' TASSADUQ HUSSAIN JILANI, J.--This judgment shall dispose of Murder Reference No,11-T/2001, Criminal Appeal No,470/2001 (filed by Zulfiqar Ali and Attaullah appellants/convicts) and Criminal No,470/2001 (filed by Zulfiqar Ali and Attaullah appellants/convicts) and Criminal Revision No, 329/2001 filed by Khan Muhammad complainant for enhancement of the amount of tine awarded to the appellants-convicts as they arise out of the same judgment dated 31-3-2001 passed by Mr. Nayyar Iqbal Ghouri, Judge Special Court-IV, Anti-Terrorism, Lahore vide which having tried the appellants (in case F.I.R. No, 160 of 2000 dated 1-7-2000 under sections 302, 324, 353 and 392. P.P.C., Police Station Saddar, Nankana Sahib, District Sheikhupura) for the murder of Sultan and connected offences he, while acquitting them of the charge under section 392, P.P.C. Read with section 34, P.P.C., convicted and sentenced the appellants in the following terms: --
(i) Under section 324/34, P.P.C.: Ten years' R.I. Each and a fine of Rs,25,000 each in default whereof to undergo three months' R.I.
(ii) Under sections 353/34, P.P.C.: Two years' R.I. Each with a fine of Rs,25,000 each and in default of payment of fine, they were directed to R.I. For three months.
(iii) Under 'sections 302(2)/34, P.P.C.: Death along with compensation of Rs, 50.000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
(iv) Under section 337-F(ii)(iii), P.P.C.: Three years' R.I. Each under section 337-F(ii), P.P.C. And three years' R.I. Each under section 337-F (iii), P.P.C. As Tazir. Both of them were also directed to pay a compensation of Rs, 25,000 jointly to Daulat Khan injured under section 544-A, Cr.P.C.
(v) The sentences awarded under sections 324/34, 353/34 and 337-F (ii)(iii), P.P.C. Were directed to run concurrently and the appellants were allowed benefit of section 382-B, Cr.P.C.
2. The prosecution story as given in the F.I.R. (Exh.P.A/1) registered by Ameer Ali, A.S.-I. (P.W. 1) on the basis of statement made by Khan Muhammad complainant (P.W. 9) recorded by Mushtaq Ahmad (P.W. 16) in Civil Hospital, briefly stated is that on 1-7-2000 at about '8-30 p.m. He saw three unknown persons who had got diverted two buses from the metalled road to Kacha Road leading to his Dera. These accused were about to extort money from the passengers when police officials, namely A.S.-I. Ayyub, Constable Bashir and Constable Shahbaz reached the spot in time and raised a Lalkara to arrest them. The accused resorted to tiring. The police also fired in defence. All the three accused ran towards his Dera. The complainant, his brother Sultan and Daulat Khan tried to stop them to which they retorted that they were policemen and they should get aside. Sultan complainant's brother and Daulat Khan tried to go back towards their Dera when one of the accused fired with his pistol which hit Sultan on his back. The name of one of the accused was Tariq Road as one of the co-accused had called him by that name during the occurrence. It was alleged that he, Hassan Khan and Khial Khan could identify the accused if they appear before them.
3. Having recorded statement of the complainant (Exh.P.A), P.W. 16 Mushtaq Ahmad took into possession Bus No, LHC 5090 vide memo. Exh.P.N and Bus No, IDT 1261 vide memo. Exit P.0, prepared the site plan (Exh.P.D/l), took into possession bloodstained earth (Exh.P.J), a pair of Chappal (P1/1-2) and a pair of Mocation shoe (P.2./ 1-2) vide memo. Exh.P.K which were attested by Ithial Khan (P.W, 11). He got Daulat Khan (P.W. 14) medically examined on 4-7-2000. According to him on 12-7-2000 he arrested Zulifiqar and sent him to judicial lock-up. On 14-7-2000 he arrested Attaullah who too was sent to judicial lock-up. The Identification Parade was got conducted on 28-7-2000 in which Khan Muhammad (P.W.9) and Khial Khan (P.W. 11) identified Zulfiqar and Attaullah (appellants).
