SHAUKA T ALI RAKHSHANI, J.---Appellants Niaz Muhammad and Hazrat Wali have assailed the judgment rendered on 7th of August, 2003 (To be called as "Impugned Judgment") handed down by Additional Sessions Judge, Karak (referred as "Trial Court") whereby the respondents Zar Wali Khan, Rehman Ullah, Umar Zaman and Muzaf far Khan have not been found guilty , resulting into their acquittal, in case FIR No, 214, dated 13th November , 1998, Police Station Karak.
2. Back-drop of the instant unfortunate occurrence is that on 13th of November , 1998 on the basis of report (Ex.P A/1) made by Roshan Badshah (P.W.8) an FIR (Ex.P A) was registered at 9.30 pm, contending therein that he is cleaner of the truck bearing No,7574 PRD, owned by Amir Janan (deceased) and on the fateful day after unloading the bricks from the said truck, were on their way back to village, at 8.40 p.m. when they reached Ghazi Qila, three persons suddenly emerged from the right side of the road duly armed with Kalashnikovs, amongst whom one was having a beard, wearing green colour clothes, whereas the other two were muffled faces, made indiscriminate firing, whereby driver Amir Janan (deceased) and Hazrat Wali (P.W.13) sustained injuries whereas he remained safe, however , the truck went out of control and struck into the trees.
He categorically stated that he could not identify the said unknown assailants. He added that people from the village came there and injured were taken to hospital and in clear words stated that he has enmity with none.
3. Hussain Bad Shah, SHO (P.W.12) after registration of the FIR (Ex.P A) prepared injury sheets of Hazrat Wali (Ex.PW .9/2) and (Ex.PW .9/4) of Amir Janan (deceased), and proceeded to the spot but due to darkness further inspection was postponed for the followin g morning. On the next morning, he went to the crime scene, prepared site plan (Ex.PB) on the pointation of Roshaan Badshah (P.W.14). He took into possession an empty shell of .12 bore, and an empty shell of bore 7 mm through recovery memo (Ex.P-2) and two empties of 7.62 bore through recovery memo (Ex.P-6) as well as the truck bearing No,7574-PRD through recovery memo (Ex. P-7) having bullet marks on the right side as well as on some other parts of the vehicle through recovery memo (Ex.PW .6/1), and the stains of blood through cotton buds.
Amir Janan, who sustained injuries succumbed in Lady Reading Hospital. Dr. Anjum Zia (P.W.18) conducted the post mortem examination of the decea sed Amir Janan and issued report (Ex.PM). He made the following observations: "External .
No marks of ligature on the neck or dissection seen. A middle aged man of 50/52 years of age wearing off-white shalwar kameez and vest blood stained, of good built. P .M lividity and rigor mortis developing.
Wounds
1. A fire arm entry wound on right side of skull 8 cm from right ear , 8 cm from mid line, 7 x 5 cm in diameter .
2. A fire arm exit wound on left side of skull, 1 1 cm from left ear , 3 cm from mid line, 6x3 cm in diameter .
Internal.
Cranium and spinal cord.
Scalp and skull injured. Membranes and brain injured.
Abdomen.
Stomach healthy and empty .
Muscles, bones, joints .
As mentioned in the injury sheet. Skull fractured.
Remarks.
In my opinion, the deceased died due to injury to brain".
4. Hazrat Wali (P.W.13) was medically examined by Dr. Ishtiaq Ahmed (P.W.1), who noted; wounds at a distance of 1/2" apart on left lateral side of the back, close to the iliac crest which were all superficial, not penetrating deeply and only 1/6" deep as if wounds appeared due to striking of pellets indirectly from nearby object. Nature of injuries were found to be simple caused by fire arm. Doctor (P.W.1) issued medico legal report (Ex.PW .9/1) and endorsed the injury sheet (Ex.PW .9/ 2). The Investigating Officer (P.W.12) on 30th of November , 1998, secured blood stained shirt of the deceased through recovery memo (Ex . PW .4/1) , however earlier before on 22nd November , 1998, respondent Zar Wali Khan appeared before him in the police station, who vide card of arrest (Ex.PWE.17/ 2) was arrested, following pointation of the place of occurrence, whereof memo of pointation (Ex.PB/1) was prepared. On 3rd of December , 1998, the identification parade of respondent Zar Wali was conducted by Hazrat Wali (P.W.13) under the supervision of Mr .Imran Qureshi, Tehsildar (P .W.10).
