Mujahid Mustaqeem Ahmed. J.--Muhammad Asif alias Rana Saqib and Naveed Ullah alias Asim Niazi, appellants were tried by the learned Judge, Anti-T errorism Court No,I, Multan, in case F.I.R. No, 150 dated 28.03.2012 under Sections 302/324/353/186/34 P.P.C. read with Section 7 of Anti-T errorism Act, 1997, registered at Police Station Mumtazahad, District Multan. At conclusion of trial, the learned trial Court convicted and sentenced both the appellants as under:-- Under Section 302/34 P .P.C: Each sentenced to suffer imprisonment for life on two counts and also to pay Rs,5,00,0001- compensation under Section 544-Cr .P.C: to legal heirs of each deceased and in case of default in payment of compensation to further undergo simple imprisonment for six months on each count.
Under Section 7 of ATA of 1997:s Each sentenced to suffer imprisonment for life and also each to pay Rs, 5,00,0001- compensation to legal heirs of each deceased and in case of default in payment of compensation to undergo further simple imprisonment for six months each.
Under Section 353 P .P.C.: Each sentenced to undergo one year R.I and also to pay fine of Rs, 10,0001- and in case of default to further undergo simple imprisonment for one month .
Under Section 186 P .P.C.: Each sentenced to suffer two months R.I. and fine of Rs,15001- and in case of default to further undergo simple imprisonment for five days.
1 the sentences were directed to run concurrently . Benefit of Section 12-B Cr.P.C. was also extended to the appellants.
2. Feeling aggrieved of the above conviction and sentences, Muhammad Asif alias Rana Saqib has filed Crl.A.
No,268 of 2013, hereas, Naveed Ullah alias Asim Niazi has assailed the same by way Crl.A. No,270 of 2013. Both these appeals emanating from same Judgment are being decided together through this single judgment.
3. Occurrence in the present case took place on 28.03.2012 at 5.15 a.m. in front of bungalow of Mr. Justice Jehangir Arshad Khan situated at Vehari Road within the territorial jurisdiction of P.S. Mumtazabad, Multan in which Abdul Maalik and Naveed Akhtar , Consta bles were murdered. Initially the F.I.R. was registered against unknown culprits, however , later on both the appellants were booked in this case. Muhammad Gulzar , Inspector/S.H.O.
(PW.19) reported the matter to police station through complaint Ex.PU on the basis of which formal F.I.R. (Ex.PU/1) was registered.
4. Narrating the occurrence in the complaint (Ex.PU) Muhammad Gulzar Inspecto r/S.H.O. (PW.19) disclosed that on 28.03.2012 at 5.15 a.m. he alongwith Muhammad Zafar (PW.20), Rab Nawaz, Constables and Saeed Ahmad, Driver (later mentioned two PWs. given up) was patrolling in the area from "BCG Chowk to Chowk Shah Abbas" on official vehicle and at about 5.15 a.m. they reached in front of the bungalow of Mr. Justice (R) Jahangir Arshad Khan, they heard fire reports and saw three persons (contours mentioned in the F.I.R.) on a motorcycle (registration number/make etc. not narrated). Out of them, two were having pistols. The said three persons while riding on motorcycle started aerial firing and decamped from the place of occurrence towards "Chowk Shah Abbas," Multan City. The complainant further stated that he alongwith police contingent tried to chase the motorcyclists but they drove away into a street and made good their escape and the police party returned to the place of occurrence i,e, police tent installed outside the bungalow and saw that Abdul Maalik. and Naveed Akhtar , Constables deputed at the guard had received firearm injuries out of whom former had succumbed to the injuries whereas later was lying in serious injured condition and told the police party that three persons (narrating same features as noticed by the police party of persons making aerial firing just a few minutes earlier) had entered into police tent and tried to snatch official rifle, but they resisted whereupon the culprits fired at him as well as Abdul Maalik. The complainant prepared injury statement Ex.PS of Naveed Akhtar , Constable and forwarded him to hospital through Zafar Iqbal, Constable.
