ZAHOOR AHMED SHAHWANI, J.---Through this Judgment we are deciding Criminal Appeal No,12/Q of 2013 filed by appellant Muhammad Ummar son of Wazir Khan and Criminal Appeal No,13/Q of 2013 filed by appellant Hazrat Ali son of Akhtar Muhammad and also Criminal Revision No,02/Q of 2013 filed by the complainant (1) Abdul Salam son of Haji Abdul Manaf and (2) Hanifa Bibi widow of Sharaf-ud-Din for enhancement of sentence of accused Muhammad Ummar and Hazrat Ali from life to death. Appellants were convicted under section 396, P.P.C. As Tazir and sentenced for life imprisonment each with fine of Rs:50,000/- (Rupees fifty thousand only) each or in default thereof, accused persons were further undergo six (06) months' S.I. Each; the fine amount on recovery will be paid to the legal heirs of deceased Sharaf-ud-Din. The benefit of section 382-B Cr.P.C. Was extended in favour of accused persons by learned Sessions Judge, Loralai, vide judgment dated 10.04.2013 in case FIR No,106/2011 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, at Police Station Saddar Loralai District Loralai. After the death of injured Sharaf-ud-Din the offence in FIR has been converted to section 17(4) Harrabah.
' Since all the three matters arise out of one and the same judgment, we are disposing them by this single judgment.
2. It is prosecution case that on 24.09.2011 the complainant Abdul Salam got registered FIR No,106/2011 of this case, at Police Station Saddar Loralai with the allegation that he is the resident of Ghous Abad Pishin and is running a petrol pump named Lasthi Petrol Filling Station and in previous night as usual he and his labours after closing the petrol pump at 12.30 a.m., went to their respective bedrooms, while Munshi Sado Khan slept with him in office and as such at 2.30 a.m. He heard firing, whereupon he wake up and saw two muffled faces persons equipped with weapons standing at the door of his office, who told him to open the door, hence after opening the door by him both the culprits entered, out of whom one culprit made firing over him and asked him to raise hands and also demanded the amount. He alleged that culprits snatched Rs:87,600/- from the Munshi forcibly and also checked the office, during which they took his permitted Kalashnikov lying beneath his bed and as such the culprits enclosed them in an adjacent room and the culprits went out, while hearing his hue and cry his companions reached there, who were sleeping in other room, who took them out and as such later on they went to an other room, where they saw his cook Sharaf-ud-Din in pool of blood having received bullet shot in his head, whom they took to Civil Hospital in injured condition for treatment, who then referred to Quetta by the concerned Doctor.
The complainant further stated that the three persons snatched away Rs,87,600/-from his petrol pump, caused bullet injury to his cook Sharaf-ud-Din. The complainant requested for taking action against the unknown culprits. On the basis of the report of complainant FIR No,106/2011 Offence under section 17(3) Harrabah registered against unknown accused persons. Later on injured Sharaf-ud-Din succumbed to his injuries, therefore, the offence mentioned in the FIR has been converted to section 17(4) Harrabah.
3. The case was duly investigated. The accused Hazrat Ali was arrested on 26.09.2011 and accused Muhammad Ummar was arrested on 02.10.2011 and statements of PWs were recorded under Section 161 Cr.P.C. Against the appellants to face trial. The learned trial Court framed charge against the accused on 17.11.2011 under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Both the accused did not plead guilty and claimed trial.
4. At the trial prosecution examined 11 witnesses. P.W-1 Abdul Wahid, ASI deposed that during the course of special gusht along with other police officials proceeded to Killi Road line and found the accused Muhammad Ummar in equipped position, who then was arrested. He deposed that the Kalashnikov along with 11 live cartridges were taken into possession and 30 bore pistol along with 7 live cartridges were also recovered from the possession of accused, which were also taken into possession by SHO through recovery memo, which was signed by him and constable Naseebullah.
