' MUHAMMAD FARRUKH MAHMUD, J.--- Mursal Kazmi alias Qamar Shah through Criminal Shariat Appeal No,12 of 2007 and "Ghulam Ismail alias Mana through Criminal Shariat Appeal No,13 of 2007, both by leave of this Court, have assailed the judgment dated 27-7-2007, in case F.I.R. No,14, registered at Police Station Waris Khan, District Rawalpindi on 5-1-1997 at 12-30 a.m. (during night) for Offences under Sections 302/34, 392, P.P.C. Read with section 17 of the Offences Against Property (Enforcement Hudood) Ordinance, 1979, handed down by learned Federal Shariat Court whereby the appeals of Mursal Kazmi and Ghulam Ismail were dismissed and their convictions recorded by the learned trial Court for Offence under section 302/34, P.P.C. As Tazir and sentences to death were confirmed. The order of compensation under section 544/A, Cr.P.C. Of the learned trial Court was also maintained. Both the appellants were also convicted for Offence under section 17(4) of Harabah Ordinance and were sentenced to death by the learned trial Court which was also confirmed by the learned Federal Shariat Court through the, impugned judgment.
2. Muhammad Khalil, S.H.O. (P.W.13) recorded the statement of complainant, Waqas Mahboob (P.W.2) at General Hospital Rawalpindi, on 5-1-1997 at 12-15 a.m. (during night). On the basis of his statement Exh.P.B. Above noted F.I.R. Was recorded. According to prosecution case, on the fateful day, Waqas Mahboob (P.W.2) met his friend Sheikh Rizwan deceased at his shop situated in F-6/1, Blue Area Islamabad. The complainant, Sheikh Rizwan- deceased and Tehseen proceeded towards Rawalpindi in car Registered No,RIP/8465 which belonged to Sheikh Rizwan. At Dharnal Chowk Tehseen alighted from the car. Sheikh Rizwan wanted to drop the complainant at his house, at about 11-15 p.m. When complainant and the deceased reached opposite Asad Hospital situated at Dhoke Khaba, they stopped the car as complainant wanted some medicine for his throat. The complainant alighted from the car and went to the Ahmad Medical Store purchased medicine, and thereafter turned towards the car, he heard the noise of firing, he saw that Sheikh Rizwan while holding his throat by his hand was calling him. He also saw that two young persons who were wearing pants and jackets of black colour were taking away the car of Sheikh Rizwan. The complainant took Sheikh. Rizwan to Asad Hospital where doctor was not available so he took Sheikh Rizwan in a Taxi car to General Hospital Rawalpindi. However Rizwan lost his life before reaching the hospital.
3. Both the appellants were sent up to face trial, as the appellants claimed to be innocent, the trial commenced. During trial, prosecution produced 16 witnesses in support of its case. Waqas Mahboob P.W.2, first informant, Zahoor Ahmad P.W.3 furnished the ocular account. Dr. Muhammad Ashraf P.W.6 stated that he examined the dead body of Rizwan on .5-1-1997 at 1-30 p.m. He found three fire-arm wounds of entry on the front of chest, just near to left nipple, left upper front of chest and at the base of front of neck. He also observed exit wound on the lateral aspect of right side of neck. In his opinion the cause of death was fire-arm injuries. Zafar Iqbal P.W.8 stated that he arrested Ghulam Ismail appellant on 17-8-2001 and recovered a pistol with five live bullets from his possession. He further stated that on 30-8-2001 Ghulam Ismail while in custody led the police to the place of occurrence. Farooq Alvi P.W.11 Magistrate stated that on 21-8-2001 Ghulam Ismail was correctly identified by Zahoor Ahmad P.W.3 during identification test held at Adiala Jail.
