Muhammad Ali Mazhar, J.--The appellants have filed this criminal Jail Appeal against the judgment dated 27.10.2009, passed by learned Judge, Anti-Terrorism Court, Sukkur in Special Case No, 07 of 2007, whereby appellants have been convicted for the offence under Section 302 (b) PPC and sentenced to suffer imprisonment for life and to pay fine of Rs, 50,000/- to the legal heirs of deceased H.0 Abdul Rehman Jiskani and P.C. Manzoor Shah as compensation under Section 544, Cr.P.C. with further convictions to suffer imprisonment for the offenses under Sections 399, 324 & 353 PPC. All above sentences were ordered to run concurrently with the benefit o Section 382-B, Cr.P.C.
2. The brief facts according to FIR No, 238 of 2006, P.S Ghotki, lodged against the appellants under Sections 302, 324, 353, 399, 402, 147, 148, 149, PPC read with Section 7 ATA, are that on 5.8.2006, complainant SIP/SHO Qalab-e-Abbass Shah along with his subordinate staff left Police Station Ghotki vide Entry No, 19 at 1745 hours, for patrolling. At about 0315 hours, they reached at National Highway and on the light of police mobile, they saw ten persons duly armed with weapons were standing on the road and out of them two were identified as Ibrahim Shaikh and Ali Gohar Chachar and remaining eight persons were unidentified. Police party got down from the mobile, took position and gave hakal to accused to surrender their weapons on which accused persons made straight firing upon the police in order to commit their murder and police also made firing in defence. During firing HC-Abdul Rehman Jiskani, P.C. Manzoor Shah and P.C.Niaz Ali raised cries that they have received bullet and I/C PP Mahesro Murad Mahar with his staff reached on the spot and they also participated in the encounter and firing lasted for about half an hour, thereafter, accused made their escape good. Police party saw that H.C. Abdul Rehman Jiskani received injuries and was deed, while P.C. Manzoor Shah received bullet injuries on his neck and he was unconscious. P.C.Niaz Ali also received injuries. The dead body of H.C. Abdul Rehman Jiskani and injured P.C. Manzoor Shah and P.C. Niaz Ali were taken to taluka hospital, ASI Asghar Ali informed through wireless that injured P.C.Manzoor shah has expired. Police party tracked the footprints of accused, thereafter, police party came to police where SIP/SHO Qalab-e-Abbass Shah registered an FIR During investigation, appellants were arrested on 25.8.2006 and were put to identification parade on 29.8.2006 through injured PC Niaz Ali Pathan.
3. After completion of proceedings under Sections 87 & 88, Cr.P.C. against ? absconding accused, they were declared proclaimed offenders and charge was framed against the appellants.
Prosecution in order to prove its case examined 12 prosecution witnesses. The statements of appellants were recorded under Section 342, Cr.P.C., in which they denied the allegations. They further pleaded their innocence and false implication by the police due to enmity. Both appellants did not examine themselves on oath nor led any defence evidence.
4. The learned counsel for the appellants argued that though the prosecution produced 12 witnesses in the trial Court but it is a fact that names of appellants do not appear in the FIR but they have been convicted on the basis of identification parade which was conducted by the Judicial Magistrate in which P.C. Niaz Ali (P.W No, 10), identified the appellants Amir Bux and Muhammad Ramzan. He further argued that the appellants were arrested on 25.8.2006 and the identification parade was conducted on 29.8.2006. It is clearly manifesting from the evidence available on record that P.C. Niaz Ali had already seen the appellants prior to the identification parade, therefore, entire purpose of identification was a futile exercise and was made only with the sole intention to convict the appellants who were innocent and not involved in any case. He further argued that it is also clear from the statements of appellants recorded under Section 342, Cr.P.C. in which, the factum of identification was not mentioned which is also fatal and gross miscarriage of justice. He further argued that even identification parade was not conducted properly. No descriptions of appellants were mentioned in the FIR, therefore, identification if any, has no value. It is clear from identification parade and deposition of learned Magistrate that name of dummies with their addresses are also not mentioned which makes the entire identification parade doubtful.
