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Petitioner: AKHTAR ABBAS VS Respondent: THE STATE and anothers
Court Name: Peshawar High Court Judge(s): Attaullah Khan, Syed Sajjad Hassan Shah Title: AKHTAR ABBAS vs THE STATE and anothers Case No.: Criminal Appeal No,167 with Murder Reference No, 8 of 2010 Date of Judgment:2011-05-10 Reported As: 2012 YLR 1273 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ATTAULLAH KHAN, J. Through this single judgment we propose to decide Criminal Appeal No,167 of .2010 filed by the appellant/accused, namely, Akhtar Abbas son of Muhammad Shafi and Murder Reference No,8 of 2010 forwarded by the trial Court. 2. The appellant/accused has impugned his conviction passed by learned Judge, Anti-Terrorism Court, D.I. Khan dated 9-12-2010 vide which he has been convicted and sentenced as under:-- (1) Under section 7(a) 21(i) Anti-Terrorism Act read with section 302(b)/149, P.P.C. To death with fine of Rs,1,00,000 and in default to suffer one year's R.I. (2) Under section 7(b) 21(i). Anti-Terrorism Act read with section 324/149, P.P.C. To suffer ten years' R I with fine of Rs,50,000 and in default to suffer six months R.I. (3) Under section 7(c) 21(i) Anti-Terrorism Act read with sections 324/ 149, P.P.C. To suffer ten years with fine of Rs,50,000 and in default to suffer six months' R.I. (4) Under sections 427/149, P.P.C. To one years' R.I with fine of Rs,19,500 for causing damage to the motorcar and in default to suffer one months' R.I.' (5) Under sections 148/149, P.P.C.To one year's R.I. (6) Under section 13 Arms Ordinance to two years' R.I. ' The awarded penalties of imprisonment were ordered to be run concurrently. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant. 3. Succinct facts of the present case as per F.I.R. Are that complainant Hamidullah constable Police Line No,554 who was guard with Iftikhar Saleem Advocate deceased, then injured, on 17-8-2010, in the company one Muhammad Khalil in Motorcar bearing No,2078-LRB, driven by deceased Iftikhar Saleem Advocate, started from the house of deceased situated in Basti Ustrana Janubi, for District
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Courts D.I.Khan, and at 09.30 when they were passing near the Masjid, known as Masjid Imam Hussain, three persons duly armed with pistols appeared and started indiscriminate firing upon the complainant, his companion and deceased. From the said firing, Iftikhar Saleem advocate and complainant Hamidullah were hit, whereas Muhamtifad Khalil .Escaped unhurt. Hence F.I.R. No,446 dated 17-8-2010 registered under sections 302/324/353/427/120B/148/ 149 P.P.C., 13 Arms Ordinance and 7 Anti-Terrorism Act at Police Station, Cann: District D.I.Khan. 4. Challan against the appellant/ accused was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellant/accused refused to plead guilty in response to the charge framed against him therefore prosecution was directed to record its evidence to prove guilt of the appellant/ accused. 5. The prosecution examined fourteen witnesses during trial against the appellant/ accused and then closed its evidence. Where after statement of appellant/accused was recorded under section 342, Cr.P.C. Neither the appellant/accused recorded his statement on Oath nor produce any evidence in defence. 6. The learned trial Court after hearing arguments of both sides, convicted the appellant/accused and sentenced him as per detail given in second Para of this judgment. 7. Learned counsel for appellant, complainant and State addressed their arguments in detail. 8. Mr. Amjad Zia, learned counsel for the appellant/accused submitted that the identification of the accused is doubtful because no proper and formal identification parade has been held enabling the eyewitnesses to identify him as culprits. According to him on this count the involvement of the present appellant/ accused has become doubtful. His second submission is that ocular evidence is consisted of eye-witnesses who are related to the deceased being friend and` guard, therefore, their testimony cannot be relied upon. He also submitted that the ocular evidence is full of contradiction and confines no corroboration from any independent source. His third argument is that the medical evidence has, also contradicted the version of eye-witnesses in respect to seat of injuries and directions. He further argued that there is no other circumstantial evidence to support the prosecution case. According to him that the appellant/accused was not arrested by the police but as he was injured in this incident as passerby and after sustaining injury he was present in the Hospital for his treatment when he was arrested. He lastly argued that there is no motive for the commission of offence. 9. On the contrary, Mr. Sanaullah Shamim Gandapur D.A.