ABDUL HAMEED BALOCH, J.---The petitioners assailed impugned judgments dated 14th January , 2021 and 25th March, 2021 (impugned judgments) passed by learned Judicial Magistrate Gandakha at Usta Muhammad and learned Sessions Judge, Usta Muhammad (trial and appellate court) whereby the petitioners were convicted under section 365, Pakistan Penal Code (P.P.C.) and sentenced to suffer three years' rigorous imprisonment with fine of Rs. 30,000/- each and in default to further undergo one-year simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended in favour of the petitioners/convicts and appeals filed against their conviction was also dismissed vide judgment dated 25th March, 2021 by learned Sessions Judge, Usta Muhammad (appellate court).
2. Facts of the case in brief are that on 12th November , 2016 a case vide FIR No. 206 of 2016 under sections 365, 34, P.P.C. was registered with Police Station City Usta Muhammad on the written report of Abdul Sattar with the allegation that his son was missing from the night of 10th/1 lth November , 2016. The complainant searched him everywhere and also contracted on his mobile but same was switched of f, hence FIR was chalked.
3. After registration of FIR the petitioners were arrested and completion of investigation the challan of the case was submitted before the trial court, where charge was framed to which the petitioners denied, whereafter , the prosecution produced its witnesses. On conclusion the petitioners were examined under section 342, Cr.P.C. The petitioners neither recorded their statement on oath nor produced any witness in their defence. Thereafter , the trial court vide impugned judgment convicted the petitioners in the manner as mentioned in para-1 above and appeals filed were also dismissed, hence this revision petition.
4. Heard and perused the record with the assistance of learned counsel for the petitioners and learned State Counsel. The record transpires that on written application Ex: P/1-A of complainant Abdul Sattar FIR No. 206/2016, under sections 365, 34, P.P.C, was registered on 12th November , 2016. In order to substantiate the case the prosecution produced PW-1 Abdul Sattar complainant, PW-2 Ohulam Mustafa brother of abductee, PW-3 Muhammad Hashim Constable the witness of disclosure and recovery memo of TT pistol .30 bore and four live cartridges Ex: P/3-A and Ex: P13-B, PW-4 Wall Muhammad kidnaps.; who stated that police recovered him after five days of his kidnapping on 21st November , 2016, Judicial Magistrate recorded his statement under section 164, Cr.P.C. on 30th November , 2016. The identification parade was conducted by DSP wherein he identified the petitioners/accused and Panja. On 13th December , 2016 identification parade was hold wherein he identified accused Ohulam Hussain. On 16th August, 2018 the identification parade was also held in the supervision or Judicial Magistrate, wherein he identified accused Janib, PW-5 Arsalan Khan Constable is recovery witness of Kalashnikov on pointation of accused Ghulam Hussain. He was witness of disclosure of accused Abid Ali and Ghulam Hussain vide Ex: P/5-A to Ex: P/5-F . PW-6 Khawand Bakhsh DSP is witness of identification parades of accused Panja, Abid Ali and Ghulam Hussain vide Ex: P/6-A and Ex: P/6-B. PW-7 Muhammad Yaseen IP. PW-8 Shakeel Ahmed Lashari Judicial Magistrate who recorded the statement of kidnapee and produced the same as Ex: P/8-A and Ex: P/8-B. PW-9 Khadim Hussain Bugti Judicial Magistrate is witness of identification parade of accused Janib. PW-10 Muhammad Asif Qadri SI produced site plan, incomplete challan, supplementary challan, FSL report and supplementary challan as Ex: P/10-A to Ex; P/10-E. PW-11 Jehanzaib Ashraf SI is the Investigating Officer who produced compete challan vide Ex: P/1 1-A.
