1. ' ALI MUHAMMAD BALOCH, J.--- The appellants Mushtaque Ali Kalhore, Asghar Ali Shah and Hatim Ali Shaikh were tried by Special Court No,III (Suppression of Terrorist Activities) Karachi, in the case in which A.S.I. Niaz Ahmed of C.I.A. Centre-II, Karachi was shot dead. The appellants were found guilty and were convicted and sentenced as under:--.
2. ' Appellants Asghar Ali Shah and Mushtaque Ali Kalhoro sentenced to death, appellant Hatim Ali Shaikh sentneced to imprisonment for life.
3. ' Along with the above named appellants, co-accused Abdul Sattar Morio, Inayatullah Narejo, Muhammad Ali Khokhar and Rasheed Bughti were also tried for the same offence but the trial Court acquitted them.
4. ' The appellants Mushtaque Ali, Asghar Shah and Hatim Ali Shaikh have challenged their conviction by two separate appeals. Since the appellants were tried jointly and convicted by the common judgment, these appeals are being disposed of by this single judgment.
5. ' In nutshell, the facts of the case are that deceased A.S.I. Niaz Ahmed who was serving at C.I.A.
6. Centre-II, Sir Syed Road Karachi, was shot dead on 11-11-1990 when he was about to come out of his car after parking the same on the road near the gate of the C.I.A. Centre. This C.I.A. Centre has an iron gate, which remains closed. It has a hole for peeping through, which is about 3" in diameter and a policeman remains on duty inside the gate, able to peep through this hole and open the gate if the need be, for security reasons. On 11-11-1990 P.W. Ahmed Hussain, Constable at this C.I.A.
7. Centre was on duty behind the gate, when he was attracted by fire-arm reports coming from the road in front of the C.I.A. Centre. On peeping through the hole he saw two persons armed with Kalashnikovs in the process of sitting in a car, after making the firing, and were trying to get away.
8. Ahmed Hussain fired four rounds from his China rifle which he was carrying at that time, but the culprits sped away in the car. Ahmed Hussain also noted another car in which also two persons sped away. Ahmed Hussain as well as other staff present at C.I.A. Centre rushed outside and found that A.S.I. Niaz Ahmed had been killed in a beige color car which was standing outside the C.I.A.
9. Centre on the road. The incident had taken place within the jurisdiction of Ferozeabad Police Station and the C.I.A. Centre-II had no facility to register the case at that time. After about 10/15 minutes, Ferozabad Police reached at the scene of incident and Raja Muhammad Ghous the S.H.O., took the charge of the investigation. Statement of P.W. Ahmed Hussain was recorded by Muhammad Ghous on the spot under section 154, Cr.P.C. Which was later on transcribed in the book as the F.I.R. At Police Station Ferozabad. In this F.I.R. P.W. Ahmed Hussain had stated that on that day at about 3-30 p.m. When he was performing his duty at the gate and was watching outside from the hole in the gate, he heard fire shots. Then he found two persons outside, of whom one was .Carrying a Kalashnikov in his hand and they were in the process of sitting in a car, quickly, after firing. He stated further in his statement before S.H.O. That he will be able to identify them on seeing them again. In respect of the culprits he gave their features to be of normal height, and aged about 25/30 years, He also stated that he had fired at the culprits 4 rounds from his Chinese rifle, but the culprits sped away in their car. When Ahmed Hussain along with other officers of C.I.A.
10. Centre came out of the gate they found the car of A.S.I. Niaz Ahmed parked on the road, having bullets holes in its wind screen and back screen. Dead body of Niaz Ahmed was lying inside the car in a pool of blood.
11. ' The S.H.O., Ferozabad had recorded statements of two more witnesses who claimed to have also witnessed the incident. They were P.Ws. Muhammad Azad, A.S.I. Police and Khalid Pervez, Head Constable Police, both posted in the same C.I.A. Centre at the time of the incident. These two witnesses narrating the story told the S.H.O. That on that day they were on duty at the C.I.A. Centre but had. Gone to take tea in a canteen outside the Centre and were on their way back to the C.I.A.
