' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No,271-J of 2007, filed by Naeem alias Deemi appellant, and Murder Reference No,445 of 2007 (The State v.
Naeem alias Deemi), sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Naeem alias Deemi appellant, as both these matters have arisen out of the same judgment dated 20-6-2007, passed by the learned Sessions Judge, Sialkot. Naeem alias Deemi along with his co-accused Yasir, was tried in case F.I.R. No,251, dated 14-8-2004, registered at Police Station, Rangpura, District Sialkot, in respect of offences under sections 302 and 34 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 20-6-2007, has convicted and sentenced the appellant and his co-accused Yasir as under:-- NAEEM ALIAS DEEMI AND YASIR.
Under section 302(b)/34 of P.P.C. To death each for committing Qatl-e-amd of Muhammad Saleem (deceased). They were also directed to pay Rs,1,00,000 each as compensation to the legal heirs of deceased as contemplated under section 544-A of Cr.P.C., and in default thereof they shall further undergo six months' SI each.
' It is pertinent to mention here that the co-accused of the appellant namely, Yasir, was acquitted by this Court on the basis of compromise, vide judgment dated 29-8-2011, passed in Criminal Appeal No,272-J of 2007.
2. Brief facts of the case as given by the complainant Ijaz Ahmad in his complaint Exh.PF on the basis of which formal F.I.R. Exh.PF/1 was chalked out are that on 14-8-2004, at 4-45 a.m., he along with his father Muhammad Saleem (deceased) and Nazir Ahmad (P.W.12) was going from his village Dallowali towards their hotel located near Aik Bridge, situated in village Naikupura.
Muhammad Saleem (deceased) was on one bicycle, whereas, the complainant Ijaz Ahmad was paddling the other bicycle and Nazir Ahmad P.W.12 was on its rear seat, and when they reached at Jamoo road, near the factory of Mahr Arshad, the appellant Naeem alias Deemi and Yasir co- accused (since acquitted) signalled Muhammad Saleem (deceased) to stop, but he kept on paddling his bicycle, whereupon, the appellant Naeem alias Deemi made a fire shot with his pistol, which landed on the back of the chest of Muhammad Saleem (deceased), who fell down. The complainant Ijaz Ahmad and Nazir Ahmad P.W.12 raised hue and cry. In the meanwhile, a wagon carrying passengers came at the spot, upon which the appellant Naeem alias Deemi while armed with pistol and Yasir co-accused while armed with dagger disappeared in a side lane.
' The appellant Naeem alias Deemi and his co-accused Yasir (since acquitted) were not named in the F.I.R. Exh.PF/1. The appellant was arrested in this case by the police and Imdad Hussain ASI P.W.15 on 14-4-2005 moved an application to the Judicial Magistrate for identification parade of the appellant and his co-accused. The identification parade of the appellant and his co-accused Yasir (since acquitted) was held in District Jail, Sialkot on 20-4-2005 under the supervision of Shoaib Anwar Qureshi (P.W.16) the learned Judicial Magistrate, Sialkot during which the appellant and his co-accused were identified by the complainant Ijaz Ahmad and Nazir Ahmad P.W.12.
3. On 15-9-2005, the appellant during investigation of the case made a disclosure and allegedly led to the recovery of pistol P.4 along with cartridges P.5/1-2, which were allegedly taken into possession by Imdad Hussain ASI vide recovery memo Exh.PD.
' After completion of investigation, the challan was prepared and submitted before the Court. The learned trial Court, after observing all legal formalities, as envisaged under the Code of Criminal Procedure, 1898, framed a charge against the appellant Naeem alias Deemi and his co-accused namely Yasir, on 14-2-2006, under section, 302 read with sections 34 of P.P.C., to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced sixteen prosecution witnesses during the trial.
' The complainant Ijaz Ahmad did not appear before the trial Court to substantiate the prosecution version; anyhow, Nazir Ahmad P.W.12 has furnished the ocular account of the occurrence.
' The medical evidence was furnished by Dr. Fayyaz Ahmad P.W.5 and Dr. Jahangir Hussain P.W.6.
' Muhammad Akram LHC-1440 P.W.7 is a recovery witness of pistol P.4 along with two live bullets P.5/1-2, which were allegedly recovered from the possession of the appellant.
' Muhammad Asif Hanif Inspector P.W.13, Liaqat Ali SI P.W.14, and Imdad Hussain ASI P.W.15 were the Investigating Officers of this case, whereas, Mr. Shoaib Anwar Qureshi, Judicial Magistrate P.W.16 conducted the identification parade in this case.
