--Delay of seven v days in conducting identification parade of accused as material. The relevant part of above said judgment at page 545 reads as under:

 PLJ 2022 Cr.C. 799 (DB)

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 365-A & 392--Anti-Terrorism Act, (XXVII of 1997), S.7(c)--Conviction and sentence--Challenge to--Benefit of doubt--The distance between police station and place of occurrence was just half kilometer--There is absolutely no plausible or convincing reason for aforesaid inordinate delay in reporting matter to police which casts serious doubt about veracity of prosecution story--Prosecution could not prove its case against appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant--It is also well established that if there is a single circumstance which about regarding prosecution case, same is sufficient to benefit of doubt to accused, whereas, instant case is with number of circumstances which have created serious doubt about prosecution story.                                                        [Pp. 802 & 805] A, D & E

2009 SCMR 230, 1995 SCMR 127, 1993 SCMR 585 and
2011 SCMR 563

Delay in identification parade--

----Delay of seven v days in conducting identification parade of accused as material. The relevant part of above said judgment at page 545 reads as under:

“9. ... Identification parade was held after a delay of 7 days after arrest of accused--This delay creates a lot of doubt regarding identification parade as witnesses had various opportunities to see accused persons ...”

Under above circumstances, we are of view that test identification parade conducted in this case carries no value in eye of law.

                                                                                         [P. 803] B

2011 SCMR 537.

Witness--

----Testimony of--It is well settled by now that when a witness improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with malafide intention testimony of such witness does not remain reliable.                                      [P. 804] C

2010 SCMR 385 and 1993 SCMR 550.

Mr. Mudasser Saghir, Advocate for Appellant.

Mr. Muhammad Ali Shahab, Deputy Prosecutor General for State.

Nemo for Complainant.

Date of hearing: 15.3.2021.

 PLJ 2022 Cr.C. 799 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD JAVED alias JEDA LANGAH--Appellant
versus
STATE and another--Respondents
Crl. A. No. 85-ATA & C.S.R. No. 4 of 2015, heard on 15.3.2021.

Judgment

Shehram Sarwar Ch. J.--Muhammad Javed alias Jeda Langah (appellant) was tried by the learned Judge, Anti-Terrorism Court No. II, Multan in case FIR No. 184 dated 24.03.2013, offence under Section 365-A and 392 PPC (Section 7 Anti Terrorism Act, 1997 was added later on), registered at Police Station Bahauddin Zikriya District Multan. Vide judgment dated 21.02.2014 passed by the trial Court, the appellant has been convicted and sentenced as under:

“17. So, Muhammad Javed @ Jeda accused is convicted u/S. 365-A, PPC and sentenced to normal penalty of death and his moveable and immovable property also be forfeited in favour of state. He shall be hanged by neck till he is dead. He is
also convicted u/S. 449, PPC and sentenced to imprisonment for 10 years R.I. He also burdened with a fine of Rs. 100,000/-.
In default of payment of fine he shall have to further undergo for 3 months S.I. He is also convicted u/S. 7(e) ATA, 1997
and sentenced to normal penalty of death. His moveable
and immoveable property be also confiscated in favour of
state ....”

Assailing the above convictions and sentences, Muhammad Javed alias Jeda Langah (appellant) has filed the appeal in hand whereas the learned trial Court has sent Capital Sentence Reference No. 04 of 2015 for confirmation or otherwise of the appellant’s sentence of death, as required under Section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PE/1) registered on the written application (Ex.PE) of Rab Nawaz, complainant (PW.6) is that on 23.03.2013 at around 4.00 p.m. he along with his son Muhammad Saleem went to the house of his daughter Tasleem Bibi situated at Al-kareem Town. After taking meal, daughter of complainant along with her children went to upper portion and slept there while the complainant as well as Muhammad Saleem (son), Khalid maternal grandson and Ishfaq, a guest slept in the lower portion of the house. At about 2.00 a.m. all of a sudden, four unknown armed accused (descriptions given in the FIR) awakened the complainant party and robbed away cash Rs. 2,00,000/-, gold ornaments weighing one and a half tola, three mobile phones and two motorcycles. The accused also abducted Khalid maternal grandson of complainant aged about 17/18 years.

3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. Muhammad Javed alias Jeda Langah (appellant) and his co-accused namely Mst. Naseem Bibi were summoned by the learned Judge, Anti-Terrorism Court No. II, Multan to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 365-A, 395, 449, 148 and 149, PPC and Section 7 of the Anti-Terrorism Act, 1997 was framed against them on 01.04.2014, to which they pleaded not guilty and claimed trial. During trial, Mst. Naseem Bibi co-accused of appellant died and trial to her extent stood abated. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 03.02.2015 wherein he refuted all the allegations of the prosecution and professed his innocence. The appellant did not opt to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) Code of Criminal Procedure, however, he produced certain documents as defence evidence. After conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and capital sentence reference.

4. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.

5. As per contents of FIR, the alleged incident qua robbery and kidnapping of Khalid Zafar (abductee) maternal grandson of the complainant took place on the intervening night of 23/24.03.2013 at 2:00 a.m. whereas the matter was reported to the police on the next day At 9:10 a.m. i.e. about seven hours and ten minutes after the incident. The distance between police station and the place of occurrence was just half kilometer. There is absolutely no plausible or convincing reason for the aforesaid inordinate delay in reporting the matter to the police which casts serious doubt about the veracity of prosecution story. Reliance may be placed on case law titled as “Mehmood Ahmed and three others vs. The State and another” (1995 SCMR 127) wherein the Hon’ble Supreme Court of Pakistan at page 131 has observed as under:

“5. ... Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate ...”

