2022 PLP 43 (YLRN)

SADAQAT ALI KHAN, J.

Iftikhar and Falak Sher (appellants) along with Asghar Ali (co-accused since acquitted) have been tried by learned trial Court in case FIR No.695 dated 25.09.2014 offences under sections 302/ 337-F3/ 109/ 394/ 397/ 411/34, P.P.C. registered at Police Station Ghalla Mandi Sahiwal, and were convicted and sentenced vide judgement dated 29.04.2017 as under:-- Iftikhar (appellant) Under section 302(b), P.P.C. Sentenced to DEATH for committing Qatl-i-Amd of Muhammad Jahangir (deceased) with compensation of Rs.200,000/- payable to legal heirs of deceased under section 544-A, Cr.P.C. in default thereof to further undergo 1-year S.I. Under section 394, P.P.C. Sentenced to 10-years R.I. as Tazir along with fine Rs.200,000/- and in default thereof to further undergo 1- year's S.I. Under section 337-F3, P.P.C. Sentenced to 3-years R.I. for causing injury to Wajid Jaffar along with compensation Rs.50,000/- to be paid by him to injured Wajid Jaffar and in default thereof to further undergo 6-months S.I. Falaksher (appellant) Under section 302(b)/34 P.P.C. Sentenced to imprisonment for life in furtherance of common intention for participating in the offence of Qatl-e-Amd of Muhammad Jahangir (deceased) Under section 394, P.P.C. Sentenced to 10-years R.I. as Tazir along with fine Rs.200,000/- and in default thereof to further undergo 1-year S.I. Under section 337-F3/34, P.P.C. Sentenced to 3-years R.I. in furtherance of common intention and becoming part of the occurrence of causing injury to Wajid Jaffar along with compensation Rs.50,000/- under section 544A, Cr.P.C. to be paid by him to injured Wajid Jaffar and in default thereof to further undergo 6-months S.I.

2. Appellants have filed Criminal Appeals against their convictions, whereas learned trial Court has sent Murder Reference for confirmation of death sentence of Iftikhar (appellant) or otherwise, which are being decided through this single judgment.

3. Brief facts of the case have been stated by the complainant Sher Muhammad (PW-2) in his statement before the learned trial Court, which is hereby reproduced under for narration of the facts:-- "On 25.9.2014 I, Mazher PW and Jehangir deceased came in Ghalla Mandi Sahiwal on Car No.1341/SLA for getting money from different commission shops of Ghalla Mandi and after receiving cash amount of Rs.17000/, 03-cheques, some receipts we started for Harappa on our car and when we reached near Sunehri CNG pump situated at GT road Sahiwal, It was about 4:15 p.m, in the meantime two persons riding on red coloured Honda 125 motorcycle No.SLK/ 7125 challenged us. I can identify those persons present in the court. Upon which the driver stopped our car. The middle statured man challenged Jehangir deceased and demanded the amount which was obtained by him from Ghalla Mandi. Jehangir deceased refused to give the amount upon which the said person pulled out Jehangir deceased from the Car. The long statured man started making search of Jehangir deceased and took out the amount, receipts, cheques and other documents from the pocket of Jehangir deceased. In the meantime, Wajid Jafar (PW) reached there and he on seeing the 'wardat', he tried to caught hold Falak Sher accused into Japha upon which, the middle statured man armed with rifle whose name I came to know later on as Iftikhar at the time of identification parade, made fire shot with rifle at the right flank of Wajid Jafar (PW) upon which Wajid Jafar (PW) fell injured. Then Jehangir deceased tried to caught hold the person armed with rifle, the said person fired with his rifle on the left chest of Jehangir deceased which went through and through. Jehangir deceased fell injured. We raised hue and cry, upon which the passerby started attracting towards place of occurrence upon which the accused persons fled away from the place of occurrence on their motorcycle towards Arifwala chowk Sahiwal while making aerial firing. We shifted the injured in DHQ hospital Sahiwal where Jehangir deceased succumbed to the injuries and Wajid Jafar (PW) was got medically examined by the Doctors. The Thanedar came in the hospital to whom I got recorded my statement Ex. PA which was read over to me and signed by me in token of its correctness."

