2023 M L D 1289
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ
ALI HAIDER and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 60 of 2021, decided on 8th September, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Anti-Terrorism Act (XXVII of 1997), S. 7--- Qatl-i-amd, common
intention, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---Accused were
charged for committing murder of the deceased by firing--- Record showed that the accused
persons were not previously known to the complainant and eye -witnesses, as such they were
not nominated in the FIR ---Physical description and features of the accused persons were not
furnished in the Fard- e-Bayan of the complainant ---Record further showed that the accused
persons were complete strangers to the prosecution witnesses, therefore, due to lack of the
description of accused persons in FIR, the evidence of identification parade was not safe to be considered relevant under Art. 22 of Qanun- e-Shahadat, 1984---Circumstances established
that the prosecution had failed to prove its case against the accused beyond reasonable doubt -
--Appeal against conviction was allowed accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Anti -Terrorism Act (XXVII of 1997), S. 7 ---Qanun- e-Shahadat (10 of
1984), Art. 22---Qatl -i-amd, common intention, act of terrorism ---Appreciation of evidence --
-Benefit of doubt ---Delay of one month in conducting identification parade ---Effect ---
Accused were charged for committing murder of the deceased by firing ---Accused persons
were arrested on the day of incident and were admitted in hospital for treatment of injuries allegedly caused by the firing of complainant ---According to Investigating Officer, on 27th
December, 2018, first accused was discharged whereas the second accused was discharged on 21st December, 2018 and were formally arrested---Identification parade was held on 21st January, 2019 with an unexplained delay of about one month after formal arrest of the accused persons ---Such delay created a doubt regarding the identification parade ---
Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt ---Appeal against conviction was allowed accordingly.
Muhammad Arif v. The State 2019 SCMR 631; Muhammad Afzal alias Abdullah and
others v. The State and others 2009 SCMR 436; Sabir Ali alias Fauji v. The State 2011 SCMR 563 and Mehmood Ahmed and 3 others v The State 1995 SCMR 127 ref.
State through Advocate General, Sindh Karachi v. Farman Hussain and others PLD
1995 SC 1 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Anti -Terrorism Act (XXVII of 1997), S. 7 ---Qanun- e-Shahadat (10 of
1984), Art. 22---Qatl -i-amd, common intention, act of terrorism ---Appreciation of evidence --
-Benefit of doubt ---Identification parade ---Infirmities ---Accused were charged for
committing murder of the deceased by firing--- Record showed that the witnesses and the
accused persons were kept at the same police station before reaching the Judicial Magistrate
for identification parade, therefore, it could not be ruled out that the complainant and eye -
witnesses had opportunity to see the accused persons ---Record did not transpire that police
had taken precautionary measures necessary to conceal the identity of the accused persons to ensure that the accused should not be seen by the witnesses prior to identification parade ---
Record showed that besides suffering from other legal infirmities which had been overlooked by the Trial Court, the identification parade also carried an inherent defect that the complainant and eye -witnesses did not describe the role played by each of the accused
persons at the time of the commission of offence ---In this case, the identification parade was
held at a C.T.D., Police Station--- Judicial Magistrate, while conducting the identification
parade had not taken an intelligent interest in the proceedings and had not prepared a list of all the persons who formed part of the line up at the parade along with their parentage, occupation and addresses ---Thus, identification parade was conducted by the Judicial
Magistrate in violation of law ---Circumstances established that the prosecution had failed to
prove its case against the accused beyond reasonable doubt ---Appeal against conviction was
allowed accordingly.
Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Khadim Hussain v. The
State 1985 SCMR 721; Mehmood Ahmed and 3 others v. The State1995 SCMR 127 and Kanwar Anwaar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 rel.
(d) Qanun -e-Shahadat (10 of 1984) ---
----Art. 22 ---Identification parade ---Scope ---Identification proceedings are not substantive
piece of evidence but only corroboration of the evidence given by the witnesses at the trial and could not as a rule form a sufficient basis for conviction of an accused ---In other words,
the evidence of identification merely proves the existence of a relevant fact under Art. 22, Qanun- e-Shahadat, 1984 and not the existence of a fact in issue.
Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Anti-Terrorism Act (XXVII of 1997), S. 7--- Qatl-i-amd, common
intention, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---Recovery of
empties and crime weapon ---Reliance ---Accused were charged for committing murder of the
deceased by firing ---Record showed that empties and crime weapons were recovered at the
pointing out of the accused persons but the empties and crime weapon were not sent to the
Forensic Science Laboratory separately ---Recovery memos of blood stained earth, crime
empties, motorcycle, last worn garments of deceased, mobile phone of accused and the evidence of the Medical Officer did not establish the guilt of the accused persons ---Recovery
of crime weapon at the instance of the accused was of no use as the same was recovered from
a flood water channel and not from a place in the exclusive possession of the said accused,
hence was not relevant ---Moreover, the recovery was effected after two months and twenty
two days of the disclosure and lodging of FIR which created doubt about the said recovery---
Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt ---Appeal against conviction was allowed accordingly.
Syed Ayaz Zahoor, Aster Mehak, Bakhtiar Sherani and Basit Tareen for Appellants.
Jameel Akhtar Gajani, Additional Prosecutor General for the State.
Date of hearing: 25th August, 2022.
JUDGMENT
GUL HASSAN TAREEN, J. ---Ali Haider along with co -accused Fateh Muhammad
("appellants") in furtherance of their common intention had allegedly murdered Noor Ali at about 11:00 a.m. on 30th November, 2018. With the said allegations, the appellants were booked in FIR No. 05/2018, lodged with P.S. C.T.D Naseerabad and after a regular trial, the appellants were convicted by Special Judge, Anti -Terrorism, Sibi Division Sibi ("trial
Court") for an offence under section 302(b), the Pakistan Penal Code, 1860 ("P.P.C") and
were sentenced to life imprisonment (R.I.) each and to pay compensation of Rs. 200,000/ -
(Rupees two hundred thousand) each. The trial Court extended benefit of section 382- B, the
Criminal Procedure Code, 1898 ("Cr.P.C") to the appellants.
2. The contents of crime report state that on 30th November, 2018 at about 11:30 a.m.,
three unknown terrorists armed with T.T Pistols entered into the room of Agha Jan Coal
Mine later and directed Abdul Khaliq to sit by putting pistol on his head. When the
complainant tried to take his pistol, one of the terrorist started firing which hit the deceased
labour Noor Ali. The complainant chased the terrorists and made firing at them. The two received bullet injuries, however, succeeded to escape. The deceased succumbed to the bullet injury, at the spot. While escaping, the appellants were arrested by the Officer In -charge of
Police Station Khan Kot, Naseer Abad (PW- 6).
3. After the investigation of the case, report under section 173, Cr.P.C was submitted
before the trial Court. On 2nd July, 2019, the trial Court framed charge under sections 302, 34, P.P.C read with section 7 of Anti -Terrorism Act, 1997 ("ATA") to which the appellants
pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution got recorded statements of 15 witnesses.
The ocular account of the case was furnished by the complainant Muhammad Hassan PW- 1,
Khuda Bakhsh PW -2 and Syed Muslim PW -3. The PW -4 was Judicial Magistrate in whose
personal superintendence, the identification parade of the appellants was conducted through
PW-1, PW -2 and PW -3. The prosecution got, Dr. Naseebullah (PW -10) examined who on
30th September, 2018 was posted as Medical Officer, at Civil Dispensary Mach. The PW- 10
on examining the dead body of the deceased observed as under:
"He was hit by a bullet on right side of neck and exit wound was on left side."
Rest of the witnesses are the witnesses of recovery memos and disclosure of
appellants on whom instances, the pistols were recovered from a flood water channel.
5. On close of the prosecution evidence, the trial Court examined the appellants under
section 342, Cr.P.C. The appellants, opted not to get examined under section 340(2), Cr.P.C and did not adduce any evidence in their defence. On termination/culmination of trial, the
trial Court convicted and sentenced the appellants as detailed above.
