WAJID UMAR Versus STATE

JUSTICE SH. MUHAMMAD ZUBAIR (MEMBER). --- The present appeal calls in question the legality and propriety of the judgment dated 23-7-1992, passed by Mr. Justice (Rtd.) Malik Gulbaz Khan, Judge, Special Court for Speedy Trials No.II, Lahore, whereby the appellant was convicted and sentenced as follows:--

(i) Under section 17(4) of Offences Death as Hadd

Against Property (Enforcement of

Hudood) Ordinance, 1979, read with section 34, P.P.C.

(ii) Under section 302/34, P.P.C. on six Death on each count (i.e. counts. six times) as Qisas.

(iii) Under section 324, P.P.C. read with Itlaf-i-Salahiyyat-i-udw as section 336/34, P.P.C. for Qisas and if Qisas is not murderous assault on Liaqat Ali, executable, then 10 years'

Constable. (Resulting in the R.I. as Tazir. functioning of his right leg being permanently impaired).

(iv) Under section 324/34, P.P.C. for Ten years' R.I. and a fine murderous assault on Riaz of Rs.10,000 or in default

Mahmood P.W. further R.I. for two years.

(v) Under section 353/34, P.P.C. Two years' R.I.

It was further directed that death sentence of the appellant shall not be executed unless confirmed by the Supreme Appellate Court.

2. The prosecution version in respect of the offence stated above, briefly stated, is as follows:--

. On the fateful, day i.e. 28-7-1991 at about 10-00 a.m. Nisar Cashier received a cash of Rs.4,00,000 (new notes) from Muslim Commercial Bank, Shah Alam Market and left the Bank in Cash Van alongwith Muhammad Shafi, Driver, Sardar Muhammad and Sabir Gunmen. They were being escorted by Sikandar Ali, Niaz Ali, Niaz Ahmad, Constable and Liaquat Ali, Constable in the Escort Car. When the Cash Van and Escort Car reached Kissan Street near Kissan Building, two persons emerged all of a sudden armed with fire-arm and they opened, fire indiscriminately. As a result of firing, all the four occupants of Cash Van, namely, Muhammad Shafi, Driver, Nisar, Cashier, Sardar Muhammad and Sabir Hussain, Gunmen died in the Cash Van while Niaz died in the Escort Car and Liaquat Ali, Constable received fire-shot injuries. The two persons after committing murders looted cash from the van and ran away. They had encountered with the police at the junction of Street No.9 and 11, Ram Gali, which was near Kissan Street. There was cross-firing between the robbers and police party as a result of which Iftikhar Ahmad, Constable died and Riaz Mahmood, S.I. (P.W.26) received fire-shot injury. Due to this encounter, the two robbers left behind five bags containing cash of Rs.35,48,000 and fled away from the spot. Muhammad Rafiq (P.W.27) entered Ram Gali from the side of Brandreth Road on his Motor-cycle No.2936/LOB Yamaha 100 CC of red colour. When he reached Valeema House one of the two robbers fired shot at him with Klashnikov and the shots hit close to the front wheel of motor-cycle. That robber pointed Klashnikov towards Muhammad Rafiq P.W. and told him to get down. Muhammad Rafiq P.W. got down from the motor-cycle and that robber rode away towards Brandreth Road. One of the two robbers had placed Klashnikov on his thighs while travelling on motor-cycle and this Klashnikov fell down from the thighs near Ghausia Traders, Dil Muhammad Road, Lahore, which was picked up by Muhammad Iqbal P.W.22. The two robbers succeeded in running away. Mian Muhammad Arshad, Manager, Muslim Commercial Bank, Circular Road, informed Muhammad Ayub Agha (P.W.24) Manager, Muslim Commercial Bank, Shah Alam Market on telephone that his cash had been robbed of at about 1-30 p.m. On receipt of this information, Muhammad Ayub Agha P.W. reached Kissan Street. He found bullet holes on the cash van and escort car. He noted the wind screen and other glasses of cash van and escort car smashed. Before his arrival, the deceased and the injured had been removed to the hospital. Muhammad Rafiq P.W. informed Muhammad Ayub Agha, P.W. about the robbery of his motor-cycle. Muhammad Ayub Agha P.W. learnt about the encounter between the robbers and the police employees. He further learnt that the robbers had left behind cash valued Rs.35,48,000. Muhammad Ayub Agha P.W. made statement Exh.P.U. at Crown Bus Stand before Muhammad Ashraf Zahid, Inspector/S.H.O., Police Station Naulakha, Lahore, (P.W.30) which was completed at 1-45 p.m. This statement was sent to Police Station Naulakha, where formal F.I.R. Exh.P.U./1 was recorded by Moazzam Ali Shah, S.I. (P.W.14).

