MEHMOOD MAQBOOL BAJWA, J.---Through this judgment Cr. A. No,928-J of 2011 titled "Qaiser Ali etc. v. The State", Cr. A. No,439 of 2010 titled "Shahbaz alias Jajja v. The State etc." along with Murder Reference No,115 of 2010, sent by learned trial court for confirmation or otherwise of sentence of death awarded to Qaiser Ali-appellant, shall be disposed of as all the three matters arise out of one and the same judgment dated 27th of March, 2010 handed down by a learned Additional Sessions Judge, Chichawatni, Sahiwal.
2. Prosecution version in brief contained in the crime Report (Ex.PJ/1) recorded in pursuance of the statement (Ex.PJ) of Waleed Akhtar, complainant (PW-9) son of the deceased Abdul Ghafoor is that on 18th of April, 2007, he along with his elder sister and her three children were coming from Lahore to Burewala on car No, LWG-103 driven by Muhammad Tufail, driver (PW-11) and at about 11:15 P.M. When they reached near Khan CNG, they noticed a hurdle on the road. Meanwhile, an alto car reached and halted behind their car in which three young boys (particulars and description given) were sitting and out of three, two alighted from the car and one each took their position towards the side of his father as well as driver's seat as his father was sitting on the front seat with driver. The unknown assailant who was standing on the side of his father broke the windowpane of the side of his father and made fire causing injury to his father which was seen by the complainant who was sitting on the rear seat along with his sister and children in the headlights of the car which came there meanwhile. Both the accused who were standing on both sides of the driver seat as well as his father after the occurrence while sitting in the car driven by the 3rd boy already seated on the driver seat managed to escape.
3. Initially case was registered under section 324 read with section 34 of The Pakistan Penal Code, 1860 (Act No,XLV of 1860) (Hereinafter after called The Code), but after the death of Abdul Ghafoor, offences under sections 397 and 302 of The Code were added.
The complainant later on made supplementary statement, introduced the presence of Mirza Tariq Shahzad (PW-10) as an eyewitness, also statedly sitting in the car and arrival of five unknown assailants instead of three who also committed dacoity.
Muhammad Ghazanfar Ali, Inspector (PW-14) being investigating officer to whom Waleed Akhtar (PW-9) got recorded his 'statement (Ex.PJ) reached at the spot, prepared injury statement (Ex.PF/1) who after getting information about the death of Abdul Ghafoor, inserted section 302 of The Code vide Rapt No,32, dated 19th of April, 2007.
After the death of Abdul Ghafoor, the investigating officer prepared inquest report (Ex.PH) and sent the dead body for postmortem examination. He secured bloodstained earth from the place of occurrence, made it into a sealed parcel and took the same into custody through recovery memo.
(Ex.PL). While making spot inspection, he took into possession four crime empties (P-1/1-4) from the place of occurrence through recovery memo. (Ex.PM).
Riaz Ahmad-Constable produced last worn clothes of the deceased after autopsy which were taken into custody vide memo. (Ex . PN).
The same Investigating Officer arrested Qaiser Ali, appellant, took into possession Alto car from the custody of said appellant through recovery memo (Ex.PE) and sent the said appellant to judicial lock up for the purpose of identification who was duly identified in identification parade held on 22nd of May, 2007.
Shahbaz alias Jajja, appellant was also arrested due to suspicion who was also identified in the identification parade held on 22nd of May, 2007.
Qaiser Ali, appellant got recovered pistol (P5) along with two live bullets taken into custody vide recovery memo. (Ex.P0) while co-appellant Shahbaz alias Jajja, got recovered pistol (P8) along with live bullets, two in number through recovery memo. (Ex.PQ).
After usual investigation challan was submitted in the court.
4. Perusal of the record reveals that after the death of Abdul Ghafoor, offences under section 302 read with section 397 of The Code were added but charge was framed by the learned trial court against both the appellants under sections 148, 149, 302, 396 read with section 412 of The Code.
Strangely enough, the learned trial court also framed 2nd head of Charge under section 149 of The Code as independent though the provisions of section 149 of The Code does not suggest the said provision as distinct offence and just deal with the doctrine of vicarious liability.
