' WAQAR HASSAN MIR, J.---This judgment will dispose of Criminal Appeal No.212-J of 2003 filed by the appellants namely Muhammad Shahid alias Shandi son of Muhammad Akhtar, Muhammad Asif son of Rustam Ali, Muhammad Mushtaq alias Machhar son of Muhammad Hussain and Muhammad Irshad alias Yasha son of Muhammad Boota and Criminal Appeal No.579 of 2003 filed the appellant Muhammad Ashraf son of Muhammad Akhtar, who were convicted and sentenced by the learned Additional Sessions Judge, Gujranwala through the impugned judgment dated 29- 3-2003 as under:- ' Under section 396, P.P.C., Death sentence each on three counts and a fine of Rs.100,000/- payable by each accused to the legal heirs of all the three deceased according to their legal shares of inheritance, and in default thereof to further undergo six months' S.I. Each.
' Murder Reference No.94 of 2004 for confirmation or otherwise of death sentence of the appellants shall also be disposed of through this single judgment.
2. Brief facts of the case are that on the night between 21/22-8-2000, the complainant Noor Hussain was sleeping in the office room of his Agency of Pepsi Cola situated at G.T. Road, Morh Aimanabad, Gujranwala whereas Muhammad Afzal son of Noor Hussain, Muhammad Fiaz son of Barkat Ali, Muhammad Fiaz son of Fakhar Din, Arshad Ali son of Fateh Muhammad and Basharat Ali were also sleeping in the said Agency. At about 3-30 a.m. The complainant came out from his office room on hearing the noise and saw that five persons armed with firearms, all wearing Shalwar Qameez, were beating Muhammad Afzal son of the complainant, Muhammad Fiaz son of Barkat Ali and Muhammad Fiaz son of Fakhar Din with the bottles and with the butts of arms. One companion of the accused persons was standing on the roof of godown. Arshad and Basharat witnessed the occurrence behind the plants near the northern wall of the Agency. The accused persons detained Afzal, Fiaz son of Barkat Ali and Fiaz son of Fakhar Din in the godown of the Agency and bolted the door from outside and then rushed towards the complainant and injured him and took his hand bag containing Rs.60,000/- and photocopy of NIC from Almirah and also picked up T.V. 14" of Sony and bolted the door from outside and fled away in Suzuki Pick-Up bearing No.488-STC owned by the complainant. Arshad and Basharat opened the door of the office and then the complainant and Witnesses opened the door of the godown. Fiaz son of Barkat Ali had succumbed to the injuries, whereas Muhammad Afzal and Muhammad Fiaz son of Fakhar Din were seriously injured.
Both the injured were sent to Civil Hospital Kamonke, but on 23-8-2000 both the injured Muhammad Afzal son of Noor Hussain and Fiaz son of Fakhar Din also succumbed to the injuries.
3. The case was registered against the accused and they were searched. In case F. I. R. No .420/2000 under sections 399/402, P.P.C. Registered at Police Station Saddar Gujranwala, all the above named five accused during interrogation confessed the occurrence of this case. Therefore, the accused were arrested in this case and sent to jail for Identification Parade.
' On 28-11-2000 Identification Parade was conducted in the jail premises and after interrogation on 11-12-2000 on the pointation of the accused the looted property was recovered and they were found guilty in this case, so the challan was sent to the learned Trial Court after completion of investigation.
4. The investigation of the case was conducted by P.W.17 Tariq Mahmood, S.I., who deposed that at the relevant time he was posted at Police Station Aimanabad as S.H.O. And on the night of 21/22-8- 2000 he was on patrolling duty along with Karamat Ali, A.S.I., Sajjad and Iqbal, constables; he received a wireless message at 4-00 a.m. That a murder has been committed at Morh Aimanabad; he reached at Morh Aimanabad after receiving the said information; Noor Hussain, complainant, got recorded his statement before him (Exh.PT/2), which was sent through Muhammad Ashraf, 1217/C, to the police station for registration of case; he inspected the place of occurrence; the dead body of the deceased Fiaz son of Barkat Ali was lying in the store room; he prepared application for the post-mortem examination of the deceased Fiaz Ahmed son of Barkat Ali, which was Exh.PU; he prepared inquest report (Exh.PV); he also prepared injury statement of Fiaz son of Barkat Ali deceased; he also recorded the statements of eye-witnesses under section 161, Cr.P.C., he took into possession blood-stained earth vide memo (Exh.PC) of deceased Fiaz son of Barkat Ali; he also took into possession Pepsi small bottles from the spot; on the pointation of P.Ws.