5. The prosecution case revolved on the statement of alleged kidnapee, recorded under section 164, Cr.P.C, identification parade, recovery of Kalashnikov and pistol. The record reveals that the alleged kidnapee was released by the accused, whereafter; the police took him to police station, meaning thereby that the police has not recovered the kidnaped/abductee from the house of any accused. Even at the time of alleged recovery of kidnapee the accused/petitioners were not present. It appeared that no police officer/of ficial had seen the accused/petitioners. Another piece of evidence the identification parade of accused Panja, Abid Ali and Ghulam Hussain in supervision of DSP and identification parade of accused Janib in supervision of Judicial Magistrate conducted through the kidnapee who during identification parade identified the accused/petitioners without any reference to the role allegedly played by them during the course of occurrence, due to which the identification parade lost its evidentiary value. In this regard reliance is placed on case Sabir Ali alias Fauji v. The State 2011 SCMR 563 . It was held therein: "---It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent, defect, therefore, such identification parade lost its value and cannot be relied upon. --- "
6. In identification parade PW.6 Khawand Bakhsh DSP and PW-9 Khadim Hussain Bugti Judicial Magistrate had not mentioned the CNIC number . The identification parade took place with delay , The identification parade of two accused were conducted on same day at same time and dummies were the same. The alleged kidnapee neither in his 161, Cr.P,C. nor 164, Cr.P.C, statements had given the Hulia (feature/description) of accused. The Honorable Supreme Court of Pakistan in case Kanwar Anwar Ali v. The State PLD 2019 SC 488 had given guidelines: '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 1.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 betwee n 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 parade 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 procee dings, 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 someone depends only upon his vigilance and caution;
(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade along with their parentage, occupation and addresses;
(j) the Magistrate must faithfully record all the objections and statements, if any, 'made either by the accused persons or by the identifying witnesses before, during or after the proceedings;
(k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report;
(I) 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 prosecutions taken by him for a fair conduct of the proceedings and
(n) the Magistrate has to give a certificate at the end of his report in the form prescribed by CH.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 offered 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.!!!: (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.Jud1.1- (13)/61, 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 Alam v. The State PLD 1958 SC (Pak.) 1, (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.L.1 137, (xvi) Karim v. The State PLD 1961 Kar. 728, (xvii) Kameshwar Singh v, The State AIR 1972 SC 102. (xviii) Parbhu v. Emp. AIR 1943 Lah.
946 (xix) Emp. v. Debi Charan AIR 1942 AU. 339, (xx) Sataya Naryan v. The State AIR 1953 AU. 385, (xxi)
Gafadher v . Emp, AIR 1932 Oudh. 99 and (xxii) Ranizan 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,"
7. Another evidence relied by the courts below is 164, Cr.P,C, statement of alleged kidnapee before Judicial Magistrate. The statement of a witness recorded under section 164, Cr,P.C. cannot be considered as a substantive piece of evidence and can only be used to contradict the person in the court who made the statement. Under section 265.1, Cr.P.C. the statement of a witness recorded under section 164, Cr.P.C. in presence of accused and he has given opportunity of cross-examination. If such witness produced and examined be treated as evidence. It would be appropriate to reproduce section 265-J, Cr .P.C. for ready reference: "Section 265-J, Cr.P.C. Statement under section 164 admissible. The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examination, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (II of 1872)."
8. From the plain reading of the section it is clear that the statement of a witness recorded under section 164, Cr.P.C. can be treated as evidence subject to the statement was made in presence of an accused and he was given opportunity to cross-examine, but in the case in hand the statement was not recorded in presence of the accused, thus cannot be relied upon. Reference is made to the case of Nadir Shah v. The State 2012 PCr.L.J 588, wherein it was held: "19. Under section 265-J, Cr.P.C., the statement of a witness duly recorded under section 164, 2r. P.C., if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Cour t, if such witness is produced and examin ed be treated as evidence in the case for all purposes subject to the provisions of Evidence Act, 1872. In the present case statements of Samar Gul and Atta-ur -Rehman were neither recorded: in the presence of the appellant nor he had any opportunity to cross- examine the said witnesses. Moreover , they were not produced and examined in the trial against appellant, because Samar Gul was already dead and Atta-ur -Rehman was abandoned by the prosecution. It is not necessary for prosecution to examine each and every witness. It is the quality and not the quantity of evidence to be produced. If their statements were of any help to the defence, it was its duty to produce and exhibit certified copies of such statements in defence or the Investigating Officer should have been confronted with them by the defence."
