Full Judgment Text & Judicial Ruling

2020 P Cr. L J Note 44 [Federal Shariat Court] Before Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ AYAZ and 2 others---Appellants Versus The STATE---Respondent Jail Appeal No. 12-I of 2018, decided on 2nd May, 2019. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Qatl-i-amd, dacoity with murder, haraabah---Appreciation of evidence---Deliberation and concoction---Scope---Delay of about more than three days in lodging the FIR---Effect---Accused were charged for committing murder of the son of the complainant during dacoity---Record showed that occurrence took place on 15th October, 2013 at about 8:20 p.m. while FIR was registered on 19th October, 2013 at 13:00 hours---No reason or justification was found to report the occurrence with delay to the police either in the crime-report or in the statement of complainant---Police Officer/witness had deposed that on 15th October, 2013, the complainant contacted him through his mobile phone, narrating the detail of occurrence, disclosing the receipt of injuries by his son, ultimately succumbed to the injuries, and further informing him about the shifting of dead body in the Rural Health Centre, asking him to reach the hospital---Said facts were not a bald assertion on behalf of the witness as the facts were incorporated by him in rapt---Said rapt showed that factum of contact by the complainant with that police officer not only found mentioned in it but also the detail of the occurrence was also highlighted---Though, the number of assailants were not found in the said rapt but name of co-accused was very-well mentioned in the FIR and as such to his extent question of deliberation and concoction did not arise at all. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Qanun-e-Shahadat (10 of 1984). Art. 22---Qatl-i-amd, dacoity with murder, haraabah---Appreciation of evidence---Benefit of doubt---Test identification parade, infirmities in---Prosecution case was that the accused snatched Rs.450,000/- from the complainant, Rs.3,50,000/- from prosecution witness, Rs. 200,000/- from other person and one mobile telephone from driver of the vehicle---Accused tried to get cash from son of complainant by force, which attempt was resisted, on which, co-accused/appellant made fire with Repeater, hitting on his chest, who fell down and succumbed to the injuries---Un-identified assailants took Rs.210,000/- from the pocket of the deceased---Admittedly, accused was not nominated in the FIR---Prosecution case was that the complainant and witness identified the accused in the identification test---Said accused, as per police report was arrested on 29th October, 2013 along with two others---Admittedly, the appellant was not known to both the identifying witnesses---Complainant had admitted in cross-examination that he did not disclose features of un-known culprit in the FIR---Witness had not disclosed the features of the appellant in his statement made during the course of investigation---Contradiction existed about the time of holding of identification test---Record showed that it was joint identification test---Dummies in the identification test, were not of similar age and height as stated by witness in cross-examination---Witness who was close relative of the complainant categorically stated that dummies were of different shapes, heights, ages and colour and admitted the presence of SHO at that time---According to witness, though mashirnama was prepared by the Supervising Magistrate, but not endorsed by him stating that contents of mashirnama were written by his Reader under his dictation but there was no such endorsement---Role of the accused-appellant was not disclosed in explicit manner, just adding that he was the accused---Said illegalities, irregularities and omissions were sufficient to brush aside the evidence of identification parade---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. (c) Qanun-e-Shahadat (10 of 1984)--- ----Art. 22---Identification parade---Parameters---Omission to disclose features and description of suspect in the FIR and statement made under S. 161, Cr.P.C. would render identification parade without legal sanctity---Identification proceedings were to be held as early as possible but no hard and fast rule could be formulated---Delay in holding identification test would reduce its value---Identification test was not to be held at police station---Separate identification parade was to be conducted for each accused---Whole proceedings of identification test including lining up accused with dummies was to be conducted by the Magistrate himself and not to be delegated to the jail authorities---Prior to conduct of proceedings, concerned authority would be under obligation to conceal the identity of the accused from one place to another place---Such