' M. NAEEMULLAH KHAN SHERWANI, J.--- Muhammad Wazir son of Muhammad Ramzan, Mumtaz son of Ahmad Khan and Qasim Shah son of Sardar Shah were tried by learned Judge, Special Court constituted under Anti-Terrorism Act, 1997 at Sargodha for committing robbery cum murder of Muhammad Munawar in furtherance of their common intention. The said learned Judge found them guilty of the charges, convicted and sentenced them as under:- Under section 302/34, P.P.C.
(i) Muhammad Wazir to death and fine of Rs,1,00,000 or in default whereof to undergo rigorous imprisonment for ten years.
(ii) Muhammad Mumtaz and Qasim Shah to imprisonment for life each and fine of Rs,50,000 each or in default whereof to further undergo rigorous imprisonment for five years, each.
Under section 394/34, P.P.C.
' All the three accused were sentenced to imprisonment for life and fine of Rs,50,000 each or in default whereof to undergo rigorous imprisonment for five years each. Sentences awarded to Muhammad Mumtaz and Qasim. Shah were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to them. Fine, if recovered, was ordered to be paid to the legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C.
2. Murder Reference No,486-T of 1999 seeks confirmation of the said sentence of death awarded to Muhammad Wazir convict, whereas he along with Muhammad Mumtaz and Qasim Shah convicts by filing Criminal Appeal No,1113 of 1999 has approached this Court to call in question convictions and sentences passed against them by the said learned Judge. Muhammad Akbar complainant by filing Criminal Revision No,631 of 1999 seeks enhancement of sentence awarded to Muhammad Mumtaz and Qasim Shah to the maximum provided under the law. Request for enhancement of fine has also been made. Therein. We propose to dispose of all these matters together 'through this single judgment.
3. Occurrence of the alleged incident took place on 18-6-1998 at 8-00 p.m. Within the area of Chak No,6, situate at a distance of two kilometers from Police Station Bhalwal, District Sargodha. The said occurrence was reported by Muhammad Akbar (P. W.11) to Muhammad Anwar A.S.I. (P.W.5) on the same day at 9-00 p.m. At the police station who as per dictation of the complainant drew up formal F.I.R. (Exh.P.K) correctly without any addition or subtraction on the part.
4. Muhammad Akbar (P.W.11) puts the matter succinctly by stating that he is resident of Chak No,6.
N.B. Falling within the territorial jurisdiction of Police Station Bhalwal District Sargodha. On the fateful night he alongwith his brother Muhammad Munwar was on their way to Bhalwal by means of their motorcycle. Motorcycle was driven by the complainant. Muhammad Munawar was the pillion rider.
At about 8-00 p.m. They reached near Dera of Ghulam Rasool Tarar on the metalled road. All of a sudden, three unknown persons with the following description were seen by them:-
(i) Short height, Smart body, young age, muffled face, armed with a pistol.
(ii) Thin slim body, medium height, aged 23/24 years.
(iii) Medium height, whitish colour, aged 20/22 years.
' They forcibly stopped motorcycle. They asked them to deliver whatever they had with them.
Munawar raised a noise that they were the dacoits. Man having pistol tired at Munawar striking him on his left flank who fell down. Companions of the armed accused took out purse from pocket of Muhammad Munawar. This purse contained a photostat copy of National Identity Card and some amount which he did not remember for the time being and undertook to furnish the same afterwards. In the meanwhile Muhammad Walawat and Muhammad Hedayat sons of Muhammad Din residents of the village who per chance were coming towards Bhalwal City on a motorcycle, reached at the spot. They also saw the accused in the light of motorcycle. The accused decamped from the spot. Muhammad Munawar was removed to Civil Hospital, Bhalwal by the complainant and other P.Ws. In an injured condition. The examining Doctor issued medico-legal report No,177 of 1998 and referred Muhammad Munawar to Civil Hospital, Sargodha in view of his precarious condition.
' Police also recorded statement of Muhammad Munawar (Exh.P.W.) in the hospital. He too did not name any of the convicts in his statement. He simply stated that his purse contained Rs,750, photostat copy of National Identity Card and some documents. He simply stated that in the light of information passed on by Sarfraz son of Akbar Tarar, suspects may be apprehended because they may be the actual culprits.
