RAHMAT HUSSAIN JAFFERI, J.---Through this judgment we propose to decide Special Anti- Terrorism Appeal No,100 of 1999 and Confirmation Case No,35 of 1999 as they.arise out of a single judgment.
2. The present Appeal has been directed against the judgment, dated 24-7-1999, passed by Anti- Terrorism Court No,II, Karachi, in Special Case No,163 of 1999 (The State v. Ghufran Ullah and another) under sections 302/324/109, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 (hereinafter referred to as the Act, 1997), by which the learned Judge had convicted the appellants Ghufranullah, and Mehmood Ali alias Commando in the following manner:-
(a) Sentenced to death for offence punishable under section 7(i)(0 of the Act.
(b) Sentenced to death for offence punishable under section 302(b), P.P.C. for the murder of deceased Constable Mehboob Ali.
(c) Sentenced to undergo R.I. for three years as Tazir for offence punishable under section 337-F(iii), P.P.C.
(d) Directed them to pay Rs,100,000 each as compensation to the legal heirs of the deceased and also to pay compensation of Rs, 10,000 each to the injured Muhammad Arif for the injury sustained by him, under section 544-A, Cr.P.C. In default thereof to undergo R.I. for six months more.
3. The facts giving rise to the present appeal are that on 11-7-1998 the complainant (Aftab Sagheer) was present in his house when he received a telephone call from his niece that few persons had caused fire-arm injuries to his brother Mehbood Ali at his House No,97/10, Sector 5/F, New Karachi.
On receiving such information the complainant went to the house of his brother but he was not available. The wife of his brother informed him that at about 9-45 p.m. the deceased Mahboob Ali, who was a police constable, was present at Chabotra near his house alongwith Muhammad Arif alias Nomi with other boys when four persons on two motorcycles came, out of them two were wearing helmets and that they were armed with pistols. She further informed the complainant that the culprits asked the said persons to stand up and to run on which the deceased and other persons started running. Then the culprits fired at the deceased Mahboob Ali, who after receiving injuries, fell down on the ground and then the culprits ran away and that the deceased Mahboob Ali in injured condition was taken to Abbasi Shaheed Hospital. After hearing the above facts the complainant' went to the said hospital where he found his brother lying dead. The police were present there, therefore, his statement was recorded on a plain paper which was sent to Police Station New Karachi for incorporating it in 154, Cr.P.C. book which was done on 12-7-1998 at about 12-30 a.m.
4. The police started the investigation, recorded the statements of witnesses, gave letter to the Medical Officer for conducting post-mortem examination. In the said incident P.W. Muhammad Arif also received injuries, who was also examined by Medical Officer, On 20-9-1998 at about 9-00 a.m. the appellant Ghufran Ullah, was arrested alongwith another person and arms and ammunitions were secured from them. On 28-9-1998 the appellant Ghufranullah was produced before the Magistrate for recording his judicial confession where his confession was recorded. After completing the investigation the appellants were challaned in the Court of law.
5. On 19-7-1999 a charge under section 7(i)(a) of the Act, 1997, under sections 302(b)/324/109, P.P.C. was framed against the appellants but they pleaded not guilty.
6. In support of the case the prosecution examined P.W.1. S.I.P. Wali Ilyas Khan. He recorded the 154, Cr.P.C. statement of the complainant, P.W.2 S.I.P. Sajjad Ali of C.I.A. Police Station, P.W.3 Muhammad Azeem (Judicial Magistrate), P.W.4 Dr. Syed Sajjad Ali (conducted postmortem), P.W.5 Inspector Mashkoor Ali Khan (I.O.), P.W.6 Aftab Qaiser (complainant), P.W.7 Muhammad Arif (eye-witness and injured) P.W.8 Muhammad Zahid (eye-witness), P.W.9, Dr. Muhammad Tariq (examined the injured Muhammad Asit) and P.W.10 Inspector Rahim Khan (I.O.).
7. The appellants in their statements recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. The appellant Ghufranullah in his further statement stated as under:-- "On 17-9-1998 I was coming back from Malir No,15 by dropping my sister's daughter early in the morning, who had to go alongwith her friends on picnic. I was returning from there, when two A.S.- Is. were standing at a Chowk near bus stop. They were drunk. They were searching the persons. It was 6-30 a.m. when I arrived there and my search was also conducted. They then demanded money from me which I could not pay, hence they took me to the Police Station Malir City, where they maltreated me. My brother came there in my search, they also abused him and maltreated him. They once again demanded money from us which we did not pay, hence they implicated me in the Arms case on 20-9-1998 by registering F.I.R. They took up my photographs and called people of the press, i,e, the correspondence of the press reporters of various newspapers and told me to keep quiet else I would be killed. I was then confined in a room other than police lock-up. My eyes were tied with cloth. I was then taken by some policemen to Police Station New Karachi, they kept me confined. My eyes were tied. On the following day I was taken to a Magistrate. I was informed by the prisoners who were brought in the Court that my brother was also detained at the Police Station Malir City. When I went inside the Chamber of Magistrate, one other Civil Judge entered in the Chamber. I complained to the Magistrate that I was severely beaten by the police. I had told the Magistrate that I was not involved in any crime, yet he obtained my signature on a paper which was written. I was then sent to jail and that Civil Judge came out from the Court after my signature was obtained on paper. I came to know later on that my other brother Ashraf was also misbehaved when he had come in my search."
