SARDAR TARIQ MASOOD, J.--- Zafar lqbal and Muhammad Afzal appellants along with Abdul Razaq (acquitted accused), were tried by the learned Addl. Sessions Judge, Sangla Hill in case FIR No,111/04 dated 11.05.2004 under sections 302/392, P.P.C., registered at Police Station Saddar Sangla Hills District Sheikhupura. The learned trial Judge vide judgment dated 16.03.2010 convicted Zafar Iqbal appellant under section 302(b), P.P.C. For committing intentional murder of Abdul Rauf (deceased) and sentenced him to death. The appellant was further directed to pay compensation of Rs,1,00,000 under section 544-A, Cr.P.C., to the legal heirs of the deceased or in default whereof to undergo four months' S.I. He was also convicted under section 392, P.P.C. And sentenced to 14 years'
R.I. With fine of Rs,10,000/- or in default thereof to further undergo four months' S.I.
' Whereas, appellant Muhammad Afzal was convicted under section 392, P.P.C. And sentenced to 14 years' R.I. With fine of Rs,10,000/- or in default thereof to further undergo four months' S.I.
' Zafar Iqbal and Muhammad Afzal appellants have filed Crl. Appeal No,245-J of 2013 and Crl.
Appeal No, 746 of 2010 respectively against their conviction and sentence, whereas, the learned trial Court has sent a reference (M.R.No, 314 of 2010) under section 374, Cr.P.C. For the confirmation of death sentence of Zafar Iqbal appellant or otherwise. We propose to dispose of these matters by this single judgment.
2. Brief facts of the case as narrated in the FIR (Ex.PE) lodged on the application (Exh. PE/1) of Muhammad Shafique complainant (P.W.6) are that he was resident of Bhullar Chak No,119 RB and had been running an Adda at Sangla Hill for transportation of goods known as Naulakha Lahore Goods. It is alleged in the FIR that on 11.5.2004 at 8.30 p.m he along with Muhammad Shehbaz was traveling along with driver Abdul Rauf and Conductor Shahzad on truck No,4435 FDD towards Shahkot after loading wheat and an other truck bearing. No,7036/LR whose driver was Ghulam Murtaza was following them and when both the trucks reached near brick kiln owned by Sakhi Muhammad, four unknown persons armed with fire arm weapons came in front of them and they forcibly stopped both the trucks, brought them out of the truck and on the gun point, looted cash of Rs, 8,000/- along with, Seiko 5 wrist watch from Abdul Rauf and also snatched a gold ring, engraved with the word "R" on it, from him, whereupon Abdul Rauf beseeches them to let him free, but one of the accused who was armed with Pump Action gun stated that Abdul Rauf was talking too much, therefore he will be finished, where upon, the said accused fired a shot hitting on the chest of Abdul Rauf who fell down and died at the spot. Thereafter, all the four accused armed persons fled away towards the fields. They were aged about 25/30 years and one of them was wearing Shalwar and Qameez and the other three were wearing trousers and shirts. It is further stated in the FIR that complainant along with his companion could recognize them in case they came across them.
3. Vide supplementary statement Exh. PE/2 Muhammad Shafique complainant stated that he had recognized six accused namely Muhammad Afzal, Zafar Iqbal, Liaquat Ali, Sarwar Ali, Muhammad Razaq and Ghulam Murtaza in the lockup of Police Post Blochini who had committed this occurrence.
' After completion of the investigation, report under Section 173 Cr.P.C. Was submitted against accused Abdul Razaq, Afzal, Liquat Ali, Zafar Iqbal and Pervaiz Ali in the Court for trial. Whereas Ghulam Murtaza accused was declared as a proclaimed offender. Charge was framed to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as eleven PWs. During the trial Liaquat Ali and Pervaiz Ali absconded and were declared Proclaimed offenders.
' Shafique Ahmad complainant (P.W.6) and Shahbaz Ahmad (PW.7) are the witnesses of ocular account.
' Muhammad Siddique Inspector, P.W.08 is the investigating officer of this case.
