KAMAL DIN alias KAMALA vs The STATE

ASIF SAEED KHAN KHOSA, J.---Kamal Din alias Kamala appellant and some others had allegedly fired at a police party and had killed one Faqeer Muhammad, ASI besides injuring others at about 03.30 p.m. on 15.02.2000 on a roadside in the area of Police Station Malika Hans, District Pakpattan Sharif and for commission of the said murder and the related offences they were booked in case FIR No, 35 registered at the above mentioned Police Station in the same afternoon. After a regular trial the appellant was convicted by the trial court for an offence under section 302(b), P.P.C. read with section 34, P.P.C. and was sentenced to death and to pay compensation besides having been convicted and sentenced for an offence under section 324, P.P.C. read with section 34, P.P.C. which convictions and sentences of the appellant were subsequently upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 26.06.2009.

2. 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.

3. In the case in hand one police official had been done to death and five others had been injured in an incident taking place on a roadside. In the FIR the culprits had not been nominated and they were mentioned as unknown and no description of the culprits had been recorded in the FIR. The appellant had been arrested in connection with this case on 13.04.2000 at a time when he was already under arrest in connection with some other criminal case. During the investigation a test identification parade had been conducted on 25.04.2000 wherein the appellant had statedly been correctly picked up by the eye-witnesses and while in custody the appellant had statedly got recovered a Kalashnikov which had subsequently been found wedded to 14 crime-empties secured from the place of occurrence. The most important piece of evidence led in this case by the prosecution was the test identification parade in which the appellant had statedly been correctly picked up by many eyewitnesses who were also injured witnesses. In this context we have pointedly observed that according to the FIR itself the firing resorted to at the spot had been made from behind some trees available near the place of occurrence and, thus, at best the injured eye- witnesses under assault could only have a fleeting glance at the assailants while the witnesses were taking shelter and were running for their lives. Muhammad Athar Farooq, DSP/SDPO (PW18), the Investigating Officer, had specifically been asked before the trial court as to whether the appellant had been shown to the eye-witnesses while he was in the police lock up before holding of the test identification parade or not and while answering that question the said Investigating Officer had clearly stated that he could not deny that the appellant had been shown to the eye- witnesses before holding of the test identification parade. The answer given by the Investigating Officer to the above mentioned question was evasive and he had not categorically denied the suggestion. It is also pertinent to mention here that the proceedings of the test identification parade brought on the record of this case clearly show that the appellant had not been picked up by the eye-witnesses in that parade with reference to any role played by him during the occurrence in issue. It has repeatedly been held by this Court that identification of an accused person without reference to the role allegedly played by him during the occurrence is shorn of any evidentiary value and a reference in this respect may be made to the cases of Azhar Mehmood and others v. The State (2017 SCM R 135), Muhammad Fayyaz v. The State (2012 SCM R 522), Shafqat Mehmood and others v. The State (2011 SCM R 537) and Sabir Ali alias Fauji v. The State (2011 SCM R 563). Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go. This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCM R 1210), Bacha Zeb v. The State (2010 SCM R 1189), Shafqat Mehmood and others v. The State (2011 SCM R 537) and Gulfam and another v. The State (2017 SCM R 1189) that identification of many accused persons in one go it not proper besides being unsafe. As if this were not enough, Shabbir Ahmed (PW14), one of the injured eye-witnesses, had acknowledged before the trial court in so many words that the accused persons had been shown to him at the Police Station before holding of the test identification parade. This had surely taken the wind out of the prosecution's case against the appellant.

4. As regards the alleged recovery of a Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of -the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.

5. The record of this case clearly shows that two of the eye-witnesses namely Muhammad Khan (PW9) and Shabbir Ahmed (PW14) had been declared hostile as they had refused to support the case of the prosecution. A co-accused of the appellant namely Ashraf alias Achhoo had been separately tried by the trial court and he had been acquitted of the charge and we have been informed that his acquittal had not been challenged by the State or the complainant party before the High Court.

6. For what has been discussed above a conclusion is irresistible and inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore allowed, the convictions and sentences of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.