6. Messrs Syed Ayaz Zahoor, Aster Mehak, Bakahtiar Sherani and Basit Tareen,
Advocates, representing the appellants submitted that there is unexplained delay of four
hours in lodgment of the FIR; the eye -witnesses are in contradiction on material aspects of
the accusation; that no specific role was attributed to the appellants; that the only piece of evidence is identification parade which is not relevant because the complainant in his crime report and the eye -witnesses in their 161, Cr.P.C statements had not mentioned the physical
features and descriptions of the appellants. Concluding arguments, they submitted that the identification parade was conducted with unexplained delay. They cited the following case laws at bar:
Muhammad Arif v. The State 2019 SCMR 631
Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436
Sabir Ali alias Fauji v. The State 2011 SCMR 563
Mehmood Ahmed and 3 others v. The State 1995 SCMR 127
7. Conversely, Mr. Jameel Akhtar Gajani, Additional Prosecutor General, supported the
impugned judgment and submitted that the trial Court has already taken a lenient view while sentencing the appellants life imprisonment instead of, death.
8. We have heard the arguments and gone through the record and the case laws cited at
bar. The appellants were not previously known to the complainant, PW -2 and PW -3, as such
were not nominated in the FIR. The physical description and features of the appellants were not furnished in the Fard- e-Bayan (Ex: P/1- A) of the complainant. It appears from the record
that the appellants were complete strangers to the prosecution witnesses, therefore, due to lack of the description of appellants in Ex: P/1- A, the evidence of identification parade is not
safe to be considered relevant under Article 22, the Qanun- e-Shahadat Order 10 of 1984
("Q.S.O"). The appellants were arrested on the day of incident and were admitted in hospital for treatment of injuries allegedly caused by the firing of PW- 1. According to Investigating
Officer, on 27th December, 2018, appellant No. 1 was discharged whereas the appellant No. 2 was discharged on 21st December, 2018 and were formally arrested. The identification
parade was held on 21st January, 2019 with an unexplained delay of about one month after
formal arrest of the appellants. The delay creates a doubt regarding the identification parade. In the case of State through Advocate General, Sindh Karachi v. Farman Hussain and others, reported in PLD 1995 SC 1, the Hon'ble Supreme Court of Pakistan has held that:
"Identification test of Abbas was held after ten days for which it can be said that it was open to doubt. Evidence of identification test in such circumstances is assailable and not fit to be relied upon."
The PW- 1 Muhammad Haroon, Judicial Magistrate stated as under:
During his cross -examination, the PW -4 answered as under:
The witnesses and the appellants were kept at the same police station before reaching
of the PW -4, therefore, it cannot be ruled out that the complainant, PW -2 and PW -3 had
opportunity to see the appellants. The record does not transpire that police had not taken precautionary measures necessary to conceal the identity of the appellants to ensure that the accused should not be seen by the witnesses prior to identification parade.
The record shows that besides suffering from other legal infirmities which have been
overlooked by the trial Court, the identification parade also carried an inherent defect and that is that the complainant, PW -2 and PW -3 did not describe the role played by each of the
appellants at the time of the commission of offence. Reliance in this respect is placed on the cases of Ghulam Rasul and 3 others v. The State, (1988 SCMR 557) and Khadim Hussain v. The State, (1985 SCMR 721).
The Hon'ble Supreme Court of Pakistan in the case of Mehmood Ahmed and 3 others
v. The State, reported in 1995 SCMR 127 held that:
"It is, therefore, clear that the proceedings of the identification parade where the appellants were picked up without describing the roles played by them in the crime suffer from illegality and infirmity rendering it completely unreliable having no evidentiary value".
