Sardar Ahmed Naeem, J.--Zameer Ahmad and Muhammad Shohid (appellants) were tried by the learned Addl.
Sessions Judge Kot Addu in case FIR No, 319 dated 15.9.2013 under Sections 302, 34, PPC registered at Police Station Sanawan, District Muzaf fargarh, At the conclusion of trial, vide judgment dated 12.10.2017, learned trial Court held the appellants guilty , convicted and sentenced them as under: Zameer Ahmad (appellant)
Under Section 302(b), PPC and sentenced to death with a direction to pay a sum of Rs, 2,00,000/- as compensation under Section 544-A, Cr.P.C. ordered to be paid to the legal heirs of the deceased, in default thereof, to undergo simple imprisonment for six months.
Muhammad Shahid (appellant)
Under Section 302(b), PPC and sentenced to imprisonment for life with a direction to pay a sum of Rs, 2,00,000/- as compensation under Section 544-A, Cr.P.C. ordered to be paid to the legal heirs of the deceased in default thereof to under go simple imprisonment for six months.
2. The convicts-appellants have filed the instant appeal against their convictions and sentences. The state has also transmitted Murder Reference No, 144 of 2017 for confirmation, or otherwise, of the death sentence of the appellant, namely , Zameer Ahmad, Both the matters are being disposed of through this judgment.
3. Briefly history of the prosecution story as narrated in complaint Exh.PB was that on receiving information telephonically from Muhammad Ikhlaq regarding snatching of his motorcycle CD 70 and mobile phone on pistol point by the unknown dacoits (the details of description/complexions given in the FIR), complainant, his brother Muhammad Nadeem, Muhammad Younas and Muhammad Yousaf proceeded on motorcycles for search of unknown accused and reached on the bank canal 3-R "Chah wang Wala" two persons riding on motorcycle came from their behind. The complainant party tried to intercept them who stopped their motorcycle and started firing with their fire-arms and the fire shot made by the accused wearing black colour clothes hit Muhammad Nadeem (deceased) on right side of his chest and crossed left side who fell down in injured condition and succumbed to the injuries.
4. After usual investigation, the report under Section 173, Cr.P.C. was submitted. The charge was framed against them. They pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined as many as 14 witnesses and one CW. The gist of prosecution evidence is as under: "Ahmad Ali 1835-C (PW-2) deposited two sealed parcels one containing blood stained earth and other two empty cartridges of pistol .30 bore in the concerned offices. Abdul Ghaf far 1863-C (PW.3) got conducted the post-mortem examination and also handed over the last worn clothes of the deceased to the Investigating Officer who secured the same vide recovery memo. Exh.P A, Naseer Ahmad (PW-5) reiterated the contents of the FIR and also gave evidence regarding ocular account. Muhammad Younas (PW-6) also gave evidence regarding ocular account, Dr. Allah Bakhsh (PW-7) conducted post-mortem examination on the dead body of Muhammad Nadeem (deceased) and found two injuries on is person, Zaigham Abbas SI (PW-8) chalked out the formal FIR Exh.PM. Muhammad sami 1849-C (PW-9) deposited one sealed parcel containing pistol .30 bore in the concerned office. Shaukat Ali (PW-10) got conducted the test identification parade and gave evidence regarding the identification proceeding during test identification parade. Abid Hussain draftsman (PW-11) drafted scaled site-plan Exh.PP and Exh.PP/1 on the direction of Investigating Officer and pointation of the PWs Ikhaq Ahmed (CW.1) gave evidence regarding snatching of his motorbike and mobile phone by the unknown assailants. He also participated in the identification proceedings, Muhammad Yasin SI and Ghulam Rasool SI PW-13 and PW-14 gave statements regarding the proceedings carried out by them during investigation. The remaining evidence is of formal nature therefore need not to be discussed here."
Prosecution gave up PWs Muhammad Yousaf and Muhammad Ismail being unnecessary and tendered into evidence the reports of PFSA Exh.PN, Exh.PQ and documents Exh.PS and Exh.PT , closed the prosecution case.
