MUHAMMAD TARIQ NADEEM, J.---Abdul Majeed alias Cheeta, appellant along with his co-accused Muhammad Ibraheem alias Kala, faced trial in case FIR No. 1004 dated 11-12-2008, under sections 302, 394, 511, P.P.C. registered at Police Station Sadar Dera Ghazi Khan and after conclusion of trial, vide judgment dated 24-06-201 1, the learned trial court while acquitting co-accused Muhammad Ibraheem alias Kala, convicted and sentenced him as under:- Under section 302(b)134, P .P.C.
Life imprisonment along with compensation of Rs. 2,00,000/-to the legal heirs of Wahid Bakhsh, deceased, under section 544-A Cr.P.C. recoverable as arrears of land revenue and in default thereof to further undergo 06 months S.I.
Under section 394, P:P .C.
Ten (10) years R.I. for causing firearm injuries to Abdul Rasheed, PW along with fine of Rs.50,000/-; in default thereof to further undergo S.I. for one (01) year .
Under section 394, P .P.C.
Ten (10) years R.I. for causing firearm injuries to Ghulam Fareed, PW along with fine of Rs.50,000/-; in default thereof to further undergo S.I. for one (01) year .
Under section 394/34, P .P,C.
Ten (10) years R.I. for causing firearm injuries to Muhammad Farooq, PW along with fine of Rs.50,000/-; in default thereof to further undergo S.I. for one (01) year .
All the sentences were ordered to run consecutively . Benefit of section 382-B Cr.P.C. was extended to the appellant.
Feeling aggrieved by the judgment of the learned trial court, Abdul Majeed alias Cheeta appellant has assailed his conviction and sentence through the instant appeal.
2. The facts of the case have been stated by Ghulam Yaseen, complainant (PW.9) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:- "Stated that about one year and six months prior my uncle Ghulam Hasan was died. I received information about his death. After hearing this, new we set out, when we reached near `Daal' factory where Ghulam Fareed met me, Ghulam Fareed told me that he along with his Abdul Rasheed riding upon their motorbike were coming back from Chowk Qureshi towards their residential home. He further told me that when they reached near Daal Factory at about 06:30/7.00 P.M. where three unknown persons riding upon motorbike came there. The unknown persons intercepted to Abdul Rasheed. Ghulam Fareed further told me that all the accused were armed with Kalashnikovs.
The accused persons tried to snatch their motorbike. They have resisted to the accused persons. He further disclosed that they raised hue and cry upon which Wahid Bakhsh and Muhammad Farooq, PWs attracted there. He further told me that all the three accused persons made a firing upon them. Abdu l Rasheed and Ghulam Fareed sustained injuries along with Farooq. Later on Wahid Bakhsh succumbed to the injuries. He further told me that if the accused persons in his sight, he can identify to them. Riaz Hussain, Niaz Hussain and Allah Bakhsh came at the spot. There-after police visited the venue of occurrence. Police recorded my 'Fard Bian' Ex.PL, which was read over to me and I signed it in token of its correctness."
3. After completion of investigation, report under section 173, Cr.P.C. was subm itted against the accused. The charge against the accused persons was framed on 12-01-2010 to which they pleaded not guilty and claimed trial.
In order to bring home the guilt of the accused, the prosecution got examined as many as 14-witnesses. Ghulam Yaseen, complainant. (PW.9), Abdul Rasheed, injured (PW.8), Muhammad Farooq, injured (PW.10) and Ghulam Fareed, injured (PW.11) have furnished the ocular account. Aziz Asghar , Patwari Halqa (PW.1) prepared scaled site plan (Ex.P A and Ex.PA/1) of the place of occurrence. Iftikhar Ahmad, SI (PW.12) and Fareed Bakhsh, SI (PW.13) being investigating of ficers stated about various steps taken by them during investigation of the case.
Mr. Abdul Jabbar , learned Special Judicial Magistrate (PW.14) supervised the identification parade of accused persons Muhammad Ibraheem and Abdul Majeed alias Cheeta on 16-09-2009 and 04-11-2009, respectively . The Medical evidence was furnished by Doctor Khalid Naveed (PW.3) and Doctor Abdul Rehman Qureshi (PW.6).