6. On 18-6-1998 investigation of this case was entrusted to Abdul Rauf Sub-Inspector (P.W.15). He immediately rushed to the place of occurrence where complainant got recorded his supplementary statement. He did not inspect the spot because there were no arrangements of light. Then he proceeded to Civil Hospital, Bhalwal but Muhammad Munawar injured had already been shifted to DHQ Hospital, Sargodha. On 19-6-1998 he again inspected the spot and collected blood-stained soil from the place of occurrence, made the same into a sealed parcel and prepared seizure memo. (Exh.P.P).. He also collected empty cartridge P.5, from the place of occurrence and prepared recovery memo. (Exh.P.Q), duly attested by Muhammad. Akbar (P.W.11) and Muhammad Walayat (P.W.12). Muhammad Akbar (P.W.11) produced before him motorcycle.
Honda (P.4) which was taken into possession by him through memo. (Exh.P.0), duly attested by Muhammad Maqbool Constable (P.W.10). He then recorded statement of Muhammad Munawar Exh.P.W in DHQ Hospital, Sargodha after getting necessary permission from the relevant authorities.
' On 21-6-1998 Muhammad Munawar died in the 'hospital. He prepared injury statement (Exh.P.F), inquest report (Exh.P.G) and dispatched the dead body to the mortuary for autopsy purposes under the escort of Ghulam Hurr Constable (P.W.4). After post-mortem examination, Ghulam Hurr Constable (P.W.4) produced before him last worn clothes of the deceased, blood-stained shirt (P.1), Shalwar (P.2) and sealed phial (P.3) containing bullet led. He took these articles into possession through memo. (Exh.P.J). He got prepared site plans (Exh.P.H and PH/1) from Noor Muhammad Patwari (P.W.3).
' On 17-7-1998 he arrested all the three accused from Bhera-Bhalwal Chowk, Bhalwal. On 27-7-1998 test identification parade was held in District Jail Sargodha which was supervised by Syed Muhammad Ishaq Shah, Magistrate. On 7-8-1998 Muhammad Wazir accused got recovered .30 bore pistol (P.6) from Houzy of Tubewell in the area of Chak No,6/NB, which was taken into possession by him vide memo. (Exh.P.R), duly attested by Muhammad Walayat (P.W.12) and Manzoor Ahmad (not produced). Then Mumtaz accused got recovered stengun (P.7) from a Khadda in the room of Tubewell afore-mentioned, which was taken into possession by him through seizure memo. (Exh.P.S), duly attested by the above said set, of witnesses. On 10-8-1998 Qasim Shah accused led to the recovery of rifle 8 MM (P.8) from. Railway Hut No,3 near Noon Textile Mills which was taken into possession by him vide memo. (Exh.P.T), duly attested by the above said set of witnesses. On the same day Muhammad Mumtaz accused got recovered Yamaha motorcycle (P.9) from room of Operator of Tubewell which was taken into possession by him through memo.
(Exh.P.U), died)/ attested by the same set of witnesses. Muhammad Wazir accused at the same time got recovered from the Tapa of motorcycle, purse (P.10), containing an amount of Rs,500 photostat copy of Identity Card (P.12) of Muhammad Munawar deceased, an application P.13, Visiting Card (P.14) of one Ch. Muhammad Khan. These articles were taken into possession by him through memo. (Exh.P.V). After completion of investigation, challan against the accused was submitted.
7. The learned trial Court on receipt of challan scrutinized the same and after observing necessary legal formalities, framed charge against the accused to which they pleaded not guilty and claimed to be tried. In this eventuality, the learned trial Court directed the prosecution to lead its evidence against the accused. The prosecution ventured to produce as many as fifteen witnesses. The evidence of these witnesses will be discussed during appraisal of evidence.
8. The learned prosecutor gave up remaining witnesses and after tendering in evidence report of Chemical Examiner (RI), report of Serologist (Exh.P.Z) and that of fire-arm expert (Exh.P.AA), declared the prosecution case close.
9. The accused were then examined under section 342, Cr.P.C. All the incriminating material was put to them to enable them to offer handsome explanation with regard to their involvement in the occurrence. They emphatically denied the accusations brought against them and alleged their false involvement in the occurrence. Neither they opted to make statement on oath in disproof of allegations levelled against them as envisaged by the relevant provisions of section 340(2), Cr.P.C.
Nor they produce any evidence in defence.
10. The learned trial Judge after hearing both the sides and taking everything into his full consideration pronounced verdict of guilt coupled with punishments as aforementioned.
