2019 P Cr (PLP)

AFTAB AHMED GORAR, J.

The instant criminal appeal is directed against the judgment dated 21-03-2016 delivered in Session Case No 1596 of 2013, registered under sections 397, 302 and 34 Pakistan Penal Code at Police Station Malir Cantt. Karachi being crime No. 144 of 2013; whereby appellant Muhammad Ali alias Sudheer was convicted and sentenced under section 265-H(2), Cr.P.C. for an offence under section 392 Pakistan Penal Code to suffer rigorous imprisonment for seven years and to pay fine of Rs. 10,000/- in default thereof to suffer simple imprisonment for three months more. Appellant further convicted under section 302(b) and sentenced imprisonment for life as Tazir coupled with fine of Rs.50,000/- as compensation as is provided under section 544-A, Criminal Procedure Code in default thereof appellant shall further suffer simple imprisonment of six months. Benefit of section 382-B, Criminal Procedure Code was also extended in favour of the appellant as such both the sentences ordered to run concurrently.

2. Briefly prosecution story as is unfolded in the FIR are that with reference to roznamcha entry No.23 at about 1411 hours Police Station Malir Cantt. Karachi. On the eventful day SIP Sultan Ahmed recorded statement under section 154, Cr.P.C. same is reproduced in the verbatim that at Quarter No. 294/2 Noshehra Line Malir Cantt. Karachi complainant Khudia wife of Muhammad Siraj resident of Quarter No.294/2 Noshehra Line Malir Cantt Karachi bearing C-NIC # 15550-5089657-8 is residing along with her children. On 11-09-2013 at about 15:00 hours her husband Naib Khateeb Muhammad Siraj son of Umar Ali Khan aged about 41 years who is serving in Pak Army Sindh Regiment Malir Cantt. and is employee, today i.e. 11-09-2013 left house for purchasing goat along with Naik Sabghatullah serving at 23 SNT; Naib Khateeb Bahawal Zaman son of Ghazi Khan serving in 94 Light Air Defence Malir Cantt. near to Memon Goth; after purchasing sheep were returning via Dimolti Road towards Malir Cantt., it was about 10:30 a.m., one motorbike maker 125 arrived from direction indicting via Shamsi Farm blackish in color wherein three unknown persons were boarded., whom specifically seen by Sabghatullah and Bahawal Zaman's on show of force of weapons snatched cash of Rs.5100/- from Khateeb Bahawal Zaman and from Sabghatullah cellular maker Q along with cash of Rs.1600/-, service card as well as other cards and from her husband Khateeb Muhammad Siraj, valet containing service card, mobile phone; upon resistance, her husband Muhammad Siraj received bullet injury at his head and due to receipt of severe injury assailants made their escape good towards Memon Goth. Her husband is admitted in CMH for treatment. Her claim is against unknown assailants whom had been seen well by Bahawal Zaman and Sabghatullah. Assailants committed robbery on show of force of weapons from her husband and friends of her husband and had caused severe injury upon head of her husband whom made their escape good: hence this FIR.

3. Compliance of section 265-C, Cr.P.C. were carried out vide Ex.1 whereby necessary requisite papers were provided to the appellant. Charge at Ex.2 was framed and read over to the appellant to which appellant pleaded not guilty and claimed trial vide his plea recorded at Ex.2/A respectively.

4. Prosecution in order to establish charge examined PW-1 Mst. Khudia [complainant] at Ex.3, PW-2 Bahawal Zaman [eye-witness] at Ex.4, PW-3 Naib Khateeb Sibghatullah [eye-witness] at Ex.5, PW-4 ASIP Shahzad Hussain at Ex.6, PW-5 Ayoum Khan at Ex.5, PW-6 ASIP Azhar Iqbal at Ex.8, PW-7 SIP Mumtaz Husain at Ex.9, PW-8 Capt. Dr. Muhammad Ashfaq at Ex.11, PW-9 SIP Sultan Ahmed at Ex.12, PW-10 SIO/I.O. Muhammad Akram at Ex.13. Statement of accused was recorded under section 342, Cr.P.C. at Ex.15, accused examined himself in disproof of the charge in defence as provided under section 340(2), Cr.P.C. and had also examined DWs Haji Ghulam Rasool and Muhammad Moossa vide Exs. 17 and 18 respectively.

