ASIF SAEED KHAN KHOSA, J.---Muhammad Yasin, Moazam Ali and Muhammad Aslam appellants were convicted for an offence under sections 394/34, P.P.C. Vide judgment dated 18-3-1999 handed down by the learned Judge, Special Court, Suppression of Terrorist Activities, Sheikhupura and were sentenced to rigorous imprisonment for ten years each and a fine of Rs,2,00,000 each or in default of payment thereof to under gorigorous imprisonment for two years each. Through the same judgment the learned trial Court had also convicted the appellants for an offence under section 302/34, P.P.C. And had sentenced them to death each and to pay a fine of Rs,2,00,000 each or in default of payment thereof to undergo rigorous imprisonment for two years each. The appellants have challenged their convictions and sentences before this Court through the present appeal.
2. The prosecution's case unfolded in the F.I.R. Was that Ghulam Murtaza Virk complainant was a resident of Sheikhupura city and was an Advocate by profession.' At about 8-00 p.m. On 10-2-1997 after taking meals at the Dera of one Chiragh Din he was returning to Sheikhupra. City in his car in the company of Kamran, Advocate, Aftab Haider, Advocate and Mian Ahmad Nadeem, Advocate.
When the complainant party reached near a brick-kiln one and a half furlongs short of Charianwala suddenly three unknown armed persons emerged on the road and came in front of the complainant's car. The complainant had described the said three persons in the F.I.R. And had maintained that the said persons could be identified if they were brought before the complainant party. One of the said three persons signalled the car to stop and then fired a burst from his Kalashnikov hitting the rear side of the complainant's car. One of the bullets fired by the said person hit Kamran, Advocate on his left thigh and made its exit from under his testicles. The complainant party, however, managed to escape from the spot by speeding up their car and thereafter Kamran, Advocate was got admitted to the District Headquarters Hospital, Sheikhupura by the complainant party in an injured condition. After obtaining a Medico-legal Certificate in respect of Kamran, Advocate the complainant submitted an application before Daulat Khan, A.S.-I.
(P.W.11) at 9-30 p.m. During the same night at the hospital seeking registration of an F.I.R. In respect of that incident as the said police officer had by then reached the hospital upon receiving an information regarding that occurrence. Formal F.I.R. No,77 was subsequently registered at Police Station Bhiki, District Sheikhupura at 10-50 p.m. On 10-2-1997 for an offence under section 394, P.P.C.
Kamran, Advocate subsequently died and section 302, P.P.C. Was added to that F.I.R.
3. Kamran deceased was medically examined while in an injured condition by Dr. Iftikhar Ahmad (P.W.1) at 9-20 p.m. On 10-2-1997 and after his death post-mortem examination of his dead body was conducted by the same doctor at 4-15 p.m. On 13-2-1997. This case was initially investigated by Daulat Khan, A.S-I. (P.W.11) and then by Nazir Ahmad, Inspector/S.H.O. (P.W.13). On 8-3-1997 the present appellants were arrested by Muhammad Mushtaq, S.-I. (P.W.10) in connection with some other case and at the time of their arrest different fire-arms were recovered from their possession.
On 17-3-1997 a test identification parade was conducted at the District Jail, Sheikhupura which was supervised by Mr.Muhammad Kazam Awan, Ilaqa Magistrate (P.W.12) and during the said parade Muhammad Yasin and Moazam Ali appellants were statedly correctly picked up by the complainant and the other two eye-witnesses. Muhammad Aslam appellant had, however, not been identified or picked up by the complainant and the eye-witnesses during that parade. After completion of the investigation a challan was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 394/34 and 302/34, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as thirteen witnesses in support of its case against the appellants. Ghulam Murtaza complainant (P.W.8) and Mimi Ahmad Nadeem (P.W.9) furnished the ocular account of the incident in question and they also stated about identification of two of the appellants by them during the test identification parade. Mr. Muhammad Kazam Awan, Ilaqa Magistrate (P.W.12) deposed about conducting and supervising the test identification parade held in this case. Abbas Ali (P.W.3) stated about the recoveries effected from the place of occurrence and Muhammad Mushtaq, S.-I. (P.W.10) deposed about the arrest of the appellants and recovery of weapons from their possession at the time of their arrest. The medical evidence was provided by Dr. Iftikhar Ahmad (P.W.1). Daulat Khan, A.S.-I. (P.W.11) and Nazir Ahmad, Inspector/S.H.O.
(P.W.13) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by prosecution and professed their innocence.
They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And also did not produce any witness in their defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeal before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. At the outset it has been pointed out by the learned counsel for the appellants that Muhammad Yasin appellant has already died in jail and this fact has been confirmed by the learned counsel for the State after obtaining the necessary information in this regard from the relevant jail. In respect of the remaining appellants it has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt as identity of the appellants as the actual culprits had not been conclusively established. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record it has straightaway been noticed by us that the occurrence in this case had taken place in the darkness of a night and the culprits perpetrating the alleged offences had remained unidentified at the spot.
