' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose Of Criminal Appeal No.19-J of 2009 titled as "Azam versus The State" filed by Azam, appellant against his conviction and sentence and Murder Reference No.39 of 2009 titled as "The State versus Azam" submitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Azam, appellant as both these matters have arisen out of the same judgment dated 23-12-2008 passed by the learned Addl Sessions Judge, Bhalwal in case F.I.R. No.292 dated 23-12-2003, offences under sections 302, 324, 186, 353, 402, 399, P.P.C. (Sections 148 and 149, P.P.C. Were added in charge sheet) read with section 7 of the Anti-Terrorism Act, 1997 (no charge under section 7 of the Anti-Terrorism Act, 1997 was framed), registered at Police Station Midh Ranjha District Sargodha, whereby, Azam, appellant was convicted under section 302(b)/ 149, P.P.C. And sentenced to death with the direction to pay Rs.2,00,000 (rupees two lac), as compensation to the legal heirs of deceased Sher Muhammad constable, as envisaged under section 544-A of the Code of Criminal Procedure and in default thereof, the same was directed to be recovered as arrears of land revenue. The learned trial Court also convicted Azam (appellant) and Jafar (co-convict) under sections 324/149, P.P.C. And sentenced them to imprisonment for five years with fine of Rs.5000 each as fine and in default thereof, to further undergo simple imprisonment for six months each. They were further convicted under section 353/ 186, P.P.C. And were sentenced to imprisonment for two years each. They were also convicted under section 148, P.P.C. And were sentenced to imprisonment for two years each.
They were, however, acquitted from the charges under sections 399/402, P.P.C. The charge under section 302(b), P.P.C. Against Jafar, _ co-convict was dropped because of compromise of Jafar, co-convict with the legal heirs of the deceased. All the sentences of imprisonment were ordered to run concurrently.
' The learned trial Court, however, acquitted Mumtaz and Zafar lqbal, co-accused of the appellant.
' It is pertinent to mention here that Jafar, co-convict of the appellant has not filed any appeal against his conviction and sentence.
2. Brief facts of the case, as disclosed by Muhammad Ijaz Ahmad S.I/S.H.O., complainant (P.W.11) in his application (Exh-PBB), on the basis of which the formal F.I.R. (Exh-PEE) was registered, are that on 23-12-2003 at about 6-40 p.m., he (complainant) received a telephonic information from Bakhtiar Ranjha that six persons along with two motorcycles were present at the bridge of canal Naseerpur Kalan for committing dacoity. Upon which, he (complainant) along with Zulfiqar Ali, A.S.- I. (P.W.12), Khizer Hayat A.S.-I. (given up P.W.), Shaukat Hayat, A.S.-I. (P.W.9), Muhammad Nawaz 795/C (P.W.10), Khaliq Dad 458/C (given up P.W.), Slier Muhammad 1779/C (deceased), Hameed Ali 1453/C (P.W.-4). They i.e. Zulfiqar Ali, A.S.-I. (P.W.12), Khizer Hayat A.S.-I. (given up P.W.3) Shaukat Hayat, A.S.-I. (P.W.9), Muhammad Nawaz 795/C (P.W.10), Khaliq Dad 458/C (given up P.W.), Sher Muhammad 1779/C (deceased), Hameed Ali 1453/C (P.W.4) were given rifle Semiautomatic along with fifty cartridges, official revolver, rifle 9 MM along with fifty cartridges, rifle SMG along with eighty cartridges, rifle 3-G along with eighty cartridges, 9 MM rifle along with fifty cartridges, rifle Semi Automatic along with seventy cartridges, respectively from Malkhana and went to the bridge of canal Naseerpur Kalan on official vehicle bearing Registration No.6728/SGH being driven by Jalil Tariq 1660/C. He (complainant) also asked the S.H.O. Police Station Maila through wireless to reach at the spot. At about 7-20 p.m., he (complainant) along with his companions reached near the bridge of canal Naseerpur Kalan and found six persons on two motorcycles, who, on seeing the police vehicle, sat on motorcycles. Four persons, out of whom, one was of young age having average physique, average height and was wearing white Shalwar Qameez, second was a young man of dark complexion having average height with average physique and was wearing white Shalwar Qameez, third was a young man of average height and average physique wearing white Shalwar Qameez and fourth was a young man of average physique and height wearing grey Shalwar Qameez, sat on a motorcycle bearing Registration No.LOW-3568 Yahama. They (complainant party) saw the above said accused persons in the light of their vehicle. The other two persons armed with firearms sat on motorcycle and fled away towards north to Raheempur. He (complainant) along with his companions chased Motorcycle No.LOW-3568. When they (accused persons) reached at the bank of canal at a distance of one kilometer, they threw the motorcycle and started firing at the police party from a close range. Upon which, he (complainant) along with his companions also retaliated with firing. Sher Muhammad 1779/C (deceased) came in front of the light of vehicle, upon which, the person who was wearing grey clothes made a burst with Kalashnikov which landed on the head of Sher Muhammad 1779/C (deceased) who fell down and succumbed to the injuries. The accused persons while taking advantage of slope of canal bank ran, upon which, he (complainant) deputed Shaukat Hayat, A.S.-I. (P.W.9) and the driver of the vehicle near the dead body and followed the' accused persons along with other police officials.
