' CH. IFTIKHAR HUSSAIN, J.--Haqnawaz alias Hafiz and Sajjad Ahmad alias Shehzad were tried in case F.I.R. No.425 under sections 302/324/353/392/ 397 and section 7 of Anti-Terrorism Act, 1997 registered with Police Station Satellite Town, Sargodha on 11-8-1999 for on the said date at about 3- 00, a.m. In the area of Bhatti Petroleum, Chak No.91-Janubi falling within the jurisdiction of the aforesaid police station along with their co-accused Ghulam Hussain and Saeedullah alias Asad Sahi while armed with Kalashnikovs committing the Qatl-e-Amd of deceased Tariq Mehmood, A.S.- I., Iftikhar Hussain, constable and Abdul Ghafoor driver and attempting the Qatl-e-Amd of Allah Bukhsh, constable by firing on them and snatching .30-bore pistol from Tariq Mehmood, A.S.-I. And .9 mm rifle from Allah Bukhsh constable during the same and thus creating terror by their such act.
2. They were convicted and sentenced as follows:-
(a) Haqnawaz alias Hafiz:--
(i) Under section 302(b) read with section 34, P.P.C. To death on three counts for committing the Qatal-e-Amd of the aforesaid three deceased persons and to pay compensation Rs.1,00,000 to the legal heirs of each deceased and in default thereof to undergo further six months' S.I.
(ii) Under section 324 read with section 34, P.P.C. For attempting the Qatl-e-Amd of Allah Bukhsh constable by causing him injuries and sentenced to five years' R.I. With fine of Rs.10,000 and in default thereof to further suffer two months' R.I.
(iii) Under section 353 read with section 34, P.P.C. To two years' R.I.
(iv) Under section 7-A of Anti-Terrorism Act, 1997 for launching murderous assault upon the police officials on duty to death with fine of Rs.50,000 and in default thereof to further undergo two years'
R.I.
(v) Under section 7(c) of the said Act, 1997 for launching murderous assault and causing injuries to Allah Bukhsh, constable to ten years' R.I. With fine of Rs.20,000 and in default thereof to further undergo six months' R.I.
' All his sentences of imprisonment were to run concurrently with benefit of section 382-B, Cr.P.C.
Except for the sentences to be suffered in case of default in payment of compensation and fine. His sentence of death was subjected to confirmation by this Court. He, however, was acquitted of the charge under section 397, P. P.0 .
(b) Sajjad Ahmad alias Shehzad:--
(i) Under section 302(b) read with section 34, P.P.C. On three counts for committing the Qatl-e- Amd of the aforesaid deceased persons and to pay compensation Rs.50,000 to the legal heirs of each deceased and in default to suffer further six months' S.I.
(ii) Under section 324 read with section 34, P.P.C. For attempting the Qatl-e-Amd of Allah Bukhsh, Constable to five years' R.I. With fine of Rs.10,000 and in default thereof to further suffer two months'
R.I.
(iii) Under section 353 read with section 34, P.P.C. Two years' R.I.
(iv) Under section 7(a) of the aforesaid Act of 1997 for launching murderous assault and committing the Qatl-Amd of police Officials on duty to imprisonment for life with fine of Rs.10,000 and in default thereof to further suffer two months' R.I.
(v) Under section 7(c) of the Act for causing injuries to Allah Bukhsh, constable to seven years' R.I.
With fine of R.10,000 and in default thereof to suffer further two months' R.I.
All his sentences were to run concurrently with benefit of section 382-B, Cr.P.C. Except for sentences to be suffered by him in case of default in compensation and fine. He, however, was acquitted of the charge under section 397, P.P.C.
3. They feeling themselves dissatisfied with the impugned judgment of their conviction and sentence have brought the same under attack by way of their aforementioned respective appeals.
4. The Murder Reference mentioned above was submitted under section 374, Cr.P.C. For confirmation of sentence of death of appellant Haqnawaz alias Hafiz.
5. Muhammad Amir Gondal, the father of deceased Tariq Mehmood, A.S.-1. Has preferred Criminal Revision mentioned above (No. 863 of 2002) for enhancement in the sentence of appellant Sajjad alias Shehzad to death from imprisonment for life for the Qatl-e-Amd of the deceased persons on each count and the amount of fine and compensation in his case as well as appellant Haqnawaz alias Hafiz up to Rs.20,00,000.
6. As all the four matters have arisen out of one judgment in a case, hence are these being disposed of by this single judgment.