5. Mr. Liaquat Ali Khashekhli, advocate, representing the appellant contended that learned lower court erred both in facts and law; per learned counsel learned trial court has failed to apply judicial mind, the judgment is delivered in slipshod manner; per learned counsel judgment is based on conjectures and surmises as such there is no proper appreciation of evidence has been made; per learned counsel judgment of the lower court is misconstrued against the weight of evidence which cannot be sustained on hypothesis; per learned counsel evidence led by the prosecution does not support the conviction and is a fit case for acquittal; per learned counsel judgment as is provided under section 366, Cr.P.C. has not been delivered; per learned counsel learned trial court has failed to appreciate as to the credibility of witnesses of recovery; per learned counsel the learned lower court has misread the entire evidence produced by the prosecution; per learned counsel the mushirs of place of pointation and recovery are .police officials which is in violation of section 103, Cr.P.C., per learned counsel no proper identification parade has been held before the Magistrate; per learned counsel the recovery of Q mobile as well as CNIC card of the deceased has not been identified by the widow of deceased in her evidence; per learned counsel blood stained earth and the blood stained clothes of the deceased as alleged has not been sent to the Forensic Science Laboratory for report; per learned counsel nothing incriminating has been recovered from the possession of appellant nor at his pointation; per learned counsel this is a fit case which calls for benefit of doubt to be extended in favour of the appellant; per learned counsel there learned lower court has grossly misread the entire evidences on record; lastly learned counsel prayed that the instant criminal appeal may be allowed and the appellant may be acquitted from the charged offence. Learned counsel has relied upon the case law reported in 2005 PCr.LJ 489, 2004 YLR 1032, 2010 MLD 180, 2011 YLR 995, 2013 YLR 2019, 2015 PCr.LJ 1614, 2018 YLR 1979, 2013 YLR 298, PLD 2013 Kar. 508, 2013 YLR, 1127, 2010 SCMR 1009, 2011 MLD 239 and 2014 PCr.LJ 334.

6. Mr. Siraj Ahmed Khan, Additional Prosecutor General Sindh opposed acquittal of appellant; per learned Additional P.G learned trial court has after evaluating entire evidences on record has rightly convicted the appellant; per learned Additional P.G there is sufficient material available with the prosecution which prima facie connect the appellant with the commission of offence; per Additional P.G the prosecution case went proved against the appellant however learned trial court has rightly convicted the appellant; learned Additional P.G. supported the impugned judgment in toto; learned Additional P.G lastly contended that the instant criminal appeal may be dismissed as such the sentence and conviction awarded to the appellant may be upheld.

7. Heard and perused.

8. It is now by well settled provision of criminal law that this Court has to reappraise the entire evidence for safe administration of justice. PW-1 Mst. Khudia wife of deceased Muhammad Siraj [complainant] deposed in the examination in chief as follows:- "This incident had taken place about one year back. On the day of incident, my husband Muhammad Siraj along with his friends Sibghatullah and Khatib Bahawal Zaman had gone to purchase "Qurbani Janwar" from Memon Goth. At noontime, Sibghatullah and Khatib Bahawal Zaman came to me and informed that after purchasing sheep for Qurbani, while they were returning back on their motorcycle three culprits intercepted them and snatched cash and mobile phones from them. They further informed me that my husband told the culprits for return of his service card, on which some harsh words were exchanged between them and one of the culprits fired at my deceased husband, resultantly he fell down. He was referred to CMH Malir Cantt., for treatment, where he remained admitted for more than one month and thereafter succumbed to injuries. On the same day of incident, police recorded my statement and obtained my RTI on it, I produce my statement at Ex.3/A, it is same, correct and bears my RTI. They have not recorded my other statement. I had not seen the accused persons, therefore, I cannot say if accused Muhammad Ali alias Sudheer present in Court was amongst the culprits, who caused murder of my deceased husband." In the cross-examination PW-1 admitted as follows:- "it is correct that specifically I have not stated in my statement under section 154, Cr.P.C. that P.Ws. Sibghatullah and Khatib Bahawal Zaman informed me about the incident".