' Ulfat Ali HC-1635 P.W.1, Mobashir Ahmad C-1165 P.W.2, Irshad Ahmad C-1322 P.W.3, Muhammad Riaz ASI P.W.4, Mirza Tahir Tasleem Draftsman P.W.8, Ghulam Murtaza HC-1456 P.W.9, Mukhtar Ahmad P.W.10, and Muhammad Khalid SI P.W.11, are the formal witnesses in this case.
' The prosecution also produced documentary evidence in the shape of memo of possession of blood-stained clothes Exh.PA, copy of medico-legal report Exh.PB and Exh.PB/ 1, copy of postmortem report etc. Exh.PC and Exh.PC/1, memo of possession of pistol .30 bore etc. Exh.PD, copy of site plan Exh.PE, statement of Ejaz Ahmad Exh.PF, F.I.R. Exh.PF/1, memo of possessin of blood- stained cotton Exh.PG, copy of Rapt No,9 Rooznamcha dated 14-8-2004 Exh.PH, copy of death report Exh.PJ, copy of application for post mortem Exh. PK, copy of site plan recovery of blood- stained cotton Exh.PL, copy of application for identification parade Exh. PM, copy of report of identification parade Exh.PN, report of Chemical Examiner Exh.PO, report of Serologist Exh.PP and the report of FSL Ex.PQ.
' The statement of appellant Naeem alias Deemi, under section 342, Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question "Why this case against you and why the P.Ws. Have deposed against you"; the appellant, replied as under:-- "I have been falsely implicated in this case. I do not know who had committed the murder of Muhammad Saleem. I wa.f involved in this case falsely with ulterior motive on the part of the complainant only due to suspicion. Otherwise I have no enmity, grudge or grouse against the deceased nor there was reason any for me to kill the deceased and I have been made an escape goat. All the P. Ws. Who have deposed against me are interested witnesses."
' The appellants neither opted to make his statement under section 340(2) of Cr.P.C. Nor he produced evidence in his defence.
' The learned trial Court vide its judgment dated 20-6-2007, found the appellant Naeem alias Deemi guilty, convicted and sentenced him as mentioned and detailed above.
5. The learned counsel for the appellant, in support of this appeal, contends that the appellant is not named in the F.I.R. Exh.PF/1, and the appellant along with his co-accused Yasir (since acquitted) was implicated later on, whereas, the complainant of the case namely, Ijaz Ahmad did not appear before the learned trial Court; that the presence of the complainant and the other witness namely Nazir Ahmad. P. W.12 at the time of occurrence, is belied from the fact that they claimed that they took the deceased Muhammad Saleem in an injured condition in a rickshaw to Civil Hospital, whereas, their presence has not been shown in the deceased's MLR Exh.PB/1, and Dr. Fayyaz Ahmad P.W.5 has also admitted in his cross-examination that no relative of the deceased was accompanying him at the time of his examination; that the evidence of Nazir Ahmad P.W.12 is of no help to the prosecution, because he is admittedly resident of village Bharth, whereas, the deceased Muhammad Saleem was resident of village Dallowali and the occurrence took place at Jamoo road near the factory of one Mahr Arshad; that Nazir Ahmad P.W.12, while appearing before the learned trial Court has stated in his cross-examination that during the days of occurrence he was living with his father-in-law Muhammad Saleem (deceased), but while making his statement before the police under section 161 of Cr.P.C., his residence has been shown as 'village Bharth', which is clear from Exh.DA. Further contends that though the identification parade was conducted under the supervision of Mr. Shoaib Anwar Qureshi, Judicial Magistrate P.W.16, but admittedly at the time of the said identification, the witnesses have not mentioned the role allegedly played by the accused during the occurrence; that Imdad Hussain ASI P,W.15, who submitted an application for the identification parade has admitted in his cross-examination that the investigation of the case was entrusted to him on 24-3-2005, and before that the complainant got recorded his supplementary statement in which he nominated the appellant and his co-accused as an accused of this case, therefore, the identification parade carries no value in the eyes of law; that the identification parade was conducted in violation of the High Court Rules and Orders. Further contends that in the F.I.R. Exh.PF/1, the ages of the appellant and his co-accused have been shown as 23/24 years, whereas, the learned trial Court while framing a charge against the appellant and his acquitted co-accused has mentioned the age of the appellant as 35 years; that the recovery of pistol P4, at the instance of appellant Naeem alias Deemi, is inconsequential, as no empty was recovered from the place of occurrence, and the report of FSL Exh.PQ is only to the effect that pistol P4 was in working order; therefore, this appeal may be accepted, and the appellant may be acquitted from the charges levelled against him.