3. The investigation in this case was conducted by Muhammad Ashraf Zahid, Inspector (P.W.30). He alongwith Muhammad Ayub Agha (P.W.24) and Muhammad Rafiq (P.W.27) reached Kissan Street, where murders had been committed. The 1.0. recovered .12 bore gun P.13 and Bandolier containing il cartridges P.14/-11, .12 bore gun P.15 and bandolier P.16 containing 13 cartridges P.16/1-13 from Suzuki Van vide memo. Exh.P.JJ./5. He recovered blood of Nisar, Muhammad Sabir, Sardar Muhammad and Muhammad Shafi deceased from Cash Van vide memo. EXhS.P.JJ./1 to PJJ./4. He took into possession cash van vide memo. Exh.P.JJ. The Inspector recovered M.P. 5 P.17 containing 25 bullets in the magazine P.17/1-25, one semi-automatic rifle P.18, ten bullets and a charger P.18/1-10 from the spot vide memo. P.KK/3. He recovered blood of Niaz deceased from the Escort Car vide memo. Exh.P.KK/1. He recovered blood of Liaquat P.W. from the Escort Car vide memo. Exh.P.KK/2. He took into possession Escort Car vide memo. Exh.P.KK. He recovered 24 empties of Klashnikov P.19/-124, nine empties of .30 bore P.20/1-10 and three empties of MP.5 P.21/1-3 vide memo. Exh.PIL. The Inspector then reached the junction of Ram Gali No.9 and 11 and recovered blood of lftikhar deceased vide memo. Exh.F.MM. He recovered five cash bags from this place containing Rs.35,48,000 vide memo. Exh.P.QQ. The accused had left behind canvas Bag P.22 containing two magazines of Klashnikov P.25, P.26, 20 bullets of Klashnikov P.27/1-20, one Chaddar P.24, one handkerchief P.30, one hammer~P.23 and a nylon bag P.31. These articles were taken into possession vide memo. Exh.P.NN. From there the S.H.O. reached Ram Gali No.2, near Valeema House and prepared rough plan Exh.P.UU. of the place from where motor-cycle of Muhammad Rafiq P.W. was snatched. Thereafter, the S.H.O. reached Dil Muhammad Road, near Ghausia Traders. Muhammad Iqbal P.W. produced Klashnikov P.28, which contained three bullets P.28/1-3. These articles were taken into possession vide memo. Exh.P.II. The S.H.O. then reached Mayo Hospital, where he was given death certificates Exhs.P.VV., P.VV./1 to P.VV./5 of the six deceased. Thereafter, the S.H.O. prepared the injury statements and inquests reports with respect to the dead bodies of the deceased and sent the dead bodies for post-mortem examination. The S.H.O. received information about the presence of motor-cycle, which had been snatched from Muhammad Rafiq P.W. He reached McLeod Road near Al-Shams Hotel and took into possession motor-cycle vide memo. Exh.P.GG. Muhammad Aslam, Constable produced before the S.H.O. the last-worn clothes of the deceased and other articles, which were taken into possession through separate parcels.

