PLJ 2023 Cr.C. (Note) 25
Identification Parade--
---- It is well settled that identification parade is of no value when descriptions/features of accused are not given in contents of FIR.
[Para 5] B
2011 SCMR 563.
Delay in Identification Parade--
----Wherein Hon’ble Supreme Court of Pakistan considered delay of seven days in conducting identification parade of accused as material--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 ...” [Para 5] C
2011 SCMR 537.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 396 & 397--Conviction and sentence--Challenge to--Benefit of doubt--Identification parade--Delay of 7 days in identification parade--Dacoity/robbery with murder--Medical evidence--Held: It was an unwitnessed murder and time had been consumed by police in procuring and planting eyewitnesses and in cooking up a story for prosecution--So far as medical evidence is concerned, suffice it to observe that same is only a supporting piece of evidence because it may confirm ocular evidence with regard to receipt of injury, its locale, kind of weapon used for causing injury, duration between injury and death but it would not tell name of assailant--Further 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. [Para 4, 7 & 9] A, D & E
2009 PCr.LJ 1022, 2011 SCMR 1190 and 1995 SCMR 559.
Benefit of doubt--
----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story. [Para 9] F
2009 SCMR 230.
Ms. Nighat Saeed Mughal, Advocate for Appellant.
Mr. Ali Hassan, Addl. Prosecutor General for State.
Nemo for complainant.
Date of hearing 13.12.2021.
PLJ 2023 Cr.C. (Note) 25
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
YAQOOB alias QOOBI--Appellant
versus
STATE--Respondent
Crl. A. No. 110-J of 2014, heard on 13.12.2021.
Judgment
Yaqoob alias Qoobi (appellant) along with his co-accused namely Shehbaz was tried by the learned Addl. Sessions Judge, Pattoki District Kasur in case FIR No. 303 dated 03.08.2010, offence under Sections 396, 397 and 412, PPC registered at Police Station Saddar Pattoki District Kasur for committing dacoity and murder of Israr Shah (deceased) brother of complainant. Vide judgment dated 18.01.2014 passed by the learned trial Court, the appellant has been convicted under Section 396, PPC and sentenced to life imprisonment, with fine of Rs. 50,000/-. He was also directed to pay Rs. 1,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof, to further undergo simple imprisonment for six months. The appellant was further convicted under Section 397, PPC and sentenced to rigorous imprisonment for seven years. Both the sentences of the appellant were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Through the same judgment, Shehbaz co-accused of the appellant was acquitted of the charge and no criminal appeal against his acquittal was filed either by the State or the complainant, as conceded by learned Law Officer. Assailing the above convictions and sentences, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.PL/A) registered on the written application (Ex.PL) of Zafar Iqbal Shah, complainant (PW.ll) is that on the intervening night of 02/03.08.2010, he along with Anwar Shah, Israr Shah brother, Asghar and Imran Shah was on their way from Lahore to Chochak Road in car bearing Registration No. LED-8661. At around 10.45 p.m. when they reached ahead of Govt. High School, Habib Abad, all of a sudden, five unknown accused armed with pistols came on the road and made aerial firing. Imran Shah stopped the car. Three accused deboarded the complainant party from the car. One of the accused remained standing near Israr Shah whereas one accused stood at some distance. The accused snatched mobile phone No. 0344-9798341 from Imran Shah, cash Rs. 2000/- along with mobile phone No. 0346-4866842 from Israr Shah and
Rs. 5000/- from Asghar Ali. One of the accused made fire shot with 30 bore pistol on the chest of Israr Shah brother of appellant and another accused fired at the foot of Imran Shah, who got injured. Israr Shah succumbed to the injuries on the spot. The complainant got recorded his supplementary statement (Ex.PM) on 05.10.2010 wherein he stated that the name of Imran Shah was mentioned in the FIR inadvertently and his correct name is Azhar Abbas alias Imran Shah. The appellant along with his co-accused was implicated in this case through supplementary statement (Ex.PN) of complainant recorded on 10.03.2011.
3. I have heard learned counsel for the appellant as well as learned Law Officer for the State at a considerable length and have also gone through the record with their able assistance.
4. This case was got registered by Zafar Iqbal, complainant (PW.11) for committing robbery and murder of his brother namely Israr Shah as well as sustaining injury by Azhar Abbas alias Imran Shah (PW.12), which was allegedly taken place on the intervening night of 02/03.08.2010 at about 10.45 p.m. in the area of Habib Abad situated within the territorial jurisdiction of Police Station Saddar Pattoki District Kasur. The distance between the police station and the place of occurrence was eight kilometers. The matter was reported to the police through written application (Ex.PL) of complainant on the same night (03.08.2010) at 12:20 a.m. and formal FIR (Ex.PL/A) was got registered at 12.45 a.m. However, the injured was medically examined on the next day at 1.00 p.m. i.e. thirteen hours and fifteen minutes after the incident. Even the post-mortem examination of the dead body of deceased was also conducted on the next day at 9.00 a.m. i.e. after about ten hours and fifteen minutes of the occurrence. Therefore, possibility exists that it was an unwitnessed murder and time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution. In this regard, reliance is placed on the case law reported as “Muhammad Riaz vs. The State” (2009 P.Cr.LJ. 1022 Lahore) and of “Irshad Ahmed vs. The State” (2011 SCMR 1190).