9. Now adverting to the disclosure of petitioners/accused before police. It appeared that no new thing has come in the knowledge of prosecution on the basis of alleged disclosure. Under Articles 38 and 39 G of Qanun-e-Shahadat Order , 1984 the admission before police is not admissible. Reliance is placed on the case of Hayatullah v. State 2018 SCMR 2092 , wherein their lordship held: "6. While going through the evidence adduced by the prosecution, we observe, with great concern, that inadmissible evidence has been brought on the record in the shape of admission of the appellant before police, memos of pointing out of place of occurrence and place from where the motorc ycle was recovered which were already known to the- police and the complainant party . Such inadmissible pieces of evidence, according to law, should not be brought on the record Astonishingly; the whole disclosure was incorporated/dictated by the trial court when witnesses were giving evidence. Neither the prosecutor nor the defence made, any objection upon bringing the said inadmissible pieces of evidence on record. The trial court while recording the statement of police officials, who recorded the confession of the appellant Hayatullah about the commission of the crime, had totally ignored Articles 38 and 39 of the Qanun-e-Shahadat Order , 1984 according to which this type of evidence was inadmissible as no new facts were discovered on the admission/disclosure of the appellant. The pointing out of the place of incident and the place of recovery of motorcycle cannot be termed as discovery as a consequence of information received from the appellant within the meanings of Article 40 of the Qanun-e-Shahadat Order , 1984 as the said places were already in the knowledge of the police and the complainant party so it was also inadmissible evidence.
The memos about pointing out of place of occurrence without recovery prepared by the investigating officer should not be allowed by the trial court to bring on the record but unfortunately such pieces of evidence were allowed to be brought on the record although were inadmissible.
A heavy responsibility lies upon the court as well as 'the prosecution and defence counsel to be alert so that inadmissible evidence should not come on the record. If any party tender such evidence during the trial the other party should immediately raise objection to the admissibility of such evidence and the court should decide the same then and there before proceeding further and prevent it from coming on the record if it is found to be inadmissible in evidence. It is the duty of the trial judge to check such evidence without waiting for any such. objection from either side because the judge is required to be vigilant and to play an active role while recording the evidence of witnesses.
It is the duty of the court to make distinc tion between admissible and inadmissible evidence and only admissible evidence should be allowed to come on record. If any inadmissible evidence is brought on the record then it will expose the ability and knowledge of law of the prosecutor and defence counsel. If the trial judge allows to bring the inadmissible evidence on record, then it must reflect adversely regarding the knowledge of law and the ability of said Judge. We have observed that in certain cases the case files were found filled with inadmissible evidence which is ultimately to be discarded. It is the duty of the court to stop the witness at the moment he utters inadmissible evidence and should not allow to bring on record such inadmissible evidence.
We have also observed that although sometime objection was raised by either party regarding the inadmissibility of such piece of evidence but the court while admitting the evidence at that time reserves the question of law as to its admissibility till the end of the trial and while delivering the judgment no such question of admissibility is usually decided. It is the duty of the trial court to decide the objection then and there and not to defer the same till the end of the trial."
10. The record transpires that the statement of alleged kidnapee was recorded after 5/6 days. The 164, Cr.P.C. statement was also recorded with delay . The statement of alleged kidnapee does not attract prudent mind person and has no reason to believe it. As per his statement co-accused loudly named accused Abid Ali. Even otherwise the witness in his deposition has made dishonest improvements which dent the reliability of his statement. Reliance is placed on the case of Ayub Masih v . The State PLD 2002 SC 1048 , wherein it was held: "-----It was held in Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550) that statements of witnesses in the Court in which improvements are made to strengthen the prosecution case are not worthy of reliance. The credibility and credentials of the complainant are not above-board and he is not an independent and truthful witness as the defence evidence on record indicates that he had a motive to falsely implicate the appellant"
11. As per criminal administration of justice the prosecution is duty bound to prove its case beyond shadow of doubt. Any doubt arose in the I case of prosecution; benefit of, such doubt goes to the accused as a matter of right not grace. Reliance is placed on the case of Safdar Baloch alias Ali v. State 2019 SCMR 1412 , wherein it was held: "Criminal liability is to be essentially settled on evidentiary certainty and not on moral satisfaction or factualities incompatible with evidence based upon truth. Prosecution's case against the appellants cannot be viewed as beyond reasonable doubt and thus conviction cannot be maintained without potential risk of error . "
In view of above discussion, the instant criminal revision petition is accepted. The impugned judgments dated 14th January , 2021 and 25th March, 2021 passed by learned Judicial Magistrate Gandakha at Usta Muhammad and learned Sessions Judge, Usta Muhammad respectively J are set aside. The petitioners Abid Ali son of Abdul Wahab alias Ghulam Rasool, Ghulam Hussain son of Muhammad Hassan and Panja son of Ghulam Ali are acquitted of the charge under sections 365, 34, P.P.C., Police Station City Usta Muhammad District Jaffarabad.
They are in custody be released forthwith if not required in any Other case/FIR.