KHAZIR HAYAT, J.-This appeal has been filed by Maqbool Hussain son of Sami Ullah caste Piracha resident of Purana Barafkhana, Multan, who along with his co-accused Mst. Nooran alias Noori was tried by Malik Ahmad Nawaz, Additional Sessions Judge, Multan, under sections 302/34 and 201, P. P.
C. For the murder of Dilbar Khan and for causing the evidence of commission of the said offence to disappear. The learned trial Judge, by his judgment dated 26-7-1980, convicted and sentenced the appellant to death and a fine of Rs. 1,000.00 under section 302/34, P. P. C. And to 3 years' rigorous imprisonment and a fine of Rs. 200.00 or in default to undergo 2 months' rigorous imprisonment under section 201, P. P. C. Also compensation of Rs. 1,000.00 was ordered to be paid by the appellant to the legal heirs of the deceased or to suffer 6 months' rigorous imprisonment in default thereof.
Mst. Nooran alias Noori was also awarded same punishment under section 201, P. P. C. But she being a woman was given the lesser penalty of life imprisonment under section 302/34, P. P. C.
2. Besides the appeal, a reference under section 374, Cr. P. C. Made by the learned Additional Sessions Judge for confirmation of the death sentence of the appellant is also before us. Both Criminal Appeal No. 973 of 1980 and Murder Reference No. 268 of 1980 are being disposed of by this judgment.
3. Me. Nooran alias Noori, co-accused of the appellant, however, has not filed any appeal against her conviction.
4. Briefly stated facts of the case are, that on 15-10-1979 at daybreak, Wali Muhammad (P. W. 3), Lambardar of village Mari Setal, learnt that dead body of an unidentified person was lying in a watercourse, in the fields of Fida Ullah Khan (P. W. 7) near Chah Mahmoodwala. He rushed to the site taking Fida Ullah Khan (P. W. 7) with him. Many persons of the locality besides Amir Bakhsh, the village chowkidar, gathered there. He saw a bleeding wound on the head of the deceased. Leaving the dead body under the care of Amir Bakhsh, chowkidar, Wali Muhammad, Larabardar, repaired to Police Station Saddar, Multan, for report. S. I. Ghulam Abbas Shah (P. W. 13) recorded his statement vide F. I. R. Exh. P. C. At 8-30 a.m. On 15-10-1979, which was nothing more than the simple information that an unidentified dead body was lying in a watercourse within the limits of village Mari Setal. It contained no details whatsoever about the occurrence or the culprits because it was an unwitnessed affair.
5. After recording F.1. R. Ghulam Abbas Shah, S. 1. (P. W. 13) proceeded to the spot. Reaching there at 10-30 a.m., he took out the dead body from the watercourse. He noticed some marks of violence on the right arm and the neck of the deceased besides a wound on the left side of the head. He prepared injury statement Exh. P. P. And the inquest report Exh. P. Q.
6. During the spot inspection, the Investigating Officer noticed some wheel tracks of a rickshaw near the dead body. He sent for a photographer, namely, Haji Dost Muhammad (P. W. 1) who took snaps Exhs. P. R., P. R/1 of the dead body apparently for the purpose of getting it identified and to enquire about his antecedent. Photographs Exhs. P. A., PA/1 and PA/2 of the suspected wheel-tracks of the rickshaw were also taken. He also detected footprints of two persons near the dead body, one of them , appeared to be barefooted and the other wearing "havai chappal". He lifted their moulds and seized them through separate memos. Exhs. P. K. And P. L. The dead body was despatched to the mortuary under the care of Constable Muhammad Siddique (P. W. 11) for post- mortem examination.
7. On 16-10-1979, Dr. Imtiaz Ahmad Khan (P. W. 2) conducted the post-mortem examination on the dead body "of unknown male person" and noticed the following injuries thereon :- "(1) A lacerated wound 8 cm ,x I --cm into bone deep on the left side of head. On dissection left parietal, left temporal and left middle cranial fossa of base of skull were found factured. Skull cavity was filled with blood and lacerations were, present on left cerebrum of brain.
