Registration of FIR in Cognizable Cases

PLJ 2001 SC 402 [Appellate Jurisdiction]

Present: ABDUR REHMAN KHAN, IFTIKHAR MUHAMMAD CHAUDHRY AND ABDUL HAMEED DOGAR, JJ.

MEAN ASHRAF and others-Appellants

versus

STATE-Respondent Criminal Appeals Nos. 36 to 43 of 2000, decided on 16.10.2000.

(On Appeal from the Judgment dated 1.3.1999 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeals Nos. 57 to 64 of 1998).

(i) Chance witness-

—Chance witness-Evidentiary value-Evidence of a chance witness in a criminal case can be accepted if he successfully establishes his presence at place of incident, otherwise Court has to find out strong corroboration.

[P. 431] H

1978 SCMR114 and 1997 SCMR 89 ref. (ii) Criminal Procedure Code (V of 1898)--

—S. 154-Police Rules, 1934, R. 24.5(c)--Registration of First Information Report in cognizable cases-Excise of powers by police-Scope— Principles-Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per procedure-Therefore, police enjoys no jurisdiction to cause delay in registration of case and under law is bound to act accordingly enabling machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help investigating agency in completing process of investigation expeditiously-Any slackness or lukewarm attitude by registering authority of F.I.R. in fact intends to help accused involved in commission of offence-Thus it is advisable that provisions of Section 154, Cr.P.C. read with Rule 24.5 (c) of Police Rules, 1934 be adhered to strictiy-There should not be any negligence in recording F.I.R. and supply copies to concerned quarters because departure from mandatory provision of law creates a room to doubt truthfulness of allegation against accused incorporated in F.I.R.           [P. 423] D

(iii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 540-Court, in exercise of powers under S. 540, Cr.P.C. can summon  any witness at any stage of trial of his evidence which appears to be essential for just decision.                          [P. 437] J

(iv) Criminal Procedure Code, 1898 (V of 1898)--

—- S. 540--Jurisdiction under S. 540, Cr.P.C. is always subject to satisfaction of Court that evidence intended to be produced on record would be a stepping stone necessary for just decision of case and only on such satisfaction permission can be accorded.                                                                               [P. 441] K

(v) Criminal Procedure Code, 1898 (V of 1898)--

—-Ss. 535, 537, 227 & 374-Trial Court is competent to alter charge at any stage in exercise of its inherent jurisdiction conferred on it under S. 535 read with S. 537, Cr.P.C.-Appellate Court also enjoys same powers particularly in reference cases under S. 374, Cr.P.C. for confirmation or otherwise of death sentence under S. 302, P.P.C.        [P. 470] T

PLD 1957 SC (Ind.) 381 ref. (vi) Criminal Trial-

—-Witness-Crime on a public thoroughfare-Evidence of a passerby-Status-When a crime is committed on a public thoroughfare, or at a place frequented by public generally, presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that witnesses concerned could not give any satisfactory explanation for their presence at or near spot at relevant time, or there is otherwise any inherent weakness or contradiction in their testimony-­IP. 431] I

1978 SCMR 114 and 1997 SCMR 89 ref. (vii) Criminal Trial-

—Technicalities should be overlooked without causing any miscarriage of justices.            [P. 469] Q

PLD 1995 SC 1 ref. (viii) Pakistan Penal Code, 1860 (XLV of 1860)--

—Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVII of 1997), S. 7-Constitution of Pakistan (1973), Art. 185(3)~Leave to appeal was granted by Supreme Court to accused to consider question of jurisdiction of Special Court constituted under Anti-Terrorism Act, 1997 to try case and points as to whether principles of safe administration of justice in criminal cases had been followed in case while appraising prosecution evidence as also to find out if view which found favour with High Court was in consonance with law as enunciated by Supreme Court in various cases from time to time.

[Pp. 412 & 413] A

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

—S. 302/149, 148 & 382-Anti-Terrorism Act (XXVH of 1997), S. 7—Basic principle of reappraisal of evidence in criminal cases is that if a witness is trustworthy and reliable then conviction can safely be based—In case such witness is unreliable his evidence cannot be utilized for .passing of conviction against accused-If, however, witness has given partially reliable and partially unreliable evidence then applying device of sifting grain from chaff and seeking independent corroboration from other
reliable evidence.                                                                         [P. 416] C

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

—Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVII) of 1997, S. 7- Unexplained delay in recording statement of eye-witness-Effect-Where no plausible explanation is offered by prosecution for not recording statement of eye-witness immediately after registration of case, then evidence of such witness becomes incredible.        [P. 429] F

1993 SCMR 550 and 1995 SCMR 127 ref. (xi) Pakistan Penal Codem, 1860 (XLV of 1860)-

—Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVH of 1997), S. 7-Principle—Court in criminal administration of justice is duty bound to evaluate evidence available on record as a whole notwithstanding fact whether benefit of same will got to defence instead of prosecution—Court seized of matter must consider cumulative effect of total evidence while assessing its evidentiary value and not to consider it in isolation.

[P. 430] G

PLD 1971 SC 541 and PLD 1976 SC 44 ref. (xii) Pakistan Penal Code, 1860 (XLV of 1860)-

—-Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVII of 1997), S. 7-  Recovery of incriminating articles is used for purpose of providing corroboration to ocular testimony—Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion.                  [P. 465] N

PLD 1971 SC 541 ref.

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

—Ss. 302/149, 148, 382--Anti-Terrorism Act (XXVII of 1997), S. 7—Ocular testimony suffering from material discrepancies and having lost its intrinsic value, cannot be corroborated by any corroborative evidence like medical evidence, recovery evidence etc.                                                                                         [P. 466] O

ILR16Lah.995re/: (xiv) Pakistan Penal Code, 1860 (XLV of 1860)-

—Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVH of 1997), S. 7--Post- mortem report-Evidentiary value of-Post-mortem report cannot furnish corroboration to ocular testimony and other evidence brought by prosecution on record in view of principle of law that such evidence being supporting in its nature can only be helpful to prosecution if it succeeds in establishing its case on basis of direct ocular or circumstantial evidence against accused.          [P. 469] S

PLD 1993 SC 895 ref. (xv) Pakistan Penal Code, 1860 (XLV of 1860)--

—Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVH of 1997), S. 7-Circumstantial incriminating evidence must be incompatible with innocence of accused or guilt of any other person and incapable of explanation upon any other reasonable hypothesis except that of his guilt.

[P. 467] P PLD 1970 SC 56 ref.

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

—-Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVH of 1997), S. 7  Cricumstantial evidence-Principles stated-Court's approach, while appraising evidence, should be dynamic and not static-It should keep in view all facts and circumstances of case and if it is satisfied that factually person charged with offence has committed same, it should recordconviction though there might have been some technical lapses on part of investigating agency/prosecution, provided same have not prejudiced accused in fair trial.                        [Pp. 468 & 469] R

PLD 1996 SC 305 rel.

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

—Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVH of 1997), S. 7~Benefit of doubt-Prosecution is bound to prove case against accused beyond doubt and such burden does not shift from prosecution to accused even if he takes up any particular plea and fails to substantiate it and if there is  any room for benefit of doubt in prosecution case, it will go to accused and
not to prosecution.                                                                   [P. 469] S

PLD 1953 FC 93; PLD 1970 SC 10 and PLD 1996 SC 1 ref.

 (xviii) Pakistan Penal Code, 1860 (XLV of I860)--

—S. 120-A--Crinrinal conspiracy-Privacy and secrecy of an agreement, oral or written, to enter into a criminal conspiracy is essence to establish that prior to commission of offence two or more persons had entered into aconspiracy for committing an unlawful wrong.                           [P. 472] U

AIR 1965 SC 682; PLD 1979 SC 53; 1985 PCr. LJ 2638; 1995 PCr.LJ 1424; 1998 PCr.LJ 1486; 1990-1903 All ER 1; 1998 PCr. LJ 1990; AIR 1954

Mys. 81 ref.

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

-—Ss. 302/149, 148 & 382--Anti-Terrorism Act (XXVH of 1997), S.7--Appreciation of evidence-Principle-Wholly reliable evidence can be accepted without corroboration, unreliable evidence can be brushed aside without any reservations whereas halfly reliable evidence needs strong corroboration for its acceptance. [P. 473] V

(xx) Pakistan Penal Code, 1860 (XLV of I860)--

—-Ss. 302/149, 148 & 382-Anti-Terrorism Act (XXVH of 1997), S. 7-Neither any prejudice had been caused to accused nor impugned order passed by Special Court was without jurisdiction, because accused had been convicted and sentenced under S. 302/149, P.P.C. as well besides under S. 7 of Anti-Terrorism Act, 1997-Prosecution, however, had failed to produce trustworthy, confidence inspiring and consistent evidence against accused which suffered from material discrepancies, contradictions and omissions and seemed to have been fabricated to prove prosecution case-Accused on basis of evidence of such defective qualitycould not be immured further because they had every right to be dealt with in accordance with law under Constitution-Courts below had passed judgments contrary to substantive law as well as precedented law enunciating principles for appreciation of evidence-Accused acquitted.

[Pp. 413 & 475] B & AA

(xxi) Qanun-e-Shahadat, 1984 (10 of 1984)-

—-Art. 22-Identification parade-In order to ensure that identification parade was conducted fairly and properly it was incumbent upon prosecution to adopt such measures so as to eliminate possibility of identifying witnesses to see accused after commission of offence till identification parde is held immediately after arrest of accused persons as early as possible.                                                                 ,                            [P. 460] M

AIR 1961 All. 153 and PLD 1981 SC 142 ref. (xxii) Qanun-e-Shahadat, 1984 (10 of 1984)--

—Tainted evidence-Status-One piece of tainted evidence cannot corroborate another piece of tainted evidence. [P. 459] L

1972 SCMR 40 and 1993 SCMR 1602 ref. (xxiii) Site Plan--

—Site plan-Evidentiary value-Site plan loses it evidentiary value if it is not prepared on pointation of a witness.      [P. 424] E

PLJ 1980 SC 293 ref.

Mr. Muhammad Naeem Sheikh, ASC for Appellants.

Mr. Maqbool Ellahi Malik, Advocate General Punjab, Ms. Yasmin Saigal, Asstt. A.G., Mr. Muhammad Bashir Ch. Asstt. A.G. and Rao Muhammad YousufKhan,AOR. for State.

Date of hearing: 19th to 22nd & 25th to 29th September 2000.

JUDGMENT

Iftikhar Muhammad Chaudhry, J.-These appeals are by leave of the Court and we intend to decide them by this judgment as in all the matters identical questions of facts and law arising from common impugned judgment dated 1st March 1999 passed by Lahore High Court, Multan Bench/Appellate Bench are involved.

"FACTS OF THE CASE AS PER FARD-E-BAYAN OF P.W. IJAZ AHMAD (Ex.P/Q)."

2. The prosecution case as gleaned from Fard-e-Bayan (Ex. P/Q) dated 20th February 1997 got recorded by PW Ijaz Ahmad son of Riaz Hussain Constable of Police Guard posted at Khana-e-Farhang, Multan is that at about 12.00 noon he alongwith Rahim Dad Chowkidar (deceased) was on duty on the gate when three young boys (described by their complexion, stature and age, came there and asked to allow them to meet the Director Agha Syed Muhammad All Rahimi as one of them used to there off and on. The Chowkidar after obtaining permission on intercom sent them inside. They went to the Reception. After a little while four other young boys wearing Shalwar andQameez came there out of whom one has wrapped himself into a Chaddar. The description of their complexion, size and age was also mentioned in the statement. They also entered in the main gate on the pretext to meet with Agha Syed Muhammad Ali Rahimi. In the meanwhile reports of firing were heard from the Reception Room. Theperson standing near them who has wrapped himself into Chaddar took out Kalashnikov and fired on the Chowkidar who due to injuries fell down whereas remaining accused took out the pistols. The complainant apprehending danger pointed out his service rifle .9-MM towards them but in the meanwhile one of the accused has thrown powdered chillies on his face whereas one of the accused snatched official rifle from him due to which he became helpless. In the meanwhile he had been hearing reports of firing from inside. Thereafter all the three accused persons having pistols in their hands came running from inside towards the gate. Then all the 7 accused alongwith arms and Ammunition fled away in a blue carry van, white Potohar Jeep and a Motor-Cycle parked there. The commotion of the complainant attracted PWs Khalid Mehmood 1685/C and Khurshid Ahmad 1129/C and they had also seen the accused persons running away in Carry Van, Potohar Jeep and Motorcycle. Later on with the assistance of his other companions he managed the dead bodies of (i) Rahim Dad Chowkidar, (ii) Habib Driver, (iii) Faqir Muhammad Chowkidar, (iv) Dildar Hussain, Librarian, (v) Syed Agha Muhammad Ah" Rahimi Director (employees of Khana-e-Farhang) and two other unknown persons (subsequently their names were disclosed to be Nizamuddin and Safdar Hussain). During the firing one Rasool Bakhsh, Electrician was also seriously injured who subsequently succumbed to the injuries as well. The complainant also stated that his service rifle was taken by the accused persons with them.

INVESTIGATION

3.    PW Muhammad Nausherwan, SI/SHO (Investigating Officer) P.S. Old Kotwali, District Multan dispatched Fard-e-Bayan of PW IjazAhmad (Ex. P./Q) to Police Station for registration of the case. Accordingly at 12.45 p.m. F.I.R. No. 32 of 1997 (Ex. PQ/1) dated 20th February 1997 wasregistered under Section 302/324/396/148/149 PPG.

4.       On   registration   of   case   investigation   commenced.   The  Investigating Officer after preparing inquest reports and injury statement of Rasool Bakhsh dispatched dead-bodies of the deceased and also referred Rasool Bakhsh injured to the hospital. Thereafter the Investigating Officer secured blood-stained earth from underneath the dead-bodies. He also recovered 13 empties vide recovery memo Ex. PY as Articles P. 43/1-13 and sealed them into a parcel. Three bullet leads Articles P. 44/1-3 were also taken into possession and same were sealed into a parcel vide recovery memo. Ex-PZ. He also prepared Naqsha Wardat (site-plan) without scale as Ex. PRR wherein 4 persons were shown to be the witnesses of the incident namely PW Ijaz Ahmad, PW Khalid Mehmood and Khurshid Ahmad (not produced). It is important to note the contents of site-plan as well as statement of PW Nausherwan does not indicate that on whose pointation it was prepared. Similarly PW Ijaz Ahmad in his Court deposition did not depose t at on whose pointation the I.O. has prepared the site-plan. Besides it, statements of witnesses under Section 161 Cr.P.C. were recorded by him. The scaled plan Ex. P/A was subsequently got prepared by the I.O. from P.W. Irian Hayat as Ex. PA/1 and Ex. A/2 dated llth March 1997. In the Inquest reports of Rasool Bakhsh son of Haji Ahmad Bakhsh, Ex.PC/2, Faqir Muhammad son of Malik Bahawal, EX-PD/2, Dildar Hussain son of Ashiq Hussain Ex-PE/2, Nizamuddin alias Nadeem son of Ikramuddin Ex. PF/2, Muhammad Habib son of Muhammad Ibrahim Ex-PG/2, Rahim Dad son of Muhammad Hussain, Ex-PH/2, Agha Syed Muhammad Ali Rahimi, Ex-PI/2 and Safdar Hussain son of Manzoor Hussain Ex-PJ/2 it is mentioned that PW Ijaz Ahmad and two other constables namely Khalid Mehmood and Khurshid Ahmad (not produced) witnessed the incident.

5.   It is note-worthy that service rifle of PW Jjaz Ahmad allegedly snatched by the culprits from him at the time of incident was recovered on the same day from a street of Bukar Mandi, vide recovery memo. Ex-P/L whereas its magazine Article P/38 was shown to have been recovered on llth March 1997 viderecovery memo. Ex. PN which was lying in a drain. On the day of incident acquitted accused Iftikhar Ahamd alias Khara was arrested. On the following day i.e. 21st February 1997 appellant Abdul Hanran   was   arrested.   Perusal   of   statement   of   PW   Shahid   Niaz Inspector/SHO PS Mumtazabad, Multan shows that he alongwith Ijaz Shafi Inspector were deputed for arrest of accused Sh. Ashfaq from Bahawalpur. As per his version he dialed a specific number of Bahawalpur and passed on message that they should bring their guest at a particular place whereupon Qari Sadiq alongwith his two sons brought. Sh. Ashfaq with them. Initially Abdul Hannan disclosed his name as Ashfaq but when he was brought to Multan during investigation he divulged his name to be Sh. Abdul Hannan. It is the case of the prosecution that during interrogation Abdul Hannan led the police for recovery of huge quantity of arms and ammunition including Kalashnikov, pistols .30 bore, rocket launchers and other articles (P-46 to P- 93). These articles were recovered under the supervision of PW Mirza Maqbool Baig DSP/SDPO, Kotwali Circle. In respect of recovery of arms and ammunition a separate case Bearing No.  80 of 1997 under Sections 13(a)/13(b)/20 of Arms Ordinance, 1965 was registered at P.S. New Multan. These articles alongwith a white colour jeep bearing Registration No.  6789/MNF were recovered from Kohti No. 346/F Shah Rukan-e-Alam Colony Multan. At his pointation clothes Articles. P/l to P/33 were secured vide memo. Ex. PK from House No. 139-K Shah Rukan-e-Alam Colony Multan City. Out of these clothes Shirt Article. P/21 was found to be blood­ stained, as such it was separately sealed into a parcel, vide recovery memo.Ex. PK/4.

6.      P.W.   Muhammad   Nausherwan   SI/SHO   prepared   injury statement of PW Ijaz Ahmad on 24th February 1997 vide Ex-PBB/A and sent him to the hospital for examination. In application it was mentioned that statedly on the day of incident (i.e. 20th February 1997) accused persons have thrown chillies in his eyes and during the scuffle he has also received hruises on his left hand, therefore, his examination he conducted. Accordingly PW Dr. Syed Raza Mohiuddin examined PW-ljaz Ahmad on the same day and furnished Report No. 335/97 (Ex-P/BB). PW. Muhammad Nausherwan arrested acquitted accused Ghulam Mujtaba, HafizMuhammad Aslam, Muhammad Afzal alias Afzaal and Ahdul Salam alias Amjad on 3rd March 1997 and 9th March 1997 respectively.

7-A. Incomplete challan against 5 accused persons namely Ahdul Hannan son of Abdul Waheed, Iftikhar Ahmad alias Khara son of Bashir Ahmad, Ghulam Mujtaba son of Atiqur Rehman, Hafiz Muhammad Afzal son of Muhammad Sadiq, Muhammad Afzal alias Afzaal son of Sakhi Muhammad was submitted on 6th April 1997.

7-B. It may not be out of place to mention here that as per prosecution version during interrogation of appellants Sh. Abdul Hannan and acquitted accused Iftikhar Ahmad alias Khara, record of Telephone Nos. 564759 (Ex-P/35), 562000 (Ex-P/37), and record of Pager No. 1125 (Ex-P/36) was taken into possession on 23rd February 1997 vide recovery memo. Ex. PM and in pursuance of the same Shafique-ur-Rehman son of Suleman was arrested. Thus on his arrest another incomplete challan dated 7th May 1997 was filed in the Court. It may also be noted that last mentioned challan was followed by another challan dated 16th May 1997 wherein for the first time some of the appellants namely Ghulam Rasool Shah alias Asghar Shah, Abu-Bakar alias Usman alias Zarrar alias Rashid son of Qari Muhammad Tayyab and Malik Muhammad Ishaque son of Ali Ahmad were shown as absconders, therefore, proceedings as provided under Section 87 Cr.P.C. were taken in hand. On receipt of report of Serologist another incomplete challan dated 1st August 1997 was filed in the Court. This challan was followed by another challan dated 7th August 1997 wherein Ghulam Rasool Shah alias Asghar Shah alias Aslam Shah alias Hafiz Shah son of Tufail Shah and appellant Hafiz Shafique-ur-Rehman aZias Akram aliasAbid son of Ali Muhammad were shown to have been arrested with effect from 16th July 1997 and 20th July 1997 respectively with further statement that from the same date they are on judicial remand.

7-C. On 13th September 1997 another incomplete challan was filed with correct address of the witnesses. This challan was followed by another incomplete challan dated 28th September 1997 wherein Muhammad Ishaque son of Malik Ali Muhammad (proclaimed Offender) was shown to have been arrested on 13th September 1997 with the statement that he was already in custody in Case No. 154 dated 3rd May 1997 under Section 302/34 PPC registered at Thana Kotwali Faisalahad. This appellant was kept on police remand with effect from 14th September 1997 to 20.9.1997 and in the meanwhile on 19th September 1997 he was examined at Faisalabad by Arshad Hussain PDSP/SDPO Old Kotaril Multan who recorded his statement under Section 164 Cr.P.C. and also prepared a Vedio Film.

7-D. It may not be out of place to note at this stage that appellants Muhammad Yousaf alias Yaqub son of Shafqat Rasool and Zubair alias Anwar son of Qaisar Hussain who were confined in Central Jail Bahawalpur and were shown to have been arrested on 29th September 1997 whereas Abu Bakar alias Usman alias Zarraralias Rashid was shown to have been arrested with effect from 13th October 1997 although he was already detained in Central Jail Bahawalpur in case No. 182 dated 25th September 1997 under Section 302/353/427/34/109/120-B PPC of Police Station Saddar Bahwalpur alongwith Muhammad Yousuf and Zubair.

7-E. It is to be added that Ghulam Rasool Shah Bukhari was detained in P.S. Kotwali Faisalabad alongwith Muhammad Ishaque son of Malik Ali Muhammad. Both of them were also shifted to District Jail Multan. Appellants Abdul Hanan, Hafiz Shafique-ur-Rehman alias Akram alias Abid son of Ali Muhammad and Ghulam Rasool Shah alias Asghar Shah alias Aslam Shah alias Hafeez Shah son of Tufail Shah were subjected to Identification-tes1>parade inside the District Jail Multan on 15th September 1997 whereas appellant Muhammad Yousuf alias Yaqub, Zubair alias Akram, Abu Bakar alias Usman alias Zarrar alias Rashid were also subjected to identification test parade on 27th October 1997 in New Central Jail Bahawalpur. On completion of identification test parade successive incomplete challan dated 27th October 1997 was filed in the Court.

7-F. Perusal of record particularly contents of challan dated 16th December 1997 reveals that appellant Muhammad Ishaque during interrogation disclosed in his confessional statement before Arshad Hussain PDSP/SDPO that appellant Imran Ashraf alias Tarar alias Amjad alias Tahir alias Haji Tayyab son of Muhammad Ashraf also participated in the commission of the offence. On this disclosure he was also arrested on 2nd December 1997 though he was already in custody in District Jail Sahiwal in Case No. 152/1997 dated 30th July 1997 under Section 302/34/109 PPC registered at Thana Fateh Sher District Sahiwal. He was also subjected toIdentification Parade on 3rd December 1997 and 4th December 1997 inside the jail. On completion of his Identification Parade another incomplete challan dated 16.12.1997 was filed wherein 13 accused persons including the appellants were shown in custody whereas 8 accused persons including Qari Allah Wasayia were indicated to have not been arrested as such they were declared absconders. During hearing of the case it was reported that Qari Allah Wasayia has died on 10th January 1998 in an encounter, as such another incomplete challan dated 31st March 1998 was also submitted in the Court.

"TRIAL COURT PROCEEDINGS UNDER ANTI-TERRORISM ACT, 1997."

8. Learned trail Court read out the charge to the accused facing the trial including the appellants under Section 302/396/449/109/149 PPC read with Section 7 of Anti-Terrorism Act, 1997. They did not plead guilty to the charge and claimed to be tried. The prosecution produced ^as many as 44 witnesses including the ocular testimony of PWs Ijaz Ahmad, Allah Diwaiya and Manzoor Hussain. Thereafter on 4th June 1998 the Deputy District Attorney filed a statement mentioning the names of the witnesses to whom the prosecution has given up including PWs Badaur-ul-Islam. Khalid Mehmood and Khurshid Ahmad.

9.    It is pertinent to observe that both the last mentioned two  witnesses were shown to be the witnesses of the incident in the Fard-e- Bayan (Ex-P/Q), F.I.R. (Ex.PQ/1) and in the site-plans Ex. PL and Ex- PN/1, as well as in the calendar of the witnesses appended with the challan except the one which was filed on 16th December, 1997.

10.     On completion of recording of prosecution evidence and statements of appellants under Section 342 Cr.P.C., CW-1 Syed Qalandar Ali Shah, filed an application on 12th October 1998 alongwith his affidavit seeking permission to appear as witness in the Court because he has seen the incident of 20th February 1997 because he was present in his shop situated in front of Khana-e-Farhang Iran, Multan. The application was allowed on 20th October 1998. After recording of his statement the accused were examined under Section 342 Cr.P.C. and ultimately vide judgment dated 16.12.1998 appellants were found guilty and they were sentenced asunder :--

(i) Under Section 302/149 PPC read with Section 7 of Anti-Terrorsim Act, 1997 to the normal penalty of death on eight counts subject to confirmation by the High Court. They were also directed to pay fine of Rs. 1,00,000/- each.

(ii)   Under Section 148 PPC sentenced to three years R.I.

(iii) Hafiz Shafique-ur-Rehman was also convicted and sentenced to 10 years R.I. under Section 382 PPC.

