' SH. NAJAM-UL-HASAN, J.---Waqar Ahmad, appellant (aged 16/17 years) was tried by a learned Additional Sessions Judge/ Juvenile Court at Wazirabad in case F.I.R. No, 4 dated 7-1-2004 under sections 302/460/394/34, P.P.C. Registered at Police Station City Wazirabad. At conclusion of trial the learned trial Court vide judgment dated 21-12-2005 convicted and sentenced the appellant as under:-- Under section 460/34, P.P.C. For committing lurking house-trespass along with co-accused: To suffer imprisonment for life.
Under section 302(b)/34, P.P.C. For sharing common intention with his co-accused to commit Qatl-e-amd of Muhammad Bilal: To suffer imprisonment for life and also to pay Rs,1,00,000 compensation under section 544-A, Cr.P.C. To legal heirs of the deceased and in default of payment of compensation to undergo six months' S.I.
Under section 394, P.P.C. For attempting to commit robbery: To suffer 10 years' R.I. With a fine of Rs,50,000 or in default of fine six months' S.I.
All the sentences were directed to run concurrently and benefit of the provisions of section 382- B, Cr.P.C. Was also granted to the appellant. Feeling aggrieved of above-noted conviction and sentences, Wagar Ahmad, appellant has filed this appeal through jail.
2. It may be mentioned at this very juncture that initially the F.I.R. Was registered against two unknown culprits. Later on the appellant along with his co-accused Nisar Ahmad (separately tried being major) were involved as the accused persons. The appellant being juvenile was tried by the learned Additional Sessions Judge, Wazirabad.
3. Brief facts of the prosecution case as narrated by Muhammad Latif, complainant (P .W.8) in the F.I.R. (Exh.PG/1) are that he was labourer by profession and was residing in the Paint factory of one Ahmad Raza along with his family. On 7-1-2004 he along with his family and a relative, namely, Muhammad Ashraf was sleeping in his house when at 3-45 am. His wife heard voice of footsteps outside the room and got him up. The complainant alleged that he was still about to get up when two persons, whose contours have been given in the F.I.R., entered the room and started pushing him. The complainant beseeched to take whatever they wanted but one of the culprits grappled with him. In the meantime eldest son of the complainant, namely, Muhammad Bilal aged 12/13 years picked up a stick and came towards the culprits upon which one of them took out a pistol and fired two shots at Bilal hitting at his chest who fell down and died at the spot. The marauders ran away by scaling over the wall, The complainant suspected that the culprits had come to steal their T.V.
4. Dr. Muhammad Jamal Naser, P.W.1 conducted post-mortem examination on the dead body of Muhammad Bilal on 7-1-2004 and found two fire arm entry wounds on right side of chest near right nipple making exit on the back of right lower chest. The doctor opined that these injuries which proved fatal were ante-mortem and were sufficient to cause death in ordinary course of life. Probable time that elapsed between injuries and death was fifteen minutes whereas between death and post mortem examination 12-15 houRs,
5. Muhammad Sh ahbaz, Su b-Inspector, P.W.11 conducted investigation of this case. Upon receiving information about the present occurrence on 7-1-2004 he reached the spot at 4-00 a.m. And recorded statement (Exh.PG) of Muhammad Latif, complainant and sent the same to the police station for registration of formal F.I.R. (Exh.PG/1). Thereafter he conducted formal investigation at the spot. On 25-1-2004 he arrested Waqar Ahmad, appellant and his co- accused Nisar Ahmad and sent them to jail. He got conducted identification parade in jail on 6- 2-2004. During investigation the appellant made disclosure and then led to the recovery of .30 bore pistol (P.4) which was taken into possession by the investigator. After completion of investigation he prepared the challan and sent the appellant to Court to face trial.