9. PW-1 Mst. Khudia being wife of deceased Khatib Muhammad Siraj is not star witness of the incident, her evidence is hearsay therefore it could not be relied upon as trustworthy because PW-1 had not seen incident at her own. PW-1 heard about scenario from eye-witnesses namely Sibghatullah and Bahawal Zaman. For the sake it would be counted that eye-witnesses of the incident Sibghatullah and Bahawal Zaman were well together with deceased Khateeb Muhammad Siraj while were returning back to home after purchasing sheep for sacrifice, all were intercepted by assailants as alleged but both eyewitnesses could not act as a First Informant to the incident and had chosen Mst. Khudia wife of deceased to act as a complainant perhaps PW-1 Mst. Khudia was available at her house with her children. As per prosecution story no specific and isolated role has been attributed to the present appellant of inflicting causing hurt to deceased but joint role has been attributed equivalent assailants as alleged deceased received one bullet injury over his head. PW-2 Bahawal Khan [eye-witness] at Ex.4 deposed in the examination-in-chief as follows:- "On 11.09.2013, I along with deceased Khateeb Muhammad Siraj and PW-Sibghatullah had gone to Memon Goth for purchasing sheep for Qurbani. After purchasing sheep, while we were returning and when reached near Shamsi Farm Damloti Road, three persons coming on motorcycle from backside intercepted us and snatched Rs.5100/- from me, Rs.1600/= and Q Mobile phone from Sibghatullah and purse containing service card and other articles from deceased Khateeb Muhammad Siraj, who told the culprits for return of his Army Service Card, on which some harsh words were exchanged between him and culprits, one of the culprits then fired at deceased, which hit his head, resultantly he fell down. The culprits thereafter ran away towards Memon Goth on their motorcycle. We thereafter took the injured to CMH Malir and also informed the incident at Gate No.3. Khateeb Muhammad Siraj remained admitted in CMH Malir for 52 days and thereafter succumbed to his injuries. We also narrated the incident to complainant Mst. Khudia, wife of deceased Khateeb Muhammad Siraj, she reported the matter to police. On the next day, SHO Police Station Malir Cantt. called me and PW-Sibghatullah at Police Station Malir Cantt. and took us towards the place of incident. On my pointation the I.O. visited the place of incident. The police collected the blood stained earth from the place of incident and sealed the same, prepared such mashirnama of visiting the place of incident, which was signed by me as mashir so also Sibghatullah as co-mashir. I produce the mashirnama of wardat at Ex.4/A, it is same, correct and bears my signature so also co-mashir. We had seen the accused persons and were able to identify them on their appearance. On 18.11.2013 the I/O of the case called me and Sibghatullah at Police Station, showed us some photos, we suspected one of them to be the culprit of this incident. On 27.11.2013 I received a notice for appearance before the Judicial Magistrate for identification of accused, where one accused already in police custody in some other cases was shown to me to whom I identified to be one of the culprits, who fired at deceased and snatched cash from us. I had already seen his photo at Police Station. No proper identification test of the accused before the Judicial Magistrate had been taken place. Accused Mohammad Ali present in Court is same, who committed the above offence. The I/O recorded my statement." PW-2 in the cross-examination admitted as follows:- "It is correct that in my statement before the I/O I have not disclosed the features and descriptions of the culprits, however I have stated that one accused who fired at deceased was wearing black clothes, whereas remaining two were with white clothes." PW-3 Naib Khateeb Sibghatullah at Ex.5 deposed in the examination in chief as follows:- "On 11.09.2013 I along with deceased Khateeb Muhammad Siraj and PW-Bahawal Zaman had gone to purchase "Qurbani Janwar" from Memon Goth. We purchased two sheep and while we were returning, three persons on a motorcycle followed us, at 10.30 a.m., when we reached near Shamsi Farm, Damloti Road, the culprits chasing us on Motorcycle intercepted and looted Rs.1600/=, Q Mobile, Service Card, CNIC, ATM Card and Driving license from me, Rs.5100/- from PW -Bahawal Zaman and purse containing service card another documents from deceased Khateeb Muhammad Siraj, who told the culprits for return of his service card, on which one of the culprits fired at him, which hit his head, resultantly he fell down. The culprits thereafter ran away towards Memon Goth, whereas we removed injured Khateeb Muhammad Siraj to CMH Malir Cantt., where he remained admitted for 52 days and thereafter died due to fire shot injury. On the same day of incident, the I/O visited the place of incident in our presence, secured blood stained earth from place of incident, nothing else was recovered from there. The I/O prepared mashirnama of visiting the place of incident and obtained our signatures on it. I see mshirnama of wardat at Ex.4/A, it is same, correct and bears my signature so also of co-mashir Naib Khateeb Bahawal Zaman. On 18.11.2013, I/O called me and Naib Khateeb Bahawal Zaman at Police station and took us to CRO situated at CIA Center where the police showed us some photos of criminals; we identified one of them to be the assailant of this incident. On 27.11.2013 I received a notice of my appearance before Judicial Magistrate Malir for recording my statement, where, in presence of Judicial Magistrate, the police showed us a person, who was already in police custody. I identified him to be same culprit, however no proper identification test of the accused had taken place nor the Judicial Magistrate recorded my statement. The name of identified person was disclosed to be Mohammad Ali. Accused Muhammad Ali present in Court is same, Police recorded my two statements. One on the date of incident and the other on the next date". In the cross-examination PW-3 admitted as follows:- "It is correct that I have not given the features and description of the accused in my statement before police nor the sitting position of the accused on their motorcycle". In this perspective I have minutely reappraise entire evidence of complainant Mst. Khudia, eye-witnesses PW-Bahawal and PW-Sibghatullah. In the light of above evidences, I have been fortified with the case law delivered by Hon'ble apex Court reported in 2010 SCMR 1009 in the case of Muhammad Shah v. The State, it has been held as follows:- "

