MUHAMMAD WAHEED KHAN, J- Appellant has challenged his conviction and sentence awarded to him by the learned Additional Sessions Judge, Hafizabad vide judgment dated 29.10.2016 in case FIR No.240 dated 22.05.2015, registered under Sections 302/364/109/34, P.P.C. at Police Station Sadar , Hafizabad, whereby he was convicted and sentenced as under:-
(i) Under section 302(b), P.P.C. awarded imprisonment for life as Ta'zir. He was also directed to pay compensation of Rs.2,00,000/- to the legal heirs of deceased Aftab Mahmood under section 544-A(1), Cr.P.C. which shall be recovered as arrears of land revenue under section 544-A(2), Cr.P.C. and in default thereof, he was ordered to further undergo simple imprisonment for six months.
(ii) Under section 364, P.P.C. awarded rigorous imprisonment for ten years along with fine of Rs.3,00,000/- and in default thereof, he was ordered to further undergo simple imprisonment for one year .
All sentences were ordered to be run concurrently . Benefit under section 382-B, Cr.P.C. was also extended to the convict.
Whereas Tahira Yasmin, Qaiser Nawaz, Zahid, Muhammad Yousaf, Zakiya, Reha na Bibi, Azmat Ali and Shamim Akhtar co-accused of the appellant were acquitted of the charge by the learned trial Court vide same judgment by giving them benefit of doubt.
2. Feeling aggrieved of the judgment passed by the learned trial Court, appellant has assailed his conviction and sentence by filing instant appeal.
3. Brief facts of the prosecution case, as set out in the complaint Ex-PG are that; "On 21.05.2015, at about 10:00 p.m., Majid Saleem the complainant (PW10) along with his brother Jalil Azhar (given up PW) and Muhammad Azam (PW8) were sitting at shop of Jalil Azhar , at village Kot Hashmat, suddenly Azmat Ali accused along with two unknown persons armed with pistols .30 bore came on a motorcycle Honda 125 without number plate and parked it near the said shop; that both the unknown persons stood with the motorcycle, whereas, Azmat Ali (a close relative of complainant party) went ahead and knocked at the door of complainant's house from where the complainant's brother Aftab Mahmood (deceased) came out, meanwhile both the unknown persons went with motorcycle at the door of complainant's house and all three on gun point, forcibly tried to board Aftab Mahmood on their motorcycle, who raised alarm, whereupon the complainant and his companions rushed and reached near the accused persons ; that the accused persons extended threat, through waiving pistol, to murder them in case of they would come near and abducted away Aftab Mahmood on their motorcycle; that the complainant, his brother Jalil Azhar , Muhammad and Nisar Ahmad on motorcycle s started to search the accused persons, and on 22.05.2015, at about 4:00 a.m., when they reached at Rajbah Dheengranwali, they saw in the lights of their motorcycles that Azmat All and one other accused had caught hold of Aftab Mahmood from his legs and they were drowning him in the canal while third accused armed with pistol was at guard; that on hue and cry of complainant party the accused persons threw Aftab Mahmood in the canal and fled away from the spot while extending threats; that motive of the occurrence is that Azmat Ali accused wanted to take hands of Aftab Mahmood deceased's daughter forcibly for marriage but Aftab Mahmood refused; that the complainant left Jalil Azhar , Muhammad Azam and Nisar Ahmad with the dead body and himself went to P . S. to report the matter .
4. After registration of case, police investigated it and after completing all procedural formalities submitted report under section 173, Cr.P.C. Thereafter , formal charge against the appellant along with their co-accused was framed, to which they pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case produced as many as sixteen witnesses. Ocular account was furnished by Muhammad Azam, Nisar Ahmad and Majid Saleem the complainant of the case, who appeared as PW-8, PW-9 and PW-10 respectively . Medical evidence was furnished by PW-Dr. Muhammad Farrukh ul Islam who conducted autopsy on the dead body of the dece ased Aftab Mahmood. Mr. Muhammad Wasim Anjum, learned Judicial Magistrate who appeared as PW-14, conducted identification parade of Asif accused (since dead) and Luciman appellant. Khizar Hayat SI (Retired) and Zafar Hussain SI, Investigating Officers of case appeared as PW-15 and PW-16 respectively , whereas the remaining witnesses were of formal in nature and prosecution after producing certain documents closed its evidence.
6. PW-1 Dr. Muhammad Farrukh ul Islam while conducting postmortem examination on the dead body of the deceased Aftab Mahmood observed following injuries.
INJURIES
1. A contusion 25cm x 09cm around the neck, extending from right to left.
2. Abrasion 4cm x 4cm on front of neck, at left side 2cm away from midline.
3. Abraded contusion 4cm x 3cm at right cheek.
4. Abraded contusion 17cm x 08cm at back of right chest.
OPINION.
In his opinion all injuries were ante-mortem and death occurred due to strangulation. Time between injuries and death was within half an hour and that elapsed between death and postmortem was 16 to 24 hours.
