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Criminal Appeal No. 12‑P of 1972, decided on 19th April 1974.

(On appeal from the judgment and order of the Peshawar High Court, dated the 6th November 1970, in Criminal Appeal No. 33 of 1970).

---Ss. 392/34 & 307/34‑Robbery‑Attempt to murder‑‑Benefit of doubt‑‑‑Prosecution witness A not identifying any accused at test identification parade‑Prosecution witness M admitting in cross‑examination to have soon accused before holding of identification parade‑Magistrate conducting identification parade admitting both accused to have protested immediately after identification parade of their having been shown to witnesses before identification parade‑Prosecution witnesses D and F not giving accused's description to police officer and stating accused having muted their faces at time of occurrence‑Such witnesses also differing in description of clothes worn by accused although incident occurring in broad daylight‑Identification parade held about 1 months after occurrence‑Rifle, gun, shells and empty cartridges recovered yet no evidence shaving matching of empty cartridges or crime shells with weapons seized from appellants‑Accused, held, entitled to benefit of doubt.‑[Robbery‑Benefit of doubt‑Identification].

Mian Ziauddin, Advocate Supreme Court instructed by Abdul Samal Khan, Advocate‑on‑Record for Appellants.

Mian Burhanuddin, Advocate‑General N.‑W. F. P. Peshawar instructed by Amirzada Khan, Advocate‑on‑Record for the State.

Date of hearing : 19th April 1974.

This appeal, by special leave, is from the order of the Peshawar High Court maintaining the convictions and sentences of the appellants under sections 392/34 and 307/34 of the Pakistan Penal Code.

According to the prosecution case the appellants and the co‑accused had committed several robberies on the 5th of September 1967, at about 3 p.m. One of the victims was P. W. 3 Aslam and he followed the accused and saw that they robbed other persons on the way as well. Another victim was P. W. 4 Mahmud. Two of the robbers, namely, Nisar and Dost Muhammad were pursued and caught while the appellants escaped. Nisar has already been convicted and sentenced for the said offences, and we had seen no reason to interfere with his convictions and sentences and, therefore did not grant him leave to appeal. Dost Muhammad did not apply for leave to appeal.

It appears that of the four witnesses of the occurrence, namely, P. W. 3 Aalam, P. W. 4 Mahmud, P. W. 10 Mir Dad and P. W. 11 Faqir Gul, the first one failed to identify at the test identification parade any one of the accused, and the ‑second admitted in his cross‑examination that he had seen the accused before the identification parade was held, P. W. 9 Manzur Ahmad is the Naib‑Tehaildar, who held the test identification parade, and he said that immediately after the identification parade both the appellants Sher Zaman and Syed Latif protested that they had been shown to the witnessed before the identification parade. This left the prosecution with the evidence of identification at the test identification parade by, only two witnesses, namely, P. Ws. Mir Dad and Faqir Gul, the retracted confession of co‑accused Dost Muhammad, implicating the two appellants, and their alleged absconsion,

It is, thus, evident that unless the evidence of identification of the two prosecution witnesses are found unimpeachable, the conviction of the appellants cannot be sustained merely, upon the retracted confession of the co‑accused and the absconsion of the appellants.

An examination of the evidence of P: Ws. Mir Dad and Faqir Gul shows that they had not given description of the appellants to the police officer. They said that the appellants had muffled their faces at the time of occurrence.' The test identification parade was held about a month and a half after the occurrence. The witnesses also differed on the description of the two clothes worn by the two appellants. While P. ail. Mir Dad said that appellant Sher Zaman wore Mazri clothes and appellant Latif wore Khaki clothes, P. W. Faqir Gul said that both the appellants were wearing Mazri clothes. The occurrence took place in broad daylight and there should have been no discrepancy in regard to the nature of the clothes worn by the appellants.

Furthermore, it appears that although a rifle was recovered from Sher Zaman and a shot gun from Latif, and some crime shells and empty cartridges cases were recovered from the scene of occurrence, there is no evidence that tiny empty cartridge or crime shell matched the weapons seized from the appellants.

In these circumstances, we think that the appellants were entitled to the benefit of doubt as regards identification, and this benefit should have been given to them. We, accordingly, give them this benefit.

The appeal is allowed, and the convictions and sentences of the appellants are set aside and they are directed to be discharged from their bail bonds forthwith.

Appeal allowed.

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