(2) An incised wound 2 cm x --cm x bone deep on anterior of left head, close to hair margin.
(3) Contusion 7 cm x 4 cm on front and let, side of neck. On dissection bruising of muscles of neck underneath this injury was found. There was fracture of hold bone and trachea was highly congested.
(4) A contusion mark 5 cm x 3 cm was present on outer side of right arm."
In the opinion of the doctor, death had occurred due to asphyxia and also due to haemorrhage and shock produced by injury to vital organ (brain). These injuries were found ante-mortem and sufficient to cause the death in ordinary course of nature. All the injuries were caused with blunt weapon except injury No. 2 which was the result of sharp-edged weapon. The time between the injuries and death was within one hour while between death and post-mortem within 48 hours.
8. On 23-10-1979, Maqbool Hussain, appellant, was arrested and a pair of 'havai chappal' p. 7/1-2 was removed from his feet at that time, which was taken into possession vide memo. Exh. P. S. He also allegedly produced a motor-rickshaw No. 9874/MNC with its documents like insurance certificate, registration book and route permit, etc. Which were seized under memo. Exh. P. G. While in Police custody, the appellant also led to the recovery of a hammer P. 3 from a cluster of date- trees which was taken into possession vide memo. Exh. P. F.
9. On 21-11-1979, Noor Muhammad, tracker (P. W. 6) picked up the footprints of the appellant correctly in an identification parade, held in Jail premises, supervised by Mr. Hassan Wasim Afzal, Assistant Commissioner (P. W. 12). Likewise, in another identification parade, the same day, the aforesaid tracker correctly picked out the footprints of Mst. Nooran alias Noori. The proceedings of both the identification parades were recorded as Exhs. P. O. And P. P. By the supervising .Magistrate.
Site plan Exh. P. N. Of the place of recovery of dead body was prepared by Shah Muhammad, Patwari (P. W. 9) and a plan Exh. P. M. Indicating the places of murder and of recovery of chhuri P. 8 and six photographs P. 4/1-6 (showing the appellant and the lady co-accused standing in a friendly way) from a box allegedly lying in the house of Mst. Nooran alias Noori, co-accused. Both the accused, after usual investigation, were challaned.
10. In support of its case, at the trial, the prosecution had examined 13 witnesses. Haji Dost Muhammad (P. W. 1) is a photographer, who prepared the photographs of the deceased, Exh P. R., PR/1 and also photographs Exhs. P. A., P. A/1 and PA/2 of the tracks of rickshaw wheels found near the place of recovery of the dead body. Muhammad Khalil (P. W.4) and Bashir Ahmad (P. W. 5) are the witnesses of almost all the recoveries of the article effected on 23-10-1979 from the possession or at the pointation of the two accused separately. Fida Ullah Khan (P. W. 7) is the witness of lifting the moulds of the footprints from near the dead body. Noor Muhammad (P. W. 6) is the tracker who identified the footprints of the appellant and his co-accused Mst. Nooran alias Noori in two separate identification parades supervised by Mr. Hassan Wasim Afzal, Assistant Commissioner (P.
W. 12). Shabbir Ahmad (P. W. 8) and Shah Muhammad, Patwari (P. W. 9) sketched two plans Exhs. P.
M. And P: N. Respectively. Wali Muhammad, Lambardar (P. W 3) is the first informant. The evidence of the remaining witnesses is of formal nature.
11. From the foregoing details it would appear that there is no direct evidence and this case hinges on the following pieces of "circumstantial evidence"
"(i) The motive Sought to be proved by producing photographs P. 4/1-6, wherein the appellant and Mst. Nooran alias Noori were snapped is friendly poses ;
(ii) Photographs Exhs. P. A., PA/1 and PA/2 of the wheel-tracks of rickshaw taken by Dost Muhammad (P. W. 1) ;
(iii) The incriminating recoveries of hammer P. 3 (not blood-stained), `havai chappal' P.7/1-2 and rickshaw No. 9874/MNC, from the appellant, allegedly witnessed by Muhammad Khalil (P. W. 4) and Muhammad Bashir (P. W. 5) ; and lastly. - '
(iv) The identification of the footprints deposed to by Noor Muhammad, tracker (P. W. 6) and Hassan Wasim Afzal (P. W. 12)."
