2011 SCMR 769
2011 SCMR 769
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD AYAZ and others---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No. 365 of 2007, decided on 15th February, 2011.
(Against the judgment dated 12-12-2006 passed by Lahore High Court Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 47-T of 2004 and Murder Reference No. 9-T of 2004).
Anti-Terrorism Act (XXVII of 1997)---
----S. 7 (a)---Qanun-e-Shahadat (10 of 1984), Art. 22---High Court (Lahore) Rules and Orders, Vol. III, Part-C, Chap.11---Terrorism---Appreciation of evidence---Identification parade---Principles---Details of dummies---Benefit of doubt---Description of accused, non-mentioning of---Accused were convicted by Trial Court under S. 7(a) of Anti-Terrorism Act, 1997, and were sentenced to death on four counts---Validity---Availability of heavy layer of smoke caused by two strong explosions between prosecution witnesses on one side of place of explosions and accused on the other and finally chaos, panic and pandemonium resulting from explosions and vague and general kind of description of three accused given through F.I.R., made possibility of prosecution witnesses having registered faces and identity of accused open to serious exception and to the resultant doubts---Absence of complete description of dummies at test identification parade without their addresses, their occupation and without any clue whether they were fellow prisoners or outsiders; admitted dis-similarities in height, physique, features, complexion, appearance and dress of dummies and accused persons; absence of any information whether accused persons and dummies were similar in matters of beards or being clean-shaven; absence of disclosure by prosecution about actual date of arrest of three accused persons; declared involvement of three accused in another case and possibility of accused having remained in police custody on account of that another case prior to identification; absence of any finding and decision by Magistrate supervising identification parade contradicting admitted assertion of accused persons being in fetters at the time of identification; mere alleged pointation of three accused persons by three prosecution witnesses without disclosing connection in which they had been identified or role which each or anyone of them had played in the occurrence; non-sealing of report of identification proceedings and other relevant documents after report had been finalized on the day of test identification and providing copy of the same to Investigating Officer before sealing the same on next day; four sheets of identification report being of a kind different from last two sheets of report, were the kind of infirmities in actual proceedings leading to test identification of accused persons which would render the exercise also open to serious doubts---Entire fate of prosecution case hinged exclusively on identification of accused persons by three alleged eye-witnesses---Finding of guilt recorded against three accused was not sustainable in view of established legal principles regulating the subject---Conviction and sentence awarded to accused by Trial Court and maintained by High Court were set aside and all accused were acquitted of the charge---Appeal was allowed.?
Imran Ashraf and 7 others v. The State 2001 SCMR 424; Khadim Hussain v. The State 1985 SCMR 721; Lal Singh v. The Crown ILR 51 Lah. 396; Qurban and another v. The State 1994 PCr.LJ 150 and Ghulam Rasul and 3 others v. The State 1988 SCMR 557 rel.
M. Asghar Rokhari, Advocate Supreme Court for Appellants.
M. Irfan Malik, Additional P.-G. for the State.
Mushtaq Sukhera, Additional I.G.P. (CID) on Court's Notice.
Dates of hearings: 22nd to 24th December, 2010.
JUDGMENT
KHALIL-UR-REHMAN RAMDAY, J.---In a walled and a gated premises situated on Faisal Rashid Road within the jurisdiction of Police Station Taxila of District Rawalpindi, is located the Mission Hospital run by the Christian Community where they have also established a church for their worship. At about 7-45 a.m. on 9-8-2002 when it was allegedly raining more than heavily, two hand-grenades landed near the said church which, on exploding, witnessed the death of four females and injuries to at least 23/24 males and females.
2. Lodging an F.I.R. at the said police station about two hours later, one Salamat Masih who was a security guard deployed at the hospital gate, alleged that three young men each one of whom was about 25/26 years of age, entered the said hospital; one of the said three accused persons who was of a medium height put the complainant and Eirick Masih (given-up P.W.) on gun-point while the other two went towards the church and on reaching near which church each of those two threw one hand-grenade each; that the said hand-grenades fell on the foot path near the said church-and exploded which explosion then caused the above noticed loss of lives and injuries to various persons. Salamat complainant had added that the injured persons started raising hue and cry who were joined by him, Eirick Masih (given-up P.W.) and others at which the said accused persons ran out of the premises through its main gate. The complainant had further disclosed that one of the accused persons who had thrown one of the two hand-grenades was found lying dead on the foot path (of Faisal Shaheed Road) outside the said hospital and one live hand grenade was lying under his dead body. He had further claimed that he and the said Eirick Masih could identify the accused persons if they ever came across them. He had further reported that the injured persons were being treated in the Mission Hospital while one of the injured ladies by the name of Elshabbi had succumbed to the injuries received by her.
3. As a result of the investigation which ensued, six persons, namely, Ayaz, Saif, Abubakkar, Sabir, Taufiq and Asif were put to trial before a Special Court (Anti-Terrorism) at Rawalpindi which Court through its judgment dated 22-1-2004 acquitted Sabir, Taufiq and Asif accused but found Saif-ur-Rehman, Ayyaz and Abubakkr accused guilty of the charge under section 7(a) of the Anti-Terrorism Act of 1997 as a result whereof each one of them was punished with death on four counts. They were also found guilty of causing bodily harm to eight of the 23/24 injured persons because it were only these eight injured persons who had entered the witness-box at the trial and consequently convicting the said three convicts accordingly, directed each one of them to suffer, inter alia, sentences of imprisonment for life on eight counts which sentences of imprisonment-were, however, directed to run concurrently with each other.
4. The said three convicts approached the Rawalpindi Bench of the Lahore High Court through
Criminal Appeal No.247/T of 2004 questioning the said conviction and punishments recorded against them which appeal was dismissed through a judgment dated 12-12-2006 as a consequence whereof the sentences of death awarded to the said three convicts, were confirmed.
5. This then brought the said three convicts to this Court through Criminal Petition No. 16 of 2007 which petition was allowed through an order dated 24-9-2007 granting leave to the said three convicts. Hence this appeal.
6. We have heard the learned counsel for the parties at some length and have also perused the record with their able assistance.
7. Nine P.Ws. appeared at the trial who claimed to have witnessed the occurrence in question. Minus Salamat complainant, the other eye-witnesses had allegedly even received injuries as a result of the alleged explosions. Six out of these eight injured persons who were all females, namely, Mst. Paskal (P.W.9), Mst. Shamim (P.W.10); Mst. Anila (P.W.11), Mst. Shazia (P.W.12), Mst. Nasreen (P.W.13) and Mst. Gulzar (P.W.14) declared that they had not seen the ones who had thrown the grenades in question and their testimony was thus of no real assistance to the prosecution in establishing the guilt of the accused persons. It was only the remaining three eye-witnesses, namely, Salamat Masih complainant and the two allegedly injured P.Ws., namely, Mushtaq and Fayyaz who claimed to have seen the culprits; to have identified them at the time of occurrence and who then, allegedly, also identified the appellants at the test identification parade.