Doctor Khalid Naveed (PW.3) on 11-12-2008 medically examined the injured persons namely Abdul Rashid, Wahid Bakhsh, Ghulam Fareed and Farooq vide MLRs (Ex.PH, Ex.PI, Ex.PJ and Ex.PK), respectively . On 23-12-2008, Doctor Abdul Rehman Qureshi (PW.6) conducted autopsy on the dead body of deceased Wahid Bakhsh vide PMR (Ex.PN) and observed following injuries on his body:- INJURIES
1. A septic wound 2 cm x 2 cm x going deep was present on lower most part of front of left chest and upper most part of abdomen.
2. A stitched wound half cm x half cm going deep was present on the front of the left chest above injury No.1 Stitched material was present.
3. A wound which was partially healed having size 1 cm x half cm x going deep was present on the right side of the abdomen. a. A septic wound 5 cm x 4 cm intestine stitched was present on front of left abdomen (most probably wound of colostomy). b. A stitched wound 3.5 cm x half cm on the side of left chest in the upper part (wound of chest tube). c. A wound 1 cm x half cm on the right side of the abdomen (wound of drain). d. A stitched wound from upper to the lower part to the abdomen was present in the middle of the abdomen (wound of laportomy). A very small piece of "Cika" was present under fatty tissue of the front of right chest which was handed over to police in a seaaled bottle.
According to the doctor , injuries Nos.1 to 3 were ante-mortem and were caused by firearm weapon. The other injuries were due to surgical intervention. The cause of death was due to injurie s to the lung and the intestines which were the vital organs. The probable time that elapsed between injury and death was 11 to 12 days and between death and postmortem examination was 1 1 to 13 days.
The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up Abdul Ghafoor 544/C, Kareem Baldish and Abdul Majeed, constable PWs being unnecessary and closed its evidence after tendering the report of Chemical Examiner (Ex.PV), report of Serologist (Ex. PX).
4. Thereafter , the statements under section 342, Cr.P.C. of the accused were recorded wherein they denied the allegations levelled against them and claimed their innocence. They did not opt to appear as their own witnesses within the scope of section 340(2), Cr.P.C. however , co-accused Muhammad Ibrahe em alias Kala produced copy of statement of Ghulam Fareed under section 161 Cr.P.C. (Ex. DJ), petition moved before the learned Magistrate at the time of identification parade (Ex.DK) and photocopy of petition moved before the learned Sessions Judge on 09-09-2009 as Mark-A, in his defence evidence.
5. The learned trial court vide judgment dated 24-06-201 1 found the appellant Abdul Majeed alias Cheeta guilty , convicted and sentenced him as mentioned above, but proceeded to acquit his co-accused Muhammad Ibraheem alias Kala by extending the benefit of doubt in his favour , hence, this appeal.
6. Learned counsel for the appellant argued that the appellant was not nominated in the FIR and no features of the assailants have been mentioned in it. Furthermore, the complainant got recorde d his supplementary statement against Nazar Hussain and Abbas. Subsequently , they both were arrested by Iftikhar Ahmad, SI (PW.12) and he obtained their physical remand from the court of learned Area Magistrate, thereafter , a discharge report was prepared, which was disagreed by the learned Area Magistrate. Similarly , on 15-12-2008, three other persons namely Atta Muhammad, Ghulam Akbar and Ghulam Mustafa were also implicated in this case on suspicion.
Furthermore, it is a night time occurrence but no source of light has been described by the prosecution. The appellant has been involved in this case on the supplementary statement of the complainant, which was recorded on 05-09-2009. The appellant was arrested on 24-10-2009 in another case and his identification parade was conducted on 04-11-2009 i.e. with the delay of ten days and no explanation qua such delay has been given, even otherwise, when the prosecution has already involved the appellant in supplementary statement, the identification parade has no legal worth. The prosecution has miserably failed to prove the case against the appellant.
7. Conversely , learned Deputy Prosecutor General has argued that the prosecution has proved the case against the appellant beyond any shadow of doubt through convincing, unimpeachable and overwhelming evidence. The appellant has been duly identified by the PWs in the identification parade. The prosecution has proved its case upto the hilt. Lastly , argued that the appeal has no merit and may be dismissed.
