PLJ 2022 Cr.C. 724
[Lahore High Court
Multan Bench]
Present: Sohail
Nasir, J.
MUHAMMAD
IJAZ and another--Appellants
versus
STATE--Respondent
Crl. A.
No. 1240-J of 2017, heard on 24.11.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S.
302(b)--Conviction and sentence--Challenge to--Qatl-e-Amd--PW was stated to be
present with appellants at the time of occurrence. Before the identification
proceedings were conducted neither in FIR nor in their statements recorded u/S.
161, Cr.P.C. the witnesses ever claimed that PW was driving the motorbike and
only appellants made firing. The case was quite specific that three unknown
persons came there and made indiscriminate firing. PW as mentioned earlier, has
been acquitted by the trial Court--Occurrence had taken place in the dark hours
of the night where admittedly no source of light was available. This was their
own case of the eye-witnesses that when motorbike of assailants came close to
them, till that time its head light was off so there was no question for them
to see the faces of any of the assailants?--No possibility for the witnesses to
see the features of the appellants and their co-accused--The source of light
was a serious challenge for prosecution--When there was no chance and
possibility for the eye-witnesses to see the faces of the appellants and their
co-accused, the process of identification was a futile exercise--The evidence
offered through identification proceedings is not a substantive piece of
evidence but is only corroborative of the evidence--Identification parade is
the weakest type of evidence and can be believed only if it is supported from
other independent sources--12 empties were collected from crime scene and
surprisingly sent to expert just one day earlier to the arrest of appellants.
[Pp. 729, 730, 732
& 733] A, B, C, D, E, F, G, H & I
Mr. Abdul Khaliq Dogar Advocate for Appellants
Mr. Muhammad Laeeq-ur-Rehman Assistant District Public
Prosecutor for State.
Date of hearing: 24.11.2021.
Judgment
This Criminal Appeal filed by Muhammad Ijaz and Muhammad Fayyaz
(appellants) is directed against judgment dated 25.04.2017 passed by the
learned Additional Sessions Judge, Lodhran on the basis of which appellants
were convicted and sentenced as under:
i. Under Sections 302(b)/34 PPC[1]
for committing the Qatl-i-Amad[2]
of Muhammad Zawwar, imprisonment for life each. They were also directed to pay
an amount of
Rs. 200000/-(two lacs) each as compensation to the legal heirs of deceased in
terms of Section 544-A, Cr.P.C.[3]
and in default thereof to further undergo six months S.I[4]
each.
ii. Under Sections 302(b)/34, PPC for committing the Qatl-i-Amad
of Muhammad Siddique, imprisonment for life each. They were also directed to
pay an amount of
Rs. 200000/- (two lacs) each as compensation to the legal heirs of deceased in
terms of Section 544-A, Cr.P.C. and in default thereof to further undergo six
months S.I each.
iii. Under Sections 324/34, PPC to undergo 5 years R.I[5]
each and fine of Rs. 30000/- (thirty thousand) each. In default of payment of
fine they were ordered to further undergo 3 months S.I each.
iv. Under Sections
337-F(i)/34, PPC to pay Rs. 20000/-(twenty thousand) Daman[6]
each to Muhammad Zahid (PW-15) and to undergo one year R.I each as Tazir[7]
2. The convictions are outcome of case FIR[8]
No. 288 (PL/1) recorded on 31.05.2016 at Police Station City Lodhran
under Sections 324/34 on the complaint of Nazar Muhammad (Pw-8). During the
investigation Sections 302/397, PPC were also added. It is important to mention
here that one Muhammad Javed was also tried with the appellants and acquitted
by way of same judgment.
3. Facts of the case are that on 31.05.2016 Safdar Naseer SI[9]
(Pw-10) upon receipt of information of the occurrence arrived at Pull Khandan
Wali Moza Kot Lal Shah where he recorded the statement of Nazar Muhammad (PL)
who maintained that in between the night of 30/31.05.2016 an information was
received that three unknown assailants had committed the crime in a shop and
injured one Muhammad Aslam; on this information he/complainant along with Nazar
Hussain (deceased), Muhammad Siddique (deceased),
Muhammad Wazeer (Pw-9) went to Pull Khandan; after a short while from western
side a motorbike came with head light off; three unknown persons on that
motorbike when reached close to them, the head light was made on; all accused
started indiscriminate firing with their weapons resulting into the injuries on
the person of Zawwar Hussain, Muhammad Siddique and Muhammad Zahid (Pw-15). It
was finally stated that all the assailants then escaped from crime scene.
4. Safdar Naseer SI after observing
the necessary formalities made an endorsement and send the complaint to Police
Station through Adnan Aslam Constable on the basis of which FIR was recorded by
Muhammad Imran ASI[10]
(Pw-13). Appellants and their co-accused Muhammad Javed were arrested on
22.06.2016 by Hubdar Hussain SI (Pw-11) and were sent to jail where
identification parade was supervised by Mr. Muhammad Javed Khan Magistrate (Pw-14).
