' MUHAMMAD NASEEM CHAUDHRI, J.--- This appeal is directed against judgment, dated 31-7-1994 passed by Mr. Shafique Ahmad Butt, Judge Punjab Special Court (Suppression of Terrorist Activities), Faisalabad Division, Faisalabad whereby he convicted and sentenced Muhammad Akram appellant son of Abdul Latif, caste Qasab, resident of Dharam Shala, District Jhang to life imprisonment and to fine of Rs,20,000 or in default of its payment to undergo R.I. For a period of one year under section 302/34, Pakistan Penal Code who also convicted and sentenced Muhammad Sarwar son of Abdul Latif, caste Qasab, resident of Mohallah Dharam Shala, District Jhang to undergo R.I. For a period of ten years and to fine of Rs,20,000 or in default to suffer R.I. For a period of one year under section 302/34, Pakistan Penal Code.
2. The facts giving rise to this appeal are that Ahmad Hassan Butt, Assistant Superintendent, District Jail, Jhang P.W.7 made his statement Exh.P.E. Before Umar Hayat Wattoo, Inspector/S.H.O., Police Station Kotwali Jhang on 20-5-1992 at 11-30 p.m. In Rail Bazar Chowk Jhang, wherein he stated that on 20-5-1992 at 10-30 p.m. He (complainant) alongwith Zain-ul-Abidin Abbasi Superintendent, District Jail, Jhang (deceased) of this case), Aftab Hanif Assistant Superintendent, District Jail, Jhang P.W.8, Anjum Shah, Assistant Superintendent District Jail Jhang (at present dead) and Malik Ataullah, Assistant Superintendent, District Jail, Jhang (not produced) had gone to the shop of Shaka Tikkianwala in Mohallah Bhubhrana, Jhang to have the dinner. They were busy in the dinner where Saleem Fauji accused (since dead) and Akram Qasai appellant each armed with klashinikov arrived. Saleem Fauji accused placed his hand on Anjum Shah and asked who was Butt by caste. On that Zain-ul-Abidin Abbasi asked as to what was the matter. Saleem Fauji accused asked the identity of Zain-ul-Abidin Abbasi who introduced him that he was the Superintendent, District Jail, Jhang Saleem Fauji accused aimed his klashinikov towards him and uttered that he vexed his colleagues, Haider Butt and others who were persons of Anjuman Sipahay Sihaba and asked him to listen him in privacy. Zain-ul-Abidin Abbasi stood up and went to Saleem Fauji accused and asked as to what he wanted to say. Saleem Fauji accused directed Muhammad Akram appellant to guard them (i,e, the other persons) and that he (Saleem Fauji) took him (Zain- ul-Abidin Abbasi). Muhammad Akram appellant aimed the klashinikov towards them and threatened that he would murder him whosoever would move. In the meanwhile Saleem Fauji accused took Zain-ulAbidin Abbasi in the street. Muhammad Akram, brother of Muhammad Sarwar appellant, and one unknown person, who could be identified by him, were also present. They were armed with mausers and accompanied Saleem Fauji accused. They went in a street. Akram Qasai also followed and joined them. They (P.Ws.) followed them to rescue Zain-ul-Abidin Abbasi and made the requests thereof. The accused persons aimed the klashinikovs upon, them and threatened for murder. On that they could not interfere to rescue Zain-ul-Abidin Abbasi. Thereafter, the accused and the appellants took Zain-ul-Abidin Abbasi in Bazar Loharanwala near Habib Bank after going through the streets. Zain-ul-Abidin Abbasi refused to go ahead. Saleem Fauji accused raised the Lalkara to his companions to murder him. Saleem Fauji accused himself fired with the klashinikov at Zain-ul-Abidin Abbasi which hit the different parts of his body. He was injured and fell down. He died at the spot. Thereafter all the accused persons made good their escape towards Laila Majnu Gate, Jhang. The motive for the occurrence, as recorded in Exh.P.E. Is that some militants including Haider Butt etc. Of Anjuman Sipahay Sahaba were confined in the District Jail, Jhang in cases of murder and dacoity who demanded unwarranted concessions. Saleem Fauji accused and Muhammad Akram appellant rang up on telephone in this regard but Zain-ul-Abidin Abbasi had refused thereof. Saleem Fauji accused, Akram Qasai and Muhammad Sarwar appellants alongwith one unknown person in furtherance of common intention had murdered Zain-ulAbidin Abbasi intentionally. He suspected that Mazhar Hussain Hadi Sunaar (acquitted accused) intimated the assailants about their programme who was aware thereof. Javed Ali Moharrir, A.S.-I. P.W.5 prepared formal F.I.R. Exh.P.E./1.
