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Petitioner: Muhammad Ibraheem VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad, Sadiq Mahmud Khurram Title: Muhammad Ibraheem vs The State and another Case No.: (1) Criminal Appeal No. 979 of 2017 (2) Criminal Appeal No. 874 of 2018 Date of Judgment:2019-10-30 Reported As: 2020 YLR 1662, 2019 LHC 3729 Result: Appeal accepted
Judgment SADIQ MAHMUD KHURRAM, J.The appellants namely Muhammad Ibraheem son of Karim Bakhsh and Muhammad Safdar son of Mulazim Hussain were tried by the learned Judge Anti-T errorism Court, Dera Ghazi Khan, in case FIR No. 393 of 2015 dated 27.07.2015 registered at Police Station Civil Lines, District Muzaf fargarh in respect of offences under sections 394,41 1,324,353,186,34 PPC and under section 7 of Anti Terrorism Act, 1997. The learned trial court vide judgment dated 13.09.2017 Muhammad Ibraheem son of Karim Bakhsh and Muhammad Safdar son of Mulazim Hussain (convicts) and sentenced them as infra: Muhammad Ibraheem son of Karim Bakhsh: i) Rigorous imprisonment for ten years under section 394/ 34 PPC and directed to pay Rs.1 Lac as fine, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Rigorous imprisonment for ten years under section 324/ 34 PPC and directed to pay Rs.1 Lac as fine, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. iii) Rigorous imprisonment for two years under section 353/ 34 PPC. iv) Rigorous imprisonment for three years under section 41 1/ 34 PPC. v) Rigorous imprisonment for ten years under section 7 (c) of the Anti-T errorism Act, 1997 and directed to pay Rs.50,000/- as fine, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. Muhammad Safdar son of Mulazim Hussain : i) Rigorous imprisonment for ten years under section 394/ 34 PPC and directed to pay Rs.1 Lac as fine, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. ii) Rigorous imprisonment for ten years under section 324/ 34 PPC and directed to pay Rs.1 Lac as fine, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. iii) Rigorous imprisonment for two years under section 353/ 34 PPC.
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iv) Rigorous imprisonment for three years under section 41 1/ 34 PPC. v) Rigorous imprisonment for ten years under section 7 (c) of the Anti-Terrorism Act, 1997 and directed to pay Rs.50,000/- as fine, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The appellants were however , extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.) and their sentences were ordered to run concurrently . 2. Feeling aggrieved, Muhammad Ibraheem son of Karim Bakhsh (convict) lodged Criminal appeal No.979 of 2017 against his conviction and sentence. Feeling aggrieved, Muhammad Safdar son of Mulazim Hussain (convict) lodged Criminal appeal No.874 of 2018 against his conviction and sentence. We intend to dispose of both the criminal appeals mentioned above, Criminal appeal No.979 of 2017 and Criminal appeal No.874 of 2018, through this single judgment. 3. Precisely , the facts necessary , as divulged in the statement of Ashiq Hussain 24/HC, (PW -1) are as under:- "On oath stated that on 27.07.2015, I was posted at police welfare petrol pump M/Garh and on the same day, Khalid Mehmood shah DSP along with his driver and gunman also came at the said petrol pump. Khadim Hussain 899/HC who was Incharge of police petrol pump handed over to me Rupees one lac to get deposit in the bank at about 2-45 PM noon. I along with Muhammad Ibrahim 61/c proceeded to the bank to get deposit the said amount on motorcycle CD-70 registration No.3131/MHL. No sooner we departed from the said petrol pump towards Jhang Mor, two accused persons namely Safdar and Zeshan came there on a motorbike 125. Both accused were armed with pistil 30 bore and came from wrong side. The accused persons collided their motorbike with our motorcycle. We fell on the ground and accused persons pointed their weapons at us. In the meanwhile the third accused Muhammad Ibrahim came running to the spot from the nearby NLC ground. We resisted the accused persons. The said three accused persons started firing upon us. Accused Safdar made fire which hit on the thigh of my left leg. I tried to snatch pistol from said Safdar accused but accused made another fire shot which hit on the ring finger of my right hand. I fell on the ground. Accused Safdar made third fire shot which hit on my right shoulder. Accused Zeshan accused (since PO) made fire shot which hit on the tanki of my motorcycle while the accused Ibrahim kept firing at the spot. All the three accused persons snatched Rupees One Lac from me and fled towards DG. Khan by riding on the said 125 Hone motorbike. On hearing the fire shots, Khalid Mehmood shah DSP and Khadim Hussain 899/HC also attracted towards the spot. I narrated the whole occurrence to them. On the direction of said DSP, Naka Bandi was made and I was taken to DHQ hospital through 1122 for medical treatment from where I was referred to Nishtar hospital Multan. On 02.9.15, on the direction of learned Area Magistrate, I reached at District Jail M/Garh through ambulance. I participated in identification parade and identified accused Safdar and Muhammad Ibrahim in identification parade and narrated the occurrence before the learned magistrate. All the three accused persons committed robbery and injured me. On 28.9.2015, I got recorded my supplementary statement before investigator and nominated Zeshan accused (since PO) in the case." 4. The learned trial court framed charge against the appellants on 24.10.2016, to which the appellants pleaded not guilty and claimed trial. 