' IJAZ AHMAD CHAUDHRY, J.- This judgment will dispose of Criminal Appeal No.689 of 2002 filed by Sher Zaman appellant against his conviction and sentence along with Murder Reference No.325 of 2002 sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentence as both these matters have arisen from the same judgment dated 29-4-2002 passed by the learned Additional Sessions Judge-Ill, Mianwali through which he had convicted the said appellant under section 302(b), P.P.C. And sentenced to death.
2. The occurrence in the present case had taken place on 25-7-2001 at 4-40 a.m. In Mohallah Parachgan Kalabagh near Kalabagh Canal, within the area .Of Kalabagh, 1/2 Kilometer away from Police Station Kalabagh District Minwali and on the statement of Hafeez Ullah (deceased) and Rapt No. 11 dated 25-7-2001 recorded by Sher Khan S.-I. (P.W.17) F.I.R. (Exh.PB) was drafted by Ijaz Ahmad Moharrar Head Constable (P.W.2) on the same day at 8-10 a.m.
3. The brief facts as narrated in the F.I.R. (Exh. PB) by Hafeez Ullah complainant/deceased are that he was injured on 25-7-2001 at 4-40 a.m. By an unknown young man wearing Khaki Coloured clothes with Knife when he arrived near main gate of his house after offering the 'Fajar Prayer' in the Mosque, The assailant inflicted two injuries with knife, one on the left side of abdomen and the second of the left side of his neck. He raised hue and cry whereupon Muhammad Amir his son and Asad Amir his grandson came to the place of occurrence hurriedly and saw the occurrence. The accused ran away towards city. On seeing the said witnesses, who could be identified on having been confronted with the P.Ws. It was further alleged by the deceased/ complainant that he had no enmity with anybody. Resultantly the case was registered against unknown culprits.
4. After the registration of the case Sher Khan S.-I. (P.W.17) visited the place of occurrence, recorded the statements of the P.Ws., prepared site-plan (Exh.PV) of the place of occurrence, took into possession Qameez P.2 through recovery memo. Exh.PR attested by Saad Ullah Constable. After that he searched for the unknown accused. On 7-8-2001 he was present in connection with investigation of case F.I.R. No.72 of 2001 at Utla Pattan Kalabagh where Muhammad Ashraf P.W.
Came and made a statement before him disclosing that Sher Zaman appellant had injured Hafiz Ullah. He recorded the statement of Muhammad Ashraf under section 161, Cr.P.C. This injured was sent to Civil-Hospital, Kalabagh by him on 25-7-2001. He searched for the appellant. When he sent the injured to Civil Hospital, Kalabagh for medical examination, he at that time prepared his injuries statement Exh.PD. Which was sent to the Hospital along with the injured. On 9-8-2001 he was present at Railway Bridge, Kalabagh where Muhammad Amir P.W. Son of the deceased came and reported that his father had expired in a Hospital at Rawalpindi. He further stated that he had brought the dead body of his father which was lying in Civil Hospital, Kalabagh. On that information he prepared a writing Exh.P.S. And sent the same to Police Station for amendment in the charge.
After that he went to Civil Hospital, Kalabagh, prepared relevant papers for post-mortem examination, prepared injured statement Exh.PG and inquest report. He handed over the dead body to Muhammad Hasnain Constable for post-mortem examination under writing Exh.PG. After post-mortem examination, Muhammad Hasnain Cosntable produced before him copy . Of post- mortem examination Exh.PJ along with sketch of injuries Exh.PJ/1. He also brought the witnesses who identified the dead body before post-mortem examination and one witness to receive the dead body with him at that time. He recorded the statements of those witnesses. On 13-8-2001 . He summoned the draftsman and the P.Ws. And visited the spot where the draftsman took rough notes. On 15-8-2001, the draftsman handed over to him site-plan with scale Exh.PA and Exh.PA/1. He recorded the statement of draftsman. On 16-8-2001 he arrested Sher Zaman appellant from Vegetable Market, Kalabagh on a spy information. On 17-8-2001, he produced the appellant before the Area Magistrate and sent him to Judicial lock-up for the purpose of identification parade. On 17-8-2001 he applied vide Exh.PN to the District and Sessions Judge for appointing any Magistrate for holding identification parade. Exh.PN/1 is the other passed by the learned Duty District and Sessions Judge. On 18-9-2001, identification parade of the appellant was held in Central Jail, Mianwali. On 19-9-2001 he applied for summoning of the appellant from the Jail for investigation to the Court of Area Magistrate. The application for providing copy is Exh.PK. The appellant was summoned from jail on 20-9-2001 and he interrogated him and on the same date he produced him before the Court of Area Magistrate and obtained remand for investigation and recovery. On 23-9-2001, he interrogated the appellant in the Police Station Kalabagh. He disclosed that the weapon had been concealed by him in his house and could be recovered. In pursuance of that disclosure and on the pointation of the appellant, he recovered knife P.l which was kept in an iron box and the same was taken into possession by him through memo. Exh.PC, attested by Shafa Ullah and Rehmat Ullah Constables. He after preparing recovery memo, also prepared site-plan of place of recovery Exh.PY. Knife P.l was sealed into parcel. The knife was not sent to Laboratory because according to the appellant he had cleaned the knife after the occurrence. He recorded the statements of the P.Ws., investigated the case and on 24-9-2001, he sent the appellant to Judicial lock-up. On the recovery of knife P. 1 from the appellant, a separate case under section 7-C SIAA of 1991 was also registered against the appellant.