7. After completion of prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C., who neither opted to appear as witness under section 340(2), Cr.P.C. nor produced any defence evidence. While answering question (Why this case against you and why the PWs deposed against you? ), he denied all allegations leveled against him by the prosecution.
8. After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of doubt to the extent of appellant, which resulted into his conviction and sentence in the afore-stated terms.
9. Learned counsel for the appellant in support of instant appeal submits that the appellant has not been nominated in the FIR and the only person who is nominated in FIR was Azmat Ali and he has been acquitted by the learned trial Court; that the story narrated by the complainant while lodging FIR is not only unbelievable but also cannot be comprehended on any stretch of imagination; that prosecution involved as many as nine accused persons who were tried by the learned trial Court and except present appellant, all were acquitted of the charge; that after the arrest of appellant, he was subjected to test identification parade but the learned Judicial Magistrate conducted a joint identification parade of two accused i.e. present appellant and one Muhammad Aslam (since dead) and such identification parade has no evidentiary value in the eyes of law; that while lodging FIR the complainant has not given the description and features of the unknown accused persons; that even identification parade is lacunic besides joint one; that no role whatsoever was attributed to the other co-accused; that since the main accused, Azmat Ali, who was not only nominated in FIR but also given a role and motive was also attributed to him has been acquitted by the learned trial Court, so, there was no occasion for the learned trial Court to convict the appellant on the basis of same evidence; that even role attributed to the appellant by the complainant while deposing before the learned trial Court that he was guarding his co-accused at the time of murder of deceased Aftab Mahmood, has not been proved by the prosecution. Lastly prays that by accepting this appeal, appellant be acquitted of the charge.
10. Conversely , learned District Public Prosecutor strongly controverted the arguments advanced by the learned counsel for the appellant and submits that although the appellant has not been nominated in FIR but soon after his arrest, he was subjected to test identification parade conducted by the learned Judicial Magistrate and all the three witnesses have correctly identified him being involved in the murder of Aftab Mahmood brother of the complainant; that during the course of investigation, he was found involved in the alleged crime and the prosecution has successfully proved its case beyond reasonable doubt by producing cogent, reliable and trustworthy evidence; that since PWs have no previous enmity with the present appellant so, false involvement of appellant in the charge of murder is ruled out. Lastly , prays that since the prosecution has proved its case up to the hilt qua the culpability of the appellant, so, instant appeal is liable to be dismissed.
11. I have heard arguments and perused the record with the assistance of learned counsel for the parties and find that only one accused, namely , Azmat Ali (since acquitted) was nominated in FIR, whereas two persons were shown as unknown accused, who have allegedly kidnapped Aftab Mahmood brother of the complainant on a motorcycle and thereafter he was murdered. by them.
12. In order to prove the ocular version , prosecution has produced three eye-witnesses, namely , Muhammad Azam, Nisar Ahmad and Majid Saleem the complainant of the case, who appeared as PW-8, PW-9 and PW-10 respectively . Their claim before the learne d trial Court was that they on 21.05.2015 at about 9.00/10.00 p.m. (night), were sitting at a shop, when accused Azmat Ali along with two unknown persons armed with pistols came on Honda motorcycle 125cc. Accused Azmat Ali knocked the door of house of Aftab Mahmood, who came out and all the three accused persons forcibly abducted him on gun point. The complainant and other witnesses followed them and at 4.00 a.m. in the morning of 22.05.2015, when they reached at canal bridge, they saw in the light of motorcycle that accused Azmat Ali has caught hold the deceased and he along with co-accused Asif (since dead) were drowning the deceased Aftab Mahmood in the canal after killing him and the present appellant was guarding them at the time of murder of deceased. The motive was alleged against accused Azmat Ali (since acquitted) that he wanted to take hand of daughter of Aftab Mahmood deceased and on his refusal, he along with his co-accused committed the murder of deceased.
13. As many as nine accused persons including the main accused Azmat Ali agains t whom the entire story revolves were tried by the leanred Addl. Sessions Judge and except the appellant all other accused persons were acquitted of the charge. Admittedly , appellant has not been nominated in the FIR and he along with his co-accused Asif (since dead) was implicated in the instant case by the witnesses on their identification during the test of identification parade and they were apprehended by the police on 03.10.2015. The identification parade was held inside the jail on 07.10.2015 under the supervision of PW-14 Muhammad Wasim Anjum, learned Judicial Magistrate, who conducted the identification parade of both the accused persons in one go, while standing them amongst the dummies. Majid Saleem complainant of the case (PW-10) was called, who identified the appellant and co-accused Asif. The three witnesses , namely , Jalil Azhar (not produced), Muha mmad Azam (PW-8) and Nisar Ahmad (PW-9) picked up both the accused by putting their hands on their heads but without mentioning the details and roles, played by them during the alleged incident. PW-14 learned Judicial Magistrate while deposing before the learned trial Court in his cross-examination admitted this fact in followings terms;- "It is correct that I conducted identification parade of both the accused jointly . It is correct that Jalil Azhar , Nisar Ahmad, Muhammad Azam Ms identified both the accused while putting their hands on the heads of the accused persons."