6. At the inception of trial charge was framed against the appellant to which he pleaded not guilty and claimed trial. At trial the prosecution produced as many as 12 witnesses to prove charge against the appellant out of which Dr. Jamal Naser P.W.1 proved post mortem examination, Muhammad Latif and Mst. Nasim Bibi P.Ws. 8 and 9 produced eyewitness account, Dr. Muhammad Sa fdar, Judicial Magistrate provided proved proceedings of identification parade and Muhammad Sh ahbaz, Su b-Inspector proved investigation. Rest of the witnesses were formal in nature.
7. At the close of prosecution evidence, the appellant was examined under section 342, Cr.P.C.
He dismissed each and every piece of prosecution evidence and attributed his false involvement to mala fide of the police. At the end of trial, the appellant was convicted and sentenced as mentioned above.
8. Learned counsel for the appellant contends that in this case the occurrence took place at mid of night i,e, at 3-45 a.m. And the story of prosecution that the family was awaken at that time and were watching T.V. Is highly improbable. It is further contended that in the F.I.R. No one was mentioned as culprit rather it was stated that both the accused were unknown and one of them was wearing shalwar-qameez whereas the other was wearing paints-shirt and that the culprit wearing paints-shirt fired shots at son of the complainant who later on died. It is contended that later on the appellant was arrested and was put to identification parade where the alleged eye-witnesses identified both the accused only by placing hands on their head and no role was ascribed to each of the accused whereas it was case of the prosecution that only one culprit had fired at the deceased killing him at the spot so it is not clear from the prosecution evidence that as to who was responsible for commission of murder and thus the whole identification parade proceedings are illegal and of no consequence. Learned counsel has also pointed out that while appearing in the Court Muhammad Latif, P.W.8 who was father of the deceased specifically mentioned that no article of the house was taken away by the accused, thus offence under section 394, P.P.C. Is not constituted. Learned counsel further contended that the only evidence against the appellant in this case is identification parade and the learned trial Court convicted the appellant on the basis of said piece of evidence. By referring cross- examination to Abdul Latif, P.W.8/complainant learned counsel Su bmitted that the said witness had admitted that the appellant had snatched a pigeon from the deceased a month prior to the occurrence. Learned counsel laid much emphasis on the point that said admission of the witness showed that the appellant was previously known to the eye-witnesses and thus the identification parade loses its intrinsic value. According to the learned counsel the witnesses knew the appellant prior to the occurrence and in the F.I.R. It was stated that the accused was unknown which shows that the occurrence had been committed by some other persons and chances of substitution of the appellant with real culprits cannot be ruled out.
Learned counsel states that in such circumstances the prosecution cannot be said to have proved the case against the appellant. Learned counsel further contended that connecting the appellant with the present occurrence remains a mystery as there is nothing on record to show as to how the appellant was arrested and why he was put to identification parade as there was no supplementary statement of the complainant raising suspicion against the appellant nor anything available on record to indicate that the appellant was arrested in some other case and during investigation of the said case he admitted present occurrence as a result of which identification parade was conducted. Learned counsel further contended that keeping in view that no role was assigned to the appellant in the identification parade, it is not clear that the witness had identified the accused of having come to commit robbery and murder or that they identified for some other reason. Learned counsel submits that at the time of identification parade the appellant took a specific stance that his photographs had been shown to the witnesses. It was also contended that recovery of the pistol from the appellant did not provide corroboratory evidence as no crime empty was taken into possession from the place of occurrence, therefore, recovery of pistol at pointation of the appellant was of no value. Learned counsel further contended that nothing was taken away/stolen as such involvement of the appellant under section 394, P.P.C. Is not proved at all. Learned counsel contended that in this case the prosecution has miserably failed to connect the appellant with the commission of crime and as such he is entitled to be acquitted.
