1. ' RAHMAT HUSSAIN JAFFERI, J.----This judgment will dispose of Special Anti-Terrorism Appeals Nos.164 and 175 of 1999 and Confirmation Case No,50 of 1999 as they arise out of one and same judgment.
2. ' The present appeals have been directed against the judgment dated 1-11-1999 passed by the Anti-Terrorism Court No,VI, Karachi in Special Case No,118 of 1999 (State v. Asif Jameel and another) under sections 364, 302 and 34, P.P.C. By which the learned Judge had convicted the appellants under section 7(i)(a) of the Anti-Terrorism Act, 1997 (hereinafter referred to as "A.T.A.") read with sections 364, 302 and 34, P.P.C. And sentenced them to death. The appellants were directed to pay fine of Rs,100,000 (Rupees one lac only) each and on realization it should be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. And in case of default, thereof, to undergo simple imprisonment for two years.
3. ' The facts giving rise to the present appeals are that the complainant Muhammad Aqeel Khan and deceased Sirajuddin were friends since childhood. They used to meet daily in the evening.
4. Previously the deceased was member of Ex-Committee of M.Q.M. Haqiqi due to which the boys of M.Q.M. Altaf Group developed enmity with him. Few days back, from the date of incident, the deceased told him that boys of M.Q.M. Namely Nadeem alias Paya, Rehan alias Canteen, Kamran Siddiqui alias Kuna, Tariq Chamber, Sohail Commando Darashanwala and Asif T.T. Were issuing threats to him on telephone of the K.E.S.C. Office. On account of the said threats the, deceased became disturbed, therefore, he got himself transferred from Malir to Memon Goth.
5. ' On 18-7-1999 at 2-45 p.m. The complainant was present in the house when one MQlazim Hussain employee of K.E.S.C. Informed him on telephone that deceased Sirajuddin was kidnapped by 8/10 persons from K.E.S.C. Office in vehicle bearing No,AB-1427. On receiving such information the complainant went to K.E,S.C. Office where he was informed that a dead body was found in the jurisdiction of Police Station Al-Falah, therefore, he went to locate Al-Falah Police Station. During search he found a Mobile of Police Station Al-Falah on the way and a dead body Was laying in it.
6. He saw the dead body and identified it to be the dead body of Sirajuddin. It is alleging in the F.I.R.
7. That above named persons might have killed Sirajuddin after kidnapping him, due to enmity.
8. ' After registration of the case on 18-7-1997 at 8-30 p.m. The police started the investigation. The dead body was sent to hospital for post-mortem examination. Statement of witness from K.E.S.C.
9. Office were recorded. On 25-6-1999 appellant Qaiser Ali was arrested. On 12-9-1997 the appellant Asif Jameel was arrested. From the place where the dead body was found two empty bullets of a pistol were secured. After completing the usual investigation the appellants were challaned on 30- 9-1997 in the Special Anti-Terrorism Court, Karachi Division. On 11-5-1999 the case was received by the Administrative Judge, Anti-Terrorism Courts from where it was assigned to Anti-Terrorism Court No,VI, Karachi for disposal according to law.
10. ' On 19-10-1999 a charge under section 364 read with section 34, P.P.C. And section 7 of the A.T.A.
11. Read with section 302/34, P.P.C. Was framed against the appellants but they pleaded not guilty.
12. ' In support of the case the prosecution examined P.W.1 Inspector Soulat Hussain (he recorded the statement of complainant). P.W.2 Molazim Hussain (eye-witness of abduction), P.W.3 Muhammad Aqeel (Mashir of Wardat), P.W.4 Medical Officer (he conducted post-mortem), P.W.5 Ahmed Ali (eye-witness of abduction), P.W.6 Salahuddin (Mashir of Wardat, dead body and inquest report), P.W.7 Abdul Lateef (Investigating Officer who arrested the accused Asif and prepared the inquest report), P.W.8 Muhammad Sharif Mashir, P.W.9 S.I.P. Raja Mumtaz (he arrested the appellant Qaiser Ali) and lastly Inspector Mushtaq Ahmed, Investigating Officer of the case.
