1. ' SAIDUZZAMAN SIDDIQUI, J.---Yagoob Khan son of Inayat Khan and Zahid Munir son of Muhammad Munir have filed the above petition seeking review of the order of this Court dated 21-11-1993 dismissing their Criminal Petition for Leave to Appeal No,86 of 1992 filed against the judgment of Lahore High Court, confirming the death sentence awarded to Yaqoob Khan son of Inayat Khan under section 302, P.P.C. For committing murder of Asif All Khan and Ajaib Khan and life imprisonment to petitioner No,2 with fine of Rs,30,000 to each under section 302, P.P.C. And in default of payment of fine R.I. For 3 years, and R.I. For 7 years to both petitioners under section 307/34, P.P.C. And fine of Rs,10,000 and in default thereof R.I. For one year, half of the amount of fine on realization was ordered to be paid to the legal heirs of the deceased Asif All Khan as compensation under section 544-A, Cr.P.C.
2. ' The above-named petitioners along with co-accused Raja Ajmal son of Muhammad Ashraf were tried under section 302/307/34, P.P.C. Before the Additional Sessions Judge, Attock. The trial Court found all the three accused guilty of offences under section 302/307/34, P.P.C., Accordingly, petitioner No,1 was awarded death sentence under section 302, P.P.C. While petitioner No,2 and acquitted accused Raja Ajmal were awarded life imprisonment and fine of Rs,30,000 each and in default to suffer R.I. For 3 years under section 302, P.P.C. All the three accused persons were also found guilty under section 307/34, P.P.C. And each of them was awarded 7 years' R.I. And fine of Rs,10,000 each and in default to suffer one year's R.I. Half of the amount of fine on realization was to be paid to the legal heirs of the deceased Asif All Khan as compensation under section 544-A, Cr.P.C. All the convicts appealed against the judgment of the trial Court dated 23-11-1989. A Division Bench of Lahore High Court by judgment dated 17-6-1992 confirmed the death sentence awarded by the trial Court to Yaqoob Khan and dismissed his appeal by maintaining the sentence of imprisonment and fine awarded to him. The sentence of imprisonment and fine awarded to petitioner No,2 by the trial Court under section 302/307/34, P.P.C. Were also maintained and his appeal was dismissed but he was extended benefit of provisions under section 382-B, Cr.P.C. And sentences awarded under sections 302 and 307 were directed to run concurrently. The learned Judges of the High Court also directed that the whole of the amount of fine on recovery from the petitioners be paid as compensation to the legal heirs of the deceased. The High Court, however, acquitted Raja Ajmal, co-accused in the case giving him the benefit of doubt. The prayer made by complainant for enhancement of the sentence awarded to Zahid Munir by the trial Court was turned down by the High Court. Leave was refused to both the petitioners by this Court in Criminal Petition No,86 of 1992 which they filed to call in question the judgment of the Division Bench of Lahore High Court. The petitioners are now seeking review of the order/judgment of this Court declining leave to appeal to the petitioners.
3. ' In support of the review petition, Mr. S.M. Zafar, the learned counsel for the petitioners has urged the following contentions:--
(i) That the evidence of prosecution with regard to identification of the accused in the parade held in the case was of no avail as at the time of identification of the accused/petitioners, the witnesses failed to state the role played by each of the accused person; ' that the empty in the case which matched with the gun of petitioner No,1 was recovered from the spot on 10-12-1988 while it was sent to the fire-arm expert on 1-1-1989 and there was no explanation for this inordinate delay in sending the empty to fire-arm expert; and
(iii) that the extra-judicial confession of the petitioners does not inspire confidence, as there was no worldly reason for the petitioners to have confessed about their crime when their names were not mentioned in the F.I.R.
4. ' In addition to the above-noted contentions, the learned counsel also submitted that Muhammad Yaqoob being a young man of 24 years of age and a student of B.A. Deserves to be dealt with leniently and if the contentions raised by the petitioners in support of review petition do not find favour of the Court, the sentence of death awarded to him be converted into life imprisonment. We have given our anxious considerations to the contentions raised by the learned counsel for the petitioners in support of the review petition and are of the view that none of the grounds mentioned above justify review of the order dated 21-11-1993.