9. On the other hand learned Law Officer argued that two independent witnesses have appeared in this case; one was the father and the other was mother of the deceased; that the occurrence took place inside the house of the complainant and as such presence of both these eye-witnesses at the place of occurrence at relevant time was more than natural; that in the F.I.R. No one was named as accused person and if there was some enmity between the complainant and the appellant or he would have been previously known to the complainant he would have been specifically nominated in the F.I.R. And absence of such fact strengthens the case of the prosecution that the complainant was not inimical towards the appellant and had no reason to falsely involve him in the murder case of his son. Learned Law Officer further contended that both the accused entered the house at night time as such they were rightly convicted and sentenced under section 460, P.P.C. He also argued that both the appellant and his co-accused were equally liable when they have joined together to commit an offence and it hardly matter as to who fired at the deceased; that the witnesses had correctly identified the appellant in the identification parade having committed the offence; that the appellant had already enjoyed benefit of juvenility and is not entitled to any exception. Learned Law Officer also argued that identification parade had been conducted in legal form; that both the eyewitnesses were rustic illiterate people and did not know perplexities of law and had correctly identified the appellant and his co-accused in the identification parade and as such the same cannot be said to be illegal. Learned Law Officer also argued that since both the accused were identified as having committed the offence as such both are equally liable and irregularity of mentioning specific role of each accused does not spoil the case of the prosecution at all. On court question, however, the learned Law Officer could not satisfy us as to how it came to light that the appellant was involved in this case in absence of any supplementary statement of the complainant or even disclosure on the part of the appellant during investigation of any other case. Learned Law Officer lastly contended that co-convict of the appellant has entered into a compromise with the complainant party which fact shows that he has admitted his guilt and this is very strong circumstance to connect the appellant with the commission of crime.
10. We have heard the learned counsel for parties and have also gone through the record.
11. Occurrence in this case took place at about 3-45 a.m. In the house of the complainant located inside the paint factory in which Muhammad Bilal son of the complainant received fire arm injuries at the hands of some intruders and breathed his last at the spot. Initially F.I.R. Was got registered by the complainant against some unknown culprits. However, their contours were described in the F.I.R.- according to which both the culprits were young persons of middle height with whitish complexion. In the F.I.R. He mentioned that he was sleeping and his wife heard voice of some footsteps outside and she got him up when the culprits entered the house.
At trial the complainant improved his version by narrating that at the time of occurrence whole family including him was watching a movie on T.V. When they heard some noise and he went to open the door. The complainant further deposed that Waqar Ahmad, appellant along with his co-accused Nisar Ahmad both armed with pistols forcibly entered the house and demanded money and they also tried to take away C.D. Player and T.V. Upon which his son Bilal came forward to intervene. In the cross-examination the complainant tried to cover up his stance by stating that they watched a movie on the night of occurrence till about 12.00 mid-night and thereafter they all slept. He further deposed at trial that co-accused of the appellant, namely, Nisar Ahmad had fired two shots at son of the complainant who died at the spot. Although in the F.I.R. The complainant had stated that the culprits wanted to take away T.V. Of the complainant but at trial he disclosed that nothing had been taken away by the culprits.
