2021 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

The appellant namely Aneel Iqbal alias Nomi son of David Iqbal was tried by the learned Additional Sessions Judge, Rawalpindi along with Kashif alias Kashee son of Saleem Masih ( since acquitted) in case FIR No. 260 of 2016 dated 24.03.2016 registered at Police Station Sadiqabad, Rawalpindi in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-amd of Muhammad Mazhar Khan son of Walayat Khan (deceased). The learned trial court vide judgment dated 24.04.2018 convicted Aneel Iqbal alias Nomi son of David Iqbal (convict) and sentenced him as infra: Aneel Iqbal alias Nomi son of David Iqbal: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Mazhar Khan son of Walayat Khan (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead. Kashif alias Kashee son of Saleem Masih, the co-accused of the appellant , however, was acquitted by the learned trial court.

2. Feeling aggrieved, Aneel Iqbal alias Nomi son of David Iqbal (convict) lodged Criminal Appeal No.486 of 2018 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.31 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to Aneel Iqbal alias Nomi son of David Iqbal (appellant ). We intend to dispose of the Criminal Appeal No.486 of 2018 and Murder Reference No.31 of 2018 through this single judgment.

3. Precisely the facts necessary, as stated by Muhammad Ishfaq Khan (PW-9) , the complainant of the case, are as under: - "Stated that on 24.03.2016, I was present in my own shop namely Dawn Mobile situated in Nishtar Street Muslim Town, Saqiabad. My brother Muhammad Mazhar Khan also works with me at my shop on the same day at about 07.30 p.m. we both were present in our shop. One boy having a moustache with a skinny came into my shop and he ask about Telenor mobile phone. I told him that it was of Rs.5,000/- on which that boy ask for discount. I further told him that he could get mobile in Rs.4,800/- subsequently my brother namely Mazhar Khan told him that there was a cheaper mobile also available in the shop, but that boy left the shop. Thereafter, half an hour that boy along with one another companion having a fat body, intruded into my shop. The body(sic) having moustache pointed a pistol on my brother Mazhar Khan and shouted "Chor Chor" on which that boy made a straight fire on my brother Mazhar Khan which hit him on his chest at the right side of the front side of his body. My brother got injured and fell down. Both unknown accused fled away on motorcycle while brandishing there weapon. One Arshad and Yasir attracted to spot and escorted the dead body to the hospital. Police officials came to hospital and reduced into writing my statement Ex.PG which were signed by me. On 24.03.2016 I proceeded to place of occurrence along with Muhammad Arshad Khan. I.O. inspected the place of occurrence in my presence and secured one empty of pistol 30 bore vide recovery memo Ex-PJ which was signed by me and Arshad Khan, I.O. also secured blood through cotton from the place of occurrence which he took into possession through recovery memo Ex-PK attested by me and M. Arshad my statement was recorded by Investigating Officer under section 161, Cr.P.C. On 02.05.2016, I was telephonically informed by police for identification parade of accused persons in Adayala Jail. I along with Arshad Khan proceeded to Adayala Jail on 03.05.2016 where identified the accused persons whose names were subsequently came into my knowledge as Aneel Iqbal and Kashif present in the court in presence of SJM Mr. Mumtaz Ahmed Mughal. I also described the role of both accused before learned SJM. On 17.05.2016 I was present in my shop where accused Aneel Iqbal and Kashif were brought by police who pointed out the place of occurrence and I.O. prepared memo of pointation of place of occurrence Ex-PL which was signed by me and Muhammad Arshad Khan. On 18.05.2016 accused Aneel Iqbal disclosed in my presence that the pistol which he used in the occurrence could be recovered by him. On this revelation accused Aneel Iqbal led the police to the place of recovery i.e. house situated in Graveyard Shakrial Kuri Road, Rawalpindi. Accused took out pistol P7 from the house of Muhammad Akbar after digging out the soil and presented the same to the I.O, which was unloaded by him and on unloading the same three live bullets P8/1-3 who took into possession through recovery memo Ex-PM which was signed by me and Arshad Khan. My statement under section 161, Cr.P.C. was recorded by the I.O, I wish accused persons be hanged till death.." (emphasis supplied)

4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Aneel Iqbal alias Nomi son of David Iqbal along with his co-accused namely Kashif alias Kashee son of Saleem Masih (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 24.10.2016, to which the accused pleaded not guilty and claimed trial.