Associates of the appellants namely, Faisal Bashir son of Bashir Ahmad, Muhammad Asif son of Dilmeer and Irshad alias Shada son of Shah Muhammad were declared proclaimed offenders.
5. The prosecution in order to prove its case produced fourteen witnesses.
While giving up Tahir Ehsan (PW) being un-necessary, tendering reports of Chemical Examiner and Serologist (Ex.PU, PV) and that of Forensic Science Laboratory (Ex.PW), the prosecution closed its case.
6. The appellants in their respective statements made under section 342 of The Code of Criminal Procedure, 1898 (Act No,V of 1898) (Hereinafter called Act V of 1898) denied the whole incriminating evidence put to them and maintained that they were made scapegoat in order to show progress by the Investigating Officer as it was an unseen occurrence happened in the darkness.
It was further stated by Qaiser Ali, one of the appellants that Muhammad Shafiq, paternal uncle (Phopha) of the complainant is his neighbourer with whom he got altercation due to which he was implicated. He further stated that the complainant used to visit residence of his said close relative and saw him so many times.
7. After conclusion of trial, the learned trial court recorded conviction against both the appellants under section 148 of The Code and awarded each appellant three years' Rigorous Imprisonment with fine to the tune of Rs,25,000/- each and in default of payment of fine to further undergo three months' S.I.
Holding both the appellants guilty under section 396 of The Code, sentence of death was awarded to Qaiser Ali, appellant with fine to the tune of Rs,50,000/- besides imposition of compensation to the tune of Rs,100,000/- to be reimbursed among the legal-heirs of the deceased. In lieu of payment of fine under section 396 of The Code, he was to further suffer three months' S.I.
Concluding the guilt of appellant Shahbaz alias Jajja under section 396 read with section 149 of The Code, sentence of life imprisonment was awarded to him with fine to the tune of Rs,50,000/-.
Evaluating the evidence led by the prosecution and stance of the appellants, the learned trial court also reached to the conclusion that offence under section 412 of The Code stands established against both the appellants awarding them sentence of 10 years' Rigorous Imprisonment and fine to the tune of Rs,50,000/- each under the said provision and in default to further suffer three months' SI.
It is to be noted that though charge under section 302 of The Code was framed but the judgment is totally silent regarding the conviction under the said provision of law.
8. Both the appellants through Cr. A. No,928-J of 2011 and Cr. A. No,439 of 2010 have called in question the legality and validity of conviction and sentences awarded to them.
9. Dr. Zubair Tariq (PW-4) conducted postmortem examination on the dead body of deceased (Abdul Ghafoor) and noted following injuries: "INJURIES:
1. A firearm punctured wound 1-1/2 cm x 1-1/2 x going deep with inverted margins, just below and mid of right clavicle with abraded collar most prominent on inner end. Corresponding laceration was present on shirt. This was the wound of entry.
2. Firearm punctured wound 1/2 cm x 1/2 cm x going deep with averted margins on back and upper part of right arm. This was exit wound of injury No. 1 "
Cause of death in the opinion of Medical Officer was injury No,1 which is an entry wound. Injury No,2 is exit wound. Time between injury and death was within four hours while between death and postmortem was within 24 hours.
Copy of the postmortem report is (Ex.PG) while pictorial diagram is (Ex.PG/1), It is to he noted that the same Medical Officer earlier medically examined Abdul Ghafoor (deceased) in injured condition and noted the same injuries on his person as is evident from copy of Medico-Legal Certificate (Ex.PF).
10. Learned counsel for both the appellants while making reference to the contents of the crime Report registered initially submitted that as per allegations contained in the FIR, there were only three persons who participated in the occurrence. Submitted that as per accusation, one unknown assailant remained seated in the car while two took their position towards the front seat and driver seat and one of them made assault upon the deceased by making fire resulting in death of the deceased.
Submitted that later on the complainant i.e, Waleed Akhtar (PW-9) made a supplementary statement increasing the number of accused from three to five, also introducing Mirza Tariq Shahzad (PW-10) as an eye-witness suggesting his presence in the car in which they were making journey. Further submitted that initially allegation of robbery/dacoity was not mentioned in the crime Report and through supplementary statement conscious and dishonest improvements were made.
