ALI ZIA BAJW A, J.---Through this criminal appeal Muhammad Aatif appellant (tried and convicted separately being juvenile) has challenged the convi ction and sentence awarded to him by the learned Additional Sessions Judge, Chichawatni in case FIR No. 24/2008 dated 21.01.2008 for the offences under sections 302, 396, 397, 412, P.P.C., registered with Police Station City Chichawatni, District Sahiwal, vide judgment dated 31.03.2010, in the following terms:- > Under section 396, P.P.C. to undergo imprisonment for life on two counts, with fine of Rs.25,000/- and in case of default of payment, to further undergo S.I. for three months. He was further directed to pay an amount of Rs.1,00,000/- to the legal heirs of both the deceased as compensation under section 544-A of Cr.P.C and in case of default thereof he will further undergo S.I. for six months. > Benefit of section 382-B of Cr .P.C. was also extended in favour of the appellant.
2. Brief but essential facts of the case as contained in the crime report (Ex.P A) are that on 21.01.2008 at 3:30 a.m. the complainant Atif Irshad (PW-9) along with Nisar Gunman (deceased), Muhammad Asghar (deceased) and Imran (PW-10) were present at PSO Petrol Pump owned by one Shahzad Saeed Cheema situated at Gau Shala, G.T. Road, when four unknown accused persons came there on a white colour car and out of them, three entered into the office of said Petrol Pump. Nisar Ahmad gunman was about to point out his gun, when two armed persons started firing upon him which landed on his chest and also at the chest and belly of Muhammad Asghar . Both Nisar Ahmad and Muhammad Asghar succumbed to the injuries at the spot. Thereafter , one of the accused persons picked up the gun of Nisar Ahmad dece ased while the other accused caught hold of complainant and the third accused person awoke Imran (PW.10) and started beating them. One of the accused persons took out cash of Rs.2,50,000/- and two cell phones (Samsung and Nokia made), after breaking the drawer . The accused persons locked the complainant and Imran PW in the store-room and made good their escape.
3. Muhammad Mukhtar S.I. (PW-15) along with other police officials was on patrol duty, who on hearing the reports of firing, attracted to the spot, where the complainant made his statement, which was reduced into writing (Exh.P A/1) and the same was dispatched to police station for registration of formal FIR. Thereafter , Investigating Officer inspected the dead bodies, prepared their injury statements, inquest reports and dispatched the dead bodies to the mortuary for autopsy . From the place of occurrence, Investigating Officer collected 3-empties of pistol (P-4/1-3), one empty of rifle .44-bore (P-5) vide memo Exh.PP . Thereafter investigation was entrusted to Barkat Ali SI (PW-13). On the direction of the Inves tigating Officer and pointing out of the PWs, Muhammad Saeed Akhtar , Draftsman (PW-4) prepared scaled site plan of place of occurrence (Exh.PB and Exh.PB/1). On 11.05.2008, the appellant was arrested by the Investigatin g Officer from whose possession a car bearing registration No.3322/LR V was secured vide recovery memo Exh.PG while a pistol (P-3) along with four live bullets (P-4/1-4) was taken into possession vide recovery memo Exh.PF . Thereafter on 02.05.2008, test identification parade of appellant was conducted under the supervision of Hafiz Muhammad Zubair , Judicial Magistrate (PW-5) and he was duly identified by the witnesses. The Investigating Officer obtained physical remand of the appellant and during the course of interrogation, appellant got recovered cash amount of Rs.43,000/- which was secured vide recovery memo Exh.PT .
After completion of investigation, report under section 173, Cr.P.C. was submitted before the learned trial court and formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial. In order to prove its case against the appellant, prosecution got examined as many as fifteen witnesses before the learned trial Court.
Aatif Irshad (PW-9) is eye-witness and complainant of the case and Imran (PW-10) is also eye-witness of occurrence as well as witness of identification parade, Hafiz Muhammad Zubair, Judicial Magistrate (PW-5) supervised the process of test identificatio n parade and Dr. Muhammad Saeed Iqbal (P-8) conducted autopsy over the dead bodies of Muhammad Asghar and Nisar Ahmad, deceased. Muhammad Mukhtar , S.I. (PW-15) and Barkat Ali, S.I. (PW-13) are Investigating Officers of the case. The remaining prosecution witnesses, more or less, are formal in nature.
4. After completion of the prosecution evidence, statement of the appellant as required by section 342, Cr.P.C. was recorded by the learned trial Court wherein he professed his innocence and pleaded false implication in the case.
Neither he opted to get recorded his statement under section 340(2), Cr.P.C. nor he produced any evidence in his defence. Upon completion of the trial, learned trial court found the case against Muhammad Aatif appellant to have been proved by the prosecution, beyond shadow of any reasonable doubt and, thus, convicted and sentenced him as mentioned and detailed above. Hence, this appeal before this Court.
