SADIQ MAHMUD KHURRAM, J. Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah (convicts) were tried by the learned Additional Sessions Judge, Bahawalnagar along with their co-accused namely Muhammad Khalid and Fauji Muhammad Akram (both since acquitted) in case FIR No. 125 of 2015 dated 05.05.2015 registered at Police Station Dunga Bunga, District Bahawalnagar in respect of offences under sections 302, 392, 411 and 109 PPC for committing the Qatl-i-Amd of Riaz Ahmad son of Muhammad Siddique (deceased). The learned trial court vide judgment dated 29.04.2016 convicted Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah (convicts) and sentenced them as infra: Muhammad Afzal son of Nawab Ali:- i).Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Riaz Ahmad (deceased) and directed to pay Rs.4,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii).Rigorous Imprisonment for ten years under section 392 PPC and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was further directed to undergo three months of simple imprisonment.
Muhammad Safdar Hussain alias Shabo son of Habib Ullah: i). Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Riaz Ahmad (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased; in case of default thereof, the convict was further directed to undergo four months of simple imprisonment. ii).Rigorous Imprisonment for ten years under section 392 PPC and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was further directed to undergo three months of simple imprisonment.
All the sentences awarded to both the convicts were ordered to run concurrently by the learned trial court. The convicts were also extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)"
Muhammad Khalid and Fauji Muhammad Akram, the co-accused of the appellants, were, however , acquitted of the charges by the learned trial court.
2. Feeling aggrieved, Muhammad Afzal son of Nawab Ali (convict) lodged the Criminal appeal No.249-J of 2016 assailing his conviction and sentences. Feeling aggrieved, Muhammad Safdar Hussain alias Shabo son of Habib Ullah (convict) lodged the Criminal appeal No.531 of 2016 assailing his conviction and sentences. The learned trial court submitted Murder Reference No.35 of 2016 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Afzal son of Nawab Ali. We intend to dispose of the Criminal appeal No.249-J of 2016, the Criminal appeal No.531 of 2016 and the Murder Reference No.35 of 2016 through this single judgment.
3. Precisely the facts necessary , as stated by Manzoor Ahmad son of Muhammad Siddique (PW-5), the complainant of the case, are as under:- "I as well as Riaz Ahmad deceased and Manzoor Ahmad son of Dewan PW jointly dealt in business of purchase and sale of wheat. About 10 months ago at about 7:00 p.m, I alongwith my brother Riaz (deceased) and Manzoor Ahmad son of Dewan were coming from Haroonabad on a motorcycle and we had an amount of Rs.30,40,000/- in a fertilizer bag, when we reached near Taillian Wala Pull, my brother Riaz decea sed was driving the motorcycle, suddenly , the accused persons Afzal and Muhammad Safdar came there, Afzal whose height was medium strong body and having beard and mustaches and I had also mentioned the salient feature of Safdar accused, they collieded (sic) their motorcycle with our motorcycle, on this we fell down. My brother Riaz (deceased) tried to apprehend the accused persons. Muhammad Afzal accused made a fire shot which hit on the left side of chest of deceased Riaz Ahmad who fell down there on the ground. The accused persons mentioned above after snatching the bag containing the amount mentioned above fled away from the spot. On our hue and cry Muhammad Shafique PW etc also attracted there. After leaving the PWs to safeguard the dead body of my deceased brother I went to the police station there I submitted an application Exh.PC for registration of case on the basis of which the present case was registered. The application bears my thumb impression the same was read over to me. I also thumb marked the FIR. After about three months after the occurrence an identification parade was conducted where I identified the accused persons Muhammad Afzal and Muhammad Safdar present in the Court as real culprits. After the identification parade after about 7/8 days Hoshiar and Abdul Jabbar PWs told us that they had gone to the police station and had seen Muhammad Afzal and Muhammad Safdar accused persons of this case and told that Muhammad Akram accused who is relative of Muhammad Afzal and Safdar Hussain accused had provided residence and shelter to them on the asking of Muhammad Khalid accused. The said PW had seen and overheard their conversation when Khalid accused was asking to Muhammad Akram accused while standing in front of the door that to provide shelter Muhammad Afzal and Safdar Hussain and they will help them in every corner after the commission of of fence and thereafter they took them into their house. "