When they (complainant party) reached at a distance of 5/6 acres, the accused persons again started firing at them. They also resorted to firing. The accused persons while taking the advantage of darkness, fled away from the spot. Meanwhile, S.H.O. Police Station Maila also reached there.
They took into possession the motorcycle.
3. Azam (appellant) was arrested in some other case i.e. F.I.R. No.95 dated 24-3-2004 registered under section 13 of the Arms Ordinance, 1965 and rifle (P-27) along with two hundred live bullets (P- 28/1-200) was recovered from his possession. He was formally arrested in this case on 15-5-2004 by Muhammad Shamoon, S.I. (P.W.16) who, took into possession Kalashnikov (P-27) along with two hundred live bullets (P-28/1-200) on' 20-5-2004 vide recovery memo Exh-PZ. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the' Code of Criminal Procedure, 1898 framed charge against the appellant, his co-convict namely, Jafar and his co-accused namely, Mumtaz and Zafar Iqbal (since acquitted) on 11-12-2006, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced eighteen witnesses, during the trial. Shaukat Hayat, A.S.-I. (P.W.9), Muhammad Nawaz, 795/C (P.W.10), Muhammad ' (Ijaz Ahmad Qureshi, complainant (P.W.11) and Zulfigar Ahmad, A. S -I. (P. W.12) furnished the ocular account of the case.
Muhammad Ijaz Ahmad Qureshi, complainant (P.W.11) is also one of the investigating officers of the case. Muhammad Nawaz 795/C (P.W.10) is also the witness of recovery of Kalashnikov (P-27) along with two hundred live bullets (P-28/1-200) allegedly recovered at the instance of Azam (appellant).
' The medical evidence was furnished by Dr. Muhammad Azam (P.W.1), who conducted the post- mortem examination on the dead body of Sher Muhammad, constable (deceased).
' Hafiz Ahmad Tariq, Special Judicial Magistrate (P.W.13) supervised the Identification parade of the appellant. Muhammad Shamoon S.-I. (P.W.16) also was an Investigating Officer of this case.
Muhammad Yousaf (P.W.6) and Mehra (P.W.7) are the witnesses of circumstantial evidence. Mehra (P.W.7) is also the witness of extra judicial confession allegedly made by Muhammad Azam (appellant). Muhammad Akram, A.S.I. (P.W.2), Muhammad Arshad A.S.-I..(P.W.3), Abdul Hamid 1453/C (P.W.4), Muhammad Sher (P.W.8); Mukhtar Ahmad 814/C (P.W.14), Muhammad lqbal Khan Inspector (P.W.15), Muhammad Farooq, A.S.-I. (P.W.17) and Muhammad Hayat, Patwari (P.W.18) are the formal witnesses. The prosecution also produced documentary evidence in the shape of post- mortem report of the deceased along with pictorial diagram (Exh-PA & Exh-PA/1), inquest report of the deceased (Exh-PB), injury statement of the deceased (Exh-PC), recovery memo of .12 bore gun P-1 along with ten live cartridges P-2/1-10 allegedly recovered at the instance of Mumtaz Ahmad accused, since acquitted (Exh-PD), recovery memo of .12 bore gun P-3 along with eight live cartridges P-4/1-8 allegedly recovered at the instance of Zafar accused, since acquitted (Exh-PE), recovery memo of motorcycle bearing Registration No.LOF-3568 (Exh-PF), recovery memo of last worn clothes of the deceased (Exh-PG), recovery memo of blood-stained earth (Exh-PII), recovery memo of crime empties of Kalashnikov (Exh-PI), recovery memo of crime empties of - Kalashnikov (Exh-PJ), recovery memo of crime empties, magazine along with thirty live cartridges (Exh-PL), recovery memo of official vehicle bearing Registration No.SGH-6728 (Exh-PM), recovery memo of empties fired by the police party (Exh-PN), warrants of arrest of Azam (appellant) along with report (ExhPP), warrants of arrest of Imtiaz alias Balo along with report (Exh-PQ), warrants of arrest of Azhar along with report (Exh-PR), warrants of arrest of Mumtaz accused (since acquitted) along with report (ExhPS), warrants of arrest of Zafar accused (since acquitted) along with report (ExhPT), proclamation of Azhar along with report (Exh-PU), proclamation of Imtiaz alias Balo along with report (Exh-PV), proclamation of Azam (appellant) along with report (Exh-PW), proclamation of Jafar (co-convict) along with report (Exh-PX), recovery memo of last worn clothes of the deceased (Exh-PY), recovery memo of Kalashnikov allegedly recovered at the instance of the appellant (Exh- PZ), recovery memo of Kalashnikov allegedly recovered