MEHMOOD MAQBOOL BAJWA, J.----Consequent upon the conclusion of trial in case FIR No, 305 of 2007 registered under Sections 302, 353, 397, 186, 148 read with section 149 of The Pakistan Penal Code, 1860 (Act. No, XLV of 1860) (hereinafter called "Act No, XLV of 1860") at Police Station Saddar Chichawatni, Atta Ullah, Ansar Ali, Mansab Ali and Asif (appellants) were held guilty through judgment dated 26.03.2010 handed down by a learned Additional Sessions Judge, Sahiwal Camp- at-Chichawatni and while recording conviction against Atta Ullah, appellant No, 1, under Section 302(b) of The Act No, XLV of 1860, he was awarded sentence of death under said provision of law, simultaneously requiring him to pay compensation to the tune of Rs, 1,00,000/-. Conviction was also recorded against the said appellant under Section 397 of The Act No, XLV of 1860 awarding him sentence of 7 years rigorous imprisonment. While holding the said appellant guilty under Section 148 of The Act No, XLV of 1860, 3-years rigorous imprisonment and fine to the tune of Rs, 25,000/- was imposed and in default of payment of fine, to further undergo 3-months simple imprisonment.
' Atta Ullah, appellant No, 1, was also held guilty under Section 353 and Section 186 read with Section 149 of The Act No, XLV of 1860 and was awarded sentence of 2-years and 3-months rigorous imprisonment respectively with premium under section 382-B of The Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called The Code).
' Ansar Ali, Mansab Ali and Asif, appellants Nos. 2 to 4, were held guilty under Sections 186, 353, 397, 148 read with Section 149 of The Act No, XLV of 1860 and each appellant was awarded sentences of 3-months' R.I., 2-years R.I., 7-years' R.I. and 3-years' R.I. and fine to the tune of Rs, 25,000/- and in default of payment of fine, to further undergo 3-months' S.I. respectively.
' Benefit of Section 382-B of The Code was also granted to the appellants Nos.2 to 4
2. Being aggrieved by the judgment of conviction, appellants have preferred Crl. Appeal No, 421 of 2010 assailing the legality and validity of said judgment.
3. Since Atta Ullah, appellant No, 1, was also convicted under Section 302(b) of The Act No, XLV of 1860 and was awarded sentence of death, therefore, learned trial court sent reference under Section 374 of The Code bearing Murder Reference No, 32 of 2010 for confirmation of sentence of death or otherwise.
4. Criminal Appeal preferred by the appellants and Murder Reference No, 32 of 2010 shall be disposed of through this single judgment.
5. Prosecution version contained in the crime report (Ex.P-E/1) lodged on the statement of Liaqat Ali, Head Constable (PW-8) is that on 12th of July, 2007, he along with Muhammad Mansha, Constable, armed with SMG rifle, were on patrolling duty on Total Road, Chichawatni on motorcycle. Ali Nawaz, Head Constable and Muhammad lqbal, Constable (PW-10) also armed with different firearms (nature and description mentioned in the crime report) were on patrolling duty on Begum Shehnaz Road.
' Complainant as well as Muhammad Mansha, Constable, halted at Pul Neher Chak No, 108/12-L, waiting for another patrolling party referred to when at about 8:00 PM, two unknown persons on Honda Motor Cycle 125-CC came there from Total Road Bridge who were signaled to stop but they with speed went to Chak No, 108/12- L. Due to suspicion, police party chased the motorcycle.
However, the said motorcycle disappeared and when they reached on the metalled road after crossing Chak No,108/12-L, suddenly seven unknown persons (particulars and description of whom has been mentioned in the crime report) emerged from the field of standing cotton crop and intercepted the complainant and his associate. The said unknown assailants tied the complainant and Muhammad Mansha, Constable and started giving beating to both of them through hatchets and sotas, resulting in sustaining of injuries by Muhammad Mansha, Constable, on both eyes, lip and right ear while complainant sustained injuries on right hand and left arm.
' As per accusations, Muhammad Mansha, Constable, succumbed to the injuries at the spot.
' There is also an allegation that said unknown assailants also snatched mobile telephone, SMG rifle, wireless set and cash to the tune of Rs, 1700/-.
