WAHID BUX BROHI, J.--- Appellant Taha has impugned the judgment, dated 31-1-2000 passed by Special Judge, Anti-Terrorism Court No.IV, Karachi whereby he was found guilty for an offence punishable under sections 302/353/324/34, P.P.C. and section 7 of the Anti-Terrorism Act, 1997 (hereinbelow to be referred to as the Act) and the case was referred to the Provincial Government under section 68(2) of the Sindh Children Act, 1955 for deciding the sentence of appellant.
2. The case of prosecution as per F.I.R. is that on 2-7-1998 complainant S.-I. Noor Nawab Khattak of Sachal Rangers, 73 Wing, and his subordinate staff, namely, Hawaldar Mumtaz Ali, Hawaldar Noor Muhammad, Naik Abid Hussain, Sepoy Muhammad Mithal, Seopy Dildar Hussain and others were on patrol duty in Liaquatabad area in Government vehicle and at about 12-2G noon they reached in Blocks Nos.3 and 4 opposite. Hashmia Itnambargah Near Polyclinic, where the terrorist of MQM Unit Np.64, namely, Nadir Shah alongwith his companions Mint, Obaid alias K-2, Junaid alias K-2, Asif, Shakeel, Arshad, Rafiq Bullet, Sajid and Irian emerged raising slogans of "Police and Rangers Murdabad" and shouted that they would not spare Rangers and Police and started firing at them from their automatic weapons in order to kilt them and prevent them from discharging their duties as public servants. As a result of firing Hawaldar Mumtaz Ali, who had come down from the vehicle and Sepoy Dildar Hussain, who was standing on the vehicle got seriously injured. Rangers party retaliated in defence, but the assailants succeeded in running away. The Injured persons were removed to Abbasi Shaheed Hospital where Seopy Dildar Hussain succumbed to injuries. The complainant thereafter went to Police Station and lodged F.I.R. The appellant and 3 others namely: Farid, Razzaq and Imran were arrested on 6-8-1998 and another accused Junaid on 11-10-1998 and on completion of investigation they were sent up for trial before the Military Court No.VI where trial was held. The witnesses -were examined and even statements of the accused persons were recorded, but in view of Mohan-am Ali's case (PLD 1986 SC 140), the case was transferred to the Anti-Terrorism Court noted above where the statements of all the accused persons under* section 342, Cr.P.C. were recorded afresh. The trial Court separated the case of appellant being a juvenile offender within the meaning of Sindh Children Act. The other accused persons were convicted and awarded sentences, but on appeal this Court by judgment, dated 8-9-1999 reported as Muhammad Faisal v. State (2000 M LD 1374) acquitted Muhammad Faisal, Muhammad Razzaq and Muhammad Inuan, while the sentence of death awarded to Junaid was reduced to life imprisonment. It is stated at the bar that the appeal preferred against the said judgment of this Court has been dismissed by the Hon'ble Supreme Court maintaining the 'judgment of this Court.
The ..learned Assistant Advocate-General appearing on behalf of the State did not controvert this statement. However, while the matter was pending before the Government of Sindh the appellant, reached the age of 18 years and was released.
3. At the trial, in this case, the prosecution examined 12 witnesses namely: P.W.1 Dr. Moula Bux; P.W.2 complainant Noor Nawab; P.W.3 Hawaldar Mumtaz Ali; P.W.4 Hawaldar Noor Muhammad, P.W.5 Ranger's Constable Muhammad Mithal; P.W.6 Sepoy Iftildtar Ahmed; P.W.7 Naik Abid Hussain; P.W.8 PC Syed Dildar Ali Shah; P.W.9 the Judicial Magistrate Syyeda Parveen Shah; P.W.10 A.S.-1.
Muhammad Yaqoob .P.W.11 Javed Hussain: and P.W.12 Inspector Muhammad Nawaz, the Investigating Officer. The statement of appellant was recorded under section 342. Cr.P.C. wherein he denied the allegations of prosecution, but he did not examine himself on oath under section 340(2), Cr.P.C. nor did he lead defence. On the basis of this evidence learned trial Court found the appellant guilty for the offences mentioned above.