4. After the completion of the investigation report under section 173,. Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellant, the charge was framed which was denied by him and he claimed to be tried. The prosecution in order to prove its case produced as many as 17 witnesses. The ocular account had been provided by Muhammad Amir (P.W.15) and Asad Amir (P.W.16). The medical evidence had been furnished by Dr. Muhammad Masud Ahmad (P.W.4), Dr. Muhammad Farooq (P.W. 7) and Dr. Hafiz Ullah Khan Surgeon DHQ Hospital, Mianwali while Dr. Nusrat Ullah Khan (P.W.5) had conducted the post-mortem examination of Hafiz Ullah deceased. Zahid Hussain Jaffari, Special Judicial Magistrate (P.W.9) had supervised the proceedings of identification parade. Muhammad Ashraf (P.W. 14) was the alleged witness of extra-judicial confession, but at thp trial he was declared hostile. The investigation had been conducted by Sher Khan S.-I. (P.W. 17). The remaining witnesses are of formal nature and need not to discuss here.
5. After the close of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. In which he denied the . Allegation and professed his innocence. The appellant did not opt to make statement under section 340(2), Cr.P.C. And also denied to produce any defence evidence.
6. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant which, is being assailed through the instant appeal..
7. Learned counsel for the appellant contends that the appellant was not named in the F.I.R. Or in the statements of the witnesses recorded under section 161, Cr.P.C.; that the only evidence against the appellant is that he was identified by the witnesses during the identification parade held on 18- 9-2001 with the delay of more than two months after the occurrence while the appellant was arrested on 16-8-2001 and he was produced before the Magistrate on 17-8-2001 and he also appeared in the Court subsequently whereby the witnesses were afforded sufficient opportunity to identify the appellant, who even otherwise was residing at a distance of 1/2 furlong from the house of the witnesses in the same locality and was known to the witnesses previously; that the appellant participated in the incident he would have been named by the deceased and the witnesses in their statements before the police on the first day of the occurrence; that the recovery evidence is useless as the Churri allegedly recovered was not stained with blood; that there was no motive to commit the murder of the deceased and the prosecution had not been able to prove the case against the appellant beyond any shadow of doubt, who is entitled to acquittal.
8. Learned Additional Prosecutor General on the other hand opposes this appeal on the ground that both the eyewitnesses had no enmity or grudge to falsely implicate the appellant in the present case, if he had not committed the offence; that both the eye-witnesses had given the description of the accused in their statements recorded under section 161, Cr.P.C. And subsequently they had identified the appellant in the identification parade before the Magistrate and sufficient evidence is on the file to connect him with the commission of the crime, hence the appeal may be dismissed.
9. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution.
10. The incident in the present case according to the prosecution had taken place at 4-40 a.m. On 25-7-2001 while the F.I.R. Was recorded on the same day at 8-10 a.m. On the statement of Hafiz Ullah deceased. Hafiz Ullah deceased had implicated a single young boy, who was wearing Khaki Shalwar Qameez and had caused injuries to him with knife. According to him, he had also stated that he had no enmity with anybody and unknown accused had committed the offence. The deceased was medically examined on the same day at 6-30 a.m. By Dr. Masood Ahmad (P.W.4) and he was brought through the police. In such circumstances although it is established that the F.I.R. In the present case had been got lodged with promptitude but it does not provide any corroboration to the ocular account regarding involvement of the appellant as he was not named therein, but he was introduced as an accused in the present case afterwards during the investigation.
