State vs Muhammad Bilal etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

Murder Reference No.24 of 2018 (The State Vs. 1. Muhammad Bilal alias Mithu

2.Liaquat Ali alias Liaqu 3.Aman Ullah )

Criminal Appeal No. 109-J of 2018 (Muhammad Bilal alias Mithu Vs. The State.)

Criminal Appeal No. 110-J of 2018 (Liaquat Ali alias Liaqu Vs. The State.)

Criminal Appeal No. 111-J of 2018 (Aman Ullah Vs. The State.)

Date of hearing: 06.09.2022.

Appellants by: Mr. James Joseph, Advocate.

State by: Mr. Muhammad Ali Shahab, Deputy Prosecutor General. Complainant by: Mehr Habib Ullah Girwah, Advocate.

SADIQ MAHMUD KHURRAM, J. – Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad (convicts) were tried alongwith Abdul Rauf son of Abdul Ghaffar and Munir Hussain son of Sardar Muhammad (both since acquitted), by the learned Additional Sessions Judge Layyah, in case FIR No. 561 of 2012 dated 10.10.2012 registered in respect of offences under sections 302, 396,460 and 412 P.P.C. at the Police Station Chowk Azam District Layyah for committing the Qatl-i-Amd of Tahir Majeed and Abdul Majeed (deceased) during dacoity. The learned trial court vide judgment dated 10.02.2018 convicted Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad, and Aman Ullah son of Shah Muhammad (convicts) and sentenced them as under:

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Muhammad Bilal alias Mithu son of Abdul Jabbar:

i)Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Abdul Majeed and Tahir Majeed (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.

The convict was ordered to be hanged by his neck till dead;

ii)Imprisonment for life under section 460 P.P.C.

iii)Rigorous Imprisonment for ten years under section 392 P.P.C. and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.

Liaquat Ali alias Liaqu son of Maqsood Ahmad:

i)Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Abdul Majeed and Tahir Majeed (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.

The convict was ordered to be hanged by his neck till dead;

ii)Imprisonment for life under section 460 P.P.C.

iii)Rigorous Imprisonment for ten years under section 392 P.P.C. and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.

Aman Ullah son of Shah Muhammad :

i)Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Abdul Majeed and Tahir Majeed (deceased) and directed to pay

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Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.

The convict was ordered to be hanged by his neck till dead;

ii)Imprisonment for life under section 460 P.P.C.

iii)Rigorous Imprisonment for ten years under section 392 P.P.C. and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.

The convicts were extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 .All the sentences awarded to the convicts were ordered to run concurrently by the learned trial court .

Abdul Rauf son of Abdul Ghaffar and Munir Hussain son of Sardar Muhammad, the co-accused of the convicts, were however acquitted by the learned trial court.

2.Feeling aggrieved, Muhammad Bilal alias Mithu son of Abdul Jabbar (convict) lodged Criminal Appeal No. 109-J of 2018 through jail assailing his conviction and sentences. Liaquat Ali alias Liaqu son of Maqsood Ahmad (convict) lodged Criminal Appeal No. 110-J of 2018 through jail assailing his conviction and sentences. Aman Ullah son of Shah Muhammad(convict) lodged Criminal Appeal 111-J of 2018 through jail assailing his conviction and sentences. The learned trial court submitted Murder Reference No.24 of 2018 under section 374 Cr.P.C.

seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad (appellants). We intend to dispose of the Criminal Appeal No. 109-J of 2018,

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Criminal Appeal No. 110-J of 2018, Criminal Appeal 111-J of 2018 and the Murder Reference No.24 of 2018 through this single judgment.

3.Precisely the facts necessary, as stated by Asif Majeed (PW-17), the complainant of the case, are as under: -

“My residential house is situated near private Al-Madina Grammar Public School Chowk Azam. On 10.10.2012 at about 2.00 am (night) as usual, 1 along with my wife and a minor daughter were sleeping in our bedroom. Meanwhile, three persons armed with pistols entered our bedroom and at that time, light of my room was on. I was awaken by the aforesaid persons and saw that one of the accused was of elongated face,middle height, smart body aged about 25/26, have increased shave, wearing Khaki coloured clothes. Amongst the aforesaid accused, another was of smart body, middle aged, with round face, long hairs, having "maang" from the center, without beard and moustaches aged about 18/20 years, wearing blue coloured clothes, and the third one was of round face, middle height, small moustaches, aged about 22/23 years wearing almond coloured clothes. As I arouse, one of them made a pistol blow at the back side of my head, the other two accused pulled out string of my Shalwar and tied my legs and they also tied my hands with my shirt and I was caused to be laid on the bed while facing downward, one of them took out mobile Nokia-6120 containing SIM No.0334/6962291 from pocket of my shirt and also forcibly removed gold ring from the hand of my wife Mst. Sajida Afzal. On our hue and cry, my elder brothers Tahir Majeed and Kashif Majeed also woke up and came t (sic) at that time towards my room and they tried to apprehend the accused persons. Meanwhile, 1 also untied myself with the help of my wife. One of the accused made a fire with pistol which hit Tahir Majeed at his abdomen in the hall room of my house, another accused made a pistol fire which landed on the thigh of Tahir Majeed who fell down on the ground then and there. On hearing the fires and the noise, my father Abdul Majeed also came out of the bedroom into the courtyard of the house and the third accused tried to launch an attack upon my father but my father took out small hatchet lying in the courtyard and made a hatchet blow at the said accused which landed at left arm of the accused upon which the said accused made pistol fire at my father Abdul Majeed which hit him on his chest and my father fell down on the ground. Second fire was also made by the same accused which landed on the back of my father Abdul Majeed, On hearing the firing and our hue and cry, Nadeem Abbas, Zafar Iqbal PWs and other neighbours attracted at the spot but all the three accused persons while making firing decamped from the spot. We took care of Tahir Majeed and Abdul Majeed but they had succumbed to the injuries. I and other PWs have seen the accused persons. We put both the dead bodies in a private dalla and escorted to the RHC Chowk Azam. All the accused with their common intention in order to commit robbery/dacoity snatched my mobile phone and gold ring of my wife forcibly and during this, they murdered my brother and father. On receiving the information of the occurrence, police came in the hospital where I made statement Exh PC, before the police which was reduced into writing by the police and was read over to me. 1 signed the same in token of its correctness.

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Police inspected the spot in my presence as well as in presence of Kashif Majeed on 10.10.2012 secured blood with the help of cotton from underneath the dead body of Tahir Majeed sealed it into parcel. Police also collected blood with the help of cotton from underneath the dead body of Abdul Majeed and sealed it into parcel. Both parcels were taken into possession vide recovery memo Exh.PAA attested by me and Kashif Majeed. Police also collected three live bullets from one point P.29/1-3 and two live bullets from other point P-30/1-2 of pistol 30-bore and took the same into possession vide recovery memo Exh.PBB attested by me and Kashif Majeed. Police also collected 6 crime empties of pistol 30-bore P.31/1-6 from one point and four crime empties of pistol 30-born P.32/1-4 which were sealed into parcel and taken into possession vide recovery memo Exh.PCC attested by me and Kashif Majeed PW. Police also collected string of Shalwar P.33 with which my legs were tied up and a pair of shoe of Calza P.34 left by the accused at the spot and the same was taken into possession vide recovery memo Exh.PDD attested by me and Kashif Majeed. On the same day, the police also collected blood stained small hatchet P.35, sealed into parcel, and took the same into possession vide recovery memo Exh.PE attested by me and Kashif Majeed: PW. My statement was also recorded by the Investigating Officer u/s 161 Cr.P.C.

