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Criminal Appeal No.696 of 1985, heard on 23rd June, 1987.
---S.302--Identification parade--Necessity of--Complainant in F.I.R. giving clear impression of knowing accused previously by name- Statement of complainant at trial showing accused not known to him previously either by name or by face--Accused seen by witnesses for first time at place of occurrence--Identity disclosed by accused himself before occurrence--Test identification parade, held, was absolutely necessary and identification of accused in Court at trial was useless in circumstances.--[Identification].
1974 S C M R 175 ref.
---S.302--F.I.R., whether belated--F.I.R. shown to have been recorded after 55 minutes of occurrence--Name and profession of accused figuring in F. I. R.--Statement of complainant at trial not showing accused previously known to him but on inquiry identity disclosed by accused himself--Such fact not mentioned in F.I.R.- Accused coming to house of deceased with full preparation to commit murder, ' not expected to disclose his identity--Complainant having no means to ascertain particulars within such a short time--Statement of complainant at trial, held, could not be accepted as F. I. R. was recorded at much a belated stage after ascertaining particulars of accused.
--S.302--Ocular testimony, appreciation of--Deceased going out to see visitor on information given to him by complainant--Three witnesses allegedly accompanying him though not expected to do so in ordinary course--Eye-witnesses stating to have seen accused running away from place of occurrence with Chhura in his hand--Chhura recovered from lawn of house on next day--According to recovery witness Chhura found lying on grass, visible to naked eye--Accused causing as many as four injuries to deceased with Chhura--Witnesses not making any effort to apprehend accused--Daylight occurrence in populated area, a chase or raising alarm would have attracted many people to make escape of accused impossible--Witnesses claiming to have removed deceased to hospital but their blood-stained clothes not taken into possession--Motive withheld by prosecution--Circumstances, held, were strongly militating against prosecution and repelled its claim that alleged eye-witnesses had seen occurrence and it would be highly unsafe to place any reliance on their evidence--Acquittal ordered in circumstances.
---S.302--Recoveries--Blood-stained clothes and Chhura recovered at instance of accused--Eye-witnesses stating accused to have fled away with Chhura--Chhura recovered from lawn of house of complainant on next day--Chhura visible to a naked eye--Thousands of people gathering but none noticing Chhura at spot on the day of occurrence- Summary report containing all facts and recoveries of case submitted to Martial Law Authorities--Report not mentioning recovery of blood stained shirt from accused on first day nor of Shalwar and Patka- Parcels of blood-stained earth and Chhura deposited in Malkhana but of clothes deposited later--Recovery witness stated that some space was left to add some other clothes--Recovery witness belonging to community of deceased imported from distance of 3/4 miles on three different dates--No witness from locality associated--Investigation Officer making clumsy attempts to plant fake recoveries--Evidence relating to recoveries, was rejected being not worthy of any credit in circumstances.
Tariq Javaid for Appellant.
Qazi M. Yasin for the State.
Kh.Sarfraz Ahmad for the complainant.
Naeem Ullah Hashmi (20) son of Habibullah, resident of Kot Habibullah, Gujranwala, was tried by the learned Additional Sessions Judge, Faisalabad, on the allegation that on 16-6-1984 at 12.00 noon he caused injuries to Abdul Qadir deceased at his house, situate in Peoples Colony, Faisalabad, as a result of which he died on the same day. By judgment dated 10-11-1985 he was convicted under section 302 PPC and sentenced to imprisonment for life and a fine of Rs.10,000, or in default in the payment thereof to undergo further R.I. for five years. He was also ordered to pay Rs.10,000 as compensation under section 544-A Cr.P.C. to the legal heirs of the deceased. The convict has appealed and Dr.Captain Rizwan Qadir complainant, son of the deceased, has filed Cr.Revision No.211 of 1986 praying that the sentence of the convict be enhanced to death and compensation be also enhanced suitably. The appeal and the revision petition shall be disposed of by this judgment.
