ARSHAD MAHMOOD TABASSUM, J.---Muhammad Shafique, appellant, along with his co-accused, namely, Tariq Maqsood and Muhammad Usman, was tried by the learned Sessions Judge, Vehari, in case FIR No, 278, dated 27--7-2005, registered under sections 302/34/392/394/109/411, P.P.C., with Police Station Gaggo, District Vehari, for committing Qatl-i-amd of deceased Muhammad Amin.
The learned Court on conclusion of trial vide judgment dated 26-9-2009, convicted the appellant under section 394, P.P.C., and sentenced him to 14 years with a direction to pay Rs, 1,00,000 as fine and in default whereof to further undergo one year's R.I. The appellant was further convicted under section 302(b), P.P.C., and sentenced to death for committing murder of Muhammad Amin. He was also burdened to pay Rs,1,00,000 as compensation to the legal heirs of the deceased Muhammad Amin, as required by section 544-A, Cr.P.C., and in default whereof to undergo six months' S.I, while his co-accused, namely, Tariq Maqsood and Muhammad Usman were acquitted of the charge by extending benefit of doubt to them.
2. Murder Reference No,140 of 2009 has been sent by the learned trial Court seeking confirmation of death sentence awarded to Muhammad Shafique appellant.
3. Muhammad Shafique appellant preferred Criminal Appeal No,635 of 2009 through jail authorities against the aforesaid conviction and sentence, whereas, the complainant has filed Criminal Appeal No,700 of 2009 against the acquittal of Tariq Maqsood and Muhammad Usman co- accused of the appellant. All these matters are being disposed of by this single judgment.
4. Briefly, the facts of the prosecution case, as set out in the complaint (Exh.PE/1), lodged by the complainant/Muhammad Munir (P.W.4) are that he (complainant) and his brother namely, Muhammad Amin (deceased) used to run a fertilizer shop in Ghalla Mandi Gaggo in the name and style of United Traders; that on 26-7-2009, at 9-45 p.m. They were busy in rendition of accounts while sitting in the shop where Muhammad Akram son of Muhammad Ali, their co-villager was also present; that in the meanwhile three persons came on a motor cycle CD 70, one out of them, was of whitish complexion, oval shape, medium physique, five feet and 8/9 inches of height, aged about 27/29 years, armed with pistol, while the other was also of whitish complexion, having oblique face, stout physique, having five feet and 5/6 inches height, aged about 27/28 years, armed with rifle, and the third was of whitish complexion medium physique, armed with pistol, all were speaking Punjabi; that they all aimed their weapons at them and asked to hand over the cash; that thereafter they forcibly removed. Bank draft, cheque and cash amounting to Rs, 30,00,000 from the drawer and were about to leave the shop when they (complainant party) along with Mushtaq Ahmad son of Muhammad Khan, Zafar Iqbal and Abid Hussain "Palaydar" who also witnessed the occurrence tried to apprehend the culprits, whereupon they started firing which hit on the legs of Muhammad Amin due to which he fell to the round and the culprits succeeded to flee away while riding the motor cycle; that they could identify the culprits if brought in front of them; that unknown persons forcibly snatched cash amount, bank draft and cheque and injured his brother and that the injured was shifted to hospital for treatment, but he succumbed to the injuries.
5. On receiving information about the occurrence, Inam-ul-Haq/Inspector, (P.W.12) reached the spot, recorded the statement of Munir Ahmad, complainant (P.W.4) Exh.PE/1 and sent the same through Muhammad Hussain 239/C to P.S for registration of case. He also recorded the statements of P.Ws., prepared visual site plan Exh.PR of the place of occurrence, secured blood stained earth from the place of occurrence and took into possession vide recovery memo. Exh.PJ after converting the same into a sealed parcel. He then reached RHC Gaggo, prepared the injury statement Exh. PC and the inquest report Exh. PD of the deceased. He then dispatched the dead body to the mortuary for autopsy through Muhammad Hussain constable. On 29-7-2005 the said constable produced the last worn clothes of the deceased which he secured vide recovery memo Exh.PS including Shalwar P7 which were smeared in blood. On 30-8-2005, he summoned draftsman and directed him to prepare scaled site plans which he prepared and produced before the I.0 being Exh.PQ, Exh.PQ/1 and Exh.PQ/2.
