2023 Y L R 1094
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Gul Hassan Tareen, JJ
MUHIBULLAH and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeals Nos. 572, 580 and Criminal Revision Petition No. 24 of 2021, decided on
16th November, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 397--- Qanun- e-Shahadat (10 of 1984), Art. 22---Qatl -i-amd, robbery---
Appreciation of evidence ---Benefit of doubt ---Delay in conducting identification parade ---
Effect ---Accused was charged for committing murder of the brother of the complainant by
firing ---According to the statement of Judicial Magistrate, the identification parade was held
eight days after the arrest of accused persons ---Prosecution had not explained the delay
caused in conducting the identification parade of accused persons ---Identification parade of
the said accused persons was held in the Police Station where they were in custody during the investigation of the case ---Judicial Magistrate in his deposition bef ore the Court and in
the certificates, had not mentioned that at the time of identifying the said accused persons, the witnesses had described the role of each accused regarding the offence---Besides the witnesses in their S.161, Cr.P.C. statements had not furnished the physical as well as face
features and characteristics of each accused, therefore, the evidence of identification parade had lost its evidentiary value and relevance under Art. 22, the Qanun- e-Shahadat, 1984---
Circumstances established that the prosecution had failed to prove the case against the accused beyond shadow of doubt ---Appeal against conviction was allowed, in circumstances
and accused persons were acquitted.
Javed Khan alias Bacha and another v. The State 2017 SCMR 524; Mian Sohai l
Ahmed and others v. The State 2019 SCMR 956 and Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 22--- Identification parade ---Evidentiary value ---Identification parade is a weak type
of evidence and cannot form basis for sentencing an accused ---Identification parade merely
corroborates independent and direct piece of evidence for the purpose of proof of guilt of an
accused.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397--- Qatl-i-amd, robbery--- Appreciation of evidence ---Benefit of doubt ---
Recovery of mobile phone from the possession of accused--- Reliance--- Accused was charged
for committing murder of the brother of the complainant by firing--- Recovery of a cell phone
from the person al search of the accused allegedly belonging to the deceased, was not worth
considering, as the alleged recovered cell phone was a common mobile ---Prosecution had not
conducted identification of the recovered mobile from the complainant/brother of deceased,
uncle of deceased and the eye- witnesses--- Prosecution had not brought on record the IEMI
number of the recovered mobile ---Recovered cell phone was not identified by the witnesses --
-Alleged recovery was not put to the accused in his examination under S. 342, Cr.P.C., by the
Trial Court, which was violation of said provision of law ---Circumstances established that
the prosecution had failed to prove the case against the accused beyond shadow of doubt ---
Appeal against conviction was allowed, in circumstance s and accused persons were
acquitted.
Muhammad Shah v. The State 2010 SCMR 1009 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397--- Qatl-i-amd, robbery---Appreciation of evidence ---Benefit of doubt ---
Recovery of pistol, DSLR camera and motorcycle from the house of accused--- Reliance---
Accused was charged for committing murder of the brother of the complainant by firing---
Recovery of pistol, DSLR camera and motorcycle from the house of accused was not sufficient to prove the guilt ---As the recovered pistol was not matched with the secured
empty shell by the Forensic Science Laboratory which meant that the same was not used in the commission of offence ---So far as the DSLR camera was concerned, the identification of
the same was not conducted and was not recognized by the witness from whom it was
allegedly snatched by the accused persons ---Recovery of motorcycle was not a case property
as it was allegedly disclosed by the accused that the same was used on the day of incident for commission of offence ---Such statement was a confession before police which was not
admissible under Arts. 38 & 39 of Qanun- e-Shahadat, 1984---Circumstances established that
the prosecution had failed to prove the case against the accused beyond shadow of doubt ---
Appeal against conviction was allowed, in circumstances and accused persons were
acquitted.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397--- Qatl-i-amd, robbery---Appreciation of evidence ---Benefit of doubt ---
Delay of seven days in sending the pistol and shell for analysis ---Effect ---Accused was
charged for committing murder of the brother of the complainant by firing---Pistol recovered from the possession of an accused was found matched by the Forensic Science Laboratory with the empty shell, however, the same wa s inadmissible, as the empty shell and recovered
pistol were sent together to Forensic Science Laboratory and that too with an unexplained delay ---Sealed parcels were received at Forensic Science Laboratory after an unexplained
delay of seven days from the date of recovery of pistol ---Hence the recoveries did not
connect the accused persons with the commission of the alleged offence ---Circumstances
established that the prosecution had failed to prove the case against the accused beyond
shadow of doubt ---App eal against conviction was allowed, in circumstances and accused
persons were acquitted.
