GHAZANFAR ALI @ PAPPU and anothers vs THE STATE

TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Criminal Appeal No. 55 of 2009 filed by Ghazanfar Ali @ Pappu and Criminal Appeal No. 56 of 2009 filed by Asghar Ali as they arise out of the same judgment dated 9-10-2008 vide which a learned Division Bench of the Lahore High Court dismissed their appeals and affirmed the judgment of the learned Additional Sessions Judge, Lahore/trial Court dated 8-3-2003. Vide the latter judgment the learned trial Court having tried, the appellants along with five others (in The case registered vide FIR. No.134 of 2001 dated 6- 12-2001 under sections 302/396/397, P.P.C. And 7 of the Anti-Terrorism Act at Police Station Yakki Gate, Lahore) for committing robbery and murder of Muhammad Umer Iqbal during the said transaction, convicted the appellants Asghar Ali and Ghazanfar Ali alia Pappu along with Riaz Ahmed Virk co-accused and others in the following terms:-- '

(i) Convicted under section 302(b)/34, P.P.C. And sentenced to life imprisonment each and to pay an amount of one lac each. In default thereof to further undergo RI for six months each.

(ii) Convicted under section 392, P.P.C. And sentenced to undergo 10 year's RI each and to pay a fine of Rs. 50,000 each. In default thereof to further undergo RI for six months each.

2. Co-convicts Khadim Hussain, Rasheed Ahmed, Nazeer Hussain and Saifullah were convicted under section 411, P.P.C. And sentenced to three years' RI as also to pay compensation amount to the tune of Rs.50,000 each in default whereof to undergo RI for six month.

3. The prosecution story as given in the F.I.R. Registered on the statement of Muhammad Obadiah Iqbal P.W.1, brother of the deceased Muhammad Umer Iqbal briefly stated is that the complainant was running a business under the name and style of Punjab International Money Exchange at Japan Centre, Cooper Road, Lahore; that he received information that his brother Muhammad Umer Iqbal, who at about 6-45 a.m. Along with his employees Muhammad Hanif P.W.2 and Muhammad Naeem P.W.3 had left his house on foot, when reached at the turn of Nadari wali Street inside Yakki Gate, three persons emerged and resorted to firing. One of the fires hit his brother on the left side of chest whereas the second fire hit his left back. One of the assailants gave a pistol butt blow at the head of Muhammad Hanif P.W.2 and injured him. It was further alleged that they robbed his brother's all the money that he was carrying and undertook to furnish the detail of the amount later.

4. None was named as accused in the F.I.R. However, during investigation the police initially arrested servant of deceased Muhammad Umer Iqbal namely Khadim Hussain accused and on his probe arrested the remaining accused and recovered amounts from different accused totaling Rs.43,14,500 out, of total amount of Rs.87,00,000. Following is the breakup of the recoveries of the looted amount affected from different accused during investigation:-- Sr.No.Name of convict- appellantAmount(s) recovered with Mer. Site plan/place of recovery duly attested by the P.Ws. before P.W.20 Shah Nawaz, S.0/L 0 P.I. Stamp/ Strip present or not.

1 2 3 4 5 1 Khadim Hussain Rs. 3,39,000 (Exh.PE)On 61.2002 FROM A RESIDENTIAL ROOM SITUATED AT Ijaz park.

Link Road, Model Town Lahore. P.W.6 Muhammad Hashim, Intizar Hussain (given up P.W.)Three bundles of Rs. 1,00,000 each containing P.I. strip.

2 Muhammad Rasheed Rs. 1,00,000 9 Exh.pgOn 6-1-2002 from a shop situated at Mian Meer Lahore. P.W.3 Tariq (sic.) Ilyas kissi S,I. and Javed Siddiqui S,I. on 15-1- 2002 from a HOUSE SITUATED AT raja Jang,Ten packets of Rs, 10,000 each containing P.L. strip P.W.18 Atif Mehmood and Qasim Khan (given up P.W.)