-G. Assisted by Mr. Saleemullah Khan Ranazai and Mr. Saleem Jan private counsel for complainant strongly rebutted the arguments advanced by learned counsel for the appellant/accused. They argued that there is no need for identification parade keeping in view the particular circumstances of the case and hence it would not affect the case of prosecution. Their second submission is that the ocular evidence is consisted of two eye-witnesses who were natural and their presence .On the spot is proved as at the time of occurrence one of them got injured. According to them the prosecution has succeeded to prove the guilt of appellant/ accused on the basis of ocular evidence which finds corroboration from the medical as well as other circumstances including the arrest of appellant/accused immediately after the occurrence with weapon of offence. They further submitted that the medical evidence sufficiently support the prosecution case and thus corroborates the ocular version. They argued that the motive is available because it was a sectarian issue which resulted in the occurrence. According to them circumstantial evidence is also available in the shape of recovery of. SIM along with detailed record. They lastly submitted that .30 bore pistol was also recovered from the possession of appellant/ accused at the time of arrest which has been proved to be used in the commission of offence as per report of FSL. 10. We have considered the arguments from both sides and also gone through the evidence of prosecution with care and caution, in the light of which our discussion is as below. The following are
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the points for determination. (i) Identification of accused. (ii) Ocular evidence. (iii) Medical evidence. (iv) Recovery of pistol from possession of accused. (v) Recovery of empties from the spot. (vi) FSL report. (vii) Motive. 11. Identification parade. Learned counsel for the appellant/accused strongly argued that the identity of the appellant/ accused is doubtful because he was not charged by name in the F.I.R. And in such situation it was necessary for prosecution to have conducted identification parade for the identity of the accused by the P.Ws. Which has not been so conducted, therefore, it is yet to be known as to whether it was appellant/accused who participated in the offence or not. The stand of the learned counsel for complainant is that in every case holding of identification parade is not necessary. Only in those cases this formality is required when there is .No other source available for the identification of accused. Identification is required where the accused were not known to witnesses at the time of occurrence. Identification Parade enables to identify the culprits by recalling the special feature of the accused noted by them at the relevant time. So special feature must be in the knowledge of P.Ws. , which includes height, colour, clothes facial feature etc. It is true that no such particulars are given by the complainant in the F.I.R. The accused are simply stated to be unknown. If this aspect of the case is considered, then it became necessary for the prosecution to conduct and arrange a formal identification parade of the accused. It is also true that this formality has not been observed keeping the above factors. Would this act on the part of the prosecution would adversely affect the case of prosecution, is a question to be examined in the presence of other available circumstances. There are some peculiar events which would answer the question satisfactory. The first event is the presence. Of injury on the body of the appellant/ accused which according to the complainant as well as accused was caused during the course of occurrence, though with different version. According to the complainant the accused which participated in the occurrence was hit with a bullet of his co-accused while the version of accused is that he was passerby and during the course of firing he got injured. One thing is established that in the same incident the accused was injured. So the presence of injury on the body of accused is a peculiar factum. The second event is that trial of blood oozing from the injury of the accused from the spot up to the place where from accused was arrested. This trail of blood led the police party to the place where the accused was hiding. The third event, relevant for the identification of the accused, is his arrest after the occurrence on the same day in injured condition. The further circumstances which enabled the prosecution to identify the accused is the recovery of .30 bore pistol from the possession of the accused which has been proved to be weapon of offence. In short the appellant/accused got injured in the occurrence, he was arrested in injured condition in pursuance to the chase by the police party with help of blood trail and from his possession weapon of offence was recovered which has been duly proved to have been used in the occurrence as the empties were found to have been fired from it. 12. So the above circumstances are sufficient to prove the identity of the accused without identification 'parade. Another fact to be kept in mind is that identification parade is not a requirement of law and if the accused is identified through other sufficient source, there remain no need for this formality. The most important face is that the accused was identified by the eye- witnesses in whose presence occurrence took place, at trial. Nothing was put by the defence in cross-examined to these witnesses. The Superior Courts of the .Country are of the view that firstly the identification is not legal requirement and may be disposed with otherwise the accused is