Making reference to the evidence of Waleed Akhtar (PW-9), Mirza Tariq Shahzad (PW-10) and Muhammad Tufail (PW-11), it was submitted that since Mirza Tariq Shahzad (PW-10) was not cited as a passenger along with the complainant and other family members as well as deceased, therefore, his evidence cannot be believed, relied upon and acted. Argued that the learned trial court keeping in view the facts and circumstances of the case also did not believe the evidence of said witness.
Referring to the statements of Waleed Akhtar, complainant (PW-9) and Muhammad Tufail, Driver (PW-11), it was submitted that the complainant even in his direct statement admitted that statement (Ex.PJ) made by him before Muhammad Ghazanfar Ali, Inspector .(PW-14) was read over to him and he signed the same in token of its correctness. Argued that it is also not the case of Muhammad Tufail, Driver (PW-11) that his statement under section 161 of Act V of 1898 was not recorded correctly by the said Inspector (PW-14) and as such the evidence of both the witnesses making improvements with reference to number of assailants, presence of Mirza Tariq Shahzad (PW-10) at the spot and allegation of dacoity in their statements is nothing but a conscious and dishonest improvement and as such no implicit reliance can be placed upon their statements.
Adverting to the factum of recovery, it was argued that the same was planted upon both the appellants in order to provide corroboration and the evidence of complainant (PW-9), being witness of both the recovery memos (Ex.PO and PQ) suggesting recovery of weapons of offence is conscious attempt to fabricate and create the evidence. Argued that Tahir Ehsan, PW (since given up), another recovery witness of both the recovery memos was not produced and as such adverse presumption has to be drawn.
Continuing the arguments and again making reference to the ocular account consisting the statement of Waleed Akhtar (PW-9) particularly, it was submitted that according to the allegations, sister of the complainant along with her three children was also boarded in the car but the prosecution did not cite her as a witness and as such adverse presumption can be conveniently drawn under Article 129(g) of The Qanun-e-Shahadat Order, 1984 (President Order No,10 of 1984).
11. Adverting to the evidence of identification test conducted under the supervision of Muhammad ljaz Rua and Abdul Rehman Warraich, learned Judicial Magistrates who appeared as (PWs-12 and 13) and making reference to the reports of identification tests (Ex.PS and Ex.PT), it was submitted that role of both the appellants was not highlighted which fact was also admitted by the learned supervising Magistrates and as such no reliance can be placed on the evidence of identification test.
Referring to the evidence of Dr. Zubair Tariq (PW-4), it was submitted that postmortem was conducted within 24 hours of the death and the inordinate delay in conducting postmortem which remained unexplained is sufficient to cast doubt regarding date, time, mode and manner of occurrence, sufficient to put another dent to the case of prosecution.
12. In order to substantiate their contentions help was sought from the dictum laid down in "Amanat Ali alias Amanti v. The State" (2013 YLR 1959), "Muhammad Nadeem alias Banka v. The State" (2011 SCMR 1517), "Mithal alias Babal etc. v. State etc." (2009 PCr.LJ 1288), "Muhammad Afzal alias Abdullah and others v. The State and others" (2009 SCMR 436) and "Shafqat Mehmood and others v. State" (2011 SCMR 537).
13. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant submitted that though the appellants were not nominated in the FIR and case was registered against unknown accused but they were rightly identified by Waleed Akhtar, complainant (PW-9), Mirza Tariq Shahzad (PW-10) and Muhammad Tufail, Driver (PW11) in the identification parades.
Admitting the fact that certain improvements were made with reference to number of assailants, allegation of robbery/dacoity by the complainant in his supplementary statement but making an attempt to justify it, it was contended that the complainant could not give exact number of assailants and detail of occurrence in view of sudden attack of unknown assailants resulting in sustaining of injuries by his father, commission of dacoity depriving the complainant party from his valuable articles including gold ornaments.
Continuing the arguments, it was contended that the appellants were not known either to the complainant or the eye-witnesses and as such no bias or animosity can be attributed to the witnesses including the complainant prompting them to implicate the appellants falsely.
Referring to the evidence of complainant as well as eyewitnesses (PWs-9 to 11), it was submitted that despite lengthy cross-examination their credibility could not be shaken in cross-examination.
Making reference to the evidence of the witnesses as well as deposition of learned supervising Magistrates and reports of identification parade (Ex.PS and PT), it was submitted that both the appellants were duly identified by the witnesses.
