SADIQ MAHMUD KHURRAM, J.The appellants namely Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar were tried by the learned Additional Sessions Judge, Multan in case FIR No. 42 of 2011 dated 21.08.201 1 registered at Police Station Shah Rukne Alam, Multan under sections 302, 397,324, 34 PPC for committing the Qatl-i-Amd of Mst. Zubaida Bibi wife of Zaheer Ahmad (deceased) during an attempt to commit robbery . The learned trial court vide judgment dated 30.01.2016 convicted Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar (convicts) and sentenced them as infra: Mumtaz Ahmad son of Ghulam Yaseen: i) Death under section 302(b)/ 34 PPC as Tazir for committing Qatl-i-Amd of Mst. Zubaida Bibi (deceased) and directed to pay Rs.1 Lac as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous imprisonment for seven years under section 397/34 PPC Muhammad Javed son of Ghulam Sarwar : i). Imprisonment for life under section 302(b)/ 34 PPC as Tazir for committing Qatl-i-Amd of Mst. Zubaida Bibi (deceased) and directed to pay Rs.50,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment ii) Rigorous imprisonment for seven years under section 397/34 PPC iii) Rigorous imprisonment for five years under section 324 PPC with the direction to pay Arsh amount to the tune of Rs. 20,000/- to Aziz ur Rehman (injured) and in default thereof, to further undergo six months of simple imprisonment.
Muhammad Javed (convict) was granted the benefit available under section 382(B) of Cr.PC and his sentences were ordered to run concurrently .
2. Feeling aggrieved, Mumtaz Ahmad son of Ghulam Yaseen (convict ) lodged Criminal appeal No.85 of 2016 against his conviction and sentence. Feeling aggrieved, Muhammad Javed son of Ghulam Sarwar (convict ) lodged Criminal appeal No.91 of 2016 against his conviction and sentence. The learned trial court submitted Murder Reference No.32 of 2016 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Mumtaz Ahmad son of Ghulam Yaseen. The complainan t of the case lodged Criminal Revision No.693 of 2016 seeking enhancement of sentence of Muhammad Javed son of Ghulam Sarwar . We intend to dispose of both the criminal appeals mentioned above, Criminal Revision No.693 of 2016 and Murder Reference No.32 of 2016 through this single judgment.
3. According to the prosecution story , set forth in the oral statement (Exh.PD) of Zaheer Ahmad (PW-3) , the complainant along with his sons Khurram Shahzad (PW-4), Asif Shahzad (PW-1) Aziz ur Rehman (PW-2), Amir Shahzad, Atta ur Rehman (not produced ) and his wife Mst. Zubaida Bibi (deceased) were present in their house when at about 10.30 A.M four unknown persons armed with pistols entered the house of the complainant . As per the oral statement (Exh.PD) , the complainant party tried to catch the assailants who started firing indiscriminately at them with their pistols and one fire hit on the right temporal region of Mst. Zubaida Bibi (deceased) who died at the spot as a result of the same whereas Khurram Shahzad (PW-4) and Aziz Ur Rehman (PW-2) were also injured as the result of the firing of the accused. The injured were sent to the Nishtar Hospital. It was also recorded in the oral statement (Exh.PD) that three of the accused had slightly long stature whereas the forth one was of healthy body and all were wearing shalwar and qameez , who could be identified by the witnesses if brought before them. It was also recorded in the oral statement (Exh.PD) that the assailants fled away from the spot on a white car when the neighbours were attracted to the spot. The said oral statement (Exh.PD) of Zaheer Ahmad (PW-3) was reduced into writing by Muhammad Afzal, SI (PW-10) and formal FIR (Exh. PD/1) was registered at the Police Station by Muhammad Iqbal, ASI (PW -8).
4. The learned trial court framed charge against the appellants on 22.10.2013, to which the appellants pleaded not guilty and claimed trial.