5. ' The provisions contained in Order XXVI, Rule 1 of the Supreme Court Rules, 1980 (hereinafter to be referred as 'the Rules' only), permitting review by this Court of its own judgment are as follows:- "1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII, Rule 1 of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record."
6. It is, therefore, quite clear from the above provisions that the review of the judgment of this Court in a criminal case is permitted only on the ground of an error apparent on the face of the record. This error may be either of fact or law. The first question, therefore, which arises for determination is, what would constitute an error on the face of record?
7. ' In the case Zulfikar All Bhutto v. The State PLD 1979 SC 741, a Bench of this Court consisting of 7 learned Judges considered the scope of review under Order XXVI. Rule 1 of the Rules and observed as follows:-- "43. From what has been said in the preceding paragraphs, it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination.
8. The contention that the exposition of the law is incorrect or erroneous, or that the Court has gone wrong in the application of the law to the facts of the particular case; or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review. However, an order based on an erroneous assumption of material fact, or without adverting to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review, or a finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review.
44. It is also to be borne in mind that as finality attaches to the judgments delivered by this Court, which stands at the apex of the judicial hierarchy, a review proceeding is neither in the nature of a rehearing of the whole case, nor is it an appeal against the judgment under review. It is accordingly not permissible to embark upon a reiteration of the same contentions as were advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to be apparent on the face of the record.
45. It is further to be noted that it is well-settled that in criminal matters the Supreme Court will not interfere in review with the quantum of sentence, if a legal sentence has been imposed, or upheld, after due consideration of all the relevant circumstances."
9. ' In Saeedur Rahman v. The State 1980 SCM R 271 a review petition was filed by the petitioner Saeedur Rahman seeking review of the order passed by this Court dismissing jail petition of the petitioner. The facts in Saeedur Rahman's case were that the petitioner was tried for murder of one Abdul Rashid by the Additional Sessions Judge, Abbottabad. He was awarded death penalty in that case and the death sentence was confirmed in appeal by the High Court. The jail petition preferred by the petitioner from jail was examined by 2 learned Judges of this Court and they having found no merit in the the same. The petitioner then filed a review petition against the judgment of this Court dismissing his jail petition. It was contended in the review petition that the eye-witnesses whose testimonies were accepted by the trial Court were inimical to the petitioner and that there was a possibility that the Investigating Officer might have fired a cartridge from the gun produced by the petitioner and then sent the gun and empty to the firearm expert. These contentions were repelled by this Court and review petition was dismissed as follows:--- "The learned counsel also submitted that the eye-witnesses in this case were inimical to the petitioner and that there was a possibility that the Investigating Officer might have fired a cartridge from the gun produced by the petitioner and then sent the gun and the empty shell to the fire- arms expert for examination. The last-mentioned submission appears to be absolutely conjectural.
10. In any case, these contentions involve appreciation of evidence, which cannot be done at this stage. Moreover, these do not constitute any ground for review as envisaged by the Supreme Court Rules, 1956. For the foregoing reasons the petition is therefore dismissed."
11. From the above-stated legal position, it is quite clear that the contentions raised by the learned counsel for the petitioners in support of the review petition amount to reappraisal and appreciation of the evidence in the case which is' outside the scope of the review and, therefore, on this short ground alone, review could be dismissed. However, notwithstanding the fact that review petition is liable to be dismissed on the ground stated above, we have examined the contentions raised by the learned counsel for the parties and find that they did not advance the case of the petitioners any further.
12. ' The first contention of the learned counsel for the petitioners is that mere identification of the accused in the identification parade by the eyewitnesses without specifying the role of each accused in the crime, at the time of identification, is of no evidentiary value. In support of this contention the learned counsel for the petitioners has placed reliance on the case Khadim Hussain v. State 1985 SCM R 721. The following observations in the above case are specifically relied by Mr. S.M. Zafar in support of his contention:--- "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime."