' P.W.09 Dr. Muhammad Naseer Ahmad Kahlon SMO on 12.05.2004 conducted the post mortem examination on the dead body of Abdul Rauf deceased and found the following injuries on his person:-- 1 ' A lacerated wound of entry 3 cm x 2-1/2 c.m. x perforation on the right and frontal part of thorax 4.5 cm away from the right nipple. Wound was oval in shape and directed to the left and having inverted margins.
2. An abrasion 3 cm x 2 cm on the left temporal part of the head.
' In his opinion, the death occurred due to profuse bleedings and severe shock leading to cardio respiratory arrest. In the ordinary circumstances injury No,1 was sufficient to cause death of a person in the course of nature. The probable time that elapsed between the injury and death was within 10 minutes while between death and post mortem examination round about 12 hours.
' Rest of the witnesses are formal in nature.
4. The statement of Zafar Iqbal and Muhammad Afzal appellants under Section 342, Cr.P.C. Was recorded. They denied the allegations levelled against them and claimed their innocence. In answer to the question, "why this case against you and why the PWs had deposed against you", both of them stated as under:-- "Instance of occurrence of murder is blind one. The complainant and PW-7 in connivance with the police at the belated stage with due deliberation and consultation, named me and other co- accused in this case. No recovery has been effected. No identification parade held. Both the PWs interested one on the behest of police. They deposed against me. "
' Neither the appellants opted to appear under Section 340(2), Cr.P.C. In disproof of the allegations levelled against them by the prosecution nor did they produce any defence evidence.
5. Learned counsel for the appellants in support of this appeal contends that FIR was chalked out on 11.05.2004 against four unknown robbers, whereas, on 5.11.2004, the complainant submitted an application (Ex. PE/2) and got recorded his supplementary statement by claiming that he had seen the appellants along with Liaquat, Pervaiz, Murtaza an Razzaq in the police choki Blochini district Faisalabad and he identified them there;. That the identification parade in the custody of the police in Police Post is absolutely irrelevant; that in the FIR four robbers were mentioned but in the supplementary statement six accused were nominated by the complainant without any explanation; that no identification parade was conducted in this case; that any disclosure of the appellants before the police, as claimed by the complainant, is inadmissible; that "Fard Nishandahi" i.e, Exh. PC and Exh. PD on the plantation of Zafar Iqbal and Muhammad Afzal appellants, respectively, during the custody of the police is inadmissible, as no new fact came into the knowledge of the police, due to the said disclosure or plantation; that one of the co-accused Abdul Razzaq who was also nominated by the complainant and the eyewitnesses in their supplementary statement, has been acquitted by the trial Court; that looted articles were not recovered on the pointation of the appellants.
6. It is a circumstance that on the previous date of hearing, the complainant was present and the actual date was given to him for today, but, neither he nor his learned counsel has appeared to argue this appeal.
' However, learned DPG while appearing on behalf of the State has vehemently opposed this appeal by contending that appellants were nominated in the subsequent application (Ex. PE/2) filed by the complainant on 15.11.2004; that both the appellants during investigation made disclosure and pointed out the place of occurrence, where, the deceased was done to death by them; that memos of plantation were prepared which is a strong piece of evidence against the appellants; that Zafar Iqbal and Muhammad Afzal appellants were arrested by Shujat Ali, SI/PW-10, in whose presence they made confession regarding this occurrence, during custody; that medical evidence supported the ocular account; that from the place of occurrence two crime empties of 12 bore were recovered, whereas, subsequently, Shujat Ali, SI/PW-10 who was Incharge of Police Post Blochini district Faisalabad, recovered a Pump Action Gun from the appellants.
7. We have heard the arguments of learned counsel for the parties and have also gone through the record with their able assistance.
8. Admittedly, in this case the complainant while lodging the FIR categorically stated that robbers who committed the robbery and murder of Abdul Kalif were four in number. He categorically mentioned therein in that he could identify the said four unknown robbers, if brought before him and the witnesses. According to the complainant on 15.11.2004 police showed the appellants and four other accused to the complainant in Police Post Blochini, and he identified all the six accused persons as the culprits of this case. He submitted an application (Ex. PE/2) in the shape of a supplementary statement to the police, thereafter, he identified the said accused in the Court.