He prepared the site plan without scale of the place of occurrence; he also prepared injury statement of the complainant Noor Hussain (Exh.PW); on the same day he went to THQ Hospital Komonke for recording the statements of injured Fiaz son of Fakhar Din and Afzal son of Noor Hussain, but they were sent to Lahore due to their precarious condition; he investigated the case at the place of occurrence; Iftikhar, 1633/C handed over to him last-worn clothes of the deceased Fiaz son of Barkat Ali and post-mortem report (Exh.PE); on 23-8-2000 at midnight, he proceeded to General Hospital, Lahore and submitted an application (Exh.PX) for recording of statement of Muhammad Afzal son of Noor Hussain; the report of doctor was Exh.PX/1, according to which the patient was not fit for statement; he reached back at Aimanabad Morh where he learnt that Faiz son of Fakhar Din and Afzal son of Noor Hussain were expired; then he proceeded to General Hospital, Lahore; dead bodies of Fiaz son of Fakhar Din and Afzal son of Noor Hussain were handed over to him by the doctor; the dead bodies were escorted to THQ Hospital Kamonke through ambulance; he prepared the injury statement of Fiaz son of Fakhar Din (Exh.PY) and application for post-mortem examination Exh.PY/1, and Exh.PZ of Muhammad Afzal son of Noor Hussain; then he handed over the dead bodies of both the deceased to Ali Sher, A.S.I., for postmortem examination; he submitted an application (Exh.PAA) for the post-mortem examination of Muhammad Afzal son of Noor Hussain; he also prepared inquest report of Fiaz son of Fakhar Din (Exh.PBB, and Exh.PCC of Muhammad Afzal son of Noor Hussain; all these documents were handed over to Ali Sher, A.S.I., along with dead bodies; after the post-mortem examination of both the above said deceased, Ali Sher, A.S.-I. Handed over to him post-mortem report of Muhammad Afzal son of Noor Hussain (Exh.PD) along with diagram (Exh.PD/1) and post-mortem report of Fiaz son of Fakhar Din (Exh.PE) and diagram (Exh.PE/1); he also recorded the statements of Ali Sher A.S.I. And Sajjad Ali, 790/C, under section 161, Cr.P.C., he also recorded the statements of Muhammad Islam son of Fazal Din and Muhammad Akhtar son of Noor Hussain under section 161, Cr.P.C.
5. The I.O. Further deposed that on 25-8-2000 he summoned the draftsman for the preparation of site plan who handed over to him site plan (Exh.PF) along with duplicate (Exh.PF/1) on 27-8-2000; that on 9-11-2000 the accused Muhammad Shahid alias Shandi, Muhammad Ashraf son of Muhammad Akhtar, Muhammad Asif son of Rustam Ali, Muhammad Mushtaq alias Machhar son of Muhammad Hussain and Muhammad Irshad son of Muhammad Boota were arrested by the police of Police Station Saddar Gujranwala; the accused persons disclosed before the police of Police Station Saddar Gujranwala during investigation of case F.I.R.No.420/2000 dated 9-11-2000 under section 399/402, P.P.C., that they had also committed the dacoity/murder at Morh Aimanabad; he was informed by Police Station Saddar Gujranwala and on that information he went to Police Station Saddar Gujranwala and interrogated the accused and arrested them in the instant case on the same day and then he produced the accused before the Ilaqa Magistrate and obtained their judicial remand for Identification Parade on 14-11-2000 he submitted an application for holding of Identification Parade of the accused which was Exh.PDD and then Exh.PEE on 27-11-2000; on 23-11- 2000 he received the report from the office of Chemical Examiner regarding blood-stained earth of the deceased; on 23-11-2000 he also recorded the statements of Moharrar Muhammad Arshad and Muhammad Arshad, 1078-C, under section 161, Cr . P. C . , on 28-11-2000 Identification Parade of the accused was held in jail premises; on 29-11-2000 he submitted an application before the Ilaqa Magistrate (Exh.PFF) for summoning of the accused and accused were summoned by the Ilaqa Magistrate for 30-11-2000; on the same day he obtained physical remand of the accused for four days; on 4-12-2000 he again obtained physical remand of the accused for four days and on 8-12- 2000 he again obtained physical remand of the accused for four days; that during the physical remand all the accused made disclosure that they can get recovered robbed articles on 11-12-2000 Mushtaq alias Machhar accused got recovered Suzuki Pick-Up No.488-STC, Rs.2000, time piece and torch, which were taken into possession vide recovery memo (Exh.PH), attested by the P.Ws., on the