5. The prosecution/complainant in order to prove its case got recorded statements of thirteen witnesses. Muhammad Ishfaq Khan (PW-9) and Yasir Abbasi (PW-10) gave evidence regarding the ocular account of the incident. Khurram Shahzad, draftsman (PW-1) prepared the sealed site plan of the place of occurrence (Exh. PA) . Noor Jamal 2021/HC (PW-2) stated that on 24.03.2016 Muhammad Zubair S.I., (PW-11) handed over to him two sealed parcels said to contain blood stained cotton and an empty which on 29.03.2016 he handed over the said parcels to Muhammad Zubair, S.I. (PW-11) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Noor Jamal 2021/HC (PW-2) further stated that on 18.05.2016 Muhammad Zubair, S.I. (PW-11) handed over to him a sealed parcel said to contain a pistol which on 25.05.2016 he handed over the said parcel to Muhammad Zubair, S.I. (PW-11) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Hafeez 4275/C (PW-4) and Aqeel Ahmad 6740/HC (PW-5) stated that on 28.04.2016 Muhammad Zubair S.I. (PW-11) arrested the appellant namely Aneel Iqbal alias Nomi son of David Iqbal along with his co-accused namely Kashif alias Kashee son of Saleem Masih (since acquitted). Zia Pervez, S.I. (PW-6) stated that on 24.03.2016 he recorded the formal FIR (Exh. PG/1). Zafar Iqbal, S.I. (PW-7) stated that on 24.03.2016 he recorded the statement (Exh. PG) of Muhammad Ishfaq Khan (PW-9), prepared the inquest report (Exh. PC) and handed over the dead body of the deceased to Azhar Naseem 77/HC (PW-8) for getting the post mortem examination conducted. Yasir Noman 7256/HC (PW-12) stated that on 04.04.2016 he handed over the Call Data Record of the phone number 0345 5479735 (Exh. PN/1-35) to Muhammad Zubair, S.I. (PW-11). Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) stated that on 03.05.2016 he conducted the test identification parade proceedings (Exh. PQ) of the appellant namely Aneel Iqbal alias Nomi son of David Iqbal and his co-accused namely Kashif alias Kashee son of Saleem Masih (since acquitted). Muhammad Zubair, S.I. (PW-11) investigated the case from 24.03.2016 till 26.07.2016 arrested the appellant on 28.04.2016 and narrated the facts of investigation as conducted by him in his statement before the learned trial court.

6. The prosecution also got Dr. Shahid Aziz Awan, (PW-3) examined who on 24.03.2016 was posted as CMO at DHQ Hospital, Rawalpindi and on the same day conducted the postmortem examination of the dead body of Muhammad Mazhar Khan son of Walayat Khan (deceased). Dr. Shahid Aziz Awan, (PW-3) on examining the dead body of the deceased Muhammad Mazhar Khan son of Walayat Khan observed as under:- "

1. Entry wound 1 x 1.5 cm 2 cm right to the right nipple in front of chest with edges inverted.

2. Exit wound 2 x 1.5 cm mid back of the chest on the right side, .4 cm from mid line edges everted. On opening the chest, right lung was found punctured through and through. Cause of death. Injury to the vital organ i.e right lung resulting in bleeding, chest was full of blood resulting to death. "

7. On 06.07.2017 the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Kashif 8878/C as being unnecessary and on 09.04.2018 the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Arshad Khan as being unnecessary. On 10.04.2018 the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PW) regarding blood stained cotton and the report of Punjab Forensic Science Agency, Lahore (Exh.PV) regarding the comparison of the empty and the pistol.

8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Aneel Iqbal alias Nomi son of David Iqbal under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. Aneel Iqbal alias Nomi son of David Iqbal (appellant) further stated that he had not committed the occurrence and had been made a scapegoat in the case in order to show efficiency by the police. The appellant namely Aneel Iqbal alias Nomi son of David Iqbal opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.

9. On the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi convicted and sentenced the appellant as referred to above.

10. The contention of the learned counsel for the appellant is that whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. He further contended that the statements of the prosecution witnesses were not worthy of any reliance. He further contended that the appellant was neither nominated in the FIR nor in the statements of witnesses recorded on the first day and the test identification parade proceedings as conducted were full of procedural defects and of no legal worth and value. The learned counsel for the appellant 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 appellant finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt.

11. On the other hand, the learned Deputy District Public Prosecutor contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned Deputy District Public Prosecutor further argued that the deceased died as a result of injuries suffered at the hands of the appellant. Learned Deputy District Public Prosecutor further contended that the medical evidence also corroborated the statements of Muhammad Ishfaq Khan (PW-9) and Yasir Abbasi (PW-10). Learned Deputy District Public Prosecutor further argued that the recovery of the pistol .30-bore (P-8) from the possession of the appellant also corroborated the ocular account. Learned Deputy District Public Prosecutor submitted that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy District Public Prosecutor prayed for the rejection of appeal.

12. We have heard the learned counsel for the appellant, the learned Deputy District Public Prosecutor and with their assistance have perused the evidence produced during the trial.

