Muhammad Waheed Khan, J.--This judgment shall dispose of Criminal Appeal No. 444-J of 2016 filed by appellant Farooq alias Farooqi, etc. Criminal Appeal No. 1126 of 2016 filed by appellant Muhammad Imran Criminal Appeal No. 1306 of 2016 filed by appellant Arslan alias Shani (against their conviction and sentence ) and MR. No. 366 of 2016 forwarded by the learned trial Court for confirmation of death sentence of appellants Muhammad Imran and Farooq @ Farooqi or otherwise, as all these matters have been arisen out of the same impugned judgment dated 12.05.2016 passed by the Addl. Sessions Judge, Faisalabad in case FIR No. 793/201 1 dated 30.06.201 1 registered u/S. 302/394/41 1 PPC & u/S. 13/20/65 A.O., 1965 at Police Station Sargodha Road, Faisalabad.
Learned trial Court after conclusion, convicted and sentenced the appellants as under:
(i) Farooq Farooqi Under Section 302(b) PPC awarded Death sentence as Ta'zir. He was also ordered to pay Rs. 1,00,000/- as compensation to the legal heir of deceased Muhammad Tariq under Section 544-A Cr.P.C. recoverable as arrears of land revenue. In default thereof, he was ordered to further undergo simple imprisonment for a period of six months.
Under Section 394, PPC awarded ten years imprisonment with fine of Rs. 50,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
Under Section 412, PPC awarded ten years imprisonment with fine of Rs. 50,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
Under Section 13/20/65 A.O. 1965 awarded seven years imprisonment with fine of Rs. 20,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
(ii) Muhammad Imran Under Section (302(b) PPC awarded Death sentence as Tazir. He was also ordered to pay Rs. 1,00,000/- as compensation to the legal heir of deceased Muhammad Tariq under Section 544-A Cr.P.C. recoverable as arrears of land revenue. In default thereof, he was ordered to further undergo simple imprisonment for a period of six months.
Under Section 394 PPC awarded ten years imprisonment with fine of Rs. 50,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
Under Section 13/20/65 A.O, 1965 awarded seven years imprisonment with fine of Rs. 20,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
Under Section 337-A(i) PPC awarded two years imprisonment and was also directed to pay Daman amount Rs.
5,000/- to the injured Muhammad Rafique.
(iii) Arsalan @ Shani Under Section 302(b) PPC awarded imprisonment for life as Ta'zir. He was also ordered to pay Rs. 1,00,000/ - as compensation to the legal heir of deceased Muhammad Tariq under Section 544-A Cr.P.C. recoverable as arrears of land revenue.- In default thereof, he was ordered to further undergo simple imprisonment for a period of six months.
Under Section 394 PPC awarded ten years imprisonment with fine of Rs. 50,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
Under Section 412 PPC awarded ten years imprisonment with fine of Rs. 50,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
Under Section 13/20/65 A.O,1965 awarded seven years imprisonment with fine of Rs. 20,000/-. In default thereof, he was ordered to further undergo simple imprisonment for a period of three months.
All sentences were ordered to be run concurrently and benefit u/S. 382-B Cr.P.C. was also extended to the convicts, Whereas co-accused, namely , Kashif @ Sohna was acquitted of the charge by the learned trial Court vide same judgment by giving him benefit of doubt. Co-accused Kashif @ Kashi was declared proclaimed offender by the learned trial Court.
All the three appellants filed Criminal Appeal No. 444-J of 2016 from jail but later on appellants Muhammad Imran and Arslan alias Shani had also filed separate appeals, so, Cr. Appeal No. 444-J of 2016 to their extent has become infructuous and disposed of accordingly .
2. Muhammad Rafique complainant of the case while appearing as PW -9 narrated facts of the case as under;-- "Stated that on 30.06.201 1 at 5.00PM Muslim Town Officers Block, he alongwlth Tariq, Khalil Ahamd and Muhammad Shahzad were coming from Chiniot to Faisalabad on car LE 5433 and reached near Madrassa Dar-ul- Quran near Fatima Masjid at Noor pur road. Four accused persons armed, with fire-arm weapons on motorcycle came there they encircled their vehicle and stopped them, his son Muhammad Tariq came out from the vehicle and he resisted with accused in the meanwhile, he alongwith Khalil and Shahzad also came out from the vehicle. The culprits made straight firing which hit his son Muhammad Tariq on left side of his belly and one fire-arm shot landed on the lower part of Muhammad Tariq and he became seriously injured and fell down. One of the assailants, namely , Imran tried to flee away which was over powered and he bite him with teeth on his right cheek raising hue and cry many persons had gathered there and the said assailant disclosed his name Muhammad Imran slo Muhammad Siddique caste Rehmani rlo Hajvairi Town, Faisalabad and he disclosed the name of other assailant Farooq slo Ali Ahmad rlo New Civil Line and he further said that accused Farooq knows the particulars of other assailants. Injured Muhammad Tariq was taken to Allied Hospital and he succumbed to the injuries in the hospital.
