The State vs Maqsood Ahmad etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH ,BAHAWALPUR .

JUDICIAL DEPARTMENT

Murder Reference No.32 of 2017 (The State Vs. 1.Maqsood Ahmed alias Muneer Ahmed 2. Muhammad Arshad alias Kaka )

Criminal Appeal No. 463-J of 2017 (Maqsood Ahmed alias Muneer Ahmed Vs. The State) Criminal Appeal No. 464-J of 2017 (Muhammad Arshad alias Kaka Vs. The State)

Date of hearing: 06.09.2021.

Appellants by: Syed Zeeshan Haider, Advocate.

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

SADIQ MAHMUD KHURRAM, J. –Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz (convicts) were tried by the learned Sessions Judge, Bahawalpur in case FIR No. 733 of 2011 dated 17.10.2011 registered at Police Station Civil Lines District Bahawalpur in respect of offences under sections 302, 394, 411, 324 and 337-F(iii) PPC for committing the murder of Muhammad Shafique son of Muhammad Rafique (deceased) during robbery. The learned trial court vide judgment dated 20.09.2017 convicted Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz(convicts) and sentenced them as infra:

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan:- Death under section 302(b) PPC as Tazir for committing Qatl- i-Amd of Muhammad Shafique son of Muhammad Rafique (deceased)and directed to pay Rs.10,00,000/- 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 simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead .

ii).Rigorous Imprisonment for ten years under section 324 PPC and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

iii).Rigorous Imprisonment for five years under section 392 PPC and directed to pay Rs.30,000/- as fine; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

iv).Rigorous Imprisonment for two years under section 411 PPC and directed to pay Rs.10,000/- as fine; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

v).Rigorous Imprisonment for two years under section 337- F(iii) PPC and directed to pay Daman of Rs.20,000/- to the injured Muhammad Munir Gill (PW-1); in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

vi). Rigorous Imprisonment for three years under section 337- F(v) PPC and directed to pay Daman of Rs.30,000/- to the injured Muhammad Munir Gill (PW-1); in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

Muhammad Arshad alias Kaka son of Muhammad Nawaz:- Death under section 302(b) PPC as Tazir for committing Qatl- i-Amd of Muhammad Shafique son of Muhammad Rafique (deceased)and directed to pay Rs.10,00,000/- 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 simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead .

ii).Rigorous Imprisonment for ten years under section 324 PPC and directed to pay Rs.50,000/- as fine; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

iii).Rigorous Imprisonment for five years under section 392 PPC and directed to pay Rs.30,000/- as fine; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

iv).Rigorous Imprisonment for two years under section 411 PPC and directed to pay Rs.10,000/- as fine; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

v).Rigorous Imprisonment for two years under section 337- F(iii) PPC and directed to pay Daman of Rs.20,000/- to the injured Muhammad Munir Gill (PW-1); in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

vi). Rigorous Imprisonment for three years under section 337- F(v) PPC and directed to pay Daman of Rs.30,000/- to the injured Muhammad Munir Gill (PW-1); in case of default thereof, the convict was directed to further undergo six 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.)”

2.Feeling aggrieved, Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan (convict) lodged the Criminal Appeal No. 463-J of 2017 through jail assailing his conviction and sentence. Feeling aggrieved, Muhammad Arshad alias Kaka son of Muhammad Nawaz (convict) lodged the Criminal Appeal No. 464-J of 2017 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.32 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz. We intend to dispose of the Criminal appeal No.463-J of 2017, the Criminal appeal No.464-J of 2017 and the Murder Reference No.32 of 2017 through this single judgment.

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

3.Precisely the facts necessary, as stated by Muhammad Munir Gill (PW-1) , the injured witness of the case, are as under:- “On 17.10.2011, at about 12.45 p.m. (noon). I alongwith Muhammad Shafique complainant (deceased) went to Muslim Commercial Bank. Eid Gah Branch, Bahawalpur on motorcycle. Muhammad Shafique deceased withdrew cash amount Rs.10,00,000/- from the said Bank and wrapped the money in a shopper bag. Both of us proceeded towards Govt. Agricultural Appliances (Karkhana Zarai Alaat), Shahadra, Muhammad Shafique was driving motorcycle while I was sitting with him on rear seat. When we were near the gate of said Karkhana Zarai Alaat at about 01.00 p.m. (noon), two young boys came on motorcycle 125-CC armed with pistols. Later on their names were known to us as Maqsood Ahmad alias Munir Ahmad son of Ahmad Khan, caste Noul. resident of Jhang and Muhammad Arshad alias Kaka son of Muhammad Nawaz caste Khera, resident of Khanewal, accused present in Court. Muhammad Arshad alias Kaka accused was driving motorcycle while Maqsood Ahmad alias Munir Ahmad accused was sitting behind him. Both the accused tried to halt us but Muhammad Shafique (deceased) did not stop the motorcycle. Maqsood Ahmad accused fired a pistol shot to me which hit me on my right buttock (Koolha). After receiving the fire, I fell down from the motorcycle. Muhammad Shafique deceased threw the shopper bag containing Rs.10,00,000/- into the gate of Karkhana Zarai Alaat. Maqsood Ahmad and Muhammad Arshad accused grappled with Muhammad Shafique deceased. Maqsood Ahmad accused, present in Court, fired from his pistol at Muhammad Shafique deceased which hit him on his right buttock (Koolha). Then Muhammad Arshad alias Kaka accused, present in Court, made two consecutive shots from his pistol upon Muhammad Shafique (deceased) which hit him on his thigh and calf of his left leg. Both the above said accused persons picked up the shopper bag containing Rs.10.00,000/- on point from inside the gate of Karkhana Zarai Alaat and fled away from the spot on their motorcycle. The above said occurrence was seen by Dilawar Hussain, Jafer Ali, Muhammad Ismael and Mushtaq Ahmad who were present at gate of Karkhana Zarai Alaat, at the time of occurrence. The PWs took me and Muhammad Shafique

