1. ' BASHIR A. MUJAHID, J.--- Muhammad Usman son of Muhammad Ishaque and Zaheer Ahmad alias Kaka son of Zaheer Ahmad have challenged judgment dated 4-3-2002 passed by Judge, Special Court, under Anti-Terrorism Act, 1997, Rawalpindi, whereby Muhammad Usman appellant was convicted under section 302, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 and sentenced to death and to pay compensation of Rs,100,000 to the legal heirs of the deceased, in default thereof to undergo six months' Si. He was further convicted under section 353, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 and sentenced to two years' R.I. With a fine of Rs,5000, in default thereof to further undergo six months' S.I., while Zaheer Ahmad alias Kaka was convicted under section 353, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 and sentenced to two years' R.I. With a fine of Rs,5000, in default thereof to undergo six months' SA.
2. ' Briefly the facts of the prosecution case are that F.I.R. No,356 (Exh.P.G./1), dated 31-7-2000 was registered at Police Station Gunj Mandi, Rawalpindi on 31-3-2000 at 10-45 p.m. On the basis of statement Exh. P.G. Of Muhammad Aslam P.W.4 recorded by Imtiaz Ali, S.-I. At 10-30 p.m., wherein it was stated that on 31-7-2000 the complainant alongwith Amjad Nawaz/F.C. In uniform and Faizul Hassan, A.S.-I. C.I.A. Rawalpindi were present on patrol duty and search of narcotics/illicit arms at Gandam Mandi Mosque, Gunj Mandi Road, under the orders of S.P. C.I.A., when a spy information was received that two persons were going to Gorgali Narang Bazar after crossing Gunj Mandi Road had liquor and illicit arms. On pointation of the informer the police party chased the accused and tried to apprehend them opposite to Fayyaz Tea Store where the electricity light was available.
3. They who were of young age wearing Shalwar and Qameez and were directed to stop but they threatened the police party not to come near to them. One of them took out dagger from his loin cloth and asked his co-accused who was heavy built, short height, with beard, to fire at the police party. He fired from his pistol .30 bore out of which one bullet hit Faizul Hassan Shah, A.S.-I. On his abdomen who fell on the ground and both the accused fled away. In this process one bottle containing liquor fell on the ground from loin cloth of accused who was of slim body and was broken. Faizul Hassan Shah, A.S.-I. Was removed to civil hospital where he succumbed to the injuries.
4. ' Imtiaz Ali, S.-I. P.W.13 after receiving information about the occurrence on 31-7-2000 arrived at the Civil Hospital, Rawalpindi where he recorded the statement Exh.P.G. Of Muhammad Aslam, P.W.4 and sent the same for registration of formal F.I.R. Through Mehmood Ahmed, F.C. He took the dead body of Faizul Hassan into possession and prepared the injury statement through memo. Exh. P.L.
5. And inquest report Exh.P.N. And handed over to Muhammad Iqbal, F.C. For postmortem examination and he himself arrived at the place of occurrence and took the blood through cotton piece from the spot vide memo. Exh.P.F. And also took two empty cartridges P.4/1-2 of pistol .30 bore through memo. Exh.P.E. He also took into possession pieces of broken bottle of liquor through memo. Exh.P.D.
6. On 1-8-2000 last worn clothes of the deceased were taken into possession by him which were through memo. Exh.P.H. Produced before him by Munawar Iqbal, H.C. Who also attested the recovery memo. On 7-8-2000, he got prepared the site plan through Muhammad Akram, Draftsman/P.W.7. The investigation was taken over by Muhammad Saqlain, Inspector P.W.16, who on 1-8-2000 received a spy information about Muhammad Usman and Zaheer Ahmad about their involvement in the instant case, as they had come to buy liquor from Christian Colony on the day of occurrence and were going back when this occurrence took place. On 3-8-2000, he arrested Zaheer Ahmad accused in this case and on his personal search Rs,925 were recovered which were taken into possession through memo. Exh.P.C., On 4-8-2000, he was sent in judicial lock-up for identification parade. On 5-8-2000, the identification parade was held under the supervision of Khalid Yamin, M.I.C./P.W.15 wherein he was identified by the prosecution witnesses. On 9-8-2000, physical remand of Zaheer Ahmed accused was obtained who while in police custody on 12-8- 2000 led to the recovery of dagger P.10 which was taken into possession through memo. Exh. P.1 which was attested by Imtiaz Ahmad, S.-I. Alongwith the present Investigating Officer. On 26-8- 2000, he arrested Muhammad Usman, accused and on his personal search one key P.3 was taken into possession through memo. Exh.P.B. Which was attested by Muhammad Arif and Muhammad Ishaque, F.Cs. Investigation of the case was again entrusted to Imtiaz Ali, S.-I. P.W.13, who arranged for identification parade of Muhammad Usman accused which was held on 31-8-2000 under the supervision of Maqbool Ahmad, M.I.C. P.W.14 wherein Muhammad Aslam, P.W.4 and Amjad Nawaz P.W.5 identified him. On 4-9-2000 his physical remand was obtained. On 7-9-2000 he while in police custody led to the recovery of pistol P.1 alongwith three live cartridges P.2/1-3 which were taken into possession through memo. Exh.P.A. He completed the investigation and submitted the challan. The trial Court framed the charge which was denied by the accused and they claimed trial.
