2023 Y L R 1094

[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Gul Hassan Tareen,
JJ
MUHIBULLAH and others---Appellants
Versus
The STATE and others---Respondents
Criminal Appeals Nos. 572, 580 and Criminal Revision Petition No. 24
of 2021, decided on 16th November, 2022.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-
amd, robbery---Appreciation of evidence---Benefit of doubt---Delay in
conducting identification parade---Effect---Accused was charged for
committing murder of the brother of the complainant by firing---
According to the statement of Judicial Magistrate, the identification
parade was held eight days after the arrest of accused persons---
Prosecution had not explained the delay caused in conducting the
identification parade of accused persons---Identification parade of the
said accused persons was held in the Police Station where they were in
custody during the investigation of the case---Judicial Magistrate in his
deposition before the Court and in the certificates, had not mentioned
that at the time of identifying the said accused persons, the witnesses
had described the role of each accused regarding the offence---Besides
the witnesses in their S.161, Cr.P.C. statements had not furnished the
physical as well as face features and characteristics of each accused,
therefore, the evidence of identification parade had lost its evidentiary
value and relevance under Art. 22, the Qanun-e-Shahadat, 1984---
Circumstances established that the prosecution had failed to prove the
case against the accused beyond shadow of doubt---Appeal against
conviction was allowed, in circumstances and accused persons were
acquitted.
Javed Khan alias Bacha and another v. The State 2017 SCMR 524;
Mian Sohail Ahmed and others v. The State 2019 SCMR 956 and
Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84
rel.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 22--- Identification parade---Evidentiary value---Identification
parade is a weak type of evidence and cannot form basis for
sentencing an accused---Identification parade merely corroborates
independent and direct piece of evidence for the purpose of proof of
guilt of an accused.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397---Qatl-i-amd, robbery--- Appreciation of evidence---
Benefit of doubt---Recovery of mobile phone from the possession of
accused---Reliance---Accused was charged for committing murder of
the brother of the complainant by firing---Recovery of a cell phone
from the personal search of the accused allegedly belonging to the
deceased, was not worth considering, as the alleged recovered cell
phone was a common mobile---Prosecution had not conducted
identification of the recovered mobile from the complainant/brother
of deceased, uncle of deceased and the eye- witnesses---Prosecution
had not brought on record the IEMI number of the recovered mobile---
Recovered cell phone was not identified by the witnesses---Alleged
recovery was not put to the accused in his examination under S. 342,
Cr.P.C., by the Trial Court, which was violation of said provision of law-
--Circumstances established that the prosecution had failed to prove
the case against the accused beyond shadow of doubt---Appeal against
conviction was allowed, in circumstances and accused persons were
acquitted.
Muhammad Shah v. The State 2010 SCMR 1009 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397---Qatl-i-amd, robbery---Appreciation of evidence---
Benefit of doubt---Recovery of pistol, DSLR camera and motorcycle
from the house of accused---Reliance---Accused was charged for
committing murder of the brother of the complainant by firing---
Recovery of pistol, DSLR camera and motorcycle from the house of
accused was not sufficient to prove the guilt---As the recovered pistol
was not matched with the secured empty shell by the Forensic Science
Laboratory which meant that the same was not used in the
commission of offence---So far as the DSLR camera was concerned, the
identification of the same was not conducted and was not recognized
by the witness from whom it was allegedly snatched by the accused
persons---Recovery of motorcycle was not a case property as it was
allegedly disclosed by the accused that the same was used on the day
of incident for commission of offence---Such statement was a
confession before police which was not admissible under Arts. 38 & 39
of Qanun-e-Shahadat, 1984---Circumstances established that the
prosecution had failed to prove the case against the accused beyond
shadow of doubt---Appeal against conviction was allowed, in
circumstances and accused persons were acquitted.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397---Qatl-i-amd, robbery---Appreciation of evidence---
Benefit of doubt---Delay of seven days in sending the pistol and shell
for analysis---Effect---Accused was charged for committing murder of
the brother of the complainant by firing---Pistol recovered from the
possession of an accused was found matched by the Forensic Science
Laboratory with the empty shell, however, the same was inadmissible,
as the empty shell and recovered pistol were sent together to Forensic
Science Laboratory and that too with an unexplained delay---Sealed
parcels were received at Forensic Science Laboratory after an
unexplained delay of seven days from the date of recovery of pistol---
Hence the recoveries did not connect the accused persons with the
commission of the alleged offence---Circumstances established that the
prosecution had failed to prove the case against the accused beyond
shadow of doubt---Appeal against conviction was allowed, in
circumstances and accused persons were acquitted.
