WAHID BUX BROHI, J.--- This is an appeal under section 25 of the Anti-Terrorism Act, 1997 read with section 417(2-A), Cr.P.C. Whereby appellant Gulin Khan, who is complainant in the case, has called in question the judgment, dated 22-9-1999 passed by Anti-Terrorism Court-IV, Karachi acquitting Nizamuddin and Shah Wali, respondents Nos.2 and 3, respectively, who were tried for an offence punishable under section 302/392/34, P.P.C.
2. The case relates to incident of robbery which took place on 29-11-1997 at about 4-00 a.m. On the road near Jangabad within the area of Police Station Gulzar-e-Hijri in which a truck driver Gul Awar Khan sustained a fire-arm injury and died as a result thereof. The matter was reported to police by complainant Gulin Khan on the same day on 9-15 a.m. At Abbasi Shaheed Hospital. According to F.I.R. Gul Awar Khan was driving Truck No,LSA-8408 and at about 4-00 a.m. The truck was stopped by three culprits at Jangabad who made demand of cash from him but he refused on which one of the culprits took out pistol and fired at him and also snatched an amount of Rs,4,000 from him. The culprits then decamped. Gulabad Khan, who was accompanying Gul Awar Khan in the truck went to complainant Gulin Khan's house and at about 5-00 a.m. Informed him of the occurrence. The complainant rushed to the place of occurrence where he found Gul Awar Khan lying injured but he was capable of speaking and narrated the above facts to the complainant who, in the first instance, removed the injured to Liaquat Hospital from where he was shifted to Abbasi Shaheed Hospital but he breathed his last on the way. The police reached Abbasi Shaheed Hospital where complainant's statement was recorded under section 154, Cr.P.C. By S.I.P. Javed Akhtar who saw the dead body and held inquest thereon. Further investigation was conducted by S.I.P. Ghulam Murtaza, S.H.O., Police Station. Gulzar-e-Hijri, who inspected the place of incident and found blood inside the truck which had gone dry, therefore, he could not scratch out the same. On 6-12-1997 he arrested accused Nizamuddin, respondent No,2 from police lock-up Gulberg. Nizamuddin disclosed to the Investigating Officer that his accomplices were Shah Wali and Gul Muhammad; consequently, on pointation of Nizamuddin, Shah Wali, respondent No,3 was arrested from A-3 Bus Stop. Nizamuddin also pointed out the place of incident to the Investigating Officer. On completion of investigation the case was challaned in A.T.C. Court-I from where it was transferred to Court-IV.
3. At the commencement of trial, the Court framed charge against Nizamuddin and Shah Wali for an offence punishable under sections 392 and 302 read with section 34, P.P.C. To which they pleaded not guilty and claimed trial. The prosecution, to prove their case, examined seven witnesses; namely; P.W.1 Gulin Khan, the complainant, P.W.2 Gulabad Khan, the eye-witness; P.W.3 S.I.P. Javed Akhtar who had recorded the statement of complainant under section 164, Cr.P.C. And had prepared inquest report; P.W.4 A.S.-I. Gul Faraz Khan, one of the Mashirs of arrest of appellant Nizamuddin; P.W.5 A.S.I.P. Bashir Ahmed, Mashir of pointation of the place of occurrence by accused Nizamuddin and arrest of accused Shah. Wali; P.W.6 Dr. Muhammad Khalid Qidwai, the Medical Officer who conducted post-mortem examination of deceased of Gul Awar Khan; and P.W.7 S.I.P.
Ghulam Murtaza Raho, the Investigating Officer.
4. Statements of accused were recorded under section 342, Cr.P.C. Wherein they denied the allegations against them and pleaded innocence. Respondent-accused Nizamuddin, stated that he has been implicated at the instance of spy/informer of police while respondent-accused Shah Wali stated that he was arrested at 4-00 a.m. And then maltreated by police. They did not examine themselves under section 340(2), Cr.P.C. Nor did they lead any defence. On appraisal of the evidence on record the trial Court acquitted both of them by the judgment mentioned above against which the complainant has preferred this appeal.