13. ' The appellant in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Asif Jameel in his further statement deposed that he was illegally arrested by Investigating Officer Mushtaq Tanoli in the first week of September, 1997 in connection with Crime No,139 of 1997 of Police Station AlFalah, therefore, a Constitution petition was filed by his family member for the wrongful detention, therefore, as a punishment the Investigating Officer has involved him in this case and that the witnesses had seen him before the trial, therefore, they had identified him in the Court. Appellant Qaiser Ali in his further statement stated that he was shown to the witnesses before their statements were recorded by the Court, therefore, they had identified him in the Court. Both the accused examined themselves on oath and stated the same fact in their statements. The appellant Asif Jameel produced a copy of Constitution petition.
14. ' After considering the material available on the record, the learned trial Court Judge convicted the appellants as mentioned above. The appellants were dis-satisfied with the said judgment, therefore, they have preferred the present appeals. As the trial Court awarded death sentences, therefore, a reference under section 374, Cr.P.C. Has been sent for the confirmation of the said sentences.
15. ' We have heard the learned Advocate for the appellants. A.A.-G., for the State and perused the evidence with their help. The learned advocate for the appellant has argued that there is no evidence to connect the appellant with the commission of the murder of the deceased as no witness has been examined on the said point. He has further argued that according to the evidence two eye-witnesses viz. P.W.2 and P.W.5 of abduction the culprits were unidentified but no identification test was held by the prosecution before the Magistrate through these witnesses to identify them to be the culprits but the appellants were identified in the Court during the course of evidence, therefore, such type of identification has no weight. He relied upon PLD 1995 SC page 1, 1993 SCMR page 585, AIR 1982 SC page 839 and 1984 SCMR 175. He has further argued that there are material discrepancies in the evidence and the investigation was conducted with mala fide intention.
16. ' On the other hand the learned A.A.-G. Has stated that the identification is based upon the evidence of two eye-witnesses viz. P.W.2 and P.W.5 but they had identified the appellants in the Court which is sufficient to convict them. He has further stated and conceded that there is no evidence to connect the, appellants with the commission of murder of the deceased. He has further argued there are no material discrepancies in the evidence and the investigation was conducted honestly. He has admitted that the case is based only upon the identification of the appellants, in Court by the witnesses. He has supported the impugned judgment.
17. ' After examining the evidence available on the record we find that there are two eye-witnesses in the case viz. P.W.2 Molazim Hussain and P.W.5 Ahmed Ali. Their evidence show that on 18-7-1997 at about 2-15 p.m. The deceased was present in the office of K.E.S.C. When 7/8 boys came and forcibly taken away the deceased on pistol point. They did not name the appellants in their statements as they were not known to them. In this case no identification parade for identifying the appellants was held in presence of Magistrate through these witnesses but the witnesses straightaway picked out both the appellants in the Court to be the culprits who had taken away the deceased with them.
18. ' The second piece of evidence led by the prosecution is in the shape of pointing of place of incident by the appellant Asif. The place of incident was already known to everybody it cannot be termed to be discovery within the meaning of Article 40 of Qanun-e-Shahadat, therefore, it carries no weight. As regards the pointing of place of torture to the deceased, by the appellant Asif no evidence has been led on the point to show that any torture was made to the deceased before the commission of murder. The medical officer did not find any mark of torture over the body of the deceased except fire-arm injuries as such this piece of evidence also carries no weight.
19. ' Thus the present case is based upon the evidence of identification of the appellants in the dock of Court room by the P.Ws. Nos.2 and 5 without holding identification parade. It is to be seen whether such type of identification is sufficient to convict the appellants. In the present case the assailants were unknown to the complainant and their names were not mentioned in the F.I.R. Nor their features were shown in it. In such situation it is well-settled principle of law that after the arrest of culprits/assailants an identification of the culprits is essential through the P.Ws. In identification test before a Magistrate. Reference is invited Lal Pasand's case reported as Lal Pasand v. The State (PLD 1981 SC 143) the case of the State v. Farman Hussain and others (PLD 1995 SC page 1).