4. We have heard the learned counsel for the parties as well as learned D.P.G, and on perusing the record with their able assistance observed as under:-- i. During the Commission of robbery, Jahangir was done to death, whereas Wajid Jaffar PW 1 sustained injuries on his person on 25.09.2014 at 4.45 p.m. on the road, FIR was lodged on the same evening i.e. at 5.30 p.m. on the statement of Sher Muhammad, complainant PW2, (brother of Jahangir deceased) against unknown accused. ii. After registration of the FIR, co-accused Asghar Ali alias Asghari (since acquitted) was nominated by the complainant on the day of occurrence i.e. 25.09.2014 by moving written application Exh.PB on the asking of Ashiq Hussain PW 12 and Muhammad Yousuf (given up PW) stating therein that Asghar Ali alias Asghari accused (since acquitted) is the person who was the master mind behind this occurrence and had handed over firearm weapons to two unknown accused (present appellants). iii. The appellants were not nominated in the FIR, arrested in this case being suspects under section 54, Cr.P.C. on 15.12.2014, when they were already under custody in case FIR No.858/2014 under sections 399/402, P.P.C. Police Station Ghalla Mandi Sahiwal, with Ahmad Hassan, S.I. PW15, who specifically stated in his statement (examination-in-chief) before the trial court that on the following day, on 16.12.2014 appellants were sent to judicial lock up i.e. District Jail Sahiwal for their identification parade. Contrary to this, contents of his application Ex. PQ made by him before the District and Sessions Judge Sahiwal, for identification parade shows that appellants were arrested on 15.12.2014 and sent to judicial lock up on the same day for identification parade, order of the learned District and Sessions Judge, Sahiwal was passed on the same day i.e. 15.12.2014 directing Muhammad Zahid Fareed, Magistrate 1st Class, Sahiwal, to do the needful. iv. On 16.12.2014, Ahmad Hassan S.I. PW15 again moved an application before the concerned Magistrate for fixation of date for the identification parade which was 20.12.2014. v. Report of identification parade Exh.PQ/S shows that Falaksher (appellant) at the time of identification parade was in standing position. It is also mentioned in the body of the report that dummies were also standing at that time, same was the case of Iftikhar (appellant). Contrary to this, Sher Muhammad PW2 specifically stated in his cross-examination that both these accused were in sitting position along with dummies when he identified them. He (Sher Muhammad complainant PW2) stated in his cross-examination that he does not know that both the appellants were already under custody of police of Police Station Ghala Mandi much earlier before the present occurrence. vi. Likewise Wajid Jaffar injured PW1 (contrary to the contents of report of identification parade Exh.PQ/S) Stated in his cross-examination that the accused and dummies were sitting at the time of test identification parade in the jail. He does not know that appellants were already under arrest in some other case of Police Station Ghala Mandi before test of identification parade. vii. In this case occurrence took place on 25.09.2014 at 4.15 p.m. whereas identification parade was held on 20.12.2014. Both the appellants while raising objection during identification parade stated before the magistrate that they were under custody for the last three months, witnesses had seen them in police lockup and also made their photographs. viii. Muhammad Zahid Farid, (the then judicial Magistrate) PW 11 admitted in his cross-examination that the accused persons were put to the test of identification parade without concealing their apparent identification marks, surely the PWs can conveniently identify the accused persons from those identification marks and it would be a defect of the identification parade. He admitted in his cross-examination that according to the certificate of' ( ) left ring finger of Falak Sher (appellant) was amputated and it was his identity mark as per certificate. He admitted in his cross-examination that there was a healed mark of wound on the forehead, above left eye of Iftikhar (appellant), and it was his identification mark. He admitted in his cross-examination that he did not direct Falaksher appellant to conceal his hands nor he directed dummies to hide their hands to mix up Falaksher (appellant) in 8-dummies. Throughout identification parade of Falak Sher (appellant), he was made to sit at serial No.5 in between 8-dummies for holding his identification parade. (Contrary to the contents of report Exh.PQ/S wherein Falaksher (appellant) was standing). He admitted in his cross-examination that at the time of identification parade of Iftikhar (appellant), he did not cover his identity mark i.e. mark of wound above left eye on the forehead in order to conceal his identity mark. He admitted in his cross-examination that it was the objection of both the accused persons (Falak Sher and Iftikhar appellants) that they were confined in police lock up for the last 2-1/2 /3-months by the police of Ghala Mandi, were shown to the PWs several times, they had taken their snaps when they were confined in police lock up. ix. It is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identification parade, all these precautions should not only be taken but should be proved to have been taken and these should be recorded in the initial record like general diary of the police station and the daily register and the same should be produced in the Court. In the absence of such evidence of taking of precautionary measures, no value can be attached to the identification of the accused by witnesses. In the present case neither Ahmad Hassan S.I. PW15 who arrested the appellants nor any other police official has stated before the trial court qua taking of above discussed precautionary measures. (2011 SCMR 563 Sabir Ali alias Fauji v. State) and (2011 SCMR 769 "Muhammad Ayaz and others v. The State"). x. Muhammad Zahid Afridi (the then Judl. Magistrate) PW 11, has not stated that two rows in which each appellant was present separately were made by him and were not already made by the jail authorities. This procedural defect makes the authenticity of the identification parade also doubtful. (2010 SCMR 1189 "Bacha Zeb v. The State"). xi. Even otherwise, identification, parade in presence of above discussed infirmities and contradictions has lost its evidentiary value which cannot be relied upon. xii. The argument of learned counsel for the complainant that Wajid Jafar PW1 sustained injuries during the occurrence whose presence cannot be discarded which alone is sufficient for conviction of the appellant has no substance because mere injuries on the person of injured PW would not stamp him the truthful witness. (2011 SCMR 323 "Amin Ali and another v. The State") xiii. Ahmad Hassan, S.I., I.O. of the case, PW15 stated in his statement (examination-in-chief before the trial court that at the time of arrest of Iftikhar (appellant) on 15.12.2014, Rifle 44-bore Exh.P16 was recovered. This witness has not stated that its parcel was also made at the same time, which is not believable. Ahmad Hassan, S.I., I.O. of the case, PW15 further stated in his statement before the trial court that on 02.01.2015 Iftikhar (appellant) during interrogation disclosed and got recovered Rs.5000/-, registration Book of Car and three receipts but had not specifically stated the place of recovery. Likewise, this witness (Ahmad Hassan, S.I, I.O. of the case PW15) stated in his statement before the trial court that on the same day, Falaksher (appellant) also got recovered Rs.5000/- but did not specifically disclose its place of recovery, hence this recovery is not believable.

5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances, creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.

6. For the foregoing reasons, both the appeals are allowed, convictions and sentences of the appellants (Iftikhar and Falaksher) awarded by learned trial Court through impugned judgment are hereby set-aside and they are acquitted of the charges. They are directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of appellant (Iftikhar) is NOT CONFIRMED. JK/I-21/L Appeals allowed.