' MALIK SAEED EJAZ, J.--- Muhammad Iqbal accused/appellant, Ahmad Ali and Syed Fateh Shah were tried by a learned Additional Sessions Judge, Sahiwal in case F.I.R. No, 150, dated 14-4-2002 under sections 302, 324, 460, 337A-(i), 337-A(ii), 337-F(i), 337-F(ii), 337-L(ii), 148, 149, 109 P.P.C., registered with Police Station Noor Shah, District Sahiwal, and on conclusion of the trial the present appellant as well as Ahmad Ali co-accused were convicted and sentenced as under:-- ' Under section 148, P.P.C. One year's R.I each; ' Under sections 302(b)/149, P.P.C. Imprisonment for life each, plus a fine of Rs,50,000 each and in default to further suffer R.I for five years each; ' Under section 544-A, Cr.P.C. To pay compensation of Rs,50,000 each to the legal heirs of the deceased, in default to further suffer R.I. For six months each; ' Under sections 324/140, P.P.C. To undergo seven years' R.I. Each for attempting to commit murder of Muhammad Rafiq and Nazar Muhammad P.Ws; ' Under sections 337-A(i), 337-F(i), 337(ii), P.P.C., to suffer one year R.I. Each for causing injuries to Nazar Muhammad and Muhammad Rafiq. Further to pay Rs,10,000 each as Daman for causing said injuries, in default to further suffer six months' R.I. Each; on recovery of Daman, the same to be given to the injured Nazar Muhammad and Muhammad Rafiq, in equal shares.
' Benefit of section 382-B Cr.P.C. Was extended and all the sentences were ordered to run concurrently. Their co-accused Syed Fateh Shah, was however acquitted of the charge against him. The instant appeal only assails the conviction and sentence as recorded above against Muhammad Iqbal accused/appellant.
2. The case of the prosecution briefly is that on the basis of a written complaint Exh. PB moved by Nazir Ahmad complainant, an F.I.R. Exh.PB/1 was chalked out, wherein it was alleged by the complainant that on the night between 13/14-4-2002, he (complainant) along with his father Muhammad Waryam, Muhammad Rafiq, Bashir. Ahmad (complainant's brothers), Muhammad Sabir and Mst. Kausar Bibi (complainant's nephews), were asleep in the courtyard of their house and electric bulbs were on; at about 2/30 a.m. They woke up on hearing noise from the house of brother-in-law Nazar Muhammad, and saw that, on the roof of Nazar Muhammad three persons were fighting with Nazar. Muhammad, Muhammad Rafiq, Bashir Ahmad, Sabir Hussain and Mst.
Kausar Bibi also came on the roof and grappled with the accused persons. On the electric light it was seen that one of the accused was of whitish colour; strongly built with smaller height aged about 30/32 years carrying .12-bore gun; the second was again of whitish colour, smart body aged about 30/35 years armed with iron rod and the third one was of taller height, strongly built aged 30/35 years was carrying .12-bore pistol. On raising cries, one of the accused armed with .12-bore pistol, out of the two unknown accused with muffled faces standing outside the wall of the house, fired a shot hitting below umbilicus. Meanwhile, Noor Muhammad son of Peer Bakhsh also came at the spot. The accused persons also inflicted injuries to Muhammad Rafiq, Bashir Ahmad, Sabir Hussain, Mst. Kausar Bibi, Nazar Muhammad and Noor Muhammad and in their self-defence the complainant party also inflicted injures to the accused. On hearing the noise, other persons of the village were also attracted to the scene of occurrence and during scuffle, the accused persons fled away by firing and left one .12-bore pistol, two cartridges, one broken butt of .12-bore gun and four chaddars on the rooftop.
' It was further stated by the complainant that they had enmity in the village and because of that five unknown accused committed the murder of Muhammad Waryam, and caused injuries to Muhammad Rafiq, Bashir Ahmad, Sabir Hussain, Nazar Muhammad, Mst. Kausar Bibi and Noor Muhammad.
