' TANVIR AHMED KHAN (MEMBER).--- This appeal with leave of the Court is directed against the judgment, dated 3rd May, 1999 of the Federal Shariat Court of Pakistan whereby the determination of the learned Additional Sessions Judge, Toba Tek Singh dated 8th September, 1997 was upheld while modifying the conviction of the appellant from section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") read with section 302(a), P.P.C. Was altered to that of section 302(b), P.P.C. As Ta'zir. The conviction under section 17(4) of the Ordinance was not maintained, as criteria laid down for punishment for Hadd was not substantiated in accordance with the requirements of law. The death sentence was confirmed and the murder reference was answered in the affirmative.
2. Facts briefly for the disposal of this appeal are that F.I.R. No,2 of 1994 was got registered at the written complainant Exh.P.D. Of P.W.10 Iqbal Hussain by P.W.3 Shoukat Hayat, Head Constable, on 6- 1-1994 at 8-25 p.m. It was the case of the complainant that on the 6th January, 1994 at 7-30 p.m.
Two motorcycles arrived and stopped in front of the shop of the deceased Iqbal Hussain. Six persons in all, got down from the said motorcycles. Three persons were of middle height and three were of big height. All were armed. Three of them climbed over the Thara of the shop. One of them ordered the complainant and his companions to stand up and hand over whatever they possessed. Zafar Abbas deceased inquired from them who they were? Thereupon, one person of whitish colour of middle height fired at Zafar Abbas hitting him on the left side of his chest. He rushed outside the shop in an injured condition and was fired at by a person of long height, which missed. The miscreants succeeded in escaping from the place of occurrence by riding their motorcycles. The complainant stated in the complaint that he and his companions Muhammad Zulfiqar and Zawar Hussain could identify the culprits. Zafar Abbas was immediately taken to the hospital where he succumbed to the injury. The complainant thereafter, submitted his complaint to the S.H.O. Police Station City, Toba Tek Singh, on the basis of which as already stated formal F.I.R.
Was recorded by Shaukat Hayat, H.C. (P.W.3). It was also mentioned in the complaint that the same miscreants had earlier robbed money and wristwatch from a medical store. Dr. Khalid Mehmood P W.12 came in the witness-box to state about the earlier incident.
3. P.W. 13 Muhammad Aslam, S:H.O., Police Station City, Toba Tek Singh, prepared the inquest report as well as injury statement. He secured blood-stained earth from the spot and two empties P.6 and P.7 of .30 bore pistol from the place of occurrence.P.W.15 Muhammad Hanif Inspector/S.H.O. Police Station Saddar, Toba Tek Singh, during the course of Nakabandi on 23rd February, 1994 arrested the present appellant Ziaullah along with Imtiaz Ali alias Teddi and Zahid co-accused. He took into possession motorcycle and .30 bore pistol along with 6 bullets from them. Some other incriminating articles were also taken into possession. A wrist watch was also recovered from the possession of Zahid which was taken by the miscreants from Dr. Khalid Mehmood P.W.12 when they robbed the medical store. A .30 bore pistol was also recovered from Zahid. One Ahsan accused was also arrested on 1st March, 1994 by P.W.15 Muhammad Hanif, Inspector/S.H.O. After usual investigation, the Challan was submitted against the appellant along with two other acquitted co- accused.
4. The prosecution examined fifteen witnesses to establish its case. In support of its stance, reliance was placed upon the ocular account identification parade/recovery of incriminating weapons and medical evidence. The appellant along with his co-accused were examined under section 342, Cr.P.C. They denied their participation and stated that they had been involved falsely by the police to show their Karguzari.