at the instance of Jafar, co-convict (Lxh- PAA), application for registration of the case (Exh-PBB), rough site plan of the place of murder of the deceased (Exh-PCC), rough site plan of the place where the accused were present for committing dacoity (Exh-PCC/1), application for issuance of proclamation of accused persons (Exh.PDD), application for identification parade of the appellant (Exh.PEE), warrants of arrests of Gahna accused along with report (Exh.PEE Exh-PEE/1), proceedings of identification parade of the appellant (Exh-PFF), proclamation of Gahna accused along with report (Exh. PFF & Exh-PFF/1), application for identification parade of Jafar, co-convict (Exh-PGG), proceedings of identification parade of Jafar co-convict (Exh-PHH), scaled site plan of the place of occurrence (Exh-PFF & Exh- PF/1), report of the Chemical Examiner (Exh-PGG), report of the Serologist (Exh-PHH), report of the Forensic Science Laboratory (ExhPII) and closed its evidence.
' The statements of the appellant, his co-convict and co-accused (since acquitted), under section 342 of the Code of Criminal Procedure, were recorded on 20-12-2008. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you?, the appellant replied as under:- "I have been involved in this case due to previous .Enmity. All the P.Ws. Are police officials and they have falsely deposed on the asking of their superior."
' The appellant neither opted to make statement on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against him nor produced any evidence in his defence.
5. The learned trial Court vide its judgment dated 23-12-2008, found the appellant and Jafar (co- convict) guilty, convicted and sentenced them as mentioned and detailed above.
6. Learned counsel for the appellant, in support of this appeal, contends that the appellant is not nominated in the F.I.R. And even his correct description is not mentioned therein; that in the F.1.R., it is the case of the prosecution that four persons rode on a motorcycle and tried to flee away from the spot which is not probable as four persons armed with firearms cannot ride on a motorcycle; that in the F.I.R., it is the case of the prosecution that the person who was wearing grey Shalwar Qameez made a burst with Kalashnikov which landed on the head of the deceased which is belied by the medical evidence as the doctor, who conducted postmortem examination on the dead body of Sher Muhammad (deceased), found only one entry wound on the head of the deceased, which is of the size of 1 1/2 cm x 1 cm and the same clearly suggests that it is not caused with a burst of Kalashnikov; that the identification parade of the appellant carries no value as no description of the appellant was given in the F.I.R. And all the three witnesses have simply identified the appellant without assigning any specific role to him; that the complainant did not participate in the proceedings of identification parade and while appearing before the learned trial Court he stated that the accused persons fired at the deceased; that the recovery of Kalashnikov at the instance of the appellant is immaterial in this case as no empty of Kalashnikov was sent to the Forensic Science Laboratory fox comparison; that so far as extra-judicial confession allegedly made by the appellant is concerned, though Mehra (P.W.7), the witness of extrajudicial confession was not cross examined on behalf of the appellant but if his examination-in-chief is taken as it is, even then, the same is not worthy of reliance as he stated that he did not inform the police due to the fear of his life and he has not disclosed as to how his fear was removed; that at the time of making of alleged extrajudicial confession, there was nothing on the record against the appellant, which' could have persuaded him to make extrajudicial confession; that Mehra (P,W.7) was not a man of authority or had any influence on the legal heirs of the deceased, therefore, it is highly improbable that the appellant would make an extra-judicial confession before him and even otherwise, the alleged extra-judicial confession was joint in nature; that from all angles, the prosecution case is of doubtful nature; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt; thus, this appeal be accepted and the appellant may be acquitted from the charge.
