SAJEEL-UR-REHMAN Versus State

SARDAR MUHAMMAD ASLAM, J .---This criminal appeal is directed against the judgment dated 18-9-2002 passed by the learned Judge Anti-Terrorism Court, Multan, whereby he convicted the appellant Sajeel-ur-Rehman under section 302(b), P.P.C. and sentenced him to death and to pay compensation of Rs.1,00,000 to the legal heirs of the deceased. In default whereof, he shall further undergo imprisonment for six months. He was also convicted under section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to death with fine of Rs.1,00, 000. In default of payment of fine, he shall further undergo 5 years R.I. in case F.I.R. No.279 dated 1-10-1999 registered under sections 302, 324, 109, 34, P.P.C. read with section 7 of ATA, 1997 at Police Station Multan Cantt. on the allegation that the appellant Sajeel-ur-Rehman with Abdul Waheed accused (since absconder) in furtherance of their common intention with the abetment and conspiracy of Muhammad Khalid and Muhammad Yaqoob accused (since acquitted) while armed with Kalashnikov committed Qatl-e-Amd of Akhtar Hussain and also committed murderous assault on Sabir Hussain by fire-shots.

2. Prosecution did not examine Sabir Hussain injured P.W. as such charge under section 324, P.P.C. has not been proved. The motive behind this occurrence is that the deceased and the appellant belong to opposite sect.

3. The Investigating Officer after completion of investigation submitted the challan before the learned trial Court. Formal charge was framed. The appellant denied the charge and claimed trial. The prosecution produced 15 witnesses including documentary evidence to prove its version.

4. Dr. Muhammad Bakhsh Chawan SMO conducted post-mortem examination on the dead body of deceased and found various injuries on the person of the deceased. In his opinion death has occurred due to massive haemorrhage leading to irreversible shock from sustained injuries which are sufficient to cause death in ordinary course of nature. The probable time between injuries and death was immediate and between death and post-mortem is about 6 and 12 hours.

5. Learned counsel for the appellant contends that the motive is far-fetched; that the P.Ws. were chance witnesses. The medical evidence furnished by P.W.9 Dr. Muhammad Bakhsh Chawan caused serious doubt in the prosecution case and that the ocular account furnished by P.W.2 and P.W.3 does not bring home the guilt of the accused.

6. On the other hand, learned Special Public Prosecutor supported the judgment and submitted that the recovery was effected from the person of the appellant. There was no earthly reason for the police to falsely implicate the appellant and that appellant was correctly identified in identification parade. He further adds that the ocular account so furnished find full corroboration from the medical evidence and that the motive stood fully proved. It was submitted that the F.I.R. was promptly lodged at the police station.

7. We have considered the contentions of the learned counsel for the parties, perused the record and the impugned judgment.

8. At the very outset it has been noticed by us in the statement of P.W.9 Dr. Muhammad Bakhsh Chawan who conducted post-mortem examination and observed 18 fire-arm wounds on the person of deceased. All the wounds were described to be cleaned, washed and stitched, which are as under:--

(1) Fire-arm wound 1 cm with one stitch on outer side of right eye-brow.

(2) Fire-arm wound 1-1/2 cm with 1 stitch below right chin.

(3) Fire-arm wound 4 cm with two stitches on medial side of right upper fore arm.

(4) Fire-arm wound 7 cm with 6 stitches on medial side of right hand.

(5) Fire-arm wound 15 cm with 10 stitches on front and medial side of left upper arm.

(6) Fire-arm wound 1 cm with 1 stitch on outer side of left elbow.

(7) Multiple fire-arm wound on the area of 15 cm x 6 cm with 20 stitches on medial side of left lower fore-arm.

(8) Fire-arm wound 1-1/2 cm with 1 stitch just above medial end of right clavicle.

(9) Fire-arm wound 1 cm with 1 stitch on right front chest 7 cm lateral to the nipple.

(10) Fire-arm wound 1-1/2 cm with 1 stitch 2 cm above and lateral to right nipple.

(11) Fire-arm wound 3-1/2 cm with 2 stitches on the right nipple.

(12) Fire-arm wound 4 cm with 3 stitches on front of chest 11 cm medial to left nipple.

(13) Fire-arm wound 3 cm with 3 stitches on left latral chest 20 cm below and latral to the left nipple.

(14) Fire-arm wound 2 cm with 3 stitches 5 cm below to injury No.13.

(15) Fire-arm wound 1 cm with 1 stitch on left lumber region 29 cm latral to umblicous.

(16) Fire-arm wound 1 cm with 1 stitch 6 cm below injury No.15.

(17) Fire-arm wound 1 cm with one stitch on left front abdomen 2 cm below and latral to unblicous.

(18) Fire-arm wound 5 cm with 3 stitches on right outer buttock.