6. On the other hand, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes this appeal on the grounds that there is nothing on the record, which could even remotely suggest that there was any enmity, or malice on the part of the complainant or the other witness for false implication of the appellant in this case; that had there been any malice or against the appellant, the complainant could have easily named him in the F.I.R. Exh.PF/1; that the appellant has correctly been identified in the identification parade conducted under the supervision of Mr. Shoaib .Anwar Qureshi, Judicial Magistrate P.W.16, and the proceedings were conducted by the learned Judicial Magistrate in accordance with the High Court Rules and Orders; that Imdad Hussain ASI P.W.15 has given undue concession to the appellant and no such application, as stated by this witness in his cross-examination was submitted by the complainant and moreover Nazir Ahmad P.W.12 did not say anything regarding this fact; that the application for conducting identification parade was moved by P.W.15 on 14-4-2005, and soon thereafter the identification parade was conducted on 20-4-2005 under the supervision of Mr. Shoaib Anwar Qureshi, Judicial Magistrate P.W.16; that the ocular account has fully been supported by the medical evidence, as it is the case of Nazir Ahmad P.W.12 that the appellant Naeem alias Deemi was armed with a pistol and fired at the deceased Muhammad Saleem, which hit him on the back of the chest of Muhammad Saleem (deceased), and Dr. Jehangir Hussain P.W.6, who conducted the postmortem examination of the deceased also noted the injury on the back of the chest of Muhammad Saleem (deceased); that the prosecution proved its case against the appellant beyond the shadow of any doubt, therefore, this appeal be dismissed, and Murder Reference may be answered in the affirmative. The learned counsel for the complainant has placed reliance on ZULFIQAR ALI v. THE STATE (2008 SCM R 796).
7. We have heard the arguments of the learned counsel for the appellant, and the learned counsel for the complainant, as well as, learned Deputy Prosecutor-General, and have also gone through the evidence available on the record, with their able assistance.
8. The occurrence in this case as per `Fard Biyan' Exh.PF on the basis of which formal F.I.R. Exh.PF/1 was registered took place on 14-8-2004, at 4-45 a.m., near the factory of one Mahr Arshad situated at Jammo road within the area of Police Station, Rangpura, District Sialkot. The matter was reported to the police on the same day by the complainant Ijaz Ahmad, through Fard Biyan Exh.PF, at Civil Hospital, Sialkot, whereas, the formal F.I.R. Exh.PF/1 was also registered on the same day i.e, 14-8- 2004, at 6-30 a.m.
' Nazir Ahmad P.W.12 has been produced by the prosecution in order to prove the ocular account of the incident. According to his statement, on 14-8-2004, at about 4-40 a.m., he along with his father-in-law Muhammad Saleem (deceased) and brother-in-law Ijaz Ahmad complainant was on the way from village Dallowali towards their hotel (tea stall) located near Aik Bridge.
Muhammad Saleem (deceased) was on one bicycle, whereas, the complainant Ijaz Ahmad was paddling the other bicycle and Nazir Ahmad P.W.12 was on the rear seat, and when they reached near the factory of Mahr Arshad, the appellant Naeem alias Deemi and Yasir co-accused (since acquitted) signalled Muhammad Saleem (deceased) to stop, but he kept on paddling his bicycle, whereupon, the appellant Naeem alias Deemi made a fire shot with his pistol, which landed on the back of the chest of Muhammad Saleem (deceased), who fell down. The complainant Ijaz Ahmad and Nazir Ahmad P.W.12 raised hue and cry and a wagon carrying passengers came to the spot, upon which the appellant Naeem alias Deemi while armed with pistol and Yasir co-accused (since acquitted) while armed with dagger disappeared in a side lane.