6. Altaf Hussain SI, (P.W.8), on 19-3-2007, received secret information, whereupon, he arrested Muhammad Shafique appellant from Adda Quatran. On 20-3-2007, he got sent him to judicial lock up and on 19-4-2007, the identification parade took place in New Central Jail Multan. On 28-4- 2007, he procured physical remand of the appellant. On 6-5-2007, the appellant got recovered pistol 30 bore, cash amounting to Rs,55,000.
7. On completion of usual investigation, the challan was submitted to the court, where after the appellant and his co-accused persons were charge-sheeted under sections 302/392/394/109/34, P.P.C., to which, they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 14 witnesses.
8. The ocular account of the occurrence was furnished by the complainant (P.W.4) and Adeel Yasin P.W.6. They also claimed having picked up the appellant during identification parade on 19-4-2007.
The medical evidence is based upon the statement of Dr. Muhammad Idress (P.W.1), who conducted the post mortem examination on the dead body of Muhammad Amin and found the following injuries:--
(1) A lacerated wound lx1 cm x going deep with burnt.
Inverted margins on anterolateral aspect of right thigh (at junction of upper and middle third) Entry wound.
(2) A lacerated wound 2.5 x 2.5 cm with everted margins on medial aspect of right thigh. Exit wound of injury No. 1.
(3) A lacerated wound 1x1 cm x going deep with burnt inverted margins on outer aspect of right thigh above right knee (entry wound) clinically fracture of right femur.
(4) A lacerated wound 4x4 cm with everted margins on back of right knee. (Exit of injury No,3).
There was severe bleeding from the wound.
(5) A lacerated wound 1.5 x1.5 cm with burnt everted margins on medial side of left thigh above middle. (Entry wound).
(6) A lacerated wound 2.5 x 1 cm with everted margins on back of left thigh 8 cm above left Knee ( Exit of injury No.5.).
He opined that death in this case had occurred due to severe blood loss from rapture of right popliteal vessels due to injuries No, 3 and 4 and due to bleeding to circulatory failure and cardiopulmonary arrest. These injuries were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire arm weapon and were anti mortem.
9. The investigation was conducted by Inam-ul-Haq Inspector/ P. W.12 and Altaf Hussain SI (P.W.8).
Different steps taken by them during investigation of the case have been enumerated in the earlier part of the judgment. Rest of the prosecution evidence was more or less formal in nature.
10. The prosecution closed its evidence by giving up Atta Muhammad and Muhammad Yousaf having been won over by the accused persons and Muhammad Hussain being unnecessary and by also tendering report of Chemical Examiner Exh.PT and report of Serologist Exh. PU.
11. The appellant Muhammad Shafique in his statement under section 342, Cr.P.C., denied the allegations and professed his innocence. In response to court question "why this case is against you and why the P.Ws. Have deposed against you", he stated as under:-- "In the day of alleged occurrence Mirza Muhammad Ali was RPO of the range, having good relations with the complainant party. He exerted pressure on the local police to trace the culprits and to challan them but the police failed to trace the actual culprits. Just to dispel the pressure of RPO and to satisfy him, I was also made escape-goat. I am about 30 years old. I am matriculate and homoeopathic doctor. My income as practitioner was not sufficient to meet the expenses of my family, my wife, four school going children and old parents, father since died, mother is admitted in Bahawalpur Victoria Hospital and she is lying in a state of comma there. I closed my practice and started business of purchasing animals and then to shift them to Karachi to sell at higher price. I also used to purchase animal buffalos etc, from Gaggo Mandi which is famous for animal market. In February 2007, I was at Gaggo Mandi in connection with my above said business, when the police arrested me and kept me without showing my arrest in any case at PS Gaggo outside of the PS at various deras particularly at the Dera of Muhammad Munir complainant where Adeel P.W. Used to serve me with food. Police throughout about for one month tortured me so much so that the nails of my hands and feet were removed. I was also shown many persons including the P.Ws. Of this case. My photographs were also taken. On the application of my father against Gaggo Police to the Illaqa Magistrate about my illegal detention and police torture, police ultimately had shown my arrest in the papers on 19-3-2007. In this period I was compelled to have a settlement with the complainant. I am innocent therefore, I did not agree. Independent P.Ws.