3. The investigation was taken up by Abdul Hameed S.-I. P.W.13, who proceeded to the place of occurrence where he prepared injury statement of Waryam deceased Exh.PK, handed over the dead body to Bashir Ahmad Constable for post mortem; inspected the spot, on the pointation of the witnesses prepared rough site plan. Thereafter, he prepared injuries statements of injured Bashir Ahmad, Sabir Ali, Mst. Kausar, Noor Muhammad, Nazar Muhammad and Rafiq and sent the injured persons for the medical examination. From the spot he collected blood-stained sand, blood-stained earth, crime empties, live cartridges from the roof of the house of occurrence, pistol .12-bore along with broken butt of .12-bore gun, one woolen chadar, one simple chadar, one safa and secured all the recoveries through respective memos. After post mortem examination of deceased Waryam, his last worn clothes were delivered to the Investigating Officer. He recorded statements of the witnesses and performed other functions. On 2-5-2002 after their arrest, Muhammad Iqbal and Ahmad Ali were got medically examined and thereafter produced before the Magistrate for judicial remand in order to manage their test identification. The Investigating Officer, moved an application to the learned Sessions Judge Exh. PZ, whereupon, Rai Liaqat Ali Kharal Civil Judge/Judicial Magistrate P.W.12 was deputed to hold the Identification Parade. On 7- 5-2002 Identification Parade was conducted under the supervision of the said Magistrate. While on judicial remand, on 12-5-2002 Ahmad Ali while in custody led to the recovery of iron rod P-9. On completion of investigation, challan was sent to court.
4. On receiving the challan, the accused were charge-sheeted, to which they pleaded innocence and claimed to be tried. During trial, the prosecution produced Nazir Ahmad complainant P.W.3, Nazir Muhammad P.W. 4 and Muhammad Rafiq P.W.5, all these three persons deposed about the ocular account of the occurrence. Dr.Azhar Abbas P.W.6 conducted post mortem over the dead body of Waryam (deceased) and also medically examined Muhammad Iqbal and Ahmad Ali (accused) on 2-5-2002. Dr. Riffat Idrees P.W.10 deposed about his medical notes about the medical examination conducted by him with regard to the injuries sustained by Bashir Ahmad, Noor Muhammad, Mst. Kausar Bibi, Muhammad Rafiq and Nazar Muhammad. Rai Liaqat Ali Civil Judge/Judicial Magistrate P. W.12 appeared in the witness box to testify the Identification Parade conducted under his supervision, whereas, Abdul Hameed Sub-Inspector P.W.13 made statement about the conduct of his investigation. The other witnesses are more or less formal in nature and deposed about their functions performed by them towards conclusion of the investigation. On close of the prosecution case, the evidence when put to the accused, Muhammad Iqbal present accused/appellant refuted the same and further went on to explain that he in fact had been arrested two days after the occurrence and was tortured and that it was an witnessed occurrence, he had not participated as alleged by the P. Ws. And that evidence was fabricated against him. The accused persons, however, did not produce any evidence in defence and on the on the conclusion of the trial, above conviction and sentence was recorded.
5. I have considered the arguments of learned counsel for the appellant as well as the learned Deputy Prosecutor- General.
6. From the narration of the F.I.R, as well as statements of the eye-witnesses, it becomes clear that it is a case where the accused were not identified at the spot; however, their features have been given, Furthermore, even nothing has been recovered from the present accused/ appellant during the course of investigation. Thus, the entire prosecution case is mainly based on ocular account, Identification Parade and the medical evidence.
7. As far as ocular account of the occurrence is concerned, Nazir Ahmad complainant, while appearing in the witness box as P.W.3 narrated the incident in detail, as disclosed by him in his written complaint and discussed above while narrating the prosecution story. In the court his statement remained the same that during the incident the accused could not be specifically identified as they had muffled their faces, however, their features and statures were observed and that they were subsequently identified during Identification Parade. However, it is noted that in the written complaint, Exh.PB, the complainant had stated that they had enmity in the Ilaqa and because of such animosity murder of Waryam was committed, but during his statement in court the complainant came up with the version that accused had come to commit dacoity. Whatever may be the reason, it may hot in any way either prove or disprove the prosecution case, as admittedly one person had lost his precious life and so many others had sustained injuries.
Similarly, Nazar Muhammad P.W.4 and Muhammad Rafiq P.W.5 who also are injured eye-witnesses, made statements in line with the statement of the complainant, and toed him on almost all material points. These witnesses were subjected to cross-examination by the defence but nothing damaging to the prosecution or favourable to the defence could be elicited from their statements, as they remained consistent with each other on the point that accused had not been specifically identified by them and they had only noted their features and statures.
