M.A. SHAHID SIDDIQUI, J. ~ The appellants Javed and Nadeem were tried along with four others, namely, Gulzar Hussain, Muhammad Usman, Pervaiz Masih and Khalid Masih (since acquitted) by the learned Judge Special Court, Anti-Terrorism, Lahore-Ill, Lahore Division; Lahore for offences under Sections 395, 302, PPC and Section 7(ii), Anti-Terrorism Act, 1997 in case F.I.R. No, 343/2000, dated 30.8.2000 Police Station Shadbagh, Lahore. At the end of the trial the appellants were convicted under Sections 392/34, 302/34, PPC and Section 7(ii) of the Anti-Terrorism Act, 1997 while the rest of the accused were acquitted of all. the charges vide judgment dated 21.7.2003. The appellants were awarded death sentence under Section 302(b) read with Section 34, PPC as well as under Section 7(ii) of the Anti-Terrorism Act, 1997. They were also directed to pay Rs, 2,00,000/- each as compensation to the legal heirs of Muhammad Afzal deceased and in default of payment thereof to undergo simple imprisonment each for six months. Appellant Javed was also sentenced to rigorous imprisonment for ten years with fine of Rs, 50,000/- or in default thereof to undergo simple imprisonment for six months under Section 392, PPC.
2. The appellants challenged their conviction and sentences before the Lahore High Court, Lahore through Criminal Appeal No, 1528 of 2003 which was dismissed by a learned Division Bench of the Lahore High Court, Lahore and Murder Reference No, 32-T of 2003 sent by the Trial Court for confirmation of the death sentence was answered in the affirmative vide judgment dated 07.4.2005, hence these appeals with the leave of the Court.
3. The incident took place on 30.08.2000 at about 3:00 a.m. on a thoroughfare in front of the issues of Rana Muhammad Afzal complainant. According to F.I.R. (Exh- P.F), Rana Aftaal complainant, a practicing lawyer, returned to his house from his office at the relevant time and pushed the call bell. He was standing in front of the door of his house waiting for his brother Muhammad Afzal, a police head constable, to open the door when five unknown persons aged between 22 to 25 years, having height of 5 V2 to 6 feet, wearing Shalwar qamees, caught hold of him. One of the perpetrators was armed with a pump action gun, the other was carrying .30 bore pistol and the third one was armed with a 7 mm rifle, while the weapons of the remaining two were not visible.
They assaulted, the complainant and pushed him towards his house. He received a blow in his abdomen with the butt of a pistol. The perpetrators snatched complainant's wallet which contained a sum of Rs, 500/- besides certain other documents. The complainant got himself, separated from the perpetrators, and ran towards the rear, raising alarm. PW-20 Sohail Talib was attracted to the scene of occurrence. The accused ran towards north and disappeared, ln the- meantime, complainant's brother Muhammad Afzal deceased came out from his house with his licensed pistol and started chasing the perpetrators. The complainant and Sohail Talib also followed Muhammad Afzal deceased. Muhammad Afzbl opened fire with his pistol upon which-the accused also started firing. During this exchange of fire', Muhammad Afzal sustained an injury on his chest and left abdomen. He succumbed to the injuries when he was being removed to Mayo Hospital, Lahore, ln the meantime, Muhammad Nawaz, SI (PW-21) arrived there, recorded the statement (Exh-P.S) of Muhammad Aftaal which formed basis of forrpal F.I.R. (Exh-P.L). Muhammad Nawaz after preparing the inquest report (Exh-P.V) reached the spot from where he collected blood-stained earth and also collected one crime empty of l2 bore (P.21), one crime empty of 30 bore (P.22) and one crime empty of 7 mm rifle (P.20) which were taken into possession vide memo.
(Exh- P.4). On 19.07.2000, the investigation was transferred to CIA.
4. According to the police record, the appellant Muhammad Javaid, acquitted co-accused Gulzar and Usman were arrested on 18.09.2000. A pump action 12 bore gun (P. 13) with five live cartridges (P.14/1 to 5) were recovered from the possession of Muhammad Javaid as is evident from the F.I.R.
No, 276, dated 18.07.2000 Police Station Gujjarpura, Lahore under Section 13 of Arms Ordinance, 1965. Nadeem appellant was also arrested on18.09.2000 by PW-22 Muhammad Ilyas Bhatti, SI, CIA Staff (Kotwali), Lahore from Goray Shah Chowk. There is, however, no evidence as to when the remaining two acquitted co-accused, namely, Pervaiz Masih and Khalid Masih were arrested. PW- 22 Muhammad Ilyas Bhatti got ali the accused shifted to CIA Staff (Kotwali) for interrogation and produced them in the Court of Mian Wasim Ahmed, Magistrate on 19.09.2000 and got them lodged in judicial lock-up for identification parade which was held on 22.09.2000. PW-19 Muhammad Aftaal and PW-20 Sohail Talib identified all the accused by placing their hands on the head of each accused without specifying the role attributed to them during the trial. PW-22 Muhammad Ilyas Bhatti, SI has also shown to have recovered a 7 mm rifle (Exh-P.4) and two pieces of a chain of gold (Exh-P.5) at the instance of Javed appellant vide memo. (Exh-P.E).