On 18.12.2012, 1 alongwith my brother: Kashif Majeed and wife Mst. Sajida Afzal went to Central Jail, Dera Ghazi Khan where under the supervision of learned Area Magistrate we all the PWs turn by turn identified the accused of this occurrence. I identified that the accused, who amongst the accused persons, had made first fire at Tahir Majeed was Amanullah, the accused present in the court, whose name was subsequently told to me. The accused, who had made second fire at Tahir Majeed was Liaqat Ali, the accused present in the court, whose name was subsequently told to me. The accused, who had made two fires at my father Abdul Majeed was Bilal alias Mithu, the accused present in the court, whose name was also subsequently told to me. In this way, we all the three PWs identified the accused who had committed this occurrence on the fateful night.

On 20.12.2012, I went to the police station alongwith my wife Mst. Sajida Afzal and police showed me mobile phone Nokia-6120, stated to be recovered from the accused Muhammad Bilal, which I identified to be owned by me which was snatched by the accused persons from me on fateful night. My statement in this regard was also recorded by the Investigating Officer.’

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 and the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad along with their co-accused namely Abdul Rauf son of Abdul Ghaffar and Munir Hussain son of Sardar Muhammad (both since acquitted), were sent to face trial.

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The learned trial court framed the charge against the accused on 14.06.2013 to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case got statements of as many as nineteen witnesses recorded. The ocular account of the case was furnished by Sajida Afzal (PW-16) and Asif Majeed (PW-17). Haji Muhammad ASI, (PW-1) stated that on 10.10.2012, he escorted the dead bodies of the deceased to the hospital and also received the last worn clothes of both the deceased from the Medical Officer . Nazar Abbas, Patwari (PW-2) prepared the scaled site plan of the place of occurrence (Exh.PB). Abdul Hameed, SI (PW-4) stated that on 10.10.2012, he recorded the formal F.I.R (Exh.PC/1). Inam ul Haq, ASI (PW-6) stated that on 05.12.2012, he prepared the report having eight pages (P-5 to P12) related to the use of mobile phone number 0334 6962291 and on 09.12.2012, he prepared a report having nine pages (P-13/1-9) related to the use of mobile phone number 0301 6709850 and on 09.02.2013 he prepared a report having nineteen pages (P-14/1-19) related to the use of mobile phone number 0342 7252464 and prepared another report having 28 pages (P-15/1-28) related to the use of mobile phone number 0346 4945409 and prepared another report having 20 pages (P- 16/1-20) related to the use of mobile phone number 0341 6242131 and handed over all the said reports to the Investigating Officer of the case. Muhammad Afzal (PW-7) stated that on 10.10.2012, he identified the dead bodies of both the deceased at the time of their post mortem examinations. Sagheer Ahmad 779/C (PW-8) stated that on 13.12.2012, the appellant namely Muhammad Bilal alias Mithu got recovered a mobile phone device (P-17) and another mobile phone device (P-18), whereas on the same day the appellant namely Aman Ullah got

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recovered a mobile phone device (P-19), whereas on 26.12.2012, the appellant namely Liaquat Ali alias Liaqu got recovered a pistol (P-20) having two bullets (P- 21/1-2), whereas on 27.12.2012, the appellant namely Muhammad Bilal alias Mithu got recovered a pistol (P-22) and a live bullet (P-23) and on 27.12.2012, the appellant namely Aman Ullah got recovered a pistol (P-24) and three live bullets (P-25/1-3). Ijaz Ali, ASI (PW-10) stated that on 10.10.2012, the Investigating Officer of the case, handed over to him two sealed parcels said to contain blood stained cotton , one sealed parcel said to contain a hatchet , two sealed parcels said to contain empty shells of bullets, one sealed parcel said to contain live bullets, a shoe, a string of shalwar, six casts of foot prints and the last worn clothes of the deceased and on 21.10.2012, he handed over the said parcels to Muzammil Hussain, ASI (PW-3) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore, however, the said parcels were returned and subsequently on 16.12.2012, the two sealed parcels said to contain the empties were handed over to Liaquat Ali 70/C (PW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Ijaz Ali, ASI (PW-10) further stated that on 27.12.2012, the Investigating Officer of the case of the case handed over to him two sealed parcels said to contain pistols and on 28.12.2012, the Investigating Officer of the case , handed over to him another sealed parcel said to contain a pistol which on 14.01.2013, he handed over all the said parcels to Liaquat Ali 70/C (PW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Afzal, (PW-11) stated that on 10.10.2012, he procured six casts of footprints of the accused from the place of occurrence which were taken into possession through recovery memo (Exh.PZ).

Abdul Waheed (PW-12) and Abdul Khaliq (PW-13) stated that on 20.12.2012,

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Abdul Rauf (since acquitted), the co-accused of the appellants, confessed before them of having committed the occurrence with the appellants. Muhammad Sharif (PW-14) and Abdul Hameed (PW-15) stated that on 21.12.2012, Munir Hussain (since acquitted), the co-accused of the appellants, confessed before them of having committed the occurrence with the appellants. Shamas Husnain Khan Sial, Magistrate (PW-18) got conducted the test identification parade proceedings on 18.12.2012 held to establish the identities of the appellants and prepared his report (Exh.PGG). Muhammad Afzal, SI (PW-19) investigated the case from 10.10.2012 till 09.02.2013, arrested the appellants namely Muhammad Bilal alias Mithu and Aman Ullah on 13.12.2012 and arrested the appellant namely Liaquat alias Liaqu on 17.12.2012 and detailed the facts of his investigation in his statement before the learned trial court.

6.The prosecution got Dr. Muhammad Tariq (PW-9) examined who, on 10.10.2012, was posted as Medical Officer at RHC Chowk Azam and on the same day conducted the postmortem examination of the dead body of Tahir Majeed son of Abdul Majeed (deceased). Dr. Muhammad Tariq (PW-9), on examining the dead body of the deceased namely Abdul Majeed son of Haji Sher Muhammad, observed as under:-

“EXTERNAL INJURIES

1.1 cm X 1 cm circular wound at abdomen, 5 cm above from amblicus (sic) and 3 cm left lateral to the mid line. Blackening was not present. Margins were inverted. Blood was oozing from the wound and it was a wound of entry.

2.1.5 cm X 1 cm oval wound at the back, 4 cm right lateral to the mid line, 2 cm above the iliac crest. Margins were everted. It was the exit wound of injury No.1

3.A lacerated wound 1 cm x 1 cm at the lateral aspect of middle of left buttock. Margins were inverted. Blackning was present. It was a wound of entry by a second fire.

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4.1.5 cm X 1 cm lacerated wound at the posterior aspect of left buttock 8 cm below from the left iliac crest. Margins were everted. It was exit wound of injury No.3.

In my opinion, the injuries were caused by firearm. Cause of death was injury to abdomen by firearm that resulted in excessive hemorrhage followed by shock and death.

Time elapsed between injuries and death was immediately whereas between death and post-mortem was about four hours..”

Dr. Muhammad Tariq (PW-9), on 10.10.2012, also conducted the postmortem examination of the dead body of Abdul Majeed son of Haji Sher Muhammad (deceased). Dr. Muhammad Tariq (PW-9), on examining the dead body of the deceased namely Abdul Majeed son of Haji Sher Muhammad, observed as under:- “An abrasion of 1 cm X 1 cm present on the middle of skull Blood was oozing out from mouth.