Muhammad Yameen alias Raja v. The State 2009 SCMR 84; Mehmood Ahmed and 3
others v. The State and another 1995 SCMR 127; Sabir Ali alias Fauji v. The State 2011
SCMR 563; Nasir Mehmood and others v. The State 2008 YLR 1755; Mian Sohail Ahmed
and others v. The State and others 2019 SCMR 956; Javed Khan alias Bacha and another v. The State 2017 SCMR 524 and Noor Islam v. Ghani -ur-Rehman 2020 SCMR 310 ref.
(f) Penal Cod e (XLV of 1860) ---
----Ss. 302(b) & 397--- Qanun- e-Shahadat (10 of 1984), Art. 129(g) ---Qatl-i-amd, robbery---
Appreciation of evidence ---Benefit of doubt ---Withholding material evidence ---Effect ---
Accused was charged for committing murder of the brother of the complainant by firing ---
Record showed that the prosecution had given up a witness whose statement was recorded by the Investigating Officer under S. 161, Cr.P.C.--- Prosecution gave up said witness with mala
fide intention because in his S. 161, Cr.P.C. statement, he stat ed that he was told by the
friends of the deceased that the robbers had muffled faces and the one who made fire shot at deceased had a muffled face---Said facts suggested that evidence which could be but was not produced would, if produced, be unfavourable to the person who withheld it ---Circumstances
established that the prosecution had failed to prove the case against the accused beyond shadow of doubt ---Appeal against conviction was allowed, in circumstances and accused
persons were acquitted.
Lal Khan v. The State 2006 SCMR 1846 rel.
(g) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 397--- Qatl-i-amd, robbery---Appreciation of evidence ---Benefit of doubt ---
Delay of six days in recording the statements of witnesses ---Effect ---Accused was charged
for commi tting murder of the brother of the complainant by firing--- Statements of the four
eye-witnesses under S. 161, Cr.P.C. were recorded with delay of six days after the incident ---
Though, said witnesses were implicated by the complainant, through supplementary
statement, however, later, vide an affidavit they were exonerated from the case--- But since
accused were in custody, therefore, delay in recording their statement was fatal ---
Circumstances established that the prosecution had failed to prove the case agai nst the
accused beyond shadow of doubt ---Appeal against conviction was allowed, in circumstances
and accused persons were acquitted.
Ali Ahmed Lehri for Appellant (in Criminal Appeal No. 572 of 2021).
Muhammad Younas Mengal, Addl. Prosecutor General for Respondent (in Criminal
Appeal No. 572 of 2021).
Ghulam Mustafa Butt and Zeeshan Rakhshani for Appellants (in Criminal Appeal No.
580 of 2021).
Muhammad Younas Mengal, Addl: Prosecutor General for Respondent (in Criminal
Appeal No. 580 of 2021).
Ghulam Mustafa Butt, Zeeshan Rakhshani and Ali Ahmed Lehri for Respondents
Nos. 1 to 3 (in Criminal Revision Petition No. 24 of 2021).
Muhammad Younas Mengal, Addl: Prosecutor General for the State (in Criminal
Revision Petition No. 24 of 2021).
Date of hearing: 4th October, 2022
JUDGMENT
GUL HASSAN TAREEN, J. ---Through this common judgment, we intend to decide
Criminal Appeals Nos. 572/2021 and 580/2021, filed under section 410, the Criminal
Procedure Code, 1898, ("Cr.P.C.") and Criminal Revision Petiti on No. 24/2021, filed under
sections 435, 439- A, Cr.P.C, being originated from the same judgment dated 23rd November,
2021, passed by the Court of Additional Sessions Judge -VI/ MCTC -II, Quetta ("Trial Court")
, in case FIR No. 09/2018, dated 2nd February, 2018, under sections 397 and 302, the Pakistan Penal Code, 1860 ("P.P.C"), registered at P.S. Kuchlak, District Quetta for, robbing and murder of Farmanullah, whereby the appellants have been convicted under sections 302(b) and 397, read with section 34, P .P.C and sentenced as under:
a) imprisonment for life as Ta'zir under section 302(b), P.P.C. for the murder of Farmanullah with compensation of Rs. 200, 000/ - to be paid by each appellant to the
legal heirs of the deceased under section 544- A, Cr.P.C, in d efault to pay, to further
undergo six months (S.I.); and
b) imprisonment of seven years (R.I.) under sections 392, 397, P.P.C. for robbery with fine of Rs. 40, 000/ - each, in default to pay, to further undergo four months (S.I.).
