' GHULAM NABI SOOMRO, J.--- The appellant Syed Muzafar Hussain has been sentenced to death and different sentences of imprisonment, for various offences including murder of three persons and injuries on eleven, in Special Case No,347 of 1999, by the learned Judge, Anti-Terrorism Court No,2, Karachi, vide his judgment, dated 16-11-1999.
2. The appellant has assailed his aforesaid conviction and sentences through this appeal. The trial Court has also submitted a reference of confirmation of death sentence. We shall dispose of the above through this judgment.
3. The prosecution case brietly stated is that on 2-10-1999 at about 6-15 p.m. While the students of Madrassa Darul Khair at Gulistan-e-Johar, Karachi East were playing in the Street No,2, opposite the Madrassa, some four culprits came in a white Suzuki car, three of them got down, while the fourth remained on the driver seat. Out of three, two were having K.K. Rifles in their hands, while third had a pistol. They started indiscriminate firing upon the students resulting in serious injuries.
Three students died, while eleven others got seriously injured. The culprits after firing fled away in their car.
4. Mufti Nasiruddin, Nazim of the Madrassa, who lodged the F.I.R. Of the case, disclosed that the culprits were about 22/25 years of age one of whom was dressed in green pant brown shirt and with light beard, while other culprits were in white Shalwar Kamiz. The complainant cited Wajid Muhammad, Muhammad Riaz, Samiullah as eye-witnesses of the occurrence besides others including neighbours and claimed to identify the culprits on seeing them again. The F.I.R. Was lodged on the same day at 7-10 p.m. As F.I.R. No,159 of 1999 at Police Station Gulistan-e-Johar, Karachi.
5. The police after conducting usual investigation of the case, challaned only one accused namely the appellant for facing his trial.
6. Charge for offences under sections 302, 324, 337-A(i),- 337-F(i), 337-F(iii), 337-F(v), 337-F(vi) and 34, P.P.C. Read with section 7, Anti-Terrorism Act, 1997 was framed against the accused to which he pleaded not guilty and claimed to be tried.
7. At the trial the prosecution examined in all 19 P.Ws. Namely:--
(1) Dr. Abdul Razak (P.W.1) as (Exh.6), (2) Dr. Mubarak Ali (P.W.2) as (Exh.7), (3) Dr. Dileep Khatri (P.W.3) as (Exh.8), (4) Ahmed Luqman (P.W.4) as (Exh.9), (5) Nasiruddin (P.W.5) as (Exh.10), (6)
Muhammad Riaz (P.W.6) as (Exh.11), (7) Mujeebullah (P.W.7) as (Exh.12), (8) Sajid Khan Durrani (P.W.8) as (Exh.13), (9) Dost Muhammad (P.W.9) as (Exh.14), (10) Ghulam Hussain (P.W.10) as (Exh.15), (11) Muhammad Yaqoob (P.W.11) as (Exh.16), (12) Talat Anwar (P.W.12) as (Exh.17), (13) Asif Ali (P.W.13) as (Exh.19). (14) Moula Bux (P.W.14) as (Exh.20), (15) Muhammad Y3usif (P.W.15) as (Exh.21),
(16) Hafeezuddin (P.W.16) as (Exh.22,), (17) Muhammad Shahbaz (P.W.17) as (Exh.23), (18) Chaman Khan (P.W.18) as (Exh.24) and (19) Mansooruzzaman (P.W.19) as (Exh.25). ' whereafter the prosecution closed its side. The appellant in his statement under section 342, Cr.P.C. Denied all the allegations of the prosecution levelled against him and further added that he was arrested from his flat on 9-10-1999 in the midnight and was being pressed to make a confession. On the next day he was taken to different places, was also shown to the witnesses and maltreated. On 19-10-1999, he was taken to the Court of the Magistrate, where he was made to sit for about an hour with the witnesses whereafter the identification test parade was held.