External injuries were as under:

1.A circular wound 1 cm X 1 cm in front of chest, in mid line, 3 cm below sternal notch. Blackening was present. Margins were inverted. It was entry wound. Fracture of sternum at the site of injury was present.

2.An oval shaped wound of 1.5 cm X 1.5 cm at the right lateral aspect of middle of neck, 4 cm below from right ear pinna. Margins were everted. Blood was oozing, communicating with injury No.1 and it was exit wound of injury No.1.

3.A lacerated wound 1 cm X 1 cm at the lower end of scapula 6 cm right lateral to the mid line and it was skin deep.

In my opinion, injuries were ante-mortem caused by firearm.The cause of death was injury to right lung and right carotid vessel that resulted in excessive hemorrhage followed by shock and death.

Death occurred immediately after sustaining the injuries. However, duration between death and post-mortem was about 5 and half hours.”

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Dr. Muhammad Tariq (PW-9) added that on 10.10.2012 he also examined Asif Majeed (PW-17) ,however no Medico Legal Examination Certificate was issued as Asif Majeed (PW-17) was not willing to get his Medico Legal Examination Certificate prepared.

Dr. Muhammad Tariq (PW-9) further stated that on 27.12.2012 he also examined the appellant namely Muhammad Bilal alias Mithu son of Abdul Jabbar and on examining the appellant namely Muhammad Bilal alias Mithu, he observed as under:- “1. A scar of 03 X 0.3 cm of healed wound at the medial aspect of palmer side of left hand and wrist joint

2.A scar of 1 X 0.5 cm of healed wound at the palmer aspect of metacarpophalyngeal (sic) joint of left index finger

3.A scar of 07 cm X 1 cm of healed wound at the antrolateral aspect of right thigh, 12 cm below from the right anterior superior iliac spine.

All the wounds were liner so these may be due to sharp edged weapon but depth and duration of injuries cannot be assessed at the time of examination.”

7.On 24.02.2015, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Shafique, 207/C as being unnecessary.

On 01.04.2015, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Irshad as being un-necessary. On 28.04.2015, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Sher Muhammad 448/C as being unnecessary. On 18.11.2015, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Ghulam Fareed and Ghulam Yasin as being unnecessary. On 10.02.2016, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Gulzar Ahmad as being unnecessary. On 11.05.2016, the learned Deputy

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District Public Prosecutor gave up the prosecution witness namely Muhammad Ramzan as being mentally incapacitated. On 10.01.2018,the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Kashif Majeed, Muhammad Saleem, SI, Nadeem Iqbal and Zafar Iqbal as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PPP) regarding the analysis of the blood taken from the place of occurrence and the report of the Punjab Forensic Science Agency, Lahore (Exh.PQQ) regarding the comparison of the recovered weapons with the empty shells of the bullets taken from the place of occurrence.

8.The learned trial court also recorded the statement of Zawar Hussain (CW-

1)who stated that he had exchanged a mobile phone with the appellant namely Muhammad Bilal alias Mithu.

9.After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad replied that they were innocent and had been falsely involved in the case due to suspicion. The appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad further stated that they

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had not committed any offence and were not involved in the occurrence in any manner. The appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar, Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.

10.On the conclusion of the trial, the learned Additional Sessions Judge, Layyah, convicted and sentenced the appellants as referred to above.

11.The contention of the learned counsel for the appellants precisely is that the whole case is fabricated and false. The learned counsel for the appellants submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellants further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also submitted that the appellants had no connection with the occurrence. 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.

12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that the prosecution has proved its case beyond the shadow of any uncertainty by producing independent witnesses. The learned Deputy Prosecutor General along

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with the learned counsel appearing on behalf of the complainant of the case further argued that the appellants were responsible for the deaths of two innocent persons while committing dacoity. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the recoveries from the appellants also corroborated the prosecution account.

The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case prayed for the rejection of appeals.

13.We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant of the case and with their assistance perused the record and evidence recorded during the trial.

14.It was indeed an unfortunate incident wherein, during dacoity, Asif Majeed (PW-17), the complainant of the case, lost both his father namely Abdul Majeed (deceased) and his brother namely Tahir Majeed (deceased), however, the fact remains that the names of the assailants were not mentioned in the oral statement (Exh.PC) as got recorded by Asif Majeed (PW-17) to Muhammad Afzal, SI (PW- 19), the Investigating Officer of the case and the formal F.I.R (Exh.PC/1) was lodged against unknown accused persons. The prosecution, in order to prove the identities of the appellants as being the accused involved in the occurrence, got Sajida Afzal (PW-16) and Asif Majeed (PW-17) examined, who both stated that on

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18.12.2012 they had identified the appellants during the test identification parade proceedings held to establish the identities of the appellants. Facts which establish the identity of any person whose identity is relevant are, by virtue of Article 22 of the Qanun-e-Shahadat, 1984, always relevant. The term 'identification' means proving that a person before the Court is the very same that he is alleged, charged or reputed to be. Identification is almost always a matter of opinion or belief. With regard to a criminal offence, identification has a two-fold object: first, to satisfy the investigating authorities, before sending a case for trial to court, that the person arrested, but not previously known to the witnesses, was the one or those who committed the crime,; second, to satisfy the court that the accused was the real offender concerned with the crime. Identification proceedings are therefore as much in the interest of the prosecution as in the interest of the accused. An identification parade is held in the course of investigation of an offence for the purpose of enabling the witnesses to identify the persons who are concerned with the offence; they are not held merely for the purpose of identifying persons irrespective of their connection with the offence; the witnesses are explained the purpose of holding these parades and are asked to identify the persons which are concerned in the offence. But it is obvious that if before the court a witness pointed to a stranger and stated that he was the offender, there would be no guarantee of the truth of his assertion. Consequently, in order to have some assurance of truth, a test identification is held , that is to say, the witness at an earlier stage is confronted with the alleged offender, not standing alone but mixed with a number of innocent persons of the same age-group and of similar build and features. That is to say, it is to give credence to the evidence of a witness who does not know the accused from before, subsequent to the commission of the offence, that a test identification is

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held, since, without it, the evidence of the witness concerned would have little value. Of course, the substantive evidence, i.e., evidence on which alone the court can base its order of conviction or acquittal, is that given by the witness before the court, but the value of deposition of a witness there of having identified the accused in the act of the crime is of little consequence. Before the Court can accept such identification as sufficient to establish the identity of the accused, it is very necessary that there be reliable corroborative evidence, and the corroborative evidence which the Court is entitled to accept in such cases is that of a test identification parade conducted with due precautions. In short, a test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the court. But of all evidence of fact, evidence about the identification of a stranger is perhaps the most elusive, and the Courts are generally agreed that the evidence of identification of a stranger based on a personal impression, even if the veracity of the witness is above board, should be approached with considerable caution, because a variety of conditions must be fulfilled before evidence based on the impression can become worthy of credence.

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 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

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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 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

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(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:-

(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;

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(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 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

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i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement in his report;

(l)and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness;

(m)the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and

(n)the Magistrate has to give a certificate at the end of his report in the form prescribed by. C.H.II.C. of Vol. III of Lahore High Court Rules and Orders.

