Ch. Abdul Aziz, J.--This single judgment shall dispose of Criminal Appeal No, 580 of 2012 filed by Adnan son of Baboo Fayyaz (against his conviction) and Murder Reference No, 151 of 2012 sent by the learned trial Court for the confirmation or otherwise of the death sentence awarded to Adnan (appellant). Learned Additional Sessions Judge, Wazirabad, vide judgment dated 16.03.2012 while acquitting co-accused Abdul Shakoor convicted and sentenced the appellant as under: Convicted under Section 302(b), PPC and was awarded death sentence for committing Qatl-i- amd of Azmat (deceased). He was also ordered to pay an amount of Rs,200,000/- as compensation u/S. 544-A, Cr.P.C. to the legal heirs of the deceased, in the event of default in the payment of the amount the appellant was directed to suffer imprisonment for a period of 6- monhts.
2. The instant Murder Reference and the connected appeal are arising out of case FIR No, 471/2010 dated 29.07.2010 registered under Sections 302, 109, 34, PPC at Police Station Alipur Chattha, Wazirabad. The FIR was registered on the report of Zaka Ullah, brother of deceased (PW.10).
3. Precisely stated the facts of the prosecution case as narrated by Zaka Ullah Complainant (PW.10) in FIR (Exh.PA/1) are that they are three brothers and one sister. His younger brother Azmat Ali (deceased) used to work in Saudi Arabia and had come on leave 2-1/2 months before the occurrence. On 29.07.2010 at 7:30 a.m. the complainant along with Javed (PW.12) was working in the agricultural field, whereas, Azmat Ali (deceased) and his friend Ijaz Ahmad (PW.11) were going towards village and were at a distance of 50/60 yards from them alongside the watercourse.
Suddenly, Iftikhar (co-convict) armed with .12 bore gun and an unknown person armed with rifle came thereat while riding motorcycle Honda 125-CC. Iftikhar Ahmad (co-convict) raised a lalkara that Azmat Ali should not be spared. In the meantime, unknown person made a fire shot which hit on the right leg beneath the knee of the complainant's 'brother. Azmat Ali (deceased) fell down whereupon Iftikhar Ahmad (co-convict) made four fire shots with his .12 bore gun hitting Azmat Ali (deceased) on his face, chest, belly and other parts of body. Ijaz Ahmad was got halted by the unknown accused. After the assurance of death of Azmat Ali, the accused persons went towards dera while resorting to aerial firing. Allegedly the occurrence took place at the abetment of Abdul Shakoor. The motive behind the occurrence was stated to be the land dispute.
4. After the registration of FIR (Exh.PA/1), investigation of this case was entrusted to Muhammad Sarwar SI (PW.15). He upon the receipt of complaint (Exh.PA) and FIR (Exh.PA/1) visited the place of occurrence, inspected the dead body of the deceased, prepared injury statement (Exh.PN) and inquest report (Exh.PO). During the spot inspection, he secured blood-stained earth vide memo.
(Exh.PK), three crime empties of .222 bore gun (P.4/1-3) and four empties of .12 bore gun (P.5/1-4) vide memo. Exh.PL. He drafted application for the postmortem examination of deceased (Exh.PP) and dispatched the dead body to the mortuary under the escort of Ehsan Ullah 2317/C. On the same day, he recorded the supplementary statement of the complainant Zaka Ullah (complainant) through which he implicated Adnan (appellant) as an accused in place of unknown person mentioned in the FIR. On 05.11.2010 he arrested Adnan (appellant) and Abdul Shakoor (acquitted accused). On 06.11.2010, he forwarded Adnan (appellant) to judicial lock up for the purposes of identification test, which was held on 13.11.2010 in jail premises. Subsequent to identification test, the physical remand of the appellant was obtained by the police during which he led to the recovery of .222 bore rifle (P.3) vide memo. (Exh.PK). He recorded the statements of witnesses under Section 161, Cr.P.C. and got forwarded the report under Section 173, Cr.P.C.