13. The appellant namely Aneel Iqbal alias Nomi son of David Iqbal was not named as an accused in the oral statement (Exh. PG) of Muhammad Ishfaq Khan (PW-9) and it had been recorded that two unknown persons came inside the shop of Muhammad Ishfaq Khan (PW-9) and thereafter committed the occurrence. According to the oral statement (Exh. PG) of Muhammad Ishfaq Khan (PW-9), the person having a slender body, square face and with a mustache was the one who fired at the deceased. As per the prosecution case, out of the two eye-witnesses who appeared before the Court, only one witness namely Muhammad Ishfaq Khan (PW-9) joined the test identification parade proceedings held to establish the identity of the assailants. The other witness namely Muhammad Arshad Khan, who joined the said test identification parade proceedings held to establish the identity of the assailants did not appear before the learned trial court and was given up by the prosecution as being unnecessary. The prosecution witness namely Yasir Abbasi (PW-10) admittedly did not join the test identification parade proceedings held to Iestablish the identity of the assailants. Both the witnesses namely Muhammad Ishfaq Khan (PW-9) and Yasir Abbas (PW-10) were admittedly not the residents of area around the place of occurrence and admittedly resided at some distance from the same . Muhammad Ishfaq Khan (PW-9) stated during cross-examination that on and before the day of occurrence he was residing at Noon colony situated at Dr. Abdul Qadeer Khan Road, Rawalpindi , whereas the occurrence had taken place inside his shop situated at Nishtar Street Muslim Town, Sadiqabad. Muhammad Ishfaq Khan (PW-9) claimed that he was running the shop where the occurrence took place along with his deceased brother namely Muhammad Mazhar Khan son of Walayat Khan hence he was present there at the time of occurrence however he failed miserably to prove the said claim. The claim of Muhammad Ishfaq Khan (PW-9) was that he was engaged in the business of selling mobile phone devices, however, he admitted during cross-examination that he could not provide any documentary proof of the same. Muhammad Ishfaq Khan (PW-9) during cross-examination stated as under:- "I do not have any documentary proof of mobile business regarding relevant time." Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case, also did not collect any evidence so as to establish that Muhammad Ishfaq Khan (PW-9) was engaged in the business of selling mobile phone devices. Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case, at the time of visiting the place of occurrence only collected blood stained cotton and empty from the place of occurrence , however did not collect any other article so as to prove that the shop where the occurrence had taken place was indeed being used for selling mobile phone devices. The owner of the shop identified as Aurangzaib neither joined the investigation of the case nor appeared before the learned trial court to prove that the shop was being indeed run by Muhammad Ishfaq Khan (PW-9). Muhammad Ishfaq Khan (PW-9) also claimed that the tenancy of the shop was in his name but failed to produce any document to support his claim. Muhammad Ishfaq Khan (PW-9) did not produce any documentary evidence to prove that he was running the shop wherein the occurrence took place. None of the shopkeepers appeared before either the Investigating Officer or the learned trial court to prove that Muhammad Ishfaq Khan (PW-9) was running the shop.We have also noticed that despite the claim of Muhammad Ishfaq Khan (PW-9) that he escorted the dead body of the deceased to the hospital after the occurrence however he was not mentioned as the person who was available near the dead body according to the inquest report (Exh. PC) at the time of preparation of the same by the Investigating Officer of the case. It was the bounden duty of the prosecution to prove each and every relevant fact and in case of their failure to do so we cannot presume the existence of the same. Muhammad Zubair, S.I. (PW-11) , the Investigating Officer of the case, did not even observe any mark of bullet of any of the wall of the shop nor collected the bullet itself which allegedly had hit the deceased and exited from his body. The claim of the other eye-witness namely Yasir Abbasi (PW-10) was that on the day of occurrence he went to meet Muhammad Ishfaq Khan (PW-9) and while coming out of the shop he heard a fire shot and saw two persons leaving the shop of Muhammad Ishfaq Khan (PW-9). Yasir Abbasi (PW-10) admitted during cross-examination that the deceased was the brother in-law of his brother. Yasir Abbasi (PW-10) further admitted that he was living at Khana Pull during the days of occurrence and was working in the Holy Family Hospital, Rawalpindi. Yasir Abbasi (PW -10) further claimed that he had gone to the Sadiqabad for purchasing some articles, however he never bought those articles. We have also noted that in the oral statement (Exh. PG) of Muhammad Ishfaq Khan (PW-9), Yasir Abbasi, (PW-10) is not even mentioned as a witness. We have also noticed that Muhammad Ishfaq Khan (PW-9) and Yasir Abbasi (PW-10) claimed that they escorted the dead body of the deceased to the hospital after the occurrence and in this manner their clothes must have been stained with blood. Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case did not take any such blood stained clothes of the witnesses in possession. Muhammad Zubair SI (PW-11), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of the eye-witnesses, which were stained with blood, into possession and if these had been sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye-witnesses namely Muhammad Ishfaq Khan (PW-9) and Yasir Abbasi (PW-10). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence. Both these witnesses were under a duty to provide convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein it has been held as under:- "

20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye- witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses." The august Supreme Court of Pakistan in the case of Mst. Mir Zalai v. Ghazi Khan and others (2020 SCMR 319) has held as under:- "Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced". The august Supreme Court of Pakistan in the case of Nadeem alias Kala v. The State and others (2018 SCMR 153) has held as under:- "For the following reasons the prosecution case against the appellant is doubtful in nature.-- (a) ............. (b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injured condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross-examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police." In this manner, it was proved that both the witnesses namely Muhammad Ishfaq Khan (PW-9) and Yasir Abbas (PW-10) failed to prove their presence at the place of occurrence.