On 23rd of November , 1998 Roshaan Badshah (P.W.8) through supplementary statement nominated respondents Zar Wali, Muzaf far Khan, Umar Zaman and Rehman Ullah. On 28th of December ,1998 respondent Umar Zaman was arrested vide his card of arrest (Ex.PW .17/4), who on Ist of January , 1999, led the police party to his house, where-from a 8. mm Rifle and five live cartridges through recovery memo (Ex.PW .16/1) were secured. On 4th of January , 1999, identification parade of respondent Umar Zaman was conducted by Hazrat Wali (P.W.13) under the supervision of (P. W.10). Initially , incomplete challan following a complete challan after the arrest of co-respondents and receipt of the reports from the Forensic Science Laboratory ("FSL") regarding blood stained clothes and swabs (Ex.PW .17/6) as well as 8 mm Rifle (Ex.PW .17), were initially submitted in the court of Special Judge constituted under The Anti Terrorism Act 1997, where the court proceeded and recorded some evidence but then it was transferred to Anti-T errorism Court Kohat, and finally case file was transmitted for want of jurisdiction to the Trial Court.
5. After denial of the charges framed under sections 17(2) and 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter called as "Hudood Ordinance") by the respondents, the prosecution to establish the accusation produced as many as 13 (thirteen) witnesses and on the conclusion of the prosecution evidence the respondents were examined under section 342 of The Code. The appellants repelled the allegations so put forth during such examination, professing their innocence but did not opt to make statement on oath and produce defence evidence.
6. At the end of trial, the respondents were found not guilty , thus the Trial Court recorded their acquittal on the basis of deficiencies observed in the evidence and serious doubts in the case of the prosecution.
7. Criticizing the Impugned Judgment learned counsel for the appellants Malik Zeb, inter alia contended that while recording acquittal, the Trial Court has erred in not taking into account the confidence inspiring testimony of complainant Roshaan Badshah (P.W.08) and Hazrat Wali injured (P.W.13,) who have fully implicated the respondents in the crime. Hazrat Wali injured (P.W.13) in the court as well as during the identification parade conducted under the supervision of Mr. Imran Qureshi, Tehsildar (P.W.10 in previous trial) has rightly identified respondent Zar Wali and Umar Zaman. He maintained that the Trial Court has failed to discuss the evidence of the aforesaid witnesses in the judgment impugned herein and has failed to assign any cogent reason for acquitting the respondents, which has made the Impugned Judgment contrary to law and facts, suffering from perversity , misreading and non-reading of the evide nce. He added that the Trial Court has also not appreciated the ocular account as well as the corroborative evidence produced in the form of recovery of crime weapon and empties wedded with the positive FSL report, resulting into mis-carriage of justice, which findings merits to be put at naught.
8. On the contrary learned counsel for the respondents M/s. Mr. Ahmad Jan Khattak and Adnan Khattak vehemently refuted the arguments advanced by the learned counsel for the appellants and urged that he has failed to point out any perversity and illegality committed by the Trial Court, while recording acquittal of the respondents.
According to him, complainant Roshaan Badshah (P.W.8) in clear words while lodging the report stated not to have identified the assailants, who was not injured, then how come Hazrat Wali (P.W.13), who statedly got injured could identify the culprits in such engulfed darkness at night.
Continuing his arguments, he contended that the identification parade also suffers from legal infirmities and stipulated procedure enumerated by apex court as well as by this Court, making the entire process of identification parade a nullity in the eyes of law, whereupon no reliance can be placed. He also stated that there is material contradictions in the statement of prosecution witnesses in respect of the ocular account as well as the circumstantial evidence, particularly , with regard to the recovery of pistol and empties whereof a manipulated FSL report has been procured, having no evidentiary value to hold the respondents guilty of the charge.
9. Conversely , Mr. Willyat Khan, learned Assistant Advocate General, Khyber Pakhtunkhwa at the very outset, graciously supported the Impugned Judgment and concurred with the arguments advanced by the learned counsel for the respondents. He added that unless the findings of the Trial Court are found to be arbitrary , against the record and available evidence, the Impugned Judgment cannot be interfered with. According to him, the Trial Court has thoroughly dilated upon the evidence available on record, which does not suffer from any infirmity , illegality , thus prayed for dismissed of the appeal.
10. We have carefully and cautiously examined the evidence available on record with the valuable assistance rendered by the adversaries.
11. On the basis of evidence adduced by the prosecution, we have formulated moot points for the purpose of reappraisal of evidence, which revolves around ocular account furnished by Roshaan Badshah complainant (P.W.8) and Hazrat Wali injured (P.W.13), recovery of crime empties and weapon wedded with the FSL positive report, pointation of the place of occurrence made by Zar W ali and medical evidence.