11. Learned counsel for the appellants after taking us through the relevant evidence highlighted following points for our consideration:-
(i) That it was a night time occurrence. Appellants are not named in the F.I.R. One of the appellants had muffled his face who could not be identified at the spot by any stretch of imagination.
(ii) That identification parade was not held according to rules. Furthermore, appellants were not identified through their respective roles and that a specific role was subsequently assigned to Wazir, but no role was assigned to others.
(iii) That a large number of improvements were made by the P. Ws. And their improved statements cannot be called upon.
(iv) That prosecution has failed to establish the case beyond any shadow of doubt against the appellants through reliable evidence.
12. On the contrary, learned counsel for the State assisted by learned counsel for the complainant submits that it is a case of promptly lodged F.I.R., description of the accused was given in the F.I.R., they were rightly identified by the prosecution witnesses during test identification parade held in jail, that statements of the witnesses were supported by different recoveries. They support judgment of the trial Court.
13. We have with full care and devotion heard and soberly considered respective arguments of both the sides. For better appreciation of evidence led by the prosecution in this case, we would like to give backdrop of prosecution story which is the following:- ' Muhammad Akbar complainant (P.W.11) is resident of Chak No,6/NB falling within the territorial jurisdiction of Police Station Bhalwal District Sargodha. On the fateful night, he along with his brother Muhammad Munawar was on their way to Bhalwal City by means of a motorcycle.
Motorcycle was being driven by the complainant whereas Muhammad Munawar was the pillion rider. At about 8-00 p.m. They reached near Dera of Ghulam Rasool Tarar on the metalled road. All of a sudden, three unknown persons were seen by them in the light of motorcycle. They forcibly stopped the motorcycle. One of them was armed with a pistol. Armed accused asked them to deliver whatever they had. Muhammad Munawar raised a noise that they were the dacoits. Man having pistol fired at Muhammad Munawar striking him on his left flank who fell prone.
Companions of the armed accused took out purse from pocket of Muhammad Munawar. This purse contained a photo copy of National Identity Card and some amount which he did not remember for the time being and undertook to dictate the same afterwards. In the meanwhile Muhammad Walayat and Muhammad Hedayat, sons of Muhammad Din residents of the village who per chance were coming towards City on a motorcycle, reached at the spot. They saw the accused in the light of motorcycle. The accused decamped from the spot. Muhammad Munawar was removed to Civil Hospital, Bhalwal by complainant along with Muhammad Hedayat in an injured condition. The examining Doctor issued Medico-Legal Report No,177 of 1998 and referred Muhammad Munawar to Civil Hospital Sargodha in view of his serious condition.
14. After acquiring full knowledge of facts and circumstances of this case we would like to appreciate the prosecution story and evidence adduced on behalf of the prosecution to substantiate the same. While so doing, we would like to comment upon first information report.
Here we have a crime report in which names of the culprits do not figure. Culprits were not previously known to, the eye- witnesses of the occurrence. F.I.R. Was lodged by Muhammad Akbar complainant. Muhammad Walayat and Muhammad Hedayat P. Ws. Are brothers inter se and cousins of-the deceased Muhammad Walayat has been produced as P.W.12. Muhammad Walayat and Muhammad Hedayat simply saw the accused while levanting from the spot in the light of their motorcycle. Sketch description of accused persons was given by the complainant in the first information report but features of face or (Hulya) of culprits by which they could be identified, have not been furnished. It is nowhere mentioned in the F.I.R. That Muhammad Walayat and Muhammad Hedayat had in any manner, seen the occurrence of the alleged incident. Their arrival at the spot was per chance. One of the culprits had masked his face and was armed with a 'pistol. Only the armed culprit had made a shot striking Muhammad Munawar on his left flank. The other two culprits were not shown to be armed. Thereafter, all the three took away purse of the deceased from pocket of the deceased. The descriptive features of this purse have not been mentioned in the F.I.R.
15. Muhammad Munawar in an injured condition was shifted to the hospital for treatment purposes.
None of the eye- witnesses overstated as to by what means of transport, he was shifted to the hospital from the spot. Medico-legal report (Exh.P.A) tells us that Muhammad Munawar was examined in the hospital on 18-6-1998 at 8-45 p.m. Probable duration of injury is not mentioned in the Medico-legal report (Exh.P.A). Muhammad Akbar H.C.-41 has signed this document. Name of Akbar complainant is also mentioned in the Medico-legal report as one accompanying the patient.