S. 302(b)

Qatl-i-amd

Appraisal of evidence

Complainant was not the eye-witness of the occurrence

Eye-witnesses had been rightly disbelieved by High Court

Question was as to whether the defence taken in the cross-examination, which was abandoned by the accused in his statement recorded under S.342, Cr.P.C., could be made basis for convicting him

Any stand taken by the accused in the cross-examiantion was merely in the form of suggestion

Even several defences taken by accused would not improve the prosecution case, which would stand on its own evidence

Had the accused taken such defence in his statement under section 342, Cr.P.C, the same could have been validly taken into consideration

Accused had examined two defence witnesses to the effect that he was being abducted by the deceased and his companions, but they did not state anything about scuffle between the accused and the deceased

Even in cross-examination it had not been specifically suggested or shown as to who was armed with knife and caused injuries to the deceased

Two interpretations of the evidence being possible, one favouring the accused would be adopted

Stand taken by accused in the cross-examination did not show that he had caused injuries to the deceased

Evidence appearing in the cross-examination was not put to the accused in his statement under S. 342, Cr.P.C. enabling him to explain the circumstances, particularly when the same had been abandoned by him, and it, therefore, could not be used against him

Accused was acquitted in circumstances". "

S. 302(b)

Qatl-i-amd

Appreciation of evidence

Stand taken by accused in cross-examination

Value

Any stand taken by accused in cross-examination is merely in the form of suggestion

Accused can take several defences, but that will not improve the prosecution case, which has to stand on its own evidence". "

S. 302(b)

Qatl-i-amd

Appreciation of evidence

Principle

When two interpretations of evidence are possible, one favoring the accused and the other favouring the prosecution, then the one favourable to the accused is required to be taken into consideration".

10. In the case in hand deceased Khateeb Muhammad Siraj after receiving head injury or neck injury was promptly taken to the CMH Malir Karachi for treatment where deceased Khateeb Muhammad Siraj was alive for about fifty two (52) days, in between these fifty two days Investigating Officer of the case could not bother to offer any statement which ought to have come from mouth of injured deceased Khateeb Muhammad Siraj to know the description and features of the assailant or the present appellant, if it could be; same was to be treated in the sense of statement like "dying declaration" to know the exact features of the assailant and same could be matched with the photograph of present appellant. I am also of the view with the case law reported in 2018 YLR 1979 in the case of Mir Afzal v. Mst. Naseem Bibi and another, it has been observed as follows:- "