8. Arguments heard and record perused.
9. As per indictment's case, three obscure blamed people had submitted the event; the arraignment witnesses have not expressed that they had seen the essences of the aggressors, even highlights of the. culprits have not been referenced. The case remained untraced till 04-09-2009. On 05-09-2009 after about 09 months of the event, the complainant got recorded his valuable assertion accessible on record as Ex.DF , wherein he selected the current appellant alongside Muhammad Ibraheem assumed names Kala and Saif Ullah as suspects. Notwithstanding, no wellspring of their contribution has been referenced in Ex.DF . The Courts have consistently censured such sort of statements, which are made with the reason to reinforce the instance of the indictment at the command of the police authorities or some other ulterior intentions to get the suspect senten ced by any means necessary .
Assignment through valuable explanation has consistently been censured and despised by the Hon'ble Supreme Court and has never been valued for the equivalent being untimely idea. Dependence is put upon the instances of "Kashif All v. The Judge Anti-T errorism Court-II, Lahore and others" (PLD 2016 SC 951) and "Akhtar Ali and others v . The State" ( 2008 SCMR 6 ).
10. There is yet another circumstance of the case that according to the prosecution story occurrence took place on 11-12-2008 at 7:00 p.m. It was the month of December; meaning thereby the occurrence took place in the darkness and this fact is also admitted by Muhammad Farooq (PW.10) and Ghulam Fareed (PW.11) that occurrence took place after the Maghrib time. Neither in the FIR nor in the site plan, source of light has been described. Similarly , the investigating officer has not taken into possession any source of light. The prosecution failed to establish the fact of such availability of light source and in absence of their inability to do so, I cannot presume the existence of such a light source. Wisdom is derived from the case laws reported as "Gulfam and another v. The State" (2017 SCMR 1189), "Arshad Khan v. The State" (2017 SCMR 564) and "Azhar Mahmood and others The State" ( 2017 SCMR 135 ).
11. During arguments, learned Deputy Prosecutor General has laid much emphasis that the appellant was identified by the eye-witnesses during identification parade, which was conducte d under the supervision of Mr. Abdul Jabbar , learned Special Judicial Magistrate (PW.14). In the FIR the culprits had not been nominated and they were mentioned as unknown and no features of the culprits had been recorded in the FIR. Undeniably , Ghulam Yaseen, complainant (PW.9) was not eye-witness of the alleged occurrence and the story was told to him by Ghulam Farid and Abdul Rasheed, even then police got identified the accused persons in the identification parade from complainant. When the appellant and his co-accused have already been nominated through supplementary statement by giving their names, there was no occasion to hold test of identification parade. In the above-backdrop, the identification parade becomes highly doubtful and cannot be relied upon as the same was not held in accordance with law. Moreover , identification parade was held with the delay of 10 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 person. Even otherwise, I have already observed in the preceding paragraph that the prosecution witnesses, even if they were present at the scene of occurrence, were not in a position to identify the appellant owing to the darkness of a winter night. Keeping in view the facts and circumstances of the case, identification parade has no evidentiary value in the eyes of law and it cannot be used against the appellant as a corroborative piece of evidence. PWs had not described the features, physiques and complexions of. any of the unknown accused person. As such the test identification parade loses its authenticity and has no value in the eye of law as observed by the august Supreme Court of Pakistan in the case titled as, "Muhammad Afzal alias Abdullah v . The State and others" ( 2009 SCMR 436 ), wherein, it has been held as under: "9. Admittedly , the occurrence took place in the dark hours of the night. It has not been disclosed as to how the witnesses were able to identify the culprits. It can, at the most, be presumed that they were seen in the headlights of the vehicle, however , in that case the culprits could not have been seen by the PWs. More than once and that too, for a while. Though it is alleged that the deceased as well as the complain ant were fired at by one of the culprits yet, it has not been pointed out as to who was he? Nor his description by appearance was given in the FIR.
