MEHMOOD AHMAD and 3 others vs THE STATE and another

' SALEEM AKHTAR, J.---The appellants with leave of this Court have challenged the judgment passed by the learned Judges of the High Court, whereby they have been convicted under section 302/34, P.P.C. For the murder ' of Mian Ejaz Ahmad. Mehmood Alimad and Muhammad Safdar Appellants Nos. 1 and 2 respectively were sentenced to death and a fine of Rs,20,000 each and Nasir Ahmad appellant No, 3 was awarded imprisonment for life and a fine of Rs,10,000. He was also sentenced to R.I. For one year under section 323, P.P.C. Mian Tanvir Iqbal also filed appeal for enhancement of sentence of Nasir Ahmad. Both the appeals will be disposed of by this judgment.

2. According to the F.I.R., on 16-4-1987 at the time of Maghrib prayer Qamaruzzaman the complainant and Ehsanul Haq (not examined) had gone to Kutchery Bazar to fetch medicine. They saw Mian Ejaz Ahmad and Tanvir Iqbal standing on the footpath in front of their office. They stopped the motorcycle and started talking to Mian Ejaz Ahmad. His servant Muhammad Akram was closing the office. The car of Mian Ejaz Ahmad was parked few paces away behind which another car had been parked which was without any driver. Mian Ejaz Ahmad and Tanvir moved towards their car and kept waiting for the driver of the car parked behind their . Car. In the meantime four persons emerged from the side of the hotel adjacent to the office of Mian Corporation and came near Mian Ejaz Ahmad and Tanvir Iqbal. One person who was of wheatish complexion with medium height and young in age, fired at Mian Ejaz Ahmad on the left side near the armpit from a carbine. Mian Ejaz Ahmad fell down. The other person who was also of wheatish colour, slim and smart, young in age and medium in height fired at the head of Mian Ejaz Ahmad with a carbine. Tanvir Iqbal tried to apprehend the accused when another person who was wearing a pant having wheatish complexion, medium height and young in age, fired at Tanvir Iqbal but in the meantime Tanvir had slipped and fallen down. This man wearing pant hit at the head of Tanvir Iqbal with a carbine butt when he had fallen down. He got injured and became unconscious. The fourth man holding a carbine was giving Lalkara. Except the accused who was wearing pant, all the three were wearing Shalwar and Kameez. This incident was witnessed by Abdur Rashid, watch- maker and Master Ehsanul Haq. The complainant claimed in the F.I.R. That he could identify the assailants if brought before him. Mian Ejaz Ahmad died at the spot while Tanvir Iqbal was sent to the hospital in a state of unconsciousness. This F.I.R. Was lodged at 8-00 p.m. While the incident had occurred at about 6-00 p.m.

3. In support of the prosecution case, Qamaruzzaman, Tanvir Iqbal and Abdur Rashid were examined as eye-witnesses. The prosecution also relied upon recovery of empties and carbine, the medical report and the report of the identification parade in which Qamaruzzam had identified all the three accused-appellants. The motive alleged was that there was litigation between the parties in respect of property which is stated to have been settled through a compromise in Court.

However, before the compromise could be implemented, this incident had happened. The learned Judges of the High Court believed the testimony of Qamaruzzaman as an independent and disinterested witness and also relied upon the fact that he had identified all the three appellants.

Further reliance was placed upon the evidence of Abdur Rashid P.W. 9, who is also stated to have seen the incident and the evidence of Tanvir Iqbal, the brother of the deceased. The recovery and medical evidence have also been taken into consideration as corroborative pieces of evidence.

4. Mr. K.MA. Samadani, the learned counsel for the appellants has contended that from the evidence on record, the prosecution has failed to prove that the appellants had committed the murder. He has assailed the testimony of the eye-witnesses contending that Qamaruzzaman is not a truthful witness, Abdur Rashid's testimony suffers from material contradiction and is unreliable and Tanvir Iqbal is an interested witness and his testimony has not been corroborated. On the other hand Mr. Ejaz Batalvi, the learned counsel contended that while appreciating the evidence the first question to be considered is whether in fact the P.Ws saw the occurrence, were they present at the time of incident and in a position to identify the culprits, and as all these ingredients have been established, the impugned judgment should be upheld. The State Counsel has also supported the impugned judgment.

5. The learned counsel for the appellants has criticised the testimony of Qamaruzzaman on the ground that from the facts on record, it is clear that he had been set up by the prosecution and was not present at the time of incident. He has further contended that the testimony suffers from infirmities and cannot be relied upon. According to Qamaruzzaman P.W. 7, he was known to Mian Ejaz Ahmad and had reached the place of incident with Master Ehsanul Haq as they had come to purchase medicine. He is not related to the deceased nor there is any evidence of his being inimical to the appellants. According to the evidence, after the incident he rushed to the police station which is admittedly two furlongs away from the place of incident. He lodged a written complaint before the police at 8 p.m. It has taken two hours to reach the police station which would have hardly taken 15 to 20 minutes to reach there. In the complaint the names of the accused have not been given. Only general descriptions have been given and also the clothes they were wearing.