Muhammad Yameen alias Raja v. The State 2009 SCMR 84; Mehmood
Ahmed and 3 others v. The State and another 1995 SCMR 127; Sabir Ali
alias Fauji v. The State 2011 SCMR 563; Nasir Mehmood and others v.
The State 2008 YLR 1755; Mian Sohail Ahmed and others v. The State
and others 2019 SCMR 956; Javed Khan alias Bacha and another v. The
State 2017 SCMR 524 and Noor Islam v. Ghani-ur-Rehman 2020 SCMR
310 ref.
(f ) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-
amd, robbery---Appreciation of evidence---Benefit of doubt---
Withholding material evidence---Effect---Accused was charged for
committing murder of the brother of the complainant by firing---
Record showed that the prosecution had given up a witness whose
statement was recorded by the Investigating Officer under S. 161,
Cr.P.C.---Prosecution gave up said witness with mala fide intention
because in his S. 161, Cr.P.C. statement, he stated that he was told by
the friends of the deceased that the robbers had muffled faces and the
one who made fire shot at deceased had a muffled face---Said facts
suggested that evidence which could be but was not produced would,
if produced, be unfavourable to the person who withheld it---
Circumstances established that the prosecution had failed to prove the
case against the accused beyond shadow of doubt---Appeal against
conviction was allowed, in circumstances and accused persons were
acquitted.
Lal Khan v. The State 2006 SCMR 1846 rel.
(g) Penal Code (XLV of 1860)---
----Ss. 302(b) & 397---Qatl-i-amd, robbery---Appreciation of evidence---
Benefit of doubt---Delay of six days in recording the statements of
witnesses---Effect---Accused was charged for committing murder of the
brother of the complainant by firing---Statements of the four eye-
witnesses under S. 161, Cr.P.C. were recorded with delay of six days
after the incident---Though, said witnesses were implicated by the
complainant, through supplementary statement, however, later, vide
an affidavit they were exonerated from the case---But since accused
were in custody, therefore, delay in recording their statement was
fatal---Circumstances established that the prosecution had failed to
prove the case against the accused beyond shadow of doubt---Appeal
against conviction was allowed, in circumstances and accused persons
were acquitted.
Ali Ahmed Lehri for Appellant (in Criminal Appeal No. 572 of 2021).
Muhammad Younas Mengal, Addl. Prosecutor General for
Respondent (in Criminal Appeal No. 572 of 2021).
Ghulam Mustafa Butt and Zeeshan Rakhshani for Appellants (in
Criminal Appeal No. 580 of 2021).
Muhammad Younas Mengal, Addl: Prosecutor General for
Respondent (in Criminal Appeal No. 580 of 2021).
Ghulam Mustafa Butt, Zeeshan Rakhshani and Ali Ahmed Lehri for
Respondents Nos. 1 to 3 (in Criminal Revision Petition No. 24 of 2021).
Muhammad Younas Mengal, Addl: Prosecutor General for the State
(in Criminal Revision Petition No. 24 of 2021).