Absence of such details in the report/FIR militates against bona fides of the prosecution and greatly mars evidentiary value of the test identification parade. It is well-settled that when description by appearance of the accused is not given in the report/FIR and specific role is not attributed to him, his identification in Court for the first time, in the absence of strong corroboratory evidence, is not safe to be relied upon because by the passage of time memory fades and possibility that an accused might not have been mistakenly picked out is augmented."
I also fortify my view from the dictum laid down in case titled as "Javed Khan alias Bacha and another v. The State and another" ( 2017 SCMR 524 ), wherein, it has been held as infra:- "The Complainant (PW-S) had not menti oned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect."
Similarly , in the case of "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the FIR. It appears from the record that accused persons are comp lete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of FIR, the benefit of doubt be given to the accused persons...."
12. I have also noted with grave concern that the witnesses namely Abdul Rasheed (PW.8), Ghulam Yaseen (PW.9), Muhammad Farooq (PW.10) and Ghulam Fareed (PW.11) have made blata nt and dishonest improvements to their earlier statements. It is pertinent to mention here that in the FIR general role is attributed to the accused persons that they made burst with their Kalashnikovs which hit Ghulam Fareed, Abdul Rasheed, Wahid Baldish and Farooq. Similarly , no features were described in their statements under sectio n 161, Cr.P.C., whereas while appearing before the learned trial court, the improvements were made with respect to role of the accused persons and their features. According to the statement of Abdul Rasheed, injured (PW.8), he mentioned physical features and height of accused in his statement recorded by the police. Confronted with Ex.DA wherein it was not so recorded. Similarly , he also deposed that he stated before police that they can identify the accused persons if brought before them. Confronted with Ex.DA where it was not so recorded. More so, he also narrated in his statement that he stated before the police that accused came at place of occurrence on black coloured Honda 125CC motorcycle without number . Confronted with Ex.DA wherein colour of motorcycle was not mentioned.
Ghulam Yaseen, complainant (PW.9) stated in his statement that it is incorrect to suggest that he made statement before the police to involve some other persons in this case. Confronted with Ex.DE, Ex.DF and Ex.DG where it was so recorded. Similarly , he also stated that it is incorrect to suggest that he has stated before the police that he had suspicion that accused Ibrahim, Abdul Majeed and Saif Ullah committed the offence. Confronted with Ex.DF wherein it was so recorded.
Muhammad Farooq (PW.10) described in his statement that he stated before the police that Ibrahim, accused made fire at his father . Confronted with Ex. DH where it is not so recorded. He further stated that he stated before police that he can identify the accused persons if brought before him. His statement was confronted with Ex.DH wherein it was not so recorded.
Similarly , Ghulam Fareed (PW.11) deposed before the court that he stated before police that he can identify accused persons if brought before him. Confronted with Ex. DC wherein it was not so recorded. Moreso, he stated that it is incorrect to suggest that on 16-01-2008 he appeared before the police and stated that he had strong suspicion on Nazar Hussain son of Yousaf. Confronted with Ex.DD wherein it was so recorded. The Hon'ble Supreme Court of Pakistan has observed in a plethora of judgments that a witness is not worthy of reliance who makes dishonest improvements in his statement on a material aspect of the case in order to fill the lacunas of the prosecution case or to bring his statement in line with the other prosecution evidence. Reference in this respect may be made to the judgments reported as "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle: "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence".
The august Supreme Court of Pakistan in the case reported as "Muhammad Arif v. The State" (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maint ain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
13. I have noticed an important aspect of this case, that prosecution was not certa in regarding the culprits; for the reason Ghulam Yaseen, complainant (PW.9) involved in a supplementary statement Nazar Hussain and Muhammad Abbas on suspicion, who were arrested in this case, investigating officer obtained their physical remand and subsequently prepared their discharge report, which was disagreed by the court of learned Area Magistrate. Similarly , on 15.12.2008, three persons namely Atta Muhammad, Ghulam Akbar and Ghulam Mustafa were involved in this case on suspicion and on 16-12-2008 Ghulam. Fareed (PW.11) got recorded his supplementary statement before Iftikhar Ahmad, S.I./I.O. (PW.12) that Nazar was his accused. Similarly , Ghulam Yaseen also stated before Iftikhar Ahmad, SI (PW:12) that Ghulam Abbas is innocent in this case. Supra mentioned facts have been admitted by Iftikhar Ahmad, S.I./I.O. (PW.12) in his cross-examination. In the backdrop of supra mentioned facts, this Court reached at irresistible conclusion that the PW.8 to PW.11 are not truthful witnesses and cannot be relied upon.