Naveed Akhtar injured constable also could not survive and breathed his last on the same day after reaching hospital.
5. Muhammad Aslam, Inspector (PW.23) investigated this case. He inspected the spot. During spot inspection he secured four crime empties of 30 bore pistol (P.23/1-4) vide recovery memo (Ex.PX). He arrested the appellants on 27'.4.2012 and got conducted identification parade in jail premises on 3.5.2012. During interrogation Muhammad Asif, appellant allegedly made disclosure and then led to the recovery of a kalashinkov and G.3 rifle which the investigator secured vide memos. Muhammad Zubair alias Zafar , co-accused however , could not be arrested as such the investigator got him declared proclaimed offender on 16.8.2012 and submitted challan against the appellants to face trial.
6. On 28.3.2012, Dr. Amir Qayyum PW.6, conducted post mortem examination on the dead body of Abdul Maalik (45 years) and observed following injuries: 1 (a) A lacerated wound of entrance 1x1 cm on left lateral part of chest, 9 cm below axilla with abraded color and inverted margins going deep.
1(b) A lacerated wound 3/4 cm x 314 cm on the back of right side of lower abdomen with everted margins going deep.
In the opinion of the doctor both the injuries were ante mortem and caused by firearm weapon. Injury No,1 proved fatal which was sufficient to cause death in normal course of life. Probable duration between injuries and death was immediate whereas between death and post mortem was 6 to 10 hours.
7. On the same day i,e, 28.3.2012, Dr. Asif Jamal Ansari PW.7, performed autopsy on the dead body of Naveed Akhtar (22/23 years) and observed following injuries: 1(a) A lacerated wound of entry measuring 3/4 x 3/4 cm with inverted margins and abraded collar , more on left side of the wound, situated on the back and lower part of chest in the midline. Tattooin g was present more on the left side of the wound. No burning/blackening was seen.
1(b) A lacerated wound of exit measuring 3/4 x 1 cm with everted margins oval in shape on the back and right side of chest, 2 cm below the inferior angle of right scapula.
2(a) A lacerated wound of entry measuring 3/4 x 3/4 cm, going deep with inverted margins and abraded collar , on the upper part and medial side of right thigh 2 cm below the right inguinal region. No burning/blackening or tattooing seen.
2(b) A lacerated wound of exit measuring 1 cm x 3/4 cm with everted margins on the right buttock on the medial side.
3. A lacerated wound of entry measuring 2.5 cm x 1/2 cm with inverted margins and abraded collar (grazed type wound) on the radial side of right hand thumb on the proximal phalynx.
4. A grazed wound (entry) measuring 5 cm x 3/4 cm on the front of right lower leg, 10 cm below the right knee joint with inverted margins and abraded collar present. It is skin deep wound.
The injuries were ante mortem and caused by fire arm weapon. Injuries No, 1 and 2 proved fatal and were sufficient to cause death in ordinary course of nature. Probable time between injuries and death was 8 to 12 hours and between death and post mortem was 1 to 3 hours.