The sentences were ordered to run concurrently with benefit of section 382- B, Cr.P.C.
"
2. The prosecution case, as unfolded in the Fard -e-Bayan (Ex: P/1 -A), reduced into
writing on the oral statement of complainant Attaullah, (PW -1) is that; on the day of incident,
he was present at home. He got information through cell phone that someone has killed his
younger brother Farmanullah by firing and the dead body is lying at Civil Hospital. On such information, he along with other relatives, forthwith reached at Civil Hospital, where h e
found the dead body of his younger brother Farmanullah in mortuary lying in the pool of blood. On getting knowledge from his friends, Hassan, Shoaib, Adeel and Qandeel present with his brother, he came to known, that his younger brother Farmanullah, havi ng a mobile
shop, today in the company of these friends, has came from Toghi Road Quetta to Kuchlak for picnic, in a vitz car No. ALZ -768 white colour. At about 5:45 p.m., when they were
capturing photographs at Mallazai Bypass near rainy channel field, al l of a sudden, three
unknown persons riding on a motorcycle came over there. They could not notice the number of motorcycle. Amongst them, the one armed by a pistol, aimed pistol at them and asked for handing over, all they had. They snatched mobile phone Nokia and Rs. 800/ - from Adeel,
mobile phones, Nokia and Q and Rs. 1100/ -, I-phone, cash Rs. 1300/ - and DSL camera from
Qandeel. Shoaib told that he threw his cell phone under the car while Farmanullah exhibited
resistance with the unknown person and refus ed to give mobile. The person having pistol
made a fire shot with pistol at Farmanullah, whom sustained blood stained entrance wound under the right eye and an exit wound at the back of head, due to which he expired at the
spot. The friends of Farmanullah informed that they can identify the unknown persons if
come before them. On getting report of firing, police reached at the spot and taken over the
dead body to the hospital. On such complaint, FIR No. 09/2018, dated 2nd February, 2018 (Ex: P/12- A), under the aforementioned offences was lodged.
3. On the registration of the FIR, investigation of the case was entrusted to Shan
Muhammad SI (PW -12). On 02nd February, 2018, the Investigating Officer, visited the scene
of occurrence, sketched a rough site plan ( Ex: P/12- B), secured blood stained earth in parcel
No. 1, an empty shell of .30 bore, Samsung mobile with sim, memory card and two sims in parcel No. 2 and took into possession the secured articles and the car through separate recovery memos, recorded stat ements of witnesses under section 161, Cr.P.C, secured the
cell numbers of the friends of the deceased. He apprehended the said friends of the deceased on 5th February, 2018 on the supplementary statement of the complainant. On 8th February,
2018, the Inve stigating Officer discharged the friends of the deceased under section 169,
Cr.P.C and sent an incomplete report No. 18/2018 to the Court. In pursuance of the
information of an informer, on 23rd February, 2018, the accused Muhibullah along with the alleged snatched Nokia cell phone, was apprehended. On his pointing out, accused Jamil
Ahmed was arrested from his house. From his personal search, .30 bore pistol was recovered, the alleged snatched DSLR Camera and a motorcycle allegedly used in the crime were a lso
recovered. The accused Sher Gul was arrested on the pointing out of Muhibullah and
recovered .30 bore pistol along with five live cartridges from his personal search and eight cell phones from his house. All were taken into possession through recovery memos and sealed them in parcel Nos. 3, 4 and 5. He sent the parcels to FSL. On 3rd March, 2018, the Investigating Officer conducted the identification parade of the two accused Muhibullah and Jamil Ahmed. On receiving FSL reports, he submitted an incomple te report in the Trial
Court. The appellant Sher Gul succeeded to escape from the police station. On 4th December, 2018, he was again apprehended and Masood Ahmed SI (PW -13) was appointed
Investigating Officer. He conducted the identification parade of She r Gul and prepared the
disclosure memo of said accused and submitted an incomplete challan.