Date of hearing: 4th October, 2022
JUDGMENT
GUL HASSAN TAREEN, J.---Through this common judgment, we
intend to decide Criminal Appeals Nos. 572/2021 and 580/2021, filed
under section 410, the Criminal Procedure Code, 1898, ("Cr.P.C.") and
Criminal Revision Petition No. 24/2021, filed under sections 435, 439-A,
Cr.P.C, being originated from the same judgment dated 23rd
November, 2021, passed by the Court of Additional Sessions Judge-VI/
MCTC-II, Quetta ("Trial Court") , in case FIR No. 09/2018, dated 2nd
February, 2018, under sections 397 and 302, the Pakistan Penal Code,
1860 ("P.P.C"), registered at P.S. Kuchlak, District Quetta for, robbing
and murder of Farmanullah, whereby the appellants have been
convicted under sections 302(b) and 397, read with section 34, P.P.C
and sentenced as under:
a) imprisonment for life as Ta'zir under section 302(b), P.P.C. for the
murder of Farmanullah with compensation of Rs. 200, 000/- to be
 paid by each appellant to the legal heirs of the deceased under
section 544-A, Cr.P.C, in default to pay, to further undergo six
months (S.I.); and
b) imprisonment of seven years (R.I.) under sections 392, 397, P.P.C.
for robbery with fine of Rs. 40, 000/- each, in default to pay, to
further undergo four months (S.I.).
The sentences were ordered to run concurrently with benefit of
section 382-B, Cr.P.C. "
2. The prosecution case, as unfolded in the Fard-e-Bayan (Ex: P/1-A),
reduced into writing on the oral statement of complainant Attaullah,
(PW-1) is that; on the day of incident, he was present at home. He got
information through cell phone that someone has killed his younger
brother Farmanullah by firing and the dead body is lying at Civil
Hospital. On such information, he along with other relatives, forthwith
reached at Civil Hospital, where he found the dead body of his younger
brother Farmanullah in mortuary lying in the pool of blood. On getting
knowledge from his friends, Hassan, Shoaib, Adeel and Qandeel
present with his brother, he came to known, that his younger brother
Farmanullah, having a mobile shop, today in the company of these
friends, has came from Toghi Road Quetta to Kuchlak for picnic, in a
vitz car No. ALZ-768 white colour. At about 5:45 p.m., when they were
capturing photographs at Mallazai Bypass near rainy channel field, all
of a sudden, three unknown persons riding on a motorcycle came over
there. They could not notice the number of motorcycle. Amongst them,
the one armed by a pistol, aimed pistol at them and asked for handing
over, all they had. They snatched mobile phone Nokia and Rs. 800/-
from Adeel, mobile phones, Nokia and Q and Rs. 1100/-, I-phone, cash
Rs. 1300/- and DSL camera from Qandeel. Shoaib told that he threw his
cell phone under the car while Farmanullah exhibited resistance with
the unknown person and refused to give mobile. The person having
pistol made a fire shot with pistol at Farmanullah, whom sustained
blood stained entrance wound under the right eye and an exit wound
at the back of head, due to which he expired at the spot. The friends of
Farmanullah informed that they can identify the unknown persons if
come before them. On getting report of firing, police reached at the
spot and taken over the dead body to the hospital. On such complaint,
FIR No. 09/2018, dated 2nd February, 2018 (Ex: P/12-A), under the
aforementioned offences was lodged.