8. At commencement of trial the prosecution produced as many as twenty three witnesses out of whom Muhammad Gulzar , Inspector/complainant and Zafar Iqbal, Constable PWs. 19 and 20, provided ocular account of the occurrence. Mr. Javed Iqbal, Judl. Magistrate 1st Class (PW.4) proved identification parade proceedings whereas Dr. Amir Qayyum, Dr. Asif Jamil Ansari and Dr. Tariq Nawaz Babar ,. (PWs. 6, 7 and 15) provided medical evidence whereas Muhammad Aslam, Inspector/investigator PW.23 proved his investigation. Rest of prosecution witnesses were more or less formal in nature. At close of prosecution evidence, the accused persons were examined under Section 342 Cr.P.C. They denied and dismissed each piece of prosecution evidence and claimed innocence. To a question, "Why this case against you and why the PWs deposed against you?" Muhammad Asif alias Rana Saqib, appellant replied as under: "I have no concern with the occurrence. Local police implicated me in the above mentioned case with malice and to get score as well as to get reward from the high-ups and from the media. It is fact that initially on 1.2.2012 some of the unknown accused persons forcibly snatched rifle G-3 from one Faisal Adil 4212/C from the same spot and later on, the above occurrence took place in which two police officials lost their lives. Local police initially implicated a set of accused namely Iftikhar Ahmad and Shahzad Ahmad. The star witness Faisal Adil 4212/C recorded his supplementary statement on 4.3.2012 against the above named two persons i,e, Iftikhar and Shahzad. Both Iftikhar and Shehzad faced agony of the police for full 14 days on physical remand and then after they sent to judicial lock up. Then on 15.4.2012, investigating officer recorded so called statements of Malik Fida Hussain and Muhammad Ishaaq regarding extra judicial confession of accused Naveed Ullah, in which he admitted that he alongwith Muhammad Zubair accused took part in the occurrence then the investigating officer got recorded the statement of Naveed Ullah accused, in which, he stated that the rifle G-3 No, 13655 was kept under the custody of Muhammad Asif and then local police showed a recovery of G-3 rifle in which he himself wrote that the number is tempered one.
It is also fact that my brother namely , Dr. Akbar Ali who served his duties in DHQ Hospital, Vehari was murdered on 20.5.2010 at about 10.00 p.m. by Yasir Rahman and three unknown persons in the hospital, upon which, FIR No, 146/10 dated 21.5.2010 u/S. 302/34 PPC was got registered in Police Station Danewal, District Vehari,. After the completion of trial, Yasir Rehman awarded death sentence while the other accused namely Umar Zaman Constable etc. were acquitted from the charge. One of the acquitted accused is the police constable and they want to pressurize me to compromise with Yasir Rahman for that purpose, an FIR No, 241/10 dated 1.9.2010 u/S. 302, 324, 34 PPC was registered against me regarding the death of deceased Sabir Hussain alongwith my brother in law (Behnoi) namely Liaqat Ali in Police Station Danewal, District Vehari. I filed bail before arrest in the above mentioned case before the Additional Sessions Judge, Vehari and appeared before the local police, during the investigation, compromise has been effected between the legal heirs of Sabir Hussain deceased in case FIR 241/10 and the legal heir of Sabir Hussain appeared before the court of Mr. Bashir Ahmad Ch. ASJ. Vehari on 26.10.2010 and got recorded their statement. On 1.11.2010 when I was going to be appeared before the court of A.SJ Vehari alongiwth Muhammad Kabir and Muhammad Afzaal, Rana Muhammad Akram S.I. of P.S. Danewal and 6/7 unknown persons abducted me and detained in different cities as well as places. Rana Muhammad Akram S.I. with malice handed over me to Rana Muhammad Farooq CIA, who implicated me in case FIR No, 198/12 u/S. 13/20/65 A.O. registered at Police Station Mumtazabad. My father filed a writ petition No, 13261 10 of titled "Muhammad Younis Vs. District Police Officer Vehari etc. regarding the recovery of mine before Hon'ble Lahore High Court, Multan Bench, Multan but the local police did not produce me before the Hon'ble Lahore High Court Multan Bench, Multan and then on 7.11.2012 the same was withdrawn in which the police officer of P.S. Danewal, Vehari appeared before the court and stated that Muhammad Asif is it Central Jail, Multan in case FIR Nos, 150, 75, 198 of 2012 registered at Police Statio n Mumtazabad. The secret agencies caught hold me alongwith the other persons and investigated regarding the relation with the banned organization and when they did not find anything against me they handed over me to the local police who implicated me in the above said FIRs, When, I was sent to judicial lockup. I was picked by the agencies from the New Central Jail, Multan and shifted to sub Jail Chung on 9.7.2012 and in that place, police officials gave severe torture to me in those days. I came to know that one of the police officials, namely , Abdul Razzaq, Inspector was .involved in the above said occurrence and the so called rifle was also recovered from him and just to save the skin of Abdul Razzaq, Inspecto r, the police officials proceeded against me. It is also fact that departmental proceedings were also initiated against Abdul Razzaq, Inspector but the same was not in the judicial as well as the police file, which is the secret one. My father also filed a habeas petition before the learned Sessions Judge. Multan, in which, the uperintende nt Jail furnished his comments regarding the same. I also filed a writ petition No, 10257/12 in the Lahore High Court, Multan Bench, Multan. No incriminating material was recovered from my possession. Kalashnikov P. 7 is a licensed one and the license was in my name. The same was forcibly picked by the local police from my house alongwith Honda car bearing registration No, FDX12128, which is in the name of Muhammad Afzaal and planted the same upon me, while I am innocent. All the PWs are police officials, they deposed against me with the fear that if they did not depose the same then they will be kicked out from their service."