13. ' From the above-quoted observations relied by the learned counsel for the petitioners, it appears that the eye-witnesses in that case who has identified the accused in the identification parade, did not specify the role of the accused in their evidence. However, from these observations it did not follow that the evidence regarding the role of accused identified in the parade must be given at the time of his identification or that evidence regarding role of the accused in the crime could not be given at the trial by the witness if it was not given at the time of this identification. In order to understand the scope of the above-quoted observations, it will be advantageous to reproduce here the following observation from Lal Singh v. Crown 1LR 51 Lahore 396, which was quoted with approval in Khadim Hussain's case, supra: "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person.
14. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."
15. ' Khadim Hussain's case, supra, was quoted with approval in Ghulam Rasul and 3 others v. The State (1988 SCM R 557), with these observations:-- 9 The second piece of evidence which has been relied upon by the prosecution is the identification parade. The perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the identification parade also carried an inherent defect and that is that Abdul Majid P.W. Did not describe the role played by each of the appellants at the time of the commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case of Khadim Hussain v. The State reported in 1985 SCM R 721."
16. We are, therefore, unable to find anything in the two cases relied by the learned counsel for the petitioner, which supported his conclusion that if a witness at the time of identifying a person in the identification parade did not state about the role played by that person in the crime he is precluded from giving evidence in the Court with regard to his specific role in the crime and that if such evidence is adduced at the trial, the same is to be excluded from the consideration. In the case before us, the witnesses who identified the accused in the identification parade, in their evidence before the Court stated in detail the role of each of the petitioners in the crime and as such their evidence was rightly relied by the Courts below.
17. ' The second contention of the learned counsel for the petitioners is that the empty in the case was recovered from the site on 10-12-1988 but it was sent to ballistic expert on 1-1-1989, and therefore, there was delay in sending the empty to the ballistic expert which created a doubt that the empty might have been fired from the gun *recovered from the petitioner and then sent to ballistic expert for opinion. Besides the fact that this contention of the petitioner amounts to reappraisal of evidence which is not permissible in the present proceedings, it otherwise has no merits. According to evidence on record, the gun was recovered from the petitioner Yaqoob Khan on 4-1-1989 while empties were sent to the ballistic expert on 1-1-1989 which excluded any possibility of the said empty having been fired from the gun recovered from petitioner Yaqoob Khan.
18. The next contention of the learned counsel for the petitioners is, that the evidence of the 2 eye- witnesses before whom the petitioners had made extra-judicial confession, did not inspire confidence as there was no worldly reason for them to have admitted their guilt before them when they were not named in the F.I.R. This evidence of these two witnesses was examined at length by the two Courts below and the conclusion reached by them was accepted by this Court. The petitioners, therefore, cannot be permitted to ask for reappraisal of that evidence once again in the review proceedings.
19. The last contention of Mr. S.M. Zafar, the learned counsel for the petitioners is that keeping in view the young age of the petitioner Yaqoob Khan his death sentence may be altered into imprisonment for life. This contention of the learned counsel for the petitioners stands squarely answered by the observations of this Court in the case Zulfikar Ali Bhutto v. The State reproduced above. No ground for review of the order dated 22-11-1993 is made out. The review petition is, accordingly, dismissed.
20. (Sd.)
21. Saiduzzaman Siddiqui, J.
22. (Sd.)
23. Fazal Ilahi Khan, J.
24. ' MUKHTAR AHMAD JUNEJO, J.---This criminal review has arisen in the following circumstances.
25. ' On 10-12-1988 at 11-20 p.m. F.I.R. No,267 of 1989 was registered at Police Station, Fateh Jang, District Attock for offences punishable under sections 302 and 307 of P.P.C. Read with section 34 of P.P.C.
26. ' The case relates to murder of Asif Khan on 10-12-19:38 at 9-30 p.m. At hands of three unknown culprits, who while travelling by a Toyota Corrola Car intercepted the Suzuki Van No,9497 carrying deceased Asif Khan, complainant Jahangir Khan and P.Ws. Nazakat Ali and Jahanzeb Khan, who were , their way from Deh Mangial to Rawalpindi. Asif All Khan was fired at first with a gun and then with a carbine, whose shot injured one -Muhammad Ajaib and smashed windscreen of the Van.
