' SALMAN ANSARI, J.---In the above appeal the appellants above-named along with absconding accused Abdul Ghani, were convicted by the 2nd Additional Sessions Judge, Malir in New Sessions Case No, 62 of 2004 (Old Sessions Case No,692/1991) by judgment dated 22-1-2007 for having committed an offence under section 302, P.P.C. And sentenced to life imprisonment and to pay compensation of Rs,50,000 of each legal heir of deceased and in case of non-payment of compensation in default of such payment to undergo R.I. For Six months more. The appellants were also given benefit of Section 382, Cr. P. C
2. Briefly the facts of the prosecution case, as emanating from the F.I.R, are that the complainant Muhammad Khalil son of Muhammad Umer recorded statement under section 154, Cr.P.C. Before S.-I. Sher Zaman stating therein that his two brother's in law namely Muhammad Nasim and Muhammad Salem are residing with him on the same address, he is a Zamindar. On 17-6-1991, he along with his two brothers in law and one Ali Muhammad were going towards Jam Kando in a car of Muhammad Saleem who was driving, when they reached near the garden of Muhammad Nasim, at about 2115 hours, suddenly three unknown armed persons blocked the road by throwing an old tree across the road. All the three persons came near the car and aimed revolver/pistol on the driver Muhammad Saleem, on which Muhammad Nasim came down from the car and tried to catch hold of the accused persons on which on of them fired twice upon him with gun Muhammad Nasim received bullet injures on his body and he fell down. All the three accused persons succeeded to escape away from the spot by taking advantage of the darkness. Later on injured Muhammad Nasim was taken away to. Jinnah Hospital but on the way he expired due to the gunshot injuries. All the three accused had committed the murder of#his brother in law Muhammad Nasim due to some previous enmity. Thereafter complainant Muhammad Khalil went to police station Sukhan where S-I.P. Sher Zaman lodged his F.I.R. Against the accused persons under section 302/34, P.P.C.
3. After registration of the F.I.R, investigation was conducted by S-L P. Sher Zaman who went to the place of incident for inspection and prepared mashirnama of inspection of the place of incident in presence of mashirs. S-I.P. Sher Zaman also inspected the dead body of the deceased Muhammad Nasim and prepared inspection memo. Of dead body and inquest report in presence of mashirs.
He has recorded statements of prosecution witnesses and after completion of investigation, challan of this case was submitted before the Court.
4. During the trial charge (Exh.8) was framed against the accused Soof son of Bullan and Folad alias Amir Bux son of Dur Muhammad, under section 302/34 P.P.C., to which they pleaded not guilty and claimed to be tried.
5. After the arrest of accused Abdul Ghani again charge Exh.14 was framed, against the accused Soof son of Bullan, Folad alias Amir Bux son of Dur Muhammad and Abdul Ghani son of Ali Muhammad, under sections 302/34 P.P.C. To which they pleaded not guilty and claimed to be tried.
6. During the trial prosecution examined P.W.1. Complainant Muhammad Saleem, at Exh.12, P.W.2 Ali Muhammad as Exh.18, who produced the memo. Of inspection of the place of incident and recovery as Exh.18/A, P.W.3., ASIP Ghulam Habib as Exh. 19, who produced the memo of inspection of the dead body of the deceased as Exh.19/A and Inquest Report as Exh.19/B. The D.D.A. Appearing for the State, gave up P.W. Ghulam Mustafa, under his statement Exh.20 P.W.4, PC Muhammad Rafiq was examined at Exh.21, who produced the F.I.R. Of this incident as Exh.21/A. P.W.5, Muhammad Siddiq as Exh.22, who produced the memo. Of recovery of Pistol from the possession of accused Folad as Exh.22/A. The learned D.D.A. Also gave up P.W. Yaseen, under his statement Exh.23.
Thereafter the learned D.D.A. Closed the side of the prosecution by statement Exh.24. Learned D.D.A.
Also filed certificate of cause of death, medico legal certificate, postmortem report of deceased Muhammad Nasim and memo of arrest of accused Soof as Exh.24/A to Exh. 24/D respectively.
