' SHEIKH HAKIM ALI, J.--- On 10-9-2000, an F.I.R. No,131 of 2000 was got registered by one Naib Subedar Manzoor Ahmed son of Ghulam Nabi, resident of 12 Liaqat Barrak, Karachi, with Police Station Saddar, District South Karachi, with regard to an occurrence of murder having taken place inside Kapasi Clinic, Missfield Street, Jabbar Plaza Saddar, Karachi. The contents of the F.I.R., which were in English, are reproduced in verbatim as under:-- "I live on above mentioned address and I work as Naib Sobedar in Pakistan Army. On 9-9-2000 at 8-20 in the night I was present in my unit at that time Hawaldar Abdul came and informed me that any unknown accused have seriously inured Hawaldar Muhammad Akram in Saddar by making fire. I immediately reached Kapaci Clinic in Saddar. I saw Hawaldar Muhammad Akram there in serious injured condition and made enquiry. I came to know from Abdul Hameed and other peoples who were present there that a young person at about 8 O'clock in the night by standing at the gate of Kapaci Clinic situated at Jabbar Plaza Missfield Street Saddar due to some unknown reason have fired one bullet 'shell with pistol on the left side of left eye of Hawaldar Muhammad Akram with intention to kill who was sitting in Kapaci Clinic and the accused fled away on foot. 1 along with Abdul Hameed removed Muhammad Akram to P.N.S. Shafa in injured condition immediately in my vehicle where during operation and treatment he died at about12-45 in the night. I have brought the dead body to Jinnah Hospital for legal proceedings and post-mortem. My complaint is against unknown accused persons to murder Hawaldar Muhammad Akram due to some unknown reason by making firing with firearm during performing Government duty. Legal action may be taken. Heard the statement and is correct."
2. The police, which had commenced the investigation upon the above noted report, formed an opinion of guilt of three accused, namely Muhammad Yameen (the present appellant), Israr Ali and Nisar Ahmed, and submitted report under section 173, Cr.P.C. Before the Judge, Anti-Terrorism Court No,1, Karachi. Muhammad Yameen, the present appellant, was arrested on 22-11-2000, as he had allegedly surrendered himself before the police by his voluntarily appearance and admission of the commission of murder of Muhammad Akram deceased, while Nisar Ahmed, accused had remained absconder. The learned trial Court tried the appellant as well as Israr Ali accused, wherein the case, prosecution produced its evidence oral as well as documents before the learned Judge, Anti-Terrorism Court. Fourteen witnesses were examined by the prosecution. The witnesses produced by the prosecution and gist of their evidence is given below:- "(1) Manzoor Ahmed as P.W.1 Exh.9 dated 1-2-2001. He produced the inquest report and memo. Of dead body of the deceased named above and his own 154, Cr.P.C. Statement as Exh.9-A to 9-C respectively.
(2) Dr. Jabir Kapasi as P.W.2 Exh.10, dated 1-2-2001. He produced memo. Of inspection of place of Wardat and recovery of the incriminating material such as the empty bullet and bloodstainedearth etc. As Exh.10-A.
(3) William Masih as P.W.3 Exh.11 dated 10-2-2001. He produced nothing.
(4) Abdul Hameed as P.W.4 Exh.12, dated 10-2-2001. He produced nothing.
(5) A.S.I.P. Safdar Zaman as P.W.5 Exh.13 dated 14-2-2001. He produced the F.I.R. Of the case mentioned above as Exh.13-A.
(6) S.I.P. Muhammad Akram as P.W.6, Exh.14, dated 14-2-2001. He produced the receipt of the dead body as Exh.14-A.
(7) Dr. Dilip Khatri the M.L.O. Jinnah Hospital as P.W.7 Exh.15 dated 19-2-2001. He produced the post- mortem examination report, medical certificate of cause of death of the deceased named above and police request for observing the required formalities in respect of the said body as Exh.15-A to 15-C respectively.
(8) Dr. Zofishan as P.W.8 Exh.16 dated 19-2-2001. She produced the medical record of the P.N.S. Shifa Hospital as to treatment and death of the said deceased as Exhs.16-A and 16-B respectively.
(9) P.C. Muhammad Iqbal as P.W.9 Exh.17 dated 19-2-2001. He produced the memo. Of arrest and personal search of the accused Muhammad Yameen as Exh.17-A.