4. We have heard Mr. Mahmood A. Qureshi, learned counsel for appellant and Mr. Habib Ahmed, learned Assistant Advocate-General for the State.
5. Learned counsel for appellant mainly based his contentions on the observations already recorded by this Court, while deciding the appeal of other accused persons who were acquitted by this Court. He also pointed out infirmities and improbabilities obtaining from the evidence and with utmost vehemence assailed the credibility of identification test. He, inter alia, contended that the case of Taha is not much different from that of the co-accused who have been acquitted in the earlier appeal by this Court in the case reported as 2000 M LD 1374 and the benefit of the observations made therein by this Court be extended to the appellant.
6. He urged that the prosecution was miserably failed to establish the place of occurrence through reliable evidence for the reasons that:---
(a) It is alleged that empties were secured from the place of incident where the assailants were standing, but no empty has been secured from the place where the vehicle, which was attacked, was standing although it is the case of prosecution that there was exchange of fires.
(b) The complainant has admitted that the fires were made from a hidden place but no sketch of occurrence was prepared during the investigation or produced at the trial.
(c) Admittedly, no blood-stained earth or blood was collected from the site of occurrence.
(d) It is also admitted that there were no bullet marks on the walls of the buildings around the site of occurrence.
(e) No shopkeeper or resident of Mohallah or any other independent person was cited as witness or produced at the trial.
7. He argued that (i) the name of appellant Taha is not mentioned in the F.I.R. whereas the F.I.R. itself is silent if there was any assailant/culprit other than those nominated therein; (ii) the identification test had lost its evidentiary value tor many reasons and in particular because of, the admission made by police constable that he was standing at the door of the Court Room all along during the test; (iii) it is alleged that 5-6 bullets hit the grill of the vehicle but the empties were neither produced at the trial nor mentioned in any memo. and that the vehicle was not at all examined during the investigation, nor produced at the trial; (iv) no blood was secured from the vehicle; and
(v) the evidence of injured Mumtaz puts a blanket over the identity of the assailants. as according to him, the fires were made from a hidden place.
8. Mr. Habib Ahmed, learned Assistant Advocate-General, although attempted to oppose the appeal, but he could not rebut the above admitted position obtaining from the evidence on record.
He maintained that the identification test is the only evidence against the appellant, but he could not explain why the witnesses remained silent before .the Magistrate when they were questioned to disclose the specific role of the appellant. He also could not satisfy us if the identification test, which, at the best, could furnish corroboration to the evidence, was sufficient in this case for conviction, since the basic evidence, as argued by the learned counsel for the appellant establishing the role of appellant, was wholly lacking.
9. We have given anxious consideration to these contentions and perused the evidence On record with the assistance of learned counsel. It would be advantageous to give a precise account of the evidence recorded at the trial.
10.P.W.1 Dr. Moula Bux' had conducted the autopsy on the dead body of Dildar Hussain and stated that the dead body was brought by P.C. Liaquat Hussain and DSR Afzal. He found the following external injury on the dead body: "Wound of bullet entering on backside of the shoulder. Exit wound on left side of the chest"
According to him, the above injury led to hemorrhagic shock and cordio respiratory failure which was the cause of death. He produced the post-mortem examination report. He had also examined Mumtaz and found fire-arm injury on his right shoulder.