To the similar question, Naveed Ullah alias Asim Niazi, appellant replied as under: "It was unseen night occurrence. Before my arrest, police arrested two accused namely lftikhar and Shahzad in this case who confessed before the police of their guilt but they were released after under hand dealing due .to approach of MNA. I was arrested alone when I was going for medical checkupl consultation in the Rickshaw alongwith my medical record because I am suffering from Hepatitis-C. The police deputed at picket of BCG Chowk stopped the rickshaw and abused me without any reason and I re-acted against the police conduct. The police arrested me and involved falsely in this case due to pressure of public protest and wanted to show their efficiency .
The police booked me in this case falsel y and concocted story was created regarding my guilt. All the PWs. are police officials who were interested witnesses because police is also complainant of this case. I have no previous criminal record. "
The appellants tendered documents in their defence. They , however , neither appeared in witness box under Section 340(2) Cr.P.C. nor produce any other witnesses in their defence. At conclusion of trial learned trial Court convicted and sentenced the appellants as noticed above.
9. Learned counsel for the appellants canvass acquittal for the appellants on the grounds that it was a night time occurrence which was committed by unkn own culprits and no one had seen the occurrence which took place inside a police tent; that. since the real culprits were not traceable and it was a sensitive crime, therefore, just to show their efficiency the police made the appellants scapegoat. Further submit that identification parade in this case has been conducted in flagrant violation of instructions issued by this Court on the subject and thus has no evidentiary value and that fake recoveries have been planted on the appellants, as such the appellants deserve acquittal.
10. Conversely , learned Law Officer defends conviction awarded to the appellants on the ground that there was no mala fide on the part of the complainan t/I.O. or the ether witnesses to falsely implicate the appellants in this occurrence; that identification parade has been conducted in which the prose cution witnesses had correctly identified the appellants being the culprits and that as per report of Forensic Science Agency (Ex.PMM), 30 bore pistol recovered from Naveed Ullah, appellant has matched with the crime empties (P.23/1-4) secured by the 1.0. from the place of occurrence vide recovery memo Ex.PX and as such the ocular account is corroborated by the identification parade and recoveries and thus the prosecution case is proved against the appellants beyond doubts.
11. Learned counsel for the parties have been heard and record perused with their assistance.
12. Initially the F.I.R. in the present case was lodged against unknown culprits. Muhammad Asif and Naveed Ullah, appellants were arrested by the police on 27.4.2012 on the allegation of keeping illicit arms and criminal cases for such crimes and even cases were registered against them and there allegedly they confessed having committed present crime as such they were booked in this case.
13. The prosecution in this case is equipped with the evidence of "Waj Takr" provided by Muhammad Gulzar , Inspector and Zafar Iqbal, Constable PWs. 19 and 20 coupled with the evidence of identification parade and recoveries from the appellants.