9. In cross-examination P.W.9 conceded that he received the dead body washed and stitched. It was neither washed nor stitched in his presence. He stated that there is a possibility that death of the deceased has occurred at 2-30/3-00 a.m. The question which has disturbed us much as to who washed and stitched the dead body. The prosecution evidence is silent on this count. The learned Public Prosecutor could not explain except toeing the lines adopted by the learned counsel for the complainant in his arguments before the learned trial Court contending that the Shia Community became furious and had declined the examination of the deceased. According to him, for this reason the wounds may have been stitched by the doctor for the burial purposes. There is no evidence even to this effect. Neither P.W.2 nor P.W.3 to whom the deceased was closely related stated of any furious situation not allowing the post-mortem examination and stitching of the dead body for burial purposes. The findings of the learned trial Court is based on conjectures. The prosecution case is that the Investigating Officer reached at the spot at about 7-15 a.m. morning and after preparing the inquest report sent the dead body directly to the mortuary where the post-mortem was conducted by 2-30 p.m. It is manifest that someone else managed the injured/deceased. It appears that the deceased on receipt of fire-arm injuries was removed to the hospital or to some private clinic where he was treated by a Medical Officer. His wounds were washed, cleaned and stitched. No stitching was expected on the dead body. Withholding of such an evidence by the prosecution causes a serious dent to its veracity and casts serious doubt on its truthfulness. We entertain doubt in our minds to accept the prosecution version on this score and hold that medical evidence does not give the true account of the injuries and is not rendering corroboration to the ocular account.

10. The recoveries of the crime weapon Exh.P.6 was disbelieved by the learned trial Court in view of negative report (Exh.P.O.) of the Forensic Expert. The recovery was thus inconsequential.

11. As for motive part of the prosecution case is concerned, the learned trial Court believed it. It was held that Akhtar Hussain deceased was Shia by faith and used to take active part in the activities. Support was sought from P.W.3, who stated murder of his uncle by the terrorists. The learned trial Court held that religious affiliation of Sajeel-ur-Rehman appellant was not a secret affair. We have not been able to subscribe to the above view of the learned trial Court for the reason, firstly; that there is no evidence whatsoever to establish appellant's connection with the religious organizations. Mere affiliation of the deceased with Shia sect without any positive contribution by him to the activities of the Shia sect will not harbour any grudge in the mind of the accused. The findings of the learned trial Court on its aspect is without basis and evidence available on record. We safely conclude that prosecution has failed to prove motive against the appellant.

12. As to ocular account the prosecution relied on the statements of Ahsan Raza P.W.3 and Muhammad Younas P.W.2. The F.I.R. was lodged by P.W.3. He gave description of the appellant and his co-accused by features. The features given in the F.I.R. of the two assailants are as under:--

(i) The assailant driving the motorcycle was of wheatish colour having mostaches, slim body, age about 21/22 years;

(ii) Sitting on the rear seat, with small beard, medium height, wheathish colour and heavy body.

13. The assailant sitting on the rear seat of the motorcycle had allegedly caused the fire-arm injury while the other was on the driving seat of the motorcycle and kept it in start condition. P.W.3 in cross-examination has admitted of having recorded the features of the accused. P.W.2 Muhammad Younas described the features of the appellant Sajeel-ur-Rehman in Court describing him of a fair complexion. He stated that the whole occurrence took place within half a minute rendering it impossible for him to give features of the accused. We have adverted to the "slip Saza". It contains the features of the appellant as under:--

14. The features mentioned of a person driving the motorcycle in the F.I.R. and in slip Saza are the same but in evidence P.W.2 and P.W.3 made a summer-sault and described that the appellant caused the fatal shots to the deceased with kalashnikov. This is a deliberate attempt of the prosecution witnesses to substitute the appellant for co-accused mentioned in the F.I.R. occupying the rear seat of the bike. The ocular account furnished by these witnesses is not trustworthy.

15. This can be examined from another angle. The occurrence took place after Fajar prayer. P.Ws. saw the assailants as well as his co-accused on motorcyle from a distance of 15 yards. He saw the assailants while coming out of the shop after having fired with Kalashnikov. The P.W. may not have been able to identify the assailants from a distance of 15 yards in the earlier hours of the morning. P.W.2 concedes that occurrence was over within half a minute and he could not give exact features of the accused. He stated that the appellant is a person of fair complexion. P.W.3 in his own statement as well as in his narration in F.I.R. stated appellant to be of wheatish colour. The variation in the statement makes them unreliable.

16. Both the witnesses are residents of Suraj Miani a village located at a distance of 5 K.Ms. It was argued on appellant's behalf that they were the chance witnesses and had no occasion to be present there. P.W.2 and P.W.3 claimed their presence at the relevant time due to a marriage ceremony of a close relation in Suraj Miani. All the family members were in the village on that night. These P.Ws. accompanied the deceased to help him. Apparently this stand has no legs. P.Ws. have their own business and vocation in the village. Their presence at the spot was not possible particularly when other members of the family were in the village rejoining the marriage ceremony. In this context, reliance can be placed on Imran Ashraf and 7 others v. The State (2001 SCMR 424). Court has to seek strong corroboration to the statement of a chance witness.