8. Taking up the test identification, admittedly the Identification Parade was got conducted under the supervision of Rai Liaqat Ali, Civil Judge/Judicial Magistrate PW-12. As pointed out by learned counsel for the appellant, it is noted that according to the Investigating Officer P.W.13 himself, Iqbal accused/appellant was arrested on 2-5-2002 and on the same day Muhammad Iqbal accused/appellant along with Ahmad Ali co-accused was sent for their medical examination. But there is not a single word from the Investigation Officer that after the arrest of the accused till their Identification Parade they were ever directed to hide their faces. He has also come in the evidence of the Investigating Officer that after arrest, the accused persons were also produced before the Magistrate for obtaining their remand and according to the Judicial Magistrate who had supervised the Identification Parade, he had also not directed the accused persons to hide their faces.
9. This Court has also gone through the report Identification Parade and it is noted with great regret that the Identification Parade had also been conducted in a highly unprofessional and illegal manner, which is sheer violation of the procedure laid down in the Lahore High Court Rules and Orders as well as the settled principles on this point by the apex court of the country. Firstly, the Investigating Officer and then the Judicial Magistrate had not bothered to initiate any precautionary measures ensuring that identity of the accused was not leaked. Furthermore, the report of the Judicial Magistrate is silent on the question whether he had ensured that the dummies who were made to mix up with the accused persons, had any similarities with the accused on the point of their colour, height, of other features of the body. It is also astonishing to note that there is not a single word in the entire report whether the persons named were identified by their role in crime or as individuals, as friends or foe. Whereas, the Hon'ble Supreme Court of Pakistan in the case reported in "Khadim Hussain v. The State" (1985 SCM R 721) had clearly held that if the identification was held about the role of the accused, then it was incumbent that it should have been specific so as to complete the picture of crime and re-enforce case against them for commission of offence. Whereas, in the case in hand, there is nothing to suggest that on what basis the witnesses had identified the accused persons, either by their colour, their height, their ages or even by their clothes and mere saying that witness identified such and such person as the accused without mentioning their specific role; can hardly be considered to be piece of evidence to connect the accused with commission of a crime, which ultimately may entail capital punishment. In the case Muhammad Pervez and others v. The State and others (2007 SCM R 670), in almost similar situation, held that if role of accused was not described by witnesses at identification parade, such type of identification loses its value and cannot be relied upon. If prosecution witnesses had seen the accused before identification parade, such piece of evidence of identification parade can also not be relied upon. In such a situation, when so many irregularities and infirmities are visible in the Identification Parade, this piece of evidence cannot at all be made basis to connect the accused with the commission of the offence.
10. After having disbelieved the ocular account, and as discussed above, nothing had either been recovered from Muhammad Iqbal accused/appellant, there remains just one question i.e, injuries detected by the Medical Officer on the person of Muhammad Iqbal. Dr. Azhar Abbas P.W.6 had observed a superficial semi-healed scar on the right nostril of Muhammad Iqbal accused/appellant while conducting his medical examination on 2-5-2002. But, this statement of the doctor also loses its efficacy for the reason that in cross-examination the doctor himself admits that healing process of injury starts within 24 hour and it completes in two weeks. Now, keeping in view this admission of the Medical Officer, it is seen that occurrence took place on 14-4-2002 and Iqbal was medically examined on 2-5-2002 i.e, after more than two weeks, whereas, the injury according to the same doctor was still semi-healed. On the contrary, Muhammad Iqbal in his statement under section 342, Cr.P.C., explained that he was arrested by the police two days after the occurrence and was subjected to torture.
' This statement when juxtaposed with the statement of the doctor appears to be closer to the reality and this period definitely commensurate with the opinion of the doctor that injury was semi- healed as it completes the healing process in two weeks. While holding so, this court is further fortified by the statement of the complainant P.W.3 who himself admits that one of the accused was arrested on 16-4-2002 i.e, just two days of the occurrence and his arrest was also conveyed to them by the police. This admission also goes a long way to destroy the prosecution case viz. Identification parade, as for about twenty days the said accused was not subjected to identification test and there is no explanation to that effect, which too is a glaring irregularity to wipe out the prosecution case, because it is more than improbable that a person who is suspected to the murderer is not shown to the complainant party for such a long period, despite the fact that his arrest is duly conveyed to the aggrieved party.
11. For what has been discussed above, as conviction cannot be recorded merely on probabilities and prosecution has to prove its case beyond any shadow of doubt, which the prosecution has not been able to prove in the instant case, therefore, by following the rule of abundant precaution D and extending the appellant benefit of doubt as held in "Mohsin Abbas v. The State" (2004 PCr.LJ 497), I allow this appeal and by setting aside his conviction and sentence, order his immediate release from jail, if not required in any other case.