PLJ 2009 SC 1023

[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed & Ch. Ijaz Ahmed, JJ.

NAZIR AHMAD--Petitioner

versus

MUHAMMAD IQBAL and another--Respondents

Crl. P. No. 212 of 2009, decided on 25.5.2009.

(Against the judgment dated 3.4.2009 passed by the Lahore High Court Multan Bench, Multan, in Crl. Appeal No. 478/2004).

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302, 324, 337-A(i)(ii), 337-F(i)(ii), 337-L(ii), 460, 109, 148 & 149--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--High Court acquitted him from the charge by giving the benefit of doubt--Challenge to--Accused/respondent formed unlawful assembly and had committed lurking house tress-pass by night into the house of prosecution and committed qatl-e-amd--Occurrence had taken place at midnight--Accused were not nominated in FIR--Identified during identification parade--Test of identification parade has important value--Validity--In case the identification parade was conducted in accordance with law and accused were identified by the witnesses then that was the basic factor to connect the accused with commission of offence--High Court had disbelieved ocular account with cogent reasons--Held: Role of accused was not described by the eye witnesses at time of identification parade due to which High Court had come to conclusion after discussing each and every piece of evidence that such type of identification lost its value and is not relied upon law laid down by Supreme Court. [P. 1028] A

1988 SCMR 557, 1995 SCMR 557, 1995 SCMR 127 &

2007 SCMR 670, rel.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302, 324, 337-A(i)(ii), 337-F(i)(ii), 337-L(ii), 460, 109, 148 & 149--Conviction and sentence recorded against accused by trial Court--High Court acquitted the accused by giving them benefit of doubt--Identification parade--Whether the persons named were identified by their role in crime or as individuals, friends or as foes--Validity, if it was identification of their role, then it should have been specified to complete the picture of the crime and reinforce the case against them for commission of the crime. [P. 1029] B

1985 SCMR 721 rel.

Identification parade--

----Delay of 24 days in identification parade--Validity--Identification parade was conducted after 24 days after their arrest and possibility cannot be excluded that the witnesses had seen them--Supreme Court did not place any reliance on such identification parade.

[P. 1029] C

PLD 1975 SC 695 & PLD 1981 SC 142, rel.

Identification in Court--

----Requirements of law--Identification in Court after considerable delay i.e. after the incident, of a person produced in Court cannot satisfy the requirement of law for proving identity of a culprit. [P. 1029] D

1992 SCMR 2088 & PLD 2001 SC 564, rel.

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 302, 324, 337-A(i-ii), 337-F(i-ii), 337-L(ii), 460, 148, 149 & 109--Conviction and sentence recorded against accused by trial Court--Acquitted by High Court--Occurrence had taken place at midnight--Accused were not nominated in FIR--Identification was based on pandemonium of the moment--Accused with muffled faces at midnight committed offence, identification of accused by build and stature was not possible, coupled with the fact that identification of the accused at mid night in electric bulb light was not safe because changes of error in identification had become greatly increased when identification was based of pandemonium of the moment--Held: Testimony of sense cannot be implicity relied as the person or persons who select dark hours of the midnight with object to commit crime in such manner would take all possible care to cancel their identify in such cases suspicion also falls on 9 person who had a reason to do so--An order of acquittal was to be interfered with only, if the same was arbitrary capricious, fanciful and against the record--Supreme Court did not any infirmity or illegality in impugned judgment--Leave refused. [Pp. 1029 & 1030] E & I

Identification parade--

----Joint identification parade--Identification parade of each accused should be held separately otherwise confusion would be created--Validity--Identification parade was held jointly of all the accused, therefore, High Court was justified to set aside the conviction of the accused which was in consonance as law--Held: High Court admitted that identification parade should have been held accordingly to prescribe rules--Even High Court had admitted in its judgment that identification parade was not held strictly accordingly to prescribed rules and it was due to the fact that magistrate not properly gone through the prescribed rules and authorities on subject, therefore, High Court was justified to ignore the evidence regarding identification parade. [P. 1029] F

Identification parade--

----Identification parade was conducted fairly and properly and it becomes the duty of the prosecution to adopt such measures so as to eliminate the possibility of identifying witnesses to see the accused after commission of crime till identification parade was held immediately after arrest of the accused persons was as early as possible. [P. 1030] G

2001 SCMR 424, rel.

Ocular account--

----Injuries of prosecution witness were only indication of his presence at the spot but were not affirmative proof of his credibility and trust. [P. ] H

1981 SCMR 795 & 2007 SCMR 670, rel.

Mr. Razzaq A. Mirza, ASC for Petitioner.

Nemo for Respondents.

Date of hearing: 25.5.2009.

Order

Ch. Ijaz Ahmed, J.--Petitioner seeks leave to appeal against the impugned judgment dated 3-4-2009 whereby the learned High Court accepted the appeal of the respondent against his conviction.