17. The prosecution also relied on identification parade. It was conducted by P.W.8 Muhammad Arif Zia, Assistant District Officer (Revenue) Multan . The appellant was formally arrested on 26-11-1999 while in custody with Police Station Gulgasht, Multan , in another case. The Investigating Officer P.W.15, deputed Allah Wasya A.S.-I. to secure identification parade of the appellant. The Investigating Officer P.W.15 stated that he arrested the appellant on the information of his companion Ghulam Shabbir, and in view of his description given in the F.I.R. Ghulam Shabbir statedly disclosed this fact to him on 15-11-1999 . Allah Wasaya A.S.-I. was not examined by the prosecution. P.W.8 the Magistrate who conducted the identification parade deposed that on 29-11-1999 he conducted the identification parade where P.W.2 and P.W.3 and given up P.W. Touqeer Hussain correctly identified the appellant. He conceded in cross-examination that all the participants have some resemblance with each other but not all. He also conceded that dresses of the three accused and rest of dummies were different to each other. He also admitted that none of the witnesses gave any role of the accused in the occurrence. He did not record any visible mark of identification of the appellant. He stated that on his question to the appellant for having any objection to the identification parade, it was stated by him that in police custody he was shown to the witnesses. It was stated that his photographs were also taken at the police station and shown to the witnesses.

18. The identification parade is conducted in accordance with rule 26.7, 26.32 and rule 27.25 (Vol.III) of the Police Rules, 1934. In order to ensure the sanctity of the proceedings to be conducted above suspicion, it is essential that the rules and the principle governing the holding of identification test parade should be strictly followed. Identification parade should be adhered to its true sense. Necessary precautions to be adopted by a police officer, who effect the arrest of the accused in order to conceal his identification on his removal from one place to another, so that he may not be seen by any witness before the identification parade. Police Officer should get face of such an accused covered. The lock-up where he is kept should be covered with a courtain so that his face may not be visible to the onlooker. While being taken to Court or jail his face should also be covered. Observance of these precautions should find mention in the official record of the police and the jail register which should be produced in Court. In absence of adoption of such a procedure the proceedings of identification parade will lose its significance.

19. Appellant was completely stranger to the P.Ws. P.W.3 had a fleeting glimps of the accused. P.W.8 in his statement deposed that P.Ws. when called in, without any hesitation, identified the appellant, straightaway. Admittedly, he was not identified by his role in the crime. The P.Ws. have not stated to Magistrate the role attributed to the appellant at the time of commission of crime. On a question by P.W.8, it was replied by them that they were not in position to state the role of the appellant. In this respect reliance can be placed on case of Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127) wherein it was held:--

"It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v. Crown ILR 51 Lahore 396 in following words:--

The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."

20. In case of Alim v. The State (PLD 1967 SC 307) it was held by Hon'ble Supreme Court of Pakistan "Murder-Identification of accused-witnesses, in particular circumstances of case, at best had only a fleeting look at assailant-variation in statements made before committing Court and those recorded at trial on point of identification unsafe to put reliance on such statements."

The instant case is exactly identical.

21. Article 22 of Qanun-e-Shahadat Order, 1984 deals with identification parade. Under instruction (4) of the Article the Magistrate is required to adopt precautionary measures:--

(4) Duty of the Magistrate to record precautions taken and to note other points .---The Magistrate should state----

(a) what precautions he has taken to ensure--

(i) that the witnesses do not see the person to be identified by them before the identification proceedings commence;

(ii) that no communication which would facilitate identification is made to any witness who is awaiting his turn to identify, and

(iii) that after making identification the witnesses do not communicate with other witnesses who have yet to do so;

(b) whether the person to be identified is handcuffed or is wearing fetters; and if so, whether or not other persons taking parts in the parade are handcuffed or are wearing fetters and also whether or not they are inmates of the jail."

22. It is a golden rule that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of the worst enemy, of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought. Reliance can be placed on the case-law in Haroon alias Harooni v. The State (1995 SCMR 1627).

23. After examining the case from all angles, we are of the considered view that the prosecution has failed to produce trustworthy and confidence-inspiring evidence against the appellant. The charge has not been proved against the appellant beyond reasonable doubt. Doubt arising in respect of one fact or circumstance is enough to discard the prosecution case as a whole.

24. For what has been discussed above, we allow this appeal, set-aside the conviction of the appellant and acquit him of the charge. He shall be released forthwith, if not required in any other criminal case.

N.H.Q./S-278/L Appeal allowed.