9. The complainant Ijaz Ahmad did not appear before the learned trial Court, as he had settled abroad and this fact is clear from the statement of the learned DPP for the State dated 27-7-2006 which is available at page No, 38 of the paper-book, according to which, Ijaz Ahmad complainant was given up having left the country. Nazir Ahmad P.W.12 is the sole eye-witness of the occurrence, who appeared before the learned trial Court in order to prove the ocular account of the prosecution. No doubt, a conviction can be maintained on the basis of evidence of a sole witness, provided the same is confidence-inspiring, reliable and of unimpeachable character. Nazir 'Ahmad P.W.12 is closely related to the complainant party as he is son-in-law of Muhammad Saleem deceased. He is riot resident of the area, where the occurrence took place. Muhammad Saleem (deceased) was done to death near the factory of one Mahr Arshad, situated at Jammu road leading from village Dallowali towards village Naykapura, where the hotel (tea stall) of Mohammad Saleem (deceased) was situated near Aik Bridge, within the area of Police Station, Rangpura, District Sialkot, whereas, Nazir Ahmad P.W.12 is resident of village Bharth, Tehsil and District, Sialkot.
He could not justify his presence at the spot, at the time of occurrence. During his cross- examination, he has stated that during the days of occurrence, he had sold out his house at village Bharth to settle a loan and was living with his father-in-law Muhammad Saleem (deceased).
Anyhow, he admitted that in his statement under section 161 of Cr.P.C. Exh.DA, he had stated that he was resident of village Bharth. He has further stated that four months after the occurrence, he had shifted back to village Bharth and started residing there. The perusal of the evidence of Nazir Ahmad P.W.12 shows that the said witness is resident of village Bharat, whereas, the deceased and the complainant Ijaz Ahmad were resident of village Dallo-Wali and on the day of occurrence they were going from village Daloo-Wali to village Naiku-Pura and on their way' the occurrence took place near the factory of one Mahr Arshad situated at Jamu Road. Nazir Ahmad (P.W.12) is neither resident of 'village Daloo Wali nor of village Naikhu Pura and he made lame excuses in order to justify his presence at the spot on the day of. Occurrence. This witness has further stated that he and the complainant Ijaz Ahmad shifted the deceased Muhammad Saleem in an injured condition to the Civil Hospital, but the name of this witness or the complainant Ijaz Ahmad has not been mentioned in the column of "name and relative or friend" of the MLR Exh.PB of the deceased Muhammad Saleem, and the said column was left blank. Dr. Fayyaz Ahmad P.W.5, who medically examine the deceased Muhammad Saleem on the day of occurrence has categorically stated during his cross-examination that the patient was not accompanied by a relative or friend, therefore, entry to that effect in MLR Exh.PB was left blank. The above-mentioned prosecution witness was not declared hostile by the prosecution. So the presence of the sole eyewitness, namely, Nazir Ahmad P. W.12 at the spot, on the fateful day has not been established, convincingly.
10. It has been argued on behalf of the prosecution that the prosecution. Witness Nazir Ahmad.
P.W.12 has no enmity with the appellant to falsely implicate him in this case, therefore, his evidence may be relied upon.
Although Nazir Ahmad P.W.12 has no enmity with the appellant, but absence of enmity of a prosecution witness with the accused does not mean that whatever he has stated, be taken as gospel truth and apostle reality. This Court has to see as to whether the statement of the prosecution witness is confidence-inspiring and trustworthy to the extent of role assigned to the appellant. Though the prosecution witness has no enmity with the appellant, but his presence, at the spot at the time of occurrence is not free from doubt and his statement is not confidence- inspiring, therefore, mere absence of his enmity with the accused/appellant does not mean that we should straightaway maintain the death sentence of the appellant, without looking into the veracity of the evidence of such witness. The Hon'ble Supreme Court of Pakistan in its number of judgments has held that mere this fact that a witness is an independent witness does not necessarily prove that he is a witness of truth and intrinsic worth of the statement of any witness is the test of his veracity. Reference in this context maybe made to the case of Muhammad Pervez and others v. The State and others (2007 SCM R 670). The above-mentioned view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Farman Ahmed v. Muhammad Inayat and others (2007 SCM R 1825).
11. It is pertinent to mention here that the accused was not nominated in the F.I.R. Exh.PF/1, and later on, the appellant Naeem alias Deemi and Yasir co-accused (since acquitted) were implicated in this case. The description or any specific identification mark of the accused was also not mentioned in the F.I.R. Exh.PF/1, and it was simply stated that two boys of 23/24 years of ages and of slim body, were the accused who committed the offence. The specific description like, colour of skin, scar marks, mole, colour of eyes etc., was not given in the F.I.R. Exh.PF/1. The prosecution has placed on the record a copy of the report of identification report Exh.PN, which was conducted under the supervision of Mr. Shoaib Anwar Qureshi, Judicial Magistrate P. W.16. It is manifest from the said report that the roles of the accused during the occurrence were not described by the witness at the time of identification parade, which is always considered an inherent defect in the prosecution evidence. The identification parade of Naeem alias Deemi and Yasir co-accused (since acquitted) was jointly held. Both the accused were made to sit in one and the same lane.