5. Learned counsel for appellant assailed the impugned judgment on the grounds that P.W.7 Gulabad Khan, who was an eye-witness of the incident, identified both the accused in the Court during the trial which was sufficient to establish identity of the accused person as culprits but the trial Court erroneously disbelieved his evidence for the reason that it was not possible for the witness to remember the features of the culprits and identify them again after a lapse of 21 months, which observation of the trial Court is based on surmises and artificial reasons. He argued that the trial Court wrongly insisted upon holding identification test before a Magistrate during the investigation. He further contended that the evidence of eye-witness Gulabad was adequately corroborated by the medical evidence and the pointation of the place of incident by accused Nizamuddin but these pieces of evidence were not appreciated in accordance with normal rules of appraisal of evidence. He urged that the minor contradiction appearing in the evidence of material witnesses due to lapse of memory owing to the fact that they were examined in the Court after a long period, could not be called improvements and modifications in the prosecution story and the Trial Court has taken an incorrect view in this regard. In support of his contentions he placed reliance on the principles laid down in the cases reported as Ghulamullah v. State 1996 SCM R 1887, Muhammad Ali and others v. The State 1999 SCM R 1957, Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227, The State v. Muhammad Alim PLD 1975 Kar. 168, Ghulam Sikandar and another v.
Mamaraz Khan and others PLD 1985 SC 11, Fateh Muhammad v. Mehmood Khan and 3 others 1998 M LD 1107, Abdul Hashem v. The State 1969 PCr.LJ 491 and Rasool Bakhsh v. The State PLD 1970 SC 316.
6. Learned Assistant Advocate-General appearing for the State submitted that Gulabad is an eye- witness of the incident and his evidence is supported by medical evidence as such the appeal be allowed and the accused persons namely the respondents Nos.2 and 3 be convicted.
7. Learned counsel for accused Nizamuddin and Shah Wall, respondents Nos.2 and 3 controverted the above contentions and submitted that this was a dark night incident and the entire prosecution evidence is silent as to the source of the light on which the culprits were seen and since the features of the culprits were not mentioned in the F.I.R. Their identification in the Court after 21 months of the incident was not enough and the learned trial Court had fairly applied the normal rules of appreciation of evidence settled by the Honourable Supreme Court from time to time and was justified in rejecting the testimony of Gulabad. He strenuously argued that an identification test in the aforesaid circumstances, was imperative during the investigation but no such test was conducted by the Investigating Agency. He submitted that there was substantial improvement at the trial as regards the manner in which the culprits boarded the truck and made fire and in particular the medical evidence does not reconcile with the version of eyewitness Gulabad. According to him, the sole eye-witness Gulabad failed to give a true account of the occurrence of firing and snatching of money from the deceased. In support of his contentions he relied on the case-law reported as the State v. Abdul Ghaffar 1996 SCM R 678, Alam Khan v. Swans Khan and 3 others 1996 SCM R 1742, State/Government of Sindh v. Sobharo 1993 SCM R 585 and Farman Ali v. The State 1997 SCM R 971.
8. The case of prosecution wholly depends on the evidence of Gulabad Khan, who is designated as the sole eye-witness of the occurrence, and in particular it may be mentioned that his name has been given in the F.I.R. Also. In the Court he deposed that deceased Gul Awar Khan was driver of the truck and he was cleaner and on 29-11-1997 at about 4-00 a.m. Their truck was stopped at Jhangabad when three persons came in front of the truck. He was made to alight from the truck where after two of the culprits boarded the truck and demanded money from Gul Awar Khan who refused, on which one of them fired at him which hit him on left side of hip and then the culprits, after snatching Rs,4,000 from him, decamped from the place of occurrence. He left. Gul Awar Khan at the place of incident and rushed to the house of complainant Gulin Khan whom he apprised of the occurrence. The complainant accompanied him to the place of incident from where they removed Gul Awar Khan to Liaquat National Hospital and then to Abbasi Shaheed Hospital. His statement was recorded by police under section 161, Cr.P.C. Regarding identity of the culprits. He stated that he can identify the accused who committed robbery and murder as he had seen their photographs clearly. He identified both the accused persons sitting in the Court to be the culprits. It is worthwhile mentioning here that no identification test was held through this witness during the investigation and the prosecution depended on his version given in the Court as to the identity of the culprits.