All these facts show that he did not know the accused by name. However, this is not the only solitary fact which is to be taken into consideration. In fact all the surrounding circumstances and the incident that had happened at that particular moment have to be taken into consideration and appraised and appreciated in a proper perspective manner. One has also to see whether the conduct of the witness has been normal and man of ordinary prudence in such circumstances would possibly behave in such a manner. P.W. 7 has cited Abdur Rashid P.W. 10 as eye-witness, who is a watch-maker and was aware of the names of the accused persons. At the time of incident he was standing on the footpath and must have reached the deceased. It is unthinkable that at that time Abdur Rashid would not have given the names of the accused persons to those who were present at that time nor it is in the fitness of things that Qamaruzzaman, who knew Rashid and claimed not to be aware of the names of the accused without making any inquiry or even talking with persons collected over there including Abdur Rashid about the accused immediately left to lodge the report at the police station. If Qamaruzzam was in post haste to reach the police station immediately and had rushed without talking to Abdur Rashid, then there is no explanation why he reached there at 8 p.m. Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened,

6. Tanvir Iqbal is an injured witness. He is the brother of the deceased and had suffered injuries and got unconscious. In his statement while narrating the incident, he gave out the names of three accused but later on added that a foruth man holding a carbine was also there giving Lalkara. The learned counsel for the appellants contended that no blood-stained clothes were recovered and produced to prove that the minor injuries suffered by him would have bled so profusely as stated by Tanvir Iqbal. This hardly merits any consideration as the medical report suggests that he had suffered injuries on head and back. The significant aspect in his statement is that he first denied to have known Qamaruzzaman and Master Ehsanul Haq although he had given their names in his police statement. Later he admitted that he knew them while Qamaruzzaman had denied to have known Tanvir Iqbal and Mian Ejaz Ahmad. This contradiction in the statement of Tanvir Iqbal reflects his state of mind in which he had been deposing. Such statement does not inspire confidence. The statement of this witness was recorded by the police on the next day of the incident. This has been highlighted by Mr. Samdani to show that all efforts were made to create a vacuum and create gaps and delay during which the accused were named. Delay in recording the statement of Tanvir Iqbal by the police has been explained by the prosecution. It has been pointed out that Tanvir Iqbal was taken to the hospital in an unconscious condition and the police had sought permission from the doctor to examine him at that time. However, the doctor did not allow him stating that his condition was not stable enough to make a statement. In its support the prosecution has produced application written by the Investigating Officer to the Medical Officer seeking permission to record statement of Tanvir. The date and time for making it does not seem to have been given. The permission was given on 17-4-1987. For proving the condition of Tanvir on 16-4-1987 instead of producing medico-legal report which is maintained in a register form, certain reports on plain paper were produced in Court without giving any satisfactory explanation for non- production of the Medico-legal Report Register. Such reports about the condition of the patient which should be entered in a properly bound regular register cannot be taken authentic and creates doubts to its veracity and authenticity. For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness. In the absence of any enmity with the accused, contradiction with other P.Ws.

And there being no reason or occasion to substitute an innocent person for the real culprit, due weight is to be given to the testimony of an injured witness.Belated examination of witnesses by the police may not be fatal to the prosecution but where the delay is unexplained, accused have not been named in the F.I.R. And circumstances justify that the open FIR. And delay has purposely been manoeuvred to name the accused later, such managed delay and gaps adversely affect the prosecution. It may be further mentioned that in the circumstances Tanvir's testimony required corroboration which is lacking. The medical evidence by itself will not establish the identity of the accused.

7. The other relevant evidence is recovery of carbine and empties and the Fire-Arms Examiner's Report, who has given a positive opinion. The recovery of carbine has been challenged. Asif Rashid P.W. 4 has been examined who alongwith Idrees had witnessed the recovery at the instance of Mehmood and Nasir, who had taken the Investigating Officer to their village from where at their pointation the carbines were recovered. Asif Rashid is the brother-in-law of the deceased Mian Ejaz Ahmad and is married to his sister. The other witness Muhammad Idrees (not examined) is also a close relative of the deceased. They had accompanied the police party from the police station to the village of the accused and in their presence recovery was made. Such a recovery is a sham and cannot be accepted as no independent respectable witness from the locality was associated with the recovery proceedings nor there is any explanation from the prosecution that the house of the accused was situated at a deserted place and no person from the locality was available. In these circumstances no reliance can be placed upon such recovery and consequently the report of the Ballistic Expert becomes of no importance.

8. The prosecution also relied upon identification parade in which Qamaruzzaman had identified the appellants. The learned Judges of the High Court have relied upon it as a corroborative piece of evidence. We have examined the record of the identification proceedings and find that it suffers from infirmity and illegality. There were 24 persons mixed with the appellants jointly and it seems that on a query from the Magistrate whether the police had got them identified their answer was in the negative and further that they had come with muffled faces. According to the report Qamaruzzaman was called in, who without any hesitation identified Muhammad Safdar, Mehmood Ahmad and Nasir Ahmad and the identification parade ended. It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witness. In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value. Reference can be made to Khadim Hussain v. The State (1985 SCM R 721), where Shafiur Rahman, J. Observed as follows:-- "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 as 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 Lah.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."

' This view was followed in Ghulam Rasool and 3 others v. The State (1988 SCM R 557).

9. It is, therefore, clear that the proceedings of the identification parade where the appellants were picked up without describing the roles played by them in the crime suffer from illegality and infirmity rendering it completely unreliable having no evidentiary value. Mr. Batalvi contended that as the witness was not asked any question by the Magistrate, he could not have voluntarily stated the role played by the accused. In fact in identification parade except for ascertaining the objection by the accused and that the police had not got accused identified by the witness prior to identification parade, normally no other questions are asked and it is the duty of the witness that while identifying an accused, he may state the role played by him. This procedure becomes more important when there are more than one accused charged of offence attributing specific role played by them in commission of the crime.

10. We, therefore, allow Criminal Appeal No, 220/92. The appellants namely (1) Mahmood Ahmad son of Muhammad Rafiq, (2) Muhammad Safdar son of Muhammad Ishaq and (3) Nasir Ahmad son of Ghulam Mustafa are acquitted of the charges. They shall be set at liberty forthwith if not wanted in any other case. Criminal Appeal No, 221 of 1992 for enhancement of the sentence is hereby dismissed.