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah along with their co-accused namely Muhammad Khalid and Fauji Muhammad Akram (both since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 29.09.2015, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got recorded statements of eleven witnesses. Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) gave evidence regarding the ocular account. Mahmood Akhtar 855/C (PW-1) stated that on 05.05.2015 he escorted the dead body of the deceased to the hospital for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Kalim Ullah, 1365/C (PW-2) stated that on 24.08.2015 Muhammad Arif 313/HC (PW-7) handed over to him two sealed parcels said to contain pistols for their onward transmission to the office of Punjab Forensic Science Agency , Lahore .Abdul Jabbar (PW-3) stated that at the time of the post mortem examination of the deceased he identified his dead body and also gave evidence with regard to the abetment of Fauji Muhammad Akram and Muhammad Khalid (both since acquitted). Shah Ali Patwari (PW-4) stated that he prepared the scaled site plan of the place of occurrence (Exh.PB). Asad Ullah Siraj, learned Magistrate, (PW-9) stated that on 05.08.2015 he conducted the test identification parade proceedings (Exh. PN/1-8) of the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah. Riaz Ahmad 27/C (PW-8) stated that on 11.05.2015 Muhammad Arif 313/HC (PW-7) handed over to him two sealed parcels said to contain blood stained earth and empties which parcels he deposited in the Punjab Forensic Science Agency , Lahore. Muhammad Azmat, SI (PW-11) investigated the case from 05.05.201 5 till 22.08.2015, arrested the appellants on 30.07.2015 and narrated the facts of investigation as conducted by him in his statement before the learned trial court.
6. The prosecution got examined Dr. Hafiz Muhammad Salman Riaz (PW-10) who on 05.05.2015 was posted as Medical Officer at DHQ Hospital, Bahawa lnagar and on the same day conducted the postmortem examination of the dead body of Riaz Ahmad (deceased). Dr. Hafiz Muhammad Salman Riaz (PW-10) on examining the dead body of the deceased Riaz Ahmad observed as under:- "INJURIES.
1. A lacerated wound measuring 1 CM x 1 CM on the left side of chest, five CM from sternum in first intercostals space with burning and blackening were present around the wound. This wound with inverted margins was entry wound.
2. A lacerated wound measuring 1.5 x1.5 CM in the middle of back about 1.5 CM away from thoracic vertebrae near left flank region. This wound with everted margins was exit wound.
OPINION.
According to my opinion the cause of death in this case was due to the injury to the major blood vessels of thorax.
This injury to the major blood vessels was caused by injury No.1 and injury No.2 by firearm weapon. Probable time between injury and death was within half an hour and between death and post mortem was within 12 hours.
According to my final opinion sever bleeding caused by haemorrage (sic) of major blood vessels of thorax lead to haemorrhagic (sic) shock and death of the deceased person. Post mortem report is Exh. PO which is in my hand and bears my signatures. After the postmortem examination I handed over last worn clothes, dead body and relevant papers to the police. I also signed inquest report Exh.PP and injury statement Exh.PQ. The diagrams Exh.PQ/1 & Exh.PQ/2 showing the seat of injury is also signed by me."
7. On 13.02.2016 the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Nisar Ahmad and Hushiar Ali as being unnecessary and on 03.03.2016, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Shafique and Nisar Ahmad as being unnecessary . On 01.04.2016, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency , Lahore (Exh.PV) regarding blood stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh.PU) regarding the comparison of the empties and the pistols.
8. After the closure of prosecution evidence, the learned trial court examined appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they were innocent and had been falsely involved in the case. They further stated that they had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah opted not to get themselves examined under section 340(2) Cr .P.C and did not adduce any evidence in their defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Bahawalnagar convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants is that whole case is fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statements of Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) were not worthy of any reliance. He furthe r contended that the appellants were neither nominated in the FIR nor in the statements of witnesses recorded on the first day and the test identification parade proceedings as conducted were full of procedural defects and of no legal worth and value. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellants in a joint enterprise.
The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoo r Ahmad son of Dewan (PW-6).
The learned Deputy Prosecutor General further argued that the recoveries of the weapons and the looted amount also corroborated the ocular account. The learned Deputy Prosecutor General further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General prayed for the rejection of appeals.
12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General and with their assistance have perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6). These witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) were related to each other as well as the deceased.