5. The prosecution/complainant in order to prove its case got recorded stateme nts of twelve witnesses. Ashiq Hussain 24/HC (PW-1) and Muhammad Ibrahim No.61/C (PW-2) gave evidence regarding the ocular account. Dr. Mujahid Ahmad, MO DHQ Hospital Muza ffargarh (PW-3) stated that on 04.09.20 15 the appellant namely Safdar son of Mulazim Hussain was brought for his medical examination and he issued the Medico Legal Certificate (Exh.P A). He also stated that on 04.09.2015 the appellant namely Muhammad Ibrahim son of Karim Bakhsh was brought for his medical examination and he issued the Medico Legal Certificate (Exh.PB). Khadim Hussain 899/HC stated that on 27.07.2015 he handed over Rs.100,000/- to Ashiq Hussain 24/HC (PW-1) and he also witnessed the recovery of motorcycle (Exh.P1), five empties of 30-bore (Exh.P2/1-5). Ghulam Mujtaba 1789/C (PW-5) stated that on 27.07.2015 the last worn clothes of Ashiq Hussain 24/HC (PW-1) were taken into possession by the Investigating Officer. Muhammad Farooq 247/C (PW-6) stated that on 07.09.2015 Muhammad Ibrahim, (appellant)
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got recovered Rs.45,000/- (Exh.P6/1-45) and Muhammad Safdar , (appellant) got recovered Rs.45,000/- (Exh.P7/1- 45) and he witnessed the said recoveries. Noor Ahmad, ASI (PW 7) recorded the formal FIR (Exh.PH). Zafar Iqbal 686/C (PW-8) stated that on 07.09.2015 Muhammad Ibrahim, (appellant) got recovered pistol (Exh.P8) and Muhammad Safdar , (appellant) got recovered pistol (Exh.P9). He further stated that on 10.09.2015 Muhammad Ibrahim, (appellant) got recovered motorcycle and Muhammad Safdar , (appellant) also got recovered motorcycle (Exh.P10). Muhammad Arif Khan Niazi, Magistrate, (PW-9) got conducted the test identification parade of the appellant on 02.09.2015 and prepared his report (Exh.PJ). Khalid Mehmood Shah, DSP (PW-10) stated that on 27.07.2015 he heard the noise of fire shot and went to the place of occurrence and drafted the written complaint (Exh.PH/1). Manzoor Ahmad, SI (PW-11) investigated the case from 27.07.2015 till 20.09.2015 and detailed the facts of his investigation in his statement before the learned trial court. 6. The prosecution got examined Dr. Javed Ismail Medical Officer (PW.-12), who was posted at DHQ Hospital Muzaf fargarh and on 27.07.2015 medically examined Ashiq Hussain 24/HC (PW-1) and observed as under: " INJURIES : i. A firearm wound of 1x 1 cm on front of left thigh, 18 cm below the inguinal line. Margins of the wound were black and inverted. The wound was going deep (entry wound)KUO, ii. A fire arm wound of 1x 1 cm on front of right shoulder . Margins of the wound were black and inverted. The wound was going deep (entry wound) KUO, iii. A fire arm wound of 1 x 1 cm on the back of right c chest, 8 cm behind the axillary fold. The margins were everted and wound was going deep. (exit wound) KUO," 7. The learned DPG on 03.01.2017 gave up PW Liaqat Ali, 241/C as being unnec essary and on 01.02.2017 gave up PWs Shaukat Ali 715/C, Asad Ullah 2094/C, Ghulam Qasim, 1627/C and Fahad Hussain 1112/HC as being unnecessary . The learned Deputy Prosecutor General on 13.06.2017 closed the prosecution evidence. 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Ibraheem son of Karim Bakhsh and Muhammad Safdar son of Mulazim Hussain under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. They further stated that they had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellants namely Muhammad Ibraheem son of Karim Bakhsh and Muhammad Safdar son of Mulazim Hussain opted not to get themselves examined under section 340(2) Cr .P.C and did not adduce any evidence in their defence. 9. On the conclusion of the trial, the learned Judge Anti-T errorism court, Dera Ghazi Khan, convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsels for the appellants precisely is that whole case is fabricated and false. They contended that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. They further contended that the statements of Ashiq Hussain 24/HC (PW-1) and Muhammad Ibrahim No.61/C (PW-2) were not worthy of any reliance. They further contended that the appellants are neither nominated in the FIR nor in the statements of witnesses recorded under section 161 of Cr.PC and the test identification parade conducted was full of procedural defects and of no legal worth and value. They also argued that the recoveries were result of fake proceedings. They finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt. 11. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned Deputy Prosecutor General further argued that the occurrence was a joint enterprise of the appellants. He further contended that the medical evidence also corroborated the statements of Ashiq Hussain 24/HC (PW-1) and Muhammad Ibrahim No.61/C (PW-2). He further argued that the recoveries from the appellants also corroborated the ocular account .He contended that there was no occasion for the prosecution witnesses, who were police official, to substitute the real offenders with the innocent in this case. Lastly , he prayed for the rejection of appeal. 12. We have heard the learned counsels for the appellants and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully .
