1. AMANULLAH KHAN, ACTG. C.J.---Appellant Abdul Salam son of Shahbaz, has assailed the Judgment dated 13-4-2002, passed by learned Special Judge, Anti-Terrorism Court No, II, Quetta, wherein he has been convicted and sentenced as follows:--
(a) Under section 302(b), P.P.0 to suffer Life Imprisonment and to pay fine of Rupees one lac to the legal heirs of deceased Abdul Majid and in default in payment of fine to suffer S.I. For two years.
(b) Under section 392, P.P.0 to suffer R.I. For ten years and to pay fine of Rupees ten lac and in default in payment of fine to suffer S.I. For two years.
(c) Under section 324, P.P.0 to suffer R.I. For five years and to pay fine of Rupees fifty thousand and in default in payment of fine to suffer S.I. For six months. It is the case of prosecution that, P.W.1 Abdul Rauf Rafiqui, Manager, ABL Chaman Branch, sent Marasala (Exh.P/1-A) on 7-8-2002 to Police Station Chaman for registration of F.I.R, with the allegations that, on the said day, Hafizullah Memon, Second Officer, along with Abdul Majid, Gunman, were sent to collect three Million rupees from Askari Commercial Bank Limited, after collecting the said amount were coming to the Bank and on the way at about 11-25 a.m., when they reached at the crossing of Sanatan Road and Trench Road, three unknown persons attacked them and opened firing upon them, due to which Abdul Majid, Gunman died on the spot and Hafizullah was injured. Thereafter the said unknown persons decamped from the place of incident, along with bag containing rupees thirty lacs and also snatched the double barrel gun from the Gunman. On receipt of report; PW-9 Khawaja Muhammad lodged F.I.R No,53 of 2002 (Exh.P/9-A) and thereafter initiated investigation of the case, during course whereof;
(i) he inspected the place of incident and prepared Site Plan (Exh. P/9-B);
(ii) he prepared Inquest report of deceased Abdul Majid (Exh. P/9-C);
(iii) he took into possession blood-stained shirt of deceased vide Memo. (Exh . P/9-D);
(iv) he got prepared sketch of the place of incident through Patwari, Chaman, (Exh. P/9-E). Thereafter he arrested the appellant and got conducted his Identification parade under the supervision of P.W.6 Assistant Commissioner, Komail Ali (Exh.P/2-A). He recorded statements of witnesses and obtained Medical Certificates of deceased Abdul Majid, and Injured persons namely Taj Muhammad, Ghulam Muhammad, Abdul Habib, Muhammad Nasim and Hafizullah (Exs.P/7-A to 7-F). On completion of investigation, he submitted challan Exh.P/9-F. Initially the challan was submitted before Sessions Judge, Pishin, who framed charge under section 17(4) of Offences Against Property (Enforcement of Hadood) Ordinance, 1979 read with sections 324 and 337-ADF P.P.0 which was denied by the appellant. Thereafter the case was transferred to the Anti-Terrorism Court. No, II, Quetta. To prove the accusation, prosecution led the evidence of following witnesses:--
(1) P.W.1 Abdul Rauf Rafiqui, Manager, ABL. He is the complainant of the case and narrated about the incident. He reiterated contents of Marasala Exh. P/1-A and corrigendum Exh.P/1-B, wherein clarification was made that the Gun snatched from the Gunman Abdul Majid was not a 12 bore Shotgun, but was a Repeater.
(2) P.W.2 Dil Mir Khan, Constable. He deposed that, he was performing his duties as Gunman at MCB, Chaman Branch and after hearing gunshot reports., he rushed to the place of incident and chased appellant. He identified the appellant in the identification parade held under the supervision of Magistrate, vide Memo. Exh.P/2-A.
(3) P.W.3 Muhammad Yousaf, Constable. He stated that on the day of incident, he reached at Jogi Ram Road Chaman and after firing, he saw appellant going away with a bag containing the snatched amount. Thereafter he went to the Police Station and informed the police. He also identified the appellant during identification parade.
(4) P.W.4 Syed Amir Constable. He was performing his duties along with PW-2 Dil Mir Khan at MCB Chaman Branch and after hearing gunshot reports, both of them rushed to the place of incident and saw appellant holding a pistol in his hand and running away with a bag, while other person was also running who was holding a double barrel shotgun. He further stated that, he and Dil Mir Khan chased appellant' and when they reached near Mutton Market, two persons already waiting on motorcycles there, on which, the accused person fled away along with the bag and shotgun.
(5) P.W.5 Muhammad Ismail, narrated about the event that the Manager sent Hafizullah Memon along with Gunman to bring the cash from Askari Commercial Bank and after a while they heard gunshot reports at about 11.25 a.m. And thereafter they saw Hafizullah injured, who came to the bank and later on he was taken to Hospital for treatment.
(6) P.W.6 Komail Ali. He supervised the identification parade and prepared identification Memo.