S. 302 (b)

Qatl-i-amd

Appreciation of evidence

Benefit of doubt

Accused was charged for the murder of the son of complainant

Motive for the occurrence was altercation between the deceased and the accused

Ocular account of the occurrence was furnished by three witnesses including complainant

Complainant, who was the mother of the deceased narrated the occurrence that when she was present in the house, her other son informed her that his brother was murdered

Eye-witness had stated in his cross-examination that deceased then injured died in hospital prior to the making of report

Other eye-witness in his cross-examination had stated that after the occurrence, the deceased then injured was taken to hospital, which showed that the deceased was alive, and was in injured condition, when taken to hospital

Complainant also stated that her son was alive when she reached the hospital

Medical Officer had stated in his cross-examination that as soon as deceased received fire arm injuries, he died instantly

Circumstances suggested that there was a marked difference between the ocular account and the medical evidence

Circumstances established that prosecution had failed to prove the charge against the accused beyond any shadow of doubt, benefit of which would resolve in favour of accused

Appeal was allowed and accused was acquitted in circumstances by setting aside the conviction and sentence recorded against him by the Trial Court".

11. The incident as alleged had been taken place in broad day light it was about 10:30 a.m., the FIR has been lodged at about 1600 [4:00] p.m. on the same day while the distance between place of occurrence and the Police Station concerned was of four 04 kilometers, no one had approached the concerned Police Station for lodgment of report promptly instead PW-2 and PW-3 stated that they have first informed about the incident at Gate No.3 Malir Cantt. Karachi, however informing Gate No.3 would not resolve the purpose of lodgment of FIR as is provided under the Law. I am fortified with the case law reported as 1995 SCMR 127 in the case of Mehmood Ahmad and 3 others v. The State and another; it has been held as follows:- "

Ss. 302/34 & 323

Appreciation of evidence

Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate

Non-explanation of the delay in making the report to might wish to implicate

Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence

Medical evidence by itself was unable to establish the identity of the accused

Non-association of any independent respectable witness from the locality with the recovery proceedings, in the absence of any explanation in this behalf by the prosecution, had made the recovery of the carbine and the empties unreliable and consequently the Ballistic report was of no importance

Picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable having no evidentiary value

Accused were acquitted in circumstances". [The underline is mine] PW-4 ASI Shahzad Hussain at Ex.6 in the examination-in-chief deposed as follows:- "On 20.11.2013 I was posted as ASI at Police Station Malir Cantt. On that date, I along with SIO Malik Mohammad Akram, HC Liaquat and PC Khurram Saleem left Police Station at about 09.30 or 10.00 a.m. and proceeded towards District Jail Malir, where SIO arrested accused Mohammad Ali alias Sudheer in this case and prepared such mashirnama of arrest, obtained my signature so also of co-mashir PC Khurram Saleem. Accused Mohammad Ali alias Sudheer was already confined in District Jail Malir in another criminal case". In the cross-examination PW-4 admitted as follows:- "It is correct that employees of Jail department were not made mashirs of arrest".

12. PW-4 is mashir of arrest, Investigating Officer did not abide by the rules to invite independent witnesses from the employees of jail to avail opportunity of section 103, Cr.P.C., it seems that there is crystal clear violation of mandatory provisions of section 103, Cr.P.C. The pre requisite of mandatory provisions of section 103, Cr.P.C. entails as follows:-

103. Search to be made in presence of witness. (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. (2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code. It has been held in 2000 SCMR 683 in the case of Tayyab Hussain Shah v. The State, as follows:

S.103

Penal Code (XLV of 1860), S. 302/34

Search in presence of witnesses

Mandatory, requirement

Requirement of making two members of the public of the locality as Mashirs to the recovery is mandatory unless was shown by the prosecution that was not possible in the circumstances of the case to have two Mashirs from the public. The evidence of PW-5 is immaterial. PW-6 ASI Azhar Iqbal at Ex.8 deposed as follows:- "On 26.11.2013, 1 was posted as ASI at Police Station Malir Cantt. On that date, I was in police party headed by SIP Malik Akram. Accused Mohammad Ali alias Sudheer arrested in crime No. 144/2013 led the police party towards Memon Goth, when we reached near Shamsi Farm accused Sudheer got stopped the police mobile we alighted from police mobile, the accused dug earth and took out a shopper containing two mobile phones and a copy of CNIC issued in favour of Sibghatullah and produced the same before SIP Muhammad Akram, who sealed the same at spot, prepared such mashirnama of recovery and obtained my signature on it. PC Khurram Saleem also signed the mashirnama. I produce the mashirnama of recovery at Ex.8/A, it is same, correct and bears my signature so also of co-mashir. We thereafter came back at Police station. Investigating Officer recorded my statement under section 161, Cr.P.C. Accused Muhammad Ali alias Sudheer present in Court is same. The case property viz. mobile phone and copy of CNIC of Sibghatullah produced by accused, lying in Court are same. I produce mobile phone as Article-1 and copy of CNIC as Article-2. Accused Muhammad Ali @ Sudheer present in court is same. In the cross-examination, PW-6 admitted as follows:- "It is correct the descriptions of the mobile produced by the accused are not mentioned in the memo of arrest and recovery." PW-7 SIP Mumtaz Hussain at Ex.9 in the examination-in-chief deposed as follows:- "On 11.09.2013 I was posted as SIP in investigation branch of Police Station Malir Cantt. On that date I received FIR No. 144 of 2013 under section 397, P.P.C. for investigation. On 12.09.2013 I visited the place of incident on the pointation of PWs Sabghatullah or Saifullah, I do not remember their exact names. The place of incident was situated on Damloti Road Shamsi Poultry Farm. Nothing was secured from the place of incident. I prepared such mashirnama of wardat and obtained the signatures of Khateeb Safiullah. I do not remember the name of other mashir. I see the mashirnama of wardat at Ex.4/A, it is same, correct and bears my signature". In the cross-examination this witness admitted as follows:- "I do not remember the roznamcha entry number whereby I received the investigation of this case. I have not produced any entry nor I remember the roznamcha entry number of my any departure in respect of investigation of this case". Thus PW-7 being Police Officer/Investigating Officer was not able to produce daily station diary register entries either arrival and the departure whether this was a piece meal investigation for which no plausible explanation is required and offered as otherwise in such a heinous type of offences the prosecution is responsible to be careful in all aspects of the case. PW-9 SIP Sultan Ahmed at Ex.12, in the examination in chief deposed as follows:- "On 11.09.2013 I was posted as SIP at Police Station Malir Cantt. and was duty officer from 08:00 a.m. to 08:00 p.m. On that date at about 02.11 p.m. Sobedar Azhar Ali came to Police Station and informed that Naib Khateeb Muhammad Siraj during robbery has sustained fire shot injury and admitted in CMH Malir Cantt. and made such entry No.32 in the roznamcha". In the cross-examination PW-9 admitted that:- "It is correct that I have not produced roznamcha entry No.32. It is correct that complainant in her statement under section 154, Cr.P.C. did not disclose that who informed her about the incident". PW-10 Muhammad Akram vide Ex.13 in the examination-in-chief deposed as follows:- "On 13.11.2013 I was posted as SIO Investigation Branch Police Station Malir Cantt. On that date, I received the police papers in crime No. 144/2013, under section 397, P.P.C. for further investigation. SIP Mumtaz was the first investigating officer, who after completing investigation submitted the report under A class. On 16.11.2013 I recorded statements under section 161, Cr.P.C. of PWs Sibghatullah and Bahawal Bux. During investigation I approached Police Station Memon Goth and came to know about the arrest of one accused Muhammad Ali alias Sudheer remanded to judicial custody in FIRs Nos. 116 of 2012 and 71 of 2013 of Police Station Memon Goth. On the same date I also received spy information that said accused Muhamamd Ali @ Sudheer is also involved in this crime. On 18.11.2013 I called both PWs Sibghatullah and Bahawal Bux, showed them the photo of criminals available in police record. Both the witnesses on seeing the photo of Muhammad Ali alias Sudheeer showed their 80% suspicion regarding the involvement of Muhamamd Ali alias Sudheer in this crime. I made such entry in roznamcha which I produce as Ex.13/A. On 20.11.2013, with the permission of trial Court, I went to District Jail Landhi and arrested accused Muhammad Ali alias Sudheer in this case under mashirnama, prepared in presence of mashir ASI Shahzad Hussain and PC Khurram. I see mashirnama of arrest as Ex.6/A, it is same correct and bears my signature so also of mashirs. During investigation I interrogated the accused who admitted before me about his guilt and also disclosed the names of his associates to be Guddo and Papu Sindhi. During interrogation the accused also stated that he received mobile phone, cash of Rs.4000/5000 and some documents as his share in robbed property out of which he has spent the amount whereas mobile phone and documents he has thrown in bushes near Shamsi Farm Dumloti Road and volunteered to produce the same. On his admission we took the accused towards the place of recovery on 25.11.2013 but due to late hours there was darkness, therefore, nothing was recovered. I made such entry No.34 dated 25.11.2013, in roznamcha, which I produce as Ex.13/B. I also made arrival entry No.38 dated 25.11.2013 in roznamcha which I produce as Ex.13/C. Again on next date i.e. 26.11.2013 we went towards the place of recovery where on the pointation of accused we reached near bushes. The accused dug the earth and produced before me the mobile phone and colored copy of CNIC of Sibghatullah lying in plastic bag, I seized the said property and prepared such mashirnama of recovery in presence of mshirs ASI Azhar Iqbal and PC Khurram. I see mashirnama of recovery as Ex.8/A, it is same correct and bears my signature so also of mashirs. I made such entry in roznamcha dated 26.11.2013 showing our departure towards the place of incident which I produce as Ex.13/D. After recovery we came back to Police Station and made such entry in roznamcha which I produce as Ex.13/E. After completing investigation I submitted the challan in the court of law. Accused Muhamamd Ali alias Sudheer present in Court is same. Property viz. mobile phone and colored copy of CNIC of Sibghatullah and also photograph lying in Court are same, which I produce as Article-1". In the cross-examination PW-10 admitted as follows:- "It is correct that the complainant in his statement recorded under section 154, Cr.P.C. has not given the description of mobile phone recovered by me on the pointation of accused. I have not produced roznamcha entry regarding the statement of prosecution witnesses recorded by me. It is correct that I had not produced accused Muhammad Ali before the Magistrate for his identification test through prosecution witnesses. It is correct that before proceeding towards the place of recovery, I did not arrange private witnesses."

