GHULAM QADIR and 2 others vs THE STATE

' IJAZ-UL-HASSAN KHAN, J.--- This criminal appeal has been directed against the judgment, dated 21-3-2002 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby Criminal Appeal No,20 of 2000 preferred by Ghulam Qadir, Rab Nawaz and Ali Hassan, appellants, against their conviction and sentences awarded to them under sections 148/149/324/396 and 449, P.P.C. Vide judgment, dated 31-5-2000 passed by the Judge, Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, has been dismissed.

2. The facts necessary for the disposal of instant appeal are that on the fateful night i.e, 21-2-1998, complainant, Muhammad Akram, Manager Administration, Ashraf Sugar Mills Limited, Ashraf Abad Bahawalpur, was present in his office when at about 8-00 p.m. 8/10 persons armed with kalashnikovs, pistols and mousers, entered into the Mill's premises and headed towards Accounts Branch. They caused injuries to Muhammad Akmal, Security Guard and snatched his rifle. One of the accused fired at Akbar Khan, Security Guard, hitting him on the right leg. Thereafter all the accused broke the lock of iron grill, entered into the Accounts Branch and tried to break open the iron safe in order to take away the cash, but could not succeed. In the meanwhile, there was commotion all around, which attracted the mill's workers. Confronted with this situation, the accused started firing, as a result of which, Ghulam Hussain, Security Supervisor and Mehdi Khan, Security Guard, received injuries and died there and then, whereas Muhammad Azam, Security Officer, Muhammad Zaman, Time-keeper and Muhammad Akhtar, Telephone Operator, Account Branch, sustained injuries. The accused took rifles of the deceased and injured security staff, and after firing made good their escape.

3. The matter was immediately reported at the Police Station Musafar Khana, District Bahawalpur, by complainant, Muhammad Akram, whereupon, F.I.R. No,37 of 1998 was lodged the same night at 8-15 p.m. After registration of the case, S.-I./S.H.O. Abdur Rashid, visited the scene of occurrence, secured number of empty cartridges and blood-stained earth from the spot. He prepared injury statements and inquest reports of the deceased and dispatched the dead bodies to the mortuary for post-mortem examination. The injured were also referred the hospital for treatment.

4. The matter remained under investigation as the accused were not traceable. It was on 23-8- 1998 when Khan Muhammad, Ali. Hassan, Rab Nawaz and Ghulam Qadir, were arrested who were carrying certain weapons with them. As no one was nominated in the F.I.R., an identification parade was held on 27-8-1998 within the premises of New Central Jail, Bahawalpur. P. Ws. Muhammad Azam and Muhammad Akmal took part in the identification parade. Out of them P.W. Muhammad Azam identified Ghulam Qadir, Ali Hassan and Rab Nawaz whereas P.W. Muhammad Akmal failed to identify any of the accused. Khan Muhammad and Ghulam Qadir led to the recovery of rifles, whereas Rab Nawaz led to the recovery of kalashnikov. On 6-9-1998, after completion of investigation, challan was submitted in Court. The accused were charged under sections 148/449/395/396/397 and 412 read with section 149, P.P.C. To which they plead not guilty and claimed to be tried.

5. The prosecution in order to prove its case, produced as many as 17 witnesses. The ocular account was furnished by complainant Muhammad Akram (P.W.1), Muhammad Akmal (P.W.2) and Muhammad Azam (P.W.3). The accused facing trial in their statements recorded under section 342, Cr.P.C. By the learned trial Court, denied and disputed the accusation of the incriminating pieces of evidence and claimed their innocence, as well as, false involvement in the case. None of them opted to record statement on oath in disproof of the charges under section 340(2), Cr.P.C. But said that they have been falsely involved at the instance of Jam Manzoor Ahmed, S.-I./S.H.O. They also refuted being in possession of any weapon or having led to any recovery.

6. The learned trial Court, on conclusion of the trial, while extending benefit of doubt, acquitted co- accused Muhammad Khan whereas convicted and sentenced the appellants vide judgment, dated 31-5-2000 as follows:---

(i) Under sections 396/149, P.P.C.

Rab Nawaz, Ali Hassan and Ghulam Qadir were convicted and sentenced to death.

(ii) Under sections 148/149, P.P.C.

They were convicted and sentenced to 5 .Years' R.I. And fine of Rs,5,000 each or in default thereof to undergo 6 months' S.I.

(iii) Under section 449/149, P.P.C.

They were convicted and sentenced to 5 years' R.I. And a fine of Rs,5,000 each or in default thereof to undergo 6 months' S . I .

(iv) Under sections 324/149, P.P.C.

They were convicted and sentenced to 7 years' R.I. And a fine of Rs,5,000 each or in default thereof to undergo 6 months' S. I.

7. Feeling aggrieved, the appellants filed appeal before the Lahore High Court, Bahawalpur Bench, which was dismissed on 21-3-2002, hence, this appeal with leave of the Court.

8. We have heard Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court, appearing on behalf of the appellants and Ms. Yasmin Sehgal, Deputy Prosecutor-General, representing the State. We have also perused the entire record with their assistance.

9. Learned counsel for the appellants bitterly criticized the impugned judgment and attempted to "argue that appellants had no hand in the commission of crime and they have been falsely implicated in the case at the instance of P.W. Jam Manzoor Ahmed, Sub-Inspector/S.H.O. The learned counsel also contended that appellants were not named in the F.I.R. Nor their physical features were mentioned therein. None of the appellants was arrested from the spot and subsequent arrest of the appellants on 23-8-1998 and belated identification parade held on 27-8- 1998 was result of police manipulation, that ocular account of the incident furnished by P.Ws.