F.I.R. In this case was recorded at the police station at 9-00 p.m. It is not understandable as to under what circumstances, Muhammad Akbar, H.C.-41 signed Medico-legal report (Exh.P.A) when no F.I.R. Had been recorded. Occurrence took place during night hours near the Dera of Ghulam Rasool Tarar. It seems probable that inhabitants of Dera of Ghulam Rasool Tarar took the injured to the hospital at Bhalwal for treatment purposes and thereafter complainant and his cousin brothers on receipt of information reached the hospital. Muhammad Akbar complainant was acting as a Police Qaumi Razakar and was attached to Police Station Bhalwal. He may be available at the police station and on receipt of information from the hospital, reached there and collected the Medico-legal report. Even this fact is recorded in the Medico-legal report by the Doctor that arrival report of Muhammad Munawar in the hospital was immediately sent to the police station.
Complainant is absolutely silent as to why he along with Muhammad Munawar was going to Bhalwal. Likewise, Muhammad Walayat P.W.12 had also not disclosed the specific reason for his- going towards Bhalwal. It was per chance that he along with given up P.W. Muhammad Hedyat came there. Muhammad Akbar complainant was available at a distance of three feet from the deceased and accused at the relevant time of occurrence. None of the accused tried to inflict any injury on his person. Two of the culprits were empty-handed. Muhammad Akbar complainant along with two witnesses should have made an attempt to catch hold of them but they did not do so. Had 'Muhammad Akbar complainant been available at the spot, then he would not have been spared by the armed accused. Statement of Muhammad Walayat (P.W.12) was recorded on the following day of occurrence whereas according to prosecution version, all the witnesses had gone to hospital along with Muhammad Munawar. The Investigating Officer would not have omitted to record his statement in the hospital during night hours. This shows that.This witness was neither present at the spot nor in the hospital.
16. Before the trial Court, Muhammad Akbar complainant (P.W. 11) exacted certain deliberate, dishonest improvements in his statement. Muhammad Walayat (P.W.12) also testified in the same fashion. Muhammad Akbar (P.W. 11) for the first time stated that one of the accused with muffled face, was- having a pistol whereas two others were having a stenegun and 8 M.M. Rifle. He was got duly confronted with his statement (Exh.DA). He also stated that the two accused namely Qasim and Mumtaz pointed their weapons towards them while standing nearby. Muhammad Akbar also confined the allegation of taking away of purse by Muhammad Wazir. Throughout, these witnesses have not offered a little bit explanation as to how they gained knowledge of names, parentage and other particulars of the accused. All the accused were allegedly taken into custody by Abdul Rauf S.I. (P.W.15) on 17-7-1998 almost one month after the occurrence. What led to their arrest, is also not known. It is also shrouded in mystery. Muhammad Akbar (P.W.11) throughout did not furnish identification data of the accused persons by virtue of which he could identify the culprits. Merely from built, and height no identification of the culprits was ever possible.
17. Muhammad Wazir, Qasim and Mumtaz were subjected to test identification parade in jail at Sargodha on 27-7-1998 ten days after their alleged arrest. The identification parade was supervised by Syed Muhammad Ishaq Shah, Magistrate 1st Class, Bhalwal (P.W.8). P.W.15 did not take extraordinary precautions while shifting the accused to the police station after their arrest and then to jail. Even he did not request jail authorities that necessary precautionary measures be adopted qua the culprits as they were to be subjected to test identification parade. Wazir accused had raised an objection before the Magistrate that they had been shown to the witnesses in the police station during course of investigation and this objection was taken down by the Magistrate.