14. As mentioned above, Yasir Abbasi (PW-10) , the prosecution witnesses who stated that he saw the accused coming out of the shop after the occurrence, did not join the test identification parade proceedings. Furthermore, when Yasir Abbasi, (PW-10) appeared before the learned trial court he failed to identify the appellant as being seen by him coming out of the shop. It will be the advantageous to reproduce the examination in-chief of Yasir Abbasi, (PW- 10) as recorded by the learned trial court . Yasir Abbasi, (PW-10) stated as under:- "Stated that on 24.03.2016, I went to meet my relatives Muhammad Ishfaq and Mazhar Khan in their place of business. Dawn Mobile Shop situated at Nishter Road. Sadiqabad. Both Muhammad Ishfaq and Mazhar Khan were present in their shop. After meeting them at about 08:00/08:15 p.m. I came out of the their shop. No sooner I left the shop I heard a fire shot made in the shop of M. Ishfaq and Mazhar Khan. I saw two boys coming out of the shop who fled away on motorcycle in my presence. One of them was six feet height having moustache, whereas the other one having Sawala complexion and a fact body who I can identify if seen once. I suddenly rushed to the shop wherein Mazhar Khan was lying in a injured condition. I along with M. Ishfaq PW and Muhammad Arshad escorted the injured to the hospital where Mazhar Khan injured succumbed to the injured. After postmortem of deceased, I identified the dead body of the deceased in hospital. My statement under section 161, Cr.P.C. was recorded on the same day." (emphasis supplied) Yasir Abbasi (PW-10) during cross-examination further stated as under:- "Pistol was with the hands of tall one and after fire they immediately came out from the shop and ran away on motorcycle which was parked outside." This utter failure of Yasir Abbasi (PW-10) to identify the appellant, present in the same courtroom as the witness, during his statement before the learned trial court clearly establishes that the appellant was not involved in the occurrence. This also evidences that had Yasir Abbasi (PW-10) seen the appellant leaving the place of occurrence then he would have certainly recognized the appellant present before the learned trial court and named him or pointed towards him during his statement . This failure of Yasir Abbasi (PW-10) militates against the whole prosecution case against the appellant.

15. The prosecution only got Muhammad Ishfaq Khan (PW-9) examined out of the two witnesses who had joined the test identification parade proceedings. The august Supreme Court of Pakistan in the case of Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) has enunciated guiding principles for the appreciation of evidence regarding the test identification parade and the statements of the witnesses participating in the same. The august Supreme Court of Pakistan in the case of Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) has held as under: - "

13. In the late 1960s, the courts around the world12, began to set the standard for reviewing eye-witness identification evidence.13 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. Brathwaite15, UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another,16 New Jersey Supreme Court in State v. Madison17 and Oregon Supreme Court in State v. Classen18 settled the following factors for assessing the reliability of the witness: (1) the opportunity of the witness to view the suspect at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the suspect; (4) the level of certainty demonstrated at the confrontation (seeing the accused in court); and (5) the time between the crime and the confrontation (seeing the accused in court). It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research.19 The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval-the "stage during which a person recalls stored information". The process of memory retention and retrieval may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables.21 System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no contro1.22 Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research23 establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process: - i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy, an eye-witness under high stress is less likely to make a reliable identification of the perpetrator."24 ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.25 iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure."26 iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification.27 v. Witness Characteristics: Characteristics like a witness's age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults.28 vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification.29 vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability.30 The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions.31 New Jersey Supreme Court in State v. Henderson32 observed that "virtually all of the scientific evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v. Lawson33.

14. The laws of evidence maintain that in order for the court to take judicial notice of scientific facts they must be part of the general knowledge of men or must be agreed upon by reputable men in a particular field of science beyond reasonable dispute.34 For judges to determine the degree of consensus on a particular scientific fact they may refer to any reputable and recognized sources.35 The House of Lords in Regina (Quiniavalle) Secretary of State of Health36 held that the laws have to be ionstrued in the light of contemporary scientific knowledge and in order to give effect in a plain parliamentary purpose, the status 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." The august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 has mentioned the requirements and safeguards which are to be meticulously followed 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 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 another v. The State (1989 PCr.LJ 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 PLD 1958 SC (Pak.)

1. It has no independent value of its own Muhammad Afzal and another v. The State 1982 SCMR 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 AIR 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 SCMR

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 AIR 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 recognise 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 (1972), observe in Lal Pasand's case PLD 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 pdlice custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous I.Os. showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces if they so choose so that no witness could see them; (c) identification parades should never be held at police stations; (d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings; (e) in order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or