He produced photocopy of the recovery memo as ExP/1-A sack of parcel No,1 as Art.P/1. Specimen of seal as Art.P/2, Kalashnikov as Art.P/3, Magzine as Art.P/4, 11 live cartridges as Art.P/5, sealed parcel No,2 as Art.P/6, specimen of seal as Art.P/7, pistol as Art.P/8, magazine as Art.P/9, 7 live cartridges as Art.P/10. P.W-2 Abdul Salam is the complainant of the case, who narrated the same facts as mentioned in his report Ex. P/2-A. P.W-3 is Muhammad Ilyas who claims to be the eyewitness of incident. He further deposed that he identified the accused persons during identification parade held on 28.09.2011 and 15.10.2011 respectively in presence of ' DSP/SHO. P.W-4 Kamal Khan ASI, who is Mushier of recovery memo Ex.P/4-A and Ex.P/4-B, whereby the Kalashnikov bearing No,19059057, magazine, 9 live cartridges and a Pasha machine No,8825, empty magazine and Rs,4390/- were taken into possession recovered from the possession of Hazrat Ali. He identified the recovered articles as Art.P/1 to Art.P/11. P.W-5 is Dr.Malik Safdar Hussain, who conducted the medical examination of deceased Sharaf-ud-Din on 24.09.2011 at about 9:55 a.m. When he was alive in Civil Hospital, Quetta. He examined the injured and found as follows:-- i. Already stitched wound, 8 stitches applied 9 cm on top vault of skull. ii. Patient referred to Neurosurgery from where he was shifted to Doctor Hospital and Trauma Center. iii. Patient was alive when shifted to private hospital. Iv. Mr. Habibullah son , of Gul Muhammad CNIC 56302-62724513 contacted Police Surgeon Dr. Samajo with the death certificate issued from Quetta Hospital, on the orders of Police Surgeon expiry notes from Quetta Hospital quoted word to word.
' He produced the death certificate of deceased as Ex.P/5-A. P.W-6 is Hamidullah who deposed that on 24.09.2011 his cousin Abdul Salam informed him through phone about the occurrence, whereupon he took his license and proceeded to Civil Hospital Quetta where injured Sharaf-ud-Din was already brought but he succumbed to injuries. He produced the licence No,33320576225 of Kalashnikov having No,19059057. He deposed that on 15.10.2011 accused Muhammad Ummar was arrested and his identification parade was conducted by P.W-3 Muhammad Ilyas in his presence, DSP Hanif Maree and Khair Muhammad SHO. He also produced the identification memo as Ex.P/6- A. P.W-7 Riaz Hussain deposed that on 24.09.2011, the Investigating Officer inspected the site in his presence, where 2 empty shell of 30 Bore Pistol were taken into possession including a piece of blood stained blanket red in colour was also taken into possession, while the wearing shirt of deceased was also produced by complainant which was also taken into possession through recovery memo in parcels Nos.1, 2 and 3 which were sealed and were signed by him and Kamal Khan ASI, he produced the recovery memo as Ex.P/7-A, over which he identified his signature, produced the seal parcel No,1 as Art.P/7-A, specimen of seal as Art.P/2, two empty shells as Art. P/3, seal parcel No,2 as Art.P/4, specimen of seal as Art.P/5, a piece of blood stained blanket as Art.P/6, seal parcel No,3 as Art.P/7, specimen of seal as Art.P/8, and blood stained shirt as Art.P/9, which he also identified correctly. P.W-8 Muhammad Aslam ASI produced the recovery memo of licence as Ex-P/8-A, over which he identified his signature. He also produced the licence as Art.P/10. P.W-9 Naseebullah Constable describe the proceedings of disclosure memo Ex.P/9-A, wherein accused Hazrat Ali has disclosed the commission of alleged incident and has also implicated accused Muhammad Ummar and absconding accused Khair Muhammad alias Kharote to be his accomplices; he fully supported the version of prosecution case by explaining all the details, which has been uttered by complainant Abdul Salam and P.W-3 Muhammad Ilyas who during the identification parade has correctly identified accused Muhammad Ummar vide identification test Ex.P/6-A and accused Hazrat Ali vide identification test ExP/11-D; he also supported the evidence of P.W. 