' JUSTICE CH. EJAZ YOUSAF (MEMBER).--- BY this judgment we propose to dispose of Criminal Shariat Petitions No,6(S) and 7(S) of 2006 as both arise out of common judgment, dated 26th January, 2006 passed by learned Division Bench of the Federal Shariat Court, whereby appeals filed by both the petitioners, were dismissed and convictions and sentences recorded against them under sections 395/400, P.P.C. By Additional Sessions Judge/Izafi Zila Qazi Awal, Swat, were maintained.
2. Facts of the case, in brief, are that a case under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 400/401, P.P.C. Was registered at Police Station Mingora, on the receipt of Murasila by Amir Zaman, A.S.-I., to the effect that during Gasht duty, it came to his knowledge that in the night between 17-2-2001 and 18-2-2001 Luqman son of Muhammad Imran etc. Along with few others, had committed dacoities in the house of Bavar Khan and others,. Investigation in purs,uance of the report was initiated and in course thereof the petitioners, along with other accused persons were arrested. Some of the accused persons could not be apprehended hence, they were declared as proclaimed offenders,. Charge was accordingly framed to which the petitioners, did not plead guilty and claimed trial. At the trial the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons produced 22 witnesses in all, whereafter the accused persons were examined under section 342, Cr.P.C. In their above statements, the petitioners, denied the charge and pleaded innocence. They, however, failed to produce any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C. On conclusion of the trial, the learned trial Judge convicted the petitioners, and sentenced them to the punishments as under:-- Under section 395, Imprisonment for life each plus a P. P. C . Fine of rs,.50,000 each. Under section 400, Ten years,' R.I. Each plus a fine of P.P.C. Rs,.10,000 each.
' In failure to pay separate fines imposed under sections 395 and 400, P.P.C., the petitioners, were directed to undergo one year's S.I. Each. Both the sentences were ordered to run concurrently.
Benefit of section 382-B, Cr.P.C. Was however, not extended to the petitioners,.
' Being aggrieved, the petitioners, along with others, filed appeals in the Federal Shariat Court, which though were dismissed yet, two of the co-convicts, namely, Ibrahim and Afzal Khan were acquitted of the charge as no incriminating evidence was found against them, hence these petitions.
3. Mr. Muhammad Ilyas Siddiqui, learned counsel for the petitioners, Siraj-ul-Haq, has contended that neither petitioner Siraj-ulHaq was named in the F.I.R. Nor any overt act was attributed to him by the complainant as well as any of the other eye-witnesses nor was he identified by both the eye-witnesses i.e, Bavar Khan and his grandson, namely, Safdar Ali, nor any of the incriminating articles including the part of looted money was recovered from his possession, therefore, he could not have been convicted for the offence.
4. Mr. Altaf Ellahi Sheikh, learned counsel for the petitioners, Dawood and Darwaiza alias Kaley, while adopting the arguments advanced by the learned counsel appearing for petitioner Siraj-ul-Haq, added that though a sum of rs,.20,000 was allegedly handed over by the petitioner Dawood and Darwaiza to P.W. Muqadar Shah as part of the looted money yet it could not have been taken as incriminating circumstance against the petitioners, for the simple reason that complainant at the trial had categorically stated that it were 5,000 Riyals which were looted from his house, hence, the amount recovered cannot in any way connect the petitioners, with the crime. He has also vehemently contended that though it was claimed by the complainant as well as P.W.8 Safdar Ali that they had identified the culprits at the time of occurrence, at the test identification parade by P.W. Safdar Ali and in Court as well, yet, their statements could not have been relied upon in this regard, because neither the petitioners, were named in the F.I.R., nor their features by appearance were given therein nor any overt act was attributed to any of them. So much so, it was not even pointed out, at the trial, as to who of the accused persons was who and what part had he played in the crime. He maintained that in the absence of requisite details no sanctity could have been attached to the evidence of identification, nor the recovery of the looted money could have saddled the petitioners, with the liability of dacoity.
' Both the learned counsel for the petitioners, maintained that for the reasons mentioned above, the petitioner may be acquitted of the charge.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance minutely. The prosecution case is based on the ocular testimony furnished by P.W.6 Bavar Khan in whose house, allegedly the dacoity was committed, the evidence of identification and the recovery of a sum of rs,.20,000 from the possession of petitioners,, namely, Dawood and Darwaiza. In order to bring home charge against the petitioners,, the prosecution has relied upon the statement of accused Zulam, recorded by the police during investigation, wherein he had allegedly confessed his guilt and stated that the accused persons had committed various dacoities and robberies but irony of the situation is that Zulam has himself been acquitted by the trial Court. The name of Siraj-ul-Haq petitioner, however, does not find place in his statement. Though, in his above statement Zulam had also named Afzal, Adam, Ahmad Shah, Rehmani Gul alias Amir Sahib, Pir Sahib, Umar, Kaley, Babar, Ayub, Ibrahim, accused persons out of which, some have been either acquitted or have been declared proclaimed offenders, yet, none of the petitioners, was implicated by him. In his above statement Zulam had further stated that a sum of rs,.17,000 was handed over by him to the police as part of the looted money from the house of Bavar Khan, yet, certainly it was not the money allegedly recovered from the petitioners, because as per Bavar Khan only Saudi Riyals were looted from him. Statement of Zulam before the police which otherwise, was admissible for limited purpose of Article 40 of the Qanun-e-Shahadat Order, 1984, thus, cannot in any way connect the petitioners, with the crime.