Their relationship with the deceased is also on record. The deceased namely Riaz Ahmad was the real brother of Manzoor Ahmad son of Muhammad Siddique (PW-5) and also closely related to Manzoor Ahmad son of Dewan (PW-6). Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) further stated in their cross examination that the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) were not the residents of the place of occurrence and were residents of Mauza Gulab Ali which was at a distance away from the place of occurrence. Manzoor Ahmad son of Muhammad Siddique (PW-5) during cross-examination admitted that his residence was at a distance of 1/2 kilometre from the place of occurrence. Manzoor Ahmad son of Muhammad Siddique (PW-5) during cross-examination admitted as under:- "The distance between the place of occurrence and my residence is about half KM. Similar distance is of the residence of other PWs."
Manzoor Ahmad son of Dewan (PW -6) during cross-examination admitted as under:- "My residence is at a distance of about one KM from the place of occurrence."
It is an admitted aspect of the prosecution case that none of the prosecution witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) had their residences or their places of business at the place of occurrence. They were both "chance witnesses". We have also perused the scaled site plan of the place of occurren ce (Exh.PB) as prepared by Shah Ali Patwari (PW-4) and the rough site plan of the place of occurrence (Exh.PR) as prepared by Muhammad Azmat, SI (PW-11) and find that neither any house nor any shop belonging to both eye witnesses is marked in the same. A further doubt has crept into the case of the prosecution with respect to the presence of both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) at the time of occurrence, at the place of occurrence.
According to the statements of both the witnesses, at the time of occurrence they along with the deceased were riding on a motorcycle when the appellants came at the place of occurrence and hit the motorcycle being driven by the said witnesses and the deceased and after being hit, the said witnesses along with the deceased fell on the ground. Manzoor Ahmad son of Muhammad Siddique (PW -5) in his examination-in-chief stated as under:- "they collided their motorcycle with our motorcycle, on this we fell down."
Similarly , Manzoor Ahmad son of Dewan (PW -6) in his examination-in-chief stated as under:- "Two unknown motorcyclist one of them was man of medium height stout body having beard and moustaches, the second one was also stout and of the same height came in front us and collided their motorcycle with us. We fell down from the motorcycle."
According to the above referred portions of the statements of both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) both the witnesses and the deceased while in a moving condition on a motorcycle were hit and all of them fell on the ground. In that scenario, necessarily both the witnesses as well as deceased must have suffered some injuries on their bodies due to them falling on the road after being hit. However , during the course of investigation both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) never appeared before any Medical Officer nor any Medico Legal Examination Certificates were issued with regard to them so as to verify their narrative that while travelling on a motorcycle they had been hit by the motorcycle of the appellants and had consequently fallen on the road. We have also gone through the statement of Dr. Hafiz Muhammad Salman Riaz (PW-10) who on 05.05.2015 was posted as Medical Officer at DHQ Hospital, Bahawalnagar and on the same day conducted the postmortem examination of the dead body of Riaz Ahmad (deceased) and find that he also did not observe any injury on the body of the deceased which could have been a result of him falling on the road after being hit by the motorcycle of the appell ants. We have also perused the recovery memo (Exh.PG) whereby the motorcycle (P-14) under the use of the deceased and the witnesses was taken into possession and find that Muhammad Azmat SI (PW-11), the Investigating Officer of the case, did not observe any marks on the same to verify that the same had been hit by another motorcycle. Furthermore, to accentuate these omissions in the case of the prosecution, during the whole investigation Muhammad Azmat, SI (PW-11) the Investigating Officer of the case, did not collect any evidence regarding the assertion of the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) that they along with the deceased were running the business of sale and purchase of wheat. Not a single statement of any witness was recorded in support of the said assertion of the eye witnesses. Muhammad Azmat, SI (PW-11) the Investigating Officer of the case , even did not verify that what was the business of the witnesses and from where they had collect ed the amount of Rs.30,40,000/- which they were carrying with them on the day of occurrence and which amount was robbed. Moreover , during the investigation of the case no statement of any witness was recorded with whom the deceased or the witnesses had entered into any transaction on the day of occurrence which would have substantiated the case of the prosecution.
All these omissions are conspicuous by their absence. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon. In this respec t reliance is placed on the case of Muhammad Rafiq v. State (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) and the case of Nasrullah alias Nasro v. The State (2017 SCMR 724). We have also noted that the alleged eye witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) were not mentioned in column No.4 or page 4 of the inquest report (Exh.PP) as being the ones who were present at the time of preparation of the said inquest report (Exh. PP) by the investigating officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem examination of the same. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be believed.
