' MUHAMMAD FARRUKH MAHMUD, J.--- Ghulam Akbar,Qasim and Luqman alias Ghazi were tried by the Judge, Special Court, Anti-Terrorism, Hyderabad and Mirpurkhas in case F.I.R. No,3 of 1999, dated 9-1-1999 registered at Police Station Sanghar. Vide judgment, dated 6-5-1999, the learned trial Court convicted the accused for offence under section 302/34, P.P.C. And for offence under section 392, P.P.C. The convicts filed an appeal which was accepted on 6-4-2000 by the learned Division Bench of the Sindh High Court and the case was remanded to the trial Court from the stage of the charge, as the charge for offence punishable under Anti-Terrorism Act was. Not framed. In the second round, the learned trial Court vide judgment, dated 6-7-2000 convicted and sentenced the petitioners as follows:-- " Sr.
No.Under section Sentence
(1) 302 read with section 34, P.P.C.All the accused were Sentenced to death.
(2) 392, P.P.C. All the accused were sentenced to suffer R.I. For 10 years each and fine of Rs,50,000 each in default thereof to suffer R.I. For two years each.
(3) Section 7 of Anti- Terrorism Act,All of them were sentenced To death.
1997.
' Benefit of section 382-B, Cr.P.C. Was given to the convicts."
2. The convicts went up in appeal which was decided vide judgment, dated 17-3-2006 handed down by the learned Division Bench of the High Court of Sindh, Karachi, whereby Luqman co- accused was acquitted while the convictions and sentences of Ghulam Akbar and Qasim were maintained for offence under section 302(b) read with section 34, P.P.C. And for offence under section 7(ii) of the Act, 1997. Both the convicts were directed to pay Rs,1,00,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. The learned Appellate Court while maintaining the sentence of Ghulam Akbar and Qasim for offence under section 392, P.P.C. Altered the' conviction to offence under section 394, P.P.C. Benefit of section 382- B, Cr.P.C. Was given to both the appellants.
3. Through Jail Petition No,150 of 2006, Ghulam Akbar and Qasim challenged their conviction and sentences. The petition came up for hearing on 26-11-2007 and leave was granted to reappraise the evidence. Hence the above captioned appeal.
4. The F.I.R. Was recorded in Sindhi language and is not legible, hence the relevant facts as given in para.2 of the impugned judgment are being reproduced:-- "Brief facts giving rise to the present appeal and confirmation case are that the deceased Safdar Ali was Manager in United Bank Limited, Workshop Branch, Sanghar. He was residing in Ward No,8, Sanghar along with his family members. On 9-1-1999 at about 7-30 a.m. The deceased on his new motorcycle which he had purchased few days back with his daughter P.W.6 Manza and niece P.W.7 Quratulain both aged about 11 years left the house for leaving the girls in the school. Within one or two minutes the motorcycle reached near the house of Jaipuri on Mithi Khuai Road where a white jeep was parked in which a person was sitting on driver's seat, two persons were standing near the said jeep. The said two persons were armed with pistols and on the pistols points the motorcycle of the deceased was got stopped. Both the persons had muffled their faces. They asked the deceased to leave the motorcycle, therefore, scuffle took place between one of the culprits and the deceased with the result that muffle on his face was removed and the deceased told him that he was identified. Suddenly that person fired from his pistol at the deceased who received the injury on his left eye. The other culprit pushed the deceased. During that period, the muffle of the second culprit was also removed. The deceased fell down on the ground and then the culprits took away the motorcycle. The white jeep parked there followed the culprits. The P.W.6 immediately rushed to her house to inform the incident to his uncle Azhar Abbas, the complainant who after hearing the incident rushed to the place of incident where he found the deceased lying in injured condition. A police mobile van also reached there. The deceased was shifted to the hospital but he was declared dead, therefore, the complainant went to police station and lodged the report at 9-30 a.m."
5. During trial, Akhtar Abbas brother of the deceased appeared as P.W.4. He stated about reaching the spot after the receipt of information of the occurrence from Baby Manza daughter of Safdar Ali deceased and reporting the matter to the police. He is not an eye-witness of the occurrence.