5. The prosecution, in order to prove its case against the appellant and his acquitted co-accused, produced as many as 16-witnesses which include Zaka Ullah complainant (PW.10), Ijaz Ahmad (PW.11) and Javed Ahmad (PW.12), eye-witnesses of the occurrence, Dr. Hafiz Muhammad Akram (PW.3) who produced the medical evidence, Muhammad Sarwar SI (PW.15) who conducted the investigation of this case and Yasir Fareed Kalason, Special Judicial Magistrate (PW.14) who supervised the proceedings of the identification test.
6. The medical evidence in this case was furnished by Dr.Hafiz Muhammad Akram (PW.3) who on 29.07.2010 at 5:00 p.m., conducted autopsy of the dead body of Azmat Ali deceased and noted the following injuries:-- I. Three lacerated fire-arm wound 2 x 2 cm on the chin and lip, all are entrance wounds but no exit, black and inverted margin.
II. Seven fire-arm lacerated wounds, all entrances, black and inverted margin 1 x 1 cm left side of abdomen.
III. Five lacerated wounds 3 x cm, all exits of Injury No, 2 right side of abdomen.
IV. Firearm lacerated wound 1 x 1 cm, entrance wound back of right hand.
V. Firearm lacerated wound 2 x 2 cm, exit of Injury No, 4 palmer aspect of right hand.
VI. Firearm lacerated wound 1 x 1 cm, entrance wound back of right wrist.
WI. Firearm lacerated wound 2 x 2 cm exit of Injury No, 6 front of right wrist.
VIII. three fire-arm lacerated wounds 2 x 2 cm, all entrances, no exit right thigh.
IX. Firearm lacerated wound 1 x 1 cm, entrance wound, back of right lower leg.
X. Firearm lacerated wound 3 .x 3 cm, exit of Injury No, 89 front of right lower leg.
According to the opinion of doctor, all the injuries were caused through fire-arm weapon and were found to be ante mortem in nature. Injuries Nos, 1, 2, 3, 8 & 9 were described to be the cause of death, whereas the remaining injuries were declared as supporting to the above-injuries. The doctor opined that the injuries caused profuse bleeding leading to haemorrhage shock and death.
The probable time between injury and death was noted to be within about ten minutes and between death and postmortem as about 8-hours.
7. The statement of the appellant was recorded under Section 342, Cr.P.C. In response to the question "why this case stands registered against you and why PWs deposed against you", Adnan (appellant) replied as under: "I am son of the sister of mother of Abdul Shakoor and Iftikhar accused. I have been involved in this case being the relative of Iftikhar accused."
Neither the appellant opted to appear as a witness under Section 340(2), Cr.P.C. nor produced any evidence in his defence. However, Abdul Shakoor (acquitted co-accused) produced Muhammad Aftab as DW.1.
8. After the conclusion of trial, the learned trial Court while acquitting co-accused Abdul Shakoor convicted and sentenced the appellant as afore-stated, hence, the instant appeal and Murder Reference. It is pertinent to mention here that Zaka Ullah (complainant) filed Criminal Appeal No, 713 of 2012 against the acquittal of Abdul Shakoor (Respondent No, 2) but the same was dismissed in limine by the Division Bench on 06.10.2016.
9. Learned counsel for the appellant has contended that the appellant was not nominated in the FIR and was implicated on the basis of supplementary statement of the complainant; that the complainant while appearing in the Court failed to explain as to how he came to know about the identity of the appellant; that besides the non-nomination of the appellant in the FIR, no description was incorporated in the crime report; that though the appellant, subsequent to his arrest was subjected to an identification test/parade but the same was not conducted in accordance with the 'statutory as well as judicial directions; that no role was attributed to the appellant, during the course of identification test/parade; that the appellant was implicated in the case,- on the basis of the back-dated statements recorded much after the occurrence; that this aspect is supported by the fact that two persons namely Shakeel and Sarmad were arrested in the case as unknown persons; that the arrest of Shakeel and Sarmad was admitted by Zaka Ullah, the complainant of the case; that if at all. Adnan (appellant) was nominated in the case on the day of occurrence then there was no occasion to arrest Shakeel and Sarmad in place of unknown accused; that though the warrants and proclamation of the appellant were obtained but it was proved during trial that the same were not served upon the appellant as well as at his normal place of abode; that the medical evidence is also not supporting the ocular account so far as it relates to the role attributed to the appellant and that the benefit of doubt, arising out of contradictions and discrepancies from the prosecution evidence, was not extended to the appellant.