Muhammad Khalil P.W.13, Inspector stated about recording the statement of Waqas Mehboob at General Hospital and initial investigation of the case. He also stated about the finding of stolen car which had met with an accident and was abandoned in a street in Scheme No,1 Saidpur Asghar Mall. Khalid Yameen P.W.14, Magistrate stated about identification of appellant Mursal Kazmi on 14- 2-2000 by Zahoor Ahmad P.W.3 during identification test held at Adyala Jail, Sheikh Abdul Khaliq S.H.O. P.W.15, stated about the investigation of the case and also stated that on 15-9-2000 he recorded the statement of P.W.3 under section 161, Cr.P.C.. He also stated about the arrest of Mursal Kazmi on 2-11-2000 from Police Station Sadiqabad in this case. He further stated that on 31-12-2000 Mursal Kazmi led to the recovery of 30 bore pistol in the presence of witnesses. Sheikh Abdul Ghafoor P.W.16 also stated about the investigation of the case and arrest of Ghulam Ismail on 17-8- 2001. He further stated about the recovery of pistol and five live bullets from the possession of Ghulam Ismail. He further stated that the Ghulam Ismail showed the police the place of occurrence. The rest of the witnesses are formal in nature and need not be dismissed.
4. After the closure of the prosecution case statements of the appellants were recorded under section 342, Cr.P.C. Both the appellants claimed to be innocent, however, neither they appeared in their defence under section 340(2), Cr.P.C. Nor they produced any evidence in their defence.
5. The learned counsel for the appellants have argued that P.W.3 was rightly disbelieved by the learned Court below and that P.W.2 was not in a position to identify the assailants who were not known to him previously and that the P.W. Had only a fleeting glimpse of the accused and it was impossible for him to identify the culprits after a lapse of three to four years. They further argued that P.W.2 never joined any identification test and that identification in Court would not be reliable.
Reliance was placed on State/Government of Sindh through Advocate-General, v. Sobharo 1993 SCM R 585, reliance was also placed on Asghar Ali alias Sabah and others v. The State and others 1992 SCM R 2088 wherein it was observed that identification of accused in Court was not sufficient especially when it was made after months of the occurrence. Reliance was also placed on the case of State through Advocate-General, Sindh v. Farman Hussain and others PLD 1995 SC 1 and Sabir Ali Waseem and 3 others v. The State 2007 YLR 2142 wherein it was observed that a witness who had only a glimpse of the culprits, then identification test before a Magistrate was essential. The learned counsel further argued that the recoveries were fake and in any case could not be used against the appellants. The learned counsel has summed up their arguments by stating that the prosecution case was not free from doubts and the appellants deserved acquittal.
6. Conversely, it was argued by Mr. Zulfiqar Abbas Naqvi, Advocate Supreme Court that the R.W.2 was an independent and truthful witness who had no previous enmity with the accused so as to falsely depose against them and that he correctly identified both the appellants in the Court and that the statement of P.W.2 was fully corroborated by the medical evidence and recoveries and that both the learned Courts below correctly convicted the appellants. The learned counsel appearing on behalf of State has adopted his line of arguments.
7. We have heard the learned counsel for the parties at length and have scanned the record of the case. The star witness of this case is Waqas Mahboob P.W.2 whose presence with the deceased at the time of occurrence and till his death is established. As is evident from the fact that the occurrence took place at about 11-15 p.m. , soon after Sheikh Rizwan deceased while he was injured was firstly taken to Asad Hospital and then to General Hospital Rawalpindi in a cab. Unfortunately Sheikh Rizwan lost his life before reaching the hospital. Muhammad Khalil P.W.13 S.H.O. After receipt of information reached the General Hospital and recorded the statement of P.W.2 at 12-15 a.m.
Within one hour of the occurrence. Having come to this conclusion that P.W.2 had seen the occurrence the only question would be whether he could identify the assailants, and his identification of the accused before the trial Court could be relied upon.
8. Most important piece of evidence, on this regard, would be statement of Waqas Mahboob Exh.P.B. Which was recorded soon after the occurrence. Perusal of the statement reveals that by the time Waqas Mahboob saw the accused, Razwan-deceased had already received fire shots.