5. The prosecution/complainant in order to prove its case got recorded statements of twenty four witnesses. Asif Shahzad, (PW-1), Aziz Ur Rehman (PW 2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4) gave evidence regarding the ocular account. Faisal Shahzad (PW-6) identified the dead body of the deceased at the time of post mortem. Muhammad Hanif 1038/C (PW-7) stated that on 30.12.201 1, he executed the non bailable warrants of the accused Muhammad Iqbal (convicted and sentenced separately), Muhammad Hafeez and Shakir (both proclaimed offenders). . Abdul Rehman 2793/C (PW-12) stated that on 21.08.201 1 he escorted the dead body for post mortem and also was handed over the last worn cloths of the deceased. Muhammad Saqlain 2198/C (PW-13) stated that on 23.10.201 1, he took the sealed parcel said to contain blood stained earth to the office of Chemical Examiner
(SIC) and deposit the same on 25.10.201 1 and on 15.08.2013 he witnessed the recovery of 30-bore pistol (P3) from the possession of Muhammad Iqbal(convicted and sentenced separately).Irfan Hayat, draftsman (PW 15) prepared the scaled site plan of the place of occurrence (Exh.PO) on 11.10.201 1. Muhammad Imran Farooq, Judicial Magistrate (PW-16) got conducted the identification parade of the appellant Muhammad Javed on 12.10.201 1 and prepared the report (Exh.PP). Javed Iqbal, Judicial Magistrate (PW-17) got conducted the identification parade of the appellant Mumtaz Ahmad on 26.09.201 1 and prepar ed the report (Exh.PQ). Ishfaq Hussain Sial, Judicial Magistrate (PW-18) got conducted the identification parade of Muhammad Iqbal (convicted and sentenced separately) on 27.07.2013 and prepared the report (Exh.PR). Muhammad Rafique 1638/C ( PW- 21), stated that on 08.10.2011 he witnessed the recovery of pistol (Exh. P6) from the possession of Muhammad Javed, appellant. He further stated that on 09.01.2012 he was handed over a sealed parcel said to contain six empties which he despised in the office of Punjab Forensic Science Agency, Lahore and on 18.01.2012 he was handed over two sealed parcels said to contain pistols 30 Bore which he deposited in the office of Punjab Forensic Science Agency, Lahore. Nasrullah Khan, TASI (PW-22) stated that on 21.09.2011 he witnessed the arrest of Mumtaz Ahmad, appellant and a pistol 30-Bore (Exh.P4), car (Exh. P8) were also recovered from the possession of the appellant Mumtaz Ahmad at the time of his arrest. Rana Muhammad Farooq, SI (PW-23) stated that on 21.09.2011 he arrested Mumtaz Ahmad, appellant and a pistol 30-Bore (Exh.P4), car (Exh. P8) were also recovered from the possession of the appellant Mumtaz Ahmad at the time of his arrest. Abdul Waheed 879/C (PW-24) stated that on 21.08.2011, he was handed over the complaint (Exh.PB) which he took to the police station for the registration of the FIR. Muhammad Afzal, SI (PW-10) investigated the case on the first day i.e 21.08.2011 and detailed the facts of the investigation in his statement recorded by the trial court. Muhammad Zulfiqar Khan, SI, (PW-14) conducted the investigation of the case from 23.07.2013 till 15.08.2013 and detailed the facts of the investigation in his statement recorded by the trial court. Sabir Hussain, SI (PW-19) investigated the case from 8.9.2011 till 12.10.2011 and narrated the facts of the investigation conducted by him in his statement before the leaned trial court. Qamar Abbas, SI (PW-20), investigated the case from 08.07.2013 till 18.07.2013 and narrated the facts of the investigation conducted by him in his statement before the leaned trial court.
6. The prosecution got examined Dr. Ghazala Safdar (PW.-11), who was posted as Senior Demonstrator , Forensic Department of Nishtar Medical College, Multan., and on 21.08.201 1 conducted the postmortem examination of Zubaida Bibi (deceased). Dr. Ghazala Safdar (PW.-11), while examining Zubaida Bibi (deceased) observed as under: " INJURIES: Injury No.1 is fire arm entry wound of 3/4 x cm in circumference with inverted abraded collar on the back of left side of skull 7 cm from the left ear. Injury No.2 An exist wound of 3 cm 2 cm on the left partial area of skull 12 cm from the left ear and 13 cm from the left eye brow.
OPINION: In my opinion, cause of death is injury No.1 which is inflicted by fire arm leading to, and hemorrhage which was sufficient to cause death in ordinary course of nature. The probable time between injury and death is five to 10 minutes while between death and post mortem is 3 to 6 hours. ."