' Perusal of the FIR further reveals that Ali Nawaz, Head Constable and Muhammad Iqbal, Constable (PW-10) while searching the 'complainant and Muhammad Mansha, Constable (deceased), reached at the place of occurrence to whom whole incident was intimated who informed him that 6/7 persons armed with hatchets, sotas and firearms were seen by them in the light of motorcycle while they were standing on the bridge of Chak No, 44/12-L.
' Muhammad Waseem, Inspector, S.H.O. Police Station Saddar Kabirwala (PW-11) after receipt of information regarding the occurrence reached at the spot who recorded statement (Ex.P-E) of Liaqat Ali, Head Constable (PW-8) and sent the same to the police station for registration of case upon the strength of which formal FIR (Ex . P-E/1) was registered.
' Fateh Sher, S.I., Investigating Officer (PW-12), after reaching at the spot prepared injury statement of Liaqat Ali, Head Constable (Ex.P-W) besides preparation of injury statement of Muhammad Mansha (Constable) (deceased) (Ex.P-G) and inquest report (Ex.P-H). ' The said Investigating Officer secured blood stained earth from the place of occurrence vide memo (Ex.P-O). He also took into possession the motorcycle (Ex.P-2) and uniform (EX-P3-1, EX-P3- 2, EX-P4-1 to EX-P4-2 through recovery memo (Ex.P-P).
6. After usual investigation, Report under Section 173 of The Code was submitted in the Court.
7. Prosecution in order to prove its case produced Muhammad Aslam, Halqa Patwari (PW-1), Mansab Ali, Constable (PW-2), Muhammad Akram, Head Constable (PW-3), Abdul Majeed, Constable (PW-4), Muhammad Yasin, a recovery witness (PW-5), Liaqat Ali, brother of Muhammad Mansha (deceased) (PW-6), Liaqat Ali, S.I. (PW-7), Liaqat Ali, Head Constable, complainant (PW-8), Dr. Syed Ali Hassan Shah (PW-9), Muhammad Iqbal, Constable (PW-10), Muhammad Waseem, Inspector, S.H.O. Police Station Saddar Kabirwala (PW-11), Fateh Sher, S.I., Investigating Officer (PW- 12) and Barkat Ali, Judicial Magistrate 1st Class, Chichawatni (PW- 13).
' After tendering report of medical examiner and that of Serologist (Ex.P-Y and Ex.P-Z), prosecution closed its evidence.
8. All the appellants in their respective statements recorded under Section 342 of The Code denied the whole incriminating material put to them and while pleading false implication maintained that it was an unseen occurrence and they have been involved in this case falsely as Sakhawat Ali, brother of Atta Ullah (appellant No, 1) and one Asad Waseem was murdered by the police in fake police encounter and in order to save its skin, story was knitted.
' Atta Ullah (appellant No, 1) produced documentary evidence upon in defense which was also relied upon by the co-appellants.
9. Case was registered on the statement of Liaqat Ali, Head Constable (PW-8). Liaqat Ali, Constable, who is brother of deceased, Muhammad Mansha, Constable, appeared as PW-6 and as such direction was issued to the District Police Officer, Sahiwal to procure the attendance of said witness (PW-6) and as per report submitted by the D.P.O. Sahiwal through letter No, 4369/legal dated 27.11.2015, said Liaqat Ali, Constable and Saddam Hussain (brother and son of Muhammad Mansha, deceased) were served in person. Saddam Hussain, son of the deceased, has put his appearance today who does not want to engage advocate.
10.Dr. Syed Ali Hassan Shah (PW-9) conducted post-mortem examination on the dead body of Muhammad Mansha (deceased) on 12.07.2007 and noted following injuries on his body:- "1. Incised wound 6 x 10 c.m. bone exposed on top of head, 15 c.m. from left ear.
2. Incised wound 7 x 1 c.m. x bone exposed on top of head, 13 c.m. from left ear, 2 c.m. from injury No,1
3. Incised wound 3 x 2 c.m. muscle deep on lower lip.
4. Bruise swelling 4 x 4 c.m. on left eye.
5. Incised wound 3 x 1/2 c.m. on left side of forehead." Time between injuries and death was immediate and time elapsed between death and post- mortem was 4 to 8 hours.
Ex.P-F is the carbon copy of the post-mortem report while pictorial diagram is Ex . P- F/ 1 .