The witnesses had identified all the assailants. During these proceedings the
witnesses disclosed that Javed was driving the motorbike whereas appellants
made firing.
5. In subsequent investigation
recoveries were also affected at the instances of both the appellants.
6. On conclusion of investigation a
report under Section 173, Cr.P.C. (Challan) was submitted in Court.
7. A charge under Sections 302/324/397/34
PPC, on 29.11.2016, was framed against appellants and Muhammad Javed for which
they pleaded not guilty and demanded their trial, where after prosecution had
produced the following witnesses:
PW.1 Dr. Safdar Ali
issued the operation notes with regard to injuries on Muhammad Siddique
(deceased).
PW-2 Dr. Iftikhar Ahmad
conducted the post mortem examination of Muhammad Siddique and issued the
report (PA).
PW-3 Dr. Shahbaz Akhtar
conducted the post mortem examination of Zawwar Hussain and the post mortem
report he issued is Ex-PD.
PW-4 Dr. Jawwad Rasool medically
examined Muhammad Zawwar (deceased) and Muhammad Siddique (deceased)
when both were in injured condition.
PW-5 Ghulam Hussain
Constable escorted both the deceased (the then injured) to the hospital for
their medical examination.
PW-6 Muhammad
Arif Constable got conducted the post mortem examination of
Zawwar Hussain.
PW-7 Khuda
Bakhsh Patwari[11]
prepared scaled site plan (PK).
PW-8 Nazar
Muhammad is complainant and an eye-witness.
PW-9 Muhammad
Wazeer is also one of the eye-witnesses.
PW-10 Safdar Naseer SI
conducted the initial investigation.
PW-11 Hubdar Hussain SI
made subsequent and final investigation.
PW-12 Muhammad Tahir
Constable is a witness to recovery of motorbike (P-18) at the instance of
Muhammad Javed (since acquitted).
PW-13 Muhammad Imran
ASI is the author of FIR.
PW-14 Muhammad Javed Khan
Magistrate supervised the identification parade and issued the proceedings
(PX).
PW-15 Muhammad Zahid
is an injured eye-witness.
8. After producing the reports of
Serologist (PY), firearm (PZ) and copies of FIRs (PAA) prosecution’s evidence
was closed by the learned Deputy District Public Prosecutor.
9. In their examinations made under Section 342, Cr.P.C.
appellants pleaded their false involvement.
10. Learned counsel for appellants
maintained that the basic evidence in this case is identification parade and if
it is established that there was no possibility for the witnesses to see the
faces of the appellants, how they could identify them during these
proceedings?; identification parade proceedings are suffering from serious
illegalities so cannot be relied upon; identification parade is a weak type of
evidence and cannot be relied unless there is strong corroboration from
independent sources. He finally contended that as it is a case of no evidence
therefore convictions of appellants cannot sustain.
11. On the other hand learned
Assistant District Public Prosecutor contended that witnesses were having no
enmity whatsoever for the false involvement of appellants who were rightly
picked up during the identification parade where the role was also assigned to
them and their co-accused; identification proceedings, if suffering from
certain irregularities, for that complainant cannot be held responsible as it
was the duty of the Magistrate to observe what he was supposed to do?; pointing
the crime scene and recoveries of weapons with positive report of firearm
expert are independent corroboration in this case. He finally argued that there
is no reason to interfere in a well reasoned judgment recorded by the learned
trial Court.
12. HEARD
13. According to prosecution’s story the appellants along with
their co-accused on 09.07.2016 led the police party to the crime scene and
disclosed that it was the venue where they committed the crime. Under Article
40 of the Qanoon-e-Shahadat, Order 1984, when any fact is deposed to as
discovered in consequence of information received form a person accused of any
offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly
to the fact thereby discovered, may be proved (Emphasized).
14. The word ‘distinctly’ used in the provision means a
fact that was not in the knowledge of anyone prior to its disclosure by
accused. The place of occurrence pointed out by the appellants was not secret
or a breaking news before it was disclosed by them, so it has no legal value
and cannot be used as an incriminating piece of evidence against appellants.
15.
Muhammad Javed alias Kalay Shah was stated to be present with appellants
at the time of occurrence. Before the identification proceedings were conducted
neither in FIR nor in their statements recorded under Section 161, Cr.P.C. the
witnesses ever claimed that Muhammad Javed was driving the motorbike and only
appellants made firing. The case was quite specific that three unknown persons
came there and made indiscriminate firing. Muhammad Javed, as mentioned
earlier, has been acquitted by the learned trial Court. Neither complainant nor
the state has taken any exception to that acquittal, therefore when similarly
placed person has been cleared by the learned trial Court while disbelieving
the statements of private witnesses, how prosecution can force to sustain the convictions
of appellants?