24.The measures above listed should, however, not be taken as exhaustive of the steps which are required to be taken before, during and after the identification proceedings. All these requirements are no doubt mandatory but at the same time they are only illustrative of the precautions, which the Courts of law demand before some respect can be shown to the evidence 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.”

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We have failed to find a more elaborate illustration of the requirements and the safeguards necessary for holding a test identification parade than found in the above mentioned portion of the judgment passed in the said precedent case. We wholeheartedly approve the said requirements and safeguards which are to be meticulously followed and observed in all the test identification parades held in connection with criminal cases.”

15.Keeping in our minds the requirements and the safeguards necessary for holding a test identification parade as determined by the august Supreme Court of Pakistan, we have proceeded to examine the prosecution evidence. It is an admitted fact that the occurrence took place at about 02.00 a.m on 10.10.2012, therefore, it was necessary for the prosecution to have proved that there was sufficient light available at the place of occurrence which could have enabled the two prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) to have not only seen the accused but also to have enabled them to remember their features, which subsequently would form the basis of the correct identification of the accused involved in the occurrence , however, in the present case, no proof of availability of any light source was brought on record. No source of light, which could have been available at the place of occurrence, at the time of occurrence, allowing the witnesses to identify the assailants, during the occurrence as well later during the test identification parade proceedings, was taken into possession by the Investigating Officer of the case namely Muhammad Afzal, SI (PW-19) nor any such source of light was produced before the learned trial court, despite the fact that as per prosecution’s own claim, the occurrence had taken place at about 2.00 a.m. (night) on 10.10.2012, in the dead of the night. Muhammad Afzal, SI (PW- 19), the Investigating Officer of the case, during his investigation , did not take into

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possession any article so as to prove that sufficient light was present at the place of occurrence, at the time of occurrence for the witnesses to have made such a positive identity of the assailants at the time of occurrence which could have enabled them to subsequently identify the said assailants during the test identification parade proceedings nor the witnesses themselves produced any such source of light during the investigation of the case or even during the trial. Being conscious of this flaw in the prosecution case, the prosecution witness namely Asif Majeed (PW-17) made a dishonest improvement in his previous statement and while getting his statement recorded before the learned trial court, stated that the electric light bulb of the room, where the occurrence took place, was on and lit, however, Asif Majeed (PW-17) was duly confronted during cross-examination with the said blatant improvement made by him in his statement before the learned trial court and the learned trial court observed as under:- “I have stated before the Investigating Officer while recording of my statement - Exh.PC that light of my room was on. (Confronted with Exh.PC wherein nothing about light is mentioned). ”

We have also perused the scaled site plan of the place of occurrence as prepared by Nazar Abbas Patwari (PW-2) and the rough site plan of the place of occurrence as prepared by the Muhammad Afzal, SI (PW-19) and find that no source of light has been mentioned in the said site plans. Muhammad Afzal, SI (PW-19), the Investigating Officer, even did not mention the presence of any electric light bulb in the site plan of the place of occurrence (Exh.PHH) as prepared by him, though according to Asif Majeed (PW-17), the said site plan was prepared on his information and had Asif Majeed (PW-17) given any information to Muhammad Afzal, SI (PW-19) as to the presence of the electric bulb then the same would have

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been mentioned in the site plan (Exh.PHH) but the same was not and we won’t make any presumption in this regard. Moreover, Nazar Abbas Patwari (PW-2) admitted during cross-examination as under:-

“I have not shown the place of electric bulb in the site plan.”

As mentioned above, no such electric light bulb was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence. According to the prosecution evidence, Muhammad Afzal, SI (PW- 19), the Investigating Officer of the case, visited the place of occurrence after the occurrence but the electric light bulb, which was allegedly available and lighted at the place of occurrence , at the time of occurrence, was not taken into possession at the spot by the Investigating Officer alongwith other recoveries, though there was no occasion for the said electric bulb to have not been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer or it being not taken into possession by the Investigating Officer during his visit at the place of occurrence . The failure of Muhammad Afzal, SI (PW-19), the Investigating Officer, to take into possession the electric light bulb allegedly present at the place of occurrence and lighted up at the time of occurrence, proves that none was available and only an invented and false claim of such an electric light bulb being available was made by the said witnesses . The prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in murk . The very fact that there was sufficient light available at the place of occurrence which could have enabled the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) to have identified the assailants was not proved by the

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prosecution, hence, no reliance can be placed on the statements of the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) that they were able to identify the assailants at the time of occurrence and subsequently were able to match the features of the assailants during the test identification parade proceedings. Reliance is placed on the case of “Gulfam and another v. The State” (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised”

Reliance is also placed on the case of “Hameed Gul v. Tahir and two others” (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:-

“Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along.”

Reliance is also placed on the case of “Basar Vs. Zulfiqar Ali and others” (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:- “7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.

8.Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.”

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Reliance is also placed on the case of “Azhar Mehmood and others v. The State” (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:-

“It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case.”

Reliance is also placed on the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- “The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer.”

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, began to set the standard for reviewing eyewitness identification evidence Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony. US Supreme Court in the case of Manson v Brathwaite, UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another, New Jersey Supreme Court in State v Madison and Oregon Supreme Court in State v. Classen 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. The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape

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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". 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. System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control. Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research 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."

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.

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."

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.

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.

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.

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. New Jersey Supreme Court in State v. Henderson 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. Lawson.

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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. 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.”

Estimator variables are factors related to the witness , like distance, lighting, or stress during the occurrence which factors are directly related to the capacity of a witness to first observe and then to retain the features of the accused for him to subsequently remember them with such clarity so as to make a correct identification later during the test identification parade proceedings . The scientific research establishes that "estimator variables" negatively affect the memory process.In the tumult of the occurrence ,the possibility of false identification does exist . An assortment of Estimator variables can affect and cloud memory and lead to misidentifications. Such variables were admittedly available in this case. We also know that poor lighting makes it harder to see well. Thus, poor lighting conditions and in this case no light source being lit at the time of occurrence , extinguished the possibility of an identification by the witnesses of the accused in the circumstances.

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16.We have also noted with concern that it was the claim of the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) that during the occurrence , Asif Majeed (PW-17) was given not only an injury on his head by the assailants but his hands were also tied with the string of his shalwar, however, for no apparent reason , Asif Majeed (PW-17) , despite appearing before the Medical Officer, refused to get himself examined and also refused the preparation of Medico Legal Examination Certificate . Dr. Muhammad Tariq (PW-

9)stated that on 10.10.2012, he also examined Asif Majeed (PW-17) ,however no Medico Legal Examination Certificate was issued as Asif Majeed (PW-17) was not willing to get his Medico Legal Examination Certificate prepared. Dr. Muhammad Tariq (PW-9) during cross-examination, stated as under:- “The injured Asif Majeed with his free will was not willing for the issuance of MLC regarding said injury. ”

Similarly, Sajida Afzal (PW-16) also admitted during cross-examination that Asif Majeed (PW-17) was not examined by any Medical Officer and stated as under:- “It is correct that no medical examination of my husband regarding his sustaining of butt blow was conducted. ”

Asif Majeed (PW-17) also admitted during cross-examination that he himself refused to be examined by the Medical Officer. Asif Majeed (PW-17) , during cross-examination admitted as under:-

“It is correct that I had refused to get myself medically examined, although butt blow was made by the accused at my head. ”

This refusal of Asif Majeed (PW-17) to get himself examined by the Medical Officer has resulted in the failure of the prosecution to prove the assertion against

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the appellants that during the occurrence they had given a blow to Asif Majeed (PW-17) and that they had also tied his hands with a string of shalwar. Then it is also a fact that according to Muhammad Afzal, SI (PW-19) , the name of the complainant of the case namely Asif Majeed (PW-17) was not mentioned in either of the inquest reports (Exh.PV and Exh.PS) prepared regarding Abdul Majeed (deceased) or Tahir Majeed (deceased) in column No.4 or at page 4 as being the person present at the place of occurrence at the time of preparation of the said reports rather the names of Muhammad Afzal (PW-7) and Muhammad Irshad were mentioned in column No.4 and at page 4 of the inquest reports (Exh.PV and Exh.PS) . Muhammad Afzal, SI (PW-19) , the Investigating Officer of the case , also admitted during cross-examination as under:-

“It is correct that the name of the complainant is not mentioned in the inquest reports of both the deceased.”