3 Naazir Hussain Rs. 1,09,500 (Exh.PS)

Rs. 21,000 (Exh.

PE)On 10-1-2002 from his bank account at UBL from had (sic.)

Branch Farooq Abad Branch Sheikhupura.

Qasim Khan and P.W.12 Annes-ur- Rehman Bank Manager. On 19-1-2002 from first house situated at Mouza Kujar District Sheikhupura P.W.18 Atif Mehmood and Asif khan (given up P.W.)Without Strip Without strip

4. Saif Ullah Td/60.000 (Exh.P.W.)On 10-1-2002 from his house situated at Mouza Kujar District Sheikhupura.

P.W.18 Atif Mehmood and Qasim Khan (given up P.W.)Without Strip

5. Riaz Virk i. Rs. 3,19,000 (Exh.P.W.) ii. Rs. 655,000 (Exh. PAA)

Pistol .30 Bore (Exh.P.W.) On 19-1-2002 in police custody from his bank account at HBL Samanabad Branch Lahore.

P.W.18 Atif Mehmood Qasim Khan (given up P.W.) and P.W.11 MuhammadWithout Strip Afzaal Sub Manager of HBL On 18-1-2002 FROM HIS HOUSE SITUATED AT Mauza Sucha Soda Sheikhupura.

Qasim Khan (given up P.W.)

On the same date also got recovered pistol .30 bore from the aforesaid have.

Six Packet of Rs.

100,000 each containing P.I.

Strip

6. Asghar Ali i. Rs. 16,00,000 (Exh.P.W.) ii. Rs. 60,000 (Exh.PQ/1) On 21-1-2002 in police custody from his house situated at Sacha Soda,District Sheikhupura.

P.W. 15 Zulfiqar(sic), Constable and Obaid Ullah (given up P.W.)16 Pakets of Rs.

1,00,000 each containing P.I.

Strip. Pistol 30 bore along with four live bullets petitioner -10/1-4 (Exh.PP)On the same date also got recovered pistol .30 bore from the aforesaidn house.Without Strip

7. Ghanzafar Ali i. Rs.190,000 (Exh.PK) i. Pistol .30 bore Exh. PZOn 25-1-2002 in police custody from his house at Mouza Kujar, District Sheikhupura P.W. 18 Atif Mehmood and Qasim KhanOne packet of Rs. 1,00,000 Containing P.I.

Strip (given up P.W.) on the same date also got recovered from the aforesaid house.

5. Two empties were also recovered from the spot on the day of occurrence i.e. 6-12-2001, the same were sent to the Forensic Science Expert on 12-1-2002. Asghar Ali appellant was arrested on 6-1- 2002 and he led to the recovery of pistol on 24-1-2002, which was sent to the Ballistic Science Expert on 28-1-2002. The report received from the Forensic Science Laboratory (Exh.PHH) was positive.

6. During trial the prosecution examined 20 witnesses including the Doctor and the Investigating Officer. Appellants/accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to suspicion.

7. Learned counsel for the appellant Ghazanfar Ali (In Cr. A.55 of 2009) submitted that it was an unseen occurrence and a case of no evidence; that admittedly the accused were not known to the so called eye-witnesses (P.W.2 Muhammad Hanif and P.W.3 Muhammad Naeem) and they were implicated on the basis of identification parade which does not inspire confidence as the accused were shown by the police during arrest to the prosecution witnesses and none of the witnesses who allegedly identified the accused appellants either gave a description of their features in their statements under section 161, Cr.P.C. Nor specified their respective roles during the occurrence. He further contended that it is in evidence that it was a joint identification which even otherwise has been deprecated by this Court; that merely because Muhammad Hanif P.W.2 had one injury on his head by itself would not make him credible as the said injury could be self inflicted. The evidence of recovery of the allegedly looted amount, according to learned counsel, would be of no avail as admittedly during investigation neither the numbers of the currency notes which were looted by the assailants were given to the Investigating Officer nor there is any other mark of identification to ascertain that the amount in question was actually the amount looted. He lastly submitted that if the Court is not persuaded to hold that the case is not free from doubt, the appellants' conviction under section 302, P.P.C. Be set aside as was no mens rea and let the conviction under section 392, P.P.C. Remain intact. In support of the submissions made, learned Ansel relied on Government of Sindh Sobharo (1993 SCM R 585), Asghar Ali @ Sabah v. State (1992 SCM R 2088), Nazir Ahmed v.