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

(deceased) to B.V.H. Bahawalpur through Rescue - 1122 in injured condition. The Police came in B.V.H. Bahawalpur where Muhammad Shafique deceased submitted a written application for registration of case and Police also recorded my statement. Due to injury caused on my person by the accused persons, present in Court, my right leg has become disable.

On 08.11.2011, Muhammad Shafique (deceased) succumbed to the injuries in B.V.H. Bahawalpur. On 14.11.2011, identification parade was held in the New Central Jail, Bahawalpur. I was taken there for identification of the accused persons where I identified Maqsood Ahmad accused, present in Court, who had fired at me and Muhammad Shafique deceased. I could not identify Muhammad Arshad alias Kaka accused, present in Court, because he had left his beard. Maqsood Ahmad and Muhammad Arshad accused, present in Court, are the culprits who had committed this occurrence and injured me and Muhammad Shafique deceased. ”

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 Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz were sent to face trial. The learned trial court framed the charge against the accused on 07.07.2012, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case got recorded statements of fifteen witnesses. Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) gave evidence regarding the ocular account. Syed Gul Hassan Patwari, (PW-4) prepared the scaled site plan of the place of occurrence (Exh.PF). Ghulam Haider (PW-5) stated that on 19.11.2011, the appellant namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan led to the recovery of Rs.500,000/- from his possession which were taken into possession by the Investigating Officer of the case through recovery memo (Exh.PG) and on the same day the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz also

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

led to the recovery of Rs.500,000/- from his possession which were taken into possession by the Investigating Officer of the case through recovery memo (Exh.PH). Ghulam Haider, (PW-5) further stated that on 26.11.2011 the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz also led to the recovery of the pistol along with six live bullets (P-2/1-6) and a magazine (P-3) from his possession which were taken into possession by the Investigating Officer of the case through recovery memo (Exh.PJ) and on the same day the appellant namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan led to the recovery of pistol along with 5 live bullets (P-5/1-5) and a magazine (P-

6)from his possession which were taken into possession by the Investigating Officer of the case through recovery memo (Exh.PK). Muhammad Khalid 839/C (PW-7) stated that on 08.11.2011 he got conducted the post mortem examination of the dead body of the deceased and also received the last worn clothes from the Medical Officer. Khalil Ahmad (PW-8) stated that on 08.11.2011 he identified the dead body of the deceased namely Muhammad Shafique at the time of post mortem examination. Muhammad Ashiq, ASI (PW-9) stated that on 02.11.2011, the appellants were arrested by the Investigating Officer of the case and the motorcycle (P-8) under their use was taken into possession by the Investigating Officer of the case through recovery memo (Exh.PN). Munir Ahmad, ASI (PW-11) stated that on 17.10.2011 Ghulam Murtaza, SI (since dead) handed over to him two sealed parcels said to contain blood stained earth and one sealed parcel said to contain empties and on 14.12.2011 he handed all the three parcels to Rahim Bakhsh for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and Munir Ahmad, ASI (PW-11) further stated that on 26.11.2011 the Investigating Officer of the case handed over to him one sealed parcel said to contain a pistol which on 29.12.2011 he handed over the said sealed parcel to Rahim Bakhsh for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Sarmad Taimoor, learned Magistrate, (PW-14) stated that on 14.11.2011 he conducted the test identification parade proceedings (Ex. PZ) of the

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz . Tasaddaq Abbas, Inspector (PW-15) stated that he was familiar with the handwriting of Muhammad Azam, ASI (since dead) and it was the said Muhammad Azam, ASI (since dead) who had recorded the formal F.I.R (Exh.PAA). Khizar Bilal, ASI (PW-10) stated that he was familiar with the handwriting of Ghulam Murtaza, SI, the Investigating Officer of the case, since dead and had also accompanied him during the investigation of the case and narrated the facts of investigation as conducted by Ghulam Murtaza, SI, the Investigating Officer of the case, since dead in his statement before the learned trial court.

6.The prosecution got examined Dr. Malik Muhammad Ismail (PW-

3)who on 08.11.2011 was posted as Senior Demonstrator at Quaid-e- Azam Medical College, Bahawalpur and on the same day conducted the postmortem examination of the dead body of Muhammad Shafique son of Muhammad Rafique (deceased). Dr. Malik Muhammad Ismail (PW-3) on examining the dead body of the deceased Muhammad Shafique son of Muhammad Rafique observed as under:- “Injury No. 1:

Open lapartomy wound in middle of abdomen measuring 20 cm x 17 cm.

Injury No.2

Colostomy bag was seen in right iliac region with colostomy wound.

Injury No.3:

Left leg was amputated at middle of left thigh

INJURIES NOTED BY FIRST MEDICAL EXAMINER MENTIONED

IN MLC OF DECEASED MOHAMMAD SHAFIQUE ISSUED ON

17.10.2011 WERE AS FOLLOWS:

1.There was gutter shape wound measuring 3.5 cm going blind deep on postero lateral aspect of left upper thigh, oblique with direction with cloth wound correspondent with the wound.