14 There is no denial to this fact that Riaz Ahmad son of Muhammad Siddique lost his life in this unfortunate incident, but the fact remains that the names of the assailants were not ment ioned in the written application (Exh.PC) as submitted by Manzoor Ahmad son of Muhammad Siddique (PW-5) for the registration of the case and the F.I.R (Exh.PC/1) was lodged agains t unknown accused persons. Subsequently , both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) got recorded their statements under section 161 of the Code of Criminal Procedure, 1898 on 06.06.2015, wherein they not only named the appellants as accused who had committed the occurrence but also gave all the details with regard to their particulars. Manzoor Ahmad son of Muhammad Siddique (PW -5) during cross-examination stated as under:- "It is correct that on 6.6.2015 when I nominated the accused persons I had not described the reason for their naming out.
It is correct that in my statement dated 06.06.2015 I had not described the role of the accused persons nominated by me."Manzoor Ahmad son of Dewan (PW -6) during cross-examination stated as under:- "It is correct that I had not mentoned the reason while nominating the accused persons in my supplementary statement dated 06.06.2015. Moreover , I had not also stated the role of the accused persons."
Muhammad Azmat (PW-11), the Investigating Officer of the case in his statement recorded by the learned trial court stated as under:- "On 6.6.2015 complainant and witnesses Manzoor Ahmad, Muhammad Shafique came to the police station and got recorded their supplementary statement s by nominating accused persons Muhammad Afzal and Muhammad Safdar present in the Court.
It is correct that when the complainant Manzoor Ahmad PW and Muhammad Shafique PW made statement before me on 6.6.2015 till then I had not arrested the accused persons Afzal and Muham mad Safdar . It is correct that in that statement the address of the accused persons has been mentioned."
The above referred portion of the statements of the prosecution witnesses clearly reflects that the identity and the particulars of the appellants were in the knowledge of Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6), therefore, there did not exist any reason for the said witnesses not to have named the appellants as accused on the day when the F.I.R was being registered. Moreover , when every detail regarding the assailants was disclosed by Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) through their statements recorded under section 161 Cr.P.C. on 06.06.2015 then the holding of test identification parade even otherwise was an exercise in futility . The question begs an answer that when Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) both new about the details of the accused then for what purpose the test identification parade was held. We have also noted that the arrest of the appellants was affected after the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) had got recorded their statements recorded under section 161 Cr.P.C. on 06.06.2015. The description of the appellants was so vivid and detailed that out of the whole province of Punjab the appellants were identified and arrested by Muhammad Azmat (PW-11) , the Investigating Officer of the case . This illustrates the futility of holding a test identification parad e of the appellants who were so clearly named and already identified by the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW -6).
15. The learned Deputy Prosecutor General has laid much stress on the fact that the appellants were identified by the witnesses during test identification parade proceedings. The august Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) has enunciated guiding principles for the appreciation of evidence regarding the test identification parade and the statements of the witnesses participating in the same. The august Supreme Court of Pakistan in the case of Mian SOHAIL AHMED and others Vs. The State and others ( 2019 SCMR 956 ) has held as under:- "13. In the late 1960s, the courts around the world12, began to set the standard for reviewing eyewitness identification evidence.13 Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony .14 US Supreme Court in the case of Manson v Brathwaite 15, UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another ,16 New Jersey Supreme Court in State v Madison 17 and Oregon Supreme Court in State v. Classen 18 settled the following factors for assessing the reliability of the witness:
(1) the opportunity of the witness to view the suspect at the time of the crime;
(2) the witness's degree of attention;
(3) the accuracy of the witness's prior description of the suspect;
(4) the level of certainty demonstrated at the confrontation (seeing the accused in court); and
(5) the time between the crime and the confrontation (seeing the accused in court).
It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research.19 The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrie val-the "stage during which a person recalls stored information".20 The process of memory retention and retrieva l may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables.21 System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control.22 Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research23 establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process:- i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness' ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy , an eye-witness under high stress is less likely to make a reliable identification of the perpetrator ."24 ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.25 iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however , a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure."26 iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance.
We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification.27 v. Witness Characteristics: Characteristics like a witness' age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults.28 vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification.29 vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability .30 The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions.31 New Jersey Supreme Court in State v.
Henderson32 observed that "virtually all of the scientific evidence" that had emer ged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v . Lawson33.
14. The laws of evidence maintain that in order for the court to take judicial notice of scientific facts they must be part of the general knowledge of men or must be agreed upon by reputable men in a particular field of science beyond reasonable dispute.34 For judges to determine the degree of consensus on a particular scientific fact they may refer to any reputable and recognized reference sources.35 The House of Lords in Regina (Quintavalle) v.