5. The learned Additional Sessions Judge, Toba Tek Singh, after thrashing the entire evidence through judgment dated 8th September, 1997 discarded the testimony of P.W.10, the complainant and P. W'.11 Zulfiqar Ali, qua Imtiaz Ali and Muhammad Ahsan co-accused, as there was no independent corroboration for the same. The identification of the co-accused during the course of identification parade was also rejected, as the same was not conducted according to the requirements of rules. The present appellant was however, convicted as according to the learned Additional Sessions Judge, the incriminating weapon recovered from him matched with the crime- empties taken into possession from the spot. He was accordingly convicted under Article 17(4) of the Ordinance as Hadd read with section 302(a), P.P.C. And sentenced to death with fine of Rs,20,000, in default of payment of fine to undergo six months' R.I. He was also ordered to pay a sum of Rs,20,000 to the legal heirs of the deceased, in default thereof, further undergo to six months' R.I.
6. The appellant being dissatisfied with the determination of the learned trial Court, filed Jail Criminal Appeal No,158/L of 1998. The learned Full Bench of the Federal Shariat Court through the impugned judgment, dated 3rd May, 1999 modified the sentence of the appellant from section 17(4) of the Ordinance read with section 302(a), P.P.C. To that of under section 302(b), P.P.C. As Tazir. The death sentence was accordingly confirmed and murder reference as already stated was answered in affirmative. The reasons advanced by the learned Full Bench of the Federal Shariat Court for this modification were in the following terms:-- "However, his conviction under section 17(4) read with section 302(a), P.P.C. Was uncalled for, because punishment of death as Hadd under section 17(4) of the Ordinance can be awarded to a person only when proof as required by law i.e, section 7 of the Ordinance is available. Section 7 of the Ordinance provides for the proof of theft liable to Hadd in the form namely:--
(a) the accused pleads guilty of the commission of theft liable to Hadd; and
(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of Tazkiya-Al-Shuhood, that they are truthful persons and abstain from major sins (Kabiar), give evidence as eye-witnesses of the occurrence; ' Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslim; ' Provided further that the statement of the victim of the theft or the person authorized by them shall be recorded before the statements of the eye-witnesses are recorded.
' Explanation. In this section. `Tazkiya-Al-Shuhood' means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness."
' In the present case accused made no confession. Trial Court nowhere adopted the procedure of Tazkiya Al-Shuhood. It has not been made clear as to which mode of enquiry was adopted by the Court to satisfy itself about the credibility of the witnesses. Likewise section 302(a), P. P. C . Providing punishment of death as Qisas for Qatl-e-Amd was not attracted to this case. Section 17 subsection
(2) of Qanun-e-Shahadat Order provides that for Hadd punishment proof should be the same as required by section 7 of the Ordinance."
7. Leave to appeal was granted by this Court on 14th April, 2003 to consider the following contentions:-- "(i) The F.I.R. Was recorded after preliminary investigation and the allegation with regard to Haraabah in M.S. Medical Stores was inserted therein by means of interpolation.
(ii) The eye-witnesses were not natural and probable witnesses and their statements were also fraught with improvements, discrepancies and contradictions.
(iii) Recovery of the crime pistol from the petitioner was doubtful as it was not made in presence of any independent witness.
(iv) The test identification parade was defective because the delay in holding the same had not been explained satisfactorily, the role attributed to the accused was not stated by the witnesses, therefore, their identification had no evidentiary value as held in Mehmood Ahmed v. The State 1995 SCM R 127 and separate A identification parades for each accused ought to have been held or omission explained in view of the observations made in Lal Pasand v. The State PLD 1981 SC 142.
(v) The petitioner was sentenced to death whereas his co-accused were acquitted on the same evidence."
8. We have considered the contentions raised by the learned counsel for the parties and have gone through the documents appended with this appeal with their assistance. The prosecution in this case examined fifteen witnesses in all to establish its case. The ocular account has been stated by P. W.10 Iqbal Hussain, the complainant and P. W.11 Zulfiqar Ali Dr. Khalid Mehmood P.W.12 who narrated the alleged robbery committed by the same assailants at a medical store prior to the present occurrence, was also examined to strengthen the prosecution version. However, his testimony does not help the present case in any respect as the alleged recovery of the cash and the wrist watch earlier robbed was given in vague terms in the present F.I.R. Out of which this appeal has emanated.