However, he did not mention the registered number of Jeep and colour of jeep used during the occurrence. He also conceded that in a normal situation the report of fire could not be heard while sitting in the house. Azhar Abbas also brother of the deceased, Manza daughter of the deceased and Quratulain niece of the deceased furnished the eyewitness account. Out of the three, Azhar Abbas was not mentioned as a witness in the F.I.R. Their evidence was subject to identification parade.
' However, the learned Appellate Court concluded that the identification of the accused could not be satisfactorily proved. These P. Ws. Also stated about identification of the jeep which was used during the occurrence and was occupied by the accused when they were arrested. They also stated about identification of the robbed motorcycle recovered at the instance of appellants. Dr. Hothomal P.W.2 stated about the postmortem examination conducted on the dead body of deceased Safdar Ali. According to him, the deceased has received fire-arm injury on his left eye ball and died immediately after receipt of injury. He, however, opined that the post-mortem examination was conducted within two hours of the death. In cross-examination, he explained that the injury was caused from a probable distance of two feet and there was no signs of grappling.
Ijala Hyder, Judicial Magistrate, Sanghar P.W.3 stated about the identification parade of the accused. He also stated about the identification of jeep and stolen motorcycle. Ghazanfar Abbas P.W.11 stated that on 9-2-1999 in his presence the accused were arrested while they were occupying jeep which was being driven by Luqman. He further stated that along with the driver, Qasim was sitting on the front side while Ghulam Akbar was sitting on the rear seat. He further stated that at the time of arrest revolver was recovered from Luqman acquitted co-accused while at that time, no weapon was within the possession of the appellants. He is real brother of the deceased and is attesting witness of the test identification held in lieu of jeep and motorcycle. Nazir Ahmed P. W.12 who was employee of the WAPDA stated that he accompanied the S.H.O. And the accused at the time of recoveries of motorcycle and weapons of offence. Muhammad Sharif P.W.13 claimed that he was owner of the jeep and was friend of Akbar and Luqman. That on 4-1-1999 he left the jeep with Akbar and Luqman as the jeep needed repair and that on 10-1-1999 the jeep was returned to him. He was declared hostile and was cross-examined by the prosecution as well as by the defence. During cross-examination he stated that on 4-1-1999 he had brought his jeep to the house of accused but his jeep did not start, therefore, he went back on the jeep of the accused and that his jeep became out of order and was left from where it was taken by the appellants. He further stated that his jeep was not returned to him till the day of his examination. He also stated that he was detained by C.I.A. Police for 20 to 21 days and was forced to sign the statement. Abdul Hague, S.H.O. P.W.14 stated about the registration and investigation of the case including the arrest of the accused, test identification of the accused and test identification in lieu of jeep and motorcycle. He also stated about the recoveries at the instance of the accused. Anwar Jamal, S.H.O. Also appeared and stated about the blocking of road by mob after the incident. Rest of the witnesses are formal. The prosecution closed its case after producing the reports of Chemical Examiner, Serologist and Forensic Science Laboratory.
6. After closure of prosecution case, the statements of eye-- witnesses were recorded under section 342, Cr.P.C. Both the appellants pleaded innocence. In addition to that Ghulam Akbar stated that his father Yaqoob has moved an application Exh.22/A available at page 178 of the paper book against S.D.P.O. Ali Nawaz Khashkheli who felt aggrieved. He further stated that he was arrested from his house. Similarly, Qasim appellant also pleaded innocence and stated that firstly he himself appeared before the police and let of. Subsequently, he was arrested from his house.
7. Learned counsel appearing on behalf of the appellants has argued that the learned Appellate Court has maintained the conviction of the appellants merely on probabilities and presumptions which could not be taken as proof and that the evidence relating to all the recoveries was neither trustworthy nor reliable; that after discarding the ocular evidence, conviction could not be recorded on the basis of corroborative evidence that of recoveries.
8. Conversely, Mr. M. Qasim Mirjat, A.A.-G. Appearing on behalf of the State has tried to justify the conviction of the appellants on the basis of strong circumstantial evidence like recovery of stolen property at the instance of both the appellants and recovery of weapon at the instance of Ghulam Akbar which wedded with the empty recovered from the spot.
