Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 131 of 2008 filed by Kamran son of Maula Dad and Crl. Appeal No, 133 of 2008 filed by Sh. Murtaza Ahmad, appellants, who were convicted and sentenced by learned Addl. Sessions Judge, Attock vide impugned judgment dated 31.3.2008 as under:-- Death u/S. 302(b) PPC each and to pay Rs, 50,000/- each as compensation to the legal heirs of the deceased and in default thereof six months S.I. each.
Murder Reference- No, 16 of 2008 for confirmation or otherwise of death sentence of convicts Kamran Khan son of Mauladad, and Sh. Murtaza Ahmad shall also be disposed of through this single judgment
2. Brief facts of the case as disclosed by Nawazish complainant in his complaint Ex.PD are that on 29.6.2005 at 9.00 p.m. he was present in his house. He saw a vehicle with its head lights on parked at a distance of about 200/250 yards from his house. When the vehicle did not move for a considerable time, he out of suspicion took Aksar Khan and Gulab Khan with him and saw the vehicle by drawing near it. They saw that it was a yellow cab bearing Registration No, 4257-LHZ wherein a shoe was lying in front of the driving seat and some papers were scattered on the rear seat of the car. They suspected that some crime had been committed. They started combing the area with the help of the torches and when they reached near "Bada cause-away Sarwar Khan" they found a dead body lying there. From the chest of the deceased the blood had oozed out.
Somebody had committed his murder in the darkness of the night.
3. Investigation of the case was taken over by Muhammad Miskeen ASI PW. 14, who on receipt of information about the occurrence reached the spot, on the statement of Nawazish Khan drafted complaint Ex. PD and sent it to the Police Station for registration of formal FIR through Zaffar Iqbal Constable, took into possession Suzuki Car No, LHZ-4752 P.7, registration book P.8, route permit P.9, National Identity. Card of the deceased P.10, a single shoe P.11, license P.12 vide memo. Ex.PL, recorded the statements of the witnesses u/S. 161 Cr.P.C., prepared inquest report Ex.PM and injury statement Ex.PN, thereafter, the investigation of the case was entrusted to Muhammad Khurshid Inspector PW.17, who on 30.06.2005 visited the place of occurrence, collected blood-stained earth from the spot vide memo. Ex.PE, collected one empty cartridge .30-bore pistol, which was taken into possession vide memo. Ex. PF, prepared rough site-plan Ex.PT. On 4.7.2005 he arrested Kamran Khan s/o Ayyub Khan accused and on his personal search recovered pistol .30-bore along with four live bullets, which were taken into possession vide memo. Ex.PG, he also prepared injury statement of Kamran accused Ex.PU. On 30.7.2005 he arrested Accused Kamran s/o Maula Dad, who on 10.8.2005 got recovered revolver .32-bore P.5 and on unloading the same three live bullets P.6/13 were also recovered, which were taken into possession vide memo. Ex.PK. On 13.10.2005 he arrested Sh. Murtaza accused, who while in police custody got recovered pistol P.3 and writs watch P.4, which were taken into possession vide memo. Ex.PH. However, after completion of remaining formal investigation, the accused were challaned to face the trial.
4. At the trial, the prosecution in order to prove its case produced seventeen witnesses in all, thereafter, learned DDPP after tendering in evidence report of Chemical Examiner Ex.PV, report of Forensic Science Laboratory Ex.PW, report of Serologist Ex.PX and closed the prosecution case. The accused in their statements recorded u/S. 342 Cr.P.C. pleaded false implication.