2. Detailed facts have already been mentioned in para 2 of the impugned judgment and memo of petition. However, necessary facts out of which the present petition arises are that Respondent alongwith his convicted co-accused (Ahmad Ali), acquitted co-accused (Syed Fateh Shah), Abdul Ghafoor and Muhammad alias Mami (since absconders) were involved in a case FIR No. 150 dated 14-4-2002 which was registered at Police Station Noor Shah, District Sahiwal, under Sections 148/460/302/324/337-A(i-ii)337-F (i-ii)/337-L(ii)/149/109 P.P.C. on the complaint of Nazir Ahmad that on the night between 13/14.4.2002 at about 2-30 a.m. the respondent alongwith his co-accused formed unlawful assembly and had committed lurking house tres-pass by night into the house of Nazar Muhammad PW, and committed qatl-e-amd of Waryam deceased by causing him fire arms injuries and also made murderous assault upon Muhammad Rafiq PW and caused injuries to Muhammad Rafique, Bashir Ahmad, Sabir Hussain, Mst. Kausar Bibi, Nazar Muhammad and Noor Muhammad PWs. They were asleep in the Court yard of their house and electric bulbs were on. At about 2/30 a.m. they woke up on hearing noise from the house of Nazar Muhammad brother-in-law and saw that on the roof of the house of Nazar Muhammad three persons were fighting with Nazar Muhammad. They also came on the roof and grappled with the accused persons. They identified them under the light of electric bulbs in the Court yard and on the roof. At that time they did not know their names and observed in electric light as under:--

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

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

They also inflicted injuries to Muhammad Rafique, Bashir Ahmad, Sabir Hussain, Mst. Kausar Bibi, Nazar Muhammad and Noor Muhammad. In their self defence the complainant party also inflicted injuries to the accused. On hearing the noise, other persons of the village also attracted to the scene of the occurrence and during scuffle, the accused persons fled away by firing. The contents of the FIR also reveal that they did not know their names at the time of incident and at the time of submitting the complaint to the police with regard to the incident. They knew their names after identification parade which was conducted after about 24/25 days of the occurrence. The investigating agency, after completing the legal formalities submitted the challan against the respondent and his co-accused before the competent Court. The learned Additional Sessions Judge, Sahiwal, convicted and sentenced Muhammad Iqbal, respondent, alongwith his convicted co-accused, Ahmad Ali, vide its judgment dated 19-7-2004 as follows:--

Under Section 148 PPC

One year R.I. each

Under Section 302(b) 149 PPC

imprisonment for life each, plus a fine of Rs. 50,000/-each and in default to further suffer R.I. for five years each

Under Section 544-A Cr.P.C

to pay compensation of Rs. 50,000/- each to the legal heirs of the deceased, in default to further suffer R.I. for six months each;

Under Section 324/140 PPC

to under go seven years R.I. each for attempting to commit murder of Muhammad Rafiq and Nazar Muhammad PWs;

Under Section 337-A(i), 337-F(i), 337-L(ii) PPC

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

Benefit of Section 382-B Cr.P.C. was extended and all the sentences were ordered to run concurrently.

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

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

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

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

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

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

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

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

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

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

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

4. We have given our due consideration to the contentions of the learned counsel and perused the record with his able assistance. The learned High Court has come, after re-appraisal of evidence, to the conclusion of innocence of respondent while acquitting him after re-appraisal of evidence on record. This Court has laid down parameters regarding interference in the cases of acquittal in Ghulam Sikandar case (PLD 1985 SC 11). The aforesaid judgment has been re-affirmed by this Court in various pronouncements. See Muhammad Iqbal case (1994 SCMR 1928), Muhammad Rafique case (2008 SCMR 715) and Farhat Azeem case (2008 SCMR 1285). We have appreciated the arguments addressed by the learned counsel for the petitioner with care keeping in view the dictum laid down by this Court in the aforesaid judgments. It is an admitted fact that occurrence had taken place at midnight between 13/14.4.2002. It is an admitted fact that names of the respondent and his co-accused were not mentioned in the contents of the FIR. Complainant Nazir Ahmed also remains consistent in his statement while appearing before the Court that during the incident the accused could not be specifically identified as they had muffled their faces but their features were observed and they were subsequently identified during the identification parade. It is pertinent to mention here that in the case in hand the test of the identification parade has important value. In case the identification parade was conducted in accordance with law and respondent and his co-accused were identified by the witnesses then this is the basic factor to connect the respondent and his co-accused with the commission of offence. The learned High Court had disbelieved ocular account with cogent reasons. It is an admitted fact that role of accused was not described by the eye-witnesses at the time of identification parade due to which the learned High Court had come to the conclusion after discussing each and every piece of evidence that such type of identification lost its value and is not relied upon as law laid down by this Court in the following judgments:--

(i) Ghulam Rasul case (1988 SCMR 557)

(ii) Mahmood Ahmed case (1995 SCMR 127)

(iii) Muhammad Pervez case (2007 SCMR 670)

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

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

(R.A.) Leave refused.