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sufficiently, identified. It is also held that the identification of accused at trial is also sufficient to prove the participation of accused in the occurrence. We would first see that in view of the principle laid down by the Superior Court the identification parade was necessary or some materials available which are sufficient for the identification of the accused without it. First we refer to case titled Muhammad Yousuf Zai v. The State reported in PLD 1988 Karachi 539 which reads as under:- "We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. The eye- witnesses can identify ti,e accused before the trial Court that is 'enough:" 13. The above principle follow the identification parade is not a legal formality and if the accused is identified by the witnesses at trial, then it is sufficient. The facts in the case in hand are the same. We may also rely upon case titled Yaru and others v. The State reported in 2003 PCr.LJ Karachi 1960, wherein it is held that:-- "As regards the argument of the Advocate for the appellant Maqbool with regard to the identification test, it is pointed out that the appellants were apprehended just after the incident in presence of the complainant. Therefore, the identification test in such circumstances carries no weight." 5. In this case also the accused was apprehended by the police on the day of occurrence. 6. In another case titled Qurban and another v. The State reported in 1994 PCr.LJ Karachi 150, the principle laid down are that real test for identification of accused is his identification at trial. The relevant observation are:-- "It may be mentioned that the real test is the identification of the accused in Court at the time when the witnesses, are testifying. Both the witnesses have identified the accused in Court." 16. Similar principle has been laid down in case titled Muhammad Afzal and another v. The State reported in 1982 SCMR 129 it reads:- "Now there is no provision in law that identification proceedings should be held in cases where a crime is committed by persons unknown to the witness or for that matter in, any type of cases. The identification has by itself no independent value. As stated by Viscount Haldane, ICing. v. Christie 1914 AC 545 -"its -relevancy is to show, that the witness was able to identity are the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or mistake." ' It is further held that:--- "In practice, however, it is not safe to accept the statement of a witness about complicity of an accused in crime if he did not describe him by name or other particulars during the investigation and still was not made to identify him out, of a group." ' At the end the apex Court held that:-- "My conclusion, therefore, is that the identity of the assailants was in no way doubtful, which was further corroborated by recoveries made at the instance of appellants. The High Court was accordingly justified in upholding the conviction of the appellants and confirming the sentence of death awarded to Muhammad Afzal for it was not even urged that there were any extenuating circumstances justifying lesser punishment. The conviction and sentence are, therefore, maintained and this ." 17. If examined the case in hand regarding identification of the accused, in the light of above principles and observations of the Superior Court, we would reach to a. Conclusion safely that the ,Accused was sufficiently identified by the witnesses at trial coupled with the fact that exe .Got injured in the occurrence' which he himself admitted, was arrested just after the occurrence in a place where the police were guided by the trail of blood oozing from the injury. The fact of identification is further corroborated by the recovery of .30 bore pistol from the possession of the accused at the time of arrest. The FSL has matched the said