11. The complainant namely; Sub-Inspector Noor Nawab deposed that he belongs to Sachal Rangers and was posted at Gymnasium, Liaquatabad No.5, Karachi. On 2-7-1998 he alongwith Hawaldar nor Muhammad, Hawaldar Mumtaz, Naik Abid Hussain, Seopy Mithal, Sepoy Dildar, Driver Iftikhar and other staff left for distributing lunch on two mobiles bearing No.917171 and 917140 to the staff and after distributing lunch at different pickets they reached near Poly Clinic, Block-3, Liaquatabad, Karachi, at 12-20 noon. They provided lunch to the staff and, while they were returning back the Unit Incharge of Unit No.164 of MQM namely Nadir Shah, Miru, Obaid alias K-2, Junaid alias K-2, Irfan, Sajid, Arshad, Rafiq alias Bullet, Shakeel, Taha, Razzaq, Faisal and others whose names he did not know raised slogans saying, "Police and Rangers Aurdabad" and that they would not leave thcrn (Rangers) alive. They fired from their automatic weapons causing injuries to Hawaldar Mumtaz and Sepoy Dildar. The other members of the party alighted from the vehicle and fired in retaliation. The culprits taking advantage of narrow streets escaped away. He shifted injured persons Mumtaz andDildar to Abbasi Shaheed Hospital where Dildar succumbed to injuries. After first aid Mumtaz was shifted to C.M.H. Hospital Malir. Sub-Inspector Javed of Police Station, Liaquatabad came there and completed the legal formalities. After post-mortem dead body of Dildar was handed over to Hawaldar Mir Muhammad and Naik Mumtaz and then he. alongwith A.S.-I. Javed went to Police Station Liaquatabad and lodged the F.I.R. (Exh. 7-A), which was registered verbatim. He showed the place of incident to the Investigating Officer and, according to him, 5 empties of Kalashnikov, 3 live rounds of 7 mm and one empty of .30 bore were secured from there and sealed. On 6-8-1998 an identification test was conducted in presence of Magistrate wherein he identified the appellant Taha and acquitted accuse Faisal standing in the queue with dummies.
12. The cross-examination complainant Noor Nawab admitted that the F.I.R. was read over to him before he signed it and that the name of appellant Taha was not mentioned in the F.I.R and it was also not mentioned if there were other accused persons beyond those whose names were mentioned in the F.I.R. He admitted the existence of Polyclinic, Furpnia Masjid, Mukhtar Manzil, etc. around the place of incident and stated that it was a thickly populated area and the shops were also open at that time. He stated that about 100 to 150 rounds were fired by the Rangers at the assailants, but nobody was injured from amongst the assailants. He admitted that they did not pick the empties of rounds fired by them nor such empties were recovered by the Investigating Officer. He stated that he did not remember if he had deposed in the Military Court that he identified accused Faisal, Razzaq, Inn-an and Taha, but the note put by learned Presiding Officer affirms the above position. He also admitted that some bullets, fired .by the appellant, hit their vehicle and he had shown the vehicle to the Investigating Officer, but the Investigating Officer did not take it in custody. In this way, his evidence provided enormous support to the contentions raised by learned counsel for applicant which will further be discussed hereinbelow.
13.P.W.3 Hawaldar Mumtaz Ali deposed that after supplying lunch when their vehicle was turning back the people, who had hidden themselves, raised slogans "Police and Rangers Murdabad" and issued threats t.!at they would not spare them (Rangers). He got down from the vehicle and in the meantime the culprits opened tire. He received a bullet injury on his shoulder, while gunman Dildar standing in the Morcha of the vehicle also sustained bullet injury. He went unconscious. He further deposed that on 6-8-1998 be identified the appellant as one of the accused in the identification test.
14.P.W.4 Hawaldar Noor Muhammad gave almost a similar story of the occurrence with a variation from that of Mumtaz to the extent that Mumtaz did not name any culprit, while he named them as Junaid, Obaid, Shakeel, Miru, Rafiq, Asif and Arshad besides 10/12 others. He had added that he was also one of those who took both the injured Mumtaz and Dildar to hospital. He had acted as Mashir in respect of inquest etc. at the hospital and other events of investigation including recovery of empties and live bullets from the place of occurrence. Regarding identification test he stated that he identified three accused namely Faisal, Razzaq and appellant Taha, who were mixed up with 20 dummies.
15. P.W.5, Ranger Constable Muhammad Mithal was also in the same vehicle. He gave the names of culprits and 10/12 unknown persons. He gave a similar story. However, he stated that they fired in the air. He was also in the party who took the injured to hospital. Regarding identification test he stated that he identified Faisal, Razzaq and the appellant Taha, For the first time, there is a version from this witness that Taha was armed with a Kalashnikov and fired at them.
