' HASNAT AHMAD KHAN, J.- Through this appeal, I intend to dispose of Criminal Revision No .372 of 2001 titled Anwar Ali v. Mulazim Hussain etc., as well as Criminal Appeal No,715 of 2001 filed by Mulazim Hussain, Bashir Ahmad and Muhammad Tariq appellants/ convicts, who are tried by learned Additional Sessions Judge, Khanewal, for the murder of Shaukat Ali deceased, in a case F.I.R. No, 1032 of 1998 dated 6-12-1998, under sections 302/324/34, P.P.C. Registered at Police Station Jahanian, District Khanewal.
2. After conclusion of the trial they were found guilty under section 302/34, P.P.C. And vide judgment dated 14-9-2001 convicted and sentenced to life imprisonment and they were further ordered to pay a sum of Rs,50,000 each as compensation under section 544, Cr.P.G. For payment of the same to the legal heirs of the deceased. All of them were further convicted under section 324/34, P.P.C.
And sentenced to five years' R.I. Each for launching murderous assault on Binyamin P.W.7. They were further sentenced to pay a fine of Rs, 10,000 each. Half of the fine, if recovered, was ordered to be paid to the said injured. In default of payment of fine, the appellants were ordered to further undergo S.I. For six- months. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
3. Prosecution ease as un-folded in the F.I.R. (Exh.PH/1) got lodged on the statement (Exh.PA) of Anwar Ali was that on 5-12-1998 at about 7-30 p.m. Said Anwar Ali was coming along with his son namely Shaukat Ali deceased and Binyamin P.W.7 to his house from their agricultural land.
Complainant's sons were walking ahead of him and when they reached near an Ice Factory, all of a sudden three persons one of whom was tall and having a stout body and was armed with .12 bore gun. The other was of stout body, middle height of young age armed with screw driver, while the third was also stout body, middle height of young age with a knife. All the said three accused caught hold of his son. Binyamin P.W.7 launched an attack with a small knife over an accused. Said accused raised a Lalkara, whereupon, the accused who was armed with .12 bore gun fired at Binyamin hitting his left fore arm; Shaukat Ali (deceased) tried to snatch the gun from the accused and during the grappling, body plate of the gun fell down. The remaining two accused caused injuries on the body of Shaukat Ali with their knife and screw driver respectively. In consequence whereof, he received injuries on different parts of his body and succumbed to the same. On the hue and cry of the complainant party witnesses were attracted. According to the complainant the accused were seen in the light of torch. In the end of his complaint, he showed his suspicion of said crime against three persons namely Munawar Ali, Ramzan and Muhammad Mansha.
4. After the occurrence, Binyamin P.W.7 was transported to the Civil Hospital, Jahanian, while complainant proceeded towards the police post, but on his way, the Investigating Officer met him who recorded his statement (Exh.PA) which was sent to Police Station, Jehanian, The S.I. Proceeded to the spot and completed all the formalities. Binyamin P.W.7 was medically examined by Dr. Muhammad Aslam, P.W.9. The same doctor conducted post-mortem examination on the dead body of Shaukat Ali on 6-12-1998.
5. Riaz Hussain, S.I. P.W.2, collected blood-stained earth underneath the dead body of Shaukat Ali deceased and secured the same into sealed parcel vide recovery memo. Exh.PE. He also took into possession Chadar (loi) P.1, Muffler P.2, one body plate of gun P.3 and one screw driver P.4 vide recovery memo. Exh.PF. The said articles were allegedly left by the accused at the spot while fleeing away. Riaz Hussain prepared rough site-plan, of place of occurrence Exh.PG. He recorded the statements of P.Ws. Under section 161, Cr.P.C., last worm clothes of the deceased i.e, Qameez P.5 and Shalwar P.6, both blood-stained were also taken into custody vide memo. Exh.P8.
6. On 6-12-1998 Muhammad Riaz, S.I. P.W.11 took over the investigation of this case and on 7-12-1998 he recorded the statements of the P.Ws.
7. To trace the real culprits, police joined so many persons including those nominated in the F.I.R., but failed to do so for about a year. The persons who were nominated in the F.I.R. Were arrested, but exonerated by the Investigating Officers. After about a year of the occurrence, complainant claims to have knowledge that real culprits were present appellants.
8. According to the prosecution, Mulazim Hussain and Bashir Ahmad appellants were arrested on 9-10-2000. They were directed to muffle their faces and on 18-2-2000 they were sent to judicial lock-up for identification parade. Muhammad Tariq appellant was allegedly arrested on 3-3-2000.
He was also sent to judicial lock-up on 4-3-2000. On 7-3-2000 Hidayat Ullah Khan, learned MIC conducted the identification parade. Thereafter, the Investigating Officer obtained physical remand of the appellants and after finding them guilty, he challaned them.
9. After submission of the challan, the appellants were charge sheeted. They pleaded not guilty, whereafter, the prosecution produced as many as 19 witnesses to prove its case.