8. The prosecution case thus depends and rests mainly and essentially on the identification of the perpetrators of this dastardly crime by the P.Ws. offered for the purpose at the trial. What would, therefore, have to be examined and determined would be firstly whether in the given situation and circumstances prevailing at the time of occurrence, the said three P.Ws. could have noticed the culprits and could have registered their identity to the extent that they could have subsequently identified them at the test identification parade and secondly whether the said identification parade, in pursuance whereof the said three P.Ws. had allegedly identified the three appellants, was a valid and a reliable exercise sufficient to establish that the three appellants were the ones who were guilty of the commission of the crime in question.
9. According to the F.I.R. and even according to the other eye-witnesses, it was raining rather heavily (raining cats and dogs according to some P.Ws.) at the time of occurrence. Needless to say that the visibility in such-like situations gets quite poor. As per the prosecution case itself a large number of persons were coming into the hospital and going out of it at the time in question. It is not believable that a security guard standing at the gate of the said hospital which gate also led the church would be watching and registering the identity of each and every individual coming in and going out of the premises to an extent that he would be able to recognize each one of them at a subsequent stage. Needless to say that when the culprits would have entered the premises, there would be nothing special about them which could make them stand out as especially noticeable individuals from amongst the people visiting and leaving the hospital and the church. The description of the three culprits as given by Salamat complainant through the F.I.R. was also sufficient to demonstrate that he had not had any special look at the accused persons because the said was a description which could be given just about any ordinary person. The said description runs as under:--
"Three young men about 25/26 years old. Two of them were tall about 5'/8" 9" with fair complexion. Third of an average height with wheatish complexion wearing shalwar and a shirt and one of them with a red handkerchief around his neck."
Salamat complainant had further claimed that the one with a medium height had pointed a pistol at him and at Eirick Masih (given up). This claim of the complainant does not appeal to reason and was not digestible for more than one reasons. If the three culprits had come into the premises to throw hand-grenades therein then ordinarily their effort would be to go to their targeted point unnoticed and then likewise to try and slip away without being noticed. In the circumstances, one of the three culprits holding the two security guards on a pistol point was not understandable. In any case it was not a situation where some people had come to rob a bank and unarming or disarming the guard would be necessary. In the present case, what a terrorist needed to do was just to throw a hand-grenade and then slip away for which purpose the two security guards did not have to be held at gun-point or to be made dis?functional. In the circumstances, it appears that the claim of Salamat Masih having noticed and registered the identities of the three culprits did not appear to be a reasonably believable claim. It may be mentioned here that Eirick Masih P.W., despite having been named in the F.I.R., was given up at the trial as being unnecessary and instead, two others, namely, Mushtaq and Fayyaz, not named in the F.I.R., had been produced at the trial as the other eye-witnesses.???????
10. This then brings us to the assertion of the said Mushtaq (P.W.30) and Fayyaz (P.W.31) of having effectively and sufficiently observed the three culprits during the occurrence in question which had then enabled them to pick out the said culprits during the test identification parade.
11. Mushtaq (P.W.30) was a Lab. Technician working with Mission Hospital while Fayyaz (P.W.31) was employed there as a Male Nurse. Since the two of them were working in the hospital in the premises whereof the occurrence in question had taken place and since the two were also found with some injuries on their persons, though healed, when they had been examined by Dr. Asad (P.W.21) about thirteen days after the occurrence, therefore, there was a possibility of the said two being available at the place of occurrence at the relevant time after performing their prayers in the church. According to these P.Ws., they came out of the same along with 70/80 other persons; that since it was raining heavily at that time, therefore, they all huddled together in a 10' x 10' shed situated on the walk-way outside the church; that 20/25 ladies who had come out of the church first were standing in front of them; that some of them who had umbrellas with them, opened the same and started to walk on to the walk-way (foot-path) and it was in the said situation at that point in time that two explosions took place on the said foot-path in front of them and about 25/30 ft away from them. According to the site plan available on record, the two accused persons who had thrown the said hand grenades were a further 55 feet away towards north from the place where the two hand-grenades had landed and had then exploded.
12. The position of these two P.Ws. which thus emerges at the time of the explosions is that they were standing along with 70/80 other persons in a small shed which was only 10' x 10' in area. In front of them, towards the exit on to the foot-path, were 20/25 ladies and some of them with their umbrellas open. The place where the explosions took place was about 25 ft further ahead of the said ladies and this also explains why it was just the ladies who had lost their lives to these explosions and why the majority of the injured victims again comprised the ladies only. The two culprits who had allegedly hurled the two hand-grenades were another 55 ft beyond the place where the grenades had landed and had then exploded. It was raining heavily at that time and the explosions had caused a huge amount of smoke. Needless to say that a sudden and massive explosion would have also caused a state of immense fear and panic and in fact an atmosphere of hell let loose providing an obvious opportunity to the culprits to slip away in the pandemonium which would have ensued.
13. The things being as above-noticed i.e. the heavy rain affecting the visibility; a screen of heavy smoke blocking the visibility; the ladies and the gentlemen standing ahead and in front of the two P.Ws. blocking their view and the chaos which would have then followed, the claim of Mushtaq and Fayyaz P.Ws. that they had registered the identity of the culprits effectively enough to identify them thirteen days later, was a claim which would not be ordinarily believable and would, in fact, be open to serious doubts.
14. Having noticed the situation at the time of occurrence, we now come to the proceedings which had actually taken place at and during the test identification parade which was held in Adyala Jail on 21-8-2002 i.e. twelve days after the occurrence.
15. The first important question which needs to be checked up in the said connection was the date/dates on which the three accused persons had been arrested and the period for which each one of them had been in police custody prior to the holding of the test identification parade to find out whether there was available an opportunity with the police to show the arrested accused persons to the identifying witnesses.
16. Arshad Mehmood, Inspector (P.W.28) stood posted as the S.H.O. of Police Station, Taxila on the day of occurrence i.e., on 9-8-2002. The investigation remained with him for only four days i.e., till 12-8-2002 when he was suspended from service. No accused person had been allegedly arrested till that date. Saadat Mehdi, Inspector (P.W.32) was then posted to the said police station on 15-8-2002 and took over the said investigation. He is the one who appears to have arrested the three appellants. Though he did not give any specific date on which the accused persons had been arrested by him yet it could be inferred from his statement that he had arrested Saif, Abubakkar and Ayaz appellants on 19-8-2002. Relevant part of his statement reads as under:
"On 19-8-2002, I acquired the details of case F.I.R. No.110 of 2002 of Police Station Pirwadhai in which the accused of the case, namely, Saif-ur-Lehman @ Tayyab, Abubakkar @ Nasir, Ayaz @ Waqar are involved. On that date, I made application Exh.PYY for identification of the three accused ???"?? (emphasis and underlining has been supplied)
What transpires from the said part of the said P.Ws. statement is that the three accused persons were already in police custody in the said case F.I.R. No. 110 of Police Station Pirwadhai and it was on 19-8-2002 that Saadat Mehdi, Investigating Officer arrested them in the present case.