'Kamal Khan; he also produced the disclosure memo as Ex.P/10-A, which minutely enlighten the commission of offence by accused Muhammad Ummar and Hazrat Ali including absconding accused Khair Muhammad alias Kharote. P.W-10 Muhammad Yasin H/C deposed that in his presence in the office of I.O. Accused Muhammad Ummar disclosed that at the midnight of 24.09.2011, he accused Hazrat Ali and Khairo alias Kharote made a plan of dacoity and committed dacoity in Lashthi Petrol Pump, he produced the disclosure memo as Ex.P/1-A, over which he identified his signature. P.W-11 Nasir Ahmed is the Investigating Officer of the case, who also produced FIR as Ex.P-11/A, site memo Ex.P/10-A, inquest report Ex.P/11-C, identification parade of accused Hazrat Ali Ex.P/11-D, recovery memo Ex . P/11-E, FSL report Ex . P/114 ,incomplete challan Ex.P/11-K, second incomplete challan Ex.P/1 1-H, complete challan as Ex.P/11-G, recovery memo Ex .
P/11-F.
5. After close of prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C., wherein they denied the allegation leveled against them by prosecution. They did not opt to record their statements on oath as envisaged by section 340(2), Cr.P.C. Nor to produce witnesses in their defence. The learned trial Court concluded the proceedings by means of judgment dated 10.04.2013 whereby the appellants were convicted and sentenced in the aforementioned terms. The appellants being aggrieved by the impugned judgment preferred these appeals.
6. The learned counsel for the appellants contended that appellants are not nominated in the FIR and alleged incident took place at night and there was no source of light, therefore, identification of appellants by witnesses is not safe and reliable particularly when no features were given; that eye-witnesses are close relatives and being interested witnesses are not worthy of reliance while the remaining witnesses are police officials; the identification parade is also doubtful as the accused were already in police custody and possibility cannot be ruled out that witnesses had seen the accused persons prior to identification parade; that disclosure before investigation officer/ police has no evidentiary value; that delay in lodging of FIR and eye-witnesses Jamil Ahmad and Saddo Khan were given up by prosecution as they were material witnesses, which create doubt and lastly stated that prosecution has not been able to prove its case beyond reasonable shadow of doubt against the appellants as material contradiction exist in the prosecution evidence.
7. On the other hand, learned counsel for the complainant has argued that the statements of eye- witnesses are duly corroborated with each other on material points and no material contradiction exists in their statements; the medical evidence and recoveries effected from appellants supported the ocular account, the crime weapon matched with the crime empties which were secured from the place of occurrence and prosecution has fully proved its case against appellants beyond any shadow of doubt.
8. Whereas learned Additional Prosecutor General Balochistan representing the State adopted the arguments put forth by learned counsel for the complainant.
9. It is the case of prosecution that on 24.09.2011, at about 2.30 a.m. The appellants along with their companion equipped with weapons went to Lashti Petrol Filling Station belonging to complainant situated at Quetta Road Loralai and snatched rupees Rs:87600/- and permitted Kalashnikov besides committing murder of cook Sharaf-ud Din by means of firing with pistol. The appellants are not nominated in the FIR but according to prosecution story that appellants were arrested and during the course of identification parade, P. W-3 Muhammad Ilyas (eye-witness) identified them and appellants also made disclosure regarding commission of offence.