Secretary of State for Health 36 held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. This Court can take judicial notice of the credible scientific development under Article 112, Qanun-e-Shahadat, 1984. The question is can we shut our eyes to credible scientific research and development, which has already been recognized and acknowledged by the courts in various other jurisdictions. If scientific research can help and assist the court in understanding and appreciating evidence more fully and more meaningfully , the risk of miscarriage of justice stands minimized. Therefore, the courts don't shy away from scientific developments but instead reach out and embrace them. Reliance on scientific research and the factors evolved by science to assess the reliability and credibility of the eye-witness can improve the quality of identification evidence and as a consequence the quality of justice. Our jurisprudence had already travelled in this direction and now credible scientific research by providing us additional factors or "estimator variables" (which are not exhaustive) has provided additional factors to certify the credibility and reliability of the eye-witness and as a result the veracity and probative value of the identification evidence."
We have scrutinized the statement of the prosecution witnesses namely Manz oor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) who appeared before the learned trial court and had joined the test identification parade proceedings held to establish the identity of the assailants, in light of the said judgment. Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses who have seen them very briefly . According to both the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) they were hit by the motorcycle driven by the appellants and when the deceased tried to apprehend the appellants, then one of the assailants fired.
Obviously both the witnesses namely Manzoor Ahmad son of Muhammad Siddiq ue (PW-5) and Manzoor Ahmad son of Dewan (PW-6) must have been under a lot of stress and even under the best viewing conditions, high levels of stress can diminish an eye-witness's ability to recall and make an accurate identification and an eye-witness under high stress is less likely to make a reliable identification of the perpetrator . Then the assailants had used a visible firearm weapon during the occur rence and the "estimator variable" of Weapon Focus was there, which distracts a witness and draws his attention away from the culprit, impairing his ability to make a reliable identification and describe what the culpri t looked like, in the situation, as in this case, that the incident was of short duration. In view of the above discussion it is proved on record that in the presen t case many estimator variables existed which negatively affected the memory process making it impossible for the witnesses to have identified the accused during the test identification parade proceedings.
16. We have noticed that the test identification parade proceedings were not conducted as per the law and in violation of the Police Rules, 1934. The august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 has mentioned the requirements and safeguards which are to be meticulously followed and observed in all the test identification parades held in connection with criminal cases as under:- "3.Before parting with this order we would like to point out that the matter of taking of different steps in holding of a proper test identification parade in connection with a criminal case has developed over many decades and the requirements of such a parade as well as the safeguards to be ensured during such a parade so as to make it a meaningful exercise and providing material in a criminal case to be considered in a trial have elaborately been detailed in the landmark judgment passed by a learned Division Bench of the Lahore High Court, Lahore in the case of Muhammd Yaqoob and another v The State (1989 P.Cr.L.J. 2227) and in the said judgment Mr. Justice Khalil-ur -Rehman Ramday (as his lordship then was a Judge of the Lahore High Court, Lahore) had observed as follows: "16. But before we undertake a deeper analysis of the evidentiary value of the test identification proceedings held in the present case, it would be of advantage to first appreciate the object and the value of such an evidence as also to recapitulate the standards required to be met before such like identification parades could be credited with reliance.
17. The evidence offered through identification' proceedings is not a substantive piece of evidence but is only corroborative of the evidence given by the witnesses at the trial Muhammad Bashir v. The State PLD 1958 SC (Pak.)
1. It has no independent value of its own Muhammad Afzal and another v. The State 1982 SCMR 129 and cannot as a rule, form a sufficient basis for conviction though the same may add some weight to the other evidence available on record Sudhindranath v . The State AIR 1952 Cal. 423
18. The identification parades (as they are normally called) are necessary only where the offender was a complete stranger to the witnesses Ismail and another v. The State 1974 SCMR 175. And the whole object of the identification proceedings is to find out whether the suspect was or was not the real offender Satya Narain v. The State AIR 1953 All. 385 and Kind v . Christle 1914 AC 545.
19. Such-like identification proceedings are not the testimony of a witness but the testimony of the senses of the witness. It is essentially a test of his power of observation and perception, a test of his power to recognise strangers and a test of his memory . These gifts of God may vary from man to man. A witness may be honest, independent and truthful but then his memory may be faulty . And then the tricks of memory and its conscious and unconscious activity could also wrap the vision of a man. When mistakes are possible in the recognition of a man known from before, then the possibility of such mistakes in identifying strangers is definitely greater . And more so when the witnesses have seen the offender for the first time during the occurrence and that also briefly and not with a calm but in an excited, confused and terrorised state of mind.