6. Statements of the appellants were recorded under Section 342, Cr.P.C. They denied all the prosecution allegations and pleaded innocence. Responding to question "why this case against him and why the PWs have deposed against him" Zameer Ahmad (appellant) deposed as under: "In fact, some unknown persons committed murder of Muhammad Nadeem, police wrongly involved me and Muhammad Shahid just to show efficienc y, Police firstly involved us in case FIR No, 573/13 under Section 392, PPC at Police Station Kot Addu. Thereafter they involved me in the instant case. PWs deposed against me on the asking of the Investigating Of ficer."
Muhammad Shahid (appellant) adopted the stance gave by his co-convict in his statement recorded under Section 342, Cr .P.C.
7. Both the appellants neither appeared as their own witnesses under Section 340(2), Cr.P.C. nor produced some witness in their defence.
8. Learned Counsel for the appellants contended that it was unseen occurrence; that the incident was reported against unknown accused and their features/complexions were not disclosed in the FIR; that the case of prosecution was entirely based on recovery of pistol and identification parade, having little value being joint in nature; that no independent witness was cited by the prosecution; that no conviction can be based on the basis of mere presumption, conjectures. and surmises; that the prosecution miserably failed to prove its case against the appellants; that the case of prosecution was swollen with doubts and every doubt even slightest is always resolved in favour of the accused.
9. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed this appeal with vehemence and submitted that the appellants were identified by the eye-witnesses during the test identification parade supervised by PW.10; that role of the appellants was described by the witnesses during parade; that the medical evidence was in line with the complainant version; that the recovery of pistol from Zameer accused lends corroboration to the prosecution story; that the eye-witnesses have no reason for false implication of the appellants; that the discrepancies/contradictions hinted at by the learned counsel for the appellants were not fatal to the prosecution which proved its case beyond reasonable shadow of doubt. They supported the judgment rendered by the learned trial Court.
10. We have considered the arguments advanced by the learned counsel for the parties and have carefully perused the record with their able assistance.
11. The case of prosecution was that on 15.9.2013, Ikhlaq Ahmad (CW.1) informed the complainant that his motorbike was snatched by three unkno wn persons/rabbers in the area of Mauza Shadi Khan whereupon the complainant along-with Muhammad Yousaf and Muhammad Younas (PWs) went out on their motorbikes to search the snatched motorbike/unknown persons and when they reached near Chah wala, in the area of pull Ghulam Ali Gharbi, they found two motorcyclists on their bike. The deceased, namely , Muhamm ad Nadeem was fired at by one of those unknown accused who succumb ed to the injuries and that after enacting the episode, they fled away from the crime scene.
12. During the investigation, the appella nts were arrested by the police on 11.10.2013. The test identification parade was held and supervised by Shaukat Ali Magistrate (PW.10). The witnesses identified the appellants during the test identification parade with the allegation that the deceased was fired at by Zameer Amad appellant, whereas ineffective firing was attributed to co-accused, namely , Muhammad Shahid, appellant.