The names of the present appellants did not figure in the F.I.R. At all and till their arrest on 8-3-1997 in connection with some other criminal case the appellants did not stand implicated in this case in any capacity. No motive was set up by the prosecution in this case. In the absence of any matching of the crime-empties recovered from the place of occurrence with the weapons allegedly recovered from the appellants no corroboration is forthcoming in this case even on this score. The complainant and the other eye-witness produced by the prosecution did not know the appellants previously and they had admittedly not identified the appellants at the time of the alleged occurrence. In this state of the evidence available in this case the prosecution, in order to establish its case against the appellants, had heavily relied upon correct picking up of Muhammad Yasin and Moazam Ali appellants by the eyewitnesses during a test identification parade and identification of the three appellants by the eye-witnesses before the learned trial Court. Thus, the fate of this case as also of the appellants hinged primarily on the question of identification.
10. As already observed above Muhammad Yasin appellant has already died in jail and this appeal has, therefore, abated to his extent. It is not disputed that Muhammad Aslam appellant was not identified by the complainant and the other eye-witness during the test identification parade held in this case and, therefore, the said piece of evidence is of no avail to the prosecution to the extent of Muhammad Aslam appellant. While assessing the worth and evidentiary value of the test identification parade to the extent of Moazam Ali appellant we have appreciated that admittedly it was dark at the time of the alleged incident and the eye-witnesses were travelling at that time in a car on a highway. The complainant had claimed to have seen the culprits in the light of that car from a distance of 200 to 250 yards whereas the other eye-witness had claimed to have seen them from a distance of 50 yards. The said witnesses had stated before the learned trial Court that upon seeing the culprits signaling their car to stop the speed of the car was accelerated and the complainant party had then sped away from the spot while receiving a volley of shots fired by one of the culprits from his kalashnikov. It is, therefore, conceivable that all that the eye-witnesses could have managed to cast at the culprits at that time would be just a fleeting glance while at the same time they would b trying to elude by crouching so as to save themselves from the assault in a state of shock, panic, fear and horror. Keeping in view the distances stated by the complainant and the other eye-witness from which they had claimed to have seen the culprits we are of the impression that it was wellnigh impossible for any person to have a very good look at the culprits in such a situation unless it is claimed by such a person that he possesses bionic eyes or a photographic vision. The complainant and the other eye-witnesses had surely not made any such claim before the learned trial Court. The test identification parade was held in this case after 35 days of the alleged occurrence and in normal circumstances it was not expected that the eye-witnesses could correctly identify the culprits after such a long period of their fleeting glance at the culprits during the occurrence. Apart from that the appellants had been arrested in this case on 8-3-1997 and the test identification parade had been held on 17-3-1997 i,e, after nine days of their arrest. It is available on the record that the appellants had protested before the supervising Magistrate at the time of holding of the said parade that they had :dread) been shown by the police to the eyewitnesses as well as to the general public. The proceedings of the said test identification parade (Exh.P.T.) show that Mian. Ahmad Nadeem ( P. W .9) had not picked up Moazam Ali appellant with reference to the role allegedly played by him during the alleged incident and this omission clearly denuded his identification of this appellant of all its evidentiary worth or value. As regards Ghulam Murtaza complainant (P.W.8) the worth of his identification of Moazam Ali appellant in that parade is substantially diminished by the fact that he had also picked up one Sharif, a dummy, as one of the culprits who had allegedly actively participated in the occurrence by firing at the complainant's car. This clearly established that it was unsafe to rely wholeheartedly upon the identification by this witness as he was also capable of picking up a wrong and an innocent person. It may be added here that in the F.I.R. This witness had alleged that only one out of the three culprits had fired at his car but during the trial and also during the test identification parade he had maintained that all the culprits had fired at his car during the occurrence. This showed that either with the passage of time his memory did not serve him well or he was a man who was capable of falsification and improvement of his version. In either of such cases it was unsafe to blindly rely upon such a witness and that too on a capital charge. Moreover the alleged identification of Moazarn Ali appellant by the complainant and the other eye-witness during the test identification parade is rendered further doubtful by the fact that according to the proceedings of that parade (Exh.P.T.) both these witnesses had made their statements before the supervising Magistrate but the interim order passed in this case by the learned trial Court on 10-2- 1998 shows that the said statements of these witnesses before the supervising Magistrate did not contain the signatures of these witnesses. A possibility, therefore, cannot be ruled out that the proceedings of the test identification parade in question could well be fake or fabricated. After all how can we ignore that the case in hand was one of a murder of an Advocate and the fact about the local legal fraternity being quite anxious and agitated 'over the same is writ large on the record of this case. It can be visualized that pressure upon the local police in connection with 'tracing out this case and apprehending the ,culprits must be enormous and the local administration must be cooperating with it so as to ease the prevailing tension amongst the populace in general and the legal fraternity in particular. We have also found it to be intriguing to notice that although a judicial inquiry was also conducted in this case but admittedly Ghulam Murtaza complainant had failed even to join that inquiry not to talk of making a statement before the Inquiry Officer. Why did the complainant not join the proceedings of that judicial inquiry is a question which has been left on the record of this case a begging an answer but, according to the learned counsel for the appellants, a reason for such omission could be that the complainant's conscience pricked him momentarily and at that stage he decided not to become a party to false implication of innocent persons in a case involving a sentence of death. We would not like to comment on this suggestion.
