' SH. MUHAMMAD ZUBAIR, J.---Five persons, namely, Tahir Hussain Shah, Khadim Hussain, Muhammad Yousuf, Muhammad Nasir and Tahir Iqbal faced trial under section 302/404/392/149/148, P.P.C. For the murder of Muhammad Azhar and for committing dacoity on 10- 8-1989 at about 10-15 p.m. In the area of Madina Town, Faisalabad, before the learned Additional Sessions Judge, Faisalabad. The learned trial Judge vide his judgment dated 9-6-1991, acquitted Muhammad Nasir and Tahir Iqbal of the charges, whereas Tahir Hussain Shah, Khadim Hussain and Muhammad Yousuf were convicted under section 302/34, P.P.C. Khadim Hussain was sentenced to suffer death whereas Tahir Hussain Shah and Muhammad Yousuf were sentenced to imprisonment for life, apart from fine of Rs,20,000 each or in default to undergo R.I. For three years.
They were further directed to pay Rs,20,000 as compensation to the legal heirs of the deceased or in default six months R.I. Each. The three accused persons were further convicted under section 392/34, P.P.C. And sentenced to seven years' R.I. Plus fine of Rs,20,000 or in default to suffer further R.I. For 1-1/2 years.
2. The three convicts have challenged their convictions and sentences separately, Tahir Hussain Shah through Criminal Appeal No,801 of 1991, Khadim Hussain through Criminal Appeal No,868 of 1991 and Muhammad Yousuf through Criminal Appeal No,1023 of 1991. The State filed Criminal Appeal No,1332 of 1991, against the acquittal of Muhammad Nasir and Tahir Iqbal, which was dismissed for non-prosecution by a Division Bench of this Court vide order, dated 29-2-1992.
Muhammad Altaf complainant filed Criminal Revision No,460 of 1991, for enhancement of sentences of the convicts. The matter is also before us for confirmation of death sentence of Khadim Hussain. We propose to dispose of three appeals of the convicts, the revision petition of the complainant and the reference by this judgment.
3. The occurrence took place on 10-8-1989 at 10-15 p.m., whereas F.I.R. Exh.P.K./1 was recorded at Police Station Peoples Colony, Faisalabad, the same night at 11-25 p.m. On the basis of statement Exh.P.K. Of Muhammad Altaf P.W.8, which was taken down by Muhammad Naeem S.I. (P.W.12) at Pul Abdullahpur.
' According to statement of Muhammad Altaf P.W.8, (Exh.P.K.) the prosecution case is that on 10-8- 1989, the first informant went to see his cousin Muhammad Azhar at his shop, Azhar Vedio Centre, Suson Road, Madina Town, Faisalabad, where his servant Waseem Shahid was also present. At about 10-15 p.m., three persons came to the said shop, one of them was wearing cream colour Shalwar and shirt, wheatish complexion with light beard, aged about 23/24 years, the other too was of wheatish colour with smart and active body and was wearing Shalwar and shirt of pink colour aged about 22 years and the third was aged about 19/20 years, wheatish complexion and was wearing light-blue colour of Shalwar and shirt. All the three persons were about five feet and six inches in height. The person wearing cream colour clothes asked Muhammad Azhar to give a good vedio casette, whereupon Muhammad Azhar showed him the casette of movie "Usman Say Uncha". However, on the question of personal surety hot words exchanged between the two.
Muhammad Azhar told him that he would not give him the cassette unless he gives a personal surety, whereupon all the three persons taking it their personal insult left the shop saying that they would deal with him. It is alleged by the first informant that after a shortwhile, the three persons again came there and told Muhammad Azhar that they would teach him a lesson for not giving them the casette. They entered the shop and a person wearing light blue clothes pulled Muhammad Azhar from his collar who was sitting on a chair. The person wearing cream colour clothes took out a pistol, whereas the person wearing pink clothes took out a revolver. The former pointed the pistol at Muhammad Azhar whereas the latter pointed the revolvers at the first informant and Waseem Shahid and told them that if they did anything they would be killed.