13. The object of identification parade is to ascertain the involvement of an accused in a crime. It is not rule of law, rather rule of prudence to eliminate possibility of mistaken involvement of the accused in an offence. This test is a check against the false implication and also serves as piece of evidence against the real culprits, Identification based upon glimpse of accused is retained by witnesses when they saw the accused at scene of crime or at a place directly connected with the criminal activities. The positive identification of person involved in a crime is an indispensable requirement for the investigation of crime. Positive identification of offenders is legal requirement, while the solving of crimes can only proceed once the victim has been positively identified. Identification parade can be traced as back as March 1860, when they were instituted by Metropolitan Police Order in England. The order stated that the police could place suspect amongst his/her peers and then asked the witness to select the person seen performing the crimes. In cases where the identity of the accused is not known to the eye-witnesses, it is essential for the Investigating Officer to get such suspect identified from eye-witnesses in a test identification parade. There are certain principles which must be followed while conducting the identification parade. The test identification parade in this case was supervised by Shaukat Ali Judicial Magistrate (PW.10). The mechanism of identification proceedings is well-known and does not require repetition. Reference in this regard may be made to Rules 26.7, 26.32 and also Rule 27.25 of the Police Rules, 1934 and Chapter 11-C of the Lahore High Court Rules and Orders Volume-III. However , to ensure that the proceedings are properly conducted and entirely above suspicion it is essential that the rules and principle for holding the test identification parade should be strictly followed. So far as, the identification of persons is concerned, it is very weak type of evidence. The value of which is easily destroyed if there is any suspicio n that the conduct of the investigating agency was not absolutely above board. Therefore, precautions are necessary to conceal the identity of the accused while he is being removed from one place to the other and it is also the duty of the police that all necessary steps should be taken to ensure that the accused should not be seen by the witnesses before the identification parade. The Police Officer, who arrests the accused should get his face covered and take him to Police Station in that state. In the police lock-up such accused should be covered with a curtain so that no one is able to see his face and when he is taken to Court or to jail his face should be covered. In jail no outsider should be allowed to see his face. All these precautions should not only be taken but should be proved to have been taken and should be recorded in official record like the general diary of the Police Station and the jail register and the same should be produced in the Court. In the absence of such evidence, no value can be attached to the identification of an accu sed person made by a witness.
In other words, it is imperative for the prosecution to establish during trial that every necessary precaution was taken to ensure fair identification. Above all, the proceeding of the test identification parade available on the file reflect that the appellant had not been picked by PWs with reference to any role played by him during the occurrence.
14. The material available on the file suggests that arrest of the accused/appellants was published in the newspaper and that the complainant/PWs went to police station to congratulate the Investigating Officer. The accused also informed PW.10 that they were shown to the PWs, who had their photographs Shaukat Ali (PW.10) also admitted during the cross-examination that Zameer Ahmed accused was not nominated by the PWs during the teas identification parade for causing injury to the deceased. The holding of joint test identification parade was not controverted either by the learned Deputy Prosecutor General or the learned counsel for the complainant. In a similar case titled "Gulfam and another versus The State" ( 2017 SCMR 1 189), the apex Court ruled as under: "5. The prosecution had maintained that the present appellants, had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in which both the present appellants had been made to stand along with many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment and a reference in this respect may be made to the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The Sate (2008 SCMR 1210 ), Bacha Zed v . The State ( 2010 SCMR 1 189) and Shafqat Mehmood and others v . The State ( 2011 SCMR 537 )".
15. A similar question came up for consideration before their lordships in case titled "Kamal Din alias Kamala v. The State" (2018 SCMR 577) and the relevant observations of their lordships appearing in Para No, 3 of the judgment, read as under: "It has repeatedly been held by this Court that identification of an accused person without reference to the role allegedly played by him during the occurrence as shorn of any evidentiary value and a reference in this respect may be made to the cases of Azhar Mehmood and others v. The State (2017 SCMR 135), Muhammad Fayyaz v.
The State (2012 SCMR 522), Shafqat Mehmood and others v. The State (2011 SCMR 537) and Sabir Ali alias Fauji v. The State (2011 SCMR 563). Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go. This Court has also clarified in the cases of Lal pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210 ), Bacha Zeb v. The State (2010 SCMR 1189), Shafqat Mehmood and others v. The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that identification of many accused persons in one go is not proper besides being unsafe. As if this were not enough, Shabbir Ahmed (PW.14), one of the injured eye-witnesses, had acknowledged before the trial Court in so many words that the accused persons had been shown to him at the Police Station before holding of the test identification parade. This had surely taken the wind out of the prosecution's case against the appellant."
16. It was asserted by the prosecution that the pistol was recovered from Zameer Ahamd appellant during the investigation but such recovery was legally inconsequential as no crime empty was taken into possession or secured from the place occurrence so as to connect the recovery with the alleged weapon. The motorcycle allegedly used by the accused' during the commission of crime was never taken into possession during the investigation of this case. Moreover , no colour , registration number of motorbike was mentioned either in the FIR or in the statements of the eye-witnesses.