This fact also creates a doubt with regard to the presence of Asif Majeed (PW-17), the complainant of the case ,at the place of occurrence. Moreover, Asif Majeed (PW-17) also admitted during cross-examination that he never reported the matter to the police during his stay at the place of occurrence , after the occurrence . Asif Majeed (PW-17) during cross-examination admitted as under:- “I had not informed the police from the place of occurrence about the occurrence. I am not aware about the person, who had informed the police from the spot about the occurrence. ”

Moreover, the prosecution witness namely Sajida Afzal (PW-16) was not mentioned as sleeping with Asif Majeed (PW-17) at the time when the assailants broke into the house where the occurrence took place in the oral statement

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(Exh.PC) of Asif Majeed (PW-17) recorded by Muhammad Afzal, SI (PW-19).

Being mindful of this fact, the prosecution witness namely Asif Majeed (PW-17) made an unfair improvement in his previous statement and while getting his statement recorded before the learned trial court, stated that Sajida Afzal (PW-16) was sleeping with him, however, Asif Majeed (PW-17) was duly confronted during cross-examination with the said blatant improvement made by him in his statement before the learned trial court and the learned trial court observed as under:- “I have stated before the Investigating Officer while recording of my statement Exh.PC that on 10.10.2012, at 2.00 a.m., I was sleeping in my bedroom alongwith my wife and a minor daughter. (Confronted with Exh.PC wherein presence of the minor and wife is not mentioned).” (emphasis supplied) Furthermore , Sajida Afzal (PW-16) also admitted that she had given birth to a child only twenty five days prior to the occurrence and the house of her parents was just one kilometer from the place of occurrence, therefore, the claim that she was not residing with her parents after the birth of her child, contrary to the prevalent custom, makes her claim doubtful. Coupled with this is the fact that the mother in-law of Sajida Afzal (PW-16) , who allegedly was present at the place of occurrence, never joined the investigation of the case. Asif Majeed (PW-17) during cross-examination stated as under:-

“I was married to Asif Majeed complainant of the instant case on 25.11.2011 i.e.

about 11 months prior to the instant occurrence. My daughter was born about 25 days prior to the instant occurrence. The house of my parents is about one kilometer from the place of occurrence. My parents are alive. It is correct that my deceased father-in-law had contracted second marriage also. My first mother-in-law is still alive. The house of parents of my first mother in-law is at distance of 6/7 k.ms.

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from the house of my in-laws. At the time of occurrence, my first mother-in-law was also present at the place of occurrence. It is correct that neither my first mother-in-law neither joined the instigation of the instant case, nor she herself got recorded any statement before the Investigating Officer. ” (emphasis supplied) All these facts mentioned above, raise serious doubts regarding the presence of the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) at the place of occurrence.

17.We have also noted with grave concern that Shamas Hussain Khan Sial, Magistrate (PW-18) ,who got conducted the test identification parade proceedings on 18.12.2012 to establish the identities of the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Aman Ullah son of Shah Muhammad and Liaquat Ali alias Liaqu son of Maqsood Ahmad and prepared his report (Exh.PGG), did not mention any names, parentage , ages, occupation, complexion, height, weight, presence or absence of facial hair or even the number of the dummies which were being used during the test identification parade proceedings and of the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar, Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad who were to be identified, which observations were necessary to rule out any possibility of collusion and helping out the witnesses by making the appellants stand out during the test identification parade proceedings. As mentioned above, the august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 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:-

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“(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;”

We ourselves have examined the report (Exh.PGG) as prepared by Shamas Hussain Khan Sial, Magistrate (PW-18) ,who got conducted the test identification parade proceedings on 18.12.2012 held to establish the identities of the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Aman Ullah son of Shah Muhammad and Liaquat Ali alias Liaqu son of Maqsood Ahmad and find that Shamas Hussain Khan Sial, Magistrate (PW-18), did not mention the age, height, complexion , weight , occupation of the participants of the test identification parade proceedings or the fact whether they had facial hair or otherwise. Shamas Hussain Khan Sial, Magistrate (PW-18) during cross- examination admitted as under:-

“In my report Exh.PGG, I had neither mentioned specific features, age or any mark of identification of the accused, nor of the dummies Similarly, I had also not mentioned names of the dummies, who were present at the time of identification parade of the accused, in the report.”

Such test identification parade proceedings , as held in this case, 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

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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 367)”.

18.We have also noted with grave concern that during the test identification parade proceedings held on 18.12.2012, all the three accused were identified in the same test identification parade proceedings without holding of separate test identification parade proceedings with regard to establishing the identity of each accused. We ourselves have examined the report (Exh.PGG) as prepared by Shamas Hussain Khan Sial, Magistrate (PW-18), who got conducted the test identification parade proceedings on 18.12.2012 with regard to the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Aman Ullah son of Shah Muhammad , Liaquat Ali alias Liaqu son of Maqsood Ahmad and find that all the three appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Aman Ullah son of Shah Muhammad , Liaquat Ali alias Liaqu son of Maqsood Ahmad were made to sit in the same space along with the dummies . Shamas Hussain Khan Sial, Magistrate (PW-18) during cross-examination admitted as under:-

“All the accused were made to sit in three rows at the same time,....”

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

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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;”

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.”

19.We have also noted with grave concern that the witnesses who joined the test identification parade proceedings (Exh.PGG ) held on 18.12.2012 with regard to the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Aman Ullah son of Shah Muhammad , Liaquat Ali alias Liaqu son of Maqsood Ahmad,

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did not mention any role of any of the appellants during the occurrence while identifying them during the test identification parade proceedings . During the test identification parade proceedings (Exh.PGG) held on 18.12.2012 with regard to the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar, Aman Ullah son of Shah Muhammad , Liaquat Ali alias Liaqu son of Maqsood Ahmad , the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) simply pointed towards the appellants without disclosing anything regarding their role in the occurrence. Shamas Hussain Khan Sial, Magistrate (PW-18) during cross-examination admitted as under:-

“It is correct that during identification parade, none of the accused was identified by his role, allegedly played by him during commission of the offence..”

The prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) were also confronted during cross-examination with the fact that they had not mentioned the role of any of the appellants with regard to which they were identifying them. The prosecution witness namely Sajida Afzal (PW-16) made blatant improvements in her statement in this regard and during cross-examination the learned trial court observed as under:-

“I have stated before the learned Magistrate who supervised/conducted identification parade that the accused Liaqat and Aman Ullah made fires upon my brother-in-law whereas the accused Muhammad Bilal made two fires upon my father-in-law, volunteered I have also stated before the police the respective roles of the accused persons. (At this stage, identification proceedings have been perused where no such statements of the witness describing specific roles to the accused

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after identification of the accused stands mentioned in Exh.PGG). ” (emphasis supplied)

Similarly, Asif Majeed (PW-17) also made obvious improvements in his statement in this regard and during cross-examination the learned trial court observed as under:-

“I have stated before the learned Magistrate, conducting identification parade about the respective roles of the accused persons, volunteered I also informed the Investigating Officer after identification parade about the roles of the accused persons. (Confronted with Exh.PGG where no such like statement is available). (emphasis supplied) .

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. . The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. Such kind of test identification proceedings where the part played by the accused is not given, 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

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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.”

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

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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 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).”

20.Another matter of concern for us is that while holding the test identification parade proceedings, Shamas Hussain Khan Sial, Magistrate (PW-18) did not mention the date since when the accused had been arrested and sent to the judicial lock up for the purpose of holding of test identification parade proceedings. As mentioned above, the august Supreme Court of Pakistan in the case of “Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018” reported as PLJ 2019 SC (Cr.C) 153 has mentioned the necessities and precautions which are to be punctiliously followed while holding the test identification parade proceedings and one of the necessity is as under:- “(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;”

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We ourselves have examined the report (Exh.PGG) as prepared by Shamas Hussain Khan Sial, Magistrate (PW-18), who got conducted the test identification parade proceedings on 18.12.2012 with regard to the appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad and find that Shamas Hussain Khan Sial, Magistrate (PW-18) did not mention the date since when the accused had been sent to the Jail for the purpose of test identification parade proceedings. Shamas Hussain Khan Sial, Magistrate (PW-18) also admitted that he did not examine the jail record of the visitors to ensure that the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) had not visited the jail premises prior to test identification parade proceedings . Shamas Hussain Khan Sial, Magistrate (PW-18) during cross-examination stated as under :- “Prior to conduct of identification parade, I had not examined the jail record in order to satisfy myself whether any visitor had met with the accused or not during the last 5/6 days.”

All these facts open up the possibility that the accused were exposed to be viewed by the witnesses prior to the holding of the test identification parade proceedings, rendering the whole proceedings irrelevant with regard to establishing the identities of the appellants. Before us the entire case depends on the identification of the appellants and this identification is founded solely on test identification parade. The learned trial court does not seem to have correctly appreciated the evidentiary value of test identification parade proceedings though they were considered to be the primary evidence in support of the prosecution case. The learned trial court seems to have proceeded on the erroneous legal assumption that it is a substantive piece of evidence and that on the basis of that evidence alone the

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conviction can be sustained. Then the learned trial court also ignored important evidence on the record in regard to the manner in which the test identification parade proceedings were held, and other connected circumstances suggesting that they were held more or less in a mechanical way without the necessary precautions being taken to eliminate unfairness. This is clearly an erroneous way of' dealing with the test identification parade and has caused failure of justice. The learned Deputy Prosecutor General laid great emphasis on the fact that there is no enmity shown between the witnesses and the appellants. In our opinion, though this factor is relevant it cannot serve as a substitute for reliable admissible evidence required to establish the guilt of the accused beyond reasonable doubt. The evidence in regard to identification having been discarded by us as legally infirm and which does not connect the appellants with the alleged offences, it cannot by itself sustain the conviction of the appellants.

21.We have also scrutinized the statements of the prosecution witnesses namely Abdul Waheed (PW-12) and Abdul Khaliq (PW-13) who stated that on 20.12.2012, Abdul Rauf (since acquitted), the co-accused of the appellants, confessed before them of having committed the occurrence with the appellants and the statements of the prosecution witnesses namely Muhammad Sharif (PW-14) and Abdul Hameed (PW-15) who stated that on 21.12.2012, Munir Hussain (since acquitted), the co-accused of the appellants, confessed before them of having committed the occurrence with the appellants. As mentioned above, both Abdul Rauf and Munir Hussain, the co-accused of the appellants, were acquitted by the learned trial court. We find that the statements of the prosecution witnesses namely Muhammad Sharif (PW-14), Abdul Hameed (PW-15), Abdul Waheed (PW-12)

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and Abdul Khaliq (PW-13) were rightly disbelieved by the learned trial court . We find that it was admitted by Muhammad Afzal, SI (PW-19) , the Investigating Officer of the case , that prior to 20.12.2012, neither the complainant, nor any other prosecution witness had got recorded any statement implicating Abdul Rauf and Munir Hussain(both since acquitted), the co-accused of the appellants , meaning thereby, that till 20.12.2012, there did not exist any evidence against Abdul Rauf and Munir Hussain (both since acquitted), the co-accused of the appellants, therefore no reason existed for them to have made confessions before the prosecution witnesses namely Muhammad Sharif (PW-14) , Abdul Hameed (PW- 15),Abdul Waheed (PW-12) and Abdul Khaliq (PW-13) on 20.12.2012 and 21.12.2012. Admittedly, till then, neither any incriminating material was brought on the record, nor Abdul Rauf and Munir Hussain (both since acquitted), the co- accused of the appellants, were under any imminent fear of their arrest in the instant case therefore, it does not appeal to a prudent mind that in such circumstances, Abdul Rauf and Munir Hussain (both since acquitted), the co- accused of the appellants, would have confessed and sought clemency. Moreover, the alleged confessions of Abdul Rauf and Munir Hussain (both since acquitted), the co-accused of the appellants, were also contradictory. According to the prosecution witnesses namely Abdul Waheed (PW-12) and Abdul Khaliq (PW-13), Abdul Rauf (since acquitted), the co-accused of the appellants, stated before them that Munir Hussain (since acquitted), the co-accused of the appellants, was taken on a car to the house of relatives of the appellant namely Aman Ullah and after leaving him there Abdul Rauf (since acquitted), the co-accused of the appellants returned to the place of their hiding but subsequently Abdul Rauf (since acquitted) stated that after the occurrence he called Munir Hussain (since acquitted) to bring

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the car , though the car was already with Abdul Rauf (since acquitted). Then no effort was made by the prosecution witnesses namely Abdul Waheed (PW-12) and Abdul Khaliq (PW-13) to apprehend Abdul Rauf (since acquitted), the co-accused of the appellants, and hand him over the police after he had allegedly confessed, though Abdul Rauf (since acquitted) was admittedly not even armed with any weapon which could have put fear in the hearts of Abdul Waheed (PW-12) and Abdul Khaliq (PW-13) and stopped them from arresting Abdul Rauf (since acquitted) . Similarly, the prosecution witnesses namely Muhammad Sharif (PW-

14), Abdul Hameed (PW-15), both closely related to the deceased , also made no effort to detain Munir Hussain (since acquitted), the co-accused of the appellants, and hand him over the police after he had confessed, though Munir Hussain (since acquitted) too was admittedly not even armed. Then the prosecution witnesses namely Muhammad Sharif (PW-14), Abdul Hameed (PW-15),Abdul Waheed (PW-12) and Abdul Khaliq (PW-13) got recorded their statements under section 161 of the Code of Criminal Procedure, 1898 with unexplained delay. According to Article 43 of the Qanun-e-Shahadat Order, 1984, the confession of a co-accused can be considered as circumstantial evidence against another accused, however, only when the said confession is proved. In this case, the prosecution failed to prove that Abdul Rauf and Munir Hussain (both since acquitted), the co-accused of the appellants, made any confessions before the witnesses , therefore, as the said confessions of Abdul Rauf and Munir Hussain (both since acquitted) themselves were not proved, hence, they cannot be considered as circumstantial evidence against the appellants. Therefore, the evidence of the prosecution witnesses namely Muhammad Sharif (PW-14), Abdul Hameed (PW-15), Abdul Waheed (PW-12) and Abdul Khaliq (PW-13) has no value and does not prove any fact in issue.