4. On 9th April, 2018, the appellants Muhibullah and Jamil Ahmed were formally
charge sheeted to which both pleaded "Not Guilty" and claimed trial. On 14th March, 2 019,
the appellant Sher Gul was formally charge sheeted to which he pleaded "Not Guilty" and claimed trial.
5. To discharge the onus of proof, the prosecution produced and examined as many as
thirteen witnesses. The ocular account of the incident was furni shed by Adeel (PW -4),
Shoaib (PW -5), Qandeel (PW -7) and Hassan (PW -8). The complainant appeared as PW -1,
Saadullah (PW- 2) and tendered in evidence the receipt of receiving the corpus of the
deceased as Ex: P/2 -A. The recovery witness Sardar Muhammad (PW- 3) tendered in
evidence the site inspection memo and recovery memo as Ex: P/3 -A and Ex: P/3- B
respectively. Dr. Ali Mardan appeared and deposed as PW -6 and tendered in evidence the
death certificate of deceased as Ex: P/6 -A. The Judicial Magistrate Allah Muh ammad (PW -9)
tendered in evidence the identification forms as Ex: P/9- A to Ex: P/9 -H and the certificates as
Ex: P/9 -I to Ex: P/9 -P. Ashiq Khan Khattak SI (PW -10) tendered in evidence the recovery
memos of the recovered cell phones and DSLR as Ex:P/10- A, E x: P/10- D and Ex: P/10 -E
respectively. The Judicial Magistrate Paraksa Noor (PW- 11) tendered in evidence the forms
of identification parade and certificate as Ex: P/11- A to Ex: P/11 -D. On completion of the
prosecution evidence, the accused were examined un der section 342, Cr.P.C. They opted not
to appear as witnesses in their defence in terms of section 340(2), Cr.P.C. nor examined any
witness in their defence. On termination of trial, the appellants were held guilty and, therefore, convicted and sentenced in the above terms.
6. Messrs Ghulam Mustafa Butt, Ali Ahmed Lehri and Zeeshan Rakhshani, Advocates,
appearing on behalf of the appellants, submitted that the FIR was lodged against unknown persons and the appellants were previously not known to the eye -witnesses and features of
the appellants were not given by such witnesses in their 161's Cr.P.C statement, therefore, the identification parade has illegally been relied upon by the Trial Court as evidence; that in the identification parade, the separa te role of appellants regarding the offence was not
attributed to each of them by the witnesses; that the identification parade was conducted in the police station which is not safe rather is violation of the case law of the Apex Court; that Farhanullah in his 161's Cr.P.C. statement stated that the eye -witnesses told him that the
faces of the accused were muffled; that the identification parade was held after ten days of the arrest of appellants Jamil Ahmed and Muhibullah and there was no explanation by the prosecution for such delay; that identification of the alleged recovered Nokia mobile and camera was not conducted by the witnesses from whom the same were allegedly snatched by
the appellants, therefore, the alleged recovery had not connected the appell ants with the
commission of offence; that the statements of eye -witnesses were recorded with an
unexplained delay of five days whereas, they were in police custody; that the identification parade of appellant Sher Gul was conducted by the Investigating Off icer with an unexplained
delay of eight days; that the empty shell and the recovered pistol were sent together to the FSL, therefore, the alleged recovery of pistol from Sher Gul is not admissible in evidence as a corroborative piece of evidence or otherwi se; that the alleged recovery of mobile was not
put to the appellants in their statements under section 342, Cr.P.C. Concluding arguments, the learned counsels placed reliance on the following case laws:
Muhammad Yameen alias Raja v. The State 2009 SCMR 8 4;
Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127;
Sabir Ali alias Fauji v. The State 2011 SCMR 563;
Nasir Mehmood and others v. The State 2008 YLR 1755;
Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956;
Javed Khan alias Bacha and another v. The State 2017 SCMR 524; and
Noor Islam v. Ghani -ur-Rehman 2020 SCMR 310.
7. In rebuttal, Mr. Muhammad Younas Mengal, the learned Additional Prosecutor
General supported the impugned judgment and submitted that the eye -witnesse s had no
motive to falsely roped the appellants in this case; that four eye -witnesses recognized the
appellants in the identification parade as well as before the Court, therefore, their testimonies
are coherent and confidence inspiring; that the ocular ev idence got corroboration from the
medical evidence, recovery of crime weapon and FSL report. Concluding his arguments, the
learned A.P.G. submitted that the Trial Court has already taken a lenient view while
awarding sentence to the appellants whereas the normal penalty under section 302(b), P.P.C
is death.