16.Evidence of P.W.6 Seopy Iftikhar is also on same point. He has given the names of 9 culprits and 10/12 others. In cross-examination he admitted that he did not state before the Investigating Officer that appellant had fired from the Kalashnikov. P.W.7 Naik Abid Hussain has given almost similar evidence. He had also acted as Mashir during investigation. Regarding identification test he stated that he identified Imran, Faisal and appellant Taha and also the fourth one whose name he did not remember. Like other witnesses he has admitted that he did not disclose during the identification test the specific role played by the appellant. P.W.8 Syed Dildar Ali Shah of Polcie Station, North Nazimabad is witness of arrest of Imran, Razzaq, Faisal and appellant Taha on 29-7-1998.
17. P.W.9 Syyeda Parveen Shah, the Magistrate who conducted identification test stated that the appellant was mixed with 10 dummies of same age, same size and similar faces and was identified by witnesses Naik Abid Hussain, Sepoy Muhammad Mithal, Hawaldar Mumtaz Ali, Hawaldar Noor Muhammad and S.-I. Noor Nawab. The identification test memos. prepared by her were brought on record. P.W.10 A.S.-I. Muhammad Yaqoob had taken four accused persons from CIA Centre to the Court for the purpose of identification test. A note in the cross-examination shows that he had admitted in the Military Court that throughout he remained at the entrance of Court-room during the proceedings of identification test. P.W.12 Inspector Muhammad Nawaz had conducted the investigation and arrested the accued persons.
18. From above narration of evidence it is abundantly clear that in the F.I.R. names of 10 culprits were given and according to complainant, they were the only assailants, but later on at the trial an improvement has been made by adding a version that besides nose nominated in the F.I.R, there were other culprits also. The complainant has again made another improvement by adding the name of appellant Taha although his name does not find mention in the F.I.R. He has admitted in cross-examination that F.I.R. was read over to him before he signed it and that the name of appellant Taha was not mentioned therein and that the. F.I.R. does not mention other accused persons beyond those nominated. Obviously, this improvement has changed the complexion of the story in order to widen the rope and implicate appellant Taha.
19. The improvements, whenever made in the evidence, have always been disapproved by the Courts. In Naseer v. State (1994 SCM R 995) the improvements were considered in the light of other evidence placed on record and inference was drawn in favour of the accused when the other material did not support the same. Similarly, in Saeed Muhammad Shah v. State (1993 SCM R 550) the evidence of witnesses in which improvements were made to strengthen the case o[ the prosecution was considered not worthy of reliance. Reference was made to the earlier judgment of Hon'ble Supreme Court in Amir Zaman v. Mahboob (1985 SCM R 685) wherein it was observed that testimonies of witnesses containing material improvements were not believable. In the instant case; as far the evidence of complainant is concerned, it demonstrates not merely an improvement but a modification by changing the story and nominating the appellant for the first time after recording of the F.I.R. and imputing the allegation against him of having joined the accused persons. The complainant's evidence, as such, was not worth belief.
20.The other important evidence is that of injured Hawaldar Mumtaz Ali. He has come out with a version that he identified the appellant during the identification test, but this evidence lacks credibility, since in the examination-in-chief he has admitted that the people, who attacked them, were hiding themselves and raising slogans. Identification of an unseen assailant, at the identification test/parade does not carry any evidentiary value.
21.P.W.4 Noor Muhammad has given the: names of 8 assailants, while P.W.5 Muhammad Mithal has given names of 10 accused persons adding the names of two persons Sajid and Wan. P.W.6 Iftikhar Ahmed gave names of 9 persons dropping the name of Irfan which was added by Muhammad Mithal. P.W.7 Abid Hussain also gave 10 names. In this way, the prosecution witnesses made variations, while nominating the accused persons. In these circumstances, this Court while acquitting three co-accused through the earlier judgment reported as Muhammad Faisal v. State (2000 M LD 1374) the following observations were made:-- "27. In the circumstances of the case, as stated above, we are of the considered opinion that the complainant has exaggerated and improved his version by impleading appellants Muhammad Faisal, Muhammad Razzaic and Muhammad Imran at trial, about whom he did not mention anything in the F.I.R.