Drawing our attention to the proceedings of identification test (Ex.PS), it was contended that Mirza Tariq Shahzad as well as Muhammad Tufail (PWs-10 & 11) while participating in the identification parade not only rightly picked Shahbaz alias Jajja appellant as assailant but also disclosed his role stating that the said appellant also made fire. Argued that in the circumstances, proceedings of identification parades held separately in order to identify the appellants inspire confidence and the evidence finds support from the factum of recovery of weapons of offence from both the appellants witnessed through recovery memos (Ex.P0 and PQ) duly attested by Waleed Akhtar (PW-9). Argued that weapon of offence recovered from Qaiser Ali appellant along with empties was sent to the office of Forensic Science Laboratory and the report of Forensic Science Laboratory (Ex.PW) is in positive which provides corroboration to the ocular account.
Further submitted that medical examination of the deceased (Ex.PF) in injured condition and postmortem report (Ex.PG) also provide corroboration to the ocular account.
Referring to the recovery of bracelet through recovery memo. (Ex.PP) effected at the instance of Qaiser Ali, recovery of gold ring, two wrist watches as well as identity card of Mirza Tariq Shahzad (PW-10), through recovery memo (Ex.PR) from Shahbaz (appellant), it was argued that the recovery of looted articles provides further corroboration to the ocular account and in order to prove the charge under section 412 of The Code. Further contended that the appellants with their associates committed murder of an innocent person and as such are not entitled to any premium.
14. It is an admitted fact that case was initially registered under section 324 read with Section 34 of The Code as is evident from the contents of crime Report bearing No,121 of 2007 (Ex.PJ/1). In the said crime Report, no allegation was made regarding the looting of articles . Including gold ornaments.
These facts were highlighted by the complainant (PW-9) in his supplementary statement.
An attempt was made to justify it by adding that since Waleed Akhtar, complainant (PW-9), was in state of confusion, anxiety and fear, therefore, he could not explain all the facts to the Investigating Officer.
Half-hearted attempt would not be sufficient to justify the omission by adding important and material points in the supplementary statement in order to improve the case of prosecution. If the complainant (PW-9) gave the detail of occurrence as is evident from the contents of FIR (Ex.PJ/1), why he remained unable to explain actual number of assailants and the allegation of robbery/dacoity.
At this stage, it is desirable to add that Waleed Akhtar, complainant (PW-9) in his direct statement maintained that he got recorded his statement (Ex.PJ) which was read over to him and he in token of its correctness signed the same in English. He again in cross-examination categorically admitted that the Investigating Officer recorded his statement (Ex.PJ) correctly without any addition or omission and he signed the same in token of its correctness. With this background, supplementing the omission in the supplementary statement cannot be considered which is a conscious and dishonest improvement.
15. It is an admitted fact that Mirza Tariq Shahzad (PW-10) was not cited an eye-witness of the occurrence in the crime Report (Ex.PJ/1). It was not the case of complainant that he was travelling with them and he was introduced by the complainant (PW-9) in his supplementary statement.
Another conscious improvement was made by the complainant while producing the said witness (PW-10).
Needless to state that the supplementary statement cannot be equated with the FIR. At the most, it can be termed as further statement under section 161 of Act V of 1898 having no legal and evidentiary value. Reliance is placed upon "Falak Sher alias Sheru v. The State" (1995 SCMR 1350), "Akhtar Ali and others v. The State" (2008 SCMR 6) and "Noor Muhammad v. The State" (2008 SCMR 1556). In the circumstances, the evidence of Mirza Tariq Shahzad (PW-10) cannot be taken into consideration and we are of the considered view that thc learned trial court rightly brushed aside the evidence of said witness.
It is to be noted that names of Waleed Akhtar, complainant (PW-9) and Mirza Tariq Shahzad (PW- 10) does not find mention in the site plan with scale (Ex.PK) and Muhammad Saeed Akhtar, Draftsman (PW-7) admitted this tact in cross-examination further stating that the names of these witnesses were not told to him either by the investigating officer or by Muhammad Tufail, driver (PW-11).
At this stage, it is relevant to mention that it is the case of defence that the complainant as well as Mirza Tariq Shahzad (PWs-9 and 10) were not present at the spot who were introduced later on.