10. This ratio must be 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 along with their parentage, occupation and addresses; (j) the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings; (k) where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence 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 PLD 1981 SC 142, (vii) Muhammad Afzal v. The State 1982 SCMR 129, (viii) Ismail v. The State 1974 SCMR 175, (ix) Khadim Hussain v. The State 1985 SCMR 721, (x) Muhammad Bashir Alam v. The State PLD 1958 SC (Pak.), (xi) Gul Baig v. The State PLD 1964 Kar. 275, (xii) Musharrif Hussain v. The State PLD 1970 Dacca 686, (xiii) Sadu v. The State 1972 PCr.LJ 10, (xiv) Qabil Shah v. The State PLD 1960 Kar. 697, (xv) Wahid Bakhsh v. The State 1969 PCr.LJ 137, (xvi) Karim v. The State PLD 1961 Kar. 728, (xvii) Kameshwar Singh v. The State AIR 1972 SC 1M (xviii) Parbhu v. Emp. AIR 1943 Lah. 946, (xix) Emp. v. Debi Charan AIR 1942 All. 339, (xx) Sataya Naryan v. The State AIR 1953 All. 385, (xxi)- Gajadher v. Emp. AIR 1932 Oudh. 99 and (xxii) Ramzan v. Emp. AIR 1929 Sindh 149." We have failed to find a more elaborate illustration of the requirements and the safeguards necessary for holding a test identification parade than found in the above 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." We have scrutinized the statement of the only prosecution witness namely Muhammad Ishfaq Khan (PW-9) who appeared before the learned trial court and had joined the test identification parade proceedings held to establish the identity of the assailants, in light of the said judgments. Judges hearing a case should be aware of the dangers inherent in the identification of strangers by witnesses who have seen them very briefly. In the present case many estimator variables exist which negatively affect the memory process making it impossible for the witnesses to have identified the accused during the test identification parade proceedings. One of the said factor is that according to the prosecution case itself the occurrence had taken place at about 8.00 p.m, however no source of light, which could have been available at the place of occurrence, in which the prosecution witnesses would have been able to identify the assailants, was taken into possession during the investigation of the case neither the same was produced before the learned trial court. Muhammad Zubair S.I. (PW-11), the Investigating Officer of the case, during his investigation , did not take into 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 make such a positive identity of the assailants at the time of occurrence nor the witnesses themselves produced any such source of light during the investigation of the case or even during the trial. Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case, during cross-examination stated as under:- "Bulb is situated inside the shop but I cannot tell the exact place without looking site plan. I have not taken the said bulb into my possession. Light is also situated outside the shop at the electric pool which is situated at the distance of 10 to 12 feet. Electric pool was situated across the road. It was big street light. It is correct that I have not taken the said light of street into my possession as not required. I cannot tell the exact place of electric pool to whom which shop said electric pool was situated." 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 Zubair S.I. (PW-11), the Investigating Officer of the case, visited the place of occurrence after the occurrence at about 11.30 p.m 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 along with 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 Zubair S.I. (PW-11), the Investigating Officer, to take into possession the electric light bulb allegedly present at the place of occurrence and lighted 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 dark. 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 2 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 v. 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." 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 12 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."

16. We have also noticed that the test identification parade was not conducted as per the law and in violation of Rule 26.32 of the Police Rules, 1934. Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) stated that on 03.05.2016 he conducted the test identification parade proceedings (Exh. PQ) of the appellant namely Aneel Iqbal alias Nomi son of David Iqbal and his co-accused namely Kashif alias Kashee son of Saleem Masih (since acquitted). Matching the description in the first information report of the accused is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellant was hurled and lined-up for the identification parade without the Magistrate first matching the description of the assailants given by the complainant in the FAR as Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) never claimed as such. 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. Furthermore, while holding the test identification parade, Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) failed to observe and mention the heights, complexions of skin, weight , occupation, addresses of the dummies being used during the test identification parade and of the appellant namely Aneel Iqbal alias Nomi son of David Iqbal who was to be identified, which observations were necessary to rule out any possibility of collusion and helping out the witnesses by making the appellant stand out during the test identification parade proceedings. Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) during cross-examination stated as under:- "It is correct that I have not mentioned the addresses of the dummies. I had also not mentioned their respective ages nor their ID Card numbers along with respective offence under which they were confined in jail." As mentioned above, the august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 has mentioned the requirements and safeguards which are to be meticulously followed while holding the test identification parade proceedings and one of the requirement is as under:- "(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line-up at the parade along with their parentage, occupation and addresses;" The learned Magistrate even did not mention the age of the appellant or his physique or whether he had a mustache or not, which was the only description given of the assailments in the oral statement (Exh. PG) of the complainant namely Muhammad Ishfaq Khan (PW-9). According to the oral statement (Exh. PG) the assailant who fired at the (deceased) had a moustache however Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) did not record in his proceedings as to whether the dummies being used had any moustache or not. Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) also admitted that the dummies used for the test identification parade proceedings were wearing different clothes. Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) during cross-examination stated as under: - "The structure of dummies was almost the same but their clothes were not same." The above referred portion of cross-examination establishes that the appellant was exposed and made to stand out in the midst of the other dummies available and making the identification proceedings doubtful, rendering the evidence of the witness of having identified the appellant during the test identification parade proceedings inconsequential. Such a test identification parade proceedings offers no clue towards the identity of the assailants. Reliance is placed on the case of Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) wherein it has been held as under:- "The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmities diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367)".