7. The detailed facts of the case stand incorporated in the impugned judgment and those are also available in the paper book, hence we avoid to burden this judgment unnecessarily by repeating all the same here.
8. However, brief facts relevant for the disposal of these matters are that the said case was registered on statement Exh.PV of Muhammad Azmat, S (P. W. 10), Incharge Shaheen Squad 7/8 Sargodha. He has mentioned therein that on 11-8-1999 at about 3-00 a.m. He along with Tariq Mehmood, A.S.-I. And constables Allah Bukhsh, Iftikhar Hussain, Naheed Khan, Noor Muhammad and Ghulam Abbas was present at Pull Chak No.47 on Nakabanadi. A blue colour car in fast speed came there from Sargodha City side. In the same four persons were present. He signalled them to stop but the driver accelerated the speed and drove away the same towards Bhagtanwala. He identified those persons in the street light. They all were armed. They suspected them. In the meanwhile a Car 97/FDK driven by Abdul Ghafoor reached there. They stopped it. Tariq Mehmood, A.S.-I. Sat in it and chased the car of those suspects. Iftikhar Hussain and Allah Bukhsh constables followed him on official motorcycle. He and Naheed Khan constable also followed them on motorcycle. They when reached Bhatti Petroleum within the area of Chak No.91 Janubi the car of suspects were present there to have petrol in the same. He was at some distance when Tariq Mehmood, A.S.-I., Allah Bukhsh and Iftikhar Hussain constables reached near that car. Two persons armed with Kalashnikovs came out of the same. The two other remained inside the car. The description of all the four has been given in the same. They all four starting firing straight at Tariq Mehmood A.S.-I., Iftikhar Hussain, Allah Bukhsh constables and Abdul Ghafoor driver, who fell down.
He and Naheed Khan immediately thereafter took the position. All the four accused after firing took official .9 mm rifle from Allah Bukhsh constable and took .30 bore pistol of Tariq Mehmood, A.S.-I.
And they sat in the car and drove it away towards Bhagtanwala. They when reached near Tariq Mehmood, A.S.-I. Iftikhar Hussain constable and Abdul Ghafoor driver, they had expired. Allah Bukhsh constable was in precarious condition. He was moved to civil hospital immediately. There were the lights in the petrol pump. He and Naheed Khan identified the accused in the light of the same.
9. The present two appellants were arrested in the case and not their other co-accused.
10. The prosecution at their trial mainly relied upon it's ocular account, medical evidence, evidence regarding Wajh Takkar, recovery of crime weapon, their absconsion, and identification in the parade held for the purpose.
11. They pleaded their false implication in the case. Haqnawaz alias Hafiz in this regard has stated that his enemies Sarfraz and Abid Hussain P.Ws. Had got him involved in connivance with the police, Sajjad Ahmad alias Shehzad has stated that his brother namely Shehbaz was murdered by Masood Gujjar, Inspector and Aslam Ghowri, SP when they were posted at Bhakkar. He used to pursue his case against them before the higher authorities. They, therefore, have involved him falsely to pressurize him in that case. They have produced two witnesses in their defence. They are Farooq Ahmad, the owner of Bhatti Petroleum where the incident statedly had taken place and Saeed Khan, Photographer as D.W.1 and D.W.2 respectively.
12. The learned trial Court believed the prosecution's ocular account and received medical evidence as supportive to the same and the evidence regarding identification parade to the extent of appellant Haqnawaz alias Hafiz alone and not appellant Sajjad Ahmad alias Shehzad. It, however, has not believed the evidence regarding the recovery of crime weapons from them, their absconscion and the evidence regarding Wajh Takkar. It on the basis of the above indicated believed evidence has convicted and sentenced them as stated above.
13. The ocular account of the prosecution has been furnished by first informant Muhammad Azmat, S.-I. (P.W.10), Allah Bukhsh constable (retired) (P.W.12) and Naheed Khan, Head constable (P.W.13).
Their evidence is almost on the line of F.I.R. Exh.PV. The same did not contain the names of the accused. We have no manner of doubt in our mind that the police officials including the deceased had been fired at the place given in their evidence. The question to be seen is that if the two appellants had been linked with the same by the evidence of prosecution. These P.Ws. Have stated that these appellants from outside the car and their companions from inside the same had fired at the deceased persons and Allah Bukhsh. These P.Ws. At the time of their deposition have identified them in the Court. Their (appellants) plea is that they were shown to the witnesses many a times since their arrest and so the witnesses could identify them easily either in the Court or during the identification parade. If this may be the position then their identification of the appellants before the trial Court means nothing. However, it was argued on behalf of the appellants that these P.Ws.
