Muhammad Hashim Khan Kakar, J.--We intend to decide captioned appeal, arising out of the judgment of Anti-terrorism Court, Naseerabad Division at Dear Murad Jamali, dated 9th January 2008.
2. Necessary facts, out of which the aforesaid appeal arise, are that FIR No, 98 of 2006, dated 17th May 2006, under Sections 302, 353, 404 read with Sections 147, 148, 149 and 34 of the PPC and Section 7 of the Anti-terrorism Act, 1997, at Police Station Dera Allah Yar, was recorded by SI Haleem Shah, on the statement of PW-7 Shah Nawaz, constable, against unknown persons, on the allegation of having committed qatl-e-amd of constables Noor Ahmed and Abdul Fateh on above date at about 12:15 a.m., at police post Nasrullah Lehri, within the jurisdiction of Police Station, Dera Allah Yar.
3. After completion of the investigation, challan was submitted against the appellants Muhammad Nawaz alias Manthar and Muhammad Ramzan. The Special Judge, Anti-terrorism Court, Naseerabad at Dera Murad Jamali, vide its judgment dated 9th January 2008, convicted and sentenced the aforesaid accused persons as under:
(i) For causing the murder of deceased Abdul Fateh, both the accused are convicted under Section 7 of the Anti-terrorism Act and Section 302(b) of the PPC for life imprisonment and imposed fine of Rs, 50,000/- each. In default they are to suffer (02) years more. The amount of fine if realized be handed over to legal heirs of deceased as compensation.
(ii)For causing the murder of deceased Noor Ahmed, both the accused are convicted under Section 7 of the Anti-terrorism Act and Section 302(b) of the PPC for life imprisonment and imposed fine of Rs, 50,000/- each. In default they are to suffer (02) years more. The amount of fine if realized be handed over to legal heirs of deceased as compensation.
(iii)For taking away the official Kalashnikov, both the accused persons are convicted under Section 404 of the PPC and awarded them sentenced for (03) years each (RI) arid imposed fine of Rs, 2000/-, in default they have further suffer for 03 months. All the sentences awarded to the convicts are to run-concurrently. Benefit of Section 382-B, Cr.P.C. is extended to the convicts.
4. We have heard learned counsel for the appellants as well as learned counsel for the State and have gone through the record with valuable assistance. It has been argued by learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and thus, this appeal warrants acceptance with a resultant acquittal of the appellants. As against that, learned counsel for the State has maintained that prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, the present appeal deserves dismissal.
5. After hearing learned counsel for the parties and having gone 'through the record, we have arrived at a confident conclusion that the prosecution had, indeed, failed to prove its case against the appellants beyond reasonable doubt. In this context, we have noticed that the complainant had not mentioned the name of any of the accused in the FIR, nor did he mention the descriptions/features of the accused persons therein. There are no two views 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 matters. It would be appropriate and advantageous to reproduce herein below the admitted features and basic facts in chronological order as to resolve the controversy regarding the guilt or innocence of the appellants:
(i) The incident took place on 17th May 2006 at about 12:15 a.m. in pitch dark, (ii)FIR does not figure the names as well as features/descriptions of any of the culprits, rather the sole eye-witness stated that he could identify the culprits on appearance, as he saw them in the light of a bulb.
(iii)The place of occurrence, allegedly, pointed out by the appellants, was already in the knowledge of the police, (iv)As per contention of the sole eye-witness, at the time of incident, the culprits were with muffled faces.
The, supervisory officer DSP/SDPO (PW-10) and identifier (PW-7) have contradicted each other regarding the timing of holding identification parade.
(vi) Joint identification parade of the appellants has been held, that too under the supervision of a DSP/SDPO.
(vii) Identification parade was held on 22nd June 2006, while the identifier Shah Nawaz was accompanying the SHO at the time of arrest of the appellants on 21st May 2006.
(viii) The alleged electric connection from nearby village and presence of electric bulb at police Chowki has not been shown in the site-plan'Ex.P/8-A.
(ix)The occurrence, allegedly, took place on 17th May 2006, whereas the appellants were arrested on 21st May 2006 from a Jungle of Goth Murad Ali and, surprisingly, they were wearing the clothes, allegedly, stained with blood of the deceased.
(x) On 21st May 2006 at the time of arrest, both the appellants had made disclosure about the murder of constables Noor Ahmed and Abdul Fateh.
(xi) The alleged crime weapon was recovered on 4th June 2006 from an open place of Jungle Goth Murad Ali on the alleged disclosure and pointation of accused Muhammad Nawaz, but the same was dispatched to Forensic Science Laboratory, Quetta on 29th June 2007, after an unexplained delay of about 25 days, that too, together with the crime empties.