3. On the registration of the FIR, investigation of the case was
entrusted to Shan Muhammad SI (PW-12). On 02nd February, 2018, the
Investigating Officer, visited the scene of occurrence, sketched a rough
site plan (Ex: P/12-B), secured blood stained earth in parcel No. 1, an
empty shell of .30 bore, Samsung mobile with sim, memory card and
two sims in parcel No. 2 and took into possession the secured articles
and the car through separate recovery memos, recorded statements of
witnesses under section 161, Cr.P.C, secured the cell numbers of the
friends of the deceased. He apprehended the said friends of the
deceased on 5th February, 2018 on the supplementary statement of the
complainant. On 8th February, 2018, the Investigating Officer
discharged the friends of the deceased under section 169, Cr.P.C and
sent an incomplete report No. 18/2018 to the Court. In pursuance of the
information of an informer, on 23rd February, 2018, the accused
Muhibullah along with the alleged snatched Nokia cell phone, was
apprehended. On his pointing out, accused Jamil Ahmed was arrested
from his house. From his personal search, .30 bore pistol was
recovered, the alleged snatched DSLR Camera and a motorcycle
allegedly used in the crime were also recovered. The accused Sher Gul
was arrested on the pointing out of Muhibullah and recovered .30 bore
pistol along with five live cartridges from his personal search and
eight cell phones from his house. All were taken into possession
through recovery memos and sealed them in parcel Nos. 3, 4 and 5. He
sent the parcels to FSL. On 3rd March, 2018, the Investigating Officer
conducted the identification parade of the two accused Muhibullah
and Jamil Ahmed. On receiving FSL reports, he submitted an
incomplete report in the Trial Court. The appellant Sher Gul succeeded
to escape from the police station. On 4th December, 2018, he was again
apprehended and Masood Ahmed SI (PW-13) was appointed
Investigating Officer. He conducted the identification parade of Sher
Gul and prepared the disclosure memo of said accused and submitted
an incomplete challan.
4. On 9th April, 2018, the appellants Muhibullah and Jamil Ahmed
were formally charge sheeted to which both pleaded "Not Guilty" and
claimed trial. On 14th March, 2019, the appellant Sher Gul was
formally charge sheeted to which he pleaded "Not Guilty" and claimed
trial.
5. To discharge the onus of proof, the prosecution produced and
examined as many as thirteen witnesses. The ocular account of the
incident was furnished by Adeel (PW-4), Shoaib (PW-5), Qandeel (PW-
7) and Hassan (PW-8). The complainant appeared as PW-1, Saadullah
(PW-2) and tendered in evidence the receipt of receiving the corpus of
the deceased as Ex: P/2-A. The recovery witness Sardar Muhammad
(PW-3) tendered in evidence the site inspection memo and recovery
memo as Ex: P/3-A and Ex: P/3-B respectively. Dr. Ali Mardan appeared
and deposed as PW-6 and tendered in evidence the death certificate of
deceased as Ex: P/6-A. The Judicial Magistrate Allah Muhammad (PW-
9) tendered in evidence the identification forms as Ex: P/9-A to Ex: P/9-
H and the certificates as Ex: P/9-I to Ex: P/9-P. Ashiq Khan Khattak SI
(PW-10) tendered in evidence the recovery memos of the recovered
cell phones and DSLR as Ex:P/10-A, Ex: P/10-D and Ex: P/10-E
respectively. The Judicial Magistrate Paraksa Noor (PW-11) tendered in
evidence the forms of identification parade and certificate as Ex: P/11-
A to Ex: P/11-D. On completion of the prosecution evidence, the accused
were examined under section 342, Cr.P.C. They opted not to appear as
witnesses in their defence in terms of section 340(2), Cr.P.C. nor
examined any witness in their defence. On termination of trial, the
appellants were held guilty and, therefore, convicted and sentenced in
the above terms.
