ABDUL HAMEED BALOCH, J.---This Criminal Appeal is directed against the judgment dated 30th March, 2019 ("impugned judgment") passed by the Additional .Sessions Judge, Loralai ("trial Court"), whereby the appellant was convicted and sentenced as under: "However accused Nasrullah is accordingly found guilty of Qatl i-amd of Shamsullah and is convict&d and sentenced under Section 302(b), P.P.C. to suffer imprisonment for life at Tazir and having regard to the facts and circumstances of the case the accused shall pay Rs.1,00,000/- (one lac) as compensation to the legal heirs of deceased within the purview of Section 544-A, Cr.P.C. or in default to three months S.I. The accused is further convicted and sentenced under Section 397, P.P.C. to suffer imprisonment for seven (7) years R.I. Since the ingredients of Section 324, P.P.C. is lacking, hence the accused is convicted and sentenced under Section 337-H(2), P.P. C. to suffer imprisonment for three months RI and to pay a fine of Rs.1000/-. All substantive punishment awarded to accused shall run-concurrently."
2. Brief facts of the case are that on 09.12.2016 complainant Mullah Rehmatullah lodged an FIR No.92/2016, under Sections 302, 397, 324, 34, P.P.C., with Police Station Duki, alleging therein that he along with his brother Shamsullah and cousin Qudratullah were working at the haulage of one Haji Bilal in coalmines. On the same date at about 5:30 p.m., he was present at haulage, meanwhile his cousin came there and told him that he along with Shamsullah parked motorcycle near haulage and were offering prayer, when they offered their prayers, two persons came there on one motorcycle and demand for the keys of their motorcycle, while Shamsullah refused to hand over the key of his motorcycle, on this they came to blow with Shamsullah and made firing upon him as well, due to which he died at the spot, while the above culprits seeing the people coming towards their side, made their escape good from the scene on their motorcycle. He further told to complainant that he can identify the above culprits, if they be brought before him.
3. On completion of investigation, the challan of the case was submitted before the trial court, wherein charge was framed and read over to the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution led its evidence to substantiate the charge. On completion of prosecution evidence the appellant was examined under Section 342, Cr.P.C. wherein he once again professed his innocence. The appellant did not record his statement on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of the trial the appellant was convicted in the aforesaid terms. Hence this appeal.
4. Learned counsel for the appellant contended that the impugned judgment is contrary to facts and norms of natural justice; that the appellant was not nominated in the FIR and the identification parade does not full fill the requirements of Article 22 of Qanun-e Shahadat; that the disclosure of the appellant and alleged recovery are not admissible in the eyes of law and no private witness was associated during course of recovery; that there is delay in sending of parcel and receiving of FSL report without any plausible explanation; that there is contradiction amongst the prosecution witnesses and all the witnesses are interested and related to deceased. He therefore urged for setting aside the impugned judgment and prayed for acquittal of the appellant.
5. Learned DPG vehemently opposed the contention of the learned counsel for the appellant while supporting the impugned judgment and urged for dismissal of the appeal.