7. Notice was issued to the legal heirs of the deceased but none appeared on their behalf. The learned DPG has placed on the record, the notice upon which, the service of the legal heirs of the deceased was effected.
8. On the other hand, learned Deputy Prosecutor-General vehemently opposes this appeal on the grounds that there was no enmity of the complainant with the appellant to falsely involve him in this case; that the appellant was duly identified by the witnesses during the identification parade; that even before the learned trial Court, the witnesses have stated that the appellant was the person who committed the murder of Sher Muhammad, constable (deceased); that the ocular account of the prosecution case is in line with the medical evidence, which is further corroborated by the recovery of Kalashnikov from the appellant; that the appellant remained proclaimed offender for about two months; that the prosecution has proved its case against the appellant beyond shadow of doubt; that the sentence of death was rightly awarded to the appellant by the learned trial Court and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. Have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor- General and have also gone through the record with their able assistance.
10. The gist of the prosecution case has already been given in paragraph No.2 of the judgment, therefore, there is no need to repeat the same. It is noteworthy that the appellant was not named in the F.I.R. Although it was alleged in the F.I.R. That six unknown accused persons were present at the time of occurrence but the description of only four: unknown accused persons was mentioned therein. We have also noted that the description given in the F.I.R. Of all the four unknown accused persons was almost identical. It was stated regarding all the four accused that they were of average height, average physique and they were of young ages. The colour of only one accused was stated to be dark complexion whereas, the colour of remaining accused persons was not mentioned. It was stated in the F.I.R. Regarding three accused persons that they were wearing white Shalwar Qameez and qua one accused, it was stated that he was wearing Shalwar Qameez of grey colour. It was stated in the F.I.R. That the person who was wearing Shalwar Qameez of grey colour fired at Sher Muhammad, constable (deceased), which landed on his head. We have noted that at the time of identification of the appellant, no specific role was attributed to him by the witnesses who identified him and it was simply mentioned in the report regarding proceedings of identification parade (Exh-PFF) that the witnesses have identified the appellant. It was not even mentioned in the said report that it was stated by any witness that it was the appellant who was wearing Shalwar Qameez of grey colour at the time of occurrence or he made fire shot at the deceased. As four accused persons were tried in this case, therefore, it was mandatory to assign the role to the appellant at the time of occurrence. As per story of the prosecution, six accused persons were present at the time of occurrence, out of whom, two unknown accused persons ran away on their motorcycle towards village Raheempur whereas, the police party chased four unknown accused persons. There is no allegation of even ineffective firing to the extent of two unknown accused persons who ran away towards Raheempur at the time of occurrence. No role, whatsoever, in the F.I.R. Was assigned to the said two unkhown accused persons. The police party chased only four unknown accused persons and the allegation of ineffective firing was levelled against three accused persons out of said four accused whereas, the role of making effective fire shot was assigned to only one accused. As no role, whatsoever, was attributed to the appellant at the time of his identification parade, therefore, it cannot be held with certainty that as to whether the appellant was amongst those two unknown accused persons who ran away from the spot on their motorcycle towards Raheempur or he was amongst those three accused persons who made ineffective firing at the police party at the time of occurrence or it was the appellant who made the fatal fire shot on the head of Sher Muhammad, constable (deceased). Although the prosecution witnesses namely, Shaukat Ilayat, S.-I. (P.W.9) and Muhammad Nawaz (P.W.10) have assigned the role of making fatal fire shot to the appellant in their statements recorded by the learned trial Court but the abovementioned defect in the proceedings of identification parade regarding non- mentioning the role of the appellant is fatal to the prosecution case. We may refer here the case of "Sabir Ali alias Fauji v. The State" (2011 SCM R 563) wherein, at page 570, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "6....Lt 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)..."