20. ' The identification parade is held so as to ascertain whether witnesses can identify culprits who were seen by them at the time of incident. One of the conditions for such test is that before the said test the witness had no occasion or opportunity to see the culprits. This condition is first and foremost so as to give strength to the identification test but such strength cannot be given to the identification of the culprits in the Court for the simple reason that the possibility of the seeing of the culprits in the Court before such identification cannot be ruled out. It is also pointed out that invariably there is delay in disposal of criminal cases for various reasons. Even if the witnesses are present on the dates of hearings, the cases are adjourned for numerous reasons, therefore, the sanctity which, is attached to the identification test, held in presence by Magistrate, in accordance with law and guidelines given by superior Courts in various judgments, cannot be attached to the identification test held in the Court.
21. ' This point is being agitated since long. In the year 1945 a similar question arose before the Honourable Federal Court in a case of Shadeo Gosain v. Emperor reported in 46 P Cr.LJ 1945. The facts of the case are that several persons participated in the commission of offence of rioting. The witnesses identified some of the rioters. Some of the persons, who were not identified, were also challaned alongwith the persons who were identified by the witnesses. During the recording of evidence witnesses identified the rioters whose identification test was not held in the Court to be the rioters. The trial Court convicted those persons. The conviction was maintained by the High Court and then the matter went to the Federal Court where the appellants were acquitted by holding that such identification of accused was of no value. It was observed by the Federal Court that where a witness had not named the accused in his evidence at the trial as a person already known to him who had participated in the riot, but had merely picked him out as one of the rioters while identifying those accused person in the dock whom he had already named in his evidence as participants in the riot, the evidence of the witness against the accused is of no value whatever. It was further observed that failure of the witness to mention the accused's name in his statement to the Magistrate robs his subsequent statement against such accused made at the trial nearly four months later of all value.
22. ' Similarly point was also raised before the Honourable Supreme Court of Pakistan in a case of Asghar Ali v. The State (1992 SCMR 2088). In that case an accused was not identified, therefore, not named in the F.I.R. After his arrest an identification test was held. At the trial, the trial Court discarded the identification test but relied upon the identification of the accused in the Court by the witness and convicted him. In such situation the Honourable Supreme Court of Pakistan did not approve such type of identification of the accused by the P.Ws. In the Court and observed at page 2097 as under:-- "The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving by identity of the culprits."
23. ' In another case of Tayyab v. The State reported in 1995 SCMR 412 similar view was taken and at page 414 it was observed as under:-- "As far as the statement of Muhammad Mossa is concerned he did not appear when the identification parade was arranged and was called for recording his statement at the trial. It was at the time of recording such evidence that he stated, pointing towards Tayyab, that he was the man who abducted him. Such evidence can hardly be relied upon as identification of the accused and corroboration to other evidence and made basis for conviction."
24. ' Thus, the identification of the appellants in Court by the P.Ws. Without holding identification test through the P.Ws. Is of no value, therefore, it cannot be made the basis for conviction.
25. ' As such the identification of the appellants in the Court carries no weight. There is no other evidence to connect the appellants with the commission of this crime, therefore, the prosecution have failed to prove their case against the appellants.
26. ' While going through the evidence, it has been observed with great concern that inadmissible evidence has been brought on the record in the shape of statement/admission of the accused person, hearsay evidence and pointing out place of incident by the appellant, which is already known to everybody which according to law is not required to be brought on the record, for the simple reason that it might affect or influence the mind of the Judge, in arriving at a right decision in the case.
27. ' It has been observed that the trial Court while recording the statements of two police officers viz. P.W.7, Inspector Abdul Latif and P.W.10 Inspector Mushtaq Ahmed recorded the statement/confession/ admission of appellant Asif Jameel and Waseem about the commission of this crime and other crime committed by them. This type of evidence is inadmissible in evidence under Article 38 of Qanun-e-Shahadat Order, 1984. As regards the pointing of place of incident of appellant, the same was already known to everybody, as such it cannot be termed as discovery as a consequence of information received from the appellant within the meaning of Article 40 of Qanun-e-Shahadat Order as such it is also inadmissible in evidence. As regards hearsay evidence it is pointed out that in the evidence of P.W.10, the statement/information given by S.H.O. Niazi to P.W.10 has been recorded, without examining the S.H.O. Niazi. Such type of evidence is coming within the ambit of hearsay evidence which is inadmissible.