The remaining accused are concerned they were exonerated of the charge as prosecution failed to establish guilt against them.

"APPELLATE COURT (A DIVISION BENCH OF LAHORE HIGH COURT. MULTAN) PROCEEDINGS."

11.    Appellants preferred Criminal Appeals Nos. 57 to 64 of 1998 before learned Lahore High Court Multan Bench which have been dismissed by the impugned judgment dated 1.3.1999.

"PRESENT PROCEEDINGS."

12.     Appellants preferred Criminal Jail Petitions for Leave to   Appeals Nos. 56, 58, 60, 63, 65, 69, 70 and 71 of 1999 in this Court. Leave was granted by this Court vide order dated 10th February 2000 to consider the question of jurisdiction of Special Court Anti-Terrorism Multan and the points as to whether the principles of safe administration of justice in the criminal cases have been followed in this case while appraising the prosecution evidence as also to find out if the view which found favour with the learned Judges of the Division Bench is in consonance with law as enunciated by this Court in various cases from time to time.

"JURISDICTION"

13.   Learned counsel for appellants contended that all the appellants have been convicted/sentenced to death on 8 counts under section 7 of the Anti-Terrorism Act, 1997 (hereinafter referred to as the "Act"), without jurisdiction by the Special Court. Because original Section 7 was substituted by means of Anti-Terrorism (Amendment) Ordinance IV of 1999 with effectfrom 27th April 1999 according to which for terrorist acts sentence of death has been prescribed, therefore, the appellants were not liable to be convicted under this section as the offence for which they were charged had taken place on 20th February 1997, therefore, the section being substantive in nature would not have its application with retrospective effect.

Learned counsel for the State contended that the objection raised on behalf of appellants has no force in view of the provisions of Section 38 of the Act

On having carefully gone through both the provisions i.e. Section 7 and Section 38 of the Act, we are of the opinion that no prejudice has been caused to the appellants nor the impugned order is without jurisdiction because the appellants have been convicted/sentenced besides under Section 7 of the Act under Section 302/149/PPC as well. Presuming for the sake of arguments that they were not liable for conviction/sentence undei Section 7 of the Act but if the prosecution had succeeded in establishing the offence of murder against them then they would be liable for punishment as provided under Section 302 PPC. As the appellant have been sentenced to death for the alleged murder of eight persons, therefore, their such sentence would not be deemed under Section 7 of the Act but under Section 302 PPC.Thus it is concluded that the Special Judge Anti-Terrorist Court, constituted under the Act has decided instant case with jurisdiction.

'REAPPRAISAL (ASSESSMENT OF PROSECUTION EVIDENCE)."

14.   Learned counsel for appellants contended that prosecution has miserably failed to bring the guilt home against the convicts by producing trustworthy and convincing evidence. The trial Court as well as appellate Court mainly relied on ocular testimony of PW Qaz Ahmad (complainant) and accepting his version convicted/sentenced them. As far as the evidence furnished by this witness is concerned it was not worthy of credence because he was a set up witness to whom the prosecution has produced because the incident was unwitnessed and no one amongst the inmates including PW Zaheer-ul-Islam    (Accountant    Khana-e-Farhang)   were    prepared    to substantiate the commission of offence. Inasmuch as the presence of the witnesses at the spot is highly doubtful in view of the facts andcircumstances which have come on record during his statement as well as the statements recorded by the other prosecution witnesses including the Investigating Officer coupled with the recoveries as well as Identification Parade, therefore, the appellate Court as well as the trial Court instead of scrutinizing the evidence of this witness in accordance with recognized principles *of re-appraisal of evidence available on record took a somersault and just mentioned that he has proved accusations against the culprits. He further contended that although PWs Manzoor Hussain and Syed Allah Diwaya have also been produced as eye-witnesses but their version relating to the happening of incident on 20th February 1997 has been discarded as neither their statements were discussed nor referred to but at the same time partake of his statement relating to identification of the accused persons in Central Jail Multan, Bahawalpur and Sahiwal was accepted contrary to the principles laid down by the Superior Courts for safe administration of justice. He emphasized that Supreme Court normally avoids to undertake exercise of reappraising of evidence but at the same time if justice demands this Court never feel hesitation in scanning the evidence available on record for just decision of the case as it has been held in PLD 1978 S.C. 298.

15.           Mr. Maqbool Ellahi Malik, learned Advocate General stressed that in  cases pertaining to the  commission of offences  committed in pursuance of terrorism etc. the Court seized v/ith the matter should have a  dynamic approach instead of considering as to whether the prosecution has succeeded in fulfilling the intricacies of law has substantially established the accusation against the accused persons in view of over all material available on record and if the Court feels satisfied that no prejudice or injustice has been caused to the accused facing trial then it may not express reservations in  maintaining the  convictions/sentences  awarded to the  convicts for committing brutal, wanton and gruesome crimes of murder, terrorism etc. if the prosecution could not succeed to produce evidence of the standard which  is ordinarily required to established a crime committed in a ordinary way by the accused persons because in such like cases it is not possible for the agencies to   procure   direct   evidence   involving  the  terrorists   in  the commission of the charged offences. He placed reliance on the judgmentsreported in PLD 1995 S.C. 1, PLD 1996 S.C. 305, PLD 1998 S.C. 1445 and an unreported judgment in Criminal Appeal No. 20-J and Murder Reference No. T-161/1997(Mehrum Alt alias Yawar Mi son of Ali Ahmad vs. The State).

16.    We have carefully gone through voluminous record of the case including the impugned judgment dated 1.3.1999 passed by Lahore High Court as well as judgment dated 16.12.1998 of the trial Court. Before discussing the points putforth by the parties counsel in support of their respective  contentions we feel it appropriate to  observe that learned Presiding Officer of the trial Court delivered the judgment dated 16.12.1998 contrary to the provisions of Section 367 Cr.P.C. Similarly learned Division Bench of the High Court formulated its opinion without discussing the evidence available on record inasmuch as the perusal of appellate judgment suggests that though the judgment of the trial Court has been maintained but entirely on the basis of inconsistent findings on various points. More­over both the judgements under scrutiny failed to depict specifically that which portion of the evidence has been discarded and for what reasons and if so then following which principle of law relating to appreciation of evidence.

17.   Ordinarily this Court would chary in re-appraisal and assessing the evidence in exercise of jurisdiction conferred upon it under Section 185(2) of the Constitution of Islamic Republic of Pakistan but in view of the importance of the case and for the interest of justice because both the Courts i.e. appellate and trial have failed to appraise the evidence on record and also pronounced judgments contrary to mandatory provisions of law as well asjudgments of superior Courts, therefore, we have considered it proper to dispose of the matter on merits after considering the material available on record in view of judgments reported in the case of Noora and another vs. The State (PLD 1973 S.C. 469) Muhammad Ashraf and another v. The State (PLD 1977 S.C. 538 andMuhammad Aslam and another vs. The State (PLD 1978 S.C. 298). Relevant observations from the case of Noora (supra) are reproduced hereunder for reference :--

"The conclusion, therefore, to which I am driven after the examination of the relevant decisions and the Constitutional provisions relating to the jurisdiction of this Court, is that this Court has every right to examine the evidence in criminal appeal, if it is necessary in the interest of justice. In what circumstances it will do so is a matter on which it is neither possible nor desirable to lay down any hard-and-fast rule. Each case will have to be judged upon its own facts and circumstances; but, at the same time, I must point out that although under the Constitutional provisions the powers of this Court are in no way fettered, yet, from the very nature of things, there must be some difference in its approach towards the cases which come before it directly as an appeal and cases in which leave to appeal has first to be obtained."

18.   Adverting towards merits of the case it is to be noted that the prosecution produced following kind of evidence to establish the accusations against the convicts :—

(i)    Ocular evidence.

(ii)   Identification of the convicts except Malik Muhammad Ishaque;

(iii) Recoveries of incriminating articles;

(iv) Medical evidence.

(v)   Circumstantial evidence.

"OCULAR EVIDENCE."

19.    P.W. Ijaz Ahmad is the star witness of the prosecution and evidence furnished by him according to prosecution case gets corroboration  from the ocular testimony of PW-Manzoor Hussain, Syed Allah Diwaya and Court Witness Syed Qalandar All.

It is important to reiterate known principle of reappraisal of evidence in criminal cases namely that if a witness is trustworthy and reliable then conviction can safely be based on his evidence. In view of his evidence but if he is an unreliable witness then it can not be utilized for the purpose of passing conviction against the accused. However if the witness has given partially reliable and partially unreliable evidence then applying the device of sifting the grain from chaff and seeking independent corroboration from other reliable evidence on material particulars conviction can be based on it. Thus it would be seen as to whether ocular testimony furnished by the witnesses named hereinabove falls under which category enabling the Court to decide the matter without departing from the principles of justice notwithstanding the fact whether the Investigating Agency has not adhered to technical and procedural formalities because in cases of terrorism etc. where there is remote possibility to collect direct evidence against culprits, the Courts is required to satisfy itself as to whether substantially guilt has been proved against them and without fulfilling procedural formalities whether intrinsic value of the incriminating evidence has been effected or not.

20.    P.W. Ijaz Ahmad being foot constable stated before the trial Court that on 20th February 1997 he was posted as police guard at Khana-e- Farhang, Multan alongwith Rahim Dad Chowkidar. It was about 12.00 noon when three young boys appeared on the gate of Khana-e-Farhand Iran, and asked Rahim Dad (deceased) to arrange their meeting with Director of  Khana-e-Farhang. The witness identified the aforesaid three young persons as "Ghulam Rasool", "Abu Bakar" and "Imran Ashraf', present in the Court. Accused Ghulam Rasool Shah was previous visitor of Khana-e-Farhang. Rahim Dad obtained permission through inter-com and sent them inside the building. According to the witness he was not aware as to with whom they wanted to meet or intended to have meeting. He further deposed that after a short-while four other young boys arrived there and they started talking with Rahim Dad. The witness identified those 4 yuong boys as "Abdul Hanan", and "Muhammad Yousuf' who was armed with kalashnikov, "Zubair  Khan" and "Shafique-ur-Rehman". He further stated that Abdul Hanan  accused had thrown grinded chillies on his face. While these four accused was (were) busy talking with Rahim Dad he heard fire-shots from inside the building. All of a sudden Abdul Hanan accused threw chillies on his face. Rahim Dad tried to run when Muhammad Yousuf accused fired at him with Kalashinkov (emphasis provided). He tried on aim his rifle but accused Abdul Hanan caught hold of him. Accused Shafique snatched his rifle. The remaining accused who were armed with pistols gave threats  of dire consequences to him. He became helpless. During this period firing continued inside the building. The aforesaid three accused came outside the building have pistols in their hands. They joined their remaining four accused and went outside on the road where a carry van, a Potohar and a Motor-cycle were parked. There were other persons also present at the road who were companions of the said assailants. They all boarded the aforesaid vehicles and left the place of occurrence. He raised hue and cry which attracted Khalid Mehmood and Khurshid Ahmad Constable (not produced) who also saw them while leaving the place of occurrence. As per version ofthe witness he entered in the main building and found Rasool Bakhsh electrician in injured condition while Rahim Dad, Habib, Faqir Muhammad, Dildar Hussain, Director Syed Agha Muhammad Ali Rahimi, Nizam Din and Safdar had succumbed to the injuries. The accused had taken away his '- service rifle. The SHO (PW Muhammad Nausherwan) arrived at the place of occurrence who recorded his statement Ex-P/Q. It was read over to him and he signed the same in token of its correctness. The witness joined the investigation of the case on the same day i.e.  20.2.1997 and in his presence the Investigating Officer secured blood-stained earth from underneath the ead-bodies and sealed the same into parcels vide recovery memos ex-PR, PS, PT, PU, PV, PW & PX respectively. In his presence the Investigating Officer also secured crime empties from different places P43/1-13 and sealed them into a parcel vide memo. Ex-PY. He also stood witness for the recovery '" "of bullet lead i.e. P. 44/1-3 which Were sealed into parcel vide recovery memo. Ex-PZ. A curtain Ex-P46 was also taken into possession in his presence by the I.O.vide memo. Ex-PAA. The witness further stated that on the same day S.I. Faiz Rasool produced last worn clothes of deceased Faqir Muhammad i.e. Shirt P-40, ShalwarP41 and a sealed bottle P-42 and secured these articles vide memo. Ex. PP attested by him.

The witness also joined identification test parade in District Jail Multan on 15th September 1997 where he identified appellants Ghulam Rasool Shah, Shafiqe-ur-Rehman and Abdul Hanan and as per his version  during the process of Identification Parade he also disclosed the role of each of the accused before the Magistrate played by them at the time of occurrence. Again on 27th September 1997 he attended identification test parade in Central Jail Bahawalpur held under the supervision of a Magistrate he identified Abu Bakar, Zubair and Muhammad Yousuf and also narrated their roles at the time of the occurrence. Appellant Imran Ashraf was identified by him in Central Jail Sahiwal and he also narrated his role at the time of commission of the offence.

21.   Learned counsel for the appellants objected on admissibility of evidence furnished by him. According to him the story narrated by the witness his examination-in-chief is self contradictory because if appellant     Abdul Hanan had thrown chillies powder on his face then it must have effected his eyes as well due to which it was impossible for him to see around then how it was possible for him to have identified all the accused to whom allegedly he had seen running away in the vehicles after completion of the crime. In addition to it, if due to throwing chillies powder on his face he must have borne resistance in his eyes, therefore, it was not possible for him to stay on the spot as an associate of PW Muhammad Nausherwan 1.0. at the investigation of the case, during which he prepared inquest reports of dead-bodies, dispatching them to hospital, securing incriminating articles including blood-stained earth underneath the dead-bodies, collecting of crime empties, preparing of their parcels as well as memos attested by the witness, preparation of site-plan as well as recording of statements of the witnesses at the spot on the said date etc. According to learned counsel the important aspect of the case which goes to negate his presence at the spot is that the uniform of the witness which must have smeared with chillies powder was not taken into possession nor chillies powder was collected from the place where he was posted on duty. Besides above the witness was not subjected to medical examination to prove the story of throwing chillies on his face because statement of injuries in his eyes as well as bruises on his lefthand was prepared on 24th February 1997, and therefore, he was referred for medical opinion to hospital where he was medically examined by PW Dr. Syed Raza Mohiuddin and he issued medical certificate Ex. PBB.

22.  Learned State counsel contradicted the arguments of appellants' advocate and contended that the presence of PW Ijaz Ahmad cannot be doubted for the reasons advanced by him because there is no denial of the fact that he being a constable was on guard duty at Khana-e-Farhang and his presence at the spot can also not be objected to for being incapacitated to see around because chillies powder was thrown on his face. According to learned counsel in such situation congestion remain in the eyes for temporary period and in the meanwhile effected person gain normalcy in his vision.

23.    PW Dr. Syed Raza Mohiuddin Senior Medical Officer Civil Hospital Multan conducted medico legal examination of PW Ijaz Ahmad on 24th February 1997 at 8.00 a.m. He noticed following injuries on his person :--

"1. Left eye-congested. Subcinguctibal haemorrhage was present. Examinee complained of blurring of vision on left side.

2. Multiple abraision (five in number) in an area 6 cm x 4 cm on back of left hand at the base of thumb and index finger. Scab formation was present."

It is an admitted position that Dr. Syed Raza Mohiuddin is not an eye-specialist. However, when confronted with the certificate (report) Ex/PBB/A he admitted that there is no mention of any injury pertaining to eye. As far as Injury No. 1 reproduced hereinabove is concerned he stated that if could be caused by any blunt object and even by finger if put forcibly. He also stated that he had not reported any remnants of chillies powder in the eyes of Ijaz Ahmad. In respect of Injury No. 2 he also stated that possibility regarding Injury No. 2 cannot be ruled out as being self-suffered. Voluntarily stated that this possibility is very remote. The damage of thisinjury was extremely superficial in nature. The witness further explained that since the Injury No. 1 was the result of congestion, therefore, no duration can be measured. It is not understandable that if P.W. Ijaz Ahmad had suffered an injury in his eyes due to throwing of chillies powder on his face on the day of incident then what prevented the Investigating Officer for not referring him immediately to the hospital for obtaining expert opinion in this behalf. At this juncture it would not be out of place to note here that the defence has raised a serious objection concerning registration of the case on 20th February 1997. It is their version that the incident was an unwitnessed one and the inmates of Khana-e-Farhang particularly PW Zaheer-ul-Islam were not coming forward to narrate the actual story, therefore, the F.I.R. was lodged with considerable delay on 23rd/24th February 1997 but to cover the delay in registration of case the story of throwing chillies powder on the face of PW Ijaz Ahmad was concocted inasmuch as the stand taken by the prosecution has not been substantiated that the witness was posted on guard duty at the relevant time. The prosecution did not produce duty roster showing the names of all the guards posted at Khana-e-Farhang alongwith their complete details. Subsequently to cover this aspect of the case it was alleged that PW Ijaz Ahmad had a .9-MM rifle fully loaded with 20 bullets which was snatched by one of the assailants and to strengthen this argumentprosecution had shown the recovery of the rifle from a street in Bakra Mandi on the day of incident i.e. 20th February 1997 whereas recovery of its magazine was effected on llth March 1997 from the same place i.e. Bakra Mandi lying in a surface drain at a distance of 15 feet away from where the rifle was recovered. No evidence was produced that as to whether the service rifle .9-MM was at all issued either in the name of PW Ijaz Ahmad or for the guard of Khana-e-Farhang. Neither in this behalf any document has been produced nor the incharge of the guard namely Badar-ul-Islam or any of the other witnesses particularly named in the Fard-e-Bayan Ex-PQ i.e.Khalid Mehmood and Khrushid Ahmad came forward to establish that this rifle was entrusted to PW Ijaz Ahmad and at the relevant time he was present on duty.

We would take into consideration this aspect subsequently while dealing with the injuries allegedly received by PW Ijaz Ahmad but we consider it appropriate at this stage to make reference to the memo. Ex. PBB/A written by PW Muhammad Nausherwan I.O. to the Medical Officer for medical legal examination of the witness. It may be seen that initially 20th February 1997 was written as the date on this document but subsequently 20th was changed and it was made to be 24th. This manipulation on the fard is very much visible. The contents of the letter reveal that reference for medico legal examination was made to examine the eyes because on the day of incident the accused persons have thrown chillies powder in his eyes and also to examine the injures which he received during the scuffle. It is also to he noted that Fard-e-Bayan Ex-PQ does not find mention that he (Ijaz Ahmad) received injuries on his left hand as well. A careful perusal of the medical examination further suggests that PW Dr. Syed Raza Mohiuddin had not given opinion that the eyes of the witness were found congested because of chillies thrown in them as alleged by the witness. To the contrary he agreed with the suggestion that the injures in his eyes may be caused by any blunt object or even by finger. Above all he did not disclose duration of the injuries, therefore, safely it can be held that attempt made by the prosecution to procure the medical opinion to support the plea of throwing chillies in his eyes failed to succeed. In addition to it, Injury No. 2 noted hereinabove was also found to be result of any hard object and possibility of its being self-suffered was also not over ruled by the doctor. As far as this injury is concerned it was not disclosed by the witness in Fard-e-Bayan Ex. PQ as well as in his examination-in-chief before the trial Court. The medical examination of the witness on 4th day of the occurrence without offering any plausible explanation as to why arrangements were not made for getting him examined soon after the incident creates a condition where his presence at the spot can be doubted. This argument gets reinforcement from the statement of PW Mirza Maqbool Ahmad who deposed in cross-examination that "I have gone through the police file dated20.2.1997 and 21.2.1997. I did not see P.W. Ijaz Ahmad in an injured condition nor such fact is mentioned in the police file recorded by me." This lapse on the part of the prosecution though is very glaring but to avoid the technicalities one might have ignored it provided the prosecution had collected remnant of chillies powder from the uniform (clothes) of the witness where it have sprinkled to justify the plea but non-attending this aspect of the investigation the prosecution cannot claim any concession.

The concealment of Injury No. 2 as well in the complaint as well as Court statement has also created a circumstance to doubt the truthfulness of his testimony.

24. In this sequence it is pertient to mention as to whether P.W. Ijaz Ahmad was posted on the guard duty of Khana-e-Farhang alongwith other members of the force at the time of the incident. The defence specifically took the plea during his cross-examination that he was not present at the spot and he was set up as a witness being a member of Fiqa-e-Jaffaria. Suggestion was denied to be correct by the witness with the explanation that he was performing his duties at the place of occurrence 10/12 days prior to the occurrence. Before that he was performing duty at the place of occurrence. He also admitted that I.O. (P.W. Muhammad Nausherwan) did not obtain his duty Roster to verify about his duty in the Irani Centre. P.W. Muhammad Nausherwan has also not produced any such material on record to establish that at the relevant time PW Ijaz Ahmad was on Sentry duly. Although he has categorically stated that the instant case was registered after due deliberations on 23rd February 1997. In such view of allegation it was incumbent upon him to have tendered in his statement the Duty Roster or alternatively he may have produced Badur-ul-Islam who according to him was the Incharge of the Guard. In complaint Ex. P/Q P.W. Ijaz Ahmad got mentioned that PWs Khalid Mehmood and Khurshid Ahmad Police Constables (not produced) had also seen the accused persons while running away after commission of the crime. Perusal of certain documents available on record reveal that one of them i.e. Khalid Mehmood was also posted at Khana-e-Farhang. To further ascertain whether P.W. Ijaz Ahmad was at all present on his duty at the spot reference can be made to Chapter XVIII, Rule 18.5(2) of the Police Rules 1934, according to which Sentries and the next relief for duty shall be in uniform and accoutered day and night. During the day the next relief for duty shall sit outside the guard-room near the Sentry. Whereas according to its Sub-Rule (3) of the Officer-in-command of the guard shall remain in uniform for two hours before dark every day and shall during this time post and relieve all sentries himself. At other hours, the sentries shall be relieved by the police officers next for relief without the intervention of the officer-in-command who shall, however, visit his sentries at-least four times during the hours between reveille and retreat and once between each relief during the night. When visiting the officer-in-command shall be in uniform and accoutered.

It may be noted that in the instant matter the prosecution case is that about one month before the untoward incident a similar type of sectarian incident took place at Lahore in which about 22/23 persons lost their lives besides a good number of persons who received injuries. Therefore, in such like prevailing situation it was all the more necessary for the guard posted at Khana-e-Farhang to adhere to the Police Rules strictly in order to avoid any other incident. As far as Badur-ul-Islam is concerned his presence was also shown in the unsealed site-plan Ex-PRR but he was also not produced to establish the presence of PW Ijaz Ahmad at the time of occurrence. It may be clarified here that as per statement of PW Muhammad Nausherwan I.O. Badur-ul-Islam was the Incharge of the guard whereas Mirza Maqbool Baig, DSP/SDPO Kotwali Circle Multan deposed that according to his investigation Head Constable Abdul Salam Incharge Police Guard, was present in the building of the occurrence.

In the same sequel there is yet another important piece of material on record namely the recovery of .9-MM Rifle No. 28 MNP Serial No. A 42829 from Bakra Mandi Multan City. It is the version of the prosecution that PW Ijaz Ahmad being on guard duty at the time of incident was armed with .9-MM Rifle fully loaded. The assailants to make him helpless snatched the rifle from him and while decamping it was thrown in the street which was recovered by PW Muhammad Nausherwan viderecovery memo. Ex-PL. He also prepared the site-plan Ex-PL/I of the place from where it was taken into possession on the day of the incident. The Investigating Officer also deposed that on 9th March 1997 he recovered magazine P/38 from the vicinity of Bakra Mandi Multan City vide Ex-P/N. Whereas according to memos its recovery was effected on llth March 1997 from a drain. The manner in which the recovery of rifle and its magazine with the intervals of about 20 days from the recovery of each other appears to be suspected because how it is possible that police found the rifle lying either in the street or in the drain openly in the area which is situated near a thorough fare and from the same vicinity the magazine was recovered after about 20 days and no one has removed it particularly when the street and the drains are cleansed oftenly. Thus we are of the opinion that to justify presence of PW Ijaz Ahmad at Khana-e-Farhang story of snatching service rifle from him at the time of occurrence was introduced. But the prosecution failed to substantiate its version by producing convincing evidence like register of distribution of arms and ammunition maintained by the incharge of the Kot as provided by Rule 6.8 Chapter VI of Police Rules 1934 pertaining to distribution of arms. PW Ijaz Ahmad in cross-examination could not tell the date when this rifle was issued to him. He also admitted that .9-MM Rifle was never shown to him during the course of investigation. According to him only 20 bullets and a magazine was issued by the department. He further stated that these bullets and the Magazine was issued by the department. Hefurther stated that these bullets and the Magazine were never produced or taken into possession in his presence during the course of investigation. He also deposed that rifle .9-MM was fully automatic and was loaded with 20 bullets. PW Muhammad Nausherwan admitted the contents of application filed by him for physical remand of one of the appellants Abdul Hanan dated 22nd February 1997 Ex-DL wherein concerned Magistrate was requested to grant his remand for the recovery of illicit arms and ammunition as well as .9-MM service rifle. The request was acceded to and accused was remanded to Police custody upto 7th March 1997. However, the question for consideration is as to whether on 20th February 1997 the recovery of .9-MM Rifle was shown fictitiously or what was the reason to prevent real truth to come on record. It may also be observed that as per examination-in-chief of PW Ijaz Ahamd appellant Abdul Hanan (to whom he was identified in an Identification Parade subsequently) had thrown grinded chillies on his face whereas accused Shafique snatched his rifle. The admission of glaring contradiction by PW Muhammad Nausherwan concerning the recovery of .9-MM Service Rifle either on 20th February 1997 or subsequent to 22nd February 1997 from the possession of Abdul Hanan provides a substantial support to the defence plea relating to fabricating evidence of snatching .9-MM Rifle from PW Ijaz Ahmad on the day of incident.