The prosecution also got examined Dr. Asif Jamil Ansari (PW.-11), who was posted as Senior Demonstrator , Forensic Department of Nishtar Medical College, Multan., and on 21.08.201 1 examined the injured Khurram Shahzad and observed the following injuries on his person.
INJURIES.
1-A A lacerated wound of entry measuring 3 /4 x / x DNP ( depth not probed). With inverted margins and abraded collar , on the right inguinal region. No blackening/burning or tattooing was seen.
1-B A lacerated wound of exit measuring 1 cm x 1 cm x DNP with everted margins on the right buttock, on the lateral side.
Injury No.1 was KUO for ward report/ ex.xay . kind of weapon. By fire arm weapon.
Dr. Asif Jamil Ansari (PW.-11), on 21.08.201 1 ALSO examined the injured Aziz ur Rehman and observed the following injuries on his person:- INJURIES.
1. A lacerated wound of sixe / cm x / cm into DNP With inverted margins and abraded collar on left inguinal region. No blackening /tattooing or burning was seen.
1.b A lacerated wound of exit measuring 1 cm x / cm DNP With everted margins on the left buttock, 6 cm from the natal cleft.
7. The learned ADPP on 05.01.2016 gave up PW Bashir Ahmad, ASI as being unnecessary and on 08.01.2016 closed the prosecution evidence after tendering the report of Chemical Examine r for Punjab, Multan (Exh.PZ), Report of Serologist (Exh.P AA) and report of Forensic Science Laboratory Lahore (Exh. PBB).
8. After the closure of prosecution evidence, the learned trial court examined appellants namely Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. They further stated that they had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellants namely3 3 3 3 Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar opted not to get themselves examined under section 340(2) Cr .P.C and did not adduce any evidence in their defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsels for the appellants precisely is that whole case is fabricated and false.
That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. They further contended that the statements of Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4) were not worthy of reliance. They further contended that the appellants are neither nominated in the FIR nor in the statements of witnesses recorded under section 161 of Cr.PC and the test identification parades conducted were full of procedural defects and of no legal worth and value. They also argued that the recoveries were result of fake proceedings. They finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellants in a joint enterprise. They further contended that the medical evidence also corroborated the statements of Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4). They further argued that the recoveries from the appellants also corroborated the ocular account .They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, they prayed for the rejection of appeal.
12. We have heard the learned counsels for the appellants and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
13. The whole prosecution case revolves around the statements of Asif Shahzad, (PW-1), Aziz Ur Rehman (PW- 2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4). These witnesses namely Asif Shahzad, (PW-1), Aziz Ur Rehman (PW-2), Zaheer Ahmad, (PW-3) and Khurram Shahzad (PW-4) were related to each other. Their relationship with the deceased is also on record. There is no denial to this fact that the wife of the complainant namely Mst. Zubaida Bibi (deceased) lost her life and Aziz ur Rehman (PW.-2) and Khurram Shahzad (PW-4) received injuries, but the fact remains that neither the names of the assailants were mentioned in the written application (Exh.PD) nor in the statements of the witnesses recorded under section 161 of Cr.PC. We have noted with grave concern that out of the four eye witnesses of the occurrence, two witnesses, namely Zaheer Ahmad (PW-3) and Khurram Shahzad (PW-4) did not take any part in the three test identification parades held on 12.10.2011, 26.09.2011 and 27.07.2011 with regard to the identification of the appellants and their co-accused Muhammad Iqbal (convicted and sentenced separately). No explanation has been offered by the said two witnesses namely Zaheer Ahmad (PW-3) and Khurram Shahzad (PW-4) as to why they did not join any of the three test identification parades held on 12.10.2011, 26.09.2011 and 27.07.2011 with regard to the identification of the appellants. Their failure to join the said test identification parades has forced us to disbelieve their evidence with regard to the identity of the accused at the place of occurrence. Both these witnesses namely Zaheer Ahmad (PW-3) and Khurram Shahzad (PW-4) did not know the appellants prior to the occurrence and had not named them in their statements recorded by the Investigating Officer. It was a requirement of law that they should have joined the test identification parades so as to prove the factum of identity of the appellants by them as being the assailants present at the place of occurrence. Khurram Shahzad (PW-4) during cross- examination admitted as under:- " I had not nominated Muhammad Iqbal accused in my statement under section 161 Cr.PC recorded at Nishtar Hospital. Later on the police told me that I was injured with the fire of Muhammad Iqbal. I cannot tell as to when the police told me the name of Iqbal accused. T ill today no other statement was recorded by the police".