In their statements before the police have not mentioned their names and they rather have improved their stance at the trial regarding their identity and this was a dishonest act on their part and so such portion of their evidence may be excluded from consideration. The evidence of these P.Ws. Is to be examined in the light of this contention from their side.
14. The stance of all the three eyewitnesses named above was that they did not know them prior to the occurrence and even their names were not known to them. The line of their evidence is that they had seen them during the occurrence and had retained their face and feature etc. In their memory. Their stance is also that there were lights at Bhatti Petroleum and they had identified them in the light there as well as the street light. They according to them were standing at the above said bridge. It has not come in their evidence that there was any light at that place. They in their evidence have talked only of the lights at the said petrol pump and not any where else. So, there is no question of there being any street light close to the place of occurrence. As against the same, the appellants stance is that there was no light at the place of occurrence and in such situation these eye-witnesses could not identify them and that too from some distance.
15. They in order to substantiate their this stance have produced the owner of the said petrol pump.
He has clearly stated that they sell petrol on their pump till 12-00 midnight and thereafter they switch of the lights. He has also stated that he remains at his petrol pump till then and after that goes to his house and also relieves his servants from the duty and they then also go to their houses and one or two of them sleep in the room attached to the pump. He was an important witness in such background of the case. It is because of the fact that determination of the question that if there was sufficient light at the venue of the occurrence to know that if in that situation the eye- witnesses could identify the assailants. His deposition has excluded the possibility of availability of light at the venue of occurrence at the relevant time. He is an independent person. He in no way is linked with the appellants to say that he could have cause to depose at their instance to the effect that there was no light at his petrol pump at the time of occurrence. It was night occurrence. It had taken place at about 3-00 a.m. At that hour of the night there could be pitched dark all around the place of occurrence, if the lights at that petrol pump were not on. It has not been reflected from his evidence that he had any cause to depose to that effect to favour the appellants. He being owner of the petrol pump must be well off man. His no connection at all with the appellants has been brought forth on the record. He has dared to give evidence on the above aspect because this is obviously opposed to the stance of the prosecution regarding the availability of light at the venue of occurrence at the relevant time particularly when the police department was pursuing the case.
This is so because Ghulam Abbas, constable (P.W.17) has admitted in the cross-examination that police department is pursuing the instant case. This could be obviously so as two police officials including an A.S.-I. Had been done to death in the incident and the third one has sustained serious injuries on his person in the same. So, he when in such situation has come forward to depose about that important aspect of the matter, his evidence could not be ignored as it has come from an independent source. He was also the relevant person, who could better tell that whether their could used to remain light at his petrol pump at that hour of the night. His reply to the same is in the negative. So, we on the basis of his evidence are reluctant to believe easily that there was light available at that place at the time of occurrence.
16. According to first informant Muhammad Azmat, he had seen the occurrence from a distance of 30 Karams. The question that if a person from that distance could identify the assailants with exactitude when all of a sudden firing had started even if there was light. It is the stance of all the eye-witnesses that the occurrence had lasted only for 3/4/5 minutes. The answer to such question normally could be in the negative. It is because of the fact that at late hours of the night from such a distance and in the situation like the one narrated above, it could be difficult for the witnesses to identify the assailants correctly or with exactitude.
17. The similar is the position in the case of P.W.13 Naheed Khan. He too has stated that he had seen the occurrence from a distance of 30 Karams. According to him, the incident had lasted for about 3/4 minutes. He has admitted that it was night time and he had not seen the accused prior to the occurrence. In such situation, he too could not identify the appellants with all exactness.