5. Arguments heard, record perused.
6. Instant unfortunate incident had taken place on 21.01.2008 early in the morning at 3:30 a.m. while the same was reported to the police at 5:00 a.m. Accor ding to averments of the crime report, the occurrence was committed by four unknown accused persons, who while armed with firearm weapons had arrived on a white colour car at the above said PSO Petrol Pump, where the complainant being Manager along with gunman Nisar Ahmed (deceased) and Muhammad Asghar (deceased), was present in the office whereas Muhammad Imran (PW-10) was sleeping in the adjacent room. Accused persons made firing upon Nisar Ahmad and Muhammad Asghar which resulted into their instantaneous death. Moreover , they also took away cash amount of Rs.2,50,000/- and two cell-phones (Samsung and Nokia made). The descrip tions of the accused persons were mentioned as a young man with the height of 5-feet and black colour wearing black clothes; the second one was having the height of 5-1/2-feet wheatish colour aged 22/23 years and was wearing white Shalwar Qameez whereas the third one was 6-1/4 feet tall having wheatish colour and of young age. Though, in crime report, complainant had narrated that instant occurrence had been committed by four unknown accused person and out of these four unknown accused persons, detailed descriptions of three accused persons have been mentioned in the crime report but during investigation the complainant got recorded his supplementary statement on 10.03 .2008 nominating five accused persons A i.e. Muhammad Atif appellant, Asif alias Billu (convicted separately being major and thereafter acquitted vide judgment dated 21.09.2017 in Murder Reference No.123/2010), Pervaiz alias Paiji (since acquitted by the learned trial court), Sajid (since P.O.) and Sajjad (since P.O.) with their parentage and addresses prior to test identification parade whereupon offence under section 396, P.P.C., was added in the FIR but astonishingly , Atif Irshad (PW-9) while appearing in the witness-box had not uttered even a single word in his examination-in-chief with regard to his supplementary statement, which otherwise, is also not available on the record. The implication and increase of number of accused persons from four to five and the fact that the complainant didn't utter a single word qua nominating the appellant and his co-accused, by itself, speaks volume. If for the sake of arguments, the deposition of the complainant is taken as correct, even then it does not appeal to reason that how Barkat Ali, SI had some knowledge or information that the appellant and his co-accused were required in the instant case. The supplementary statement was the only source enabling the Investigating Officer to arrest the appellant and his co- accused but the statement of complainan t Atif Irshad is entirely in negation to the stance taken by. the Investigating Officer.
7. As far as authenticity of the 'test identification parade conducted under the supervision of Hafiz Muhammad Zubair , learned Area Magistrate (PW-5) in which the appellant was correctly identified is concerned, bare perusal of the proceedings of the test identification B (Ex.PG) would reveal that it was a 'joint identification parade' thus as per pronouncements of the superior courts of the country , same is of no o avail to prosecution. The practice of joint identification parade has been disapproved by the Hon'ble Supreme Court of Pakistan in plethora of judgments including the recent one in the case titled "Gulfam and another v. The State (2017 SCMR 1189)" wherein it has been held as under:- The prosecution had maintained that the present appellants had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in which both the present appe llants had been made to stand along with many other dummies. Holding of a joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment and a reference in this respect may be made to the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The. State (2008 SCMR 1210 ), Bacha Zeb v.
The State ( 2010 SCMR 1 189) and Shafqat Mehmood and others v . The State ( 2011 SCMR 537 )."
The procedure for test Identification Parade provided in Volume-III, Chapter-1 1 Part-C of the Rules and Orders of the Lahore High Court, Lahore read with Article 22 of the Qanun-e-Shahadat Order , 1984, was not adhered to, while conducting the ID parade of appellant and his co-accused hence the same is neither acceptable nor reliable in the eye of law as such it is ruled out of consideration against the appellant.
8. Prosecution has also relied upon the recovery of currency amounting to Rs. 43,000/- (allegedly part of snatched cash) and pistol (P-3) along with four live bullets (P-4/1-4) on the pointing out of appellant however , as far as alleged recovery of cash amount is concerned, admittedly said cash amount was not a tainted money or having any mark of identification and it would be unsafe and against the norms of justice to connect the same with the occurrence merely on the oral assertion of the prosecution witnesses without corroboration from any independent source. Further , according to prosecution version Muhammad Mukhtar , SI (PW-15) had secured three empties of pistol (P.4 1-3) and one empty of rifle 44-bore (P-5) vide recovery memo Ex PP from place of occurrence and after arrest of the appellant, pistol (P-3) along with four live bullets (P-4/1-4) was also got recovered by the appellant but surprisingly , said pistol was never sent to the office of forensic expert for its analysis with the crime empties secured from the place of occurrence, hence the recovery of crime weapon too, is inconsequential for the prosecution. Even otherwise, it is settled law that recovery of crime weapon is merely a corroborative piece of evidence having no value in the absence of any credible and trustworthy direct evidence.
9. As far as recovery of car bearing registration No.3322/LR V (Exh.PG) recovere d from the appellant, allegedly used at the time of occurrence is concerned, the record is silent with regard to the registration number or model of the car in which the accused persons had arrived at the place of occurrence on the fateful day and, thus, the recovery of car from appellant is also of no avail to the prosecution.
10. Another important aspect of the case is that Muhammad Asif alias Billu (co-co nvict) was acquitted by Hon'ble Division Bench of this Court vide judgment dated 21.09.2017 passed in Murder Reference No.123/2010. Admittedly case of the appellant cannot be distinguished from his co-accused, hence, he also deserves to be treated in the same manner .
11. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to bring on record any convincing and reliable evidence/material to establish nexus of the appellant with the occurrence. It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not, as a matter of grace but as of right. Respectful reliance can be placed on verdict rendered by prestigious Supreme Court of Pakistan in Najaf Ali Shah v. The State (2021 SCMR 736) wherein it was held as infra: "It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner ."
Same principle was also reiterated in The State through P. G. Sindh and others v. Ahmed Omar Sheikh and others - 2021 SCMR 873 in the following terms:- "Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation."
12. In consequence of the aforementioned discussion, while allowing Crl. Appeal No.667/2010 , the conviction and sentence recorded by the learned trial Court vide judgment dated 31.03.2010 is set aside and the appellant is acquitted of the charge, while extending him benef it of doubt. He is directed to be released forthwith if not required in any other case.