17. The test identification parade was held on 21-8-2002 in Adyala Jail. The report of the said proceedings supervised by Mr. Amjad Saeed, Special Judicial Magistrate (P.W.22) are available on record as Exh.PYY/1. The, said report mentions the names of twenty one persons (the dummies) with whom the three appellants were mixed for the purpose. The description of these twenty one dummies is confined only to their names and their parentage and it is not discernible from the said description whether they were the inmate prisoners of the jail or had been imported from elsewhere.
18. On being questioned at the parade, Saif appellant had stated before the said Magistrate that he had been arrested from Lahore on 2-8-2002. Ayaz appellant had claimed that he had been put to an identification exercise even in the police station. According to the said report Exh.PYY/1, it had also been complained by the said appellants before the said learned Magistrate that their photographs had already appeared in the electronic and the print media and that the identification parade was being held after the publication of the said photographs. The learned supervising Magistrate had also recorded a further objection raised by the said convicts to the effect that at that time they were in fetters. It may be mentioned here that the learned Magistrate, though required so to do under the law, had not passed any orders about the above-noticed objection/complaint of the three convicts nor had even an observation been made by the said learned Magistrate that the said claim of the three accused persons being in fetters at that point in time, was false or incorrect.
19. It further transpires from the said report Exh.PYY/1 that Mushtaq (P.W.30) was the first to go in for the identification; that he went around the people present and then returned to the Magistrate to say that the three accused persons were present amongst the people collected for identification. On the asking of the Magistrate this witness put his hand on the heads of the three accused persons and that this is how all the three accused persons were identified by the said Mushtaq P.W. Salamat (P.W.22) was the next who also went around the people and identified all the three accused persons by saying that they were the ones who had entered the gate and had first gone towards the hospital and had then turned towards the church at which the said P.W. had asked them as to where did they want to go at which the accused person sitting in the second row put a pistol on his chest and went towards the church. Thereafter Eirick Masih (given up) went in to identify the three accused persons but since he had been given up at the trial, therefore, we are ignoring the alleged identification of the accused persons at his instance. Fayyaz (P.W.31) was the last in line, who stated that he was a Head Nurse in the Christian Hospital; that he was at the gate of the Church at the time of occurrence; that it was raining heavily at that time; that at that point in time an explosion took place and he saw some people running out of the premises at which he gathered that they could be culprits. According to his said statement before the said Magistrate he had only seen some people running away from him who according to him were the culprits out of whom he identified Abubakkar and Ayaz at the time of the identification parade in question and added that the third culprit had died.
20. This is then the manner in which the test identification parade had been held and this is what had actually happened and transpired during the said exercise.
21. The said Mr. Amjad Saeed, Special Judicial Magistrate who had supervised the said identification parade had appeared at the trial as P.W.22. He admitted in his cross-examination that the application by the Investigating Officer for holding the identification parade (Exh.PYY) did not carry any diary number of the office of the learned Sessions Judge to whom the said application had been made. He had also admitted that the said application allegedly carrying the orders of the learned Sessions Judge directing him to hold the said identification had not been received by him through the office of the learned Sessions Judge. He had deposed that the report of the test identification parade had been prepared by him in the jail premises only after the said identification proceedings had concluded but admitted that he did not seal the same or the other documents at that time and that it was on the next day i.e. on 22-8-2002 that he had sealed the said report and other documents. He could not offer any reason, when asked, as to why the said report and the other documents had not been sealed on 21-8-2002 only when they stood prepared and were ready. Thereafter he made another significant admission saying that on 22-8-2002, he had received an application from the investigating officer for the grant of a copy of the proceedings of the identification parade which application he had allowed on that very day. An obvious suggestion was then made to him by the defence that he had not sealed the said report on 21-8-2002 because he had to show the same to the Investigating Officer and it was after he had done the same and had made improvements therein according to the wishes of the Investigating Officer that he had finally sealed it on 22-8-2002. Declaring that the report of the proceedings of the identification parade consisted of seven pages, the learned Magistrate admitted that four of the said sheets were of one kind and the other two sheets were of a different kind. Another obvious suggestion which then followed was that the last two sheets were the ones which were ordinarily available with the police and were used by them and that the said last two pages of the report had been changed at the instance of the Investigating Officer and had been subsequently re-written on the sheets taken from the investigating officer. Needless to say that the suggestion was denied by the learned Magistrate.
22. The learned Magistrate was also confronted with his report and had admitted that he had not mentioned the ages of the dummies and the ages of the accused persons who were the subject matter of the identification and further that he had also not mentioned in his report how many accused persons had beards on their faces and whether any of dummies were also bearded. Admitting the legal requirement about the ages, the features and the physique of the dummies to be similar to those of the accused persons, the learned Magistrate admitted that the height, the physical appearance, the ages and the complexion of the dummies were different from those of the accused persons. He also admitted his omission not to have recorded whether any accused had beard and whether any of the dummies also had similar beards. He had further admitted that while allegedly identifying the accused persons, none of the identifying witnesses had mentioned the role of any of the accused person at the occurrence nor did any witness state what role had been played by which accused in the occurrence in question.
23. Admitting that at the time of the identification parade, an objection had been raised by the accused persons that they were in fettersand also admitting that he had made no observation nor had he recorded any finding in his said report about the said objection being false, we were pained to notice that the said learned Magistrate had made an improvement while making a statement at the trial on oath, almost nine months after the said test identification parade, that the accused persons were not in fetters at the said point in time.
24. Salamat (P.W.29) who had entered the witness box four months after the above-mentioned learned Magistrate supervising the identification parade had made a statement at the trial, appears to have been made wiser. Contrary to the above-noticed admissions of the said learned Magistrate, the said P.W. claimed that the ages and the heights of all the participants of the identification parade i.e. the dummies, were similar and equal to those of the accused persons and that they were all clean-shaven.
25. Mushtaq (P.W.30) had, however, a different story to tell in the said context. He declared that some of the participants of the identification parade were having beard while some others were clean-shaven. He also admitted that some of the participants of the identification parade were fat and of healthy physique; some of them were slim while the others were of average physique. He further admitted that some of the participants were tall while some others were short in height; that all of them were wearing different dresses of different colours; that they were all of different ages and some of them were even wearing jail uniforms though wearing of jail uniform part was subsequently improved by him.
26. Fayyaz Razak (P.W.31) also admitted that some of the participants were of heavy physique; some were of poor physique while others were of average physique. He also admitted that some of the participants of the identification parade were tall while others were short and yet others were of average height and that they were all of different ages and with different complexions.
27. This was then the state of affairs at the all-important and in fact crucial test identification parade. We shall now look at the legally and the judicially prescribed rules of law and of caution to determine whether the result of the said exercise could qualify as a reliable and a credible piece of evidence.
28. Part "C:' of the Chapter "11" of Volume III of the Rules and Orders of the Lahore High Court carries some commandments in the matter of identification parades which are in the following terms:--
"(1) List of all persons included in the parade should be prepared.---The Magistrate incharge of an identification parade should prepare a list of all persons, including the accused, who form part of the parade. This list should contain the parentage, address and occupation of each member of the parade.
