Ch. Ejaz Yousaf.--This appeal with leave of the Court is directed against the judgment dated 25.9.2002 passed by a learned Division Bench of the Peshawar High Court, Peshawar, whereby appeal filed by the appellant against his conviction and sentences recorded by the Anti-Terrorism Court, Peshawar, Division, Peshawar, was dismissed.
2. Facts of the case, in brief, are that report was lodged by Hidayatullah Khan, ASI with PS Badaber wherein it was stated that on 26.3.2002 at 2130 hours a mobile police party headed by Bakhtiar Alam Khan, SHO, PS Badaber, was on petrol duty. Hidayatullah Khan, ASI was driving the Jeep, whereas the said SHO was sitting by his side on the front seat and the remaining police party was in the real". When they reached at the place of occurrence, a few persons armed with Kalashnikovs appeared from a dilapidated kotha and the bushes situated on the left side. One of them came forward to the roadside and opened fire at the moving jeep. Consequently Bakhtiar Alam Khan, SHO sustained injuries. Simultaneously, another person opened, fire, as a result whereof, three tyres of the jeep got punctured, however, the complainant and other police constables fortunately escaped unhurt. Thereafter the culprits fled. The injured SHO, was taken to Lady Reading Hospital, Peshawar, in a private car procured from village Mashogagar, where, he succumbed to the injuries.
It was claimed that in the headlights of the vehicle one of the assailants was identified by the witnesses. On the stated allegations formal FIR Bearing No, 246 was registered under Sections 148/302/324/427/353/149 PPC read with Section 7 of the Anti-Terrorism Act, 1997 and investigation was carried out in pursuance thereof. On the conclusion of investigation, the accused persons was challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not 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 fifteen witnesses in all, whereafter statements of the accused persons were recorded under Section 342 Cr.P.C. In their above statements all the accused persons denied the charge and, pleaded innocence. They failed to appear as their own witnesses in terms of Section 340(2) Cr.P.C, however, examined four, witnesses, namely, Shahid Mansoor, Muhammad Shoaib, Aurangzeb Khan & Dr. Izhar Shah, in their defence. On conclusion of the trial, the learned trial Court convicted the accused persons and sentenced them to the punishments as under:- Mah Gul convicted and sentenced to death under Section 302/149 PPC read with Section 7 of Anti-Terrorism Act, 1997.
Muhammad Yousaf alias Gudd and Muhammad Shoaib AfridiConvicted under Section 302/149 PPC read with Section 7 Anti-Terrorism Act, 1997 and sentenced to imprisonment for life. They were also sentenced to pay fine of Rs, 1,00,000/- (one lac) each, in default to suffer two years R.I. each.
All the three accused were also convicted and sentenced as under:-
(i) U/Section 148/149 PPC, two years R.I.,
(ii) U/S. 324/149 PPC read with Section 7 of AT Act, 1997, Five years R.I. on three counts with a fine of Rs, 10,000/-(ten thousand) each and in default to further undergo R.I. for one year each.
(iii)U/S. 353/149 PPC read with Section 7 of AT Act, 1997, One year R.I. each with a fine of Rs, 5;000/- each and in default to further suffer R.I. for three months each.
(iv)U/S. 427/149 PPC, Six months R.I. each with a fine of Rs, 1000/- each and in default to further suffer one year R.I. each.
(v)All the three accused were also directed to pay a sum of Rs, 5,00,000/- (five lac), each as compensation, to the legal heirs of the deceased under Section 544-A Cr.P.C. and in case of default in payment of compensation amount action under the law was to be taken against them.
All the sentences were ordered to run concurrently.
4. Appeals were preferred by all the three accused persons before the Peshawar High Court, Peshawar, which were disposed of vide the impugned judgment. It would be pertinent to mention here that convictions and sentences recorded against the accused persons, namely, Muhammad Yousaf and Muhammad Shoaib Afridi, under Section 302/149 PPC, read with Section 7 of Anti- Terrorism Act, 1997, and also under Section 324/149 PPC were set-aside by the High Court. However, the convictions and sentences inflicted on them under Section 148 PPC were maintained. It was further ordered that convictions and sentences inflicted on them under Sections 353/149 PPC read with Section 7 of the Anti-Terrorism Act shall also remain intact. Convictions and sentences recorded against them under all other charges were however, set-aside and they were also exonerated from the payment of compensation to the legal heirs of the deceased. Convictions and sentences recorded against Mah Gul, appellant, were, however maintained and it was ordered that he shall also pay a sum of Rs, 200,000/- (Rupees two lacs) to the legal heirs of the deceased as compensation, hence, this appeal.
5. Kh. Muhammad Khan, learned counsel for the appellant has contended; that neither the appellant was put to identification test, nor was he identified by any of the witnesses in Court, nor his description by appearance was given in the FIR, hence in the absence of requisite details, he could not have been convicted for the offence; that in absence of direct or substantial evidence the appellant could not have been convicted on the basis of confessional statement of the appellant as well as the evidence of recoveries which was fabricated by the prosecution for the purpose of the case in hand.
6. Mr. Muhammad Zaman Bhatti, learned counsel appearing on behalf of the State, while controverting the contentions raised by the learned counsel for the appellant submits that since guilt of the appellant was substantially and materially brought home by the prosecution through independent and reliable evidence and it was established on record that it was the appellant who had fired at the deceased, therefore, he was rightly convicted for the offence.
7. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case with their assistance, minutely.
8. Prosecution case rests on the ocular evidence account whereof at the trial was furnished by PW- 12 Hidayatullah, PW-13 Zia-ul-Haq, and PW-14 Iftikhar Ali, the confessional statement of the appellant, the evidence of recoveries i,e, the kalashnikov and empties, and the medical evidence.