It is further to be noted that in the site plan (Ex.PK and PK/1) which was prepared on 25th of April, 2007, there is no mention of snatching of articles except from Abdul Ghafoor deceased. It is also worth mentioning that no attempt was made by the prosecution to get the same facts clarified from the said witness by making request for re-examination of the same witness.
16. Evidence of identification parades was heavily relied upon by the learned Additional Prosecutor General as well as learned counsel for the complainant in order to prove the culpability of the appellants. Parameters in order to act upon the evidence of identification parade were examined by the Apex Court and the learned High Courts in the following judgments amongst others: "Kaim and others v. The State" (PLD 1961 Karachi 728), "Wahid Bakhsh and others v. The State"
(1969 PCr.LJ 1317), "Lal Pasand v. The State" (PLD 1981 SC 142), "Ghulam Rasool and 3 others v. The State "(1988 SCMR 557), "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127), "Khadim Hussain v. The State '(1985 SCMR 721), "Alim v. The State"(PLD 1967 SC 307), "Ali Muhammad and another v. The State" (1985 SCMR 1834), "Arif Masih and another v. The State"
(PLD 2001 SC 398), "Muhammad Zaman v. The State" (2007 SCMR 813), "Solat All Khan v. The State" (2002 SCMR 820), "Lal Singh v. Crown" (ILR 51 Lahore 396), "Asghar All @ Sabah and others v. The State and others" (1992 SCMR 2088), "Bacha Zeb v. The State" (2010 SCMR 1189), "Siraj-ul- Haq and another v. The State" (2008 SCMR 302), "Nazir Ahmad v. Muhammad Iqbal and another"
(2011 SCMR 527), "Shafqat Mehmood and others v. The State" (2011 SCMR 537), "Kamran Khan and others v. State" (PL 2011 Cr.0 (Lahore) 842), "Sabir All @ Fauji V. The State" (2011 SCMR 563) and "Mansoor Ahmad etc. v. State etc." (2012 YLR 2481). and it was concluded that identification parade is required to be held as early as possible end precautionary measures are required to be taken by the supervising Magistrate in all respects including numbers, particulars of the dummies having similarity with the accused sought to be identified. It was further concluded that identifying witnesses must ascribe the role of the accused in order to determine whether the witnesses are identifying the suspects either as a friend or fore.
We have gone through the Rule of law expounded in the Reports cited at bar by learned counsel for the appellants in which the Honourable Supreme Court of Pakistan also laid down the same yardstick and parameters.
As referred earlier, proceedings of identification parade reflected in the reports (Ex.PS and PT) were heavily relied upon but nevertheless the same would not advance the plea of prosecution in order to prove the culpability of Qaiser Ali (appellant) as the witnesses (PWs-9 to 11) according to proceedings (Ex.PT) though identified said Qaiser Ali but did not describe the role of said appellant.
Perusal of the report (Ex.PT) clearly reveals that the witnesses just identified the said appellant.
Though we are conscious that in the identification test of Shahbaz alias Jajja (appellant), Mirza Tariq Shahzad (PW-10) and Muhammad Tufail (PW-11) also highlighted the role of said accused contending that Shahbaz alias Jajja appellant was armed with pistol at the time of occurrence who made fire but the evidence of these two witnesses would not advance the plea of prosecution to prove the guilt of said appellant. Mirza Tariq Shahzad (PW-10) was not cited as a witness in the FIR and his introduction at later stage by way of supplementary statement, is sufficient to brush aside his evidence. Evidence of Muhammad Tufail (PW-11) on this aspect is going to be dealt with in preceding paragraph.
It is further to be noted that Waleed Akhtar, complainant (PW-9) did not ascribe the role of Shahbaz alias Jajja who just put his hand on the head of said appellant as is evident from the report (Ex.PS).
17. Occurrence took place at night as is evident from the contents of the FIR (Ex.PJ/1) suggesting the time of occurrence at 11:15 P.M.
It is to be noted that it is the case of prosecution coming from the mouth of witnesses (PWs-9 to 11) that assailants were unknown who were seen by the witnesses in the headlights of the car which halted at the place of occurrence.