12. Centre. When they were at some distance from the C.I.A. Centre, they saw two cars coming in speed, and stopped in front of C.I.A. Gate. Three persons from one car and two from the other, came out. They also noticed that A.S.I. Niaz Ahmed's car was already parked there. The 5 persons riding in the two cars which came in speed and stopped in front of the C.I.A. Gate were armed with klashnikovs and pistols. All of them fired at Niaz Ahmad, when they came parallel to his car and then sped away in their cars, They also stated that the policeman on duty at the gate of the C.I.A.
13. Centre had also fired towards the culprits, when they were in the process of escaping after making firing. Both these witnesses noticed that Niaz Ahmed had died due to fire-arm injuries which hit his head and other parts of the body. The S.H.O., Ferozabad who was there, had recorded their statements.
14. ' The police during investigation recovered empties of klashnikovs and pistols from the Wardat.
15. ' Appellants Asghar Ali Shah and Hatim Shaikh were arrested on 1-4-1991 while accused Mushtaque Ali Kalhoro was arrested on 25-5-1991. These accused were in fact formally shown arrested in this case on the above dates while they were already in custody of Gulberg Police in some other cases.
16. After the investigation, the police found the following pieces of evidence against the appellants on the basis of which they were produced before the Court for trial:--
(1) Appellants Asghar Ali Shah and Hatim Shaikh had pointed out the place of Wardat on 7-4-1991 to the police.
(2) The appellants Mushtaque Ali Kalhoro, Hatim Shaikh, Asghar Ali Shah were produced before Mr. Rasool Bux Abro, A.C.M., Karachi East, for identification test on 1-6-1991 and they were picked out by P.Ws. Ahmed Hussain, Azad and Khalid Pervez in presence of the Magistrate, to be the culprits, whom they had seen firing at Niaz Ahmed's car on the date of incident.
17. ' To prove their case, the prosecution examined the following witnesses who claimed to be the eye- witnesses of the incident:-- (1) Ahmed Hussain, (2) Muhammad Azad and (3) Khalid Pervez. Ahmed Hussain was the constable posted inside the gate of the C.I.A. Centre who claimed to have seen the incident on hearing the reports of gun fires by peeping through the hole, in the gate and thereafter he also claimed to have fired towards the culprits from his Chinese rifle. Ahmed Hussain was examined after 10/15 minutes of the incident by the S.H.O., Police Station Ferozabad, who while on patrolling had learnt about the incident and had reached the Wardat. In his statement under section 154, Cr.P.C. Before the S.H.O., Ferozabad, P.W. Ahmed Hussain spoke of having noticed only two culprits and their car, and that these two culprits had fired at the deceased Niaz Ahmed. P.W.
18. Ahmed Hussain did not state that he noticed the second car and the culprits riding in that car, in his statement under section 154, Cr.P.C. But in his deposition before the Court he improved his statement by adding that he also saw another car with two more culprits. However, Ahmed Hussain in his 154, Cr.P.C. Statement gave description of only two culprits that also in the following terms: "They were of normal heights and aged around 25/30 years". Beyond this no other particular about the description of the culprits was given by P.W. Ahmed Hussain in his F.I.R. Thereafter nearly after a period of 6 months P.W. Ahmed Hussain was put to an identification test wherein he picked out appellants Asghar Ali Shah, Mushtaque Ali Kalhoro, Hatim Shaikh and Inayatulalh Narejo.
19. Although in the F.I.R. P.W. Ahmed Hussain had given the sketchy description in respect of only two culprits, whom he had seen through the 3" diametre hole in the iron gate on peeping from it, after a period of 6 months, he picked out in the identification parade 4 culprits, which include the three present appellants. In the similar circumstances P.Ws. Muhammad Azad and Khalid Pervez the only other witnesses who claimed to have seen the incident when they were returning after having tea in a nearby canteen also picked out in the same identification test the present appellants. In addition, P.Ws. Khalid Pervez and Muhammad Azad also picked out Inayatullah Narejo to be the 4th culprit. Accused Inayatullah Narejo has been acquitted by the trial Court.