10. The unnatural death of cook Sharaf-ud Din is not disputed as P.W-5 Dr. Malik Safdar Hussain who had conducted medical examination of deceased Sharaf-ud Din on 24.09.2011 at 9.55 a.m., and produced the death certificate as (Ex.P/5-A) but P.W-5 was not cross-examined by defence counsel. But the defence disputed the case of prosecution to the extent that appellants have no concern with the commission of murder of deceased as well as robbery committed at the petrol pump. Prosecution in order to establish the charge against appellants relied upon evidence of eleven (11) witnesses, out of whom two (02) witnesses i,e, P.W-2 Abdul Salam (complainant) and P.W-3 Muhammad Ilyas have claimed to be the eye-witness of the incident. It is an admitted fact that appellants are not nominated in the FIR but allegedly they have been identified by P.W-3 (eye- witness) during the test of identification parades held under the supervision of DSP/SHO on 28.09.2011 and 15.10.2011 respectively.
11. It is evident from the record that there is delay of more than 8 hours in the lodging of FIR on part of complainant. As the alleged incident took place at 2.30 a.m. While the report was lodged at 10.00 a.m. In the morning. According to complainant the delay in the lodging of report was due to taking the injured to Hospital for medical treatment. The explanation put forth by complainant is not convincing as there is nothing on record that complainant had rushed the injured to hospital for medical treatment. According to deposition of A P.W-5 Dr. Malik Safdar Hussain Medical Officer, injured Sharaf-ud Din was brought by Saam-ud-Din and Habibullah in injured condition even no injury sheet either issued by Loralai police or refer chit issued by Loralai Hospital were produced/handed over to P.W-5 at the time of medical examination of injured Sharaf-ud-Din in Civil Hospital Quetta. Thus delay in lodging of FIR has made the case of prosecution doubtful.
(Reliance on PLD 2005 Quetta - page 116.)
12. Now the pivotal question to be answered is whether the appellants robbed rupees Rs,87600/- and permitted kalashnikov from complainant and his Munshi Sado, besides committing murder of cook Sharaf-ud Din by means of firing with pistol by sharing common intention with absconding accused. The case of prosecution rests on deposition of material witnesses viz P.W-2 (complainant) and P.W-3 (eye-witness) who identified the appellants during the test of identification parade held on 28.09.2011 and 15.10.2011, respectively under the supervision of DSP/SHO. The appellants are not nominated in FIR but according to P.W-3 he identified the appellants by their body structure and eye view. Now it is to be seen whether the P.W-3 was able to identify the appellants where at the time of alleged crime accused had muffled their faces and the description of accused and their structure were not mentioned in the FIR as well as in statements recorded under section 161, Cr.P.C. In absence of description of accused in FIR as well as statements, the identification of appellants during test of identification parades, to be the same culprits who have committed the offence, is not believable and conceivable. Moreover the identification parade was not held/conducted in accordance with prescribed rules of law as well as the instructions laid down by Superior Courts. As the identification parade form (Ex.-P/6-A) and Ex.P/11-D) got exhibited by prosecution through witnesses show that the name of all persons with parentage and address have not been mentioned who were present as dummies at the time of identification parade, even the identification parade was not held/conducted under the supervision of concerned Magistrate. According to prosecution identification parades were conducted under the supervision of concerned DSP/SHO namely Muhammad Hanif Main, and witness Syed Khair Muhammad Arif but neither the DSP nor the said Khair Muhammad Arif was examined by prosecution in support of its case. The ncn-compliance of commandments/instructions of Superior Courts while conducting identification parade and non- examination of above material witnesses have made the identification parade defective/doubtful and unworthy of reliance. (Reliance is place on judgment passed by August Supreme Court of Pakistan in case Muhammad Afzal alias Abdullah and others v. The State 2009 SCMR page 436)
13. So far as the recovery of alleged snatched permitted K ilashnikov and rupees Rs,4390/- from the possession of appellant Hazrat Ali, is concerned, the same was also not helpful to the case of prosecution being doubtful. Because P.W-4 who is the recovery Mashir of alleged recovered kalashnikov and amount stated that appellant was arrested from his baitak but in cross- examination replied that he had not entered the baitak. Whereas the description/ details of the snatched notes are not given in the FIR. Since the description of the details of notes are not given in the FIR and Munshi Sado from whose possession amount Rs,87600/- recovered were snatched was not produced/examined by prosecution during the trial therefore it cannot be believed that the recovered amount Rs,4390/- recovered from the possession of appellants were the same notes which were allegedly snatched from petrol pump of complainant. It has also come on record that the recovered kalashnikov when produced and made an article in the Court was found to be rusted. The owner of the kalashnikov was Hamidullah P.W-6 and he produced the licence to the police on 24.09.2011, meaning thereby that complainant being not owner of the kalashnikov had retained the same in his possession, therefore, the possibility cannot be ruled out that the same was produced by complainant to the police to plant the same against appellant in order to strengthen the case.