4. During trial the prosecution examined sixteen witnesses including the doctors and the Investigating Officers. Dr. Tafeem Haider appeared as P.W.
5. He medically examined Attauflah appellant on 1-7-2000 and found following injuries on his person:
(i) A lacerated wound 2c.m. x 1 c.m. Muscle deep tallied with the injury on the back of left foot parallel to the ankle-joint.
(ii) A lacerated wound 1.8 c.m. x 1 c.m. x muscle deep on the top of the tail at lower end 3 c.m. From injury No, 1 on the same foot lower to the ankle-joint. Dr. Muhammad Ijazullah appeared as P.W. 8 who examined Daulat Khan (P.W. 11) and found following injuries on his person: --
(i) A lacerated circular healing wound 11/2 x I/2 c.m. On back of right chest upper part about 5 c.m.
From upper top of the right shoulder.
( ii) A lacerated horizontal healing. Wound 1 V, x I/2 c.m, on back, of left upper chest about 6 c.m.
Lateral to midline.
' Dr. Khalid Mehmood appeared as P.W. 10 who conducted the post-mortem examination of Sultan Ahmad deceased and found following injuries on his person: -- ' Fire-arm wound of entry 1 c.m. x 1 c.m. On the right middle back of chest in the lower scapular region with an exit wound 3 c.m. x 3 c.m. On the front of right chest 2 c.m. Below the collar bone and 2 c.m. Away from the midline.
' According to the doctor the above injuries were sufficient to cause death in the ordinary course of nature.
5. P.W. 1 is Ameer Ali who registered the F.I.R. P.W. 2 is Constable Asghar Ali whose evidence is formal in nature. P.W. 3 is Attaullah who is yet another formal witness. Ch. Muhammad Ilyas appeared as P.W. 4 who conducted the Identification Parade. According to him on 28-7-2000, after taking necessary precautions as mandated in law and recording statements of witnesses, he conducted the proceedings of Identification Parade in which Khial Khan P.W. And Hassan Khan P.W. Correctly identified both the accused/appellants to be the ones who had committed the offence. P.W. 6 is Muhammad Nowsher who prepared the site plan. P.W. 7 Munawar Hussain is a formal witness who received two parcels containing blood-stained earth and blood-stained Chappal. He handed over the parcel containing blood-stained earth to Asghar Ali, Constable on 6-7-2000 for onward transmission to the office of the Chemical Examiner and on 14-7-2000 he handed over the second parcel containing Chappal to Constable Attaullah for its one and transmission to Chemical Examiner's office. P:W.9 is Khan Muhammad complainant. He in examination-in-chief tried to corroborate the version given in the F.I.R. But he made improvements. P.W. 10 is Khial Khan who broadly corroborated the statement of P.W.9, P.W.12 is Muhammad Ayyub who partly investigated the case. P.W. 13 is Basharat Ali Moharrir who kept the blood-stained parcel in Malkhana for safe custody. P.W. 14 Daulat Khan who is an eye-witness. P.W. 15 is Bashir Ahmad who escorted the dead body to mortuary. P.W. 16 is Mushtaq Ahmad who recorded complainant's statement and investigated the case.
6. The appellant when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to the pressure on local police to arrest the accused. In an answer to the question as to why the case against him, appellant Zulfiqar stated that the injury received by him on foot was-by way of an accident. In the subsequent investigation conducted by Muhammad Shoaib Inspector of Crimes Branch on the direction of D.I.-G. Crimes and on behalf of SP Range Crimes, he was found innocent.