He was also medically examined in the said hospital. Accused Muhammad Imran was handed over to the police alongwith the pistol. The other assailants fled away from the scene of occurrence. One of the assailant Arsalan alias Shani snatched cash Rs. 5000/- and four mobile phones. He submitted written application Exh-PJ to the police at the spot and case was registered."
3. PW-5 Dr. Riaz ul Hassan medically examined the deceased Muhammad Tariq (in injured condition) on 03.06.201 1. Said PW also medically examined Muhammad Rafique on the same day. Dr. Saeed Akbar Tariq appeared as PW-17 who conducted post-mortem on the dead body of the deceased on 01.07.201 1 and observed following injuries;-- INJURIES:
1. (A) Fire-arm wound of entry lx1 cm on the front of left chest 6 cm from left nipple. Black ening around the injury was present.
1. (B) Fire-arm wound of re-entry 1x1 cm on the left side of chest 1.5 cm below Injury No. 1A.
2. (A) Fire-arm wound of entry 2x2 cm on the left front of abdomen. Blackening around the injury was present.
2. (B) Fire-arm wound of re-entry lx1 cm on the left iliac fossa.
3. (A) Fire-arm wound of entry 2x1 cm on the left inguinal area on front. Blackening around the injury was present.
3. (B) Fire-arm wound of exit 1 x 1 cm on the back of left buttock, OPINION In his opinion cause of death in this case was Injury No. 1A, IB, 2A, 2B, 3A & 3B leading to haemorrhage and shock resulting death. Injury No. 1A, IB, 2A 2B, 3A & 3B were inflicted by fire-arm, ante mortem and sufficient to cause death in ordinary course of nature.
Probable time that elapsed between injury and death was declared as death certificate attached and between death and post-mortem was 15 hours and 20 minutes.
4. After registration of the case, investigation started and on completion of the same, report u/S. 173 Cr.P.C. was submitted before the learned trial Court by declaring the appellants as guilty along with their co-accused Kashif alias Sohna. Thereafter , learned trial Court after observing all the legal formalities, framed the charge against appellants alongwith their co-accused mentioned above, which was denied by them, hence, trial commenced.
5. In order to prove its case, prosecution produced as many as seventeen witnesses. Ocular account was furnished by the complainant Muhammad Rafique and eye witness Khalil Ahmad who appeared as PW-9 and PW-10 respectively . Medical evidence was furnished by Dr. Riaz ul Hassan and Dr. Saeed Akbar Tariq who appeared as PW-5 and PW-17 respectively . Learned Judicial Magistrates, Mian Qaisar Javed and Mr. Zulfiqar Ali Lak (Retd), both conducted the proceedings of identi fication parade appeared as PW-12 and PW-16 respectively . Sana Ullah SI, Muhammad Amir Khan Inspector , Falak Sher (Retd.) SI, Maqsood Ahmad ASI and Muhammad Bashir SI, they all conducted investigation of the instant case and appeared before the learned trial Court as PW-1, PW-3, PW-4, PW-7 and PW-15 respectively , whereas remaining PWs were of formal in nature. Thereafter , prosecution closed its evidence by producing certain documentary evidence.
6. After recording the prosecution evidence, appellants were examined u/S. 342 Cr.P.C, wherein they denied all the allegations leveled against them. They neither opted to record their statements u/S. 340(2) Cr.P.C. nor produced any evidence in their defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellants as mentioned above, hence, these appeals and Murder Reference.
8. Learned counsels for the appellants in support of appeals submit that only Muhammad Imran appellant is nominated in FIR by the complainant and on his disclosure other appellant. Farooq @ Farooqi was nominated, whereas rest of the accused were not nominated in the instant crime report; that the complainant and other eye witness, namely Khalil Ahmad both are the chance witnesses as they hail from district Chiniot and they have not plausibly explained their presence at the place of occurrence, which is situated in district Faisalabad; that there are material contradictions in the statements of both the witnesses and same are not confidence inspiring; that both the PWs are also interested witnesses, recov eries have been planted upon the appellants; that features of appellants Farooq @ Farooqi and Arslan alias Shani were not given in the FIR and in identification parade no specific role was described by the PWs and both accused were identified in a same go and joint identification parade is not admissible in evidence. Lastly , pray that since the prosecution has failed to prove its case beyond shadow of reasonable doubt against the appellants, so, by accepting instant appeals, they may be acquitted of the charge.