10. Muhammad Nawaz, S.-I. Who recorded the statement of Binyamin injured appeared as P.W.l, Riaz Hussain appeared as P.W.2 and gave details of his investigation. During the cross-examination he admitted that the night of occurrence was a dark one. He further admitted that he could not ascertain the ownership of the articles recovered from the spot. He further admitted that screw driver was not made into a sealed parcel and the same was not blood-stained. Bashir Ahmad, Patwari appeared as P.W.3 and proved the site- plan. Safdar Ali appeared as P.W.4 and proved the recovery of .12 bore gun P.7 at the instance of Bashir Ahmad. Nazir Ahmad Head Constable who recorded the formal F.I.R. (Ehx.PH/1) appeared as P.W.5. Anwar Ali and Binyamin appeared as P.W.6 and P.W.7 respectively and furnished the ocular account. Munawar Ali who identified the dead body of the deceased appeared as P.W.8. Dr. Muhammad Aslam who conducted M.L.C. On the person of Binyamin injured and conducted post-mortem on the dead body of Shaukat Ali appeared as P.W.9.
The detail of injury received by Binyamin P.W.7 is as under:-- ' "A lacerated wound 4 x. 4 c.m. On top of left shoulder, margins were irregular slight burning of the edges was present. Profused bleeding was present. It was entry wound"
' Detail of the injuries suffered by the deceased Shaukat Ali as narrated by the said witness is as under:-
(1) An incised wound 3 c.m. x 1 c.m. x bone deep on left side of forehead.
(2) An incised wound 6 c.m. x 1 c.m. x bone deep transversely on left side of fore-head, just below hair crease.
(3) An incised wound 2 c.m. x 1 c.m. Muscle deep on right side of forehead.
(4) An incised wound 2 c.m. x 1 c.m. Depth not assessed on lower part of left side of neck, just above clavicle.
(5) An incised wound 2 x 1 c.m. On upper part of left upper arm, muscle deep.
(6) An incised wound 2 c.m. x 1 c.m. x muscle deep on top of right shoulder.
(7) An incised wound 2 c.m. x 1 c.m. x muscle deep on lower part of left side of chest, just above costal margin."
' Ameer Ali, A.S.-I., who took the eye-witnesses to the jail for identification parade appeared as P.W.10. Muhammad Nawaz, S.I., Rehmat Ali, Inspector, and Muhammad Atiq, A.S.-I. Appeared as P.W.11, P.W.16 and P.W.17 respectively and gave detail of the investigation. Hidat Ullah, Magistrate 1st Class, appeared as P.W.14 and proved the proceedings of identification parade. Shahzad Faisal who is recovery witness appeared as P.W.16. Rest of the witnesses are formal in nature.
11. After conclusion of the prosecution evidence, the statement of the appellants were recorded under section 342, Cr.P.C. In which they refuted the prosecution story and claimed total innocence.
After the conclusion of the trial, the appellants were found guilty and sentenced as narrated above.
12. In support of this appeal, the learned counsel for the appellants has raised the following points:-
(ii) The appellants were arrested after one year and two months of the occurrence and there was little chance of their identification.
(iii) The identification parade was not held in accordance with law and during the identification parade the complainant failed to identify Mulazim Hussain, while both of the eye-witnesses did not mention the role of each accused at the time of the identification parade.
(iv) The recovery effected from Bashir Ahmad appellant is of no consequence as same was admittedly not used in the- occurrence.
(v) The screw driver recovered from the place of occurrence was not[1] blood-stained and further more its recovery cannot be used as corroborative piece of evidence against the accused as same was not recovered from the possession of any accused.
(vi) The post-mortem report contradicts the prosecution version as all the injuries suffered by the deceased were incised wound and depth of all wounds was same and none of the said injuries could be, said to have been caused by a screw driver which is a pointed weapon/article.
(vii) It was admitted by some of the prosecution witnesses that it was a dark night.
(viii) The torch which according to the prosecution was source of identification of the accused at the time of occurrence was not recovered.
' In support of his arguments learned counsel for the appellants has relied upon the following judgments:- "Khadim Hussain v. The State" (1985 SCM R 721), "Muhammad Arshad v. The State" (PLD 1995 Supreme Court 475), "Ghulam Rasul and 3 others v. The State" (1988 SCM R 557), "Sajjad Hussain v., The State" (1997 SCM R 174), "Gullan v. The State" (PLJ 1990 Cr.C. (Karachi) 340), "Mehmood Ahmad and 3 others v. The State and another" (1995 SCM R 127), "Farman Ali v. The State" (1997 SCM R 971), "State through Advocate General Sindh, Karachi v. Farman Hussain and others" (PLD 1995 Supreme Court 1).
13. In reply to the submission of the learned counsel for the appellants, learned counsel for the State assisted by learned counsel for the complainant has argued that there was no motive for the false implication of the appellants; during the identification parade Binyamin P.W.7 correctly-identified all the appellants as the real culprits; the medical evidence, recovery of gun from Bashir Ahmad appellant and evidence of the learned Magistrate who conducted the identification parade coupled with the ocular evidence established the case of the prosecution beyond any shadow of doubt.