2. Exh.P/2-A.
(7) P.W.7 Dr. Akhtar Muhammad, Medical Officer. He examined the deceased Abdul Majid and Injured persons Taj Muhammad, Ghulam Muhammad, Abdul Habib, Muhammad Naseem and Hafizullah, who received injuries during the course of dacoity. He produced their Medical Certificates as Exhs.P/7-A to P/7-F respectively.
(8) P.W.8 Muhammad Naseem. He was injured in the incident. He did not nominate anybody.
(9) P.W.9 Khawaja Muhammad. He carried out the investigation of the case and ultimately submitted the challan. The prosecution thereafter closed its side and appellant was examined under section 342, Cr.P.0 wherein he denied the prosecution case and pleaded his innocence. However, he did not opt to give statement on oath as envisaged under section 340(2), Cr.P.0 nor produced any defence witnesses.
3. On the conclusion of trial, learned Court vide impugned judgment, convicted and sentenced the appellant in the terms, as specified hereinabove. The appellant has filed the instant appeal and State has filed Criminal Appeal (ATA) No,10/2003 for enhancement of the sentence; thus we propose to dispose of both the matters by this common judgment. We have heard Mr. W.N. Kohil, learned counsel for the appellant and Mr. Khalid Dogar, learned Public Prosecutor for the State. Learned counsel for the appellant contended; that the entire prosecution case hinges upon the Identification parade of two prosecution witnesses. Learned counsel emphasized that the Identification parade was not held, in accordance with the law and instruction as laid down by the Superior Courts and further, no description of the appellant was given, thus in absence of any description of Assailants, the Identification parade has no evidentiary value. Learned Public Prosecutor, ATA, opposed the appeal and argued that, appellant was rightly identified by the witnesses, therefore, the conviction is proper and no interference is called for. With the assistance of learned counsel for parties, we have minutely perused the prosecution evidence and in our considered opinion, the material and evidence so produced, is insufficient to prove the guilt of the appellant.
4. It may be observed that, entire prosecution case depends upon the identification parade of P.W.2 Dil Mir Khan and P.W.3 Muhammad Yousuf, who picked the appellant in the identification parade and the A statement of P.W.4 Syed Amir, who saw the appellant soon after the incident, running away along with a bag. He further stated that he fired at him, due to which he was injured and identified him in Court. P.W.2 Dil Mir Khan and P.W.4 Syed Amir, deposed that they were performing their official duties at MCB, Chaman Branch and after hearing gunshot reports, they came towards the place of incident, which was at the crossing of Sanatan Road and Trench Road. There, they saw a person running away with a bag in one hand and a pistol in other hand; thus then they started chasing him. When they reached near Mutton Market, two persons were already waiting there, they had a motorcycle on which all the three persons made their escape good. They deposed that, they identified the said person.
5. The statements of both these witnesses, do not inspire confidence, as they have made material improvements in their statements. It may be observed that, P.W.3 Muhammad Yousuf stated that on the day of incident, when he reached.Jogi Ram Road, he saw the appellant running away with a bag and pistol in his hand. He further stated that he informed the police personnel about the incident and they started chasing the appellant and thereafter he went to Police Station and after 7/8 days, he was called, to identify the appellant in the Police Station. It is pertinent to note that, P.W.2 Dir Mir Khan and P.W.4 Syed Amir, did not state in their statements, that they were informed by P.W.3 Muhammad Yousuf, about the incident. Besides P.W.2 Dil Mir Khan stated that when they heard Gunshot reports, they were attracted to the place of incident while he was performing his duties at MCB Branch and they saw a person running away with a pistol and bag in his hand and they started chasing him. He further stated that, while chasing him, the said person tried to fire at them, but P.W.4 Syed Amir fired at the person, due to which, he received a bullet injury and he further stated that in the identification parade, he suspected the appellant to be the same person and therefore, picked him in the parade. P.W.4 Syed Amir stated that when he reached the place of incident, he saw that one person was running away with a bag in his one hand and a Pistol in another hand, he also saw another person running with a Shotgun in his hand. He further stated that he chased them up to Mutton Market Jogi Ram Road, where one person was waiting for them and they fled away on the motorcycle. It is pertinent to mention here that the appellant was arrested after two days of the incident, but no bullet injury was found on his person. Suffice it to observe that P.W.4 Syed Amir, stated with certainty that he fired at the person, who was running away with a bag, he was hit with a bullet, but no bullet injury was found on the person of appellant.
6. Inasmuch as the Investigating Officer, admitted in cross-examination that, when he arrested the appellant, he did not find any injury on his person. It may be observed that P.W.2 Dil Mir Khan and P.W.3 Muhammad Yousaf did not state that two persons were running away. They only stated that person running with a bag fled away on a motorcycle with two other persons who were already waiting for the assailant near Mutton Market. The deposition made by the afore stated witnesses do not fit in the circumstances of the case, which makes their presence doubtful at the place of incident and makes their testimony worthless.