10.On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently controverted the arguments advanced by the learned counsel for the appellant and submitted that though the appellant is not nominated in FIR, however, he was implicated in the case on the basis of supplementary statement of the complainant and the statements of the witnesses recorded under Section 161, Cr.P.C. which were recorded without any delay; that the appellant was duly identified in an identification parade held in the judicial custody, under the supervision of a Magistrate; that the case of the prosecution is getting due corroboration from the recovery of .222 bore rifle affected on the disclosure and pointation of the appellant; that the rifle recovered from the appellant, matched with the crime empties of similar bore secured from the crime scene and that the appellant was ascribed the role of inflicting a fire-arm injury on the body of the deceased in the promptly lodged FIR.
11.Arguments heard and record perused with the able assistance of the learned counsel for the respective parties.
12.The case of the prosecution primarily hinges upon three eye-witnesses namely Zaka Ullah (PW.10), Ijaz Ahmad (PW.11) and Javed Ahmed (PW.12), the recovery of rifle .222 bore (P.3) witnessed by Muhammad Zubair (PW.9) and the medical evidence brought on record through Dr. Hafiz Muhammad Akram (PW.3). The prosecution sought corroboration from the abscondance of the appellant through warrants (Exh.PE) and the proclamation (Exh.PH).
13.The unfortunate occurrence, which gave rise to the registration of instant case, took place on 29.07.2010 at about 7:30 a.m. within the territorial jurisdiction of P.S. Alipur Chattha, District Gujranwala. The police station is stated to be situated at a distance of 7-miles from the crime scene. The matter was brought to the notice of local police through written application (Exh.PA) moved by Zaka Ullah (PW.10). On the basis of this application, formal FIR (Exh.PA/1) was registered at 9:00 a.m. It divulges from the FIR (Exh.PA/1) that the occurrence was committed by two persons.
Out of these two persons, one was nominated as Iftikhar Ahmed son of Muhammad Sharif whereas the other assailant was shown as unknown. It is important to mention here that no description of the unknown person is mentioned in FIR. The appellant was subsequently implicated in the case in place of the unknown person. According to the narration of facts, mentioned in the crime report, the unknown person caused an injury from a rifle on the right leg of Azmat Ali (deceased), whereas Iftikhar Ahmed (co-accused) was saddled with the responsibility of firing four successive shots towards the deceased.
14.According to the prosecution case, Adnan (appellant) was implicated through the supplementary statement of the complainant as well as through the statements of the witnesses under Section 161, Cr.P.C. recorded immediately after the occurrence. All the three eyewitnesses namely Zaka Ullah (PW.10), Ijaz Ahmed (PW.11) and Javed Ahmed (PW.12), while appearing before the Court reiterated the same stance. However, an in depth analysis of the record reveals that such claim of the witnesses is doubtful in nature. It manifests from the statement of Zaka Ullah (PW.10) that even prior to the moving of application (Exh.PA) for the registration of FIR he had acquired knowledge that the unknown person is Adnan (appellant). In this respect, the relevant extract from his cross-examination is being reproduced below: "I went to P.S Ali Pur Chattha for registration at 8.30 AM. Aurangzeb was with me at that time. I went to Ali Pur Chattha police station straight from the place of occurrence. I was going towards village after the occurrence whereupon at a distance of 4/5 Killas Aurangzaib happened to meet me. I narrated him story of occurrence. I told that Adnan and Iftikhar had committed the murder. I asked him to accompany me to police station. We went to P.S by motorcycle".