' The somersault of the complainant and the witnesses by increasing the number of the robbers from 4 to 6 is a circumstance, which creates doubt upon the veracity of the statements of the witnesses of ocular account. They, according to the wishes of the police involved six accused persons in this case, which were shown to them by the police in the police post. In the FIR, the claim of the complainant and the witnesses was that they could identify the accused persons if brought before them. In that eventuality, the identification parade A was must which was dispensed with in this case, without any plausible explanation. It is also a circumstance that while lodging the FIR, the complainant had not given any specific description of the robbers who tired upon the deceased.
For the first time during trial he claimed that it was Zafar Iqbal appellant who fired upon the deceased.
Identification parade is necessary in criminal cases to ascertain whether the witnesses can identify the culprits who were allegedly seen by them during the occurrence. One of the conditions in the said test is that before the said test, the witnesses had no occasion or opportunity to see the culprits in the custody of the police or any one else. In this case, it is the prosecution's own case that the police had shown the appellants along with four accused persons to the complainant and the witnesses in the Police Post Blochini. This novel method was introduced by the police/ prosecution for proving the identification of the accused persons which is not supported by any law. It is the settled principle of law that identification parade can be conducted under the supervision of a Magistrate, who is required to conduct the identification parade, according to the High Court Rules and Orders.
9. Although, learned DPG argued that complainant and the witnesses had identified the appellants in the Court and specific roles were also given to them but this argument has no force because the identification parade duly conducted under the supervision of a Magistrate has a great value and strength and that strength can not be given to the identification of an accused in the Court for the simple reason that possibility of seeing the said accused in the Court before the said identification can not be ruled out. But in this case, it is prosecution's own case that prior to identifying the appellants in the Court, complainant etc had seen them in the Police Post Blochini in the custody of the police. So no reliance can be placed upon the said identification of appellants in the Court by the witnesses. It is also a circumstance that if witnesses are present on the dates of hearing, cases are adjourned for numerous reasons, therefore, sanctity can not be attached to that identification test held in the Court because there are many chances of the witnesses of seeing the accused during the investigation and during the proceedings of the trial. Identification of an accused produced as an accused in the Court, years after the event could not satisfy the requirements of law for proving the identity of the culprit. In this case, allegedly the witnesses had seen the unknown robbers on 11.5.2004. They admitted that they saw the witnesses in the police custody on 15.11.2004 and thereafter the appellants and the other co-accused kept on appearing before the Magistrate, and even before the learned trial Court. They started appearing before the learned trial Court since 28.3.2005. Firstly, on 3.6.2005, they were charge sheeted and, subsequently, one more accused was arrested and they were again charge sheeted on 13.7.2006 and during this period they remained appearing before the learned trial Court. The evidence of Shafique Ahmad complainant was recorded for the first time on 20.10.2009. So, the appellants kept on appearing before the trial Court for about four years prior to recording statements of the eye-witnesses. In that eventuality, the accused were exposed to the general public on each and every date of hearing, therefore, the identification of appellants in the Court has no value and the prosecution remained fail to prove the identity of the appellants, according to the law. So, the ocular account is not confidence inspiring, without any legal identification parade.
10. So far recovery of the Pump Action gun from Zafar Iqbal appellant is concerned, said recovery was effected in another criminal case. Said weapon of offence was never produced during the trial to prove that it was the same gun which was allegedly recovered on the plantation of Zafar Iqbal appellant. Even otherwise, there is no positive report of the Forensic Science Laboratory, on the file.
In the absence of anN positive report of the Forensic Science Laboratory the recovery of any weapon is inconsequential and no reliance can be placed upon said recovery.
Although, learned DPG argued that Shujat Ali, SI/PW-10 categorically stated that the appellants made disclosure before him that they had committed this occurrence, but said disclosure before the Police officer is inadmissible being hit by Article 38 of Qanun-e-Shahadat Order, 1984, hence, no weight can be given to such disclosure of the appellants before Shujat Ali PW-10 while in the police custody.