9. We have heard the learned counsel for the parties and have gone through the entire record of the case. The learned Appellate Court for very cogent reason has discarded the ocular testimony by holding in para.30 of the impugned judgment as follows:-- "It appears that the witnesses had seen the appellants before the identification tests, therefore, such possibility is required to be accepted. In such a situation, the identification tests have lost their evidentiary value. Thus, the prosecution has failed to prove this piece of evidence against the appellants."
10. Now we are left with the evidence of recovery of jeep, recovery of stolen motorcycle and recovery of pistol from appellant Akbar and its tallying with the empty recovered from the spot.
According to prosecution case, the appellants along with Luqman were arrested on 9-2-1999 while they were occupying the jeep which was used during the occurrence. At that time, the jeep was being driven by Luqman acquitted co-accused. The story has been disbelieved qua Luqman co- accused who was acquitted and from whose possession allegedly revolver was recovered at the time of arrest. The witnesses'of the story are the same i.e, Ghazanfar and Abdul Hal, S.H.O. It may be noted here that the registration number of the jeep was not mentioned in the F.I.R. Nor the colour of the jeep was mentioned. In order to established that the jeep was the same which was used during the occurrence, it was alleged that test identification was arranged. According to Magistrate, he mixed the jeep with three other jeeps. However, firstly he said that he did not remember the colours of the jeeps with which the jeep used during crime was mixed up. He also did not remember the difference between the different models. However, he admitted that the distinguishing feature of present jeep from other jeeps was that the present jeep had leather hood whereas some of other jeeps did not have any hood while some had. After admitting that he did not remember whether the jeeps were carrying number plates or not, he shifted by stating that the number plates were got removed by. The Naib Qasid. Almost all the witnesses have quite different account vis-a-vis the identification of the jeep. Azhar Abbas stated that the total number of jeeps was three as against that of the word of the Magistrate according to whom there were four jeeps. Manza P.W. Stated that the jeep used in crime had hood of black colour which was not available with the rest of the jeeps.
Quraitulain P.W. Stated that she 'identified the jeep because of the sticker of falcon. Ghazanfar Abbas stated that sticker of falcon was affixed on the front of the jeep on the day of identification and the same was not affixed on the jeep present outside the Court room when his statement was recorded by the learned trial Court. Abdul Hague S.H.O. Knocked the very basis of identification by admitting that no special marks were affixed on the jeep in question but number plate was affixed on it. He further admitted that the other jeeps were also have the number plates. Undeniably the jeep did not belong to any of the appellants and its owner was Sharif who stated that his jeep went out of order, was left there and was taken by the police. In such circumstances, it cannot be said that either the accused were arrested while they were travelling in some jeep or the same jeep was used during the occurrence. After considering the whole evidence on the point one gathers strong impression that it was a clear cut case of padding on the part of the police.
11. The next piece of evidence relied by the learned trial Court was recovery of stolen motorcycle at the pointing of appellants Akbar and Qasim. Allegedly as per prosecution case on 9-2-1999 after 30 days of the occurrence, stolen motorcycle was 'recovered at the joint pointing of both the appellants from a sugar-cane field. Firstly the field belonged to one Jamaluddin, was an open place and it could not be said that the stolen motorcycle was recovered from the exclusive possession of the appellants. The second question would be whether the recovery, at the joint pointing of two accused, had any evidentiary value or not. It was held by a Division Bench of Sindh High Court in the case of Abdul Ghani and 3 others v. The State 1976 PCr.LJ 1462 that the recovery at the pointation jointly of several accused persons cannot be made the basis of drawing an inference about the conduct of such accused persons unless it can be shown with a degree of particularity that such inference can be drawn with respect of each one of the persons involved in the act. In para.14 of the judgment in the case of Nazeer and 2 others v. The State PLD 1989 Kar. 466 it was observed by the Division Bench as follows: "It was held by a Division Bench of this Court that where joint acts of several persons are sought to be proved, in order to ask the Court to draw an inference from such conduct, evidence should be led with some degree of particularity so that it may be possible for the Court to draw the necessary inference from the conduct of each one of the persons concerned in the act."
12. We may refer here the case of Das Ram Gehla Ram v. Emperor decided by learned Division Bench of Lahore High Court 43 Cr.LJ 1942 (268) wherein it was observed as follows:-- "The mere fact that a person points out a place where stolen property is concealed, if that place is not his own, does not justify the Court in drawing the conclusion that the person who pointed out the stolen article had received or retained it, nor does the mere knowledge of the place of concealment necessarily lead to the conclusion that the person having such knowledge participated in the act of concealment."