17. We have noticed that during the test identification proceedings as got conducted by Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) of the appellant namely Aneel Iqbal alias Nomi son of David Iqbal on 03.05.2016, the appellant claimed that he had been shown to be witnesses at the police station and his objection was got recorded by the learned Magistrate. This objection was all the more important as it is the own case of the prosecution that present appellant was arrested on 28.04.2016 and kept confined at the Police Station Sadiqabad and was sent to the Central Jail, Rawalpindi on 29.04.2016 for the purpose of holding of the test identification parade and thereafter, the test Identification Parade was held on 03.05.2016 . The prosecution is unable to explain as to why the appellant was kept in custody at the Police Station Sadiqabad on 28.04.2016 and why he was not immediately sent to the Central Jail, Rawalpindi. Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) though recorded the objection of the appellant that he had been already shown to the witnesses , however did not make any observation with regard to the said objection. Mumtaz Ahmad Mughal, the learned Magistrate (PW-13) during cross-examination stated as under:- "I had not verified the period of detention of accused persons with the police or their date of arrest regarding their objections of having been shown to the witnesses nor did I conduct inquiry regarding this fact." The objection of the appellant at the time of the test identification parade that he had been shown to the prosecution witnesses at the police station, is not without substance and there is every possibility regarding exposing ,of his identity to the prosecution witnesses, which fact ipso facto diminishes any value of the test identification parade. This failure of lodging the appellant in the Central Jail, Rawalpindi immediately after his arrest and the fact that he was lodged for a whole day at the same police station where the investigation of the case was being conducted is fatal for the case of prosecution.

18. We have also noted that according to Muhammad Ishfaq Khan (PW-9) the deceased was fired at from close proximity. We have also perused the scaled site plan of the place of occurrence (Exh. PA) as prepared by Khurram Shahzad, draftsman (PW-1) and the rough site plan of the place of occurrence (Exh.PS) as prepared by Muhammad Zubair, S.I. (PW-11) and in both the said site plans the distance between the place where the empty was recovered from and the place where the deceased received the injury has been mentioned as 2 feet. Contrary to this claim of the prosecution witnesses that the firing had been made by the appellant from a distance of only about two feet, Dr. Shahid Aziz Awan (PW-3), who conducted the post mortem examination of the dead body of the deceased did not observe the presence of blackening on any of the wounds observed by him on the dead body of the deceased namely Muhammad Mazhar Khan son of Walayat Khan. Dr. Shahid Aziz Awan (PW-3) in his statement before the learned trial court clearly stated that no blackening or tattooing around the wounds was observed by him on any of the wounds present on the dead body of the deceased namely Muhammad Mazhar Khan son of Walayat Khan. Dr. Shahid Aziz Awan (PW-3) during cross-examination stated as under:- "It is correct that blackening and burning is not mentioned in my report." Had the firing at the deceased namely Muhammad Mazhar Khan son of Walayat Khan been made from such a short distance as suggested by the prosecution witnesses then blackening on the wounds must have been observed by Dr. Shahid Aziz Awan (PW-3). Dr. Shahid Aziz Awan (PW-3) was not cross-examined by the prosecution and his testimony with regard to his opinion regarding observation of no blackening around the entry wound remained unchallenged. This opinion of Dr. Shahid Aziz Awan (PW-3) also proves that no reliance can be placed on the statement of Muhammad Ishfaq Khan (PW-9) . In such a case the ocular account is to be rejected as being contrary to the medical evidence. Reliance is placed on Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812) wherein it has been observed as infra: - "It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292, Sain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644." Reliance is placed on Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) wherein it has been observed as infra:- "

3. Site-plan (Ex-PL) shows one of the appellants to be standing next to the driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely to cause blackening but the medical evidence (Post-mortem examination reports Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again raising a suspicion that the events may have unfolded differently than as reported."

19. We have already mentioned that along with the appellant his co-accused, namely Kashif alias Kashee son of Saleem Masih (since acquitted) was also tried. The learned trial court acquitted the above mentioned co-accused of the charges. We have queried the learned Deputy District Public Prosecutor regarding the filing or otherwise of an appeal against the acquittal of the said co- accused, who has stated that the acquittal of Kashif alias Kashee son of Saleem Masih (since acquitted) had attained finality as neither the State nor the complainant or any other aggrieved person had filed any appeal against the acquittal of Kashif alias Kashee son of Saleem Masih (since acquitted), the co-accused of the appellant. The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: - "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments. ........................................................... Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids. .......................... ..........................