He further argued that on the basis of same crime a separate trial of the same appellants, was conducted under 13-D of the Arms Ordinance, in which, the appellants have already been acquitted vide Judgment dated 02.06.2009 by the learned 1st Additional Sessions Judge, Ghotki in Sessions Case No, 24/2006. In support of his arguments, the learned counsel referred to 2011 SCMR 769 (Muhammad Ayaz v. State), in which it was held that absence of complete description of dummies at the test of identification parade without their, address, their occupation and without any clue whether they were fellow prisoners or outsiders, admitted dissimilarity in height, physique, features, complexion, appearance and dress of dummies and accused persons and whether accused persons and the dummies were similar in the matters of beards or being clean shaven, the absence of any finding and decision by the learned Magistrate supervising the identification parade would render the said exercise open to serious doubts. He further relied upon PLD 1981 SC 142 (Lal Pasand v. State), in which it was held that identification parade held with delay not satisfactorily explained and not conducted in accordance with rule of mixing along with strangers with one accused. Danger of error in identification being very great, not safe, except in exceptional circumstances to pass conviction on evidence of solitary eye-witness particularly when the witness could have only a-fleeting glimpse of accused. He next relied upon 1993 SCMR 585 (State v. Siparo) in which, the honorable Supreme Court went on to hold that eye-witnesses did not give name of accused to the complainant nor gave description of his features for the reasons that he was not known to them prior and was seen by them for the first time, the identification test has no value for want of description of respondent in the FIR.
5. In rebuttal, the learned APG for the State argued that the appellants were rightly convicted on the basis of identification, which was conducted in accordance with law. He further argued that no reference of identification parade in the statements recorded under Section 342, Cr.P.C. is merely a technical ground and not fatal to the decision of the case. The prosecution had proved the case and produced 12 witnesses in the trial Court including PC Niaz Ali Pathan, who clearly identified both the appellants in identification parade and the learned Magistrate also appeared in the evidence, who conducted the identification parade. He further argued that nothing has been brought on the record by the appellants in the trial Court that they have been falsely implicated due to any enmity even in their statements recorded under Section 342, Cr.P.C. neither they recorded their statements on oath nor they produced any witness in their defence. The learned APG further argued that conviction can be based even on the basis of solitary witness and acquittal of the appellants in 13- D case does not exonerate them from the charge of murder. In support of his arguments, he referred to PLD 2007 Karachi 68 (Habibullah v State), in this case, learned divisional bench of this Court considered the provisions of Section 342, Cr.P.C. and held that a duty casts upon trial Court to put question to accused persons on incriminating facts coming in evidence so that accused be enable to explain circumstances app aring in evidence against them. Though in this Judgment, it was held that the defect in recording statement of accused under Section 342, Cr.P.C., is curable unless it is shown that accused had been prejudiced and miscarriage of justice had occurred but at the same time, it was further held that where Court did not ,put all incriminating evidence to accused to obtain his explanation, such piece of evidence, is not to be used against the accused to convict him. Court is to be very careful in recording statement under Section 342, Cr.P.C. He next relied upon 2005 P.Cr.L.J 811 (State v. Khan Muhammad), in which, it was held that acquittal of accused in case under Section 13-(e) of the Arms Ordinance in a separate trial, had no bearing on the evidence and decision recorded in the main case. He next referred to 2007 SCMR 813 (Muhammad Zaman v State), in which, it was held that long delay in holding identification test of the accused, would not by itself be sufficient to discard testimony. He had also placed reliance on PLD 1980 SC 225 (Allah Bux v Shami and others), in which, the honorable Supreme Court held that in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is liable. In other words, the emphasis is on the quality of evidence and not on its quantity.
He lastly referred to PLD 2002 SC 62 (Wahid v. State), in this case, it was held that when the Court is convinced that a witness has seen the incident and his statement is worthy of credence the conflicting opinion of the Doctor would neither negate nor outweigh nor nullify the evidentiary value of such statement.
6. We have carefully examined the evidence. The P.W-1 Jalaluddin in his deposition stated that out of ten dacoits, he only identified one dacoit whose name was Ibrahim and he specifically stated that accused Amir Bux and Muhammad Ramzan (present appellants) were not identified by him.