6. Messrs Ghulam Mustafa Butt, Ali Ahmed Lehri and Zeeshan
Rakhshani, Advocates, appearing on behalf of the appellants,
submitted that the FIR was lodged against unknown persons and the
appellants were previously not known to the eye-witnesses and
features of the appellants were not given by such witnesses in their
161's Cr.P.C statement, therefore, the identification parade has illegally
been relied upon by the Trial Court as evidence; that in the
identification parade, the separate role of appellants regarding the
offence was not attributed to each of them by the witnesses; that the
identification parade was conducted in the police station which is not
safe rather is violation of the case law of the Apex Court; that
Farhanullah in his 161's Cr.P.C. statement stated that the eye-witnesses
told him that the faces of the accused were muffled; that the
identification parade was held after ten days of the arrest of
appellants Jamil Ahmed and Muhibullah and there was no explanation
by the prosecution for such delay; that identification of the alleged
recovered Nokia mobile and camera was not conducted by the
witnesses from whom the same were allegedly snatched by the
appellants, therefore, the alleged recovery had not connected the
appellants with the commission of offence; that the statements of eye-
witnesses were recorded with an unexplained delay of five days
whereas, they were in police custody; that the identification parade of
appellant Sher Gul was conducted by the Investigating Officer with an
unexplained delay of eight days; that the empty shell and the
recovered pistol were sent together to the FSL, therefore, the alleged
recovery of pistol from Sher Gul is not admissible in evidence as a
corroborative piece of evidence or otherwise; that the alleged recovery
of mobile was not put to the appellants in their statements under
section 342, Cr.P.C. Concluding arguments, the learned counsels placed
reliance on the following case laws:
Muhammad Yameen alias Raja v. The State 2009 SCMR 84;
Mehmood Ahmed and 3 others v. The State and another 1995 SCMR
127;
 Sabir Ali alias Fauji v. The State 2011 SCMR 563;
Nasir Mehmood and others v. The State 2008 YLR 1755;
Mian Sohail Ahmed and others v. The State and others 2019 SCMR
956;
Javed Khan alias Bacha and another v. The State 2017 SCMR 524; and
Noor Islam v. Ghani-ur-Rehman 2020 SCMR 310.
7. In rebuttal, Mr. Muhammad Younas Mengal, the learned
Additional Prosecutor General supported the impugned judgment and
submitted that the eye-witnesses had no motive to falsely roped the
appellants in this case; that four eye-witnesses recognized the
appellants in the identification parade as well as before the Court,
therefore, their testimonies are coherent and confidence inspiring;
that the ocular evidence got corroboration from the medical evidence,
recovery of crime weapon and FSL report. Concluding his arguments,
the learned A.P.G. submitted that the Trial Court has already taken a
lenient view while awarding sentence to the appellants whereas the
normal penalty under section 302(b), P.P.C is death.
8. We have heard arguments and gone through the record and the
case laws cited at bar. The prosecution case rests upon the evidence of
identification parade. According to the prosecution, the appellants
were apprehended on 23rd February, 2018 and they remained in
police custody till 3rd March, 2018. On 3rd March, 2018, the
identification parade of the appellants Muhibullah and Jamil Ahmed
were conducted in the Police Station Kuchlak. The identification
parade of appellants Muhibullah and Jamil Ahmed was conducted
under the personal superintendence of Allah Muhammad, Judicial
Magistrate, Kuchlak (PW-9) in Police Station Kuchlak. The witnesses,
Hassan Qandeel, Adil and Shoaib recognized in his presence picked up,
the appellants Muhibullah and Jamil Ahmed, thrice in the line of
dummies of like faces, religion and get up. During his cross-
examination, the PW-9 stated as under:
"2. It is correct that as a Judicial Magistrate of the concerned area, I
used to order for remand of the accused."
"3. Accused were brought in the Court with uncovered faces."
"16. It is correct that there is difference in the height and faces."
"26. It is correct that the clothes of the dummies were not changed
during the identification parade by the four witnesses. ----"
According to the statement of PW-9, the identification parade was
held on 3rd March, 2018 after eight days of the arrest of appellants
Muhibullah and Jamil Ahmed. The prosecution has not explained the
delay caused in conducting the identification parade of appellants
Muhibullah and Jamil Ahmed. The identification parade of the said
appellants was held in the Police Station Kuchlak where the said
appellants were in custody during the investigation of the case. The
Judicial Magistrate in his deposition before the Court and in the
certificates, has not mentioned that at the time of identifying the said
appellants, the witnesses had described the role of each appellant
regarding the offence. Besides all above, the witnesses in their 161's,
Cr.P.C statements had not furnished the physical as well as face
features and characteristics of each appellant, therefore, the evidence
of identification parade has lost its evidentiary value and relevance
under Article 22, the Qanun-e-Shahadat Order, 1984 ("Q.S.O.").