27. After departure of the assailants by their car, Asif Ali Khan was being carried to a hospital but he died on the way. Ajaib was examined and treated in the hospital. Such F.I.R. Was lodged by Jahangir Khan.
28. ' During the trial the prosecution examined eye-witnesses Jehangir Khan P.W.13 and Muhammad Ajaib P.W.14. Injured Nazakat was given up. Jehanzeb Khan too, was not examined. On the basis of ocular evidence, the evidence of identification test and the evidence of recoveries, the trial Court convicted petitioners Yaqoob Khan, Zahid Munir and Raja Ajmal for the offences punishable under sections 302 and 307 of P.P.C. Yaqoob Khan was sentenced to death while the other convicts were sentenced to life imprisonment. .Some other sentences were als9 awarded including that of payment of fine. In appeal the Lahore High Court under its judgment dated 17-6-1992 maintained conviction of Yaqoob Khan and 7ahid Munir but acquitted Raja Ajmal. The sentence of death in respect of Yaqoob Khan was confirmed and so also the sentence awarded to 72hid Munir whose sentences on both the counts were ordered to run concurrently, with benefit of section 382-B, Cr.P.C.
29. ' The convicts challenged their conviction and sentence by filing in this Court Criminal Petitions Nos.86 and 88 of 1992 but the same were dismissed by a judgment dated 21-11-1993 and the leave to appeal was declined. Present application is for review of the said judgment dated 21-11-1993.
30. Mr.S.M. Zafer, learned counsel for the petitioners relying on the case of Ghulam Rasul v. The State (1988 SCM R 557) and Khadim Hussain v The State (1985 SCM R 721) argued that in the identification test of the petitioners held on 2-1-1989 witnesses Jehangir Khan and Muhammad Ajaib had not mentioned in respect of each of the persons picked up, as to, what part he had played. The learned counsel further argued that 18 dummies were added to the two accused, which ratio was not correct according to law. In respect of the empty cartridge which allegedly matched with the gun recovered from Yaqoob Khan, it was argued that the same was secured on 10-124988, taken to Ma&liana on 11-12-1988 and given on 20-12-1988 to A.S.I. Ehsan and was ultimately sent to the ballistic expert on 1-1-1989 and hence the recovery lost its value. It was further argued that the evidence of extra-judicial confession was not trustworthy and that it was against human conduct that a guilty person would go to somebody after a period of about 20 days to inform him about having murdered somebody and about having caused injuries to any person.
31. ' Mr. M. Iqbal, learned counsel for the complainant supported the conviction and argued that there was strong evidence of extra-judicial confession, recoveries, ocular evidence and identification test against the petitioners who were rightly convicted.
32. Admittedly names of the petitioners did not appear in the F.I.R. And in the police statements of eye- witnesses Nazakat Ali, Muhammad Ajaib and Jehanzeb. Hence use of ocular evidence against the petitioners depended upon =edibility of the evidence of identification test. The incident occurred on 10-12-1988 while the identification test was held on 2-1-1989 whereas the petitioners were arrested on 30-12-1988. Prosecution did not give explanation for not holding the identification test on 30-12-1988, or on 31-12-1988, or on 1-1-1989. In the case of Muhammad Amir alias Mushki and others v. The State PLD 1977 Karachi 695 the evidence of identification was ruled out of consideration on the ground of delay. In the case of Gulbeg and others v, The State PLD 1964 (W.P)
33. Karachi 275 the view taken by a Division Bench of the High Court at Karachi was that it was extremely difficult to accept with implicit reliance the identification test held 20 days after the occurrence and based upon a momentary and partial glimpse of the face of the assailant.