same day Shahid alias Shandi accused got recovered Rs.8000/-, T.V. Sony, one time piece and one torch, which were taken into possession vide recovery memo (Exh.PJ), which was also attested by the P.Ws. Muhammad Azeem and Muhammad Asif P.Ws.; he also prepared the site plans of place of recoveries as Exh.PGG and Exh.PHH; on the same night the accused Muhammad Ashraf got recovered time piece, torch and Rs.2000 from his residence, which were taken into possession vide recovery memo (Exh.PKK) attested by Muhammad Azeem and Muhammad Asif, P.Ws.; after that Muhammad Asif accused got recovered a time piece, a torch, two speakers of a deck and Rs.2000 from his residence, which were taken into possession vide recovery memo (Exh.PL); that Muhammad Irshad accused got recovered Rs.8000 from his residence, which were taken into possession vide recovery memo (Exh.PM) attested by the above said witnesses; he also prepared site plan of place of recovery from Irshad accused as Exh.PJJ and site plan of place of recovery from the accused Muhammad Asif as Exh.PKK and site plan of place of recovery from Muhammad Ashraf accused as Exh.PLL; that on 14-12-2000 all the accused were sent to judicial lock up and he prepared the report under section 173, Cr.P.C. And submitted the challan in the Trial Court.
6. To prove the charge against the accused, the prosecution examined 19 witnesses in all.
Thereafter, the learned ADA gave up Iftikhar Ahmad, 1633/0, Barkat Ali, Muhammad Islam, Muhammad Azeem and Ali Sher, A.S.I., being unnecessary, and after tendering in evidence the reports of Chemical Examiner, Exh.POO, Exh.PPP, Exh.PQQ and reports of Serologist Exh.PRR, Exh.PSS and Exh.PTT closed the prosecution evidence. After that, statements of the accused under section 342, Cr.P.C. Were recorded, wherein they denied the prosecution case. All the accused opted not to make statements under section 340(2), Cr.P.C. And also refused to produce the defence evidence.
' However, after conclusion of the trial, the accused/appellants were convicted and sentenced by the learned Trial Court, as mentioned above.
7. Learned counsel for the appellants submit that it is a case of delayed F.I.R.; that if the date is calculated from the postmortem report, the same does not match with the time of occurrence; that the alleged occurrence had taken place in darkness and not one had seen it; that all the witnesses cited in the case are related to the deceased; that the complainant Noor Hussain is father of one of the deceased; whereas Arshad Ali P.W.10 and Basharat Ali P. W.13, who picked up the accused during Identification Parade are close relatives of the deceased and the complainant; that the alleged eye-witnesses are merely chance witnesses as they are employees of police and at the relevant time they were on their duties at Qurban Line, Lahore, and their presence at the spot at the time of occurrence was not proved; that the ocular account is in contradiction with the medical evidence, whereas the ocular account was not proved through reliable and convincing evidence; that no description of the accused was given in the F.I.R.; that admittedly the heights of the accused were different, but the description of dummies was not given in the report of Identification Parade, therefore, the Identification Parade in this case was not conducted in accordance with law; that as the alleged eye-witnesses have never seen the occurrence, therefore, the Identification Parade was useless for the prosecution case; that during the Identification Parade if someone is not identified from his role then the Identification Parade has no value in the eye of law; that the story of the prosecution that the accused persons were arrested in another F.I.R.
Was fabricated one; that the accused Mushtaq alias Machhar was an employee of Pepsi Cola Agency belonging to the complainant and if the P.Ws. Witnessed the occurrence then why this accused was not named in the F.I.R.; that the prosecution failed to connect the accused persons with the commission of offence in this case; that all the recoveries including the recovery of van from the appellant Muhammad Mushtaq, were planted one; that the complainant of this case did not appear in the witness box, therefore, the contents of the F.I.R. Remained unproved; that the prosecution has miserably failed to prove its case against the accused/appellants and the reasoning given by the learned Trial Court is not in accordance with law as well as facts of this case.