13. PW-10 did not produced appellant before the concerned Judicial Magistrate for holding identification parade, appellant only produced before learned Judicial Magistrate [concerned] in court which is in contravention of correspondence and norms for safe criminal administration of justice therefore, identification in court by the witnesses is also of no value in terms of law laid down in Sultan's case [PLD 1976 B.J. 10]. In the case of Khawaja Hassanullah v. The State reported 1999 MLD 514, it has been held as follows:- "

Art. 9

Identification parade

Purpose

Sole purpose of identification test is to ensure that an innocent person, either deliberately or by mistake, is not involved in the case

Identification of accused is not a legal requirement but when it is necessary, Court is duty bound to examine all the possible steps were taken for holding fair identification test and the witnesses, at their own, had correctly picked up the culprits".

S. 365-A

Abduction for ransom

Sentence

Work of culprits in cases of abduction for ransom is mostly divided and pre-planned

Abduction is done by some of the culprits, place of confinement is guarded by orders and ransom is extorted by one or two of them

Object of all the culprits being to extort money, punishment could be the same irrespective of the role played by each of them". In the case of Muhammad Afzal 1982 SCMR 129, it has been held as follows:

S. 302

Identification proceedings

Value

Not safe to accept statement of a witness about complicity of an accused in a crime if witness did not describe accused by name or other particulars during investigation and still not made to identify him out of a group

Identity of accused if proved by other convincing evidence, direct or circumstantial, absence of identification test proceedings, held, immaterial

[Identification]. (c) Penal Code (XLV of 1860)

"

S.302

Evidence, appreciation of

Identity of accused in no way found doubtful and corroborated by recoveries made at instance of accused

Conviction not interfered with [Identification]".