In this context it may also be seen that version of PW Ijaz Ahmad that he was present on guard duty at Khana-e-Farhang with fully loaded .9-MM service rifle having 20 bullets in its magazine when the culprits reached on the gate and to over power him one of them has thrown chillies powder on his face whereas the other accused appellant Muhammad Yousuf (identified after his arrest by the witness) fired at Chowkidar Rahim Dad who tried to run-away seems to be against the human conduct and appears to be improbable. It has been noted in number of criminal cases that the assailants always make first attempt to render helpless to the person confronted with him or them if he is equipped to be equipped with arms and ammunition to prevent any reaction from his die instead of gunning down the person who is empty handed. Undoubtedly it is always for the accused to select his target but normally accused make attempt on the person from whom he apprehends danger to his life because he has a lethal weapon with him. Thus if viewed from this angle as well one feels convinced to disagree with said version of the prosecution.

25. From the side of the prosecution it is argued that the incident took place on 20th February 1997 at 12.000 noon whereas after recording complaint Ex-PQ at the spot by PW Muhammad Nausherwan, he dispatched the same through Constable Muhammad Jamil for registration of the case. Accordingly at 12.45 p.m. case was registered at the police station, therefore, presence of PW Ijaz Ahmad at the place of Wardat cannot be questioned. In our opinion on careful consideration probably this version is not acceptable to be true as a whole because admittedly 4th copy of the FIR which was required to be supplied to the complainant as per Rule 24.5 of Chapter 24 of Police Rules, 1934 has been delivered to him in Police Lines on 23rd February 1997 whereas in FIR Ex.PQ/1 it is stated that the FIR has been sent for delivery to the complainant. This fact is admitted by PW Ijaz Ahmad himself during his cross-examination but no explanation has been offered by the prosecution to canvass that what was the reason for delivering copy of the same to him on the said date. Experience tells us that whenever an offence cognizable by police is reported to it under Section 154 Cr.P.C. no promptness is shown in lodging the report without causing delay with the result that at the stage of trial the prosecution and the complainant party suffer a great deal of difficulty in offering explanation for non-registration of the case just after its reporting to the police.

Section 154 Cr.P.C. lays down procedure for registration of an. information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, Police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if First Information Report is registered without any delay it can help the Investigating Agency in completing the process of investigation expeditiously. Any slackness or lukewarm attitude by the registering authority of FIR in fact intend to help the accused involved in the commission of the offence. Thus it is advisable that the provisions of section 154 Cr.P.C. read with Rule 24.5 (c) of the Police Rules 1934 be adhered to strictly. There should not be any negligence in recording the FIR and supplying copies to concerned quarters because departure from the mandatory provision of law creates a room to doubt the truthfulness of the allegation against the accused incorporated in FIR. As it has been observed hereinabove that in instant case the prosecution remained under serious criticism by the defence even on the question of promptly lodging of FIR. The defence case is that the incident had not taken place in the manner as it is  being put forward hy the prosecution. Therefore, after deliberation and consultation FIR was registered on 23rd February 1997 when 4th copy wasdelivered to the complainant and on the following day i.e. 24th February 1997 he was referred for medico legal examination to establish that PW Ijaz Ahmad was present at the time when incident took place. Manipulation in the date mentioned in letter Ex-PBB in pursuance whereof PW Ijaz Ahmad was sent to hospital and non-registration of the case for the above reasons coupled with the story of snatching .9-MM Service Rifle from PW Ijaz Ahmad reflect adversely against the prosecution and creates strong reasons to doubt the manner in which happening of the incident has been disclosed.

26. The presence of PW Ijaz Ahmad at the scence of occurrence can also be considered by making reference to site-plan Ex. PRR prepared by PW Muhammad Nausherwan 1.0. soon after reaching Khana-e-Farhang because if P.W. Ijaz Ahamd really present on guard duty then except him on one else can guide the Investigating Officer to prepare the site-plan as well as to inspect place of wardat. PW Muhammad Nausherwan stated that he prepared site-plan (Ex-PRR) without scale at the place of occurrence. The witness has however not deposed that on whose pointaiton it was prepared. The study of site-plan also suggests that it was not prepared by the 1.0. at the instance of PW Ijaz Ahmad. The preparation of the first site-plan immediately after the happening was one of the most important aspect of the investigation of the case. Surprisingly instead of showing PW Ijaz Ahmad as witness at the site-plan his presence has been shown on the other documents including recovery memos etc. Therefore, the prosecution was under obligation that if his presence can be shown on these documents then what was the reason for not preparing the site-plan at his pointaiton. Subsequently on 21st February 1997 the Investigating Agency statedly got prepared scaled site-plan Ex-PA, Ex-PA/1 and Ex-PA/2 but again without showing that the site-plans were prepared at the pointaiton of PW Ijaz Ahmad. However in cross-examination PW Irfan Hayat who prepared the site-plan stated that SHO told him about the complainant that he is Ijaz Ahmad. The examination-in-chief and cross-examination of PW Irfan Hayat does not indicate as to whether on the pointaiton of Ijaz Ahamd scaled site-plan was prepared. To the contrary the witness stated that SHO had pointed uut all the Points Nos. 1 to 11 which were written-by him with black ink. He also admitted that he consulted the SHO regarding Point No. 1 before final preparation of Ex.PA, Ex. PA/1 and Ex.PA/2.

We are conscious of the fact that as far as site-plan is concerned it has no evidentiary value but its importance can also not be denied to determine the location of the incident as well as the position of the witnesses particularly in those matters where presence or otherwise of the witnesses has been challenged. Reference may be made to 1997 SCMR 89. On the question of non-preparation of a site-plan at the pointaiton of a witness this Court has held in the case of Gul Mir v. The State (PLJ 1980 S.C. 293) that if it was not prepared on the pointaiton of a witness it will loose its evidentiary value.

Thus inference would be that original site-plan Ex-PRR was not prepared on the indication of PW Ijaz Ahmad for no other reason except that he was not present at the site when the incident took place. In this very context it is also to be observed that in the recovery memo. Ex-PAA of 13 empties Articles P43/1-13 it has not been indicated that on whose pointation and from which places these articles were taken into possession. However, we are of the opinion that to further clarify the manner in which the incident took place these recoveries should have been made at the pointation of PW Ijaz Ahmad by preparing separate memos for taking these incriminating articles into possession.

Thus seen the case of prosecution even in broad spectrum leaving aside all technicalities still prosecution failed to offer satisfactory explanation whether PW Ijaz Ahmad was present at Khana-e-Farhang when incident took place.

27. Besides the discrepancies noted hereinabove in the statement of PW Ijaz Ahmad yet another attempt can be made to adjudge the truthfulness or otherwise of his evidence on merits to ascertain whether evidence furnished by him has any intrinsic value independent of technicalities for bringing the guilt home against assailants or not. In this context reference to his cross-examination would be essential to see whether he stood to its test or not. Simultaneously it is to be noted that he was examined thrice by the police initially when on 20th February 1997 his first statement was recorded as compliant Ex-PQ (incorporated in FIR Ex-PQ/1) whereas his second statement under Section 161 Cr.P.C. (Ex-DD) was recorded on 1st March 1997. In the Fard-e-Bayan (Ex-P/Q) the witness hasgiven the features of the assailants who approached in Khana-e-Farhang in two groups consisting of 3 + 4 Members each on the day of incident. These two groups of the assailants reached Khana-e-Farhang one after the other out of which the first group comprising three persons entered inside the building after seeking permission from Rahim Dad deceased (Chowkidar) whereas the second group of 4 persons came there after a while because during Identification Parade he statedly identified correctly all the assailants, therefore, he disclosed the names of the members of the first group as "Ghulam Rasool, Abu Bakar and Imran Ashraf". In respect of Ghulam Rasool Shah he deposed that he was a previous visitor of Khana-e-Farhang. As far as the second group is concerned their names were disclosed by him to be Abdul Hanan who has thrown grinded chillies powder on his face, Muhammad Yousuf armed with Kalashnikoi', Zuhuir Khan and SLufique ur-Rehman. As the witness has not seen the incident which u>uk place inside the building of Khana-e-Farhang, therefore, no criminal ovei! act iegaidingthe members of the first group if committed by them in the building were disclosed. However, as far as remaining accused persons who were present outside the building he deposed that appellant Abdul Hanan has thrown grinded chillies on his face whereas appellant Yousuf fired on Chowkidar with kalashnikov and when he aimed his rifle appellant Abdul Hanan caught hold of him and appellant Shafique-ur-Rehman snatched his service rifle whereas remaining accused who were armed with pistols issued threats of dire consequences to him. After the firing the members of the first group who have entered inside the building came out having pistols in their hands and then all of them went outside on the road where a carry van, a potohar jeep and motorcycle were parked. As per his further version there were other persons also present at the road and they were companions of the assailants and then they all boarded the aforesaid vehicles and left the place of occurrence. He raised hue and Cry, which attracted Khalid Mehmood, and Khurshid Ahmad Constables who also saw them while leaving the place of occurrence. The witness was confronted with his previous statement dated 1st March 1997 in cross-examination and it was marked as Ex-DD. In police statement (Ex-DD) the witness had deposed that he identified Abdul Hanan who was under arrest and he committed the murder of Rahim Dad by firing with kalashnikov. However, he denied marking of such statement by uttering that his statement is based on false-hood. Volunteered I never gave such statement before the 1.0. Confronted with such portion "A to A" where the role of Abdul Hanan is mentioned. PW Muhammad Nausherwan ascribe of Ex-DD when confronted with it, he admitted it to be correct corbon copy of the statement of Ijaz Ahmad No. 2260, the first information. The Investigating Officer further deposed that" except the statement of Ijaz Ahmad PW Ex. DD he could not collect any evidence against accused Abdul Hanan to be responsible for them murder of Rahim Dad deceased.

As far as PW Ijaz Ahmad's third statement before the Investigating Officer is concerned through he was confronted with it as well but its reference cannot be made because it was not got proved from the officer who has written it. However, from the statement of PW Ijaz Ahmad which he has given in the Court and earlier statement (Ex. DD) it is established that he has falsely deposed before the Court that convict Abdul Hanan has thrown chillies on his face whereas convict Muhammad Yousaf fired upon Rahim Dad Chowkidar. Thus both the versions being contradictory are not reconcile.

As it has been discussed herein above that if PW Ijaz Ahmad had a loaded rifle in this possession and the murder of Chowkidar Rahim Dad was being Committed in his presence by any of the assailants then what prevented him from opening fire in discharge of his duties. Moreover the assailants had no danger from Rahim Dad Chowkidar who was empty handed whereas supposedly if they were seeing that there is constable who had a rifle in his hand then instead of targeting Rahim Dad they would have obviously fired at the constable to pave safe way to go inside the building or to eliminate the obstacle from the way of their co-assailants who have already entered inside the building. It is equally important to note that there was a Reception Room before entering into the main building of Khana-eFarhang. Such offices are maintained to record the particulars of the visitors if they are allowed to enter inside the building particularly in those organizations where the security arrangements are beefed up for any convincing reason. Surprisingly no record was produced to prove details of the members of the first group who were allowed to meet with the Director of Khana-e-Farhang, to ascertain that whether they made entry inside forcibly or with the permission of the inmates and if one of the three members was a previous visitor of Khana-e-Farhang then what particulars including his name was got entered by him in the register we are confident that in the premises which are considered to be sensitive from security point of view free entry to the outsider is not allowed just on request that they want to meet with a particular person. In addition to it in such like institutions security measures are followed strictly because as per prosecution case some times before the happening of this incident, an incident of murder on sectarian considerations had taken place in the premises of Sessions Court Lahore. This aspect of the case persuades us to draw inference that PW Ijaz Ahmad was not present on duty being guard sentry with the result that some of the assailants made forcible entry afterover-powering the Chowkidar by adopting such device that the inmates could not know that what is happening on the gate and who has entered inside the building for the commission of the offence. Because if PW Ijaz Ahmad had fired a single bullet it was sufficient to attract outsiders to intervene due to which escape of some of the accused after commission of the offence could have been made impossible.

The witness has also stated that on account of his hue and cry PW Khalid Mehmood and Khurshid Ahmad constables (not produced) were attracted and they had seen the assailants fleeing away. This portion of his statement has not been proved because both these witnesses who also belong to police department did not appear to corroborate his version. Thus safely it can be concluded that because PW Ijaz Ahmad did not show any resistance as he was not present on the gate, therefore, assailants after commission of the offence successfully made their escape good and he was subsequently set up as a witness by the prosecution to take the stand that the offence was committed in his presence.

PW Ijaz Ahmad was statedly remained PW Muhammad Nausherwan for 3 to 4 hours during investigation. This version of the witness seems to be incorrect in view of the prosecution evidence produced through PW Dr. Raza Mohiuddin who filed medical certificate of the witness Ex-PBB/A because if till 4th day of incident there was congestion in the eyes of the witness then how it was possible for him to remain associated with the I.O. for 3/4 hours.

PW Ijaz Ahmad that has also stated that when the accused p*ersons successfully made their escape good he went out of the gate of Khana-e-Farhang and saw that culprits boarded carry van, Potohar jeep and a motorcycle and left place of incident. In cross-examination he admitted that he did not mention in Ex-PQ that apart from above mentioned seven accused their other companions were also present near the vehicles on the road. Then he stated that he did not go out from the main gate. The main good remained shut during the entire occurrence and the accused managed to escape through the small gate affixed in the main gate. Perusal of site-planEx-PRR indicates that there was no small gate fitted in the main gate of the building. Again he stated that he did not go outside himself. Voluntarily stated that he peeped through the small door. He further stated that he came out of the main gate through small door, again said he only peeped through the small door. Once again maintained that he took one step outside the gate.

Therefore from contradictory stand of the witness an inference can be drawn that he had been changing his stand just to persuade the Court to believe that he was present at the spot at the time of incident but he miserably failed to do so. There are so many other legal flaws in the statement of P.W. Ijaz Ahmad which will be discussed latter under the subject of re-identification of the accused through him.

28.    The reappraisal of the statement of PW Ijaz Ahmad made hereinabove so for leads us to draw an inference that evidence furnished by him suffers from inherent improbabilities, improvements and contradictions which are sufficient to discard his evidence but for safe administration of justice we thought it proper to examine other ocular witnesses keeping in  view importance of the matter where eight persons have been murdered and capital sentence has been awarded to present appellants by the trial Court and confirmed by the First Appellate Court mainly placing reliance on his ocular testimony.

29.   As per complaint (Ex-PQ) (FIR Ex-PQ/1) two other constables namely Khalid Mehmood and Khurshid Ahmad (not produced) have also seen the assailants running-away after the Commission of the offence whereas in the site-plan Ex-PRR the name of another police official Badur- ul-Islam Head Constable was mentioned to be the witness of the incident but on one amongst them was produced during the trial.   Contrary to it they were given up being un-necessary as per statement of Prosecutor filed by him in trial Court on 4th June 1998. Surprisingly two other persons whose statement will be discussed hereinbelow were show to be the eye-witnesses although their presence was not acknowledged by PW Ijaz Ahmad or PWsMuhammad Nausherwan and Mirza Maqbool Baig.

29-A. PWs Manzoor Hussian and Syed Allah Diway were produced as eye-witnesses. At this stage it may be noted that as per version of PW Muhammad Nausherwan I.O. He marked attendance of 18 persons who were present when he reached at the place of incident after receiving the information. The names of both these witnesses namely Manzoor Hussain and Syed Allah Diwaya were not mentioned inasmuch as PW Muhammad Nausherwan I.O. In cross-examination admitted that according to his

 Investigation there are only two persons namely Ijaz Ahmad and Badur-ul-Islam Head Constable who had witnessed the occurrence. He further stated that head constable was incharge of the guard stationed at Khana-e-Farhang. According to his investigation none from the employees of Khana-e-Farhang had witnessed the occurrence. It may be noted here that one of the employee of Khana-e-Farhang namely PW Zaheer-ul-Islam was present inside the building when the incident took place but he did not come forward to support the prosecution case. Similarly PW Mirza Maqbool Baig DSP CIA in cross-examination stated that during his investigation none from public had appeared who could name any of the present accused as assailants or abettors in absentia.

29-B. As per statement of PW Sadat Mehdi Inspector/SHO the name of PW Manzoor Hussain was mentioned by him for the first time in the list of witnesses filed alongwith with challan dated 27.10.1997 when he agreed to make statement against appellant Malik Muhammad Ishaque. Voluntarily stated that the witnesses were terified and afraid of the accused. Perusal of calendar of witnesses attached with the challan dated 27th October 1997 also indicates that the name of P.W. Syed Allah Diwaya was inserted for the first time in the calendar of witnesses attached with interim challans number of which is stated to be 7.

             Learned   State   counsel   argued   that   as   per   evidence   of  PW  uhammad Nusherwan I.O. when he marked the attendance of 18 persons present at the spot names of both these witnesses were not included because they reported in the evening time, therefore, on that very day i.e. 20th February 1997 their statements under Section 161 Cr.P.C. were recorded. Photostat copies of their such statements are available on record.

In our considered opinion the prosecution's stand in this behalf appears to be self-contradictory. If we accept the version of learned State Counsel that Manzoor Hussain and Syed Allah Diways were examined on the day of incident i.e. 20th February 1997 then it would mean that PW Muhammad Nausherwan and other successor Investigating Officers including PW Sadat Mehdi have made false statements before the Court. Suffice it to observe that if both these witnesses have contacted the police in the evening of the day of incident then as to why their names were not mentioned in the calendar of witnesses attached with the challans submitted from 6th April 1997 to onward upto 27th October 1997 when for the first time their names appeared in the list of witnesses attached with the last mentioned challan.

30. Because the prosecution claims that PW Manzoor Hussain and Syed Allah Diwaya are eye-witnesses whereas the defence claims that they were also set up witnesses of the incident, therefore, it is necessary to examine the impact of recording of evidence of the witnesses who claim themselves to be the eye-witnesses. This Court has already held in 199 SCMR 550 and 1995 S.C.M.R. 127 that if no plausible explanation is offeredby prosecution to record the statement of eye-witnesses immediately after the registration of the case then the evidence of such witness becomes incredible. This question can be examined from another view point that FIR was not registered with promptitude because it does not contain the name of the accused and witness then the conclusion could be that lodging of FIR was delayed purposely because in the meanwhile consultation and deliberation and taken place to involve the accused persons at the behest of the complainant and also to set up witnesses to support them. As has been observed hereinabove the lodging of FIR with promptitude has been seriously objected to, as according to the defence version on FIR was lodged on the day of incident because no witness who had seen the incident was available, therefore, in the meanwhile after fabricating the evidence case wasregistered on 23rd February 1997 in which besides the complainant names of two other persons namely Khalid Mehmood and Khurshid Ahmad Constables (not examined) were mentioned but when the prosecution sniffed that they are not supporting the prosecution case they introduced PWs Manzoor Hussain and Syed Allah Diwaya stamping them to be the eye­witnesses. The objection so raised carries weight because inclusion of names of these two witnesses for the first time in the calendar of witnesses attached with challan dated 27th October 1997 they were never examined by the police inasmuch as per record 1.0. Sadat Mehdi during his examination in chief stated that the statements of these two witnesses were not recorded. Thus it is not understandable as to how the prosecution managed to get their statements recorded under Section 161 Cr.P.C. on 20th February 1997. Photostat copies of which have been placed on record.

31.  Learned trial and Appellate Courts without assigning any cogent reasons partially discarded the evidence of these two witnesses i.e. their depositions were accepted to the extent of identifying the accused but were not considered as far as their testimony relating to happening of the incident. It is to be observed that in criminal administration of justice it is the duty of the  Court to  evaluate  the   evidence  available  on   record  as  a whole notwithstanding the fact whether the benefit of the same will go to defence instead to prosecution. It is also the duty of the Court seized with the matter  _ to consider the cumulative effect of total evidence and not to consider it in isolation during the process of assessing its evidentiary value as it has been held by this Court in the case of Asadullah vs. Muhammad Alt (PLD 1971 S.C. 541) and Mst. Razia Begum vs. Hijrayat Mi and 3 others (PLD 1976 S.C.44).

32.    Perusal of the statement of P.W. Manzoor Hussain and Syed Allah Diwaya reveal that they were the chance witnesses because as per the version of the former, on the day of incident i.e. 20th February 1997 he was  proceeding from Octori No. 9 after obtaining money from a person and arrived at a Tikka shop opposite to Khana-e-Farhang. It was at 11.00/12.00 noon. He asked for a glass of water from the said shop. He was given a glass of water and then he sat on a stole lying in-front of the said shop. As far as latter is concerned he deposed that on the said date he went to Khana-e-Farhang to get a Visa for the Holy Places in Iran, Syria etc. It was at about 10.30 when he arrived at the gate of Khana-e-Farhang where a Chowkidar was present at the gate. He told him that since the concerned clerk was not present, therefore, he directed him to wait for him. I then sat at the shop in front of Khana-e-Farhang. Another person was also sitting at that shopwhom he did not know previously. That man inquired from him and he told him tHte purpose of his visit. According to his erosion it was about 11.40/12.00 noon when two persons riding on the motorcycle came there. One of the persons riding on the motorcycle went inside Khana-e-Farhang and the other remained standing with the motorcycle. Both of them have failed to establish their object of visiting the place of incident because firstly as per the site-plan Ex-PRR there is no Tikka Shops situated in front of Khana-e-Farhang; and secondly the former did not disclose the particulars of the perSon from whom he had to take the money and in which area from the side of Octroi No. 9 he met with him. Similarly the latter witness in cross-examination admitted that he thereafter never visited Khana-e-Farhang to contact the said clerk for obtaining visa of Iran for visiting Holy Places inasmuch as neither the passport or the application for getting the visa was got exhibited in order to establish his presence. The presence of both the witnesses also become doubtful because they had not stated that as to whether at the relevant time when they were present in front of Khana-e-Farhang a police constable (PW Ijaz Ahmad) was present on duty or not. The evidence of chance witnesses in criminal cases can be accepted if they successfully establish their presence at the place of incident otherwise Court has to undertake an exercise to find out strong corroboration to theirstatements in order to make them admissible. In the case of Javed Ahmad alias Jaida v. The State and another (1978 SCMR 114) this Court has held that "when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory^ explanation for their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony". This principle was reiterated by this Court in the case ofMuhammad Ahmad and another v. The State and others (1997 S.C.M.R. 89).

33. PW Manzoor Ahmad in his statement stated that he saw two persons on the motor-cycle and one of them went inside Khana-e-Farhang. 3/4 persons came out of the said jeep and 6/7 persons came out of Van. They all entered into the building of Khana-e-Farhang. After about five minutes, during his stay firing started in the building. Immediately after the firing the aforesaid persons came out of the building. He did not see any of them being armed. Then all of them boarded in the said vehicles and fled-away from the spot towards Octori No. 9. Whereas on this point PW Syed Allah Diwaya deposed that two persons were riding on the motor-cycle one of the persons riding on the motorcycle went inside the Khana-e-Farhang and other remained stood with the motorcycle. Two persons from one jeep and three persons from the second (carry van) emerged out and went inside Khana-e-Farhang. The remaining three/four persons remained in the carry van while two in the second jeep. After about 5/6 minutes he heard reports of firing from inside Khana-e-Farhang. Apparently statements are not only contradictory to each other but also to the statement of PW Ijaz Ahmad. So much so that one of them i.e. Manzoor Hussain categorically stated that when all the persons who entered in the building came out he has not seen them armed whereas PW Syed Allah Diwaya has stated nothing in this behalf. None of them stated that firing had also taken place on the gate ofKhana-e-Farhang which resulted in the death of Rahim Dad Chowkidar and snatching of .9-MM rifle from guard posted on the gate of Khana-e-Farhang after throwing chillies on his face. Neither they have furnished any count that if there was a Chowkidar or guard what happened to them. PW Manzoor Hussain deposed that amongst the assailants he identified accused Abu Bakar, Imran Ashraf and Muhammad Yousuf accused present in the Court who were among the said persons on the day of occurrence and he did not identify the persons who were riding on the motorcycle but identified the persons who were boarding the aforesaid two vehicles when they were leaving the place of occurrence. In cross-examination he improved his statement to offer the explanation as to why the persons who entered inside the building were not seen by him armed or otherwise. In this behalf he stated that the persons who had arrived in front of the building of occurrence were wrapped in chadars, therefore, he did not see any of them being armed. In this behalf he further stated that he had seen the persons armed when they arrived in the respective vehicles. In the next sentence he again offered another explanation to justify his statement that the accused were not armed when they arrived in front of the building is false and may statement made before the police is based on truth. According to him he had stated before the police that when the accused persons came out of the building of Khana-e-Farhang they were armed. Further he deposed that my statement made in Court, that they were not armed is false. It may be stated that in the Court he was making the statement on oath.