8. On the other hand, the learned Additional Prosecutor General submits that all the accused collectively caused injuries to the deceased persons, so there was no question of mentioning the role of each accused in the Identification Parade; that there was no motive or enmity of the accused with the police as to falsely implicate them in this case; that in another case, the present accused persons were arrested and on their disclosure they were involved in this case; that the recoveries were effected from the accused and they were duly identified during the Identification Parade; that the occurrence is admitted by the defence, though with different version, and if both the versions are kept in juxtaposition, the prosecution version has been proved on the record and the defence version is neither true nor supported by any cogent evidence; that accused persons committed the murders during dacoity in a brutal manner, therefore, they do not deserve any sort of leniency.
9. Heard. Record perused.
10. No features of the accused persons were given in the F.I.R. Coupled with the fact that no roles were assigned to each and every accused as all the accused were arrested in case F.I.R.
No.420/2000 under sections 399/402, P.P.C. Registered at Police Station Saddar, Gujranwala and immediately by way of a telephonic call their custody was given to the police of Police Station Aimanabad District Gujranwala and thereafter the Identification Parade was conducted, which was not in accordance with the High Court Rules and orders. P.W.11 Mr. Ajmal Bukhari, learned Magistrate, who conducted the Identification Parade proceedings did not bother to check and narrate the features of the dummies and that if any comparison was made with the features of the accused. The identification of the accused by simply placing hands on their heads was not sufficient rather further their roles were to be disclosed as to which part of the occurrence has been played by each accused and how.
11. 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 all accused persons.
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.
' In a case where the accused were not known to the witnesses and have only a glimpse of them in dark night during the occurrence, the F.I.R. Gives vague description of culprits, the Identification Parade was held after the lapse of considerable period from the date of occurrence, the accused were alleged to have been shown to the witnesses prior to Identification Parade, the purpose of identification parade was not explained to the witnesses by the Magistrate at the time of Identification Parade; then the evidence of Identification Parade being weak type of evidence would have title evidentiary value and no reliance can be placed on such evidence.
' Moreover, if the description of the accused is not given in the F.I.R., then the Identification Parade has no value in the eye of law. Absence of such details in the F.I.R. Militates against bona fides of the prosecution and greatly marrs evidentiary value of the test identification parade. When description by appearance of accused was not given in the F.I.R. And specific B role was not attributed to him, identification of such accused in the Court for the first time, in absence of strong corroboratory evidence is not safe to be relied upon as by passage of time memory would fade and possibility that the accused might not have been mistakenly picked out was augmented.
' It is further held that if role of the accused was not described by witnesses at identification parade, such type of identification parade loses its value and cannot be relied upon and if the prosecution witnesses had seen the accused before identification parade, such piece of evidence of identification parade can also not be relied upon.
' Likewise, if the identification parade was held with the delay not satisfactorily explained and the identification parade was not conducted in accordance with the rule of mixing nine or ten strangers with one accused as laid down in the decisions of this Court, in that case the possibility of errors in identification cannot be ruled out and it will not be safe to base the conviction on the evidence of solitary eye-witnesses particularly when the witnesses could have only a fleeting glimpse of accused and no description of the assailant was given by the witness in his, statement to the police. Vague/unclear description of the accused given in the F.I.R. Would not be sufficient for the purpose of Identification Parade.
12. The P.Ws. In this case were interested and chance witnesses of the occurrence as two of them lived long away from the place of occurrence and their presence at the relevant time of occurrence is farfetched and normally they should not have been present as were shown to have been; the others were police officials posted at Qurban Line Lahore and their presence at the place of occurrence is also highly doubtful and no plausible explanation regarding their presence at the spot has come forward.
13. After having heard the learned counsel for the parties and going through the evidence on the record, we are of the considered opinion that case against the appeliants is doubtful in nature, so result of the above discussion is that both the appeals i.e. Criminal Appeal No.212-J of 2003 and Criminal Appeal No.579 of 2003 filed by the appellants namely Muhammad Shahid alias Shahdi son of Muhammad Akhtar, Muhammad Asif son of Rustam Ali, Muhammad Mushtaq alias Machhar son of Muhammad Hussain, Muhammad Irshad alias Yasha son of Muhammad Boota and Muhammad Ashraf son of Muhammad Akhtar are hereby accepted, their conviction and sentences recorded by the learned Trial Court through the impugned judgment are set aside; their death sentence is not confirmed and accordingly Murder Reference No.94 of 2004 is answered in the negative. The appellants shall be released forthwith, if not required in any other case.