Such extract gives sufficient reflection that even before moving application (Exh.PA) this was within the knowledge of Zaka Ullah (PW.10) that the unknown person is none other than Adnan (appellant). However, surprisingly, neither in the FIR nor in the brief facts mentioned in the inquest report (Exh.PO) the name of Adnan (appellant) is mentioned. Even otherwise, such stance of Zaka Ullah runs contrary to the theory of the prosecution case. The inquest report, as it depicts from its column No, 24, was prepared at the crime scene. In such an eventuality, if at all, the identity of Adnan was within . the knowledge of the witnesses, it should have been incorporated in the inquest report. The inquest report is prepared under the provisions of Chapter 25, Rule 35 of the Police Rules, 1934 and is of immense importance in every murder case. The inquest report is a part of method/system to keep a check on subsequent fabrication of record. The inquest report is prepared by the police official, who is assigned the task of paying a visit to the crime scene for the purposes of investigation, on the day of occurrence. The inquest report is prepared on the completion' of such investigation and gives some reflection about the witnesses in attendance, the weapon used in the commission of crime, the detail of injuries on the body of the deceased, presence of the crime empties etc. at the crime scene, the nature of weapon and the brief facts of the case. Such information can easily be gathered from the perusal of its relevant columns. Due to this reason, this Court in the case of Ahmad Nawaz an others v. The State and others (2016 P Cr. L J 1267) and the Hon'ble Apex Court in the case of Muhammad Ilyas v. Muhammad Abid alias Billa and others (2017 SCM R 54) took into consideration the importance of inquest report in the peculiar perspective of the cases. As discussed earlier, the name of Adnan finds no mention in the relevant column of the inquest report, meant for incorporating the brief facts of the case. If at all, the witnesses had implicated Adnan through statements recorded under Section 161, Cr.P.C., the Investigating Officer should have made some reference of these statements.
It also came on record that two persons namely Shakeel and Sarmad were associated in the investigation in place of unknown persons mentioned in the FIR. Such aspect was admitted by Zaka Ullah (PW.10). It would be appropriate to reproduce relevant portion from his evidence which is as under: "Police had taken into custody Shakeel and Sarmad in connection with present case. They remained in police custody for about one month. It is incorrect to suggest that Adnan was nominated in the case after one month of the occurrence. Shakeel and Sarmad were taken into custody as unknown persons mentioned in the FIR."
In view of above extract from the testimony of Zaka Ullah (PW.10), the question arises that if at all Adnan was nominated in the case on the day of occurrence, then why two persons were detained in the case in place of unknown persons. The only inference this Court can draw is to the effect that probably till that time the name of Adnan had not surfaced on the record of the case. Such inference is further fortified from =other feature of the case, Adnan (appellant), as discussed above, was subjected to identification test on 13.11.2010. Ijaz Ahmed (PW.11) and Javed Ahmed (PW.12) though according to their claim had nominated Adnan appellant in their police statements, however, surprisingly, both of them were made to join the identification proceedings. Learned Deputy Prosecutor General as well as learned counsel for the complainant has failed to offer any plausible explanation as to why the identification test was conducted through these two witnesses.
In this backdrop, we are of the view that it will not be safe to place reliance on the claim of Ijaz Ahmed (PW.11) and Javed Ahmed (PW.12) so far as it relates to the nomination of the appellant in their police statements.
15. The identification test is normally conducted when an accused is not previously known to the witnesses and they have his momentary glimpse. Furthermore, it becomes imperative to hold such test if the witnesses claim that they can identify the accused, if brought before them. Needless to mention here that such an identification is to be conducted in accordance with certain rules and procedure. Admittedly, no instructions or the details regarding the holding of identification test stand incorporated in the Code of Criminal Procedure, 1898 or in the Qanurt-e-Shahadat Order, 1984. Article 22 of Qanun-e-Shahadat Order, 1984 which is normally referred for identification test only pertains to its relevancy and does not. provide any procedure. However, certain guidelines are given in Rules and Orders of the Lahore High Court Volume 3 Chapter 11, Part-C. Before making an in depth analysis of identification test held in the instant case, it would be appropriate to have a glance over the instructions incorporated in the Rules and Orders of the Lahore High Court, which are as under:-- "Instructions issued by the Punjab Government regarding identification parades.--The following instructions have been issued by the Punjab Government for the guidance of Magistrates in their conduct of identification parades (Punjab Government circular Letter No, 6091-J-36/39829(H- Judl.), dated the 19th December, 1936 to all District Magistrates in the Punjab):-- (1). List of all persons included in the parade should be prepared.--The Magistrate in charge of an identification parade should prepare a list of all persons, including the accused, who form part of the parade. This list should contain the parentage, address and occupation of each member of the parade.
