' MUHAMMAD FARRUKH MAHMUD, J.---Abdul Azizappellant, Muhammad Hashim and Rab Nawaz were sent up to face trial in case F.I.R. No,251 of 1998, dated 20-10-1998, Police Station Pakka Laran, for committing theft and causing murder of Muhammad Iqbal. Vide judgment dated 4-7-2000, passed by Mr. A.D. Khalid, learned Additional Sessions Judge, Liaqatpur, Muhammad Hashim and Rab Nawaz were acquitted, while Abdul Aziz was convicted for offence under section 302(b), P.P.C.
Sentenced to death. The convict was also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased. In default in payment thereof, the convict-appellant was to suffer six months' R.I.
2. Feeling aggrieved Abdul Aziz, through Criminal Appeal No,83 of 2000, has challenged his conviction and sentence. Mukhtar complainant, through Criminal Appeal No,96 of 2000, has questioned the legality of acquittal of Muhammad Hashim and Rab Nawaz, respondents/co- accused. Murder Reference No,15 of 2000, seeking confirmation of death sentence inflicted upon Abdul Aziz appellant, has also been placed before us. We propose to decide all these matters through this consolidated judgment.
3. P.W.8 Muhammad Shafiq, S.-I., Police Station Pakka Laran,while he was present at Pull Minchan Branch at 1-30 a.m. On 20-10-1998, recorded the statement of Mukhtar Ahmad Bhatti P.W.10, son of the deceased. On the basis of Exh.P.B., formal F.I.R. Exh.P.B./1 was registered at the police station on the same date at 1-50 a.m. By Abdul Rasheed, S.-I./S.H.O. For offences under sections 302/384/411, P.
P. C .
4. According to the prosecution case, on the fateful night, the complainant and his father Muhammad Iqbal deceased were sleeping in their house. They woke up at 12-30 a.m. Due to some noise and saw that their buffalo along with calf had been stolen. They raised alarm, which attracted Ghulam Mustafa, Haji Ghulam Qadir P.W.11 and many other persons, inhabitants of the locality, to the spot. A Wahar party was formulated and in the light of torches and lantern Wahar party, following the footprints, started chasing the thieves. After conversing a short distance, three accused, who were going along with the stolen animals and could be identified, were spotted.
While the Wahar party was approaching to the accused, they left the buffalo and the calf and tried to flee away, Muhammad Iqbal attempted to apprehend one of the thieves. The unknown thief fired with a pistol, which hit on the right side of the face and neck of the father of the complainant, who died on the spot. While the complainant along with Haji Abdul Aziz was going to report the matter to police station, he came across Muhammad Shafiq, S.-I./PW-8. The latter recorded the statement of Mukhtar Ahmad.
5. After drafting the complaint and sending the same to the police station for registration of the case, Muhammad Shafiq, S.I. Proceeded to the place of occurrence. Blood-stained earth was secured from the sport vide memo. Ex.PA prepared by Muhammad Shafiq and attested by Ghulam Qadir P. W.11 and Ghulam Mustafa, who was not produced during the trial. P.W.8 also collected .12- bore empty P-4 and secured the same vide memo. Exh.PJ. Memo. Exh. PK, relating to production of stolen buffalo by the complainant, was also prepared by PW-8. The above-noted memos. Were attested memo. Exh.PA. All the accused were arrested on 5-11-1998. For the purposes of identification parade, they were sent to judicial lock-up on 6-11-1998 by the order of the Magistrate.
On the application dated 14-11-1998 (Exh.PN), the Assistant Commissioner appointed Tehsildar/Duty Magistrate, Malik Ahmad Hassan/PW-12, to conduct the identification parade within four days. On 21-11-1998, under the supervision of P.W.-12, identification parade was held. During the parade, P.Ws.
Identified all the accused. After identification parade, while in custody on 29-11-1998, Abdul Azizappellant led to the recovery of 12-bore pistol p.3 which was lying in a cluster of date trees in a deserted place. The same was taken into possession vide memo. Exh.PG. Attested by Abdul Aziz son of Muhammad PW-7 and one. Faiz Arbi, who was not produced during trial. After completion of investigation, the accused were sent up to face trial. They pleaded not guilty and claimed to be tried. Thus, the trial commenced.
6. During trial, prosecution produced 13 witnesses in support of its case. P.W.10 Mukhtar Ahmad son of the deceased and P.W.11 Ghulam Qadir, Mamoonzad of the deceased furnished ocular account.
Their statements are in line with the story given in the complaint/F.I.R. However, Mukhtar Ahmad P.W.10 added that on the next day, Haji Ahmad and Hafiz Khuda Bakhsh had gone to his house for condolence and had informed him that they had seen three persons at about 1/1-30 a.m. Running towards Kandani. They identified Abdul Aziz out of the three in the light of their motorcycle.