measures were not only required to be taken but were to be proved to have been taken---Supervising Magistrate would be duty bound to make note of every objection made by accused at the time of parade enabling the court of competent jurisdiction to judge the genuineness of the objection while determining value of identification test---Number of dummies for each accused must be given---Description of dummies as to whether they were of the same structure, age etc. was to be mentioned---Number of dummies to be mixed with each accused was not to be less than nine or ten---No mark or stamp to be put on the suspect---Dummies and the suspect were to be almost of same structure and appearance---If there was any visible mark on the person of accused, like beard, it was advisable to mix up the accused with others of similar appearance---Role of each accused must be described by the witness---Witnesses were required to explain as to how and in what manner they were to identify or pick up the accused person. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Qatl-i-amd, dacoity with murder, haraabah---Appreciation of evidence---Recovery of empties and weapon of offence---Reliance---Scope---Record showed that empties, eighteen in number, were taken into custody on 16th October, 2013, while weapon of offence was secured on the poination of appellant on 3rd November, 2013---Empties and gun were sent to the Forensic Science Laboratory on 11th November 2013, together---Report of laboratory revealed that two empties were fired from the said gun---Such report would be of little help to the prosecution as the gun and empties were sent together for forensic test---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. (e) Criminal trial--- ----Disclosure of co-accused---Scope---Disclosure of co-accused by itself was not sufficient to endorse the conclusion of culpability. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, dacoity with murder, haraabah---Appreciation of evidence---Delay in conducting the test identification parade---Scope---Accused were charged for committing murder of the son of the complainant during dacoity---Mode and manner of identification of the appellant after 16 days of the occurrence in the absence of disclosure of their features at the time of their first association in the investigation clearly suggested conscious but un-successful attempt to coin and fabricate incriminating evidence---Source of information about the identity of appellant as per testimony of complainant and a witness was persons of locality, whose identity was not known---Witness, however, did not disclose his source of information---No other evidence was available on record even to suggest the culpability of the said appellant---Such test identification parade was of inconsequential---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 20---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, dacoity with murder, haraabah---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Scope---Prosecution case was that there were five persons, out of them two were identified in the light of a Truck---Testimony of complainant and witnesses suggested that they identified the appellant in the lights of a Truck---Evidence of all the three except one witness was not suggestive as to whether the appellant was previously known to them---Complainant and the witnesses, close relatives were residents of the village---Appellant though belonged to the same tehsil but was resident of another village---Inter se distance of both the villages was not known---One witness in cross-examination stated that co-accused was known to him about 2-3 years prior to the occurrence but rest of the witnesses did not state anything about that aspect---Deposition of witness stating that he knew the co-accused 2-3 years prior to the occurrence in view of non-disclosure of source could not be considered---Site plan with scale was nowhere suggestive about the inter-se distance of point of location of complainant party and the appellant---Site plan with scale did not highlight the point, where the accused were standing---Complainant and the witnesses were not in agreement with one another about the location of accused and motorcycles---Complainant had stated that two motorcycles were parked besides the road and five armed persons were standing there---Another witness had stated two motorcycles were parked on both sides of the road and five persons with open faces were standing in mid of the road---As per version of other witness, motorcycles were parked on both sides of the road and five persons were standing on the road---Keeping in view the inter se distance disclosed by the witnesses, version of the witnesses regarding position of the accused, it could be said without any fear of contradiction that there