Khurram Shahzad (PW-4) during cross-examination further admitted as under:- "It is correct that I did not tell to the police in my statement under section 161 of Cr.PC as to which accused caused injuries to the PWs nor I named them while making my statement under section 161 of the Cr .PC".
The August Supreme Court of Pakistan has held in various cases that the identity of the assailants in Court by the witnesses has no legal value and it is imperative for the witnesses, who earlier did not know the assailants, to have identified them during a test identification parade. Reliance is placed on the case of Asghar Ali alias Sabah and others v . The State and others (1992 SCMR 2088 ) wherein, it has been held as under:- "The identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identify of the culprit."
Similarly , in the cases of Ghulam Shabbir Ahmad Vs. The State and another (2011 SCMR 683) and Siraj Ul Haq and another Vs. The State (2008 SCMR 302 ), the same principle of law has been reiterated.
14. We have also noted with grave concern that as per the witness namely Khurram Shahzad (PW-4), the names of the appellants and the alleged roles played by them in the occurrence were told to him by the police just after ten fifteen days of the occurrence. This witness Khurram Shahzad (PW-4) during cross-examination admitted as under:- "After ten fifteen days of the occurrence I came to know the names of the accused persons present in Court and the police officers of police station New Multan told the names of accused persons and the police also told me particular arising each accused by his names by firing on the PWs... I was told by the police that Mumtaz accused made fire on the person of my mother".
When as per his own admission , every detail regarding the assailants was disclo sed to the said witness namely Khurram Shahzad (PW-4) by the police just after ten or fifteen days of the occurrence, then the holding of test identification parades of the appellants even otherwise was an exercise in futility . The question begs an answer that when the police had already informed Khurram Shahzad (PW-4), real brother of the deceased and son of the complainant, about the detailed particulars of the accused and the role played by them during the occurrence, then for what purpose the test identification parades were held. The description was so clear that out of the whole city of Multan, the appellants were identified by the police prior to their arrest and the said information was shared with the witness Khurram Shahzad (PW 4). This illustrates the futility of holding the test identification parades of the appellants with regard to establishing their identity. Similarly, Aziz-ur- Rehman (PW-2) also admitted during cross-examination that when Mumtaz Ahmad (appellant) was arrested he was told the name of Mumtaz Ahmad, appellant by the police and he also joined the police investigation when the accused persons were arrested. As such the test identification parades lose their authenticity and have no value in the eyes of law.
15. As per the prosecution case, out of the four eye witnesses who appeared before the Court, only two witnesses namely Asif Shahzad (PW-1) and Aziz Ur Rehman (PW-2) joined the three test identification parades held to establish the identity of the assailants. The August Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) has enunciated guiding principles for the appreciation of evidence regarding the test identification parade and the statements of the witnesses participating in the same. We have scrutinized the statements of two witnesses namely Asif Shahzad (PW-1) and Aziz Ur Rehman (PW-2) who joined the three test identification parades held to establish the identity of the assailants in light of the said judgment. The August Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others ( 2019 SCMR 956 ) has held as under:- "13. In the late 1960s, the courts around the world , began to set the standard for review ing eyewitness identification evidence. Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony . US Supreme Court in the case of Manson v Brathwaite , UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another , New Jersey Supreme Court in State v Madison and Oregon Supreme Court in State v. Classen settled the following factors for assessing the reliability of the witness:
(1) the opportunity of the witness to view the suspect at the time of the crime;
(2) the witness's degree of attention;12 13 14 15 16 17 18
(3) the accuracy of the witness's prior description of the suspect;
(4) the level of certainty demonstrated at the confrontation (seeing the accused in court); and
(5) the time between the crime and the confrontation (seeing the accused in court).
It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research.
