Muhammad Farrukh Mahmud, J.--This appeal, by leave of this Court, is directed against judgment dated 20.10.2003 handed down by the learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, Rawalpindi in case FIR No, 57 registered at Police Station Saddar, Hasanabdal, on 10.3.2002 for offences under Sections 302, 39234 PPC, for causing the murder of Hukam Dad, whereby the appeal was dismissed and the conviction and sentences recorded by the learned Judge Special Court for Juveniles, Attock for offences under Sections 308 PPC and 392 PPC, vide judgment dated 4.7.2002, were upheld.
2. According to prosecution case, Hukam Dad deceased, brother of the first informant Gul Zaman, lived along-with , his family in a separate house. He earned his living by plying Yellow Taxi Cab Registered No, 6676/ST. Hukam Dad left his house on 7.3.2002 and did not return till 8 p.m. which caused concern to the complainant party, after searching in vain for Hukam Dad till 8.3.2002, a report was lodged at Police Post Naseerabad Rawalpindi, about the disappearance of Hukam Dad on 9.3.2002 (Ex;P2). On 10.3.2002 Muhammad Aslam, SI Police Station Ghourghushti PW.5 received information about the presence of a dead body, which was lying under a pulli at Tarbela Road, PW.5 after recording the statement of Pervaiz Akhtar Ex.PE, took the dead body in possession, sent report to Police Station Hazro for Entry in Roznamcha. However, as the area of recovery of dead body fell within the territorial jurisdiction of Police Station Saddar Hasanabdal, the rust and the dead body was sent there. PW. 12 Abdul Razzaq SHO, after identification of dead body, by his brother Gul Zaman, recorded his statement and registered the case.
3. The appellants who had been arrested by the police of Police Station Hazro in some other case, were arrested on 24.4.2002 in the instant case by PW.12 Abdul Razzaq SHO on information furnished by police, P.S. Hazro. On 25.4.2002 the appellants were sent to judicial lockup for the purposes of identification test,, which was conducted by Ikram Ullah Niazi, Special Judicial Magistrate Attock (P.W.1), at District Jail Attock, on 6.5.2002. Allegedly PW.9 Ch. Mushtaq Ahmad and PW.10 Malik Sahib Khan correctly identified the appellants as accused, in whose company the deceased was last seen.
4. After the completion of identification test, PW.12 took physical remand of the accused on 9.5.2002. On 17.5.2002, Ibrahim appellant, allegedly led to the recovery of certain articles including I.D. Card of the deceased, and Pass Book of the account of the deceased of National Bank Rawalpindi, from a room of Lahore Hotel situated in Haripur. Recovery memo Ex.PG was attested by Muhammad Usman, ASI (PW.8) and Ashfaq Constable who was not produced.
5. PW.2 Dr. Ishtiaq Hussain conducted the postmortem examination on the dead body of Hukam Dad on 10.3.2002. According to his opinion the deceased lost his life due to shock, due to asphyxia due to throttling. The death was immediate and the postmortem was conducted within 10-14 hours of the death.
6. The appellants in their statement under Section 342 Cr.P.C. pleaded innocence and submitted that the identification test was false as they had already been shown to the PWs before the identification parade was held.
7. Leave was granted to examine in depth the evidentiary value of the identification test and the recoveries.
8. Learned counsel for the appellants has contended that the appellants were innocent and were roped in this case merely on the asking of the police; that the identification test was of no evidentiary value as appellants had already been shown to the PWs prior to the identification parade and this fact was recorded by the Magistrate who conducted identification test; that the story of the deceased, having been seen in the company of appellants put forward by PW.9 and PW.10, was not reliable; that the recoveries were planted by I.O. and that the taxi cab of the deceased was not recovered from the possession of the appellants. The learned counsel concluded his arguments by stating that the prosecution case was replete with doubts.
9. Conversely, the learned counsel for the complainant has submitted that PW.9 and PW.10 who had furnished the evidence of last seen had no enmity with the appellants so as to involve them in a false case; that both the PWs correctly identified the appellants out of dummies and that the PWs also identified the accused before the learned trial Court. The learned counsel further argued that non-compliance of provisions of Section 103 Cr.P.C. would not weaken the recovery evidence as police official were also held in many cases to be the good witnesses. Furthermore, Malik Sahib Khan (PW.10) and Usman Ali (PW.8) supported the last seen evidence before the learned trial Court; that the appellants had committed a heinous offence, therefore, were rightly convicted.
10. The learned counsel appearing for the State has adopted the line of argument of learned counsel for the complainant.
11. We have heard the learned counsel for the parties at length and have also scanned the entire record of the case. Undeniably, it was an un-witnessed occurrence and the prosecution case rested on circumstantial evidence. It is well settled that circumstantial evidence should be like a well knit chain whose one end should point to the accused and the other to the deceased. The learned Courts below have relied upon the statements of PW.9 and PW.10 who furnished the evidence that the deceased was last seen in the company of the appellants. Admittedly the appellants were not previously known to both the witnesses and they had a momentary glimpse of the appellants.