9. Gulin Khan, the complainant, was examined as P.W.1. He has deposed that he was informed by Gulabad Khan and then he proceeded to the place of incident from where he took the injured to Liaquat National Hospital and then to Abbasi Shaheed Hospital but on the way Gul Awar Khan succumbed to injury. According to him, the police, on receiving information, reached Abbasi Shaheed Hospital where his statement was recorded under section 164, Cr.P.C. His evidence does not directly connect the appellant with the offence. The other circumstantial evidence that has been relied by the prosecution in this behalf, is that of the Investigating Officer P.W.7 Ghulam Murtaza and the Mashir P.W.5 on the point that appellant Nizamuddin led them to the place of incident and pointed the same to them.
10. The main drawback in the case is that the prosecution wholly relied on the identification of the accused persons in the Court,.In express disregard of the normal rules of evaluation of evidence, settled by the superior Courts that when the culprits are not known to the witnesses and they had only a momentary glimps of the culprits at the time of occurrence, the prosecution was bound to prove that the culprits, soon after their arrest, were put to identification test and got identified by the eye-witnesses through an identification test/parade held in presence of a Magistrate. Learned counsel for respondents Nos.2 and 3 rightly relied on Farman Ali's case (supra) wherein the following observations were made:-- "(.7) Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits. Holding of identification test cannot be dispensed with, simply because the person accused of committing the robbery, has been subsequently found in possession of the robbed goods."
11. The significance of holding an identification test has been pointedly insisted upon by the Honourable Supreme Court in State v. Farman Hussain and others PLD 1995 SC 1 in the following words:- "A distinction is to be made between a case in which witness has had only a fleeting glimpse of the accused who happened to be stranger and a witness who had known the accused previously or who had met the accused several times. In the former case the Court insists upon having proper identification parade whereas in the latter case the identification parade can be dispensed with as the witness can identify the accused even in the Court."
12. While applying the above principle to the instant case it is significant to mention that it is not the case of prosecution that the culprits were known to the eye-witness Gulabad or that the witness had met them several times, but it was stated in unambiguous terms in the F.I.R. That the culprits were unknown persons. The complainant, who was apprised of the occurrence by Gulabad, has deposed that Gulabad told him that three persons came there and stopped the truck. It has never been the case of prosecution that Gulabad disclosed that the culprits were known to him. In such circumstances importance of identification test during the investigation cannot legally be overlooked.