8. The appellant did not examine himself on oath but examined four witnesses in his defence and then closed his side. The trial Court at the conclusion of trial convicted and sentenced the appellant as aforesaid.
9. We have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Habib Ahmed learned A.A.-G. For the State and have perused the record of evidence including the impugned judgment.
10. Out of the above 19 P.Ws. Five are the Medical Officers, three are the Mashirs and four are the Investigating Officers. Ahmed Luqman (P.W.4) is a Magistrate, who has supervised the identification test, Mufti Nasiruddin (P.W.5) (the complainant), Muhammad Riaz (P.W.6), Mujeebullah (P.W.7), Muhammad Yousif (P.W.15), Hafeezuddin (P.W.16) and Mansooruzzaman (P.W.19) are the eye- witnesses of the occurrence.
11. The evidence of the Medical Officers is not challenged. The evidence of the three Mashirs is formal The evidence of the Investigating Officers relates to the investigation of the case and except the arrest of the appellant their remaining evidence is formal. Mujeebullah P.W.7 and Hafeezuddin P.W.16 have not implicated the accused.
12. The implicating evidence before us consists of the Magistrate, Ahmed Luqman, Mufti Nasiruddin (complainant), Muhammad Yousif, Muhammad Riaz and Mansooruzzaman. Out of them Mansooruzzaman (P.W.19) and Muhammad Riaz (P.W.6) claim to be witnesses, having identified the appellant in the identification test as well as in Court. While Mufti Nasiruddin and Muhammad Yousif have identified the appellant in Court only.
13. Mufti Nasiruddin (P.W.5) is the complainant and head of the institution (Nazim Taleemat, Madrasa Darul Khair). He has named the three deceased and eleven injured persons and one Usman Sahib in the F.I.R. He has identified the appellant in Court only, has stated that police secured 12 empties of K.K. Rifles and 6 empties of pistol from the place of Wardat. He denies having refused to participate in the identification test. This witness and eye-witness Samiullah did not appear on 18-10-1999 which date the identification test parade was postponed for want of witnesses. Both of these witnesses also failed to turn up on 19-10-1999 the day on which the identification test parade in respect of the appellant was held in supervision - of the Magistrate.
Muhammad Yousif (P.W.15) is an injured eye-witness, has identified the accused in Court only.
Ahmed Luqman, Judicial Magistrate (P.W.4) has stated that the appellant had complained before him that he was shown to the witnesses at police station and he was brought to the Court with open face. He has further stated that the S.H.O., had produced the application praying for holding of identification test parade by five identifying witnesses but he (S.H.O.) failed to produce Mufti Nasiruddin (complainant) and Samiullah. Note of aforesaid complaint by the appellant appears in the memo. Of identification test prepared by the learned Magistrate.
14. It was contended by the learned counsel for the appellant that the sentence in the case has been awarded only on the basis of evidence of identification. He argued that there was no other piece of evidence produced by the prosecution at the trial. He contended that there were only four identifying witnesses namely (1) Mufti Nasiruddin (P.W.5), (2) Muhammad Yusif (P.W.15), (3)
Muhammad Riaz (P.W.6) and (4) Mansooruzzaman, (P.W.19) out of whom only two P.Ws. Namely Muhammad Riaz (P.W.6) and Mansooruzzaman (P.W.19) have allegedly picked up the appellant in the identification test parade. Learned counsel vehemently argued that the most important P.Ws./eye-witnesses namely Mufti Nasiruddin, Mujeebullah and Hafeezuddin were not produced at the identification parade for identification of the culprit. He further argued that Mufti Nasiruddin (P.W.5) though claims to have identified the appellant in Court yet he has not said anything about the role played by the appellant. Learned counsel contended that Mujeebullah (P.W.7) has in fact given true picture of the occurrence. Muhammad Yousif (P.W.15) has identified the appellant in Court only. While P.W. Hafeezuddin (P.W.16) has not implicated the appellant. It was vehemently contended that the learned trial Judge did not take notice of the complaints made by the appellant, before the learned Magistrate. It was urged that while being identified before the trial Court, the appellant was sitting singly in handcuffs in the dock and his identification under such circumstances cannot be given any legal value. Learned counsel also urged that the appellant was a complete stranger to the so-called identifying witnesses, identification by them, of the appellant in Court would not be reliable. It was lastly argued that all the identifying witnesses were forced by the police to come at the identification parade out of whom complainant Mufti Nasiruddin, Wajid Muhammad and Samiullah declined to participate in the identification test. In support of the appellant's case reliance was placed upon:--
(1) PLD 1995 SC 1, (2) 1992 SCM._ 2088, (3) 1995 SCM R 127, (4) 1985 SCM R 721, (5) 1988 SCM R 557, (6)