3. Umar Hayat Wattoo, Inspector/S.H.O. Police Station Kotwali, Jhang (since dead) went to the place of occurrence who took into his possession the dead body of Zain-ul-Abidin Abbasi. He prepared the injury statement and inquest report and sent the dead body through Mukhtar Hussain, A.S.-I.
P.W.2 which he escorted to Civil Hospital, Jhang for post-mortem examination who thereafter handed over the last-worn clothes of the deceased to the said S.H.O. Vide memo. Exh.P.B. The said S.H.O. (since dead) made the spot inspection and drafted the spot inspection note who prepared the rough site plan Exh.P.F. Of that place the deceased and the P.Ws. Were having the dinner on the shop of Shaka Tikkianwala and rough site plan Exh.P.E./2 of the place of occurrence. The blood- stained earth was taken into possession vide memo. Exh.P.J. Which was sealed in a parcel. Five crime empties P.7/1-5 were taken into possession from the place of occurrence vide memo. Exh.P.K.
Both these memos. Were attested by Aftab Hand P.W.8 and Malik Ataullah P.W. (given up). Both these sealed parcels were handed over the Javed Ali, Moharrir, A.S.-I. P.W.5 by the S.H.O. Who delivered the same to Muhammad Afzal, Constable P.W.11 who delivered both the sealed parcels in the office of the Chemical Examiner, Lahore.
4. Abdul Haleem Latifi, Draftsman P.W'.1 prepared site plans Exh.P.A. And Exh.P.A./1 of the place of occurrence on the request of the police and the pointedness of the P.Ws. On which the notes and drawings with black ink are in his hand and those with red ink are in the hand of Saeed Alchtar Tutla, Inspector/S.H.O., Police Station Kotwali, Jhang P.W.3.
5. Barkhurdar, Inspector Police P.W.10 partly investigated this case who recorded the statements of some P.Ws. He got issued non-bailable warrants of Muhammad Akram and Muhammad Sarwar appellants which he handed over to Mukhtar Hussain, A.S.-I. P.W.2 which remained unserved as the appellants could not be arrested.
6. On 17-1-1993 Ahmad Yar, D.S.P. C.I.A., Jhang P.W.9 went to Karachi and arrested both Muhammad Akram and Muhammad Sarwar appellants and brought them to Jhang. Both the appellants were arrested by Mushtaq Ahmad, Insepctor/S.H.O., Police Station Kotwali, District Jhang P.W.13 on 11-2- 199,3 in this case. On 23-2-1993 while under police arrest Muhammad Akram appellant led to the recovery of a .7 mm rifle P.5 with magazine containing 15 live cartridges P.6/1-5 from the room of the first floor of his house which he (P.W.13) took into his possession vide memo. Exh.P.I. Attested by Ashiq Hussain, A.S.-I. P.W.6 and Azhar Hussain P.W. (not produced) when he prepared site plan Exh.P.I./1 of this place of recovery
7. Dr. Faqir Zaighum Ali, Medical Officer, District Headquarter Hospital. Jhang P.W.4 conducted the post-mortem examination on the dead body of Zain-ul-Abidin Abbasi deceased who was identified by Aftab Hanif P.W.8 at that time. The Medical Officer found 23 injuries with fire-arm on the person of the deceased who expressed the opinion that the cause of death was due to haemorrhage and shock collectively by all the injuries causing damage to the right kidney, small and large intestines, bladder and mesentary. He issued Exh.P.G. Carbon copy of the post-mortem examination report and Exh.P.G./1, carbon copy of the pictorial diagram showing the location of the injuries. He signed inquest report Exh.P.H. And injury statement Exh.P.H./1.
8. Both Muhammad Akram and Muhammad Sarwar appellants were put to the test of identification parade on 6-2-1993 which was supervised by Mr. Muhammad Naeem Hayat, Magistrate 1st Class, Jhang P.W.12. Ahmad Hassan Butt (complainant) P.W.7 and Aftab Hanif P.W.8 as well as Anjum Shah P.W. (given up) were called separately by him who correctly identified both Muhammad Akram and Muhammad Sarwar appellants. He prepared report of identification parade, a photostat of which is Exh.P.K.
9. After completing the investigation the police submitted the challan before the trial Court against the appellants as well as against Mazhar Hussain Hadi Sunaar and one Usman (both acquitted accused). The appellants and the acquitted accused were charged under section 302/34, Pakistan Penal Code who pleaded not guilty thereto and claimed to be tried. At the trial the aforesaid P.Ws.
