MUHAMMAD FAYYAZ vs THE STATE

' ASIF SAEED KHAN KHOSA, J.---Muhammad Fayyaz appellant was tried in case F.I.R. No, 245 registered at Police Station Saddar Hassan Abdal, District Attack on 20-8-2001 in respect of offences under sections 396/302/201, P.P.C. And vide judgment dated 29-12-2003 handed down by the learned Additional Sessions Judge, Attack he was convicted for an offence under section 460, P.P.C. Read with section 34, P.P.C. And was sentenced to rigorous imprisonment for ten years. The appellant was also convicted for an offence under section 39,6, P.P.C. And was sentenced to death on two counts with a fine of Rs,1,00,000 on each count or in default of payment thereof to undergo simple imprisonment for three years on each count. The appellant was further convicted by the learned trial Court on two counts of an offence under section 302(b), P.P.C. Read with section 34, P.P.C. And was sentenced to death on each count and also to pay a sum of Rs,1,00,000 on each count to the heirs of each deceased by way of compensation under section 544-A, Cr.P.C. The appellant preferred Criminal Appeal No,7 of 2004 before the Lahore High Court, Rawalpindi Bench, Rawalpindi against his convictions and sentences which appeal was heard by a learned Division Bench of the said Court along with Murder Reference No,21 of 2004 and vide judgment dated 1-4- 2009 the appellant's appeal was dismissed with some modifications of his convictions and sentences and his sentences of death were not confirmed. Hence, the present appeal by leave of this Court granted on 30-5-2009.

2. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

3. It is not disputed that the occurrence in this case had taken place during a night and the culprits had remained unknown and unidentified at the spot. No source of light at the spot had been mentioned in the F.I.R. And in the site-plan of the place of occurrence an electric bulb had been shown to be available nearby but that bulb had never been secured by the investigating officer.

After his arrest the appellant was put to a test identification parade and although he had been correctly picked up by the eye-witnesses yet indisputably such identification had been made without any reference to the role allegedly played by the appellant during the incident in issue. The law is by now settled that evidentiary value of such an identification in a test identification parade is next to nothing. Although the eye-witnesses produced by the prosecution, i,e, Muhammad Ramzan complainant (P.W.9) and Arif Ali (P.W.10) had stately identified the appellant before the learned trial court at the time of making of their statements yet the fact remains that they had many previous opportunities to see the appellant appearing before the learned trial court at different prior stages of the trial. The learned Division Bench of the High Court had clearly misread the record by observing that the appellant and Azhar co-accused had fired at the deceased whereas a perusal of the statements of the said eye-witnesses shows that they had never alleged that the appellant had also fired at the deceased. The appellant had stiltedly made himself scarce for about two years after registration of this case and thus, he had been branded by the learned courts below as a fugitive but the learned courts below had failed to appreciate that the appellant had not been nominated in the F.I.R. And no evidence had been brought on the record to establish that his absence or avoidance of arrest was intentional. Be that as it may the fact remains that no question had been put to the appellant at the time of recording of his statement under section 342, Cr.P.C. Regarding his alleged ascendance. It is admitted at all hands that the appellant had not fired at anybody during the incident in issue and the alleged recovery of a pistol from his custody during the investigation had been discarded by the learned trial Court itself.

4. For what has been discussed above a conclusion is irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. The delay in filing of this appeal is, therefore, condoned, this appeal is allowed, the convictions and sentences of the appellant recorded by the learned courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.