12. According to PW 9, he was driving taxi cab in Rawalpindi for the last 20/22 years and he usually picked up passengers from Pirwadhai More or from near Kohinoor Mills while Hukam Dad deceased usually remained present at Pirwadhai More. On 7.3.2002 at about 10/11 a.m., 3 persons contacted the witness at Pirwadhai More and asked him to take them to Islamabad. On refusal of the PW, they contacted Hukam Dad and left in his Taxi. According to this PW, at the time of contact, two of the accused were having beard while the third was clean shaven and that two of the accused were aged about 20/21 years while the third was aged about 16/17 years. The other witness Malik Sahib Khan PW 10 stated that on 10.3.2002 he left Rawalpindi for Peshawar on a Toyata Hiace. At about 4.30/5 a.m., the vehicle was stopped at a hotel at Sangwal More because the passenger wanted to take tea. While he was present at the hotel, Hukam Dad deceased alongwith three persons also reached there. On inquiry, Hukam Dad informed the witness that he had sold his taxi cab for Rs, 1,40,000/- to the accused and was accompying them to Ghazi to receive the sale proceeds of the taxi cab. The witness added that he returned to Pindi on 18.3.2002 and after knowing about the death of Hukam Dad, he joined the investigation and his statement was recorded on 19.3.2002.
Malik Sahib Khan PW 10 did not give any description of the accused. He did not mention any thing about the age, height, complexion or the language being spoken by the persons who accompanied the deceased while PW 9 stated that two of the accused were having beard while the third was clean shaven and that two of them were aged about 20/21 years while the third was 16/17 years of age. He also did not describe any thing about the height, complexion, physique or the language being spoken by the accused. The description given by PW 9 would fit to thousands of citizens of Pakistan. No distinguishing marks whatsoever were given by any of the PWs. In the circumstance it would be highly difficult for a witness to identify the culprits and pick them during the identification test out of the dummies. Undeniably, prior to arrest of the appellants in the instant case they were arrested in some other case registered at Police Station Hazro and were in Police custody. PW. 1 who conducted the identification parade admitted that he had mentioned in his report that the accused has informed him that they remained in Police custody at Police Station Hazro for about 10 days. Perusal of his report Ex.PA relating to identification reveals that the accused also stated before him that they were shown to private witnesses at Police Station Hazro and there photographs were also taken. The perusal of the identification report further reveals that the appellants were mixed with 27 dummies but it has not been mentioned in the report whether any of accused was keeping beard or not. Similarly it was not mentioned whether the dummies were keeping any beard or not. Neither the ages of the appellants nor the ages of the dummies have been mentioned in the report. It is also note worthy that according to investigating officer PW.
12, the appellants were arrested in this case on 24.4.2002 and were sent to judicial lockup on 25.4.2002 yet the identification test was conducted on 6.5.2002. Perusal of the record further reveals that the application for identification parade (Ex.PA) was submitted on 2.5.2002 after 8 days of the arrest of accused in the instant case. There is no plausible explanation for the delay in conducting of identification test which prima facie, strengthens the suspicion that the time was consumed for showing the accused to the PWs. The statement of PW.9 was recorded by the police on 12.3.2002 after two days of the registration of the case. PW.9 stated that he had seen the deceased in the company of accused on 7.3.2002 and came to know about the death of the deceased on 10.3.2002.
There is no explanation as to why his statement was not recorded till 12.3.2002. Furthermore, Mushtaq Ahmed did not disclose the fact of having seen the deceased in the company of the accused till he came to know about the death of Hukam Dad. Ex.PL which is report lodged by Pervaiz real brother of Hukam Dad deceased at police post Naseerabad Rawalpindi about the disappearance of Hukam Dad and his taxi cab on 9.3.2002 reveals that prior to lodging the report, the relatives of the deceased had been searching for him and had been inquiring from fellow taxi drivers about the whereabouts of the deceased. In that case, PW.9 must have disclosed the hiring of taxi cab of the deceased by appellants for onward journey to Islamabad.
13. After considering the above noted facts, we are of the opinion that the evidence of last seen furnished by PW.9 and 10 and the evidence of identification test, were not worthy of any credence.
The statement of Dr. Ishtiaq Hussain PW.2 reveals only the cause of death and does not lead to the assailants.
14. As far as evidence of recoveries from a room of Lahore Hotel situated at Haripur, is concerned, suffice it to say that none from the hotel staff was cited as a witness and no documentary evidence was collected by the I.O. in proof of stay of Ibrahim appellant in the hotel. Not only that, no statement of manager or any other members of the staff of the hotel was recorded on that context.
It was most unlikely that the assailant who had taken care to hide his crime would keep the useless incriminating evidence intact. It appears that the learned Appellate Court knowing that the recovery evidence was of no value, did not mention it in its judgment whereby the appeal was dismissed.
15. The upshot of the whole discussion is that in our considered opinion, the prosecution has failed to prove its case against the appellants. Resultantly, this appeal is allowed and the judgments passed by the learned Courts below are set aside as a result whereof appellants are acquitted of all the charges and would be released forthwith if not required in any other criminal case.