34. The alleged incident took place at night viz 9-30 p.m. Prosecution case is that the eye-witnesses saw the assailants on the headlights of the vehicles. It has not been mentioned in the F.I.R. If faces of the assailants were seen on light of headlights. P.W.13 Jehangir Khan did not state in his evidence if the assailants were seen on light of the vehicles. Such statement was not made even by Muhammad Ajaib. In the circumstances, it was open to question if Jehangir Khan and Muhammad Ajaib could have identified the real culprits in the identification test. In the case of Khadim Hussain v. State (1985 SCM R 721) this Court approved the observation made in the case of Lal Singh v.
35. Crown ILR 51 Lahore 396 that the mere fact that a witness is able to pick out an accused person from amongst a crowd, does not prove that he has identified that accused person as having taken part in the crime, which is being investigated. It was also observed in the case of Lal Singh that the principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. Statement made by such a witness at an identification parade might be used to corroborate his evidence in Court but otherwise the evidence of identification furnished by an identification parade, can only be hearsay except as to the simple fact that a person was in a position to show that he knew a .Certain accused by sight, as further observed in the case of Lal Singh. Case of Khadim Hussain, in which said observations were approved, was followed in the case of Ghulam Rasool and others v. State (1988 SCM R 557) where it was observed as "The second piece of evidence which has been relied upon by the prosecution is the identification parade. The perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the identification parade also carried an inherent defect and that is that Abdul Majid witness did not describe the role played by each of the appellants at the time of commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case of Khadim Hussain v. State reported in (1985 SCM R 721)."
36. In the instant case P.Ws. Jahangir Khan and Muhammad Ajaib did not state during the identification test before the supervising Magistrate, as to, what part was played during the incident by the accused/petitioners picked up by them in the test. As already stated, acceptance of the ocular evidence for purpose of conviction of the petitioners, depends upon trustworthiness of the evidence of identification test.
37. The extra-judicial confessions were said to have been made by petitioners Yaqoob and Zahid Munir in presence of Rana Aslam Khan P.W.20 and Raja Israr Ahmed P.W.19 respectively, after 20 days of the incident. There is nothing on the record to show, as to, what prompted the said petitioners to make extra judicial confessions, after such a long period without being suspected of having to do with murder of Asif khan or with causing injuries to Muhammad Ajaib. Recoveries of incriminating articles after the extra-judicial confessions would lose the chance of the latter being corroborated by the former.
38. ' Lastly there remains evidence of motive against Yaqoob Khan, who allegedly visited house of Mst.
39. Gohar Khanam mother of Mst. Ashfa Sadiq and demanded hand of the latter, some days prior to her Nikah was solemnised with deceased Asif All Khan. There was also evidence about recovery from petitioner Yaqoob Khan of a gun, with which an empty recovered from the scene of incident matched, as per report of the Ballistic Expert. There was also recovery of a carbine from petitioner Zahid Munir on 5-1-1989, as alleged.
40. ' The petitions filed by the petitioners for leave to appeal were dismissed on 21-11-1993. Presently the question arises, as to, whether the order dated 21-11-1993 can be reviewed and the leave to appeal against conviction and sentence of the petitioners can be granted.
41. ' This Court exercises the powers of review by virtue of Article 188 of the Constitution of Pakistan.
42. According to Rule 1 of Order XXVI of the Supreme Court Rules, 1980 this Court may, subject to the law and the practice, review inter alia its judgment in a criminal proceeding on the ground of an error apparent on the face of record.
43. The facts of this case discussed above show that there is an error apparent on face of the record, inasmuch as the prosecution evidence adduced in the case was not sufficient for conviction of any of the petitioners. This error, if I may say so with respect, is so apparent on the face of the record that no Court can permit the same to remain on the record. This error is manifest and clear from the facts of the case which have surfaced during hearing of the review application.
44. For the reasons given above, I would accept the review petition and grant leave to appeal against the conviction and the sentence awarded to the petitioners.
45. (Sd.)
46. Mukhtar Ahmad Junejo, J.
47. ORDER OF THE COURT ' By majority, the review petition is dismissed.
48. (Sd.)
49. Saiduzzaman Siddiqui, J.
50. (Sd.)
51. Fazal Ilahi Khan, J.
52. (Sd.)
53. Mukhtar Ahmad Junejo, J.