6. We have heard the learned counsel for the appellant at length and have perused the available record minutely. The prosecution case rest upon the ocular account, MLC, identification parade, disclosure, pointation of appellant/ accused and recovery of crime weapon. As per prosecution the deceased and Qudratullah were working in Bilal Haulage. On the fateful day they proceeded from Duki towards their work place, when reached near Usman Lease stopped for offering prayer, meanwhile two persons came on motorcycle, in which one was armed with pistol and told deceased for handing over the key of motorcycle, whereupon the deceased resisted and Qudratullah made hue and cry, resultantly one of the accused fired upon Qudratullah, and the bullet hit the trouser and thereafter also made firing upon Shamsullah, who received bullet injuries and succumbed to the injuries. The prosecution in order to prove the case produced as many as ten witnesses before the trial court. It is an admitted fact that the complainant was not eye-witness of the occurrence and the FIR was lodged on the fateful night at about 9:30 p.m., again& unknown accused persons. The record reveals that the Investigating Officer recorded the statement under Section 161, Cr.P.C. of the complainant on the fateful night. The appellant/ accused was arrested on 11.1.2017 on the basis of confession statement under Section 164, Cr.P.C. of accused Khalil- ur- Rehman in another case and thereafter on 25.01.2017 identification parade of the appellant was conducted, where the PW-1 identified the appellant. It is to be noted that prior to identification of the appellant under supervision of DSP once the appellant was produced before the Judicial Magistrate for identification parade but the judicial magistrate due to non-production of CNIC refused the request of investigating officer. Here question arises why the investigating officer did not produce any identity documents of the appellant to the judicial magistrate, even the identification parade was not met according to the guideline as given by the Hon' able Apex Court time and again. In the case of Kanwar Anwaar Ali, Special Judicial Magistrate PLD 2019 Supreme Court 488, the Hon'ble Supreme Court has given the guideline in detail as under:
(a) Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence;
(b) a test identification, where the possibility of the witness having seen' the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous I.Os. showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces if they so choose so that no witness could see them; (c ) identification parades should never be held at police stations;
(d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings; (e ) In order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are Some special justifiable circumstances warranting a deviation from it;
(f) if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person;
(g) It must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;
(h) the Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a . silent spectator of the same bearing in mind at all times that the life and liberty of someone depends only upon his vigilance and caution; (i)the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade along with their parentage, occupation and addresses;
(j) the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings;
(k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report;
(l) and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness; (m)the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and (n)the Magistrate has to give a certificate at the end of his report in the form prescribed by CH. H.C. of Vol. III of Lahore High Court Rules and Orders.
24. The measures above listed should, however, not be taken as exhaustive of the steps which are required to be taken before, during and after the identification proceedings. All these requirements are no doubt mandatory but at the same time they are only illustrative of the precautions which the Courts of law demand before some respect can be shown to the evidence offered through the test identification proceedings."
7. In view of the referred guideline the prosecution has not adopted the same in stricto sensu, and the identification parade conducted in the police lockup has lost its evidentiary value, cannot be relied upon. Besides PW-1 the prosecution also produced PW-2 and 4 as ocular witnesses but they in their court statements did not named the appellant. Since the accused was not nominated in the FIR then both the ocular witnesses were also required to be participated in the identification period, because the identification of an accused persons before the trial court during the trial has generally been held unsafe by the Hon'ble apex Court. Reliance is placed on the case of Haider Ali v. State 2016 SCM R 1554.
8. The prosecution produced PW-2 and PW-4 as ocular witnesses but as per PW-1 he along with deceased was proceeded towards their work place meanwhile the incident occurred. The PW-1 neither in his statement under Section 161, Cr.P.C. nor in his Court's statement has shown the presence of the PW-2 and PW-4 at the place of occurrence. The complainant appeared as PW-9 and exhibited Fard-e-Bayan as Ex-P/9-A. PW-9 neither in his Fard-e -Bayan Ex-P/9-A nor in his court statement narrated the presence of the PW-2 and 4. The PW-2 stated that they had brought the deceased to the hospital by motorcycle but the PW-2 during cross-examination stated that the deceased was boarded into police vehicle, while the PW-9 during cross-examination stated that he went with the dead body in the contractor's vehicle.
9. PW-9 during cross-examination stated that he informed the contractor about the place of incident and the contractor reached to the place of occurrence within ten minutes. PW-9 further stated that they remained at place of occurrence till 9:00 p.m. (night) meaning thereby they remained nearly four hours at the place of occurrence but they did not bother to take the corpse to the nearby hospital. Such a conduct on the part of the complainant and the ocular witnesses who are related to the deceased does not appeal to the prudent mind when the corpse was lying in pole of blood in front of them for about four hours. The PW-1 neither mentioned the presence of PWs-2, 4 and 8 at the place of occurrence nor the site plan produce by the investigation officer confirm the presence of the complainant despite the investigating officer stated that during site inspection the complainant was with us. Although the site plan is not a substantive piece of evidence but it carries weight, cannot be brushed aside easily. Reference is made to the case of Abdul Sattar v. State (2008 PCr.LJ 869), whereby it has been observed as under: "that site plan is not a substantive piece of evidence, nor it can take away the probative force of reliable eye-witness, whose statement appears to be truthful and natural. But at the same time, site plan is not a piece of waste paper so it cannot be lightly ignored, when no inaccuracy is attributed because the site plan is prepared by draftsman, on pointation of the eye-witnesses, it, therefore is referred to for determining the respective position of the assailant, deceased and the eye-witnesses and it also reveals the circumstances, which have been noticed by the Investi gating Officer at the place of occurrence after his immediate arrival."
