Ch. Ijaz Ahmed, J.--Appellant/petitioner sought leave to appeal against the impugned judgment dated 2-3-2006 wherein the appeal filed by him against his conviction was dismissed.
2. Appellant/petitioner filed Jail Petition No, 198 of 2006 which was fixed before this Court on 7-8- 2007 and leave was granted in the following term:-- "After hearing learned counsel for the petitioner and learned Deputy Prosecutor General, Punjab, we deem it proper to grant leave to appeal to reappraise the entire evidence for safe administration of justice."
3. Detailed fact have already been mentioned in the impugned judgment as well in the memo. of petition/grounds of appeal. However, necessary facts out of which the present appeal arises are narrated in para 3 of the impugned judgment which are reproduced hereunder:-- "The occurrence took place on the night between 19/20.5.1997 in the house of Irshad Ahrnad (deceased) situated in village Puran within the are of Police Station Sesarkalan, District Narowal. It was reported to the police on the following morning at 7.30 a.m. by Muhammad Boota (PW1) real uncle of the deceased. According to the prosecution, Irhad Ahmad (deceased), aged 25 years, Sardar Ali, aged 21 years PW.2, and Mushtaq Ahmad, aged 21 years, the nephews of Muhammad Boota complainant were sleeping in their house on the night of occurrence when two unknown persons armed with rifles entered the house. The three nephews of the complainant woke up. One of the perpetrators fired two shots hitting Irshad Ahmad on his abdomen. The other perpetrator also fired hitting Sardar Ali (PW 2) on his back. On hearing the report of gunfire the complainant and Niamat Ali (given up PW) reached the spot. They saw two armed men running out of the house of the deceased. They chased them but the perpetrators decamped. Both the injured were taken to Shakargarh Hospital where Irshad Ahmad succumbed to injuries. Sardar Ali was removed by Mushtaq Ahmad to Mayo Hospital, Lahore. Thereafter, the complainant went to the Police Station and lodged FIR (Exh. PA)."
Appellant/petitioner alongwith his co-convict and acquitted co-accused were involved in a case FIR No, 73 which was registered at Police Station Laiser Kalan on 20-5-1997 on the complaint of Muhammad Boota PW-1 real paternal uncle of Irshad Ahmed, deceased. Investigating Agency after investigating the matter submitted challan before the competent Court. After completing legal formalities the learned Additional Sessions Judge Narowal vide its judgment dated 22-11-2000 convicted and sentenced the appellant/petitioner and his co-convict as under:-- Saber Ali alias Fauji Death under Section 302(b) PPC for committing qatl-e-amd of Irshad Ahmad with compensation of Rs, 2,00,000/- to the legal heirs of the deceased. In case of default he has to further undergo R.I. for one year.
Mehmood Ahmed alias Mooda Ten years R.I. under Section 324 PPC with a fine of Rs, 25000/-and in default thereof to suffer further R.I. for 2 months. He was also convicted and sentenced under Section 337-F(iv) PPC to 5 years R.I. as Tazir. Benefit of Section 382-B Cr.P.C. was also extended to him.
Abdul Rasheed alias Bagga He was acquitted of the charge.
Appellant/petitioner filed Criminal Appeal No, 48-J/2001 before the Lahore High Court, Lahore, which was dismissed vide impugned judgment. It is pertinent to mention here that it is not borne out from the record whether his co-convict Mahmood Ahmed alias Mooda had filed appeal before the High Court against his conviction or not.
4. Learned counsel for the appellant submits that both the Courts below had convicted the appellant/petitioner without adverting to the evidence on record. The appellant/petitioner was convicted basically on the basis of the identification parade during which eyewitnesses of the occurrence had identified him, his co-convict and acquitted co-accused. There was ample opportunity for the prosecution witnesses to see the appellant and his co-convict in the Police Station as is evident from the statement of Muhammad Anwar, S.I./S.H.O (PW-17) but this fact was not considered by both the Courts below in its true perspective. He summed up his arguments that both the Courts below had given finding of guilt against the appellant/petitioner by misreading or non-reading of the evidence on record.