20. It was primarily for these reasons that Dorab Patel, J. (as his Lordship then was) cautioned the Courts to beware of the dangers inherent in the identification of strangers and quoting from the Criminal Law Revision Committee Report (1972), observe in Lal Pasand's case PLD 1981 SC 142 that mistaken identifications were:- ".........by far the greatest cause of actual or possible wrong convictions...."
A similar note of caution was given by Monir in his Evidence Act Pak. Edition, V ol. 1 where the advice is that:- ` ".... the evidence as to identification ought in each case, to be subjected to a close and careful scrutiny ."
21. What then are the standards required to be satisfied by such an evidence before the same could be accepted by a Court of law?
22. The answer is that the vital factor determinative of the worth and value of identification proceedings is the effectiveness of the precautions taken, before and during the course of such proceedings which are designed to eliminate the possibility of unjustified convictions.
23. Although there is no law, which presc ribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarised as under:-
(a) Memories fade and visions get blurred with passage of time. Thus, an identifica tion test, where an unexplained and unreasonably long period has interv ened 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 choos e 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 possibili ty 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 proceed ings 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 some one 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 alongwith 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 h 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. C.H.II.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 of fered through the test identification proceedings.
25. In enunciating the above principles governing the proceedings in question and in enumerating the above measures and requirements, we have sought guidance from the following:-
(i) Rules and Orders of the Lahore High Court, Chapter 11-C of Vol. III; (ii) Punjab Government Circular Letter No. 6091-J-36/39829 (H-Judl.) dated 19 12-1936; (iii) Punjab Government Circular Letter No. 6546-J-43/83844 (H- Judl.), dated 17-12-1943; (iv) Punjab Government Circular Letter No. Judl. I-(13)/6 1, dated 26-7-1961, (v) Monir's Evidence Act (Pak. Edition) Vol. I, (vi) Lal Pasand v. The State PLD 1981 SC 142, (vii) Muhammad Afzal v.
The State 1982 SCMR 129, (viii) Ismail v. The State 1974 SCMR 175, (ix) Khadim Hussain v. The State 1985 SCMR 721, (x) Muhammad Bashir Aslam v. The State PLD 1958 SC (Pak.), (xi) Gul Baig v. The State PLD 1964 Kar. 275, (xii) Musharrif Hussain v. The State PLD 1970 Dacca 686, (xiii) Sadu v. The State 1972 PCr.LJ 10, (xiv) Qabil Shah v. The State PLD 1960 Kar. 697, (xv) Wahid Bakhsh v. The State 1969 PCr.LJ 137, (xvi)
Karim v. The State PLD 1961 Kar. 728, (xvii) Kameshwar Singh v. The State AIR 1972 SC 1M (xviii) Parbhu v.
Emp. AIR 1943 Lah. 946, (xix) Emp. v. Debi Charan AIR 1942 All. 339, (xx) Sataya Naryan v. The State AIR 1953 All. 385, (xxi) Gajadher v . Emp. AIR 1932 Oudh. 99 and (xxii) Ramzan v . Emp. AIR 1929 Sindh 149."
We have failed to find a more elaborate illustration of the requirements and the safeguards necessary for holding a test identification parade than found in the above mentioned portion of the judgment passed in the said precedent case. We wholeheartedly approve the said requirements and safeguards which are to be meticulously followed and observed in all the test identification parades held in connection with criminal cases."
The perusal of the test identification parade proceedings (Exh. PN/1-8) reveals that the said identification parade of the two accused namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah (appellants) was conducted jointly . It is further recorded in the proceedings of the test identification parade (Exh. PN/1-8) that both the accused were made to sit together in two different rows along with the dummies at different serial numbers. As mentioned above, the august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 has mentioned the requirements and safeguards which are to be meticulously followed while holding the test identification parade proceedings and one of the requirement is as under:- "(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;"
A joint test identification parade (Exh. PN/1-8) of both the appellants was held which has no evidentiary value. The August Supreme Court of Pakistan in case of Hakeem and other Vs. The State (2017 SCMR 1546 ) at page 1550 while enunciating the principles of law relating to the identification parade has held as under:- "The proper course is to have separate identification parades for each accused"
The August Supreme Court of Pakistan in case of Kamal Din alias Kamala Vs. The State (2018 SCMR 577) at page 580 held as under:- "Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go.