16.
Coming to the identification parade, the basic question before this Court is
that whether there was any occasion for Nazar Muhammad (PW-8), Muhammad
Wazeer (PW-9) and Muhammad Zahid (PW-15) to see the faces of
appellants and their co-accused, because the occurrence had taken place in the
dark hours of the night where admittedly no source of light was available. This
was their own case of the eye-witnesses that when motorbike of assailants came
close to them, till that time its head light was off so there was no question
for them to see the faces of any of the assailants? It was then stated by them
that the culprits switched on the head light. Even from this angle there was no
possibility for the witnesses to see the features of the appellants and their
co-accused because the head light of the motorbike was towards their faces and
not the appellants.
17.
The source of light was a serious challenge for prosecution and finding in
difficulty, first time in Court Nazar Muhammad (Pw-8) added that Abdul
Ghaffar one of the witnesses was having a torch in his hand. On confrontation,
in cross-examination by defence, he was found under improvement. Similarly
Muhammad Wazeer and Muhammad Zahid stated so. This principle is relevant to refer
here that a witness who makes material improvements in his statement during
trial so as to cover inherent defects, his credibility remains of no worth.[12]
18. Hubdar Hussain SI in his statement admitted that no source
of torch was mentioned in the complaint however this fact was introduced during
the investigation. For the sake of arguments if it is considered that torch was
there, why it was not taken into possession? Prosecution stands with lips tight
here.
19.
The outcome of above discussion is that when there was no chance and
possibility for the eye-witnesses to see the faces of the appellants and their
co-accused, the process of identification was a futile exercise.
20.
Reverting to the identification parade, that is also called ‘Police Lineup’ (in
American English) and ‘Identity Parade’ (in British English) means that a line
of people who stand next to each other while someone tries to identify one of
them as the person who has committed the crime. It is a relevant fact under
Article 22 of the Qanoon-e-Shahadat, Order 1984. It is not a requirement of law
but only one of the methods to test the veracity of the evidence of an
eye-witness who had an occasion to see the accused and claims to identify him.
The evidence offered through identification proceedings is not a substantive
piece of evidence but is only corroborative of the evidence given by the
witnesses at the trial.[13]
It has no independent value of its own and cannot as a rule, form a sufficient
basis for conviction though the same may add some weight to the other evidence
available on record.[14]
It is also not a rule of law but a rule of prudence. Identification parade is
governed by Volume III, Chapter 11-G, Part-C of the Rules and Orders of the
Lahore High Court, Lahore and Paragraph No. 26.32, Chapter XXVI of the Police
Rules, 1934 and various instructions issued by the Government.[15]
The important features for a valid identification parade are as under:
i. The proceedings
shall be conducted under the supervision of a Magistrate.
ii. Proceedings shall be
held inside the jail.
iii. Identification shall
be carried as soon as possible after the arrest of suspect.
iv. Once the arrangements
for proceedings have been undertaken, the Officer investigating the case and
any Police Officer assisting him in that investigation should have no access
whatever either to the suspect or to the witnesses.
v. List of all persons included in identification should be
prepared, which should contain their names, parentage, address and occupation.
vi. The suspects shall be placed among other persons similarly
dressed up, of the same religion and of same social status.
vii. There shall be proportion of 8 or 9 such person to one suspect.
viii. The identifying
witnesses shall be kept separate from each other and at such a distance from
the place of identification as shall render it impossible for them to see the
suspects or any of the persons concerned in the proceedings, until they are
called upon to make identification.
ix. Each witness shall be brought up separately to attempt his
identification. Care shall be taken that the remaining witnesses are still kept
out of sight and hearing and that no opportunity is permitted for communication
to pass between witnesses who have been called up and those who have not.
21 In Kanwar Anwaar Ali case[16]
the apex Court was pleased to further add that the Magistrate conducting the
proceedings must take an intelligent interest in the proceedings and not be
just a silent spectator of the same bearing in mind at all times that the life
and liberty of someone depends only upon his vigilance and caution and that he
is required to record in his report all the precautions taken by him for a fair
conduct of the proceedings.