(2) Note about identification by witnesses.---When any witness identifies a member of the parade, the Magistrate should note in what connection he is identified ??
.............................................................................
(3) Objection or statements by accused or identification witnesses to be recorded and power of Magistrate to decide objections.---Should the accused make any complaint or statement it should be recorded by the Magistrate. If from his personal knowledge the Magistrate is able to decide beyond doubt that the complaint is false or futile, a note to this effect should be made??????.. ??????
(4) Duty of Magistrate to record precautions taken and to note other points.--
??????????? (a) ??????????????????? ?
(b) whether the person to be identified is handcuffed or is wearing fetters; and ifso, whether or not other persons taking part in the parade are handcuffed or are wearing fetters, and also whether or not they are inmates of the Jail.
(5) 1 ???????????????????.??????????
2 ?????????????????????????????
3???.As an identification parade is a test of the identifying witness's ability to recognise the culprit by what he appeared to be at the time of the commission of the offence, it isfair both to the prosecution and the accused that the members ofthe parade should be presented in a normal state and, if possible, the dress of the parade should have resemblance to the accused as he appeared to the witness at the time of the commission of the offence. It should, therefore, be impressed upon the Magistrates in all districts to ensure, while conducting identification parades, that the members of the parade including the accused are not allowed "make up", are presented in a normal state and if possiblethe parade be dressed as the accused was reported to be by the witness at the time of the commission of the offence." (emphasis and underlining has been added)
29. Similar rules and precautions stand prescribed by the Superior Courts in the said connection. Reference may be made, for example, to the cases of Imran Ashraf and 7 others v. The State (2001 SCMR 424), Khadim Hussain v. The State (1985 SCMR 721), Lal Singh v. The Crown (ILR 51 Lahore 396), Qurban and another v. The State (1994 PCr.LJ 150) and Ghulam Rasul and 3 others v. The State (1988 SCMR 557).
30. Having thus examined all aspects of the matter, we find that on account of the absence of any plausible reason which could justify noticing of the culprits by Salamat P.W. from amongst a large number of people coming into and going out of the hospital and the church; the falling of heavy rain at the time of occurrence which would have adversely affected the visibility at the said point in time; the presence of a large number of persons in the shed outside the church on account of the downpour and the presence of at least 20/25 ladies in front of Mushtaq and Fayyaz P.Ws. blocking their view of the persons who had thrown the hand grenades; the availability of a heavy layer of smoke caused by the two strong explosions between Mushtaq and Fayyaz P.Ws. on one side of the place of explosions and the culprits on the other and finally the chaos, the panic and the pandemonium resulting from the said explosions and the vague and general kind of a description of the three culprits given through the F.I.R.; would make the possibility of the said three P.Ws. having registered the faces and the identity` of the said culprits, open to serious exception, and to the resultant doubts.
31. Likewise the absence of complete description of the dummies at the test identification parade without their addresses, their occupation and without any clue whether they were fellow prisoners or outsiders; the admitted dissimilarities in height, physique, features, complexion, appearance and dress of the dummies and the accused persons; the absence of any information whether the accused persons and the dummies were similar in the matters of beards or being clean-shaven; the absence of disclosure by the prosecution about the actual date of arrest of the three accused persons; the declared involvement of the three accused persons in case F.I.R. No.110 of 2002 of Police Station Pirwadhai and the possibility of the said accused persons having remained in police custody on account of the said Pirwadhai case prior to the identification; the absence of any finding and decision by the learned Magistrate supervising the identification parade contradicting the admitted assertion of the accused persons being in fetters at the time of the said identification; the mere alleged pointation of the three accused persons by the three P.Ws. without disclosing the connection in which they had been identified or the role which each or anyone of them had played in the occurrence in question; the non-sealing" of the report of the said proceedings (Exh.PYY/1) and other relevant documents after the said report had been finalized on the day of the test identification and providing a copy thereof to the investigating officer before sealing the same on the next day; the four sheets of the said report being of a kind different from the last two sheets of the said report, were the kind of infirmities in the actual proceedings leading to the test identification of the accused persons which would render the said exercise also open to serious doubts.
32. Needless to say that the entire fate of the prosecution case hinged mainly and in fact exclusively on the identification of the accused persons by the three alleged eye-witnesses and if the evidence led to establish the same was what had been noticed above then the findings of guilt recorded against the three appellants could not be said to be sustainable in view of the established legal principles regulating the subject.
33. There is yet another important aspect of the case which had escaped proper attention of the learned trial Judge as also of the High Court. According to the F.I.R. itself, one person whose identity had subsequently been established as being Kamran Mir, had been found lying dead on the foot-path of Faisal Shaheed Road next to the wall of the Mission Hospital and the church with a live hand grenade lying next to his left hand. As a result of the post-mortem examination of the said dead body conducted by Dr. Shujaat (P.W.5) on the very day of occurrence at about 11-00 a.m., it had been found that the said Kamran had died as a result of three fire-arm injuries inflicted on him at the back of his chest, at the back of his right knee and on the medial side of his left hand. It is unfortunate that none of the Investigating Officers had pursued the matter of the death of the said alleged terrorist to find out as to how the said Kamran had got killed and who was the one who had shot him dead while or immediately after the hand-grenades had been hurled at the church. According to the site plan available on record, point No.11 of the said site plan where the said person was found lying shot dead, was almost opposite point No.7 of the site plan where the two hand grenades had landed and where the same had exploded. Only a wall and a grassy plot intervened between the said two points. In the circumstance, the possibility of the said dead person having thrown the said two grenades inside the premises from across the outer wall of the hospital before being shot dead, as even admitted by some of the P.Ws. could not have been ruled out. As has been mentioned above, despite the identity of the said deceased person having become known to the investigating officers and despite even his family having been traced whohad owned the dead body which had then been handed over to them, not even the slightest step was taken to check the background of the said deceased person. The absence of any explanation about the death of the said Kamran deceased near the place of occurrence at the relevant time with a live hand grenade, also casts doubts about the prosecution case set up against the three appellants.
34. The recovery of some ammunition, allegedly at the instance of some of the accused persons was of no consequence at all because no connection could be established between the said fire-arm weapons and other ammunition and the occurrence in question.
35. Having thus examined the entire prosecution evidence available on record, we find that the prosecution could not be said to have successfully proved its case against the three appellants beyond all reasonable doubts. We say so with some degree of pain that it was on account of poor investigation that the perpetrators of a dastardly and a heinous crime had gone undetected and unpunished which should be some food for thought for the concerned departments and agencies.
36. Consequently, Criminal Appeal No.365 of 2007 filed by Muhammad Ayyaz alias Waqar, Saif-ur-Rehman alias Saifee and Abu-Bakar alias Nazir are allowed as a result whereof the impugned conviction and punishments recorded against the said three appellants are set aside. They are acquitted of the charges levelled against them and shall be set at liberty forthwith, if not required to be detained in any other case.