Muhammad Iqbal 2011 SCM R 527 and Lal Pasand v. State PLD 1981 SC 142.

8. Learned counsel for the appellant Asghar Ali adopted the arguments of learned counsel for Ghazanfar Ali @ Pappu and submitted that the prosecution case qua the appellant Asghar Ali is not free from doubt and he merits acquittal.

9. Learned Additional Prosecutor-General defended the impugned judgment by submitting that the prosecution case is based on ocular account furnished by two witnesses namely P.W.2 Muhammad Hanif and P.W.3 Muhammad Naeem with whom admittedly appellants had no enmity nor this was raised during cross-examination; that one of the eyewitnesses namely Muhammad Hanif is an injured witness and there is nothing on record to indicate that the injury suffered by him on head was self inflicted; that the ocular account is corroborated by the recovery of the looted amount (Rs. 43,14,500), the recovery of pistol from Asghar Ali appellant and recovery of two empties from the spot which matched with the pistol recovered in terms of the positive report submitted by the Forensic Science Laboratory. He contended that a bare reading of the testimony of the Investigating Officer P.W.20 Shah Nawaz S.I. Would show that the investigation was conducted fairly; that at no stage the accused attributed any enmity to the said Investigating Officer either before trial or during trial and that the prosecution having proved its case beyond reasonable doubt, no case for interference is made out.

10. We have heard learned counsel for the appellants, learned Additional Prosecutor-General and have perused the evidence on record.

11. Admittedly none was named as accused in the F.I.R. And the accused were not known to the witnesses prior to the occurrence. The prosecution case is based on the following set of evidence:- -

(1) Ocular account

(2) The identification parade,

(3) Recovery of a sum of Rs. 43,14,500,

(4) The evidence of recovery of pistol and empties which as per the report of the Forensic Science Expert Exh.PHH were found to be wedded with the pistol recovered.

12. The ocular account was furnished by two witnesses i.e. P.W.2 Muhammad Hannif and P.W.3 Muhammad Naeem. Both of them candidly narrated the occurrence. They are natural witnesses as they along with Umer Iqbal were going to their place of business (Punjab International Money Exchange) and they had no enmity with any of the accused to falsely depose against them. They identified the accused during identification parade. Both of them were subjected to lengthy cross- examination but they remained consistent on all material particulars of the prosecution case.

Nothing was suggested to them to warrant an inference that they were deposing falsely on account of some enmity with the accused. One of them namely P.W.2 Muhammad Hanif received an injury on his head and his presence at the spot could not be doubted. The argument of learned counsel for the appellant that the injury received by him was self suffered is of no avail to defense as no suggestion was made to Doctor Amanullah Khan P.W.9 who furnished the medical evidence qua his injury that it was a self inflicted injury. Both these witnesses (P.Ws. 2 and 3) stated that in the morning of the fateful day, they had taken a sum of Rs.87,00,000 from the house of Muhammad Hanif P.W.2 and were going on foot to Nadariwali Street because their vehicle was parked near Nawaz Sharif Hospital and when they reached at the turn of the street, three persons resorted to firing at them; that Umer Iqbal having been hit by the fire, fell on the ground where after the accused, took off the belt of currency notes from Umer Iqbal. They not only gave a butt blow on the head of Muhammad Hanif P.W.2 but also snatched a bag of currency notes from him as well. It was a daylight occurrence, the accused must have taken some time to complete their criminal mission and the witnesses had enough close proximity to remember them so as to identify them later. Both the witnesses identified the accused during identification parade and in Court during trial. The identification parade was held within a week of arrest of the accused and in the preceding week they remained in judicial lockup. It is in evidence that each one of the witnesses identified the accused separately under the supervision of a Magistrate as they were called in jail premises one by one and they were asked to identify the accused who stood in line of 21 persons. The Magistrate who supervised the identification parade appeared as P. W.14 admits that during the identification parade, an objection was raised by the accused that they had been shown to the prosecution witnesses at the police station and their photographs were also prepared. This is the usual defense plea an accused takes to challenge the veracity of the identification parade but when such a plea is taken, the Court has to examine Whether it is bona fide; whether there is any other material circumstance to support it and whether the testimony of the witnesses who identified the accused inspires confidence and is corroborated by other evidence led. In the instant case, we find that the fore- referred plea remained merely an allegation and was not supported by any material on record. In this regard it would be pertinent to examine how these appellants were made accused.