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22.We have also noted that though according to the prosecution witness namely Muhammad Afzal, (PW-11) stated on 10.10.2012 he procured six casts of footprints of the accused from the place of occurrence which were taken into possession through recovery memo (Exh.PZ), however, Muhammad Afzal, SI (PW-

19), the Investigating Officer of the case , made no effort to match the footprints of the appellants with those which were procured from the place of occurrence , though it could have provided sufficient support to the prosecution case.

Muhammad Afzal, SI (PW-19) during cross-examination admitted as under:- “It is correct that I had not get compared the foot prints, taken by me from the place of occurrence, with the foot prints of acted persons present in the court.”

23.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the fact that after the appellant namely Muhammad Bilal alias Mithu was arrested, he was examined by Dr. Muhammad Tariq, (PW-9) on 27.12.2012 and Dr. Muhammad Tariq, (PW-9) observed presence of three healed wounds present on the palmer side of left hand and wrist joint, the palmer aspect of metacarpophalangeal(MCP) joint of left index finger and on the anterolateral aspect of right thigh, which according to the learned Deputy Prosecutor General and the learned counsel for the complainant, the appellant namely Muhammad Bilal alias Mithu had suffered at the hands of the deceased namely Abdul Majeed during the occurrence. The observation of three healed wounds present on the body of the appellant namely Muhammad Bilal alias Mithu by Dr. Muhammad Tariq, (PW-9) cannot be equated with the prosecution assertion that the same were suffered by the appellant namely Muhammad Bilal alias Mithu at the hands of the deceased namely Abdul Majeed during the occurrence for the reason that according to the prosecution witnesses namely Sajida Afzal (PW-16)

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and Asif Majeed (PW-17), Abdul Majeed (deceased) had only given one blow to the appellant namely Muhammad Bilal alias Mithu hitting him on his left arm, whereas Dr. Muhammad Tariq, (PW-9) observed three wounds. Moreover, Dr.

Muhammad Tariq (PW-9) himself opined that the duration of the injuries observed on the body of the appellant namely Muhammad Bilal alias Mithu could not be determined. Dr. Muhammad Tariq, (PW-9) opined as under:- “All the wounds were liner so these may be due to sharp edged weapon but depth and duration of injuries cannot be assessed at the time of examination.”

(emphasis supplied)

When the prosecution witnesses themselves remained unable to prove that the injuries as observed by Dr. Muhammad Tariq (PW-9) on the body of the appellant namely Muhammad Bilal alias Mithu were indeed the injuries suffered by him during the occurrence , the same cannot be considered as relevant to prove any fact. Coupled with this is the fact that on 15.10.2012 a dead body was recovered during the course of investigation of the instant case and that dead body also had a mark of one injury on the shoulder and Muhammad Afzal, SI (PW-19) , the Investigating Officer of the case , summoned Asif Majeed (PW-17) and Kashif Majeed (given up pw), who got recorded their statements to the Investigating Officer of the case that the said dead body might well be of the accused who was injured during the occurrence. Muhammad Afzal, SI (PW-19) during the cross- examination stated as under:-

“It is correct that an unknown dead body was recovered on 15.10.2012 from Hayyat canal. It is correct that I had summoned Asif Majeed complainant and PW Kashif Majeed to identify the said unknown dead body. It is correct that according to the statements, made by the aforementioned PWS, the dead body was not identifiable,

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however, both the PWS stated before me that this might be the dead body of the accused, who was injured by his father with hatchet during the occurrence.

It is correct that the unknown identifiable dead body was having a deep wound on the left shoulder and bone was also exposed.” (emphasis supplied) The above mentioned statement of Muhammad Afzal, SI (PW-19) , Investigating Officer of the case , also further puts in doubt the prosecution case against the appellants.

24.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recoveries of weapons made from the appellants and the report of the Punjab Forensic Science Agency, Lahore (Exh.PQQ) and have submitted that the said recoveries from the appellants offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) .The recovery of the pistol (P-20) having two bullets (P-21/1-2) from the appellant namely Liaquat Ali alias Liaqu and the recovery of the pistol (P-22) and a live bullet (P-23) from the appellant namely Muhammad Bilal alias Mithu and the recovery of the pistol (P-24) and three live bullets (P-25/1-3) from the appellant namely Aman Ullah cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol (P-20) having two bullets (P-21/1-2) from the appellant namely Liaquat Ali alias Liaqu and the recovery of the pistol (P-22) and a live bullet (P-23) from the appellant namely Muhammad Bilal alias Mithu and the recovery of the pistol (P-24) and three live bullets (P-25/1-3) from the appellant namely Aman Ullah , which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recoveries cannot be used as

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incriminating evidence against the appellants, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence.The provisions of section 103 Code of Criminal Procedure, 1898 , unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:-

"103.--(1) Before making a search. under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

The prosecution witness namely Sagheer Ahmad 779/C (PW-8) during cross examination, admitted as under :-

“Neither lumbardar nor councilor or any other resident of locality was called by the I.O. to join the recovery proceeding.”.

Moreover,the prosecution witness namely Sagheer Ahmad 779/C (PW-8) also admitted that the recovery of the pistol (P-22) and a live bullet (P-23) from the appellant namely Muhammad Bilal alias Mithu was made from a place which was open to easy public access. Sagheer Ahmad 779/C (PW-8) during cross- examination stated as under:-

“The place of recovery was in "Khola Numa" room and same was not resident (sic) of said Muhammad Ashraf. Said "Khola Numa" room was having no door but it was open entrance.

There are number of ammunition shops at Chowk Azam and pistol like P- 22 is easily available in aforesaid shops.”

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Therefore the evidence of the recovery of the pistol (P-20) having two bullets (P- 21/1-2) from the appellant namely Liaquat Ali alias Liaqu and the recovery of the pistol (P-22) and a live bullet (P-23) from the appellant namely Muhammad Bilal alias Mithu and the recovery of the pistol (P-24) and three live bullets (P-25/1-3) from the appellant namely Aman Ullah cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and 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, Muhammad Afzal, SI (PW-19) arrested the appellants namely Muhammad Bilal alias Mithu and Aman Ullah on 13.12.2012 and arrested the appellant namely Liaquat alias Liaqu on 17.12.2012 however the empties taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency, Lahore on 17.12.2012 and there was no reason for keeping the empties, which were taken into possession of 10.10.2012, at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till after the appellants had been arrested. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. P.QQ.) has no evidentiary value as possibility of fabrication is apparent. 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:-

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“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 F.S.L. is of no avail to the prosecution and is inconsequential.”

