SHAFQAT MEHMOOD and others vs THE STATE

' CH. IJAZ AHMED, J.---Petitioners/Appellants sought leave to appeal against the judgment dated 11-12-2006 wherein criminal appeal filed by them in the Lahore High Court, Rawalpindi Bench, Rawalpindi, against their conviction awarded by the trial court, was dismissed 2 The facts as depicted from para 1 of the judgment of the trial Court are as under:-- "Ahmad Iqbal, Bank Manager, Habib Bank Ltd, Mankiala (P.W.4) got registered the above mentioned case through his written complaint (Exh.PB) to the effect that on 17-5-2003 at about 10-45 a.m. He was sitting in his seat in the Bank. Muhammad Rafique being Bank Guard armed with repeater pump action .12 bore was performing his duties, whereas Muhammad Iqbal 2nd officer, cashier were present in the cash cabin, whereas Amir Hussain another bank guard was standing empty- handed in front of cash cabin in the bank. The door-of the bank was open. Suddenly, Alto Suzuki Car of saleti colour stopped in front of the bank in which there were five persons including the driver, three persons armed with .30 bore pistols, one of them was of slim body, wearing blue clothes, the second was of fair colour with a beard wearing shalwar qamiz and the third one wearing saleti colur shalwar qamiz, entered in the bank, whereas two persons, on.; with a large beard and other slim smart young wearing angori colour shalwar qamiz armed with pistols stood in front of the door. The persons coming inside the bank got the hands up of all on the pistol point.

The man with blue shalwar qamiz caught hold Muhammad Rafique guard from his collar and tried to snatch his gun. Muhammad Rafique grappled with him, then he made a straight fire which hit the guard on right side of his chest. The second fire was made by a person with a beard which hit Muhammad Rafique on 'his right dolla. Whereas the fire made by the third person hit him on the left side of his chest, and he fell down. The other two persons standing on the door also entered in the bank and picked up his gun. Muhammad Amir came forward, then the said two persons gave him butt blows, he became senseless; the accused had to take away the cash, but due to resistance they picked up the gun, came out from the bank and while firing three shots in the air went towards Kallar Saydian through Car No,IDK-5611. Muhammad Rafique succumbed to the injuries at the spot.

He informed the police on telephone. Hence this case."

3. On the basis of the aforesaid complaint formal F.I.R. No, 122 was registered at Police Station Rawat, District Rawalpindi, under sections 302/412/396/394, P.P.C. 7-Anti Terrorism Act, 1997 on 17-5- 2003. The investigating agency after investigating the matter submitted challan against the appellants. The learned Judge, Special Court Anti-Terrorism No,1, Rawalpindi, convicted and sentenced the appellants vide its judgment dated 16-12-2003 as under:-- Under section 396, P.P.C.

' Death plus payment of Rs 20,000 each as compensation to the legal heirs of-deceased, in default whereof to undergo further R.I. For six months each.

Under section 7(h) of ATA, 1997 ' To undergo R.I. For two years each plus payment of Rs,10,000 each as fine, in default whereof to suffer R.I. For three months each.

Under section 394, P.P.C.

To undergo R.I. For four years each plus payment of Rs,10,000 each as fine, in default whereof to suffer R.I. For three months each.

Under section 21-L of ATA, 1997 ' Besides the above, Aftab alias Tabi and Muhammad Ashiq, appellants, were further convicted and sentenced to undergo one year's R.I. Each.

' The aforesaid sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.

4. According to the F.I.R. There were five accused. The police had submitted challan against the appellants as Shahid Israr, co-accused, could not be arrested and was, therefore, declared proclaimed offender. The appellants being aggrieved filed appeal in the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was dismissed vide impugned judgment. Thereafter, the appellants/petitioners filed Petition which was fixed before this Court on 25-7-2008 and leave was granted in the following terms:- "We have heard the learned counsel at some length. Leave to appeal is granted in this case involving death sentence to the petitioners, for reappraisal of evidence, in the interest of safe administration of criminal justice."

5. Hence the present appeal.

6. Learned counsel for the appellants submits as under:--

(i) that identification parades were conducted in violation of the High Court Rules and procedure.

(ii) P.W.4 Ahmad Iqbal admitted in his cross-examination that he seen the convicts/accused in the police station about 3/4 days prior to the identification parade but this fact was not considered by both the courts below.

(iii) P.W.15 Ibrar Sarwar, SI admitted in his cross-examination that appellants Shafqat Mehmood and Muhammad Zubair were arrested in police encounter on 17-5-2003 after receiving message about the occurrence in question which took place on 17-5-2003. He also admitted that about 150 police officials had taken part in the encounter but none of the accused was hit in the encounter as well as the police party. This fact does not appeal to the logic which was not considered by the courts below.