(2).Note about identification by witnesses.--When any witness identifies a member of the parade, the Magistrate should note in what connection he is identified. A note should also be made if the witness identifies a person wrongly; in such a case it is incorrect to note that the witness identified nobody. All persons identified must be mentioned, whether the identification is right or wrong. If a witness, on being called for the purpose, states that he cannot make any identification, a note should be recorded by the Magistrate to this effect.
(3).Objection or statements by accused or identification witnesses to be recorded and power of Magistrate to decide objections.--Should the accused make any complaint or statement it should be recorded by the Magistrate. If from his personal knowledge the. Magistrate is able to decide beyond doubt that the complaint is false or futile, a note to this effect should be made, but in other cases it is advisable to leave any decision as to the value to be attached to the objection to the Court trying the case. The Magistrate should also record any statement made by a witness before making an identification.
(4).Duty of. Magistrate to record precautions taken and to note other points.--the Magistrate should state--
(a) what precautions he has taken to ensure-- (i)that the witnesses do not see the person to be identified by them before the identification proceedings commence; (ii)that no communication which would facilitate identification is made to any witness who is awaiting his turn to identify; and (iii)that after making identification the witnesses do not communicate with other witnesses who have yet to do so;
(b) whether the person to be identified is handcuffed or is wearing fetters; and if so, whether or not other persons taking part in the parade are handcuffed or are wearing fetters, and also whether or not they are inmates of the Jail.
In addition to the above-mentioned instructions, the superior Courts of the country have also laid down some guidelines for holding identification test. Similarly, certain precautionary measures are also required to be adopted during investigation as well as at the time of holding of identification test. The primary object of such measures is to ensure that the accused must not be exposed to the witnesses. In this regard, certain steps are required to be taken by the Investigating Officer when such an accused is detained in the police station during his detention under Section 61 of Cr.P.C. Such steps are required to be incorporated in the station diary as well as in the case diary of the case. The purpose behind doing so is to prove that maximum effort was made to conceal the identity of the accused. Since these precautions are not simple formality but are legal requirements, hence, are required to be proved even during trial. In this regard, reference can be made to the case of Shafqat Mehmood and others v. State (PLJ 2010 SC 986) wherein the Hon'ble Supreme Court of Pakistan observed as under:-- "It is settled principle of law that it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identification parade. It is pertinent to mention that all these precautions should not only be taken but should be proved to have been taken and these precautions should be recorded in the initial record like general diary of the police station and the daily register and the same should be produced in Court. In the absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses."
In addition, the production of the accused before the area magistrate with muffled face can only be proved by incorporating this fact in the request for judicial remand. Likewise, at the time of the identification test, the accused is to be mixed up with the dummies in minimum ratio of 1-8. These dummies must be of nearer to similar description of the accused.. In order to ensure that the accused was actually mixed up with 8/9 persons or dummies, their names, parentage, address and occupation is to be incorporated in the memo. of identification test. If such persons or dummies are under trial prisoners, then the particulars of the case in which they stand arrested is also to be incorporated.