M.H./M-9/SC????????????????????????????????????????????????????????????????????????????????????? Appeal allowe
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD AYAZ and others---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No. 365 of 2007, decided on 15th February, 2011.
(Against the judgment dated 12-12-2006 passed by Lahore High Court Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 47-T of 2004 and Murder Reference No. 9-T of 2004).
Anti-Terrorism Act (XXVII of 1997)---
----S. 7 (a)---Qanun-e-Shahadat (10 of 1984), Art. 22---High Court (Lahore) Rules and Orders, Vol. III, Part-C, Chap.11---Terrorism---Appreciation of evidence---Identification parade---Principles---Details of dummies---Benefit of doubt---Description of accused, non-mentioning of---Accused were convicted by Trial Court under S. 7(a) of Anti-Terrorism Act, 1997, and were sentenced to death on four counts---Validity---Availability of heavy layer of smoke caused by two strong explosions between prosecution witnesses on one side of place of explosions and accused on the other and finally chaos, panic and pandemonium resulting from explosions and vague and general kind of description of three accused given through F.I.R., made possibility of prosecution witnesses having registered faces and identity of accused open to serious exception and to the resultant doubts---Absence of complete description of dummies at test identification parade without their addresses, their occupation and without any clue whether they were fellow prisoners or outsiders; admitted dis-similarities in height, physique, features, complexion, appearance and dress of dummies and accused persons; absence of any information whether accused persons and dummies were similar in matters of beards or being clean-shaven; absence of disclosure by prosecution about actual date of arrest of three accused persons; declared involvement of three accused in another case and possibility of accused having remained in police custody on account of that another case prior to identification; absence of any finding and decision by Magistrate supervising identification parade contradicting admitted assertion of accused persons being in fetters at the time of identification; mere alleged pointation of three accused persons by three prosecution witnesses without disclosing connection in which they had been identified or role which each or anyone of them had played in the occurrence; non-sealing of report of identification proceedings and other relevant documents after report had been finalized on the day of test identification and providing copy of the same to Investigating Officer before sealing the same on next day; four sheets of identification report being of a kind different from last two sheets of report, were the kind of infirmities in actual proceedings leading to test identification of accused persons which would render the exercise also open to serious doubts---Entire fate of prosecution case hinged exclusively on identification of accused persons by three alleged eye-witnesses---Finding of guilt recorded against three accused was not sustainable in view of established legal principles regulating the subject---Conviction and sentence awarded to accused by Trial Court and maintained by High Court were set aside and all accused were acquitted of the charge---Appeal was allowed.?
Imran Ashraf and 7 others v. The State 2001 SCMR 424; Khadim Hussain v. The State 1985 SCMR 721; Lal Singh v. The Crown ILR 51 Lah. 396; Qurban and another v. The State 1994 PCr.LJ 150 and Ghulam Rasul and 3 others v. The State 1988 SCMR 557 rel.
M. Asghar Rokhari, Advocate Supreme Court for Appellants.
M. Irfan Malik, Additional P.-G. for the State.
Mushtaq Sukhera, Additional I.G.P. (CID) on Court's Notice.
Dates of hearings: 22nd to 24th December, 2010.
JUDGMENT
KHALIL-UR-REHMAN RAMDAY, J.---In a walled and a gated premises situated on Faisal Rashid Road within the jurisdiction of Police Station Taxila of District Rawalpindi, is located the Mission Hospital run by the Christian Community where they have also established a church for their worship. At about 7-45 a.m. on 9-8-2002 when it was allegedly raining more than heavily, two hand-grenades landed near the said church which, on exploding, witnessed the death of four females and injuries to at least 23/24 males and females.
2. Lodging an F.I.R. at the said police station about two hours later, one Salamat Masih who was a security guard deployed at the hospital gate, alleged that three young men each one of whom was about 25/26 years of age, entered the said hospital; one of the said three accused persons who was of a medium height put the complainant and Eirick Masih (given-up P.W.) on gun-point while the other two went towards the church and on reaching near which church each of those two threw one hand-grenade each; that the said hand-grenades fell on the foot path near the said church-and exploded which explosion then caused the above noticed loss of lives and injuries to various persons. Salamat complainant had added that the injured persons started raising hue and cry who were joined by him, Eirick Masih (given-up P.W.) and others at which the said accused persons ran out of the premises through its main gate. The complainant had further disclosed that one of the accused persons who had thrown one of the two hand-grenades was found lying dead on the foot path (of Faisal Shaheed Road) outside the said hospital and one live hand grenade was lying under his dead body. He had further claimed that he and the said Eirick Masih could identify the accused persons if they ever came across them. He had further reported that the injured persons were being treated in the Mission Hospital while one of the injured ladies by the name of Elshabbi had succumbed to the injuries received by her.
3. As a result of the investigation which ensued, six persons, namely, Ayaz, Saif, Abubakkar, Sabir, Taufiq and Asif were put to trial before a Special Court (Anti-Terrorism) at Rawalpindi which Court through its judgment dated 22-1-2004 acquitted Sabir, Taufiq and Asif accused but found Saif-ur-Rehman, Ayyaz and Abubakkr accused guilty of the charge under section 7(a) of the Anti-Terrorism Act of 1997 as a result whereof each one of them was punished with death on four counts. They were also found guilty of causing bodily harm to eight of the 23/24 injured persons because it were only these eight injured persons who had entered the witness-box at the trial and consequently convicting the said three convicts accordingly, directed each one of them to suffer, inter alia, sentences of imprisonment for life on eight counts which sentences of imprisonment-were, however, directed to run concurrently with each other.
4. The said three convicts approached the Rawalpindi Bench of the Lahore High Court through
Criminal Appeal No.247/T of 2004 questioning the said conviction and punishments recorded against them which appeal was dismissed through a judgment dated 12-12-2006 as a consequence whereof the sentences of death awarded to the said three convicts, were confirmed.
5. This then brought the said three convicts to this Court through Criminal Petition No. 16 of 2007 which petition was allowed through an order dated 24-9-2007 granting leave to the said three convicts. Hence this appeal.
6. We have heard the learned counsel for the parties at some length and have also perused the record with their able assistance.
7. Nine P.Ws. appeared at the trial who claimed to have witnessed the occurrence in question. Minus Salamat complainant, the other eye-witnesses had allegedly even received injuries as a result of the alleged explosions. Six out of these eight injured persons who were all females, namely, Mst. Paskal (P.W.9), Mst. Shamim (P.W.10); Mst. Anila (P.W.11), Mst. Shazia (P.W.12), Mst. Nasreen (P.W.13) and Mst. Gulzar (P.W.14) declared that they had not seen the ones who had thrown the grenades in question and their testimony was thus of no real assistance to the prosecution in establishing the guilt of the accused persons. It was only the remaining three eye-witnesses, namely, Salamat Masih complainant and the two allegedly injured P.Ws., namely, Mushtaq and Fayyaz who claimed to have seen the culprits; to have identified them at the time of occurrence and who then, allegedly, also identified the appellants at the test identification parade.