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

2.There was circular wound with inverted margin on right hip joint, wound corresponding with cloth wound.

3.There was a circular wound 1.5 x 1 cm with inverted margins on medial aspect in the middle of left leg. Wound corresponding with cloth.

4.There was a lacerated wound 2 x 1.5 cm with margins on lateral aspect in middle of left leg. Wound corresponding with cloth Remarks of Medical Officer .

After complete external and internal postmortem examination of the deadbody, I am of the opinion that injury No.2 mentioned in the MLC report, the bullet entered in abdominal cavity and damaged large gut and injuries No.3 and 4 (in MLC report) is e cause of left leg amputation. After few days of operation, the patient developed septicemia shock and death. All the injuries mentioned in MLC report were caused by fire arm and were ante mortem in nature. Such types of injuries were sufficient to cause death in ordinary course of life.

Probable time that elapsed:

Between injury and death:

23-days, as per surgical notes.

Between death and post mortem: within six hours..”

The prosecution also got Dr. Amir Bukhari (PW-06) examined who on 17.10.2011 was posted at BV Hospital Bahawalpur and on the same day examined Muhammad Shafique son of Muhammad Rafique (then injured later deceased). Dr. Amir Bukhari (PW-06 on examining Muhammad Shafique son of Muhammad Rafique (then injured later deceased) observed the same injuries as were mentioned in the statement of Dr. Malik Muhammad Ismail (PW-3) under the heading of INJURIES NOTED BY FIRST MEDICAL EXAMINER . The prosecution also got Dr.

Irfan Asghar (PW-12) examined who on 17.10.2011 was posted at Surgical Unit No.1 BV hospital Bahawalpur and on the same day examined Muhammad Munir Gill (PW-1). Dr. Irfan Ashraf (PW-12) after examining Muhammad Munir Gill (PW-1) observed as under:- “Operation Notes.

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

Findings:

1.1 X 1 cm entry wound on right buttock (UOQ) track going deep to. muscles. Clotted blood with suspicion of bony fragments.

2.0.5 x 0.5 cm entry wound lateral to scrotum in left thigh.

3.1 x 1 cm exit wound on left upper medial thigh. 5 cm from wound No.2 superficial subcutaneous tract.”

The prosecution also got Dr. Nawazish Ali Sherazi (PW-13) examined who on 17.10.2011 was posted as Senior Medical Officer at BV hospital Bahawalpur and on the same day examined Muhammad Munir Gill (PW-1). Dr. Nawazish Ali Sherazi (PW-13) after examining Muhammad Munir Gill (PW-1) observed as under:-

“Description of injuries:

1.There was a circular wound with inverted margins on right buttock going deep to muscles and bleeding and corresponding with cloth, 1 x 1 cm (wound of entry, clothes burnt and bony fragments.)

2.There was a circular wound 0.5 x 0.5 cm with inverted margins lateral to scrotum in left thigh, corresponds with clothes. (Wound of entry).

3.There was a lacerated wound 1 x 1 cm on left upper medial thigh, wound corresponded with cloth wound.”

7.On 28.01.2015 the learned Assistant District Public Prosecutor gave up the prosecution witness namely Mushtaq Ahmad as being unnecessary and on 11.04.2015, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Idress as being unnecessary and on 23.06.2015 the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Boota, Jafar Ali and Muhammad Ismail as being unnecessary and on 15.09.2015 the learned Assistant District Public Prosecutor gave up

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

prosecution witness namely Muhammad Azam, ASI as being unnecessary. On 13.06.2017, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding the comparison of the empties and the recovered pistols.

8.After the closure of prosecution evidence, the learned trial court examined appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz 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 Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz opted not to get themselves examined under section 340(2) Cr.P.C however the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz produced copies of statements recorded under section 161 of the Code of Criminal Procedure, 1898 of Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) as evidence in his defence.

9.On the conclusion of the trial, the learned Sessions Judge, Bahawalpur 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 Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) were not worthy of any reliance. He

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

further 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 Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) . 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 Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2). These witnesses namely Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) were related to each other as well as the deceased. Their

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

relationship with the deceased is also on record. According to Muhammad Munir Gill (PW-1) the daughter of Phuphi of the deceased was his wife whereas Dilawar Hussain (PW-2) was his nephew in relationship. Muhammad Munir Gill (PW-1) during cross-examination stated as under:-

“The daughter of aunt (Phuphi) of Shafique deceased is my wife .

Dilawar Hussain PW is my nephew in relation and he is also resident of Chak No.65/DB”

There is no denial to this fact that Muhammad Shafique son of Muhammad Rafique lost his life in this unfortunate incident, but the fact remains that the names of the assailants were not mentioned in written application (Exh.PQ) as submitted by Muhammad Shafique son of Muhammad Rafique, then injured later deceased and the F.I.R (Exh.PAA) was lodged against unknown accused persons. Subsequently, the witnesses including the complainant of the case Muhammad Shafique son of Muhammad Rafique ( then injured later deceased) and Muhammad Munir Gill (PW-1) , Dilawar Hussain (PW-2) and Mushtaq Ahmad (given up pw) got recorded their statements under section 161 of the Code of Criminal Procedure, 1898 on 28.10.2011 to the Investigating Officer of the case , 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. Muhammad Munir Gill (PW-1) during cross-examination stated as under:-

“The complete particulars mentioned by me to the police was that Maqsood Ahmad alias Munir Ahmad son of Ahmad Shan caste Noul resident of Jhang and Mohammad Arshad alias Kakar son of Mohammad Nawaz, caste Khera, resident of Khanewal.”