Stood in the witness-box and supported the prosecution case. It occurs in the cross-examination of Ahmad Hassan Butt complainant P.W.7 that the identification parade was conducted as the accused were not known to him earlier and that he came to know about them after the occurrence. On Court question he stated that he did not know any of the accused prior to the occurrence and that they had not muffled their faces. He stated that he did not get recorded the broad features of the accused persons in his statement Exh.P.E. And that nobody told him about the names of the assailants. He deposed that he had asked the names of the assailants from the other persons who were having their food, but he did not know the names of those persons. Aftab Hanif eyewitness P.W.8 deposed in his cross-examination that the accused persons had never been his class-fellows or in jail during his service, that he saw the accused persons first time on the spot on the day of occurrence and that he did not know them and their names earlier. Ahmad Yar, D.S.P.
P.W.9 stated in his cross- examination that he arrested both Muhammad Akram and Muhammad Sarwar appellants from Karachi Airport in case F.I.R. No,285 of 1992 and that no recovery memo. Of the passports was prepared. He denied the suggestion that he did not arrest the accused from Karachi Airport. Mr. Muhammad Naeem Hayat, Magistrate 1st Class, Jhang P.W.12, who supervised the identification parade proceedings, stated that both the accused objected before the identification parade that they were shown to the P.Ws. At the window of jail premises. He proved and attested photostat Exh.P.K. Of the report of identification parade. The learned defence counsel objected during the course of the statement of Mr. Muhammad Naeem Hayat, Magistrate 1st Class P.W.12 that the photostat Exh.P.K. Was inadmissible. The learned Assistant Advocate-General tendered in evidence report of Chemical Examiner as Exh.P.L. According to which the earth taken into possession from the place of occurrence was stained with blood and ballistic report Exh.P.M.
According to which five crime empties P.7/1-5 were fired from rifle P.S. Thus, this report is positive.
However, the report of the Serologist with respect of blood-stained earth was not produced in evidence. When examined under section 342, Code of Criminal Procedure both the acquitted accused as well as both the appellants stated about their non-participation in the occurrence.
They denied the alleged motive. Muhammad Akram appellant refuted the recovery of rifle P.5 as well as the live cartridges and did not claim the same. All the undertrials did not produce defence evidence and also did choose to appear in the witness-box on oath in their respective defence as contemplated under section 340(2), Code of Criminal Procedure.
10. The learned trial Court relied upon the report of identification parade proved through photos Exh.P.K. Recovery of rifle P.5 coupled with report Exh.P.M. Of the Fire-arm Expert and the statements of Ahmad Hadi Butt P.W.7 and Aftab Hanif P.W.B. Both Mazhar Hussain Hadi and Muhammad Usman accused were acquitted on the ground that there was no material against them. However, Muhammad Akram and Muhammad Sarwar appellants were convicted and sentenced as narrated above who have preferred this appeal which has been resisted by the State.
11. We have heard learned counsel for the appellants as well as the learned Assistant Advocate- General and gone through the record before us.
12. Learned counsel for the appellants argued that in their statements Ahmad Hassan Butt P.W.7 and Aftab Hanif P.W.8, who are said to have seen the occurrence, have specifically admitted that the appellants were not known to them whom they had not seen before the occurrence and that they were not even aware about their names. According to him due to the said aspect the identification parade of Muhammad Akram and Muhammad Sarwar appellants was got conducted. He questioned the correctness of the identification parade on the grounds that the original report has not been produced and that no effort was made in terms of Article 76(c) of the Qanun-e-Shahadat Order, 1984 about the loss, missing or non-availability of the original report to justify the production of the secondary evidence within the purview of Article 74 of the said order, 1984, He maintained that the accused persons were not arrested from Karachi Airport as Ahmad Yar, D.S.P. P,W.9 specifically admitted that there was no recovery memo. Of any passport to whom specific suggestion was put that Muhammad Akram and Muhammad Sarwar appellants were not arrested from Karachi Airport, He built up the point that both Muhammad Akram and Muhammad Sarwar appellants were shown to the P.Ws. Before they were put to the test of identification parade as according to Mushtaq Ahmad S.H.O. P.W. The appellants were formally arrested on 11-2-1993 in this case who were shown to have been earlier arrested from Karachi on 17-1-1993 and according to case diary their physical remand was obtained on 27-1-1993 till 30-1-1993 while the identification parade was conducted on 6-2-1993. He added that the recovery of rifle P.5 on 23-2-1993 at the instance of Muhammad Akram appellant is of no legal weight because it is the admitted position that this appellant did not fire at Zain-ul-Abidin Abbasi deceased and there is no material on record to make out that Saleem Fauji accused handed over his klashinikov to Muhammad Akram appellant. According to him the report of the Fire-Arms Expert is simply fictitious and concocted. He added that no material has been produced to make out the alleged motive in the matter even though the written material could be adduced in evidence and, thus, the presumption may be drawn against the prosecution. On the contrary the learned Assistant Advocate-General laid the emphasis that many militants of Anjum Sipahay Sahaba were confined in District Jail, Jhang and that the appellants were annoyed with Zain-ul-Abidin Abbasi, Superintendent District Jail, Jhang who did not afford them undue and unwarranted facilities. He maintained that the photostat of the report of the identification parade produced in evidence as Exh.P.K. Has the legal force as the same was attested by Mr. Muhammad Naeem Hayat, Magistrate 1st Class, Jhang when he stood in the witness-box on 5-7-1994. He added that the recovery of klashinikov P.5 coupled with report Exh.P.M.