7. Appellant Attaullah in his statement under section 342, Cr.P.C. Denied the prosecution case and attributed false implication to pressure on local police to arrest the accused forthwith. They produced eight witnesses in defence. D.W. 1 is Muhammad Shoaib, Inspector Range Crimes who deposed that both the accused were found innocent during his investigation and that the injury on the foot of Attaullah appellant was by his own pistol accidentally. He further stated that during his investigation it came to his knowledge that Investigating Officer Mushtaq had arrested the accused the very next day but their formal arrest was shown latter. D.W. 2 is Maqbool Hussain who also joined the investigation conducted by the Range Crimes and stated that the doctor had handed over him a bullet which was recovered after operation of the foot of Attaullah accused/appellant. D.W.3 is Muhammad Arshad Constable. D.W. 4 is Muhammad Abbas, S.-I. Who partly investigated the case along with Muhammad Shoaib Inspector. D.W. 5 is Muneer Ahmad Khan. D.W. 6 is Mian Khan Tracer. He stated that both the appellants were with the police. They were directed to walk on a sand and he was asked to identity their foot marks. Having examined the foot marks, according to him, he opined that both of them were innocent. P.W. 7 is Dr. Farooq Anwar, Chief Surgeon of DHQ Hospital, Sheikhupura. He, however, did not remember having operated upon Attaullah appellant. D.W. 8 is Ahmad Ali Inspector who recorded the statement of Mian Khan on the direction of Muhammad Shoaib, Inspector Range Crimes.,
8. Learned counsel for the appellants in support of this appeal, made following submissions:--
(i) That none of the witnesses, who have furnished the ocular account, knew the accused that is why none was not named in the F.I.R. There is nothing on record as to how the Investigating Officer came to know about their names which were subsequently added in supplementary statement made by the complainant (P.W. 9). Their testimony is, therefore, of no consequence.
(ii) That the Identification Parade is of no avail to the prosecution as the marks of identification were not given by the complainant in the F.I.R. Or in their statements under section 161, Cr.P.C.
(iii) That the evidence of recovery of rifle from appellant Zulifiqar vide memo.Exh.P.N and pistol from Attaullah are of no avail as the empties could not be wedded with the weapons recovered.
(iv) That the Identification Parade does not carry any weight, firstly, because in the F.I.R. No marks of identification Were given by the complainant and, secondly, during identification the witnesses did not specifically point out the role played by each appellant and, thirdly, it is in evidence that the appellants were in police custody prior to the identification parade and there were chances for the eye-witnesses to see them;
(v) That the Inspector Range Crimes who investigated the case, namely, Muhammad Shoaib (D.W.
1) had declared both the appellants to be innocent.
9. Learned counsel for the complainant assisted by the learned Assistant Advocate-General have defended the impugned judgment. Complainant's learned counsel, in support of the impugned judgment and Criminal Revision No,' 329/2001, submitted as under:--
(i) That. P.Ws.9 and 11 had correctly identified both the appellants and there is no reason why they should falsely, implicate them.'
(ii) That the police had got clue of the accused when the arrested Attaullah appellant and after investigation both the appellants were found involved in the occurrence. The infirmities referred to above by- the appellants' learned counsel in the identification parade are of no consequence as in the criminal case no hard and fast rule can be laid . Down and if the witness, who had identified the accused before the Magistrate, could not specify the role played by the each accused this by itself would not discredit them in absence of any motive to falsely implicate the accused. , In support of the submissions, learned counsel relied on Muhammad Yousuf Zai v. The State (PLD 1988 Tar: 539) and Murid Abbas and 2 others v. The State and 2 others (1992 SCM R 338).
