MUHAMMAD WAHEED KHAN, J--- This judgment shall dispose of Criminal Appeal No. 265 of 2014 filed by appellant (against his conviction and sentence) and M.R. No. 51 of 2014 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant or otherwise. As both the matters have been arisen out of the same judgment dated 31.01.2014 passed by the learned Addl. Sessions Judge, Lahore in case FIR No. 632/2002, dated 12.09.2002 registered u/s. 302/397/324/337-F(iii), PPC at Police Station Baghbanpura, Lahore, according to which appellant was convicted and sentenced as under: Under section 302(b), PPC awarded Death sentence as Tazir for committing murder of. Muhammad Aslam. He was also directed to pay compensation of Rs. 1,00,000/- to the legal heirs of deceased Muhammad Aslam under section 544-A, Cr.P.C. and in default thereof, he was ordered to further undergo simple imprisonment for six months.
Under section 302(b), PPC awarded life imprisonment for committing murder of deceased Muhammad Qasim and was directed to pay compensation of Rs. 1,00,000/- to the legal heirs] of deceased Muhammad Qasim under section 544-A, Cr.P.C. and in default thereof, he was ordered to further undergo simple imprisonment for six months.
Under section 397, PPC awarded seven years' rigorous imprisonment .
Under section 324, PPC awarded ten years' rigorous imprisonment for inflicting fire-arm injuries to Muhammad Yar, Tahir Munshi and fine of Rs. 50,00 0/- and in default thereof, he was ordered to further undergo simple imprisonment for three months.
Under section 337-F(iii), PPC awarded three years' rigorous imprisonment and fine of Rs. 5,000/- and Rs.10,000/- as Daman and in default of payment of fine, he was ordered to furthe r undergo simple imprisonment for two months and in default of payment of Daman, he was ordered to be kept in jail till its payment.
All sentences except death sentence were ordered to be run concurrently and benefit of section 382-B, Cr.P.C. was also extended to the convict.
2. Succinctly , facts of the case as narrated by the complainant Muhammad Latif while lodging FIR are as under:--- "The complainant .used to work with his brother Mohammad Aslam. On the day of occurrence i.e. 11.8.2002 at about 11:30 p.m. complainant alongwith his brother Mohammad Aslam, Tahir Munshi, Maqsood Driver , Rana Mohammad Rafique, Sheraz alias Goga, Mohammad Azeem, Shehzad Murghi Wala were sitting in the Baithak and making rendition of accounts, the outer door of the Baithak was opened. Three young boys armed with pistols entered in the Baithak and they pointed their pistols on the complainant and others and commanded them that if any person made noise and tried to get up from his place, he would be done to death. Tahir Munshi suddenly captured one Dacoit, upon which other two Dacoits started firing with their respective pistols and one fire landed on their own companion/Dacoits (whose name and residence was not known) on his neck and chest, due to which the said Dacoit fell down on the ground and succumbed to- the injuries. Mohammad Aslam brother of the complainant also received one fire shot on his neck and one on his chest who also fell down on the floor. Tahir Munshi also received fire-arm injuries on his neck and abdomen. Maqsood Driver also received fire-arm injury on his foot. After hearing the noise of firing people gathered at the place of occurrence.
Both the said Dacoits were fled away from the scene of occurrence while making firing. One Dacoit also received fire-arm injuries. The features of both the Dacoits have also been narrated as (i) wheatish colour aged about 20/25 years wearing Pent Shirt and (ii) wheatish colour , average height, aged about 23/24 years wearing Pent Shirt. The complainant alongwith his companions shifted Mohammad Aslam, Maqsood Driver and Tahir Munshi to Mayo Hosptial, Lahore for medical treatment. The accused persons could be identified by the complainant party , if they would be produced before them. Later on injured Mohammad Aslam also succumbed to the injuries."
3. PW-10 Dr. Muhammad Khalid, who also later on appeared as PW-18 conducted post-mortem of deceased Muhammad Aslam on 12.09.2002 at 4.00 p.m. Dr. Ghulam Sabir Sabri appeared as PW-16 who medically examined injured persons Maqsood and Muhammad Yar Tahir on 12.09.2002 at 0.30 a.m. Dr. Muhammad Nawaz appeared as PW -22, who conducted post-mortem of said unknown Dacoit.
4. After registration of the case, police carried out investigation and on its completion submitted report u/s. 173, Cr.P.C. by declaring the appellant alongwith his co-accused persons, Muhammad Faisal and Muhammad Wasim (both later on declared Juvenile and their case was separated) as guilty . Learned trial Court framed charge against appellant, which was denied by him and the trial commenced.