PW Manzoor Hussain not only contradicted himself in the Court statement but also failed to record a statement consistent to his previous statement got recorded by him before the Investigating Officer. It was inquired from him whether in earlier statement he has narrated his purpose of visit to Police at Multan City. He explained that he had narrated his purpose of visit to the police at Multan C}ty. He was confronted with Ex-DF in which it was not so recorded. He stated that he had not narrated to the police that he was sitting at Tikka Shop because he had to take water and that a glass of water was given to him. It may be noted that this question wasput to him with the object to verify as to whether story narrated by him to obtain money from some person from the side of Octroi No. 9 is correct or not. He did not offer plausible explanation in this behalf. It was further inquired from him as to whether he stated before the police that one of the two persons riding on the motor-cycle went into the building but when he was confronted with his statement it was not found so. These contradictions were got proved by the defence from PW Muhammad Nausherwan who affirmed that he correctly recorded statement of Manzoor Hussain PW, the copy of which was shown as Ex-DF. It may be noted that in accordance with Article 140 of Qanun-e-Shahadat Order, 1984 the contradictions in the police statement and Court statement are required to be proved because in theinstant case PW Muhammad Nausherwan himself was the ascribe, therefore, he admitted the contents of statement (Ex-DF) allegedly recorded by him as correct. By proving these contradictions the defence has successfully established that PW Manzoor Hussain in a-unreliable witness. Similarly PW Syed Allah Diwaya in his previous statement before the police Ex-DK stated that 12/13 armed persons came in front of gate of Khan-e-Farhang in a carry van, Potohar jeep and motorcycle.Chowkidar opened the gate and out of them 6/7 persons entered in the gate whereas rest of them remained standing in armed position near the carry van, jeep and motor­cycle. But in the Court statement during cross-examination he did not support his earlier version as he deposed that he did not state in his statement Ex-DK that 12/13 persons arrived in the vehicles and motor-cycle and out of them 6/7 armed persons went inside while remaining stood armed with the vehicles and motor-cycle. In this behalf he further deposed that his statement that persons were not armed according to his view when they entered into the building of occurrence is correct and his statement Ex-DK is false in this respect. This glaring contradiction was also got proved by the defence through PW Muhammad Nausherwan who admitted that Ex.DK is the correct copy of the statement of PW Syed Allah Diwaya.

PW Syed Allah Diwaya was also cited as witness for Identification Test Parade. His deposition on this point will be discussed in detail subsequently under the heading of the identification of the assailants/accused but at this stage it would be sufficient to make reference to his Court statement in which he has identified some of the accused appellants facing the trial. According to his version after firing he had identified the accused present in the Court and divulged his name to be Abu Bakar Zarrar. He has also identified another person naming him as Ashraf. He further deposed that since the accused were standing at a distance, therefore, he is not able to identify any other accused person who has participated in the occurrence on 20th February 1997. The accused persons to whom he identified as Abu Bakar Zarar stood up and he divulged him name as Ghulam Rasool. Similarly, the other accused who was identified by him as Muhammad Ashraf by the witness has stood up and has divulged his name as Abu Bakar Zarar. The defence and State counsel verified the correct names of both the persons to whom the witness has wrongly identified.

On considering the statements of both the witnesses in juxta­position with the statement of PW Qaz Ahmad it emerges that atleast one set of witnesses namely either PW Ijaz Ahmad or PWs Manzoor Hussain and Syed Allah Diwaya have furnished false evidence or on account of major contradictions cropped up in their statements, or without proving relevant facts or for want of independent corroboration on material particulars all of them have rendered inadmissible and valueless evidence, furnishing strong reasons for the Court to reject their statements out-rightly.

34.    Prosecution after leading evidence possessed by it, closed its ide. Thereafter statements of the appellants and other accused facing trial were ecorded under Section 342 Cr.P.C. However, when the case was nearingto completion all of a sudden an application dated 12th October 1997 signed by applicant Syed Qalandar Ali Shah and his counsel namely Ch. Aftab Ahmad Advocate, was filed. The application was duly supported by an affidavit of the applicant. The contents of both the documents in substance were the same. In this application request was made by the applicant that he ay be allowed to give evidence as according to him he had witnessed the incident of 20th February 1997.

A perusal of proceedings available on record particularly admissions/explanations made by the applicant in this behalf in his Court statement reveal that the applicant came forward on the behest of prosecution to make the statement. The application was contested by the accused facing trial. However, the said application was allowed by the trial Judge vide order dated 20th October 1998.

35.        Order dated 20.10.1998 was challenged by the accused by filing Writ Petition in the Lahore High Court hut the same was dismissed vide order dated 10th November 1998. Accordingly the applicant was examined as CW-1. A perusal of his examination in chief shows that he has not attributed overt act to any of the appellants or the persons who faced trial and have now been acquitted. In other words the examination in chief was got recorded in consistent to the affidavit (CW-l/B) filed by the witness. It would be appropriate to reproduce hereinbelow the contents of the affidavit:--    Surprisingly the witness during the cross-examination by the learned counsel for the State (Prosecutor) involved amongst others all the appellants to be the accused to whom he had seen at the place of incident on 20th February 1997. It is equally important to note that during his examination in chief he deposed that the persons who came out from Khana-e-Farhang building can be identified by him. When repeatedly asked the witness replied that he has nothing more to add. After completion of examination in chief on llth November 1998 the case was adjourned for 12th November 1998. In cross-examination by the prosecutor the witness was asked to identify the accused persons who came out from Khana-e-Farhangbuilding. Before his answer following objection was raised:"At this stage learned defence counsel vehemently opposed the construction of the question regarding identification of the accused persons. They have also objected that in law and facts involved in the present case the question in import being prejudicial to the interest, valuable rights as to their innocence is not permissible under the law. They have also objected that allowing the above question tantamounts to allowing the prosecution to fill up their lacunas as to the identification of the accused at this belated stage. It is also vehemently objected that the witness have been imported and introduced after having been prompted in tutor and also getting the accused persons identified by their faces in the jail premises.

Learned trial Court after recording the objection observed as under :--

"The objections have been recorded and the same shall be resolved at the time of the final arguments".

It is important to note that neither the above objection was disposed of by the trial Court nor by the High Court in the impugned judgment.

36. Learned counsel for the appellants at this stage contended that in view of the contents of the application dated 20th October 1998 and the affidavit reproduced hereinabove there were no reasonable grounds to allow the application because the evidence intended to be furnished by the prosecution was not essential for the just decision of the case. But in order to provide an opportunity to the prosecution to fill up the lacunas at the cost of appellants arbitrarily the application was allowed and in cross-examination opportunity was provided to the State to get identify the accused who were already in custody for the last about more than one year and possibility cannot be ruled out that the witness might have seen the accused persons at number of occasions in the jail premises during the trial, therefore, bringing incriminating evidence against them in this manner is violative of all norms of justice and fair-play. According to the learned counsel such steps were taken by the Court in exercise of jurisdiction not vested in it under Section540 Cr.P.C.

36-A. On the other hand learned State counsel contended that the Court seized with the matter enjoys un-fattered powers to exercise jurisdiction for summoning at any stage any person during trial under Section 540 Cr.P.C. for just decision of the case notwithstanding the fact whether prejudice has been caused or not. Reliance was placed by her on the case of Mst. Amina Bibi vs. Kashif-ur-Rehman (1995 P.Cr.L.J. 730).

Before dilating upon respective contentions of parties counsel we want to clarify that judicial functionaries bestowed with the powers to exercise the jurisdiction conferred upon them are legally bound to decide the cases correctly. In other words no wrong decision on law is expected from a judicial functionary as held in PLD 1987 S.C. 427.

36-B. It would not be out of context to observe that an exercise of jurisdiction in violation of law for extraneous considerations can make liable the concerned judicial officer for action under the relevant provision governing and controlling his conduct as well affairs of his service. It is also well settled by now that a party should not suffer on account of wrongs committed by the judicial functionaries as has been held by this Court in the case of State vs. AsifAdil (1997 SCMR 209).

36-C. There is no avail with the proposition that under Section 540 Cr.P.C. the Court seized with the matter retains jurisdiction to examine any witness at any stage of the trial if his evidence appears to be essential for the just decision of the case. This proposition of law has been dealt with * exhaustively by this Court in the case ofMuhammad Azam vs. Muhammad Iqbal (PLD 1984 S.C. 82). Relevant paras from this judgment are reproduced hereunder :--

It needs to be observed that for purpose of acting under Section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records , would show that it evidence, in connection with the items already noticed, would have been property entertained the reasoning and decision of the learned two Courts might have been different.Sometimes apprehension is expressed that any action by the trial Court under Section 540, Criminal Procedure Code would amount to filing the gaps and omissions in the version or evidence of one or the other party. It may straightway be observed that in so far as the second part of Section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v. Ltd. Col. Muhammad Yusuf (PLD 1963 S.C. 51) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court witness at an earlier stage then notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court witness, it would not effect the power of the Court (under Section 540, Cr.P.C.) to summon and examine the witness if, of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case. Against in The State v. Maulvi Muhammad Jamil and others (PLD 1965 S.C. 681) when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court could avoid any prejudice to the defence by acting under Section 540, Cr.P.C. After holding so a very weighty observation was made which needs to be reproduced: This section empowers a Court at any stage of inquiry, trial or any other proceedings under the Code, to summon any person as witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re-examine any such person, if his evidence appears to it essential for the just decision of the case."(Underlining* is mine)

In yet another case Rashid Ahmad v. The State (PLD 1971 S.C. 709), this Court made it more clear that "a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for, till then the case is still pending. The only questiontherefore, is as to whether in the interest of fairness further opportunity should have been given to the accused"; and, it was held that "there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.P.C" In these cases if the question regarding so-called filing of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of Section 540, Cr.P.C. It would not be possible to convass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. They are : Bashir Ahmad v. The State and another (1975

S.C.M.R. 171), and Yasin alias Cheema and another v. The State (1980 S.C.M.R. 575).

A seemingly contrary view regarding filling of the gaps taken in Rameshwar Dayal and others v. State of U.P. (AIR 1978 SC 1558), when properly appreciated, in reality, does not appear to be so. It was held that a Judge who has to decide a case should not himself become a witness therein by making a statement on oath before a Court of law and thus "should not fill up gaps left by the prosecution". The circumstances in which this type of filling the gap was not approved, were totally different. Otherwise, it is pointed out that the learned Judges held that "it is true that under Section 540 of the Cr.P.C. the High Court has got veiy wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be list exercise." I would, with respect, add that if it is essential for the just decision of the case to exercise this power then (although the conclusion withregard to the finding whether or not it is essential for the just decision of the case has to be reached with due care, but once it is reached) in the case it will not be proper for the Court to hesitate in admitting the additional evidence.

At this stage is necessary to notice another somewhat contrary view expressed in The Crown v. Rafiq Ahmad an another (PLD 1955 BAL. 12), wherein it was held that it is discretionary for the Court under both parts of Section 540, Criminal Procedure Code to summon or not a summon a witness. With respect, it is pointed out that with regard to the second part if it was meant to convey that the Court (after reaching the conclusion that it was essential for the just decision of the case) had a discretion not to admit the relevant evidence, then this decision has not laid down the correct law. It would also be not correct to say that the process of reaching conclusion whether or not it is essential for the just decision to the case to summon an item of evidence is merely an exercise of discretion; because, while appreciating the material or circumstances in which a conclusion has to be reached one way or the other, the Judge goes through an exercise in which logical constraints are to be followed and he cannot in his discretion follow the course contrary to what the clear logic of the situation demands. In that sense, with respect, it is again pointed out that this exercise would not be a mere exercise of discretion.

The use of the expression "appears to it" in the second part of Section 540 gives ample indication that even when it is not possible to give a conclusive verdict with regard to the item of evidence being essential or otherwise, yet lit must in any case at least "appear" to the Court that it is essential, before taking action under the said part of Section 540. And for that matter as observed earlier, it would not be necessary for the trial Court to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision of the case. It would be enough if it appears so to the Court from any material or inference form the material including that which is already available to the Court in any from-admitted evidence or material otherwise lying on the judicial and other files before it. It is in the foregoing context that another judgment namely Abdul Latif and others v. State of Uttar Pradesh (AIR 1978 S.C., 472), has to be viewed. It was held therein that if there is a finding of the High Court that the evidence of any witness is not necessary for just decision of the case, it is a finding of fact and unless there is some substantial error in the judgment of the High Court, the Supreme Court would not interfere in a case of special leave. I agree with the proposition but would, with respect, add that if the HighCourt itself commits an error in interpreting the second part of Section 540, Cr.P.C. in a manner contrary to what has been stated earlier, it might become a case for interference by this Court.

The question regarding so-called bar against filling of gaps, has to be considered in another context also., If it is found to be a salutary rule, then the same, without any distinction vis-a-vis the nature of the offence, should be applicable in all criminal trials. It would be noticed that in murder cases; the application of this rule, when the controversy is with regard to the filling or otherwise of a gap in the defence evidence by the resort to Section 540, and in case denial thereof would result in conviction and no other sentence than death would be likely to be awarded, it would not be possible to canvass that in observation of the so-called rule of avoidance to fill the gaps, evidence which is essential for the just decision of the case, would not be admitted for this reason. It would not only be the negation of justice in a general sense, but would also contravene another rule namely that no party should suffer on account of mere technicalities. The procedural law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fair-play.

It may be added that the language of Section 165 of the Evidence Act also lends full support to the view regarding interpretation of second part of Section 540, Cr.P.C. It reads as follows :--

"165.  Judge's power to put questions or order production.--

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question :

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved : Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore expected."

The power conferred on the Court by the second part of Section 540, Cr.P.C. and the one conferred by Section 165, Evidence Act are indeed complementary to each other. If the power under Section 165 is so wide as sometimes even to go beyond what is conferred by Section 540 then it would not be proper to assume any artificiallimitations on the exercise of one or the other power and they have to be treated as supplementary to each other. This view find support from elaborate reasoning in the Indian case of Jamatrqj Kewalji Govani v. State of Maharashtra (AIR 1968 S.C. 178). Another illustrative case from India might also be noticed. It is Raghuriandan v. State ofU.P. (AIR 1974 S.C. 463). From the above judgement it is abundantly clear that jurisdiction! under Section 540 Cr.P.C. is always subject to the satisfaction of the Court that the evidence intended to be produced on record would be a stepping stone necessary for just decision of the case only then permission can be accorded. In the instant case the prosecution has produced the evidence which has been discussed hereinabove in detail but despite of that it adopted a device to introduce a witness whose statement was neither recorded during investigation of the case nor there was any indication on record that he had any knowledge about the events in pursuance whereof the culprits accomplished their object. However, the trial Court instead of exercising jurisdiction under Section 540 Cr.P.C. independently allowed the application despite the fact that as per contents of the affidavit reproduced hereinabove the witness had not uttered a single word in respect of any of the accused facing trial and in this manner by causing serious prejudice to them concerning their innocence or otherwise an opportunity was also provided to the State to cross-examine the witness. It is also to be observed that as far as cross-examination under Article 133 of Qanun-e-Shahadat Order, 1984 of the Court witness is concerned it cannot be restricted for any of the parties before the Court. However, as it has been held that if the Court had minutely examined the affidavit alongwith the application it may have refused to exercise the jurisdiction under Section 540 Cr.P.C. and the Court had avoided injustice to the accused persons which they have sufferedbecause they were got identified directly in the Court after about a period of more than one year of their confinement in jail.

37.   Be that as it may, as the statement of CW-1 Syed Qalandar Ali duly recorded on oath by the Court is available on record, therefore, it will besubjected to evaluation keeping in view the principles pertaining to appraisal of evidence, to assess as to whether he has furnished trust worth evidence or not. In this behalf it is to be seen that ordinarily unless the prosecution has not furnished an explanation by examining a witness with the delay the evidence of such witness has to be subjected to close scrutiny. Therefore, the same principle would also be applied to the statement of a Court witness whose name was not mentioned any where right from the registration of the case till the date of filing of the application inasmuch as none of the prosecu­ tion witnesses introduced him to be a person who has seen the incident.

C.W. 1 has made an explanation that he was present on his Tikka shop in front of Khana-e-Farhang building but as it has been observed hereinabove firstly, there is no Tikka shop in front of said building as per the contents of site-plan Ex-PRR, and secondly if he was so anxious to bring truth on record he being the owner of the shop situated in front of the place where an unpleasant incident has taken place would himself had gone to the police for recording of his statement on the date of incident or on any subsequent day during the period of investigation. Remaining silent for such a long period itself indicate that he was set up later on to involve the accused persons probably for want of insufficient evidence which has been produced till then. So far as the statement of C.W. 1 Syed Qalandar Ali on merits isconcerned it is not consistent with the statement of PW Ijaz Ahmad inasmuch as the witness has not shown his presence on duty on the gate of building ofKhana-e-Farhang. Similarly his evidence is contradictory to the evidence furnished by PW Manzoor Hussain as well as Syed Allah Diwaya. This witness never came forward to participate in the Identification Parade which was held subsequently in different places, therefore, in such situation it would not be safe to place reliance on his evidence. The authority cited by learned counsel in support of her arguments to justify exercise of jurisdiction by the trial Court in allowing application under Section 540 Cr.P.C. being distinguishable on facts is of no help to the State. Similarly the authorities cited by her reported in 1994 P.Cr.L.J. 140 need not to be referred in view of the peculiar circumstances of the case.

38.    Learned counsel for appellants contended that evidence of P.W. Zahid Hussain produced by the prosecution to establish that appellants andothers had hatched a conspiracy at Chowk Kamharan in the morning of day of incident and then leaving together towards Octroi No. 9 has wrongly beenconsidered to involve them in the Commission of the offence. According to him this witness has made an attempt to establish his presence at Chowk Kamharan Wala by saying that he has gone there for correction of Sui Gas bill but no such document was produced on record and on the basis of such evidence no adverse inference about the involvement of the appellants in the Commission of offence can be drawn. He further stated that the prosecution fabricated evidence of this witness after though as initially this witness was examined by the prosecution only for identifying dead-body of Faqir Muhammad.

Learned counsel for State contended that presence of this witness at Chowk Kamharan Wala cannot be disputed in view of explanation offered by him to be present there before happening of the incident. Detailed discussion on the statement of this witness will be undertaken while discussing the question of conspiracy. However, regarding his status to be a witness of the circumstances it is observed that admittedly he was relative of Faqir Muhammad son of Malik Bahawal, Caste Khokhar. On 20th February 1997 he identified his dead-body alongwith PW Kifayat Hussain son of Ahmad Bakhsh (not produced). The identification of the dead-body had taken placeinside the building of Khana-e-Farhang vide inquest report Ex-PD/2 prepared by PW Muhammad Nausherwan after happening of the incident. This witness accompanied the dead-body to the hospital for the purpose of post-mortem under the escort of Faiz Rasool SI and Muhammad Javed Constable. His name was included in the calendar of witnesses appended with the challan submitted on 6.4.1997. In his statement he involved Iftikhar alias Khara, Aslam Ansari and Afzal Muna who have been acquitted. In cross-examination he stated that on the day of incident he has gone to Multan City for correction of gas bill. The concerned office had converted thebill into installments. He did not deposit the installments. He deposited his bail after two months from 20.2.1997. His installment bill is not traceable. A perusal of this portion of the statement suggests to hold that he was a chance witness. However, at the same time no bill original or converted one was got exhibited inasmuch as he has not shown the installment bill if made afterwards, therefore, his presence at Chowk Kamharan Wala has become doubtful. In support of this observation reliance is placed on the cases of Muhammad Ahmad and another vs. The State (1997 S.C.M.R. 89), Guli Chand and others vs. State ofRajasthan (AIR 1974 S.C. 274), Bahal Singhvs. State ofHaryana (AIR 1976 S.C. 2032) & Dayaramsingh Vs. The State of M.P. (1981 Crl. L.J. 530.).

RE-IDENTIFICATION OF ACCUSED

40. Learned counsel argued that re-Identification Parade of the appellants except Malik Muhammad Ishaq has not been conducted by the concerned authorities in accordance with the provisions of law as well as instructions issued by the Punjab Government published in Lahore High Courts Rules and Order Volume III, Chapter 11-C. Prosecution witnesses Ijaz Ahmad, Manzoor Hussain and Syed Allah Diwaya failed to furnish confidence inspiring ocular testimony, therefore, on the basis of such evidence appellants cannot be said to have been identified correctly by them. Besides it, before Identification Parade the witnesses have already seen the accused (appellants) because majority of them was already confined in different jails from where they were shown to have been arrested in this case aad their Identification Parade was arranged subsequently after a considerable long time. According to him none of the prosecution witnesses identifying the appellants had pointed out specific role which they had played at the time of alleged Commission of the crime by them. He further stated that in such situation while taking into consideration this piece of evidence learned trial and appellate Courts have erred in law in accepting such defective evidence against them which has occasioned injustice to them.

Learned counsel for the State controverting the stand taken by appellants counsel stressed on acceptance of Identification Test Parade as according to her the instructions issued by the Provincial Government as well as relevant provision of law have been fully complied with inasmuch as some of the accused facing trial were duly informed to muffle their faces before Identification Test Parade. She placed reliance in support of her contention on PLJ 1996 S.C. 471,1992 S.C.M.R. 338 and 2000 P.Cr.L.J. 331.

41. As the incident was Committed by the assailants who were not apprehended at the spot because according to the prosecution they being armed with lethal weapons successfully made their escape good after Commission of the offence and at the initial stages Investigating Agency had no clue of the accused persons except their features which were described in the complaint Ex-PQ and other consideration that the crime is the by­product of sectarian groups going on since long in the country, therefore, probably keeping in view the latter consideration Investigating Agency statedly arrested acquitted accused Iftikhar alias Khara on the day of theincident from Shah Rukan-e-Alam Colony, Multan as per statement of PW-39 Zahid Hussain who accompanied the SHO. At this juncture it is important to point out that this person was already declared as proclaimed offender in 1996 in the case registered under Section 302/109 PPC etc. of P.S. Mitro Vehari and according to his version he was arrested in this case on 17th February 1997 and after the present incident he was shown arrested in instant case as well. It is alleged by the prosecution that due to revealation of the accused it was learnt that appellant Malik Muhammad Ishaque has got a Pager No. 1125 details whereof were produced in the Court videArticle 36. It may be noted that as per details the Pager is not on his name. In the details, however, it is mentioned that its subscriber has received messages from different persons on different dates including on the date of incident after its Commission. As such on basis of such information arrest of appellant Abdul Hanan was managed from the house of Qari Muhammad Siddique by PW Shahid Niaz. It is also to be pointed out that the appellant firstly introduced himself by the name of Sh. Ashfaq but when he was brought to Multan and produced before PW Mirza Maqbool Baig DSP he disclosed his correct name to be Sh. Abdul Hanan. This appellant was subjected to interrogation during course whereof at this pointation from House No. 346-F Shah Rukan-e-AIam Colony, Multan which was stated to be in the use of group of appellants huge quantity of arms and ammunition including fax machine, literature, official jeep, golden cards, silver cards etc. were taken into possession. Details whereof will be discussed subsequently while dealing with the subject of recoveries. One thing important which requires to be noted here is that although the recovery and arrest of Abdul Hanan were shown on 21st February 1997 but vide application Ex-DL his remand was obtained on 22nd February 1997 for the purpose of recovery of incriminating articles as well as service rifle 9-MM which was already recovered on 20th February 1997 vide Ex-PL from Bakar Mandi Multan City. Subsequent thereto the arrests of other appellants except Malik Muhammad Ishaque was carried out from different jails and police stations where they were arrested and confined. The arrested accused were put to Identification Parade in District Jail Multan, Central Jail Bahawalpur and District Jail Sahiwal and their Identification Test Parades were arranged on 15th September 1997, 27th October 1997 and 3rd December 1997 respectively.

42. Thus their cases require to be dealt with separately but we consider is proper to reproduce Article 22 of Qanun-e-Shahadat Order, 1984 which deals with the facts necessary to explain or introduce relevant facts as well as some of the- instructions issued by the Provincial Government to ensure proper and accurate Identification Parade as under :--

ARTICLE 22

22.   Facts necessary to explain or introduce relevant facts.-

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

INSTRUCTIONS

(1)              List of all persons included in the parade should be prepared.—The Magistrate in charge of an identification prade 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 Magistrateshould no in what connection he is identified. A note should also be made if the witness identifies a person wrongly; in such a case it is incorrect to note that the witness identified nobody. All persons identified must be mentioned, whether the identification is right or wrong., If a witness, on being called forthe purpose, states that he cannot make any identification, a note should be recorded by the Magistrate to this effect.

(3)              Objection or statements by accused or identification witnesses to be recorded and power of Magistrate to decide objections.-Should the accused make aiij 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, but in other cases it is advisable to leave any ecision as to the value to be attached to the objection to the Court tying the case. The Magistrate should also record any statement made by a witness before making an identification.

(4)              Duty of Magistrate to record precautions taken and to note other points.-The Magistrate should state-

(a)   what precautions he has taken to ensure-

(i) that the witnesses do not see the person to be identified by them before the identification proceedings commence;

(ii) that no communication which would facilitate identification is made to any witness who is awaiting his turn to identify; and

(Hi) that after making identification the witnesses do not communicate with other witnesses who have yet to do so;

(b)    whether the person to be identified is handcuffed or is wearing fetters; and if so, 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.

