Asjad Javaid Ghural, J. Through this appeal, Niaz alias Niazi alias Jumma, the appellant has challenged the vires of judgment dated 06.03.2013 passed by the learned Judge Anti-T errorism Court, Dera Ghazi Khan in case FIR No.65 dated 08.02.201 1, in respect of offences under Sections 302/186/34 PPC read with Section 20-I, 20-J & 7 of The Anti-T errorism Act, 1997, registered at Police Station City Dera Ghazi Khan whereby he was convicted and sentenced as under:- "Under Section 302(b)/34 PPC Imprisonment for life and to pay the compensation of Rs.200,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased and in default whereof to undergo simple imprisonment of six months. Under Section 7(a) of The Anti-T errorism Act, 1997 Imprisonment for life and to pay the fine of Rs.200,000/- in default whereof to undergo imprisonment for six months.
Under Section 186/34 PPC Rigorous imprisonment for three months and fine of Rs.5000/- in default whereof to undergo imprisonment for three months.
All the aforesaid sentences were ordered to run concurrently . Benefit of Section 382-B Cr.P.C. was also extended to the appellant.
2. Brief facts of the case as narrated in FIR (Ex.PA) registered on the complaint Ex.PA/1 of Sajjad Hussain Sindhu, SI (PW-7) are that on 08.02.2011 at 05:00 p.m. he along with Ayaz Ahmad (deceased) and Ishfaq Hussain (PW-8), the constables, was going on motorcycles. When they reached at the corner of street at Shehzada Sultan Town, constables Ayaz Ahmad and Ishfaq Hussain, asked two persons standing near 125-motorcycle bearing No.1314/DGL(10) black colour, on suspicion about their identity. One of the said persons told his name as Rafique son of Murad caste Khalol resident of Chah Dosey Wala Mauza Chorhatta Kot Haibat. The police constables asked the other person about his identity, who asked them who are they and how they could ask their names. The constables told him that they were police officials whereupon, the said unknown person took out his pistol and made a fire shot, which hit Ayaz Ahmad on his chest. In the meanwhile, Rafique also took out his pistol and made fire shot hitting Ayaz Ahmad left side of his chest. The unknown person made another fire shot which missed touching the right thigh of Ayaz Ahmad. Rafique also made another fire shot, which hit on the left shin of Ayaz. Rafique along with unknown accused succeeded to make their escape good. The complainant attended Ayaz Ahmed, who had succumbed to the fire arm injuries.
3. After submission of challan, prosecution produced 12-witnesses to substantiate the charge against the appellant and his co-accused Zafar Iqbal and Muhammad Fazil (since acquitted) to which they did not plead guilty and claimed to be tried.
4. Dr. Mansoor Ahmad (PW-4) conducted post mortem examination on the dead body of Ayaz Ahmad constable and observed following injuries:- Injury No.1 Lacerated wound 2.5 x 2.5 cm circular in shape in middle of chest anteriorly in middle sternum, with inverted margins, going deep into chest.
Injury No.2 Lacerated wound 0.5 x 0.5 inches with everted margins below two inches to the right scapular region, just right to the midline on back.
Injury No.3 Injury in circular shape 2 x 2 cm, just left to the midclavicular line 3 inches below level of left nipple, margins were inverted going deep.
Injury No.4 T riangle wound of 3 x 2 inches in the middle of sternum with oblique presentation.
Injury No.5 Lacerated wound 2 x 2 cm, circular in shape with inverted margins on lateral aspect of left lower leg, 6 inches above left ankle, going deep fracturing left fibula.
Injury No.6 Lacerated wound 2 x 2 inches with everted margins on medial side of left lower leg, 6 inches below the left knee joint.
Injury No.7 Kissing injury 3 x 1 cm on lower end of right thigh anteriorly about 3 inches above right knee joint.
REMARKS Injury No.1 and injury No.3 caused damage to heart and lungs which are vital organs. These injuries are sufficient to cause immediate death in ordinary course of nature.
Probable time between injury and death was immediate and between death and post mortem was 4-hours & 30- minues.