The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval-the "stage during which a person recalls stored information". The process of memory retention and retrieva l may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables. System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control. Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process:- i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness' ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy , an eye-witness under high stress is less likely to make a reliable identification of the perpetrator ." ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration. iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however , a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure." iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance.
We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification. v. Witness Characteristics: Characteristics like a witness' age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults. vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification. vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability .
The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions. New Jersey Supreme Court in State v.
Henderson observed that "virtually all of the scientific evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v . Lawson .
14. The laws of evidence maintain that in order for the court to take judicial notice of scientific facts they must be part of the general knowledge of men or must be agreed upon by reputable men in a particular field of science beyond reasonable dispute. For judges to determine the degree of consensus on a particular scientific fact they may refer to any reputable and recognized reference sources. The House of Lords in Regina (Quintavalle) v.
Secretary of State for Health held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. This Court can take judicial notice of the credible scientific development under Article 112, Qanun-e-Shahadat, 1984. The question is can we shut our eyes to credible19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 scientific research and development, which has already been recognized and acknowledged by the courts in various other jurisdictions. If scientific research can help and assist the court in understanding and appreciating evidence more fully and more meaningfully , the risk of miscarriage of justice stands minimized. Therefore, the courts don't shy away from scientific developments but instead reach out and embrace them. Reliance on scientific research and the factors evolved by science to assess the reliability and credibility of the eye-witness can improve the quality of identification evidence and as a consequence the quality of justice. Our jurisprudence had already travelled in this direction and now credible scientific research by providing us additional factors or "estimator variables" (which are not exhaustive) has provided additional factors to certify the credibility and reliability of the eye-witness and as a result the veracity and probative value of the identification evidence. "
We have minutely perused the statement of Aziz-ur-Rehman (PW-2), the injured witness of the case and one of the two witnesses who joined the test identification proceedings. This witness namely Aziz-ur-Rehman (PW-2) admitted during cross-examination that he did not mention any descriptive features through which the appellants could be identified and stated as under: "It is correct that while making the statement under section 161 Cr.P.C. to the police I did not disclose and mention the features of culprits who had entered in our house.
Both the learned Magistrates ,Muhammad Imran Farooq, Judicial Magistrate (PW 16) who got conducted the identification parade of the appellant Muhammad Javed on 12.10.201 1 and prepared the report (Exh.PP) and Javed Iqbal, Judicial Magistrate (PW-17) who got conducted the identification parade of the appellant Mumtaz Ahmad on 26.09.201 1 and prepared the report (Exh.PQ) stated that before conducting the Identification parades the features of the unknown assailants were not in their knowledge. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrates first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. Reliance is placed on the case of Mian SOHAIL AHMED and others Vs. The State and others ( 2019 SCMR 956 ) wherein it has been held as under:- "The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmitie s diminishing its probative and evidentia ry value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspec ts, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v . State of A.P. (AIR 1983 SC 367)".
As such the test identification parade loses its authenticity and has no value in the eye of law. Reliance is also placed upon a binding judgment of the August Supreme Court of Pakistan in the case titled Muhammad Afzal alias Abdullah v . The State and others (2009 SCMR 436 ) wherein it has been held as under: "Absence of such details in FIR militated against the bona fides of prosecution and greatly marred evidentiary value of test identification parade."
We have also observed that as per the statement of Asif Shehzad (PW-1), the other witness who joined the test identification proceedings, at the time of identification parade the faces of the accused persons were covered. If the faces of the assailants were muffled, it is impossible that the witnesses could identify them in the test identification parades. This witness namely Asif Shahzad (PW -1) during cross-examination stated as under: "At the time of identification parade the faces of the accused persons were covered."
Such identification of the appellants in the test identification parades, in the circumstances, is laconic and is of no evidentiary value.