Similarly, Khizar Bilal, ASI (PW-10) who stated that he was familiar with the handwriting of Ghulam Murtaza, SI, the Investigating Officer of the case, since dead and had also accompanied him during the

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

investigation of the case and narrated the facts of investigation as conducted by Ghulam Murtaza, SI, the Investigating Officer of the case, since dead in his statement before the learned trial court, during cross- examination stated as under:-

“The PWs Mohammad Munir, Mushtaq and Dilawar on 28.10.011 had given the particulars of the accused persons, in their statements u/s 161 Cr.P.C as Maqsood Ahmad alias Munir Ahmad S/O Ahmad Khan, Caste Naul R/O Chak No.214/JB Tehsil and District Jhang and Mohammad Arshad alias Kaka S/O Mohammad Nawaz, Caste Khera, R/O Chak No.58/10-R Khanewal. The PWs had not given any source of information, through which they had gathered the names of accused persons. The I.O had not mentioned the source through which the PWs had learnt the names of accused persons present in the court. The PWs also had not mentioned the time, date or the place when they had learnt the names of accused persons present in the court. The 1.0 had not mentioned in any case diary to have raided the houses of accused persons from 28.10.2011 to 02.11.2011.”(emphasis supplied)

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 the complainant of the case namely Muhammad Shafique son of Muhammad Rafique ( then injured later deceased) and Muhammad Munir Gill (PW-1) , Dilawar Hussain (PW-

2)and Mushtaq Ahmad (given up pw), 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 the complainant of the case namely Muhammad Shafique son of Muhammad Rafique ( then injured later deceased) and Muhammad Munir Gill (PW-1) , Dilawar Hussain (PW-2) and Mushtaq Ahmad (given up pw) through their statements recorded under section 161 Cr.P.C. on 28.10.2011 , then the holding of the test identification parade even otherwise was an exercise in futility. The question begs an answer

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

that when Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) both knew 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 complainant of the case namely Muhammad Shafique son of Muhammad Rafique ( then injured later deceased) and Muhammad Munir Gill (PW-1) , Dilawar Hussain (PW-

2)and Mushtaq Ahmad (given up pw) had got recorded their statements under section 161 Cr.P.C. on 28.10.2011. The description of the appellants was so vivid and detailed that the appellants were identified by Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, who arrested the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz on his own without ever having seen the appellants earlier. Moreover, Muhammad Munir Gill (PW-1) during cross- examination stated as under:-

“My nephew Mohammad Aslam is serving in police department who told me the names, parentage, cast and residences of the accused ” This illustrates the futility of holding the test identification parade of the appellants who were so clearly named and already identified by the witnesses namely Muhammad Munir Gill (PW-1) , Dilawar Hussain (PW-2) and Mushtaq Ahmad (given up pw).

14.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 reported as PLJ 2019 SC (Cr.C) 153 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

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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 anotherv 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 P L D 1958 SC (Pak.) 1. It has no independent value of its own Muhammad Afzal and another v. The State 1982 S C M R 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 A I R 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 S C M R 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 A I R 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 recognize strangers and a

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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 P L D 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, Vol. 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 prescribes 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:-

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

(a)Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened 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 choose 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 possibility 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

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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 proceedings 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

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

(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 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. 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)/61, dated 26‐ 7‐ 1961, (v) Monir's Evidence Act (Pak. Edition) Vol. I, (vi) Lal Pasand v. The State P L D 1981 SC 142, (vii) Muhammad Afzal v. The State 1982 S C M R 129, (viii) Ismail v. The State 1974 S C M R 175, (ix) Khadim Hussain v. The State 1985 S C M R 721, (x) Muhammad Bashir Aslam v. The State P L D 1958 SC (Pak.), (xi) Gul Baig v. The State P L D 1964 Kar. 275, (xii) Musharrif Hussain v. The State P L D 1970 Dacca 686, (xiii) Sadu v. The State 1972 P Cr. L J 10, (xiv) Qabil Shah v. The State P L D 1960 Kar. 697, (xv) Wahid Bakhsh v. The State 1969 P Cr. L J 137, (xvi) Karim v. The State P L D 1961 Kar. 728, (xvii) Kameshwar Singh v. The State A I R 1972 SC 1M (xviii) Parbhu v. Emp. A I R 1943 Lah. 946, (xix) Emp. v. Debi Charan A I R 1942 All. 339, (xx) Sataya Naryan v. The State A I R 1953 All. 385, (xxi)‐ Gajadher v. Emp. A I R 1932 Oudh. 99 and (xxii) Ramzan v. Emp. A I R 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

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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. PZ) reveals that the said identification parade of the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz was conducted jointly. It is further recorded in the proceedings of the test identification parade (Exh. PZ) 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. PZ) of both the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz was held which has no evidentiary value. Muhammad Sarmad Taimoor (PW-14), the learned Magistrate who conducted the test identification parade proceedings (PZ) held on 14.11.2011 with regard to the appellants namely Maqsood Ahmed alias Muneer Ahmed son of

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz, admitted during cross-examination as under:- “The arrangements within the Jail premises for identification parade were made by the Superintendent Jail. I did not pass any order to the Superintendent Jail for the conduct of separate identification parade of accused persons.