9. On the other hand, learned Deputy Prosecutor General assisted by learned Assistant District Public Prosecutor and learned counsel for the complainan t has vigorously controverted the argum ents advanced by the learned counsel for the appellants and submits that appellants namely , Muhammad Imran and Farooq @ Farooqi are specifically named in FIR and especially appellant Muhammad Iniran who was apprehended red handed at the spot by the PWs and was handed over to the police at the time of lodging of FIR and appellant Farooq @ Farooqi was nominated in FIR on the disclosure of appellant Muhammad Imran; that during the course of identification parade appellants Farooq @ Farooqi and Arsalan alias Shani were correctly identifi ed by the prosecution witnesses as culprits of the instant crime report; that FIR was lodged with utmost promptitude and the complainant of FIR Muhammad Rafique has also stamp of injury on his person; that even there was no enmity exist between the parties previously , which rules out false implication; that the prosecution case is corroborated by medical evidence, recoveries allegedly affected from the possession of the appellants and as the prosecution has established its case against the appellants beyond reasonable doubt, so, the instant appeals are liable to be dismissed.
10. W e have heard learned counsel for the parties and perused the record with their able assistance.
11. Prosecution case based on the following evidence;--
1. Ocular account.
2. Identification Parade.
3. Medical evidence, and
4. Recoveries.
To prove ocular account, prosecution has produced Muhammad Rafique complain ant/injured of the case and eye witness Khalil Ahmad as PW-9 and PW-10 respectively . Unfortunate incident of murder with robbery took place on 30.06.201 1 at 5.00 p.m. in the area of Police Station Sargodha. Road, Fatima Masjid Madrissa Darul Quran Noorpur , Faisalabad. By describing the incident complainant Muhammad Rafique PW-9 deposed that he (complainant) alongwith Muhammad Tariq deceased aged about 28/30 years, Muhammad Shahzad and Khalil Ahmad (PW-10) were coming from Chiniot on a car, when they reached near the place of occurrence, four unknown persons armed with pistols came there on two motorcycles and stoped their car on gun point and they handed aver different articles to them alongwith cash. Son of complainant Muhammad Tariq deceased came out from the car and on his resistance, accus ed persons started firing with their respective weapons and after receiving fire shot on his chest, Muhammad Tariq fell down. He (complainant) caught hold one of the accused, who also caused injury with teeth bite on his face. On raising hue and cry, many persons attracted at the crime scene and three accused persons managed to flee away , whereas Muhammad Imran appellant alongwith weapon was handed over to the police, who further disclosed that out of other three accuse d persons, one was Farooq @ Farooqi appellant. The other PW -10 Khalil Ahmad also described the incident almost in similar way .
12. On perusal of contents of FIR, it is found that the name of appellant Muhammad Imran, who was apprehended by the complainant and other witness is figured in the FIR and Maqsood Ahmad ASI (PW-7) while writing down police proceedings at the bottom of FIR has specifically written that on having the knowledge of commission of instant occurrence, he reached at the crime scene and apprehended appellant Muhammad Imran alongwith 30 bore pistol and on his disclosure, name of other accused Farooq @ Farooqi was mentioned in the FIR, so, this aspect of the case verifies the stance of the complainant that appellant Muhammad Imran was apprehended red handed by him at the place of occurrence.
Moreover , stance of the complainant gets further verification from the testimony of Dr. Riaz ul Hassan PW-5, who medically examined Muhammad Rafique PW-9 on the same day at 6.30 p.m. and found teeth bite 3cm x 3cm skin deep on his right cheek. Medical evidence advanced by Dr. Riaz ul Hassan PW-5 and Dr. Saeed Akbar Tariq PW- 17 qua the medical examination of deceased Muhammad Tariq (in injured condition), injured/complainant Muhammad Rafique and post-mortem examination of deceased Muhammad Tariq sufficiently support the ocular version.
13. Keeping in view the above circumstances, we find that the testimony of both the eye witnesses is cogent, trustworthy and worth reliance qua the culpability of appellant Muhammad Imran. Both the PWs were cross examined at length but nothing fatal to the prosecution case could be extracted from it and we hold that prosecution has successfully proved its case against the appellant Muhammad Imran.