5. The learned Deputy Prosecutor General, Punjab, has supported the impugned judgment by submitting that both the Courts below after proper appreciation of evidence recorded finding of guilt against the appellant/petitioner and learned counsel for the appellant had failed to point out any infirmity or illegality in the impugned judgment.
6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is an admitted fact that the complainant had not mentioned the name of any of the accused in the FIR. He also did not mention description/features of the accused persons in the FIR. It is settled principle of law that it is the duty and obligation of the complainant to give material particulars of the case in the contents of the FIR without giving detail of incidental matter as per law laid down by this Court in Muhammad Hussain's case (1993 SCM R 1614). It is better and appropriate to reproduce the basic facts in chronological order to resolve the present controversy with regard to the quilt of the appellant in the incident in question:--
(i) The incident took place on the night (at 12-30 A.M.) between May 19/20, 1997.
(ii) FIR was lodged on 20th May, 1997 at 7.30 a.m.
(iii)FIR does not contain name of any accused persons including the appellant and his co- accused. Similarly FIR does not contain feature/description of any of the accused meaning thereby that the aforesaid ingredients are missing from the contents of the FIR.
(iv)According to Muhammad Anwar, SI/SHO (PW-7) on 6.11.1997, he suspected two persons and stopped them. On interrogation they disclosed their names Mahmood alias Mooda and Saber Ali alias Fauji. They were arrested by him. Appellant and his co-convict Mahmood alias Mooda had made disclosure about the murder of Irshad in the case in hand.
(v) Identification Parade was held on 15-11-1997 in District Jail Sialkot under the supervision of Muhammad Naseer, Naib Tehsildar, PW-10.
Mere reading of the aforesaid facts clearly envisage that incident took place on May 19/20, 1997 whereas the appellant was arrested on 6.11.1997 and identification parade was held on 15-11-1997.
This fact alone is sufficient that it is very difficult for the witnesses to identify them after such a long time coupled with the fact that identification parade was held not in accordance with the law as is evident from the following pieces of evidence and reply of Question No, 6 by the appellant while recording his statement under Section 342 Cr:P.C. which were not read by both the Courts below as is evident from the contents of the judgment of the Courts below:-- Statement of Muhammad Boota (PW-1)
"After six months myself and Sardar and Niamat PWs identified the accused Sabir Ali and Mahmood Ahmad alias Mooda in the jail during identification parade held by the Magistrate."
Examination in chief of Muhammad Boota (PW-1)
"I do not know about the name of lunar month on 20-5-1997 but it was a moonlit night. When I saw Saber accused he was at a distance of about three karam from and he was on the southern side of verandah and from there he fired at Irshad. Irshad deceased was grappling with Saber accused when Saber accused drifted backwards and fired at Irshad deceased from a distance of one karam. Mahmood accused was at a distance of three karams from me and from the verandah on the southern side..........I do not know if the accused had adopted the version that the I.O. of this case had shown them to the PWs before they were sent up to the judicial lock up before the Magistrate.
The Magistrate might had taken care of the objection if any by the accused.
Statement of Sardar Ahmad (PW-2)
"Irshad deceased and the accused whose name I do not know (the witness pointed' out Saber accused present before the Court grappling with each other I never told the names and addresses of the accused to the I.O. likewise Master Anwar Hussain too did not disclose the names and addresses of the accused of this case to the I.O. in my presence on 28.10.1997 or ever before I had stated before the police that when I got up I saw one accused grappling with Irshad deceased (confronted with Exh.DA not so recorded).