Thereafter, learned D.D.A. Moved an application under section 540, Cr.P.C. As Exh.29 for calling the complainant Muhammad Khalil, which was allowed and NBWs were issued against the complainant. Statement of Process Server was recorded regarding the non-availability of complainant Muhammad Khalil as complainant Muhammad Khalil is abnormal person and at present has left his house, under his statement as Exh.30. Thereafter learned D.D.A. For the State closed the side of the prosecution under his statement as Exh.33, he also produced chemical examination report as Exh.33/A, statement of identification parade as Exh.35, statement under section 154 Cr.P.C. As Exh.35/A and Memos of Identification Parade as Exhs. 35/B, 35/C and 35/D respectively.
7. The accused in his statement under section 342, Cr.P.C. As Exh.25 and Exh.26, has denied to having committed this offence. The accused have examined themselves on oath as Exh.27 and Exh.28 respectively.
8. The accused Soof in his statement under section 340(2) Cr.P.C. Has deposed that on 17-6-1991, he was available at his house, situated at Allah Bux Goth, police arrested him from his house, at 10- 00 p.m. He was Chowkidar of father of co-accused Folad at his village. The complainant party know that he was Chowkidar of accused Folad's father in his village. He is innocent and not committed any offence and falsely been implicated in this case. In his cross examination, he denied that on 17-6-1991 at 9-15 p.m, he along with Folad and absconding accused Ghani were available on Jam Kanda Road to commit dacoity. It is incorrect to suggest that deceased Muhammad Nasim along with others while driving the vehicle passes the road, they stopped him and tried to rob him and on his resistance they killed him. He was not deposing falsely.
9. The accused Folad alias Ameer Bux in his deposition has deposed that on 17-6-1991, he was available at his house. He knows deceased Muhammad Nasim since his birth. His village is situated near the field of deceased Muhammad Nasim and there was dispute between the parties, due to this dispute complainant party involved him in this case. The main reason/dispute was that usually their goats would enter for crossing the field of deceased. He is innocent and had not committed any offence and falsely been implicated in this case.
10. I have heard the learned counsel for the accused Folad and Soof, it argued that there are three persons present shown sitting in the car at the time of the incident along with the deceased Naseem, namely P. W's Khalil, Saleem and Ali. Muhammad, none of them had named or identified the culprits as given in their section 161, Cr.P.C. Statements, , it was night time incident and very dark. P.W. Khalil whose section 154, Cr . P.0 . Statement was recorded was not examined even though NBW's were issued to procure his attendance. Recovery of weapons is doubtful, no ballistic examination was conducted to determine the crime weapon, no empties or pellet was recovered.
The D.D.A. Produced all the material documents and not the witnesses who had prepared or signed the same, under the circumstances the identification and the identification parade is doubtful which according to P.Ws. Saleem was conducted with both the accused handcuffed, doctor has not been examined, the prosecution's case is full of loopholes and has cast serious doubts on the case and the accused are liable to be acquitted.
11. The learned counsel for the State has argued in support of the findings given, according to him enmity was proved between the accused and the deceased, eyewitnesses have identified the accused in car light and before the Magistrate who conducted the identification parade, death by fire-arm injuries has been proved and the weapon recovered at the pointation of the accused Folad, all the material witnesses have corroborated the prosecution case on all material aspects of the case. The accused have been rightly found guilty and convicted.
12. Having heard the learned counsel for the accused and State, in this case section 154, Cr.P.C.
Statement of P.W. Muhammad Khalil was recorded which was brought on record by D,D.A. As Exh.35/A in which he has not named any person, nor had appeared in the Court to give evidence as he was not traceable in spite of NBWs issued for his arrest. The ocular evidence of A P.W.
Muhammad Saleem, who was present in car at the time of incident he also had not named any person in his section 161, Cr.P.C. Statement. In the identification parade he picked out the accused and at the same time he stated in his cross-examination that he had not given any description (Hulia) of accused in his section 161 Cr.P.C. Statement and that "at the time of identification both the accused were handcuffed". The identification parade was conducted, according to this witness when two accused were mixed up with 20/25 persons. In his cross examination this witness has stated that " I cannot say that accused Folad had fired at my brother". Hence taking into consideration that it is night time incident, it was totally dark and had stated in cross- examination that there were 15 dummies along with accused, both the accused were handcuffed, identification parade would not be considered to have been properly conducted as the accused could easily be picked out. Further in his cross examination he stated that he had identified both the accused in Court when only one accused Soof was present while other accused Folad was sitting outside the Court, hence there was mistake in the identification of the accused Folad by this witness who is one of the 3 witnesses to the incident and who had stated that I identified accused Folad as he has pointed out revolver at my temple. This witness had also been cited witness to the memo. Of place of incident.