So, there is no cavil to the proposition that both the above accused persons had been identified without reference to their roles, played by them in the incident and they have been picked up in one go and law is settled by now that such identification parade is not only illegal but also not proper besides being unsafe and it loses its value and cannot be relied upon. Reference in this respect may be made on the recent pronouncement of the august Supreme Court of Pakistan in its judgment passed in case of "Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018 " PLD 2019 Supreme Court 488). Further reliance in this regard can also be placed on the judgments passed in cases of "Kamal Din alias Kamala v. The State, (2018 SCMR 577), Gulfam and another v. The State (2017 SCMR 1189), Hakeem and others v. The State (2017 SCMR 1546 ), Shafqat Mehmood and others v. The State (2011 SCMR 537), Bacha Zeb v. The State (2010 SCMR 1189), Ziaullah alias Jajj v. The State (2008 SCMR 1210 ), Imran Ashraf and 7 others v. The State (2001 SCMR 424) and Lel Pasand v. The State (PLD 1981 SC 142 ).
14. There is another aspect of the case that Muhammad Azam PW-8 alleged eye-witness. while deposing before the learned trial Court has not even named the present appellant. He stated as under;- "At about 1.00 a.m. (night)we again started to search the accused persons and Aftab Mahmood deceased and reached at canal of Peera Da Kot and continued search towards south side reached at bridge Dheengranwali at about 2.00/2.30 a.m. and saw in the light of motorcycles that Azmat All accused caught hold the legs of Aftab Mahmood and Asif accused present in the Court, caught hold Aftab Mahmood from his head and were drowning the deceased Aftab Mahmood after killing him. Third one was at guard. When the accused saw the lights of motorcycles, and we stayed there as we had no arm with us and the accus ed after giving threats of dire consequences ran away"
From perusal of above said portion of deposition of PW-8, it evinces that the name of appellant has not been given by the PWs, even in the Court. During the course of cross-examination, said witness further stated as under;- "We saw the accused from a distance of 10 acres and raised hue and cry. Soon after our hue and cry the accused left Aftab Mahmood and ran away . Then we reached at the place where Aftab Mahmood was lying dead."
So, according to all the witnesses, when they reached at the place of occurrence, it was still dark and according to PW-8, they identified the accused persons from a distance of 10 acres, which does not inspire confidence and it is not only dif ficult rather impossible to identify anyone from such distance.
15. As far as, second portion of evidence of eye-witnesses where they claimed that they have seen the accused persons with dead body of deceased at the place of occurrence is concerned, their availability at the place of occurrence at odd hours of night is also questionable and their reaching at the place of occurrence can be categorized them as chance witnesses, explanation of which has not been advanced by them while appearing as witness before the learned trial Court and there is also no corroborative evidence available on record regarding their claim.
16. As discussed earlier that eight co-accused who have been charged with the offence of murder and kidnapping of deceased, all of them have been acqui tted by the learned trial Court including main accused Azmat Ali, so, since the principle of "falsus in uno, falsus in omnibus " has been fully restored and is made applicable by the august Supreme Court of Pakistan in its recent judgment passed in Cr. Miscellaneous Application No.200 of 2019 in Cr.
Appeal No.238-L of 2013 reported in (PLD 2019 SC 527). So, present appellant also deserves the same treatment.
Even otherwise, there is no independent corroboration available on record qua the culpability of the appellant.
17. As the prosecution was duty bound to prove its case against the accused beyond reasonable doubt by producing cogent, trustworthy and reliable evidence and on its failure to do that, entire benefit arising out of the same shall be resolved in favour of the accused. It is settled law by now that even a single doubt is sufficient for acquittal of the accused. Reliance is placed on the judgments passed by the augu st Supreme Court of Pakistan in cases of "Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), "Munir Ahmad and another v. The State and others " (2019 SCMR 79), "Muhammad Akram v. The State " (2009 SCMR 230), "Ayub Masih v. The State"
(PLD 2002 SC 1048 ) and " Tariq Pervez v . The State " (1995 SCMR 1345 ).
The august Supreme Court of Pakistan in case of "Muhammad Akram v. The State " mentioned supra observed as under; "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts-Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
In another judgment passed in case of "Muhammad Ashraf alias Acchu v. The State mentioned supra the august Supreme Court of Pakistan observed as under;- "It is well settled that benefit of slightest doubt must go to an accused and in a case where the Court reached a conclusion that eye-witnesses were chance witnesses; they had not witnessed the occurrence and the prosecution story is concocted by the PWs, then the case of the accused merits plain acquittal."
18. In sequel of above discussion, instant criminal appeal is allowed, conviction and sentence awarded by the learned trial Court to the appellant Luqman is set aside and he is acquitted of the charge. He is in jail, so, he is ordered to be released forthwith if not required to be detained in any other case.