18. As regards Allah Bukhsh P.W. He no doubt is an injured witness in the case and appellant Haqnawaz as per his evidence after having fired at him and the deceased persons fallen on the ground had snatched .9 mm rifle from him. Here one can easily say that in that process there was chance with him to have identified the said appellant as he came in close contact with him during the process of taking away the rifle from him. The answer to such question is very easy and in the negative. It is because of the fact that as per his own evidence the said appellant had taken the rifle from him when he had fallen on the ground after the receipt of the injuries. He according to the evidence of doctor had received as many as ten fire-arm injuries on his person. According to Muhammad Azmat, P.W. Immediately after the incident when the accused had fled away he had seen him in serious condition. It is his own stance in his evidence that he on the receipt of fires had fallen unconscious and had regained senses or consciousness in the hospital. In such situation, he when was seriously wounded and was in state of unconsciousness at that time and was lying on the ground, then if anybody had taken rifle from him that could be very easily because he in that condition was not in a position to offer resistance to the same and that could be in no time. Hence, the idea that he in that process could identify the person, who took the rifle from him with exactitude vanishes away. So, we are not prepared to believe that he in that process could identify appellant Haznawaz alias Hafiz with all clarity and exactness.
19. Here we again revert to the contention of the appellants side that these witnesses have improved their stance at the trail than the one prior to that before the police. This contention is absolutely with force. Firstly it is because of the fact that first informant Muhammad Azmat has mentioned in F.I.R. Exh. PV that the accused, who had come out of the car were of wheatish colour.
He but has admitted that according to slip Saza with the judicial file the colour of Haqnawaz is Sanwla while that of Sajjad Ahmad alias Shehzad as white. So, there is some contradiction in his narration in the F.I.R. And the said document regarding the colours of the two appellants. This suggests that he perhaps had not seen them correctly and clearly and that is why this difference in the description of their colour between the F.I.R. And the said document has come on the record. He has admitted that he cannot tell that as to whose fire had hit and to whom during the occurrence.
It is interesting to note that he has admitted that in the F.I.R. EX PV, he has mentioned the presence of four accused only in the car. He but surprisingly has mentioned of five persons travelling in that car in his examination-in-chief at the trial. This shows that perhaps he had not seen that how many persons were in fact in the car. This contradiction in his stand in the F.I.R. Exh. PV and at the trial about the number of accused persons had led us to believe that he perhaps had not seen the occurrence and even was not present there. This idea is strengthened by the fact that he was not injured during the incident despite the fact that he as per his showing was present there at that time. The assailants seemed to have made target of their fires, who so ever was present there. His having not been injured during the incident at the spot goes to show that he perhaps was not there.
20. Allah Bakhsh P.W. In the cross-examination has stated that he was at a distance of about 3/4 Karrmas from the assailants when they had fired at them. He has also admitted that it was a night occurrence and he had not seen the assailants during the firing. He has admitted it to be correct that he had identified Haqnawaz alias Hafiz about 1-3/4 years after the occurrence and to Sajjad Ahmad alias Shahzad about 2 years and four months of the same. And if it was a dark night and he had not seen the assailants during the firing then how it could be believed that he had identified them correctly during the incident. The question, thus of his having identified the accused during the incident is not above doubt. This idea is further strengthened by the fact in his cross- examination that he came to know of the accused only at the time of identification parade and not prior to the same. He has also admitted that investigation officer had told him the names of the accused when he recorded his statement. He has also stated that it was even before recording his statement as well. He rather has made the matter more doubtful by saying that the Thanedar has told him their names on 14-8-1999 at about 10/lla.m. It, thus was about three days after the incident. It means that he has mentioned the names of the appellants on the telling of some body else and not of his personal knowledge. So, there is every doubt regarding the idea of his having the identity of the appellants with him.
21. Similar is the position in the evidence of Naheed Khan (P.W.13). He has admitted that he had not seen the accused prior to the occurrence and had seen them only at the time of occurrence. It is interesting to note that he in his statement has stated that he has retained in his mind the features of five assailants.
22. He in this regard when was confronted with his statement Exh.DB before the police it was found that he had not stated so then. He has also admitted it to be correct that the two assailants, who come out of the car were of wheatish colour while this position is otherwise as has already been mentioned above in the discussion regarding the evidence of Muhammad Azmat P.W. Therefore, this shows that he had not identified the appellants with exactitude at the time of occurrence.
23. All these eye-witnesses have stated that they have picked the appellants in the identification parade. The identification parade of appellant Haqnawaz alias Hafiz was held on 15-5-2001 and that of Sajjad Ahmad alias Shehzad on 1-1-2002. It, thus was with the delay of about 1-3/4 years and more than two years respectively after the incident. Their plea is that they were shown to the witness many a times since their arrest and prior to their identification test. The identification of the appellants after such long time makes the matter suspicious particularly in view of their above mentioned plea. It was a case in which two police officials have lost their lives and one was seriously injured and the department was pursuing the case. It then could be quite possible that they were shown to the eye-witnesses, who had picked them up in the identification test. It has already been mentioned above that the learned trial Court did not believe the evidence regarding identification parade to the extent of appellant Sajjad Ahmad alias Shehzad and it was only to the extent of Haqnawaz alias Hafiz.