I conducted the identification parade of both accused persons jointly.”( emphasis supplied)

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. 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.”

15.Matching the description in the first information report of the accused is the starting point towards identification of the unknown accused. We have minutely perused the statement of Muhammad Munir

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

Gill (PW-1), the injured witness of the case. This witness namely Muhammad Munir Gill (PW-1) admitted during cross-examination that he did not mention any descriptive features through which the appellants could be identified and stated as under:

“I did not mention the features of the accused persons in my statement recorded under Section 161 Cr.P.C .”

Similarly, Khizar Bilal, ASI (PW-10) who stated that he was familiar with the handwriting of Ghulam Murtaza, SI, the Investigating Officer of the case, since dead and had also accompanied him during the investigation of the case and narrated the facts of investigation as conducted by Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, in his statement before the learned trial court, during cross- examination stated as under:-

“The deceased had not mentioned the features of both the unknown accused persons in his application Ex.P-Q.

The P.Ws Mushtaq Ahmad, Dilawar Hussain and Mohammad Munir had not given the features of both unidentified accused persons, in their statements u/s 161 of Cr.P.C.”

Muhammad Sarmad Taimoor (PW-14) , the learned Magistrate who got conducted the identification parade of the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz on 14.11.2011 and prepared the report (Exh.PZ) did not mention any features of the dummies which were being used during the test identification parade proceedings. Matching the description of the accused 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 Muhammad Sarmad Taimoor (PW-14), the learned Magistrate first matching the description of the accused given by the witnesses. Selection of the

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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. 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 infirmities diminishing its probative and evidentiary 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 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. 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

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

As such the test identification parade loses its authenticity and has no value in the eye of law. Reliance is also placed upon a binding judgment of the August Supreme Court of Pakistan in the case titled Muhammad Afzal alias Abdullah v. The State and others (2009 SCMR 436) wherein it has been held as under:

“. Absence of such details in the report/F.I.R. militates against bona fides of the prosecution and greatly mars evidentiary value of the test identification parade. It is well-settled that when description by appearance of the accused is not given in the report/F.I.R. and specific role is not attributed to him, his identification in Court for the first time, in the absence of strong corroboratory evidence, is not safe to be relied upon because by the passage of time memory fades and possibility that an accused might not have been mistakenly picked out is augmented..”

The august Supreme Court of Pakistan in case of SABIR ALI alias FAUJI v. The State (2011 SCMR 563) has held as under:- “It is also settled principle of law that when witnesses giving no description of the accused previous to identification, such type of identification cannot be reliable. See Maula Dad's case (AIR 1925 Lah. 426).”

Furthermore, while holding the test identification parade, Muhammad Sarmad Taimoor (PW-14) , the learned Magistrate failed to observe and mention the ages, heights, complexions of skin, weight and occupation of the dummies being used during the test identification parade and of the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz 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. Dilawar Hussain (PW-2) during cross-examination denuded the possibility of collusion and helping out the witnesses in this case when he stated as under:-

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

“All the dummies were of different appearance, some with moustaches and some were with beard. All the dummies were asked to raise their faces.

I cannot tell that if the dummies were of different height then that of accused persons. The dummies and accused persons were wearing different colour clothes. Neither the accused nor the dummies were wearing prisoners clothes.”( emphasis supplied) 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 reported as PLJ 2019 SC (Cr.C) 153 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 age, height of the appellants or their physique or whether they had facial hair or not . According to the written application (Exh.PQ) out of the two assailants who took part in the occurrence , one was of the height of 5 feet and 4 inches having not beard , whereas the other assailants was of the normal height, slim physique and aged about 28 years, however Muhammad Sarmad Taimoor (PW-14) , the learned Magistrate did not record in his proceedings the ages, height , the presence of facial hair or otherwise and the residences of the dummies being during the test identification parade proceedings (PZ) held on 14.11.2011 with regard to the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

Nawaz. Muhammad Sarmad Taimoor (PW-14) , the learned Magistrate admitted during cross-examination as under:- “ I did not mention resemblance between the accused persons and dummies in my report Ex.P-Z. I did not mention in Ex.P- Z that the identification marks of accused persons were concealed. I did not mention the ages of the accused persons and the dummies.

I did not mention the residential addresses, caste etc. of the dummies in my report Ex.P-Z. I did not conduct any inquiry regarding the objection made by the accused persons namely, Maqsood Ahmad alias Munir Ahmad and Mohammad Arshad alias Kaka.

I did mention in my report Ex.P-Z the dummies are under-trial prisoners. I did not mention about the wearing of clothes of the dummies as well as accused persons in my report. I did not mention the number of dummies with moustaches, beard face and clean shave.”.

Such test identification parade proceedings offer 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 infirmities diminishing its probative and evidentiary 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,

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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 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. 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)”.