9. The argument of the learned counsel that the F.I.R. Was recorded after preliminary investigation as the allegation of Haraabah in the medical store was inserted by means of interpolation would not be of any consequence. It is true, as is clearly apparent from the complaint that the last line therein was inserted added subsequently to point out that the same assailants earlier committed the offence of robbery at the medical store. However, as has already been stated, this addition would not be of any consequence and cannot be termed as interpolation.
10. The cular account narrated by the P. Ws. Is full of contradictions. in the F.I.R., the complainant P.
W.10 had mentioned about six armed miscreants on two motorcycles who came at the shop. The challan in this case was however, submitted against three. P. W.10 Iqbal Hussain, in his statement before the learned trial Court had also mentioned about the arrival of six persons on two motorcycles while P. W.11 Zulfiqar Ali had stated otherwise and made mention of three miscreants.
Similarly, Dr. Khalid Mehmood P.W.12 of the earlier incident in his statement also stated about three persons. The learned trial Court discarded the testimony of P. W.10 and P. W.11 in respect of two co- accused who had been acquitted by giving them benefit of doubt. However, the present appellant was convicted and sentenced to death as according to the Forensic Science Laboratory report, the empties recovered from the spot tallied with the pistol taken into possession from him. However, the deeper appreciation of this would demonstrate that the prosecution attributed two pistol shots at the deceased. The first shot was attributed to the present appellant Ziaullah alias Jajj while the second one was attributed to the acquitted co-accused Imtiaz Ali alias Teddi which missed the target. The two empties were recovered from the spot and two pistols allegedly recovered from the appellant and his acquitted co-accused, one of .30 bore and the other of 7.65 mm bore were sent to the Laboratory. According to the report, the crime-empties recovered from the place of occurrence were fired from .30 bore pistol.The ocular version as already stated had attributed only one fire shot to the present appellant and the second to another. In this background, it D cannot be said that the ocular account tallied with the medical evidence and the recovery of the incriminating weapon.
11. So far as the identification parade is concerned, the learned Additional Sessions Judge, while acquitting the co-accused had categorically stated that the corroboration of their involvement was not forthcoming from the identification parade as the same suffered from infirmities. It is pointed out that the occurrence in this case took place on 6-1-1994 whereas the present appellant was arrested on 23-2-1994 and the identification parade was conducted belatedly on 1-3-1994.
There is no plausible explanation by the prosecution as to why the delay took E place. Further the identification parade was conducted jointly which cannot be countenanced. P.W.8 Ch. Abdul Sattar, M.I.C./Judicial Magistrate himself had admitted in his testimony that it was not within his knowledge that if the number of the accused was more than one then a separate identification parade for each and every accused should be conducted. He also admitted that he had not recorded the statement of any of the accused whether they were willing or had any objection about the conduct of their identification parade. Surprisingly, the learned Federal Shariat Court while convicting the appellant has made much use of this identification parade which is a very weak type of evidence. Particularly so when it has been conducted in this manner. Further more the conduct of Investigating Agency is not above board as Dr. Khalid Mehmood, P. W.12 of the earlier incident had stated that the police had taken him to the various police stations for the identification of the accused. The cumulative effect of the afore-stated infirmities committed during the conduct of the identification parade would bring us to an irresistible conclusion that it would be unsafe to rely upon the same. As already stated the learned trial Court acquitted two co- accused by brushing aside the testimony of the eye-witnesses P. W.10 and P. W.11 on the ground that there was no independent corroboration for the same. Even in the case of the present appellant, there is no independentcorroboration. The learned Full Bench of the Federal Shariat Court as already stated, has wrongly placed reliance on the identification parade and the recovery of incriminating weapons and its report to bolster the ocular account of P.W.10 Iqbal Hussain and P.W.11 Zulfiqar which otherwise was full of contradictions.
12. Resultantly, for what has been stated above, we are of the view that the prosecution has failed to make out a case against the appellant. Accordingly, the appeal is allowed, impugned judgment is set aside, the appellant is acquitted from the charges and he shall be released forthwith if not required in any other case. The above are the reasons for our short order passed on 4-12-2003.