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pistol with the empties recovered from the spot and were found to have been fired from the said pistol. 18. For the sake of argument if we presume that identification of accused is doubtful, then what about the facts of recovery of pistol, apprehension of accused just-after the occurrence, trail of blood from the spot to the place where from accused was arrested.. Question arises, can the above facts be ignored. The answer would definitely be in negative. If these facts are kept in juxtaposition with the absence of identification parade, weight might be on other side. So in our opinion there was no need of identification parade because the accused was identified by both the P. Ws. At trial. He was arrested after the occurrence. From his possession pistol which was weapon of offence recovered. From which the empties found on the spot were fired. The trail of blood from the spot to the place where from accused was arrested by the police party in chase of the accused and succeeded in arresting him. All these factors, to our mind, are sufficient for the identification of the accused. Therefore, there is no doubt in this regard. 19. In short there is no force in the argument of learned counsel for appellant/ accused that the case against appellant/ accused has become doubtful because no identification parade has been conducted on the grounds mentioned above. 20. Ocular evidence. Now we discuss the ocular evidence. As per F.I.R. The ocular evidence is consisted of complainant, namely Constable Hamidullah and Muhammad Khalil. In this case the - complainant also got injured. Both of them have stated that the unknown accused fired at the complainant party which resulted in the murder of Iftikhar Saleem Advocate and causing injury to the complainant. The learned counsel for appellant/accused contended that both P:Ws. Are not independent. Because the complainant was the guard of the deceased while the other his friend. The reply of learned counsel for complainant is that this would not effect the case of the prosecution because both the P.Ws. Are natural witnesses and their presence is droved on the spot as one of them got injured. It is true that the complainant Hamidullah P.W.8 was posted as guard with the deceased while Muhammad Khalil P.W.9 was colleague of the deceased. But we would to see as to whether their statements were trustworthy and consistent with the events of the case or not. We are also required to see as to whether their testimony was corroborated or not. The perusal of statements of these two witnesses reveals that there is no improvement, no contradiction and no discrepancies. Both witnesses were natural witnesses and their presence on the spot is proved at the time of occurrence. Both were present in the car being driven by the deceased. Hamidullah Constable got injured in the firing. A lengthy cross was put to both these P.Ws. But nothing has been established by defence that either they had any against the appellant faccused or any motive to falsely implicate him. At the ' first instance the accused were not known to them and in such event there was no E likelihood of ill will against him. Unless motive is proved on the part of the P.Ws. For false implication of the accused, their statements is to be believed it is straight forward and confidence inspiring. The Court is also required to ascertain whether the P.Ws. Were in a position to identify the accused and if there is no reason to doubt the presence of P.Ws. On the spot at the time of occurrence then their version is to be accepted. Even there is no need of corroborative evidence. In this case both the witnesses proved to be present in the vehicle along with deceased. They saw the occurrence and narrated the same in the Court. Nothing has been pointed out by the defence to show that they are not telling truth. It is proved from their evidence that they have no malice or enmity against they appellant the accused. We rely upon case of Ijaz alias Billa and 3 others v. The State reported in 2002 SCMR 294, wherein it is held that:- "This waitress had no malice or enmity against the appellants. His evidence is in consonance with medical evidence referred hereinabove.." 21. In this case both witnesses have been proved to be natural witnesses of the occurrence and their presence on the spot has already been established. As stated above no element of any
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grudge or enmity against the accused has been brought on record, therefore; there is no likelihood at all that the accused would be substituted for the real culprits. Moreover, their statements have been corroborated by recoveries and, medical evidence. It is to be pointed that both eye-witness have not been cross-examined on the point of any enmity or false implication. Even an interested witness can be believed when he is proved to be true and natural. Only that witness can be termed as interested when he is motive to implicate innocent person falsely. 22. We reply on 1999 SCMR 141, wherein it is held, that an interested witness in a criminal case is one, who has motive with the accused to falsely involve him in the case and mere relationship of the witness with the deceased or complainant party is no ground for disbelieving him. The same principle is adopted in case reported in PLD 2007 Supreme Court (AJ&K) 102. Wherein it is held that conviction can be recorded on the basis of ocular testimony of natural and reliable witness without seeking any corroboration but the said testimony is required to be scrutinized with great care and caution. In some cases it is also held that relationship of a witness with the deceased is not alone sufficient to disbelieve his testimony. 