9. The appellant Sher Gul was also arrested on 23rd February, 2018,
however, he was allegedly escaped from the police custody on 24th
February, 2018. Latter, on 4th December, 2018, the appellant Sher Gul
was apprehended by the police of Jinnah Town P.S. Quetta. The Judicial
Magistrate Paraksa Noor appeared as PW-11 and deposed that on 13th
December, 2018, the identification parade of appellant Sher Gul was
conducted in Police Station Civil Line, Quetta. The appellant was
identified thrice by the witnesses Adeel, Qandeel, Hassan and Shoaib,
in the line of eight dummies. During her cross-examination, she stated
as under:
"19. It is correct that all dummies worn the same clothes in the four
identification parades."
"21. It is correct that the names, parentage and addresses of the
dummies are not mentioned in each form."
The identification parade of the appellant was conducted after nine
days of his arrest. The prosecution has not explained delay caused in
conducting the identification parade of appellant Sher Gul. The
identification parade was conducted in Police Station Civil Line,
Quetta. The Judicial Magistrate in her deposition before the Trial Court
and in the certificate has not mentioned that at the time of identifying
the said appellant, the witnesses had described the role of appellant at
the time of commission of the alleged offence. The witnesses in their
161's, Cr.P.C statements had not furnished the physical features of the
appellant. The identification parade of appellant was held after ten
(10) months, from the incident. Therefore, the evidence of
identification parade has lost its evidentiary value and relevance
under Article 22, the Q.S.O, to the extent of appellant Sher Gul as well.
Reliance may be placed on the case of Javed Khan alias Bacha and
another v. The State reported in 2017 SCMR 524, in which, the Apex
Court has held:
 "8. The Complainant (PW-5) had not mentioned any features of the
assailants either in the FIR or in his statement recorded under
section 161, Cr.P. C. therefore there was no benchmark against
which to test whether the appellants, who he had identified after
over a year of the crime, and who he had fleetingly seen, were in
fact the actual culprits. Neither of the two Magistrates had
certified that in the identification proceedings the other persons,
amongst whom the appellants were placed, were of similar age,
height, built and colouring. The main object of identification
proceedings is to enable a witness to properly identify a person
involved in a crime and to exclude the possibility of a witness
simply confirming a faint recollection or impression, that is, of
an old, young, tall, short, fat, thin, dark or fair suspect
9. As regards the identification of the appellants before the trial
court by Nasir Mehboob (PW-5), Subedar Mehmood Ahmed
Khan (PW-6) and Idrees Muhammad (PW-7) that too will not
assist the Prosecution because these witnesses had a number of
opportunities to see them before their statements were
recorded. In State v. Farman (PLD 1985 SC 1), the majority
judgment of which was authored by Ajmal Mian J, the learned
judge had held that an identification parade was necessary
when the witness only had a fleeting glimpse of an accused who
was a stranger as compared to an accused who the witness had
previously met a number of times (page 25V). The same
principle was followed in the unanimous judgment of this Court,
delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad
v. State (1998 SCMR 752), in which case the abductee had
remained with the abductors for some time and on several
occasions had seen their faces. In the present type of case the
culprits were required to be identified through proper
identification proceedings, however, the manner in which the
identification proceedings were conducted raise serious doubts
(as noted above) on the credibility of the process. The
identification of the appellants in court by eye-witnesses who
had seen the culprits fleetingly once would be inconsequential."
In the case of Mian Sohail Ahmed and others v. The State reported in
2019 SCMR 956, the Apex Court has held:
"5. 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).
