' MUHAMMAD NASIM CHAUDHRY, J.---Criminal Appeal No,1048 of 1992 stands preferred against judgment dated 12-12-1992 passed by the learned Additional Sessions Judge, Okara whereby he convicted and sentenced Shahmand alias Shamma son of Gohar Ali, Caste Oad, resident of Chak No,23/2-L, presently Chak No,5/GD Police Station Choochak, District Okara to face death penalty under section 302(b) of the Pakistan Penal Code. The Court of Session at Okara has sent Murder Reference No,60 of 1993 as contemplated under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence awarded to Shahmand alias Shamma appellent-convict.
2. Both the aforesaid appeal and the aforesaid Murder Reference are being disposed of through this consolidated judgment.
3. An occurrence took place in the Bazar of Chak No,7/1-AL within the area of Police Station Saddar Ranala Khurd, District Okara at about 1-45 a.m. 'on the night falling between 13/14-9--1991 wherein Hassan Ali son of Din Muhammad nephew of Muhammad Ali complainant son of Allah Ditta lost his life. About the occurrence aforesaid Muhammad Ali complainant P.W.3 son of Allah Ditta got recorded F.I.R. Exh.PA before Ghulam Nabi S.I. P.W.10 posted in Police Station, Saddar Renala Khurd wherein he alleged that at 1-45 a.m. On the night falling between 13/14-9-1991 he was sleeping in his shop alongwith his nephew Muhammad Siddique P.W. (not produced). He heard the alarm in the Bazar. Both of them went out of the shop. In the meanwhile Javed Iqbal P.W.4 arrived. They saw that three unknown persons, out of whom one was armed with a carbine, were grappling with Ali Muhammad P.W.5 son of Chiragh and Muhammad Ali P.W. Son of Muhammad Rafique (not produced) who were performing the duties of watchmen. In the meanwhile his nephew Hassan Ali (deceased of this case) arrived who was fired at by that person who was armed with a carbine.
The fire-shot hit the mouth of Hassan All who fell down and expired at the spot. The fire shot attracted other villagers. The three accused made good their escape. He prayed for taking the legal action.
4. Ghulam Nabi S.I. P. W.10 reached the place of occurrence who took into possession the dead body of Hassan Ali. He prepared injury statement Exh. PF and inquest report Exh. PG regarding the dead body of Hassain Ali. He handed over the dead body to Abdus Sattar Constable P.W.7 for taking the same to D.H.Q. Hospital, Okara for post-mortem. He made the spot inspection and prepared the spot inspection note. He took into possession blood-stained earth from the spot vide memo. Exh.PB attested by Ali Muhammad P.W.5 son of Chiragh Din and sealed the same in a parcel. He prepared rough site-plan Exh. PH of the place of occurrence. He recorded the statements of the P.Ws. After the post-mortem examination Abdus Sattar Constable P.W.7 handed over to him last worn blood-stained clothes P-1 and P-2 of the deceased and one phial containing the pellets which were taken into possession vide memo. Exh-PD. He got prepared site-plans Exh.PE and Exh.PE/1 from Abdul Ishaque Nasir Draftsman P.W.8 on which the notes and drawings with black ink were in the hand of the said Draftsman while those in red ink were in his hand. He handed over the case property to Sh. Abdur Razzaq A.S.I. P.W.1 on 14-9-1991 who on 19-10-1991 handed over the sealed parcel containing the blood-stained earth to Jafar Ali Constable P.W.9 and he delivered the same in the office of the Chemical Examiner, Lahore.
' Dr. Saeed Ahmad Medical Officer, D.H.Q. Hospital, Okara P.W.6 conducted the post-mortem examination on the body of Hassan Ali at 12.15 p.m. On 14-9-1991. The dead body of Hassan Ali was identified by his brother Muhammad Sharif P.W.2. The Medical Officer found three injuries on the person of the deceased caused during the occurrence. Injury No,2, viz: an abrasion on the right side of fore-head was declared to be caused by a blunt weapon while the remaining injuries were, caused with fire-arm. In his opinion the cause of death was due to haemorrhage and shock caused by injury No,1 which was sufficient in ordinary course of nature to cause the death. He issued carbon copy Exh. PC of the post-mortem report and carbon copy Exh.PC/1 of the diagram showing the location of injuries. Muhammad Yaqub Inspector/S.H.O. Police Station Saddar Renala Khurd (P.W.11) took into his hands the investigation of the case on 28-9-1991 from Ghulam Nabi S.I.