8. We have heard arguments and gone through the record and the case laws cited at bar.
The prosecution case rests upon the evidence of identification parade. According to the prosecution, the appellants were apprehended on 23rd February, 2018 and they remained in
police custody till 3rd March, 2018. On 3rd March, 2018, the identification parade of the appellants Muhibullah and Jamil Ahmed were conducted in the Police Station Kuchlak. The identification pa rade of appellants Muhibullah and Jamil Ahmed was conducted under the
personal superintendence of Allah Muhammad, Judicial Magistrate, Kuchlak (PW -9) in
Police Station Kuchlak. The witnesses, Hassan Qandeel, Adil and Shoaib recognized in his presence picked up, the appellants Muhibullah and Jamil Ahmed, thrice in the line of
dummies of like faces, religion and get up. During his cross -examination, the PW -9 stated as
under:
"2. It is correct that as a Judicial Magistrate of the concerned area, I used to order for
remand of the accused."
"3. Accused were brought in the Court with uncovered faces."
"16. It is correct that there is difference in the height and faces."
"26. It is correct that the clothes of the dummies were not changed during the identification p arade by the four witnesses. ----"
According to the statement of PW -9, the identification parade was held on 3rd March,
2018 after eight days of the arrest of appellants Muhibullah and Jamil Ahmed. The prosecution has not explained the delay caused in conducting the identification parade of appellants Muhibullah and Jamil Ahmed. The identification parade of the said appellants was held in the Police Station Kuchlak where the said appellants were in custody during the investigation of the case. The Judicial Magistrate in his deposition before the Court and in
the certificates, has not mentioned that at the time of identifying the said appellants, the witnesses had described the role of each appellant regarding the offence. Besides all above, the witnesses in their 161's, Cr.P.C statements had not furnished the physical as well as face
features and characteristics of each appellant, therefore, the evidence of identification parade has lost its evidentiary value and relevance under Article 22, the Qanun -e-Shaha dat Order,
1984 ("Q.S.O.").
9. The appellant Sher Gul was also arrested on 23rd February, 2018, however, he was
allegedly escaped from the police custody on 24th February, 2018. Latter, on 4th December, 2018, the appellant Sher Gul was apprehended by the police of Jinnah Town P.S. Quetta. The Judicial Magistrate Paraksa Noor appeared as PW- 11 and deposed that on 13th December,
2018, the identification parade of appellant Sher Gul was conducted in Police Station Civil
Line, Quetta. The appellant was identifi ed thrice by the witnesses Adeel, Qandeel, Hassan
and Shoaib, in the line of eight dummies. During her cross -examination, she stated as under:
"19. It is correct that all dummies worn the same clothes in the four identification parades."
"21. It is correct that the names, parentage and addresses of the dummies are not
mentioned in each form."
The identification parade of the appellant was conducted after nine days of his arrest.
The prosecution has not explained delay caused in conducting the identification parade of appellant Sher Gul. The identification parade was conducted in Police Station Civil Line, Quetta. The Judicial Magistrate in her deposition before the Trial Court and in the certificate has not mentioned that at the time of identif ying the said appellant, the witnesses had
described the role of appellant at the time of commission of the alleged offence. The witnesses in their 161's, Cr.P.C statements had not furnished the physical features of the appellant. The identification parade of appellant was held after ten (10) months, from the
incident. Therefore, the evidence of identification parade has lost its evidentiary value and
relevance under Article 22, the Q.S.O, to the extent of appellant Sher Gul as well. Reliance
may be placed on the case of Javed Khan alias Bacha and another v. The State reported in 2017 SCMR 524, in which, the Apex Court has held:
"8. The Complainant (PW -5) had not mentioned any features of the assailants either
in the FIR or in his statement recorded under s ection 161, Cr.P. C. therefore there was
no benchmark against which to test whether the appellants, who he had identified
after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had c ertified that in the identification
proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude
the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect
9. As regards the identification of the appellants before the t rial court by Nasir
Mehboob (PW -5), Subedar Mehmood Ahmed Khan (PW -6) and Idrees Muhammad
(PW -7) that too will not assist the Prosecution because these witnesses had a number
of opportunities to see them before their statements were recorded. In State v. F arman
(PLD 1985 SC 1), the majority judgment of which was authored by Ajmal Mian J, the learned judge had held that an identification parade was necessary when the witness only had a fleeting glimpse of an accused who was a stranger as compared to an accus ed who the witness had previously met a number of times (page 25V). The same
principle was followed in the unanimous judgment of this Court, delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad v. State (1998 SCMR 752), in which
case the abductee had remained with the abductors for some time and on several occasions had seen their faces. In the present type of case the culprits were required to be identified through proper identification proceedings, however, the manner in which the identification proceedings were conducted raise serious doubts (as noted above)
on the credibility of the process. The identification of the appellants in court by eye -
witnesses who had seen the culprits fleetingly once would be inconsequential."