13. Learned counsel for the accused persons was further justified in pointing out that in peculiar circumstances of this case even the identification test would have suffered from inherent infirmities as the features of the culprits were not laid down in the F.I.R. In this regard he relied on Sobharo's case 1993 SCM R 585 in which the eye-witnesses had not given the name of the accused or description of his features to the complainant and on account of this drawback the trial Court's view that the identification test had no value for want of description of respondent in the F.I.R. Was upheld. Besides, the learned counsel for the accused was justified in pointing out that the sole eye- witness has failed to state about the source of light on which he saw the faces of the culprits. He has only stated that three persons came in front of the truck and he was made to alight from the truck. It will be only an assumption that in the headlights of the truck he saw a momentary glimpse of all the three culprits and he retained their features in his memory, otherwise he has not uttered a single word in this point. On the contrary, he has stated that he could identify the accused who committed robbery and murder as he had seen their photoes clearly. This version recorded in the examination-inchief has undoubtedly shattered the trustworthiness of this witness as to the identity of the culprits, since it makes it conspicuous that he had seen the photographs of the accused persons and on that strength he has identified them to be the culprits. Who had shown these photographs to this witness and at what stage, are the significant questions which have remained unanswered and leave a vacuum in the prosecution evidence. Gulabad has himself admitted that there was no electric pole near the place of incident and the complainant has also given the same version with further addition that there was no shop near the place of incident except one hut. The Investigating Officer has also given a similar version stating that there was no electric pole at the place of incident. All these factors had strikingly impressed the mind of the trial Court and in consequence of the commutative effect of these legal drawback the learned Judge was thoroughly justified in disbelieving Gulabad with regard to identification of the accused persons as the culprits. Learned counsel for the appellant was not able to cite any case-law to dislodge the above view formed by the learned trial Court which, as discussed earlier, is pre- eminently in consonance with the rules of appraisal of evidence settled by the superior Courts.
14. Learned counsel for the appellant however, questioned the view taken by the learned trial Judge that it was not plausibly explained how the deceased received the injuries on his hip when the eye- witness Gulabad was also sitting with him on the same seat and urged that medical opinion shall not come in the way of ocular evidence. In this context he placed reliance on Ghulamullah's case 1996 SCM R 1887 wherein the Honourable Supreme Court observed, "It is by now well-settled that when the Court is convinced that the witness had seen the occurrence and is worthy of credence then conflicting opinion of doctor would not detract from its evidentiary value of eye-witness". In the cited case the crime weapons recovered, were two double-edges daggers and regarding one of those the Medical Officer opined that the injuries found on the dead body could not have been inflicted by it, but the eye-witnesses whose evidence was trustworthy and confidence inspiring, were believed and the Honourable Supreme Court held that the High Court was not legally justified in rejecting the ocular evidence on the strength of medical opinion. In order to make the aforesaid observations applicable to the instant case the learned counsel further submitted that the minor contradictions whatsoever occurring in the evidence may be ignored and the eye-witness may be believed despite the conflicting medical opinion. In this context he relied on Abdur Rashid's case PLD 1975 SC 227 and Muhammad Ali's case 1999 SCM R 1957. In the former case it was observed as under:-- "Of course, there have been cases where thoroughly drilled and well-tutored witnesses after going through several rehearsals made statements which were almost verbatim repetitions of their police statements as well as those of each other at the trial and the Courts have been very rightly sceptical about such parrot-like reproductions. It is only the material discrepancies coming into conflict with the natural probabilities that militate against the credibility of witnesses justifying the rejection of their testimony. Nothing of the kind is noticeable in the instant case. On the other hand, I have not been able to find any inherent infirmity in the testimony of the eye-witnesses casting doubt on its veracity."
15. In the latter case it was observed that reference to minor omissions or discrepancies in the statement of witnesses is not fatal. In fact, the evidence of Medical Officer shows that the bullet which turned to be fatal was recovered from right lumber region, had actually taken its start from left thigh near groin region. There was no sign of blackening or singing over the wound which indicates that it was fired from some distance. If the deceased was sitting in the driver's seat when he was fired at, it would mean that the fire was made from cleaner's side that is to say the left window and not the driver's window. If Gulabad was eye-witness of the occurrence he should have given a clear and unmistakable account of the incident how the fire was made. The Investigating Officer deposed that Gulabad Khan had not stated before him that two accused culprits boarded the truck and then one of them fired at the deceased whereas Gulabad has, at the trial, stated that when the truck stopped he was made to disembark and two accused boarded the truck who demanded money from Gulin Khan and on his refusal one of them fired at him which hit him on the left side of hip. If this version is believed it would inevitably follow that when the culprits boarded the truck they were too close to the driver when one of them fired at him, the wound, in such circumstances, would necessarily bear blackening or singing marks on it's external surface, but there was no blackening or singing. This makes it clear that the fire was made from quite a distance. Gulabad's version as such is not consistent with the medical evidence.
