MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,78/J of 2001 filed by Muhammad Dildar alias Billu, who was convicted and sentenced by the learned Sessions Judge, Narowal, in case F.I.R. No,120 registered at Police Station, Kot Nainan, on 28-11-1996, for offences under sections 302/324/392/34, P.P.C., vide his judgment dated 29-1-2001 as under:--
(a) Death with compensation of Rs,75,000 or in default two years' R.I. Under section 302(b), P.P.C. For committing Qatl-i-Amd of Muhammad Arfaq.
(b) 7 years' R.I. with compensation of Rs,25,000 or in default six months' R.I. Under section 324, P.P.C.
For causing injury to Muhammad Farooq.
(c) 7 years' R.I. with compensation of Rs,20,000 or in default six months' R.I. Under section 392, P.P.C.
For committing robbery.
Murder Reference No,105 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. It is pertinent to note here that Ijaz Ahmad alias Jajja was also tried along with the appellant in the instant case. He was convicted for offence under section 392, P.P.C. And sentenced to seven years' R.I. With compensation of Rs,20,000 or in default of payment thereof six months' R.I. By the learned trial Court but his appeal is not before us.
3. Brief facts of the case as narrated by Muhammad Rafiq P.W.1 (brother of Muhammad Arfaq- deceased) in his statement Exh.P.A. Are that he and his elder brother Muhammad Arfaq worked in a Powerloom Factory at Gujranwala. On the fateful night they proceeded for their house. They reached Bus-stand Kot Nainan and due to non-availability of any conveyance they started for their village on foot. When they reached a deserted brick kiln, at about 7-30 p.m., in the area of village Khan Mankka, two unknown persons having a long and small statures, armed with .30 bore pistol and Sota respectively, suddenly emerged in front of them and forced them to a vacant field behind the trees on pistol point and asked them to hand over which they had in their pockets. Rs,200 along with identity card from the pocket of complainant and Rs,300 along with identity card from the pocket of Muhammad Arfaq, deceased were forcibly taken away by the accused persons. The accused had already made sit Muhammad Azam P.W.4 and Tariq Mahmood (not produced during trial) in the said field after forcibly taking away the amount from them. Due to the presence of complainant and his brother, Muhammad Azam and Tariq Mehmood picked up courage and started resistance to the evil designs of the accused. In the meantime, the accused, who was armed with pistol, straightaway fired at them indiscriminately, which hit Muhammad Arfaq at his left flank and left ankle, and Muhammad Azam P.W.4 at his leg. Consequently, Muhammad Arfaq brother of the complainant succumbed to the injuries on the spot. Thereafter the accused made good their escape from the scene of occurrence.
4. After registration of formal F.I.R., the investigation of the case was taken over by Manzoor Hussain, S.-I./P.W.2. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.H. And inquest report Exh.P.F. He took into possession bloodstained earth from the spot vide memo. Exh.P.B. On 31-12-1996 Noor Muhammad Inspector, arrested Muhammad Dildar. On 17-1-1997 the appellant led to the recovery of pistol .30-bore P.5 and Identity Card P.6 of Muhammad Arfaq, deceased from his residential house, which were secured vide memo. Exh.P.D.
After completion of investigation, the accused was sent up to face trial.
5. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence report of Chemical Examiner Exh.P.W. And that of Serologist Exh.P.X.
Closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that the appellant was not previously known to the P.Ws. And his identity could not be established during trial; that judicial confession was not recorded properly by the Magistrate and was neither voluntary nor proved; that Muhammad Azam P.W., who had received injury during occurrence, did not participate in the identification test while it is established from the record that the appellant was shown to P.W.1, Muhammad Rafiq prior to identification parade; that most significantly Muhammad Azam, injured witness, did not assign any role to the appellant in his statement recorded by the learned trial Court; and that the prosecution has failed to prove its case against the appellant.
7. The learned counsel appearing on behalf of the State submits that Muhammad Rafiq duly identified the appellant in the identification parade; that there is no motive to falsely implicate the appellant; that the conviction can be recorded on the sole testimony of Muhammad Rafiq, which was trustworthy; that the proceedings of identification test did not suffer from any lacuna; that the matter was reported to the police without any loss of time; and that it was a case of dacoity-cum- murder, hence the appellant deserves no leniency.
