1. ' KHAWAJA MUHAMMAD SHARIF, J.-This judgment will dispose of Criminal Appeal No,2178 of 2002 filed by Muhammad Asif son of Muhammad Azam, who was convicted and sentenced by learned Judge, Anti-Terrorism Court Lahore vide judgment dated 24-12-2002 as under:- "Death and to pay a fine of Rs, One lac and in default thereof two years' R.I. Under section 7 of Anti- Terrorism Act, 1997 read with section 30200/34, 10 years' R.I. And to pay a fine of Rs, One lac, in default thereof to undergo further R.I. For two years and ' To pay compensation of Rs,2,00,000, in default six months' S.I. Under section 544-A, Cr.P.C.
2. ' Murder Reference No,1/T of 2003 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. The occurrence in this case had taken place at 5-00 p.m. On 5-1-1999 within the jurisdiction of Police Station, Islampura, Lahore and the matter was reported to the police through Faisal All Abbassi at 8-55 p.m. Through written complaint Exh.P.W.7/1 at Mayo Hospital and the formal F.I.R.
3. Exh.P.W.15/1 was recorded by Sultan Ahmad, A.S.-I.
3. Briefly stated the facts of the case are that on 5-1-1999 at about 5-00 p.m.., Shoaib Abbassi, brother of Faisal Ali, complainant, went on a motor cycle to Main Bazaar, Islampura to purchase some articles for Aftari. The house of the complainant is at a distance of 100 yards from Kuku Bakery. In the, meanwhile, noise was heard in the Kuku Bakery and three unknown persons while armed with fire-arms, the complexion of whom is given in the complaint, snatched on gun point Rs,8,000 from the owner of Kuku Bakery and ran towards Saadi Road. Shoaib Abbasi, brother of the complainant was going on a motor cycle on Saadi Road to purchase curd and he entangled with the accused. The accused tried to snatch motor cycle and both the accused and the brother of the complainant grappled with each other. In the meanwhile, the complainant along with his friend Iftikhar Ahead reached at the place of occurrence while chasing the dacoits. Within the view of complainant and Iftikhar, the accused fired shots with their respective fire-arms. The shot fired by the accused having tall height landed on the abdomen of Shoaib Abbasi. He was removed to the hospital but he succumbed to injuries in the hospital.
4. ' Two co accused namely Zameer-ulHassan alias Bobi and Muhammad Asif son of Rehmat Ullah of the present appellant were tried and vide judgment dated 15-6-2000 passed by trial Court, both were convicted under section 302(b), P.P.C. And sentenced to death.
5. ' The appellant was declared proclaimed offender and proceedings under section 512, Cr.P.C. Were initiated against -him. The appellant was taken into custody from Sialkot jail where he was confined in another case. Despite the appellant exhausted the physical remand, but nothing was recovered from him.
6. ' At the trial of present appellant, the prosecution in order to prove its case produced 15 withesses in all. Statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded false implication. The accused in his defence also produced Muhammad Aslam as D.W.1. After conclusion of the trial, the accused was convicted and sentenced as stated above.
7. ' Learned counsel for the appellant submits that the appellant was confined in Sialkot jail in another case and from there, he was transferred to Lahore on 8-7-2001. Further submits that no identification parade of the appellant was held as required under the law and only on the basis of identification of the appellant in the Court, the conviction has been recorded by the trial Court against the appellant. Further submits that nothing incriminating was recovered from the appellant. Adds that case of the present appellant is totally different to that of his co-accused Zameerul-Haq and Muhammad Asif who were awarded death sentence by the trial Court and their death sentence was confirmed by this Court because they were identified by the P.Ws. In the identification parade held in the jail. Lastly submits that there is no other evidence against the appellant except his identification by the P.Ws. Before the Court.
8. ' Learned A.A-G. Vehemently submits that identification of the appellant before the trial Court is sufficient to maintain conviction against the appellant. When asked to produce any judgment on this point, he had no answer. However, he admits that thert is no other evidence against the appellant except the bald statement of the eye-witnesses who had only identified the appellant before the trial Court.
9. ' We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 5-00 p.m. On 5-1-1999 while the matter was reported to the police at 9-25 p.m. On the same night by Faisal Ali, real brother of Shoaib deceased. The prosecution produced Malik Ijaz Mahmood owner of the Kuku Bakery as P.W.1, Muhammad Sharif as P.W.2 and Faisal Abbass, complainant as P.W.4. We have gone through the statements of these P.Ws. Though they had identified the appellant before the trial Court but no identification parade, as required under the law, was held in the jail under the supervision of a Magistrate. The appellant was arrested in this case on 8-7-2001, that is, four years and six months after the occurrence while statements of the eye-witnesses were recorded in November and December 2002. It has been conceded by learned Assistant Advocate General that except identification of the appellant before the trial Court there is no other evidence against him. The case of two accused namely Zameer-ul-Hassan and Muhammad Asif, of the appellant is totally different. They both were identified in the identification parade held in jail under the supervision of Dr. Shoaib, Magistrate produced as P.W.10.
10. ' Having analyzed the case of the prosecution against the: appellant from all angles, we are of the considered opinion that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt rather doubts are floating on the surface of the record. So, while extending the benefit of doubt, we accept the appeal filed by the convict appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. The death sentence of Muhammad Asif appellant is not confirmed and Murder Reference is replied in the negative. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. ' Before parting with this judgment, we would like to observe that failure on the part of the Investigating Officer to have the identification parade of the appellant held as required under the law has resulted into acquittal of the appellant. It has time and again been held by this Court as well as the Honourable apex Court that in cases where the accused are unknown, identification parade as required under the law must be held but it appears that no attention has been paid to such directions and because of the negligence on the part of the Investigating agencies, the Courts of law are being made responsible for acquittal of the accused. A copy of this judgment shall be sent to Inspector General of Police and the. A.I.G. (Legal) for strict compliance.