4. On 21-9-1991, Muhammad Ashraf Zahid, Inspector/S.H.O. received information that the appellant had been arrested by Sadar Kasur Police and was sent to jail on 16-9-1991. The S.H.O. moved an application for holding the identification parade of the appellant. The identification parade was held in District Jail, Kasur, on 24-9-1991. In the said identification parade, Muhammad Rafique, Mushtaq and Riaz Mahmood P.Ws. correctly identified the appellant whereas Sikandar Ali Shah P.W. failed to identify him. This identification parade was supervised by Mumtaz Ahmad Chaudhary, M.I.C., Kasur. Again the S.H.O. moved an application for identification of the appellant by Liaqat Ali injured Constable. The identification parade was held in Kasur Jail on 8-10-1991, under the supervision of Riaz Mahmood Khan, M.I.C., Kasur, wherein Liaquat Ali correctly identified the appellant. The S.H.O. then formally arrested the appellant on 9-10-1991 and brought him to Lahore. He obtained warrants of arrest of Salah-ud-Din co-accused of the appellant as the warrants could not be executed; hence Salah-ud-Din was declared proclaimed offender. After completing legal formalities the S.H.O. submitted the challan against the appellant in the Court.

5. Dr. Mahfooz Ahmad conducted post-mortem examination on the dead bodies of Niaz Ahmad and Sabir Hussain deceased on 28-7-1991 and found five and eight injuries respectively, thereon, caused by fire-arm.

The same day Dr. Hafeez-ur-Rehman conducted post-mortem examination on the dead body of Nisar Ahmad deceased and found ten injuries thereon caused by fire-arm.

Dr. Mian Abdul Rashid P.W.3 conducted post-mortem examination on the dead bodies of Muhammad Shafi, Iftikhar Ahmad, Constable and Sardar Muhammad on 28-7-1991 and found seven, two and five injuries, respectively, thereon, caused by fire-arm.

Liaquat Ali P.W.25 was medically examined by Doctor Aftab Younus, who noticed five injuries on his person caused by fire-arm.

6. The appellant when examined under section 342, Cr.P.C. denied the prosecution allegations and filed detailed written .reply explaining the allegations against him. He stated that cases F.I.R. Nos.134 and 367 had been falsely registered against him at the behest of Rana Maqbool Ahmad, D.I.-G., Ldhore. In other cases, he is not named, but has been falsely involved due to his enmity with the said D.I.-G.

The appellant produced fourteen witnesses in his defence, whereas Sikandar Ali Shah, Driver of Suzuki Car belonging to Muslim Commercial Bank, Circular Road, Lahore, was examined as C.W.1.

7. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellant, as indicated above.

8. The learned counsel for the appellant vigorously urged that the appellant was not known to the prosecution witnesses prior to this incident, as the occurrence took place all of a sudden, the witnesses could not properly identify the real assailants and the appellant has been made a scapegoat in this case at the behest of Rana Maqbool Ahmad, D.I.-G., Lahore, who had personal grudge against the appellant and his father, a practising Advocate. The Magistrate who conducted the identification parade in the jail, did not observe the instructions as laid down in Punjab Government Letter No.6091-J 36/39829 (H-Judl.), dated 19th December, 1936 and also did not follow Rule 26.32 of Punjab Police Rules. This has caused prejudice to the defence. Apart from pointing out various infirmities appearing in the evidence of the witnesses, learned counsel has vehemently submitted that it is a case of dishonest and partial investigation, in which all the police personnel, whether eye-witnesses or Investigating Officer, have told lie, as is apparent from the statement of Riaz Mahmood, S.H.O. Police Station Akbari Gate, Lahore, (P.W.26) and Liaquat Ali, F.C. (P.W.25) with respect to the presence of Iftikhar Ahmad; F.C. deceased at the spot. According to Liaquat Ali P.W., Iftikhar Ahmad deceased was with him in the - Escort Car; whereas Riaz Mahmood P.W.26 deposed in the Court that he was with him on patrol duty when he met his death. Learned counsel has further urged that presence of Riaz Mahmood P.W. has not been established at the spot from the evidence brought on the record.

9. The learned counsel for the State submitted, as the occurrence took place in the broad daylight, the eye-witnesses were in a position to correctly identify the appellant. They had no obstensible reason to falsely implicate the appellant in this case, especially when there is no enmity between the appellant and the eye-witnesses. The F.I.R. was lodged promptly and description of the appellant was given therein, on the basis of which, he was later on correctly recognized by the eye-witnesses in the identification parade held in Kasur Jail under the supervision of two Magistrates.