24. The question of their having been picked up in the identification test is also not above doubt. It is also because of the fact that the accused persons previously were not known to the eye- witnesses. So, it was difficult for them to have identified them and too in pitched dark night and when all of a sudden there had been started firing on them. It, thus was not possible for them to have identified them during the same with exactitude. In such short span of few minutes and that too in a situation like the one mentioned above none could be expected to have retained their features and colours exactly in their mind. The identification of the appellant Haqnawaz alias Hafiz in the test for the purpose too was not above doubt.
25. The conduct of the identification parade on the part of the two Magistrates seems to be not in accordance with law. Because in the case of Kirar v. The State (PLD 1996 Karachi 246 (DB), it has been held that the precautions must to be taken before the identification test. In this regard the following portion from the esteemed judgment is reproduced herein below for facility of reference: "Now there remains only the evidence of identification test which took place on 19-6-1991 under the supervision of T.C.M. And Assistant Mukhtiarkar Allah Bux. The mechanism of identification proceedings are well-known and does not require repetition. Reference in this regard may be made to rules 26.7, 26.32 and also rule 27.25 (Vol. III) of the Police Rules, 1934. However, in order to ensure that the proceedings are properly conducted and are entirely above suspicion it is essential that the rules and the principle governing the holding of identification test parade should be strictly followed. So far as the identification of persons is concerned, it is a very weak type of evidence the value of which is easily destroyed if there is any suspicion that the conduct of the investigation agency was not absolutely above board. Therefore, precautions are necessary to conceal the identity of the accused while he is being removed from one place to the other and it is also the duty of the police that all necessary steps should be taken to ensure that the accused should not be seen by the witnesses before the identification test parade. The Police Officer who arrests the accused should get his face covered and take him to the police station in that state. In the police station the lock-up in which such an accused is kept should be covered with a curtain so that no one is able to see his face. When he is taken to Court or to jail his face should be kept covered. In jail also no outsider should be allowed to see his face. All these precautions should not only be taken but should be proved to have been taken. That these precautions were taken should be recorded in official records like the general diary of the police station and the jail Register and the same should be produced in Court. In the absence of such evidence, no value can be attached to the identification of one accused person made by a witness. In other words it is the duty of the prosecution to establish during the trial that every necessary precaution was taken to ensure fair identification".
26. The evidence of the two Magistrates namely Ch. Muhammad Yasin (P.W.15) and Sultan Fayyaz Kiani (P.W.16) clearly shows that all these precautions were not taken in the matter of identification parade of the appellants. The same, therefore, carries no value in the eyes of law. We, therefore, do not consider it safe piece of evidence for reliance.
27. So, the question of the identity of the appellants in the instant case has remained unproved beyond above doubt. We, therefore, have not been persuaded to place reliance upon the ocular account of the prosecution.
28. The medical evidence though has established that death of two deceased persons was result of the injuries found on their dead bodies and on the person of Allah Bakhsh injured but nothing more. It goes without saying that such evidence could be used only to support or corroborate the ocular testimony in the instant case and not for any other purpose.
' We here want to mention that the learned counsel for the appellants have argued that the medical evidence is not in line with the ocular testimony. We but in the above circumstances, of the case when no reliable ocular testimony has come forth, do not feel the necessity of discussing this aspect any further as it is hardly required in such situation.
30. Hence, in the absence of reliable ocular evidence the medical evidence could be of no consequence, even if the same be believed to be without any contradiction of the type indicated above. The learned trial Court, therefore, has erred in believing the ocular testimony and receiving the medical evidence as of supportive to the same.
31. We, thus from the above discussion are fully convinced that the prosecution as per it's evidence on the record has failed to bring home the guilt to the two appellants beyond any shadow of reasonable doubt. The learned trail Court, therefore, has erred in convicting and sentencing them.
The impugned judgment, therefore, is not' liable to be sustained.
32. We, therefore, accept their respective appeals, set aside the impugned judgment of their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if not required in any other case.
33, The Criminal Revision (No. 863 of 2002) brought by Muhammad Amir Gondal fails. The same is dismissed.
34. The murder reference is answered in the negative. The death sentence of Haqnawaz alias Hafiz is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.