Asif Saced Khan Khosa, J.: Criminal Miscellaneous Applications No, 887 and 888 of 2012 For the reasons mentioned in these miscellaneous applications the same are allowed and the delay in filing of Criminal Appeals No, 59 and 60 of 2013 is condoned. Disposed of.
Criminal Appeals No, 59 and 60 of 2013
2. Gulfam appellant in Criminal .Appeal No, 59 of 2013 and-Abdul Rehman appellant in Criminal Appeal No, 60 of 2013 had allegedly tried to commit a robbery at a medical store at about 11.45 P.M. on 27.10.2004 and in the process they had murdered two persons namely Faheem Abbas and Muhammad Hanif in T-Chowk, Dijkot Road in the, area of Police Station Factory Area, Faisalabad and for commission of the said offences they were booked in case FIR No, 560 registered at the said Police Station during the same night. After a regular trial the appellants were convicted on one count each of the offence under Section 302(b), PPC and were sentenced to death each and to pay compensation besides having been convicted and sentenced for an offence under Section 394, PPC which 'convictions and sentences of the appellants were subsequently upheld and confirmed by the High Court. Hence, the present appeals by leave of this Court granted on 3.4.2013.
3. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken' that exercise.
4. The occurrence in this case had taken place at about 11.45 p.m. during the fateful night. and the source of light at the spot had never been established by the prosecution. It had been presumed by the Courts below that as the occurrence had taken. place at a medical I store, therefore, some electric light must be available 'at the spot. The " /Courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised. The culprits perpetrating the alleged offences had not been nominated in the FIR and in the FIR it had been mentioned that the culprits were two unknown persons who had not even been described properly in the FIR. During the investigation the present appellants had been implicated in this case but the record of the case is not clear as to how and on what basis the appellants had been roped into this case. The prosecution had relied upon two eye-witnesses, i,e, Muhammad Rafiq complainant (PW-17) and Muhammad Ishaq (PW18) out of whom the complainant was a brother of Muhammad Hanif deceased and Faheem Abbas deceased was an uncle of the complainant. The said eye-witnesses lived at some distance from the place of occurrence and they had claimed that at the relevant time they were available near a Dahi Bhalay cart on a roadside. Availability of the said eye-witnesses on a roadside near a cart at about midnight and doing nothing and for no purpose was a circumstance which was sufficient to raise many an eyebrow. The said eye-witnesses were, thus, nothing but chance witnesses who had failed to establish any reason for their availability near the place of occurrence at the relevant time. The said eye-witnesses had been given a big lie by the medical evidence as the Medico- legal Certificate issued in respect of Muhammad Hanif deceased when he was alive showed that the said deceased had been brought to the hospital in an injured condition by one Muhammad Iqbal, another brother of Muhammad Hanif deceased. It had been claimed by Muhammad Rafiq complainant (PW-17) before the trial Court as well as in the FIR that it was he and Muhammad Ishaq PW18) who had taken the injured to the hospital. The above mentioned Muhammad Iqbal had' found no mention in the FIR and the prosecution had, utterly failed to explain as to from where the said Muhammad Iqbal had emerged at the scene of the crime and had then taken the injured to the hospital for medical treatment. The said Muhammad Iqbal had not been produced before the trial Court in any capacity whatsoever: In these circumstances we have entertained serious doubts about availability of the above mentioned eye-witnesses at the spot at the time of occurrence.
5. The prosecution had maintained that the present appellants had correctly been identified by the above mentioned, eye-witnesses during a test identification parade conducted and supervised by -a Magistrate but we note that the parade so conducted and held was a -- joint parade in which both the present appellants had been made to stand along with many other dummies. Holding Of a joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment and a reference in this respect may be made to the cases of Lal Pasi and u. The State (PLD 1981 SC 142) Ziaullah alias Jaj v. The State (2008 SCM R 1210), Bacha Zeb v. The State (2010 SCM R 1189) and Shafqat Mehmood and others v. The State (2011 SCM R 537).
6. It has further been observed by us that the above mentioned eye-witnesses had statedly identified the appellants even before the trial Court during the trial but a perusal of the statements made by the said eye-witnesses before the trial Court shows that both Muhammad Rafiq complainant (PW-17) and Muhammad Ishaq (PW18) had only referred to the accused persons "present in, Court" but had failed.to individually identify either of them with reference to any role allegedly played by them in the incident in issue. Identification of an accused person before the trial Court during the trial has already been held by this court to be unsafe particularly when the eye-witnesses making their statements before the trial Court were examined after many other prosecution witnesses had already been examined and on all such occasions the accused persons could conveniently be seen by the eye-witnesses in the dock. In the present case the eye- witnesses were witnesses No, 17 and 18 meaning thereby that 16 other prosecution witnesses had already been examined by the trial -Court and on all such occasions the present appellants could conveniently be seen by the eye-witnesses in the dock in the Courtroom. This is why identification of an accused person before the trial Court during the trial has been held by this Court-to be unsafe in . the cases of Asghar Ali alias Sabah and others. v. The State and others (1992 SCM R 2088), Muhammad Afzal alias Abdullah and another v. State and others (PLJ 2009 SC 333), Nazir Ahmad v. Muhammad lqbal (2011 SCM R 527), Shafaat Mehmood and others v. The State (2011 SCM R 537), Ghulam Shabbir Ahmed and another v. The State (2011 SCM R 683) and Azhar. Mehmood and others v. The State (2017 SCM R 135).
7. It was asserted by the prosecution that a pistol had been recovered from the appellants' custody during the investigation but such recovery was legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered pistol with the alleged offences. It had also been maintained by the prosecution that the motorcycle used by the appellants during the incident in issue had been recovered but we note that in the FIR no colour, make or registration number of the motorcycle used had been mentioned and, thus, the alleged recovery of a motorcycle during the investigation was also of no avail to the prosecution.
8. For what has been discussed above a conclusion is irresistible and unavoidable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. These appeals are, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the Courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case.