' AZMATULLAH MALIK, J.---Nasir Ali and Raza Ali, appellants herein, were charged for having fired effective shots at Mastana deceased and Samiullah, complainant. The incident was reported in the Police Station Hangu and a case under sections 302/324/34, P.P.C., was registered against them, vide F.I.R. No,606 dated 20-9-2009.
2. After the arrest of the appellants and completion of investigation, they were sent to the Court of the learned Additional Sessions Judge-Hangu, for trial who on its conclusion convicted and sentenced them to undergo imprisonment for life each under section 302(b), P.P.C. And to pay an amount of Rs,2,00,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C., or in default to undergo 2 months' S.1. With the benefit of section 382-B of the Cr.P.C., vide judgment 15- 10-2010.
3. The convict has challenged his conviction and sentence by filing Criminal Appeal No,876 of 2010 while the complainant has preferred Criminal Revision No,192 of 2010 for the enhancement of sentence. Both the matters being an offshoot of the same judgment are being disposed of by this single judgment.
4. The main contention of the learned counsel for the appellant was that the complainant is not a truthful witness and thus casting doubt on the veracity of his statement. The deceased, learned counsel added, done to death by unknown accused during Shia Sunni clash was taken from the spot to the Hospital and the complainant along with other relatives of the deceased on getting knowledge of his murder, visited the Hospital and lodged the report after maneuvering a false story. The learned counsel next contended that the recovery of Kalashnikov has been foisted upon the appellants, when they were arrested on 23-9-2009 in a case registered against them under section 5, Explosive Substances Act read with section 13, A.O., vide F.I.R. No,608 dated 23-9-2009, Police Station Hangu and identification parade was conducted on 29-9-2009. The learned counsel next contended that the complainant contradicted his supplementary statement by furnishing second version that he named the appellants after the identification parade. The complainant was given ample opportunities to see the appellants but when he identified them as assailants in the parade without specifying their features and physical. Appearance in the F.I.R., it thus reduced the worth of the statement of the complainant and the charge against the appellants appears to be an offshoot of an afterthought. The learned counsel by elaborating his arguments contended that the medical evidence is also not in line with the site plan as the medical evidence shows that the deceased received entry wound from right side whereas the prosecution version shows that the appellants came from left side from a home murdered the deceased. The learned counsel by concluding his arguments submitted that contradictions in the statements of the P. Ws. As to the existence of the complainant furnishing ocular account of the case near the scene of occurrence would prove that the occurrence was not witnessed at least by him.
5. As against that, the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant contended that all the witnesses are consistent in their statements about the factum of recovery; that the medical evidence is in line with the site plan; that there is no significant contradictions in their statements; that the testimony furnished by each of them inspiring confidence were rightly relied upon by the learned trial Court.
6. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
7. The learned trial Court based the conviction of the appellants on the identification parade. And recovery of Kalashnikov from one the appellants. We would first examine the identification parade conducted by the Judicial Magistrate, P.W.9, Ahmad Ihsanullah Qureshi, on 29-9-2009 where he arranged other persons besides the appellants and asked the complainant to identify culprit. This exercise was repeated thrice and the same six persons were mixed with the appellants again and again for the purpose of identification. The perusal of the F.I.R. Would reveal that the complainant being an eye-witness while reporting the matter to the Police regarding the occurrence charged two unknown persons without giving their ages, complexion, features and height etc. But simply stated that he can identify them in the identification parade. His evidence could have been believed, if he had given some description howsoever slight of some of the culprits, his evidence as to subsequent identification might have carried some weight but as he gives no description whatsoever and stated that he saw two persons firing at the deceased and he could identify them later on, is of no consequence because it will be impossible for any person to identify the assailants who remained before the eyewitness for few seconds or minutes and so admittedly the occurrence took place on 20-9-2009 whereas the identification parade was held on 29-9-2009 with the delay of nine days. The witness in particular circumstances of the case, at his best had only fleeing glimpse at the assailants. Moreover, as against the settled principle, the number of other persons intermingled with the accused in identification parade was not in proportion of nine or ten to one as laid down in a series of judgments, no separate identification parade of each accused was held and no explanation has been given for not holding the separate identification parade which was not the proper course. Therefore, the entire exercise of conducting identification parade in a manner referred to above was a complete departure from the established practice and law as well. In this regard a famous judgment rendered in the case of Lal Pasand v. The State (PLD 1981 Supreme Court 142) can well be referred which was followed in the case of Bacha Zeb v. The State (2010 SCM R 1189) and another judgment reported in the case of Maula Dad alias Maulu and others v. Emperor (AIR 1925 Lahore 426), hence we are not impressed with the identification parade conducted by Ahmad Ihsanullah Qureshi, Judicial Magistrate (P.W.9) at the instance of P.W.5 complainant.
8. Now coming to the recovery of Kalashnikov from Nasir Ali, appellant, which was made a second circumstance for holding conviction by the learned trial Court besides identification parade. The perusal of the record would show that due to the raid conducted on 23-9-2009 by the Police Agency headed by the SDPO of the Head Quarter including the SHO, Police Station Hangu, without obtaining any warrant of search and without associating two independent persons of the locality to witness the recovery proceedings has already been nullified by the trial Court and acquitted the appellants in a case registered against them under section 5, Explosive Substances Act read with section 13, A.O., vide F.I.R. 698 dated 23-9-2009, Police Station Hangu, vide judgment dated 13-7-2011 disbelieving the entire story of the prosecution regarding the recovery. The mere positive report is, therefore, of no help to the prosecution when the very recovery has been disbelieved in a case referred to above. Another aspect of the recovery and its delay dispatch would also cast doubt on the veracity of the prosecution evidence as admittedly both the gun and empties were sent together to the Arm Expert on 26-9-2009 but regarding the delay no plausible explanation has been furnished by the Prosecution and in this respect reliance can be placed on the judgment rendered in the case of Jehangir v. Nazar Farid and another (2002 SCM R 1986). The charge against the appellants appears to be an offshoot of an afterthought. Even if, we ignore the entries made in the site plan by holding that it is not a substantive piece of evidence, yet without specifying the outward of the appellants in the F.I.R. Throw doubt in their identification; In the absence of any strong corroborative evidence, we do not think, it would be in accord with safe administration of justice to maintain the conviction and sentence of the appellant. Unconformable contradictions in the statements of the P. Ws. Further deepen the case against the Prosecution version. When this is the quality and quantity of the evidence. We do not think that the finding of conviction of the learned trial Court being based on proper appreciation of evidence.
9. For the reasons discussed above, we, therefore, allow Criminal Appeal No, 876 of 2010, set aside the conviction and sentence recorded by the learned trial Court and acquits the appellants of the charge. They be set free forthwith, if not required in any other case.
10. As the appeal against conviction has been allowed, Criminal Revision No, 192 of 2010 filed by the complainant for enhancement of sentence being without substance is dismissed for the same reasons.