12. In this case the only evidence available with the prosecution against the appellant is that he was identified by the eye-witnesses during identification parade. There is no other iota of evidence available on record to connect the appellant with the commission of crime i,e, no article was taken away from the house of the complainant by the accused persons; no shot was allegedly fired by the appellant as such recovery of pistol at his instance does not lead to infer that the pistol recovered from the appellant was the same which had been taken by the appellant at the time of occurrence. It was claimed that the appellant along with his co- accused was put to identification parade and that the eye-witnesses had correctly picked them up as having committed the occurrence. We have minutely gone through proceedings of the identification parade which were got conducted under supervision of Dr. Muhammad Sa fdar, Judicial Magistrate (P.W.10) on 6-2-2004 in the jail premises. It is the prosecution case that Mst. Nasreen Bibi (P.W.9) was asked to identify the accused persons and she identified the appellant and his co-accused by putting her hands on their heads. It is nowhere mentioned in the identification parade proceedings that she assigned some specific role to each of the accused. Likewise Muhammad Latif P.W.8 also identified the appellant and the co-accused by putting his hand on their heads. He also did not specifically ascribe role of each accused. It has been held by the Hon'ble Su preme Court in SH AFQAT MAHMOOD AND OTHERS v. THE STATE (2011 SCM R 537) that if the identification parade was not held according to the Rules(sic.). The accused took the stance that prosecution witnesses had already seen them before the identification parade and identification parade was not held separately in respect of each accused but was held jointly, witnesses had not described the role of each accused played by him in the occurrence the same were inherent defect making the identification parade of no value and unreliable. Delay of seven days in holding the identification parade after the arrest of accused had made the same doubtful. In the present case identification parade of both the accused was held jointly. The eye-witnesses had allegedly identified the accused in the identification parade but they did not describe the role of each accused played by him in the occurrence. It has also come on record that the appellant was arrested on 25-1-2006 and the identification parade was held on 2-6-2006. Although Muhammad Latif, complainant and Mst.
Nasrin Bibi P.Ws. 8 and 9 categorically deposed at trial that they never visited the police station after the occurrence, yet it was claim of the appellant that his photographs hadbeen shown to the eye-witnesses before identification parade. Thus keeping in view the dictum laid down by the apex Court in the above quoted precedent we find that the identification parade was not conducted in accordance with the rules as such the same has lost its evidentiary C value and we discard the same from consideration. In this regard we are also fortified by SA BIR ALI ALIAS FAUJI v. THE STATE (2011 SCM R 563).
13. While appearing at trial Abdul Latif P.W.8/complainant disclosed that Nisar Ahmad co- accused of the appellant fired shots at the deceased causing his death. He was corroborated by Mst. Nasrin Bibi, P.W.9. This claim of the eye-witnesses show that no active role towards death of the deceased was ascribed to the appellant. One thing which pinches our minds and for which the learned Law Officer could not give satisfactory answer is that it has not come on record as to why the appellant was arrested in absence of any supplementary statement of the complainant casting doubt of appellant's involvement in the case. There is also no evidence that the appellant had confessed the guilt before anyone about his involvement. It has also come on record through evidence of the Investigating Officer that the appellant was not involved in any other criminal case. This statement of the Investigating Officer also negates any chance that the appellant was arrested in some other case and he had disclosed commission of the present occurrence during investigation of some other case. Thus the contention of the learned counsel for the appellant is weighty that how and why the appellant was arrested and put to the test of identification parade is known to none and his involvement in this case remains a mystery. There is also another circumstance which got attracted our attention. The complainant claimed during cross-examination that the appellant had snatched a pigeon from the deceased a month prior to the present occurrence. This claim shows that the complainant impliedly admitted that the appellant was known to him prior to the present occurrence. This being so, if the appellant was already known to the complainant and, if he had committed the offence then why did he not mention name of the appellant in the F.I.R. All these circumstances when combined together lead us to infer that the prosecution could not prove its case against the appellant beyond reasonable doubt. Needless to mention here that benefit of doubt always goes in favour of the accused. The contention of the learned Law Officer that co-convict of the appellant has entered into a compromise with the complainant party which means admission of guilt on his part and this is very strong circumstance to infer that the appellant was also involved in the case, is not legally tenable.
The co-accused of the appellant was separately tried by some other court. Evidence of witnesses was separately recorded, and he was convicted on the basis of said evidence. We are afraid evidence of one case cannot be read nor appreciated in any other case nor can be relied while deciding some other case. As such we cannot convict the appellant while relying on the evidence recorded in the case of his co-accused.
14 The net result of the above discussions and observations is that the prosecution has failed to prove its case against the appellant. Consequently, this appeal is accepted and the appellant is acquitted of the charge. He is behind the bars and be set at liberty forthwith if not required to be detained in any other case.