' MUHAMMAD FARRUKH MAHMUD, J.---,This appeal is directed against judgment dated 24-10-2002 handed down by a learned Division Bench of Lahore High Court, Multan Bench whereby, the appeal filed by the appellants, was dismissed and the conviction and sentences recorded by the learned trial Court vide its judgment dated 15-6-2002 were upheld. The details of the convictions and sentences are as follows:-- "Ghulam Shabbir: Under section 302(b)134, P.P.C., death on two counts with further direction to pay an amount of Rs,1,00,000, as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In case of default thereof he shall further undergo RI for six months on two counts. Under section 7(a) of the Anti-Terrorism Act, 1997, death with fine of Rs,1,00,000 and in case of default to undergo further five years RI.
' Zahid Hussain:---Under section 302(b)/34, P.P.C. Death on two counts with further direction to pay an amount of Rs, 1,00,000, as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In case of default thereof he shall further undergo RI for six months on two counts. Under section 7(a) of the Anti-Terrorism Act, 1997 death, with fine of Rs, 1,00,000 and in case of default to undergo further five years RI."
2. Aftab Ullah Khan.S.H.O. Police StationNew Multan along with other police Officials reached the place of occurrence and recorded statement of Syed Asghar Ali (P.W.3) at 8-15 p.m. On 22-10-1998, which provided basis for registration of case F.I.R. No, 754 of 1998 at Police Station, New Multan.
' The relevant facts are that Kazim Hussain deceased was running an electronic shop on Piran Gaib Road, near Ali Baqrabad, on the fateful evening complainant, Deedar Ali and Zeagam Abbas went to the shop of Kazim Hussain to meet Wm. At about 7-30 p.m. Mohar Ghulam Hussain tenant of Kazim Hussain went to the shop of Kazim Hussain. Both of them were chatting outside the shop while sitting on chairs, when two persons who were on a Honda CD 70 Motorcycle reached there.
One of them was identified as Ghulam Shabbir alias Dr. Nasir alias Hakeem appellant while the other who was driving the motorcycle was described by features as he was not previously known to the P.Ws. The unidentified accused remained sitting on the motorcycle, white Ghulam Shabbir alighted from the motorcycle and started tiring with Kalashnikov at Kaiim Hussain. Due to firing Kazim Hussain and Ghulam Hussain were seriously wounded. The complainant and other P.Ws. Ran to catch hold of the accused. Two other young persons who were riding on another motorcycle signaled the appellants/accused and thereafter all of them fled away towards the western side on their motorcycles. Ghulam Hussain died on the spot while Kazim Hussain was immediately taken to Nishtar Hospital. Where he succumbed to the injuries. The motive behind the occurrence was that the deceased belonged to Jafria Sect.
3. The appellants and one Usman Haideri who was acquitted, faced trial. During trial the prosecution produced 16 witnesses in support of its case. Leagam Abbas (P.W.1) Asghar Ali, complainant (P.W.3) .And Deedar Ali (P.W.4) were examined as eye-witnesses. Out of the. Three Zeagam Abbas did not support the prosecution case by Mating that he had not witnessed the occurrence; the remaining two witnesses supported the prosecution version as given in the F.I.R. Dr. Nasir haved (P.W.7) stated, that he conducted postmortem examination on the dead body of Kazim Hussain on 22.10-1998 at 11-40 p.m. According to his opinion the deceased lost his life within half an hour' after receipt of fire-arm injuries and postmortem was conducted within six hours of the death. He further stated that on 23-10-1998 at about 12.30 a.m. He conducted postmortem examination on the dead body of Ghulam Hussain, In his opinion the deceased lost his life Immediately after the receipt of firearm injuries and postmortem was conducted within six hours of death. Rana Saleem'Ahmed Magistrate (P.W.10) stated that on 23=12=2000 1w conducted the identification test qua Zahid Hussain accused who was correctly identified by Asghar Ali (P,W,3) but could not be identified by Deedar Ali (P.W.4). Ghulam Mustafa (P.W.11) stated that he arrested Zahid Hussain on 8-12-2000 and that on the next date he was sent to judicial lock up for the purposes of identification. Muhammad Abdullah (P.W.14) S.H.O. Stated that on 31-5-1999 complainant, Asghar Ali, Deedar Ali and Zeagam Abbas appeared before him. Asghar Ali complainant handed over two photographs of Zahid Hussain accused which were taken into possession vide memo Exit. PH Aftab Ullah Inspector who had recorded the statement of complainant after the occurrence and had investigated the case could not be produced before the learned trial Court, instead Irshad-ul- Hassan S.l. (P.W.6) was produced who brought on record the memos and statements prepared by Aftab Ullah Khan. He also identified the hand writing and signatures of Aftab Ullah Khan on the documents brought on record. The rest of the witnesses are formal in nature.
' After placing on record the reports of chemical examiner Exh.PT, Forensic Science Laboratory Exh.PU and Exh.PU/1 and. Bacteriologist Exh.PV the prosecution closed its case.
' In their statements recorded under section 342, Cr.P.C. The appellants pleaded innocence.
However, the appellants did not appear as a witness in their defence under section 340(2), Cr.P.C.
Only Ghulam Shabbir examined Muhammad Ameen (D.W.1) and Muhammad Ibrahim. (D.W.2)
Office Superintendent, Nishtar Hospital in his defence.. Muhammad Ameen S.I stated that according to record, Roznamcha pertaining to 22-10-1998 was closed, on 23-1Q-1998 at 7-30 a.m.
