1. ' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Jail Appeal No,29 of 2002 and Confirmation Case No,4 of 2002 as they arise out of a common judgment.
2. ' Brief facts giving rise to the present appeal are that on 1-7-2000, P.W.2 complainant Munawar Ali Excise Constable accompanied deceased Sultan Ahmed Shaikh Excise Inspector to apprehend some culprits as the. Excise Inspector received spy information that three persons namely Bakhshan the appellant, Muhammad Usman and Dhani Bux would be travelling in a Car bearing No,M-600 carrying narcotics. The deceased took other staff namely Shah Nawaz, Lateef Dino, Akhter Ali Shah, Darban Ali with him and left Excise Office at 6-40 a.m. In a Datsun bearing No,QAF8840. The deceased were armed with official rifle. The Excise party conducted Nakabandi at Municipal Octroi Post Mumtaz Colony, Khairpur. At about 7-15 a.m. They saw the required car coming from Sukkur side. When the car reached near them constable Lateef Dino Shar signaled the driver to stop the car. When the said car reached near them the P.Ws. Saw appellant Bakhshan driving the car whereas accused Muhammad Usman and one unidentified person sitting on the rear seat of the car. The appellant stopped the car. The deceased asked the occupants of the car to come out from it. Thereafter the accused Dhani Bux fired from his pistol, which hit constable Latif Dino on his left buttock. The appellant Bakhshan fired from his pistol which hit Excise Inspector Sultan Ahmed Shaikh on his neck and fell down on the ground. The accused threatened the P.Ws.
3. Not to come near them otherwise they would be murdered. As the P.Ws. Were empty handed, therefore they did not do any thing. In the meanwhile accused Muhammad Usman took official rifle of the deceased and then sat in the car. Thereafter all the accused went away by firing in the air.
4. The P.Ws. Went to the deceased and found him lying dead. The injured Lateef Dino was sent to hospital. The complainant then went to police station and lodged the report at 8-30 a.m.
5. ' P.W.11 S.H.O., Yar Muhammad after lodging the report reached the place of incident. One police party reached the place of incident for conducting the investigation whereas another party headed by Inspector Liaquat Ali Abbassi went in search of the culprits. When they reached Peshori Hospital S.H.O. Received spy information that three persons in a car were going to village Asadullah Rind. The police party followed them. They reached the house of Mumtaz Rind where they saw three persons getting down from the car and started running. They were armed with weapons. The said persons entered Banana garden. Another police party also reached there. They surrounded the area where encounter took place for about 15 minutes. Thereafter one culprit was apprehended who disclosed his name as Bukhshan. A TT Pistol was secured from his possession. The police party also found a culprit lying dead and a MP-5 rifle belonging to the deceased was lying beside the said dead-body. The said rifle was also secured and such Mashirnama was prepared. After completing the usual investigation the appellant was challaned along with Dhani Bux before the Court of law.
6. ' During the trial accused Dhani Bux absconded therefore the case proceeded against the appellant. After the trial the learned Judge Anti-Terrorism Court-II, Sukkur convicted the appellant for offences punishable under sections 302(b), 324 and 353, read with section 34 P.P.C. , section 7(a) of Anti-Terrorism Act, 1997 and sentenced him to death, various terms of imprisonment and fine under the impugned judgment dated 30-5-2002.
7. ' We have heard Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
8. ' The learned Advocate for the appellant has stated that the prosecution examined four witnesses of Excise Department who claimed to be the eyewitnesses but they did not know the appellant before the incident as admitted by them in the cross-examination, therefore, the appellant should have been put in an identification test for identifying him through the witnesses but no identification test has been held therefore the prosecution has failed to connect the appellant with the crime. He has further stated, with regard to the second incident, that the prosecution examined three witnesses of police department but for that a separate case has been registered and that through their evidence the appellant cannot be connected with the crime of first incident.
9. Therefore, the case of the prosecution is highly doubtful against him.
10. ' Conversely the learned Addl.A.-G. Has stated that the culprits were unknown to the witnesses of Excise Department as they admitted in their cross-examination, therefore, the identification of the accused through an identification test was must but the Investigating Officer did not hold such test, therefore the appellant has not been properly identified by the P.Ws. In the case. He has further stated that the appellant has admitted the whole case of the prosecution in his statement recorded under section 342, Cr.P.C. And has also admitted that at the time of incident he was driving the vehicle but took the pleas that he was abducted by the culprits; that from the admission of the appellant his involvement in the case has been established as the witnesses have deposed that the person who was driving the car had fired at the deceased hence the case has been proved against the appellant. He has supported the impugned judgment.