12. Case of the prosecution originates and unfolds pursuant to the murasila (Ex.P A/1) on the basis whereof FIR (Ex.P A) was got registered by Roshaan Badshah (P.W.8). When examined in the court, he (P.W.8) reiterated the contentions as recorded in the report (Ex.P A/1). According to Hazrat Wali (P.W.13) he is daily wage labour and on the day of occurrence, he along with deceased Amir Janan and Roshaan Badshah (P.W.8) had unloaded bricks in village Essak Chountra and while returnin g back, when they reached near Ghazi Killa he saw three persons on the right side of the road armed with Kalashnikovs, amongst whom one was with beard in green dresses, while the other two were muffled faces, wearing black dress, who made indiscriminate firing, causing injuries to him as well as to driver Amir Janan (deceased). He clearly stated not only in the said report but in the court as well that he could not identify the assailants. He (P.W.8) did not give the description' of the assailants except stated that amongst them one was with beard, wearing green colour clothes, whereas two others were muffled faces, who emerged from the right side of the road and made indiscriminate firing when culprits came in front of the head lights of the truck.
In similar word Hazrat Wali (P.W.13) affirmed what Roshaan Badshah (P.W.8) had stated but did not say that he can identify the assailants and strangly enough identified Zar Wali in jail premises on 3rd of December , 1998 as well Umar Zaman in the identification conducted on 4th of January , 1999 held under the supervision of Mr.Imran Qureshi Tehsildar (P .W.10).
Hazrat Wali injured (P.W.13) had a glance of the culprits who made firing, as stated by Roshaan Badshah (P.W.8), but he (P.W.13) while exaggerating and improving his stance identified the respondents Zar Wali and Umar Zaman in the identification parade which cannot be justified. He has failed to prove his presence because as a daily wage labour usually neither he accompanies the deceased and Roshaan Badshah (P.W.8) nor has he established that he resides within the same vicinity , where the deceased and Roshaan Badshah (P.W.8) resides. According to both the eye-witnesses, there were assailants who made firing but surprisingly at a belated stage on the supplementary statement of Roshaan Badshah (P.W.8) four persons (respondents) were nominated. Thus the number of the assailants astonishingly increased from three to four. In cross-examination, he (PW.13) admitted that the occurrence took place in the wink of an eye but he claimed to identify the culprits, which assertion cannot be considered to be true and probable, particularly , when he had sustained injuries and he remained in hospital for several days. If his statement is believed to be a gospel truth, even then the question arises that if he could identify assailants in such short spell of time then as to why Roshaan Badshah (P.W. 8) being cleaner of the truck and more vigilant as per his duty failed to identify the assailants in such spell in the head lights of the truck. No prudent mind can believe that in such dark night, possibility (P.W.8) and (P.W.13) were able to identify the assailants, who emerged in the wink of an eye, made indiscriminate firing and escaped.
13. After scanning the testimony of injured Hazrat Wali (P.W.13) and Roshaan Badshah complainant (P.W.8) from various angles, we do believe that though Hazrat Wali (P.W.13) has sustained injuries in the occurrence but with regard to identification, we do not believe him. His testimony cannot be considered to be true, merely for the reason that he had sustained injuries and cannot tell lie. In this regard we would like to refer to the case of Nazir Ahmed v. Muhammad Iqbal and another (2011 SCMR 527), wherein it was held that the injuries of a prosecution witness only indicate his presence at the spot but are not af firmative proof of his credibility and truth.
Be that as it may, there is a considerable delay in recording the statement of Hazrat Wali injured (P.W.13). Although an attempt has been made to offer an omnibus explanation that he was admit ted in hospital, but the injuries sustained, absolutely does not justify him. There is no evidence on record to establish that he was unable to get record his statement in such ailment, henceforth, his statement at such a belated stage impairs its evidentiary value, whereupon explicitly no reliance can be placed. Reference can be made to the cases of Muhammad Asif v.
The State (2017 SCMR 486 ) and Ghulam Qadir and 2 others v . The State (2008 SCMR 1221 ).
14. Involvement and nomination of accuse d on the basis of supplementary statement has always been depreciated and disapproved by the Hon'ble Supreme Court of Pakistan. In case, the complainant or prosecution witnesses are allowed to involve accused persons on the basis of supplementary statement, then such premium would demolish the entire structure, whereupon the criminal administration of justice is based. Thus such practice by all means needs to be discouraged and such supplementary statement requires to be discarded as of Roshaan Badhsh (P.W.8). In this regard we are guided by the dictum expounded in the case of Kashif Ali v. The Judge, Anti- Terrorism, Court No,II Lahore and others (PLD 2016 SC 951), Akhtar Ali and others v. The State (2008 SCMR 6) and Kaleem Ullah v .The State and another (2018 YLR 2363 ).