' So far as the evidence of the complainant Muhammad Ijaz Ahmad Qureshi, S.I (P.W.11) is concerned, we have noted that the said witness did not take part in the proceedings of identification parade of the appellant. The appellant was not earlier known to the said witness, therefore. It was B mandatory for him to take part in the proceedings of the identification parade in order to identify the appellant in the said proceedings, therefore, it is not safe to rely upon the evidence of the complainant Muhammad Ijaz Ahmad Qureshi, S.-I. (P.W.11).
11. The prosecution has also produced circumstantial evidence against the appellant through Muhammad Yousaf (P.W.6) who stated that on 23-12-2003, he saw Muhammad Azam (appellant) and four other co-accused standing on the bridge of canal of Naseerpur while armed with different weapons. He further stated that after a short distance, he crossed the police vehicle and when he reached near Shahid Petroleum, he heard the report of firing. After this, he went to Lahore for his personal work and on 10-3-2004, he came back and the police recorded his statement. Although the said witness was not dross-examined by the learned defence counsel but even then this Court has to see the evidentiary value of his testimony. We have noted that the evidence of abovementioned 'witness is not confidence-inspiring. He claimed that he heard the report of firing at the time of occurrence and in that eventuality, his natural conduct would have been to know about the actual occurrence or to report the matter to the police but instead he stated that he went to Lahore. He remained mum for as many as eighteen days and his statement was recorded by the police on 10-3-2004 after the delay of eighteen days from the occurrence.
12. The prosecution has also produced circumstantial evidence and evidence of extra-judicial confession of the appellant through Mehra (P.W.7). He also stated that on 23-12-2003, he saw the appellant and five other co-accused while armed with weapons standing near the bank of canal of Naseerpur. He further stated that when he reached at Midh Ranjha, he heard that a police constable had been killed in a police encounter. He further stated that he remained silent due to the fear of his life and on 17-3-2004, when he was present at Adda Kandiwal, the appellant along with other accused persons came there on a car and confessed before him regarding the murder of a police constable. Although this witness was also not cross examined by the learned defence counsel but the evidence of this witness is also, not worthy of reliance for the reason that according to his own statement, he remained silent for a period of almost three months after the occurrence.
He gave this explanation for the said delay that due to the fear of his life, he remained silent but he did not gave any explanation as to how his fear was removed. On one hand, he claimed that due to the fear of his life, he remained silent and on the other hand, he claimed that the appellant confessed before him regarding the occurrence. It is not understandable that as to why the appellant would confess before a person who was admittedly afraid of him. Even otherwise, it does not appeal to common sense that the appellant would make confession before the abovementioned witness when he met him per chance at the Adda of Kandiwal. This witness has not claimed that he Was holding any authoritative post. We are, therefore. Of the view that the story of circumstantial evidence and extra-judicial confession furnished by Mehra (P.W:7) is not worthy of reliance.
13. The prosecution has also produced the evidence qua recovery of Kalashnikov (P-27) along with two hundred bullets (P28/1-200) recovered on the pointation of the appellant, which was taken into possession vide recovery memo Exh-PZ but the alleged recovery of Kalashnikov along with two hundred live bullets does not corroborate the prosecution case against the appellant because the report of the Forensic Science. Laboratory (Exh-PH) is only to the effect that the rifle 7.62 MM was in working order. In absence of wedding report of any empty with the rifle (P-27), the alleged recovery of said rifle is of no avail to the prosecution.
14. Insofar as medical evidence is concerned, it is by now well-settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, the nature of the injury, the kind of weapon used in the occurrence but it would not identify the accused. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCM R 1410) and "Altai Hussain v. Fakhar Hussain and another" (2008 SCM R 1103).
15. In the light of above discussion. We are of the view that the prosecution has not been able to prove its case against the appellant beyond the shadow of doubt, therefore, we accept the Criminal Appeal No.19-J of 2009 filed by Azam (appellant), set aside the impugned judgment dated 23-12-2008 passed by learned Addl Sessions Judge, Bhalwal District Sargodha. Resultantly the convictions and sentences of the appellant awarded by the learned Addl Sessions Judge, Bhalwal District Sargodha, are set aside and he is acquitted from the charges. Azam (appellant) is in custody, he be released forthwith if not required to be detained in any other case.
16. Murder Reference No.39 of 2009 is answered in the NEGATIVE and the sentence of death of Azam (convict) is NOT CONFIRMED.