43. The process of identification of the accused persons by the time has gained significance due to non-arresting of the accused persons at the spot. Therefore, relying on such identification a greater amount of care should be applied in order to avoid injustice and prejudice to the accused persons who have not been accurately identified but convicted believing such evidence against them. In this regard, in the foreign countries lot of work has been done. Relevant paras from the treaties of Lord Devlin are reproduced hereinbelow:--

"Lord Devlin beings by referring to some very celebrated cases totally illegal convictions in the last seventy or eighty years. Thus about eighty years ago a man called Adolf Beck was convicted and Lord Devlin writes :--

"Beck was twice wrongly convicted, having been identified in 1896, by eleven witnesses and in 1904, by four. This miscarriage of justice was the good which finallypricked Parliament into setting up the Court of Criminal Appeal....In 1912, a man on a charge of murder was identified by no less than seventeen witnesses, butfortunately, was able to establish an irrefutable alibi. In 1928, Oscar Slater, after he had spent nineteen years in prison and after a public agitation in which many distinguished people joined, he had his conviction for murder quashed; he had been identified by fourteen witnesses.Then the learned author refers to the two cases which led the Home Secretary to request him to hold a fresh enquiry. The learned author writes:-

"In 1974, two shatterings cases of mistaken identify came to light within four weeks of each other, In the first of them Mr. Dougherty was convicted of shop-lifting, havingbeen identified by two witnesses, at a time when he was on an excursion with some twenty other persons. The accidents and blunders which led to his conviction, and to his appeal from it being dismissed, are not relevant here      After he had served most of his sentence in prison and on a reference back to the Court of Appeal by the Home Secretary, Mr. Dougherty got his alibi evidence before the Court and the prosecution threw up the sponge            This was on  14^th

March, 1974. On 5th April, the Home Secretary discharged with the grant of a free pardon a Mr. Virag from the person in which he had been for five years. As was conclusively provide in the subsequent inquiry, he had been wrongly identified by eight witnesses, four of them Police Officers, on six different occasions."

This brief of illegal convictions is all the more depressing because it is clear that errors in identification cannot be prevented by increasing the number of identifying witnesses or by having resort to the evidence of Police Officers, and indeed Virag's case proves beyond doubt the fallacy of assuming that Police Officers haveextraordinary powers of observation. What then is the solution of this harrowing problem ? In our opinion, the only safeguard against illegal convictions is that the Judge or Judges hearing the case should be conscious of the dangers inherent in the identification of accused by witnesses who are total strangers to them.

Reverting however to the learned author, he made to recommendations to the British Government. In this connection, the learned author writes :--

"The first recommendation was for an absolute and unconditional rule that the jury should be directed or warned about the dangers of identification evidence. Thesecond was for a general rule that the jury should not be allowed to convict on eye-witness evidence alone. This rule had to be general and not absolute because admittedly there would be exceptions, e.g. when the witness was identifying someone he knew will or who had been under frequent or prolonged observation."

As we do not have the jury system, the first recommendation would translated into our procedure, mean that the Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses, who have seen them very briefly and this coincides with our own views on the matter. The secondrecommendation, however, is very wide, and it is not necessary for us to decide so wide a proposition, as the question before us is whether it would be safe to base a conviction on the evidence of one identifying witness only, because he was an honest witness. Now, although the witness was an honest witness, the dangers of errors inidentification are so great that in our- humble opinion, safe in exceptional circumstances, it would not be safe to base a conviction on the evidence of a solitary eye-witness if the witness has only had a fleeting glips of the assailant. And, as in the instant case, there are no special circumstances, we hold that the learned Chief Justice erred in convicting the respondent solely on Saadullah Khan's evidence.

44.     Now the  cases of the groups  of the  appellants whose Identification Test Parade arranged on different dates and in different jails

with short details relating to their arrest etc. will be considered hereinhelow

RE-IDENTIFICATION TEST PARADE HELD IN DISTRICT JAIL MULTAN.

Date of	Place	Place,     Date	A	Name       of	the
arrest	of	name	of	witnesses	who
	arrest	supervising		identified	the
		Magistrate	of	accused.
		Identification
		Parade.

S.        Name of Accused No.

1.        1.    Abdul Hanan                                                   21.2.1997  Bahawalpur  15.9.1997 at District Ijaz Ahmad, PW-18

2.          Ghulam Rasool Shah  16.7.1997   Faisalabad    Jail Multan under (Khalid Mehmood

3.          Hafiz Shafique-ur-      20.7.1997  Mianwali       the supervision of            Khurshid Ahmed DidRehman                                                           Mr. Irshad         not identify the

Mohiuddin, Judicial      accused and given up).»               Magistrate* PW-22.

The above noted appellants were not identified by PWs Khalid Mehmood and Khurshid Ahmad Constables though as per the contents of complaint (Fard-e-Bayan) (Ex-PQ) as well as site-plan Ex-PRR they have seen the culprits fleeting away after the commission of the offence. So far as PW Ijaz Ahmad is concerned identification through him can not legally be accepted to be accurate because he remained with the police with effect from 21st February 1997 till the expiry of the police remand. PW Muhammad Nausherwan in examination-in-chief deposed that since PW Ijaz Ahmad had been joining investigation with him in presence of accused Abdul Hanan, therefore, he was not subjected to Identification Parade. Besides it as per previous statement under Section 161 Cr.P.C. of Ijaz Ahmad Ex-DD dated 1st March 1997 he deposed that on the day of incident the person who has concealed a Kalashnikov in his chadder and to whom he has seen, he was Abdul Hanan son of Abdul Waheed, resident of Rehman Colony Bahawalpur to whom he has identified. He has further stated that he has committed the murder of Rahim Dad Chowkidar. This aspect of his statement has already been discussed hereinabove, therefore, in such circumstances no evidentiary value can be attached to the evidence furnished by PW Ijaz Ahmad in respect of Abdul Hanan's Identification Test Parade,

From perusal of the above table it is manifest that appellant Ghulam Rasool Shah and Shafique-ur-Rehman were initially arrested in the cases registered against them at Faisalabad and Darya Khan (Mianwali) and in those cases statedly they were declared proclaimed offenders and after the happening of incident of 20th February 1997 both of them were arrested in the instant case by PW Sadat Mehdi on 16th July 1997 and 20th July 1997 respectively. Thereafter they were shifted-from Faisalabad and Central Jail Mianwali to District Jail Multan Admittedly no pre-cautionary measures were adopted by the police to avoid that no one could see them before holding of their Identification Parade. Even otherwise it was not possible because they were made to travel from Faisalabad to District Jail Multan and after their confinement again the identification test parade was held on 15th September 1997 after passing of considerable period for which no explanation of whatsoever nature has been offered by the prosecution.

It is equally important to note that PW Ijaz Ahmad in his Court statement recorded on 30th March 1998 had ascribed the role to Ghulam Rasool of entering the building of Khana-e-Farhang alongwith two other persons whereas in respect of Shafique-ur-Rehman he deposed that he was amongst the second group of the assailants who snatched service rifle from him. Because this witness has disclosed the features of both the groups of the assailants in his Fard-e-Bayan (Ex-PQ) therefore, it was obligatory to have mixed them alongwith such dummies who had some what similar resemblance. It may be noted that amongst the first group of 3 young boys he had stated that their colours were whitish, slim bodies with middle stature aged 20/25 years and out of them one had a lean face wearing pent and shirt whereas remaining two were wearing shalwar andkameez, one of whom used to visit Khana-e-Farhang off and on. From this version of the witness it can be inferred that if he has recognized Ghulam Rasool Shah having whitish colour then the person to whom he recognized to be Ghulam Rasool Shah and he has a fair complexion then it would mean that he had wrongful identified him. In cross-examination he admitted that accused Ghulam Rasool is of fair complexion and not whitish.

The perusal of the proceedings of Identification Parade (Ex.PEE/4) supervised PW. Irshad Mohiuddin Judicial Magistrate Multan reveal that it does not contain the names, parentage and addresses and occupation of each member of the parade, therefore, question would arise that who were those dummies, what were their features, with whom they.were mixed up. Although in the proceedings Ex-PEE to role played by the appellants were recorded by PW Irshad Mohiuddin but the roles so written are entirely in contradiction to the contents of Fard-e-Bayan (Ex-PQ) as well as Court statement of PW Jjaz Ahmad.

As far as appellant Hafiz Shafique-ur-Rehman is concerned, in respect of his role he stated that he had a pistol in his hand and he threatened him to hand over his rifle to him otherwise he will be killed. Whereas in respect of holding a pistol by Shafique-ur-Rehman is concerned nothing was stated nor he deposed that threats of killing him where advanced by him. Contrary to it he deposed that remaining accused who were armed with pistols issued threats of dire consequences.

As far as appellant Ghulam Rasool is concerned he specified the role of having a pistol in his hand during the wardat whereas is his Court statement he deposed that convict alongwith two others i.e. Abu Bakar and Imran went inside the building of Khana-e-Farhang.

Besides non-compliance of the instructions referred to and discrepancies pointed out hereinabove the proceedings of Identification atter is concerned he deposed that on the said date he went to Khana-e-Farhang to get a Visa for the Holy Places in Iran, Syria etc. It was at about 10.30 when he arrived at the gate ofKhana-e-Farhang where a Chowkidar was present at the gate. He told him that since the concerned clerk was not present, therefore, he directed him to wait for him. I then sat at the shop in front of Khana-e-Farhang. Another person was also sitting at that shop whom he did not know previously. That man inquired from him and he told him tHte purpose of his visit. According to his erosion it was about 11.40/12.00 noon when two persons riding on the motorcycle came there. One of the persons riding on the motorcycle went inside Khana-e-Farhang and the other remained standing with the motorcycle. Both of them have failed to establish their object of visiting the place of incident because firstly as per the site-plan Ex-PRR there is no Tikka Shops situated in front of Khana-e-Farhang; and secondly the former did not disclose the particulars of the perSon from whom he had to take the money and in which area from the side of Octroi No. 9 he met with him. Similarly the latter witness in cross-examination admitted that he thereafter never visited Khana-e-Farhang to contact the said clerk for obtaining visa of Iran for visiting Holy Places inasmuch as neither the passport or the application for getting the visa was got exhibited in order to establish his presence. The presence of both the witnesses also become doubtful because they had not stated that as to whether at the relevant time when they were present in front of Khana-e-Farhang a police constable (PW Ijaz Ahmad) was present on duty or not. The evidence of chance witnesses in criminal cases can be accepted if they successfully establish their presence at the place of incident otherwise Court has to undertake an exercise to find out strong corroboration to their statements in order to make them admissible. In the case of Javed Ahmad alias Jaida v. The State and another (1978 SCMR 114) this Court has held that "when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory^ explanation for their presence at or near the spot at the relevant time, or there is otherwise any inherent weakness or contradiction in their testimony". This principle was reiterated by this Court in the case of Muhammad Ahmad and another v. The State and others (1997 S.C.M.R. 89).

33. PW Manzoor Ahmad in his statement stated that he saw two persons on the motor-cycle and one of them went inside Khana-e-Farhang. 3/4 persons came out of the said jeep and 6/7 persons came out of Van. They all entered into the building of Khana-e-Farhang. After about five minutes, during his stay firing started in the building. Immediately after the firing the aforesaid persons came out of the building. He did not see any of them being armed. Then all of them boarded in the said vehicles and fled-away from the spot towards Octori No. 9. Whereas on this point PW Syed Allah Diwaya deposed that two persons were riding on the motor-cycle one of the persons riding on the motorcycle went inside the Khana-e-Farhang and other remained stood with the motorcycle. Two persons from one jeep and three persons from the second (carry van) emerged out and went inside Khana-e-Farhang. The remaining three/four persons remained in the carry van while two in the second jeep. After about 5/6 minutes he heard reports of firing from inside Khana-e-Farhang. Apparently statements are not only contradictory to each other but also to the statement of PW Ijaz Ahmad. So much so that one of them i.e. Manzoor Hussain categorically stated that when all the persons who entered in the building came out he has not seen them armed whereas PW Syed Allah Diwaya has stated nothing in this behalf. None of them stated that firing had also taken place on the gate ofKhana-e-Farhang which resulted in the death of Rahim Dad Chowkidar and snatching of .9-MM rifle from guard posted on the gate of Khana-e-Farhang after throwing chillies on his face. Neither they have furnished any count that if there was a Chowkidar or guard what happened to them. PW Manzoor Hussain deposed that amongst the assailants he identified accused Abu Bakar, Imran Ashraf and Muhammad Yousuf accused present in the Court who were among the said persons on the day of occurrence and he did not identify the persons who were riding on the motorcycle but identified the persons who were boarding the aforesaid two vehicles when they were leaving the place of occurrence. In cross-examination he improved his statement to offer the explanation as to why the persons who entered inside the building were not seen by him armed or otherwise. In this behalf he stated that the persons who had arrived in front of the building of occurrence were wrapped in chadars, therefore, he did not see any of them being armed. In this behalf he further stated that he had seen the persons armed when they arrived in the respective vehicles. In the next sentence he again offered another explanation to justify his statement that the accused were not armed when they arrived in front of the building is false and may statement made before the police is based on truth. According to him he had stated before the police that when the accused persons came out of the building of Khana-e-Farhang they were armed. Further he deposed that my statement made in Court, that they were not armed is false. It may be stated that in the Court he was making the statement on oath.

PW Manzoor Hussain not only contradicted himself in the Court statement but also failed to record a statement consistent to his previous statement got recorded by him before the Investigating Officer. It was inquired from him whether in earlier statement he has narrated his purpose of visit to Police at Multan City. He explained that he had narrated his purpose of visit to the police at Multan C}ty. He was confronted with Ex-DF in which it was not so recorded. He stated that he had not narrated to the police that he was sitting at Tikka Shop because he had to take water and that a glass of water was given to him. It may be noted that this question wasput to him with the object to verify as to whether story narrated by him to obtain money from some person from the side of Octroi No. 9 is correct or not. He did not offer plausible explanation in this behalf. It was further inquired from him as to whether he stated before the police that one of the two persons riding on the motor-cycle went into the building but when he was confronted with his statement it was not found so. These contradictions were got proved by the defence from PW Muhammad Nausherwan who affirmed that he correctly recorded statement of Manzoor Hussain PW, the copy of which was shown as Ex-DF. It may be noted that in accordance with Article 140 of Qanun-e-Shahadat Order, 1984 the contradictions in the police statement and Court statement are required to be proved because in theinstant case PW Muhammad Nausherwan himself was the ascribe, therefore, he admitted the contents of statement (Ex-DF) allegedly recorded by him as correct. By proving these contradictions the defence has successfully established that PW Manzoor Hussain in a-unreliable witness. Similarly PW Syed Allah Diwaya in his previous statement before the police Ex-DK stated that 12/13 armed persons came in front of gate of Khan-e-Farhang in a carry van, Potohar jeep and motorcycle.Chowkidar opened the gate and out of them 6/7 persons entered in the gate whereas rest of them remained standing in armed position near the carry van, jeep and motor­cycle. But in the Court statement during cross-examination he did not support his earlier version as he deposed that he did not state in his statement Ex-DK that 12/13 persons arrived in the vehicles and motor-cycle and out of them 6/7 armed persons went inside while remaining stood armed with the vehicles and motor-cycle. In this behalf he further deposed that his statement that persons were not armed according to his view when they entered into the building of occurrence is correct and his statement Ex-DK is false in this respect. This glaring contradiction was also got proved by the defence through PW Muhammad Nausherwan who admitted that Ex.DK is the correct copy of the statement of PW Syed Allah Diwaya.

PW Syed Allah Diwaya was also cited as witness for Identification Test Parade. His deposition on this point will be discussed in detail subsequently under the heading of the identification of the assailants/accused but at this stage it would be sufficient to make reference to his Court statement in which he has identified some of the accused appellants facing the trial. According to his version after firing he had identified the accused present in the Court and divulged his name to be Abu Bakar Zarrar. He has also identified another person naming him as Ashraf. He further deposed that since the accused were standing at a distance, therefore, he is not able to identify any other accused person who has participated in the occurrence on 20th February 1997. The accused persons to whom he identified as Abu Bakar Zarar stood up and he divulged him name as Ghulam Rasool. Similarly, the other accused who was identified by him as Muhammad Ashraf by the witness has stood up and has divulged his name as Abu Bakar Zarar. The defence and State counsel verified the correct names of both the persons to whom the witness has wrongly identified.

On considering the statements of both the witnesses in juxta­position with the statement of PW Qaz Ahmad it emerges that atleast one set of witnesses namely either PW Ijaz Ahmad or PWs Manzoor Hussain and Syed Allah Diwaya have furnished false evidence or on account of major contradictions cropped up in their statements, or without proving relevant facts or for want of independent corroboration on material particulars all of them have rendered inadmissible and valueless evidence, furnishing strong reasons for the Court to reject their statements out-rightly.

34.    Prosecution after leading evidence possessed by it, closed its side. Thereafter statements of the appellants and other accused facing trial were recorded under Section 342 Cr.P.C. However, when the case was nearingto completion all of a sudden an application dated 12th October 1997 signed by applicant Syed Qalandar Ali Shah and his counsel namely Ch. Aftab Ahmad Advocate, was filed. The application was duly supported by an affidavit of the pplicant. The contents of both the documents in substance  were the same. In this application request was made by the applicant that he may be allowed to give evidence as according to him he had witnessed theincident of 20th February 1997.

A perusal of proceedings available on record particularly admissions/explanations made by the applicant in this behalf in his Court statement reveal that the applicant came forward on the behest of prosecution to make the statement. The application was contested by the accused facing trial. However, the said application was allowed by the trial Judge vide order dated 20th October 1998.

35.   Order dated 20.10.1998 was challenged by the accused by filing Writ Petition in the Lahore High Court hut the same was dismissed vide order dated 10th November 1998. Accordingly the applicant was examined as CW-1. A perusal of his examination in chief shows that he has not attributed overt act to any of the appellants or the persons who faced trial and have now been acquitted. In other words the examination in chief was got recorded in consistent to the affidavit (CW-l/B) filed by the witness. It would be appropriate to reproduce hereinbelow the contents of theaffidavit:-- X,

Surprisingly the witness during the cross-examination by the learned counsel for the State (Prosecutor) involved amongst others all the appellants to be the accused to whom he had seen at the place of incident on 20th February 1997. It is equally important to note that during his examination in chief he deposed that the persons who came out fromKhana-e-Farhang building can be identified by him. When repeatedly asked the witness replied that he has nothing more to add. After completion of examination in chief on llth November 1998 the case was adjourned for 12th November 1998. In cross-examination by the prosecutor the witness was asked to identify the accused persons who came out from Khana-e-Farhang building. Before his answer following objection was raised:

"At this stage learned defence counsel vehemently opposed the construction of the question regarding identification of the accused persons. They have also objected that in law and facts involved in the present case the question in import being prejudicial to the interest, valuable rights as to their innocence is not permissible under the law. They have also objected that allowing the above question tantamounts to allowing the prosecution to fill up their lacunas as to the identification of the accused at this belated stage. It is alsovehemently objected that the witness have been imported and introduced after having been prompted in tutor and also getting the accused persons identified by their faces in the jail premises.

Learned trial Court after recording the objection observed as under :--

"The objections have been recorded and the same shall be resolved at the time of the final arguments".

It is important to note that neither the above objection was disposed of by the trial Court nor by the High Court in the impugned judgment.

36. Learned counsel for the appellants at this stage contended that in view of the contents of the application dated 20th October 1998 and the affidavit reproduced hereinabove there were no reasonable grounds to allow the application because the evidence intended to be furnished by the prosecution was not essential for the just decision of the case. But in order to provide an opportunity to the prosecution to fill up the lacunas at the cost of appellants arbitrarily the application was allowed and in cross-examination opportunity was provided to the State to get identify the accused who were already in custody for the last about more than one year and possibility cannot be ruled out that the witness might have seen the accused persons at number of occasions in the jail premises during the trial, therefore, bringing incriminating evidence against them in this manner is violative of all norms of justice and fair-play. According to the learned counsel such steps were taken by the Court in exercise of jurisdiction not vested in it under Section540 Cr.P.C.

36-A. On the other hand learned State counsel contended that the Court seized with the matter enjoys un-fattered powers to exercise jurisdiction for summoning at any stage any person during trial under Section 540 Cr.P.C. for just decision of the case notwithstanding the fact whether prejudice has been caused or not. Reliance was placed by her on the case of Mst. Amina Bibi vs. Kashif-ur-Rehman (1995 P.Cr.L.J. 730).

Before dilating upon respective contentions of parties counsel we want to clarify that judicial functionaries bestowed with the powers to exercise the jurisdiction conferred upon them are legally bound to decide the cases correctly. In other words no wrong decision on law is expected from a judicial functionary as held in PLD 1987 S.C. 427.

36-B. It would not be out of context to observe that an exercise of jurisdiction in violation of law for extraneous considerations can make liable the concerned judicial officer for action under the relevant provision governing and controlling his conduct as well affairs of his service. It is also well settled by now that a party should not suffer on account of wrongs committed by the judicial functionaries as has been held by this Court in the case of State vs. AsifAdil (1997 SCMR 209).

36-C. There is no avail with the proposition that under Section 540 Cr.P.C. the Court seized with the matter retains jurisdiction to examine any witness at any stage of the trial if his evidence appears to be essential for the just decision of the case. This proposition of law has been dealt with * exhaustively by this Court in the case ofMuhammad Azam vs. Muhammad Iqbal (PLD 1984 S.C. 82). Relevant paras from this judgment are reproduced hereunder :--

It needs to be observed that for purpose of acting under Section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records , would show that it evidence, in connection with the items already noticed, would have been property entertained the reasoning and decision of the learned two Courts might have been different.Sometimes apprehension is expressed that any action by the trial Court under Section 540, Criminal Procedure Code would amount to filing the gaps and omissions in the version or evidence of one or the other party. It may straightway be observed that in so far as the second part of Section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case. It was held in Syed Ali Nawaz Gardezi v. Ltd. Col. Muhammad Yusuf (PLD 1963 S.C. 51) that even if a witness who is ultimately to be produced by the accused in his defence is examined by the trial Court as a Court witness at an earlier stage then notwithstanding the fact that the defence would have an extra advantage of putting leading questions to the witness when standing in the witness-box as a Court witness, it would not effect the power of the Court (under Section 540, Cr.P.C.) to summon and examine the witness if, of course, as was observed in that case, it was in the interest of justice and thus presumably essential for the just decision of the case. Against in The State v. Maulvi Muhammad Jamil and others (PLD 1965 S.C. 681) when examining the effect of change in the criminal procedure, regarding right to further cross-examination, during the transitional period, this Court held that even though it would be for the benefit of the defence, the trial Court could avoid any prejudice to the defence by acting under Section 540, Cr.P.C. After holding so a very weighty observation was made which needs to be reproduced:

This section empowers a Court at any stage of inquiry, trial or any other proceedings under the Code, to summon any person as witness, or recall and re-examine any person already examined, and it is obligatory for the Court to summon and examine or recall and re-examine any such person, if his evidence appears to it essential for the just decision of the case."

(Underlining* is mine)

In yet another case Rashid Ahmad v. The State (PLD 1971 S.C. 709), this Court made it more clear that "a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for, till then the case is still pending. The only questiontherefore, is as to whether in the interest of fairness further opportunity should have been given to the accused"; and, it was held that "there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of section 540, Cr.P.C" In these cases if the question regarding so-called filing of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of Section 540, Cr.P.C. It would not be possible to convass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. They are : Bashir Ahmad v. The State and another (1975

S.C.M.R. 171), and Yasin alias Cheema and another v. The State (1980 S.C.M.R. 575).

A seemingly contrary view regarding filling of the gaps taken in Rameshwar Dayal and others v. State of U.P. (AIR 1978 SC 1558), when properly appreciated, in reality, does not appear to be so. It was held that a Judge who has to decide a case should not himself become a witness therein by making a statement on oath before a Court of law and thus "should not fill up gaps left by the prosecution". The circumstances in which this type of filling the gap was not approved, were totally different. Otherwise, it is pointed out that the learned Judges held that "it is true that under Section 540 of the Cr.P.C. the High Court has got veiy wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. The higher the power the more careful should be list exercise." I would, with respect, add that if it is essential for the just decision of the case to exercise this power then (although the conclusion withregard to the finding whether or not it is essential for the just decision of the case has to be reached with due care, but once it is reached) in the case it will not be proper for the Court to hesitate in admitting the additional evidence.

At this stage is necessary to notice another somewhat contrary view expressed in The Crown v. Rafiq Ahmad an another (PLD 1955 BAL. 12), wherein it was held that it is discretionary for the Court under both parts of Section 540, Criminal Procedure Code to summon or not a summon a witness. With respect, it is pointed out that with regard to the second part if it was meant to convey that the Court (after reaching the conclusion that it was essential for the just decision of the case) had a discretion not to admit the relevant evidence, then this decision has not laid down the correct law. It would also be not correct to say that the process of reaching conclusion whether or not it is essential for the just decision to the case to summon an item of evidence is merely an exercise of discretion; because, while appreciating the material or circumstances in which a conclusion has to be reached one way or the other, the Judge goes through an exercise in which logical constraints are to be followed and he cannot in his discretion follow the course contrary to what the clear logic of the situation demands. In that sense, with respect, it is again pointed out that this exercise would not be a mere exercise of discretion.