5. Learned counsel for Kamran. Khan s/o Maula Dad and Sh. Murtaza Ahmad appellants submit in unison that both of the accused were not named in the FIR; that there is only evidence of Raja Mazhar Mahmood PW.8, who stated that on 29.6.2005 at 7/7.15 PM he had seen the deceased along with Kamran Khan s/o Ayyub Khan (acquitted on the ground of compromise) sitting on the front seat of the Car, which was being driven by the deceased while on the pillion seat two unknown persons were siting whose descriptions were given by him in his statement recorded u/S. 161 Cr.P.C. but he only identified Kamran Khan s/o Maula Dad appellant in the identification parade held by Ikram Ullah Khan Niazi DDOR PW.15 while Munir Ahmad Shah PW.9 identified Kamran Khan s/o Maula Dad and Sh. Murtaza Ahmad @ Nomi s/o Mahboob Elahi appellants on 22.10.2005; it is very difficult to identify the persons sitting on the pillion seat of the Car when it was being driven after "Maghrab prayer at 7/7.15 p.m. according to the statements of these eye-witnesses and they were duly confronted with their previous statements; both these witnesses are residents of Jhatta Hathial, Tehsil and District Rawalpindi, which is at a distance of 75 Kilometers from the place of occurrence; as far as, positive report of Forensic Science Laboratory Ex.PW is concerned, i,e, maneuvered one because crime empty recovered from the spot and the pistol recovered at the instance of Sh. Murtaza Ahmad appellant were sent together so it loses its evidentiary value; Jamil Ahmad PW.10 real brother of the deceased had stated that on 29.6.2005 at 6.00 p.m. Kamran Khan s/o Ayyub Khan took his deceased brother in his Taxi Car by fixing a rent of Rs, 6000/- with him; as far as, recovery of writs watch from Sh. Murtaza Ahmad appellant is concerned, it was never identified by the brother of the deceased; Raja Mazhar Mahmood PW. 8 is first cousin of Jamil Ahmad PW. 10 while Munir Ahmad Shah PW. 9 is neighbour of the deceased; as far as recovery of pistol from Kamran Khan s/o Maula Dad appellants is concerned, the said pistol was never sent to the office of Forensic Science Laboratory; in fact prosecution has failed to prove its case against the appellants and they are entitled to acquittal.
6. Learned Law Officer submits that prosecution has produced the evidence of recovery of pistols from both the appellants and writs watch belonging to the deceased on which his name was engraved was recovered from Sh. Murtaza Ahmad appellant; the other piece of evidence against both the appellants is of last seen; that Sh. Murtaza Ahmad appellant was also declared proclaimed offender and in this regard Tanvir Ahmad FC/23 PW.12 appeared before the learned trial Court and stated that he pasted the proclamation at the outer gate of the house of Sh.
Murtaza Ahmad appellant; Irshad Ullah F.C. 1672 PW. 6 stated before the learned trial Court that he took the parcel of empty of .30-bore pistol on 6.7.2005 and delivered the same in the office of Forensic Science Laboratory on 7.7.2005. He lastly submits that prosecution has proved its case against the appellant beyond any shadow of doubt against the appellants and they are not entitled to acquittal.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. The time of occurrence in this case is not given but the date is 29.6.2005 while the complaint was made by Nawazish Khan complainant at 10.20 p.m, the same day and the formal FIR was recorded at 10.50 p.m. in which complainant only stated that he found a Taxi Car parked at a distance of 200/250 yards having the head light on and there after, he found the dead body of Ikram Khan deceased. In all there were three accused and one of them, namely, Kamran Khan s/o Ayyub Khan was acquitted on the ground of compromise.
8. Kamran Khan s/o Ayyub Khan accused (acquitted on the ground of compromise) was arrested on 4.7.2005 and he got recovered pistol .30-bore, which was taken into possession vide memo.
Ex.PG. Kamran Khan s/o Maula Dad appellant was arrested on 30.07.2005 and on 10.8.2005 he got recovered revolver .32-bore P.5, which was taken into possession vide memo. Ex. PK. Sh. Murtaza Ahmad @ Nomi appellant was arrested in this case on 13.10.2005 and on 26.10.2005 he got recovered pistol 30-bore P.3 along with wrist watch P.4 on which name of the deceased was engraved, which were taken into possession vide memo. Ex.PH.