(10) P. C . Mujahid Iqbal as P .W.10 Exh. 18 dated 19-2-2001. He produced the memo. Of arrest and personal search of the accused Israr as Exh.18-A.
(11) Mr. Javed Meer, the Judicial Magistrate, 8, South, Karachi as P.W.11 Exh.19 dated 21-2-2001. He produced the police request and memos. Of the identification test held on his part in respect of the accused persons through the said four witnesses of the prosecution and their 164, Cr.P.C.
Statements etc. As Exhs.19-A to 19-G, respectively.
(12) Mr. Rahmatullah Moro, the Judicial Magistrate, 10, South, Karachi as P.W.12 Exh.20 dated 21-2- 2001. He produced confessional statements of the said accused persons and other relevant record thereof as Exhs.20-A to 20-F respectively.
(13) Tahir Khalique as P.W.13 Exh.21 dated 24-2-2001. He produced nothing.
(14) Inspector Syed Najmul Hassan, The Investigating Officer of the case as P.W.14 Exh.24 dated 13- 3-2001. He produced the F.S.L. Report regarding the said empty bullet, Chemical Examiner report as to the said blood-stained earth and memos. Of pointation of the accused persons of the place of Wardat etc. As Exhs.24-A to 24-D, respectively."
3. After closure of the evidence of the prosecution, statements of the accused under section 342, Cr.P.C. Was recorded by the learned Judge Anti-Terrorism Court No,1, Karachi. After appreciation of the evidence brought on the record, the learned Judge acquitted all the accused, as it was found by the learned Judge that the prosecution had failed to prove its case beyond reasonable doubt.
This judgment announced on 14-4-2001 by the Anti-Terrorism Court No,1 Karachi was challenged before the learned High Court of Sindh at Karachi, wherefrom acquittal of Muhamniad Yameen was reversed through short order, dated 20-2-2006, while the detailed judgment was delivered on 11-3- 2006 by learned Division Bench of the High Court of Sindh at Karachi. Hence, this criminal appeal by Muhammad Yameen alias Raja, appellant.
4. According to the above noted impugned judgment Muhammad Yameen was convicted under section 302(b), P.P.C. Read with section 7(ii) of the Anti-Terrorism Act, 1997 and was awarded life imprisonment. He was also ordered to pay Rs,1,00,000 as compensation to the legal heirs of the deceased in accordance with provision of section 544-A of the Cr.P.C. Or in default, to suffer R.I. For a period of six months more. The acquittal of the other two accused was, however, maintained.
5. Appellant's learned counsel submits that the prosecution had cooked up a case against the appellant on the basis of following three heads:--
(i) Judicial confession;
(ii) Ocular testimony; and
(iii) Identification test.
' As per learned counsel, the learned High Court has disbelieved the alleged judicial confession, to be a legal confession and declared it to be an incredible piece of evidence. Learned counsel states that the trial Court has also discarded the judicial confession, having been allegedly made voluntarily before Rehmatullah Moro, Magistrate (P.W.12). Therefore, this piece of evidence having been concurrently found implausible by both the learned Courts below, cannot be used against the appellant at this stage, as the State has failed to challenge these findings also in this Court.
6. The second segment of evidence which was brought on record by the prosecution was the ocular testimony in the shape of statements of Dr. Jabbar Kapasi (P.W.2), William Masih, Dispenser (P.W.3), Hawaldar Abdul Hameed (P.W.4) and Tahir Khalique (P. W.13). Learned counsel submits that this part of evidence of these four witnesses was also not reliable to convict the appellant, because the statements of all these witnesses were full of discrepancies and was not of such a nature so as to convict the appellant for the life imprisonment. Learned counsel argues that according to statement of Dr. Jabir Kapasi (P.W.2) he had only heard a voice inside the Clinic where someone had demanded the key of vehicle, and that he was not an eye-witness of the actual occurrence.