1981 SCM R 678 @ 680, (7) PLD 1996 Kar. 246, (8) 1994 SCM R 1928 @ 1935 and (9) PLD 1977 Kar. 695 @ 698.
15. Mr. Habib Ahmed learned A.A.-G. Appearing for the State, at the outset, admitted that the conviction of the appellant was based only upon the evidence of identification. Learned A.A.-G.
Contended that there is no enmity between the appellant and the police and the identification test evidence was sufficient for passing such conviction. He supported the conviction and sentence passed against the appellant and placed his reliance upon:--
(1) 1982 SCM R 129, (2) 1985 SCM R 1834, (3) 1991 PCr.LJ 817, and (4) PLD 1988 Kar.
539.
16. In the case of State v. Farman PLD 1995 SC 1, it was held that, it was no description of the culprits to say that one person was dressed in pant Kamiz and two were in Shalwar Kamiz and same cannot be helpful to prosecution.
17. In the case of Asghar Ali v. Sabah 1992 SCMR 2008, it was held that identification of accused in Court was not sufficient. It was observed that identification in Court of a person produced in Court as accused months after the incident cannot satisfy the requirement of law, for proving the identity of the culprit. It was further observed that aggrieved injured witness not appearing deliberately to make a statement in Court, about his own injury without satisfying the Court about his reasons so abstaining Court has to determine effect, for such abstaining of witness.
18. In the case of Mehmood Ahmed and 3 others v. State 1995 SCM R 127, it was held that medical evidence by itself would not establish the identity of accused. Further, identification of an accused without assigning any role to him is of no help to prosecution.
19. In the case of Khadim Hussain v. The State 1985 SCM R 721, it was held that mere fact that a person is able to pick out an accused from crowd does not prove that he has identified the accused as having taken part in the crime, which is being investigated. It might merely mean that the witness happens to know the accused person.
20. In the case of Ghulam Rasool and 3 others v. The State 1988 SCM R 557, it was held that role of an accused at the time of commission of an offence not described by witness such identification test loses its efficacy and not to be relied upon.
21. In the case of Abdul Sattar and another v. The State 1981 SCM R 678, Rule laid down in an earlier case of this Court has been upheld in the words "And, as we are sitting in this High Court Building at Karachi, we cannot do better than quote the wise observations made by a Judge in this very building in Ramzan and others v. Emperor AIR 1929 Sindh 149," the learned Judge observed:-- ' "The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases."
22. In the case of Kirir v. The State PLD 1996 Kar. 246, it was held that identification of persons in an identification test is a very weak type of evidence, which is easily destroyed by the conduct of Investigating Agency. Further held, that the prosecution is duty bound to establish during the trial that every necessary precaution had been taken to ensure fair identification. And compliance of precautions that the identifying witnesses had no chance to see the accused before the identification test, such precautions should not only be taken but should be proved to have been taken.
23. In the case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCM R 1928, it was held that the medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence, duration between the injuries and the death and presence of the injured prosecution witness or the accused on the spot but it would not connect the accused with the commission of the crime. Further held. That where no empty was recovered from the spot, the recoveries of fire-arms from the accused were of no consequence. It was also held that absence of enmity of the eye-witnesses with the accused would not stamp their statements with truth.