12. When examined under section 342, Cr. P. C., the appellant professed innocence and did not produce defence evidence.
13. The learned Additional Sessions Judge took pains in analysing the aforementioned pieces of evidence and arrived at the conclusion that "there could be no other person except those who had killed the deceased to have transmitted the dead body to that place and thus they were the accused from whom the weapons of offence have also been recovered, who not only killed Dilbar Khan, deceased, but also disposed of the dead body in the manner that they might also screen themselves from the punishment". On the basis of this finding, the learned trial Court proceeded to convict the appellant and his co-accused Mst. Nooran alias Noori and awarded sentences as indicated in paragraph 1 of this judgment.
14. We have heard learned counsel of both the sides and have gone through the record with their assistance.
15. The learned counsel appearing on behalf of the appellant contended that this case lacks "direct evidence" and the `circumstantial evidence' led by the prosecution miserably failed to connect the appellant with the murder of Dilbar Khan or disposal of his dead body. He further contended that the motive as alleged by the prosecution has not been proved. The recoveries of weapons of offence or rickshaw hardly provided a link in the chain to connect the appellant with the crime. He next submitted that the identity of the dead body was not established and this lacuna alone cuts at the very roots of the case set up by the prosecution. Lastly, he contended that the evidence of identification of footprints of the appellant was highly defective and doubtful and that being so, it has no evidentiary value at all. '
16. First of all, we deal with the last mentioned contention of the learned counsel regarding identification of the footprints which is the "principal item" of evidence in this case.
17. The science, if it be so called, of identification of the human foot--prints is "NOT EXACT", because it has not yet progressed and developed like that of "Identification of Handwriting" or "Identification of Finger Prints" and for this reason the "track evidence" has always been considered as "weak evidence".
18. It is true that in rural areas, some villagers by constant practice develop a knack, to identify the human footprints by having special regard to its measurement, shape and other peculiarities.
Some trackers also get help from one's gait-style if it showed a person's permanent habit o taking steps in a straight line or obliquely or the space one leave generally between two steps. But it cannot be a sure test because many people have a similar walking style and also equal measurement of their feet. Such identifications further present extreme difficulty when the prints are shod (wearing shoes) and not of bare feet.
19. Of late, the Courts of this country have been considering the evidence of a tracker as 'that of an "expert" in the meaning of section 45 of the Evidence Act but its evidentiary value of course depends on the fact that how best it links the accused with the crime beyond doubt, with particular reference to the circumstances of each case.
20. We have been able to lay our hand on sections 41 and 42 of the Punjab Laws Act (IV of 1972) wherein the evidence of a tracker has been recognized and under these provisions the villagers are penalized on the basis of sole word of a tracker, when they fail to help -in tracing out a suspect whose tracks lead from the place of crime to that village. . We are of the considered view that a properly conducted test identification may be of some evidentiary value but it is certainly not safe to accept a tracker's opinion as the last word, in judicial proceedings, against an accused person.
21. Rule 26 of Chapter XXV of Volume III of Police Rules, 1934, lays down precautions and instructions regulating the procedure of procuring and preserving the evidence of footprints and other marks found on the scene of the crime for the guidance of Investigating Officers. Its salient features are summarized as under;-
(a) Footprints found on the scene of crime being of the first importance in the investigation of crime should be carefully preserved so that they may not get mixed or distorted due to the visit of the people at large ;
(b) The tracker should be shown suspected footprints on the scene of crime in order to provide him opportunity to retain in his mind its impression as to their nature, measurement and peculiarity so that he may be able to pick out footprints in the test identification held subsequently having resemblance with those he had seen earlier ;
(c) The test identification parade must be attended by a Magistrate ;
(d) The Magistrate would possibly make an effort to get the ground for holding the "test parade" prepared similar to that of the scene of the crime for providing a fair chance to the tracker ;
(e) In case the tracker identifies the footprints correctly, he would then be required to. Make a statement before the Magistrate giving reasons on which he based his opinion ; (f ) The moulds of the footprints found on the scene of crime and those indentified in the identification parade should be lifted and preserved for production at the trial for comparison by the Courts ; and we add from our side that ;
(g) It must be ensured that the tracker did not have an occasion either to see the suspect walk or his footprints in between the day of his arrest till the day the test was held."