The appellant Naeem alias Deemi was sitting at serial No,16, whereas, Yasir co-accused (since acquitted) was also sitting in the same lane at serial No,6. Mr. Shoaib Anwar Qureshi, Judicial Magistrate P.W.16 has admitted during his cross-examination that the witnesses did not mention the role allegedly played by the accused at the time of the commission of the offence, during identification proceedings.
' According to the statement of Imdad Hussain ASI P.W,15, on 14-4-2005, he moved an application to the Ilaqa Magistrate for the identification parade of the appellant Naeem alias Deemi and Yasir co-accused (since acquitted). The English version of the statement made by Imdad Hussain P.W.15 during his cross-examination was not clear, therefore, we consulted the Urdu version of the said witness, wherein he has admitted during his cross-examination that the accused were already named by the complainant in his supplementary statement prior to holding of their identification parade. We are of the view that under the circumstances, holding of the identification parade of the said accused was meaningless.
' The Hon'ble Supreme Court of Pakistan in the case of Shafqat Mehmood and others v. The State (2011 SCM R 537), at pages 544 and 545, has discussed the value of the identification parade, wherein no role of the accused was described by the witnesses at the time of their identification, in the following terms:-- "It is pertinent to mention here that contents of the F.I.R. Reveal that witnesses had seen the accused for the first time. In such situation identification parade becomes essential which is to be conducted strictly in accordance with law after completing legal requirements. It is also settled principle of law that if accused were not named in the F.I.R. Identification parade becomes necessary. It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value, and cannot be relied upon. As mentioned above, the aforesaid witnesses did not mention name and role of the accused in their statements recorded by the Magistrate after identification parade. It is an admitted fact that appellants had taken objection at the time of identification parade that they had already been shown to the witnesses but this objection was not taken into consideration by the courts below. In such circumstances identification parade becomes doubtful and cannot be relied upon. It is an admitted fact that in terms of contents of F.I.R. Witnesses did not know the appellants before the occurrence. Identification parade was not held in accordance with law, therefore, identification in court by the witnesses is also of no value. Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons".
' Similarly, the Hon'ble Supreme Court of Pakistan in the cases of Bacha Zeb v. The State (2010 SCM R 1189) and Sabir Ali alias Fauji v. The State (2011 SCM R 563) discarded the prosecution evidence regarding the identification parade, wherein no role of the accused was described by the prosecution witnesses at the time of their identification.
In the light of above stated circumstances, the prosecution evidence regarding the identification of the appellant does not inspire confidence.
12. So far as the alleged recovery of pistol P.4 on the pointation of the appellant Naeem alias Deemi is concerned, we have noted that no empty was recovered from the place of occurrence, and the report of FSL Exh.PQ is only to the extent that the pistol P4 was in working condition, thus, the alleged recovery of pistol P4 from the possession of the appellant Naeem alias Deemi is of no avail to the prosecution.
13. In view of the above discussion, we are of the considered view that evidence of the sole eye- witness is not confidence inspiring and the prosecution case qua involvement of the appellant in the case is highly doubtful. Similarly, the prosecution evidence about identification of the appellant is also riot reliable, whereas, the alleged recovery of pistol P4 from the possession of the appellant does not connect him with the alleged crime and the same is inconsequential; therefore, we hold that the prosecution failed to prove its case against the appellant beyond the shadow of doubt.
14. As we have already disbelieved the evidence of the prosecution against the appellant, therefore, the judgment cited by the learned counsel for the complainant reported as ZULFIQAR ALI v. THE STATE (2008 SCM R 796) on the point that weakness or absence of motive is no ground for lesser punishment, has become irrelevant.
15. In the light of above discussion, we hold that the prosecution has failed to prove its case against the appellant Naeem alias Deemi beyond the shadow of doubt, therefore, by extending him the benefit of doubt, we ACCEPT this appeal (Criminal Appeal No,271-J of 2007), filed by appellant Naeem alias Deemi, and set aside his conviction and sentence recorded by the learned trial Court against him. The appellant Naeem alias Deemi is in jail. He shall be released forthwith if not required in any other case.
' Death sentence awarded to the appellant Naeem alias Deemi is not CONFIRMED and Murder Reference is answered in the NEGATIVE.