' Muhammad Ramzan alias Phanna and Muhammad Abbas were tried under section 302 read with section 34, P.P.C. In case F.I.R. No,398 of 2000 registered with Police Station Kahna, District Lahore on the allegation that they on 24-9-2002 at 11-00 a.m. In furtherance of their common intention had committed the Qatl-e-Amd of deceased Muhammad Pervaiz at Kacha Shahzada Road, Kahna, District Lahore.
2. On the conclusion of trial, they vide the judgment, dated 21-3-2002 recorded by Ch. Muhammad Siddique learned Additional Sessions Judge, Lahore, were convicted under section 302(b) read with 34, P.P.C. For the same and sentenced to suffer imprisonment for life as Ta'zir each and to pay Rs,50,000 each as compensation to the legal heirs of the deceased and in default thereof to suffer further six months' S.I. Each. They were extended the benefit of section 382-B, Cr.P.C.
3. They both feeling themselves dissatisfied with the impugned judgment of their conviction and sentence have assailed the same by way of their above mentioned two separate respective appeals.
4. The petitioner/complainant Muhammad Ishaq has brought Criminal Revision No,462 of 2002 for enhancement in their sentence to death from the imprisonment for life.
5. As all these three matters have arisen out of one and the same judgment and under common set of facts, hence, are being disposed of by this single judgment.
6. The facts in detail have been incorporated in the impugned judgment. I, therefore, avoid to burden this judgment unnecessarily by repeating those here.
7. However, the precise facts relevant for the disposal of these matters are that the prosecution at their trial has relied upon it's different pieces of evidence. However, these are slightly different to each other in the case of each individual appellant.
8. As regards the appellant Muhammad Ramzan alias Phanna, the prosecution has rested upon it's last-seen evidence and his picking in the identification parade. I, firstly deal with the same.
9. As regards the prosecution's last-seen evidence against him, the same in fact was not in a direct way as the version of the prosecution witnesses in this regard is that an unknown boy of weatish colour and medium size and stout body of the approximate age of 25 years came at the shop of the deceased on motorcycle and he talked to him in seclusion and thereafter the deceased who was running a dispensary took his B.P. Apparatus, stethoscope and some medicines and went with him on motorcycle and after one hour of the same it was learnt by them that he has been done to death at Kacha Shahzada Road.
10. Muhammad Mushtaq (P.W.6) and Muhammad Ishaque (P.W.7) have furnished evidence on this aspect of the prosecution case. They both are real brothers. The deceased was son of Muhammad Ishaque. The A careful scanning of their evidence has revealed very clearly that they did not know the person, who took the deceased with him from his dispensary/shop.
11. According to them, on 13-3-2001 they had identified the appellant Muhammad Ramzan alias Phanna in the identification parade held in Central Jail Kot Lakhpat, Lahore.
12. The incident as is obvious from the above position had taken place on 24-9-2000. The identification parade, as per their showing had been held on 13-3-2001. It, thus was about six months after the same.
13. Muhammad Tariq Qureshi (P.W.14) has supervised the identification test. According to him, the appellant was picked up by the witnesses in the parade in his presence. He has proved his report Exh.P.K./A in this respect. In the cross-examination, he has stated that he cannot tell the exact age of the accused at the time of the parade and he also did not remember his exact colour, height and feature as according to him till then eight months had elapsed in the identification parade.
However, this thing is not such to be given much weight as till then the above said period had expired. He might have supervised such other parades as well during this period and he was not expected to remember the features etc. Of each accused in such parades. So, his having not stated the feature and height etc. Of the appellant when asked as no much adverse effect on the question of reliability of his evidence. However, one thing is very significant in his cross-examination and that is he has admitted that the appellant at the time of parade had raised objection that he was shown to the witnesses by the police prior to the same and he has recorded his such objection in the proceedings of the parade.
14. Even this too is not to be given much importance in the receiving of the evidence of identification parade against him but the whole proceedings of the identification parade appear to have not been conducted in accordance with law.