10. We have gone through the entire record carefully and have also examined critically the respective submissions of the parties.

The time and place of occurrence is not disputed. The sole question which requires consideration of this Court is, whether in the given circumstances, the eye-witnesses, if present at the spot, were in a position to correctly recognize the real culprits. The presence of Riaz Mahmood P.W.26 at the spot is of dubious character. Learned State counsel asserted that by virtue of injury which the witness bore on, his person, his presence at the spot has been established. We are afraid, this argument of the learned counsel is devoid of force, because he received insignificant injury on his person, which was neither mentioned in his statement under section 161, Cr.P.C. nor he was sent by the Investigating Officer to the doctor for medical examination. He was examined by Dr. Aftab Younus as a private patient immediately after the occurrence i.e. at 1-51 p.m. which makes the prosecution version unbelievable, because he remained with the Investigating Officer, as per his own admission, for a considerable time.

Mushtaq Ahmad F.C. (P.W.28), neither gave the description of the culprits in his statement under section 161, Cr.P.C. nor he deposed about the features of the alleged accused before the Court. In these circumstances, how he was able to correctly identify the appellant in the identification parade, held in Kasur Jail, remained shrouded in mystery. This fact, by itself, is sufficient to give support to the defence version that the police showed the appellant to this witness before the identification parade. The evidence of this witness that he correctly recognized the appellant in the identification parade is of no avail to .the prosecution.

11. After discarding the evidence of these two witnesses, we are left with the evidence of Liaquat Ali P.W.25 and Muhammad Rafique P.W.27. The presence of these two eye-witnesses, even if accepted, would not lead to this inference that they were in a position to correctly. recognize the culprits in an incident, which took place all of a sudden, though in the day time, in which they were taken by surprise.. According to the statement of Muhammad Rafiqu'e P.W. recorded under section 161, Cr.P.C. the accused was aged 20/22 years, slim and of wheatish colour, whereas Riaz Mahmood P.W. deposed in the Court: "Wajid Umar accused is stoutly built". He also admitted that Wajid Umar appellant has a prominent scar mark on his head. In the presence of this evidence, the description of the accused given by Muhammad Rafique P.W.27 loses its sanctity and it would be dangerous to rely upon his uncorroborated testimony. There is no corroborative piece of evidence available on the record, which could connect the appellant with the crime. The star witness of the prosecution in this case is Liaquat Ali, F.C. (P.W.25), who admittedly received the injury in the transaction. Mere presence of this witness at the spot, would not ensure that he was in a position to correctly recognize the assailant, in an incident which took place all of a sudden and came to an end within a few minutes. This witness initially was not in a position to correctly identify the appellant in the test identification parade conducted by Riaz Ahmad Khan, M.I.C. (P.W.7) in the Kasur Jail. In cross-examination, Riaz Ahmad Khan, P.W.. conceded that Liaquat Ali P.W. was not in a position to recognize the appellant, when the appellant had covered the prominent scar mark on his forehead, which leads to this conclusion that he was a tutored witness of the prosecution and had information from the police beforehand that he can recognize the appellant on the basis of visible scar which he has on his forehead. In the presence of this infirmity, his evidence on the point of identification of the appellant before Riaz Ahmad Khan P.W. loses its value; hence not worth believing.

12. The Magistrate under the instructions issued by the Punjab Government, referred to above, was bound to prepare a list of persons including the accused, who form part of the parade. In the present case, neither this list was prepared, nor the description of the persons who were mixed up with the suspect is on the file of the identification parade. According to the police rules, it is required that the suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect. This formality too was not I observe, because the appellant was mixed with only six persons; hence the conviction of the appellant cannot be maintained on the basis of this illegal identification which has materially prejudiced his defence.

13. The upshot of the above discussion is that the prosecution has 1 miserably failed to prove the guilt of the appellant beyond reasonable doubt; k hence this appeal is accepted, convictions and sentences of the appellant are set aside and he is acquitted-of the .charges against him. He shall be set at I liberty forthwith, provided he is not required to be detained in any other case.

N.H.Q./112/SAC Appeal accepted.