1. ' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Appeals Nos.29, 30, 32 to 34 of 2002 as they arise out a common judgment.
2. ' Brief facts giving rise to the present appeals are that on 21-3-1999, P.W.7, Muhammad Soomar, driver of Mazda Van brought his Van near Muhammad Pur Stop on National Highway. P.W.6, Ali Muhammad and deceased Manzoor Ahmed labour were in Van and they proceeded towards Sukkur. At about 1-20 a.m. In the night they reached near Muhammad Pur on National Highway where 2 or 3 persons came on the road, signalled P.W.7 to stop the vehicle and thereafter the said persons who were armed with fire-arm weapons started firing at the vehicle with the result that wind screen of the Van was broken. P.W.7 and deceased Manzoor Ahmed received fire-arm shots and became seriously injured. After firing the culprits ran away. In the meanwhile a police Van came there, saw the injuries on the person of P.W.7 and deceased. They sent the injured persons to'
3. PP Mahesro from where they were shifted to Civil Hospital Sukkur.
4. ' HC, Muhammad Hashim headed the police party, which reached at the place of incident. He conducted the formalities of law at the place of incident. He also informed the said incident to his higher officers with the result that P.W.1 complainant S.H.O. Anwar Ali, along with other staff reached there. Subsequently the D.S.P., Ghotki and other police officials also reached there. P.W.1 saw the place of incident and secured 30 empty bullets of Klashnikov and 11 cartridges of .12 bore gun. He prepared such Mashirnama. He also found foot-prints of three persons therefore, with the help of P.W.4 foot tracker Illahi Bux tracked the foot-prints of the culprits. On the next day the foot-prints led them to the Jungle. At about 12 noon they saw two persons sleeping in the Jungle having black dress. Police party encircled the said persons and both the persons were apprehended. They disclosed their names as appellants Amir Bux Gadani and Hakim Mirbahar.
5. ' From the possession of appellant Amir Bux Gadani one Klashnikov with Magazine containing 20 live bullets were secured and from the possession of the appellant Hakim Mirbahar one double barrel gun and 15 live cartridges were secured. On inquiries they failed to produce the licences. On interrogation both the said persons produced two watches from the bushes near the place where they were arrested. The same were secured and such Mashirnama was prepared. Thereafter the accused and the property were brought to the police station, where P.W.1 lodged the F.I.R. About the main incident and for the offence punishable under section 13(d) of Pakistan Arms Ordinance, 1965 against the appellants separately. On 16-4-1999 appellant Mehrab was also arrested. He produced a double barrel gun and currency of various denominations of Rs,1,250. The empties secured from the place of incident and weapons were sent to the Ballistic Expert who reported that the same empties were fired from the weapons secured from the possession of appellants.
6. ' The police after usual investigation challaned the appellants in the Court of law, learned Anti- Terrorism Court, Sukkur and Larkana Divisions at Sukkur tried the appellants convicted and sentenced them for the offences punishable under sections, 302, 392, 324 and 427, P.P.C. And for the offence punishable under section 13(d) of Pakistan Arms Ordinance, 1965 for various terms maximum punishment was imprisonment for life and fine with benefit of section 382-B, Cr.P.C.
7. Under the impugned judgment dated 29-4-2002.
8. ' We have heard Advocates for the appellants, A.A.-G. For the State and perused the record of these appeals very carefully. The latter has supported the judgment only for the offence punishable under section 13(d) of Pakistan Arms Ordinance, 1965.
9. ' After going through the evidence with the assistance of Advocates for the appellants we found that the case of prosecution rests upon four pieces of evidence; No,(1) ocular testimony, (2) tracking of foot-prints from the place of incident, (3) Identification test of appellant Mehrab and (4) recoveries.