However, neither Haji Ahmad nor Hafiz Khuda Bakhsh was produced during trial. In addition to that, Ghulam Qadir also stated about the spot recoveries, Dr. Abdul Malik P.W.4 stated that he had conducted post-mortem examination on the dead body of deceased. He observed that deceased had received fire-arm injury on the right mandible on the neck area. According to his opinion, Muhammad Iqbal lost his life within two minutes of the receipt of the fire-arm injury. Malik Ahmad Hassan appeared as P.W.12 and stated that under his supervision identification parade was held and P.Ws. Had successfully identified all the accused. He brought on record identification parade report Exh.P.M. Abdul Aziz son of Muhammad Bakhsh P.W.7., a relative of the deceased, stated about the recovery of pistol at the instance of appellant Abdul Aziz. P.W.8 Muhammad Shafiq S.-I. Stated about the drafting of complaint and initial investigation of the case. He also appeared as P.W.13 in order to identify the handwriting and signature of Abdul Rasheed, S.H.O., who had conducted investigation of the case. Muhammad Afzal Gill, A.S.-I./P.W.9, stated about partial investigation of the case and submission of challan. The rest of the witnesses are formal in nature and need not be discussed. After placing on record the report of Forensic Science Laboratory (Exh.P.Q.), according to which the empty recovered from the spot tallied with the pistol recovered at the instance of the appellant, and the reports of Chemical Examiner and Bacteriologist (Exh.P.R. And Exh.P.S.), the prosecution closed its case.
7. After the closure of the prosecution case, the statements of the appellant/accused were recorded. They denied all the allegations and claimed to be innocent. According to them, it was an unwitnessed occurrence. However, the accused neither appeared as witnesses in their defence nor produced any defence witness during trial.
8. Learned counsel for the appellant has raised the following points:--
(a) that the accused were running away after leaving the stolen property, therefore, they had no reason to fire at the complainant, who was empty-handed;
(b) that the identification parade was held after a considerable delay;
(c) that the witnesses were not in a position to identify the accused, as none of the witnesses had stated that the accused has turned towards them and were seen;
(d) that P.W.12, who conducted the identification parade had no knowledge about its significance and how it could be conducted and, thus, his report and proceedings of identification parade had no value;
(e) that neither any lantern nor any torch was taken into possession; and
(f) that recovery, which was effected after a long delay, was not free from doubt and could not be used as evidence against the appellant/accused. He has relied upon a judgment passed by the apex Court in the case of Muhammad Tanzeein v. The State (1985 SCM R 160).
' The learned counsel has summed up by stating that prosecution case was not free from doubt.
10.(sic) Conversely, the learned counsel appearing on behalf of the complainant has argued that the F.I.R. Was lodged promptly; that the P.Ws., though related with the deceased, had no existing enmity or ill-will against the accused, so as to involve them in a false case; that the accused were duly identified by the P.Ws. During identification parade which was supervised by an independent officer; that the deceased received injury on the right side of his face which could not be caused unless the assailant was facing towards him. Thus, the witnesses were in a position to have a good look at the murderer, who was also correctly identified during trial as Abdul Aziz. The learned counsel has laid great stress on the factum of recovery of pistol, as the empty tallied with it. The learned counsel did not seriously challenge the acquittal of respondents Muhammad Hashim and Rab Nawaz, co-accused. However, the learned counsel very forcefully argued that Abdul Aziz was rightly convicted by the learned trial Court and the acquittal of the other accused from whom no recovery was effected would not benefit Abdul Aziz in any manner. The learned counsel appearing on behalf of the State has adopted the line of arguments of the learned counsel for the complainant.
11. We have heard the learned counsel for the parties at length and scanned the entire evidence available on the record.
12. According to the prosecution case, the thieves were on their way along with the stolen animals when they were chased by the Wahar party, including the deceased and P.Ws.10 and 11. It is also in evidence that on seeing Wahar party approaching, the thieves left the stolen animals and started running away, obviously, in order to avoid their apprehension by the Wahar party. It was only the deceased, who stepped ahead of the Wahar party and tried to apprehend one of the thieves, who fired at him. In the circumstances, there was no occasion for the accused to look. Back and could be identified by the Wahar party. Even if we accept the argument of the learned counsel for the complainant that while the assailant fired at deceased, he was facing towards the- deceased and, thus, could be seen even then the fact would remain that the P.Ws., who A were about 10/12 feet behind could see the glimpse of the murderer for a few seconds and no more. No description of the thieves or .The one who had fired at the deceased has been given in the F.I.R. Even general description like height, age, complexion or physique of the accused has not been-given in the F.I.R.
It was observed by the apex Court in the case of Lal Pasand v. The State (PLD 1981 SC 142) as follows:- "It ii true that the witness said that he had identified the appellant, because he had green eyes and thin neck,. But in this part of the world there are so many people with green eyes and thin necks."