7. No role was assigned to the suspects by the witnesses, especially
when the first information report clearly describes two different
roles to the appellants; one that of an assailant, while the other
of a driver of a motorcycle who drove the assailant away. If a
witness fails to give the description of the part played by the
suspect in the crime, the credibility of the witness stands
questioned as he fails to complete the picture of the crime scene,
thus inviting caution and circumspection in assessing the
evidentiary value of the identification evidence. This Court over
the years has placed little reliance on such identification
evidence. Even in the subsequent identification by the
complainant in court, which has little evidentiary value, he
failed to point an accusing finger at the appellants to say who
did what, therefore the parts played by the appellants in the
crime remain a mystery. See: In the matter of Kanwar Anwaar
Ali (PLD 2019 SC 488) on the absence of a role assigned by the
witness in an identification parade."
In the case of Muhammad Yameen alias Raja v. The State and others
2009 SCMR 84, the Apex Court had disbelieved the evidence of
identification parade because particulars of features of accused were
not provided by the eye-witnesses and there was no explanation as to
why the physical apparent features were not provided by the
witnesses in their 161, Cr.P.C statements although there were four
witnesses of the occurrence. The Apex Court has acquitted the accused
because the memo of identification test had also not shown the details,
names and addresses of the dummies.
10. The identification parade is a weak type of evidence and cannot
be formed basis for sentencing an accused. It merely corroborates
independent and direct piece of evidence for the purpose of proof of
guilt of an accused. In the case in hand, the testimonies of PW-3, PW-4,
PW-5 and PW-7 are not sufficient to uphold the impugned judgment
merely on the basis of said identification parade and recognizing the
appellants in the Court. During his cross-examination, the
Investigating Officer, stated as under:
"15. It is correct that witness Farhanullah told him, this fact in his
statement of 161, that "we reached at the spot through near Killi
Sufi, where police had already reached. Their brother was lying
in the vehicle of police in pool of blood. The police present at the
spot told that Farmanullah along with his friends, Hassan,
Shoaib, Adeel, Qandeel had come here for picnic. The friends of
deceased state that three unknown muffled came on motorcycle.
On resistance of deceased Farman-ullah, the armed muffled face
made firing."
"18. It is correct that witnesses had not mentioned in their
statements about the features, voluntarily stated that they had
told that they can recognize, if come before them. Further,
Shoaib had told that the three were slim and smart and one was
of tall height."
"68. The informer conveyed him information on 23.2.2018 at 04:00
p.m."
"69. He had not incorporated the information of informer in any
Roznamcha."
The identification parade of the appellants were held in police
station. The Apex Court in the case of Kanwar Anwaar Ali, (PLD 2019
SC 488) has held that "identification of accused in the premises of the
police station should be avoided." The relevant from the case law is
reproduced hereunder:
"(c) The identification parades should never be held at police
stations;"
Hence, the evidence of identification parade is not of worth
consideration, as such; is discarded.
11. The recovery of a cell phone from the personal search of the
appellant allegedly belonged to the deceased, is not worth of
consideration, as the alleged recovered cell phone is a common mobile
and the prosecution had not conducted identification of the recovered
mobile from the complainant/ brother of deceased, uncle of deceased
(PW-2) and the eye-witnesses. The prosecution has not brought on
record the EMI number of the recovered mobile. The recovered cell
phone was not identified by the witnesses. The alleged recovery was
not put to the appellant Muhibullah in his examination under section
342, Cr.P.C., by the Trial Court.
The Trial Court has not separately put incriminating pieces of
evidence to the appellants according to evidence produced against
each appellant. A stereotyped examination of appellants were
recorded which is violation of section 342, Cr.P.C. The Apex Court, in
the case of Muhammad Shah v. The State (2010 SCMR 1009) has held as
under:
"----It is well-settled that if any piece of evidence is not put to the
accused in his statement under section 342, Cr.P.C. then the same
cannot be used against him for his conviction. In this case both
the Courts below without realizing the legal position not only
used the above portion of the evidence against him, but also
convicted him on such piece of evidence, which cannot be
sustained."