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13. The whole prosecution case revolves around the statements of Ashiq Hussain 24/HC (PW-1) and Muhammad Ibrahim No.61/C (PW-2). There is no denial to this fact that Ashiq Hussain 24/HC (PW-1) received injuries, but the fact remains that neither the names of the assailants were mentioned in the written application (Exh.PH/1) nor in the statements of the witnesses recorded under section 161 of Cr.PC. As per the prosecution case, Ashiq Hussain 24/HC (PW-1) and Muhammad Ibrahim No.61/C (PW-2) joined the test identificat ion parade held to establish the identity of the assailants. The August Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others Vs. The State and others " (2019 SCMR 956) has enunciated guiding principles for the appreciation of evidence regarding the test identification parade and the statements of the witnesses participating in the same. We have scrutinized the statements of two witnesses namely Ashiq Hussain 24/HC (PW-1) and Muhammad Ibrahim No.61/C (PW-2) who joined the test identification parade held to establish the identity of the assailants in light of the said judgment. The August Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others Vs. The State and others " (2019 SCMR 956 ) has held as under:- "13. In the late 1960s, the courts around the world , began to set the standard for review ing eyewitness identification evidence. Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony . US Supreme Court in the case of Manson v Brathwaite , UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another , New Jersey Supreme Court in State v Madison and Oregon Supreme Court in State v. Classen settled the following factors for assessing the reliability of the witness: (1) the opportunity of the witness to view the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the suspect; (4) the level of certainty demonstrated at the confrontation (seeing the accused in court); and (5) the time between the crime and the confrontation (seeing the accused in court). It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research. The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval-the "stage during which a person recalls stored information". The process of memory retention and retrieval may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables. System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control. Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process:- i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness' ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy, an eye-witness under high stress is less likely to make a reliable identification of the perpetrator." ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration. iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however , a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure."12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification. v. Witness Characteristics: Characteristics like a witness' age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults. 28 vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification. vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability . The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions. New Jersey Supreme Court in State v. Henderson observed that "virtually all of the scientific evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v . Lawson . 14. The laws of evidence maintain that in order for the court to take judicial notice of scientific facts they must be part of the general knowledge of men or must be agreed upon by reputable men in a particular field of science beyond reasonable dispute. For judges to determine the degree of consensus on a particular scientific fact they may refer to any reputable and recognized reference sources. The House of Lords in Regina (Quintavalle) v. Secretary of State for Health held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. This Court can take judicial notice of the credible scientific development under Article 112, Qanun-e-Shahadat, 1984. The question is can we shut our eyes to credible scientific research and development, which has already been recognized and acknowledged by the courts in various other jurisdictions. If scientific research can help and assist the court in understanding and appreciating evidence more fully and more meaningfully, the risk of miscarriage of justice stands minimized. Therefore, the courts don't shy away from scientific developments but instead reach out and embrace them. Reliance on scientific research and the factors evolved by science to assess the reliability and credibility of the eye witness can improve the quality of identification evidence and as a consequence the quality of justice. Our jurisprudence had already travelled in this direction and now