In this case, the identification parade was held at C.T.D Police Station Dera Allah
Yar. The Magistrate PW- 4, while conducting the identification parade had not taken an
intelligent interest in the proceedings and had not prepared a list of all the persons who
formed part of the line up at the parade along with their parentage, occupation and addresses. The PW- 4 in his cross -examination stated as:
The identification parade was conducted by the PW -4 in violation of law. The Hon'ble
Supreme Court of Pakistan in the case of Kanwar Anwaar Ali, Special Judicial Magistrate, reported in PLD 2019 SC 488 has held that:
"(vi) Identification parades should never be held at police stations.
(xii) Magistrate conducting the proceeding 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 depended only upon his vigilance and caution.
(xiii) Magistrate was obliged to prepare a list of all the persons (dummies) who formed
part of the line -up at the parade along with their parentage, occupation and addresses.
Even otherwise, the identification proceedings are not a substantive piece of evidence
but is only a corroborative of the evidence given by the witnesses at the trial and cannot as a
rule, form a sufficient basis for conviction of an accused. In other words, the evidence of identification merely proves the existence of a relevant fact under Article 22, the Q.S.O and not the existence of a fact in issue which in the case is the intentional murder of the deceased Noor Ali by the appellants.
The Article 2(4) of the Q.S.O is relevant which reads:
"(4) A fact is said to be proved when, after considering the matters before it, the Court either believes that it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
The prosecution has failed to prove that the appellants committed the charged
offence. We can draw no inference for its existence till we believe it to exist. An accused is presumed to be innocent unless prosecution succeeds to rebut such presumption by evidence of unimpeachable character. The prosecution has not produced evidence which tends to show a probability of the commission of offence by the appellants.
Since the identification parade loses its value, hence, it cannot be considered relevant
under Article 22 of the Q.S.O, therefore, evidence given is not sufficient to be relied upon. Reliance is placed on the case of Sabir Ali alias Fauji v. The State (2011 SCMR 563).
9. The recovery of crime weapon at the pointing out of the appellants has already been
discarded by the trial Court because the secured empties and the crime weapons were not
sent to the FSL separately. The recovery memos of blood stained earth Ex: P/5- B, six
empties Ex: P/5 -C, three empties Ex; P/5- D, motorcycle Ex: P/5- E, last worn garments of
deceased Ex: P/5 -F, mobile phone of appellant No. 1 Ex; P/5- G and the evidence of doctor
do not establish the guilt of the appellants. The recovery of crime weapon at the instance of
the appellant No. 1 is of no use as the same were recovered from a flood water channel and
not from a place in the exclusive possession of the appellant No. 1, hence is not relevant under Article 40 of the Q.S.O. In this respect, question Nos. 14 and 17 of PW -8 are relevant:
The delay occurred also creates doubt upon the alleged recovery. The PW- 9 has
repeated the same episode and attributed the recovery of crime weapon at the instance of the appellant No. 2 from flood water channel.
10. Though the appellants had not furnished any explanation regarding sustaining bullet
injuries, however, the prosecution cannot take benefit of it unless and until prosecution has not proved its case beyond shadow of doubt. The prime evidence in this case is the identification parade which was not proved and held in accordance with law. Even the complainant, PW -2 and PW -3 did not place on record incriminating material to connect the
appellants with the commission of the offence. The trial Court in para No. 16 of the impugned judgment held that appellants had come to the place of occurrence with intention
of robbery. Such findings are also departure from the evidence on record. Though it is alleged that the deceased was fired at by one of the accused yet, it has not been pointed out as to who was he?
The above analysis of the evidence has led us to the conclusion that the prosecution
has not been able to establish its case against the appellants beyond reasonable doubt.
In view of what has been discussed above, we do not find any plausible reason for
conviction of the appellants by the trial Court. We, therefore, accept this appeal, set aside the conviction and sentences of the appellants vide impugned judgment dated 13th March, 2021 passed by the Special Judge, Anti -Terrorism Court, Sibi in ATA case No. 01/2019, FIR No.
05/2018 by extending them benefit of doubt. The appellants Ali Haider son of Abdul Baqi and Fateh Muhammad son of Moula Bakhsh are acquitted of the Charge. They are in custody and shall be released forthwith if not required to be detained in any other case.
JK/175/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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