2. The case was registered at Police Station Peoples Colony, Faisalabad, at 1.15 p.m. on the basis of statement E.X.PD of Rizwan Qadir, complainant, recorded by Abdul Ali Shah, Sub-Inspector, in the District Headquarters Hospital, Faisalabad, at 12.55 p.m., which reads as under:-
3. Dr. Abdul Qadir succumbed to his injuries on the same day. Abdul Ali Shah, Sub-Inspector prepared his injury statement Ex.PM and inquest report ; EX.PN and despatched his dead body to the mortuary for post-mortem examination. Thereafter he reached the spot and collected blood by means of cotton swabs and made it into a sealed parcel vide memo. Ex.PE. He arrested the accused on the same day and removed blood-stained shirt P-6 from his person which was made into a sealed parcel vide memo. Ex.PF. On the personal search of the accused he recovered his identity card .P-7, purse P-8, four photographs P-9/1-4, one rough visiting card P-10, one currency note of rupee one, one coin of 50 paisa and two coins of 10 paisa each, vide memo. Ex,PO. On the next day, i.e. 17-6-1984, he recovered Chhura Ex.P.3 at the instance of the accused from the lawn of the house -of the deceased and took the same into possession vide memo. Ex.PG. On 20-6-1984 he recovered Shalwar P-4 and Patka P-5, both blood-stained, at the instance of the accused, and made them into a sealed parcel vide memo. Ex.PH. He completed the investigation on 25-6-1984 and forwarded the file of the case to Martial Law Authorities for trial by the Military Court. The case was not approved for trial by Military Court and thereafter it was sent to the Court of Sessions for trial.
4. On 16-6-1984 Dr. A.A. Khalid (PW .7) Medical Officer, District Headquarters Hospital, Faisalabad, examined Dr. Abdul Qadir deceased, when alive, and found the following injuries on his person:-
"'(1) An incised wound 6 cm x 1 cm x bone deep on back left forearm upper part.
(2) An incised wound 3 cm x 1 cm x bone deep above the injury No. l as 2 cm.
Both these injuries communicated with each other.
(3) A stab wound 4 cm x 1 cm into abdominal cavity deep on left iliac fossae.
(4) A stab wound 3 cm x 1 cm into abdominal cavity deep on right hypochondrium."
All the injuries were caused by a sharp-edged weapon. Injuries 3 and 4 were kept under observation and the rest were simple.
On the same day at 5.00 p.m. Dr.Imtiaz Ahmad Gill conducted autopsy on-the dead body of Dr.Abdul Qadir deceased and found the injuries, referred to above, on it. Small intestines were cut at eight places, mesenteric vessels were cut at six places and pelvic colon and right lobe of liver were also cut.
In the opinion of the doctor death was due to shock and haemorrhage. Injuries 3 and 4 were sufficient to cause death in the ordinary course of nature.
5. In support of its case the prosecution examined twelve witnesses in all, and its mainstay is the testimony of Rizwan Qadir complainant and Samiullah (PW.11), who furnished the ocular account of the occurrence. The prosecution also relied on the evidence relating to the recovery of blood-stained clothes and blood-stained Chhura at the instance of the appellant and the reports of Chemical Examiner and Serologist Ex.PP, PQ and PR.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked why the prosecution witnesses had deposed against him, he stated "because they belong to Ahmadia sect." He further stated that he was falsely implicated 14ecause he was "helpless". No evidence was led in defence.
7. The learned trial Judge accepted the prosecution evidence and convicted and sentenced the appellant, as mentioned above.
8. Learned counsel for the appellant contends that facts and circumstances are consistent with the assumption that Rizwan Qadir and Samiullah PWs had not seen the occurrence, and the appellant was nominated as the assailant of the deceased after due deliberations and named as such in the FIR which was lodged at a very belated stage and not at 12.55 noon, as claimed by the prosecution. He further submits that the evidence on the record clearly shows that the appellant was not known to the complainant and Samiullah P.Ws prior to the occurrence, therefore, identification parade was a must, but no such parade was ever held, and this circumstance alone should be enough to reject the prosecution version altogether. It is submitted that the Investigating Officer fabricated ocular evidence against the appellant in connivance with the complainant party, dishonestly planted recoveries of blood-stained clothes and blood-stained Chhura on him with a view to strengthen the prosecution case, and under the influence of the complainant party completed the investigation in hot haste w within a period of one week and sent the case to Military Authorities for trial by a Military Court, therefore, it will be hazardous to place any reliance on the prosecution evidence.