21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury." Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statement of Muhammad Ishfaq Khan (PW-9), the sole eye-witness of the occurrence produced by the prosecution. Muhammad Ishfaq Khan (PW-9) in his statement before the learned trial court, stated that he identified the appellant namely Aneel Iqbal alias Nomi and Kashif alias Kashee son of Saleem Masih ( since acquitted), the co-accused of the appellant as being involved in the occurrence. We have already reproduced the statement of the Muhammad Ishfaq Khan (PW-9) in Paragraph 3 of the judgment and the perusal of the same reveals that Muhammad Ishfaq Khan (PW-9) only stated that two unknown persons committed the occurrence without identifying any of the accused present in the learned trial court at the time of recording of the statement. We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appellant from the case of Kashif alias Kashee son of Saleem Masih (since acquitted), the co-accused of the appellant as the prosecution evidence with regard to the appellant namely Anil Iqbal alias Nomi and regarding his co-accused namely Kashif alias Kashee son of Saleem Masih (since acquitted), is similar. Muhammad Ishfaq Khan (PW-9) was adjudged to have deposed falsely against Kashif alias Kashee son of Saleem Masih (since acquitted), the co-accused of the appellant. We find no reason to believe his statement with regard to the appellant in absence of any reason to do so. This lying on part of the witness with regard to Kashif alias Kashee son of Saleem Masih (since acquitted), the co-accused of the appellant has vitiated our trust in him. We are thus satisfied that the evidence of Muhammad Ishfaq Khan (PW-9) has no worth and is to be rejected outright.

20. We have also observed that according to the prosecution witnesses the occurrence happened in an area surrounded by various shops. Yasir Abbasi (PW-10) stated that at the time of occurrence all the shops were open and traffic was also plying on the street in front of the shop where the occurrence took place. Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case, also admitted during cross-examination that the place of occurrence was a thickly populated area having many shops. It is an admitted aspect of the case that the statements under section 161 of the Code of Criminal Procedure, 1898 of no one else, other than the related witnesses, were recorded by the Investigating Officer during the investigation of the case. We have also perused the scaled site plan of the place of occurrence (Exh.PA) as prepared by Khurram Shahzad, draftsman (PW-1) and the rough site plan of the place of occurrence ((Exh. PS) as prepared by Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case and find that the place of occurrence is shown to be surrounded by shops. As mentioned above, none of those who had their shops at the place of occurrence or who were passing through the street when the occurrence had taken place, appeared before the learned trial court in support of the prosecution case. The prosecution was under a bounden duty to produce the witnesses who were the residents of the place of occurrence. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under: - "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949) wherein it has been observed as under: - ".... further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."

21. The learned Deputy District Public Prosecutor has submitted that the recovery of the pistol (P-8) from the appellant namely Aneel Iqbal alias Nomi son of David Iqbal supported the prosecution case against him and offered sufficient corroboration of the same. With regard to that the recovery of the pistol (P-8) from the appellant namely Aneel Iqbal alias Nomi son of David Iqbal, it is observed that the said recovery has no evidentiary value in the eyes of law as the same was made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The said recovery of the pistol (P-8) from the appellant namely Aneel Iqbal alias Nomi son of David Iqbal cannot be used as incriminating evidence against the appellant, being evidence, which was attained through illegal means and hence hit by the exclusionary rule of evidence. 'The Investigating Officer did not ask any individual resident of the area neighboring the place of the recovery of the pistol (P-8) from the appellant namely Aneel Iqbal alias Nomi son of David Iqbal (appellant), to witness the same. Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case, did not associate any person of the locality to witness the said recovery. Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case, during cross-examination stated as under: - "I even did not summon any inhabitants of the vicinity nor requested passerby to witness the recovery." Similarly, Muhammad Ishfaq Khan (PW-9) also admitted during cross-examination as under:- "There are other houses also at that place and it was a populated area. Many people had gathered at the time of recovery. The police do not ask to anyone to become witness of the recovery and sign the recovery memo." The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others v. 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." We have also noted that Muhammad Ishfaq Khan (PW-9) during his statement before the learned trial court claimed that the pistol (P-8) was recovered from the house of one Muhammad Akbar. Muhammad Ishfaq Khan (PW-9) stated as under:- "On this revelation accused Aneel Iqbal led the police to the place of recovery i.e. house situated in Graveyard Shakrial Kuri Road, Rawalpindi. Accused took out pistol P7 from the house of Muhammad Akbar after digging out the soil and presented the same to the I.O," The said Muhammad Akbar never appeared during the investigation of the case or before the learned trial court and the exclusive possession of the appellant regarding the pistol (P-8) is also not proved. We have also noted that according to Muhammad Ishfaq Khan (PW-9) at the time of recovery of the pistol (P-8) both the appellant and Kashif alias Kashee (since acquitted) went to the place of recovery in the custody of the police, whereas according to Muhammad Zubair, S.I. (PW-11) , the Investigating Officer of the case, only the appellant had gone to the place of recovery of the pistol (P-8). We are, therefore, convinced that the prosecution has been unable to prove the recovery of the pistol (P-8) from the appellant namely Aneel Iqbal alias Nomi son of David Iqbal.