We may, however, observe here that although it has not been established on the record that the complainant or the other eye-witness produced before the learned trial Court in this case had any motive to falsely implicate Moazam Ali appellant yet the factors detailed above and available on the record of this case' have convinced us that it is extremely unsafe to rely upon the test identification parade in this case so as to uphold and main.An the said appellant's convictions and sentences recorded by the learned trial Court. It should go without saying that mere lack of interest of the eye-witnesses regarding false implication of this appellant does not by itself cure the above mentioned infirmities and improbabilities in respect of the test identification parade in issue.
11. The alleged identification of Moazam Ali and Muhammad Aslam appellants by the complainant and the other eye-witness before the learned trial Court during the trial may not detain us for long for the simple reason that these witnesses had made their statements before the learned trial Court as P.W.8 and P.W.9 respectively and before that as many as seven witnesses had already made their statements bore the learned trial Court and during all such occasions the said appellants were present in the Court-room. It can, thus, be conveniently visualized that the complainant and the other eyewitness had an ample opportunity to see the appellants on a number of occasions before making their own statements before the learned trial Court and identifying the appellants during the making of such statements. This incontrovertible fact denudes such identification of the appellants in the Court of much of its reliability or acceptability. Even otherwise identification of a culprit in the Court during a trial is generally accepted to be a weak type of identification and in the circumstances of the present case we are not ready to attribute strength to the same merely because the deceased or the eyewitnesses in this case belonged to the legal fraternity.
12. It has already been observed above that Muhammad Yasin appellant has already died and Muhammad Aslam appellant had not been identified by the complainant or the other eye-witness during the test identification parade held in this case. As regards Moazam Ali appellant he was not picked up by Mian Ahmad Nadeem (P.W.9) during the said parade with reference to the role allegedly played by this appellant during the alleged incident and,thus, identification of this appellant by that witness was not of much legal consequence. In these circumstances we are left mainly with Ghulam Munaza complainant (P.W.8) vis-a-vis identification of Moazam Ali appellant.
We have, however, felt strong reservations even about the claimed presence of the complainant at the scene of the crime at the relevant time inasmuch as the medical evidence available on the record of this case had given a lie to the version of the incident narrated by this witness. According to this witness and also according to the site-plan (Exh.P.H) of the place of occurrence prepared at the pointing out of this witness his car was fired at by the culprits from the right side at a time when Kamran deceased was sitting on the right rear seat of that car. If such assertion of this witness was correct then Kamran deceased ought to have received his injuries on the right side of his body but the medical evidence shows that the deceased had received the fire on his front and lower left thigh and that fire had made an exit from a place just below his testicles. Such injuries found on the dead body of the deceased clearly showed a different direction of the fire or a different location of the deceased inside the car than what was stated by this witness. The route or trajectory of the fire received and of the injury sustained by the deceased were simply not possible from the firing made from the place indicated by this witness. Apart from this, the complainant and the other eye- witnesses were admittedly chance witnesses who had failed to establish their stated reason for being with the deceased at the time of occurrence through any independent evidence and even the F.I.R. Had been lodged at the hospital where the concerned police officer had reached on his own after learning about the incident from an undisclosed source. In this view of the matter when the presence of the complainant and the other eye-witness at the scene of the crime at the relevant time had itself not been established beyond doubt then identification of the culprit by these witnesses had nothing much to commend itself. Even for these reasons we have found it to be unsafe to uphold or maintain the convictions and sentences "of Moazam Ali appellant.
13. For what has been discussed above -a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal has already abated qua Muhammad Yasin appellant on account of his death and the same is, therefore, dismissed on that score to his extent but this appeal is allowed to the extent of Moazam Ali and Muhammad Aslam appellants, their convictions and sentences recorded by the learned trial Court are set aside and they are acquitted of the charge. They shall be released from the jail forthwith if not required to be detained in connection with any other criminal case.