Muhammad Azhar intervened and while grappling with one another they came out of the shop.
The person wearing cream colour clothes fired with pistol at Muhammad Azhar within the sight of the complainant and Waseem Shahid, which hit him on the front side of neck, who fell down in injured condition. The complainant and Waseem Shahid (P.W.7) witnessed the occurrence.
Thereafter the assailants took away Honda Motor Cycle of Muhammad Azhar which was parked outside the shop. The complainant and Waseem Shahid took Muhammad Azhar in injured condition, who died in the premises of the hospital. The complainant left Waseem Shahid P.W. To guard the dead body of Muhammad Azhar and himself proceeded to the police station to lodge the report.
' As stated above, the statement Exh.P.K. Of Muhammad Altaf P.W. Was recorded by Muhammad Naeem S.I. (P.W.12) at Pul Abdullahpur and after the registration of formal F.I.R., he prepared injury statement Exh.P.N. And inquest report Exh.P.O. Of the deceased and despatched the dead body to the mortuary for post-mortem examination. On 11-8-1989, Tariq Mahmood constable produced the last worn clothes of Muhammad Azhar which were taken into possession vide memo. Exh.P.F. He secured blood-stained earth from the spot vide memo. Exh.P.E. He got prepared site plan Exh.P.B.
And Exh.P.B./1 by Aurangzeb Draftsman (P.W.2). The case was-partly investigated by Muhammad Naeem S.I. (P.W.12), but no clue of the culprits could be found. Ultimately, Muhammad Amlish A.S.P., Kotwali Circle investigated the case, but he too failed to trace out the accused persons. Resultantly, on 25-111989, the case was filed as untraced.
4. The post-mortem examination on the dead body of Muhammad Azhar was performed by Dr. Masood Iqbal Bokhari P.W.1 on 11-8-1989 at 10-30 a.m. Who found thereon a fire-arm wound of entry, 3/4 c.m. x 3/4 c.m., depth not probed with margins inverted, 1.75 c.m. Away from adom's apple, horizontally on right side of neck with blackening margins. The doctor opined that death had occurred due to shock and haemorrhage as a result of the said injury, which was sufficient to cause death in the ordinary course of nature.
5. The prosecution case further is that on the application of Muhammad Ibrahim P.W.5, father of the deceased, the investigation of the case was entrusted to Muhammad Hussain Inspector (P.W.15), before whom Liaqat Ali (P.W.14) and Sharafat Ali (not produced) got recorded their statements to the effect that the acquitted accused, namely, Muhammad Nasir and Tahir Iqbal, confessed before them the commission of murder of Muhammad Azhar with the assistance of Khadim Hussain, Muhammad Yousuf and Tahir Hussain Shah appellants. Muhammad Hussain Inspector then arrested the acquitted accused, who allegedly confirmed their confession before Liaqat Ali P.W.14 and Sharafat Ali (not produced) and also gave the names and addresses of the appellants.
Muhammad Nasir and Tahir Iqbal were lodged in judicial lock-up. Muhammad Hussain Inspector arrested Khadim Hussain and Muhammad Yousuf appellants on 16-4-1990, whereas Tahir Hussain Shah appellant was arrested on 18-4-1990. They too were sent to jail. He submitted an application on 22-4-1990, for identification parade of the appellants, which was conducted on 3-5-1990, in District Jail, Faisalabad. In the said identification parade, which was held under the supervision of Irshad Ahmad Bosal M.I.C. (P.W.3), the witnesses i,e, Waseem Shahid P.W.7 and Muhammad Altaf P.W.8 correctly identified the appellants. Thereafter, Muhammad Hussain Inspector obtained the physical remand of the appellants. During the investigation, Tahir Hussain Shah appellant led to the recovery of Honda Motor Cycle on 9-5-1990, which was taken into possession vide memo. Exh.P.J.