5. The prosecution gave up Syed Siraj Hameed, Muhammad Ashraf, Wasim Akhtar and Abdul Rasheed PWs being unnecessary and closed the evidence by tendering the report of Chemical Examiner Ex.PQ, Report of Forensic Expert Ex.PR and FIR No.199/2009 (Ex.PS).
6. On completion of prosecution evidence, statements of the appellant and his co-accused were recorded under Section 342 Cr.P.C., wherein the entire prosecution evidence was put to them upon which they denied the charges leveled against them and professed their innocence. However, the appellant neither opted to appear under Section 340(2) Cr.P.C. in his own defence nor produced any witness to disprove the charge against him. In reply to a question as why this case against him and why PWs deposed against him, the appellant replied as under:- "I am innocent. I have been roped in due to enmity with Hayat Drishak inspector . I was involved in most of the cases in which accused were unknown in the FIR. PWs are close related to each other and deposed falsely against me."
7. The trial Court, after hearing learned counsel for the parties, while acquitting Zafar Iqbal and Muhammad Fazil alias Amjad Shah co-accused, conv icted and sentenced the appellant supra through the impugned judgment.
Hence, this appeal.
8. Learned counsel for the appellant has contended that the appellant is not nominated in the crime report, who was implicated in this case through the supplementary statement made by Muhammad Hashim, PW-9 on 11.02.201 1 but no source of his information was apprised; that the appellant was shown to be arrested by Sajjad Hussain Sindhu, SI (PW-7), who handed him over to Abdul Rasheed, Inspector/I.O. for his admission in the judicial lockup for identification parade; that the identification parade conducted by the learned Area Magistrate has no evidentiary value in the eyes of law as the person, who had been shown to cause the arrest of appellant, by itself been identified the appellant during identi fication parade along with Ishfaq Hussain constable. Learned counsel for the appellant has put his emphasize on the point that if the appellant had been nominated in the supplementary statement made by Muhammad Hashim PW-9, the worth of identification parade could not be believed in such circumstances. He further adds that no description of any of the assailants has been mentioned in the FIR. Lastly , prayer for acquittal of the appellant has been made.
9. Learned DPG appearing for the State assisted by learned counsel for the complainant has maintained that the appellant was well nominated in the supplementary statement made by Muhammad Hashim PW-9, real brother of Ayaz constable deceased, who had no enmity or ill-will against the appellant to falsely involve him in this case; that the appellant was arrested in this case on 14.03.201 1 and on the same day, he was sent to judicial lockup for the purpose of test identification parade; that both the eye witnesses well identified the appellant being one of the assailants of this case during test identification parade; that four crime empties along with pistol recovered on the pointation of the appellant were sent to the Ballistic Expert, the report is positive one; that the oral deposition of the eye-witnesses find support from the medical evidence. Finally , it is prayed that the appeal may be dismissed.
10. We have heard learned counsel for the appellant, learned DPG appearing for the State assisted by learned counsel for the complainant and have perused the record.
11. The eye-witness account in this case has been furnished by Sajjad Hussain, SI (PW-7) and Ishfaq Hussain constable (PW-8). They demonstrated the contents of the crime report unanimously. It is an admitted position that the appellant was not nominated in the crime report, who was implicated in this case on the basis of supplementary statement made by Muhammad Hashim (PW-9) on 11.02.2011 i.e. 3 day of the occurrence. He deposed that on 11.02.2011 he along with Muhammad Ashraf himself probed and found that the appellant suffered injuries as he had fallen from motorcycle while fleeing away soon after the occurrence. He further deposed that Zafar and Amjed (since acquitted) provided treatment to the appellant in their home and then assisted him to disappear. He further deposed that he got recorded his statement before the investigating officer in this regard. It is astonishing that said Muhammad Hashim (PW-9) did not utter a single word as how he came to know that Zafar Iqbal and Amjad (since acquitted) co-accused provided medical treatment to the appellant. He admitted during cross-examination that he had not remembered as to who informed him about the factum of fall of the appellant from motorcycle soon after the occurrence and received injuries. The story narrated by Muhammad Hashim (PW-9) regarding implication of the appellant with parentage and address, in this case, at his own without any source, does not inspire confidence.
