' IFTIKHAR MUHAMMAD CHAUDHARY, J.---The recapitulated facts involved in Criminal Petitions Nos.15 of 1999, 24 of 1999 and Criminal Appeal No.49 of [999 are that on 19th July, 1997 at about 7-05 a.m. a Toyota Hiace Vehicle white colour bearing registration No.RPT-1145 coming from Peshawar side was ambushed at Chohar Chowk by two assailants having fire-arms in their hand. The attack resulted/in causing death of driver of vehicle and 5 other inmates of the vehicle who were stated to be Iranian nationals. Report of the incident was lodged by P.W. Gul Muhammad vide Fard-e-Bayan (Exh.P.J.) on basis whereof F.I.R. No.417 of 1997 (Exh.P.J.1) at Police Station Westridge Rawalpindi at 8- 00 a.m. Regarding incident took place at 7-05 a.m.. Was registered. In the complaint he disclosed description of both the assailants who allegedly fired upon the vehicle. According to him one of them was 30/32 years of age having a beard with the height of about 5.8 feet of whitish colour.
Wearing black colour Shalwar Kamiz having a Klashnikov with him. As far as second assailant is concerned his age was shown to be of 26/27 years with height of 5.9 feet having fair complexion wearing Badami colour Shalwar Kamiz and white cap on his head. He was also armed with Klashnikov.
2. On registration of case petitioner Muhammad Asif alias Khalid and two other co-accused namely Muhammad Yaqub and Qari Muhammad Saddique were arrested. Out of them petitioner Muhammad Asif alias Khalid was got identified by complainant P.W. Gul Muhammad and P.W.
Muhammad Sagheer Khan, Police Constable who is also another witness of the incident. The identification parade was arranged under the supervision of P.W. Zulficjar Ahmad, Magistrate 1st Class. It may be noted that in respect of co-accused Muhammad Yaqub it was alleged that he was co-assailant with petitioner Muhammad Asif but he was not got identified from the eye- witnesses i.e. P.W. Gul Muhammad and Muhammad Sagheer Khan, As far as Qari Muhammad Siddique, third accused is concerned against him it was alleged that he, has harboured the accused who were involved in the commission of offence. Besides these three persons Muhammad Ajmal alias Akram Lahori, Qari Sarfraz and Rashid were also shown to be involved in the commission of the offence but as they could not be arrested, therefore, they were got declared proclaimed offenders.
3. It may be noted that from the place of incident prosecution took into possession 19 empty cartridges of klashnikov vide Exh.P.5/1-19, five lead bullets etc. P.6/1-5 and a missed bullet (Exh.P.7) vide recovery memo. Exh.P.D. Broken pieces of glasses and blood-stained earth was also taken into possession vide recovery memo. Exh.P.C. Three boots Exh.P.9/1-3, mat P.8, glasses stained with blood vide recovery memo Exh.P.E. As per claim of prosecution they succeeded in recovering three Klashnikov from the culprits who faced the trial.
4. The appellant and co-accused did not plead guilty and claimed to be tried before Special Court Anti-Terrorism, Rawalpindi Division at Islamabad Capital Territory established under the Anti- Terrorism Act, 1997. After observing procedural formalities petitioner Muhammad Asif and respondent Muhammad Yaqub were found guilty under section 302/34/109, P.P.C. And they were convicted and sentenced to death on six counts with further direction to make payment of fine of Rs.20,000 on each count or in default of payment to further undergo two years' R.I. On each count whereas Qari Muhammad Siddique co-accused was exonerated of the charge.
5. Petitioner and co-accused Muhammad Yaqub preferred appeal before Lahore High Court, Rawalpindi Bench bearing No.85/T of 1998. Whereas State also filed appeal against acquittal order of Qari Muhammad Siddique vide Acquittal Appeal No.103-T of 1998. Learned trial Court has also sought confirmation of death sentence of petitioner Muhammad Asif alias Khalid and the co- accused by filing Murder Reference No.62-T of 1998. In appeal conviction/sentence awarded to petitioner was maintained whereas appeal filed by co-accused Muhammad Yaqub was accepted and the appeal of the State against the acquittal of Qari Muhammad Siddique was dismissed vide judgement, dated 24th June, 1998. The petitioner Muhammad Asif alias Khalid preferred Criminal Petition No.15 of 1999. The State has also filed Criminal petition/appeal respectively Nos.24 and 49 of 1999 against the acquittal of Qari. Muhammad Saddique and Muhammad Yaqub. Because in all the matters common judgements of trial Court as well as High Court have assailed, therefore, we intend to decide all the three matters by means of instant judgment.