P.W.10. He arrested Muhammad Siddique and Amanat acquitted accused on 28-9-1991 and caused them to be locked in the judicial lock-up, Central Jail, Sahiwal as their identification parade had to be arranged. He arrested Shera, Nazra and Ranjha acquitted accused as well as Shahamand alias Shamma appellant-convict on 9-10-1991 and sent them to the judicial lock-up Central Jail, Sahiwal as their identification parade had to be got conducted.
6. Mr. Muhammad Ashraf, Magistrate 1st Class, Renala Khurd P.W.12 supervised the identification parade pertaining to Muhammad Siddique anh Amanat Ali acquitted accused on 9-10-1991 in Central Jail,Sahiwal when the aforesaid P.Ws. Identified the aforesaid acquitted accused. He prepared his report Exh.P-1/3 containing his certificate Exh.P-114. This P.W.12 supervised the identification parade pertaining to Nazra, Ranjha and Shera acquitted accused and Shahamand alias Shamma convict-appellant on 15-10-1991 on the basis of the application Exh. P.J. Submitted before him. He prepared the Report of identification parade containing his certificate (original not produced). The aforesaid P.Ws. Correctly identified the acquitted accused as well as Shahamand alias Shamma appellant. The report Exh.PL of the Chemical Examiner and report Exh.PM of the Serologist were collected according to which earth was stained with blood and also with human blood. After completing the investigation Muhammad Yaqub S.H.O. P.W.11 submitted the challan in the Court of the Area Magistrate who sent up the same to the Court of Session.
7. Shahamand alias Shamma appellant-convict as well as acquitted accused namely Muhammad Siddique, Amanat Ali, Shera, Nazra and Ranjha were charged under sections 302, 148 and 149, P.P.C.
Who pleaded not guilty thereto and claimed to be tried.
8. During the trial the eye-witnesses namely Muhammad Ali complainant son of Allah Ditta P.W.3, Javed Iqbal P.W.4 and Ali Muhammad P.W.5 son of Chiragh Din stated by ascribing the specific roles to the aforesaid under trials. They deposed that they saw the occurrence in the electric bulb, that Shera and Muhammad Siddique grappled with Ali Muhammad P.W.5 and. Muhammad Ali (given up) when on the arrival of Hassan Ali deceased Shamma convict fired at him. They continued that Amanat, Ranjha and Nazra accused remained standing at some distance. They took up the stand that during the identification parade, conducted twice, they identified the aforesaid accused persons. When cross-examined by-the learned defence counsel Muhammad Ali complainant P.W.3 stated that he did not get incorporated in F.I.R. Exh.PA the fact of the electric bulb being on. He was confronted with the facts that Shera and Siddique accused grappled with Ali Muhammad and Muhammad Ali P.Ws. That Shahamand convict fired at Hassan Ali, that Amanat, Ranjha and Nazra remained present at some distance, that he got inserted the grappling by Siddiq and Shera accused and that he got incorporated the description of the accused persons in the F.I.R. However, these facts were not mentioned in the F.I.R. He stated that the accused persons and their addresses were not known to him before the occurrence. Javed Iqbal P.W.4 stated that the occurrence took place on 3rd or 4th of the lunar month. He stated that he did not state before the police that the fire-shot was effected by a person aged 50 years. This fact was mentioned in his statement Exh. DA. He admitted that except Shera accused all the remaining accused persons were aged 30 to 32 years. He stated that the accused persons were not known to him before the occurrence. Ali Muhammad P.W. 5 son of Chiragh Din stated that the two persons had muffled their faces while the remaining three persons stood at a distance of seven Karams, that due to darkness he could not see the features of the accused persons, that during grappling his clothes were torn, that after the arrest of all the accused he alongwith Muhammad Ali complainant, Javed Iqbal, Ali Muhammad, Muhammad Ali son Rafique and Muhammad Siddique was called in Police Station Saddar Renala Khurd to verify the arrest of the accused who were identified by them in the Police Station. He added that after the identification parade the S.I. Told them that six persons have been found responsible for the occurrence and that he directed them that they should make out the story implicating six culprits.