16. We have also noticed that the test identification parade was not conducted as per the law and in violation of Rule 26.32 of the Police Rules, 1934. We have scrutinized the test identification proceedings as got conducted by Muhammad Imran Farooq, Judicial Magistrate (PW-16) of the appellant Muhammad Javed on 12.10.201 1 , Javed Iqbal, Judicial Magistrate (PW-17) of the appellant Mumtaz Ahmad on 26.09.201 1 and Ishfaq Hussain Sial, Judicial Magistrate (PW-18), Muhammad Iqbal (convicted and sentenced separately) on 27.07.2013 . A scrutiny of all the three test identification parades proceedings reveals that the witnesses who joined the said three test identification parades did not mention any specific role of any of the appellants being identified by them. During the test identification parade proceedings of appellant Muhammad Javed the witnesses got recorded that the appellant was included in the persons who were firing and did not precisely specify any role to him of injuring any person nor mentioned the name of the witness who was injured as a result of his firing. Similarly during the test identification parade proceedings of appellant Mumtaz Ahmad, the witness namely Asif Shahzad got recorded that the appellant Mumtaz Ahmad was included in the persons who were firing and stated that Mumta z Ahmad fired at his mother and brothers. This attribution by the witness Asif Shahzad is contrary to what was state d by him before the learned trial court as a witness. Furthermore, Aziz ur Rehman got recorded that the appellant was included in the persons who were firing and did not precisely specify any role to him of injuring any person nor mentioned the name of the witness who was injured as a result of his firing. Then during the test identification parade proceedings of co- accused Muhammad Iqbal (convicted and sentenced separately), the witness Aziz ur Rehman got recorded that the co-accused of Muhammad Iqbal (convicted and sentenced separately) started firing and injured him and his brother and mother and did not attribute any role of firing to the co-accused Muhammad Iqbal (convicted and sentenced separately) during the occurrence. More importantly test Identification parade proceedings with regard to co-accused Muhammad Iqbal (convicted and sentenced separately) were held on 27.07.2013, after the appellants had allegedly been identified already , still the witnesses did not name the appellants as accused during the said test identification proceedings with regard to co-accused Muhammad Iqbal (convicted and sentenced separately). During the said test identification proceedings with regard to co-accused Muhammad Iqbal (convicted and sentenced separately), the other witness Asif Shahzad stated that it was the accused who had fired at his brother and did not make any mention of firing at his mother. Here again a contradiction in terms of the roles attributed to the appellants has crept into the case of prosecution. The mere fact that witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It merely means that the witness happens to know that accused person. Such kind of test identification proceedings have no legal value. Reliance is placed upon a binding judgment of the August Supreme Court of Pakistan in the case titled MAJEED alias MAJEEDI and others v. The State and others (2019 SCMR 301) wherein it has been held as under: "At any rate, in the test identification parade the complainant and two other eye-witnesses had maintained that the appellant had only searched the complainant and some others during the alleged occurrence and they had not attributed any role to the appellant regarding causing of murder of the deceased or causing injuries to others but another eye-witness belonging to the complainant party had maintained that the appellant had also fired at the said witness causing an injury on his lip. Such a conflict between the stands of the eye-witnesses produced by the prosecution vis-a-vis the appellant's role by itself was sufficient to create serious doubts about veracity of the said witnesses."
The August Supreme Court of Pakistan in the case of Azhar Mehmood and others v. The State (2017 SCMR 135) has held at page 138 as infra:- "........... have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently being held by this Court that such a test identification parade is legally laconic and is of no evidentiary value."
The August Supreme Court of Pakistan in case of Kamal Din alias Kamala v . The State ( supra) held as under:- "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."
Hence we are constrained to hold that the identification parade proceedings are of no evidentiary value.
17. We have noticed that during the test identification proceedings as got conducted by Muhammad Imran Farooq Muhammad Imran Farooq, Judicial Magistrate (PW-16) of the appellant Muhammad Javed on 12.10.2011 , Javed Iqbal, Judicial Magistrate (PW-17) of the appellant Mumtaz Ahmad on 26.09.2011 and Ishfaq Hussain Sial, Judicial Magistrate (PW-18), Muhammad Iqbal (convicted and sentenced separately) on 27.07.2013, all the accused claimed that they had been shown to be witnesses at the police station and their objections was got recorded by the learned Magistrates. These objections were all the more important as the witnesses had admitted that the police had told them about the names of the appellants and also they had been joining the investigation when the appellants were arrested. Aziz ur Rehman (PW-2) during his cross-examination admitted as under:- "When accused persons were arrested by the police I joined the police investigation ".
It has been held by the august Supreme Court of Pakistan that it is the duty of the Magistrate conducting the test identification proceedings to decide any objection raised by the accused with regard to them being shown to the witnesses at the police station and his failure to do so would reduce the value of such test identification proceedings.