On 10-5-1990, Muhammad Yousuf appellant got recovered revolver with two cartridges vide recovery memo. Marked 'A'. On the same day, Khadim Hussain got recovered pistol P.6 and five live cartridges P.7/1-5 from his house vide memo. Exh.P.L. On 16-4-1990, the Inspector took into possession key P.8 of the motorcycle vide memo. Exh.P.M. After completing legal formalities, the appellants and the acquitted accused were sent up for trial by submitting the challan in the Court:
6. The prosecution in order to prove its case examined fifteen witnesses, out of them Dr. Masood Iqbal Bokhari (P.W.1) conducted the post-mortem examination, Irshad Ahmad Bosal M.I.C. (P.W.3) supervised the identification parade Muhammad Akram (P.W.4), real brother of the deceased is a recovery witness of blood-stained earth, apart from the last worn clothes of the deceased. He is also the recovery witness of receipt of motorcycle and also the identification of motorcycle, which was recovered on the pointation of Tahir Hussain Shah appellant. Dr. Faqir Muhammad P.W.9 is the recovery witness of pistol at the instance of Khadim Hussain appellant. Liaqat Ali P.W.14 was produced to depose about the extra judicial confession made before him and Sharafat Ali (not produced) by Tahir Iqbal and Muhammad Nasir accused. Waseem Shahid P.W.7 and Muhammad Altaf P.W.8, gave the ocular version of the occurrence, whereas Muhammad Hussain Inspector P.W.15 investigated this case.
7. Khadim Hussain appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations, professed innocence and false implication. He stated that the P.Ws. Were the close relatives as well as close associates with the complainant and the father of the deceased and are deposing against him at the instance of the police who have manoeuvred this case just to show their progress.
' Tahir Hussain Shah appellant while denying the prosecution allegations stated that he was arrested on 9-4-1990 from his house at Gujrat and was brought to C.IA. Staff, Faisalabad, where he was shown to the witnesses. He also denied the recovery of motorcycle at his instance.
' Muhammad Yousuf appellant also took the same instance which was taken by his co-appellants.
He denied the recovery of revolver and stated that he was arrested on 9-4-1990, from village Bahi Kot, Police Station Pattoki, and was shown to the witnesses who have identified him. He produced copy of daily diary No,31, dated 9-4-1990 of Police Station Patoki.
8. The learned trial Judge disbelieved the evidence of extra judicial confession of the acquitted accused allegedly made before Liaqat Ali P.W.14. He believed the ocular version and also the identification of the appellants. Resultantly, he convicted and sentenced the appellants as indicated above.
9. The learned counsel for the appellants vehemently contended that in the present case the F.I.R.
Was recorded after preliminary investigation, hence no sanctity is attached to this dubious document; none is mentioned as an accused person in this case, only sketchy and cryptic description of the accused persons is given in the F.I.R. On the basis of which it is highly improbable for a person to correctly recognize an accused in the test identification parade. It is case of dishonest investigation and is glaring example of police padding. The police in this untraced case, first fabricated the evidence of extra-judicial confession through the mouth of Liaqat All P.W.14, and later on arrested the appellants and got them identified in the identification parade held on 3-5- 1990, in an occurrence which took place on 10-8-1989, approximately after nine months; hence no reliance can be placed upon this dubious identification parade. There is no independent evidence on the record, qua the role played by each accused in the commission of crime. Even the recovery of alleged motorcycle was not proved in accordance with law. The identification parade was not conducted in accordance with law, hence it loses its efficacy and sanctity and possibility of chance picking up of the appellants by the eyewitnesses cannot be ruled out. Even the identification parade was conducted against the law declared by the superior Courts as reported in Ghulam Rasul and 3 others v. The State 1988 SCM R 557 and Lal Pasand v. The State PLD 1981 SC 142. During the investigation, Waseem Shahid P.W.8 named so many persons as suspects, as is apparent from his statements Exhs.PD.C., D.D. And D.E. In Exh.D.C. He suspected one Khalid Mahmood as the accused, in Exh.D.D., he accused Ijaz, Waheed and Tauheed as the culprits, whereas in Exh.D.E. He named Tooni and two unknown persons, which proves that he could not register the features of the accused correctly, which could ultimately guide him to recognize the culprits. The learned trial Judge has erred in law while placing reliance on the identification parade, after discarding the evidence of extra-judicial confession, which was held 18 days after the arrest of the appellants, during this period, the police had sufficient time and ample opportunity to show that appellants to the alleged eye-witnesses. Even an objection to this effect was raised by the appellants at the earliest opportunity.