13. The P.W.2 Ali Muhammad, who was an eye-witness and was sitting in the car at the time of incident, when armed persons came near the car, Naseem caught hold of, Folad and he identified the accused Folad but not other accused and after firing two gun shots the culprits ran away from the place of Wardat. This witness produced Mashirnama Exh.18/A. In his cross- B examination he has stated that he had named accused persons in his section 161, Cr.P.C. Statement. Considering that the complainant in his section 154, Cr.P.C. Statement had not named any culprits, it would not reasonable to accept that this P.W. Named accused in his section 161, Cr.P.C. Statement, considering it was night time and dark, without any lights. He had in his examination-in-chief admitted that he could not say who fired' with the gun, accused Folad or deceased Naseem. In Exh.18/N prepared on the next date to which P.W.2 is witness no empty or pellet B of a bullet or cartridge was recovered, no blood stains were found hence it would not be safe to accept this P.W's. Evidence even though he had identified both the accused in the identification parade but only identified accused Folad in Court and not at the time of incident, as stated in his examination in chief, these are material discrepancies found in the evidence of a eye-witness which shows that he is making additions and alterations on material aspects of the case which renders his evidence doubtful.
14. P.W.3 Ghulam Habib Exh.19 he is only a witness to the inspection of the dead body and the Inquest Report Exh.19/A and CW P.C. Muhammad Rafiq produced Exh.21, the F.I.R. In this case and Exhs. 18/A, 19/A and 19/B, this witness states that the above documents bear the signature of the Investigating Officer S-I.P. Sher Zaman, who had died in the year, 1995-6. No evidence has been produced to show that since when this witness was acquainted with the hand-writing and signatures of the Investigating Officer and I find that, this process has been adopted by the prosecution only to fill in the gaps that they found due to the absence because of death of the Investigating Officer S-I.P. Sher Zaman.
15. Considering that the P.W. Muhammad Khalil whose section 154, Cr.P.C. Statement was recorded by S-I.P. Sher Zaman who has also not appeared to give evidence. P.W-5 Muhammad Siddique who had accompanied ,the police party on 1-7-1991, when the accused Folad who was in police custody led the police party and got the pistol with three live cartridges recovered from the garden in the cross-examination admits that he had family terms with the deceased Naseem who was his neighbour and co-mashir Younus had read over the contents of Mashirnama Exh.22/A to him as he was illiterate this witness produced the mashirnama Exh.22/A along with sketch of the T.T. Pistol and three live bullets this evidence should be taken into consideration in the light of the facts that no empties were recovered from the place of incident nor any ballistic examination was conducted to determine whether the bullet injuries suffered by the deceased were caused by the bullet fired from the weapon recovered at the pointation of the accused Folad. Also taking into consideration that the other P.W. Younas was given up as P.W. Siddique had been examined on the same point.
Thereafter by a statement, learned D.D.A. Had produced the Medical Certificate Exh.24/A and the Postmortem Report Exh.24/C of the deceased which shows that two wounds were found on the body of the deceased as under:--
(1) Fire-arm wound 1/4 X 1/4 on the right side back of chest margin inverted (entry).
(2) Fire-arm wound 1/2 dia on right side upper chest outside in 21cs margins are lacerated and averted (exit).
16. Upon perusal of the above injuries, it shows that in fact one bullet had entered into the body of the deceased as injury No,1 on the right side back of chest is the wound of entry injuries, on the right side upper chest is the wound of the exit. Considering no empties have been recovered nor any pellet was recovered from the spot, a wound exit has been shown on the dead body, then the pellet must have fallen on the ground or must be present somewhere at the place of incident but due to careless and negligent 'investigation this material piece of evidence was never procured by the Investigating Officer nor even a spot of blood-stained earth.
17. That after the statement of the accused were recorded on 31-12-2005 under section 342, Cr.P.C.
Their statement under section 340(2). Cr.P.C. Was recorded on 7-1-2006. The learned D.D.A. Had earlier vide Exh.24 on 14-11-2005 closed the prosecution side, thereafter after the statement of the accused were recorded, thereafter Prosecutor moved an application under section 540 Cr.P.C.