11. The said Medical Officer also medically examined Liaqat Ali; Head Constable, complainant (PW- 8) on 12.07.2007 and observed following injuries on his person: -
1. Bruise swelling 12 x 5 c.m. on lower part of right fore-arm and right hand.
2. Bruise swelling 12 x 5 c.m. on left wrist joint.
3. Bruise 14 x 4 c.m. upper part of left arm.
4.Bone not exposed on right side of head, 10 c.m. from left ear.
5. Ex.P-V is the attested copy of the medico legal certificate.
12. Learned counsel for the appellants while making reference to the evidence of prosecution witnesses submitted that evidence of Liaqat Ali, Constable, brother of deceased PW-6), Liaqat Ali, Head Constable, complainant (PW-8) and Muhammad Iqbal, Constable (PW-10) does not inspire confidence and is not sufficient to prove the guilt of appellants.
Making reference to the contents of crime report (Ex.P-E/1), it was contended that undeniably, it was dark at the time occurrence and as such it was not possible for the witnesses (PW-8 and (PW- 10) to identify the culprits.
Making reference to the evidence of Liaqat Ali, brother of deceased (PW-6), it was argued that said witness in his direct statement categorically stated that after the occurrence, he was in search of culprits and on spy information, he came to know the names and particulars of present appellants who are assailants.
Further submitted that according to the said witness, he informed the particulars to the investigation Officer on 28th of July, 2007 who were associated in the investigation and were found actual culprits.
Contended that since names and Particulars of the appellants being alleged assailants were intimated to the Investigating Officer, therefore, reliance of learned trial court on the identification parade (copy of proceeding is EX-PN) held on 20.08.2007 would not advance the plea of prosecution to prove the culpability of appellants.
Continuing the arguments, it was maintained that since it was dark, therefore, it was not possible for the complainant as well as Muhammad Iqbal, Constable (PW-8 and PW-10) to note the particulars and description of the accused and identify them while participating in the identification pararde.
Questioning the legality of the identification parade, it was further submitted that specific objection was taken by all the appellants during the course of Identification proceedings that they were shown to the witnesses prior to identification parade and as such no implicit reliance can be placed upon their evidence.
Continuing the arguments, it was further submitted that no weapon of offence was ever recovered from any appellant and recovery was effected from Asad Waseem and Sakhawat Ali (since dead) as is evident from the statement of Muhammad Yasin, Constable (PW-5).
Highlighting the cumulative effect, it was contended that prosecution miserably failed to prove its case against the appellants beyond shadow of doubt and as such they are entitled to acquittal.
13. On the other hand learned Deputy Prosecutor while controverting the arguments though admitted that case was registered against unknown accused but submitted that appellants were put to identification test supervised by Barkat Ali, learned Judicial Magistrate (PW-13) in which Liaqat Ali, Head Constable, complainant (PW-8) and Muhammad Iqbal, Constable (PW-10) participated and they rightly picked up appellants as foe.
Submitted that particulars and description of the unknown assailants was given in the crime report (Ex.P-E/1) and as such picking up the appellants by complainant and Muhammad Iqbal constable (PW-8 and PW-10) is sufficient to prove culpability of all the appellants.
Further submitted that either the complainant (PW-8) or Muhammad Iqbal constable (PW-10) being public servants got no bias, animosity or any other extraneous consideration of alike nature, prompting them to implicate the appellants falsely.
Argued that Barkat Ali, learned Judicial Magistrate (PW-13) appeared and proved the proceedings of identification test.
Making reference to the evidence of Liaqat Ali, Head Constable (PW-8), it was submitted that said complainant also sustained injuries and being injured eye-witness, his evidence commands respect.
14.It is an admitted fact that case was registered against unknown assailants.
15.Case of prosecution rests upon the identification of appellants through identification parade and in order to prove this aspect, prosecution relied upon the evidence of Liaqat Ali, Head Constable, complainant (PW-8), Muhammad Iqbal, Constable (PW-10) and Barkat Ali, learned Judicial Magistrate, Chichawatni (PW-13).
16.Prior to dealing with the respective contentions of the adversaries, it is desirable to know the yardstick in order to act upon the evidence of identification test.