(iv) P.W.5 Amir Hussain had stated in his cross-examination that he had visited the court five times and had opportunity to see the convicts/accused and his statement was recorded on the 6th date of hearing of the case by this trial court coupled with the fact that Shafqat Mehmood and Muhammad Zubair, appellants, were neither identified by P.W.5 Amir Hussain nor by P.W.4 Ahmad Iqbal, Cashier, who was given up.

(v) The version stated in F.I.R. Is clearly in contradiction with the postmortem report as is evident from the statement of P.W.9 Dr.Hafiz Muhammad Qasim Khan.

(vi) Recovery of weapons from the appellants had no value in view of the report of the Forensic Science Laboratory which is negative.

(vii) P.W.8 Zafar Mahmood, Constable, also admitted in his cross examination that when he reached at the spot with the investigating officer, he saw the repeater lying with the dead body of the deceased Muhammad Rafique. The convicts were acquitted under section 13 of the Arms Ordinance, 1965 in view of the aforesaid statement of P.W.8 Zafar Mahmood, Constable.

7. The learned Deputy Prosecutor-General has supported the impugned judgment. He submits that occurrence had taken place in the broad-daylight. The Manager of the Bank was a natural witness who had seen the occurrence and also F.I.R. Was also recorded on his statement. The eye- witnesses P.W.4 Ahmad Iqbal and P.W.5 Amir Hussain had no enmity whatsoever with the convicts.

Therefore, there was no justification for them to involve the convicts in such a heinous offence. Two convicts namely Shafqat Mehmood and Muhammad Zubair were arrested on the day of occurrence i,e, on 17-5-2003 whereas the convicts Mulammad Ashiq and Aftab alias Tabbi were arrested on 29-7-2003. Both the courts below after proper appreciation of evidence had given finding of guilt against the convicts.

8. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the basic facts and relevant portions from the cross examination from the material witnesses particularly with regard to identification to resolve the controversy between the parties:--

(a) Incident took place on 17-5-2003 at 10-45 a.m. Formal F.I.R. Was recorded on the same day at 12-30 a.m. On the complaint of P.W.4 Ahmad Iqbal, Manager of the Bank.

(b) Contents of the F.I.R. Do not contain the name of any accused except the description of the accused persons.

(c) Guard of the Bank.(Muhammad Rafique) was murdered in the incident in question.

(d) Shafqat Mehmood and Muhammad Zubair, convicts, were arrested on the same day i,e, on 17- 5-2003 within 3/4 hours of the incident.

(e) Muhammad Ashiq and Aftab alias Tabi, convicts, were arrested on 29-7-2003.

(f) According to P.W.13 Nazar Hussain, SI/SHO Shafqat Mehmood and Muhammad Zubair were sent to jail on 18-5-2003.

(g) Identification parade of Shafqat Mehmood and Muhammad Zubair was conducted by P. W.10 Amjad Saeed, Deputy District Officer (Revenue) Murree, (formerly Special Judicial Magistrate Rawalpindi) on 24-5-2003. The said convicts/accused were identified by P.W.4 Ahmad Iqbal, Bank Manager, who admitted in his cross-examination to the following effect:-- "I went to the P.S. To verify the factum of the arrest of the accused, 3/4 days before the identification parade. It is correct that after having seen the accused at the P.S. I became sure about their arrest by the police Shafqat and Zubair were present at the P.S. When I visited it and saw them there prior to, identification parade."

(h) Muhmmad Iqbal, Cashier, did not identify them who was given up.

(i) Identification parade of other accused, namely, Muhammad Ashiq and Aftab alias Tabbi was held on 11-8-2003 under the supervision of P.W.12 Fakhur-ul-Islam Dogar, Special Judicial Magistrate. P.W.4 Ahmad Iqbal and P.W.5 Amir Hussain had identified them. Muhammad Iqbal, cashier, did not identify them.

(j) P.W.9 Dr. Hafiz Muhammad Qasim Khan has admitted in his cross-examination to the following effect:-- "It is correct that according to the postmortem report Exh.PG. The deceased received two bullet injuries." ' which is not in consonance wit the contents of F.I.R.

(k) The prosecution has failed to prove that. The accused took away the repeater gun of Muhammad Rafique, Guard, because prosecution own witness admitted that the same was lying near the dead body and was taken into possession by the police officials.

(l) Recovered weapons from the convicts/accused and empties has no value as the empties were not matched and Forensic Science Laboratory has submitted negative report in this respect.

