' FAZAL-E-MIRAN CHAUHAN, J.--- By this single judgment, we intend to dispose of Murder Reference No,50-T of 2006 and Criminal Appeal No,1574 of 2006.
2. Appellant Sajid alias Sajoo son of Muhammad Ishaque caste Sial, aged 26/27 years was tried by Zafar Hussain Chaudhary, Special Judge, Anti-Terrorism Court No,II, Lahore in case F.I.R. No,182 under sections 302, 353, 324, 392, P.P.C. Read with section 7, A.T.A. Police Station Saddar Sheikhupura, who found him guilty under section 302, P.P.C. Read with section 7(a), A.T.A. And section 353, P.P.C. And convicted him as under:--
(a) Under section 302 P. P. C . Read with section 7(a), .T.A. Sentenced to death and fine of Rs,50,000 and in default to suffer two years'
R.I.
(b) Under section 353, P.P.C. Sentenced to one year
(c) Under section 544-A, Cr.P.C. Directed the accused to pay compensation of Rs,1,00,000 to legal heirs of the deceased and in default shall be recovered as arrears of land revenue and in default he shall undergo six months' S.I.
3. Complainant Ibrar Hussain Constable recorded F.I.R. No,182 at 8-50 p.m. On 11-3-2005 to the effect that on 11=3-2005 at 7 p.m. He along with Ahmad Waseem Constable was on petrol duty.
When they crossed Railways Station and went ahead to Gujjar Road, three unknown persons came near them. On their question three of the accused entered into scuffle with the complainant and deceased Ahmad Waseem. In the meantime other co-accused who was hiding in the field of wheat crop, suddenly came out and fired a burst with his weapon at Ahmad Waseem, which hit him on the chest who fell down and died at the spot. One of the accused fired at the complainant who was also injured and fell down on the ground. Rifle G-3 with 100 live bullets of the deceased Ahmad Waseem were taken away by one of the accused. They made indiscriminate firing to create terror at the spot and fled away. Occurrence was also seen by Zaheer Anjum (constable)
P.W.9 who reached the spot. On 1-5-2005 supplementary statement of complainant Imran Hussain and Zaheer Anjum was recorded where they duly nominated the appellant as accused of F.I.R.
No,182 of 2005 who committed the murder of Waseem Ahmad when the appellant was in jail. He was arrested on 27-7-2005 and remained on remand with the police. He was sent to judicial lock- up. On 31-3-2005, the appellant was put to identification test through Ibrar Hussain complainant and Ibrar Anjum P.Ws.8 and 9 both of them picked him up correctly. On 16-9-2005 appellant on remand led to recover the official rifle G-3, P.6 taken in possession vide memo. Exh.P.C.
4. The appellant pleaded not guilty when the charge was read over to him and he claimed to be tried. At the trial prosecution produced Muhammad Younis P.W.1, who identified the dead body; Shabbir Hussain A.S.-I. (P.W.2), Mohabat Ali constable No,811 (P.W.3), Asghar Ali Head Constable (P.W.4), Muhammad Afzal 1406/LHC (P.W.5), Riaz Ahmad Patwari (P.W.6), Dr. Mubashir Khan (P.W.7), Ibrar Hussain Constable (P.W.8), Zaheer Anjum constable (P.W.9), Gul Nawaz Constable (P.W.10), Muhammad Tariq Khan Niazi (P.W.11), Muhammad Iqbal Inspector (P.W.12), Munir Ahmad S.-I., (P.W.13), Munir Ahmad S.-I. (P.W.14).
5. The appellant met the charge with denial professing innocence. He did not appear as witness.
No defence was led. On the assessment of evidence available on record, the learned Special Judge, Anti-Terrorism Court No,II, Lahore found the appellant guilty and convicted him accordingly.
Hence this appeal.
6. We have heard the learned counsel Mr. Abdul Karim Sheikh, Advocate and Mr. Shan Gul, Special Prosecutor for A.T.A. And examined the record of the case carefully.