6. Admittedly, the FIR was got registered against four unknown accused and the appellant is not named in the FIR in any context whatsoever. In the FIR, the dressing, colour, height (middle), ages etc. of the accused were mentioned by the complainant and it was admitted by him during cross examination that he has not given the facial features of accused i.e. nose, eyes etc. There may be millions of persons including the appellant of that age having middle height in our country but they cannot be identified merely on the basis of middle height, therefore, facial features is the most important and significant feature for identification purpose; but “facial feature” of any of the assailants/accused including the appellant was not mentioned in written application (Ex.PE) and FIR (Ex.PE/1), therefore, identification of the appellant as actual culprit of the incident during identification parade, is inconsequential. Reliance is placed on case law titled as “State/Government of Sindh through Advocate General, Sindh, Karachi versus Sobharo” (1993 SCMR 585) and “Sabir Ali alias Fauji versus The State” (2011 SCMR 563) According to the complainant, his daughter along with her children was sleeping on the upper portion of house but in the site plan (Ex.PT), no upper portion of house was shown. The prosecution had maintained that the appellant had correctly been identified by Rab Nawaz, complainant (PW.6), Saleem (given up) and Khalid Zafar, abductee (PW.12) during test identification parades conducted and supervised by a Magistrate (PW.15) but as per statement of Rehmat Ali, Inspector/I.O. (PW.7), the appellant was arrested on 16.01.2014 whereas his identification parades were conducted on 27.01.2014 i.e. eleven days after his arrest. The appellant raised objection that he was kept by the CIA staff for about five months and witnesses came to see him there. The objection raised by the appellant during his I.D. parade is duly mentioned in the identification proceedings prepared by the learned Magistrate (PW.15). Therefore, chances cannot be ruled out that the witnesses had seen the appellant prior to the holding of identification parade. We may refer here the case of “Shafqat Mehmood and others versus The State” (2011 SCMR 537), wherein the Hon’ble Supreme Court of Pakistan considered the delay of seven days in conducting identification parade of accused as material. The relevant part of the above said judgment at page 545 reads as under:

“9. ... Identification parade was held after a delay of 7 days after the arrest of the accused. This delay creates a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused persons...”

Under the above circumstances, we are of the view that the test identification parade conducted in this case carries no value in the eye of law.

7. Khalid Zafar, the alleged abductee appeared before the learned trial Court as PW.12 and stated the whole incident. In his examination-in-chief, he stated that the deal of ransom was finalized with his father (Muhammad Zafar) which was got settled by Hidayat Ullah Gopang, Fayyaz Bosan, Hazoor Bukhsh and Ali Hassan Sheikh. Same was the version of Khalid Zafar (PW.12) in his statement recorded under Section 161, Cr.P.C. (Ex.DA), wherein he stated the names of said persons as the accused, who struck the deal of ransom and handed him over to his father, meaning thereby the appellant was not involved in the deal of receiving ransom amount from the father of alleged abductee. Moreover, the father of alleged abductee namely Muhammad Zafar who paid the ransom amount to the accused, was not produced by the prosecution before the learned trial Court. Muhammad Iqbal, who was accompanying father of alleged abductee at the time of payment of ransom amount, appeared before the learned trial Court as PW.13. The statement of this witness was also recorded by the I.O. under Section 161, Cr.P.C. (Ex.DB) wherein he too mentioned that the amount was received by Hidayat Ullah Gopang. This witness did not participate in the proceedings of identification parade at the time of identification of the appellant. We have further noted that Muhammad Iqbal (PW.13) while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, he was confronted with his previous statement (Ex.DB) and the improvements were brought on record. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with malafide intention the testimony of such witness does not remain reliable. While holding so, we am fortified by the dictum laid down by the Hon’ble Supreme Court of Pakistan in the cases reported as “Muhammad Rafique and others versus The State and others” (2010 SCMR 385) and “Syed Saeed Muhammad Shah and another versus The State” (1993 SCMR 550). In these circumstances, the statements of both these PWs are shaky in nature and cannot be relied upon for maintaining the conviction/ sentence of the appellant.

8. As far as alleged recovery of 30 bore pistol (P. 18) at the instance of appellant is concerned, the same is inconsequential for the reason that no report of Punjab Forensic Science Agency in this regard is available on record. So far as the alleged recoveries of robbed amount of Rs. 46,000/- and ransom amount of Rs. 1,00,000/- at the instance of the appellant which were taken into possession vide recovery memos Ex.PF and Ex.PJ are concerned, the same are not much helpful for the prosecution for the reasons that no denomination of currency notes is mentioned in the FIR and even the complainant admitted during his cross examination that there was not any sign or mark on the currency notes. Moreover, such like currency notes are available in the market in wide circulation. The recovery of motorcycles effected by the appellant bearing registration No. 1229-10/MNN (P.2) and CD-70 (without number plate) having engine No. 6570075 (P.1) is also inconsequential as there was no mention of these motorcycles in the FIR.

9. So far as version of the appellant taken by him in his statement recorded under Section 342, Code of Criminal Procedure, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence version.

10. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates about regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).

11. For the foregoing reasons, Criminal Appeal No. 85-ATA of 2015 filed by Muhammad Javed alias Jeda Langah (appellant) is allowed, convictions and sentences awarded to the appellant vide judgment dated 21.02.2014 passed by the learned Judge, Anti-Terrorism Court No. II, Multan are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Muhammad Javed alias Jeda Langah, appellant is in jail. He shall be released forthwith if not required to be detained in any other case. It is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of co-accused of the appellant, still absconding.

12. Capital Sentence Reference No. 04 of 2015 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Javed alias Jeda Langah (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal allowed