8. The prosecution case thus depends and rests mainly and essentially on the identification of the perpetrators of this dastardly crime by the P.Ws. offered for the purpose at the trial. What would, therefore, have to be examined and determined would be firstly whether in the given situation and circumstances prevailing at the time of occurrence, the said three P.Ws. could have noticed the culprits and could have registered their identity to the extent that they could have subsequently identified them at the test identification parade and secondly whether the said identification parade, in pursuance whereof the said three P.Ws. had allegedly identified the three appellants, was a valid and a reliable exercise sufficient to establish that the three appellants were the ones who were guilty of the commission of the crime in question.
9. According to the F.I.R. and even according to the other eye-witnesses, it was raining rather heavily (raining cats and dogs according to some P.Ws.) at the time of occurrence. Needless to say that the visibility in such-like situations gets quite poor. As per the prosecution case itself a large number of persons were coming into the hospital and going out of it at the time in question. It is not believable that a security guard standing at the gate of the said hospital which gate also led the church would be watching and registering the identity of each and every individual coming in and going out of the premises to an extent that he would be able to recognize each one of them at a subsequent stage. Needless to say that when the culprits would have entered the premises, there would be nothing special about them which could make them stand out as especially noticeable individuals from amongst the people visiting and leaving the hospital and the church. The description of the three culprits as given by Salamat complainant through the F.I.R. was also sufficient to demonstrate that he had not had any special look at the accused persons because the said was a description which could be given just about any ordinary person. The said description runs as under:--
"Three young men about 25/26 years old. Two of them were tall about 5'/8" 9" with fair complexion. Third of an average height with wheatish complexion wearing shalwar and a shirt and one of them with a red handkerchief around his neck."
Salamat complainant had further claimed that the one with a medium height had pointed a pistol at him and at Eirick Masih (given up). This claim of the complainant does not appeal to reason and was not digestible for more than one reasons. If the three culprits had come into the premises to throw hand-grenades therein then ordinarily their effort would be to go to their targeted point unnoticed and then likewise to try and slip away without being noticed. In the circumstances, one of the three culprits holding the two security guards on a pistol point was not understandable. In any case it was not a situation where some people had come to rob a bank and unarming or disarming the guard would be necessary. In the present case, what a terrorist needed to do was just to throw a hand-grenade and then slip away for which purpose the two security guards did not have to be held at gun-point or to be made dis?functional. In the circumstances, it appears that the claim of Salamat Masih having noticed and registered the identities of the three culprits did not appear to be a reasonably believable claim. It may be mentioned here that Eirick Masih P.W., despite having been named in the F.I.R., was given up at the trial as being unnecessary and instead, two others, namely, Mushtaq and Fayyaz, not named in the F.I.R., had been produced at the trial as the other eye-witnesses.???????
10. This then brings us to the assertion of the said Mushtaq (P.W.30) and Fayyaz (P.W.31) of having effectively and sufficiently observed the three culprits during the occurrence in question which had then enabled them to pick out the said culprits during the test identification parade.
11. Mushtaq (P.W.30) was a Lab. Technician working with Mission Hospital while Fayyaz (P.W.31) was employed there as a Male Nurse. Since the two of them were working in the hospital in the premises whereof the occurrence in question had taken place and since the two were also found with some injuries on their persons, though healed, when they had been examined by Dr. Asad (P.W.21) about thirteen days after the occurrence, therefore, there was a possibility of the said two being available at the place of occurrence at the relevant time after performing their prayers in the church. According to these P.Ws., they came out of the same along with 70/80 other persons; that since it was raining heavily at that time, therefore, they all huddled together in a 10' x 10' shed situated on the walk-way outside the church; that 20/25 ladies who had come out of the church first were standing in front of them; that some of them who had umbrellas with them, opened the same and started to walk on to the walk-way (foot-path) and it was in the said situation at that point in time that two explosions took place on the said foot-path in front of them and about 25/30 ft away from them. According to the site plan available on record, the two accused persons who had thrown the said hand grenades were a further 55 feet away towards north from the place where the two hand-grenades had landed and had then exploded.
12. The position of these two P.Ws. which thus emerges at the time of the explosions is that they were standing along with 70/80 other persons in a small shed which was only 10' x 10' in area. In front of them, towards the exit on to the foot-path, were 20/25 ladies and some of them with their umbrellas open. The place where the explosions took place was about 25 ft further ahead of the said ladies and this also explains why it was just the ladies who had lost their lives to these explosions and why the majority of the injured victims again comprised the ladies only. The two culprits who had allegedly hurled the two hand-grenades were another 55 ft beyond the place where the grenades had landed and had then exploded. It was raining heavily at that time and the explosions had caused a huge amount of smoke. Needless to say that a sudden and massive explosion would have also caused a state of immense fear and panic and in fact an atmosphere of hell let loose providing an obvious opportunity to the culprits to slip away in the pandemonium which would have ensued.
13. The things being as above-noticed i.e. the heavy rain affecting the visibility; a screen of heavy smoke blocking the visibility; the ladies and the gentlemen standing ahead and in front of the two P.Ws. blocking their view and the chaos which would have then followed, the claim of Mushtaq and Fayyaz P.Ws. that they had registered the identity of the culprits effectively enough to identify them thirteen days later, was a claim which would not be ordinarily believable and would, in fact, be open to serious doubts.
14. Having noticed the situation at the time of occurrence, we now come to the proceedings which had actually taken place at and during the test identification parade which was held in Adyala Jail on 21-8-2002 i.e. twelve days after the occurrence.
15. The first important question which needs to be checked up in the said connection was the date/dates on which the three accused persons had been arrested and the period for which each one of them had been in police custody prior to the holding of the test identification parade to find out whether there was available an opportunity with the police to show the arrested accused persons to the identifying witnesses.
16. Arshad Mehmood, Inspector (P.W.28) stood posted as the S.H.O. of Police Station, Taxila on the day of occurrence i.e., on 9-8-2002. The investigation remained with him for only four days i.e., till 12-8-2002 when he was suspended from service. No accused person had been allegedly arrested till that date. Saadat Mehdi, Inspector (P.W.32) was then posted to the said police station on 15-8-2002 and took over the said investigation. He is the one who appears to have arrested the three appellants. Though he did not give any specific date on which the accused persons had been arrested by him yet it could be inferred from his statement that he had arrested Saif, Abubakkar and Ayaz appellants on 19-8-2002. Relevant part of his statement reads as under:
"On 19-8-2002, I acquired the details of case F.I.R. No.110 of 2002 of Police Station Pirwadhai in which the accused of the case, namely, Saif-ur-Lehman @ Tayyab, Abubakkar @ Nasir, Ayaz @ Waqar are involved. On that date, I made application Exh.PYY for identification of the three accused ???"?? (emphasis and underlining has been supplied)
What transpires from the said part of the said P.Ws. statement is that the three accused persons were already in police custody in the said case F.I.R. No. 110 of Police Station Pirwadhai and it was on 19-8-2002 that Saadat Mehdi, Investigating Officer arrested them in the present case.