22. The learned Deputy District Public Prosecutor has also submitted that at the time of arrest of the appellant and Kashif alias Kashee (since acquitted) on 28.04.2016, the motorcycle (P-2) used in the occurrence was also recovered from their possession and this fact also supported the ocular evidence. With regard to the recovery of the motorcycle (P-2) it is observed that the recovery of the same was not proved during the trial. Muhammad Hafeez 4275/HC (PW 4) stated that the appellant and Kashif alias Kashee (since acquitted) were arrested on 28.04.2016 in his presence, however the said witness never stated that any motorcycle was recovered from their possession at the time of their arrest. This unchallenged testimony of Muhammad Hafeez 4275/HC (PW-4) is alone sufficient to reject the evidence of the recovery of the motorcycle (P- 2). Furthermore, the said motorcycle (P-2) was allegedly recovered from the joint possession of the appellant and Kashif alias Kashee (since acquitted) and as mentioned above, Kashif alias Kashee was acquitted and the said recovery was not considered as a relevant circumstance. Furthermore, Muhammad Zubair, S.I. (PW-11) , the Investigating Officer of the case, admitted that during investigation of the case, he did not conduct any investigation to determine the identity of the owner of the said motorcycle (P-2). Moreover, Muhammad Ishfaq Khan (PW-9) did not mention the registration number of the motorcycle either in his statement (Exh. PG) or in his statement before the learned trial court. Yasir Abbasi (PW-10) also admitted that he did not note the registration number of the motorcycle used during the occurrence. In absence of such information it cannot be determined that the motorcycle (P-2) was the same which was used during the occurrence. Hence, the recovery of motorcycle (P-2) does not progress the case of the prosecution in any manner.

23. The learned Deputy District Public Prosecutor has vehemently argued that the disclosure of the accused made at the time he pointed out the place of murder of the deceased on 17.05.2016 and as contained in the memo (Exh. PL) was admissible and relevant and amounted to confession of guilt under the provisions of Article 40 of the Qanun-e-Shahadat Order, 1984. The discovery of any fact on the information of the accused in custody of Police is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'the Order'), which reads as under:- "

40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." A perusal of above Article 40 of the Qanun-e-Shahadat Order, 1984 reveals firstly that it serves as a proviso to Articles 38 and 39 of the Order. It comes into operation only if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody. Thus, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source. According to the prosecution case itself the place of occurrence was known to the witnesses already who claimed to have witnesses the incident and no new fact was discovered in consequence of that said pointing out of the place of occurrence by the appellant on 17.05.2000. Hence, the alleged statement of the appellant made in police custody at the time he pointed out the place of murder of the deceased cannot be read in evidence and would remain inadmissible. The august Supreme Court of Pakistan in the case of Fazal Subhan and another v. The State and others (2019 SCMR 1027) has enunciated the following principle:- "Memo of pointing out of place of occurrence cannot be equated with disclosure within the contemplation Article 40 of the Qanun-e-Shahadat Order, 1984."

24. The learned Deputy District Public Prosecutor has also relied upon the evidence of motive and submitted that it corroborated the ocular account. In the oral statement (Exh. PG) of Muhammad Ishfaq Khan (PW-9) it had been recorded that an unknown accused visited the shop where the occurrence took place twice and on the second visit he fired at the deceased. In the oral statement (Exh.PG) it was nowhere mentioned as to what was the motive of the occurrence. During the course of trial Muhammad Ishfaq Khan (PW-9) improved upon his oral statement (Exh. PG) and stated that when the deceased raised the alarm that the persons who had entered the shop were thieves then one of them fired at the deceased. Muhammad Ishfaq Khan (PW-9) during the course of cross-examination admitted that he had made an improvement in his statement with regard to the motive of the occurrence and stated as under:- "It is correct that there is no mentioned (sic) about the voice of chamber/loading of bullet or shouting of deceased chor chor. Again stated that I had got written the word chor chor and loading the pistol but the police did not wrote it." ............................................................... My supplementary statement was recorded on 11:/11:30 p.m on the same day. I did not mention the word chor chor and loading of pistol/chamber in my supplementary statement." Muhammad Ishfaq Khan (PW-9) by improved his previous statement and hence his credit stands impeached. The august Supreme Court of Pakistan in the case reported as Muhammad Arif v. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge." Moreover, Muhammad Zubair, S.I. (PW-11), the Investigating Officer of the case, did not collect even a single mobile device or any other article of any value from the place of occurrence to prove that the appellant had planned to commit robbery. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. It is trite that a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case." Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then the evidence of motive and recovery have no value and lost their significance.

25. The plea of the learned Deputy District Public Prosecutor that because the complainant party was having no enmity to falsely implicate the appellant 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 v. The State (PLD 1991 SC 447).

26. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Aneel lqbal alias Nomi son of David Iqbal (appellant) in the present case. It is settled principle of law that for giving the benefit of the 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 v. 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), Muqarab Khan v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)." Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muqarab Khan v. The State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

27. For what has been discussed above, the Criminal Appeal No.486 of 2018 is allowed, the impugned judgment towards conviction and sentence of the appellant namely Aneel Iqbal alias Nomi son of David Iqbal is set aside and he is acquitted of the charge, under the benefit of doubt. The appellant is in custody hence it is directed that he be released forthwith if not required in any other case. The disposal of the case property shall be as directed by the learned trial court, in the impugned judgment.

28. Consequently, the Murder Reference No.31 of 2018 is answered in Negative and the death sentence awarded to Aneel Iqbal alias Nomi son of David Iqbal (appellant) is Not Confirmed. JK/A-17/L Appeal allowed.