Examination in chief of Sardar Ahmed (PW-2)
"It is incorrect that the accused had raised the objection before the Magistrate in my presence that they were shown to the PWs in captivity at the Police Station. It is further incorrect that my version of having mentioned the roles of the accused at the time of identification parade is patently false. I do not know that the Magistrate had taken care of the objections of the accused or not: Statement of Muhammad Naseer, Naib Tehsildar (PW-10)
"The report of test identification parade has been drawn by me and bears my signatures. The report qua the identification parade is Exh. (At this stage the learned defence counsel has raised objection that test identification report is not available on the file in original and the copy available on the judicial file is the photo stat of the original hence it may not be allowed to be exhibited in evidence)."
Cross examination of Muhammad Naseer, Naib Tehsildar (PW-10)
"I had not given any certificate at the end of my test identification report Exh. PL required under the law. It is incorrect to suggest that test identification parade was not conducted under the law and further proceedings undertaken by in this case or unwarranted by law."
Cross-examination of Muhammad Anwar. S.I./S.H.O. (PW-17) It is correct that before the information provided by Sardar Ali PW on 28.10.1997, the local police had no clue at all qua the alleged participation of above accused persons in this occurrence. The accused Mahmood alias Mooda and Saber alias Fauji were arrested by me on 6.11.1997. Sardar Ali PW and Niamat Ali complainant and Muhammad Boota PW had visited the Police Station to verify the arrest of accused on 6.11.1997 and stayed there for half an hour. The lock up of the Police Station is situated closed to office of SHO at the P.S Laser Kalan. I had interrogated both Mahmood Ahmad alias Mooda accused and Sabir alias Fauji accused." Reply of the appellant to Question No 6 The identification parade is not in accordance with law and I had been shown to the PWs by the police at the Police Station. They knew me already as well.
It is pertinent to mention here that no question was asked from the appellant under Section 342 Cr.P.C. qua disclosure of murder of Irshad Ahmed deceased. We have re-examined evidence on record with the assistance of the learned counsel of the parties. Both the Courts below did not advert or read the aforesaid pieces of evidence with regard to the identification parade of the appellant and his co-accused. It is settled principle of law that it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identification parade. It is pertinent to mention that all these precautions should not only be taken but should be proved to have been taken and these precautions should be recorded in the initial record like general diary of the Police Station and the daily register and the same should be produced in Court. In the absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses. This aspect of the case was not considered by both the Courts below as law laid down by this Court in Munir Ahmed's case (1998 SCM R 752). The aforesaid pieces of evidence clearly envisage that witnesses had opportunity to see the appellant and his co-accused, therefore, identification parade which was held in this case was not in accordance with the rules. It is also settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created and in the case in hand identification parade of all the three accused was held jointly. This aspect of the case was not considered by both the Courts below in terms of law laid down by this Court in Pasand's case (PLD 1981 SC 142) wherein the conviction was set aside on this ground alone.
It is also settled principle of law that picking out of accused in identification parade is not a substantive piece of evidence. Such evidence is merely corroborative piece of evidence. It is pertinent to mention here that contents of the FIR reveal that witnesses would be able to identify the accused after seeing them. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements keeping in view the principles laid down by this Court in various pronouncements. See Farman Hussain's case (PLD 1995 SC 1), Ismail's case (1974 SCM R 175). It is also settled principle of law that if accused were not named in the FIR identification parade becomes necessary. See Farman Ali's case (1997 SCM R 971). It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon. See Ghulam Rasul's case (1988 SCM R 557), Mahmood Ahmed's case (1995 SCM R 127) and Khadim Hussain's case (1985 SCM R 721). As mentioned above the aforesaid witnesses did not mention name and role of the accused in their statements recorded, by the Magistrate after identification parade. It is an admitted fact that appellant and his co-accused had taken objection at the time of identification parade that they had already been shown to the witnesses but this objection was not taken into consideration by the Courts below. This plea was also taken in reply of Question No, 6 by the appellant. In such circumstances identification parade becomes doubtful and cannot be relied upon. See Sohn's case (PLJ 1974 Cr. Cases 208). It is also settled principle of law that when witnesses giving no description of the accused previous to identification, such type of identification cannot be reliable.
