' TASSADUQ HUSSAIN JILLANI, J,---Appellant Imran alias Manu was proceeded against in terms of the case registered vide F.I.R. No,429 dated 21-6-1999 under sections 302, 397 and 411, P.P.C. At Police Station Yazman, District Bahawalpur and F.I.R. No, 624 dated 31-12-1999 registered under sections 13/20/65 of Arms Ordinance at Police Station Khair Pur Tamewali, District Bahawal Pur for the murder of Shan Muhammad brother of the complainant and for illegal possession of pistol respectively. The learned trial Court convicted the appellant and the co-accused namely Tariq Zafar and sentenced them for life imprisonment under section 302/34, P.P.C., seven years' RI under section 397/34, P.P.C. With a fine of Rs, 1,000, in default whereof to undergo SI for two months. They were also burdened with a fine of Rs,100,000 as compensation under section 544-A, Cr.P.C. In default whereof to undergo SI for six months. Appellant Imran alias Manu was also convicted by the trial Court under section 13 of the Arms Ordinance and sentenced to three years RI with a fine of Rs, 5000, in default whereof to further undergo six months SI. The learned High Court while acquitting the co-accused Tariq Zafar, dismissed, the appeal of the appellant and maintained the conviction and sentences awarded.
2. Learned counsel for the appellant submits that it was a blind murder; that the prosecution case was based on circumstantial evidence which failed to prove the case against the appellant beyond reasonable doubt; that the identification parade was conducted after 26 days of appellant's arrest; that the recovery of pistol P4 is of no consequence as no recovery was effected from the spot and that the impugned judgments are not sustainable.
3. Learned Deputy Prosecution General defended the impugned judgment by submitting that the prosecution case was based though on circumstantial evidence but it comprises of witnesses who had no enmity with the appellant; that the identification parade was supervised by the Magistrate P.W.1 Mian Jameel Ahmed; that P.W.8 Shams-ud-Din, booking clerk, deposed about having seen the deceased with the appellant at the time of booking of the taxi of which the deceased was a driver.
4. We have considered the submissions made and have gone through the record.
5. The prosecution story briefly stated is that on the fateful day and time, appellant who gave his name as Sajid son of Ghulam Muhammad came to Shan Muhammad (deceased) at Hasilpur car stand to hire a taxi of which the latter was a driver; that having hired the taxi both left the stand never to return which raised suspicion and on having received information that a dead body was lying on the bank of DB Canal, he reached the spot and identified the dead body of his brother Shan Muhammad: It was during investigation that the police collected pieces of circumstantial evidence i,e, of P.W.8 Shams-ud-Din, P.W.9 Muhammad Hanif, the witness of last seen, P.W.12 Munir Ahmed who identified the appellant and co-accused Tariq Zafar and the evidence of recovery of P4 pistol at the instance of appellant.
6. Admittedly it was an unseen occurrence and the pistol recovered could not be connected with the alleged offence as no empty was recovered from the spot. It is further not denied that the identification parade was held 26 days after the arrest of the appellant i,e, appellant was arrested on 31-12-1999 whereas the identification parade was held on 26-1-2000. It is in evidence (cross- examination of P.W.1 Mian Jameel Ahmed) that during the identification parade proceedings, appellant did raise objection to the effect that while under arrest in police station lie was shown to the witnesses. Even otherwise the identification parade is only with regard to the last seen evidence and not regarding the main criminal transaction of murder:
7. In the afore-referred circumstances, we are of the considered view that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction on a capital charge.
Consequently, this appeal is allowed, the impugned judgment is set aside and the appellant is directed to be released from jail forthwith unless detained in any other case.