The purpose of identification test is not simply to adjudge the memory of a witness but is aimed at aiding the Courts in administering the justice. The concept of punishment is directly linked with the role of a perpetrator in the commission of crime. Needless to mention the quantum of punishment is always dependent upon the act performed by an accused in the crime. In this backdrop, the simple identification of an accused has no legal significance and instead an accused is to be identified in reference to the role played by him towards the commission of offence. The Hon'ble Supreme Court of Pakistan has consistently held that an identification test, without attribution of role to an accused is of no evidentiary value. In this respect, reference can be made to the case of Mehmood Ahmed and 3 others v. The State (1995 SCM R 127). Following was the observation of the Hon'ble Supreme Court of Pakistan:-- "It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value". Similarly, in the case of Muhammad Fayyaz v. The State (2012 SCM R 522), the Hon'ble Supreme Court of Pakistan rendered the identification test of no legal significance, in which the accused was not identified in reference to the role played by him in the commission of crime. The observation of the apex Court is as under: "After his arrest the appellant was put to a test identification parade and although he had been correctly picked up by the eye-witnesses 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 is next to nothing". Similar view was expressed in a recent pronouncement of the Hon'ble Apex Court of the country in the case of Azhar Mehmood and others v. The State (2017 SCM R 135). We have made an in depth analysis of the evidence of identification test of the instant case, on the touchstone of the relevant provisions of Rules and Orders of the Lahore High Court and the pronouncements of the Hon'ble Supreme Court of Pakistan on the subject. It divulges from the record that the identification test was not conducted in accordance with the ratio laid down in the Rules and Orders of Lahore High Courts. The appellant was mixed up with seven dummies, without disclosing their addresses, occupation and the particular of the cases in which they were arrested.
Similarly, no role whatsoever is assigned to the appellant by any of the witnesses. In this view of the matter, we do not have any other option but to hold that the evidence of the identification test is of no evidentiary value, hence, cannot be considered in any manner for maintaining the conviction and sentence awarded to the appellant.
16. During the course of arguments, the recovery of .222 bore rifle (P.3) was portrayed as a strong point of the prosecution case. The rifle (P.3) though matched with the crime empties of similar bore secured from the crime scene but its recovery is blanketed in doubts. The recovery of the rifle was witnessed by Muhammad Zubair (PW.9). His examination-in-chief was recorded on 25.06.2011.
However he omitted to mention a single word about the recovery of the rifle. Resultantly, he was re- called and re-examined to prove the recovery of the rifle. Now the question arises, if at all he had witnessed the recovery of the rifle, how he forgot to narrate such an important fact when he was being examined on 25.06.2011. Even otherwise, the crime empties which were stated to be recovered from the crime scene and subsequently were found to be wedded with the rifle (P.3) find no mention in the column No, 23 of the inquest report. Above all, the report of FSL (Exh.PW) only suggests that the crime empties were fired from, the rifle (P.3) which alone is not sufficient for awarding conviction and sentence to the appellant. In order to prove that the shots were fired by the appellant, the prosecution has to bring on record confidence inspiring and trustworthy ocular account which in the instant case is lacking.
17. We have also considered the alleged abscondance of the appellant. In support of the abscondance, warrants (Exh.PE) and proclamation (Exh.PH) are brought on record through Muhammad Afzaal 1173/C (PW.7). It reveals from his testimony that he failed to satisfactorily prove the service of warrants and proclamation. Moreover, this is a settled law that a person cannot be convicted on the basis of abscondance alone. The abscondance of an accused at the most can provide corroboration, though frail in nature, to the ocular account.
18. The scrutiny of the prosecution case reveals that that the ocular account, to the extent of Adnan (appellant) is not found to be above board or trustworthy. The three eye-witnesses have made divergent statements about the appellant. The evidence of identification test is also found to be of no legal significance. Similarly, the report of FSL (Exh.PW) and the abscondance of the appellant are insufficient to uphold his conviction. Admittedly, the recital of the prosecution evidence is giving rise to many doubts about the involvement of the appellant in the commission of offence. Consequently, while giving benefit of doubt in favour of Adnan, the appellant, Criminal Appeal No, 580 of 2012 is allowed, his conviction and sentence is set-aside and he is acquitted of the charge. Adnan (appellant) shall be released forthwith if not required to be detained in any other criminal case.
19.Consequently Murder Reference No, 151 of 2012 is answered in the NEGATIVE and death sentence awarded to Adnan son of Baboo Fayyaz Ahmad (appellant/convict) is NOT CONFIRMED.