10. Admittedly, none of the witnesses, namely, P.W. '9 and P.W. 11 knew the appellants prior to the day of occurrence and that is why none was named as an accused in the F.I.R. Or in the statement under section 161, Cr.P.C. Immediately after the occurrence. There is nothing in evidence as to how appellant Zulfiqar is linked, with the occurrence. The prosecution case. Is primarily based on the Identification Parade and the recovery of blood-stained Chappal allegedly of the appellant who had an injury on foot. The evidence of recovery of rifle and pistol from the appellants would be of no avail to corroborate the ocular account as no empty could be wedded with those weapons. The credibility of the Identification Parade is not free from doubt for more than one factors. Firstly, it is in evidence that Attaullah appellant was arrested the very next day and so says P.W. 9 at page 47 of the Paper Book although Mushtaq (P.W. 16) stated that he was arrested on 12-7-2000. This witness further says that the other accused was arrested after 18/19 days of the occurrence whereas as per the statement of P.W. 16, appellant Zulfiqar was arrested on 14-7-2000. The impression that the accused were arrested and were shown to the prosecution witnesses is further strengthened by the statement of P.W. 11 Khial Khan who stated that "Khan Muhammad, Saleh Muhammad and Jan Muhammad went to the police station after hearing rumour of the arrest of the accused". Secondly, notwithstanding the arrest of the accused immediately after the occurrence, the Identification Parade was held on 28-7-2000 which is sixteen days after the arrest of the accused, twenty-seven days after the occurrence and three days after the application for the identification parade was made. Thirdly, admittedly, it was a dark night occurrence as admitted by P.W.9 (complainant). No marks of identification were given in the F.I.R. And during the Identification Parade also no specific role was assigned to the appellants who were being identified. There is no cavil to the proposition that holding of identification parade is not a mandatory requirement of law. However, in a case which primarily hinges on circumstantial evidence its evidentiary value is crucial and it has to be proved beyond reasonable doubt that the witness had correctly identified the accused otherwise an incorrect identification, if credited with truth, could send an accused to the gallows. The identification parade, in certain conditions, becomes necessary as when the accused is not previously known to the witnesses and when they are not named in the F.I.R. Either. This is in line with the law laid down by the august Supreme Court in Ismail and others v. The State (1974 SCM R 175) and Farman Ali v. The State (1997 SCM R 971). When such an Identification Parade is held it is essential to rule out all chances of false implication. The Magistrate has to follow a certain procedure and the canons of prudence require that the witnesses should also specify the role played by the accused whom they identify. An Identification Parade in which a witness merely points out that he is the accused, in absence of other tenable material evidence on record incriminating the accused, would loose its evidentiary value. This view is fortified with the ratio laid down by the august Supreme Court in Ghulam Rasool and 3 others v. The State (1988 SCM R 557) wherein at page 566 it was held as under:-- "The second piece of evidence which has been relied upon by the prosecution is the identification parade. The perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the identification parade also carried an inherent defect and that is that Abdul Majid P.W. Did not describe the role played by each of the appellant at the time of the commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case of Khadim Hussain v. The State reported in 1985 SCM R 721."
' This was reiterated later in Mehmood Ahmad and 3 others v. The State and another (1995 SCM R 127).
12. The precedent case-law to which reference was made by the learned counsel for the complainant would not be relevant as the facts in this case are different from Muhammad Yousuf Zai v. The State (PLD 1988 Kar. 539) as in the said case the identification of the accused in Court was found to be sufficient because one of the important witnesses, the Branch Manager of the Bank had appeared in Court to state that he knew the accused; that he had opened the account in his presence and had withdrawn the amount which was one of the points in issue. In Murid Abbas and 2 others v. The State and 2 others (1992 SCM R 338) the accused had committed dacoity in broad daylight in the National Bank of Pakistan Branch, the prosecution case was based on the ocular account, the recovery of looted money from the accused and the Identification Parade. The august Supreme Court did not find the omission to identify the part played by each accused in the occurrence (during Identification Parade) to be fatal in the circumstances of the said case as held at page 347 of the judgment which reads as under:-- "The effect of the above omission will depend on the facts of each case. In the present case, the eye-witnesses had gone to attend the Identification Parade with the object to identify the persons who had committed dacoity in their Bank and, therefore, the factum that they had picked up the appellants implies that they were the persons who committed the above offence. The omission to identify the part of each of the above appellants in the present case by the witnesses may not be fatal."
13. In the instant case it was a dark night occurrence, the report of the Forensic Science Expert with regard to empty is negative, the omission to specify as to who fired, in a murder trial, in the, afore- referred circumstances, would mark the culpability rather doubtful.
14. For what has been discussed above, we are of the considered view that the prosecution has failed to prove its case against the appellants beyond reasonable doubt to sustain conviction on a capital charge. Resultantly, Criminal Appeal No,470 of 2001 filed by Zulfiqar Ali and Attaullah appellants is allowed, the impugned judgment dated 31-3-2001 passed by learned Judge Anti- Terrorism Court-IV, Lahore is set aside, the appellants are acquitted of the charges levelled against them and they shall be released forthwith unless detained in any other case. Criminal Revision No,329 of 2001 filed by Khan Muhammad complainant is dismissed. Murder Reference No,11-T of 2001 is answered in the Negative.
Death sentence not confirmed.