Examining the case law on the moot point, a Division Bench of this Court in the judgment delivered in "Mansoor Ahmad etc. v. State etc." [(2012 YLR 2481)] (authored by one of us, Mehmood Maqbool Bajwa, J.), formulated following points amongst others in order to determine the legality and evidentiary value of identification test which are reproduced hereunder for ready reference:--
(a) Identification proceedings should be held as early as possible but no hard and fast rule can be formulated. However, delay in holding identification test will reduce its value;
(b) Identification test should not be held at Police Station;
(c) Separate identification parade should be conducted for each accused;
(d) Whole proceedings of identification test including lining up accused with dummies should be conducted by the Magistrate himself and the assignment should not be delegated to the jail authorities;
(e) Prior to conduct of proceedings, concerned authority is under obligation to conceal the identity of the accused from one place to another place and such measures are not only required to be taken but should be proved to have been taken;
(f) It is the duty of Supervising Magistrate to make note of every objection made by accused at the time of parade enabling the court of competent jurisdiction to judge the genuineness of the objection while determining value of identification test;
(g) Number of dummies for each accused must be given;
(h) Description of dummies as to whether they were of the same structure, age etc. should be mentioned;
(i) Number of dummies to be mixed with each accused should not be less than nine or ten;
(j) No mark or stamp should be put on the suspected persons;
(k) The dummies and the suspect should be of same structure. If there is any visible mark on the person of accused (For example, beard), it is advisable to mix up the accused with others of similar appearance;
(I) Role of each accused must be described by the witness. The witnesses are required to explain as to how and in what manner they were to identify or pick up the accused person."
Keeping in view the above-referred points, evidence led by the prosecution is to be examined.
17. It is an admitted fact that in the crime report, description and particulars of the accused were mentioned.
Occurrence took place at 8:00 PM as is evident from the contents of crime report (Ex.P-E/1) as well as evidence of Liaqat Ali, Head Constable, complainant (PW-8) who admitted in cross- examination that it was dark at the time of occurrence.
Muhammad Iqbal, Constable (PW-10) is not the eye-witness of occurrence who just saw the appellants when going towards Chak No, 44/12-L in the light of motorcycle as stated by him.
In the circumstances, there can be no cavil to the proposition that complainant saw the appellants as assailants in darkness. It is not the case of prosecution that there was source of light at the place of A occurrence. Complainant also did not utter even a single word regarding source of light.
Similarly, same fact does not find mentioned in the site plan with scale (Ex. P-A).
18. Since there was dark, therefore, it was not possible for the complainant (PW-8) to know and preserve the particulars and description of appellants as assailants and to communicate the same to Muhammad Waseem, Inspector (PW-11) who recorded the statement of complainant upon the strength of which formal FIR was recorded. 19.Similarly, deposition of Muhammad Iqbal, Constable, that he noted the particulars and description of the appellants in the light of motorcycle would not advance the plea of prosecution in order to save description of the appellants in his mind.
The fact by itself put serious dent in the case of prosecution in order to act upon the report of identification parade.
Perusal of the report of identification parade (Ex. P-N) reveals that identification parade of all the appellants (four in number) was conducted together though it should have been held separately.
Report (Ex.P-N) further reveals that 42 dummies were mixed up in the .identification parade.
Though it finds mentioned in the report that dummies were of similar age and height but general remarks have been given in this regard. There is no separate note against each dummy suggesting his structure and age etc. Even if this aspect is ignored, same would not advance the plea of prosecution to prove its case because Liaqat Ali, Head Constable, complainant (PW-8) admitted in cross-examination that he did not disclose the role of any culprit.
Similar is the position of Muhammad Iqbal, Constable (P W-10).
20.Barkat Ali, learned Judicial Magistrate, while appearing as PW-13 also admitted in cross- examination that none of the witness disclosed specific role of the accused person. He also admitted that they also did not disclose the nature of weapon of offence used in the commission of crime.
Ascribing role to each assailant is a legal compulsion. Since neither the complainant nor Muhammad Iqbal constable (PW-8 and PW-10) described the role of appellants as assailants, therefore, proceedings of identification parade cannot be acted upon.
21. It is further to be noted that Liaqat Ali, Constable (PW-6) who is brother of deceased, while appearing as PW-6, stated in his direct statement that after the occurrence, he was searching the culprits and through spy information, he came to know that Atta Ullah, Ansar Ali, Mansab Ali, Asif as well as Sakhawat Ali and Waseem (since dead) are indulged in dacoity and robbery. He further stated that on 28.07.2007, he asked the Investigating Officer to associate them in the investigation.
As brother of deceased (PW-6) informed the names and particulars of the appellants to the Investigating Officer on 28.07.2007, therefore, legality of identification test held on 20th of August, 2007, is under serious cloud.