15. In the case of Kirir v. The State PLD 1996 Kar. 246, the learned Division Bench has observed that precaution and necessary steps are to be taken before identification parade. In this regard the relevant para. Of the judgment recorded in the same is important to be referred here for facility of reference. The same is as follows:-- "Now there remains only the evidence of identification test which took place on 19-6-1991 under the supervision of T.C.M. And Assistant Mukhtiarkar Allah Bux. The mechanism of identification proceedings are well-known and does not require repetition. Reference in this regard may be made to rules 26.7, 26.32 and also rule 27.25 (Vol. III) of the Police Rules, 1934. However, in order to ensure that the proceedings are properly conducted and are entirely above suspicion it is essential that the rules and the principle governing the holding of identification test parade should be strictly followed. So far as the identification of persons is concerned, it is a very weak type of evidence the value of which is easily destroyed if there is any suspicion that the conduct of the investigation agency was not absolutely above board. Therefore, precautions are necessary to conceal the identity of the accused while he is being removed from one place to the other and it is also the duty of the police that all necessary steps should be taken to ensure that the accused, should not be seen by the witnesses before the identification test parade. The Police Officer who arrests the accused should get his face covered and take him to the police station in that State. In the police station the lock-up in which such an accused is kept should be covered with a curtain so that no one is able to see his face. When he is taken to Court or to jail his face should be kept covered. In jail also no outsider should be allowed to see his face. All these prosecutions should not only take but should be proved to have been taken. That these precautions were taken should be recorded in official records like the general diary of the police station and the Jail Register and the same should be produced in Court. In the absence of such evidence, no value can be attached to the identification of one accused person made by a witness. In other words, it is the duty of prosecution to establish during the trial that every necessary precaution was taken to ensure fair identification."
16. There is nothing in the evidence of the Magistrate that he had taken such precautions before the identification test of the appellant.
17. I have gone through the document Exh.P.K./A. There is no such thing in the same to say that such precautions were taken before the identification test of the appellant.
18. The prosecution, therefore, has failed to establish that fair identification of the appellant was held. In such situation, the objection of the appellant that he was shown to the witnesses by the police before the identification test becomes of significance. This when seen with the above defect in the parade, then it cannot be ignored.
19. In view of this position, I have not the least hesitation in saying that the evidence of identification test could not validly be used against C the appellant as the same carried no value in the eyes of law. The same, therefore, is liable to be discarded.
20. The same, if is discarded, then there remains no incriminatory evidence at all against the appellant (Muhammad Ramzan alias Phanna). His involvement, therefore, in the matter of Qatl-e- Amd of the deceased had remained not proved beyond any shadow of reasonable doubt.
21. As regards the appellant Muhammad Abbas, the prosecution has mainly relied upon the evidence of extra judicial confession, the recovery of crime weapon .30 bore pistol P.1 and motorcycle P.2.
22. The evidence of extra-judicial confession has been furnished by Haji Ijaz-ul-Haq (P.W.11) and Tariq Mehmood (P,W.12). According to them, appellant (Muhammad Abbas) on 23-2-2001 at about 6-30 p.m. Had confessed that he and Muhammad Ramzan alias Phanna about five months prior to the same had murdered the deceased by firing at him at Katcha Shahzada Road. He also told them that due to the same he was up set and could not sleep. According to Ijaz-ul-Haq, he has said to him that the complainant is under his influence and he should get him pardon from him.
However, according to him, the complainant had not agreed to enter into compromise with him.
23. Anyway, it is clear from the above that the alleged extra-judicial ID confession of the appellant was with the delay of about five months from the incident.
24. This is in the evidence of Muhammad Mushtaq that love letters of some girls were recovered from the shop of the deceased. Muhammad Sharif (C.W.1) has also mentioned in his evidence that love letters of different girls were brought before him by the accused party during the investigation.
Rafique Sabir, S.-I. (P.W.13) has also admitted that Beenish and some other girls were joined in the investigation. This perhaps was due to the suspicion of their involvement in the murder of the deceased. He has also admitted to have received some similar type of letters in the investigation.
25. He has also admitted that the deceased had contacts with the ladies although it according to him was in connection with his business. However, leaving aside the question of truth or otherwise in the liaison or connection of the deceased with the ladies but one thing is quite clear from this admitted position in the evidence that some ladies were also interrogated in the matter of the murder of the deceased and perhaps on the basis of suspicion of their involvement in the same.
