MUHAMMAD TARIQ NADEEM, J. Through this judgment, I intend to decide the captioned criminal appeals filed under section 410, Cr.P.C. by Muhammad Asif and Zahid Bashir appellants, whereby they have challenged the convictions and sentences awarded to them by the learned Additional Sessions Judge/Model Criminal Trial Court, Bahawalnagar vide judgment dated 29.06.2019 passed in a private complaint under sections 302, 392, 412 and 34, P.P.C., titled as "Tauseef Ahmad v.
Muhammad Asif and another" and in case FIR No.77 dated 05.03.2018, registered under sections 302, 392, P.P.C., at Police Station City A-Division, Bahawalnagar. The learned trial court, upon conclusion of trial, handed down the following guilty verdict to the appellants: 1) Under section 302(b), P.P.C. read with section 34, P.P.C. each convict is punished with sentence of Life Imprisonment as Tazir for causing Qatl-i-amd of Muhammad Nazir deceased. Each convict would also have to pay the compensation of Rs. 2,00,000/- (two lacs) under section 544-A, Cr.P.C. which shall be distributed among legal heirs of deceased according to their legal shares. In case of non-payment, each convict shall have to undergo the simple imprisonment of two years. The compensation will be recoverable as arrears of land revenue from each convict.
2) Under section 392, P.P.C. each convict is also punished and sentenced to undergo (10) (ten years) R.I. with order to pay fine of Rs.1,00,000/- (Rupees one lac) and in default thereof, each convict shall further undergo two years S.P.
3) Under section 411, P.P.C. each convict is also punished and sentenced to undergo simple imprisonment for (3) (three years) with order to pay fine of Rs.20,000/- (twenty thousand) and in default thereof each convict shall further, undergo S.I. for three months.
All the sentences shall run concurrently. Benefit of Section 382-B of Cr.P.C., was also extended in favour of convicts.
2. The prosecution story as given in the judgment of the learned trial court reads as under: - "2. Brief facts of state case are that FIR No. 77/2018 Exh.CW-8/H has been registered on 05.03.2018 under the complaint of Tauseef Ahmad against unknown accused persons with the contention that his father Muhammad Nazir deceased was running a shop with the name and style Paracha Photostat at Quid-e-Millat Road Opposite National Bank Bahawalnagar and also collecting utility bills etc. His younger brother Taseer Usman also used to help his father at the shop. On 05-03- 2018, as usual his father Muhammad Nazir deceased while riding on his motorcycle Suzuki 110/CC bearing Registration No.BNO-660 went home. At about 08:00 PM, when his father reached at Firdous Street near his house, his younger brother Taseer Usman and his maternal uncle Muhammad Ali son of Roshan Din who were present in his house, also came out at outer door. All of a sudden, two unknown persons with middle height on a motorcycle emerged in front of his father and waylaid him. They asked his deceased father to give them handbag containing cash, mobile phones, cheque books and other necessary documents. On refusal of his father, one unknown accused pulled out a pistol, made a fire shot on his father. On sustaining fire shot injury, father fell down in front of the door of our house in the street. The unknown accused persons after snatching hand bag from his father, fled away from the spot. In the meanwhile many people gathered at the spot, he attended to his father having injuries, was shifted to DHQ Hospital, Bahawalnagar by calling 1122 rescue but during the way his father succumbed to the injuries. On the application Exh.PB of complainant, FIR No. 77/2018 Exh. CW-8/H was lodged.
3- Being aggrieved with the result of investigation conducted by police, complainant Tauseef Ahmad filed instant private complaint under sections 302, 392, 412/34, P.P.C. Exh.PA."
3. I have anxiously considered the arguments advanced by learned counsel for the appellants as well as learned Law Officer assisted by learned counsel for the complainant and scanned the record minutely.