16.We have also noted with grave concern that the witnesses who joined the test identification parade proceedings (PZ) held on 14.11.2011 with regard to the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz, did not mention any role of any of the appellants during the occurrence being identified by them. During the test identification parade proceedings (PZ) held on 14.11.2011 with regard to the appellants namely the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz,, both the witnesses namely Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) simply put their hands on the heads of the appellants without disclosing anything regarding their role in the occurrence. Muhammad Munir Gill (PW-1) during cross-examination stated as under:-

“I had not disclosed the role of each accused at the time of occurrence to the Magistrate and had identified the accused by touching them. The Magistrate did not record my statement at the time of identification parade. My statement had also not been recorded at the Police Station on that date.”( emphasis supplied) Dilawar Hussain (PW-2) during cross-examination stated as under:- “ The Magistrate asked me to place my hand on the accused persons which I did. I had not specifically mentioned to the Magistrate

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

that which of the accused was driving motorcycle and which one was sitting on rear seat. .”( emphasis supplied) Muhammad Sarmad Taimoor (PW-14) , the learned Magistrate admitted during cross-examination as under:-

“ I did not record the role/overt act of Mohammad Arshad alias Kaka accused in my report Ex.P-Z.

I did not inquire from the P.Ws about the specific role/overt act of accused Maqsood Ahmad alias Munir Ahmad”.

The mere fact that witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It merely means that the witness happens to know that accused person. Such kind of test identification proceedings have no legal value. Reliance is placed upon a binding judgment of the august Supreme Court of Pakistan in the case titled MAJEED alias MAJEEDI and others v. The State and others (2019 S C M R 301) wherein it has been held as under:

“At any rate, in the test identification parade the complainant and two other eye-witnesses had maintained that the appellant had only searched the complainant and some others during the alleged occurrence and they had not attributed any role to the appellant regarding causing of murder of the deceased or causing injuries to others but another eye-witness belonging to the complainant party had maintained that the appellant had also fired at the said witness causing an injury on his lip. Such a conflict between the stands of the eye-witnesses produced by the prosecution vis-a-vis the appellant's role by itself was sufficient to create serious doubts about veracity of the said witnesses.”

The august Supreme Court of Pakistan in the case of Azhar Mehmood and others v. The State (2017 SCMR 135) has held at page 138 as infra:- “.....have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently being held by this Court that such a test identification parade is legally laconic and is of no evidentiary value.”

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

The august Supreme Court of Pakistan in case of Kamal Din alias Kamala v. The State (supra) held as under:- “ It is also pertinent to mention here that the proceedings of the test identification parade brought on the record of this case clearly show that the appellant had not been picked up by the eye witnesses in that parade with reference to any role played by him during the occurrence in issue.”

The august Supreme Court of Pakistan in case of HAKEEM and others v. The State (2017 S C M R 1546) has held as under:- “This Court in the case of Azhar Mehmood v. State (2017 SCMR 135) has held that in an identification parade, if the accused were identified without reference to any role played by them in the incident, the same is of no evidentiary value. A quote from the judgment of Azhar Mehmood's case is as follows:-

"We have gone through the statements made by the supervising Magistrates, i.e. PW5 and PW10 as well as the proceedings of the test identification parades and have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently been held by this Court that such a test identification parade is legally laconic and is of no evidentiary value and a reference in this respect may be made to the cases of Khadim Hussain v. The State (1985 SCMR 721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Siraj-ul-Haq and another v. The State (2008 SCMR 302), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563) and Muhammad Fayyaz v. The State (2012 SCMR 522) " The august Supreme Court of Pakistan in case of MUHAMMAD PERVEZ and others v. The State and others (2007 S C M R 670) has held as under:-

“It is also an admitted fact that role of accused not described by witnesses at the identification parade. Such type of identification lost its value and not relied upon as law laid

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

down by this Court in Ghulam Rasool's case 1988 SCMR 557 and Mehmood Ahmad's case 1995 SCMR 127. It is also an admitted fact that prosecution witnesses had seen the accused persons before the identification parade as mentioned hereinabove, therefore, both the Courts below were not justified to rely such piece of evidence of identification parade.”

The august Supreme Court of Pakistan in case of SABIR ALI alias FAUJI v. The State (2011 SCMR 563) has held as under:- “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. See Ghulam Rasul's case (1988 SCMR 557), Mahmood Ahmed's case (1995 SCMR 127) and Khadim Hussain's case (1985 SCMR 721).”

17.Another aspect of the case which clearly establishes that the test identification parade proceedings (PZ) held on 14.11.2011 with regard to the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz were sham is the statement of the prosecution witness namely Ghulam Haider, (PW-5) who in no uncertain terms stated that both the appellants were arrested after 2-3 days of the occurrence and were held at the police station for about one month. Ghulam Haider (PW-5) during cross-examination stated as under:-

“ I had learnt about the arrest of the accused persons after 2/3 days of the occurrence. The accused persons were under arrest when I had gone to police station after 2/3 days of the occurrence. The accused persons remained in the police station for about one month.”

The said prosecution witness namely Ghulam Haider, (PW-5) was neither declared hostile by the prosecution nor was re-examined. This unchallenged statement of Ghulam Haider (PW-5) clearly establishes

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

and proves that both the appellants were kept in illegal custody for as long as a month and subsequently their arrest was shown to be made on

18.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 world 12 , 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 Brathwaite15 , UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another,16 New Jersey Supreme Court in State v Madison17 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 retrieval- the "stage during which a person recalls stored information". 20 The process of memory retention and retrieval 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 -

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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 research 23 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. Henderson 32 observed that "virtually all of the scientific evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v. Lawson33 .