9. The statement of Ch. Muhammad Ashraf, Magistrate 1st Class P.W.12 was recorded on 12-12-1992 when he proved Exh. PK, photostat of the report of the identification parade containing the certificate Exh.PK/1 which was signed by him. Learned defence counsel raised the objection that the document could not be exhibited. On the same date statement of Muhammad Saleem Ahmad working in the Court of the said learned Magistrate at Renala Khurd was recorded as C.W.1 who stated that he made his report Exh. C.W.1/A on the back of the summons whereby he was summoned by the learned trial Court to appear alongwith to report of the identification parade.
According to him he mentioned report C.W.-1/A to the effect that he took the summons to the Court of the learned Special Judge for Speedy Trials Court No,2, Lahore when the Deputy Registrar of the said Court intimated that the same could not be handed over as the same was exhibited in some other case. He denied the suggestion that without going to the aforesaid learned Speedy Trial Court he gave his aforesaid report on the summons.
10. When examined by the learned trial Court under section 324 of the Code of Criminal Procedure Shahamand alias Shamma convict-appellant as well as the acquitted accused stated about their non-participation in the occurrence. They took up the plea that they were shown to the P.Ws. By the police after their arrest, but before the holding of the identification parades. The appellant denied having fired at Hassan Ali deceased. All the accused did not produce the defence evidence and did not choose to appear in their own defence on oath under section 340(2) of the Code of Criminal Procedure.
11. After hearing the parties learned trial Court gave the weight to the statements of the eye- witnesses (who appeared as P.Ws.3 to P.Ws.5) as well as the report of the identification parade, the photostats of which have been produced as Exh.PI and Exh.PK. Holding that Shahmand alias Shamma fired at Hassan Ali, he was convicted and sentenced as stated above. However, the remaining accused were acquitted.
12. Shahamand alias Shamma appellant has preferred the criminal appeal while the Court of Session at Okara has sent the Murder Reference.
13. We have heard the learned counsel for Shahamand alias Shamma appellant as well as the learned State Counsel and gone through the record before us. Learned counsel for the appellant argued that the P.Ws. Made the improvements when they figured in the, witness-box who were confronted with their statements, viz: Exh.PA, Exh.DA and Exh.DB. He added that even the number of the accused persons was added during the trial from that mentioned in F.I.R. Exh.PA and that the improvements have shattered the prosecution case from its very root. According to the learned counsel for the appellant-convict photostat Exh.PK of the report of identification parade pertaining to Shahamand alias Shamma appellant was inadmissible in evidence because no effort was made to locate the original report within the purview of section Article 76-C of the Qanoon-e- Shahadat Order, 1984 to enable the prosecution to produce the secondary evidence under Article 74 of the Qanoon-e-Shahadat Order, 1984 especially when the objection was raised by the learned defence counsel during the trial in this regard. He added that the appearance of Muhammad Saleem Ahmad C.W.1 would not justify the production of the secondary evidence as he did not obtain any report from any official posted in the learned Court for Speedy Trials at Lahore whose own report Exh.C.W.-1/A was nothing enough. He stressed that it was the duty of the learned Trial Court to have sent the letter the aforesaid learned Court at Lahore and in case of non-production of the )riginal report of identification parade thereafter, there was the justification to produce the photostat Exh.PK in the secondary evidence. He maintained that Its provided in Chapter 11-C of .The Rules and Orders of the Lahore High Court, Lahore Volume III that when "any witness identifies the member of the parade, he Magistrate should note in what connection he is identified" and that the General type of identification in the matter has no legal force. On the contrary Learned counsel for the State laid the emphasis that no improvements have been made by the P.Ws. During the trial and that photostat Exh.PK of the report of the identification parade, wherein Shahamand alias Shamma was identified, is enough to connect him with the occurrence who cannot escape his criminal liability in the matter.
14. We are, however, of the view that the reasoning adopted by the learned counsel for Shahamand alias Shamma appellant has to prevail. In F.I.R. Exh.PA there is no mention of the fact that the electric bulb was on and the accused persons were identified. It was 3rd or the 4th of lunar month which means that it was dark at 1.45 a.m. The features of the accused persons were not got entered in the F.I.R. And in the statements of the P.Ws. Recorded under section 161 of the Code of Criminal Procedure. In the F.I.R. Their number was mentioned as three while the same was enhanced to six thereafter. The specific role attributed to the acquitted accused as well as to this appellant during the trial has made out the falsehood of the prosecution case as the said type of improvement has not blessing from the law of the land. We, therefore, express the view that the improvements effected during the trial, which have been projected (supra), are enough to make out that the impugned judgment is based on surmises and conjectures to connect Shahamand alias Sharma with the occurrence and we hold that he did not fire at Hassan Ali deceased.