8. The appellant Mehmood Ali in his further statement stated as .under:-- "On 14-7-1998 I was apprehended by police at the Police Station New Karachi, one F.I.R. was lodged against me alleging police encounter and recovery of arms and ammunition from me. While I was being sent up the police had demanded Rs,50,000 from me and they had told me that in case I failed to pay the amount I would be involved in other cases as well. I could not pay the amount.
They took my remand for several times and involved me in a case of snatching of purse and motorcycle and in this case, which I came to know after one year."
9. The appellants examined themselves on oath. Their statements are on same lines as that of their statements under section 342, Cr.F.C. but they did not lead any evidence in their defence.
10. After considering the material available on record the learned Trial Judge convicted the appellants as mentioned above. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeal. As the trial Court. Had awarded death sentence, therefore, the reference has been sent for the confirmation of said sentence.
11. The learned Advocate for the appellants has argued that there are only two eye-witnesses in the case, viz. P.W. Muhammad Arif and P.W. Muhammad Zahid but no identification test was held through them for identifying the present appellants as the appellants were unknown to the witnesses. He has further argued that the identification of the appellants in Court after one year of the incident is of no value without holding identification test:He has relied upon the case of Farman Ali v. The State (PLD 1995 SC 1). He has further argued that second piece of evidence led by the prosecution against the appellant Ghufran Ullah is judicial confession but the said judicial confession was not relied upon by the trial Court because of the evidence of Judicial Magistrate, who deposed that the confession was neither voluntary nor true. He has further argued that the judicial confession is a self-explanatory confession which has no evidentiary value, therefore, the prosecution has failed to prove any case against the appellants.
12. On the other hand, the learned A.A.-G. has stated that no doubt the names of the appellants are not shown in the F.I.R. as they were unknown to the witnesses but they have identified the appellants in the Court when their statements were being recorded, therefore, that identification is sufficient to convict the appellants. He has further stated that the judicial confession of appellant Ghufranullah is a self-explanatory confession which has not been relied upon by the trial Court because of the above mentioned statement of the Magistrate, therefore, he has also not relied upon the confession. He has further stated that there is no other evidence 'available on the record to connect the appellants with commission of this crime except their identification in the Court by the P.Ws.
13. From the above position it is clear that the' entire case is based upon the identification of the appellants in the Court by the P.Ws without holding identification test.
14. We have minutely gone through the evidence available on the record, particularly the statement of eye-witnesses viz. P.W. Muhammad Arif and P.W. Muhammad Zahid. Out of them P.W.
Muhammad Arif was an injured witness, who had received injury at the time of incident. His evidence to the extent of injuries is corroborated by Dr. Muhammad Tariq, who examined the injured. It is pointed out that the names of the appellants are not mentioned in the F.I.R. because the assailants were unknown to the witnesses. "The incident took place during night time at about 9-45 p.m. P.W. Muhammad Arif stated that all the four assailants, were seen by him for the first time as they were not known to him prior to that incident. He further stated that there was light coming from a house but it was a dim light. P.W. Muhammad Zahid also deposed that four assailants were not known to him previously. Thus, the assailants were not known to the witnesses and there was very dim light at the time of incident, therefore, in such situation and particularly in the facts of the present case when the P.Ws were under fear of threat of four assailants armed with deadly weapons then it is not expected that they would have been able to see the faces of the culprits clearly and would have remembered the same for a long period of twelve months, In the situation like this when the four assailants were unknown to the witnesses then it was incumbent upon the police to have arranged for identification test so as to identify the culprits in the said test but the prosecution did not do so. They gave the explanation by alleging that the witnesses were shifted from the place of their residence due to fear, therefore, identification test was not held. Be that as it may, the fact remains that no identification test was held in this case but the appellants were identified in the Court after one year of the incident. As there was no sufficient light at the scene of the incident to see the faces of the culprits clearly, therefore, in such situation the identification of the appellants in Court after one year of the incident is highly doubtful.
15. Furthermore, the identification parade is held so as to ascertain whether the witnesses can identify the culprits who were seen by them at the time of incident. One of the condition 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/sanctity to the identification test but such strength/sanctity cannot be given to the identification of the culprits in Court for the simple reason that the possibility of the seeing 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. If the witnesses are present on the dates of hearings, even then 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.
16. This point is being agitated' since long. In the year 1945 a similar question arose before the Hon'ble Federal Court in a case of Sandeo Gosain v. Emperor reported in 46 Cr.LJ 1945. The facts of the case were 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 in the Court to face trial alongwith the persons who were identified by the witnesses.
During the recording of evidence witnesses identified the unknown 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. It was observed by the Federal Court 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 persons 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 has further been 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".
17. Similar point was also raised before the Hon'ble Supreme Court of Pakistan in a case of Asghar Ali v. State 1992 SCM R 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 the accused. In such situation the Hon'ble Supreme Court of Pakistan did not approve such type of identification of the accused by 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 culprit."
18. In another case of Tayyab v. State reported in 1995 SCM R 412 similar view was taken and at page 414 it has been 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. "
19. Thus, the identification of the appellants in Court through the P.Ws. is of no value, therefore, cannot be made the basis for conviction.
20. After giving due consideration to the facts, evidence and circumstances of the case we are of the considered view that the prosecution have failed to prove the case against the appellants beyond any reasonable doubt, therefore, the appellants are acquitted.
21. Consequently, the impugned judgment is set aside. The appeal is allowed. The confirmation case is dismissed.
22. Above are the reasons of our short order, dated 13-11-2002, by which we had allowed the Appeal.