(m) P.W.10 Amjad Saeed, in his examination in chief stated as follows:-- "The accused told me that in Police Station Civil Lines, Rawalpindi, their photographs were taken, and in Police Station Kallar Syedan, they were shown to the P. Ws. Which I reduced into writing."

(n) P.W.13 Nazar Hussain, SI/SHO admitted in his cross-examination to the following effect:-- " I went straightaway to the place of dacoity, i,e,, Mankiala. I went to the spot on a private taxi cab and not in the service vehicle. I personally bore the expense of the fare. I did not specifically requisition the TA/DA from Police Department regarding the said fare, but I got it mentioned in my TA/DA bill in a general manner/way. When I reached the spot, I came to know that no damage was suffered by the Bank regarding its currencyIt is correct that when I reached the bank, Sabir SI had already collected empties, gun, blood-stained, earth etc. And made them into sealed parcel. I spent about 30 minutes on the spot, and then left for search of the accused. I took into custody the accused from the officials of Kallar Syedan Police Station at Police Station Kallar Syedan, but I cannot give the time. I produced Shafqat Zubair before Illaqa Magistrate for the first time on 18-5- 2003I took into custody the accused Shafqat and Zubair on 18-5-2003 from the District Court premises of Rawalpindi at about 11/12 noon..I took into custody the accused and nothing else.

Volunteers, that the accused were taken into custody on 18-5-2003 and the ear P.1, on 17-5-2003."

(o) The proceedings of the identification parade clearly showed that it was held in violation of High Court Rules and Orders as evident from pages 221-222 of the Paper Book.

(p) Cross-examination of P.W.12 Fakhrul Islam Dogar "The witnesses did not disclose as to what role the accused had played at the time of commission of offence."

(q) Cross-examination of P.W.8 Zafar Mahmood "We left the P.S. At about 11 a.m. We reached the spot within 10 minutes. The dead body was lying in the Bank. The repeater gun was lying with the dead body when we reached the bank. The gun and the empties etc., were taken into possession by Sabir SI in my presence. Sabir recorded the statements of Amir Hussain guard, cashier and the complaint, i,e, manager of the bank, in my presence in the bank. I took away the dead body to the hospital at about 12.30 noon."

9. Both the courts below did not read or misread the aforesaid pieces of evidence with regard to the identification parade of the appellants. 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 evident from the perusal of the impugned judgment read with aforesaid pieces of evidence. The aforesaid pieces of evidence clearly envisage that witnesses had opportunity to see the appellants, therefore, identification parade which was held in this case was not in accordance with the rules. It is also settled principle of law that B identification parade of each accused should be held separately otherwise confusion would be created and in the case in hand identification parade of two sets of accused was held jointly. This aspect of the case was not considered by both the courts below. 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 F.I.R. Reveal that witnesses had seen the accused for the first time. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements. It is also settled principle of law that if accused were not named in the F.I.R. Identification parade becomes necessary. 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. 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 appellants 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. In such circumstances identification parade becomes doubtful and cannot be relied upon. It is an admitted fact that in terms of contents of F.I.R. Witnesses did not know the appellants, before 'the occurrence. Identification parade was not held in accordance with law, therefore, identification in court by the witnesses is also of no value.

Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons. The statements of eye-witnesses are also not consistent with each other. 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 Court in their cross examination but did not draw right conclusion at the time of recording of finding of guilt against the appellants. This error was not rectified by the learned High Court while deciding the appeal of the appellants. With the help of the learned counsel of the parties we have re-examined the -whole evidence on record and come to the conclusion that both the courts below had erred in law while giving finding of quilt against the appellants. In view of the aforesaid discussion, we have come to the conclusion that the finding of guilt recorded by the courts below against the appellants 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. We have already referred to misreading of evidence, on record, therefore, it is our duty to rectify the same so that justice may be clone with the parties. It is pertinent to mention here that appellants were 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.

The basic piece of evidence hi 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 appellants with commission of offence coupled with the fact that the contents of F.I.R. Are not in consonance with the medical evidence. All these circumstances, show that prosecution badly failed to prove guilt against the appellants. These aspects of the case were not considered by the courts below in its true perspective.

10. It appears that both the courts below had given concurrent conclusions of guilt against the appellants in cursory manner without application of mind, therefore, impugned judgment is not sustainable in the eyes of law. Even otherwise statement of eye-witnesses do not inspire confidence and they are also not trustworthy.

11. In view of what has been discussed above, we do not find any plausible reason for conviction of the appellants by the courts below. Therefore, the appeal is accepted and convictions of the appellants are set aside and they are ordered to be released forthwith if not required to be detained in any other case. Consequently appellants are acquitted in the case in hand.