This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v.
The State (2008 SCMR 1210 ), Bacha Zab v. The State (2010 SCMR 1189), Sahfqat Mahmud and others v. The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that the identification of many accused in one go is not proper besides being unsafe."
Reliance is also placed on the case Crl. Misc. Appln. No.183 of 2019 in Crl.A .No. 259 of 2018 reported as PLJ 2019 SC (Cr.C) 153 wherein the august Supreme Court of Pakistan has issued guidelines in conducting the identification parade and has clearly held that if there are more accused persons than one, separate identification parade should ordinarily be held in respect of each accused person.
17. Matching the description in the first information report of the accused is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description of the assailants given by the complainant in the FIR as Asad Ullah Siraj, the learned Magistrate (PW-9) never claimed as such. Asad Ullah Siraj, the learned Magistrate (PW-9) during cross-examination admitted as under:- "It is correct that in report salient features of accused persons as per F.I.R had (sic) not mentioned in instant report."
Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. Furthermore, while holding the test identification parade, Asad Ullah Siraj, the learned Magistrate (PW-9) failed to observe and mention the heights, complexions of skin, weight and occupation of the dummies being used during the test identification parade and of the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah who were to be identified, which observations were necessary to rule out any possibility of collusion and helping out the witnesses by making the appellants stand out during the test identification parade proceedings. As mentioned above , the august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 has mentioned the requirements and safeguards which are to be meticulously followed while holding the test identification parade proceedings and one of the requirement is as under:- "(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade alongwith their parentage, occupation and addresses;"
The learned Magistrate even did not mention the height of the appellants or their physique or whether they had facial hair or not, which was the only description given of the assailants by the complainant of the case namely Manzoor Ahmad son of Muhammad Siddique (PW-5) in the written application (Exh. PC). According to the written application (Exh. PC) one of the assailants who fired at the deceased had a small beard however Asad Ullah Siraj, the learned Magistrate (PW-9) did not record in his proceedings as to whether the dummies being used had any beard or not. Hence, because of the abovementioned flaws of the test identification parade proceedings (Exh.
PN/1-8) , we are of the considered view that the identification of the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah by the witnesses namely Manzoor Ahmad son of Muhammad Siddique (PW-5) and Manzoor Ahmad son of Dewan (PW-6) during the said test identification parade proceedings (Exh. PN/1-8) is of no evidentiary value and does not prove any fact. Such a test identification parade proceedings offers no clue towards the identity of the assailants. Reliance is placed on the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) wherein it has been held as under:- "The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmitie s diminishing its probative and evidentia ry value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspec ts, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v . State of A.P. (AIR 1983 SC 367)".
18. Learned Deputy Prosecutor General has also relied upon the recoveries made from the appellants. With regard to the recovery of the pistol (P-9) from the appellant namely Muhammad Afzal son of Nawab Ali and the recovery of the pistol (P-12) from the appellant namely Muha mmad Safdar Hussain alias Shabo son of Habib Ullah it is observed that the said recoveries have no evidentiary value in the eyes of law as the same were made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The said recoveries of the pistol (P-9) from the appellant namely Muhammad Afzal son of Nawab Ali and the pistol (P-12) from the appellant namely Muhammad Safdar Hussain alias Shabo son of Habib Ullah cannot be used as incriminating evidence against the appellants, being evidence which was attained throu gh illegal means and hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recoveries of the pistol (P-9) from the appellant namely Muhammad Afzal son of Nawab Ali and the pistol (P-12) from the appellant namely Muhammad Safdar Hussain alias Shabo son of Habib Ullah, to witness the same. Manzoor Ahmad son of Dewan (PW-6) admitted during cross-examination that Muhammad Azmat (PW-11), the Investigating Officer of the case did not join any person resident of the area to witness the said recoveries. Manzoor Ahmad son of Dewan (PW-6) during cross-examination admitted as under:- "Similarly , at the time of recovery of pisto ls 30 bore from accused Afzal and Safda r, some people attracted to the place of recovery but I.O did not record the statement of any lumberdar of the locality at that time."