20. ' Apart from the evidence of these three witnesses Ahmed Hussain, Muhammad Azad and Khalid Pervez, the only other piece of evidence against the present appellants could be said that the pointing out the place of incident to the police when arrested. We do not consider this second piece of evidence to be incriminating for the reason that the place of incident which was known as the front of the gate of the C.I.A. Centre on the road was not such that was unknown to other persons and that it was discovered for the first time on the potation of the appellants. Besides, the appellants who were already in custody since long are said to have pointed out this place to the police in presence of their own police witnesses. We, therefore, do not consider this piece of evidence to be of any consequence.
21. ' The only piece of evidence implicating the present appellants in the commission of the murder of Niaz Ahmed could be the evidence of the three witnesses Ahmed Hussain, Muhammad Azad and Khalid Pervez in conjunction with the evidence of Mr. Rasool Bux Abro in whose presence the identification , parade took place.
22. ' Before evaluating the evidentiary value of the memo. Of the identification parade produced by Mr. Rasool Bux Abro, A.C.M. And his own evidence in support thereof, it is necessary to first arrive at a conclusion that P.Ws. Ahmed Hussain, Muhammad Azad and Khalid Pervez were present at the time of incident and had enough opportunity to see the culprits, and that they were in a position to pick quit the appellants in an identification parade held after a period of about 6 months. Secondly it is also to be seen whether these witnesses had no opportunity to see the appellants in police custody prior to the holding of the identification parade and that conviction of capital nature could safely be based on the evidence of these three witnesses. The evidence of these three witnesses will have to be judged keeping in view the principles accepted by the superior Courts for safe dispensation of justice.
23. ' Evidence of P.W. Ahmed Hussain in respect of the identification of the appellants in the identification parade has to be judged from the circumstances under which he had witnessed the incident. This witness was standing behind a closed iron gate with a hole of about 3" diameter. He is attracted on the gun fires and thereafter he peeped through that hole. According to his sttement in the F.I.R. He could see only two culprits who were in the process of sitting in their car in which they sped away within his sight. Thereafter he has also fired from his rifle without any success. This shows that time when this witness has seen the incident must not be free of excitement. Besides, this witness had only a momentary glimpse of the assailants, that is why he has given their sketchy descriptions i,e, they were of normal heights and aged about 24 to 30 yeaRs, He did not give the nature of the clothes they were wearing and the features of their face or other distinguishing features which could show that he must have actually identified the culprits on account of those features. Another circumstance which compels us not to rely on the evidence of P.W. Ahmed Hussain is that in his F.I.R. He stated that he saw only two culprits whereas later on he has fated about sighting of the second car also but the features of the persons riding in the second car were not given by him. Not only this, but when his statement was recorded by S.H.O. Raja Muhammad Ghous of Police Station Ferozabad at the place of Wardat, P.Ws. Muhammad Azad and Khalid Pervez who are also serving in the same C.I.A. Centre and claimed to be eye-witnesses of the incident and also claimed that they were present when the S.H.O. Had reached the Wardat and recorded the evidence of Ahmed Hussain, must have been noticed by Ahmed Hussain. But Ahmed Hussain did not show the presence of P.Ws. Muhammad Azad and Khalid Pervez in his F.I.R.