7. ' During the trial the prosecution examined as many as 16 witnesses to prove the guilt of the accused.
8. ' The medical evidence was furnished by Dr. Zain-ul-Abidin, P.W.9, who on 1-8-2000 at 7 a.m.
9. Conducted the post-mortem examination on the dead body of Faizul Hassan Shah, A.S.-I. And found the following injury on his person:- "A lacerated wound of entry of fire-arm with inverted margins measuring 1.25 c.m. x 1 c.m., oval shaped present on front of abdomen, 10 c.m. Supero lateral to umbilicus, slightly towards right side of midline."
10. ' The ocular account was furnished by Muhammad Aslam, P.W.4 who was complainant of the case.
11. He supported the version of his statement Exh.P.G. And narrated the prosecution story that on 31-7- 2000 he alongwith Faizul Hassan Shah, A.S.-I. And Amjad Nawaz, F.C. Were present at the spot in order to apprehend to accused and the police party was fired at and fatal shot made by Muhammad Usman hit Faizal Hassan, A.S.-I. At his abdomen. He also attested the recovery memo.
12. Of the articles taken into possession from the spot. Amjad Nawaz, F.C. P.W.5 was also an eye- witness of the occurrence who stated that he was member of the police party when received spy information about two persons having illicit arms and liquor were going to Gorgali. They were stopped, on which, one of the accused Muhammad Usman fired at Faizul Hassan, A.S.-I. Hitting at his abdomen, who subsequently succumbed to the injury. He also attested the recovery memos.
13. Exh.P.D. And Exh.P.E. Muhammad Aamer, A.S.-I. Was examined as P.W.1, who had attested the recovery memo. Exh.P.A. Whereby Muhammad Usman accused led to the recovery of pistol .30 bore P.1. Muhammad Arif, F.C. P.W.2 attested the recovery memo. Exh.P.B. Whereby key P.3 was taken into possession by the Investigating Officer from the pocket of Muhammad Usman. Altaf Hussain, F.C. P.W.7 attested the recovery memo. Exh.P.C. Whereby at the time of arrest of Zaheer Ahmad, Rs,925 were taken into possession by the Investigating Officer from his personal search.
14. Muhammad Iqbal, H.C. P.W.6 had escorted the dead body of Faizul Hassan, A.S.-I. For post-mortem examination. Muhammad Akram, Draftsman P.W.7 had prepared the site plan. Muhammad Asghar, A.S.-I. P.W.8 had attested the recovery memo. Exh. P.J. Whereby Zaheer Ahmad accused got recovered dagger P.10. Abdur Rashid, F.C. P.W.10 had delivered the sealed parcels containing bloodstained cotton and empty cartridges to the office of Chemical Examiner and F.S.L. On 13-9- 2000. Akhtar Muhammad, H.C. P.W.11 had kept the sealed parcels in safe custody in police Malkhana. Bahadur Khan, S.-I./P.W.12 had recorded the formal F.I.R. Exh. P.G.1. Imtiaz Ali, S.-L/P.W.13 and Muhammad Saqlain, Inspector P.W.16 had conducted the investigation as mentioned above.
15. Maqbool Ahmad, M.I.C. P.W.14 on 31-8-2000 had supervised the identification parade of Muhammad Usman accused in Central Jail, Rawalpindi. Likewise, ' Khalid Yameen, M.I.C./P.W.15 on 5-8-2000 had supervised the identification parade of Zaheer Ahmad accused in Adyala Jail, Rawalpindi.
16. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.
17. P.Q. And that of Forensic Science Laboratory Exh. P.R.
18. ' The statements of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. In reply to question No,13 as to why the case against him, Muhammad Usman appellant replied as under:- "I have been made a escape goat in the case on the basis of my previous involvement in petty criminal matters. Allegedly a police officer was assassinated in the alleged occurrence and on account of pressure of the higher police officers/administration, I have falsely been implicated in the case."