As far as the testimony of Aslam Nawaz (P.W.10) who testified that earlier before occurrence he had seen respondents armed with weapons is not worth of reliably , particularly , when the testimony of Roshaan Badshah (P.W.8) and Hazrat Wali (P.W.13) are held unworthy of credence is least help in the case of the prosecution to hold the respondents culpable of the crime.
15. Learned counsel for the appellants mainly banked upon the identification parade being one of the crucial piece of evidence on the basis whereof the appellants were to be held culpable. We have anxiously and minutely examined the mode and manner in which identification has been carried out, in view of the dictum and parameter enunciated by the apex court, followed by this Court and the Hon'ble High Courts. There is no cavil with the proposition that conducting of an identific ation parade is not a legal requirement, which can vary case to case and that if once the identification is conducted keeping in view the attending circumstances of the case with the purpose to rule out any false involvement, then the procedure and parameters in all respect needs to be followed.
16. The Hon'ble Supreme Court of Pakistan in the cases of Bacha Zeb v. The State (2010 SCMR 1189), held that non-assignment of any role by the prosecution witnesses during the identificatio n parade cast damages on its evidentiary value. Further , the apex court in the case of Azhar Mehmood and others v. The State (2017 SCMR 135) expounded the principle that the identification parade of a culprit before the trial court during the trial was unsafe and that if accused persons are identified during the parade but without reference to any role played by them in the occurrence, such a test of identification parade was of no evidentiary value. The Hon'ble Lahore High Court Lahore following the dictum laid down by the Hon'ble Supreme Court of Pakistan with reference to the said judgments as well as relying upon the cases of Siraj-ul-Haq and another v. The State (2008 SCMR 302), Nazir Ahmad v. Muhammad lqbal and another (2011 SCMR 527); and Shafqat Mehmood and others v. The State (2011 SCMR 537) formulated certain points, determining the legality and evidentiary value of identification test in the case of Manzoor Ahmad alias Shahzad alias Sheeri and others v. The State (2012 YLR 2481 ). For ease of understanding, relevant para is reproduced herein below: "(a) Identification proceedings should be held as early as possible but no hard and fast rule can be formulated.
However , delay in holding identification test will reduce its value;
(b) Identification test should not be held at police station;
(c) Separate identification parade should be conducted for each accused;
(d) Whole proceedings of identification test including lining up accused with dummies should be conducted by the Magistrate himself and the assignment should not be delegated to the jail authorities;
(e) Prior to conduct of proceedings, concerned authority is under obligation to conceal the identity of the accused from one place to another place and such measures are not only required to be taken but should be proved to have been taken.
(f) It is the duty of Supervising Magistrate to make note of every objections made by accused at the time of parade enabling the court of competent jurisdiction to judge the genuineness of the objection while determining value of identification test;
(g) Number of dummy for each accused must be given;
(h) Description of dummies as to whether they were of the same structure, age etc. should be mentioned;
(i) Number of dummies to be mixed with each accused should not be less than nine or ten
(j) No mark or stamp should be put on the suspected person;
(k) The dummies and the suspect should be of same structure. If there is any visible mark on the person of accused (For example, beard), it is advisable to mix up the accused with others of similar appearance;
(1) Role of each accused must be described by the witness. The witnesses are required to explain as to how and in what manner they were to identify or pick up the accused person; "
Reference can also be made to the case of Majeed alias Majeedi and others v. The State and others (2019 SCMR 301), reiterating the principles already enunciated, while discussing the identification by the eye-witnesses at night the culprits who had muffled their faces, made observation that it was impossible to have had identified them having mere glance of the culprits. The relevant portion is reproduced herein below:- "We have noticed that the said parade had been conducted after more than two months of the alleged occurrence and the proceedings of the said parade show that the eye-witnesses had maintained before the Magistrate on that occasion that the culprits had their faces muffled during the incident in issue. It has already been observed above that the incident in question had taken place during a night in which the area in question was engulfed in dense fog, the culprits committing the alleged offences were not previously known to the complainant party and at best the members of the complainant party could only have a fleeting glance at the culprits when the occurrence was in progress".