18. In view of the stance taken by the prosecution, first question for consideration is whether it was possible for the witnesses (PWs-9 to 11) to know and preserve the particulars and description of the assailants in their mind and to communicate the same to the Investigating Officer recorded in the complaint (Ex.PJ) and in the statements recorded under section 161 of Act V of 1898, and then to use it at the time of identification parades in order to identify the accused.
19. We may advantageously make reference to the dictum laid down in "Sajjad Hussain v. The State" (1997 SCMR 174) in which the Apex Court. Dealt with the question of identification of accused in a dark night in the light of electric bulb or lantern and it was held that identification of accused in such cases depends upon the availability of sufficient light, an opportunity available to the witness to have a close look or dialogue with the accused, intimacy of the accused with the witness and availability of unobstructed view of the accused to the witnesses.
We have gone through the evidence of all the three witnesses and we are unable to note any such evidence in order to fulfill yardstick referred to. Evidence led by the prosecution is totally silent regarding the duration of halting the said car at the place of occurrence. Similarly, nothing is available on record to suggest any dialogue between the appellants and the witnesses appeared in the witness-box. It is further to be noted that according to the case of prosecution, the complainant (PW-9) and Mirza Tariq Shahzad (PW-10) were sitting on the rear seat and the deceased was sitting on the front seat while Muhammad Tufail (PW-11) was seated on the driver seat. Direction of the car which came there and halted is also not known. In the circumstances, it can be said without any fear of contradiction that the stance of the witnesses suggesting the noting of the 'particulars and description of the assailants in the headlights of the car is nothing but a bald allegation.
20. In view of discussion made earlier, we are of the considered view that Mirza Tariq Shahzad (PW- 10) was not present at the spot but even then we have dealt with his evidence on merits which in view of discussion does not suggest reliability.
21. As referred earlier in the FIR there is a mention of three assailants which was modified by the complainant (PW-9) by making supplementary statement increasing the number from three to five. As discussed earlier, the complainant has made frank admission not only in his direct statement but also in cross-examination that his statement (Ex.PJ) on the strength of which FIR (Ex.PJ/1) was registered was correctly recorded by the investigating officer which was read over to him and he in token of its correctness signed the same.
With this background, increase of number of assailants by the witnesses in their respective statements as (PWs-9 to 11), undeniably is a conscious and dishonest improvement.
Similarly, improvements were also made by the witnesses, three in number, regarding the position of assailants encircling the vehicle from the side where the deceased as well as Muhammad Tufail, driver (PW-11) were seated.
Replies given in cross-examination also reveal that improvements have been made by the witnesses regarding snatching of gold ring, mobile phone, case and bracelet which admittedly does not find mentioned in the statement (Ex.PJ).
22. Since conscious and dishonest improvements were made by all the three witnesses including the complainant, therefore, no implicit reliance can be placed upon their statements in order to prove culpability of the appellants. We are fortified in our view by law laid down in "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550), "Akhtar Ali and others v. The State" (2008 SCMR 6) and "Muhammad Rafique and others v. The State and others" (2010 SCMR 385).
23. Viewed from whichever angle, the ocular account furnished by the prosecution is contradictory and the witnesses made conscious and dishonest improvements who were unable to note and preserve the particulars and description of the assailants.
In the circumstances, we have no hesitation to conclude that the ocular account dealt with is not sufficient to prove the identity of the appellants as assailants.
24. Factum of recovery was also banked upon by the prosecution contending that it provides corroboration to the ocular account.
As referred earlier, it is the case of prosecution in the complaint (Ex.PJ) that one shot was fired which was attributed to Qaiser Ali as stated by the witnesses but strangely enough four empties were secured from the spot which were sent to the Forensic Science Laboratory including the pistol recovered from Qaiser Ali through recovery memo. (Ex.P0). It is further to be noted that perusal of medico-legal certificate and postmortem reveal that the deceased sustained two injuries, out of which injury No, 2 is an exit wound. If one shot was fired by Qaiser Ali appellant which find support from the medico-legal certificate and postmortem report, how four empties were secured from the spot by the Investigating Officer and as per report of Forensic Science Laboratory (Ex.PW) all the four empties were fired from the weapon of offence recovered from Qaiser Ali appellant. The circumstances as such cast serious doubt about the recovery of weapon of offence from Qaiser Ali and report of Forensic Science Laboratory (Ex.PW) though positive in nature.