6. Mr. Ahmad Raza Qasuri, learned counsel for the petitioner contended that the prosecution case as it has been set up before the trial Court is full of improbabilities and doubts inasmuch as identification of the appellant Muhammad Asif alias Khalid has not been conducted in view of the instruction issued by the High Court from time to time and law on the subject discussed in the judgments reported in 1989 PCr.LJ 2227, 1993 SCM R 585, 1995 SCM R 127, PLD 1989 Quetta 61. He emphasised that requisite precautions prescribed by superior Courts at the time of conducting identification parade to avoid false implication of a person in the commission of offence was not strictly adhered to inasmuch as P.W. Zulfiqar Ahmad, MIC did not record the statements of P.W. Gul Muhammad and Muhammad Sagheer Ahmad indicating that what was the nature of the role which both of them played at the time of commission of crime. According to him noncompliance of such important caution by the Magistrate has caused serious doubt on the prosecution case but this important aspect of the case was not attended to or highlighted in a proper manner in the impugned judgment by learned Judges of Lahore High Court. He further submitted that co- accused Muhammad Yaqub has been acquitted of the charge in the appeal because he was not gOt identified by the investigating agency from the prosecution witnesses i.e. Gul Muhammad and Muhammad Sagheer Ahmad. According to him if the same principle is applied in the case of Muhammad Asif alias Khalid and the evidence of identification test parade is separated/disbelieved then he would also be entitled for acquittal. He further stated that the recovery of incriminating articles i.e. Klashnikovs etc. From the possession of petitioner Muhammad Asif as well as co-accused Muhammad Yaqub has been disbelieved. As far as ocular testimony furnished by P.Ws. Gul Muhammad and Muhammad Sagheer Ahmad is concerned, same can also not be accepted without independent corroboration because both the witnesses belong to law enforcing agency, therefore, they being interested in successful culmination of the case involved the petitioner, and co-accused falsely. Learned counsel was critic on the statement of Gul Muhammad as according to him in the Farcl-e-Bayan (Exh.P.J.) he did not mention time of lodging the report before the S.H.O. Due to which investigating agency had sufficient time to ponder upon all aspects of the case, therefore, possibility cannot be ruled out that Fard-e-Bayan of Gul Muhammad might have been recorded at a belated stage after preparing one other person to be the witness of incident i.e. Muhammad Sagheer Ahmad as well as collecting information about accused who could be suspected to be involved in the commission of the offence. Therefore, learned counsel stated that for safe administration of justice matter requires a thorough consideration by this Court.
7. Mr. Abdul Waheed Siddiqui learned counsel appearing for the State in Criminal Petition No.24 of 1999 and Criminal Appeal No.49 of 1999 argued that no plausible reasons have been assigned in the impugned judgement to acquit Muhammad Yaqub. According to him, he himself led for the recovery of Klashnikov from his house being the crime weapon. The Klashnikov recovered from his possession has been matched with the empties which were recovered from the place of incident which furnished sufficient evidence to connect him with the commission of the offence. He further argued that acquittal of Muhammad Yaqub merely for the reasons that he was not got identified from P.W. Gul Muhammad and Muhammad Sagheer Ahmad would not itself be sufficient to exonerate him of the charge.
8. After hearing parties' counsel following points emerge for consideration:--
(i) Whether petitioner Muhammad Asif alias Khalid has been correctly identified by P.W. Gui Muhammad and Sagheer Ahmad in view of provisions of Article 22 of Qanoon-e-Shahadat, 1984 read with administrative instructions issued from time to time and judicial pronouncements reported in 1989 PCr.LJ 2227, 1993 SCM R 585, 1995 SCM R 127, PLD 1999 Quetta 61?
(ii) As to whether co- accused Muhammad Yaqub has been rightly acquitted of the charge vide impugned order despite of the fact that sufficient incriminating evidence i.e. Recovery of crime weapon at his instance from his house which has matched with the empty cartridges recovered from the place of incident was available on record to connect him with the, commission of the offence as well as to prove that on the day of incident he was present at the place of occurrence where incident took place and he fired upon the Toyota Hiace vehicle alongwith co-accused persons?
(iii) Whether in the circumstances of the case available material on record has been properly appreciated and appraised while maintaining conviction/sentence of petitioner Muhammad Asif alias Khalid and acquitting co-accused Muhammad Yaqub?
(iv) As to whether the trial Court as well as Appellate Court strictly adhered to the principles of safe administration of justice in criminal cases or otherwise?
8. Mr. Abdul Waheed Siddiqui, learned Advocate Supreme Court informed that he does not want to press Criminal Petition No.24 of 1999 for want of sufficient material to connect Qari Muhammad Siddique, respondent (acquitted accused) in the commission of offence. Thus in view of his such statement the petition is dismissed as not pressed.
'[ For the above reasons Criminal Petition No.15 of 1999 is allowed. Consequently, leave to appeal is granted to consider the above points. To enforce ttendance of acquitted accused Muhammad Yaqub son of Habibullah his bailahle warrants in the sum of Rs.50,000 are directed to be issued.
The office is directed to fix this appeal alongwith Criminal Appeal No.49 of 1999.