6. We have re-examined the evidence on record with the assistance of learned counsel for the parties. The connection of the appellants with the crime in question is sought to be established by the sole evidence of alleged eye-witness, viz, PW-7 Shah Nawaz, constable and subsequent identification of the appellants during course of an identification parade held on 22nd May 2006 at Police Station Dera Allah Yar under the supervision of PW-10 Irfan Bashir, DSP/SDPO.
7. As has been observed above, the prosecution case mainly rests upon the sole evidence of PW-7 Shah Nawaz, constable, who deposed that on 17th May 2006, at about 12:15 a.m., after handing over the charge of the post of Nasrullah Lehri to Constable Noor Ahmed, he went for call of nature in a nearby water channel. In the meanwhile, six persons came on two motorcycles and startedliring.
Since he was empty handed, therefore, he remained silent. After firing, the culprits took away the official Kalashnikov and fled away towards north. He further stated that he recognized the faces of the culprits in the light of an electric bulb and can identify them on appearance. Later on, he rushed towards the post, where he saw the dead bodies of the deceased constables.
Subsequently, on arrest of the appellants, their joint identification parade was held on 22nd June 2006 through PW-7. Under the supervision of PW-10 Irfan Bashir. DSP/SDPO at concerned Police Station.
8. Admittedly, the appellants were not known to the complainant Shah Nawaz previously, nor he had given the features or descriptions of the culprits in the FIR. The record reveals that the SHO adopted a novel procedure, unwarranted in law, while holding the identification parade of the appellants inside the Police Station. We have gone through the Code of Criminal Procedure and High Court Rules and Orders and could not find any provision of law, which may authorize the Investigating Officer to hold an identification parade of an unknown accused inside the Police Station during his detention in a police lock-up, that too under the supervisipn of a DSP of the concerned Police Station. As settled principle' of law, it is the duty and obligation of the investigating agency that precautionary measures, necessary to conceal the identity of the accused, are taken. It is paramount duty of the police to ensure that the accused should not be seen by the witness prior to the identification parade. In absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses. In this context reliance can be placed on a judgment of "Muhammad Iqbal v. The State", 2010 YLR 258 (Lahore), wherein it has been observed as under: "Investigating Officer and the Judicial Magistrate had not bothered to initiate any precautionary measures ensuring that identity of accused was not leaked out--Report of the Judicial Magistrate was silent on the question whether he had ensured that the dummies, who were made to mix up with accused persons, had any similarities with accused on the point of their colour, height or other features of the body--Nothing was on record to suggest the basis on which the witnesses had identified accused persons, whether by their colon , height, ages or even by their clothes--Mere saying that witness identified such and such person as accused without mentioning their specific role, could hardly be considered to be piece of evidence to connect accused with commission of crime, which ultimately could entail capital punishment."
9. There is no cavil to the proposition 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 both the appellants, viz, Muhammad Ramzan and Muhammad Nawaz was held jointly, which is not warranted under the law. In this regard, reliance can be placed on a judgment of 'Nazir Ahmed v. Muhammad Iqbal", 2011 SCM R 527, wherein it has been held by Hon'ble Supreme Court in the following manner: It is settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created. In the case in hand identification parade was held jointly of all the accused, therefore, learned High Court was justified to set aside the conviction of the respondent which is in consonance as law laid down in Lal Pasand's case."
10.It has also to be seen that the alleged identification parade was held in the direct supervision of DSP of the same Police Station in spite of the fact that near Police Station, Court of Judicial Magistrate was situated and they were present as admitted by the PWs before the trial Court. We failed to understand as to what were the circumstances, which drove the SHO to adopt a self- styled procedure of identification parade inside the Police Station in absence of the Judicial Magistrate, over and above the law.
11.We have also noticed that roles of the accused persons were not described by the witness Shah.
Nawaz at the time of identification parade. Even his statement regarding identification parade was not recorded, which is always considered inherent defect, therefore, such identification parade lost its evidentiary value and cannot be relied upon. In this regard, reliance can be placed on a judgment Mehmood Ahmed u. The State', 1995 SCM R 127, wherein it has been held by Hon'ble Supreme Court as under: It is, therefore, clear that the proceedings of the identification parade where the appellants were picked up without describing the roles played by them in the crime suffer from illegality and infirmity rendering it completely unreliable having no evidentiary value."