In the case of Mian Soh ail Ahmed and others v. The State reported in 2019 SCMR
956, the Apex Court has held:
"5. The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the
Special Judicial Magistrate (PW -13) on 13.6.2006 is fraught with several infirmities
diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions
their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in
the statements of the witnesses under section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identifica tion
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 correl ation 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).
7. No role was assigned to the suspects by the witnesses, especially when the first information report clearly describes two different roles to the appe llants; one that of
an assailant, while the other of a driver of a motorcycle who drove the assailant away. If a witness fails to give the description of the part played by the suspect in the crime, the credibility of the witness stands questioned as he fa ils to complete the picture of
the crime scene, thus inviting caution and circumspection in assessing the evidentiary value of the identification evidence. This Court over the years has placed little reliance on such identification evidence. Even in the subsequent identification by the complainant in court, which has little evidentiary value, he failed to point an accusing finger at the appellants to say who did what, therefore the parts played by the appellants in the crime remain a mystery. See: In the ma tter of Kanwar Anwaar Ali
(PLD 2019 SC 488) on the absence of a role assigned by the witness in an identification parade."
In the case of Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84,
the Apex Court had disbelieved the evidence of ident ification parade because particulars of
features of accused were not provided by the eye -witnesses and there was no explanation as
to why the physical apparent features were not provided by the witnesses in their 161, Cr.P.C statements although there were four witnesses of the occurrence. The Apex Court has acquitted the accused because the memo of identification test had also not shown the details,
names and addresses of the dummies.
10. The identification parade is a weak type of evidence and cannot be fo rmed basis for
sentencing an accused. It merely corroborates independent and direct piece of evidence for
the purpose of proof of guilt of an accused. In the case in hand, the testimonies of PW -3,
PW-4, PW -5 and PW -7 are not sufficient to uphold the impugned judgment merely on the
basis of said identification parade and recognizing the appellants in the Court. During his cross -examination, the Investigating Officer, stated as under:
"15. It is correct that witness Farhanullah told him, this fact in his sta tement of 161,
that "we reached at the spot through near Killi Sufi, where police had already reached. Their brother was lying in the vehicle of police in pool of blood. The police present at the spot told that Farmanullah along with his friends, Hassan, S hoaib, Adeel, Qandeel
had come here for picnic. The friends of deceased state that three unknown muffled came on motorcycle. On resistance of deceased Farman -ullah, the armed muffled face
made firing."
"18. It is correct that witnesses had not mentioned in their statements about the features, voluntarily stated that they had told that they can recognize, if come before
them. Further, Shoaib had told that the three were slim and smart and one was of tall
height."
"68. The informer conveyed him information on 23.2.2018 at 04:00 p.m."
"69. He had not incorporated the information of informer in any Roznamcha."
The identification parade of the appellants were held in police station. The Apex
Court in the case of Kanwar Anwaar Ali, (PLD 2019 SC 488) has held t hat "identification of
accused in the premises of the police station should be avoided." The relevant from the case law is reproduced hereunder:
"(c) The identification parades should never be held at police stations;"
Hence, the evidence of identificati on parade is not of worth consideration, as such; is
discarded.
11. The recovery of a cell phone from the personal search of the appellant allegedly
belonged to the deceased, is not worth of consideration, as the alleged recovered cell phone is a common mo bile and the prosecution had not conducted identification of the recovered
mobile from the complainant/ brother of deceased, uncle of deceased (PW- 2) and the eye -
witnesses. The prosecution has not brought on record the EMI number of the recovered mobile. The recovered cell phone was not identified by the witnesses. The alleged recovery was not
put to the appellant Muhibullah in his examination under section 342, Cr.P.C., by the Trial Court.