The evidence of their arrest was furnished by P.W.20 Shah Nawaz. According to him, during interrogation of co-accused Rasheed (who led to the recovery of Rs.100,000, which was his share of the looted amount), he arrested five accused including Asghar Ali and Ghazanfar Ali appellants on 6-1-2002. Thereafter he states "on the next day i.e. 7-1-2002, I produced all the accused before Ilaqa Magistrate and I obtained permission for identification parade of Riaz, Ghazanfar and Asghar accused. I also obtained their judicial remand for purposes of identification parade. I obtained the physical remand of the other four accused for further investigation. On 8-1-2002 1 interrogated Naazir Hussain accused. On 10-1-2002 accused Naazir Hussain was again interrogated, who disclosed that out of his share of Rs.200,000 he had deposited Rs.120,000 in UBL Farooqabad Branch. He lead while in custody to U.B.L. Farooq Abad, Branch from where Naazir Hussain withdrew Rs.109,500 P-14 which was taken into possession vide recovery memo Exh. PS. P.

W.Anees-ur-Rehman Bank Manager produced Bank statement of his account Exh. PL/ 1 which was taken into possession vide memo Exh.PL/1. I also prepared the site plan of the place of recovery Exh.PS/1. I recorded the statements of P. W. Atif Butt and Qasim Khan and Anees-ur-Rehman manager." The afore-referred sequence of various stages of investigation show that the Investigating Officer did not rope in the appellants at the asking of anyone or with some pre- conceived notion of their involvement in the alleged offence but probed the matter, interrogated some accused, made further arrests and on their pointation made recoveries of the looted money (detail of which is given in para 4 above) and weapon of offence. The arrest of the appellants thus was the result of incriminating evidence collected through elaborate investigation. Both the appellants (after their arrest on 6-1-2002) were sent to judicial lockup on 7-1-2002 and on 12-1- 2002, the identification parade was held in the said lockup/jail premises. There is nothing in evidence to indicate that they were at the police station where they were shown to the witnesses or their photographs were taken. Even the accused while making such a bald allegation did not specify the time, date and place when they were shown to the witnesses either when they made this allegation before Magistrate who supervised the identification parade or in their statement under section 342, Cr.P.C. During trial. The evidence of identification therefore, in the afore-referred circumstances inspires confidence. The ocular account is corroborated by the recovery of a sum of Rs.1,66,000, the share amount of Asghar Ali appellant, which was taken into' possession vide memo Dch.P11/1-16 and Exh.P12/1-60 from the latter's house. Similarly on 25-1-2002 Ghazanfar Ali appellant led to the recovery of Rs.1,90,000, his share from the amount in question from his house. He also led to the recovery of .30 bore pistol which was taken into possession from his house vide memo Exh.PZ/1. The empties recovered from the spot were wedded with the pistol recovered from Ghazzanfar Ali appellant as per report of the Forensic Science Expert (Exh.PHH). The report of the Forensic Science Expert inspires confidence as despite a lengthy cross-examination to which P.W.20 was subjected, nothing was suggested to him to indicate that the recovered articles were in any manner tampered with or manipulated to procure positive report from the said Expert.