He placed on record Exh.PC/1 which is correct Carbon copy of F.I.R. No,753 registered at Police Station New Multan on 22-10-1998 for offences under sections 353, 186, 216-A and 34, P.P.C. D.W.2 placed on record Exh.DE which is correct carbon copy of medico legal report relating to Kazim Hussain Shah.
4. The learned counsel for the appellants has argued that both the witnesses were chance witnesses who were not residents of the locality where the occurrence took place, and that the P.Ws. Were related to the deceased. According to learned counsel the P.Ws. Were imported after the occurrence and that the statements of the eye-witnesses were not supported and corroborated by any independent evidence, and that out of the three eye-witnesses Zeagam Abbas (P.W.1) did not support the prosecution case. The learned counsel further argued that Ghulam Shabir was named in the F.I.R. Only on the basis of suspicion while Zahid Hussain was implicated in the case at the instance of police. The learned counsel lastly argued that on the same evidence third accused i,e, Usman Haideri was acquitted, therefore the appellants also deserved acquittal. Conversely it has been argued that the witnesses had explained their presence at the time of occurrence, and that they had no previous enmity with any of the appellants, and that the statements of eye-witnesses were fully corroborated by the medical evidence 'and circumstances of the case. The learned counsel has added that Zahid Hussain was duly identified by both the P.Ws. i,e,, P.W.3 and P.W.4 during trial, and that he was also correctly identified by Asghar Ali during identification test. The learned counsel supported the impugned judgment.
5. We have heard the learned counsel for the parties and have perused the record of the case with their able assistance. The occurrence took place at 7-30 p.m. While the statement of P.W.3 was recorded at 8-15 p.m. Within 45 minutes of the occurrence. The names of the witnesses and details of the occurrence have been given in the above noted statement. The name of Ghulam Shabbir appellant has been given in the statement while the second accused was described by his features and his age. The above noted facts ruled out the possibility of fabrication and negate the argument that the complainant and other witnesses were imported after the occurrence. P.W.3 and P.W.4 gave trust worthy and consistent statements before the learned trial Court. They were subjected to very lengthy cross examination, which they Stood successfully. Both of them have corroborated each other on all the material points. The backing out of Zeagam Abbas (P.W.1) would not affect the intrinsic - value of the statements of P.W.3 and P.W.4. It appears that Zaigham Abbas who was a student could not find the courage to testify against the accused who were involved in many cases. The identification of Ghulam Shabbir appellant is not in dispute at all. He has been described by name and by his deeds in the promptly lodged F.I.R.
' The statements of P.W.3 and P.W.4 are fully supported by the medical evidence and corroborated by the facts that:--
(i) The matter was reported to the police within 45 minutes,
(ii) And the postmortem of both the deceased were conducted on the same night within six hours of their deaths.
' The motive, as given in the F.I.R., also stands proved and corroborates the ocular account. The ocular account also finds support from the report of Forensic Science Laboratory which reveals that the empties recovered from the spot were fired from one weapon of 7.62 MM bore (Klashanikov). The statements of D.Ws. Do not help Ghulam Shabbir appellant.
6. In the above noted circumstance we are of the opinion that the prosecution has successfully proved its case beyond doubt against Ghulam Shabbir appellant. This appeal is dismissed to his extent.
7. The case of Zahid Hussain appellant stands on a different footing. According to F.I.R. Lie was an accused who was driving the motorcycle and remained sitting on it. Neither he was carrying any arms nor did he use it. He was nOt previously known to the P.Ws. And was described by features. He was arrested in this case on 18-12-2000 after two years of the occurrence. He was already under arrest in some other case at that time and was sent to judicial lock up for identification test on the next date i,e, 19-12-2000. The witnesses had seen the accused for a very short time and it was not likely that they would identify the accused after such a long time. Rana Saleem Ahmed (P.W.10) who had conducted identification test stated that Deedar Ali could not identify 7ahid Hussain.
During cross examination he admitted it to be correct that Zahid Hussain had a conspicuous mark of identification on his forehead, however he did not notice it at the time of identification test. We may cite here the case of Allah Dad v. The State (PLD 1965 (W.P) Lahore 288) wherein the identification was not relied upon when the Magistrate did not take precaution to hide the scar marks on the faces of the accused. It is also note worthy that after failing to identify Zahid Hussain during identification test, Deedar Ali identified him at the time of recording of his statement. This identification is meaning-less as by that time Zahid Hussain was already known to the P.Ws. As only Zahid Hussain had a conspicuous mark on his forehead and could easily be distinguished from the other accused. It was observed by this Court in the case of Asghar Ali alias Sabah and others v. The State and others (1992 SCM R 2088) as follows:-- "The identification in Court of a person produced a an accused months after the event could not satisfy the requirements of law for proving the identify of the culprit."
' The identification of Zahid Hussain by Asghar Ali complainant is also not free from doubt for the aforementioned reasons. In addition to that it was admitted by Deedar Ali (P.W.4) that on 31-5-1999 Asghar All compl. Hunt produced two photographs of 'Zahid Hussain to the I.O. P.W. 14 also stated that on 31-5-1999 he was in-charge of Police Station New ultan and on that day Asgbar All complainant handed over to him two plMtographs of Zahid Hussain within the presence of Deedar Ali and Zeagam (P.W.4), much before his arrest in this case. This fact knocks out the validity, of Identification test. It is settled law that no one can be convicted and sentenced until and unless his identity as participating accused is established beyond doubt.
' In our opinion the prosecution could not prove the identification of Zahild Hussain as accused in the case. HenCe this appeal to the, extent of Zahi Hussain is allowed, the:judginents'passe4 by the learned Courts below o his extent, are set aside, Zahid Hussain is acquitted of all the charges and would be released forthwith if not required in any other case.
8. This appeal is partly allowed.