Exh.29 dated 22-2-2006 to examine the complainant who could not be examined "due to oversight of then D.D.A. And statement of complainant is very important for disposal of the case on merit."
Subsequently NBWs were issued for the complainant Muhammad Khalil but he could not appear to give evidence and the statements of his relatives shows that he has gone missing from the Goth and another witness states that Muhammad Khalil had gone to interior Sindh for many days while another report shows that he was abnormal, Exh-32 shows that Khalil Ahmed was abnormal hence he could not, be examined and on 6-11-2006 vide Exh.33 again the prosecution closed its side and on 17-11-2006 by a statement Exh.35 the learned D.D.A. Brought on record the report of the Chemical Analyser Exh.33/A which shows report of the examination of the clothes of the deceased Muhammad Naseem, worn at the time of incident and all the three clothing blue shirt, blue Shalwar and white banyan were found stained with blood. By the same statement Exh.35 the identification Parade Memos. Exh.35/B, 35/C, 35/D were brought on record which show the P.Ws. Muhammad Khalil, Ali Muhammad and Muhammad Saleem who had identified both the accused Folad and Soof in the identification parade conducted on 17-11-2006.
18. That on perusal of the evidence brought on record, it appears that three prosecution witnesses were present at the time of the incident have not identified the three culprits who had allegedly stopped the C car in which the deceased Muhammad Naseem along with his brother Muhammad Saleem and brother-in-law Muhammad Khalil and P.W. Ali Muhammad were travelling, as P.W.
Saleem had admitted in his cross-examination that he had not named the culprits as it was night time incident, but subsequently he had pointed out one of the accused to be Folad present in Court while at the same time the said accused Folad was sitting outside the Court and only the accused Soof was present. The complainant Khalil Ahmed had also not named any person in the F.I.R. And subsequently, he was not traceable though he had identified the accused in the identification parade which was conducted on 2-7-1991 the arrest of the accused is shown on 18-6-1991, hence the identification parade was also conducted after a belated period and loses his evidentiary value, considering that P.W. Saleem had stated in his cross-examination that both the accused Soof and Folad were handcuffed at the time of identification parade was held under such circumstances, picking out the accused would be no problem for the witness but such identification parade would have no evidentiary value and would not corroborate the statement of the P.Ws., In Tact it shows that the P.Ws. Had been making false statements in Court only to cover up the prosecution defects.
19. That the medical evidence shows that the deceased Naseem had died due to gun shot injuries received at the time of incident, but in my opinion, the prosecution had failed to connect the accused with the death of deceased Naseem caused by the weapon recovered at the pointation of the accused Folad as the crime weapon according to the prosecution examination of the weapon nor any empties or pellets to determine the weapon used in the offence, whether it was the same that was recovered at the pointation of the accused Folad and such recovery also does not inspire confidence, a weapon was found conveniently from the garden of Naseem near the place of incident and was easily pointed out and picked up by the accused Folad. That crucial documents to the prosecution case have been produced through the D.D.A. And not by the witnesses who should have been produced such as the inquest report, medical certificate of the cause of death and the postmortem report by Doctor P.W. Capt: A. Ghafoor who had signed the above documents such evidence loses its value under the circumstances, further the Magistrate who had conducted the identification parade he had not produced the memo. Of identification parade and the Magistrate evidence could have been the best evidence who had conducted the identification and failure of prosecution to produce the memo. Of identification parade through the Magistrate who signed the memos. Of identification parade would make the identification parade under the circumstances where the same is found to be have been conducted belatedly of little evidentiary value in the light of the statement of P.W. Saleem that both the accused were handcuffed at the time of the identification parade.
20. In view of the above discussion I have come to the conclusion that the prosecution had failed to prove the case against both the accused beyond reasonable doubt.
21. I, therefore, allow the appeal filed by the accused Soof son of Bulan Shan and F Folad @ Amir Bux S/o Dur Muhammad and set aside the conviction awarded by the IInd Additional Sessions Judge, Malir, by judgment dated 22-1-2007 and acquit the above named accused who are in custody, they are to be released forthwith by the jail authorities if not required in any other case.