13. Even otherwise the holding of identifieation parade is not mandatory and it is merely a corroborative piece of evidence. If the statement of a witness qua the identity of an accused even in Court inspires confidence, if he is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, the absence of holding of identification parade would not be fatal to the prosecution. In Harbajan Singh v. State of Jammu and Kashmir ((1-975) 4 Supreme Court Cases 480), the Court upheld the conviction where no identification parade had been held and observed that the failure to hold identification parade would not be fatal in cases where enough corroborative and conclusive evidence was available. A similar view was taken in Jadunath Singh v. State of U.P. ((1970) 3 Supreme Court Cases 518).

14. InMuhammad Asghar and others v. State (NLR 2004 SCJ 387) precisely similar plea was taken by the accused that they had been shown to prosecution witness and their photographs were taken.

The Court repelled the argument as follows:-- "The object of identification parade is to ascertain the alleged involvement of the accused in a crime. Identification parade by itself is not a substantive evidence, but only corroboratory in nature. Therefore, the superior Courts have held that the identification parade is not a legal requirement. All depends upon the eye-witnesses, whose' testimony shall be scrutinized by trial Court, to record a positive finding to the effect that the accused had committed or not committed said crime. The testimony of a witness involving the accused in a commission of crime, when the witness had not seen him earlier nor he was a set-up witness nor was inspired to speak against accused for any reason including the financial benefits nor had any previous enmity or differences with the accused, may be believed unless his presence at the spot is negated by the testimony available on record."

15. In Ram Nath Mahto v. State of Bihar ((1996) 8 Supreme Court Cases 630) the witness had correctly identified the accused during test identification parade but could not identify him correctly in Court but the Supreme Court did not interfere with the concurrent findings of conviction as the Trial Court had made observation about the demeanor of the witness that he was frightened and confused and that the evidence otherwise led was credible enough to sustain conviction.

16. The recording and appreciation of evidence is primarily the function of the trial Court which has duly been concurred by the learned High Court. The trial Court which had the benefit of observing the demeanor of the witnesses, after assessing the remaining corroborative evidence found them worthy of reliance by observing as follows:-- "57. The witnesses have successfully stood the test of lengthy cross-examination and nothing damaging to their veracity and integrity could be elicited in their statements and cross- examinations. Statements made by them are in consonance with probabilities and materially fit in with the rest of the evidence, except for minor immaterial contradictions and discrepancies. The learned defence counsel has not been able to point out any major discrepancy, material contradiction and dishonest improvement in their statement. I find from the record that the statements of the P. Ws. Were recorded after about 7 to 14 months of the occurrence. Therefore, some minor discrepancies are quite natural. Their evidence is consistent and confidence inspiring.

The eye-witnesses stated at the trial only what they actually saw.

58. I find that it is a case of promptly lodging F.I.R. Which contains the name of the deceased, number of the accused, firearm weapons carried and name of the eye-witnesses. The accused were not known to the eye-witnesses prior to the occurrence, therefore, their names could not be mentioned in complaint Exh.PA nor they were known to the complainant. I am satisfied that all the P. Ws. Are absolutely dependable and statements made by them are of such standard that the same can be safely accepted and acted upon. The statements of the eyewitnesses are further corroborated by medical evidence and the recoveries."

17. In upholding the trial Court's judgment, the learned High Court not only independently assessed the evidence but gave its own reasons and has relied upon the precedent case-law as well. This concurrent assessm ent of evidence is not ordinarily interfered with by this Court unless there are exceptional circumstances to do so. In Clarke v.Edinburgh Tramways Co (1919 (SC) HL 35, 35) Lord Shaw was highlighting the importance of trial Judge's assessment when he observed:-- "When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not."

18. In Muhammad Abid v. State (2011 SCM R 1148) this Court did not interfere with the concurrent assessm ent of evidence and observed as follows:-- "11. The trial Court as well as the High Court have believed the ocular evidence in the case which found confidence inspiring and there is no reasons for us to disagree with the appreciation of the evidence by the two Courts below."

19. For what has been discussed above, we do not find any merit in these appeals, which are dismissed.