FAHIM AHMED SIDDIQUI, J.---This single judgment will suffice to dispose of the aforesaid two criminal appeals pertaining to the same incident. The Criminal Appeals Nos. 73/2016 and 77/2016 filed by appellants Dilawar and Waheed Ali respectively and the same pertain to Crime No. 299/2010 of Police Station Kotri under sections 302, 460, 34, P .P.C.
2. The prosecution case is that the complainant Imtiaz Ali is a lawyer and his 'broth er deceased Ashfaque Ali was a student in the Geology Department, University of Sindh. On the fateful night, the complainant and other housemates were sleeping while his broth er deceased Ashfaque Ali was studying in his room. It was 26.09.2010 at 03:15 hours, there was a commotion on which the complaining party woke up and saw two persons in the room who were muffled faces, amongst them one was armed with repeater gun and the other was armed with a pistol.
The third person, who was also muffled face and having pistol with whom deceased Ashfaque was resisting in the courtyard. The complainant tried to go to his brother but armed persons available in the room restrained him under the force of weapons. Meanwhile, the person, with whom Ashfaque was grappled, made straight fire upon him, who received injuries on the left side of his chest and fell down. During the struggle, mufflers of accused were removed and the complainant party saw the accused and would identify if seen again. The injured brother of the complainant was shifted to hospital, where he succumbed to his injuries.
3. After lodging of FIR, the police started investigation and arrested three suspected persons, and an identification parade was held before concerned Judic ial Magistrate. During identification parade, the complainant and witness identified appellants Dilawar and Waheed. Thereafter , the investigation was completed and during investigation, crime weapon was recovered on the pointation of appellant Waheed Ali. After completing the investigation, final report was submitted before the conce rned Judicial Magistrate and after taking cognizance, the case was committed to Sessions Court for trial. After trial, appellants Dilawar and Waheed were convicted and sentenced to life imprisonment and they were directed to pay , compensation of Rs.200,000/- (two hundred thousand) each to the legal heirs of deceased as required under section 544-A, Cr.P.C. In case of default of payment of compensation, they shall suf fer R. I., for two years' more.
4. Mr. Wazeer Hussain Khoso, learned counsel for appellant Dilawar (Cr. Appeal No.S-73/2016) prefers his submissions at length. After going through the entire evidence, he points out certain contradictions in the deposition of prosecution witnesses, which according to him are fatal. Concisely , rest of his arguments are that the appellant Dilawar is innocent and he has been false ly involved by the complainant on the behest of police. The incident was allegedly taken place at the odd hours of the night and there was no source of light, as such, identification of the appellant is not possible. The appellant was arrested on 04.10.2010 and test identification parade was to take place on 06.10.2010 for which notice was issued to the complainant and other prosecution witness on 05.10.2010 but identification was further delayed for one day and identification was carried out on 07.10.2010. He submits that the three suspects were produced jointly with thirty dummies at a time, which is not proper for test identification parade. The application for identification was filed by one police officer and appellants were produced for identification by another police officer. Nothing was recovered from appellant Dilawar and he is falsely booked in this case.
5. The learned counsel for appellant Dilawar in support of his contention relies upon 2017 SCMR 1546 , 2018 SCMR 577 , 2017 SCMR 1 189.
6. Mr. Shabbir Hussain Memon, learned counsel for appellant Waheed (Cr. Appeal No.S-77/2016) after adopting the arguments of Mr. Wazeer Hussain Khoso preferred additional submissions. The gist of his arguments is that the complainant has let off one of the suspec ts namely Mumtaz Ali. Previously , another set of accused were booked in this case namely Ghulam Qadir , Ahsan and Umer but after their arrest police let off them without assigning any reason and even no such record is available. Recovery of crime weapon is shown after 12 days of the arrest of appellant Waheed, which is highly doubtfu l. The ballistic expert report is not reliable because the same was sent on 19.10.2010 i.e. after delay of about 24 days and the recovered empties and pistol both sent together . The investigation is faulty as the statements of prosecution witnesses under Section 161 were recorded after 11 days of the incident. Further statement of complainant was recorded after identification.
7. The learned counsel for appellant Waheed intensifies his arguments by relying upon 2004 SCMR 1185, 2015 PCr.LJ 81, 2017 SCMR 344 , 2011 SCMR 537 and SBLR 2016 Sindh 1291.
8. Ms. Sana Memon, learned APG for state supports the impugned judgment. She submits that there is some shortcomings in test identification parade but when the complainant and eye-witn ess have identified the accused during trial, such shortcomings are overcome. According to her, other accused were also shown armed with lethal weapons but recovery was effected from accused Dilawar , who is the main culprit. She 'prays for maintaining the sentence awarded to the appellants.
9. Mr. Altaf Sachal Awan, learned counsel for complainant, after seconding the arguments of learned APG, submits that the conviction is rightly awarded to the appellants and the same should be maintained, Briefly his arguments are that the appellant cannot beset the test identification parade now when no question was asked about the same during cross-examination of the relevant witnesses. As no cross was done regarding enmity; therefore, the appellants cannot take refuge by levelling allegation of enmity in appeal. It is genuineness of identification that the complainant has identified only two suspects out of three. Medical evidence supports the ocular account of the prosecution witnesses. The statement of the complainant under section 162 was recorded after identification when complainant came to know about the names of the real culprits.
10. In support of his arguments, Mr. Altaf Sachal Awan relies upon PLD 2012 Supreme Court 215, 2016 SCMR 1766 , 2016 PCr .LJ 1, 2016 YLR Note 102 and 2016 PCr .LJ Note 1 17.