This also heavily suggests that the police when could not get clue of real culprit, it then has created such type of evidence. So, the delay in the alleged extra-judicial confession of the appellant makes the matter doubtful.
26. Even otherwise, it has appeared from their evidence that these two witnesses were having no such position either to get any benefit to the appellant of his confession from the complainant or the police. They were neither related to the complainant nor had any influence over ,theI police to let him off from the case. Here one can very easily say that if they were not related to the complainant, then they could not have deposed falsely against the appellant. This is true that they did not have relation with the complainant but mere absence of any relationship of a witness with the party or his being not inimical towards the accused is not necessarily always can make him a truthful witness. However, this is certain that they were not having any authority to prevail upon the complainant party and the police. There, thus, could not be any question with him to-have made confession of their guilt before them. So, the story of his having made confession before them is absolutely not convincing.
27. Even otherwise, such type of evidence has always been considered to be of weak type. The superior Courts have always laid emphasis on need for corroboration to such type of evidence. It shall be seen ahead that if there had forthcome any corroboration to the same.
28. The medical evidence in the instant case is not of the type that it could be used for support to the same. It merely had established that the H death of the deceased had taken place due to the fire-arm injury sustained by him and nothing more. So, the same in the instant case is not of any supportive/corroborative value to the case of the prosecution against the appellant.
29. The prosecution has tried to seek corroboration from the recovery of motorcycle allegedly belonging to the appellant to show that on the same the appellant had called the deceased through his companion Muhammad Ramzan alias Phanna and thereafter had murdered him by firing with pistol shot on him at the above said place. The evidence in this regard has been furnished by P.W.4 Nazeer Hussain (P.W.4) that Yamaha Motorcycle P.2 was purchased by him from the appellant for a sum of Rs,46,000 and he kept the same with him for three months and then he sold it to Muhammad Ilyas (P.W.5) and on the asking of the police on 1-3-2001, they have produced the same before Rafique Sabir, Investigating Officer who took the same into possession.
Muhammad Ilyas has stated that he had purchased this motorcycle from Nazeer Hussain for Rs,46,000. In the cross-examination Nazeer Hussain had admitted that at the time of purchase of motorcycle he had seen documents of the same and according to these documents Muhammad Abbas appellant was not owner of the same. This evidence of him too seems to have been fabricated to create at least some evidence of incriminatory nature against the appellant. This is evident from the fact admitted by Nazeer Hussain that he had not got transferred this motorcycle in his name. He has also admitted that the appellant neither issued any receipt of the sale of the motorcycle nor executed any document in this behalf. This witness when had seen the documents and these as per his showing were not containing the name of the appellant but still he had purchased it from him is not understandable and if he had purchased, then why not get transferred the same in his name is all the more doubtful. This thing supports the idea that this evidence has been fabricated when no satisfactory evidence against the appellant was forthcoming. Anyway, it has reflected from the same that no bargain in respect of the motorcycle was stuck between them and the appellant and this is mere connection on their part. It also shows that the appellant was not the owner of the motorcycle in question and he did not sell it to Nazeer Hussain. He if was not owner of the same, then how the same could be used to bring the deceased on it at his desired place. This, therefore, seems to be an attempt on the part of the prosecution to procure some evidence against him. The prosecution, thus, has failed to link the appellant with the motorcycle. The recovery of the motorcycle, therefore, could not be a circumstance in support or corroboration to the evidence of the extra-judicial confession against the appellant.
30. As regard the evidence of recovery of crime weapon P.1 from the appellant, the same is absolutely inconsequential as the report of Ballistic Expert in this regard is available in the evidence. The same is in the negative.
31. The same too, therefore, could not be used as a piece of corroboration to the extra-judicial confession.
32. It is also to be mentioned here that there is no evidence of the prosecution on the record to the effect that the deceased ever at any point of time after his taking away by the unknown person till his death was seen in the company of Muhammad Abbas appellant. So no direct evidence of the prosecution on this aspect is available against him. The circumstance of investigation is also needed to be discussed here as it is also available in the prosecution evidence. The investigation was conducted by many Police Officers. However, mainly it was by Rafique Sabir (P.W.13), Muzaffar Khan (P.W.15) and Muhammad Sharif (C .W .1).