' The identification of the accused in the case supra was not believed.
13. It was by the Hon'ble Supreme Court in the case of. State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo (1993 SCM R 585) that identification test had no value for want of description of accused in F.I.R. In the instant case, the accused were arrested on 5-11- 1998. They were identified during identification parade on 21-11-1998, sixteen days after their arrest.
Even the application for appointment of an officer on that regard was moved after nine days of the arrest, i.e,, 14-11-1998. There is no explanation available on. The record as to why the application was moved after so many days. In order to safeguard the rights of the accused, it is the requirement of the law that after the arrest identification parade should be held at the earliest, in order to avoid the possibility of accused being seen by the P.Ws. Prior to the identification parade. P.W.12, who conducted the identification parade, appears to be unaware of the instructions issued by the High Court. A perusal of his report reveals that he did not record the statement of any of the P.Ws. Or of the accused prior to holding of identification parade or after it was held. He has not described the features of any of the accused. He mixed three accused with eighteen inmates of the house in violation of the rule of mixing nine or ten strangers with one accused as laid down in decision of High Court. To top it off, the identification report Exh.P.M. Contains the signatures of Mr. Ahmad Sher, A.S.-I., which leads to presumption that identification parade was held in his presence. The learned trial Court has also not relied upon the evidence of P.Ws.10 and 11 qua the acquitted accused.
14. For what has been said above, in our opinion, the evidence of P.Ws.10 and 11 does not inspire confidence and we do not feel satisfied that they were in a position to identify the assailants. The only other incriminating evidence available against Abdul Aziz appellant is recovery of 12 bore pistol P-3 at his instance and the report of Forensic Science Laboratory that empty P-4 recovered from the spot tallied with the pistol. But this evidence is also not worthy of any credence of the following reasons:--
(a) that the empty was recovered from the spot on 20-10-1998, yet it was not deposited with the Laboratory till 31-5-1999 and was kept at police station for more than seven months;
(b) that the pistol was allegedly recovered from a deserted place on 29-11-1998, after more than a month of the occurrence and was not deposited with the Laboratory till 31-5-1999 and was kept at police station for more than six months;
(c) that the parcel containing empty was not, submitted to the expert until the recovery of pistol from the possession of Abdul Aziz which is in clear contravention of instructions which enjoins that the crime empty should invariably be sent to the Expert immediately after the recovery so that the chance of concocting empty after recovery of fire-arm alleged to have been used in the commission of crime is minimized to the extreme. These safeguards have been deliberately cast to the wind by the police in the instant case. The practice of keeping the crime empty at police station and sending it after the recovery of weapon has been deprecated in a number of cases. Reference can be made to the following cases:--
(i) Shah Sawar and others v. The State (PLJ 1975 Cr.0 (DB) 333), wherein it was held that possibility of tampering with crime empty and pistol could not be ruled out when they are retained unnecessarily for long period;
(ii) Bashir Ahmad v. The State (PLD 1987 Lahore 55), in which it was held as under:-- "Crime empties recovered from the spot and sent to Malkhana on the very day of occurrence. Gun recovered at a later date and both gun and empties sent together to Forensic Expert. Held: Had empties been sent earlier, the position would have been different; but positive report of expert was of no help to the prosecution in circumstances."
(iii) Muhammad Yaqub alias Loomi v. The State (1988 PCr.LJ 1878), wherein it was held that when carbine and empty sent together to Forensic Science Laboratory, the chance of tampering with the same could not be excluded; and
(iv) Lastly, we would like to refer to the observations made by the apex Court in the case of Daniel Boyd and another v. The State (1992 SCM R 196), wherein it was observed that crime empties recovered from the spot on 20-6-1991 and crime weapon allegedly recovered on 7-7-1991 were kept in police station till 10-9-1991 for no rhyme or reason. In the circumstances the recovery of crime weapon and crime empties and the Fire-Arms Expert report shall not advance the case of the prosecution;
(d) That no independent witness was associated with recovery proceedings as required by section 103, Cr.P.C.
15. As far as the medical evidence is concerned, it supports the prosecution to the extent that the deceased lost his life due to fire-arm injury but does not lead to the assailant.
16. In the circumstances noted above, we entertain no doubt in our minds that the prosecution has failed to prove its case against the accused beyond any doubt. It is trite law that where evidence creates doubts about the truthfulness of the prosecution, its benefit has to be given to the accused without any reservation. Thus, we allow the appeal filed by Abdul Aziz and set aside the judgment dated 4-7-2000 passed by the learned trial Court qua his conviction. He is acquitted of the charge and would be released forthwith, if not required in any other case.
17. The Murder Reference is answered in the negative. Death sentence in not confirmed.
18. For the same reasons, we find no merit in the appeal tiled by Mukhtar Ahmad challenging the acquittal of Rab Nawaz and Muhammad Hashim, respondents. The same is dismissed.