credible scientific research by providing us additional factors or "estimator variables" (which are not exhaustive) has provided additional factors to certify the credibility and reliability of the eye witness and as a result the veracity and probative value of the identification evidence." We have minutely perused the statement of Ashiq Hussain 24/HC, (PW-1) the injured witness of the case and one of the two witnesses who joined the test identification proceedings. This witness namely Ashiq Hussain (PW- 1) admitted during cross-examination that he did not mention any descriptive features through which the appellants could be identified and stated as under: "I did not mention the cause of none recording the features of the assailants at the spot. Volunteered I becam un- conscious on receiving injuries. Again said I was Hawas Bakhta at that time, so I did not mention the features of the assailants.On reaching the hospital, I came into senses. I got recorded in my subsequent statement before the police about the Khado Khal of the accused persons.(At this stage learned counsel demanded such a subsequent statement of this witness but no subsequent statement is on file on perusal of record by learned DPG in presence of learned defence counsel except supplementary statement dated 28.9.2015 in which Zeshan accused was nominated and Khado Khal of the accused person is not mentioned therein which copy was already provided)." Similarly we have also perused the statement of Muhammad Ibrahim No. 61/C (PW-2) , the other witness who joined the test identification proceedings. This witness namely Muhammad Ibrahim No. 61/C (PW-2) also admitted during cross-examination that he did not mention any descriptive features through which the appellants could be identified and stated as under: " I could not get record (sic) the features of the accused Ibrahim, as complainant did not inquired (sic) about it. I am not deposing according to desire of the investigator . I did not mention any reason for none (sic) recording the27 29 30 31 32 33 34 35 36
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features of the assailants." As such the test identification parade loses its authenticity and has no value in the eye of law. Reliance is also placed upon a binding judgment of the August Supreme Court of Pakistan in the case titled Muhammad Afzal alias Abdullah v. The State and others (2009 SCMR 436 ) wherein it has been held as under: "Absence of such details in FIR militated against the bona fides of prosecution and greatly marred evidentiary value of test identification parade." Such identification of the appellants in the test identification parade, in the circumstances, is laconic and is of no evidentiary value. 14. We have also noticed that the test identification parade was not conducted as per the law and in violation of rules of the Police Rules, 1934. The perusal of the proceedings of the test identification parade (Exh.PJ) reveals that the said identification parade of both the appellants was conducted jointly. It is further recorded in the proceedings of the test identification parade (Exh.PJ) that both the appellants were made to stand in front of each other along with the dummies at different serial numbers. The proceedings of test identification parade (Exh.PJ) reveal that there is no mention of the colour of skin of the other prisoners used as dummies. While holding the test identification parade, Muhammad Arif Khan Niazi, Judicial Magistrate, (PW-9), failed to observe the description of complexions of their skins and weight of the dummies being used during the test identification parade which was necessary to rule out any possibility of misidentification. The August Supreme Court of Pakistan in case of "Hakeem and other Vs. The State" (2017 SCMR 1546) at page 1550 while enunciating the principles of law relating to the identification parade has held as under:- "The proper course is to have separate identification parades for each accused" The August Supreme Court of Pakistan in case of Kamal Din alias Kamala Vs. The State (2018 SCMR 577) at page 580 held as under:- "Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go. This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210 ), Bacha Zab v. The State (2010 SCMR 1189), Sahfqat Mahmud and others v. The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that the identification of many accused in one go is not proper besides being unsafe." Reliance is also placed on the case Crl. Misc. No.183 of 2019 in Crl.A.No. 259 of 2018 reported as PLJ 2019 SC (Cr.C) 153 wherein the august Supreme Court of Pakistan has issued guidelines in conducting the identification parade and has clearly held that if there are more accused persons when one, separate identification parade should ordinarily be held in respect of each accused person. Hence we are constrained to hold that the identification proceeding is of no evidentiary value. 15. Muhammad Arif Khan Niazi, Judici al Magistrate, (PW-9), got conducted the identification parade of the appellants on 02.09.2015 and prepared the report (Exh.PJ). We have perused the report (Exh.PJ) as prepared by Muhammad Arif Khan…
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