14. According to the complainant's version, on the fateful day and time he being the S.H.O. of Police Station Mumtazabad, Multan alongwith other police officials was patrolling at Vehari Road on official vehicle and when they reached in front of bungalow of Mr. Justic e Jahangir Arshad Khan they heard fire reports and saw three persons (contours given) riding on a motor cycle out of whom two were holding pistols in their hands. The said persons started aerial firing and flitted towards "Chowk Shah,Abbas,". The police party chased the culprits but they succeeded to decamp in a street and the police party returned to the place of occurrence, and noticed that in police tent installed outside bungalow of Mr. Justice Jehangir Arshad Khan, Abdu l Maalik, and Naveed Akhtar , Constables had received firearm injuries out of whom Abdul Maalik had expired whereas Naveed Akhtar was lying in serious injured condition. The witness claimed that Naveed Akhtar , Constable narrating same features of culprits as had been noticed by him of persons who had made aerial firing, stated that three persons had entered the police tent and tried to snatch their official rifle but they resisted upon which the unknown persons fired at him as well as upon Abdul Maalik, Constable and succeeded to flee from the spot. (It may be mentioned that as to whether Naveed Akhtar , injured (later on died) was in a position to make statement and identify the culprits is a question to which prosecution has no satisfactory reply). He further claimed that he sent Naveed Akhtar injured to the hospital for, treatment through Zafar Iqbal, Const able. He further claimed that he had participated in identification parade conducted in jail premises and correctly identified the appellants during said proceedings. During cross- examination he was unable to specify the time when he went to the police station in performance of officials duties on 27.3.2012. He further showed his inability to state whether he had incorporated his departure from the police station on the night intervening of 27/28.3.2012. He, however , deposed that as per Rapat No, 28 dated 28.3.2012 at 12.05 a.m. he alongwith Zafar Iqbal, Rab Nawaz, driver Saeed Akhtar had left the police station for patrolling duty in the area on official vehicle and his arrival in the police station was incorporated vide Rapat No, 5 dated 29.3.2012 at 7.50 a.m. He conceded that his arrival in police station on 28.3.2012 after the occurrence has not been incorporated. He further claimed that he saw the accused on motorcycle (details not given) from distance of 50 feet near the bungalow of Mr. Justice Jahangir Arshad Khan. As per prosecution, it was a dawn time occurrence. Ever then no source of light at/around the place of occurrence has been stated. The complainant disclosed that he chased the accused up to a distance of about 100/125 yards on official vehicle but they managed to escape from the view of the police party . He further explained that "Kameez " of one accused had covered registration number plate of motor bike, therefore, he could not note down the registration number . He claimed that he had joined identification parade proceedings in District Jail, Multan on 5.5.2012 (actual date is 3.5.2012) and had correctly identified the appellants being culprits of the case. He disclosed that it was in his knowledge that the appellants were booked in case F.I.R. No, 198 & 199 of 2012 under Section 13/20/65 Arms Ordinance in Police Station Mumtazabad. He, however , tried to clarify that he had gone to arrest proclaimed offenders in the area of Peer Mahal on 27.4.2012 at 8/9.00 a.m. and came back to police station on 28.4.2012 at 10/11 p.m. He, however , conceded that report under Section 173 Cr.P.C. in the said case had been forwarded by him on 29.4.2012, but refuted the suggestion that the accused remained in police lock up of Police Station Mumtazabad from 27.4.2012 to 29.4.2012.
15. Zafar Iqbal, Constable PW. 20 was also accompanying the S.H.O./complainant at the time of patrolling. He supported version of the complainant at trial. He, however , explained that the accused taking advantage of streets managed to escape from the scene of occurrence. He deposed that he took Naveed Akhtar injured to Nishtar Hospital, Multan in a private "Dela". This witness admitted that he and Rab Nawaz, Constable had official weapons with them at the time of occurrence. However, they did not fire at the accused when they were chasing them on police van. He deposed that on 5.5.2012 (exact date 3.5.2012) he was verbally directed by the investigator to go to Distt. Jail, Multan for identification of the accused where the Magistrate called him inside the jail for identification of the accused at 2.00 p.m. He conceded that both the appellants had different face, features and height from each other .