12. To prove the ocular account the prosecution produced Muhammad Amir (P.W.15) and Asad Amir (P.W.16). Muhammad Amir (P.W.15) was son of the deceased while Asad Amir (P.W.16) was grand-son of the deceased and son of Muhammad Amir P.W.15. So both the witnesses were related inter se and with the deceased closely. However-, they had no previous enmity with the appellant and could not be termed as interested witnesses, but this alone is not sufficient to believe that they had spoken the whole truth. The P.Ws. Have to first prove that they had witnessed the occurrence and had spoken the whole truth. The third piece of evidence was the statement of the deceased in the F.I.R. Which could be treated as a dying declaration as the deceased was seriously' injured when he made the statement and died due to the said injuries though with a delay of fortnight on 15-8-2000 but the statements of both the eye-witnesses and dying declaration does not disclose the name of the appellant as the real culprit who had committed the offence. The case was registered against unknown person and D in their statements before the police under section 161, Cr.P.C. The witnesses also claimed that an unknown person had committed the offence. The description given by the witnesses in their statements under section 161, Cr.P.C. Was not conspicuous to identify the accused. The occurrence was alleged to have taken place in the very early hours of the day, #when there could not be sufficient light to identify the culprit with minute details. Even there was difference in the features of the culprit given in the F.I.R. And the statements of these witnesses recorded under section 161, Cr.P.C. Both the witnesses and the deceased were residents of 1/2 furlong away from the house of the appellant as it is admitted by Asad Amir (P.W.16). It is also admitted by both the witnesses that Muhammad Amir (P.W.15) was running a shop in the Bazar and the shortest way from east to west was the said Bazar where the shop was situated for reaching the Wagon Stand and the other important places. P.W.15 during the cross- examination explained that he knew the father of the appellant as well as their house. Although both the witnesses stated that they did not know the appellant before the incident, but this cannot be accepted as a true version because both the witnesses are residents of the same locality and it is claimed by P.W. Muhammad Amir during the cross-examination that it was talk of the town that the appellant had caused injuries to his father.
As such the possibility cannot be ruled out that the appellant had been involved in the present case due to the suspicion. Both the witnesses in their statements before the police and in their examination-in-chief also attributed the first injury to the appellant on the left abdomen and second injury on the left side of the neck but during the cross-examination both admitted that when they came out after hearing hue and cry of the deceased, the deceased had already received first injury and they had seen the accused causing injury to the deceased on the neck. As such they are found to be untruthful witnesses. During the cross-examination both had failed to disclose whether the appellant had caught hold of the deceased, but in the same breath they stated that the accused had caught hold of the deceased and inflicted the second injury.
Moreover, Muhammad Amir P.W. Stated that the deceased had tried to apprehend the appellant but Asad Amir P.W. Stated that the appellant had caught hold of the deceased from left arm with his left hand. Both the eye-witnesses stated that they did not know that when the appellant was arrested by the police and how the police traced the appellant as the accused who had participated in the incident. It is not believable that Muhammad Amir P.W. 15 whose father had received serious injuries would not have pursued the matter by approaching the police to inquire about the progress in the said case. He also explained during the cross-examination that Muhammad Ashraf, his Khalazad had informed him and his father who was in injured condition at Rawalpindi hospital that it was the appellant who had committed the offence and he made such statement before them on 7-8-2001. However, he claimed that he did not disclose the name of the appellant to the police on his return on 10-8-2001. All these facts show that the witnesses made tutored statement, who had even tried to conceal the factum of arrest of the appellant by the police in order to show that they had seen the appellant only at the time of the identification parade and not before that. Admittedly the appellant had been brought up in the same vicinity and in the same locality where Muhammad Amir and Asad Amir P.Ws. Were running a shop and it is not possible that they were not aware about the appellant earlier to the occurrence. Had the appellant participated in the occurrence in the manner narrated by the P.Ws., they would have named him in their statements before the police.
13. There is another aspect that the appellant had been arrested according to the police record on 16-8-2001 after recording the statement of Muhammad Ashraf (P.W. 14) under section 161, Cr.P.C.
Then he was kept at the police station and produced on 17-8-2001 before the Ilaqa Magistrate. On 18-8-2001 an application was moved by the 1.0. For conducting of the identification parade but the same had been conducted on 18-9-2001 after one month of sending of the appellant to the jail. We have also perused the order-sheet produced on the record as Exh.PN/1 and it discloses that the Special Magistrate had adjourned the proceedings on 5-9-2001 and then the case was adjourned for 18-9-2001 and it is mentioned in the order dated 9-9-2001 that both the parties were present and case was adjourned for 18-9-2000. So of the accused and the complainant party were present on 5-9-2001 in the Court of Special Judicial Magistrate and the appellant was produced there then the identification parade had lost its veracity.