19. ' The trial culminated into conviction of , the appellants as mentioned above. Muhammad Usman has challenged his conviction and sentence through Criminal Appeal No,104-T of 2002 and Zaheer Ahmad alias Kaka has filed Criminal Appeal No,92-T of 2002 against his conviction and sentence while the trial Court has sent up Murder Reference No,26-T of 2002 for confirmation of death sentence of Muhammad Usman accused. All the matters are outcome of the same judgment, therefore, are being decided by this single judgment.
20. ' Learned counsel for the appellants has argued that it was a dark night occurrence and availability of electric bulb at the spot has not been established by the prosecution; that the place of occurrence was not visible from the place wherefrom the prosecution witnesses witnessed the occurrence; that identification parade held was not proper and was doubtful, that the recoveries are fake and planted; that the medical evidence is in contradiction of the ocular account, therefore, the prosecution has failed to prove its case against the appellants and they are entitled for acquittal.
21. ' Conversely, the appeals have been opposed by learned counsel for the State who has supported the impugned judgment.
22. ' Heard. Record perused.
23. ' It is correct that the occurrence took place in the dark night. The prosecution case is that an electric bulb was lit but according to the site plan prepared by Muhammad Akram, Draftsman/P.W.7, the availability of the electric bulb has not been shown in the site plan.
24. Muhammad Akram, Draftsman/P.W.7 had admitted in his cross-examination that he had not cited the electric bulb as the same was not pointed out by the prosecution witnesses, therefore, in absence of the availability of the electric bulb at the spot, it was not possible to identify the accused. It has also been admitted by the complainant Muhammad Aslam, P.W.4 and Amjad Nawaz, P.W.5 that Faizul Hassan Shah, A.S.-I. Deceased was not in police uniform at the place of occurrence. The Investigating Officer failed to show from record that Faizul Hassan, A.S.-I. Had gone to perform his official duty at the relevant time. Although it has been stated by Muhammad Aslam, P.W.4 that he had left C.I.A. Staff at 8 p.m. After making entries about the departure but no such record was produced before we trial Court. The complainant Muhammad Aslam, P.W.4 also admitted in his cross-examination that Gorgali is not visible while standing in Gunj Mandi wherefrom the eye-witnesses saw tne occurrence. He also admitted that at the time neither sun nor moon was visible on the sky. It was admittedly by Muhammad Aslam, P.W.4 that it was raining on 31-7-2000 after the occurrence took place then taking into possession the blood through cotton from the spot was not possible. It is also admitted fact that the occurrence took place in open public place but none of the public witness was cited or examined by the prosecution which creates serious doubt about the occurrence, had not taken place as has been alleged by the prosecution.
25. ' Regarding identification, no features/particulars of the accused were given by the complainant Muhammad Aslam, P.W.4 or Amjad Nawaz, P.W.5 except the body structure of the accused then how they were identified by both the witnesses during the identification. They were also not identified by the role played and according to the law declared by the Honourable Supreme Court reported as 1988 SCM R 557 titled Ghulam Rasool v. State that role of the accused not described by the witnesses at the identification parade is inherent defect and such parade lost its value and cannot be relied upon. Likewise, in case PLD 1996 SC 97 titled Yaqub Khan v. State it was held that the witnesses is not precluded from giving evidence in Court about the role of the accused. In PLD 1995 SC 1 titled Mehmood Ahmad and others v. The State and 1995 SCM R 127 that where no role attributed to the person in the occurrence by a witness in the identification parade, such C identification parade suffers from illegality and infirmity rendering it completely unreliable, having no evidentiary value. It has been further laid down in 1985 SCM R 721 titled Khadim Hussain v. The State that mere fact that a witness is able to pick out an accused from a crowd does not prove that he has identified that accused as having taken part in the commission of the crime. In the instant case the accused were already arrested in some other case and both the eye-witnesses Muhammad Aslam P.W.4 and Amjad Nawaz, P.W.5 were the police employees, therefore, the possibility cannot be ruled out that they had seen the accused before the identification parade and in such circumstances the identification parade cannot be relied upon to maintain the conviction of the accused when objection was also raised by the accused/appellants at the time of identification parade that before that they were shown to the witnesses.
26. ' As far as the recovery of weapons of offence is concerned, pistol was recovered from a house of Muhammad Usman appellant of which the key was already with the Investigating Officer and the house was also opened by him and no public witness from the locality was associated in the recovery proceedings and section 103, Cr.P.C. Has been violated and the same cannot be relied upon.
27. ' In view of what has been stated above, we find that the prosecution has failed to establish its case against the appellants beyond any shadow of doubt and by extending of doubt, both the appellants Muhammad Usman and Zaheer Ahmad are acquitted. Their conviction and sentence is set aside. The death sentence of Muhammad Usman is not confirmed. They are directed to be released from jail forthwith if are not required to be detained in any other case.
28. ' Murder reference is answered in the negative.