MALIK HAQ NAWAZ, J.---The appellant Zafeer Ahmed stood trial on the charges under section 302, P.P.C. vide FIR No, 174/2011 of Police Station Air port Gilgit, and after a full fledge trial the learned trial judge found him guilty of the offence charged, against him and sentenced him for the period from 01-10-2011 to 20-10-2012, which he has already undergone. The learned trial Judge, also imposed diyat amounting to Rs,1923843/- (Rupees One Million Nine Hundred Twenty Three Thousand Eight Hundred Forty Three only) to be paid to the legal heirs of deceased i,e, widow and children after excluding the share of mother of deceased i,e, Rs,240480/- (Rupees Two Hundred Forty Thousand Four Hundred Eighty only) from the above referred diyat money as she has pardoned the accused on 23-07-2015 and got recorded a statement before the trial Court to this effect.
2. Being dissatisfied from the verdict rendered against the appellant/accused by the learned trial Court the appellant/accused filed the instant appeal challenging the legality and proprietary of the judgment.
3. The learned counsel for the appellant/accused submitted that there is no worth reliance evidence on record to connect the appellant/accused with the alleged offence. Per the learned counsel the only piece of evidence against the appellant/accused is identification parade conducted on 11-10-2011 in presence of PW-8 Mr. Noor Alam (Magistrate 2nd Class) which is mockery in the eyes of law and the legal requirement for conducting such identification parade have been completely ignored. The learned Counsel for appellant/accused further stated that another piece of evidence in the hands of prosecution is recovery of .30 bore pistol No, Nil and a .32 bore revolver bearing No,D-12293 (Pak Made) which also does not advance the case of prosecution. The learned counsel submits that the judgment passed by the learned trial Court is flimsy, arbitrary and devoid of any legal force and the appellant is entitled for acquittal from the charges.
4. On the other hand the learned Dy.AG rebutted the arguments with vehemence, raised at bar by the learned counsel for appellant/accused and submits that it was daylight occurrence and the appellant/accused was found guilty after a fair and transparent investigation. The appellant/accused was identified in an identification parade conducted in presence of an impartial Magistrate who was examined in trial Court as PW-8. The appellant/accused was also correctly identified in the above identification parade, which has been exhibited vide exhibit PW- 8/A. The crime weapons were recovered on the pointation of accused on 0540-2011 in presence of the marginal witnesses vide recovery memo exhibit 3/C. The learned Dy.AG prays that the judgment of the trial court is based on correct appreciation of evidence which does not merit interference by this Hon'ble Court.
5. We have heard learned counsel for the parties at length and examined the record with their valuable assistance. It is pertinent to mention that initially the complainant charged three other brothers of the accused namely Raees Ahmed, Ikhlaq Hussain and Bilal Hussain including appellant who were later on released by the police under section 169, Cr.P.C. The appellant/accused though was arrested on 01-10-2011 and his identification parade was conducted on 11-10-2011 after about ten days of his arrest and no explanation has come on record regarding such an inordinate delaying in conducting the identification parade. Long delay in conducting the identification parades is also A considered fatal if no plausible _explanation has come on record. The delay may be a factor which may afford an opportunity to the witnesses to see the accused while remaining in police custody and when produced in the Court for obtaining remand. The identification parade as already held by this Court in a case titled "Fidaullah v. The State" reported in 2016 PCr.LJ 1584, wherein it has been held that identification parades are conducted under Article 22 of Qanun-e-Shahadat, 1984 for two purposes, the first was to establish the identity of the accused and the other to rule out the possibility of false implication of the accused by the complainant/witnesses for any ill design. In the instant case as evident from exhibit PW-8/A the identification parade was conducted in a lethargic and disappointing manner. The Magistrate who supervised the identification parade even did not bother to count the strength of dummies whether they were five or six in numbers. The names/parentage and addresses of the dummies have not been mentioned in exhibit PW-8/A. The numbers of dummies were to be 9:1 but only 5 or 6 dummies were mixed with the accused, which is also against the precedents settled down by the Hon'ble Supreme Court of Pakistan. The sole eye-witness of identification parade namely PW Ijlal Hussain examined in trial Court as PW-7 has not uttered a single word regarding any identification parade held in his presence. The said PW during his examination in chief stated that "I am not sure that the accused before the Court was same but the culprit was similar to him".
Surprisingly neither he was declared hostile by the learned District Public Prosecutor, nor he was re- examined regarding holding of any identification parade allegedly conducted on 11-10-2011.
Another aspect which lurked into our mind about the authenticity of so-called identification parade is that it is mentioned in exhibit PW-8/A that P.W Ijlal Hussain identified the present appellant/accused while standing inside cupboard. We despite application of our judicial mind could not resolve this mystery as to why identification parade was conducted in the above manner and PW-7 Ijlal Hussain was asked to stand in cupboard instead of an open place. The Magistrate of 2nd Class was not competent under law to supervise an identification parade. He was deputed for the said purposes on an application submitted by the I.0 of the case to Assistant Commissioner, Gilgit on 05-10-2011 and on the same day as evident from the record the Assistant Commissioner deputed Naib Tehsildar, Noor Alam for the purposes of identification parade. It seems that Assistant Commissioner Gilgit was not knowing a, b, c of the law and instead of availability of dozen of Magistrates 1st Class in Tehsil Headquarter Gilgit he deputed a Naib Tehsildar (Magistrate 2nd Class) to supervise the identification parade. The case in hand is a murder case and identification parade was a most important piece of evidence to connect the accused with the alleged offence/crime but due to in-efficiency of the Assistant Commissioner and of the 1.0 who even did not object before the Assistant Commissioner to depute any competent Magistrate the fate of the case has been overturned. The identification parade was held just to fill in the blank which has forced us to rule out of consideration an important piece of evidence. The other important piece of evidence in the case in hand was recovery of two crime weapons. The accused was arrested on 01-10-2011 and crime weapons were recovered on his pointation on 05-10-2011 in presence of marginal witnesses namely Muhammad Hussain son of Yousaf Ali and Mehboob Hussain son of Mehmood as evident from exhibit 3/C. From perusal of calendar of witnesses apparently it seems that both these witnesses were picked up from the public but it is not so. The crime weapons recovered from the appellant/accused were not sent to Forensic Expert for expert opinion as no report of forensic expert is available on record nor any question regarding the expert opinion was put to the accused during his examination under section 342, Cr.P.C. hence the evidence of recovery is also devoid of any legal force. While dictating judgment we found the statement of PW- 3 Muhammad Hussain available at page 30 of the paper book which shows that both these PWs were police officials. It is not understood as to why the correct particulars of witnesses of recovery were not mentioned by the I.O. in recovery memo exhibit PW-3/C. The provision of section 103, Cr.P.C. is not applicable when a recovery is effected on the pointation of the an accused as these recoveries are admissible in evidence and are covered under section 27 of Qanun-eShahadat 1984. In such circumstances there was no need to eyewash and throw a dust in the eyes of Courts of law by concealing identity of the recovery witness. The act of the I.0 is highly depreciated by not inserting the correct particulars of recovery witnesses.
5. Now almost all it is settled principle of dispensation of criminal justice that when ocular evidences fails then the question of relying on corroboratory/confirmatory evidence does not arise.
The evidence of recovery, postmortem etc are always read in support of ocular evidence but when the ocular evidence fails, then the question of corroboration wholly becomes irrelevant. The prosecution failed to prove their case against accused beyond shadow of doubt. So white extending the benefit of doubt we acquit the accused from the charges leveled against him. He shall be released forth with if not requited to be detained in any other case.