Of the Forensic Science Laboratory, Lahore has proved as a corroborative piece of evidence.
13. We are, however, in full agreement with the learned counsel for both the appellants. At the very outset we would express that the statement Exh.P.E. On the basis of which formal F.I.R. Exh.P.E./1 was prepared cannot prove to be a corroborative piece of evidence in the matter as the names of the accused persons are mentioned therein who were not known to both Ahmad Hassan Butt P.W.7 and Aftab Hanif P.W.8 regarding which they made the statements in their cross-examination when they figured in the witness-box. It is simply surprising that in spite of the chance of availability of the documents/evidence the prosecution did not bother to produce any material with respect of the alleged enough in this regard and cannot be relied upon so as to make us hold that the motive has been established by them. With respect to report of identification parade, photostat of which has been adduced in evidence, as Exh.P.K. Suffice it to express that no effort has been made to locate original report of identification parade within the purview of Article 76(c) of Qanoon-e- Shahadat Order, 1984 and for that reason the secondary evidence could not be permitted and adduced, particularly when there is no proof and order in this regard have been passed by Trial Court. Both the appellants remained with the police for many days after their arrest and were sent to the judicial lock-up afterwards and the possibility that they were shown to Ahmad Has'san Butt P.W.7 and Aftab Hanif P.W.8 cannot be ruled out. It is pertinent to mention that at the relevant time of the holding of the identification parade this objection was raised by both the appellants before Mr. Muhammad Naeem Hayat, Magistrate 1st Class, Jhang who supervised the relevant proceedings. We hold the view that in the absence of the original report of the identification parade the same could not be attested by Mr. Muhammad Naeem Hayat, Magistrate 1st Class, Jhang when he appeared in the witness-box on 5-7-1994. An important aspect of the matter to be touched at this stage is that as contemplated in Chapter 11-C of the Lahore High Court Rules and Orders, Volume III no certificate was appended by Mr. Muhammad Naeem Hayat, Magistrate 1st Class, Jhang P.W.12 at the foot of the report of the identification parade supervised and thereafter, prepared by him. On this ground as well the identification parade has no legal force. In this case the recovery rifle P.5 is of no legal value against the appellants. Rifle P.5 was not used during the occurrence by Muhammad Akram appellant. The crime empties P.7/1-5 taken into possession from the place of occurrence by the Investigating Officer on his maiden visit were not fired from P.5 as the role of firing has not been ascribed to Muhammad Akram appellant. An important aspect of the matter to be recorded at this stage is that surprisingly Muhammad Afzal, Constable P.W.11 stated that he was handed over the sealed parcels of blood-stained earth and empty cartridges which he deposited in the office of the Chemical Examiner Lahore. There is nothing on the record to make out that the sealed parcel of crime empties was delivered in the office of the Forensic Science Laboratory, Lahore. Obviously, the benefit of this laxity on the part of the prosecution shall be derived by the appellants. We have seen that the report of the Chemical Examiner has been produced as Exh.P.L. While the report of the Serologist has not been produced in evidence and, thus, this part of the prosecution material is also devoid of any legal force.
14. The only irresistible conclusion which can of evidence and discussion would be that the prosecution has failed to connect both Muhammad Akram and Muhammad Sarwar appellants with the present occurrence beyond reasonable doubt and the charge framed against them has not been proved. Consequently, they are held entitled to be acquitted. We, therefore, accept this appeal, set aside the impugned judgment and acquit both Muhammad Akram and Muhammad Sarwar appellants. They are undergoing their sentences and shall be set at liberty forthwith, if not required to be detained in any other case.