The learned Magistrate did not conduct the separate identification parade for each accused. A joint identification parade was held by him. For all the three accused, only 18 dummies were mixed up with accused. The descriptive features of dummies like, ages, physique, height were also not recorded by the Magistrate and this note has also not been given that they had similar features, height, colour etc. Of the accused. Muhammad Walayat (P.W.12) by signalling told that they are the accused. Muhammad Hedayat and Muhammad Akbar also done the same thing. None of the witnesses ever stated before the Magistrate as to in what context, they were identified by him. They also failed to describe role or roles played by the accused. We are of the firm view that identification parade has not been held according to rules because identification of each accused should be held separately otherwise confusion would be created. Ratio of one accused and nine or ten stranger under-trials have to be mixed, but it is not an inflexible rule when justification exists for it. When rule is departed from, it would be unsafe to rely on such identification. Reference can be made to PLD 1981 SC 142 Lal Pasand. When identification parade of each accused was not held separately, conviction was set aside. (PLD 1981 SC 142 E Lal Pasand). We find that all essential rules governing identification parade, were violated by the Magistrate. We find that role of the culprits has not been described by the witnesses at the time of identification parade. This is by all ,means an inherent defect and such an identification parade cannot be relied upon. It was held by their Lordships of the Supreme Court in 1995 SCM R 127 Mehmood Ahmad etc. And 1995 SCM R 127 that when no role is attributed to the persons in the occurrence by a witness in identification parade, identification parade suffers from illegality and infirmity rendering it completely unreliable having no evidentiary value. Previous to identification, witnesses did not furnish description (Hulya) of the culprits. This factor also strikes at the very root of the identification parade making it wholly unreliable. Definitely, identification parade is of no value when description of accused is not given in the F.I.R. In this case witnesses had only a fleeting look at the Accused, so it is of no avail to the prosecution. Muhammad Wazir appellant was available at the spot with muffled face (wearing mask). No ground or reason was ever stated by the complainant either in the F.I.R. Or subsequently as to how he could be in a position to identify such an accused. We are constrained to hold that this type of identification parade carries no weight in the eye of law. The witnesses are wholly unreliable. It would not be safe to place explicit reliance on the testimony of these witnesses. There are sufficient reasons to discard the occuler evidence and evidence relating to identification parade.
18. Occurrence of the alleged incident took place on 18-6-1998 and crime empty (P.5) was taken into possession by the police on 19-6-1998 one day after the occurrence. It was dispatched to the Forensic Science Laboratory on 18-7-1998 and a day earlier to it i,e, 17-7-1998 all the accused were arrested. Pistol (P.6), allegedly recovered on 7-8-1998 at the instance of Muhammad Wazir, appellant was dispatched to the Forensic Science Laboratory on 12-8-1998 meaning thereby that the police had ample opportunities to fabricate this piece of evidence. We do not accept this piece" of evidence, as it appears to be a patent fabrication. Muhammad Walayat (P. W.12), a cousin brother of the deceased is a common witness in respect of recovery of Purse (P. 10), Crime empty (P. 5) and Pistol (P. 6). Muhammad Walayat is resident of Chak No, 6/NB whereas recoveries were effected from different places. Not a single disinterested witness of the localities was either summoned or joined in the recovery proceedings. We discard recoveries as they appear to be concocted ones. Investigation smacks of padding. Accused always adopt special measures to cause destruction of incriminating: evidence. It is not believable that Muhammad Wazir, appellant would retain these incriminating recoveries for such a long time.
19. In almost all cases relating to blind murders it has become general practice of the police to plant fake recoveries of purse, photo copy of National Identity Card and few currency notes on the accused to create corroboration. Fabrication of this type of evidence is very easy but this piece of evidence reflects upon concoction in high tones. Exh. P.W. Is also a glaring example of this fabrication. Exh. P.W. Was recorded by the 1.0. On 19-6-1999. Muhammad Munawar had received dangerous bullet injury. 7th rib was fractured, left pleura and blood vessels of chest and diaphram were punctured. Bullet had also damaged anterior and posterior walls of stomach; colon small intestines were also perforated. It was a case of acute haemorrhage and' damage to the most vital organs of the body. A man suffering such type of injuries could not perform volitional acts like speaking arid walking etc. In Exh.PB, an application addressed to the medical officer by the 1.0 making a query from Medical Officer that the victim of assault Muhammad Munawar was fit to make a statement or not. No time has been recorded. Doctor did not record Blood Pressure, Temperature, pulse rate etc. Of the patient before giving his opinion. He did not attest his statement (Exh. P.W.). It is also not worthy of credence. It, in no way, advances case of the prosecution. The fact remains that when principal evidence like occult evidence and evidence regarding identification parade fails, then the remaining evidence is of no significance. Our close scrutiny of evidence reveals that his case has all the defects which a worst case for the prosecution must have. We have no other alternative but to quash convictions and sentences of the appellants.
20. For all these reasons, we set aside convictions and sentences of the _appellants and direct that they be released from custody forthwith if not required to be detained in any other case. Death sentence is NOT confirmed and murder reference is answered in the negative. Cr. Rev. No, 631 of 1999 is accordingly dismissed.