33. It has appeared from the evidence of Rafique Sabir and Muzaffar Khan that many suspects were joined in the investigation and among them also included the ladies. This shows that the police when could not get the clue of the real culprit for many months, then they had proceeded to create or procure some evidence in the case to challan some one. It has also appeared from the evidence of Rafique Sabir, S.-I. That he in connection with the investigation of this case has faced 'certain allegations and he even was departmentally proceeded against in respect of the same. I do not want to dilate any further on this aspect as it is hardly necessary. This, however, shows that the investigation in this case was not above board. It would also be interesting to note in this context that Muhammad Sharif (C.W.1) has opined that involvement of the two appellants in the matter was not above doubt. However, as this was' a mere opinion, hence, no much importance is to be attached to the same.
34. I, therefore, for the above reasons have found that the prosecution as per its evidence on the record has failed to bring home the guilt to the two appellants beyond any shadow of reasonable doubt. The impugned judgment of their conviction, therefore, is not liable to be sustained.
35. As a result of the above discussion, I accept both the above mentioned appeals of the appellants and set aside the impugned judgment of their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in jail. They be set at liberty forthwith, if are not required in(?) any other case.
36. Consequently, the Criminal Revision No,462 of 2002, fails and the same is dismissed.
Appeals accepted.
2004 P Cr. L 7 545 [Lahore] Before Khawaja Muhammad Shan, J MOEEN BUTT-Petitioner versus THE STATE--- Respondent Criminal Miscellaneous. No,4871/B of 2003, decided on 23rd September; 2003.
Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail:--Medical evidence was in conflict with ocular evidence---Nothing incriminating was recovered from the accused during police investigation---No motive for the occurrence was attributed to acCused-Finding of police was even adverse to the case of prosecution---Further inquiry, thus, was 'required into the guilt of the accused as envisaged by subsection (2) of S.497, Cr.P.C.----Accused was admitted to bail in circumstances. [pp. 546, 547, 548] A, B 8c C 1980 SCM R 203; 2002 SCM R 1381; 1996 PCr.LI 745; PLD 1989 SC 585; 2002 Per.L.I 394; 1985 SCM R 195; 1995 SCM R 1765; 2000 SCMR 257; Manzoor and 4 others v. The State PLD 1972 SC 81 and Amir v. The State PLD 1972 SC 277 ref. Miss Gulzar Butt for Petitioner.
Syed Raza Hussain Naqvi for the Complainant.
Ch. Liaqat Ali for the State.
' Learned counsel for the petitioners submits that injury attributed to the petitioner on the person of the deceased is not present at the place which has been specifically mentioned in the F.I.R. By the complainant, that no recovery was effected from the petitioner, that no motive is attributed to him, that even according to the report under section 173, Cr.P.C. Petitioner was not present at the spot and in fact it was Mumtaz alias Mithu co-accused, who had fired at the deceased and that case of the present petitioner is of further inquiry falling under subsection (2) of section 497, Cr.P.C.
' On the -other hand, learned counsel for the State assisted by learned counsel for the complainant submits that petitioner is named in the F.I.R., specific role is attributed to him, lie has been challaned, case is fixed for evidence for 27-9-2003, charge was framed on 13-8-2003, that whether the motive is attributed to the present petitioner or not is not relevant at this stage and moreover deeper appreciation of evidence is not allowed at this stage. Learned counsel for the complainant had relied upon 1980 SCM R 203, 2002 SCM R 1381, 1996 PCr.LJ 745, PLD 1989 SC 585, 2002 PCr.LJ 394, 1985 SCM R 195, 1995 SCM R 1765 and 2000 SCMR 257.