15. Now we take up the ingredient of Identification Parade. With respect to Shahamand alias Shamma appellant the photostat Exh.PK containing certificate Exh.PK containing certificate Exh.PK/1 of Identification Parade Report verified by Ch. Muhammad Ashraf, Magistrate 1st Class, Renala Khurd cannot form the basis of the conviction of Shahamand alias Shamma appellant. Learned trial Court did not send any letter to the learned Special Judges Speedy Trial Court No,2, Lahore making the request to send the original report of the Identification Parade. Muhammad Saleem Ahmad C. W.1 was summoned by the learned trial Court alongwith the Report of Identification Parade. He claimed that he went from Okara to Lahore to collect the same, but he was not handed over the Report. It is pertinent to mention that he did not secure any writing from any official of the learned Judge Speedy Trial Court No,2, Lahore. His own report C.W.1/A is nothing enough in the matter to justify the attraction of Article 76-of the Qanoon-e-Shahadat Order, 1984 for the purpose of production of secondary evidence in terms of Article 74 of the Qannon-e-Shahadat Order, 1984.
It is pertinent to mention that the learned trial Court did not pass any order to allow the prosecution to produce the secondary evidence with respect to the Report of Identification Parade whereby Shahamad alias Shamma appellant was put to the test of identification parade. On this ground the photostat Exh.PK of the Report of Identification Parade has no legal weight which is liable to be ignored and we pass an order accordingly. Even otherwise, the Report of Identification Parade cannot be relied upon because it is in the statement of Ali Muhammad P.W.5 son of Chiragh Din that he alongwith Muhammad Ali complainant, Javed Iqbal, Muhammad Siddique and Muhammad Ali son of Rafique was summoned by the police, Police Station Saddar, Renala Khurd at the Police Station to verify whether persons arrested by the police were the real culprits and that they identified them at the Police Station. It means that Shahamand alias Shamma appellant was shown to the P.Ws. Before the Identification Parade and the report of the learned Magistrate 1st Class in the matter is of no legal value which is ignored. It is in the statement of Javed Iqbal P.W.4 that the person who fired was 50 years old while Shahamand alias Shamma appellant was aged 35 years on the day he was examined under section 342 of the Code of Criminal Procedure on 12- 12-1992. Ali Muhammad P.W.5 stated that two accused who grappled had muffled their faces.
Shahamand alias Shamma appellant was one of them. When he had muffled his face how he could be identified during the Identification Parade. Last of all we have to refer to the Instructions relating to Identification Parades mentioned in Chapter XI-C of the Lahore High Court Rules and Orders Volume-III wherein under the caption Note about Identification by witnesses it is provided that "when any witness identifies a member of the Parade the Magistrate should note in what connection he is identified". It has been held in Khadim Hussain v. The State (1985 Supreme Court Monthly Review 721) and Ghulam Rasool and three others v. The State (1988 Supreme Court Monthly Review 557) that the P.W. Has to describe the role at the time of the commission of the offence by each of the accused being identified by him during the Identification Parade and that the non- description of the relevant role by the witness in such Identification Parade makes the evidence of the witness devoid of efficacy which cannot be relied upon. Consequently on this ground as well the Identification Parade has to be ignored. In photostat Exh.PK of Report of Identification Parade no role was ascribed to Shahamand alias Shamma appellant when he was identified by the P.Ws.
During the Identification Parade and Ch. Muhammad Ashraf Magistrate 1st Class, Renala Khurd P.W.12 did not note in what connection Shahamand alias Shamma was identified i.e, what role was ascribed to him during the occurrence. Such type of report of the Identification Parade is also liable to be ignored. The weight to the Identification Parade shall have to be given in the aforesaid legal perspective. As such part of the prosecution evidence has failed to muster the desired effect.
16. For what has been said above, we hold that the prosecution has not been able to connect Shahamand alias Shamma appellant with the occurrence and the charge framed against him has not been proved. As such, he is held to be innocent who is entitled to be acquitted. We, therefore, accept this appeal, set aside the impugned judgment and acquit Shahmand alias Shamma appellants. He is undergoing his sentence and shall be set at liberty forthwith, if not required in any other case.
17. The Murder Reference is accordingly, answered in the negative and the death sentence is Not Confirmed.