14. The most important piece in the present case was the identification parade which had been conducted by Mr. Zahid Hussain Jaffri, learned Judicial Magistrate (P.W.8) but the said identification parade cannot be relied upon due to the above reason that the accused was brought from jail on 5-9-2001 and was produced before the Court when both the parties appeared before the Court. The case was adjourned for 18-9-2001 and on the said date the identification parade was conducted. There is nothing on the record disclosing that the appellant had been asked to muffle his face and take necessary measures to hide his face while producing him before the Court and the Ilaqa Magistrate acted in the careless manner. The Investigating Officer also kept him at the police station after his arrest on 16-8-2001 and 17-8-2001 and then produced him before the Magistrate subsequently which fact is proved from the order-sheet of the Ilaqa Magistrate Exh.PN/1. Both the witnesses also suppressed certain facts in order to support the identification parade but we find that their statement are not worthy of reliance and the same cannot be given any importance. Even otherwise it is mentioned in the identification slip of the appellant that he had a mole on his left cheek, but the learned Magistrate had not asked him to conceal the said* mole, which -could have provided convenience to the witnesses to identity him.
The other dummies were not of the same descriptions and they did not have moles on their left cheek. All these facts show that the ocular account and the identification parade are not worthy of reliance.
15. Apart from the above, the presence of both the eye-witnesses at the place of occurrence seems to be doubtful. According to P.W.15 the occurrence lasted in 3/4 minutes while P.W.16 stated that it took about 10 minutes to complete. It is strange that the appellant was' only armed with Chhuri but both the P.Ws. Did not step forward to rescue their old father and grandfather respectively from the clutches of the assailant and provided him opportunity to inflict the injuries and then runaway from the spot. Even otherwise, the occurrence had taken place at 4-45 a.m. But the victim had been medically examined at 5.30 a.m. With the delay of about one hour and 45 minutes. Had the witnesses been present at the spot, they would have immediately taken their father to the hospital to save his life instead of first taking him to the police post for reporting the matter, when the assailants was not known to them and they had no enmity with anybody. The possibility cannot be ruled out that the occurrence had not taken place in the manner narrated by the P.Ws., but the deceased -was alone at the time of having been assaulted by some unknown I culprits at the place not situated near the house of P.Ws, otherwise he must have been first taken to the hospital by his close relatives like son and grandson to save his life. The examination of the deceased in injured condition by the doctor through police also shows that these witnesses were not accompanying him at such a time, otherwise their names might have been noted by the doctor.
16. There is another aspect of the case that the identity of the appellant had come on the record that as per prosecution version he had made extra-judicial confession before Muhammad Ashraf (P.W.14) while approaching him in his house, who got recorded his statement (Exh.DC) before the police under section 161, Cr.P.C. However, while appearing at the trial he made a contradictory statement that he had only heard the appellant saying to his brother while sitting in the hotel that he had caused injuries to the deceased who kept him mum. P.W.14 was got declared hostile by the prosecution side. As such due to the contradictory statement made by P.W.14, his evidence is liable to be out j rightly rejected and by excluding the same . The prosecution had no source to know the culprit involved in this case. P.W.14 was also close relative of the deceased and the other witnesses.
There was every possibility of creating such evidence to falsely implicate the appellant in an untraceable case merely on suspicion as it was claimed by P.W.15 during the cross- examination, as noted down above that it was talk of the town that the appellant had committed this occurrence.
17. As far as recovery of weapon is concerned, it is useless as the said knife was not stained with blood. Moreover, there are contradictions in the statements of the recovery witnesses namely Shafa Ullah P.W.3 and Sher Khan P.W.17 regarding the minute details of the proceedings of recovery as according to Shafa Ullah P.W.3 only a boy was present in the house while P.\$.17 I.O. Stated that there was no male member in the house at the time of effecting of recovery, but only the females were present. It is also admitted fact that the house was not exclusively in possession and ownership of the appellant and other family members were residing. Moreover, in the recovery proceedings not a single person from the locality had been joined by Investigating Officer though the place of recovery was surrounded by the houses and thus the recovery having been effected in violation of section 103, Cr.P.C. Cannot be relied upon.
18. There was no motive ascribed by the prosecution to commit the murder of the deceased by the appellant.
19. In the above facts and circumstances we find that the prosecution had not been able to prove the case against the appellant beyond and shadow of doubt. Resultantly, Criminal Appeal No.689 of 2002 is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt who shall be set at liberty from the jail forthwith if not required in any other criminal case.
20. Murder Reference No.325 of 2002 is replied in the negative and the death sentence awarded to the appellant by the learned trial Court is NOT confirmed.