court was not apt in the matter of the appellant as the said witness namely Abdul Qayyum did not name any one in his evidence particularly as the perpetrator of the offence. His evidence did not in any way connect the appellant with the commission of the crime and so the same in any could not be used to base conviction of the appellant. The evidence of the picking up of the appellant in the identification parade thus could not be used to connect the appellant with the crime.
27. As regards the identification of the appellant by PWs Maqsood Ahmad and Zafar Iqbal before the learned trial Court, the same is also of no value as he, was put to identification test after more than 10 months of the incident. The said learned Magistrate has admitted in his cross-examination that the appellant had raised objection before the identification parade that he on 17.2.1995 was shown to the witnesses in Police Station Nawan Kot. In such circumstance, the identification of accused in the trial Court was not acceptable, In this regard reference can be made to the case of Wahed Ahmad v. The State (2000 YLR 1756 (Lah) (DB)). The identification of the appellant before the learned trial Court, thus was of no consequence.
28. I, therefore, find that the prosecution could not prove the charge against the appellant beyond any shadow of reasonable doubt. The appeal, therefore, is accepted and the impugned judgment to the extent of his conviction and sentence is set-aside and he is acquitted of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case.