17. The test identification parade was held on 21-8-2002 in Adyala Jail. The report of the said proceedings supervised by Mr. Amjad Saeed, Special Judicial Magistrate (P.W.22) are available on record as Exh.PYY/1. The, said report mentions the names of twenty one persons (the dummies) with whom the three appellants were mixed for the purpose. The description of these twenty one dummies is confined only to their names and their parentage and it is not discernible from the said description whether they were the inmate prisoners of the jail or had been imported from elsewhere.
18. On being questioned at the parade, Saif appellant had stated before the said Magistrate that he had been arrested from Lahore on 2-8-2002. Ayaz appellant had claimed that he had been put to an identification exercise even in the police station. According to the said report Exh.PYY/1, it had also been complained by the said appellants before the said learned Magistrate that their photographs had already appeared in the electronic and the print media and that the identification parade was being held after the publication of the said photographs. The learned supervising Magistrate had also recorded a further objection raised by the said convicts to the effect that at that time they were in fetters. It may be mentioned here that the learned Magistrate, though required so to do under the law, had not passed any orders about the above-noticed objection/complaint of the three convicts nor had even an observation been made by the said learned Magistrate that the said claim of the three accused persons being in fetters at that point in time, was false or incorrect.
19. It further transpires from the said report Exh.PYY/1 that Mushtaq (P.W.30) was the first to go in for the identification; that he went around the people present and then returned to the Magistrate to say that the three accused persons were present amongst the people collected for identification. On the asking of the Magistrate this witness put his hand on the heads of the three accused persons and that this is how all the three accused persons were identified by the said Mushtaq P.W. Salamat (P.W.22) was the next who also went around the people and identified all the three accused persons by saying that they were the ones who had entered the gate and had first gone towards the hospital and had then turned towards the church at which the said P.W. had asked them as to where did they want to go at which the accused person sitting in the second row put a pistol on his chest and went towards the church. Thereafter Eirick Masih (given up) went in to identify the three accused persons but since he had been given up at the trial, therefore, we are ignoring the alleged identification of the accused persons at his instance. Fayyaz (P.W.31) was the last in line, who stated that he was a Head Nurse in the Christian Hospital; that he was at the gate of the Church at the time of occurrence; that it was raining heavily at that time; that at that point in time an explosion took place and he saw some people running out of the premises at which he gathered that they could be culprits. According to his said statement before the said Magistrate he had only seen some people running away from him who according to him were the culprits out of whom he identified Abubakkar and Ayaz at the time of the identification parade in question and added that the third culprit had died.
20. This is then the manner in which the test identification parade had been held and this is what had actually happened and transpired during the said exercise.
21. The said Mr. Amjad Saeed, Special Judicial Magistrate who had supervised the said identification parade had appeared at the trial as P.W.22. He admitted in his cross-examination that the application by the Investigating Officer for holding the identification parade (Exh.PYY) did not carry any diary number of the office of the learned Sessions Judge to whom the said application had been made. He had also admitted that the said application allegedly carrying the orders of the learned Sessions Judge directing him to hold the said identification had not been received by him through the office of the learned Sessions Judge. He had deposed that the report of the test identification parade had been prepared by him in the jail premises only after the said identification proceedings had concluded but admitted that he did not seal the same or the other documents at that time and that it was on the next day i.e. on 22-8-2002 that he had sealed the said report and other documents. He could not offer any reason, when asked, as to why the said report and the other documents had not been sealed on 21-8-2002 only when they stood prepared and were ready. Thereafter he made another significant admission saying that on 22-8-2002, he had received an application from the investigating officer for the grant of a copy of the proceedings of the identification parade which application he had allowed on that very day. An obvious suggestion was then made to him by the defence that he had not sealed the said report on 21-8-2002 because he had to show the same to the Investigating Officer and it was after he had done the same and had made improvements therein according to the wishes of the Investigating Officer that he had finally sealed it on 22-8-2002. Declaring that the report of the proceedings of the identification parade consisted of seven pages, the learned Magistrate admitted that four of the said sheets were of one kind and the other two sheets were of a different kind. Another obvious suggestion which then followed was that the last two sheets were the ones which were ordinarily available with the police and were used by them and that the said last two pages of the report had been changed at the instance of the Investigating Officer and had been subsequently re-written on the sheets taken from the investigating officer. Needless to say that the suggestion was denied by the learned Magistrate.
22. The learned Magistrate was also confronted with his report and had admitted that he had not mentioned the ages of the dummies and the ages of the accused persons who were the subject matter of the identification and further that he had also not mentioned in his report how many accused persons had beards on their faces and whether any of dummies were also bearded. Admitting the legal requirement about the ages, the features and the physique of the dummies to be similar to those of the accused persons, the learned Magistrate admitted that the height, the physical appearance, the ages and the complexion of the dummies were different from those of the accused persons. He also admitted his omission not to have recorded whether any accused had beard and whether any of the dummies also had similar beards. He had further admitted that while allegedly identifying the accused persons, none of the identifying witnesses had mentioned the role of any of the accused person at the occurrence nor did any witness state what role had been played by which accused in the occurrence in question.
23. Admitting that at the time of the identification parade, an objection had been raised by the accused persons that they were in fettersand also admitting that he had made no observation nor had he recorded any finding in his said report about the said objection being false, we were pained to notice that the said learned Magistrate had made an improvement while making a statement at the trial on oath, almost nine months after the said test identification parade, that the accused persons were not in fetters at the said point in time.
24. Salamat (P.W.29) who had entered the witness box four months after the above-mentioned learned Magistrate supervising the identification parade had made a statement at the trial, appears to have been made wiser. Contrary to the above-noticed admissions of the said learned Magistrate, the said P.W. claimed that the ages and the heights of all the participants of the identification parade i.e. the dummies, were similar and equal to those of the accused persons and that they were all clean-shaven.
25. Mushtaq (P.W.30) had, however, a different story to tell in the said context. He declared that some of the participants of the identification parade were having beard while some others were clean-shaven. He also admitted that some of the participants of the identification parade were fat and of healthy physique; some of them were slim while the others were of average physique. He further admitted that some of the participants were tall while some others were short in height; that all of them were wearing different dresses of different colours; that they were all of different ages and some of them were even wearing jail uniforms though wearing of jail uniform part was subsequently improved by him.
26. Fayyaz Razak (P.W.31) also admitted that some of the participants were of heavy physique; some were of poor physique while others were of average physique. He also admitted that some of the participants of the identification parade were tall while others were short and yet others were of average height and that they were all of different ages and with different complexions.
27. This was then the state of affairs at the all-important and in fact crucial test identification parade. We shall now look at the legally and the judicially prescribed rules of law and of caution to determine whether the result of the said exercise could qualify as a reliable and a credible piece of evidence.
28. Part "C:' of the Chapter "11" of Volume III of the Rules and Orders of the Lahore High Court carries some commandments in the matter of identification parades which are in the following terms:--
"(1) List of all persons included in the parade should be prepared.---The Magistrate incharge of an identification parade should prepare a list of all persons, including the accused, who form part of the parade. This list should contain the parentage, address and occupation of each member of the parade.