14. As far as the case of appellants Farooq @ Farooqi and Arslan alias Shani is concerned, although appellant Farooq @ Farooqi is nominated in FIR but the fact remains that his name was incorporated in the instant crime report on the statement of co-accused/appellant Muhammad Imran. Both the appellants were subjected to test identification parade alongwith acquitted co-accused Kashif alias Sohna. The identification parade was conducted under the supervision of learned Special Judicial Magistrates, Mian Qaisar Javed and Mr. Zulfiqar Ali Luk who appeared as PW-12 and PW-16 respectiv ely. Identification parade of Farooq @ Farooqi and Arslan appellants was conducted on 03.10.201 1 under the supervision of PW-16 and while going throug h his deposition before learned trial Court, we find that the said identifica tion parade was joint one and both the appellants were identified by the PWs in one go. Such type of identification parade in which according to the prosecution version the witnesses have correctly identified both of them suffers serious legal defects as in one and the same identification parade, two accused persons had statedly been identified by the PWs, so, we hold that such identification parade of two accused in one go amounted to joint identification and this procedure has consistently been disapproved by the august Supreme Court of Pakistan in various judgments. Reference in this respe ct may be made on the case of "Criminal Miscellaneous Application No. 183 of 2019 in Criminal. Appeal No. 259 of 2018 " (PLD 2019 Supreme Court 488). Further reliance in this regard may also be made on the judgments passed in cases of "Kamal Din alias Kamala v. The State , (2018 SCMR 577), Gulfam and another v. The State (2017 SCMR 1189), Hakeem and others v. The State (2017 SCMR 1545), Shafqat Mehmood and others v. the State (2011 SCMR 537), Bacha Zeb v. The State (2010 SCMR 1189), Ziaullah alias Jajja v. The State (2008 SCMR 1210 ), Imran Ashraf and 7 others v . The State (2001 SCMR 424 ) and Lal Pasand v . The State (PLD 1981 SC 142 ).
15. Apart from this, the witnesses while identifying both the appellants have not given the role, which they played during the incident and according to the proceedings of learned Special Judicial Magistrate, both the witnesses have identified the culprits by placing their hands on their heads without giving detail about their role in the incident and since the complainant while lodging FIR has not mentioned the features and ages of assailants, so, relying on such identification parade would be unsafe rather it would be against the spirit of law .
16. As far as recovery allegedly affected from the appellant Arslan is concerned, during the investigation said appellant allegedly led to the recovery of 30 bore pistol vide recovery memo Ex-PH and also got recovered an amount of Rs. 2000/-alongwith one mobile phone Nokia vide recovery memo Ex-PF but since no comparison report of pistol with the crime empties is availa ble, so, recovery of weapon remained inconsequential. Appellant Kashif alias Sohna also got the pistol 30 bore recovered but only report of Punjab Forensic Science Agency is available regarding its working condition, so, it also does not advance the purpose of prosecution in any manner .
17. For what has been discussed above, Criminal Appeal No. 1126 of 2016 filed by appellant Muhammad Imran is dismissed by maintaining his conviction . However , as far as death sentence awarded to the appellant Muhammad Imran is concerned, we find certain extenuating circumstances in his favour . Firstly , as no specific injury is attributed to him on person of the decea sed rather the complainant while lodging FIR stated that all the accused made fire shot on person of the deceased Muhammad Tariq, which means that a joint role has been attributed.
Secondly , the recovery of 30 bore pistol has been allegedly affected from possession of the appellant Muhammad Imran at the time of his apprehension by the police and according to the story of prosecution, Investigating Officer has secured three crime empties from the place of occurrence, which were sent to the office of Punjab Forensic Science Agency but according to its report, crime empties were not found wedded with the pistol allegedly recovered from possession of appellant Muhammad Imran, so, by treating these two factors as mitigating circumstances in favour of appellant Muhammad Imran, his death sentence is conversed into life imprisonment and as a result thereof. Murder Reference No 366 of 2016 to his extent is answered in NEGA TIVE and his death sentence is NOT CONFIRMED. All the other sentences awarded to him by the learned trial Court shall remain intact. Benefit of Section 382-B Cr .P.C. is also extended to him.
18. As we observed above that appellants Farooq @ Farooqi and Arslan alias Shani are not nominated in FIR, identification parade being joint one has also been disbelieved by us and recoveries allegedly affected from them remained inconsequential, so, by extending benefit of doubt to both the appellants Farooq @ Farooqi and Arslan alias Shani, Criminal Appeal No. 444-J of 2016 and Criminal Appeal No. 1306 respectively filed by them are allowed and they are acquitted of the charge. Murder Reference No. 366 of 2016 to the extent of appellant Farooq (a), Farooqi is also answered in NEGA TIVE and his death sentence is NOT CONFIRMED . Both appellants are in jail, so, they are ordered to be released forthwith, if not required in any other case.