Sajjad Hussain Sindhu, SI (PW-7), amazingly deposed that on 14.03.2011, he along with police officials was present at Chungi Dumbrah when a person came near to him, he identified him as Niaz, who had fired upon Ayaz deceased, he arrested him and recovered 30-bore pistol. Similarly, the story narrated by Sajjad Hussain Sidhu, SI (PW-7), the way he arrested the appellant, does not appeal to the man of ordinary prudence as how is it possible that an accused having fire arm, came close to the police contingents and that too before an eye-witness of the aforesaid occurrence committed by the appellant. It appears that both the witnesses maneuvered said story to involve the appellant in this case. Muhammad Hashim PW-9 was, admittedly, not present at the time and place of occurrence enabling him to identify the appellant. On the basis of said supplementary statement, the appellant was arrested on 14.03.2011, sent to judicial lockup on the same day and was identified as one of the assailants in this case during test identification parade on 22.03.2011 under the supervision of Syed Jamshed Anwar, Magistrate (PW-11) wherein Sajjad Hussain, SI (PW-7) and Ishfaq Hussain constable (PW-8) identified him.
12. During test identification parade, no specific role was assigned to the appellant and even it is very astonishing that the person who had arrested the appellant on 14.03.2011 along with Ishfaq Hussain constable, was summoned by the investigating officer to identify him during test identification parade. The procedure for test identification parade provided in Volume-III, Chapter-11 Part-C of the Rules & Orders of the Lahore High Court, Lahore read with Article 22 of the Qanoon-e-Shahadat Order, 1984 was fully ignored. Identification parade is always held for two purposes, one to establish the identity of the culprit and the second to pin-point the role played by him in the commission of offence. None of the said purpose was served during the test identification parade conducted in the case in hand. In fact, nomination of the appellant through supplementary statement has lost the evidentiary value ofrd the test identification parade especially when no feature of any of the assailant with the regard to age, height, face and general appearance had been mentioned in the crime report and to identify a person in such state of affairs, was hardly possible. We are of the considered view that the test identification parade has lost its evidentiary value as the same is neither acceptable nor reliable in the eyes of law. In the circumstances, involvement of the appellant in this case is highly doubtful and does not inspire confidence.
13. So far as the medical evidence is concerned, although the same is in line with the ocular account mentioned in the crime report yet the fact remains that when the prosecution has failed to prove the involvement of the appellant in this case beyond any shadow of doubt, the same being corroborative piece of evidence is of no avail to the prosecution. Furthermore, the medical evidence is supportive piece of evidence, which can prove the locale, seat and nature of injuries, weapon of offence used and duration of injuries but cannot raise finger towards the real culprit, therefore, the same is not helpful to the prosecution.
14. Similarly, it is case of the prosecution that at the time of arrest of the appellant on 14.03.2011, a pistol 30- bore was recovered from his possession but the said pistol was neither taken into possession through recovery memo nor was produced before the trial Court at the time of recording evidence. After test identification parade, the appellant got recovered another pistol 30-bore through recovery memo Ex.PL and it is nowhere mentioned that which of the recovered pistols were sent to the Forensic Science Laboratory for expert opinion. In this back- drop positive report of the Ballistic Expert Ex.PR is also not helpful for the prosecution to prove guilt of the appellant. Even otherwise, positive Forensic Science Laboratory's report regarding crime empties secured from the spot having been matched with the pistol recovered from the possession of the appellant being corroborative piece of evidence, was insuf ficient to convict an appellant in absence of substantial piece of evidence. In this respect we seek guidance from case titled "RIAZ AHMED versus THE ST ATE (2010 SCMR 846 )".
15. It was duty of the prosecution to prove the charge against the appellant beyond any shadow of doubt but in the instant case, the culpability of the appellant could not be proved by the prosecution beyond any shadow of doubt as the way he was introduced as one of the assailants in supplementary statement and the way he was arrested by the eyewitness of this occurrence is highly doubtful. Even a single doubt tilted the benefit of doubt in favour of the accused whereas the case in hand is replete with doubts.
16. For what has been discussed above, the appeal in hand is allowed , impugned judgment dated 08.02.201 1 is set aside and appellant Niaz alias Niazi alias Jumma is acquitted of the charge . He is directed to be released forthwith, if not required to be detained in connection with any other criminal case.