23. We also refer case of Ashfaq Ahmad v. The State reported in 2007 SCMR 641, wherein it is observed that:-- "It is well-settled by now that merely on the basis of inter se relationship the statement of the prosecution witness cannot be disbelieved. The intrinsic value of such evidence is required to be examined and not the inter se relationship. In this regard we are fortified by the dictum laid down by this Court in the following cases.-- Muhammad Amin v. The State 2000 SCMR 1784, lqbal alias Bhala v. The State 1994 SCMR 1, Nazir v. The State PLD 1962 SC 269, Khalil Ahmad. v. The State 1976 SCMR 161, Allah Ditta v. The State 1970 SCMR 734, Muhammad Akbar v. Muhamad Khan PLD 1988 SC 274 and Farmanullah v. Qadeem Khan 2001 SCMR 1474. We may mention here that interested witness is one who has a motive for falsely implicating the accused, is a partisan and having some rancor or enmity against the accused. No evidence has come on record inferring any such enmity between the witnesses and that of petitioner." 24. We also rely upon 2011 SCMR 401, wherein the following principle has been laid down:- "So far as the guilt of present two respondents is concerned, with the assistance of the learned counsel, we have also gone through the evidence of all the four eyewitnesses examined by the prosecution, and noticed that not only in their evidence there is element of truthfulness and complete consistency, but they have remained unshaken in cross-examination in very upright and honest manner. These witnesses admittedly have no animosity towards respondents to depose falsely before the trial Court for proving their guilt. Having reached to this conclusion, we have no option, but to set aside the impugned judgment of the Sindh High Court dated 23-8-2001, and to convict both the accused forcommission of offence under section 302(b), P.P.C. As well as under section 7(1) (a) of Anti: Terrorism Act 1997. 25. In short two P. Ws. Though very near to the deceased but are natural. One of them got injured in the incident and the presence of both the eye-witnesses on the spot proved beyond any reasonable doubts. They narrated the occurrence in line with the contents of F.I.R. Their evidence has not been shaken in spite of lengthy cross-examination and the defence has also not proved any ill will for false implication in the case: Both of them identified the accused as culprit at the trial. As there is no option but to believe both eyewitnesses. 26. Medical evidence. The next point for determination is medical evidence. The postmortem examination of. The deceased was conducted by Dr. Muhammad Hanif, who was examined as P.W.4 in the trial, Court. He conducted autopsy on the dead body of deceased on 17-8-2010. In this regard his statement is reproduced below:- "On 17-8-2010, I conducted autopsy on the dead body deceased Iftikhar Salim Advocate son of Shah Jan aged 44 years r/o Basti Ustrana Shumali/Janubi District D.I.Khan and found the following
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injuries:-- 1. FAI entry wound over Rt side forehead above Rt eye brown size 1/4" x 1/4" with blackening. ' An exit wound due to FAI over Lt side neck just below Lt mastoid process, size 1/2" x 1/2" with averted margins. Scalp Skull injured. Membranes, brain injured. ' In my opinion, the cause of death is due to FAI, causing injuries to vital organs i,e, brain and its matter leading to shock and death. ' Probable time between injury and death within 15 minutes. ' Probable time between death and PM 01-1-1/2 hours. ' The postmortem report is Exh.PM/1 which is correct and bears my signature correctly. I endorsed inquest report already Exh.P.W.1/3 and injury sheet is Exh.P.W.1/2. Postmortem report consists of six sheets." ' Similarly, the said doctor examined injured/ complainant Hamidullah and found the following injures:-- "(1) An entry wound dye to FAI over medial and middle 1/3rd of Lt thigh, size 1/4" x 1/4" with ecchymosed skin. (radish colour or skin-throughout thigh). (2) An exist wound due to FAI over epigastrium. (3) An entry wound due to FAI over Rt arm over its past aspect size 1/4" x 1/4" (lower 1/3rd). (4) An exit wound due to FAI over Rt ant: and middle 1/3rd of Rt arm size 1/2" x 1/2". ' Kind of weapon: F.A.I. Nature of injuries: KUO. ' Probable duration of injury: within 1/2 an hour. ' MLC report along with shalwar and qameez blood-stained handed over to police. The medico legal report is Exh.PM which correctly bears my gignature, injury sheet Exh. P . W. 1/1" . 27. Dr. Mehmood Jan Bhittani was examined as P.W.5, who examined accused Akhtar Abbas on 18- 8-2010. His relevant statement is reproduced as below:-- "On 18-8-2010, 1 examined Akhtar Abbas son of Muhammad Shafi caste Baloch r/o Haji Morah village Tehsil and District D.I. Khan and found the following injuries:-- ' F.A. Entry wound on the Lt forearm posterior aspect 1/4" x 1/4" dia,…
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