4. It manifests from the record that the occurrence in this case took place on 05.03.2018 at 08:00 p.m. whereas the crime report (Ex.CW8/H) was lodged at 09:40 p.m. at Police Station City A-Division Bahawalnagar, located at a distance of one kilometer from the place of occurrence. It divulges from the crime report (Ex.CW8/H) that the appellants are not named therein in any capacity, however, it is mentioned that two persons of average height, boarded on a motorcycle, intercepted complainant's father Muhammad Nazir and asked him to hand over his handbag and upon his refusal, one of them started making firing with his pistol upon Muhammad Nazir, due to which he became seriously injured and fell down whereas the accused, after snatching handbag, cash, other documents and mobile phones from him, fled away on their motorcycle. Muhammad Nazir, in injured condition, was being shifted to hospital by Rescue 1122, but he succumbed to the injuries in the way.
Since none of the accused was nominated in FIR, the prosecution has heavily relied upon identification parade in order to prove culpability in this case. In this context, I have noted that both the eye-witnesses namely Tauseef Ahmad complainant (PW.1) and Taseer Usman (PW.2) could not mention any descriptive features of the assailants during investigation before the police as well as before learned trial court except that the accused were of average height. I may observe here that this material discrepancy, alone, is sufficient to diminish the evidentiary value of identification parade and while holding so, I am fortified from the dictum laid down by the apex Supreme Court of Pakistan in the case of "Sabir Ali alias Fauji v. The State" (2011 SCMR 563), wherein it has been settled that identification test is of no value when description/features of accused is not given in the contents of the FIR. Further guidance can also be sought from the case of Javed Khan alias Bacha and another v. The State and another" (2017 SCMR 524), wherein august Supreme Court of Pakistan has laid down the following principle:- "8. The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect. There is yet another aspect to the matter of identification of the culprits of this case. The Complainant had named three other persons who could recognize the assailants, but he did not Mention Subedar Mehmood Ahmad Khan (PW-6) as one of them. Nonetheless Subedar Mehmood Ahmad Khan came forward to identify, the appellants. Significantly, none of the three persons mentioned by the Complainant participated in the identification proceedings and two were not even produced as witnesses by the Prosecution.
During the identification proceedings both the appellants had informed the Magistrates who were conducting the identification proceedings, and before the identification proceedings commenced, that they had earlier been shown to the witnesses. The Magistrates recorded this objection of the appellants in their reports but surprisingly did not attend to it, which can only be categorized as a serious lapse on their part. Therefore, for all these reasons reliance cannot be placed upon the report of the identification proceedings in which the appellants were identified."
5. Another intriguing aspect which cannot lost sight of is that the identification parade was not held in accordance with law, because, it is settled proposition of law that joint identification parade has no evidentiary value. As per the report of identification parade (Ex.CW13/A), Muhammad Asif appellant is shown sitting in Row No.1 at sixth position from left to right while Zahid Bashir appellant is shown present at third place from left to right in Row No.2 and identification parade of both the appellants has been jointly conducted. In the eventuality of above mentioned facts, it is crystal clear that the identification parade was not held in accordance with the law, for the reason, this piece of evidence is not helpful to the prosecution. The august Supreme Court of Pakistan in case of "Kamal Din alias Kamala v. The State" (2018 SCMR 577) at page 580 while enunciating the principles of law relating to the identification parade has observed 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."
6. Another noteworthy aspect of the case which further badly shattered the evidentiary value of identification parade is that the occurrence had taken place on 05.03.2018 whereas identification parade was conducted on 29.12.2018 under the supervision of Muhammad Asif Gill, learned Civil Judge 1st Class/Magistrate Section-30, Bahawalnagar (CW.13), whereby Tauseef Ahmad complainant (PW.1), Taseer Usman (PW.2) and Muhammad Ali (jettisoned witness) allegedly identified the appellants as the culprits of offence but while appearing in the witness box, both Tauseef Ahmad complainant (PW.1) and Taseer Usman (PW.2) did not utter a single word as to when, where and in whose supervision the identification parade was conducted.