10. Similarly, in case reported as Mehr Ali and others v. The State 1968 SCM R 161 at page 169 it was held that "omission to indicate in site plan, position of witnesses at the time of occurrence, reflects on the possibility of witnesses not being present at the time of occurrence." The same judgment of august Supreme Court was relied upon in case reported as Khan and another v. The State 1978 PCr.LJ 24.
11. As per investigating officer on 19.12.2016 he prepared site plan Ex-P/ 10-B on the pointation of the complainant while after arrest of the appellant the investigation officer again prepared site plan Ex-P/10-E on the pointation of the appellant, but when both the site plans were taken into juxtaposition, both are different. Such deference arise question whether the occurrence had taken place at the site plan Ex-P/10-B or at site plan Ex P/10-E. In Ex-P/10-B neither the Bilal Nasir lease nor the tomb were shown but the prosecution after arrest of the appellant tried to improve the case with dishonest manner and prepared several site plans in order to show the Bilal Nasir lease with the place of occurrence, because both the ocular witnesses and complainant were working in the said lease. Such a dishonest improvement cannot be ruled out. The purpose of investigation is to unearth the truth nor persecute.
12. The Medico legal certificate Ex-P/3-A reveals that the deceased was brought to hospital at 7:35 p.m, while the remaining witnesses are not 'supported the version of PW-3. The prosecution has produced PW-6 as recovery witness of one casing, blood stained earth and a piece of blood stained shirt and trouser of Qudratulah. PW-6 during cross-examination stated that: {{URDU TEXT}}
13. As per PW-1 they reached to the hospital at 8:30 p.m. thereafter police reached, while according to PW-2 he remained at the place of occurrence till 8:00 p.m when the police reached there ' and has taken into possession the shirt of deceased at the spot. PW-2 further replied that he reached to the hospital at 8:30 p.m. but contrary to the above the PW-9 (complainant) during cross- examination stated that they remained at the spot from 5:30 to 9:30 p.m. and the police reached at the spot at about 8:50 p.m. The complainant during cross-examination stated that he had given the application to the police at Hospital about 9.30 p.m. later on he signed the said application in the police station. The testimonies of the prosecution in respect of exact time of occurrence are lacking certainty because when -the complainant remained at the spot at 9.30 p.m. with the corpse then at 7.35 p.m. who was examined by the PW-3 (Medico Legal Officer) and whose piece of blood stained cloth was taken into possession by the investigating officer when at that time the corpse was lying at the spot. It is astonishing the with complainant but has not taken into possession the deceased's motorcycle which was the main cause/reason of the incident.
14. As per Ex4 /10--A the occurrence has taken place at 5.30 p.m. evening but the report was lodged on 9.30 p.m. (night) after delay of four hours without any explanation despite the fact that as per PW-3 the dead body was brought to the hospital at 7.35 p.m. by the police. Under such circumstances possibility of deliberation and consultation cannot be ruled out. Reliance is placed on the case of Nazir Ahmed v. State 2018 SCM R 787.
15. As per recovery of alleged weapon from pointation of appellant from open place which was not exclusive possession of the appellant was sent to the FSL without empties after delay of 33 days without any explanation. The FSL report reveals that the weapon is in working condition. Such a positive report cannot help the prosecution because the weapon has to send coupled with casing/empties for examination, and it has also to be examined whether the said empties were fired from the said weapon or otherwise. Reliance is placed on the case of Muhammad Arif v. State 2019 SCM R 631, whereby the Hon' able Supreme Court held as under: "Recovery of the weapons of offence along with live bullets allegedly effect at the instance of the accused was not of much help to the prosecution because report of the Forensic Science Laboratory was simply to the effect that the rifle was in working order."
Thus, in view of above the appeal is allowed. The impugned judgment dated 30th March, 2019, passed by the learned Additional Sessions Judge Loralai to the extent of appellant is set-aside.
While extending benefit of doubt the appellant Nasrullah son of Abdul Rehman is acquitted of the charge under Sections 302(b), 397 and 337-H(2), P.P.C. in case FIR No.92 of 2016, Police Station, Duki.
The appellant being in custody is ordered to be released forthwith if not required in any other case.