The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others Vs. The State" (2017 SCMR 898 ) at page 901 has held as under:- "For the above-mentioned recovery of weapons the prosecution had failed to assoc iate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
Furthermore, a perusal of the report of Punjab Forensic Science Agency , Lahore (Exh.PU) reveals that the pistol (P-9) from the appellant namely Muhammad Afzal son of Nawab Ali and the pistol (P-12) from the appellant namely Muhammad Safdar Hussain alias Shabo son of Habib Ullah were compared with the empty recovered from the place of occurrence, however it was found not to have been fired either in the pistol (P-9) or the pistol (P-12). In this manner , the report of Punjab Forensic Science Agency , Lahore (Exh.PU) supports the plea of the appellants that they had been falsely involved in the occurrence. Therefore, the recoveries of the pistol (P-9) from the appellant namely Muhammad Afzal son of Nawab Ali and the pistol (P-12) from the appellant namely Muhammad Safdar Hussain alias Shabo son of Habib Ullah do not further the case of the prosecution in any manner and the same cannot be used as a circumstance against the appellants. With regard to the recovery of motorcycle (P-10) from the possession of the appellant namely Muhammad Afzal son of Nawab Ali suffice is to observe that the witnesses in their statements recorded during the investigation of the case as well as in their statements recorded by the learned trial court did not mention the registration number or even the colour of the motorcycle which was used by the assailants during the occurrence and hence the said recovery is of no consequence. With regard to the recovery of Rs.12,00,000/- (P-8/1-240) allegedly got recovered by the appellant namely Muhammad Afzal son of Nawab Ali and the recovery of Rs.8,00,000/- (P-11/1-160) allegedly got recov ered by the appellant namely Muhammad Safdar Hussain alias Shabo son of Habib Ullah, it is observed that no memo of identification of the recovered currency notes was prepared by the Investigating Officer for them to be considered as relevant and incriminating piece of evidence as against the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah. Moreover , the serial numbers or any marking on the robbed currency notes were not mention ed by the witnesses either during the investigation of the case or before the learned trial court in order to establish that the recovered currency notes were the same which had been robbed. Furthermore, the said recoveries were made from the house of Muhammad Khalid (since acquitted), the co-accused of the appellants and not from any place within the exclusive possession of the appellants. Muhammad Azmat (PW -11), the Investigating Of ficer of the case, during cross-examination admitted as under:- "The recovery from accused Muhammad Afzal and Muhammad Safdar was affected from a place having no boundery wall. The recoveries from accused Muhammad Afzal and Muhammad Safdar had been affected from the same house, however , the rooms are dif ferent."
We have also noted that in the test identification parade proceedings (Exh.PN/1-8 ) it had been recorded by Asad Ullah Siraj, learned Magistrate (PW-9) on pages No. 4,5,6 and 7 of the said proceedings that according to the witnesses the amount robbed was Rs.3,40,000/- and not Rs.30,40,000/-. Muhammad Azmat (PW-11) , the Investigating Officer of the case , during cross-examination also admitted the said fact. In this manner , the prosecution case with regard to the amount of the robbed money has also entered into the realm of incongruities.
As we have disbelieved the ocular account in this case, hence the evidence of recovery would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
19. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character , cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellant' s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another Vs. The State" ( 2017 SCMR 986 ) has enunciated the following principle of law: "The medical evidence is only confirmator y or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
20. The plea of the learned Deputy District Public Prosecutor that because the complainant party was having no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardi nal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisi ve role in determining the guilt or innocen ce of an accused person. Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer vs. The State (1991 PSC 281).
21. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State (2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reaso nable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right."
Reliance is also placed on the judgment of the august Supreme Court of Pakist an Muhammad Akram Vs. the State ( 2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "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. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
22. For what has been discussed above Criminal Appeal No.249-J of 2016 lodged by Muhammad Afzal son of Nawab Ali (appellant) and Criminal Appeal No. 531 of 2016 lodged by Muhammad Safdar Hussain alias Shabo son of Habib Ullah are allowed and the convic tions and sentences of the appellants awarded by the learned trial court through the impugned judgment dated 29.04.2016 are hereby set-aside. Muhamm ad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah (appellants) are ordered to be acquitted by extending them the benefit of doubt. Muhammad Afzal son of Nawab Ali and Muhammad Safdar Hussain alias Shabo son of Habib Ullah are in custody and they are directed to be released forthwith if not required in any other case.
23. Murder Reference No.35 of 2016 is answered in Negative and the death sentence awarded to Muhammad Afzal son of Nawab Ali alias Jalal Din is Not Confirmed .