14. Apparently appellant was already under arrest in some other case bearing crime No. 116 of 2013, registered under section 394/34, P.P.C. Police Station Memon Goth. PW-Bahawal Khan was given notice on 27.11.2013 for appearance before the Judicial Magistrate, prior to this PW-Bahawal Khan was shown photographs of culprits by Investigating Officer at Police Station, PW-Bahawal Khan suspected one of them to be accused of the alleged offence; but no specific photograph has been picked and choose as alleged by PW-Bahawal Khan in justifying accused, on suspicion present appellant was assumed as an accused of the offence. Same is also evidence of PW-3 Naib Khateeb Sibghatullah vide Ex.5. No proper identification parade was held before the concerned Judicial Magistrate as is required under the Law. Thus the credibility of evidence of above prosecution witnesses is not free from any doubt. There is nothing on record with regard to the confessional statement of accused before the learned Judicial Magistrate. As alleged mud was recovered from the place of occurrence but same has not been produced before the learned lower court nor it's report has ever been submitted or exhibited before the learned lower court. As regard to the evidence of PW-8 Dr. Captain Mohammad Ashfaq vide Ex.11 deceased received gunshot wound on his neck. In the FIR it is also missing that what kind of weapon assailants were holding when the eye-witnesses disclosed that deceased received fire shot upon his head and doctor opined deceased was having injury at his neck, kind of weapon has not been detailed in the whole episode; there is double presumption of truth also attached because injury as has been inflicted has not been defined properly either by the eye-witnesses and the doctor. The crime weapon has also not been recovered at the pointation of appellant or from his possession. The Q Mobile as alleged has been recovered, the features and description of the cellular has also been missing either in the FIR or in the evidence deposed everywhere. It has been laid in the case of Muhammad Iqbal v. The State, reported in PLD 1996 Lahore 402, it has been held as follows:- (c) Qanun-e-Shahadat (10 of 1984)

"

Art. 71

Direct evidence

Law insists for a direct evidence of the primary source and it would be inadmissible if it comes from an indirect source".

15. Looking to the above evidence of PW-4 and 6, it is amazing PW-2 and PW-3 eye-witnesses deposed that one of the culprits then fired at deceased which hit his head resultantly he fell down. The culprits thereafter ran away towards Memon Goth on their motorcycle, thus present appellant was earlier in custody in some other case was arrested in the present case and pointed out the place of incident as alleged on 26.11.2013 when the incident as alleged was happened on 11.09.2013. It is astonishing that assailants after committing robbery and fired at deceased fled the scenario at-once altogether, now the question would arises with regard to the alleged recovery whether present appellant after committing such an offence arrived thereafter again at the place of incident and had hiden plastic bag and cellular as alleged for his arrest and pointation, the answer would be no, if the answer would be no than the recovery as alleged has been effected on the poination of present appellant is dubious in the circumstances. Apart from above, there is altercation of charge into the proceedings which is precise formulation of the specific accusation made against a person who is entitled to know its nature at the early stage. The purpose of a charge is to tell an accused as precisely and concisely as possible the matter in which he is charged and must convey to him with sufficient clearances and certainty what the prosecution intends to prove against him and of which he will have to clear himself. It is just like an agreement with the arguments of learned defence counsel that learned trial court Judge has taken an erroneous view of the matter. He could not change section of law without affording opportunity of hearing and defence to the appellant, which has caused prejudice to the prosecution case as well as to the appellant. Since the impugned judgment is legally incorrect, therefore, the case leads for acquittal as well. Be that as it may, learned trial Court Judge has also not formulated a question in the statement recorded under section 342, Cr.P.C. to cure lacuna left in the case questionable for appellant as such the strong reasons for not using the same against the appellant which too weakened the case of prosecution. It is important to note that all incriminating pieces of evidence, available on record are required to be put to the accused as provided under section 342, Cr.P.C. which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him", therefore after evaluating all above factors of the appeal in hand it would lead appellant comes within the domain of benefit of doubt. I am also fortified with the case law reported by the Hon'ble apex Court in 1995 SCMR 1345 Tariq Pervez v. The State, it has been held as follows:- "

Art. 4

Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".

16. For what has been discussed above, the prosecution case is not free from doubt therefore while extending benefit of doubt in favour of appellant. The instant Criminal Appeal is allowed. Appellant is directed to be released forthwith if not required in any other case. These are the reasons of short order dated 13-12-2018. JK/M-24/Sindh Appeal allowed.