' I have heard learned counsel for the parties. The complainant in this case is Muhammad Latif and whose grand son namely, Waqas was murdered in this case. According to the F.I.R., Khurram Butt co-accused was armed with pistol .30 bore while Moeen Butt present petitioner was also armed with .30 bore pistol and the 3rd co-accused Amjad was empty-handed. It may also mentioned here, that complainant has also mentioned in the F.I.R. Two unknown persons, who were fighting with Waqas deceased. The complainant after hearing the noise of firing came to the place of occurrence and saw that Waqas deceased ran towards on his backside when Khurram Butt fired a shot with his pistol which hit on the back of left shoulder of the deceased and it also created an exit wound. As far as Moeen Butt petitioner was concerned, he thereafter, fired a shot which hit on the back of his left flank, who fell down, then, the accused persons ran away from the spot, the deceased was taken in an injured condition to the hospital, where he died. Learned counsel for the petitioner has placed on record certified copy of the post-mortem report of the deceased. Injury No,3 is a fire-arm wound but according to the post-mortem report it is on the back of the chest of the deceased. There is no injury whatsoever on the flank of the deceased and this fact either A party has not denied. Moreover, during the course of investigation, no recovery was effected from the petitioner, no motive is also attributed to him and motive if any was between Khurram Butt co- accused and Waqas deceased. It has also been mentioned, in the post-mortem report of the deceased by the doctor, who conducted post-mortem examination on the dead body of the deceased that "the relatives of the dead person who accompanied this dead body took forcefully the two (2) metallic foreign bodies recovered from the body. I immediately reported to Medical Superintendent who forwarded it to S.S.P., Gujranwala for necessary action". At this stage learned counsel for the complainant had stated that complainant had submitted an application against the said doctor and in this regard an inquiry is being held but no final result has been come on record till today.
' I may also mention here that according to report under section 173, Cr.P.C., the complainant during the course of investigation gave the names of two unknown persons as Waqas son of Muhammad Saeed, who according to him was empty-handed but was present in the earlier incidence of motive, thereafter, on 29-4-2003, he gave a supplementary statement and gave the name of other accused as Mumtaz Ali son of Khalid Saeed. According to the said report Mumtaz Ali was armed with pistol, he was declared proclaimed offender while Moeen Butt and Khurram Butt and Amjad accused were already sent to judicial lock-up. Waqas accused joined the investigation but his arrest was deferred. During the course of investigation, the Motorcycle bearing No 5161/GAD 70-CC Honda which was used in the commission of offence by Mumtaz co-accused (P.O.) was also recovered on his pointation. A .30 bore pistol was also recovered from Mumtaz alias Mithu co- accused. Report further reveals that though Khurram Butt, Moeen Butt and Amjad were not present at the spot but they had brought the deceased from his house when Waqas and Mumtaz co- accused came on motorcycle, Mumtaz, was sitting on the pillion seat of the motorcycle and he fired on the person of Waqas deceased while other Waqas (co-accused) was driving the motorcycle. Report further reveals that it was not proved that Khurram Butt, Moeen Butt and Arnjad fired during the occurrence. There is not only conflict between ocular account and medical evidence but the findings of the police is also adverse to the prosecution case, so in my considered opinion, the case of the petitioner is of further inquiry falling under subsection (2) of section 497, Cr.P.C. B The statute in this regard is very much clear and it has been mentioned in subsection (2) of section 497, Cr.P.C. That if it appears to such officer or Court 'at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided". Moreover, it was not a case of first informant in the F.I.R. That it was the present petitioner, who alongwith Khurram Butt and. Amjad co-accused brought the deceased from his house.
' In my considered opinion and while relying on PLD 1972 SC 81 and 277, wherein it was held by their Lordships of the Honourable Supreme Court of Pakistan in a case titled as Manzoor and 4 others v.
The State PLD 1972 SC 81 relevant at page 82 that it is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run". It was also held by their Lordships of the Honourable Supreme Court of Pakistan in a case titled as Amir v. The State PLD 1972 SC 277 that "for purposes of bail, law not to be stretched in favor of prosecution. Benefit of doubt, if any arising must go to accused".
' After having heard the leaned counsel for the parties and going through the record, '`I am of considered opinion that case of the present petitioner is of further inquiry falling under subsection
(2) of section 497, Cr.P.C., therefore, this petition is accepted. Petitioner is allowed bail subject to furnishing bail bonds to the tune of Rs,50,000 (fifty thousand) with two sureties in the like amount to the satisfaction of trial Court.