7. The case of the prosecution mainly hinges upon the following items of evidence.
' Evidence of P.W.8 and P.W.9 complainant Ibrar Hussain and Zaheer Anjum constable who have picked up the appellant in the identification test held under the supervision of Muhammad Tariq Khan Niazi (P.W.11) Special Judicial Magistrate Sheikhupura. Recovery of G-3 rifle of deceased Ahmad Waseem from the appellant on his pointation vide Exh.P.C. P.W.8 Ibrar Hussain the complainant and P.W.9 Zaheer Anjum are the star-witnesses of the prosecution and their testimony seems to have weighed considerably with the trial Court. Both of them while recording the supplementary statement specifically named the appellant to have committed the murder of Ahmad Waseem deceased without disclosing their source of information. Both of them identified the appellant as accused who committed the murder of Ahmad Waseem.
' The evidence of P.W.8 Ibrar Hussain mostly rest on his imagination/ recollection or recognition of appellant but while recording Exh.P.B./1 the. Witness never gives the description of the appellant i.e. Height, age, physique, hair except clothes. He stated that all culprits had wrapped themselves in Chadar. It is also admitted by this witness that it was dark evening. There was no source of light at the place of occurrence "Gujjar Road". He also admitted that due to darkness he could not note the description of the appellant and other accused. Also admits that shot was fired at deceased from distance of 15/20 feet. P.W.9 came to the place of occurrence after 4/5 minutes when he was hit i.e. After the occurrence. Similarly P.W.9 who claims to have reached at the place of occurrence at the time of commission of offence, saw the accused from the distance of 15/20 feet when they were fleeing away from the spot. Occurrence took place after sunset. He claimed to have seen the accused when they were leaving the place of occurrence. He has not given the description of the accused in his statement recorded under section 161, Cr.P.C. Supplementary statement was recorded on 1-5-2005, wherein he disclosed the name of the appellant as accused of the F.I.R.
Stated that he saw the accused in the jail before his arrest. He admits that he saw the accused in jail before he was arrested. He denied that accused was shown to him in the police station before identification parade.
8. The appellant was nominated in supplementary statement on 1-5-2005 when he was in jail. He was joined in the investigation after 1-5-2005 by P.W.13 by summoning him from jail and after proof of his involvement he was arrested on 27-7-2005. He remained all along in the police custody, then in judicial custody till 31-8-2005, when the A identification parade was conducted in jail. Appellant at the time of identification parade objected that he was kept in custody by police for two months and was shown to the P.W.8 and P.W.9. There is nothing on the record to show as to why the identification parade was conducted after 35 days. The whole object of the identification parade is to find out whether the suspect is the real culprits or not and if the parades are delayed for such long period or time without any plausible explanation then their object would be largely frustrated.
In such a situation the possibility that the witness had seen the culprits in police custody or judicial lock-up cannot be ruled out. Ibrar Hussain P.W.8 and P.W/9 Zaheer Anjum admits that they have seen the accused in the jail before identification parade. Both of them also testified that there was no source of light at the spot. It was a dark evening and they could not get glimpse of the accused.
It is only after two months of occurrence on 1-5-2005 they nominated the accused without disclosing the source of their knowledge. The mere fact that the witness picked up the appellant in an identification parade is not in itself sufficient to connect the accused with the crime if identification parade is not conducted soon after arrest.
' Reliance can be placed on Amira and 6 others v. The State 1968 PCr.LJ 876, Lal Pasand v. The State PLD 1981 SC 142 and Muhammad Hassan and another v. The State PLD 1970 Kar.
413.
9. In this view of the matter no reliance can be placed upon the evidence of P.W.8 and P.W.9.
Sentence of death solely on statement of witnesses who identified appellant after 5 months of the occurrence that too when no description was given in the F.I.R. Exh.P.1 and in the supplementary statement recorded on 1-5-2005 cannot be upheld. We are now left with the evidence of recovery of G-3 rifle and 100 live cartridges. Besides being unnatural this piece of evidence has got only corroborative value and is not sufficient in itself to bring home charge in such a serious case of murder. The prosecution has failed to place on record any record from the police station showing that G-3 rifle alleged to have been recovered at the pointation of the accused was issued to him on the date of occurrence along with 100 cartridges. Accordingly the benefit of doubt which has arisen is extended to the appellant.
10. For what has been discussed above, the judgment of the learned trial Court is set aside and appeal is allowed. The appellant who is in custody be released forthwith if not required in any other case. Murder Reference is answered in the negative and the death sentence is not confirmed.