7. Besides, no description of the appellant was given by both the D P. Ws, as to how they identified the appellant. It may be observed that, it is a well-settled principle of law that if no description of the accused is given by the witness in police statement, in absence of any description, E no reliance can be placed on such identification parade. Nothing has come on record as to how the witnesses identified the appellant which impeaches their testimony. In this behalf, reference can be made to 1992 SCM R 2088 (Asghar Ali alias Sabah and others. v. State and others) wherein the Hon'ble Supreme Court while relying on the case of Lal Singh v. The Crown (1924) 5 Indian Law Reports page-396, made following observations:-- "Apart from the formalities found lacking, the substantial portion of the identification was to be with regard to the participation of the identified person in the crime. It had to be so stated by the witness who was supposed to identify. The context in which he was identifying the individual had to be disclosed. This is established law as held in Lal Singh v. The Crown (1924) 5 Indian Law Reports page 396 (Lahore sessions). It was held in that case as hereunder:- "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person.
8. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."
9. The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identity of the culprit." There is yet another circumstance to discard the statements of witnesses. P.W.2 Dil Mir Khan and P.W.4 Syed Amir at the time of incident, were performing their duties at MCB Chaman Branch, situated at Sanatan Bazar. After hearing the shots, they came towards the place of incident, which is at the crossing of Sanatan Bazar and Trench Road. To have a clear picture of the place of incident, reference may be made to the Site Plan Exh.P/9-B which shows MCB Chaman Branch is situated at Sanatan Bazar, which is on the southern side of Trench Road. As per the statement of witnesses, when they reached at the place of incident i,e, at the crossing of Trench Road and Sanatan Road, the assailant was running towards the Eastern side of Trench Road and then he entered Jogi Ram Road, -one block away from Sanatan Road from where they escaped on motorcycles, already waiting there. Both the witnesses stated that, when they reached at the place of incident, the firing was over and the appellant was running. At the time when the accused was running along with the bag and pistol in his hand, his back was towards the witnesses and then he entered Jogi Ram Road, where accused was fired at. P.W.4 stated that when he fired at the accused, the same hit him. On plain scrutiny of the statements and examination of the Site plan, by putting them side by side, the only irresistible conclusion which can be drawn is that the assertions of the witnesses, do not fit in with the Site plan. Thus inference can be drawn that when the witnesses reached at the crossing of Trench Road and Sanatan Road, the Assailant was running towards Jogi Ram Road with a bag and when he was chased, his back was towards the witnesses and it was impossible for the witnesses to have identified him, which further casts doubt on the statements.
10. It may be pointed out that even while conducting the identification parade, the legal formalities were not complied with. Prior to reaching of the Magistrate to the Police Station, the witnesses were already present in the police station, where accused was confined therefore, possibility cannot be ruled out that appellant was shown to the witnesses, before conducting the identification parade.
11. Thus, in view of the above discussion the statements of P.Ws.2, 3 and 4 are not free from doubt, which do not inspire confidence. It may be observed that the incident took place in broad daylight and Trench Road admittedly is a very busy road and it has come on record that during the course of dacoity, even the passersby received injuries, but neither any empties were recovered nor any eye-witness was examined. Thus in these circumstances, it appears that only to show efficiency, the said P. Ws, who are Policemen, were managed to strengthen and support the prosecution case.
12. It is well-entrenched principle of criminal justice that prosecution has to stand on its own feet and any doubt arising out of the case, has to be resolved in favour of the accused. The case in hand, entirely rests on the circumstantial evidence of the above witnesses and while examining the worth of their testimony, we are fortified with the parameters laid down by Hon'ble Mr. Justice Hamoodur Rahman, as he then was, in Criminal Appeal No,1 of 1965 (The State v. Manzoor Ahmed) and Criminal Appeal No,2 of 1965 (Muhammad Ismail Khan v. Manzoor Ahmed and others) (PLD 1966 SC 664) wherein following observations were made:-- "Learned counsel appearing for the respondent has urged the necessity of exercising minute care before drawing any inference adverse to his client. It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial evidence, remember that the "processes of inference and deduction are essentially involved- frequently of a delicate and perplexing character-liable to numerous causes of fallacy." Mere suspicion will not be sufficient to justify conviction. Before the guilt of the accused can be inferred merely from inculcator circumstances those circumstances must be found to be incompatible with the innocence of the accused and "incapable of explanation upon any other reasonable hypothesis than that of his guilt." It is also equally well-settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i,e, a doubt such as would assail a reasonable mind and no any and every kind of doubt and much less a doubt conjured up by pre-conceived notions. But once the circumstances have been found to be so established they may well-furnish a better basis for decision than any other kind of evidence. As Hewart, I.C.J., observed in the case of Percival Leonard Taylor, James Weaver & George Thomas Danovan (1) "it is no derogation of evidence to say that is circumstances."
13. In view of the above discussion and on analyzing the entire evidence, in our considered view, the prosecution has failed to prove its case beyond reasonable shadow of doubt against the appellant, thus by giving him benefit of doubt; he is acquitted of the charge, be set at liberty forthwith, if not wanted in any other case. The Criminal Appeal (ATA) No,10/2003 is dismissed.