Mentioned in the. FIR has not been examined. Adeel P.W. And the complainant did not see the occurrence. Complainant party even during the trial had been confessing about my innocence but insisted to have settlement with the complainant but I did not agree as I am. Innocent. After refusal of the independent P.Ws. To support the prosecution version, Adeel was introduced later on as P.W.
On 30-3-2007. My father died during the trial leaving behind inter se and are inimical towards me because I did not made any settlement with them like earlier persons arrested in this case."
Muhammad Shafique, appellant, also tendered in his defence evidence certified copy of report under section 173, Cr.P.C., (Exh.DF), certified copy of charge sheet (Exh.DG), certified copy of interim order sheet (Exh.DH), certified copy of statement of Muhammad Munir complainant dated 23-5- 2006 (Exh.DI), certified copy of judgment dated 23-5-2006 passed by ASJ (Exh.DJ) and computerized Bank statement (Exh.DK) and closed his defence evidence. He refused to enter the witness box to state on oath in disproof of the allegations levelled against him by the prosecution, as required under section 340(2), Cr.P.C.
12. Ultimately, the learned trial court, after hearing the learned counsel for the parties, vide judgment dated 26-9-2009, convicted and sentenced the appellant as aforesaid, while his co- accused persons were acquitted of the charge.
13. Learned counsel for the appellant has argued that the appellant has been falsely implicated in this case; that the prosecution story is highly doubtful and the P.Ws. Have failed to connect the appellant with the occurrence; that Adeel Yasin (P.W.6) was introduced subsequently whose name does not find a mention in the statement of Munir Ahmad complainant (P.W.4), Exh.PA/1 nor in the FIR Exh.PE; that the prosecution did so because the other P.Ws. Whose names find a mention in the FIR had refused to depose falsely; that both the P.Ws. Munir Ahmad and Adeel Yasin have made dishonest improvements in their statements which discredit them to be relied upon; that though the complainant and Adeel Yasin (P.W.6) claimed to have picked up the appellant during identification parade, but such an identification parade was arranged after sufficient delay of the arrest of the appellant and the role of the appellant was not described by the witnesses at the time of identification parade, due to which, the evidentiary value of the identification parade was reduced to nil; that no sanctity can be attached to the recovery of pistol and the cash relied upon by the prosecution; that on the same evidence two co-accused of the appellant have been acquitted while the appellant has been convicted which is not permissible under the law and that the, prosecution case full of doubts, the benefit whereof has to be extended to the appellant.
14. Conversely, the learned Deputy Prosecutor General assisted the learned counsel for the complainant has fully supported the impugned judgment passed by the learned trial Court.
15. We have considered the submissions made by the learned counsel for the parties and with their able assistance the evidence available on the record has been examined.
16. In this case, the culprits could not be identified at the time of occurrence though their features to some extent were mentioned in the FIR. A number of persons allegedly witnessed the occurrence whose names find a mention in the FIR, but except the complainant nobody came forward to support the prosecution case. Resultantly, the prosecution had to bank upon Adeel Yasin P.W.6 who was introduced as a witness at a subsequent stage, because there is no mention of his name and presence in the statement Exh.PE/1 of the complainant or in the FIR Exh.P.E. His testimony can be discarded for the simple reason that he was not shown present at the spot by the complainant in his statement. He even did not join the investigation primarily, therefore, irresistible conclusion which can be drawn is that due to non-availability of any witness he was introduced. His statement is also full of improvements and discrepancies.
17. The sole basis on which the prosecution seeks conviction of the appellant is that he was picked up during identification parade. Such identification parade can hardly be made basis of the conviction for the reason that it has certain inherent defects. In this regard, it may be observed that accounting to Altaf Hussain SI/P.W.8 the appellant was arrested on 19-3-2007, though he claims that on the next day the appellant was got sent to judicial lock up, but even then identification parade took place on 19-3-2007, thus after lapse of a considerable time the identification parade conducted. It is the claim of the defence that the appellant was apprehended much before 19-3- 2007. In this regard, it is noteworthy that Altaf Hussain SI/P.W.8, during cross-examination states as under:-- "I did not prepare the site plan from where the accused was arrested. Many people saw the arrest of the accused. I did not incorporate in my proceedings the names of those persons who were present there. I also did not ask them to become witnesses. I personally searched the accused.