The recovery of pistol, DSLR camera and motorcycle from the house
of appellant Jamil Ahmed is not sufficient to prove the guilt. As the
recovered pistol was not matched with the secured empty shell by the
FSL which means that the same was not used in the commission of
offence. So far as the DSLR camera is concerned, the identification of
the same was not conducted and was not recognized by the witness
Qandeel from whom it was allegedly snatched by the appellants. The
recovery of motorcycle is not a case property as it was allegedly
disclosed by the appellant Jamil Ahmed that the same was used on the
day of incident for commission of offence. Such statement is a
confession before police which is not admissible under Articles 38 and
39 Q.S.O.
So far as the recovery of pistol from the possession of Sher Gul is
concerned, the same was found matched by the FSL with the empty
shell. The same is inadmissible, as the empty shell and recovered pistol
were sent together to FSL and that too, with an unexplained delay. The
pistol was recovered on 23rd February, 2018 whereas the sealed
parcels were received at FSL on 2nd March, 2018 i.e. with unexplained
delay of seven days. PW-10 in his cross-examination stated as under:
"3. It is incorrect that if all these things are mixed up with other
arms, he cannot recognize them because the number of the
 pistol from Jamil Ahmed is 1944 and of accused Sher Gul is pistol
No. 362."
However, the FSL report (Ex: P/12-D) has mentioned the number of
the matched pistol as 263. The recovered cell phones from the accused
Sher Gul were not the snatched cell phones. The Investigating Officer
in reply of a question stated as under:
"60. It is correct that eight cell phones have no concern with this
case."
Hence the recoveries do not connect the appellants with the
commission of the alleged offence.
12. The prosecution has given up a witness Farhanullah whose
statement was recorded by the Investigating Officer under section 161,
Cr.P.C. The prosecution gave up such witness with mala fide intention
because in his 161's Cr.P.C statement, he stated that when he reached,
he was told by the friends of the deceased that the robbers were
muffled faces and the one who made fire shot at deceased was muffled
face. We may place reliance on Article 129(g), the Q.S.O, which reads:
"That evidence which could be and is not produced would,
if produced, be unfavour- able to the person who withholds it. "
The Hon'ble Apex Court in the case of Lal Khan v. The State (2006
SCMR 1846) has held as under:
"---The prosecution is certainly not required to produce a number of
witnesses as the quality and not the quantity of the evidence is
the rule but non -production of most natural and material
witnesses of occurrence, would strongly lead to an inference of
prosecutorial misconduct which would not only be considered a
source of undue advantage for possession but also an act of
suppression of material facts causing prejudice to the accused.
The act of withholding of most natural and a material witness of
the occurrence would create an impression that the witness if
would have been brought into witness-box, he might not have
supported the prosecution and in such eventuality the
prosecution must not be in a position to avoid the consequence.--
--"
The statements of the four eye-witnesses were recorded with delay
of six days as the incident took place on 2nd February, 2018 and their
161's, Cr.P.C. statements were recorded on 8th February, 2018. Though
they were implicated by the complainant, through supplementary
statement (Ex: P/1-B), however, latter, vide an affidavit dated 7th
February, 2018 (Ex: P/1- C), they were exonerated from the case. But
since they were in custody, therefore, delay occurred in recording
their statement is fatal.
 For the foregoing discussion, the prosecution has failed to prove the
case against the appellants beyond shadow of doubt. The impugned
judgment is result of non-reading of evidence. The Trial Court has not
appreciated the evidence in its true legal sense and appears to have
overlooked the case laws on the subject. We, therefore, allow this
appeal, set aside the impugned judgment of the Trial Court and acquit
the appellants, Muhibullah son of Abdullah, Jamil Ahmed son of
Jumma Gul and Sher Gul son of Ghulam Hussain from the charge in
case FIR No. 09/2018, dated 02nd February, 2018 under sections 302(b)
and 397 P.P.C, Police Station Kuchlak. Accordingly, they shall be
released forthwith, if not required to be detained in any other case.
The Criminal Revision Petition No. 24/2021 is dismissed for the above
mentioned reasons.
JK/197/Bal. Order accordingly.
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