Complainant Muhammad Akram, Muhammad Akmal and Muhammad Azam is highly inconvincing and unreliable which cannot be made basis for conviction of the appellants. The learned counsel, in the last limb of arguments, challenged the evidentiary value of identification parade and submitted that it was not conducted in consonance with the requirement of law as it was incumbent upon the identifying witnesses to attribute specific role and weapons of offence to each of the appellant which was not done.

10. Learned Deputy Prosecutor-General, representing the State, controverted the arguments of learned appellants' counsel and submitted that statement of prosecution witnesses have rightly been believed and Acted upon, hence, conviction of the appellants and punishment awarded to them by the trial Court and maintained by the High Court is unexceptionable and admits no interference.

11. The prosecution case primarily hinges upon the ocular account furnished by P.Ws., Muhammad Akram, Muhammad Akmal and Muhammad Azam, identifications parade, recoveries and medical evidence. Admittedly, Muhammad Akram, P.W., first informant , is not an eye-witness of the incident. Telephone Operator Amanullah, is stated to have informed the complainant about the incident, stating that on the night of occurrence some persons entered into the Mills' premises, they had concealed fire-arms under the `Chaddirs'. They rushed towards the Accounts Branch and on resistance they opened fire, resulting in murder of two workers and injuries to others. It may be pertinent to mention here that Telephone Operator, Amanullah has not been examined at the trial.

Testimony of P.W. Muhammad Akram being hearsay cannot be relied upon. As mentioned above, after arrest of the appellants, an identification parade was held in the jail premises. Muhammad Akmal and Muhammad Azam P.Ws. Took part in the identification parade. Muhammad Akram failed to recognize any of the accused during identification parade. P.W. Muhammad Azam also could not identify all the accused persons. His statement under section 161, Cr.P.C. Was recorded at very belated stage on 4-3-1999. Needless to emphasize that belated examination of a witness by the police may not be fatal to the prosecution case but where the delay is unexplained, accused has not been named in the F.I.R. And circumstances justify that the open F.I.R. And delay have purposely been manoeuvred to name the accused later, such managed delay and gaps adversely affect the prosecution case. The version of Muhammad Azam would denude his statement of all legal values, Mehmood Ahmad v. The State 1995 SCM R 127.

12. It may be pertinent to mention here that Muhammad Zaman, Muhammad Akhtar and Akbar Khan employees of the Mill, stated to have sustained injuries in the occurrence, have not been produced at the trial. Best evidence has been with held without any justifiable reason. Needless to add that if an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reasons for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas, as held by this Court in Asghar Ali alias Sabah v. The State 1992 SCM R 2088.

13. The next piece of evidence heavily relied upon by the prosecution is identification parade held on 27-8-1998, in which Muhammad Azam identified three appellants namely, Ghufam Qadir, Rab Nawaz and Ali Hassan. The learned trial Court as well as learned High Court has relied upon it as corroborative piece of evidence. We have examined the record of the identification proceedings and found that it suffers from infirmities and illegalities. The appellants Were merely picked up and the role attributed to them was not stated by the witness. In such circumstances, the settled law is that identification could not be relied upon and was of no evidentiary value. Reference in this regard can be made to the case of Khadim Hussain v. The State 1985 SCM R 721, where it was observed that "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime as individuals, as friends or as foes.If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown ILR 51 Lah. 396 in the words "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.

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." It is, therefore, clear that proceedings of the identification parade where the appellants were picked up without describing the role played by them in the crime suffers from illegalities and infirmities rendering it completely unreliable having no evidentiary value. The possibility that police had not got accused identified by the witnesses prior to identification parade cannot be excluded.

14. Adverting to the question regarding recovery of crime weapons at the pointation of some of the appellants, we find that learned trial Court has held that "it is hardly believable that after about six months of the occurrence, all the accused should be travelling together in the same truck and be apprehended jointly. And if the Investigating Officer had any impression that the weapons so recovered from the accused might be the weapon of offence in the instant case, he should have sealed them forthwith and handed over to some responsible official of the police station for safe custody but it never happened. These weapons were left somewhere in the "Malkhana" without taking any care of getting them analyzed. It is highly improbable that these accused would halt in a nearby graveyard of Monza Jamal Channer and shrine and start digging the ground for concealing only two rifles. They had their own weapons and were in no need of taking away others' rifles. In view of this matter, we are least convinced to hold that accused Khan Muhammad and Ghulam Qadir were ever found in possession of the stolen rifles owned by the Ashraf Sugar Mills.

Further no person of adjoining area was cited as an attesting witness".

15. So far as medical evidence is concerned, it is settled law that the medical evidence may confirm the ocular evidence with regards receipt of injuries, nature of the injuries, kinds of weapon, used in the occurrence but it would not connect the accused with the commission of the offence.

16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful.

Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case.

Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10.

17. In view of the above discussion, while extending benefit of doubt in favour of the appellants in the given facts and circumstances of the case, they have been found entitled to earn acquittal.

Resultantly, the appeal is accepted and convictions and sentences recorded by the learned trial Court and maintained by the learned High Court are set aside. The appellants are acquitted of the charges. They are directed to be released forthwith if not required in any other case.