5. Prosecution produced as many as twenty three witnesses. Ocular account was furnished by the complainant Muhammad Latif, injured Muhammad Yar Tahir and Sheraz alias Goga, who appeared before the learned trial Court as PW-2, PW-3 and PW-4 respectively . Medical evidence was furnished by PW-10 Dr. Muhammad Khalid, who later on also appeared as PW-18, PW-16 Dr. Ghulam Sabir Sabri and PW-22 Dr. Muhammad Nawaz. Riaz Ali I/P and Muhammad Tufail, ASI both Investigating Officers appeared as PW-15 and PW-21. Allah Rakha Anjum, learned Special Judicial Magistrate in whose supervision identification parade of the accused was conducted appeared as PW-23 whereas remaining PWs were of formal in nature. Thereafter prosecution closed its evidence by producing certain documentary evidence.
6. Appellant was examined u/s. 342, Cr.P.C., wherein he denied all the allegations levelled against him. He neither opted to record his statements u/s. 340(2), Cr .P.C. nor produced any evidence in his defence.
7. Learned trial Court after Appraisal of prosecution evidence convicted and sentenced appellant in the above- mentioned terms, hence, this appeal and Murder Reference.
8. Learned counsel for the appellant submits that prosecution has failed to prove the case against the appellant as basically it was the duty of prosecution to prove its case beyond reasonable doubt; that the impugned judgment is based on misreading and non-reading of evidence available on record; that story advanced by the prosecution cannot be believed on any stretch of imagination as an important witness, namely , Maqsood Ahmad driver of the deceased, who has allegedly stamp of injuries on his person and was the star witness of the occurrence, has not been produced by the prosecution; that all the witnesses produced by the prosecution are not only closely related inter se with the deceased but also they are the chance witnesses and they have failed to establish their presence at the crime scene; that as per version of the prosecution, the appellant was duly identified during the test identification parade but surprisingly , prosecution has not identified the appellant in respect of his role that he played during the incident, so, under the circumstances, such identification parade cannot be made basis for conviction of the appellant and even otherwise, there is no corroborative piece of evidence available on record, as the weapon of offence allegedly , recovered from the possession of the appellant was found not wedded with the crime empties, allegedly secured from the place of occurrence and lastly prays that by accepting the instant appeal, appellant may be acquitted of the charge.
9. Conversely , learned Deputy Prosecutor General Vigorously controverted the arguments advanced by the learned counsel or the appellant and submits that prosecution has proved its case by producing cogent, reliable and trustworthy evidence supported by medical evidence having no element of previous enmity with the appellant; that appellant has rightly been picked up by the eye-witnesses during the course of test identification parade; that appellant alongwith others had acted ruthlessly and committed murder of the deceased and got injured two others and in consequence of which, his one companion had also lost his life; that no reason for false implication of present appellant has come on record, so, he has rightly been convicted am sentenced by the learned trial Court and finally prays that instant appeal may be dismissed.
10. We have heard the arguments of learned counsel for the parties and have scanned the record with their assistance.
11. It is trite law that entire burden to prove the alleged crime rests on the shoulder of prosecution and if there is any doubt qua the culpability of the accused exists in prosecution case, benefit of the same, is supposed to be given to him. In the instant case, in order to prove the ocular account prosec ution has produced three eye- witnesses namely , Muhammad Latif, Muhammad Yar Tahir and Sheraz alien Goga, who appeared before the learned trial Court as PW-2, PW-3 and PW-4 respectively . Out of whom; Muhammad Yar Tahir has stamp of injuries on his person. The other eye-witness Maqsood driver of the deceased, who also sustained injuries during the alleged occurrence was given up by the prosecution being unnecessary . The complainant Muhammad Latif (PW-2) while explaining the incident stated that three young boys armed with pistols entered in the Baithak, they pointed their pistols on complainant and others, where Muhammad Yar Tahir (PW-3) suddenly captured one of the dacoits, upon which two other dacoit started firing with their pistols and one fire was landed on their own companion (whose name and resident was not known) at his neck and chest, who succumbed to the injuries. Muhammad Aslam (deceased brother of the complainant also received fire-arm injuries on his neck am one on his chest, who also succumbed to the injuries. Maqsood drive also received injury on his foot. After committing the incident, the accused persons fled away . Other two witnesses Muhammad Yar Tahir (PW-3) and Sheraz alias Goga (PW-4) also deposed almost in a similar manner .