22. By applying the aforementioned tests to the identification parade held in the instant case, we find that it suffered from various defects enumerated hereunder.
(i) No reliable evidence is on the record to show that two sets of the footprints allegedly found near the place of recovery of the dead body were shown to Noor Muhammad, tracker (P. W. 6). Ghulam Abbas Shah, S. I. (P. W. 13) and Fida Ullah Khan (P. W. 7), no doubt, have stated that Noor Muhammad, tracker, was called at the spot, but Noor Muhammad (P. W. 6) has categorically denied that he was called or shown at the spot any footprints. If the tracker had not seen any footprint at the scene of offence then the question arises, which footprints he - had gone to pick out in the test identification parade because he had no data preserved in mind before going to the identification parade to pick up the one. In these circumstances, the fact that he bad correctly identified the footprints of the appellant and his co-accused, suggests that this witness must have seen them walking after their arrest and before the day, the identification parade was held. The record shows that the appellant and his co-accused were arrested on 23-10-1979. They were kept at the police station for one day and then produced twice in the Court of a Magistrate, that is, on 24-10-1979 and then on 7-11-1979, for obtaining their remand to judicial custody prior to the holding of identification parade. So there was every possibility that the foot--prints and the walking style of the accused persons was seen by the tracker on these occasions.
(ii) There is nothing on the record to show if the supervising Magistrate ascertained about the nature of soil of scene of offence or had attempted to get the "test ground" prepared accordingly.
Rather the evidence on record proved to the contrary. Hassan Wasim Afzal, Assistant Commissioner (P. W. 12) has stated that the appellant was made to walk during the test on a sandy track, while his co-accused Mst. Nooran alias Noori walked on the ordinary ground.
(iii) The Magistrate supervising the parade did not record a statement of the tracker, asking him the reasons for identifying the footprints. The tracker has candidly conceded in his cross- examination that he was shown 'havai chappal' with a cut on the s61e before going to the identification parade and with the help of that special mark be was able to identify the footprints of the appellant. This admission by him has rendered the "test" almost worthless.
(iv) The moulds of the footprints alleged to have been lifted from the scene of offence or from the test ground were not produced at the trial for inspection and comparison by the Court."
23. As observed earlier, the identification of shod footprints had always( been considered to be "valueless" because it does not, rather, cannot show any peculiarity of size and shape of the foot of a particular person. It may be illustrated by an example. Supposing a teen-ager son walks with his father's shoes in his feet. It will be extremely difficult to say that those shod prints were of the father or his son.. In the instant case, havai chappal P. 7/1-2 is a standardized manufacture which rendered the identification almost impossible. We are supported in this view by a decision in Ghulani Mustafa and another v. The State 1971PCr.LJ775, wherein it was held :- "Prints were shod and therefore it has no evidentiary value-excluded from consideration."
24. Next comes the motive. The prosecution has sought to prove the motive through photographs P. 4/1-6 wherein the appellant and his co-accused lady are shorn together in romantic postures.
These photographs have been produced suggesting the Court to make an inference that the lady had a liaison with the appellant and, therefore, both the lovers wanted to remove Dilbar Khan from their way and they ultimately liquidated him. The prosecution could have' proved these photographs by producing that photographer who took the snaps and prepared these photographs to say that those snaps were taken before the arrest of the accused but he has not been produced. Non-production of this witness gives rise to a suspicion that after the accused were arrested, the police might have got their photographs prepared under instructions. A grievance in these terms has been made by the co-accused Mst. Nooran when she. Was examined under section 342, Cr. P. C. These photographs were admittedly not recovered from the appellant.