6. So far as the statements of both the eye-witnesses against the petitioners, are concerned, it may be pointed out here that none of them has involved any of the petitioners,. Fact remains that fifteen persons were challaned to the trial Court, out of which nine were tried and five persons including the petitioners, were convicted. Out of these five, two namely, Ibrahim and Afzal were acquitted by the Appellate Court. The evidence of identification in the case has been furnished by P.W.6 Bavar Khan and P.W.8 Safdar Ali his grandson, but in our view their statements would be of no help to the prosecution for the reasons, firs,tly, that Bavar Khan at the firs,t instance had stated before the police that none of the culprits was identified by him and secondly, if he had actually identified them then neither roles to each of them were attributed, nor their features or description by appearance was given by him, therefore, it was not safe to rely on the evidence of identification. It has been repeatedly laid down by the apex Court that unless role to each accused in the crime is attributed at the very outset, his identification at the identification parade or in Court consequently, would be of no use. In the case of Khadim Hussain v. The State 1985 SCM R 721, the prosecution had relied on the identification of the culprits in the identification parade held after eight months after the occurrence. While relying on the famous case of Lal Singh v. The Crown (1924) 5 ILR 396, it was held that since it was not clear from the evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes and if it was the identification of their role then it should have been specific so as to complete the picture of crime, therefore, the value of identification parade was reduced to naught. In the above context it was further held that the principal evidence of identification is the evidence of a witness given in Court to the effect that as to how and under what circumstances, he came to pick out a particular person and the details of the part which that accused played in the crime and that the statement made by such a witness at identification parade might be used to corroborate the evidence in Court as otherwise, it would be hears,ay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight. In the case of Ghulam Rasool and others, v. The State 1988 SCM R 557, it was held that since P.W. Had not described the role played by each of the accused person at the time of commission of the offence, therefore, the evidence of identification had lost its efficacy and could not have been relied upon. In the case of Asghar Ali alias Sabah and others, v. The State and others, 1992 SCM R 2088. The Supreme Court while referring the case of Lal Singh (supra), was pleased to hold that 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, unless it is disclosed by the witnesses that in which context he had identified the accused. In the case of Mehmood Ahmad and others, v. The State and another 1995 SCM R 127, the prosecution had also relied upon identification parade in which one of the witnesses had allegedly identified the appellants. The learned Judges of the High Court had also relied upon the same as a corroborative piece of evidence. It was held that identification of accused persons in the identification parade without attributing to them their roles in the crime was of no evidentiary value.
Following the ratio decidendi of the afore-quoted judgments, we are inclined to hold that in the instant case since roles to each of the petitioners, were not attributed by the P. Ws. In their statements under section 161, Cr.P.C., in the F.I.R., at the test identification parade or even at the trial, therefore, it was not safe to rely on the evidence of identification.
7. An other fact which cannot be lost sight of is that P.W.6 Bavar Khan has claimed that he had seen the faces of three culprits, whereas P.W.8 Safdar Ali has not stated that he had seen the faces of the culprits at the time of the occurrence. He has at the trial, only claimed to have identified the culprits at the test identification parade. It is also not case of the prosecution that the petitioners, at the test were identified by P.W. Bavar Khan. P.W. Safdar Ali, at the trial, is silent about participation of the petitioners, in the crime, what to speak of attributing roles to them, he has not uttered a single word about this own presence at the place of occurrence, hence in the absence of requisite details identification of the accused persons by him at the test identification parade had lost its significance. On the contrary P.W.6 Bavar Khan who had identified the petitioners, at the trial was not associated with the test identification parade. It would be pertinent to mention here that the occurrence in the instant case took place in the night between 20th and 21st February, 2001, whereas statement of P.W. Bavar Khan was recorded in Court on 28-10-2004 about two and a half years, thereafter, hence in the absence of specific roles attributed to each of the accused persons and his non-participation in the test identification parade, the possibility that the witness might have mistakenly pointed out the petitioners, at the trial could not have been ruled out. Naturally, memory fade by the lapse of time.
8. The result of foregoing is that the prosecution has miserably failed to make out its case against the petitioners,. It is well-settled that in criminal administration of justice, nobody is to be punished unless proved guilty on the basis of reliable evidence and that benefit of reasonable doubt must go to the accused. We, therefore, are inclined to convert both these petitions into appeals and allow the same. Order accordingly. Consequently, the impugned judgments, dated 30-5-2005 passed by the learned Additional Sessions Judge/Azafi Zilla Qazi Awal, Swat, as well as of the Federal Shariat Court, dated 26-1-2006 are set aside and the petitioners,/appellants, namely, Siraj- ul-Haq son of Gul Azim, Dawood son of Rekhmeen and Darwaiza alias Kaley son of Sariqi are acquitted of the charge. They shall be released forthwith if not required in any other case.