NAZIR AHMAD vs MUHAMMAD IQBAL and another

ORDER

' CH. IJAZ AHMED, J.---Petitioner seeks leave to appeal against the impugned judgment dated 3-4- 2009 whereby the learned High Court accepted the appeal of the respondent against his conviction.

2. Detailed facts have already been mentioned in para 2 of the impugned judgment and memo of petition. However, necessary facts out of which the present petition arises are that respondent along with his convicted co-accused (Ahmad Ali), acquitted co-accused (Syed Fateh Shah), Abdul Ghafoor and Muhammad alias Mami (Since absconders) were involved in a case F.I.R. No, 150 dated 14-4-2002 which was registered at Police Station Noor Shah, District Sahiwal, under sections 148/460/302/324/337-A(i-ii)/37-F (i-ii)/337-L(ii)/149/109, P.P.C. On the complaint of Nazir Ahmad that on the night between 13/14-4-2002 at about 2-30 a.m. The respondent along with his co- accused formed unlawful assembly and had committed lurking house tres-pass by night into the house of Nazar Muhammad P.W., and committed qatl-e-amd of Waryam deceased by causing him fire-arms injuries and also made murderous assault upon Muhammad Rafiq P.W. And caused injuries to Muhammad Rafique, Bashir Ahmad, Sabir Hussain, Mst.Kausar Bibi, Nazar Muhammad and Noor Muhammad P. Ws. They were asleep in the court yard of their house and electric bulbs were on. At about 2-30 a.m. They woke up on hearing noise from the house of Nazar Muhammad brother-in--law and saw that on the roof of the house of Nazar Muhammad three persons were fighting with Nazar Muhammad. They also came on the roof and grappled with the accused persons. They identified them under the light of electric bulbs in the courtyard and on the roof. At that time they did not know their names and observed in electric light as under:--

(a) one of the accused was of whitish colour, strongly built with smaller height aged about 30/32 years carrying .12-bore gun;

(b) the second was again of whitish colour, smart body aged about 30/35 years armed with iron rod; and

(c) the third one was of taller height, strongly -built aged 30/35 years carrying 120 bore pistol.

' They also inflicted injuries to Muhammad Rafique, Bashir Ahmad, Sabir Hussain, Mst. Kausar Bibi, Nazar Muhammad and Noon Muhammad. In their self-defence the complainant party also inflicted injuries to the accused. On hearing the noise, other persons of the village also attracted to the scene of the occurrence and during scuffle, the accused persons fled away by firing. The contents of the F.I.R. Also reveal that they did not know their names at the time of incident and at the time of submitting the complaint to the police with regard to the incident. They knew their names after identification parade which was conducted after about 24/25' days of the occurrence.

The investigating agency, after completing the legal formalities submitted the challan against the respondent and his co-accused before the competent court. The learned Additional Sessions Judge, Sahiwal, convicted and sentenced Muhammad Iqbal, respondent, along with his convicted co-accused, Ahmad Ali, vide its judgment dated 19-7-2004 as follows:.- Under section 148. P P.C.

' One year's R.I. Each; Under section 302(b)/149, P.P.C. imprisonment for life each, plus a fine of Rs, 50,000 each and in default to further suffer R.I. For five years each; Under section 544-A, Cr.P.C. to pay compensation of Rs, 50,000 each to the legal heirs of the deceased, in default to further suffer R.I. For six months each; Under section 324/140, P.P.C. to under go seven years' R.I. Each for attempting to Commit murder of Muhammad Rafiq and Nazar Muhammad P.Ws.; Under sections 337-A(i), 337-F(l), 337-L(ii), P.P.C. to suffer one year's R.I. Each for causing injuries to Nazar Muhammad and Muhammad Rafiq.

Further to pay Rs, 10,000 each as Daman for causing said injuries, in default to further suffer six months' R.I. Each; on recovery of Daman, the same to be given to the injured Nazar Muhammad and Muhammad .Rafiq, in equal shares.

' Benefit of section 382-B, Cr.P.C. Was extended and all the sentences were ordered to run concurrently.

' Their co-accused Syed Fateh Shah, was however, acquitted of the charge against him and their other co-accused, namely, Muhammad Ali alias Mami and Abdul Ghafoor since have been declared as absconders.

' Respondent (Muhammad Iqbal) being aggrieved filed Criminal Appeal No, 478 of 2004 in the Lahore High Court, Multan Bench, Multan. The learned High Court allowed his appeal and acquitted him from the charge by giving him the benefit of doubt.. Hence the present petition.

3. Learned counsel for the petitioner submits as under:--

(i) The learned High Court had failed to consider The evidence/material on record and acquitted respondent without judicious application of mind.

(ii) Learned High Court had acquitted the respondent by misreading and non-reading of the evidence on record.

(iii) The prosecution had proved the case against the respondent beyond any shadow of doubt, therefore, acquittal was not justified.

(iv) The learned High Court had erred in law to discard the statement of the complainant who stated in his statement that he had placed his hands on the heads of the accused persons and these were the actual culprits who had injured P. Ws. And murdered deceased Waryam.

(v) Witnesses had identified the respondent and his other co-accused in court, therefore, learned High Court had erred in law to discard the statement of the injured witnesses.

(vi) The complainant stated in his statement before the Court that during the incident the accused could not be specifically identified as they have muffled their faces but complainant had observed their features and statures that is why they were subsequently identified by them during the identification parade.