28. ' It is further pointed out that in several other cases it has been found that the Judges while recording the statements of Police Officer/Lb., recorded the statement of witnesses 4/5/6/GPO given to the Investigating Officer during the investigation period, without realizing the fact that statements under section 161, Cr.P.C. Cannot be used by the prosecution for any purpose. It can be used by the defence for the purpose of corroboration or contradicting a witness. As such the statements of P. Ws. Given to the Investigating Officer during the course of investigation are not required to be recorded in the evidence through the Investigating Officer as it is inadmissible in evidence therefore, the same are not required to be tendered by the prosecution or recorded or brought on the record by Judges.
29. ' It is pointed out that at the time of recording of evidence heavy responsibility lies upon the prosecution and defence counsel to be alert so that inadmissible evidence should not come on the record. As soon such evidence is tendered by the prosecution or defence counsel, then the other party should immediately raise objection to the admissibility of such question/evidence and the Court should decide the same then and there and prevent it from coming on the record, if it is found to be inadmissible in evidence. If for any reason, the prosecution or defence does not raise such objection to the admissibility of evidence then it is the duty of the Judges to check such evidence, because the Judge has to play an active role while recording the evidence of witnesses.
30. The evidence should not be recorded in a mechnical manner. A distinction has to be made between admissible and inadmissible evidence and only admissible evidence shall be allowed to come on record. If any inadmissible evidence is brought on the record, then it will adversely reflect upon the conduct of the prosecutors and defence counsel on their alertness, ability and knowledge of law etc., while tendering such evidence. At the same time it also reflects adversely upon the conduct of the Court in which, such evidence is recorded, allowed or brought on the record. Not only that, but it will unnecessary burden the record, which is ultimately to be discarded, and wastage of energy and Court's time, which can be utilized to some other work.
31. ' In the above context few cases are quoted. It has been held in R. v. Pattamber. 7 W.R. 25 that the moment the witness commences giving hearsay evidence, the Court should stop him. It has further been held in Abbas v. R, C.W. No,484 that it is the duty of the Court to see that the evidence which is inadmissible should not be allowed to go into the prejudice of accused. It has further been held 7.
32. W.R. Cr. 2,-2 W.R. 252, 5 W.R. Cr. 28, 18 W.R. Cr. 16, 24 W.R.Cr. 77 and 10 W.R. Cr. 57 that a witness ought not be allowed to give hearsay evidence as it is impossible to remove its effects from the mind of the jury.
33. ' In some cases when a doubt arises about admissibility of evidence then in such situation the rule laid down in 40 C.W.N. 432 and AIR 1925 A. 405 is that while considering the question of admissibility of evidence, the Court should lean always in favor of the accused, and exclude all evidence tendered by the prosecution which is doubtful or of remote relevance.
34. ' The time for determining questions as to the admissibility of evidence is ordinarily the time when they arise, i,e,, when the evidence is offered, instead of admitting the evidence in the first instance and reserving the question of law as to its admissibility until the ends of the trial. Reference is invited to 16 I.A. 148, 2 C.M.N. 188, 13 C.L.J. 18, AIR 1925 V. 452, AIR 1940 N. 340 and P.L.R.
35. 1918. It has further been held in AIR 1950 M. 62 that a ruling, as to the admissibility must be very brief and there should be no interruption of trial once the ruling is given. If need be, further reasons may be given in the judgment. Therefore, all the concerned parties are advised to be careful, vigilant, alert while tendering, receiving and recording the evidence.
36. ' Above are the reasons of our short order dated 21-11-2002 which we had dismissed the above appeals and rejected the confirmation reference.