16. Muhammad Aslam, Inspector/investig ator (PW.23) deposed that both the appellants were in police custody in connection with cases F.I.Rs, No, 198 and 199 of 2012 of Police Station Mumtazabad on 27.4.2012 when they confessed about their involvement in the present occurrence and as such he formally arrested them in this case and sent to judicial lock up and got conducted identification parade on 3.5.2012 under the supervision of learned Magistrate (PW.4) in which the witnesses identified these accused. He further claimed that during interrogation Naveed Ullah, appellant also got recovered a motor cycle and Asif, appellant made disclosure and then led to the recovery of a kalashinkov and G-3 rifle (official weapon) which were taken into possession vide recovery memos.
He further disclosed that he had made interrogation, from one Muhammad Hussain and Khurshid Ahmad in the present case but set them free being not connected with the crime. However , he stated that he did not put said Muhammad Hussain and Khurshid Ahmad to the test of identification parade from the eye-witnesses. The safest inference from such investigation is that prosecution was not definite about real culprits and as such interrogated various persons suspecting their involvement in this double murder case.
17. Mr. Javaid Iqbal, Judicial Magistrate 1st. Class, Multan appeared as PW. 4 and deposed that he was deputed on 30.4.2012 to supervise identification parade proceedings in Distt. Jail, Multan which were ultimately conducted on 3.5.2012 in jail premises. The witness deposed that all the four witnesses i,e, Zafar Iqbal, Rab Nawaz, Saeed Ahmad, Constables and Muhammad Gulzar , Inspector correctly identified the appellants as accused for having committed the crime. In cross-examination, he conceded that the accused persons had raised objections that they were apprehended 24 days prior to identification parade. He also conceded that one Muhammad Rafiq, warrantee remained present when the accused were made to sit in two rows set up for identification parade and thereafter he (Muhammad Rafiq) had been sent to call the witnesses one by one.
18. Giving contours of the culprits in the F.I.R. the complainant had stated that they were young persons of "Saanwla" (blackish) complexion out of whom two were of average height and stout body whereas third one was having tall height, slim and smart body . However , at trial, during cross-examination the complainant admitted that in the slip of punishment while giving features of the culprits he had mentioned "Gandumi" colour of the appellants which did not match with features given in the F.I.R. It was claim of the S.H.O. that at the time of occurrence they were patrolling on official vehicle. Howev er, we have noticed that Zafar Iqbal, PW. claimed that he took Naveed Akhtar injured Constable to the hospital on a private "DaIa. Although no hard and fast rule can be framed about human conduct, but in normal course of events if the police party had reached the spot at the time of occurrence and had seen their colleague in serious injured condition their first and foremost priority would have been to shift him to the hospital in official vehicle readily available with them at the relevant time. However , there is no explanation for this lapse. It is not availab le on record that any crime empty had been taken into possession by the I.O. during spot inspection from the place where allegedly , the accused had made aerial firing. This discrepancy negates claim of P.Ws. 19 and 20 that they saw that the culprits had made aerial firing and is a strong circumstance to infer that the S.H.O. and the other police party was not present at/around the place of occurrence at relevant time and had come later on. Our inferen ce gets support from the circumstance that as per claim of these P.Ws.
Zafar Iqbal and "Rab Nawaz, Constables were having official weapons with them at that time. If this was so, then why did they not fire at the culprits in order to apprehend them in hot pursuit. We have also observed that as per complainant the occurrence took place at 5.15 a.m. but as per Dr. Tariq Nawaz Babar , PW. 15, Naveed Akhtar (deceased) was received in the hospital at 6.55 a.m. Consuming one hour and forty minutes in dispatch of injured to the hospital also belies the story of P .Ws. that they reached the spot at the time of occurrence.