16. In the cited case the Honourable Supreme Court rejected the medical opinion inter alia on the ground that the Medical Officer had not assigned reasons for his opinion. In the instant case, it is the state and nature of the wound that does not conform to the ocular version hence, either of the two pieces of evidence could be correct. If Gulabad's version is taken true then it would essentially lead to a conclusion that the ocular evidence is not supported by the medical evidence. As a result the ocular version alone remains in the field, which as already discussed is short of satisfying the legal requirements as to identity of culprits.
17. Learned counsel for the appellant emphatically argued that the accused had pointed out the place of incident to police, therefore, the evidence of eye-witness stands corroborated. The site . Of occurrence had become a known place and merely because the accused led to .Pointation of the place of incident to police is not by itself substantial evidence although it may be relevant. It could corroborate only a substantive piece of evidence which in the instant case is that of Gulabad and is itself not free from doubt,' as discussed earlier, about the identity of culprits and the manner in which the injury was received by the deceased.
18. This is an acquittal appeal where a finding of innocence has been recorded in favour of the accused persons. Both the learned counsel referred to authorities in respect of principles underlying appreciation of evidence in an acquittal appeal. The learned counsel for appellant relied on Muhammad Alim's case PLD 1975 Kar. 168 wherein it was observed as under:-- "If the reasons which appeal to the trial Judge for rejecting the testimony of the oral witnesses are, in the opinion of the High Court, not valid reasons then it becomes the duty of the High Court to re- examine the evidence and, if itself satisfied that the evidence warranted a conviction beyond reasonable doubt, then the High Court would be failing in its duty if it refused to interfere merely because the appeal is one against an acquittal."
That is not however, to say that his opinion is binding upon the High Court and I think, therefore, that if the reasons which appeal to the trial Judge for rejecting the testimony of the oral witnesses are, in the opinion of the High Court, not valid reasons then it becomes the duty of the High Court to re-examine the evidence and, it itself satisfied that the evidence warranted a conviction beyond reasonable doubt, then the High Court would be failing in its duty if it refused to interfere merely because the appeal is one against an acquittal."
19. On the other hand, learned counsel for the accused relied on the following observations made in Abdul Ghaffar's case 1996 SCM R 678:- "The High Court failed to notice another principle laid down in Ghulam Muhammad v. Muhammad Shard and another PLD 1969 SC 398 that a Court of appeal will not interfere with an order of acquittal. But if the reasons given by the trial Judge are of speculative and artificial nature of the findings are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re-examine the evidence and draw its own conclusions from it."
20. He also placed reliance on 1996 SCM R 1742 wherein it was held that it is a settled position of law that superior Courts act slowly in interfering with an order of acquittal, unless grounds for acquittal are perverse or wholly illogical or unreasonable.
21. Keeping in view the principles laid down in the cited authorities we have again to revert to the evidence of prosecution to assess if the grounds for acquittal are perverse or wholly illogical or unreasonable or the reasons given by the trial Court are of speculative and artificial nature and the findings are based on no evidence or misinterpretation of evidence resulting in miscarriage of justice and that the evidence was otherwise sufficient to warrant conviction. Tested on this touchstone the evidence produced by prosecution, as already discussed, was wholly insufficient, the ocular testimony was not trustworthy to establish identity of the accused persons to be the culprits, and the version whereby the account of incident was given was not believable and confidence inspiring, as such the evidence was rightly rejected. Thus, the finding of acquittal being well-founded does not call for interference.
22. For the foregoing reasons we are convinced that no grounds are made out for interference in the impugned judgment. Consequently, the finding of acquittal is maintained and the appeal is dismissed. By a short order, dated 8-12-1999 the appeal was dismissed, these are the reasons for the same.