We have also noted that the prosecution failed to establish the safe custody of the empty shells of the bullets from the place of recovery to the police station and from the Police Station to the Punjab Forensic Science Agency, Lahore.According to the prosecution witness namely Ijaz Ali, ASI (PW-10), on 10.10.2012 the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained cotton , one sealed parcel said to contain a hatchet , two sealed parcels said to contain empties, one sealed parcel said to contain live bullets, a shoe, a string of shalwar, six casts of foot prints and the last worn clothes of the deceased and on 21.10.2012, he handed over the said parcels to Muzammil Hussain, ASI (PW-3) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore, however, the said parcels were returned and subsequently on 16.12.2012, the two sealed parcels said to contain the empties were handed over to Liaquat Ali 70/C (PW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore, however Muzammil Hussain, ASI (PW-3) made an entirely different statement and stated that he was only handed over one sealed parcel said to contain blood stained cotton and one sealed parcel said to contain blood stained hatchet for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and did not make any statement of being handed over any parcels containing empty shells of the bullets recovered from the place of occurrence. None of the above mentioned prosecution witnesses were not declared hostile nor the said prosecution witnesses were re-examined by the prosecutor. Therefore, it is proved

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on record that the safe custody and safe transmission of the empty shells of the bullets from the place of occurrence to the police station and from the Police Station to the Punjab Forensic Science Agency, Lahore could not be proved. Ijaz Ali, ASI (PW-10) further stated that on 27.12.2012, the Investigating Officer of the case of the case handed over to him two sealed parcels said to contain pistols and on 28.12.2012, the Investigating Officer of the case , handed over to him another sealed parcel said to contain a pistol, whereas according to the prosecution case on 26.12.2012, the appellant namely Liaquat Ali alias Liaqu got recovered a pistol (P-20) having two bullets (P-21/1-2), whereas on 27.12.2012, the appellant namely Muhammad Bilal alias Mithu got recovered a pistol (P-22) and a live bullet (P-23) and on 27.12.2012, the appellant namely Aman Ullah got recovered a pistol (P-24) and three live bullets (P-25/1-3). It has not been explained by the Investigating Officer of the case , as to why he did not hand over the recovered weapons to Ijaz Ali, ASI (PW-10) for keeping them in safe custody on the days when they were recovered.

25.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recoveries from the appellant namely Muhammad Bilal alias Mithu of the mobile phone device (P-17) and another mobile phone device (P-18) and the recovery of the mobile phone device (P-19) from the appellant namely Aman Ullah and have submitted that the said recoveries from the appellants offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Sajida Afzal (PW-16) and Asif Majeed (PW-17) . With regard to the recovery of the mobile phone device (P-17) and another mobile phone device (P-18) from the appellant namely Muhammad Bilal alias Mithu and the recovery of the mobile

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phone device (P-19) from the appellant namely Aman Ullah ,it has been noted by us that the prosecution failed to prove as to how the said recovered mobile phone devices were proof of any fact in issue. The prosecution witness namely Asif Majeed (PW-17) admitted during cross-examination that he did not produce any proof of ownership of the mobile phone devices recovered from the appellants.

Asif Majeed (PW-17) during cross-examination admitted as under:- “I did not produce any proof of ownership of mobile phone NOKIA before the Investigating Officer. It is correct that mobile phone NOKIA is an ordinary mobile phone and is easily available in the market” Moreover, the mobile phone devices were never sent to the Punjab Forensic Science Agency, Lahore for their analysis. Only the Forensic Analyst could have determined if any Subscriber Identification Module having the mobile phone number registered in the name of Asif Majeed (PW-17) was being used through the mobile phone having the International Mobile Equipment Identity (IMEI) same as of the mobile phone which was recovered. The statement of Zawar Hussain (CW-1) that he had exchanged a mobile phone with the appellant namely Muhammad Bilal alias Mithu also has no relevance for the reason that the recovered mobile phone devices were never sent to the Punjab Forensic Science Agency, Lahore for analysis. Therefore, the recoveries from the appellant namely Muhammad Bilal alias Mithu of the mobile phone device (P-17) and another mobile phone device (P-18) and the recovery of the mobile phone device (P-19) from the appellant namely Aman Ullah does not prove any fact in issue. Even otherwise it is an admitted rule of appreciation of evidence that recovery is only a supportive piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.

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26.The prosecution has also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the appellants. No voice call record data or its transcript has been brought on record relating to any mobile phone and the Subscriber Identification Module (SIM) card recovered during the investigation of the case. Inam ul Haq, ASI (PW-6) stated that on 05.12.2012, he prepared the report having eight pages (P-5 to P12) related to the use of mobile phone number 0334 6962291 and on 09.12.2012, he prepared a report having nine pages (P-13/1-9) related to the use of mobile phone number 0301 6709850 and on 09.02.2013 he prepared the report having nineteen pages (P-14/1-19) related to the use of mobile phone number 0342 7252464 and prepared another report having 28 pages (P-15/1-28) related to the use of mobile phone number 0346 4945409 and prepared another report having 20 pages (P-16/1-20) related to the use of mobile phone number 0341 6242131 and handed over all the said reports to the Investigating Officer of the case. The National Database and Registration Authority (NADRA) has provided a solution for online identification of individuals called Verification System E-VeriSys. This system can authenticate and verify Computerized National Identification Cards (CNIC). The E-VeriSys database is CNIC centric. No record has been produced by the prosecution related to the Computerized National Identification Cards (CNIC) of the appellants to prove that the mobile phone numbers used in the recovered mobile phones were registered in the name of any of the appellants. In absence of that proof, the mere production of Call Data Record is not relevant. As mentioned above, in absence of the voice call record or its transcript relating to the calls made and received from the recovered mobile phones, the mere recovery of the same does not prove any fact relevant to prove the charge against the accused. Reliance is placed on the

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case of “Azeem Khan and another Vs. Mujahid Khan and others” (2016 SCMR 274), wherein, it has been held as under:-

“The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner.”

27.The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence.

As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellants’ conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

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

The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court 600) has enunciated the following principle of law:

“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut

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their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”

28.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). 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

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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 record appears to have been fabricated to prove the prosecution case. Even otherwise the prosecution 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 eyes of the law in view of the principles laid down by the august Supreme Court of Pakistan 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 of the Islamic Republic of Pakistan,1973 which provides that every citizen of the country shall be dealt with in accordance with the law.

29.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Muhammad Bilal alias

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Mithu son of Abdul Jabbar, Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad 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 a 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. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been observed in as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi

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v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eyewitnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

30.For what has been discussed above, Criminal Appeal No. 109-J of 2018 lodged by the appellant namely Muhammad Bilal alias Mithu son of Abdul Jabbar is allowed. The Criminal Appeal No. 110-J of 2018 lodged by the appellant namely Liaquat Ali alias Liaqu son of Maqsood Ahmad is also allowed. The Criminal Appeal No. 111-J of 2018 lodged by the appellant namely Aman Ullah son of Shah Muhammad is likewise allowed. The conviction and sentences of Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad(appellants) awarded by the learned trial court through the impugned judgment dated 10.02.2018 are hereby set-aside. Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad (appellants) are ordered to be acquitted by extending them the benefit of doubt.

The appellants namely Muhammad Bilal alias Mithu son of Abdul Jabbar , Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad are in custody and they are directed to be released forthwith if not required in any other case.

31.Murder Reference No.24 of 2018 is answered in Negative and the sentences of death awarded to Muhammad Bilal alias Mithu son of Abdul Jabbar,

Murder Reference No.24 of 2018 Criminal Appeal No. 109-J of 2018 Criminal Appeal No. 110-J of 2018 Criminal Appeal No. 111-J of 2018 Liaquat Ali alias Liaqu son of Maqsood Ahmad and Aman Ullah son of Shah Muhammad, are Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

APPROVED FOR REPORTING

JUDGE. JUDGE