8. We have heard the learned counsel for the parties at length and perused the record minutely.
The occurrence took place at 7-30 p.m. On 28-11-1996 when it was almost dark. Both accused were not known either to Muhammad Rafiq, complainant or to the injured witness Muhammad Azam/P.W.4. The only description given in the F.I.R. Was that one of the accused, who was taller than other was holding .30-bore pistol, while the other who was smaller in height was armed with Sota. On resistance during robbery the accused who was armed with pistol started firing, which caused injuries to Muhammad Arfaq, deceased and also caused injury on the leg of Muhammad Azam, P.W.4. The vital point is whether the P.Ws. Could identify the accused. To establish identity of the accused identification test was held under the supervision of Rao Muhammad Iqbal, Magistrate/P.W.11 in the judicial lock-up on 14-1-1997. During proceedings, according to prosecution case, Muhammad Rafiq P.W.1 correctly identified Muhammad Dildar alias Billu, appellant as well as his co-accused Ijaz Ahmad. It is pertinent to note that Muhammad Azam/P.W.4, who was injured during occurrence, never joined the identification test. We have to examine whether any reliance can be placed on the proceedings of identification parade or not.
9. We have found very serious flaws in the proceedings. Firstly, both the accused were not got identified separately. Secondly, they were mixed with only five other dummies against the rule laid down by the High Court that one accused should be mixed with nine or ten strangers. Reliance is placed on the cases of Lal Pasand v. The State PLD 1981 SC 142 and Shabir Ahmad and 4 others v.
The State 1972 PCr.LJ 310. Thirdly, the appellant was a complete stranger to the prosecution witnesses and no description of his features was given in the F.I.R. It has only been vaguely mentioned that one of the assailants was taller than other. This per se would hardly be good enough to establish the identity of the appellant as assailant. It is not a case of the prosecution that height of the appellant was exceptional so as to distinguish him from the crowd. Reliance is placed on the case of State/Government of Sindh through Advocate-General Sindh, Karachi v.
Sobharo 1993 SCM R 585. Fourthly, it is in evidence that the appellant was in police custody on 31- 12-1996 when his confessional statement was recorded by P.W.11 yet the identification test was held after 14 days. There is no explanation why the identification test was held after such a long delay.
This delay would adversely affect the prosecution case. Reliance is placed on the case of State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1, (in this case identification test was held after ten days). Fifthly, the learned Magistrate at the time of recording of confession of the appellant did not inquire from the police as to when Muhammad Dildar was arrested. The learned Magistrate also did not inquire from the accused as to when he was arrested and for how many days he was in police custody. In these circumstances, the possibility that P. W.1 had seen the appellant earlier while he was in police custody cannot be ruled out. On this regard the most important piece of evidence is in the shape of statement of Muhammad Azam/P.W.4, who was army personnel and received injury during occurrence. In his statement recorded by the learned trial Court he did not point out the accused who had fired upon him and the deceased. He simply stated in the last of his examination-in-chief that the accused present in the Court fled away while resorting to firing. In fact, according to prosecution case, it was only one accused who was armed with fire-arm and the other had Danda. It is obvious that Muhammad Azam, who was under oath, could not be persuaded to enhance the prosecution case by describing the role of the assailants. If this witness could identify the assailant he would have stated without any hesitation before the learned trial Court that such and such accused of the two was armed with fire-arm and fired at the deceased and at him. The upshot of the whole discussion is that the identity of the assailants remained in doubt.
10. According to prosecution case, the appellant made confession before P.W.11 on 31-12-1996 while his co-accused Ijaz Ahmad confessed before the same Magistrate on 9-1-1997. Both the accused retracted from their confession during trial. Conviction can be recorded on the basis of confession only when it is proved that the confession was made voluntarily and truthfully. To evaluate the above noted consideration it is necessary to examine certain circumstances like the character and duration of custody; whether confessor was placed in a position to seek advice of his relatives or his lawyers; nature and quantum of proof which was available against confessor before he confessed. In the instant case the learned Magistrate did not bother to record as to when the appellant was arrested. He admitted that he did not inquire from the accused about the date of his arrest. The report of the proceedings Exh.P.U. Does not reveal that the accused was assured that he would not be handed over to the police after recording of confession, which was most essential.
Furthermore, the confession of Muhammad Dildar is not in accordance with prosecution case at all, as in his confessional statement he stated that it was his co-accused Jajja who was armed with pistol and it was Jajja who on asking of Abdul Sattar fired two fires one on the deceased and the other on Muhammad Azam P.W. This confession can hardly be termed as voluntary and true. Thus, no reliance can be placed on it. The confession of Ijaz Ahmad co-accused recorded on 9-1-1997 can also be not used against the appellant as it suffers from the same defects.
11. The alleged recovery of pistol at the instance of appellant does not advance the prosecution case as pistol was never sent to Forensic Science Laboratory and no empty was recovered from the scene of occurrence.
12. The crux of the above discussion is that the prosecution has failed to prove its case beyond doubt against the appellant. Hence this appeal is allowed and the judgment passed by the learned trial Court qua the appellant is set aside. The appellant is acquitted of the charge and would be released from jail forthwith if not required in any other case.
13. Consequently, Murder Reference is answered in the negative. Death sentence is not confirmed.