(2) Note about identification by witnesses.---When any witness identifies a member of the parade, the Magistrate should note in what connection he is identified ??
.............................................................................
(3) Objection or statements by accused or identification witnesses to be recorded and power of Magistrate to decide objections.---Should the accused make any complaint or statement it should be recorded by the Magistrate. If from his personal knowledge the Magistrate is able to decide beyond doubt that the complaint is false or futile, a note to this effect should be made??????.. ??????
(4) Duty of Magistrate to record precautions taken and to note other points.--
??????????? (a) ??????????????????? ?
(b) whether the person to be identified is handcuffed or is wearing fetters; and ifso, whether or not other persons taking part in the parade are handcuffed or are wearing fetters, and also whether or not they are inmates of the Jail.
(5) 1 ???????????????????.??????????
2 ?????????????????????????????
3???.As an identification parade is a test of the identifying witness's ability to recognise the culprit by what he appeared to be at the time of the commission of the offence, it isfair both to the prosecution and the accused that the members ofthe parade should be presented in a normal state and, if possible, the dress of the parade should have resemblance to the accused as he appeared to the witness at the time of the commission of the offence. It should, therefore, be impressed upon the Magistrates in all districts to ensure, while conducting identification parades, that the members of the parade including the accused are not allowed "make up", are presented in a normal state and if possiblethe parade be dressed as the accused was reported to be by the witness at the time of the commission of the offence." (emphasis and underlining has been added)
29. Similar rules and precautions stand prescribed by the Superior Courts in the said connection. Reference may be made, for example, to the cases of Imran Ashraf and 7 others v. The State (2001 SCMR 424), Khadim Hussain v. The State (1985 SCMR 721), Lal Singh v. The Crown (ILR 51 Lahore 396), Qurban and another v. The State (1994 PCr.LJ 150) and Ghulam Rasul and 3 others v. The State (1988 SCMR 557).
30. Having thus examined all aspects of the matter, we find that on account of the absence of any plausible reason which could justify noticing of the culprits by Salamat P.W. from amongst a large number of people coming into and going out of the hospital and the church; the falling of heavy rain at the time of occurrence which would have adversely affected the visibility at the said point in time; the presence of a large number of persons in the shed outside the church on account of the downpour and the presence of at least 20/25 ladies in front of Mushtaq and Fayyaz P.Ws. blocking their view of the persons who had thrown the hand grenades; the availability of a heavy layer of smoke caused by the two strong explosions between Mushtaq and Fayyaz P.Ws. on one side of the place of explosions and the culprits on the other and finally the chaos, the panic and the pandemonium resulting from the said explosions and the vague and general kind of a description of the three culprits given through the F.I.R.; would make the possibility of the said three P.Ws. having registered the faces and the identity` of the said culprits, open to serious exception, and to the resultant doubts.
31. Likewise the absence of complete description of the dummies at the test identification parade without their addresses, their occupation and without any clue whether they were fellow prisoners or outsiders; the admitted dissimilarities in height, physique, features, complexion, appearance and dress of the dummies and the accused persons; the absence of any information whether the accused persons and the dummies were similar in the matters of beards or being clean-shaven; the absence of disclosure by the prosecution about the actual date of arrest of the three accused persons; the declared involvement of the three accused persons in case F.I.R. No.110 of 2002 of Police Station Pirwadhai and the possibility of the said accused persons having remained in police custody on account of the said Pirwadhai case prior to the identification; the absence of any finding and decision by the learned Magistrate supervising the identification parade contradicting the admitted assertion of the accused persons being in fetters at the time of the said identification; the mere alleged pointation of the three accused persons by the three P.Ws. without disclosing the connection in which they had been identified or the role which each or anyone of them had played in the occurrence in question; the non-sealing" of the report of the said proceedings (Exh.PYY/1) and other relevant documents after the said report had been finalized on the day of the test identification and providing a copy thereof to the investigating officer before sealing the same on the next day; the four sheets of the said report being of a kind different from the last two sheets of the said report, were the kind of infirmities in the actual proceedings leading to the test identification of the accused persons which would render the said exercise also open to serious doubts.
32. Needless to say that the entire fate of the prosecution case hinged mainly and in fact exclusively on the identification of the accused persons by the three alleged eye-witnesses and if the evidence led to establish the same was what had been noticed above then the findings of guilt recorded against the three appellants could not be said to be sustainable in view of the established legal principles regulating the subject.
33. There is yet another important aspect of the case which had escaped proper attention of the learned trial Judge as also of the High Court. According to the F.I.R. itself, one person whose identity had subsequently been established as being Kamran Mir, had been found lying dead on the foot-path of Faisal Shaheed Road next to the wall of the Mission Hospital and the church with a live hand grenade lying next to his left hand. As a result of the post-mortem examination of the said dead body conducted by Dr. Shujaat (P.W.5) on the very day of occurrence at about 11-00 a.m., it had been found that the said Kamran had died as a result of three fire-arm injuries inflicted on him at the back of his chest, at the back of his right knee and on the medial side of his left hand. It is unfortunate that none of the Investigating Officers had pursued the matter of the death of the said alleged terrorist to find out as to how the said Kamran had got killed and who was the one who had shot him dead while or immediately after the hand-grenades had been hurled at the church. According to the site plan available on record, point No.11 of the said site plan where the said person was found lying shot dead, was almost opposite point No.7 of the site plan where the two hand grenades had landed and where the same had exploded. Only a wall and a grassy plot intervened between the said two points. In the circumstance, the possibility of the said dead person having thrown the said two grenades inside the premises from across the outer wall of the hospital before being shot dead, as even admitted by some of the P.Ws. could not have been ruled out. As has been mentioned above, despite the identity of the said deceased person having become known to the investigating officers and despite even his family having been traced whohad owned the dead body which had then been handed over to them, not even the slightest step was taken to check the background of the said deceased person. The absence of any explanation about the death of the said Kamran deceased near the place of occurrence at the relevant time with a live hand grenade, also casts doubts about the prosecution case set up against the three appellants.
34. The recovery of some ammunition, allegedly at the instance of some of the accused persons was of no consequence at all because no connection could be established between the said fire-arm weapons and other ammunition and the occurrence in question.
35. Having thus examined the entire prosecution evidence available on record, we find that the prosecution could not be said to have successfully proved its case against the three appellants beyond all reasonable doubts. We say so with some degree of pain that it was on account of poor investigation that the perpetrators of a dastardly and a heinous crime had gone undetected and unpunished which should be some food for thought for the concerned departments and agencies.
36. Consequently, Criminal Appeal No.365 of 2007 filed by Muhammad Ayyaz alias Waqar, Saif-ur-Rehman alias Saifee and Abu-Bakar alias Nazir are allowed as a result whereof the impugned conviction and punishments recorded against the said three appellants are set aside. They are acquitted of the charges levelled against them and shall be set at liberty forthwith, if not required to be detained in any other case.
M.H./M-9/SC????????????????????????????????????????????????????????????????????????????????????? Appeal allowe
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