11. ' We have given due consideration to the arguments, gone through the evidence with the help of learned Advocate for the appellant and found that the story of the prosecution is divided into the two parts. First part deals with the actual incident in which the deceased Excise Inspector lost his life from fire-arm shot of the culprits whereas the second incident deals with the police encounter in which the appellant was arrested, TT pistol was secured from his possession and the rifle of the deceased was secured which was lying near the dead culprit. As regards the second incident a separate case has been registered. We will deal with the evidence which is relevant for the purpose of decision of this case.
12. ' As regards the first incident, the prosecution examined P.Ws. .Excise Constables Munawar Ali, Darban Ali, injured Lateef Dino and Shah Nawaz. In the evidence they gave the same details of the incident as mentioned in the earlier part of the judgment, therefore need not to be repeated.
13. However, all the P.Ws. Are unanimous that the culprit who are driving the car has fired from his pistol at the deceased which hit him and he died at the place of incident. These P.Ws. Named the said culprit as the appellant. In the cross-examination all the P.Ws. Deposed that the accused persons were not known to them prior to the incident. Thus it has been established beyond any shadow of doubt that the culprits were unknown to all the witnesses. The incident took place in a very short span of time therefore in such a situation the prosecution was required to produce the appellant, after his arrest before a Magistrate for holding identification test through the eye- witnesses so as to connect the appellant with the commission of the crime. It is surprising to note that the Investigation Officer did not perform his duties diligently and in accordance with law as he did not produce the appellant before the Magistrate for holding identification test of the appellant through the witnesses. If the witnesses had identified the appellant to be the culprit of the crime then he could have been connected in the crime through these witnesses. In absence of such evidence the appellant cannot be properly involved in the case through the above named P.Ws.
14. Nevertheless from their evidence it has been established that the culprit who was driving the car had caused the murder of the deceased.
15. ' It will be noticed that the appellant in his statement recorded under section 342, Cr.P.C. Admitted the entire case of the prosecution except his involvement by taking the plea that the culprits had abducted him though he had not participated in the commission of offence. It will be advantageous to reproduce the said statement, which reads as under:- ' "I am retired Police Head Constable and at present I am taxi driver. I submitted the driving licence.
16. On the day of incident I was going to Mukhtiarkar Office Khairpur in my taxi for getting the house building loan. As soon as I came outside my village on link road 7 armed dacoits robbed my taxi and caused me injuries and asked me to move to Khairpur. At the place of incident police was available signaled me to stop the car. I stopped the car. The culprits started firing on the police. The dacoits pointed pistol and gave butt blows to me. We covered about 2 or 2-1/2 kms. Distance. They asked me to stop and took me by foot towards crops. The villagers came there. Police also came there. The accused went away from there. I got up and cried saying that I was taxi driver had been abducted by the dacoits. The police took me in custody and searched my body but nothing was recovered from me. I was then brought at police station and falsely implicated in this case. I then made several applications to higher authorities. I produce the Photostat copy of application and other documents in my defence for perusal and favourable consideration. I pray for justice."
17. From the above statement it is clear that the appellant was the person who was driving the car at the time of incident. All the P.Ws. Deposed that the person who was driving the car had fired at the deceased from his pistol. If the statements of eye-witnesses to the above extent and the statement of appellant are read together then there will be no hesitation in holding that the appellant was the person who was driving at the time of incident and he fired at the deceased because the statement of P.Ws. On the above aspect of the case went un-challenged as the defence counsel did not ask any question denying the fact that the appellant was not driving the vehicle or did not fire at the deceased.
18. ' Now the question arises as to whether the statement of accused can be accepted in part or as whole. The general law is that the statement or admission or confession of the accused is to be accepted as a whole if the conviction is based solely on his statement. In such a situation the statement of the accused cannot be relied upon in part by accepting inculpatory part and excluding an exculpatory part of his statement. However, there is exception to the general rule that is, if the conviction is not based solely on the confession, admission or statement of the accused then law permits that the same can be accepted in part by relying upon inculpatory part and excluding the exculpatory part of his said statement, confession or admission. The similar question was examined by a Bench of 5 Honourable Judges of the Honourable Supreme Court of Pakistan in a case of Faiz v. State (1983 SCM R 76). At page 79 dealing with the above point, it has been observed as under:-- "8. The judgment of the High Court makes it abundantly clear that the ocular evidence was totally discarded and they only material utilized by the Court for determining the guilt of the appellants was the "defence version." There were no proved or established facts to test the defence version.
19. This distinguishes the decision in Imamuddin's case which had proved or established facts. In Balmakund case a reference to Full Bench of the High Court became necessary because the Judges hearing the case found the exculpatory part of the statement of the accused to be so unworthy of belief that no Court could act upon them. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception:
(a) where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remaining with the other evidence.
(b) Where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible.
20. ' In the case of Rahim Bux also it was held that where the conviction is based entirely on the statement of the accused then that statement should be taken into consideration in its entirety."
21. ' Similar view was taken by the Honourable Supreme Court of Pakistan in subsequent decisions one of them is of the case of Sultan Khan v. Sher Khan (PLD 1991 SC 520), and second is in the case of Shabber Ahmed v. State (PLD 1995 SC 343).