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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 Health36 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 statements of the prosecution witnesses namely Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) 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 Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2),the assailants had used a visible firearm weapon during the occurrence 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 culprit 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 present case many estimator variables existed which

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

negatively affected the memory process making it impossible for the witnesses to have identified the accused during the test identification parade proceedings. Hence, because of the abovementioned flaws of the test identification parade proceedings (PZ) held on 14.11.2011 with regard to the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz, we are of the considered view that the identification of the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz by the witnesses namely Muhammad Munir Gill (PW-1) and Dilawar Hussain (PW-2) during the said the test identification parade proceedings (PZ) ,held on 14.11.2011, is of no evidentiary value and does not prove any fact.

19.Learned Deputy Prosecutor General has laid great stress on the fact that namely Muhammad Munir Gill (PW-1) was injured in the occurrence. The august Supreme Court of Pakistan has repeatedly held that the stamp of injuries on the person of a witness can be a proof of their presence at the place of occurrence , however, it can never be held that they also will tell truth .It has been held that the facts which an injured witness narrates are not to be implicitly accepted rather they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under: “ It is settled law that injuries of P.W are only indication of his presence at the spot but are not affirmative proof of his credibility and truth”.

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

was pleased to hold that presence of injuries does not stamp a witness to be a truthful one.

20.Learned Deputy Prosecutor General has also relied upon the recovery of the pistol (P-12) from the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz and the recovery of the pistol (P-13) from the appellant namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan, which pistols were recovered from a residential upper story room situated in Bismillah Colony, behind the General Bus Stand, Bahawalpur. Admittedly, Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, did not ask any of the residents of the locality from where the recoveries was affected to witness the same. Ghulam Haider (PW-5) , during cross-examination admitted as under:-

“The I.O. had not asked any respectable of the locality to join the recovery proceedings. The I.O. had not made any effort to inquire about the owner of the house of the recovery.”

Moreover, Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, did not collect any evidence so as to determine the identity of the residents of the place of recovery of the weapons. Khizar Bilal, ASI (PW-10) who stated that he was familiar with the handwriting of Ghulam Murtaza, SI, the Investigating Officer of the case, since dead and had also accompanied him during the investigation of the case and narrated the facts of investigation as conducted by Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, in his statement before the learned trial court, during cross-examination stated as under:- “According to proceedings on 26-11-2011, the I.O. had not collected any proof of taking the house in Bismillah colony on rent by the accused persons. Neither name of street, nor house number was mentioned by the I.O in the recovery proceedings. Neither owner of the house, nor any neighbourer (sic) was associated in the investigation. It is nowhere recorded in the recovery proceedings that whether said house was open or locked at the time of alleged recovery. The I.O. had not collected any

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

proof of last possession of the alleged house situated in Bismillah Colony. No independent notable person of the locality was associated in the investigation, by the I.O.”

As the Investigating Officer of the case, did not join any witness of the locality during the recovery of the pistol (P-12) from the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz and the recovery of the pistol (P-13) from the appellant namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan, which was in clear violation of section 103 Cr.PC and therefore the same cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. 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 associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Moreover, the perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PBB) regarding the comparison of the empties (P-1/1-10) recovered from the place of occurrence and the recovered pistol (P-12) from the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz and the recovered pistol (P-13) from the appellant namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan reveals that the empties (P-1/1-10) recovered from the place of occurrence were deposited in the office of Punjab Forensic Science Agency, Lahore on 15.12.2011, whereas the appellants namely Muhammad Arshad alias Kaka son of Muhammad Nawaz and Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan were shown to be arrested on 02.11.2011 by Ghulam Murtaza, the Investigating Officer of the case (since dead) and the pistol (P-12) was recovered from the possession of the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz on 26.11.2011 and the pistol (P-13) was recovered from the possession of the appellant namely Maqsood Ahmed

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

alias Muneer Ahmed son of Ahmed Khan also on 26.11.2011. There was no reason for keeping the empties (P-1/1-10) recovered from the place of occurrence at the police station till 15.12.2011 i.e. till after the arrest of the appellants namely Muhammad Arshad alias Kaka son of Muhammad Nawaz and Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan on 02.11.2011 and even after the pistols (P-12 and P-13) had been recovered from their possession on 26.11.2011. In this scenario possibility of fabrication on part of the Investigating Officer of the case cannot be ruled out and is quite obvious. Reliance is placed on the case of “Muhammad Amin Vs. The State and another” (2019 S C M R 2057) wherein the august Supreme Court of Pakistan has held as under:- “Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential.”

Additionally, according to the prosecution witnesses only three fires were made by the assailants at the place of occurrence, however the recovery of as many as ten empties from the place of occurrence also puts the narrative of the prosecution witnesses in doubt. As mentioned above, the said prosecution witness namely Ghulam Haider (PW-5) also stated that the accused were arrested after 2-3 days of the occurrence and were kept at the police station for a month. Therefore, the recovery of the pistol (P-12) from the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz and the recovery of the pistol (P-13) from the appellant namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan, do not further the case of the prosecution in any manner and the same cannot be used as a circumstance against the appellants.