The use of the expression "appears to it" in the second part of Section 540 gives ample indication that even when it is not possible to give a conclusive verdict with regard to the item of evidence being essential or otherwise, yet lit must in any case at least "appear" to the Court that it is essential, before taking action under the said part of Section 540. And for that matter as observed earlier, it would not be necessary for the trial Court to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision of the case. It would be enough if it appears so to the Court from any material or inference form the material including that which is already available to the Court in any from-admitted evidence or material otherwise lying on the judicial and other files before it. It is in the foregoing context that another judgment namely Abdul Latif and others v. State of Uttar Pradesh (AIR 1978 S.C., 472), has to be viewed. It was held therein that if there is a finding of the High Court that the evidence of any witness is not necessary for just decision of the case, it is a finding of fact and unless there is some substantial error in the judgment of the High Court, the Supreme Court would not interfere in a case of special leave. I agree with the proposition but would, with respect, add that if the HighCourt itself commits an error in interpreting the second part of Section 540, Cr.P.C. in a manner contrary to what has been stated earlier, it might become a case for interference by this Court.

The question regarding so-called bar against filling of gaps, has to be considered in another context also., If it is found to be a salutary rule, then the same, without any distinction vis-a-vis the nature of the offence, should be applicable in all criminal trials. It would be noticed that in murder cases; the application of this rule, when the controversy is with regard to the filling or otherwise of a gap in the defence evidence by the resort to Section 540, and in case denial thereof would result in conviction and no other sentence than death would be likely to be awarded, it would not be possible to canvass that in observation of the so-called rule of avoidance to fill the gaps, evidence which is essential for the just decision of the case, would not be admitted for this reason. It would not only be the negation of justice in a general sense, but would also contravene another rule namely that no party should suffer on account of mere technicalities. The procedural law is not enacted to trap individual parties through technicalities and has to be interpreted always as acting in aid of justice and fair-play.

It may be added that the language of Section 165 of the Evidence Act also lends full support to the view regarding interpretation of second part of Section 540, Cr.P.C. It reads as follows :--"165.  Judge's power to put questions or order production.-- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, tocross-examine any witness upon any answer given in reply to any such question :

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved : Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore expected."

The power conferred on the Court by the second part of Section 540, Cr.P.C. and the one conferred by Section 165, Evidence Act are indeed complementary to each other. If the power under Section 165 is so wide as sometimes even to go beyond what is conferred by Section 540 then it would not be proper to assume any artificiallimitations on the exercise of one or the other power and they have to be treated as supplementary to each other. This view find support from elaborate reasoning in the Indian case of Jamatrqj Kewalji Govani v. State of Maharashtra (AIR 1968 S.C. 178). Another illustrative case from India might also be noticed. It is Raghuriandan v. State ofU.P. (AIR 1974 S.C. 463).

From the above judgement it is abundantly clear that jurisdiction! under Section 540 Cr.P.C. is always subject to the satisfaction of the Court that the evidence intended to be produced on record would be a stepping stone necessary for just decision of the case only then permission can be accorded. In the instant case the prosecution has produced the evidence which has been discussed hereinabove in detail but despite of that it adopted a device to introduce a witness whose statement was neither recorded during investigation of the case nor there was any indication on record that he had any knowledge about the events in pursuance whereof the culpritsaccomplished their object. However, the trial Court instead of exercising jurisdiction under Section 540 Cr.P.C. independently allowed the application despite the fact that as per contents of the affidavit reproduced hereinabove the witness had not uttered a single word in respect of any of the accused facing trial and in this manner by causing serious prejudice to them concerning their innocence or otherwise an opportunity was also provided to the State to cross-examine the witness. It is also to be observed that as far as cross-examination under Article 133 of Qanun-e-Shahadat Order, 1984 of the Court witness is concerned it cannot be restricted for any of the parties before the Court. However, as it has been held that if the Court had minutely examined the affidavit alongwith the application it may have refused to exercise the jurisdiction under Section 540 Cr.P.C. and the Court had avoided injustice to the accused persons which they have suffered because they were got identified directly in the Court after about a period of more than one year of their confinement in jail.

37.   Be that as it may, as the statement of CW-1 Syed Qalandar Ali duly recorded on oath by the Court is available on record, therefore, it will be   subjected to evaluation keeping in view the principles pertaining to appraisal of evidence, to assess as to whether he has furnished trust worth evidence or not. In this behalf it is to be seen that ordinarily unless the prosecution has not furnished an explanation by examining a witness with the delay the evidence of such witness has to be subjected to close scrutiny. Therefore, the same principle would also be applied to the statement of a Court witness whose name was not mentioned any where right from the registration of the case till the date of filing of the application inasmuch as none of the prosecu­ tion witnesses introduced him to be a person who has seen the incident.

C.W. 1 has made an explanation that he was present on his Tikka shop in front of Khana-e-Farhang building but as it has been observed hereinabove firstly, there is no Tikka shop in front of said building as per the contents of site-plan Ex-PRR, and secondly if he was so anxious to bring truth on record he being the owner of the shop situated in front of the place where an unpleasant incident has taken place would himself had gone to the police for recording of his statement on the date of incident or on any subsequent day during the period of investigation. Remaining silent for such a long period itself indicate that he was set up later on to involve the accused persons probably for want of insufficient evidence which has been produced till then.

38.          So far as the statement of C.W. 1 Syed Qalandar Ali on merits is concerned it is not consistent with the statement of PW Ijaz Ahmad inasmuch as the witness has not shown his presence on duty on the gate of building of Khana-e-Farhang. Similarly his evidence is contradictory to the evidence furnished by PW Manzoor Hussain as well as Syed Allah Diwaya. This witness never came forward to participate in the Identification Parade which was held subsequently in different places, therefore, in such situation it would not be safe to place reliance on his evidence. The authority cited by learned counsel in support of her arguments to justify exercise of jurisdiction by the trial Court in allowing application under Section 540 Cr.P.C. being distinguishable on facts is of no help to the State. Similarly the authorities cited by her reported in 1994 P.Cr.L.J. 140 need not to be referred in view of the peculiar circumstances of the case.

39.    Learned counsel for appellants contended that evidence of P.W. Zahid Hussain produced by the prosecution to establish that appellants and others had hatched a conspiracy at Chowk Kamharan in the morning of day of incident and then leaving together towards Octroi No. 9 has wrongly been considered to involve them in the Commission of the offence. According to him this witness has made an attempt to establish his presence at Chowk Kamharan Wala by saying that he has gone there for correction of Sui Gas bill but no such document was produced on record and on the basis of such evidence no adverse inference about the involvement of the appellants in the Commission of offence can be drawn. He further stated that the prosecution fabricated evidence of this witness after though as initially this witness was examined by the prosecution only for identifying dead-body of Faqir Muhammad.

Learned counsel for State contended that presence of this witness at Chowk Kamharan Wala cannot be disputed in view of explanation offered by him to be present there before happening of the incident. Detailed discussion on the statement of this witness will be undertaken while discussing the question of conspiracy. However, regarding his status to be a witness of the circumstances it is observed that admittedly he was relative of Faqir Muhammad son of Malik Bahawal, Caste Khokhar. On 20th February 1997 he identified his dead-body alongwith PW Kifayat Hussain son of Ahmad Bakhsh (not produced). The identification of the dead-body had taken placeinside the building of Khana-e-Farhang vide inquest report Ex-PD/2 prepared by PW Muhammad Nausherwan after happening of the incident. This witness accompanied the dead-body to the hospital for the purpose of post-mortem under the escort of Faiz Rasool SI and Muhammad Javed Constable. His name was included in the calendar of witnesses appended with the challan submitted on 6.4.1997. In his statement he involved Iftikhar alias Khara, Aslam Ansari and Afzal Muna who have been acquitted. In cross-examination he stated that on the day of incident he has gone to Multan City for correction of gas bill. The concerned office had converted thebill into installments. He did not deposit the installments. He deposited his bail after two months from 20.2.1997. His installment bill is not traceable. A perusal of this portion of the statement suggests to hold that he was a chance witness. However, at the same time no bill original or converted one was got exhibited inasmuch as he has not shown the installment bill if made afterwards, therefore, his presence at Chowk Kamharan Wala has become doubtful. In support of this observation reliance is placed on the cases of Muhammad Ahmad and another vs. The State (1997 S.C.M.R. 89), Guli Chand and others vs. State ofRajasthan (AIR 1974 S.C. 274), Bahal Singhvs. State ofHaryana (AIR 1976 S.C. 2032) & Dayaramsingh Vs. The State of M.P. (1981 Crl. L.J. 530.).

RE-IDENTIFICATION OF ACCUSED

40. Learned counsel argued that re-Identification Parade of the appellants except Malik Muhammad Ishaq has not been conducted by the concerned authorities in accordance with the provisions of law as well as instructions issued by the Punjab Government published in Lahore High Courts Rules and Order Volume III, Chapter 11-C. Prosecution witnesses Ijaz Ahmad, Manzoor Hussain and Syed Allah Diwaya failed to furnish confidence inspiring ocular testimony, therefore, on the basis of such evidence appellants cannot be said to have been identified correctly by them. Besides it, before Identification Parade the witnesses have already seen the accused (appellants) because majority of them was already confined in different jails from where they were shown to have been arrested in this case aad their Identification Parade was arranged subsequently after a considerable long time. According to him none of the prosecution witnesses identifying the appellants had pointed out specific role which they had played at the time of alleged Commission of the crime by them. He further stated that in such situation while taking into consideration this piece of evidence learned trial and appellate Courts have erred in law in accepting such defective evidence against them which has occasioned injustice to them.

Learned counsel for the State controverting the stand taken by appellants counsel stressed on acceptance of Identification Test Parade as according to her the instructions issued by the Provincial Government as well as relevant provision of law have been fully complied with inasmuch as some of the accused facing trial were duly informed to muffle their faces before Identification Test Parade. She placed reliance in support of her contention on PLJ 1996 S.C. 471,1992 S.C.M.R. 338 and 2000 P.Cr.L.J. 331.

41. As the incident was Committed by the assailants who were not apprehended at the spot because according to the prosecution they being armed with lethal weapons successfully made their escape good after Commission of the offence and at the initial stages Investigating Agency had no clue of the accused persons except their features which were described in the complaint Ex-PQ and other consideration that the crime is the by­product of sectarian groups going on since long in the country, therefore, probably keeping in view the latter consideration Investigating Agency statedly arrested acquitted accused Iftikhar alias Khara on the day of theincident from Shah Rukan-e-Alam Colony, Multan as per statement of PW-39 Zahid Hussain who accompanied the SHO. At this juncture it is important to point out that this person was already declared as proclaimed offender in 1996 in the case registered under Section 302/109 PPC etc. of P.S. Mitro Vehari and according to his version he was arrested in this case on 17th February 1997 and after the present incident he was shown arrested in instant case as well. It is alleged by the prosecution that due to revealation of the accused it was learnt that appellant Malik Muhammad Ishaque has got a Pager No. 1125 details whereof were produced in the Court videArticle 36. It may be noted that as per details the Pager is not on his name. In the details, however, it is mentioned that its subscriber has received messages from different persons on different dates including on the date of incident after its Commission. As such on basis of such information arrest of appellant Abdul Hanan was managed from the house of Qari Muhammad Siddique by PW Shahid Niaz. It is also to be pointed out that the appellant firstly introduced himself by the name of Sh. Ashfaq but when he was brought to Multan and produced before PW Mirza Maqbool Baig DSP he disclosed his correct name to be Sh. Abdul Hanan. This appellant was subjected to interrogation during course whereof at this pointation from House No. 346-F Shah Rukan-e-AIam Colony, Multan which was stated to be in the use of group of appellants huge quantity of arms and ammunition including fax machine, literature, official jeep, golden cards, silver cards etc. were taken into possession. Details whereof will be discussed subsequently while dealing with the subject of recoveries. One thing important which requires to be noted here is that although the recovery and arrest of Abdul Hanan were shown on 21st February 1997 but vide application Ex-DL his remand was obtained on 22nd February 1997 for the purpose of recovery of incriminating articles as well as service rifle 9-MM which was already recovered on 20th February 1997 vide Ex-PL from Bakar Mandi Multan City. Subsequent thereto the arrests of other appellants except Malik Muhammad Ishaque was carried out from different jails and police stations where they were arrested and confined. The arrested accused were put to Identification Parade in District Jail Multan, Central Jail Bahawalpur and District Jail Sahiwal and their Identification Test Parades were arranged on 15th September 1997, 27th October 1997 and 3rd December 1997 respectively.

42. Thus their cases require to be dealt with separately but we consider is proper to reproduce Article 22 of Qanun-e-Shahadat Order, 1984 which deals with the facts necessary to explain or introduce relevant facts as well as some of the- instructions issued by the Provincial Government to ensure proper and accurate Identification Parade as under :--

ARTICLE 22

22.   Facts necessary to explain or introduce relevant facts.-

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

INSTRUCTIONS

(1)              List of all persons included in the parade should beprepared.—The Magistrate in charge of an identification prade 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 no in what connection he is identified. A note should also be made if the witness identifies a person wrongly; in such a case it is incorrect to note that the witness identified nobody.All persons identified must be mentioned, whether the identification is right or wrong., If a witness, on being called for the purpose, states that he cannot make any identification, a note should be recorded by the Magistrate to this effect.

(3)              Objection or statements by accused or identification witnesses to be recorded and power of Magistrate todecide objections.-Should the accused make aiij 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, but in other cases it is advisable to leave any decision as to the value to be attached to the objection to the Court tying the case. The Magistrate should also record any statement made by a witness before making an identification.

(4)              Duty of Magistrate to record precautions taken and to note other points.-The Magistrate should state-

(a)   what precautions he has taken to ensure-                              

(i) that the witnesses do not see the person to be identified by them before the identification proceedings commence;

(ii) that no communication which would facilitate identification is made to any witness who is awaiting his turn to identify; and

(Hi) that after making identification the witnesses do not communicate with other witnesses who have yet to do so;

(b)    whether the person to be identified is handcuffed or is wearing fetters; and if so, 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.

43. The process of identification of the accused persons by the time has gained significance due to non-arresting of the accused persons at the spot. Therefore, relying on such identification a greater amount of care should be applied in order to avoid injustice and prejudice to the accused persons who have not been accurately identified but convicted believing such evidence against them. In this regard, in the foreign countries lot of work has been done. Relevant paras from the treaties of Lord Devlin are reproduced hereinbelow:--

"Lord Devlin beings by referring to some very celebrated cases totally illegal convictions in the last seventy or eighty years. Thus about eighty years ago a man called Adolf Beck was convicted and Lord Devlin writes :--

"Beck was twice wrongly convicted, having been identified in 1896, by eleven witnesses and in 1904, by four. This miscarriage of justice was the good which finallypricked Parliament into setting up the Court of Criminal Appeal....In 1912, a man on a charge of murder was identified by no less than seventeen witnesses, butfortunately, was able to establish an irrefutable alibi. In 1928, Oscar Slater, after he had spent nineteen years in prison and after a public agitation in which many distinguished people joined, he had his conviction for murder quashed; he had been identified by fourteen witnesses.

Then the learned author refers to the two cases which led the Home Secretary to request him to hold a fresh enquiry. The learned author writes:-

"In 1974, two shatterings cases of mistaken identify came to light within four weeks of each other, In the first of them Mr. Dougherty was convicted of shop-lifting, havingbeen identified by two witnesses, at a time when he was on an excursion with some twenty other persons. The accidents and blunders which led to his conviction, and to his appeal from it being dismissed, are not relevant here      After he had served most of his sentence in prison and on a reference back to the Court of Appeal by the Home Secretary, Mr. Dougherty got his alibi evidence before the Court and the prosecution threw up the sponge            This was on  14^th

March, 1974. On 5th April, the Home Secretary discharged with the grant of a free pardon a Mr. Virag from the person in which he had been for five years. As was conclusively provide in the subsequent inquiry, he had been wrongly identified by eight witnesses, four of them Police Officers, on six different occasions."

This brief of illegal convictions is all the more depressing because it is clear that errors in identification cannot be prevented by increasing the number of identifying witnesses or by having resort to the evidence of Police Officers, and indeed Virag's case proves beyond doubt the fallacy of assuming that Police Officers haveextraordinary powers of observation. What then is the solution of this harrowing problem ? In our opinion, the only safeguard against illegal convictions is that the Judge or Judges hearing the case should be conscious of the dangers inherent in the identification of accused by witnesses who are total strangers to them.

Reverting however to the learned author, he made to recommendations to the British Government. In this connection, the learned author writes :--

"The first recommendation was for an absolute and unconditional rule that the jury should be directed or warned about the dangers of identification evidence. Thesecond was for a general rule that the jury should not be allowed to convict on eye-witness evidence alone. This rule had to be general and not absolute because admittedly there would be exceptions, e.g. when the witness was identifying someone he knew will or who had been under frequent or prolonged observation."

As we do not have the jury system, the first recommendation would translated into our procedure, mean that the Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses, who have seen them very briefly and this coincides with our own views on the matter. The secondrecommendation, however, is very wide, and it is not necessary for us to decide so wide a proposition, as the question before us is whether it would be safe to base a conviction on the evidence of one identifying witness only, because he was an honest witness. Now, although the witness was an honest witness, the dangers of errors inidentification are so great that in our- humble opinion, safe in exceptional circumstances, it would not be safe to base a conviction on the evidence of a solitary eye-witness if the witness has only had a fleeting glips of the assailant. And, as in the instant case, there are no special circumstances, we hold that the learned Chief Justice erred in convicting the respondent solely on Saadullah Khan's evidence.

44.     Now the  cases of the groups  of the  appellants whose Identification Test Parade arranged on different dates and in different jails with short details relating to their arrest etc. will be considered hereinhelow RE-IDENTIFICATION TEST PARADE HELD IN DISTRICT JAIL MULTAN.

Date of	Place	Place,     Date	A	Name       of	the
arrest	of	name	of	witnesses	who
	arrest	supervising		identified	the
		Magistrate	of	accused.
		Identification
		Parade.

S.        Name of Accused No.

1.        1.    Abdul Hanan                                                   21.2.1997  Bahawalpur  15.9.1997 at District Ijaz Ahmad, PW-18

2.          Ghulam Rasool Shah  16.7.1997   Faisalabad    Jail Multan under (Khalid Mehmood

3.          Hafiz Shafique-ur-      20.7.1997  Mianwali       the supervision of            Khurshid Ahmed DidRehman                                                           Mr. Irshad         not identify the

Mohiuddin, Judicial      accused and given up).»               Magistrate* PW-22.

The above noted appellants were not identified by PWs Khalid Mehmood and Khurshid Ahmad Constables though as per the contents of complaint (Fard-e-Bayan) (Ex-PQ) as well as site-plan Ex-PRR they have seen the culprits fleeting away after the commission of the offence. So far as PW Ijaz Ahmad is concerned identification through him can not legally be accepted to be accurate because he remained with the police with effect from 21st February 1997 till the expiry of the police remand. PW Muhammad Nausherwan in examination-in-chief deposed that since PW Ijaz Ahmad had been joining investigation with him in presence of accused Abdul Hanan, therefore, he was not subjected to Identification Parade. Besides it as per previous statement under Section 161 Cr.P.C. of Ijaz Ahmad Ex-DD dated 1st March 1997 he deposed that on the day of incident the person who has concealed a Kalashnikov in his chadder and to whom he has seen, he was Abdul Hanan son of Abdul Waheed, resident of Rehman Colony Bahawalpur to whom he has identified. He has further stated that he has committed the murder of Rahim Dad Chowkidar. This aspect of his statement has already been discussed hereinabove, therefore, in such circumstances no evidentiary value can be attached to the evidence furnished by PW Ijaz Ahmad in respect of Abdul Hanan's Identification Test Parade,

From perusal of the above table it is manifest that appellant Ghulam Rasool Shah and Shafique-ur-Rehman were initially arrested in the cases registered against them at Faisalabad and Darya Khan (Mianwali) and in those cases statedly they were declared proclaimed offenders and after the happening of incident of 20th February 1997 both of them were arrested in the instant case by PW Sadat Mehdi on 16th July 1997 and 20th July 1997 respectively. Thereafter they were shifted-from Faisalabad and Central Jail Mianwali to District Jail Multan Admittedly no pre-cautionary measures were adopted by the police to avoid that no one could see them before holding of their Identification Parade. Even otherwise it was not possible

because they were made to travel from Faisalabad to District Jail Multan and after their confinement again the identification test parade was held on 15th September 1997 after passing of considerable period for which no explanation of whatsoever nature has been offered by the prosecution.

It is equally important to note that PW Ijaz Ahmad in his Court statement recorded on 30th March 1998 had ascribed the role to Ghulam Rasool of entering the building of Khana-e-Farhang alongwith two other persons whereas in respect of Shafique-ur-Rehman he deposed that he was amongst the second group of the assailants who snatched service rifle from him. Because this witness has disclosed the features of both the groups of the assailants in his Fard-e-Bayan (Ex-PQ) therefore, it was obligatory to have mixed them alongwith such dummies who had some what similar resemblance. It may be noted that amongst the first group of 3 young boys he had stated that their colours were whitish, slim bodies with middle stature aged 20/25 years and out of them one had a lean face wearing pent and shirt whereas remaining two were wearing shalwar andkameez, one of whom used to visit Khana-e-Farhang off and on. From this version of the witness it can be inferred that if he has recognized Ghulam Rasool Shah having whitish colour then the person to whom he recognized to be Ghulam Rasool Shah and he has a fair complexion then it would mean that he had wrongful identified him. In cross-examination he admitted that accused Ghulam Rasool is of fair complexion and not whitish.

The perusal of the proceedings of Identification Parade (Ex.PEE/4) supervised PW. Irshad Mohiuddin Judicial Magistrate Multan reveal that it does not contain the names, parentage and addresses and occupation of each member of the parade, therefore, question would arise that who were those dummies, what were their features, with whom they.were mixed up. Although in the proceedings Ex-PEE to role played by the appellants were recorded by PW Irshad Mohiuddin but the roles so written are entirely in contradiction to the contents of Fard-e-Bayan (Ex-PQ) as well as Court statement of PW Jjaz Ahmad.

As far as appellant Hafiz Shafique-ur-Rehman is concerned, in respect of his role he stated that he had a pistol in his hand and he threatened him to hand over his rifle to him otherwise he will be killed. Whereas in respect of holding a pistol by Shafique-ur-Rehman is concerned nothing was stated nor he deposed that threats of killing him where advanced by him. Contrary to it he deposed that remaining accused who were armed with pistols issued threats of dire consequences.

As far as appellant Ghulam Rasool is concerned he specified the role of having a pistol in his hand during the wardat whereas is his Court statement he deposed that convict alongwith two others i.e. Abu Bakar and Imran went inside the building of Khana-e-Farhang.

Besides non-compliance of the instructions referred to and discrepancies pointed out hereinabove the proceedings of Identification 

Parade Ex-PEE were not drawn according to the settled practice namely the accused who is to be identified will be placed in a line alongwith other dummies and after the completion of his Identification Parade the other accused who were confined in the same jail shall be brought if their Identification Test Parade is required to be done. According to the contents of the proceedings, the three accused persons were made to stand in three different lines marked "A", "B" "C" at a time and on completion of identification by one person in respect of the same accused second and third witnesses were summoned and this procedure went on till the completion ofthe proceedings. Although there are instructions that some pre-cautionary measures are taken but nothing is mentioned in the proceedings that what precautionary measures were taken by him. At this juncture it may not be out of place to note that refusing to re-identify the convicts/appellants Abdul Hanan, Ghulam Rasool Shah and Shafique-Rehman by PWs Khalid Mehmood and Khurshid Ahmad (not produced) would lead us to draw an adverse inference against the prosecution that they have not seen these persons at the place of incident, therefore, they refused to identify them. All the three convicts had specifically stated that the witnesses have already seen their photographs and movies etc. which have been prepared in different police stations. As it has been pointed out hereinabove that all of them were declared proclaimed offenders in the cases registered prior to 20th February 1997, therefore, following the procedure to declare them proclaimed offenders and also to cause their arrest could give rise to possibility of availability of their photographs etc. in different police stations.

As far as implication of non-compliance and non-observing precautionary measures and following the provisions of law as well as instructions pointed out hereinabove in the light of the precedent law cited by both the parties, shall be discussed after dealing with the Identification Parade of remaining appellants.

Name of Accused

s. No.

IDENTIFICATION PARADE HELD AT CENTRAL JAIL BAHAWALPUR

Date of	Place	Place,     Date	A	Name       of	The
arrest	of	name	of	witnesses	Who
	arrest	supervising		identified	The
		Magistrate	of	accused.
		Identification
		Parade.

Muhammad Yousuf 29.9.1997

Zubair                 29.9.1997

Abu Bakar Zarrar    13.10.1997

Bahawalpur  27.10.1997 at Central Jail Bahawalpur under the supervision of Mr. Muhammad Yaqub Khan Magistrate PW 29.

Ijaz Ahmad PW 18 Manzoor Hussain PW-19.