was no availability of sufficient light enabling the complainant party to recognize and identify the appellant and that too among the five---Evidence of visual identification as such in order to prove identity of appellant could not be relied upon---Factum of recovery of .12 bore Repeater at the instance of co-accused from the graveyard, witnessed through Mahirnama, as stated by Investigating Officer duly attested by witnesses and positive Report of Forensic Science Laboratory in the absence of convincing ocular account as dealt with earlier would not be sufficient to prove guilt of the appellant---Date of receipt of articles mentioned in the document, could not be reconciled with the date of recovery of weapon of offence---No other evidence was led by prosecution to prove guilt of the appellant---Admittedly, no cash was recovered from any of the accused persons though there was an allegation of taking cash by force---Record transpired that the whole incriminating evidence was not put to the accused---Reliance upon medical evidence was of little help to the prosecution because neither it could disclose nor prove the identity of assailants---Prosecution remained unable to prove its case against all the three accused beyond doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances. Muhammad Arshad v. The State PLD 1995 SC 475 and Sajjad Hussain v. The State 1997 SCMR 174 rel. (h) Criminal Procedure Code (V of 1898)--- ----S. 342---Statement of accused recorded under S. 342 Cr.P.C.---Scope---Evidence not put to the accused, reference of which had been made, could not be used against the accused. Khawaja Manzoor Ahmed for Appellants (at State expenses). Khadim Hussain, Additional Prosecutor-General, Sindh for the State. Date of hearing: 25th April, 2019. JUDGMENT MEHMOOD MAQBOOL BAJWA, J.---Ayaz, Sikander Ali and Nasrullah, appellants three in number, assail the legality and validity of judgment dated 10th September, 2018, handed down by a learned Additional Sessions Judge, Naushahro Feroze, whereby after conclusion of trial, conviction was recorded against them under section 302(b) of The Pakistan Penal Code, 1860 (Act XLV of 1860) (Hereinafter called Act XLV of 1860) read with section 20 of The Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 (Hereinafter called Ordinance VI of 1979), awarding each appellant sentence of life imprisonment, requiring each of them to pay compensation to the tune of Rs.100,000/- (Rupees One Hundred Thousand Only), to be reimbursed to the legal heirs of the deceased Gulab Khan. In case of default in payment of compensation, each appellant was to suffer six months imprisonment. Concluding about the proof of charge under section 396 of Act XLV of 1860, each appellant was awarded sentence of five years' rigorous imprisonment and fine in a sum of Rs.50,000/- (Rupees Fifty Thousand Only) and in default to further suffer six months rigorous imprisonment . All the sentences were directed to run concurrently. Premium was also granted to all the appellants under section 382-B of The Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called The Code). 2. Prosecution case reflected in the Crime-Report No.91 of 2013, copy of which is Ex.10-A, lodged on 19th October, 2013, by Muhammad Parial (P.W.1), father of deceased Gulab Khan is that on 15th October, 2013, he along with Abdul Majeed (P.W.2), Nasrullah (P.W.3), Ghulam Mustafa, Seengar as well as deceased Gulab Khan were coming back from Karachi to native village, after selling he-goats on the occasion of Eid-ul-Azha and when they reached at a bridge near Link Road, leading to village Faqir Usman Tunio, five armed persons were found standing near road having two motorcycles. On signal to stop, the driver of Mazda, stopped the vehicle, on which, they all stepped down. Sikandar (appellant No.2) and Bahawal alias Nang (proclaimed offender) were identified by all of them in the headlights of the vehicle. The accused snatched Rs.450,000/- from the complainant, Rs.350,000/- from Abdul Majeed Lund (P.W.2), Rs.200,000/- from Ghulam Mustafa and one mobile telephone from driver of the vehicle. After that, Bahawal alias Nang tried to get cash from his son Gulab Khan Lund by force, which attempt was resisted, on which, on the command of said Bahawal alias Nang, Sikandar Mari (appellant No.2) made fire with Repeater, hitting on the chest, who fell down and ultimately succumbed to the injuries. Un-identified assailants took Rs.210,000/- from the pocket of the deceased. Though, on the hearing of firing, people of the vicinity attracted to the spot but all the accused managed to escape. 