Learned counsel for the complainant and the State, on the other hand, submit that both the eye-witnesses are natural witnesses of the occurrence having absolutely no motive to falsely implicate the appellant in a heinous crime involving capital punishment. Learned counsel for the complainant further submits that the appellant never asked for a test identification parade, and even otherwise no identification parade was required because the facts and circumstances indicate that the complainant knew the appellant by face. It is submitted that the appellant took the life of an innocent and defenceless person, therefore, he deserves capital punishment.
9. At the trial Rizwan Qadir, son of the deceased, and 1Samiullah (PW.11) furnished ocular account of the occurrence. The statement of Rizwan Qadir, forming the basis of formal FIR Ex.PD/1, has been detailed in the earlier portion of this judgment. In the aforesaid statement he claimed that' as the bell rang he went out and saw Naeemullah Hashmi, labourer; Koh-i-Noor Mills, standing outside, who inquired from him as to where Dr. Abdul Qadir was. This statement leaves a clear impression that the first informant know the appellant by name. His statement at the trial, however, gives the impression that the appellant was not known to him previously either by name or by face. He stated:-
"When I reached outside, I saw that a man was standing outside. That man is present in Court today in police custody. He inquired from me whether Dr. Abdul Qadir deceased was present in house. I told him that he was present. I asked him, his name. The man told his name as Naeemullah Hashmi, the present accused in the Court. I also inquired from him what business he has with my father and from where he has come. He told me that he has come from Koh-i-Noor Mills, Faisalabad and he is to see the deceased .... I asked him to come inside and I will inform my father. I went inside the house to inform my father. My father was sitting in the room at his house along with Samiullah and Shahzad Khan P.Ws. I informed my father that a man want to see him, who has told his name Naeemullah. He got up and came out of the room. I, Shahzad and Samiullah also got up. My father was ahead of us ..When I reached the Varanda I saw that Naeemullah was hitting my father with knife."
The above narration leaves no room for doubt that the appellant was not previously known to the complainant. Had he been known to him prior to the day of occurrence, he would not have stated that he saw a man; he asked him his name; the man told his name as Naeemullah etc. During the arguments learned counsel for the complainant had to concede that the above statement of Rizwan Qadir shows that the name and profession of the accused were not previously known to him. He, however, submitted that the complainant did not state at any stage that the accused was not previously known to him, therefore, it can safely be concluded that he knew him by face though not by name, and in that view of the matter identification parade was not necessary. In support of this contention he relied on the Supreme Court judgment in Ismail's case 1974 S C M R 175. The relevant portion of the judgment is reproduced below:
"Learned counsel next contends that if it be so that he was not familiar with the accused persons, then his evidence was equally unreliable, because, the witness was not put up at any test identification parade to identify the accused. This was not, in our opinion, necessary, because the witness did not say that he did not know the accused persons but merely said that he was not familiar with their names at the time of the incident. It is only where the accused are seen for the first time at the place of the incident by a witness that it becomes necessary to put up such a witness at a test identification parade. If an accused is already known by face although not by name, it is unnecessary to put up such a witness to a test identification because at the parade he only identifies by face and not by name."
The observations made in the above judgment have no application to the facts of the present case. In that case the witness suffered injuries during the occurrence and what he said was that he was not familiar with the names of the accused at the time of occurrence, and the Supreme Court observed that if the accused is already known by face although not by name, it is unnecessary to put up such a witness to a test identification. In the present case there is nothing on the record to show that before the day of occurrence the complainant knew the accused by face. The contention that since the complainant did not state that the accused was not previously known to him, therefore, it should be presumed that he knew him by face, is devoid of force. No such presumption arises from the facts and circumstances of the present case, which rather show that the appellant was seen for the first time at the place of occurrence by the alleged eye-witnesses.
10. In cross-examination Rizwan Qadir asserted having stated before the police that on "hearing the bell" he went outside and saw a man standing there. On his inquiry he told him that his name was Naeemullah Hashmi. He was confronted with his statement Ex.PD wherein it was not so recorded. The position boils down to this that the name. and profession of the appellant figure in the FIR which is shown to have been made at 12.55 p.m. The complainant stated therein that when he came out, he saw Naeemullah Hashmi, labourer, Koh-i-Noor Mills standing there. His statement at the trial shows that previously he did not know the name and profession of the appellant. He stated that on coming out he saw a man standing there. He inquired about his name and profession and he told him that his name was Naeemullah Hashmi and he was labourer Koh-i-Noor Mills. In the FIR he had not so stated, therefore, his statement at the trial that on his inquiry the accused told his name and profession to him, cannot be accepted.