22. We are conscious of the argument advanced by learned Deputy Prosecutor General stating that both the witnesses (PW-8 and PW-10) categorically stated in cross-examination that names and other particulars of the appellants came to their knowledge after identification parade.
Since particulars and description of the appellants as assailants was an open secret on 28.07.2007, therefore, reliance upon said reply would not advance the plea of prosecution as argued.
23. Argument canvassed by learned Deputy Prosecutor General that complainant, Liaqat Ali, Head Constable, is an injured eye-witness, therefore, his evidence has to be taken into consideration would not advance the plea of prosecution because sustaining of injuries by a person though proves his presence at the place of occurrence but mere receipt of injuries would not be sufficient to stamp him as a truthful witness and to act upon his evidence on this score alone. Veracity of the injured eye-witness has to be tested on its own merits, keeping in view the facts and circumstances of the case.
As discussed earlier, no implicit reliance can be placed upon the evidence of complainant (PW-8).
24. Similarly, the mode and manner in which Muhammad Iqbal, Constable (PW-10) saw the appellants being assailants as deposed by him in his statement, as referred earlier, would not be sufficient to prove the case of prosecution, even though he identified the appellants in identification parade which cannot be relied upon in view of discussion made above, It is to be noted that this witness did not see the occurrence. He, as per his own saying, saw the appellants at Pull Chak No 44/12-L. It is the stance of this witness that he saw the appellants in the light of motorcycle.
25. Question of identification of accused in a dark night with light of electric bulb or lantern was examined by the Apex Court in "Sajjad Hussain v. The State" (1997 SCM R 174) and it was held that identification of the accused in such like cases depends upon the availability of sufficient light, an opportunity available to the witness to have a close look or dialogue with the accused, intimacy of the accused with the witness, availability of unobstructed view of the accused to the witness.
There is nothing on record to suggest that said witness had any such opportunity.
26. Learned Deputy Prosecutor General while making another attempt to prove the case of prosecution submitted that recovery was also effected from the appellants in the shape of cash, 30-bore pistol, belt and official cap.
Even if the evidence of recovery from the appellants is taken into consideration, it would not advance the plea of prosecution to prove the guilt of appellants because factum of recovery is a corroborative piece of evidence and by itself would not be sufficient to prove the case of prosecution. Reliance is placed, upon "Saifullah v. The State" (1985 SCM R 410) and "Noor Muhammad v. The State and another" (2010 SCM R 97).
27. Medical evidence also would not substantiate the case of prosecution in order to know the identity of the appellants as assailants because it can only be used in order to know the seat and locale of injuries and weapon of offence used in the occurrence and same cannot connect the person in the commission of crime which aspect can only be proved either by direct or circumstantial evidence. We are fortified in our view by law laid down in "Ghulam Qadir and 2 others v. The State" (2008 SCM R 1221).
28. Viewed from whichever angle, the evidence adduced by prosecution is neither worthy of credit nor confidence inspiring I and as such same cannot be believed, relied and acted upon.
29. In view of the discussion made, we are of the considered view the prosecution failed to prove its case against the appellants beyond shadow of doubt and as such benefit of doubt has to be extended in favour of appellants as a matter of right. Reliance is placed upon "Tariq Pervez v. The State" (1995 SCM R 1345), "Ghulam Qadir and 2 others v. The State" (2008 SCM R 1221), "Faheem Ahmed Farooqui v. The State" (2008 SCM R 1572) and "Noor Muhammad v. The State and another"
(2010 SCM R 97).
30. Pursuant to above, while accepting Crl. Appeal No, 421 of 2010 titled "Arta Ullah etc. v. The State" and setting aside the judgment dated 26th of March, 2010 handed down by a learned Additional Sessions Judge, Sahiwal Camp-at-Chichawatni, recording conviction and awarding sentences, appellants are acquitted of all heads of charge.
31. Sentence of death awarded to Atta Ullah son of Muhammad Ramzan (appellant No, 1) is NOT CONFIRMED.
32. Murder Reference No, 32 of 2010 is accordingly answered in NEGATIVE.
33. Atta Ullah, appellant No, 1, is in jail. He be released forthwith if not required in any other case.
34. Appellants Nos.2 to 4 i.e, Ansar Ali, Mansab Ali and Asif are present on bail whose sentence were suspended by this Court and as such they and their sureties stand discharged of their respective bonds.