3. During the course of investigation, identification parade was held under the supervision of Muhammad Saleem, learned Judicial Magistrate (P.W.12) on 31st October, 2013. The complainant (P.W.1) and Nasrullah (P.W.3) identified Ayaz son of Ibrahim Solangi. After the arrest of Sikandar Ali, .12 Bore Repeater was recovered from his custody on 13th June, 2014, when he was arrested, taken into custody through Mashirnamna (Ex.12-A). Ayaz son of Ibrahim after his arrest, got recovered gun on 3rd November, 2013, from Banana Garden of one Liaquat Almani, witnessed through memo (Ex.13-E). .12 bore empties, eighteen in number (ten of white colour and eight of red colour) were secured from the spot on 16th October, 2013 through Mashirnama (Ex.13-C). 4. Empties and weapon of offence were sent for examination to the Forensic Science Laboratory and according to the Reports (Ex.23-C-D), two crime-empties (C-10-14) were fired from the weapon of offence recovered at the instance of Ayaz Solangi, while one crime-empty (C-16) was fired from the repeater recovered from Sikander Mari. 5. The appellants named above put to face the trial, denied the accusation, requiring the prosecution to produce evidence resulting in appearance of 13 witnesses including Muhammad Parial, complainant-appellant, father of the deceased (P.W.1), Abdul Majeed and Nasrullah (P.W.2-P.W.3) (eye-witnesses), Dr. Nazeer Hussain (P.W.8) and Muhammad Saleem, Civil Judge-Judicial Magistrate, Bhiria City, District Naushahro Feroze (P.W.12). 6. The appellants being accused before the learned Trial Court in their respective statements recorded under section 342 of The Code, denied the incriminating evidence put to them. Bare perusal of their respective statements referred to suggest that whole incriminating evidence was not put to all the three appellants, which is un-fortunate aspect of this case, with which, we will deal at appropriate stage. 7. Heard adversaries and perused the record. 8. There are three appellants, i.e., Ayaz son of Ibrahim (2) Sikander Ali son of Khabar Khan Mari and (3) Nasrullah son of Muhammad Juman Solangi. 9. In the judgment under challenge, names of Bahawal alias Nang son of Mir Muhammad Machi and Munawar son of Ibrahim Solangi also finds mentioned in the list of accused but they were declared proclaimed offenders. 10. Sikander Ali is nominated in the FIR, copy of which is Ex.10-A. Rest two were not named in the crime-report. As per prosecution case, Ayaz son of Ibrahim Solangi was identified by complainant, Muhammad Parial (P.W.1) and Nasrullah (P.W.3) in the identification test held on 31st October, 2013, supervised by Muhammad Saleem, learned Judicial Magistrate, Bhiria City. He was also implicated by complainant in his supplementary statement made on 2nd November, 2013 (Ex.10-B), making reference to the proceedings of identification test. 11. Nasrullah son of Muhammad Juman Solangi was unidentified assailant. As per prosecution stance, on 1st November, 2013, the complainant, Nasrullah son of Muhammad Qasim (P.W.3), Ghulam Mustafa (not produced) and Abdul Majeed (P.W.2) identified him by face outside portay at road and while identifying him and other un-known accused with him, inquired their names and particulars, who disclosed their particulars, upon which, he and witnesses , approached the police, implicated him while making statements on 2nd November, 2013 (Ex.10-B). 12. Occurrence took place on 15th October, 2013 at about 8:20 p.m. while FIR was registered on 19th October, 2013 at 13:00 hours. One cannot find any reason or justification to report the occurrence with delay to the police either in the crime-report (Ex.10-A) or in the statement of complainant (P.W.1). Delay occurred in the circumstances was heavily pleaded on behalf of appellant. Factual position explained on behalf of appellant though cannot be questioned but legal implications canvassed in order to suggest deliberation on the part of the complainant (P.W.1) at least to the extent of Sikander Mari (appellant No.2) cannot be endorsed in view of the statement of Gul Muhammad Niazi, A.S.I. who while appearing as P.W.5 deposed that on 15th October, 2013, the complainant made contact with him through his mobile phone, narrated the detail of occurrence, disclosing the receipt of injuries by his son Gulab Khan, ultimately succumbed to the injuries, and further informing him about the shifting of dead body in the Rural Health Centre, asking him to reach in the hospital. This is not a bald assertion on behalf of the witness as the facts were incorporated by him in Rapt No.22 at 20:35 hours. We have gone through the contents of Rapt No.22 (Ex.14-A), which was entered at 20:35 hours. Factum of contact by the complainant with this police officer not only finds mention in it but also the detail of the occurrence is also highlighted. Though, we do not find the number of assailants in the said Rapt but name of Sikander Mari is very-well mentioned in the FIR and as such to his extent question of deliberation and concoction does not arise at all. Name of the appellant also finds mention in the inquest report (Ex.13-B). Though, it can be validly pleaded to the extent of rest of the appellants who were not named in the crime-report. 