Even otherwise, it does not appeal to reason that a stranger coming with full preparation to commit the murder would disclose his correct name and profession to an inmate of the house of the intended victim. The question would, therefore, arise how the name and profession of the appellant happened to figure in the statement Ex.PD, shown to have been recorded 55 minutes after the occurrence Obviously, the complainant had no means to ascertain these particulars within that short interval. All this lends support to the view that his statement Ex.PD, forming basis of the registration of the case, was recorded at a much belated stage., after ascertaining the name and other particulars of the deceased through other sources.
Since the accused was not known to the eye-witnesses, test identification parade was absolutely necessary which was never arranged. The identification of the appellant by the eye-witnesses in Court was absolutely useless because he was the only person in custody before the Court and they had seen him several times during the investigation and on the dates of hearing in the Court.
11. Rizwan Qadir complainant is a youth of 22123 years. On seeing him in the house, the natural course for the accused- was to leave the premises on some excuse. It is difficult to believe that he would stay any more to prosecute his intended object knowing full well that a young man was present in the house and any mischief on his (accused's) part may land him in trouble.
12. Rizwan Qadir complainant and Samiullah PW, who is a chance witness, claim to have accompanied Dr.Abdul Qadir deceased alongwith Shahzad Khan when he went outside to see the accused. In the ordinary course Rizwan Qadir, Shahzad Khan and Samiullah were not expected to accompany him when he went outside to see the visitor.
13. In his statement Ex.PD Rizwan Qadir had stated that after causing injuries, Naeemullah Hashmi fled away alongwith the Chhura. At the trial he denied having stated so in the aforesaid statement with which he was confronted. In cross-examination Samiullah PW admitted that he saw the accused running away from the place of occurrence with the weapon of offence. According to the prosecution the weapon of offence, i.e. blood-stained Chhura, was recovered from the lawn of the house of the deceased on the next day. According to recovery witness Muhammad Akram (PW.6) Chhura was lying on the grass and was visible to naked eye. It is evident that the assailant, Whosoever he was, had run away from the spot after throwing the Chhura in the lawn. Had Rizwan Qadir and Samiullah seen the assailant running away from the spot, they would not have omitted to notice that he had thrown the Chhura in the lawn of the house, and the same would have been produced before the Investigating Officer as soon as he contacted the complainant in the hospital.
14. The conduct of the eye-witnesses was also highly unnatural. The accused was not armed with any fire-arm. According to the eye-witnesses the accused, caused as many as four injuries to the deceased in their presence, but they did not make any effort to apprehend him. Three persons could conveniently overpower him, or at least give him a chase raising alarm. Had they done so, it would not have been possible for the assailant to make good his escape, for the reason that it being a daylight occurrence in populated area of the city, many persons would have been attracted to the alarm and captured him.
15. Rizwan Qadir and Samiullah P.Ws. claim to have removed the deceased to the hospital. Samiullah stated that the deceased was profusely bleeding when he gave him support and his clothes might have been stained with blood, but no such clothes-were taken into possession by the police.
All the above circumstances strongly militate against the prosecution and repell its claim that Rizwan Qadir complainant and Samiullah P.W. had seen the occurrence. In the circumstances, it will be highly unsafe to place any reliance on their evidence.
16. The appellant is not shown to have any motive to commit the murder of the deceased. It was withheld by the complainant when he lodged the FIR. He stated that he would disclose it later on. At the trial he stated that he was asked about the motive, but he had no knowledge about the same. He was confronted with Ex.PD wherein it was not so recorded.