9. In the instant case though the prosecution has examined three eye-witnesses, yet, only one of them i,e, Hidayatullah has claimed that he had seen and identified one of the accused persons in the headlights of the jeep. The culprit, according to him, was of light brown colour with long hair and mustaches and was about 30/35 years of age. He has though claimed that he had himself drafted the complaint i,e, Ex.P-A, on the basis whereof subsequently FIR was registered yet, the fact remains that the report did not contain the requisite details qua identification of the accused, nor his description by appearance was given therein in sufficient details, hence, the omission so made was fatal towards the prosecution case, particularly, when neither the accused persons after their arrest were put to identification test, nor any of the witnesses particularly the said witness, had picked out or identified the present appellant at the trial. What to speak of identifying the present appellant, not a single word was uttered by the said witness, .at the trial, to the effect that the appellant was the same person who was seen and identified by him at the time of occurrence.
There is, yet, another discrepancy in the prosecution evidence. All the afore-named eyewitnesses are unanimous on the point that the firing, as a result whereof the deceased sustained injuries, was made on the vehicle from the bushes situated on the left side of the road, and therefore, if the appellant was the same person who was identified in the headlights of the Jeep, then he was certainly not responsible for killing of the deceased. Admittedly the appellant, after his arrest, was not put to identification test. It was not claimed by any of the witnesses that the appellant was known to them previously. As per prosecution version they had only fleeting glimpses of the appellant, therefore, in the circumstances, non-holding of the identification test parade, in our view, was fatal towards the prosecution case. It may he mentioned here that though, legally, statement made in Court by a witness is the substantive evidence within the purview of Article 2(c) of the Qanun-e-Shahadat Order, 1984, and the identification made by a witness at the parade is only corroboratory in nature yet, where the accused was not previously known to the witness and he i,e, the witness had only fleeting glimpse, of the accused, holding of the test identification' parade becomes essential because usually statements of witnesses are recorded in Courts much after the occurrence and therefore, the possibility that a witness might not have mistakenly nominated or pointed out an accused cannot be ruled out. The evidence of identification of an accused person, at the A trial, for the first time, therefore, is considered by the Courts, to be inherently of a very weak character and it has been time and again pointed out that prosecution in order to carry conviction must establish that the accused was correctly and properly identified by the witness at the time of occurrence and the goal cannot be achieved unless evidence furnished by the prosecution, at the trial, is capable to provide answers to certain questions e.g. as to how long did the witnesses have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused etc. and needful cannot be done unless the suspect is put to identification test at the first opportunity because human beings have their own limitations and memory fades by the lapse of time. In the case of Danial Body (Muslim name Saifullah) and another (1992 SCM R 196), it was held by this Court that when accused was charged in F.I.R. and in statements under Section 161, Cr.P.C. by the description of their statures, their identification in a formal parade was a "must . Further, in the case of State through Advocate General Singh v. Farman Hussain and others (PLD 1995 SC 1) it was laid down that in a criminal case if a witness gets momentary glimpse of an accused and claims that he would be able to identify him then after his arrest identification test becomes essential which is to be conducted strictly according to the guidelines and legal requirements enunciated by law. The following reported judgments may also be usefully referred in this regard:-
(i) Muhammad Bashir Alam v. The State - (PLD 1948 SC (Pak.) 1)
(ii) Ibrahim Bhak's case (PLD 1955 FC 113)
(iii) Nadir Khan v. The State (PLD 1992 FSC 390)
It would be pertinent to mention here that identification parade is not only, the preferred and approved method of identification of suspects by Courts but is also requirement of the Police Rules as well. Rule 26.32 of the Police Rule, 1934 is explicit in this regard. Under sub-rule (1) thereof it has been provided that the rules shall be strictly observed in confronting arrested suspects with such witnesses, who claim to be able to identify them and under Rule 1(c) it has been made obligatory for the police officers to arrange for identification test of the suspects soon after their' arrest. Sub- rule (2) of the said Rules further provides that though, it is not the duty of the officer conducting them or of the independent witnesses to record statements or cross-examine either suspects or identifying witnesses yet, they should be requested to question the latter as to the circumstances in which they saw the suspect whom they claim to identify. As stated above, in the instant case, since the appellant was neither put to identification test nor was he identified in Court by any of the witnesses to be the culprit who had fired at the deceased therefore, ocular evidence was of no help to the prosecution.
10. After taking out from consideration the ocular evidence, we are left with the belated retracted confessional statement of the appellant and the evidence of recoveries only, which being purely of corroboratory in nature, in our view, are not capable to bring home charge against the appellant in the absence of direct evidence. In the case of Bahadur Khan v. The State (PLD 1995 SC 336), it was held by this Court that unless a retracted confession is corroborated by independent cogent and clear evidence it is not prudent to base conviction on its strength alone. It is well settled that unless substantive or direct evidence is available conviction cannot be based on any other type of evidence howsoever, convincing it may be. This view receives support from the following reported judgments:-
(i) Qalb-e-Abbas alias Nehola v. The State (1007 SCMR 290)
(ii) Muhammad Noor v. Member-I, Board of Revenue & others (1991 SCM R 463)
(iii)Ali Muhammad v. The State (2005 YLR 3357) (iv) Abdul Sattar v. The State (2008 M LD 619)
11. For the facts and reasons mentioned above, we are satisfied that the occurrence in the instant case has not taken place in the manner as suggested by the prosecution. Prosecution has miserably failed to produce confirmatory evidence in this regard. In this case there is a room for doubt, benefit whereof must go to the appellant. We, therefore, set-aside the conviction and sentence recorded against him. Appeal is allowed and in consequence the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.