24. Therefore, Ahmed Hussain's version of the incident, under these circumstances, cannot be treated as truthful and natural statement, as far as identification of the culprits is concerned. Coming to the identification parade, in which Ahmed Hussain has picked out the appellants, it is admitted position that appellants Asghar Ali Shah and Hatim Shaikh were arrested on 1-4-1991 while they were put to identification test on 1-6-1991 by Ferozabad Police. During this long period of two months when the appellants were in custody of the police of Ferozabad and P.W. Ahmed Hussain was serving at the C.I.A. Centre, possibility of P.W. Ahmed Hussain having been shown the arrested appellants by the police could not be ruled out. Accused Mushtaque Kalhoro was also in custody of police since 25-5-1991. Besides, evidence of Mr. Rasool Bux Abro, A.C.M. In respect of holding of the identification parade itself does not inspire confidence to be so fool-proof that conviction in a capital offence could be based on the same. P.W. Rasool Bux has stated that he was given a letter for holding identification parade of the accused Asghar Ali Shah, Mushtaque Kalhoro, Hatim Shaikh and Inayatullah Narejo in this crime on 1-6-1991 at 3-30 p.m. In the same breath he stated that he fixed the .Parade to take place in the office of S.D.M., Ferozabad at 3-30 p.m. On the same day. He admitted that the office of S.D.M., Ferozabad in which the identification parade took place was at a distance of 3/4 miles from his office. He also stated that the S.H.O. Made the dummies to stand in a line while he was sitting. He also admitted that he did not know who had arranged the dummies to stand in the line whether it was the police or his personal staff. He also stated that when he went to the Court of S.D.M., Ferozabad, venue for holding of the identification parade, he found the accused already sitting outside the Court Room. He also did not care to check the identification cards of the witnesses who were put to identification test although he did not know the witnesses earlier. The Magistrate also admitted in the Court question put to him that the witnesses who had to identify the accused in the parade had first come to his Court and told the Magistrate that they had come for the purpose of identification of the accused. The Magistrate admitted that thereafter he called the accused to his Court. It must be thereafter, in presence of the witnesses that the accused must have been called before the Magistrate and mixed up with the dummies who were already made to stand in the line before him. Therefore, the witnesses who themselves belong to police, could easily see who are being mixed with the dummies in their presence and therefore, this identification parade was nothing more than a farce. Therefore, this identification parade was absolutely of no effect. Next comes the evidence of Muhammad Azad and Khalid Pervez for discussion. These witnesses who belong to C.I.A. Centre have not given the distinguishing features of the culprits when they were seen by them causing the death of A.S.I. Niaz Ahmad. Their names do not appear in the F.I.R. To be the witnesses of the incident although the F.I.R. Was recorded by the S.H.O., Ferozabad at the spot where they were also standing about 10/15 minutes after the incident. Besides, at the best they could also have had a momentary glimpse of the assailants and they have picked out the accused in the identification parade after a period of 6 months. We have already discarded the identification parade to be having any evidentiary value in this case. Under these circumstances, it is hard to rely on the evidence of P.Ws. Muhammad Azad and Khalid Pervez also. It is also important to note that the witnesses when put to identification test should have pointed out and attributed the role of each accused, while committing the crime, as held in the case of Mehmood Ahmed and 3 others v. The State and another, reported in 1995 SCM R 127. These witnesses in their statements before the trial Court have not spoken about the different roles of each accused in commission of the crime nor they distinguished between the accused with regard to the arms carried by them. These witnesses have merely picked out the accused in the identification parade without attributing to them their role in the crime or any distinguishing feature between them. Therefore, the principle laid down in the above-cited case is attracted and we have no hesitation in agreeing with the learned counsel for the appellants that the identification parade held in this case cannot be relied upon for conviction in this case. Learned counsel appearing for the State while supporting the judgment of the trial Judge has contended that since no hostility or enmity has been suggested against the accused to falsely implicate the present appellants in this case by the police their evidence should be accepted. It has been further argued that since the witnesses were posted at C.I.A. Centre where the incident took place they are natural witnesses. We are, unable to agree with the contention of the learned counsel for the State, because tests prescribed by superior Courts for accepting or discarding the evidence when applied to this case we find that evidence of these witnesses cannot be relied upon for the reasons which have been enumerated in the above discussion. Mere fact that witnesses had no animus to falsely implicate the present appellants, therefore, their evidence should be relied upon cannot be accepted. The rule laid down in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCM R 214 shows that irrespective of the fact that the witness had no animosity to falsely implicate an accused, it has to be seen that the evidence of the witness is inherently probable and whether it is consistent with the circumstances of the case or not. The three eye-witnesses in this case may have been at the place of incident in this case, but it is doubtful if they had enough opportunity to see the culprits and their features so that they could pick them out in the identification parade held after six months of the incident. We have already held the identification parade itself of no evidentiary value in this case.
25. ' There is no other incriminating evidence against the appellants. Therefore, we cannot sustain the judgment and sentence passed by the trial Court in this case. We allow this appeal and set aside the judgment and the sentence passed against the appellants. The reference for confirmation of the death sentence is also rejected. The appellants, therefore, should be released forthwith if not required in any other case.