18. We have also perused the scaled site plan (Exh.PO) prepared by Irfan Hayat, draftsman (PW-15) and the unscaled site plan (Exh.PJ) as prepared by the Investigating Officer. The scaled site plan (Exh.PO) was prepared on 11.10.201 1 when both the appellants namely Muhammad Javed and Mumtaz Ahmad had allegedly been identified by the witnesses but the said site plan does not carry the names of the appellants. We have also noticed that as per the said site plans (Exh.PO) and (Exh.PJ) the deceased had received an injury inside a room from a very short distance, however , the Medical Officer namely Doctor Ghazala Safdar , (PW-11) did not find presence of any blackening on the entry wound which should have been there if the distance of fire was as short as suggested by the eye witnesses. Reliance is placed on the case of Mian SOHAIL AHMED and others Vs. The State and others ( 2019 SCMR 956 ) wherein it has been held as under:- "Site-plan (Ex-PL) shows one of the appellants to be standing next to the driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely to cause blackening but the medical evidence (Post-mortem examination reports Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again raising a suspicion that the events may have unfolded differently than as reported."
19. Learned Deputy Prosecutor General and the counsel for the complainant laid great stress on the fact that namely Aziz ur Rehman (PW-2) and Khurram Shahzad (PW-4) were injured in the occurrence. The august Supreme Court of Pakistan has repeatedl y held that the stamp of injuries on the person of a witness can be a proof of their presence at the place of occurrence , however , it can never be held that they also will tell truth .It has been held that the facts which an injured witness narrates are not to be implicitly accepted rather they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under: " It is settled law that injuries of P.W are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that presence of injuries does not stamp a witness to be a truthful one.
20. Learned District Prosecutor General has also relied upon the recoveries made from the appellants. The recoveries of the pistol (Exh.P6) from the appellant Muhammad Javed and pistol (Exh.P4) from the appellant, Mumtaz Ahmad. (Exh.P3) , cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of said pistol (Exh.P6) from the appellant Muhammad Javed and pistol (Exh.P4) from the appellant, Mumtaz Ahmad , which was in clear violation of section 103 Cr.PC and therefore cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898 ) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
With respect to recovery of weapon from the appellants it has been observed that report of Forensic Science Laboratory (Exh.PBB) reveals that the empties were received in the Punjab Forensic Science Agency on 10.01.2012 i.e. the date of arrest of the appellants. It means that, chances of fabrication cannot be ruled out, therefore, it is not safe to rely upon the alleged recovery of pistols 30- bore from the possession of appellants and positive report of Forensic Science Laboratory (Exh. PBB). We have observed that the police did not associate any residents of the locality in the investigation for the purpose of recoveries. As we have disbelieved the ocular account in this case, hence the evidence of motive and the recovery would have no consequence. Furthermore, the recovery of car made from the appellant Mumtaz Ahmad at the time of his arrest also does not offer any corroboration to the prosecution case as the said car was not produced before the learned trial court and secondly the prosecution witnesses did not mention any number of the car in their statements before the police as well as the learned trial court so as to relate the recovered car with the car allegedly seen by the witnesses at the time of occurrence. It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar , appellants, in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State ( 2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 ).."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State (2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. "
22. For what has been discussed above Criminal Appeal No.85 of 2016 filed by Mumtaz Ahmad son of Ghulam Yaseen (appellant) and Criminal Appeal No. 91 of 2016 filed by Muhammad Javed son of Ghulam Sarwar are accepted and the conviction and sentence of the appellants awarded by the learned trial court through the impugned judgment dated 30.01.2016 are hereby set-aside. Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar (appellants) are ordered to be acquitted. Mumtaz Ahmad son of Ghulam Yaseen and Muhammad Javed son of Ghulam Sarwar (appellants) are directed to be released forthwith if not required in any other case.
23. Pursuant to the discussion made and conclusions arrived at above, Criminal Revision No.693 of 2016 , seeking enhancement of sentence of Muhammad Javed son of Ghulam Sarwar , is hereby dismissed.
23. Murder Reference is answered in Negative and the death sentence of Mumtaz Ahmad son of Ghulam Yaseen is Not Confirmed .