' It is also a circumstance that complainant, in his application (Ex.P.E/2) (supplementary statement) also nominated Abdul Razzaq as a robber out of six accused persons who was also tried by the Vial Court along with appellants but was acquitted of the charge. Meaning thereby, that set of witnesses of the ocular account to the extent of Abdul Razzaq was disbelieved by the learned trial Court. The evidence which was disbelieved to the extent of remaining accused can not be taken into consideration against the appellants, without any independent corroboration. In this case, there is no independent corroborative piece of evidence to the ocular account which has already been disbelieved to the extent of one of the accused i.e, Abdul Razzaq. So, no reliance can be placed on the ocular account furnished by the prosecution.
In this case Shahzad Ahmad was shown to be the conductor of the said truck who was also present at the time of occurrence and had seen the occurrence, but, surprisingly, he was not produced in this case by the prosecution, thus, the inference which easily can be drawn under Article 129-g of Qanun-e-Shahadat Order, 1984 is that said witness was not going to support the prosecution version, and adverse inference can be drawn against the prosecution.
11. Learned DPG while arguing the case had mainly relied upon the memos. Of identification Exh. PC and Exh. PD prepared during the investigation on the pointation of Zafar Iqbal and Muhammad Afzal appellants. According to the prosecution the appellants made disclosure and pointed out the place of occurrence. According to learned DPG this disclosure was relevant under Article 40 of Qanun-eShahadat Order, 1984 as thereafter appellants had pointed out the place of occurrence.
Irshad Ahmad PW-2 in his statement stated that on 21.12.2004 both the appellants along with Liaquat Ali and Pervaiz Ali in police custody made disclosure/confession regarding occurrence of this case and pointed out the place of occurrence. Whereupon memos. Of identification of the place of occurrence were prepared. The other witness namely Muhammad Siddique Inspector PW- 8 did not utter a single word that prior to the pointing out the place of occurrence the appellants made any disclosure regarding this occurrence and simply stated that on 21.12.2004, on the plantation of the accused he prepared the memos. Of the identification.
' Before appreciating argument of learned DPG, raised above, Article 40 of Qanun-e-Shahadat Order, 1984 is reproduced as under:--
40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
From the above Article of Qanune-Shahadat Order, 1984 it is quite clear that prosecution in order to apply Article 40 of said Order, has to establish that information given by the accused led to the discovery of some new fact and the discovery must be of some fact which the police had not previously learnt from any other corner and the said fact was for the first time derived from the information given by the accused. Even otherwise, the information or disclosure by any accused person in the custody of the police, before a police-officer is inadmissible/irrelevant under Articles 38 and 39 of Qanun-e-Shahadat Order, 1984. In this case, although, Irshad Ahmad Constable/PW-2 claimed that the appellants made disclosure/confession regarding the occurrence of this case, but in consequence of said disclosure, no new fact was disclosed. So far pointation of the place of occurrence is concerned, it is an admitted fact that the place of occurrence was already in the knowledge of the police and the complainant party, because in this case allegedly Shafique Ahmed complainant/PW-6 and Shahbaz Ahmad PW-7 claimed themselves to be the eyewitnesses of the occurrence. The police collected the blood stained earth and empties from the place of occurrence when inspected the said place on 11.5.2004. So, the place of occurrence which was allegedly pointed out by the appellant on 21.12.2004 was already in the knowledge of the police since 11.5.2004. So, no new fact was discovered on the information/disclosure of the appellants and memos of identification Ex. PC and Ex. PD are absolutely inadmissible in evidence which, according to the law, should have not been brought on the record by the trial Court. Surprisingly, during trial, the defence side had not raised any objection when said memos of identification were exhibited.
The inadmissible evidence was brought on the file by the trial Judge without using his judicious mind while recording the evidence. So, no reliance can be placed on the memos of identification i.e, Exh. PC and Exh. PD prepared by the police during the investigation.
12. Due to the above mentioned reasons, the prosecution remained fail to prove its case against the appellants beyond any shadow of doubt. Resultantly, Crl. Appeal No,245-J of 2013 and Crl.
Appeal No, 746 of 2010 filed by Zafar Iqbal and Muhammad Afzal appellants respectively are allowed. The conviction and sentence recorded against the said appellants by the trial Court is set aside. Both the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in connection with any other criminal case.
13. Death sentence of Zafar Iqbal appellant is not confirmed. Murder Reference No, 314/2010 is answered in negative.