Such exaggerations and improvements, go to the root of the case and render the case of prosecution against the appellants to be of doubtful nature."
22.We are of. the considered view that the same principle should apply to the case of appellant Taha.
23.As regards identification it is significant to note that according to prosecution all other P. Ws. were sitting inside the vehicle and only Mumtaz had got down to guide the vehicle to take a turn backwards, therefore, he was on the ground and had a vision of situation clearly, but he has stated in clear terms that the people were hiding themselves when they made fire. In such a situation an explanation was expecjed a.= the other witnesses to justify, how they were able to see the appellant when all persons were hiding themselves, while making fires.
24.Next, learned counsel for appellant contended that the prosecution has failed to prove place of incident and we agree with him that no blood-stained earth was collected from the place of occurrence or from the vehicle, as admitted by the Investigating Officer. The contentions of learned counsel for appellant on this point, as reproduced at para. 6 of this judgment, find ample support from the evidence on record and the learned Assistant Advocate-General also could not controvert the same, but these circumstances at the most, raise a question about the actual location where the occurrence took place. If at all, there is drawback as regards site it would not by itself disprove the factum of murder Of Dildar and injuries sustained by Mumtaz for which there is sufficient evidence on record, as already discussed.
25.The prosecution has, however, depended on the identification test held in presence of Magistrate. Law is well-settjed that identification test is a very weak piece of evidence and any doubtful circumstance may wholly damage the evidentiary value of such test. As already mentioned, the prominent version coming from the injured witness, is that the fires were made from a hidden place, on that count alone, the effect of identification test as igainst appellant Taha becomes questionable. Identification through complainant Noor Nawab is to be straightaway excluded as he has nominated Taha in his examination-in-chief alongwith other accused.
Consequently, if Taha was known to him by name, identification through him was absolutely meaningless. P.W. Noor Muhammad, on the point of identification test, has given altogether a different version saying that he identified the accused who were mixed up with 20 dummies and from them he picked out Taha, Faisal and Abdul Razzaq. It is the case of prosecution that identification test was held in respect of 4 accused persons vide Exh. 14/A and even the Magistrate has stated that 4 persons were brought for test and separate tests were conducted by her. In this view of the matter the evidence of Noor Muhammad creates a doubt about the test itself. It is a question apart that he has also given different timings when the test was held. No test was conducted through P.W.6 Iftikhar who was . the driver of the vehicle. As far the evidence of Abid Hussain is concerned, he placed his hand on the left arm of the appellant, but disclosed nothing else. The Magistrate has recorded a note that the witness stated that his officer had forbidden him to say anything. Muhammad Mithal has also disclosed nothing on the ground that he was not permitted to say anything about, the case. Learned Magistrate, in cross-examination, has not been able to state if the witnesses were brought, while the accused were in the Court. However, she has admitted that the face of appellant Taha was not muffled. Learned counsel questioned the genuineness of this test on the ground that the test was conducted in respect of four accused persons and for each of the accused 10 dummies of same size, same age and similar faces were arranged, which is beyond imagination. Since this argument proceeds on the basis of presumptions it cannot be entertained as the sole ground for questioning the test. Anyhow, owing to the overall contradictory position, learned counsel for , appellant was justified in arguing that the benefit of doubt should be extended to appellant Taha.
26. On a thorough consideration of all ambient circumstances we have reached the conclusion that the case against Taha had started with major improvement in the prosecution story which could not be sustained in view of the infirmities and drawbacks pointed out above coupled with lack of proof about the place of incident and the doubt created about the identification test. We accordingly extend benefit of doubt to the appellant and acquit him. Accordingly, the appeal is allowed. The appellant has already been released by the Government of Sindh in pursuance of the provision of Sindh Children Act, 1955.
27. These are the reasons for the short order announced on 11-9-2002.