5. Admittedly, the FIR was got registered against five unknown accused and the appellant is not named in the FIR in any manner whatsoever. I have observed that no descriptions/features such as height, complexion, physique and age etc. of the accused persons were given in the FIR. The appellant and his co-accused Muhammad Akram alias Akri and Shehbaz were implicated in this case through supplementary statement of complainant recorded on 10.03.2011 i.e. more than seven months after the occurrence, wherein no source of information as to how the complainant came to know about the names of accused, has been mentioned by the complainant and it was stated that he kept on searching the accused and came to know that the appellant and his above named co-accused committed this incident. It is well settled that identification parade is of no value when descriptions/features of the accused are not given in the contents of the FIR. I may also refer here the case of “Sabir Ali alias Fauji versus The State” (2011 SCMR 563) wherein, at page 570, the Hon’ble Supreme Court of Pakistan was pleased to observe as under:
“6. ... It is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the F.I.R. It appears from the record that accused persons are complete strangers to the prosecution witnesses, therefore, in the absence of description in the contents of F.I.R., the benefit of doubt be given to the accused persons coupled with the fact that according to the prosecution witnesses they had opportunity to see them on the day of incident in moonlight ...”
The prosecution had maintained that the appellant had correctly been identified by Zafar Iqbal, complainant (PW.11), Azhar Abbas alias Imran Shah (PW.12) and Anwar Shah (given up PW) during test identification parades conducted and supervised by a Magistrate (PW.14) but I have noted that the complainant (PW.l 1) who allegedly picked up the appellant during the identification parade, has not mentioned the role of the appellant while Azhar Abbas alias Imran Shah (PW.12) pointed out that the appellant was armed with pistol and made firing whereas Anwar Shah, the third witness of I.D. parade was given up being unnecessary. Rana Muhammad Ilyas Bashir, Magistrate (PW.14) also stated during his cross-examination that Zafar Iqbal, complainant (PW.11) did not assign any role to the identified accused and the third witness Azhar Abbas (PW.12) attributed the role to the appellant as the accused being armed with pistol committed firing. Same was the position in the proceedings of identification parade (Ex.PP). In this regard reliance is placed on “Mehmood Ahmad and 3 others versus The State and another” (1995 SCMR 127). As per statement of Khushi Muhammad, S.I./I.O (PW.3), he joined the appellant into investigation on 26.04.2011 whereas his identification parade was conducted on 16.05.2011 i.e. twenty days after his arrest and he raised objection before the learned Magistrate (PW.14) that he remained under detention in the police station for two days where the witnesses time and again saw him and his pictures as well as film was prepared through mobile phone. Therefore, chances cannot be ruled out that the witnesses had seen the appellant prior to the holding of identification parade. I 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, I am of the view that the test identification parade conducted in this case carries no value in the eye of law and the ocular account furnished by Muhammad Asghar (PW.9), Zafar Iqbal, complainant (PW.11) and Azhar Abbas alias Imran Shah (PW.12) is of no avail to the prosecution.
6. So far as the alleged recovery of 30 bore pistol (P.1) at the instance of appellant which was taken into possession vide recovery memo. (Ex.PG) is concerned, the same is inconsequential because of the reasons that the same was got recovered from a graveyard, which is an open place, accessible to everyone and the report of Forensic Science Laboratory (Ex.PS) is simply to the effect that the pistol was in working order. As far as the recovery of Nokia mobile on the pointation of appellant is concerned, the same is not much helpful for the prosecution for the reason that same is an ordinary thing easily available in the open market and that no evidence was brought on record that the said phone was owned by the deceased.
7. So far as the medical evidence is concerned, suffice it to observe that the same is only a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, its locale, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailant. Reliance is placed on “Ata Muhammad and another vs. The State” (1995 SCMR 599).
8. 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 same.
9. I 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 doubt 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. In this regard, reliance may be placed on the case law reported as “Muhammad Akram versus The State” (2009 SCMR 230).
10. For the foregoing reason, Crl. Appeal No. 1 10-J of 2014 filed by Yaqoob alias Qoobi (appellant) is allowed, convictions and sentences awarded to the appellant vide judgment dated 18.01.2014 passed by the learned Addl. Sessions Judge, Pattoki District Kasur are set aside and he is acquitted of the charges while extending him benefit of doubt. The 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 Muhammad Akram alias Akri, co-accused of the appellant, who was absconder at the time of pronouncement impugned judgment.
(A.A.K.) Appeal allowed
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