13. In the case of Muhammad Ayub and others v. The State 1974 PCr.LJ 501 the learned Division Bench held that the recovery witness appearing to be a chance witness accompanying police for recovery purposes--recovery also from an open place, the evidence of recovery was not worthy of credence. Lastly, on this point we may refer to the judgment of this Court in the case of State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 wherein it was observed that it was the requirethent of section 103, Cr.P.C. That two members of the public of the locality should be Mashirs to the recovery and it was mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public-- - if however, the statement of the Police Officer indicated that no efforts were made by him to secure two Mashirs from public, the recoveries would be doubtful.
14. In the instant case, recovery witness Nazir Ahmed was not the resident of the locality and the Investigating Officer admitted that the place of recovery was surrounded by the 50/60 houses but none was summoned from the locality. According to P. W.12 he was standing at a bus stand and was going to Sinjhoro (where he lived) when police reached there and he just accompanied them.
The learned Appellate Court did not take the above-mentioned circumstances while placing reliance on the evidence of recovery and has erred in law. The recovery evidence is not worthy of credence and cannot be used against any of the appellants.
15. The learned Appellate Court while passing the death sentence on the appellants has also believed the evidence of recovery of weapon at the instance of Ghulam Akbar and its tallying with the empty recovered from the spot. We are of the considered opinion that for the following reasons the evidence was not free from doubt and could not be used against the appellants.
"(1) The occurrence took place on 9-1-1999.
(2) According to S.H.O. Abdul Hague after registration of the case on the same date he visited the spot and secured blood-stained earth, empty bullet and one live bullet which was sealed into parcel.
(3) The report of Forensic Science Laboratory Exh.20/B available at page 171 of the paper book reveals that the empty was received along with pistol on 12-4-1999 i.e, after three months. Such a long delay has not been explained at all. The requirement of law is that the empty recovered from the spot should be sent to the Laboratory without any delay. To top it, the report reveals that the empty and the recovered pistol, were received together on the same date i.e, the pistol was also sent after more than two months of its recovery."
16. Needless to say that the prosecution tried to prove the recovery through Nazir Ahmed P.W. Who as stated above was resident of a distant place and not of the locality and was a chance witness. It has been held in a number of cases that in such circumstances no reliance can be placed on the recovery and the same cannot be used against the accused. The following judgments may be referred on the points:--- ' In the case of Jehangir v. Nazar Farid and another 2002 SCMR 1986 this Court observed as follows:- - "The occurrence had taken place on 21-1-1996, Nazar Farid was arrested on 1-2-1996. The rifle in question had been allegedly recovered from him on 12-2-1996 and it was at least 7 days thereafter i.e, on 19-2-1996 that the crime-empties in question had been received in the Forensic Science Laboratory. In the circumstances this piece of evidence is not credible and is of no assistance to the prosecution as against Nazar Farid accused."
' In the case of Muhammad Younis Khan v. The State 1992 SCMR 545 it was held in para. 16 that so far as the recovery of revolver P.5 is concerned at the instance of the appellant which matched with the crime-empty P.4 recovered from the spot, both the crime-empty and the revolver were sent after both the recoveries were made to the office of the F.S.L. Which destroys its incriminatory value. (underline is ours)
' It was observed in the case of Atta Ullah and others v. The State PLD 1990 Pesh. 10 that the crime- empties should be immediately dispatched to Arms Expert and should not be kept by the Investigating Officer because in that case objection regarding manipulation of recoveries will hold good."
17. It is cardinal principle of criminal jurisprudence that the burden of proving the case beyond doubt against the accused securely lied upon the prosecution and it did not shift. Similarly, the presumption and probabilities, however, strong may be, could not take the shape of proof. We would like to reproduce judgment of this Court in the case of Muhammad Luqman v. The State PLD 1970 SC 10, which provides guidelines on the point:-- "With due respect to the learned Judges, it may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may be irresistible be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or nonexistence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts will be reduced to a naught."
18. For what has been said above, we are of the considered opinion that the prosecution case is replete with doubts. It was for the above noted reasons that this appeal was allowed on 9-4-2008 by a short order and the appellants were acquitted of the charge.