19. So far as identification parade is concerned, we have noticed that both the appellants were already in police custody if not earlier at least on 27.4.2012 in connection with illicit arms cases registered against them and the P.Ws. had ample opportunity to see them because Muhammad Gulzar , Inspector /complainant was S.H.O. of the police station whereas Rab Nawaz and Saeed Ahmad, Constables PWs. were also posted in the said police station on the said date. The stance of the complainant that on the day when the accused were arrested in this case on 27.4.2012 he was away from police station in connection with arrest of some proclaimed offenders appears to be evasive answer and is not believable because he has not substantiated his stance by any document particularly when on the very next day he himself prepared report under Section 173 Cr.P.C. As such his mere bald assertion cannot be given any weight and testimony of these witnesses regarding identification of the accused persons during identification parade is not worth reliance. The appellants had duly taken objection that they had been shown to these witnesses at police station. We have also perused the identification parade proceedings (Ex.P .B.).
To our dismay , same were not conducted as per instructions given in the Lahore High Court Rules and Orders on the subject as the Magistrate conducted joint identification parade in one go by making both the appellants to sit in two lines whereas as per rules it was obligatory for the supervisory Magistrate to conduct identification parade turn by turn by mixing them with dummies but in this case said procedure has not been followed. As per statement of the Magistrate Muhammad Asif, appellant was sitting with dummies at Serial No, 10 whereas Naveed Ullah, appellant was sitting at Serial No, 6 in second row throughout the identification parade. We have noticed that all the four witnesses participated in the identification parade one by one but neither position of the appellants was changed nor that of dummies. Even the appellants were not fairly offered to chang e their position. As noted above, these appellants were in custody w,e,f, 27.4.2012 and identification parade was conducted on 3.5.2012 i,e, after 6 days of their arrest. This delay creates doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons in the police station. In view of case Shafqat Mehmood and others v. The State (2011 SCMR 537) such identification parade has no legal sanctity . Moreover , the occurrence took place at dawn time. No source of light has been shown in rough and scaled site place to properly identify the real culprits. At the most the P.Ws. had seen fleeting glimpses of the culprits just for few moments and that too under fear of aerial firing. Thus the P.Ws. were not in a position to exactly and correctly identify the appellants. As such we discard this piece of evidence.
20. So far as recoveries of pistol (P. 12) from Naveed Ullah and kalashinkov and G-3 rifle (P. 18) from Muhammad Asif, appellant are concerned, it may be noted that it was not alleged that official rifle (G.3) had been snatched from the deceased persons by the culprits. Even the investigator himself had admitted that this rifle was case property of case F.I.R. No, 75/11 of Police Station Mumtazabad. Further-more no crime empty of rifle G.3 had been collected by the investigator from the place of occu rrence. Similar was the position of kalashinkov as there is no allegation of use of kalashinkov in the present occurrence. Therefore, recoveries of these two weapons do not strengthen the prosecution case. So far as recovery of pistol from Naveed Ullah, appellant is conc erned, it has been observed that record is silent that any pistol had been recovered from Naveed Ullah, appellant during investigation of this case.
The report of Punjab Forensic Science Agency Ex.PMM depicts that 30 bore pistol deposited with the agency on 11.5.2012 had matched with the crime empties deposited in the agency on 24.3.2012. Worth mentioning to note that occurrence in the present case had taken place on 28.3.2012 then how the crime empties reached the agency four days before the occurrence, is a mystery . What can be inferred from this report is that the crime empties of some earlier case had been deposited in the agency on 24.3.2012 and the same had matched with the pistol recovered from Naveed Ullah, appellant but the same were thrust into the present case. Thus it would not be safe to rely on such recovery of pistol and to connect it with this case.