See Maula Dad's case (AIR 1925 Lah.426). It is an admitted fact that in terms of contents of FIR witnesses did not know the appellant and his co-accused before the occurrence. Identification parade was not held in accordance with law therefore, identification in Court by the witnesses is also of no value in terms of law laid down in Sultan's case (PLD .1976 B.J. 10). It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the FIR. It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of FIR, the benefit of doubt be given to the accused persons coupled with the fact that according to the prosecution witnesses they had opportunity to see them on the day of incident in moonlight. Identification parade was held after about six months from the date of occurrence and also conducted after a delay of 9 days after the arrest of the accused. This delay per-se in both counts create lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons. So far as confessional statement is concerned, that is not believable on the touch stone of common sense and logic as Muhammad Anwar, S.I./S.H.O. (PW-17) had arrested the accused on apprehension but there was no justification and circumstances that the accused persons had made confessional statement before him qua committing the offence in question as no evidence was brought on record to corroborate the statement of Muhammad Anwar, S.I./S.H.O. (PW 17). The question was not asked to this regard in his statement under Section 342 Cr.P.C., therefore, no inference can be drawn against the convict This fact was also not considered by the Courts below.
Recovery of rifle from the appellant was also doubtful as the rifle was recovered in violation of Section 103 Cr.P.C. The statements of eye-witnesses are also not consistent with each other in case, their statements are read with the statements of Muhammad Anwar, S.I./S.H.O. (PW-17) and Salamat Ali, ASI (PW-15). This fact was also not considered by the Courts below in its true perspective coupled with the fact that material improvements were made by the witnesses before the Court which were noted by the trial Courtin their cross-examination but did not draw right conclusion at the time of recording of finding of guilt against the appellant. This error was not rectified by the learned High Court while deciding the appeal of the appellant. With the help of the learned counsel of the parties we have reexamined the whole evidence on record and come to the conclusion that both the Courts below had erred in law while giving finding of guilt against the appellant. In view of the aforesaid discussion we have come to the conclusion that the finding of guilt recorded by the Courts below against the appellant is on the face of it against the evidence or patently improbable or perverse that to accept it could amount to perpetuate a grave miscarriage of justice coupled with the fact that Courts below have decided the case in violation of law laid down by this. Court in various pronouncements and without adverting to the rules of identification parade. We have already referred to misreading of evidence on record, therefore, it is our duty to rectify the same so that justice may be done with the parties. It is pertinent to mention here that appellant was convicted on the basis of circumstantial evidence. It is settled law that an accused can be convicted and sentenced on the basis of circumstantial evidence if the chain has not been broken and each and every circumstance must connect with each other. In the case in hand, Muhammad Anwar, S.I./S.H.O. (PW17) did not mention any circumstance on the basis of which the appellant and his co-convict had confessed guilt before him and to this effect no question was asked from him under Section 342 Cr.P.C. The basic piece of evidence in this case is the identification parade which is not proved in accordance with law even the eye-witnesses did not bring on record sufficient material in view of inconsistency between the statement of eye- witnesses to connect the appellant with commission offence coupled with the fact that the convict grappled with the deceased which created doubt in the story of prosecution. All these circumstances show that prosecution badly failed to prove guilt against the appellant. These aspects of the case were not considered by the Courts below in its true perspective.
7. It appears that both the Courts below had given concurrent conclusions of guilt against the appellant in cursory manner without application of mind therefore, impugned judgment is not sustainable in the eyes of law as laid down by this Court in G.M. Sikdar's case (PLD 1970 SC 158).
Even otherwise statement of eye-witnesses do not inspire confidence and they are also not trustworthy.
8. In view of what .has been discussed above we do not find any plausible reason for conviction of the appellant by the Courts below. Therefore, the appeal is accepted and conviction of the appellant is set aside; he is acquitted of the charge and he is ordered to be released forthwith if not required in any other criminal case.