Nothing was recovered from his pocket. I do not remember how many currency notes were recovered. It is not essential to record all the times the articles which are recovered from the accused from his personal search. However, if we make the recovery memo. Then we duly entered the same. It is incorrect to suggest that actually the accused was arrested by police one month prior to the shown arrest. It is incorrect to suggest that we tortured him by keeping him at various deras. It is also incorrect to suggest that I afflicted(sic.) the photos of the accused and then we showed the same to the P.Ws. It is incorrect to suggest that I kept the accused at the dera of the complainant and Adeel Yasin P.W. Was deputed to provide him meal etc."
Similarly, he further states:-- "I cannot explain why the orders were not passed from 22-3-2007 up till 27-3-2007 by the worthy Sessions Judge Vehari for identification parade."
18. Though Altaf Hussain SI has denied the suggestions put to him by the learned defence counsel that the date of identification parade was got postponed by him on his request but Muhammad Ramzan SJM, Burewala, while appearing as P.W.7 states:-- "I fixed the date for identification parade as 7-4-2007. On the same day Maqbool Ahmad SI appeared before me and sought the adjournment for identification as he could not contact the P.Ws. Then I fix the date 16-4-2007."
He further states:- "I have recorded the objections of the accused in my report that he was kept in Police Station Gaggo for one month before his formal arrest. He further objected that on application of his father his formal arrest was shown by the police. Munir Ahmad P.W. Identified the accused during identification parade. No role is mentioned in my report Exh.P.O. Similarly, the identification was made by other P.W. Adeel Yasin. No role is mentioned in the report."
Keeping in view the above reproduced portions of the statements of P.W.7 and P.W.8, it appears that no sanctity can be attached to the identification parade, firstly, for the reason that it was got conducted after a lapse of sufficient time and the P.Ws. While picking the appellant up during identification parade did not ascribe any role to him. In this regard it has been ruled by the apex court in the case titled "Muhammad Fayyaz v. The State" (2012 SCMR 522) as under:-- "After his arrest the appellant was put to a test identification parade and although he had been correctly picked up by the eyewitnesses yet indisputably such identification had been made without any reference to the role allegedly played by the appellant during the incident in issue. The law is by now settled that evidentiary value of such an identification in a test identification parade is next to nothing."
Similar view was expressed by the apex court in the case titled "Ghulam Qadir v. The State (2008 SCMR 1221). The relevant portion where of reads as under:-- "It is therefore, clear that proceedings of the identification parade where the appellants were picked up without describing the role played by them in the crime suffers from illegalities and infirmities rendering it completely unreliable having no evidentiary value. The possibility that police had not got accused identified by the witnesses prior to identification cannot be excluded."
19. It is also noteworthy that Munir Ahmad complainant (P.W.4) in cross-examination states:- "When the accused were arrested by the police they did not summon us to confront us with the accused persons. It is correct that previously the accused who were arrested by the police were shown to us and we made confrontation to us and they were released by the police."
In view of what has been stated by the complainant in his statement as reproduced above it cannot be ruled out that the appellant was also shown to the P.Ws. Before he was sent to judicial lock up. Moreover, non-ascribing any role to the appellant at the time of picking him up during the identification parade as disclosed by the learned Judicial Magistrate Muhammad Ramzan, P.W.7, makes the said piece of evidence not worthy of any reliance.
20. No crime empty was recovered from the spot, hence, the alleged recovery of pistol .30 bore on the pointation of the appellant is of no consequence in this case.
21. In the light of the above discussion, we have no doubt in our minds that the prosecution evidence is discrepant and highly insufficient to base conviction at in a charge entailing capital punishment. It is in this background that defence plea of the accused becomes relevant, wherein, he has pleaded his innocence and has maintained that on the pressure of RPO he was made scape-goat as the real culprits were not traceable. The impugned conviction and sentence, therefore, cannot sustain which is hereby set aside by accepting this appeal.
22. The death sentence awarded to Muhammad Shafique appellant is not CONFIRMED and Murder Reference No,140 of 2009 is answered in NEGATIVE.
23. Criminal Appeal No, 700 of 2009, is disposed of having become infructuous on decision of Criminal Appeal No, 635 of 2009.