21.With regard to the recovery of Rs.500,000/- (P-9/1-100) allegedly got recovered by the appellant namely Maqsood Ahmed alias

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

Muneer Ahmed son of Ahmed Khan on 19.11.2011 and with regard to the recovery of Rs.500,000/- (P-10/1-60 and P-11/1-200) allegedly got recovered by the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz on 19.11.2011 from a rented house Basti Bhattian, Bahawalpur. 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 Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz. Moreover, the serial numbers or any marking on the robbed currency notes were not mentioned 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. Moreover, Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, did not collect any evidence so as to determine the identity of the residents of the place of recovery of the said currency notes. Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, even did not collect any record from the bank so as to establish that the deceased had withdrawn and received the amount of Rs.10,00,000/- from the bank which were subsequently robed and recovered. Khizar Bilal, ASI (PW-

10), who stated that he was familiar with the handwriting of Ghulam Murtaza, SI, the Investigating Officer of the case, since dead and had also accompanied him during the investigation of the case and narrated the facts of investigation as conducted by Ghulam Murtaza, SI, the Investigating Officer of the case, since dead, in his statement before the learned trial court, during cross-examination stated as under:- “The I.O. had not collected any evidence that the deceased and the injured PW had, on that day, drawn Rs.10,00,000/- from MCB.

The 1.O did not collect any cheque or any other proof regarding withdrawal of amount from the concerned bank.

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

The 1.0. had not collected any proof that the accused persons had been living in a rented house. Neither owner of that house, nor any neighbourer was associated in the investigation by the I.O. It is correct that there is no oral or documentary evidence regarding the fact that the house from where recovery was affected on 19- 11-2011, was taken on rent by the accused persons . Neither the name of street nor house number from where the recovery was affected on 19-11-2011came on record. The numbers of currency notes were not mentioned by the I.O. in the recovery proceedings.

The 1.0. had not collected any CCTV recording from the Bank. The L.O. had not recorded the statement of security guard of the Bank.” (emphasis supplied)

Similarly, Ghulam Haider (PW-5) during cross-examination admitted as under:-

“ The place of recovery of currency was surrounded by inhabited area. There were houses on both sides of place of recovery of currency. I do not know that if the I.O. had asked any member of the locality to associate the recovery proceedings. The house was unlocked by the police. The police had already opened the door when I reached the place of recovery. All the police officials were present outside the house when I reached there. No person was present in the house from where the recovery was affected. The 1.0. had not asked any respectable of the locality to associate the recovery proceedings. The room from where the recovery was affected was on northern side of the outer door of the house. It took us about 30/45 minutes to complete the recovery proceedings at the place of recovery. The house from where the recovery was affected consisted on 4/5 rooms. The 1.0. had not obtained my signatures on the currency notes recovered on the disclosure of the accused Arshad. There was no specific mark of identification of currency notes. The currency notes were not sealed in my presence . The currency notes are not in the court today. My statement was recorded by the

L.O..”

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

As mentioned above, the said prosecution witness namely Ghulam Haider (PW-5) also stated that the accused were arrested after 2-3 days of the occurrence and were kept at the police station for a month, therefore, in view of the above statement of Ghulam Haider (PW-5) no reliance can be place on the recoveries shown to be made from the appellants. With regard to the recovery of motorcycle (P-8) from the appellants namely Muhammad Arshad alias Kaka son of Muhammad Nawaz and Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan at the time of their arrest on 02.11.2011 we have observed that none of the prosecution witnesses stated the registration number of the motorcycle which had been used by the assailants during the occurrence. Moreover, as mentioned above, the prosecution witness namely Ghulam Haider (PW-5) stated that the accused were arrested after 2-3 days of the occurrence, therefore, in view of the above statement of Ghulam Haider (PW-5), the actual date of the arrest of the appellants and the recovery of the motorcycle (P-8) under their use at the time of their arrest, could not be proved beyond doubt. In this manner the recovery of the motorcycle (P-8) which had been allegedly recovered from the appellants does not offer any corroboration of the ocular account. Even otherwise 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.

22.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. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellants’ conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

“Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”

23.The plea of the learned Deputy Prosecutor General that because the complainant party was having no enmity to falsely implicate the appellants in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence 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).

24.It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without a shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so imputed against the accused, have not been proved beyond a reasonable doubt, then the accused becomes entitled to acquittal. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of the doubt the Court can conclude on considering the agglomerated effect of the evidence available on record as held in the cases of Safdar Ali v. The Crown (PLD 1953 FC 93) and Muhammad Luqman v. The State (PLD 1970 SC 10). In the instant case we have scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellants. Conversely, the evidence so brought on

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

record appears to have been fabricated to prove the prosecution case. Even otherwise the evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused persons intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently would not be sustainable in the eye of law in view of the principles laid down by this Court in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent and flawed, thus, on basis of the same, appellants cannot further be immured because they have every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with the law.

25.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz 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 reasonable 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 Pakistan 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

Criminal Appeal No. 463-J of 2017 Criminal Appeal No. 464-J of 2017

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.”

26.For what has been discussed above, Criminal Appeal No. 463-J of 2017 lodged by the appellant namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan is allowed. Criminal Appeal No. 464-J of 2017 lodged by the appellant namely Muhammad Arshad alias Kaka son of Muhammad Nawaz is also allowed. The conviction and sentences of Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz (appellants) awarded by the learned trial court through the impugned judgment dated 20.09.2017 are hereby set-aside. Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz (appellants) are ordered to be acquitted by extending them the benefit of doubt. The appellants namely Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz are in custody and they are directed to be released forthwith if not required in any other case.

27.Murder Reference No.32 of 2017 is answered in Negative and the death sentences awarded to Maqsood Ahmed alias Muneer Ahmed son of Ahmed Khan and Muhammad Arshad alias Kaka son of Muhammad Nawaz, are Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

Judge Judge