According to this P.W. He saw two young men, who were wearing black trousers and Jackets, were decamping in the car of Rizwan. Except for stating that the accused were two young men, no other description like their complexion, height or physiques was given. The first and foremost concern of this P.W. Was to save the life of his friend and it was not accepted of him to concentrate on the features of accused. It is true that the substantive evidence of a witness is his statement in the Court but the purpose of identification test is to test that evidence and the safe rule is that the sworn testimony of witness in Court as to the identity of the accused who were stranger to the witnesses, generally speaking, required corroboration which should be in the form of an earlier identification proceedings. In the instant case P.W.2 was not put to any identification test, before his statement before the learned trial Court. On this point we may refer to the judgment of the Indian Supreme Court in case of Chellappan v. State of Kerala AIR 1979 SC 1767, wherein it was observed as follows:-- "As the names were not at all indicated in the F.I.R. The evidence of this witness cannot be accepted. Similarly, as A.5 and A.7 were persons who were not known to the witness from before and were identified in Court for the first time by face, the evidence of this witness in the absence of T.I. Parade was valueless."
9. A similar view was expressed by this Court in the case of Muhammad Azam v. State 1997 SC MR 1489 as follows:--- "No identification parade was carried out which was very much necessary in view of the victim's initial report lodged with the police. As such the identity of the accused connecting them with commission of the offence is missing."
' We may also refer to the case of Farman Ali v. State 1997 SCM R 971 wherein it was observed that:-- - ' "Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding B of such test is a check against false implication and it is a good piece of evidence against the genuine culprits."
' The occurrence took place on the night in between 4/5 January, 1997 Mursal Kazmi appellant was arrested on 2-11-2000 after about three years and eleven months of the occurrence while Ghulam Ismail was arrested on 17-8-2001 after about four years and eight months of the occurrence. It is common knowledge that the memory of a witness fades away with the passage of time and it is necessary that the suspect should be identified at the earliest possible opportunity after the occurrence. As noted above P.W.2 did not give any description of the accused in his first statement about any identification marks viz., structure of accused or whether they were fat or thin or of a fair colour or of a black colour. In the absence of any such description it is impossible for us to convict any accused on the basis of single identification in which case the reasonable possibility of mistake in identification could not be excluded. It is also noteworthy that P.W.2 did not state in Exh.P.B. That he could identify the accused. On the contrary this P. W, whose statement was recorded after about 5 and 1/2 years of the occurrence, in his examination in-chief before learned trial Court, named the accused and also specified their roles that Mursal Kazmi fired one shot while Ghulam Ismail fired two shots at the deceased. This part of the statement is nothing but dishonest improvement on the part of this P.W. As according to Exh.P.B. He had seen the accused when they had already fired and were taking away the car of the deceased. It was held by this Court in the case of Asghar Ali alias Sabah and others v. The State and others 1992 SCM R 2088 as under:--- "The 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 culprits."
' In the above noted circumstances we are of the firm opinion that no reliance can be placed on the statement of P.W.2 relating to identification of the appellants.
' As far as P.W.3 is concerned he was rightly not relied upon by the learned appellate Court. He was a chance witness whose name was not mentioned in the F.I.R., and who according to his own version left for his house after the occurrence and accidentally met the Investigation Officer at Ada Committee Chowk on 15-9-2000 i,e, after more than three years and nine months of the occurrence and reported the incident to him. It is a clear case of worst padding on the part of P.W.15.
' As far as medical evidence is concerned, it only supports the prosecution case to the extent that the deceased lost his life due to firearm injury but it does not lead to the culprits.
' The evidence of pointing out the place of occurrence and the place where the car was abandoned by the appellants, is also of no value as the places were already known to the Investigating Officer.
' The alleged recovery of weapons from the appellants is also of no consequence as no empties were recovered from the place of occurrence.
' It is well-settled that one tainted piece of evidence could not corroborate another piece of tainted evidence because if this is allowed to be done then very necessity of corroboration would be frustrated.
10. In the above noted circumstances, we have concluded that the prosecution case is not free from doubt. Hence both the appeals are allowed. These were the reasons for our short order dated 16-4-2009 whereby the appeals were allowed and the judgments passed by the learned Courts below were set aside.
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