14. According to prosecution appellants during the course of investigation made disclosure regarding commission of offence and also led the police to the pointation of place of incident, but the discourse could not have been relied being inadmissible. While the place of occurrence was already in the knowledge of the police mere disclosure before police is not admissible until and unless new fact is discovered in pursuance of such disclosure.
15. Furthermore the recovery of two (2) empties of pistol and blood stained blanket is concerned, the same too cannot improve the prosecution case as no crime weapon was recovered from possession of appellants to ascertain that the same were fired with the said weapon by appellants, while the blood stained blanket was taken into possession from the room. According to prosecution evidence that accused had fired upon deceased Sharaf-ud Din while taking him along towards the room, where the complainant and Munshi were asleep. The empty was also recovered outside the room at the place of occurrence, meaning thereby that cook Sharaf-ud Din was fired at outside the room where the empty was lying but surprisingly no blood stained earth has been collected from the place of occurrence and the blanket which was stained with blood was secured from the room.
There is also discrepancy in the deposition of prosecution witnesses and the expert report with regard to the blood stained blanket. As P.W-7 stated that piece of blood stained kambal was taken into possession by means of recovery memo (Ex-P/7-A). He produced piece of kambal in the Court as Article -P/6 whereas in Chemical Expert Report (Ex.P/11-J) got exhibited by Investigating Officer speaks of piece of carpet. Non-securing of blood stained earth from exact place of incident has also made the prosecution story doubtful.
16. Apart from that, it has also come in the evidence of complainant that on hearing firing reports he and Munshi Sado (not examined) were awaken up. According to complainant that permitted kalashnikov was lying underneath his beddings which was snatched by culprits. It has also come in the deposition of complainant that the room where they were sleeping was locked. It is astonishing to note that the complainant's room being locked and also having a kalashnikov in his possession but no resistance nor any attempt was made by complainant, his Munshi and or other witnesses/persons who were present on the spot at the time of alleged incident. Another person namely Jameel who was present on spot at the time of alleged incident was also not examined by prosecution in support of its case. The non-examination of material witnesses namely Munshi Sado, Jameel Ahmed, DSP/SHO and non-securing of blood stained earth from the place of occurrence and delay in the lodging of FIR on the part of complainant has rendered the case as well as the story of prosecution highly doubtful. From the circumstances and evidence collected and led by prosecution it can safely be concluded that the incident not took place in the manner as stated/narrated by prosecution witnesses. The evidence led by prosecution against the appellants is not reliable, trust worthy and inspiring confidence, but the learned trial Court without proper appreciation of evidence convicted and sentenced the appellant which is not sustainable in view of the available evidence. Thus in view of what has been stated and discussed here in above the appeals filed by both the appellants are allowed, consequently the judgment dated 10.04.2013, passed by the Session Judge Loralai, is set aside and the appellants are acquitted of the charge. The appellants be released if not required in any other case. Since the appeals filed by the appellants have been accepted, therefore, the Criminal Revision No,2/Q of 2013 filed by petitioner having no merit is dismissed.