11. I have scanned the entire material available before me in the light of valued submissions preferred on behalf of the respective parties. The complainant has lodged FIR against unknown persons but the FIR indicates that due to scuffle, the muffling of the accused was removed, as such, the complaint party would identify the culprits. After registration of FIR, the police started investigation to pursue the real culprits. In the instant case, the prosecution relied upon test identification parade, medical evidence corroborating the ocular account and recovery of crime weapon from appellant W aheed.
12. As far as identification of the appellant by the complainant and a witness during a test identification parade is concerned, the same is to be done in such type of cases, where a witness claim s that he has seen the accused persons and would be identified them if seen again. The purpose of the test identification parade is to exclude the innocent suspected persons from the real culprits. It is held by the Hon'ble Supreme Court in a case reported as Farman Ali v. The State (1997 SCMR 971 ) as under: "Holding of identification test becomes necessary in cases; when names of the culprits are not given in the FIR.
Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits."
It is argued by the learned APG that any shortcoming in test identification parade is overcome, since the accused were rightly identified by the eye-witnesses during trial. No doubt, chance of identification of accused persons is available to prosecution at the time of trial but the same cannot be equated to the identification held during the investigation. In this respect, the Hon'ble Supreme Court has observed in a reported case Asghar Ali v. The State (1992 SCMR 2088 ) 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 identity of the culprit."
13. An identification may become a strong corroborative evidence in favour of prosecution, if the description of the accused is given by the complainant or witnesses in FIR or in their statements. However , in absence of any description of the accused persons given in the body of FIR, the identification of culprits can still be used to connect a suspect with the commission of offence, when the role played by the accused has been described in FIR and reiterated at the time of identification without any exaggeration. But at the same time, it is necessary that the test identification parade should be carried out in accordance with the settled legal principle or procedure. In the present case, three suspects were produced before the learned Judicial Magistrate for identification and at the time of identification they were mingled with thirty dummies and the witnesses were directed to identify the real culprits in one go. It is now a settled legal proposition that identification of multiple accused in one go is not appreciable rather the same is unsafe. In this respec t, I would like D to take reliance from the cases reported as Kamal Din alias Kamala v . The State (2018 SCMR 577 ), wherein it is held as: "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."
14. Another aspect of the case is also important, which pertains to identification of the accused persons. According to FIR, all the accused persons were muffled faces and the deceased brother of the complainant scuffled with one of them while the remaining two were guarding the complaining party and restrain them under the show of weapons. It is further mentioned in the FIR that during resistance, muffling of accused was opened. It is clearly mentioned in FIR and deposition of prosecution witnesses that the resistance was offered by deceased only, as such, the face of only one accused should be, who scuffled with deceased and caused his murder . However , the complainant and witness identified two persons as the culprit, which itself creates serious doubt about the identification. It is also noteworthy that the complainant party and accused/appe llants are resident of the same locality i.e. Railway Colony , Kotri. In the 'memo of identification' the same address is mentioned for complainant and accused/appellants. The appellants in their statements under section 342, Cr.P.C. mentioned that the complainant party is residing nearby their houses and they are already known to them. I am of the view that it is the fatal blow to the prosecution regarding test identification parade and cast thick clouds of doubt to the entire prosecution case.
15. As far as medical evidence is concerned, I have observed that the same is in line with the ocular account in respect of the seat of injury to the deceased. The deceased sustained an injury to the left side of his chest, which is vital part of the body . Owing to such injury , serious damage was caused to the viscera of the deceased which was sufficient to cause death. Hence, it is clear that the death of the deceased was an un-natural death and the same is not in dispute.
16. Another important piece of evidence with which the prosecution is equipped is the recovery of crime weapon (i.e. .30 bore pistol) and matching of empties recovered from the place of incident with the crime weapon.
According to prosecution, during interrogation appellant Waheed admitted his guilt and offered to lead the investigator for recovery of crime weapon. The crime weapon was recovered on the pointation of appellant Waheed from bushes near Mehran Bridge. The crime weapon was allegedly recovered on 12.10.2010 at about 17:50 hours while the alleged incident was taken place in the night in between 25.09.2010 and 26.09.2010. According to 'memo of place of incident' prepared on 26.09.2010 from the place of incident two empties, were recovered and taken into police custody . The recovered empties were not sent to ballistic expert just after their recovery from the place of incident. Even, after recovery of crime weapon on 12.10.2010, the same was not sent to the ballistic expert without delay .' As per report of ballistic expert, the recovered empties and pistol both sent together on 19.10.2010 i.e. after 7 days of the alleged recovery of crime weapon and after 23 days of the recovery of empties. Nothing on the record regarding safe custody of empties and crime weapon. There is strong presumption that after recovery of these articles, the same remained in custody of the investigator , in this position of affairs, it will not be proper to rely upon the ballistic expert report. I am of the view that even if the recovery of pistol from the appellant is established, it remains harmful for prosecution case as it creates serious doubt that it is the same pistol, which was used in the alleged incident because of delayed sending as well as non-establishing its safe custody during intervening period.
17. The ultimate outcome of the above discussion is that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt; therefore, I accept the Criminal Appeal Nos.S-73/2016 and S-77/2016 filed by the appellants Dilawar and Waheed Ali respectively and set aside the conviction and sentence awarded to them by Sessions Judge, Jamshoro alias Kotri in Sessions Case No. 201/2010 (FIR No. 299/2010 of Police Station Kotri under sections 302, 460, 34, P.P.C.) vide judgment dated 04.05.2016 and acquit them of the charge by extending benefit of doubt. The appellants are in custody , it is directed that they should be released forthwith if they are not required in any other custody case.