AZHAR MEHMOOD and others vs The STATE

ASIF SAEED KHAN KHOSA, J.---A dacoity had allegedly been committed in the house of Muhammad Raman complainant at about 08.00 P.M. on 20.08.2001 in the area of Police Station Saddar Hassan Abdal, District Attock and during the said dacoity two persons namely Muhammad Ijaz and Muhammad Anwar had been done to death. The culprits committing the alleged offences had remained unknown and FIR No, 245 had been lodged in respect of that incident by Muhammad Ramzan complainant at the above mentioned Police Station at 09.55 P.M. during the same night. The present appellants namely Azhar Mehmood, Muhammad Altaf, Azam Sher and Asad Ali had subsequently been implicated in this case and after a regular trial the trial court convicted the appellants for offences under sections 460, 396 and 302(b), P.P.C. read with section 34, P.P.C. and sentenced them to various terms of imprisonment besides sentences of death on two counts of the charge under sections 396 and 302(b), P.P.C. Later on the High Court had upheld the sentence of death passed against Azhar Mehmood appellant whereas on the charge ,of murder the sentences of death passed against the remaining appellants were reduced to imprisonment for Iife each. The High Court had converted the appellants' convictions for an offence under section 396, P.P.C. into those for an offence under section 398, P.P.C. and had passed a reduced sentence against the appellants for the said offence. The convictions and sentences of the appellants for the offence under section 460, P.P.C. read with section 34, P.P.C. were, however, upheld and maintained by the High Court. Hence, the present appeals by leave of this Court granted on 05.04.2010.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. 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. The present appellants had not been nominated in the FIR wherein it had been mentioned that the offences in issue had been committed by six unknown culprits but later on it had been maintained by the prosecution that the present appellants had been overheard by a witness discussing amongst themselves the commission of offences by them relevant to the dacoity and murders taking place at the house of the complainant. It was in that dubious background that the present appellants had been arrested on 24.09.2001 and later on they had statedly been identified, by the eye-witnesses namely"Muhammad Ramzan complainant (PW15) and Arif Ali (PW16) in the test identification parades conducted on 01.10.2001 and 08.05.2002. We have gone through the statements made by the supervising Magistrates, i,e, PW5 and PW10 as well as the proceedings of the test identification parades and have straightaway noticed that in the said parades the present appellants had not been identified with reference to any roll played by them in the incident in issue. It has consistently been held by this Court that such a test identification parade is legally laconic and is of no evidentiary value and a reference in this respect may be made to the cases of Khadim Hussain v. The State (1985 SCM R 721), Ghulam Rasul and 3 others v. The State (1988 SCM R 557), Asghar Ali alias Sabah and others v. The State and others (1992 SCM R 2088), Mehmood Ahmad and 3 others v. The Stare and another (1995 SCM R 127), Siraj- ul-Haq and another v. The Stare (2008 SCM R 302), Ghulam Qadir and 2 others v. The State (2008 SCM R 1221), Shafaat Mehmood and others v. The State (2011 SCM R 537), Sabir Ali alias Fault v. The State (2011 SCM R 563) and Muhammad Fayyaz v. The State (2012 SCM R 522). During the trial the above mentioned eye-witnesses had maintained that the appellants facing the trial were the actual culprits and 'they courts below had found such identification of the appellants during the trial to be of significance. We, however, note that both the above mentioned eye-witnesses, i,e, PW.15 and PW.16 had appeared before the trial court after 14 prosecution witnesses had already made their statements before the trial court and on all such occasions the present appellants were physically present in the dock and, thus, the above mentioned eye-witnesses had ample opportunities to see the present appellants in the courtroom on all such occasions. Even prier to that the appellants had been produced before the trial court at the time of framing of the charge and even at the time of obtaining remand from the concerned forum. This is why identification of a culprit before the trial court during the trial has repeatedly been held by this Court to be unsafe and a reference in this respect may be made to the cases of Asghar Ali alias Sabah and others v.

The State and others (1992 SCM R 2088), Muhammad Afzal alias Abdullah and another v. State and others (2009 SCM R 436), Nazir Ahmad v. Muhammad Iqbal (2011. SCMR 527), Shafqat Mehmood and others v. The State (2011 SCM R 537) and Ghulam Shabbir Ahmed and another v. The State (2011 SCM R 683). As regards the alleged recovery of weapons from the appellants' custody during the investigation suffice it to observe that the recovered firearms had not matched with the crime- empties secured from the place of occurrence and the alleged recoveries had been discarded by the High Court. The medical evidence produced by the prosecution could not point towards any particular culprit. The only remaining piece of evidence produced by the prosecution was in respect of an alleged abscondance of Muhammad Altaf appellant but in the circumstances of the case we have not found the alleged abscondance of the said appellant to be totally inconsistent with the hypothesis of his innocence.

4. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. These appeals are, therefore, allowed, the convictions and sentences of Azhar Mehmood, Muhammad Altaf, Azam Sher and Asad Ali appellants are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case,