14. I have heard the arguments of both the sides very carefully and perused the record.
15. After perusal of the record it has been straightway noticed that it was a night time occurrence in which none of the appellants was named. The most important article which could have established the source of light was torch in the light of which the complainant allegedly identified the accused/appellants, was not taken into possession. During the trial P.W.2 who originally investigated the case admitted that it was a dark night. In the F.I.R. The complainant did not claim that it was a moonlight night. Had it been a moonlight night he would have definitely mentioned this fact and there was no need to mention the identification through the torch light. In view of this back drop, the claim of the complainant of identifying the assailants is not appealing to the reasons.
16. In the cases of identification of the accused in dark night, in the light of electric bulb, lantern etc., the Honourable Supreme Court of Pakistan in a case "Sajjad Hussain v. The State" has laid down the following consideration:- ' "Availability of the sufficient light, opportunity to the accused to have a good look or a dialogue with the accused, the intimacy of the accused with the witnesses; the availability of an un- obstructed view of the accused to the witnesses at the time of the commission of offence."
' In the present case, the prosecution has failed to prove that it was a moonlight night. The torch in the light of which the appellants were allegedly identified has not been produced. There was no previous intimacy of the accused with the witnesses and no dialogue admittedly was exchanged between both the sides. All these factors make the claim of the prosecution of identification of accused, hazy.
17. As the accused were not named in the F.I.R. They were arrested after more than a year of the occurrence and admittedly no source of information on the basis of which the complainant suspected the appellants as their accused prosecution case. Would hinge upon the evidentiary value of the identification parade. According to my humble view, the identification of the appellants could not be proved beyond the shadow of doubt and to reach said conclusion, I have got more than couple of reasons. The appellants were arrested in this case after a period of one year of the occurrence and it would be excepting too much from the witnesses to identify the accused of whose features they had got little chance to memorize, especially when they were seen in the dark night and there was no intimacy of both the parties. Rehmat Ali, Inspector, who appeared as P.W.15 admits that Mulazim Hussain and Bashir Ahmad accused/ appellants were arrested on 9-9-2000 and admittedly the appellants were sent to judicial lock-up on 18-2-2000, hence they remained in custody of the police for nine days. In view of this fact, the objection of the appellants at the time of identification parade that they were shown to the prosecution witnesses by the policed could not be easily brushed aside. While appearing as P.W.6 the complainant stated that firstly he had strong suspicion that occurrence had been got committed by Munawwar Ali, Ramzan and Muhammad Mansha. During cross-examination, he admitted that during the investigation, he had stated that he had strong suspicion against Gulzar and Sadiq. He further admitted that during the investigation he had stated before Rehmat Ali. I.O. On 26-11-1999 that if the present appellants are arrested, the murder of his son would be traced. At that time, he gave the names, parentage and residents of all the appellants. This exercise also makes the identification process as meaningless. There is yet another noticeable circumstance which shows that from the whole file it has not come clear that how the accused were traced as real culprits except for abovementioned suspicion.
18. Now, I take up the evidence of the Magistrate who supervised the identification parade.
According to identification proceedings, complainant could not identify all the appellants during the investigation, benefit of which cannot be extended in any mamier to the prosecution and it has to go to the accused/ appellants. The learned Magistrate who had appeared as P.W.12 admitted that during the identification parade, the witnesses did not specify the role of the each accused, who were identified by them. According to the settled law, if the witnesses did not specify the role of each accused during the identification parade, such identification loses its efficacy and importance. The reliance in this regard* is placed upon the following reported cases:- "1985 SCM R 721", "1988 SCM R 557", "1995 SCM R 127".
19. It is settled law that evidence of identification of a accused must be sufficient to exclude all possibilities of mistake or exaggeration. It is also established law that the benefit of doubt, however slightest it may be, should be given to the accused and it would be safe to acquit the accused rather than to convict them as it is established law that it is better to err on acquitted, than the err on conviction. Reliance is placed upon on 2005
20. As far as the contention of learned counsel for the complainant regarding I corroboration of the ocular version through medical evidence is concerned that has got no force as instead of corroborating the version of the prosecution, the same is contradicting the ocular version as all the ' injuries suffered by the deceased were 1 found to be. Of incised wounds and none'of said injuries, could be termed to have been suffered with a pointed weapon like screw driver.
21. For all the reasons stated above, I have no doubt in my mind that prosecution has failed to prove its case beyond any shadow of doubt against the appellants. While giving them benefit of doubt, all the appellants are acquitted of the charge. Conviction and sentences as recorded against them are set aside by way of accepting this appeal. They be released from jail forthwith if not required in any other case.
' As the appeal filed by the accused has been accepted, there is no point to dilate upon the merits of the revision petition which has been filed with the prayer of enhancement of sentence and the same is hereby dismissed.