10. ' First of all we will take up the ocular testimony and identification test of appellant Mehrab, ocular testimony consists of two witnesses viz. P.W.7, driver injured Muhammad Soomar and P.W.6 Ali Muhammad. Their evidence reveals that on the day and time of incident when they along with deceased Manzoor Ahmed reached at the place of incident in Mazda Van two or three persons came on the road who tried to stop the vehicle and thereafter they fired from their respective weapons at them with the result that the complainant and deceased received injuries, whereas the windscreen of the Van was broken. Their evidence further shows that they supported the incident but did not implicate any of the appellants as they categorically stated that they had not identified the accused at the time of incident. After seeing them in the trial Court they further added that they could not say whether they were the real culprits of the crime. No identification test for identifying the appellants Amir Bux and Hakim was held before any Magistrate. However, the prosecution examined P.W.8, Roshan Ali, Mashir of the identification parade of appellant Mehrab. His evidence reveals that he acted as a Mashir of the identification parade held before First Judicial Magistrate Ghotki where Ali Muhammad and Muhammad Soomar had identified the appellant Mehrab. The prosecution did not examine the said Magistrate. However, both the witnesses Ali Muhammad and Muhammad Soomar did not state that identification test was held before any Magistrate or they identified the appellant Mehrab to be one of the culprits of the crime. Thus, the substantive piece of evidence in the shape of P.Ws.6 and 7 is lacking in the present case. It is well-settled principle of law that identification test is a corroborative piece of evidence. When there is no substantive piece of evidence then there is nothing left with the prosecution to be corroborated through the corroborative piece of evidence in the shape of identification test as such the evidence of P.W.8 is of no help to the prosecution in any manner. Finding these defects in the prosecution evidence the learned A.A.-G. Has not supported the same to the extent of appellant's involvement with the commission of the alleged crime. Hence the prosecution has failed to prove the ocular testimony to connect the appellants.
11. ' Now we will take up the evidence of tracking of foot-prints from the place of incident. In order to prove the said fact, the prosecution examined P.W.1, S.1-1. 0 . Anwar Ali, P.W.2, H.C. Muhammad Hashim. P.W.3, A.S.-I. Muhammad Nawaz, P.W.4, Illahi Bux. Their evidence reveals that they saw foot- prints of three persons at the place of incident which led to the place where the appellants Amir Ali and Hakim were arrested. Their evidence further reveals that the foot-prints were of Chappal and shoes. In the evidence it has also come on the record that the foot-prints were lost in between the place of incident and place of arrest of appellants. The prosecution in order to connect the appellants with the foot-prints found at the place of incident, the Chappal and shoes that were worn by the appellants should have been got identified through the footprint tracker at the place of incident by comparing the said Chappal and shoes with the foot-prints found at the place of incident or arrest or through identification test held before the Magistrate. But it is surprising to note that the prosecution did not collect such evidence so as to prove that the footprints found at the place of incident were that of appellants. When it was alleged that appellants Amir Bux and Hakim were wearing Chapal and shoes. It is alleged that the foot-prints of three persons in the shape of Chappal and shoes from the place of incident led to the place from where two appellants were apprehended then three culprits should have been present there but instead thereof only two appellants were found present there. If the third culprit had left the said place then there should have been foot-prints of the said culprit leaving the said place but nothing has come on record to show that the prosecution witnesses found foot-prints of one person leaving the said place. It is also not clear from their evidence that the foot-prints of three persons found at the place of incident were to be the foot-prints of three persons or any one of them was missing in between the two places because the witnesses did not state that at the place of arrest of the appellants they found foot-prints of three persons. This fact becomes more important due to the fact that two appellants were present at the place of their arrest and there were no foot-prints of third person leaving the said place. If the prosecution insists that foot-prints of three persons reached the place of arrest then the prosecution is required to show that third person had left the said place by leading the evidence that they saw foot-prints of one person leaving the said place or in between the two places. Non-presence of such evidence adversely reflects upon the evidence of witnesses.
12. As the P.W.4 foot tracker did not compare the Chappal and shoes of the appellants with the foot- prints available at the place of incident and non-holding of identification test of foot-prints before the Magistrate, the evidence of foot-prints loses its importance and value. The learned A.A.-G. Has also not supported this piece of evidence.