The P.W-2 Muhammad Aslam stated that he identified two dacoits, namely, Ali Gohar and Ibrahim but not mentioned the names of present appellants. The P.W-4 Rana Asif stated that he was posted as SIO at P.S. Ghotki and received the case papers for further investigation. In his deposition, he admitted that accused Amir Bux and Ramzan were already in custody and on 29.8.2006, he produced injured P.W/P.C. Niaz Ali along with accused Amir Bux and Ramzan (appellants) before 2nd Civil Judge/Judicial Magistrate Ghotki for identification of accused through P.C.Niaz Ali Pathan. He admitted in his cross-examination that P.C.Niaz Ali was also posted at P.S. Ghotki. The P.W-6 was the learned Judicial Magistrate who conducted the identification parade who admitted that P.C.Niaz Ali and accused were produced before him by SIO Rana Asif. He also produced Mashirnama of identification parade: It is clear that neither any description of dummies is mentioned nor their addresses or occupation nor any clue whether they were fellow prisoners or outsiders. The next P.W-8 who was Mashir of identification parade. He stated in his cross-examination that he did not remember as to what was height of persons who were mixed up for identification parade and he further deposed that he does not remember even on the second time at what serial number accused were standing in the row. The star witness in the matter was P.W.10 Niaz Ali on whose identification, the foundation of whole prosecution case laid down. In his examination-in-chief, he stated that he saw ten armed persons encircling the coach, but he did not identify any of the culprits. On 29.8.2006, he identified both appellants in the identification parade. In cross-examination, he deposed as under: It is correct that when accused were at P.S. I was called by SHO Qalab-e-Abbass and told me that these accused have been arrested by him in this crime. Accused were identified jointly along with 10/12 other dummies mixed with present accused. I was only person to reach Court for identification parade of accused".
7. The evidence of P.C.Niaz Ali has demolished the entire case of the prosecution and made the whole identification parade full of doubts and suspicions which leads us to a logical culmination that before identification parade, P.C. Niaz Ali had already seen both the appellants/accused. In order to ensure that identification parade was conducted fairly it becomes the duty of the prosecution to adopt such measures so that identifying witness may not see the accused after commission of crime till the identification parade is held immediately after the arrest of accused persons as early as possible. If role of accused was not described by the witness at identification parade, such type of identification looses its value and cannot be relied upon if prosecution witnesses had seen the accused before identification parade, such piece of evidence of identification parade can also not be relied upon. The identification at identification parade or in Court would be of no use unless role of each accused in crime is attributed at very outset.
Reference can be made to 2001 SCMR 424, 2007 SCMR 670 and 2008 SCMR 302.
8. Since the whole conviction is based on sole testimony of P.C. Niaz Ali who himself admitted that he was called by SHO Qalab-eAbbass in P.S. and told him that the appellants have been arrested by him in this crime which shows that P.0 Niaz Ali had already seen both the appellants/accused before identification parade. The prosecution has absolutely failed to establish that identifying witness had no occasion to see the accused after the commission of offence till holding of identification parade. We are also fortified by the dictum laid down by the honorable Supreme Court (supra) that absence of complete description of dummies at the test of identification parade without their address, their occupation and without any clue whether they were fellow prisoners or outsiders, admitted dissimilarity in height physique, features, complexion, appearance and dress of dummies and accused persons would render such exercise always open to serious doubts which errors have been committed by the prosecution in this case also. It is also an admitted fact that no details of identification parade was mentioned in the statement recorded under Section 342, Cr.P.C., while it was the duty of the trial Court to put question to accused persons on all incriminating facts coming in evidence enabling the accused to explain circumstances and where incriminating evidence not put to accused to obtain his explanation, such piece of evidence cannot be used against the accused persons to convict him. The case law referred to by the learned counsel for the appellant in connection with requirements for holding identification parade are quite relevant and germane to the facts and circumstances of the case, while, case law referred to by the learned APG are distinguishable.
9. As a result of above discussion, we have reached to a conclusion that the prosecution has failed to successfully prove its case against the appellants beyond all reasonable doubts. Consequently, this Criminal Jail Appeal No, D-172 of 2009 is allowed. The impugned conviction and punishments recorded in the impugned judgment dated 27.10.2009 in Special Case No, 07 of 2007 are set aside.
Both the appellants shall be set at liberty forthwith if not required to be detained in any other case.