The perusal of above details reveal that convicts Muhammad Yousuf, Zubair and Abu Bakar Zarrar were also declared proclaimed offenders in the criminal case registered against them prior to happening of the incident of 20th February 1997 and in those cases they were confined at Bahawalpur and P.W. Mehboob Sub-Inspector has shown their arrest in the instant case on 29th September 1997 and 13th October 1997. The record is silent whether any precautionary measures were adopted by the prosecution before conducting re-Identification Parade on 27th October 1997 in Central Jail Bahawalpur under the supervision of PW Muhammad Yaqub Khan Magistrate. Similarly it can also be inferred that except showing their arrest in the instant case on documents by PW Mehboob Ahmad SI their custody was not taken physically by the police. Thus without interrogating them they were subjected to Identification Parade. The Identification Parade of these convicts was also held with delay after showing their arrest in the instantcase. The prosecution case as it has been unfolded in Fard-e-Bayan is that PWs Khalid Mehmood and Khurshid Ahmad (given up) had witnessed the assailants running away after the commission of the offence but both these witnesses were not called upon to identify them. However, besides Ijaz Ahmad and two others i.e. PW Manzoor Hussain and Syed Allah Diwaya were asked to identify the accused persons. The evidence furnished by them has been discussed hereinabove in detail under the subject of reappraisal ofevidence.

PW Muhammad Yaqub Khan vide Ex-PLL/1 dated 27th October 1997 completed the .process of the Identification Parade. He instead of mixing up all the above convicts/appellants separately with the dummies with ordinary proportionate of 1 to 10 mixed all of the time with 33 dummies whose names and parentage were mentioned but their addresses were not noted to establish as to whether they were inmates of the Central Jail Bahawalpur or they were outsiders. The proceedings also does not contain the features of the dummies mentioning whereof was necessary to prove that the convicts were mixed up with those persons who have somewhat close resemblance with them as per the statement of the witnesses particularly thfc contents of Fard-e-Bayan of Ijaz Ahmad. Such procedure was avoided to over-rule chances of mis-identification and to ensure that all pre-cautionary measures were taken to prove the accuracy of Identification Parade. All the three PWs Ijaz Ahmad, Manzoor Russian and Syed Allah Diwaya were directed to pick up the three accused persons from crowd of 33 dummies. Before the commencement of Identification Parade admittedly the witnesses were not informed that to whom they have to identify amongst the dummies as is indicative from the statement of PW Muhammad Yaqub Khan. The accused had specifically pointed out to the supervising magistrate that their photographs and movies etc. were made in Faisalabad Saddar and Sargodha Road Police Stations. They also informed that their photographs were also taken in Bahawalpur. All of them categorically raised objection that on 25th October 1997 police came to jail for interrogation. They were also called in the room of the Superintendent. There is possibility that at that fame they might have been shown to the witnesses, therefore, they had no confidence in such Identification Parade. As per contents of Ex. PLL/1 first of all it is to be noted that as per the contents of this document all the three witnesses identified the convicts/appellants whose place of standing was changed on the turn of identifying the accused by each of the witness. It is note-worthy that all the three witnesses have not ascribed respective roles of the convicts/appellants allegedly performed by them during the commission of offence. However, the witnesses "Helfan" stated before the Magistrate that they have not seen the convicts before attending their Identification Test Parade in the jail. It may be noted that PW Jjaz Ahmad in his Court statement stated that Muhammad Yousuf was armed with kalashnikov and be fired with it on Rahim Dad Chowkidar. As far as appellant Zubair is concerned role of extending threats was attributed to him. So far as Abu Bakar Zarrar is concerned he was shown to have entered inside the building alongwith Ghulam Rasool and Imran Ashraf appellants after the firing when he alongwith other came out he had a pistol in his hand. The defence has objected on the genuineness of the Identification Parade held on 27th October 1997. In this respect it was alleged against prosecution that no. Identification Parade was held on 27th October 1997 because the envelope in which the proceedings were sealed bears the date 3rd April 1998, therefore, according to the defence on this date fictitious identification proceedings were shown to strengthen the case. Thus in view of such objection by the defence mentioning of complete particulars of the dummies has all the more become necessary because in absence of such details at-least a plausible inference can be drawn in favour of the defence. In this case it is also important to note that the envelope containing Identification Test Parade (Ex-P/1) was endorsed by PW Muhammad Yaqub Khan Magistrate to Mr. Nayyar Iqbal Ghauri Special Judge Multan who had taken the cognizance of the case on 22.8.1997. If the Identification Parade actually had taken place on 27th October 1997 then the Magistrate should have deposited the same in the office of District Magistrate. These was no occasion for PW Muhammad Yaqub Khan to directly dispatch the envelope to the Presiding Officer of the Special Court.

As far as non-compliance of provisions of law, instructions are concerned they shall be considered in the light of the judgments of .the superior Courts latter on.

Name of Accused	Date of	Place	Place,     Date	A	Name        of	the
	arrest	of	name	of	witnesses	who
		arrest	supervising		identified	the
			Magistrate	of	accused.
			Identification
			Parade.

IDENTIFICATION PARADE OF IMRAN ASHRAF HELD IN CENTRAL JAIL SAHIWAL.

Name of Accu* No.

3.        1.    Imran Ashraf                                                   16.11.1997/ Central Jail 3.12.1997 & 1. Ijaz Ahmad PW-18

3.12.1997      Sahiwal         4.12.1997 at Central    2. Allah Diwaya,Jail Sahiwal under PW-43

the supervision of 3. Manzoor Hussin
Mr. Sikandar Ali   PW 19.

Bokhari, MIC, PW 21.

This appellant was also in custody at Central Jail Sahiwal in a case already registered against him with effect from 20th November 1997. He was shown to have been arrested in this case on 3rd December 1997 by PW Javed Ashraf. During custody of the convict/appellant in a case earlier registered against him. He arranged his Identification Test Parade on 3rd December 1997 through- PW Ijaz Ahmad and Allah Diway whereas PW Manzoor Hussain was put to identify this accused on 4th December 1997. However on both the dates PW Sikandar Ali Bukhari Supervised the process of Identification Parade. In this case as well physical remand was not obtained by the police and after getting him identified from the witnesses he was subsequently shifted to District Jail Multan for facing the trial. As per the proceedings Ex-PPC dated 3rd December 1997 convict/appellant was made to sit with 10 dummies whose names are mentioned in the proceedings but without their addresses. Both the witnesses i.e. PW Ijaz Ahmad and Syed Allah Diwaya identified him without describing bis role during the alleged commission of the crime. Whereas PW Ijaz Ahmad in his Court statement deposed that he entered alongwith two others in the building of Khana-e-Farhang whereas PW Syed Allah Diwaya did not ascribe bis role in his Court statement. However, in the Court statement he identified Ashraf considering him to be Abu Bakar whereas he disclosed the name of Ghulam Rasool Shah as Abu Bakar. Appellant Imran Ashraf objected on the Identification Parade on the plea that his photographs and movies have already been prepared and have been shown to the opposite group.

On 4th December 1997 appellant was got identified from PW Manzoor Hussain in the same manner as it was adopted on 3rd December 1997 inasmuch as during the proceedings Ex-PDD/2 no role was ascribed by the witness to the accused which was played by him during the commission of the offence. It is note worthy that in the Court statement as well he did not ascribe any overt act to appellant Imran Ashraf as well as Abu Bakar and Muhammad Yousaf except stating that out of the assailants he identified certain persons i.e. Abu Bakar, Imran Ashraf and Muhammad Yousuf who were present among the aforesaid persons on the day of occurrence. During the process of Identification Test Parade through PW Manzoor Ahmad convict/appellant got registered similar objections.

PW Sikandar Ah' Bukhari MIC when inquired as to why all the three witnesses namely PW Ijaz Ahmad, Manzoor Hussain and Syed Allah Diwaya were not put to Identification Parade on 3rd December 1997 as per the application filed by him before the District Magistrate to supervise the Identification Parade in which the names of all the three witnesses were mentioned, he replied that the names of the persons were mentioned who had to identify accused Imran Ashraf but the I.O. only produced Ijaz Ahmad and Allah Diwaya PWs for the said purpose. He further stated that he verbally inquired from I.O. regarding non-production of their PW namely Manzoor Hussain who replied that the said person had not come. It is important to note that this witness being a Magistrate admitted that I am conscious of the fact that piecemeal Identification Parade has no evidentiary value. This witness had not recorded any where as to why PW Manzoor Hussain was not produced on the first day. But to justify his action he stated that non-production of Manzoor Hussain PW on the first day and the explanation offered by the I.O. were verbal due to inadvertence and rush of work. It is also important to note that during the process of identification by all the three persons the appellant/convict was not asked to change his physical appearance/clothes etc. It is also important to note that on both the days i.e. 3rd and 4th December 1997 he was made to sit at S. No. 3 because PW Sikandar Ah' did not ask him to change his position. PW Sikandar Ali Bukhari MIC admitted that objections of the accused in presence of the witnesses who identified him were not recorded on both the days and he recorded such objections on the next day when the witnesses had already left the venue of Identification Parade. It may be noted that recording of objections during the process of Identification Parade in presence of identifying witnesses is essential to ascertain the validity of the objection because if such opportunity is not afforded to the appellant in presence of identifying witnesses it would loose its value and would not be considered against him because he was not confronted with the same. However such discrepancies in the proceedings of Identification Parade can be considered in favour of the accused at the time of evaluating over all corroborative piece of evidence. The procedure relating to conducting Identification Parade on 3rd and 4th December 1997 separately is under consideration, therefore, on account of this discrepancy a strong inference can be drawn that either on the first day PW Manzoor Hussain was reluctant to identify the accusedgenuinely or prosecution wanted to give him an opportunity to see the accused before Identification Test Parade, therefore, in such situation the Supervising Officer must have made efforts to conduct Identification Parade on the same and one day in the interest of justice and fairplay otherwise the Identification Parade of one accused through two different witnesses on different dates has to be considered highly doubtful.

44-C. As it has been observed in the preceding paras that as per instructions reproduced hereinabove Magistrate supervising the Identification Parade is bound to follow the same to minimize the chances of mis-identification of the accused, therefore, they are to be followed consistently and departure therefrom would not be condonable because some of them namely describing the role of the accused played by him at the time of commission of the offence has been approved by this Court in various pronouncements including, the cases of (i) AsgharAli alias Sabah and others v. The State and others (1992 S.C.M.R. 2088) and (ii) Mehmood Ahmad and three others v. The state and another (1995 S.C.M.R. 127). Relevant para is reproduced hereinbelow :—

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

It is not clear from the entire evidence relating to Identification Prade whether the persons named were identified by their role in the crime or as individuals, as Mends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them forcommission of the crime. The value of such an Identification Parade was pointed out as early as 1924 in Lai Singh v. Crown ILR 51 Lab. 396 in following words:—

'The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. If might merely mean that the witness happens to known that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an Identification Parade might be used to corroborate his evidence given in Court, but otherwise theevidence of identification furnished by an Identification Parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight'.

Besides above authorities reference may also be made to the case of Qurban and another vs. The State (1994 P.Cr.LJ. 150).

Learned State counsel argued that non-attribution of the role played by the accused at the time of commission of offence cannot be considered fatal if the witness identified the accused by describing his role in the Court. Reference was made to the judgments reported in 1992 SCMR 338 and PLJ 1996 S.C. 471.

We have examined the argument put forth by her. The role of the accused at the time of commission of the crime is necessary to be established to achieve two fold objects firstly that in which capacity he identified the person during Identification Parade, and secondly that his such evidence must be corroborated in the Court if he'remains consistent to his statement which he made during identification of the accused. This principle has been discussed elaborately in the case of Lai Singh vs. The Crown (ILR 51 Lahore 396). Relevant para therefrom is reproduced hereineblow :-- ₄

"The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an Identification Parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an Identification Parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight."

Similarly in the case ofKhadim Hussain vs. State (1985 S.C.M.R. 721) it was held as under :--

"It is not clear from the entire evidence relating to Identification Parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case againstthem for commission of the crime." Likewise in the case of Ghulam Rasul and 3 others vs. The State (1988 S.C.M.R. 557) the principle discussed hereinabove were reiterated as under :--

"9} The second piece of evidence which has been relied upon by the prosecution is the Identification Parade. The perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the Identification Parade also carried an inherent defect and that is that Abdul Majid PW did not describe the role played by each of the appellants at the time of commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case ofKhadim Hussain vs. The State reported in 1985 SCMR 721."

Subsequent thereto in the case of Murid Abbas and 2 others v. The State and two others (1992 S.C.M.R. 338) Mr. Justice Ajmal Mian (as he then was) relying on another judgment in the case of AH Muhammad and another v. The State (1985 S.C.M.R. 1834) observed that the identifying of the part played by each of the accused persons while identifying them in an Identification Parade by a witness, is of some importance but is not an inviolable rule. The effect o£ the above omission will depend on the identification of each case. With reference to the facts involved in the case it was stated that eye-witnesses had gone to attend the Identification Parade with the object to identify the persons who had committed dacoity in their Bank and, therefore, the factum that they had picked up the appellants implies that they were the persons who committed the above offence. The omission to identify the part of each of the above appellants in the present case by the witnesses may not be fatal. In the case of Yaqoob Khan etc. v. State (PLJ 1996 S.C. 471) this Court did not declare that if a witness at the time of identifying a person in Identification Parade did not state about the role played by that person in the crime he is precluded from giving evidence in the Court with regard to his specific role in the crime and that if such evidence is adduced at the trial, the same is to be excluded from consideration meaning thereby that if during Identification Test Parade he omitted to describe the role played by the accused during his Identification Parade he can disclose his role even in the Court statement but both the judgments relied upon by the learned counsel had not advanced the case of the prosecution in any manner for the reason that as it is evident from the discussion of evidence referred to hereinabove while dealing with the cases ofappellants individually it has been noticed that the identifying witnesses either have not described the roles of the accused during the Identification Parade or during their Court statement and in some of the cases particular reference may be made to the case of appellant Abdul Hanan and Shafique-ur-Rehman altogether different version was put forward.

Thus in view of these circumstances we are inclined to hold that at the first instance the identifying witnesses did not disclose the role played by the appellants at the time of commission of the offence and if it was so disclosed they did not remain consistent to it while recording their statements in the Court. The testimony of PWs Jjaz Ahmad, Manzoor Russian as well as Syed Allah Diwaya and Court witness Syed Qalandar Ali has not been found acceptable for more than one reasons discused while dealing with their statements in the above paras, therefore, no corroboration can be sought to their tainted statements from any other tainted piece of evidence of Identification Parade as held in the cases of Ali Akhtar Hussain vs. The State (1972 S.C.M.R. 40) & Muhammad Ilyas and another vs. The State (1993 S.C.M.R. 1602). Relevant Para from the case of Muhammad Days is reproduced hereunder :--

"In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against appellants beyond doubt. Ocular evidence of two eye-witnesses does not inspire confidence and it is doubtful whether they had seen the incident. No doubt unfortunate incident has taken place in which two persons have lost their lives but not in the manner asserted by the prosecution. On the basis so evidence of these eye-witnesses co-accused Abbas is acquitted by the trial Court and finding is maintained by the High Court. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence and recoveries, but each piece of this evidence is defective and failing in intrinsic value, hence not fit for reliance to corroborate ocular version, which is itselfdefective. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tained evidence. We therefore, hold that it is fit case in which benefit of doubt can be given to the appellants. Conviction and sentence of appellants is set aside and appeal is allowed. They may be set at liberty if not wanted in any other case."

It is also to be noted that the prosecution has absolutely failed to establish that identifying witnesses had no occasion to see the accused after the commission of the offence till the holding of the Identification Parade. It is to be observed that in order to ensure that the Identification Parade was conducted fairly it becomes the duty of the prosecution to adopt such measures so that identifying witnesses may not see the accused after the commission of the crime till the Identification Parade is held immediately after the arrest of the accused persons as early as possible. As far as Identification Parade held in Central Jail Bshawalpur relating to. appellants Muhammad Yousuf, Zubair and Abu Bakar Zarrar is concerned it suffers from another material discrepancy namely that they were mixed up with total number of 33 persons. Such practice is contrary to law laid down from time to time by the superior Courts. In this behalf reference may be made to the cases ofAshrafi and another v. The State (AIR 1961 Allahabad 153) and -Lai Pasand v. The State (PLD 1981 S.C. 142). Relevant Para from the judgment of Lai Pasand is reproduced hereinabelow :--

"And, we may, further point out that the ratio of ten other under trials to one accused had been prescribed by the Government of the United Provinces in its Government Orders for the Police* (See Paragraph 23 of the judgment in Ashrafi and another v. The State (AIR 1961 All. 153). Therefore, it would be monstrous for the Courts to permit a departure from a rule accepted by Government in the absence of some explanation by the prosecution. Now, in the instant case, the explanation of the State is that there had been a joint Identification Parade with the result that it was not possible to find a sufficient number of other persons to be intermingled with the accused. And, the learned Magistrate who conducted the Identification Parade appears to have assumed that all the five accused had to be identified. That assumption was wholly erroneous, because Saddulalh Khan had seen only two of the five assailants. However, on the footing that five persons had to be identified, it would have been unreasonable to mix them with fifty other persons, because such a large number of persons could only have confused the identifying witnesses. Therefore, the proper course in such cases is to have separate Identification Parades for each accused. And, no explanation has been given in the instant case for not holding separate Identification Parades."

The record of the Identification Test Parades (Ex-PCC/2, Ex-PDD/2, Ex-FEE/2, & Ex-PLL/1 reveal that all the accused specifically raised objections before the concerned Magistrates that their vedios and photographs and been prepared. The objections so raised by them carries weight because as it has been observed earlier that all the accused/ appellants except Abdul Hanan were declared proclaimed offenders in the cases earlier registered against them in different police stations. Thus due to this objection the identification of the convicts has become doubtful. In the circumstances the Prosecution was under legal obligation to explain by producing evidence that identifying witnesses^Kid no occasion to see them before holding of Identification Test Parade. Actually it was impossible altogether because in the Identification Test Parade conducted in DistrictJail Multan vide Ex-PEE/2 convict Abdul Hanan remained in police custody with effect from 21st February 1997 till the period of expiry of his remand. Appellant Ghulam Rasool was proclaimed offender in a case registered against him, therefore, he was arrested by the police of Faisalabad District where his custody was obtained by PW Sadat Mehdi who formally arrested him on 16th July 1997 in the instant case. Whereas appellant Shafique-ur-Rehman was also arrested by the police of Darya Khan Bakhar in a criminalcase also registered against him and he was confined in Central Jail Mianwali. His arrest was shown by PW Sadat Mehdi on 20th July 1997., Both these appellants were then brought to District Jail Multan where their Identification Parade was carried out after long period i.e. 15th September 1997. Appellants Muhammad Yousuf, and Zubair were in custody in a case already registered against them and their arrest in this case was shown by Mehboob SI on 27th September 1997. As far as Abu Bakar Zarrar isconcerned he was also involved in a case at Bahawalpur and on 13th October 1997 his arrest was shown by PW Mehboob Ahmad outside the Court on 13th October 1997. Surprisingly these three persons were put to Identification Test Parade on 27th October 1997 vide Ex-PLL/1 in Central Jail Bahawalpur. Apparently no measures were adopted by the Prosecution to ensure that the witnesses who will identify them may not see their faces till the time of Identification Parade. Because possibility can not be ruled out that during the process of arrest of all the accused persons the witnesses i.e. Ijaz Ahmad and others may have accompanied the police party deputed to cause their arrest. So far as the identification of Muhammad Yousuf and two others in Bahawalpur Jail is concerned through it is stated to have been conducted on 27th October 1997 but as per record the envelope in which the proceedings were sealed were sent on 3.4.1998 by PW Muhammad Yaqub Khan Magistrate directly to the Presiding Officer of the Court. Thus to theextent of their case the possibility can not be ruled out that the prosecution had prepared fictitiously the proceedings Ex-PLL/1 of Identification Parade of these three persons, otherwise there was no occasion to send it directly to the Presiding Officer on 3rd April 1998 who had already taken the cognizance of the case on 22.8.1997. It is also to be observed that if PW Muhammad Yaqub Khan had an intention to sent the identification parade proceedings Ex.PLL/1 directly to the Presiding Officer ATC Multan he should have done so on 27th October 1997 instead of sending the same on 3rd April 1998 after a long period of about 5 months without offering explanation that under which authority he kept these proceedings with him even without bringing in the notice of concerned Sessions Judge or District Magistrate.

So far as the identification of Imran Ashraf is concerned it was also not conducted properly as explained hereinabove. Neither any explanation is available on record as to why he was put to Identification Parade on two different dates i.e. 3rd and 4th December 1997 by PWs Ijaz Ahmad, Syed Allah Diwaya and Manzoor Hussain respectively.

The discrepancies pointed out hereinabove in the re-Identification Test Parades have extinguished its evidentiary value and as such can not provide corroboration to the ocular evidence.

RECOVERIES OF INCRIMINATING ARTICLES;

45. The Investigating Agency recovered following incriminating articles during the investigation of the case :--

(a)             Recovery of blood-stained earth underneath the dead-bodies of the deceased vide recovery memos. Ex-PR to PX.

(b)     Recovery of empties vide recovery memo. Ex-PY from Khana-e- Farhang.

(c)             Recovery of bullet leds vide recovery memo. Ex-PZ from Khana- e-Farhang.

(d)             Recoveries of clothes from House No. 139-K Shah Rukan-e- Alam Colony Multan City at the instance of acquitted accused Iftikhar Ahmad alias Khara including a blood-stained shirt which was taken into possession vide recovery memo. Ex-PK/1. It was alleged by the accused that the shirt so recovered belongs  to Muhammad Zubair appellant.

(e)             Recovery   of  following   articles   by   Mirza   Maqbool   Baig DSP/SDPO at the instance of convict/appellant Abdul Hanan from House No. 346-F Shah Rukan-e-Alam Colony, Multan Cily:--

(i)      One Kalashnikov No. 56-14120598.

(ii)      One Kalashnikov No. 56-5729537.

(iii)     One Kalashnikov without number

(iv)     One Mauser .30 bore,

(v)     One Mauser .30 Bore No. 9827.

(vi)     One Mauser .30 Bore No. 8830.

(vii)    One Pistol .30 bore.

 (viii)   One Pistol .30 Bore No. A1311.

(ix)    One Pistol .30 Bore No. 5366.

(x)     One Pistol .30 Bore No. M?n.

(xi)     One Pistol .30 bore without number

(xii)    One Pistol .30 Bore No. B1490.

(xiii)  One Pistol .30 Bore without number.

(xiv)   One Launcher No. 69-401th 733971.

(xv)    One Rocket No. 40 80 22.

(xvi)   One Rocket No. 022-85-5823.

(xvii) One Rocket No. 05-8971.

(xviii) One Rocket No. 5-89-71.

(xix)  One Rocket No. 8-77-5523.

(xx)    One Rocket No. 11-53-87.

(xxi)   One Rocket No. 378-9-88K

(xxii) One Rocket No. 05-89-71.

(xxiii) One Rocket No. 378-10-85K

(xxiv) Four Rockets without number

(xxv) One Hand Grenade No. 147-88-K-3 PRM2

(xxvi) One Hand Grenade No. 84-Y3 PRM 2

(xxvii)One Hand Grenade No. 83-Y3 PRM 2

(xxviii) One Hand Grenade No. 85 Y3 PRM 2

(xxix) One Hand Grenade No. ARGES

(xxx) Bullets of Kalashnikov 525 numbers.

(xxxi) Bullets of pistol .30 bore numbers.

(xxxii) 45 bottles of ammunition.

(xxxiii) 13 fuez.

(xxxiv) Six Magazines of Kalashnikov.

(xxxv) Seven Magazines of .30 bore Pistol.

(f)                Recovery of official rifle 9-MM.

(g)              Recovery of Magazine of the official rifle on llth March 1997 vide recovery memo. Ex-PN.

Learned counsel for appellants contended that above recoveries cannot be used against them as incriminating articles because no iota of evidence has been produced by the prosecution to connect them with these recoveries inasmuch the reports of Forensic Science Laboratory and Serologist Exs. PUU, PW, PWW & PXX has not advanced the prosecution case in any manner, therefore, the recoveries cannot be used against them.

Learned Counsel for the State controverting the arguments of appellants counsel contended that in such like cases it is always impossible to connect the accused with the commission of the offence by producing direct evidence against them but inference has to be drawn against them in view of the fact that huge arms and ammunition and blood-stained clothes were recovered from the houses which were in the use and occupation of the appellants before the commission uf the offence.

46. As far as the House No. 139-K Shah Rukan-^-Man^ Colony Multan and House Bearing No. 346-F Shah Rukan-e-Alam Colony IvU.t"'! are concerned they were neither owned by appellants nor they have been shown tenants in any one of them. So far as former house is concerned it was owned by Bashir Ahmad son of Dost Muhammad who entered into negotiation for renting it out to one Abdul Rauf and two other persons out of whom he identified accused Ghulam Rasool Shah as one of them. He agreed to rent out the house to them at the monthly rental of Rs. 2000/-. According to him Telephone No. 562000 was already installed in it. The witness did not state that the house was exclusively leased out to convict Ghulam Rasool Shah. Even if it is assumed that the house was obtained on lease by him, it would not be sufficient to connect him with the commission of the offence because except an incriminating blood-stained shirt no other incriminating articles were recovered from it. As far as the sHrt is concerned it was not got identified from any of the witness to establish that he was wearing the same at the time of incident.