17. The prosecution has also relied on the recoveries of blood stained clothes and Chhura at the instance of the appellant. I first proceed to consider the recovery of blood-stained Chhura. In the FIR it was stated that the accused had run away from the spot with the Chhura. However, according to the prosecution the blood-stained " Chhura was recovered from the house of the deceased on the next day of the occurrence. Recovery witness Muhammad Akram PW.6 stated that the Chhura recovered at the instance of the accused was lying under a plant at a distance of six feet on the left side from the main gate, and was visible to naked eye. Rafay Karim PW.9, who accompanied the dead body from the mortuary to the house of the deceased, stated that about two to three thousand persons had gathered at the residence of the deceased. It is very astonishing that the Chhura lying in the lawn and visible to the naked eye went unnoticed by any one and was recovered on the next day at the instance of the accused. Had it been lying in the lawn of the house of the deceased, it would have been discovered within no time on the very day of occurrence. 'This recovery, therefore, appears to have been planted on the accused.
18. As regards the recovery of blood-stained clothes, the defence plea was that the Investigating Officer fabricated the memos of these recoveries after the file was received from the Martial Law Authorities. A suggestion to that effect was put to the Investigating Officer, but he denied it as incorrect. He admitted that he incorporated all his investigation in the summary report Ex.DB submitted alongwith the file of the case to the Martial Law Authorities. In the said report p after giving the brief facts of the case it has been stated that "Investigation was conducted by S.I. Abdul Ali Shah, got the post-mortem of the dead body, recorded the statement of P.Ws under section 161 Cr.P.C. arrested the accused and recovered weapons of offence. He also took into possession the blood-stained earth and sent the earth and Chhura to the office of Chemical Examiner, Punjab, Lahore, for report. After usual investigation challaned the accused." The report does not contain a word about the recovery of blood-stained shirt from the person of the accused on the day of occurrence, nor about the recovery of Shalwar and Patka dated 20-6-1984. These recoveries, particularly of shirt on the day of occurrence, were no less important than the recovery of Chhura. Had these clothes been actually recovered,. there was no reason to omit them in report Ex.DB dated 25-6-1984 bearing the signatures of Investigating Officer Abdul Ali Shah. The contention that these recoveries were planted later on, therefore, cannot be lightly ignored. In this behalf I am fortified by two very strong circumstances, firstly the Investigating Officer admitted that he had been attending the Police Station from 16-6-1984 to 21-6-1984 and that he deposited the sealed parcels containing blood and Chhura on 17-6-1984 at the police Malkhana, but the parcel containing the shirt was deposited there on 21-6-1984. He could not assign any reason why the shirt recovered on 16-6-1984 was not deposited alongwith the blood and blood-stained Chhura on 17-6-1984. Secondly, he admitted that in the police statement of Muhammad Akram PW some space was left blank after the words " kameez aur" He volunteered that it was inadvertent omission. The explanation is too clumsy to merit any consideration. There appears substance in the contention of the learned counsel for the appellant that the space was left blank to fill in some other "blood-stained clothes" subsequently and to show the recovery thereof from the appellant.
19. The recoveries of shirt dated 16-6-1984, Chhura dated 17-6-1984 and of Shalwar and Patka dated 20-6-1984 are supported by Muhammad -Akram PW.6 and Abdul Ali Shah, Investigating Officer. Muhammad Akram PW admitted that the places of recovery, i.e. the house of the deceased and quarter No.6 of Koh-i-Noor Mills were at a distance of three/four miles from his residence. He stated that he joined the investigation' out of sympathy for tree deceased who belonged to his community (Qadiani community). He admitted that at both the places of recovery, i.e. the house of the deceased and the residential quarter in Koh-i-Noor Mills a large number of other persons were also present. It is evident that this witness was imported to the places of recovery from 3/4 miles on three different dates, i.e. 16-6-1984, 17-6-1984 and 20-6-1984 but no witness from the vicinity of the places of recovery was associated in the investigation although such persons were available. Not only the Investigating officer did not associate in the investigation unconnected persons from the vicinity, but he also appears to have made a clumsy attempt to plant fake recoveries with a view to strengthen the prosecution case. In the circumstances, the evidence relating to recoveries is rejected being not worthy of any
For the foregoing reasons the evidence led by 'the prosecution is not at all sufficient to warrant the conviction. I, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be set at liberty forthwith if not required to be detained in any other case.
Cr. Revision No.211 of 1986 automatically fails and is dismissed.
S.A./N-54/L
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