22. Mr. Muhammad Javed Khan a learned Magistrate (Pw-14)
on 28.06.2016 had supervised the identification parade. He did not perform his
duty with a reasonable level of responsibility. He deviated from the
instructions (ibid) for a proper identification parade. The illegalities
committed by him are as under:
i. He conducted
the proceedings in an open ground inside the jail so on this reason alone no
sanctity can be attached to this exercise.
ii. List of all
persons included in the identification parade although contains the names and
parentage but the addresses and occupations are not recorded.
iii. It does not
indicate that the suspects were placed among other persons similarly dressed
up, of the same religion and of same social status.
iv. It is silent
that the identifying witnesses were kept separate from each other and at such a
distance from the place of identification as rendered it impossible for them to
see the suspects until they were called upon to make identification.
v. Firstly Nazar
Muhammad, then Abdul Ghaffar and finally Muhammad Wazeer were called but
surprisingly every witness after he completed his job was simply sent back that
means that he had the contact with the identifying witness who still had to
join the proceedings.
vi. The
proceedings are completely unvoiced that where the witnesses were made to sit
and where they had to go after they did the assignment?
23. The identification parade is of no worth for the
prosecution for another important reason. Nazar Muhammad (Pw-8) after
identifying the appellants maintained that only Fayyaz made firing
resulting into death of Muhammad Zawwar and Muhammad Siddique. When Abdul
Ghaffar came to identify, he stated that Fayyaz and Ijaz had made firing
whereas Muhammad Javed was driving the motorbike and same role was assigned by
Muhammad Wazeer (Pw-9).
24.
It is settled principle of law that identification parade is the weakest type
of evidence and can be believed only if it is supported from other independent
sources. Unfortunately prosecution even cannot claim that the identification
parade has been corroborated from other independent material. Recovery of
Kalashnikovs (P4) on 12.07.2016 at the instances of Ijaz (PN) and a Kalashnikov
(P5) at the instance of Fayyaz on 13.07.2016 is of no help to the prosecution
for the sole reason that both recoveries were affected from open places those
were within the approach of public at large hence exclusive possession of
appellants is not established.
25.
It is surprising that recovery at the instance of Fayyaz was made from the
jurisdiction of Police Station Kehror Pakka but the Investigation Officer did
not bother to make any entry in the Roznamcha of that Police Station or
to join any of the officials from there.
26. Coming to the recovery of
motorbike at the instance of Javed, it is also of no worth on a simple ground
that Javed has been acquitted which has not been taken to any exception by the
prosecution.
27.
The positive report of firearm expert shall also play no role in this case once
the recoveries have been disbelieved. 12 empties were collected from crime
scene on 31.05.2016 and surprisingly sent to expert on 21.06.2016 just one day
earlier to the arrest of appellants and Javed. No explanation is there that why
the empties were kept in Police Station and were sent just 24 hours earlier to
the arrest of appellants and their co-accused? Even from this dimension the
report of PFSA has lost its value and cannot be used against appellants.
28. There is no need to discuss the
medical evidence because it has not been denied that Zawwar Hussain, Muhammad
Siddique and Muhammad Zahid sustained the injuries and later on Zawwar Hussain
and Muhammad Siddique had died.
29. The reasonable doubt standard
is a fundamental part of jurisprudence which once arisen, cannot be refused and
denied. This means that the prosecution must present propositions which
preclude "reasonable doubt" in the mind of a reasonable person as to
the guilt of accused. Therefore, beneficiary of this failure by the prosecution
under all the circumstances shall be the one who is called favorite child of
law.
30. I therefore finally conclude
that prosecution has not been able to prove its case beyond reasonable doubt
against both the appellants hence this Appeal is allowed. Impugned judgment dated 25.04.2017 is set aside. Appellants are acquitted from the case. They
are in custody and shall be released forthwith if not required in any other
case. The case property shall be dealt in the same manners as directed by the
learned trial Court.
(A.A.K.) Appeal allowed
[1]. Pakistan Penal Code, 1860
[2]. Murder
[3]. Code of Criminal Procedure, 1898
[4]. Simple Imprisonment
[5]. Rigorous Imprisonment
[6]. Compensation determined by the Court to be
paid by the offender to the victim for causing hurt
[7]. Punishment other than Qisas, Diyat, Arsh
or Daman
[8]. First Information Report (S.154, Cr.P.C.)
[9]. Sub Inspector
[10]. Assistant Sub-Inspector
[11]. An official of revenue of department.
[12]. Sardar Bibi & another vs. Munir Ahmad
& others 2017 SCMR 344, Syed Saeed Muhammad Shah & another vs. The
State 1993 SCMR 550, Amir Zaman v. Mehboob and others 1985 SCMR 685 and
Muhammad Arif vs. The State 2019 SCMR 631
[13]. Muhammad Bashir vs. The State PLD 1958 SC 1
[14]. Muhammad Afzal & another vs. The State
1982 SCMR 129
[15]. Punjab Government Circular Letter No.
6091-J-36/ 39829 (H-Judl.) dated 19-12-1936; Punjab Government Circular Letter
No. 6546-J-43/83844 (H-Judl.), dated 17.12.1943; Punjab Government Circular
Letter No. Judl.I-(13)/61, dated 26-7-1961
[16]. PLD 2019 SC 488