12.It is also an admitted feature of the case that prior to alleged identification parade of the appellants on 22nd May 2006, they were seen by PW-7 Shah Nawaz on 21st May 2006 at the time of their arrest, as he was also accompanying SHO Khawand Bakhsh, PW-12. In such circumstances, the identification parade becomes doubtful and cannot be relied upon. In this regard, we are fortified by a judgment in case of "Sohni v. The State" PLJ 1974 Cr.C. (Lah) 208, wherein it has been observed as under: "(e) Identification--Murder case--Identification of accused by holding of parades--Accused persons objecting, before holding of parades, that they had already been shown to witnesses-- Witnesses also failing to identify all accused persons with perfect accuracy--Identification of accused persons by holdings of parades, in such circumstances, becomes doubtful and cannot be relied upon--Conviction of accused on such identification evidence, held, is not sustainable."
13, Admittedly, PW-7 Shah Nawaz did not know the appellants before the occurrence and he had not given the descriptions of the appellants prior to the identification and the identification parade was also not hold in accordance with law, therefore, subsequent identification in the Court by the witness is also of no avail.
14.It is admitted feature of the case that the appellants are completely strangers to the PW Shah Nawaz, therefore, in the absence of descriptions in the contents of FIR, the benefit of doubt be given to the accused persons, coupled with the fact that according to the prosecution own showing, the PW Shah Nawaz had opportunity to see them prior to their identification parade at the time of their arrest. The identification of the appellants at the time of incident from a distance of about 100 feet, during dark hours, also does not appeal to reasons and the claim of PW-7 regarding the identification of the appellants during pitch dark is not only a tall claim, but tall enough that it creates serious doubt.
15.Similarly, PWs have stated that the appellants, during the course of interrogation, disclosed that they had committed the murder of Noor Ahmed and Abdul Fateh and would show the place of incident. The confession of the appellants regarding the murder of the deceased persons is inadmissible under Article 38 of the Qanun-e-Shahadat Order, 1984, therefore, it has to be excluded from consideration, which is, accordingly, done. Likewise, the pointation of the place of occurrence by the appellants is also of no avail to the prosecution, as the same was already in the knowledge of police and it does not come within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984.
18. As regard the recoveries, allegedly, effected from the appellants at the time of their arrest and during interrogation in the present case, we are not ready to believe that the appellants be so foolish as to keep their weapons and clothes stained with the blood of the deceased for so long as to facilitate their recovery from them for subsequent use as evidence against them.
17. Moreover, much emphasize has been laid on the positive report of Forensic Science Laboratory Ex.P/12-F, whereby the Kalashinkov, recovered at the instance of appellant Muhammad Nawaz, has been found to be wedded with the empties, secured from the place of occurrence. This piece of evidence, apparently, appeals to reasons; however, when examined minutely, it also loses it intrinsic value. According to the prosecution version, empties were secured on 17th May 2006, vide memos. Ex.P/2-C and Ex.P/2-E, whereas the Kalashnikov Article 34 has been recovered on 4th June 2006 vide recovery memo. Ex.P/2'J, Admittedly, the Kalashnikov and empties were sent to the Forensic Science Laboratory on 29th June 2006 as is evident from the report Ex.P/12-F. There is no, explanation as to why the empties, secured on 17th May 2006, were not sent to the Forensic Science Laboratory till the recovery of Kalashnikov effected on 4th June 2006. The possibility of wedding the empties with the Kalashnikov, recovered on 4th June 2006, cannot be ruled out. In case of 'Muhammad Younas Khan u. The State", 1992 SCM R 545, the Hon'ble Supreme Court refused to place reliance upon positive report of fire-arm expert, when crime weapon and an empty were sent together. The relevant observations are reproduced herein below: "So far as where the recovery of revolver P. 5 is concerned at the instance of the appellant, which matched with the crime empty P.4 recovered from the spot, both the crime empty and the revolver were sent after both the recoveries were made to the office of the Forensic Science Laboratory, which destroys its incriminatory value."
18. In the light of above discussed diverse factors no implicit reliance could be placed upon the ocular testimony furnished by PW-7 Shah Nawaz and other circumstantial evidence produced by the prosecution to maintain the conviction.
For the forgoing reasons, we are inclined to allow the instant appeal and set aside the judgment dated 9th January 2008, passed by the Special Judge, Anti-terrorism Court, Naseerabad, at Dera Murad Jamali. Resultantly, appellants Muhammad Nawaz alias Manthar alias Mithoo and Muhammad Ramzan are acquitted of the charge, who are directed to be set at liberty forthwith, if not required in any other case.