21. Prosecution also relied on the recovery of motor cycle (P. 19) from Naveed Ullah, appellant secured by the I.O. vide memo Ex.PBB. Suffice it to say, that PWs. 19 and 20 during investigation or even at trial did not state about registration number or make/model of motor cycle used by the culprits at the relevant time, so recovery of motor cycle does not connect them with the commission of crime. Even otherwise the Investigator did not investigate about ownership of the said motor-cycle to connect the same with the appellants. Thus the evidence of recoveries appears to be fake and manoeuvred and created later on to strengthen the prosecution case. In view of dictum laid down in case Mursal Kazmi v. The State (2009 SCMR 1410 ) that one tainted piece of evidence cannot corroborate the other tainted piece of evidence, we discard the same from consideration.
22. As per prosecution case Naveed Akhtar (deceased) was still alive when he was shifted to hospital through Zafar Iqbal, Constable. Dr. Tariq Nawaz Babar , PW.15 medically examined Naveed Akhtar while he was in' injured condition and observed that the patient was drowsy and having four firearm injuries out of which two were entry wounds. Dr. Muhammad Saeed, PW.5 who received Naveed Akhtar after thoracotomy operation in emergency OT deposed that the patient was in very serious condition; was unconscious and he was ambo ventilation and expired on same day. It cannot be denied that Dr. Amir Qayyum and Dr. Asif Jamil Ansar i, PWs. 6 and 7 conducted post mortem examination on the dead bodies and time of injuries suggested by the doctors coincides with the time of incident but it is settled principle of law that medical evidence can prove the injuries but cannot prove by whom it had been caused. As such in view of case Muhammad Tasawar v. Hafiz Zulqarnain (PLD 2009 SC 53) medical evidence in the present case is of no avail to the prosecution.
23. The epitome of above discussion is that the appellants are not named in the F.I.R. which was lodged against unknown culprits; as per prosecution case it was dawn time occurrence but no source of light has been stated by PW. 19; the very foundation on which whole prosecution case has been built is identification parade which has not been conducted in accordance with rules and is not free from doubt as the witnesses (police employees) had ample opportunity to see the appellants in the police station; delayed escorting of Naveed Akhtar injured to hospital negates the prosecution story of commiss ion of offence in the mode and manner reported in the F.I.R.; although it was admitted that the police officials/witnesses had official weapons with them at the time of occurrence but none of them tried to use it to foil escape of the appellants from the venue of occurrence. This very unnatural conduct on the part of the witnesses shows that PWs. 19 and 20 were not present at the place of occurrence and did not see the culprits and their evidence has been fabricated and manoeuvred which is not only flimsy but is also replete with contradictions and dishonest improvements. In view of material contradictions in their statements, we do not think them of worth reliance. Recoveries as discussed above are of no avail to the prosecution. It was a case of no evidence as prosecution story is full of doubts. Conviction cannot be based on such [ shaky evidence which is not free from doubts. Needless to mention that benefit of doubt must go to the accused and we hold accordingly .
Steering thoughts in this regard have been gathered from the cases Muhammad Mansha v. The State (2018 SCMR 772), Mst. Nazia Anwar v. The State and others (2018 SCMR 911), Azhar Mehmood and others v. The State (2017 SCMR 135), Ayub Masih v. The State (PLD 2002 SC ' 1048 ), Muhammad Akram v. The State (2009 SCMR 230), Amin Ali and another v. The State (2011 SCMR 323), Arif Hassain and another v. The State (21983 SCMR 428) and Tariq pervaiz v . The State (1995 SCMR 1345 ). In the last one, following principle was laid down.
"The concept of benefit of doubt to an accused person is deep-rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right"
24. Net result of above discussion and observations is that Cr. Appeal No, 268 of 2013 and 270 of 2013 are allowed, conviction and sentences of the appellants are set aside and they are acquitted of the charge. They be set at liberty forthwith if not required to be detained in any other case.