On 22nd of November , 1998 respondent Zar Wali was arrested whose identification parade was conducted on 3rd of December , 1998 by Hazrat Wali (P.W.13) in jail premises under the supervision of Mr. Imran Qureshi, Tehsildar (P.W.10). On 28th of December , 1998 Umar Zaman was arrested whose identification parade was conducted on 4th of January , 1999 through Hazrat Wali injured (P.W.13) under the supervision of Mr. Imran Qureshi Tehsildar (P.W.10). During the identification parade the procedure of identification was carried out two times only instead of three, which is lawfully not approved, offending the above procedure. Above all, while picking up respondent Zar Wali from the row, no role of any nature was assigned to him, similarly while pointing at respondent Umar Zaman being felon of the occurrence was also not attributed any role, which on its face is violation of the dictum as referred herein before in the preceding para. As observed herein above, the occurrence had taken place at night and the identifier witness (P.W.13) had a mere fleeting glance in the head light of the truck of the assailants, which seems impossible. Even otherwise, there is considerable delay of conducting the identification parade after the arrest of the respondents. The identifica tion parade of respondent Zar Wali was conducted after 11 days of his arrest whereas identification parade of Umar Zaman was conducted after 12 days of his arrest, which has diminished its evidentiary value.
17. Making reference to the arguments advanced by the learned counsel for the appellant and rebutted by the learned counsel for the respondents with regard to the recovery of empties secured from the place of occurrence and recovery of .12 shot gun along with cartridges and other ammunition made on 13th November , 1998 from the house of Nawab Shah, who is father of respondent Zar Wali in his absence and recovery of 8 mm rifle made on the pointation of Umar Zaman taken into possession through memo (Ex.PW .12/7), on 1st of January , 1999, it may be observed that mere recovery of such weapon in itself cannot be considered as a corroborative piece of evidence unless the empties recovered from the place of occurrence are sent to the FSL and a positive matching report is procured. The recovery of crime weap ons, even otherwise is in conflict with the ocular account. In this case though 8 mm rifle and suspected empties of 8 mm rifle were sent whereof a positive FSL report has been received (Ex.PW .17/1), but the same cannot be considered to be an incriminating or corroborative piece of evidence on manifold reasons. Firstly , the empties and the 8 mm rifle have been sent together, which practice has been disapproved by the apex court and secondly , there is delay of about 13 days in receipt of the parcel of empties of said 8 mm rife in question, by the FSL, whereof no explanation has been offered, making the evidentiary value of such piece of evidence to nullity .
Above all, the said empties were taken into possession from the crime scene on the very next morning as 7 mm bore crime empties but after recovery of 8 mm rifle on 1st of January , 1999, the Investigating Officer (P.W.12) has managed to get an opinion from an Armourer Muhammad Zaman Constable (P.W.3), who opined subsequently that the empties are of 8 mm instead, whereof no other inference can be drawn except that prosecution has maneuvered the recovery of the empties with the purpose to match it with .8 mm rifle, to falsely strengthen the case of the prosecution, whereupon no reliance can be placed. In this regard reference can be made to the cases of Muhammad Farooq and another v. The State (2017 SCMR 986), Ali Sher and others v.The State (2008 SCMR 707), and Mushtaq and 3 others v . The State (PLD 2008 SC 1 ).
18. Agreeing with the arguments of the learned counsel for the respondents that the pointation of the place of occurrence made by the respondents is of no avail as nothing was discovered as contemplated under Article 40 of the Qanun-e-Shahadat Order , 1984 (hereinafter referred as "Order of 1984") in consequence of such pointation because soon after the occurrence on the very next day the site plan of the crime scene was prepared at the instance and pointation of Roshaan Badshah, complainant (P .W.8), we rule out such evidence from consideration.
19. As by now settled that medical eviden ce and FSL report of blood stained article s by its and without more, could not throw light on identity of the assailants. The medical evidence may confirm ocular account with regard to the receipt of injury , nature of injuries, kind of weapon used in the crime but it cannot be connected with the commission of the offence. Moreso, even it cannot be considered as a corroborative piece of evidence at all. In the instant case, since unnatural death of the deceased and injuries sustained, have not been questioned, therefore, the medical evidence need not to be scrutinized, henceforth such evidence is held to be inconsequential.
20. After reappraisal of the evidence and scrutiny of the Impugned Judgment, we are of the considered view that the prosecution has miserably failed to prove the case beyond any shadow of doubt against the respondents and that the findings of the learned Trial Court are not artificial and capricious rather based on proper appreciation of evidence which warrants no interference by this Court, more particularly , when the respondents have earned duel presumption of innocence.
21. For the foregoing reasons, the appeal is hereby dismissed for being meritless.