17. It is settled law that the prosecution is duty bound to establish charge .against the accused beyond shadow of doubt, that evidence produced in support of the charge must be confidence inspiring and there should not be any inconsistency between direct and circumstantial evidence of the case. The prosecu tion version should not admit of any other , hypothesis favourable to the accused and the story described by the prosecution witnesses must be probable and fit in with the probabilities. In this case Ikhlaq Ahmad (CW.1) informed the complainant regarding his motorbike then snatched by unknown rabbers. The complainant along with Muha mmad Younas and Muhammad Yousaf started searching the said motorbike in their area. It was in the evidence that complainant had a licenced gun and was supposed to be armed with some weapon, in particular , when they were searching for a snatched motorbike. In any case, motorcylcle of Ikhlaq Ahmad was not lost but snatched. The complainant described that they stopped two unknown accused/assailants coming on their back on their motorbike and they were stopped, in front of them and it was Nadeem accused who attempted to overpower those assailants meaning thereby that the complainant along-with his companions resisted, those unknown accused wherein the deceased lost his life. In any case, story appeared to be improbable and hard to digest. A similar question came up for consideration before apex Court in "Muhammad Saleem v. The State" (2010 SCMR 374) at page 377, the apex Court was pleased to observe as under: ".............General rule is that statement of a witness must be in-consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent mind. If these elements are present, then the stateme nt of a worst enema of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to Haroon alias Harooni v. The State and another 1995 SCMR 1627 , The acid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle, that a disinterested witness is always to be relied upon even his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequences. Reference is invited to Muhammad Rafique v. State 1977 SCMR 454 and Haroon v. The State 1995 SCMR 1627 "
18. It is settled principle of law that prosecution primarily is bound to establish guilt against the accused, beyond shadow of reasonable doubt by producin g trustworthy , convincing and coherent evidence enabling the Court to draw the conclusion whether the prosecution has succeeded in establishing accusation or otherwise and if it comes to the conclusion that the charge was imputed against the accused and have not been proved beyond reasonable doubt, then, the accused becomes entitled to acquittal on getting the benefit of doubt.
19. It is also settled that benefit of doubt, if found in the prosecution's case, the accused shall be held entitled to the benefit, thereof. It is also settled principle of criminal administration of justice that if there is element of doubt, as to the guilt of accused, it must be resolved in his favour . The golden rule of benefit is initially a rule of prudence which cannot be ignored, while dispensing justice in accordance with law. It is based on maxim that it is better to acquit ten guilty persons rather than to convict on innocent person. For acquittal of accused in an offence, how-so heinous it may be, only a single doubt in the prosecution evidence is sufficient. Reliance in this respect can be made on "Mst. Nazia Anwar versus The State and others" (2018 SCMR 911) and the relevant observations of their lordships appearing in page-922 at para-12 read as under: ".... The cardinal principle in the criminal justice system in a situation like this, is to extend benefit of doubt to an accused to acquit him/her of capital charge, instead of reducing the sentence. Once doubts about the genuineness of the story lurk into the minds of the Judges, the only permissible course is to acquit the accused and not go for the alternative sentence of life imprisonment. In this regard reference may be made to the following case laws: "(I) Ayub Masih v . The State ( PLD 2002 SC 1048 )
(II) Muhammad Zaman v . The State and others ( 2014 SCMR 749 )
(III) Hashim Qasim v . The State ( 2017 SCMR 986 )
It is also well entrenched rule and principle of law that on the basis of probab ilities, accused person may be extended benefit of doubt acquitting him/her of a capital charge however , such probabilities, high howsoever could not be made basis for conviction of an accused person and that too on a capital charge"
20. For the reasons mentioned above, the Criminal Appeal No, 1265 of 2017 is allowed. The impugned judgment dated 12.10.2017 is set aside. The appellants are acquitted of the charges. They are in jail and be released forthwith if not required in any other criminal, case.
21. Murder Reference No, 144 of 2017 is answered in the negative and the death sentence is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.