Learned counsel submits that it could not be established by the prosecution that the appellant was the person who had fired upon the deceased. As regards statement of P.W.3, William Masih, he had also not seen the commission of occurrence while P.W.4 Hawaldar Abdul Hameed, although he had stated in his deposition that a boy had come to the Clinic and had fired a shot at the deceased through his pistol, the name, features of that accused was never mentioned in the F.I.R. Nor in the statements, recorded under section 161, Cr.P.C. The demand of key of motorcycle by the culprit from Akram deceased before the actual firing were not mentioned. The fourth alleged eye-witness was Tahir Khalique (P.W.13). His evidence was also incredible because in the statement recorded under section 161, Cr.P.C., he had not, given any feature of the accused who had allegedly fired at the deceased in his presence. Therefore, his evidence is also not reliable. Learned counsel has referred to State v. Farman Hussain PLD 1995 SC 1 to support his contention that when features/details of the culprit is not given in the F.I.R. Or in the statement recorded under section 161, Cr.P.C. His statement is not to be believed.
7. Learned counsel has also challenged the validity of the identification parade by stating that the prosecution witnesses had an opportunity to see the appellant before the identification parade was conducted, as it was admitted by P.W.3 William Masih that the accused was produced in handcuffs. Therefore, the identification parade which had other many infirmities was also not a piece of evidence on which a prudent man could not act upon to award sentence to an accused person.
8. The learned A.A.-G. Appearing: for the State has supported the judgment of the learned High Court of Sindh by stating that P.Ws.2 to 4 and 13 had fully supported the case of the prosecution.
They had picked up the appellant during the identification parade, conducted by the learned Magistrate. Therefore, the appeal filed by the appellant may be dismissed.
9. After hearing the arguments and examining the record of the case, we have found that in the F.I.R., the basic document which is the first foremost document of vital importance, and the case of the prosecution commences upon that document, there is no mention of the description and features of the culprit. It is important to note that the presence of the alleged eye-witnesses P.Ws.2, 3 and 13 was also not entered in the aforementioned F.I.R. Even the details of the occurrence with regard to the demand of the key of motor bike was lacking in the F.I.R. There is another important aspect of the case which has created an impression of doubt regarding the implication of appellant into the occurrence. The alleged eye-witnesses had failed to mention the prominent characteristic of the culprit in their statements even recorded under section 161 of the Cr.P.C. There is no explanation as to why the particulars were not provided in the aforementioned statement although these were four alleged eye-witnesses of the occurrence. It has also transpired from the record that statements under section 161, Cr.P.C. Of these witnesses were recorded after more than one month and 21 days. According to the police record, statements of these witnesses were recorded on 30-10-2000 while deposing on oath P.W. Abdul Hameed had given the date of recording of his statement as 30-11-2000. Thus, creating doubts in their statements with regard to their presence, at the time of alleged occurrence, recording of their statement and identification parade which was not held on 25-11-2000 in a transparent manner. In State/Government of Sindh v. Sobharo 1993 SCM R 585, it was held that ocular account of the eye-witnesses who had not given description or the features of the accused, they had seen at the time of occurrence, were to be disbelieved thereafter, at the stage of identification test. In PLD 1995 SC 1 (supra) identification test was not given any weight when the impression of the accused given by the P.Ws. Was that one accused was in pant and shirt and two others were in Shalwar Kamiz. This description was not considered helpful at the time of identification test. In the instant case, the mere mentioning of a young boy in the F.I.R., therefore, cannot be considered sufficient for the correct detection of an accused at the identification parade. This sole aspect of the case is enough to destroy the veracity of the prosecution case. However, we have considered the other piece of evidence relied upon by the prosecution i,e, identification parade. This piece of evidence, as has been held in many cases, is the weakest type of evidence. In the instant case, identification parade has lost its worth when William Masih (P.W.3), Tahir Khalique (P.W.13) had admitted that the appellant was produced before the learned Magistrate in handcuffs and in the custody of the police. Therefore, the statements of these two witnesses is more than enough to pronounce acquittal of the appellant in the case. Moreover, this identification test was conducted after a lapse of 76 days and at the time of identification test, the P.Ws. Had not described the role of each accused, which was played by them at the time of the alleged occurrence. Memo. Of identification test has also not shown the details, names and addresses of the dummies. There are many other legal infirmities due to which the identification test has lost its verity.
10. Therefore, we are inclined to acquit the appellant from the present case Imposition of payment of an amount of Rs,1,00,000 as compensation to the legal heirs of the deceased and in default thereof to undergo further sentence of six months' S.I. Is also remitted. We, therefore, allow this appeal, set aside the impugned judgment of the learned High Court and acquit the appellant from all the charges levelled against him. Accordingly, he shall be released forthwith if not required in any other case.