5. The prosecution, in order to prove its case against the appellants, produced as many as 22- witnesses. PW-19 Muhammad Aftaal and PW-20 Sohail Talib furnished ocular account of the occurrence. The occurrence had taken place in the early hours on 30.08.2000, therefore, the PWs had not nominated any person as accused in their statements before the police. These witnesses claimed to have identified the appellants as well as the remaining four accused who have been acquitted in the identification test arranged on 22.09.2000 in the Camp Jail, Lahore under the supervision of PW-14 Wasim Ahmed, Magistrate who testified his report (Exh-P.R to Exh-P.R/3). The prosecution, besides medical evidence provided by PW-1 Dr. Khalid Hussain also relied upon the recovery of crime empties (P.21) and (P.22) recovered from the spot shortly after the occurrence, which according to the reports of Forensic Science Laboratory (Exh-P.Y) matched with the 12 bore pump, action gun (P. 13) and 7 mm rifle (P.4) recovered from the possession of Javed and Nadeem appellants respectively on 18.09.2000 and 24.09.2000 vide memos. (Exh-P.J and Exh-P.D). There is also evidence of recovery of 2 pieces of chain of gold recovered at the instance of Javed appellant from his house on 24.10.2000.
6. Both the appellants in their statements under Section 342, Cr.P.C, denied the allegations and professed innocence. During cross-examination, it was suggested to the PWs by the appellants that they had been arrested much prior to the date of arrest shown, by the police. Javed appellant produced Shamshad, Head Constable No, 511, a Clerk in the office of SSP, Lahore as DW-1, who appeared along with receipt register of SSP Office, Lahore which contained an entry at serial No, 6051 dated 15.09.2000 about the application received from DW-2 Marton Javed etc respectable of Bhagatpura for an inquiry pertaining to illegal detention of Baga Masih accused etc. at Police Station Gujjarpura. He deposed that this application was forwarded by SSP, Lahore to DSP Ghazi Company for an inquiry and that the report of said DSP was received on 21.09.2000. DW-2 Marton Javaid Mikle testified the said application which was moved by him and 13 other residents of his locality. (DW-1) Shamshad Hussain, DSP stated that on 15.09.2000 while he was posted at Police Station Ghazi Company, he had received an application (Exh-DW.1/A) sent by SSP, Lahore for an inquiry. He on the same day went to Police Station Gujjarpura where it transpired that the accused had been shifted to CIA Police Station (Kotwali), therefore, he went to CIA Staff and enquired from the accused. Thereafter he submitted his report (Exh-DW.1/A) on 16.09.2000.
7. Learned counsel for the appellants while assailing the conviction of the appellants argued that the prosecution has miserably failed to bring home the charge against the appellants. He submitted that the occurrence took place in the late hours of the night and the presence of the eye-witnesses at the spot appears to be highly doubtful. He argued that these witnesses had not named the appellants in their statements recorded immediately after the occurrence and claimed to have identified the appellants as well as the four . acquitted co-accused during the identification parade held on 22.09.2000. According to the learned counsel for the appellants the failure of the PWs to describe the role played by each accused during the identification parade renders the identification of the accused highly doubtful. The placing of hands on the heads of the appellants would not show that the appellants were the persons who had participated in the occurrence.
' As stated above, the occurrence took place during the late hours of night. The PWs in their statements before the police had only stated about the ages of the assailants. They had seen the glimpses of the assailants while running away and for this reason they had not given the distinguishing physical features, of any assailant in their statements recorded by the police immediately after the occurrence. Even at the time of identification parade, they failed to give the description of physical features of the assailants and the role played by each assailant. Such identification test has never been approved by this Court, ln this regard we may refer the case of "Mian Muhammad Hafiz and others v. Aziz Ahmad and others (1980 SCM R 557)" and "Mehmood Ahmad and 3 others v. The State and another (1995 SCM R 127)". The latest decision of this Court on this point may be found-in the case of "Nasrullah Khan and 2 others v. The State (2010 SCM R 881)".
The appellants in their statements under Section 342, Cr.P.C have specifically pleaded that they were arrested much before 18.09.2000 and detained illegally at police station Qilla Gujjarpura. They further pleaded that on 15.09.2000, the inhabitants of the locality including Marton Javed DW-2 had made a complaint to the SSP, Lahore. Shamshad Hussain DW-1 and CW-1 Zahid Hussain, DSP testified that on the said complaint. CW-1 Zahid Hussain, DSP went to the CIA Kotwali police station on 15.09.2000 and found all the accused in custody. According to the prosecution, the appellants were arrested on 18.09.2000 and sent to judicial lock-up for identification parade on 19.09.2000. The police record produced by Shamshad Hussain a police constable of SSP Office Lahore, i,e, the complaint made by Marton Javed (DW-2) and the report (Exh-DW.1/A) which has been testified by Zahid Hussain, DSP (CW-1) clearly show that the appellants were in the. custody of CIA Police Kotwali on which certainly demolished the prosecution claim that the appellants were arrested on 18.09.2000. lt renders the identification test held on 22.09.2000 and recovery of pump action 12 bore gun from Javed appellant open to doubt. The other pieces of evidence relate to the recovery of crime empty from the spot on 30.08.2000, which according to the report of Forensic Science Laboratory matched with the weapon recovered from the appellants on 18.09.2000 and 24.09.2000.
The report of Forensic Science Laboratory (Exh-P.Y) shows that the crime empties were received in the laboratory on 19.09.2000 whereas the appellants were in the illegal custody of the police on 15.09.2000. Therefore, the dispatch of the crime empties after the arrest of the appellants renders the report of Forensic Science Laboratory inconsequential. Thus, the prosecution has miserably failed to prove its case against the appellants.
8.ln view of the above, we accept both these appeals and set aside the impugned judgment of the learned High Court dated 07.04.2005. The appellants are acquitted of the charges and be released forthwith, if not required in any other case., ' These are the reasons for our short order of even date.