12. Although, the incident was allegedly reported to the police after one hour of the occurrence by the complainant, while making the statement to Rashid Ahmad, SI (PW-1 I) at the place of occurrenc e but circumstances of the case strongly suggest that the matter was not reported to police with such promptness as claimed by the prosecution, the reason of which is that the alleged occurrence took place on 11.30 p.m. on 11.09.2002., whereas post-mortem of the deceased was conducted on the following day i.e. 12.09.2002 at 4.00 p.m. The delay in conducting the post- mortem of the deceased clearly suggests that the incident was not reported with such spontaneity as claimed by the complainant. Admittedly , the appellant and other assailants were not nominate d in the FIR and it was lodged against unknown accused with their desc ription but no separate role has been attributed to them, rather joint role has been given to two assailants. Another important aspect of the case is that after the arrest of present appellant, he was subjected to test identification parade allegedly conducted in the supervision of Mr. Allah Rakha Anjum, learned Spl. Judicial Magistrate (PW-23) on 16.07.2003 but we find that the proceedings of identification parade has not been exhibited by the prosecution in the instant case rather the proceedings of identification parade of co- accused, namely , Waseem Nazir and Muhammad Faisal have been exhibited in this case as (Ex-PX) and (Ex-PY/ 1-3). When this situation was confronted to the learned Deputy Prosecutor General, who after perusing the record verified this fact that the proceedings qua the identification parade of present appellant has not been exhibited by the prosecution.
13. There is yet another aspect of the case that learned Special Judicial Magistra te (PW-23), who conducted the test identification parade while appearing before the learned trial Court stated as under:--- "It is correct that both the witnesses who identified the accused Sohail alias Saila during identification parade did not ascribe any role to the accused about the-occurrence."
Meaning thereby that the accused had not been identified with reference to any role, he allegedly played in the incident in issue and law is settled by know that such identification parade is not only illegal but also not proper besides being unsafe and it loses its value and cannot be relied upon. Reference in this respect may be made on the recent pronouncement of the august Supreme Court of Pakistan in its judgment passed in 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 can also be placed 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 1546 ), Shafqat Mehmood and others v. The State (2011 SCMR 537), Bacha Zeb v. The State (2010 SCMR 1189), Ziaullah alias Jajj 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 ).
So, we hold that the test identification parade during which the present appellant was allegedly identified by the eye-witnesses does not advance the case of prosecution. Even identification parade is not a substantive piece of evidence and it only corroborates the ocular version and in the instant case, it does not corroborate the ocular version at ail due to the above-stated reasons.
14. There is another aspect of the case that after submission of report u/s. 173, Cr.P.C. co-accused, namely , Muhammad Faisal and Muhammad Waseem were declared Juvenile and a sepa rate report u/s. 173, Cr.P.C. to their extent was submitted, which was consigned to record room due to non-appearance of the complainant and private witnesses and present appellant is the only accused who has been tried and convicted as stated above.
15. As far as medical evidence is concern ed, as observed above the post-mortem was conducted on the following day at 4.00 p.m. with a delay of 15 hours, explanation of which has not been advanced by the prosecution. Even otherwise, medical evidence only verified the injury on person of the deceased and injured PWs but it does not corroborate the version of prosecution and even otherwise, no role has been ascribed to the present appellant neither in FIR nor during the test identification parade by the PWs.
16. As far as recovery of pistol from the appellant is concerned, the same was sent to the office of Punjab Forensic Science Agency but it was not found wedded with the crime empties allegedly secured from the place of occurrence, according to the report of said agency and this factum has also been observed by the learned trial Court.
17. In sequel to above discussion, we find that the ocular account in this case advanced by the complainant Muhammad Latif (PW-2), Muhammad Yar Tahir (PW-3) and Sheraz alias Goga (PW-4) is not worth reliance and there is no independent corroboration at all available qua their veracity and truthfulness. As the prosecution was duty bound to prove its case against the accused beyond reasonable doubt by producing cogent, trustworthy and reliable evidence and on its failure to do that, entire benefit arising out of the same shall be resolved in favour of the accused. It is settled law by now that even a single doubt is sufficient for acquittal of the accused. Reliance is placed on the judgments passed by the august Supreme Court of Pakistan in cases of "MUHAMMAD ASHRAF alias ACCHU v. The STATE (2019 SCMR 652), "Munir Ahmad and another v. The State and others" (2019 SCMR 79), "Muhammad Akram v. The State " (2009 SCMR 230), "Ayub Masih v. The State " (PLD 2002 SC 1048 ) and "Tariq Pervez v . The State" (1995 SCMR 1345 )
The august Supreme Court of Pakistan in case of "Muhammad Akram v. The State" mentioned supra observed as under: "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts--Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
In another judgment passed in case of "MUHAMMAD ASHRAF alias ACCHU v. The STATE mentioned supra the august Supreme Court of Pakistan observed as under-- "It is well-settled that benefit of slightest doubt must go to an accused and in a case where the Court reached a conclusion that eye-witnesses were chance witnesses; they had not witnessed the occurrence and the prosecution story is concocted by the PWs, then the case of the accused merits plain acquittal."
18. As a result of above, Criminal Appeal No.265 of 2014 filed by appellant Muhammad Sohail alias Saila is accepted and he is acquitted of the charg e. He is in jail, so, he is ordered to be released forthwith, if not required to be detained in any other criminal case. Resultantly , Murder Reference No. 51 of 2014 forwarded for confirmation of death sentence of appellant is answered in NEGA TIVE and his death sentence is NOT CONFIRMED.