10. The learned counsel for the State has placed reliance on the impugned judgment.
' The learned counsel for the complainant vehemently urged that there was no background of enmity between the appellants and the complainant and in the scuffle which took place between the appellants and the complainant, at the time of occurrence, the eye-witnesses had enough time to recognize the appellants in the light available at the spot, thus they were in a position to correctly identify the culprits.
11. We have carefully gone through the evidence with the able assistance of the learned counsel for the appellants and have critically examined the respective submissions of the learned counsel for the parties.
Admittedly, it is a case, the fate of which entirely hinges upon the identification parade, as nobody is named as an accused person in the F.I.R. The identification of a culprit by a person primarily depends upon the following factors (i) on his situation relative to the object viewed, his nearness to or distance from it, (ii) also on his capacity to see with perfect or sufficient distinctness an object far off, (iii) he may be able to discern clearly things at a great distance from him, or to see distinctly only objects near to him: that is, he may be either far-sighted or near-sighted, (iv) his right perception of the object may also depend on the light by which it is seen and, therefore, on the time, whether day or night, (v) it may depend, also, on the length or shortness of the time he has, in which to view the object, (vi) it may depend also on the freedom of his view from all obstruction at the time, from whatever cause, or momentary, (vii) the sun shining full in the face of a person may very much obstruct his sight. And the same effect may be produced by falling snow or dense rain or smoke.
' Applying the aforementioned conditions to the facts of this case, we find that the description of the accused persons given in the F.I.R. Is very meagre and sketchy as well as of general character, which may not be sufficient to enable a person later on to correctly recognize the accused persons in the identification parade after the lapse of sufficient time. Over and above this, the identification parade was not conducted in accordance with law, as only five persons were intermingled with one accused, whereas the law requires that atleast ten undertrials be intermingled with one accused to eliminate the possibility of chance identification of the accused persons, as laid down in Lal Pasand's case.
12. As observed above, in this case, the Investigating Officer fabricated evidence of extra judicial confession to procure conviction of the appellants in an untraced case. In a situation like this, the Courts are put on guard to scrutinise the evidence with great care and caution in order to eliminate the possibility of conviction of innocent persons. The close scrutiny of the evidence of Waseem Shahid (P.W.8) shows that he admitted in cross-examination:--- "It is correct that whenever any suspicious person was arrested by the police, they would call me to identify at P.S."
The witness also mentioned the names of Khalid Mahmood and Tooni as suspects who allegedly committed the murder and dacoity.
' Even Muhammad Ibrahim P.W.5 admitted this fact before the Court that neither he gave the chases number of the motorcycle to the police nor the complainant divulged this information to the police at the time of registration of the case. It remains a mystery how this information came to the knowledge of the police. There is force in the submission of the learned counsel for the defence that there are two possibilities; (i) either the motorcycle was not taken away by the culprits, it remained with the police, or (ii) the F.I.R. Was lodged after preliminary investigation, in both the situations, the effect is the same, that no reliance can be placed on the police investigation which was not conducted honestly and diligently. Even the police did not examine the recovery witness Liaqat Ali (P.W.14) on this point, which also shows that there is no corroborative evidence available on the record to connect the appellants with the crime.
13. After discarding these pieces of evidence, discussed above, we are left with no evidence whatsoever, to uphold the convictions of the appellants. Accordingly in view of the infirmities, referred to above, we accept the three appeals filed by the appellants, as mentioned above, set aside their convictions and sentences and acquit them. We direct that the appellants shall be set at liberty forthwith, if not required to be detained in any other case. The reference is answered in the negative and the revision petition filed by the complainant is dismissed in limine.