24. In the case of Muhammad Amir alias Mushki and 3 others v. The State PLD 1977 Kar. 695, it was held that delay in holding identification parade not explained such identification should be ruled out of consideration.
25. In the cases of Muhammad Afzal v. The State 1982 SCM R 129 and Ali Muhammad and another v.
The State 1985 SCM R 1834 the appeal of the convict against the judgment of the High Court was dismissed, as there was other evidence on record against the convict besides the evidence of identification.
26. In the case of Moazzam Ali and 2 others v. The State 1991 PCr.Li 817, it was held that identification parade in cases of dacoity and robbery when culprits are not known is not a legal requirement. No such provision either in Criminal Procedure Code or Qanun-e-Shahadat, 1984 exists although there is no legal bar for holding such identification parade as a matter of caution.
27. In the case of Muhammad Yousuf Zai v. The State PLD 1988 Kar. 539, it was held that identification test of an accused is not a legal requirement and if the eye-witnesses can identify the accused before the trial Court that is enough.
28. In the case, in hand, admittedly, there is no other evidence except the identification. Only two P.Ws. Mansooruzzaman and Muhammad Riaz have identified the appellant in the identification test parade and the third one Wajid Muhammad though an identifying witness in the identification test and also named in the F.I.R. Was not produced at the trial. The other two P.Ws. Namely Mufti Nasiruddin and Samiullah did not appear at the identification parade.
29. The identification of an accused, in Court, would, very well, be reliable if there is a fool proof method available in this respect and it is proved without any shadow of doubt to the entire satisfaction of the Court that none of the identifying witnesses had a chance to see the accused before the identification test. We find nothing on record, which could satisfy our mind that the identifying witnesses had no chance, at all, to see the appellant before his identification, as claimed by the P.Ws.
30. The most important witness in the case is Mufti Nasiruddin. He is the complainant and an eye- witness of the occurrence, but, unfortunately, he failed to turn up on both the dates fixed for holding the identification test parade. Second witness Samiullah, as stated above also failed to turn up at the identification parade and was not examined at the trial. The S.H.O., Muhammad Shahbaz (P.W.7) has stated in his cross-examination that none of prosecution witnesses stated before him that they would be able to identify the assailants. Depositions of Mufti Nasiruddin (P.W.5) and Muhammad Riaz (P.W.6) are also inconsistent.
31. The evidence of a Magistrate supervising the identification test can, at the best, testify the fact that the identification of the accused by the witnesses, taking place in his presence, was free from any outside indulgence but the same cannot guarantee that the identifying witnesses did not have any opportunity to see the accused at any time before the parade and were not tutored. He has nevertheless, recorded complaints made to him by the appellant at the time of holding test parade.
32. The identification test evidence is a corroborative piece of evidence. There is no evidence available on record, which may be corroborated by this piece of evidence. Conversely, there is no corroboration to this piece even. The recovery of empty shells at the Wardat or the medical evidence for that matter may speak volumes about the occurrence of the incident but cannot come in the aid of prosecution for seeking conviction of an accused on the basis of identification evidence alone. The absence of enmity between the appellant and the identifying witnesses in our view would not attest' their statements with truth. It is not denied that the appellant was sitting singly handcuffed in the trial Court. P.Ws. Mufti Nasiruddin, Muhammad Yousif, Muhammad Riaz and Mansooruzzaman have identified the appellant to be one of the assailants in the situation just mentioned. No precautions laid down in the case of Kirir v. The State (supra) has been proved.
33. Being fortified in our view with the observations made in 1981 SCM R 678, we are convinced in our minds that it would not be safe to base the conviction of the appellant on such piece of evidence, alone. The prosecution has failed to prove its case beyond any shadow of doubt. We, therefore, extend benefit of doubt to the appellant and acquit him in the case.
34. Resultantly, the appeal is accepted and the reference relating to the confirmation of death sentence of the appellant is declined. The appellant shall be set at liberty forthwith if not required to be detained in any other case.