Shehram Sarwar Ch. J.--Rizwan alias Jani and Niaz alias Chah (appellants) were tried by the learned Addl Sessions Judge, Sheikhupura in case FIR No. 124 dated 17.03.2012, offence under Sections 302, 392 and 397 PPC registered at Police Station Sadar Farooqabad District Sheikhupura for the murder of Arif Ali during an incident of robbery . Vide judgment dated 15.11.2016, passed by the learned Addl. Sessions Judge, Sheikhupura, Niaz alias Chah (appellant) was convicted under Section 397 PPC and sentenced to seven years R.I. alongwith fine of Rs. 25,000/- and in default whereof to further undergo simple imprisonment for three months. He was also convicted under Section 411 PPC and sentenced to three years alongwith fine of Rs. 10,000/- and in case of non- payment of fine he shall further undergo simple imprisonment for one month. He was further convicted under Section 427 PPC and sentenced to two years alongwith fine of Rs. 10,000/-'and in default whereof to further undergo simple imprisonment for one month. All the sentences awarded to Niaz alias Chah (appellant) were ordered to run concurrently , however , he was acquitted of the charge under Section 302 PPC. Rizwan alias Jani (appellant) was convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs.
5,00,000/- as compensation under Section 544-A, Cr.P.C to the legal heirs of deceased and in default whereof to further under simple imprisonment for one year. He was also convicted under Section 397, PPC and sentenced to seven years R.I. alongwith fine of Rs. 25,000/-and in default whereof to `further undergo simple imprisonment for three months. Assailing the above convic tions and sentences, both the appellants have filed two separate appeals whereas the learned trial Court has sent Murder Reference No. 515 of 2016 for confirmation or otherwise of the sentence of death of Rizwan alias Jani (appellant), as required under Section 374, Code of Criminal Procedure.
Since all these matters have arisen out of the same judgment, therefore are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.PN) registered on the application (Ex.PM) of Rana Kashif Shaukat, complainant (PW.8 is that on the night of 17.03.2012 he alongwith his paternal uncle Arif Ali and Muhammad Farzand were coming from Hafizabad to Sheikhupura through Lahore Sargodha Road while riding on Truck No. PRH-9777 which was loaded with the bundle of Husk. At about 2:00 a.m. when they crossed dera Mala Singh where the speed of the truck became slow due to dilapidated condition of road and all of a sudden four unknown accused persons armed with firearms (whose features/descriptions are mentioned in the FIR) came in front of the truck and stopped the same on gunpoint. Arif Ali made resistance with the accused persons whereupon they fired with 30 bore pistol hitting on wind screen of truck which was broken. Second fire was made by an accused person hitting on right buttock of Arif Ali due to which he fell on the driving seat. The accused persons snatched mobile phone, cash Rs. 8000/-, identity card and driving license of Arif Ali and fled away . The complainant's side attended Arif who had died due to sustaining firearm injury .
3. After completion of investigation, report under Section 173, Code of. Criminal Procedure was submitted in this case. The appellants alongwith their co-accused namely Adeel alias Sunni was summoned by the learned Addl.
Sessions Judge, Sheikhupura to face the trial. Copies of relevant documents were provided to them, as, required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them on 6.12.2013, to which they pleaded not guilty and claimed trial. It is pertinent to mention here that Adeel alias Sunni co-accused of the appellant disappeared during the trial and as such he was declared proclaimed offender by the learned trial Court. After the closure of prosecution evidence, statements of the appellants under Section 342, Code of Criminal Procedure were recorded, wherein they refuted all the allegations of the prosecution and professed their innocence. The appellants did not appear as their own witnesses, in disproof of the allegations levelled against them, as provided under Section 340(2 ), Code of Criminal Procedure, howeve r, Niaz alias Chah (appellant) produced certain documents as (Exh.DA, Mark-A and Mark.B) in his defence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellants, as detailed above. Hence, these appeals and murder reference.
4. Learned counsel for the appellants, in support of these appeals, contends that the appellants have falsely been implicated in this case; that it was" an unseen incident; that the appellants were not nominated in the FIR; "that presence" of both the witnesses of ocular account namely Muhammad Farzand (PW.5) and Kashif Shaukat (PW.8) on the spot at the time of incident is doub tful in nature; that there was noticeable delay in conducting postmortem examination of the dead-body of deceas ed; that identification parade conducted in this case has no value in the eye of law because the same was held jointly; that medical evidence is only a supporting, piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case; that alleged recoveries of .30 bore pistol and driving license at the instance of Rizwan alias Jani and Niaz alias Chah (appellants), respectively , are inconsequential; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General opposes this appeal on the grounds that matter was reported to the police with due promptitude; that though the names of the appellan ts are not mentioned in the FIR but this sole circumstance goes a long way to establish bona fide of the complaina nt because had there been any malice on the part of the complainant, the appellants could have straightaway been nominated in the FIR; that the appellants were rightly identified during the course of identification parade conducted under the supervision of Iram Sharif, learned Judicial Magistrate (PW.10); that prosecution case is fully supported by medical evidence and further corroborated by the recoveries of 30 bore pistol and driving license at the instance of Rizwan alias Jani and Niaz alias nil Chah (appellants), respectively; that the prosecution has successfully brought home guilt against the appellants beyond any shadow of doubt and there is no merit in these appeals.