The appellant, when examined under section 342, Cr. P. C., was not put any question regarding these photographs and as such he was afforded no opportunity to explain his position vis-a-vis these photographs. Under 'section 342, Cr. P. C., it is obligatory that a Court shall, for the purpose of enabling the accused to explain any circumstance appearing in the . Evidence against him, put questions with regard thereto, after the witnesses for prosecution have been examined. Because of this omission, therefore, whatever may be the effect of these photographs that cannot be utilized against the appellant.
25. There now remains the evidence pertaining to the recovery of hammer P. 3 and seizure of Rickshaw No. 9874/MNC from the appellant. As observed earlier, all the documents pertaining to the rickshaw are in the name of one Muzaffar Din. It is not understood as to how and in what capacity the appellant came into possession of that rickshaw when admittedly he was not its owner. No driving licence from his possession has been recovered to show if he knew driving ; or that he was a driver by profession ; or that he was ever seen driving a rickshaw much less the Rickshaw No. 9874/MNC said to have been recovered from him. This riddle could have been easily solved by producing the owner, namely, Muzaffar Din. We have noted with deep concern that this Muzffar Din was neither associated during the investigation of this case nor was he cited as witness, for reasons best known to the prosecution. Not only this, rather the fact of .Its recovery has not been satisfactorily proved. Both the recovery witnesses, namely, Muhammad Khalil (P. W. 4) and Bashir Ahmad (P. W. 5) did not say a word about the recovery of rickshaw or hammer P. 3 (not blood--stained) from the appellant. Similarly, the recovery of chhuri P. 8 (not blood--stained) alleged to have been recovered from Mst. Nooran alias Noori is doubtful, because one recovery witness was declared hostile while other kept silent on this point. In these circumstances, virtually these recoveries are of no consequence.
26. Lastly, we find that the learned counsel rightly pointed out that there was no evidence on the record to establish the identity of the dead body that it was that of Dilbar Khan, husband of Mst.
Nooran alias Noori, co-accused. It appears that the Police had first presumed (without being proved) that the dead body was of Dilbar Khan and on this premises, with the help of photographs P. 4/1-6, raised a superstructure of liasion between the appellant and Mst. Nooran alias Noori and their interest to eliminate him. It is strange that even Mst. Nooran alias Noori was not asked by showing to her the said photographs of the dead body, if those were of her husband Dilbar Khan ?
This omission has surely shaken the very foundation of the prosecution story.
27. While considering the facts and circumstances of this case. We were conscious to the well- known Maxim: "The witnesses can tell lie but the circumstances cannot." Circumstances certainly raise violent presumptions, but conviction cannot be based on circumstantial evidence unless and until all reasonable hypothesis consistent with the innocence of the accused are completely excluded. In the instant case the circumstantial evidence adduced by the prosecution was not conclusive in nature. Which could lead to no other inference except the guilt of the accused. For this view we have the support of Supreme Court decision in Mst. Sairan alku Saleema v. The State PLD 1970SC56The relevant part of the judgment is reproduced as under :- "As regards conviction based on circumstantial evidence alone, the rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt."
28. For the foregoing reasons, the appeal of the appellant (Cr. A. No. 973-1980) is accepted and the appellant is acquitted. He shall be released from the jail forthwith if not required in any other case.
Fine, if any, recovered from him shall be refunded to him. The death sentence awarded to the appellant is not confirmed.
29. When we were considering the evidence against the appellant we found that the co-accused Mst. Nooran was also convicted upon the same or similar evidence " which has been held by us to be unsatisfactory and unreliable. We feel that she is also entitled to the benefit of doubt. She had not filed any appeal against her conviction. In Mangal Singh v. Emperor AIR 1934 Lab. 346 the High Court having come to the conclusion that the evidence of the approver was not corroborated in material particulars, acquitted all the three accused including the one who had not appealed. We, therefore, by invoking /D the inherent as well as revisional jurisdiction of this Court under section 56 ~1 read with section 439, Cr. P. C., give benefit of doubt to her as well. Her conviction and sentence are consequently set aside. She would be release immediately if not wanted in any other case.