The Trial Court has not separately put incriminating pieces of evi dence to the
appellants according to evidence produced against each appellant. A stereotyped examination of appellants were recorded which is violation of section 342, Cr.P.C. The Apex Court, in the case of Muhammad Shah v. The State (2010 SCMR 1009) has held as under:
"----It is well -settled that if any piece of evidence is not put to the accused in his
statement under section 342, Cr.P.C. then the same cannot be used against him for his
conviction. In this case both the Courts below without realizing the legal position not
only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."
The recovery of pistol, DSLR camera and motorcycle from the house of appellant
Jamil Ahmed is not su fficient to prove the guilt. As the recovered pistol was not matched
with the secured empty shell by the FSL which means that the same was not used in the commission of offence. So far as the DSLR camera is concerned, the identification of the same was not conducted and was not recognized by the witness Qandeel from whom it was
allegedly snatched by the appellants. The recovery of motorcycle is not a case property as it was allegedly disclosed by the appellant Jamil Ahmed that the same was used on the day o f
incident for commission of offence. Such statement is a confession before police which is not admissible under Articles 38 and 39 Q.S.O.
So far as the recovery of pistol from the possession of Sher Gul is concerned, the
same was found matched by the FSL with the empty shell. The same is inadmissible, as the
empty shell and recovered pistol were sent together to FSL and that too, with an unexplained delay. The pistol was recovered on 23rd February, 2018 whereas the sealed parcels were received at FSL on 2 nd March, 2018 i.e. with unexplained delay of seven days. PW -10 in his
cross -examination stated as under:
"3. It is incorrect that if all these things are mixed up with other arms, he cannot recognize them because the number of the pistol from Jamil Ahmed is 1944 and of
accused Sher Gul is pistol No. 362."
However, the FSL report (Ex: P/12- D) has mentioned the number of the matched
pistol as 263. The recovered cell phones from the accused Sher Gul were not the snatched cell phones. The Investigating Office r in reply of a question stated as under:
"60. It is correct that eight cell phones have no concern with this case."
Hence the recoveries do not connect the appellants with the commission of the alleged
offence.
12. The prosecution has given up a witness Farhanullah whose statement was recorded by
the Investigating Officer under section 161, Cr.P.C. The prosecution gave up such witness
with mala fide intention because in his 161's Cr.P.C statement, he stated that when he
reached, he was told by the friends of the deceased that the robbers were muffled faces and
the one who made fire shot at deceased was muffled face. We may place reliance on Article
129(g), the Q.S.O, which reads:
"That evidence which could be and is not produced would,
if produce d, be unfavour - able to the person who withholds it. "
The Hon'ble Apex Court in the case of Lal Khan v. The State (2006 SCMR 1846) has
held as under:
"---The prosecution is certainly not required to produce a number of witnesses as the
quality and not t he quantity of the evidence is the rule but non - production of most
natural and material witnesses of occurrence, would strongly lead to an inference of
prosecutorial misconduct which would not only be considered a source of undue
advantage for possession but also an act of suppression of material facts causing
prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness -box, he m ight not have supported the prosecution and in
such eventuality the prosecution must not be in a position to avoid the consequence.----"
The statements of the four eye -witnesses were recorded with delay of six days as the
incident took place on 2nd Februa ry, 2018 and their 161's, Cr.P.C. statements were recorded
on 8th February, 2018. Though they were implicated by the complainant, through
supplementary statement (Ex: P/1 -B), however, latter, vide an affidavit dated 7th February,
2018 (Ex: P/1- C), they we re exonerated from the case. But since they were in custody,
therefore, delay occurred in recording their statement is fatal.
For the foregoing discussion, the prosecution has failed to prove the case against the
appellants beyond shadow of doubt. The imp ugned judgment is result of non- reading of
evidence. The Trial Court has not appreciated the evidence in its true legal sense and appears to have overlooked the case laws on the subject. We, therefore, allow this appeal, set aside the impugned judgment of the Trial Court and acquit the appellants, Muhibullah son of
Abdullah, Jamil Ahmed son of Jumma Gul and Sher Gul son of Ghulam Hussain from the charge in case FIR No. 09/2018, dated 02nd February, 2018 under sections 302(b) and 397 P.P.C, Police Station Ku chlak. Accordingly, they shall be released forthwith, if not required
to be detained in any other case. The Criminal Revision Petition No. 24/2021 is dismissed for
the above mentioned reasons.
JK/197/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.