6. We have heard learned counsel for the appellants as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
7. In the FIR as well as before the learned trial Court it was the case of prosecu tion that at the time of incident Muhammad Farzand (PW.5) and Kashif Shaukat complainant (PW.8) were present in the truck alongwith Arif Ali (deceased) when the same was intercepted by the accused persons but surprisingly neither the accused persons caused any harm to them nor snatched anything from their possession which fact shows that both these PWs were not accompanying the deceased at the time of incident. We failed to understand that in the presence of a paternal nephew and one other PW how such tragedy with the deceased could happen without any intervention on their part rescue the deceased. It has been brought on record through the statement of Muhammad Shall S.I. (PW.12) that on 20.06.2012 (i.e. prior to implicating the appellants in this case) the complainant got recorded a supplementary statement nominating one Saddam as actual culprit of the incident but subsequently on 08.07.2012 the said person was exonerated by the complainant from the commission of crime. Moreover , postmortem examination of the dead- body of deceased was conducted about ten hours and forty five minutes after the incident. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of unwit nessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed vs. The State" (2011 SCMR 1190) and Nazeer Ahmed vs The State"
(2016 SCMR 1628 ).
8. In the FIR it is mentioned that four accused persons of young ages, wearing shalwar qamiz, jogger having long and middle heights, stopped the truck of complainant party on gunpoint for the purpose of robbery who upon resistance of Arif Ali committed his murder by making a fire. There may be millions of persons including the appellants of young ages having long and middle heights in our country but they cannot be identified merely on the basis of long and middle heights, therefore, facial features is the most important and significant feature for identification purpose; but "facial feature" of any of the assailants including the appellants was not mentioned in written application (Exh.PM) and F.I.R. (Ex.PN), therefore, identification of the appellants as actual culprits of the incident during identification parade, is inconsequential. Reliance is placed on case law titled as "State/Government of Sindh through Advocate General Sindh, Karachi versus Sobharo" (1993 SCMR 585) and "Sabir Ali alias Fauji versus The State" (2011 SCMR 563). Furthermore, when no specific, role of any assailant including the appellants was mentioned in written application (Ex.PM) and F.I.R. (Ex.PN), then deposing any specific role of any assailant by any witness during identification parade has no evidentiary value. Moreover , the identification parade of the appellants was held on 19.07:20.12 under the supervision of Iram Sharif, Judicial Magistrate (PW.10) wherein the appellants and their co-accused namely Adeel alias Sunni had been made to sit jointly alongwith eight dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by the Hon'ble Supreme Court of Pakistan in a recent judgment passed in case titled "Gulfam and another versus The State" (2017 SCMR 1189). We have also noted that as per prosecution's own case the appellants were arrested on 11.07.2012 and identification parade in this case was conducted on 19.07.2012 i.e. , after about eight days of the arrest of appellants, therefore, chances cannot be ruled out that Muhammad Farzand (PW.5) and Kashif Shaukat complainant (PW.8) witnesses had seen the appellants prior to the holding of identification parade. We may refer here the case of "Shafqat Mehmood and others versus The State" (2011 SCMR 537), wherein the Hon'ble Supreme Court of Pakistan considered the delay of seven days in conducting identification parade of accused as immaterial. The relevant part of the above said judgment at page 545 reads as under: "9. ... Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons ..."
9. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained un-witnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605 ).
10. So far as-alleged recovery of 30 bore, pistol at the instance of Rizwan alias Jani (appellant) is concerned the same is immaterial because report of Punjab Forensic Science Agency (Exh.PT) qua pistol is in the negative.
Likewise, recovery of driving license of Arif Ali (deceased) at the instance of Niaz alias Chah (appellant) does not advance the case of prosecution because the said recovery was got effected about four months after the incident and it is not expected from the accused to keep such document with him for a long time knowing the fact that the same can be used against him.
11. So far as the defence plea taken by the appellants in their .statements under Section 342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
12. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution-case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story . Reliance is place on case law titled as "Muhammad Akram versus The State" (2009 SCMR 230 ).
13. For the foregoing reasons, the appeals in hand are allowed, convictions and sentences awarded to the appellants vide judgment dated 15.11.2016 passed by the learned Addl Sessions Judge, Sheikhupura are set aside and the appellants are acquitted of the charges levelled against them while extending him benefit of doubt. Rizwan alias Jani and Niaz alias Chah, appellants are in jail. They shall be released forthwith if not required to be detained in any other case.
14. Murder Reference No. 515 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Rizwan alias Jani (convict) is NOT CONFIRMED .
15. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial Court in any manner whatsoever in case of arrest and trial of Adeel alias Sunni co-accused of the appellants who was proclaimed offender at the time of pronouncement of the impugned judgment.