13. First of all, we will take the case of Ayaz son of Ibrahim Solangi (appellant No.1). Admittedly, he was not nominated in the FIR. To prove his culpability, proceedings of identification parade have been banked upon. As per prosecution case, the complainant (P.W.1) and Nasrullah (P.W.3) identified him in the identification test held on 31st October, 2013. The said convict was arrested on 29th October, 2013 along with Safdar and Jabbar as disclosed by Sikandar Ali, S.I.P.-SHO Police Station Daras (P.W.13). 14. Prior to dealing with the evidentiary value of identification test, it is desirable to make reference to the parameters to be kept in view while determining the evidentiary value of identification test. 15. While reviewing the case-law on the subject, one of us as a Judge of Lahore High Court, while making elaborate discussion1. formulated following points amongst others to be kept in view in order to determine the binding force of identification parade: (i) Omission to disclose features and description of suspect in the FIR and statement made under section 161 of The Code would render identification parade without legal sanctity. (ii) Identification proceedings should be held as early as possible but no hard and fast rule can be formulated. However, delay in holding identification test will reduce its value; (iii) Identification test should not be held at police station; (iv) Separate identification parade should be conducted for each accused; (v) Whole proceedings of identification test including lining up accused with dummies should be conducted by the Magistrate himself and the assignment should not be delegated to the jail authorities; (vi) Prior to conduct of proceedings, concerned authority is under obligation to conceal the identity of the accused from one place to another place and such measures are not only required to be taken but should be proved to have been taken; (vii) It is the duty of Supervising Magistrate to make note of every objection made by accused at the time of parade enabling the court of competent jurisdiction to judge the genuineness of the objection while determining value of identification test; (viii) Number of dummy for each accused must be given; (ix) Description of dummies as to whether they were of the same structure, age etc. should be mentioned; (x) Number of dummies to be mixed with each accused should not be less than nine or ten; (xi) No mark or stamp should be put on the suspect; (xii) The dummies and the suspect should almost be of same structure and appearance. If there is any visible mark on the person of accused (For example, beard), it is advisable to mix up the accused with others of similar appearance; (xiii) Role of each accused must be described by the witness. The witnesses are required to explain as to how and in what manner they were to identify or pick up the accused person; 16. Keeping in view the parameters, when evidence of complainant (P.W.1) Nasrullah (P.W.3), Miral Khan, Head Constable (P.W.10), and Muhammad Saleem, Judicial Magistrate (P.W.12) as well as proceedings are examined, it becomes crystal clear that identification proceedings were not conducted according to the settled yardstick. We have noted following illegalities, irregularities and infirmities in the proceedings: (1) Admittedly, the appellant was not known to both the identifying witnesses. Complainant, Muhammad Parial (P.W.1.) admitted in cross-examination that he did not disclose features of un-known culprit in the FIR. (2) Nasrullah (P.W.3) is also sailing in the same boat as features of the appellant does not find mentioned in his statement made during the course of investigation on 19th October, 2013. (3) There is a contradiction regarding the time of holding of identification test. As per stance of Nasrullah (P.W.3), it was 9:15 a.m., when identification test was held, which stands contradicted by Miral Khan, Head Constable (P.W.10) maternal nephew of complainant, witness of Mashirnama (Ex.20-A), according to whom, they reached in court premises at 12:00 noon and proceedings were held at 1:00 p.m. The Supervising Magistrate (P.W.12) also disclosed the time, intimated by Mashir (4) It was joint identification test. Ayaz (appellant) along with Safdar son of Ahmed Nawaz and Jabbar son of Shahzado Solangi were put together for identification test (5) Though in the proceedings of identification test (Ex.20-A), it finds mentioned that dummies were of similar age and height but same stands contradicted by Nasrullah (P.W.3) stating in cross-examination that…

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