14. There is yet another intriguing aspect of the case that co-accused of the appellant namely Muhammad Ibraheem alias Kala to whom effective role in the occurrence was attributed, has been acquitted of the charge through the impugned judgment on the same set of evidence. The witnesses of ocular account Abdul Rasheed (PW.8), Muhammad Farooq, (PW.10) and Ghulam Fareed (PW.11) during their court statements have categorically stated that Muhammad Ibraheem alias Kala made a fire shot, which hit to Wahid Bakhsh, deceased. His role is also identical with that of the appellant. It is a prosaic rule of law and equity that once arraignment witnesses are doubted concerning a co-blamed then, at that point, they can't be depended upon with respect to the next co- charged until and except if it is upheld by any free verifying piece of proof, which is prominently absent in the moment case. Reliance is placed upon the case laws titled as "Nazir Ahmad v. The State" (2018 SCMR 787)
"Haroon Shafique v. The State and others" (2018 SCMR 2118) and "Shahbaz v. The State" (2016 SCMR 1763 ).
15. Coming to the evidentiary worth and value of the deposition of Abdul Rasheed (PW.8), Muhammad Farooq (PW.10) and Ghulam Fareed (PW.11), though, as per prosecution's version, they had sustained injuries during the same occurrence, but those injuries are only indicative of their presence at the place of occurrence and does not necessarily amount that whatever they spoke is a gospel truth. While holding so, I have fortified my view from the cases of "Muhammad Pervez and another v. The State" (2007 SCMR 670), "Amin Ali and another v. The State" (2011 SCMR 323) and "Nazir Ahmad v. Muhammad Iqbal and another" (2011 SCMR 527). Even otherwise, it is settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury , nature of the injury , kind of weapon used in the J occurrence but it would not connect the accused with the commission of the offence. Reference -in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" ( PLD 2009 SC 53 ).
16. After taking the ocular and medical evidence out of consideration, I am left with the evidence of recovery , which being purely corroboratory in nature cannot only be considered to sustain conviction on a capital charge. I have noticed that while conducting the recov ery proceedings the investigating officer has violated the mandatory provisions of section 103, Cr.P.C. Even the said recovery is from an open place which is easy accessible to all.
Reliance is placed upon "Muhammad Ismail and others v . The State" ( 2017 SCMR 898 ).
According to the prosecution case on 19-11-2009 recovery of Kalashnikov (P.5) along with four live bullets (P.6/1-4) was taken into possession vide memo Ex. PQ on the pointation of appellant from the cattle shed of his co-accused Muhammad Ibraheem alias Kala but the same is inconsequential as the crime empties and firearm weapon was not sent to the Forensic Science Agency , Lahore for matching. It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence howsoever convincing it may be. Reliance is placed upon the cases titled as "Muhammad lrshad v. Allah Ditta and others"
(2017 SCMR 142 ) and "Muhammad Mansha v . The State" ( 2018 SCMR 772 ).
17. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient and the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. Reference is made to the cases titled Najaf Ali Shah v. The State" (2021 SCMR 736), "Mst. Asia Bibi v. The State and others" (PLD 2019 SC 64)
"Abdul Jabbar and others v. The State" (2019 SCMR 129) and "Muhammad Akram v. The State" (2009 SCMR 230 ).
18. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone Wrote "Better that ten guilty person's escape, than that one innocent suffer". Benjamin Franklin, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suf fer".
Reliance is also placed upon the case law reported as "Ayub Masih v . The State" ( PLD 2002 SC 1048 ).
19. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, the titled appeal is accepted, set aside convictions and sentences of Abdul Majeed alias Cheeta appellant recorded by the learned trial court and acquit him of the charge by extending him the benefit of doubt He is in jail; he be released forthwith if not required in any other case.