So far as the latter house is concerned it is owned by one Muhammad Bakhsh who leased out the same to acquitted accused Ghulam ,_v Mujtaba through PW Muhammad Ramzan. This witness also stated that^ Telephone No. 564759 had already installed in it No evidence has been * brought on record through any independent source that the house remained in the use and occupation of any of the appellants. No doubt a good number of articles including arms and ammunition have been recovered from this house inasmuch as the .30 bore pistols recovered from this house were found • weeded with some of the empties recovered from the place of occurrence on 20th February 1997 vide recovered memo. EX. PAA as per Forensic Science?. Laboratory report Ex-PXX. In respect of prosecution case, the recoveries of incriminating articles were made at the instance of one of the accused Abdul Hanan who was arrested on 21.2.1997, learned counsel stated that the recovery of these articles has been foisted by the police against him because as per recovery memo. Ex-PL this house was searched on 20th February 1997 whereas as per application Ex-DL dated 22nd February 1997 request was made by PW Muhammad Nausherwan for effecting recovery of incriminating articles at his pointation including recovery of .9-MM Service Rifle which had already been effected on 20th February 1997. The objection of the learned counsel that recovery of the arms and ammunition from House No. 346-F Shah Rukan-e-Alam Colony Multan is false, does not appear to be convincing because admittedly Abdul Hanan was brought from Bahawalpur on 21st February 1997 and the police had discretion to keep him in custody upto 24 hours under Section 61 Cr.P.C., and then to produce him for further police remand if need be before the Magistrate as contemplated under Section 167 Cr.P.C., therefore, the possibility that he would have led the police for the recovery of these articles on 21st February 1997 cannot bedoubted. However, for this reason alone appellant Abdul Hanan can not be held responsible for commission of the offence because of P.W. Ijaz Ahmad has assigned him role of throwing chillies on his face. In addition to it this aspect cannot be dealt with in detail because a separate case for keeping arms and ammunition has been registered against the accused persons and we are informed that said case has not so far been finally disposed of.

46-A. At this juncture it is also important to note that a Potohar Jeep bearing official registration number has been recovered from this house but the prosecution admittedly did not probe into the matter that how this jeep was recovered from the said house and as to whether the official number was fake etc. But in our opinion this jeep would have provided a proper clause to the police to lay hands on the accused who were actual assailants involved in the commission of the offence.

46-B. As far as the recovery of blood-stained earth and other articles are concerned they cannot be used against the appellants for connecting them with the ommission of the offence.

47. It is to be noted that as far as the recovery of incriminating articles are concerned they are used for the purpose of providing corroboration to the ocular testimony and to reach at a just conclusion, therefore, both the ocular evidence and recoveries are to be considered simultaneously as it has been held by this Court in the case ofAsadullah vs. Muhammad All and 5 others (PLD 1971 S.C. 541). Relevant para is reproduced hereinbelow :—

"The learned Judges further fell in error in isolating the ocular evidence furnished by Mst. Rajan and Mst. Munawar Bibi from the corroborative evidence comprising of the incriminating recoveries to which reference has been made earlier. The learned Judges in the first instance rejected the evidence of Mst. Rajan and Mst. Munawarand then proceeded to rule out the corroborative evidence on the ground that it did not connect the accused persons with the crime "more particularly as the entire ocular evidence had been disbelieved". The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judges did in the instant case. Indeed it would be anomalous to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot be itself be basis of conviction. The view formed by the learned Judges that the evidence of recoveries did not connect the accused persons with the crime was, therefore, plainly fallacious." It is also a known principle of criminal administration of justice that if the ocular testimony suffers from material discrepancies and for the reasons more than one it has lost its intrinsic value then the corroborative evidence namely recovery of crime weapons, medical evidence etc. cannot be used to corroborate the ocular testimony as held in the case of Dhunda v. The Crown (ELR16 Lahore 995) as under :--

"We have examined the evidence and we come to the same conclusion as the learned Judge as regards the eye-witnesses. The contradictions and discrepancies are so many and so material that it is almost impossible to believe that these witnesses saw anything of importance. Their evidence is so unreliable as to be worth precisely nothing. It appears to us, therefore, to be impossible in law to corroborate this evidence. Nothing cannot be multiplied or corroborated."

MEDICAL EVIDENCE

48.    Prosecution produced postmortem repots of the deceased asExhibits PC/1, PD/1, PE/1, PF/1, PG/1, PH/1, PI/1, PJ/1 through various doctors perusal whereof confirm their deaths with the fire-arms therefore, the happening of incident cannot be denied during course whereof 8 persons were done" to death. However, these pieces of evidence cannot furnish corroboration to the ocular testimony and the other evidence discussed hereinabove in view of the principle of law that such evidence being supporting in its nature can only be helpful to prosecution if it had succeeded in establishing its case on basis of direct ocular or circumstantial evidence against the accused. Reference in this behalf may be made to the case of Muhammad Hanifvs. The State (PLD 1993 S.C. 895).

CIRCUMSTANTIAL EVIDENCE

49.   Learned counsel for the State vehemently argued that PW Zahid Hussain  has  produced last  seen  evidence which  constitute  a  strong circumstance against all the appellants including Malik Muhammad Ishaque and   furnishes   compatible   evidence   about   their   involvement   in   the commission of the offence. She also referred to letter Ex-P69/A which was written on the letter Head of Lashkar-e-Jhangvi, Pakistan. As per its contents Amir-e-Lashkar Abdul Qasim Malik Muhammad Ishaque has accepted responsibility for commission of the offence in Khana-e-Farhang Iran. According to her this letter was produced during the search of House No. 346-F Shah Rukan-e-Alam Colony, Multan City when it was about to be released as this letter bears the name of Amir-e-Lashkar Abul Qasim MalikMuhammad Ishaque and his Pak Tel No. 0361-365660 and it also bears date 19.2.1997 and signatures of Secretary Information of Lashkar-e-Jhangvi, therefore, in view of such strong circumstantial evidence involvement of the appellants cannot be over-ruled. She further argued that in such like cases where production of incriminating material in corroborative manner is impossible then the Court may not take into consideration technicalities and decide the case by pragmative approach.

Learned counsel for the appellants opposing the arguments of learned State Counsel contended that as far as PW Zahid Hussain is concerned he has not furnished trustworthy and convincing evidence to establish that appellants and others hatched a conspiracy in Chowk Kamharan Wala Multan City and the manner in which he has attempted to involve the appellants in the commission of offence is not only improbable but ridiculous because it has never happened that the culprits who intended to commit a heinous crime will consult each other in a thickly populated Eazar from where they have to move towards their destination for achieving the object. He further pointed out that it is absolutely inconceivable that the accused persons in respect of whom it is stated that they went from Chowk Kamharan Wala to Chungi No. 9 they must have gone to commit the offence in the building of Khana-e-Farhang.

The proposition of accepting circumstantial evidence to establish guilt against the accused has not to be accepted merely in view of the arguments unless any unimpeachable circumstantial evidence is brought on record to justify the inference of guilt against them. The circumstantial incriminating evidence must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon " any other reasonable hypothesis than that of his guilt as has been held in the case of Mst. Sairan alias Saleema v. The State (PLD 1970 S.C. 56). With reference to the facts of the instant case and in view of the discussion on the testimony of PW Zahid Hussain we are of the opinion that his evidence is not sufficient to stand to the test of the above proposition.

As far as the judgments cited by learned State counsel in the case of Allah Ditta vs. The Crown (1969 SCMR 558) being inapt does not apply on the facts of the instant case.

So far as the reported judgment in the case of Mehram All and others v. Federation of Pakistan and others (PLD 1998 S.C. 1445) is concerned it has not dealt with merits of the case because proceedings in this case were originated from Constitutional petition filed in the jurisdiction of Lahore High Court and as in the matter placed before this Court purely a question of law was involved, therefore, merits of the case were not elaborately discussed, as such in absence of any material it is not possible for us to hold that conviction against appellant Mehram All was recorded solely in view of the circumstantial evidence. As far as the contention of the learned counsel relating to drawing inference in favour of State on the basis of letter Ex-P69/A dated 19th February 1997 is concerned it has also no meritsbecause the document which is being relied against the appellants was not proved in the Court either by producing primary or secondary evidence to establish its contents for the purpose of proving a circumstance against at-least one of the appellant Malik Muhammad Ishaque. Moreover in absence of trustworthy evidence the contents of document cannot be considered incriminating against appellant firstly for the reason that it bears the date as 19th February 1997 a day earlier before happening of the incident; andsecondly the accused howsoever he may be bold can never leave his foot prints for the purpose of providing opportunity to the State to follow and catch hold of him. It is beyond the comprehension of a person that an accused who was allegedly involved in the commission of offence would write down his telephone and Pak Tel number with.his own hand enabling the agencies to find out concrete clue for causing his arrest and involving him in the commission of the offence. Similarly the next judgment cited by learned State counsel in the case of Khurshid vs. The State (PLD 1996 S.C. 305) is distinguishable because in this case the prosecution has succeeded in proving throughunimpeachable circumstantial evidence that the appellant was guilty of commission of the offence whereas in the case in hand to establish the circumstantial evidence PW Zahid Hussain was produced who is a chance witness who failed to justify his presence at Chowk Kumharan Wala, therefore, the proposition of law laid down in this case by this Court is not applicable at all on the facts and circumstances of the instant case.

50. As far as pragmative of dynamic approach by the Court in such like cases is concerned there is no cavil with the same. However, this Court while making such observations simultaneously has held that technicalities should be over-looked without causing any miscarriage of justice. Reference to relevant para from the Majority judgment of State vs. Farman Hussain (PLD 1995 S.C. 1) is reproduced hereinbelow :

"It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling insecured. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case iQ hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice."

In the judgment of Khurshid vs. The State (PLD 1996 S.C. 305) this Court while discussing the circumstantial evidence observed that "the Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the fact sand circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency/ prosecution, provided the same have not prejudiced the accused in the fair trial."

51.    As far as judgment in the case of Mehram Ali (supra) is cerned there too, it was held that the "access to justice to all is a fundamental rights, which right cannot be exercised in the absence of an independent judiciary  providing impartial,   fair  and just  adjudicatory framework   i.e.   judicial   hierarchy".  Keeping   in   mind   this   principle notwithstanding the fact that the charges against accused persons are of heinous nature but still they have a right to claim justice to them in view of the set procedure in-vogue in the country. The case of an accused involved in a heinous offence of course cannot be decided except in accordance with thelaid down procedure. As it has been time and again held that mere technicalities cannot hinder the course of justice but at the same time in criminal cases onus is always upon the prosecution to establish guilt against accused for the commission of offence in terms of Article 121 of Qanun-e- Shahadat Order, 1984. However, accusation cannot be established on basis of surmises, conjectures and probabilities etc. and prosecution is always bound to establish guilt against the accused facing trial beyond reasonable doubt as it has been held in the cases ofSafdarAli vs. The Crown (PLD 1953 F.C. 93), Muhammad Luqman vs. The State (PLD 1970 S.C. 10). It has further been held by this Court in the case of Abdul Hague vs. The State and another (PLD 1996 S.C. 1) "that in criminal jurisprudence general principle is that the prosecution is to prove the case against the accused beyond doubt and such burden does not shift from prosecution even if accused takes up any particular plea and fails in it and if there is any room for benefit of doubt in the case of prosecution the same will go to accused and not to prosecution.

Thus in view of above discussion we are of the opinion that the circumstantial evidence being relied by learned State Counsel instead of establishing the case of prosecution has created doubt in it.

CONSPIRACY

52.    Learned counsel for the appellants contended that in appeal proceedings learned Division Bench of Lahore High Court maintained the judgment dated 16th December 1998 of the trial Court against the convicts  principally on the ground that before the happening of unfortunate incident of 20th February 1997 a criminal conspiracy was hatched between the accused facing trial and the absconders, therefore, they have been rightly sentenced for the offence charged against them; whereas the trial Court has convicted/sentenced them for the offence under Section 302/149 PPC. As per his contention under the circumstances both the judgments deserve to be set aside. Besides there is no trustworthy evidence on record against all of them to establish accusation of hatching a criminal conspiracy as defined under Section 120-A PPC.

Learned State counsel conversely argued that P.W. Zahid Hussain and CW Syed Qalandar Ali both have furnished strong evidence to establish accusation against the accused for hatching a conspiracy for the commission of the offence. Alternatively it was contended that prosecution has successfully established that on account of vicarious liabilities they were rightly found guilty for the commission of the offence falling within the mischief of Section 302/149 PPC.

It is to be observed that learned trial Court while framing charge dated 5th January 1998 charged the appellants including the others for a criminal conspiracy for committing the murder of Syed Muhammad Ali Rahimi Director Khan-e-Farhang Iran and others. However, Section 120-B PPC was not inserted in the charge placed at S. No. First of the charges read over to them as in this para Section 302/396/449/109 PPC read with Section 7 of Anti-Terrorism Act, 1997 were mentioned. Likewise no one amongst them have been convicted/sentenced for the offence of hatching a criminal conspiracy falling within the definition of Section 120-B PPC butsurprisingly the appellate Court i.e. learned Division Bench of the High Court vide judgment dated 1.3.1999 maintained the judgment of the trial Court dated 16th December 1998 against all of them for the reasons that they were the members of the conspiracy. Undoubtedly a criminal trial Court is competent to alter the charge at any stage in exercise of its inherent jurisdiction conferred on it under Section 535 read with Section 537 Cr.P.C. As far as criminal Appellate Court is concerned it also enjoys the same powers particularly in the matters where a Reference under Section 374 f Cr.P.C. has been filed for confirmation or otherwise of the death sentenced awarded to convict under Section 302 PPC because whole case becomes open before it. This view was confirmed in PLD 1957 S.C. (Ind) 381. However, we are of the view that if the appellate Court seized with the criminal appeal and a murder reference intends to alter the sentence it should assign cogent reasons to substantiate the changed findings. In the instant case although the appellate Court has maintained the conviction/sentences awarded by the trial Court to the appellants being the members of the conspiracy but reasons have not been assigned to substantiate as to whether on the basis of evidence so produced by the prosecution the essential ingredients laid down by the law i.e. Section 120-A PPC and trend set up subsequent thereto by the superior Courts were available or otherwise. Be that as it may, in the interest of justice it has been decided on examine this aspect of the case as well at this stage by appreciating the evidence available on record. However, it would be appropriate to reproduced hereinbelow Section 120-A PPC in extenso :—

"120-A. Definition of Criminal Conspiracy.~When two or more persons agree to do, or cause to be done,-

(1)              an illegal act, or

(2)              an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."As far as commitment between two or more persons who have conspired together to commit an offence etc. is concerned it is a relevant fact as against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of the conspiracy as far as the purpose of showing that any such person was a party to it within the meaning of Article 23 of Qanun-e-Shahadat Order, 1984. For convenience it is reproduced hereinbelow :--

"23. Things said or done by conspirator in reference to common design.-Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the timewhen such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such persons was a party to it."

A perusal of above Article of Qanun-e-Shahadat Order suggests that the Court seized with the matter has a duly to satisfy itself that there is a reasonable ground to believe the existence of conspiracy in pursuance of an agreement among them to commit an unlawful act etc. existed, therefore, it becomes obligatory upon the prosecution to produce evidence for the purpose of establishing that two or more persons have conspired for the commission of a crime or unlawful act by way of entering into an agreement and making commitment to fulfil it for the purpose of achieving the object. If the prosecution has failed to bring on record evidence to show that before the actual commission of the offence there was any agreement may be oral or written amongst two or more persons for the commission of the offence then it would not be possible to conclude that prior to the commission of the offence any criminal conspiracy was hatched to attract the provisions of Section 120-B PPC. In this behalf reference may be made to AIR 1965 S.C.

682, PLD 1979 S.C. 53, 1985 P.Cr.L.J. 2638, 1995 P.Cr.L.J. 1424, 1998 P.O.L.J. 1486 and 1990-1903 The All England Law Reports page 1.

Before embarking upon the prosecution evidence produced before trial Court to substantiate the accusation we consider it appropriate to observe that privacy and secrecy of an agreement may be oral or written to enter into a criminal conspiracy is the essence to establish that prior to commission of offence two or more persons have entered into a conspiracy for committing an unlawful wrong a it has been held in Bayyappanavara Munishwamy and others vs. State (AIR 1954 Mysore 81) Relevant portion from the judgment is reproduced hereinbelow :--

"Privacy and secrecy are more characteristic of a conspiracy then a loud discussion in an elevated place open to public view in the garden of a stranger. These are considerations for assessing the evidence of these witnesses with special care and caution."

53. The prosecution produced P.W. Zahid Hussain in support of the accusation of conspiracy. As far as this prosecution witness is concerned he deposed in his testimony that on 20th February 1997 he and Kifayat Hussain (not produced) were present at Chowk Kamharanwala Multan City as they were waiting for a wagon. At about 11.00 a.m. when a wagon stopped near them three persons got down from that wagon. The witness recognized them to be the persons i.e. Iftikhar Khara, Aslam Ansari and Afzal Muna (acquitted accused). They started talking with each other. The witness turned his face and took up the position of caves dropper and heard accusedKhara saying that it was a proper chance and there was no adequate arrangement of security at Khana-e-Farhang and that the Chowkidar was an old man. It is alleged that he further stated that Ameer Sahib had not yet arrived and that it was a most suitable chance to do the karvai if Ameer arrives in time. He further "deposed that in the meanwhile a blue carry van arrived there, out of which appellants Muhammad Ishaque, Abdul Hanan, Abu Bakar Zarrar and Shakil Anwar and others emerged. This carry can was followed by a Potohar Jeep, which had official Registration No. MNS 7789. Out of this jeep appellant Hafiz Shafique, Shabbir Fouji, Tanvir Tanns, Qari Allay Wasaya, Amanat Ali Makhan and Sultan came out. This jeep was followed by 100 CC Yamaha which was driven by Ghulam RasoolShah and Akram Lahori was sitting on back seat. Accused Khara narrated the entire karvai to all the above said persons and then they all proceeded towards Octori No. 9. The witness and Kifayat Hussain arrived at Ghanta Ghar and from there they arrived at Suraj Miani. As per his deposition it was his programme to contact some leader of Faqia-e-Jaffaria to further contact with the S.P. As soon as they arrived at Suraj Miani the report of present occurrence was transmitted in the Town that 7 persons were murdered at Khana-e-Farhang and one had sustained injuries. It may be noted that through this witness the prosecution had not arranged theIdentification Test Parade of any of the appellants as well as acquitted accused. However, in cross-examination he stated that Ghulam Rasool Shah was seen by him three years prior to 20th February 1997 in a public meeting of Sipah-e-Sahaba. He further stated that during this intervening period he had seen accused Ghulam Rasool Shah at public meetings. The witness further stated that he did not see Ghulam Rasool Shah during this period of three years. In a subsequent question he re-affirmed last mentioned version namely that during the intervening period of three years he had not seen Ghulam Rasool Shah and confirmed that his version that he had seen Ghulam Rasool Shah in public meetings during this intervening period is incorrect. He further stated that accused Ghulam Rasool Shah is absconder for many years and that the Government has fixed reward for his arrest. Similarly he stated that he had seen Abdul Hanan 6 months prior to 20.2.1997 at their village Suraj Miani. Whereas accused Iftikhar Khara hadbeen seen about three years prior to 20.2.1997 at a public meeting, which was held at Qila Kohna Qasim Bhag. The witness admitted that Chowk Kamharan Wala is a busy place and during day and night the police is on watch and ward duty. It is important to note that as per his own version there is a big Imam Bargha in the centre of that Chowk as well as a booth of Traffic Police.

A plain reading of his evidence suggests to hold that because the witness had allegedly seen the accused persons considerably after long period spreading over from six months to three years as pointed out hereinabove, therefore, it was obligatory upon the prosecution to have got identified the accused persons from him. Even otherwise on merits his deposition would have strong evidence if witness Kifayat Hussain (not produced) may have corroborated his version on material points. In absence of any corroborationto his statement it becomes duty of the Court to undertake close scrutiny of his evidence. As it has already been stated that it is a cardinal principle of appreciating of evidence that if the evidence of a witness appears to be wholly reliable then such evidence can be accepted even without corroboration but if the evidence is unreliable then it can be brushed aside without any reservations and as per third category of witnesses namely reliable halfly unless strong corroboration is not available on record such evidence cannot be accepted. Applying these standards on the statement of * PW Zahid Hussain one can conveniently conclude that the statement of the witness on its face appears to be unreliable because it is not expected even from a layman or a man having little prudence that the accused persons will gather in a thickly populated/busy Chowk of Multan Town and loudly will disclose about their plan to do karvai in Khana-e-Farhang Iran not only exposing themselves to the general public including the witnesses in respectof a karvai of a heinous crime but on basis of same if proved they alongwith their other conspirators would be sent straight to gallows and secondly without consulting to the other conspirators who have not reached there and how it is possible that they would guide them at their arrival to gfo in Khan-e-Farhang for commission of karvai for the reason that Chowkidar is an old person and it is appropriate time for commission of the offence. It is important to note that if at all it is presumed for the sake of arguments thatacquitted accused Iftikhar Khara and two others had made up their mind for karvai they would not chose a thickly populated area to enter into an agreement with the co-conspirators to accomplish their act. It is also impossible that for commission of such high magnitude offence the three accused persons will remain present in Chowk Kamharan Wala waiting for their co-conspirators and on their arrival they would narrate the entire karvai to them so loudly that it could not only he heard by the witnesses but by other persons present in the Chowk. Besides it, if at all the witness had heard the conversation between the acquitted accused by taking up of the position of caves, dropper he would have immediately informed about their such design to the police incidentally available at Chowk Kamharan at Traffic Booth. Although he claims that he has informed PW Nausherwan SHO about the above story but the SHO instead of further materializing this aspect of the case told him to wait. As far as P.W. Nausherwan SHO in concerned he had not uttered a single word in respect of this story either in his examination-in-chief or in cross-examination. In fact the witness happened to be the relative of Faqir Muhammad (deceased) and he had gone to Khana-e-Farhang to identify the dead-body. Thus he came to know about the incident over there and due to this reason he came forward to depose against the accused persons otherwise the story putforth by him to establish the element of conspiracy against accused persons being highly improbable isnot acceptable. The statement of the witness also does not indicate that before hatching the conspiracy accused entered into an agreement written or oral to do karvai inKhana-e-Farhang nor his evidence fulfills other conditions to establish that crime was committed in pursuance of a conspiracy by the accused.

Thus we are of the considered opinion that the observations of the High Court in the impugned judgment considering the appellants as members of conspiracy hatched by them to accomplish the crime is not sustainable.

VICARIOUS LIABILITIES

53. Learned appellate Court categorically found the appellants to be members of conspiracy but such conclusions are in contradiction to the observations made in the same judgment while dealing with the question of non-inflicting of sentence under Section 109 PPC. In this context it was noted that all the appellants were present at the place of occurrence, therefore, their role in facilitating the commission of murder can be determined by application of Section 149 PPC. They being 5 or more than 5 persons acted in prosecution of their common object of the assembly. Section 109 PPC would only have application if their liability was limited only to abetment through conspiracy but being present at the spot on the day of occurrence by application of Section 114 PC read with Section 149 PPC they stand convicted under Section 302/149 PPC. It is to be noted that learned Appellate Bench of the High Court failed to take notice of the fact whether essential ingredients of Section 149 PPC have been fulfilled to award conviction to appellants on this secore. Firstly in this context it is to be observed that the trial Court has also not discussed evidence to establish whether appellants alongwith others have accomplished the crime in prosecution of their common object and the evidence so brought on record has proved the charge under Section 149 PPC against them. LearnedAppellate Court thus in view of such deficiency in the judgment of the trial Court was not under an obligation to attend this important aspect of the case categorically. We have gone through the proseuction evidence and have discussed it in detail hereinabove in the preceding paras and on the basis of the same we are not inclined to agree that the appellants were vicariously liable for the commission of the offence because the prosecution has failed to prove that all of them alongwith others constituted an unlawful assembly to prosecute the common object nor they can be adjudged to be the members of an unlawful assembly for want of trustworthy evidence. Therefore, notwithstanding the fact whether any one of them remained standing near the place of incident i.e. Khane-e-Farhang or actually participated in the commission of the crime allegedly committed inside the building or on its main gate cannot be found equally liable for the principal offence which had taken place on 20th February 1997. Thus no case of even vicarious liabilities falling within the mischief of Section 149 PPC is made out.

CONCLUSIONS

It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges so imputted against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his realse on getting benefit of doubt in the prosecution case. In such situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of doubt the Court can conclude on considering agglomerated effect of the evidence available on record as held in the cases of Safdar All vs. The Crown(PLD 1953 F.C. 93) and Muhammad Luqman vs. The State (PLD 1970 S.C. 10). In the instant case we have scanned the prosecution evidence in depth and we arepersuaded to hold that the prosecution has failed to produce trustworthy, confidence inspiring and consistent evidence against the appellants. Conversely the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused persons intrinsically and if the evidence of such defective quality is accepted it would produce anillusory judgment which apparently would not be sustainable in the eye of

law in view of the principles laid down by this Court in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent to each other thus on basis of the same appellants cannot further be immured because they have every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with law. Since both the judgments have been pronounced contrary to the substantive as well as precedented law relied while appreciating the evidence in detail.

Therefore, in view of what has been discussed hereinabove we accept these appeals, set aside impugned judgment dated 1st March 1999 and acquit the appellants. They shall be released forthwith if not required to be detained in any other case pending against them.

(A.P.)                                                                               Appeal accepted.