22. ' Following the principle laid down by the Honourable Supreme Court of Pakistan in connection with to evaluate and assess the statement of the accused when the conviction is not based solely on his such statement but the conviction is based on the ocular testimony of the prosecution witnesses and such statement, we rely upon the inculpatory part of the statement of the appellant excluding the exculpatory part of his statement because such portion of the statement has neither been supported nor corroborated by any piece of evidence available on the record or brought by the appellant. The appellant did not put exculpatory part of the statement to the prosecution witnesses except a suggestion was made to P.W.1 only to the extent that he was abducted by the culprit but he denied the same. The appellant did not examine any witness to prove his allegation.
23. It is apparent that when he was abducted from any place then the incident must had been witnessed by some persons. The evidence could have been led by examining such persons to prove that he was abducted by the culprits. Non-availability of the evidence on the record either through the prosecution witnesses or through the appellant, the plea raised in exculpatory part of the statement cannot be held to be proved.
24. From the above evidence it has been established beyond any shadow of D doubt that the appellant was the person who had fired at the deceased.
25. ' The prosecution further tried to connect the appellant through the recoveries as the prosecution alleged that a crime empty was secured from the place of incident, a pistol was secured from the possession of the appellant and both the articles were sent to the Ballistic Expert who reported that the crime empty was fired from the pistol. The important fact is that before relying upon the Ballistic Expert report, it has to be ensured that both the properties secured from their respective places were duly sealed in presence of witnesses at the place of incident just after their recoveries so as to prove the authenticity that the same were in same condition when they were received by Ballistic Expert. The sealing of the articles at the place of incident is essential to eliminate the apprehension and possibility of tampering with the said recoveries.
26. ' In the present case the crime empty was secured in presence of P.W.3, he did not state that the said empty was sealed in his presence. The Investigating Officer P.W.1 who reached the place of incident, also did not state that the empty was secured from the place of incident, thus the empty even if we hold that the same was secured as per P.W.3 but there is no evidence on the record to show that the same was sealed at the place of incident. The learned A.A.-G. Has taken us to the Mashirnama of the place of incident Exh.14-A and argued that it shows that the empty was sealed.
27. He wants us to rely upon the Mashirnama to hold that the empty was sealed at the place of incident. We are afraid we cannot accept such argument for the simple reasons that Mashirnama of the place of incident is not a substantive piece of evidence. There is no provisions in the Cr.P.C.
28. Or in police rules for preparation of such Mashirnama. Such Mashirnama is prepared for the convenience of the Investigating Officer. It has no evidentiary value except that it can be used to refresh the memory of the person signing it as provided under Article 155 of the Qanun-eShahadat Order. Furthermore the contents of Mashirnama are not protected under Article 49 of the Qanun-e- Shahadat Order because the same was not prepared in discharge of the official duties of Investigating Officer, therefore the same are inadmissible in evidence. Nevertheless if a Mashirnama is prepared as mandated by section 103, Cr.P.C. Then the facts mentioned in it as contemplated by the said section are only admissible. The contents of such Mashirnama should be the list of articles secured from the place where search was conducted and the places from which the said articles were secured. The Investigating Officer, under section 165, Cr.P.C. Is authorized to search a place and provisions of sections 102 and 103, Cr.P.C. Have been made applicable to such scratches. Except the said list of articles and places from which they were secured no other facts mentioned in the Mashirnama are protected under Article 49 of the Qanun-e-Shahadat Order. A Division Bench of this Court in which one of us (Rahmat Hussain Jafferi, J.) was the member and author of the judgment examined the said question in detail, in Criminal Appeal No,392 of 2004 decided on 29-7-2006. After relying upon the decision of Privy Council and relying upon a Circular
(2) (IX) Part-C Chapter-V of Federal Capital and Sindh Courts Criminal Circulars in which it has been specifically mentioned that the Mashirnama of the place of incident is inadmissible in evidence observed that the contents of Mashirnama except as provided under section 103, Cr.P.C.
29. Are inadmissible in evidence unless the witnesses depose such facts in Court and the said Mashirnama can be used for the purpose of refreshing the memory of the witnesses or Investigating Officer as required under Article 155 of Qanun-eShahadat Order. Thus the arguments of the A.A.-G. Has no force at all.
30. ' As the crime empties were not sealed at the place of incident, therefore, it cannot be held that when the Ballistic Expert received the said empty, it was in the same condition in which it was secured from the place of incident. Thus the Ballistic Expert report carries no weight in the peculiar circumstances of the case.
31. After scrutinizing the evidence, we are of the considered view that the E prosecution has proved the charge against the appellant.
32. ' Above are the reasons of our short order dated 31-8-2006 by which we had dismissed the Appeal and allowed the confirmation case. 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.