13. ' Furthermore the evidence of footprints is a very weak type of evidence. The Honourable Supreme Court in the case of Ghulam Nabi Shah v. The State 1969 SCM R 629 has observed that the evidence of foot-prints having been traced and identified by itself is not sufficient to prove the case against the appellant, therefore, the foot-prints identification was not found enough. It has further been observed by the Honourable Supreme Court in the case of Mehar Ali and others v. The State 1968 SCM R 161 that the evidence of foot-prints expert of all evidence admitted by Courts may be regarded as evidence of less satisfactory character, therefore, it was found to be unsafe to be relied upon on the sole evidence of tracker.
14. ' As regards the recoveries, the prosecution relied upon the evidence of P.W.1 S.H.O. Anwar Ali, P.W.2, HC, Muhammad Hashim and P.W.3, A.S.-I. Muhammad Nawaz. Their evidence reveals that 30 empties shots of Klashnikov and 11 empties of cartridges were secured from the place of incident.
15. Nevertheless none of these witnesses deposed that the said articles were sealed at the place of incident. Therefore, non-sealing of the articles at the place of incident reflects adversely upon the Ballistic Expert report hence it is unsafe to rely upon such piece of evidence. A reliance is placed on a decision of a Division Bench given by this Court in Criminal Appeal No,392 of 2004, decided on 13- 7-2006, where the above question was examined thoroughly and it was found that when the witnesses did not state before the Court that the property was sealed at the place of its recovery though such fact was mentioned in the Mashirnama, then the expert report lost its importance and the report was not relied upon on the ground that such fact in the Mashirnasma was out of the scope of section 103, Cr.P.C. And was not protected under Article 49 of Qanun-e-Shahadat Order, 1984, therefore, found to be inadmissible in evidence. As such the crime empties secured from the place of incident have not been adequately and legally connected with the weapons allegedly secured from the possession of the appellants.
16. ' P.Ws. Had further stated that the appellants Amir Bux and Hakim had produced two watches before them. The prosecution did not lead any evidence to show that these watches were robbed from the possession of P.Ws.6 and 7. The said watches were also not shown to the P.Ws. 6 and 7 to identify the same to be their watches, which were robbed from them. Thus when the evidence of robbery of such watches is missing then the same cannot be connected with the crime hence it has no value at all.
17. ' As regards the recovery of cash from the appellant Mehrab as stated by P.W.10 Muhammad Murad which was secured at the time of arrest. The said cash has also not been connected with the crime, therefore, it has no value at all.
18. ' The evidence of above-named witnesses further shows that when they apprehended appellants Arnir Bux and Hakim they secured one Klashnikov along with one magazine containing the live bullets from the possession of the appellant Amir Bux and a double barrel gun with 15 live bullets from the possession of the appellant Hakim and the appellants failed to produce the licences.
19. ' On 16-4-2006 appellant Mehrab was arrested. From his possession double barrel gun was secured he also could not produce licence. The evidence of witnesses went unchallenged as no serious cross-examination was conducted to deny the facts of recoveries of weapons from the possession of appellants.
20. ' There are no material contradictions in evidence of witnesses nor any such contradictions have been pointed out by the learned Advocates for the appellants, therefore, we do not find any reason to disbelieve the evidence of the witnesses on the above point. Hence the prosecution has proved that the appellants were in possession of unlicensed arms and ammunitions therefore, they have been rightly convicted and sentenced by the trial Court.
21. ' After considering the material available on the record we are of the considered view that the prosecution has failed to prove the charge against the appellants for the offences punishable under sections 302, 392, 324 and 327 read with section 34, P.P.C., therefore, the trial Court was not right in convicting the appellants for the said offences. The convictions and sentences concerning the said offences are set aside. However, the prosecution has proved the case of recovery of unlicensed weapons from the possession of the appellants, therefore, the conviction and sentence awarded to the appellants for the said offence under the impugned judgment are maintained.
22. ' Above are the reasons of our short order dated 17-8-2006 by which we had allowed the Appeals Nos.29 and 32 of 2002 and dismissed the Appeals Nos.30, 33 and 34 of 2002. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.