Necessity of Identification Parade and Production of Best Evidence

Necessity of Identification Parade and Production of Best Evidence Case Laws Criminal Appeal Criminal Law Evidence Identification Parade Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Murder Solutions - Criminal Law Mr. Justice Raja Shahid Mehmood Abbasi in his judgment has decided the issue regarding necessity of identification parade and production of best evidence in Criminal Appeal No. 76-J of 2010.

1. This single judgment shall dispose of Crl. Appeal No. 76-J of 2010 titled “Zeeshan alias Shani v. The State” filed by Zeeshan alias Shani (appellant), against his conviction and sentence, as well as Murder Reference No.113 of 2010 titled as “The State vs. Zeeshan alias Shani”, transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Zeeshan alias Shani (appellant) being originated from the same judgment dated 15th of May, 2010 passed by the learned Addl. Sessions Judge, Rawalpindi, Camp at Central Jail, Rawalpindi in case FIR No.279 dated 21-04-2005 under sections 302/394/511/34 PPC, registered at Police Station, Civil Lines, Rawalpindi, whereby the appellant Zeeshan alias Shani was convicted and sentenced as under:

Under section 302-(b)PPC, death sentence on two counts for committing the murder of Shahid Ahmad Khan and Feroza. He was further held liable to pay compensation of Rs.2,00,000/- each under section 544-A Cr.P.C. to the legal heirs of each deceased or in default thereof to further undergo simple imprisonment for six months each.

2. Brief facts of the case, as disclosed by Arslan Shahid, complainant, in his statement Ex.PT. On basis of which, formal FIR, Ex.PU was registered are that he was living in house No. 79 situated at Kauser Colony, Railway Scheme No.III, Marrir Hassan, Rawalpindi, along with his family members. It was a three stories house. On the first portion, the complainant was living with his parents. On second floor, his uncle Zahid Ahmad Khan, PW.11 was living with his family, while on the third portion Mst. Farkhanda Bibi, PW.13 the paternal aunt (Phopho) of the complainant was living. Farkhanda Bibi, PW.13 used to sleep in the portion of Zahid Ahmad Khan. On the night between 20/21-4-2005, Mst. Farkhanda Bibi raised hue and cry, upon which, the complainant along with his father Shahid Ahmad Khan (deceased) and Feroza Begum (deceased) real mother, came out of their rooms and saw that two unknown accused of heavy built, wearing Shalwar Kameez, armed with pistols were present. Upon seeing the complainant and his parents, both of them started firing at them. One fire shot hit on the chest of the mother of the complainant, while two bullets shots hit on the left flank and one on right thigh of father of the complainant and they fell down on the ground. Upon hearing the firing, Zahid Ahmad Khan, PW.11, complainant’s uncle and Yasir Shahid, PW.12 the real brother of the complainant also came there and the accused persons ran away from the main gate after leaving behind a Gram Shawl and a Sindi cap. Later on, the injured parents of the complainant succumbed to the injuries in the hospital.

3. Upon receiving the information of the occurrence, Azam But Inspector/SHO, PW.17 reached at the RGH, Hospital, where he recorded the statement of the complainant as Ex.PT and after making his endorsement, sent the same to the police station for registration of case through Tahir Nawaz, 2477-C, and this case was registered. During the course of investigation, the accused Zeeshan alias Shani was challenged to stand trial before the trial court, while co-accused Ejaz Ahmad Khan alias Tota was murdered. After receipt of challan against the present appellant/accused, charge was framed to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as 20-PWs in all to bring home the guilt of accused/appellant. Zahid Ahmad Khan, PW.11, Yasir Shahid PW.12 and Mst. Farkhanda Shamim, PW.13 are the witnesses of ocular account. PW-15 Ahmad Masood Janjua, the then SJM, Rawalpindi, who supervised the exhumation of the dead bodies of the deceased Shahid Ahmad Khan and Feroza Shahid.

Azam Mehmood Butt, Inspector/SHO, PW.17, Malik Sher Baz Inspector/SHO, PW.18 and Muhammad Wilayat, SI, PW.20 are the investigating officers of this case. The Medical evidence in this case was furnished by Dr. Abdul Waheed Shah, PW.7, Lady Doctor Kokab Sultana, PW.8, Dr. Yasmin Siddiqi, PW.9 and Dr. Masood-ul-Haq, PW.10. Rest of the prosecution witnesses are almost formal in nature.

4. The statement of the appellant under Section 342 Cr. P.C. was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, “why this case against you and why the PWs had deposed against you”, Zeeshan alias Shani, appellant stated as under:

“I have been falsely involved in this case. In fact, I was made scapegoat. The witnesses are closely related to the deceased. No PW had seen the occurrence.”

The appellant opted not to appear as his own witness under Section 340(2) Cr. P.C. in disproof of the allegations levelled against him by the prosecution nor opted to produce defence evidence.

5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any shadow of doubt and thus convicted and sentenced him as mentioned above. Hence, the appeal before this Court.

6. The learned trial Court having heard the learned counsel for the parties passed the above said conviction and sentences, which is being impugned herein.

7. The learned counsel for the appellant inter alia, contends that the appellant has falsely been implicated in this case; that the appellant is not named in the crime report and the case was registered against some unknown assailants; that the prosecution failed to produce Arslan Shahid, complainant in the court during the trial; that the complainant was a material witness and without any reasons, he was not produced which seriously dented the prosecution case; that the medical evidence is in conflict with the ocular account; that alleged recovery is planted one; that there are major discrepancies in the deposition of the prosecution witnesses; that despite the fact that the appellant was not nominated in the FIR; that no identification parade was conducted in the instant case; that prosecution miserably failed to prove the case against the appellant; that alleged recovery is planted one and finally prayed that appellant may be acquitted and murder reference be answered in negative.

8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia maintains that prosecution has proved its case to its hilt; that no malafide is pointed out by the appellant for his falsely implication in the case; that ocular account is well corroborated by medical evidence as well as recovery of crime weapon; that non-production of the complainant in the case is not at all fatal to the prosecution and prayed that this appeal may be dismissed and murder reference be answered in affirmative.

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