Pursuant to above, plea of prosecution that factum of recovery and positive report of Forensic Science Laboratory furnishes corroboration to the case of prosecution is without force.
25. Reliance was also placed upon by the prosecution on the factum of recovery of .30-bore pistol from Shahbaz alias Jajja, witnessed through recovery memo. (Ex.PQ) duly attested by Waleed Akhtar, complainant (PW9) who also deposed the factum of recovery in his statement but admittedly no shot was fired by said appellant as per prosecution case set up in the FIR.
26. Since the ocular account has not been acted upon by us, therefore, the factum of recovery of weapons of offence from both the appellants by itself would not be sufficient to provide corroboration in order to record conviction against the present appellants. Reliance is placed upon "Saifullah v. The State" (1985 SCMR 410), "Noor Muhammad v. The State and another" (2010 SCMR 97) and "Riaz Ahmed v. The State" (2010 SCMR 846).
27. In order to prove offence under section 412 of The Code, over all suggesting corroboration to the ocular account, recovery of bracelet from the custody of Qaiser Ali through recovery memo. (Ex.PP), gold ring, two wrist watches and identity card of Mirza Tariq Shahzad (PW-10) from Shahbaz alias Jajja through recovery, memo (Ex.PR) was also referred to. The said recoveries, even if considered, would not be sufficient to provide corroboration in order to prove case against the appellants and to prove the charge under section 412 of The Code as no identification memo was prepared by the Investigating Officer with reference to gold ring, wrist watches as well as bracelet.
28. Medical evidence was also banked upon on behalf of prosecution to prove guilt of appellants.
Suffice it to say that the medical evidence can only be used in order to determine the seat and locale of injuries as well as weapon of offence used and cannot prove the identity of the assailants.
We may advantageously make reference to the dictum laid down in "Abdul Majeed v. Mulazim Hussain and others" (PLD 2007 SC 637) and "Ghulam Qadir and 2 others v. The State" (2008 SCMR 1221).
29. In view of the matter, medical evidence by itself would not be sufficient to provide corroboration to the ocular account in order to determine the identification of appellants as assailants which even otherwise as discussed in detail is _neither convincing nor corroborative.
30. Suspicion, however, strong cannot take place of proof as held in "Vijant Kumar and 4 others v.
State through Chief Ehtesab Commissioner, Islamabad and others" (PLD 2003 SC 56) and "Yasin alias Ghulam Mustafa v. The State" (2008 SCMR 336).
31. Though it was also contended with vehemence by the learned Additional Prosecutor. General as well as learned counsel for the complainant that there is a mere denial on behalf of the appellants regarding their involvement in the offence but nevertheless it was the duty of the prosecution to prove the guilt of appellants being assailants beyond shadow of doubt and in view of discussion, it can be said without any fear of contradiction that the prosecution-has miserably failed to prove its case against the appellants beyond shadow of doubt.
32. Since for the reasons dealt with while examining the evidence of witnesses with reference to identification of the appellants as assailants we have reached to the conclusion that the said evidence does not fulfill the yardstick and parameters in order to believe, rely and act upon evidence of identification tests, therefore, we do not feel any necessity to deal with the objections and defence taken by the appellants regarding their previous intimacy with the complainant (PW- 9) and Mirza Tariq Shahzad (PW-10).
33. Viewed from whichever angle, the prosecution has failed to prove its case against the appellants beyond shadow of doubt and as such we feel no hesitation to grant benefit of doubt to the appellants as a matter of right resulting in acceptance of Cr. A. No,928-J of 2011 titled "Qaiser Ali etc. v. The State", and Cr. A. No,439 of 2010 titled "Shahbaz alias Jajja v. The State etc." acquitting both the appellants from all heads of charge.
34. In view of acceptance of appeals preferred by the appellants sentence of death awarded to Qaiser Ali appellant is not confirmed.
35. Murder Reference No,115 of 2010 is answered in the negative.
36. Sentence of Shahbaz alias Jajja appellant was suspended by this Court through order dated 21st of May, 2013 who is present on bail in the Court. He and his surety as such stand discharged of their respective bonds.
37. Qaiser appellant is in jail. He be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.