(vii) The identification parade Was conducted in accordance with law by P.W.12 Rai Liaqat Ali, Civil Judge/Judicial Magistrate who had no enmity with the respondent.

(viii) The learned High Court had erred in law to discard the ocular account furnished by the complainant and other witnesses on surmises and conjectures and also erred in law to discard the identification parade which was conducted in accordance with law.

4. We have given our due consideration to the contentions of the learned counsel and perused the record with his able assistance. The learned High Court has come, after reappraisal of evidence, to the conclusion of innocence of respondent while, acquitting him after reappraisal of evidence on record. This Court has laid down parameters regarding interference in the cases of acquittal in Ghulam Sikandar's case (PLD 1985 SC 11). The aforesaid judgment has been re-affirmed by this court in various pronouncements. See Muhammad Iqbal's case (1994 SCM R 1928), Muhammad Rafique's case (2008 SCM R 715) and Farhat Azeem's case (2008 SCM R 1285). We have appreciated the arguments addressed by the learned counsel for the petitioner with care keeping in view the dictum laid down by this Court in the aforesaid judgments. It is an admitted fact that occurrence had taken place at midnight between 13/14-4-2002. It is an admitted fact that names of the respondent and his co-accused were not mentioned in the contents of the F.I.R. Complainant Nazir Ahmed also remains consistent in his statement while appearing before the Court that during the incident the accused could not be specifically identified as they had muffled their faces but their features were observed and they were subsequently identified during the identification parade. It is pertinent to mention here that in the case in hand the test of the identification parade has important value. In case the identification parade was conducted in accordance with law and respondent and his co-accused were identified by the witnesses then this is the basic factor to connect the respondent and his co-accused with the commission of offence. The learned High Court had disbelieved ocular account with cogent reasons. It is an admitted fact that role of accused was not described by the eye-witnesses at the time of identification parade due to which the learned High Court had come to the conclusion after discussing each and every piece of evidence that such type of identification lost its value and is not relied upon as law laid down by this Court in the following judgments:--

(i) Ghulam Rasul's case (1988 SCM R 557)

(ii) Mahmood Ahmed's case (1995 SCM R 127)

(iii) Muhammad Pervez's case (2007 SCM R 670)

' It is pertinent to mention here that it is not clear from entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes, if it was identification of their role, then it should have been specified to complete the picture of the crime and reinforce the case against them for commission of the crime as law laid down by this Court in Khadim Hussain's case (1985 SCM R 721) and affirmed the view taken by the Lahore High Court in Lal Singh's case (51 ILR Lah. 396). It is an admitted fact that identification parade was conducted after 24 days after their arrest and possibility cannot be excluded that the witnesses had seen them. We do not place any reliance on this identification parade. See Machia case (PLD 1975 SC 695) and Lal Pasand's case (PLD 1981 SC 142). Identification in court after considerable delay i,e, after the incident, of a person produced in court cannot satisfy the requirement of law for proving identity of a culprit. See Asghar Ali's case (1992 SCM R 2088) and Sohail Abbas's case (PLD 2001 SC 546). It is admitted fact that accused with muffled faces at midnight committed offence, identification of accused by build and stature is not possible, coupled with the fact that identification of the accused at mid night in electric bulb light is not safe because chances of error in identification has become greatly increased when the identification is based on pandemonium of the moment, therefore, testimony of sense cannot be implicitly relied as the person or persons who select dark hours of the midnight with object to commit crime in such manner would take all possible care to conceal their identity in such cases suspicion also falls on a person who had a reason to do so. See Bashir and others v. The State (1995 SCM R 276). The learned High court was justified to discard the identification evidence which is in consonance as law laid down in Maula Dad's case (AIR 1925 Lah. 426). It is settled principle of law that identification parade of each accused should be held separately otherwise confusion would be created. In the case in hand identification parade was held jointly of all the accused, therefore, learned High Court was justified to set aside the conviction of the respondent which is in consonance as law laid down in Lal Pasand's case (supra). It is an admitted fact that learned High Court admitted that identification parade should have been held according to the prescribed rules. We have also examined the record. Even the learned High Court had admitted in its judgment that the identification parade was not held strictly according to the prescribed rules and it was due to the fact that the Magistrate not properly gone through the prescribed rules and authorities on the subject, therefore the learned High Court was justified to ignore the evidence regarding identification parade. It is the settled proposition of law that the identification parade was conducted fairly and properly and it becomes the duty of the prosecution to adopt such measures so as to eliminate the possibility of identifying witnesses to see the accused after the commission of crime till the identification parade is held immediately after arrest of the accused persons as early as possible as law laid down by this Court in Imran Ashraf's case (2001 SCM R 424). The learned High Court had considered each and every piece of evidence regarding identification and has come to the conclusion that the same was not worth reliable as is evident from paragraphs 8 and 9 of the impugned judgment. The learned High Court has disbelieved the ocular account while discussing each and every piece of evidence as is evident from the paragraphs 7 and 10 of the impugned judgment. It is settled law that injuries of P.W. Are only indication of his presence at the spot but are IG not affirmative proof of his credibility and truth. See Said Ahmed's case (1981 SCM R 795) and Muhammad Pervez's case (2007 SCM R 670). It has time and again been held by this Court that an order of acquittal is to be interfered with only, if the same is arbitrary, capricious, fanciful and against the record. Keeping in view this background, it cannot, by any stretch of the argument, be described that the impugned judgment suffers from any of the aforesaid blemishes.

5. In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment, therefore, the petition has no merit and the same is dismissed. .