9. Now we are left with Kamran Khan s/o Maula Dad and Sh. Murtaza Ahmad @ Nomi s/o Mahboob Elahi appellants and the only evidence against them is of last seen and recovery of pistols. As far as, evidence of last seen is concerned, that has been furnished by Raja Mazhar Mehmood PW.8, Munir Ahmad Shah PW.9 and Jamil Ahmad PW.10. Here, we would like to mention the relationship of these witnesses with the deceased. First cousin of Raja Mazhar Mehmood PW.8 is married with Jamil Ahmad PW.10, real brother of the deceased while Munir Ahmad Shah PW.9 is neighbour of the deceased. As far as, Raja Mazhar Mehmood PW.8 and Munir Ahmad Shah PW.9 are concerned, they are residents of Jhatta Hathial, Tehsil and District Rawalpindi, which at a distance of 75 Kilometers from the place of occurrence, this goes against the prosecution. Both these PWs have stated before the learned trial Court that on 29.6.2005 at 7/7.15 p.m. they had seen the deceased along with Kamran Khan s/o Ayyub Khan (acquitted on the ground of compromise) sitting on the front seat of the Car, which was being driven by the deceased while on the rear seat two young boys having slim bodies and wheatish colour were sitting. During cross-examination both these witnesses stated that they had seen these two young boys after "Maghrab" prayer. It is a matter of common knowledge that after "Maghrab" prayer day light comes to an end and darkness prevails.
In their statements before the learned trial Court and before the police, both these witnesses had not mentioned that under what light, natural or otherwise they had seen these two young boys occupying the rear seat of the Car. Moreover, it is very difficult to identity or to give descriptions to the police. We are not satisfied with the identification parade because both these witnesses could not have identified them while sitting on the rear seat so we rule out of consideration their evidence of last seen and identification parade.
10.It is important to note here that neither the pistol 30-bore of Kamran Khan s/o Ayyub Khan accused nor the revolver 32-bore of Ka.mran Khan s/o Maula Dad appellant was sent to Fire-arm Expert and only the pistol 30-bore recovered at the instance of Sh. Murtaza Ahmad appellant along with an empty recovered from the spot was sent to Fire-arm Expert and according to the report of Fire-arm Expert Ex.PW both these articles were received in the office of Forensic Science Laboratory on 01.11.2005 together. It means that after the recovery of pistol a shot was fired from the said pistol, empty was created and then sent to Fire-arm Expert for comparison. Had the empty been recovered earliest as the prosecution wants this Court to believe, that should have been sent before the arrest of Sh. Murtaza Ahmad appellant. It shows that both' these articles were sent to the office of Forensic Science Laboratory with mala fide intention by the Investigating Officer.
11.There is another piece of evidence i,e, identification parade got conducted by Ikram Ullah Khan Niazi DDOR PW.15 through Raja Mazhar Mehmood PW.8, who only identified Kamran Khan s/o Maula Dad appellant and through Munk Ahmad Shah PW.9, who identified both Kamran Khan s/o Maula Dad and Sh. Murtaza Ahmad @ Nomi appellants. We find that identification parade has been conducted against the settled principles of law. The procedure under lined far holding a test identification parade by High Court Rules and Orders must have been observed while staging the identification parade in this case. Though PWs contend to have correctly picked the appellants- accused during identification parade yet they failed to hint at the roles allegedly attributable to the appellants-accused. In this situation, the evidence of this identification parade becomes irrelevant and loses its significance.
12.Now we are left with the report of Forensic Science Laboratory Ex.PW. Although learned D.P.G. submitted that Irshad Ullah FC/1672 PW.6 stated that he took the parcel of empty of .30-bore pistol on 6.7.2005 and delivered the same in the office of Forensic Science Laboratory on 7.7.2005. It is a famous proverb "men can tell a lie but the documents cannot". Report of Fire-arm Expert Ex.PW shows and proves that pistol .30-bore recovered at the instance of Sh. Murtaza Ahmad appellant and an empty recovered from the spot were received together in the office of Forensic Science Laboratory on 01.11.2005 so B this positive report of Fire-arm Expert loses its significance for the reasons that had the crime empty recovered on 30.06.2005 there was no reasons to keep the same for five months.
13. After having heard learned counsel for the parties and going through the evidence available on record we are of the considered opinion that prosecution has miserably failed to prove its case against the Kamran Khan s/o Maula dad and Sh. Murtaza Ahmad @ Nomi appellants. Resultantly, the appeals filed by them are accepted, the conviction and sentence recorded against them by the learned trial Court are set-aside and they are acquitted of the charge. Death sentence are Not confirmed and Murder Reference is answered in the Negative.