7. I have further noted that medical evidence is also not synchronized with the ocular account of the prosecution's case. In this context, although Tanseef Ahmad complainant (PW.1) only mentioned in crime report (Ex. CW8/H) that Muhammad Nazir (deceased) was injured due to firing made by one of the assailants and during the proceedings of identification parade (Ex.CW13/A), Tauseef Ahmad complainant (PW.1), Taseer Usman (PW.2) and Muhammad Ali (jettisoned witness) categorically stated before learned supervisory magistrate (CW.13) that Muhammad Asif appellant had made the fire shot which landed upon left side of chest of Muhammad Nazir (deceased), but according to medical history of the deceased as mentioned in his post mortem report (Ex.CW7/A) and proved through the statement of Dr. Mobeen Ahmad, Medical Officer, Basic Health Unit, Scondah (CW.7), injury on left side of chest of the deceased was in fact an exit wound. I am conscious that Tauseef Ahmad complainant (PW.1) has made an abortive attempt to cure this material inconsistency by filing private complaint (Ex.PA) wherein he has put the whole blame upon learned supervisory magistrate (CW.13) that either he mistakenly mentioned the statements of eye-witnesses in the report of identification parade (Ex.CW8/H) or was failed to correctly understand their statements, but such an attempt by way of filing private complaint (Ex.PA) was made on 29.05.2019 with considerable delay of five months after the holding of identification parade, therefore, it is crystal clear that the private complaint (Ex.PA) was filed with deliberations and under legal advice.
8: After taking the identification parade as well as ocular and medical evidence out of consideration, I am left with the evidence of recoveries, which being purely corroboratory in nature cannot be considered to sustain conviction on a capital charge. Even otherwise, recovery of pistol 30 bore (P.1) from Muhammad Asif appellant vide memo (Ex.PD) is inconsequential, because, nothing is available on the record that any crime empty was collected during spot Inspection and sent to the office of Punjab Forensic Science Agency, Lahore and the report (Ex.PL) of the above said Agency is only to the extent that pistol (P.1) was in mechanical operating condition. Likewise, articles in the shape of handbag (P.12) and cheque books (P.13, P.14 and P.15) were not recovered from any appellant rather the same are shown to have been taken into possession from the bank of canal vide memo (Ex.CW2/A). Similarly, recovery of motorcycle (P.3) from Zahid Bashir appellant vide memo (Ex.PE) is also not helpful for prosecution's case because no registration number of motorcycle used by the assailants during the occurrence has been mentioned by the complainant in FIR,(Ex.CW8/H).
9. Much emphasis has been laid on the recovery of cash Rs.80,000/- from Muhammad Asif appellant with the denomination of 13 currency notes of Rs.5000/- (P-4/1-13), 11 currency notes of Rs.1,000/- (P-5/1-11) and 8 currency notes of Rs.500/- (P-6/178). which were taken into possession vide recovery memo (Ex.PF) as well as recovery of Rs.70,000/- from Zahid Bashir appellant with the denomination of 11 currency notes of Rs.5000/- (P-7/1-11), 8 currency notes of Rs.1,000/- (P-8/1-8) and 10 currency notes of Rs.500/- (P-9/1-8) which were taken into possession vide recovery memo (Ex.PG), however, learned Law Officer as well as learned counsel for the complainant have candidly admitted that neither any identification memo of above said currency notes is available on the record nor numbers of currency notes have been mentioned in FIR (Ex.CW8/H) as well as during investigation and trial to establish that the currency notes allegedly recovered from the appellants were the same which were snatched from Muhammad Nazir (deceased) during the occurrence.
10. Epitome of the above discussion is that the prosecution has failed to prove its case against the appellants beyond the shadows of doubt rather the shadows of doubt are looming large in this case. It is settled law that the prosecution is under obligation to prove its case against the accused at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused, the benefit of that doubt is to be given to the accused as of right, not as of concession. Reference is made to the cases titled "Mst. Asia Bibi v. The State and others" (PLD 2019 SC 64), "Najaf Ali Shah v. The State" (2021 SCMR 736), "Sajjad Hussain v. The State and others" (2022 SCMR 1540) and "Tajamal Hussain Shah v. The State and another" (2022 SCMR 1567).
11. For the foregoing reasons, both the criminal appeals filed by the appellants are accepted, resultantly, their convictions and sentences are set aside and they are acquitted of the charges levelled against them by extending the benefit of doubt in their favour. They are on bail, their sureties stand discharged from the liability of bail bonds.