FAIZ MUHAMMAD KHAN, J.-----Miskeen son of Gul Muhammad, aged 22 resident of Mohallah Pir Gulab Shah, Peshawar City, and Ayub son of Yaqoob, aged 24, resident of village Taimoor Para, Peshawar City, stood trial in. The Court of Additional Sessions Judge, Peshawar, on charges under section 302/34/393/398, P. P. C. For committing, in furtherance of common intention, on I8-1-1979 at 'Peshin Wela' within the limits of village Taimor Para, the murder of Alam Gul and for attempting to commit robbery while armed with deadly weapons. On the conclusion of the trial, however, the learned trial Judge, finding Ayub accused not guilty acquitted him of the charges levelled against him, finding Miskeen accused guilty of committing the murder of Alam Gul convicted and sentenced him to imprisonment for life. Since Miskeen accused was found possessing no property, no fine was imposed on him by the learned trial Judge, who also acquitted him of the charge relating to robbery.
2. Miskeen, the convicted-accused, has filed this appeal against his conviction and sentence aforesaid. He was also served with notice by this Court as to why his sentence of imprisonment for life be not enhanced to that of death. This judgment would dispose of both the appeal and the suo motu criminal revision.
3. The prosecution story as revealed at the trial was that Alam Gul (deceased) and Gul Rahim (P. W.
8) were Afghan Nationals. They both were students. During Winter Vacations they came to Pakistan to spend the Vacations. While in Pakistan both of them decided to work on wages. They contracted with Ghulam Nabi to dig `lakhti' for a lump sum amount of Rs. 70.
On the day of occurrence when both of them were busy digging 'Lakhti' Miskeen, the accused- appellant, approached them and asked them at what rate they would dig `lakhti' ? He was informed of the rate. Miskeen, the accused-appellant, then took Alam Gul (deceased) with him to point out to him the 'lakhti' which Alam Gul (deceased) and Gul Rahim (P. W. 8) were required to dig for Miskeen on wages. After 15/20 minutes, however, Gul Rahim (P. W. 8) heard a report of fire and the deceased calling out his name and shouting that he was killed. Gul Rahim (P. W. 8) immediately rushed towards that direction. He saw Alam Gul (deceased) running towards him.-- The deceased then fell on the ground. When Gul Rahim (P. W. 8) reached near Alam Gul.
(deceased), the latter informed him that the person who took him for digging 'Lakhti' wanted to snatch his wrist-watch and on his refusal to hand over the watch, he fired at him.
Alam Gul, in injured condition, was being taken on cot, supplied by Ghulam Nabi (P. W. 12), to the hospital but he died on way. His (lead body was placed near Nasir Pur Railway Station, where Ehsanuddin Khan S.I., (P. W. 10), while on 'gashat' of the Ilaqa, arrived, to whom Gul Rahim (P. W. 8) made the first report Exh. P-A/1, which was reduced in the form of `Murasila' and sent to P. S. Saddar where F. I. R. Exh. P. A. Was entered.
4. Miskeen, the accused appellant, while in police custody made a confessional statement before the Magistrate involving himself and Ayub, the acquitted accused, in the crime. The identification parade was also held at which Gul Rahim (P. W. 8) had picked out Miskeen, the accused appellant, as the person who had committed the crime. The prosecution, at the trial, mainly relied on the statement of Gul Rahim (P. W. 8), the dying-declaration of the deceased made before Gul Rahim (P. W. 8), the confessional statement of Miskeen recorded by Malak Muhammad Isa (P. W. 11) and the identification parade held by Abdul Qayyum (P. W. 13) at which Miskeen was picked out by Gul Rahim (P. W. 8) as the person who committed the crime. The learned trial Judge, however, did not rely on the confessional statement made by Miskeen for his conviction. Relying on the statement of Gul Rahim (P. W. 8), the oral dying-declaration of the deceased made before this witness and the statement of Abdul Qayyum (P. W. 13), who had conducted the identification parade, the learned trial Judge convicted and sentenced Miskeen as aforesaid.
5. Before dealing with other evidence produced at the trial and the agreements we would first like to deal with the contention of Mian Muhammad Ajamal, the learned counsel for the State, that the confessional statement of accused-appellant may also be relied upon in this case. We may at this stage mention that this confessional statement was excluded from consideration by the learned trial Judge because it had come from, the mouth of the accused appellant after he had remained in police custody for four days. The other reason given by the learned trial Judge for the exclusion of the confessional statement from consideration was that no independent evidence was available on the record to corroborate the same. Besides, we have also noticed two other facts, which totally destroy the evidentiary value of this confessional statement. One fact is that inherently it is untrue because had the shot been fired by the accused appellant in the circumstances mention by him in his so-called confessional statement, then the charring marks should have been present on the clothes as well as the wound of the deceased. No such marks were noticed by the doctor on the clothes or the wound of the A deceased or otherwise he would have mentioned them in the medical report. The second fact is that the injury received by the deceased was on his right leg and not in his abdomen as stated in the confessional statement. These facts are sufficient to prove the non-voluntary nature of the confessional statement of the accused-appellant, which was retracted at the trial. We would, therefore, like the learned trial Judge, keep the confessional statement of the accused-appellant out of consideration.
6. The learned counsel for the accused appellant argued that the motive for the offence was not only weak but was also false because had the intention of the accused-appellant been to snatch the wrist-watch from the deceased, as claimed by the prosecution, then he should have taken away the watch after committing the crime and when no other person was present on the spot to prevent him from fulfilling his design. This argument has not impressed us because sometime offences are committed without strong motive. The possibility can also be that on account of his young age the accused appellant may have got scared after committing the crime and be, therefore, instead of snatching the watch from the deceased, who was then alive, may have decided to run away.
7. The learned counsel for the accused appellant further argued that this was an un-witnessed occurrence and the presence of Gul Rahim (P. W. 8) on or near the place of occurrence at the relevant time was highly doubtful. He submitted that the medical evidence brought on record did not support the testimony of Gul Rahim (P. W. 8). He contended that the identification parade held in this case was also doubtful and that Gul Rahim (P. W..8) did not utter a word in his statement at the trial that he had identified the accused appellant at that parade.
8. The learned counsel for the State argued that the presence of Gul Rahim (P. W. 8) on the spot at the relevant time was proved by the statement of Ghulam Nabi alias Nabi Bakhsh (P. W. 12), a disinterested witness. He also argued that it was a daytime occurrence and Gul Rahim (P. W 8) has consistently charged, the accused appellant for the commission of the crime. He contended that Gul Rahim (P. W. 8) was also a disinterested witness having no motive to falsely implicate the accused appellant in the crime or the falsely substitute him for the real culprit. He urged that not only the conviction of the accused appellant may be maintained, but the sentence awarded to him by the learned trial Judge may be enhanced to that of death.
9. Gul Rahim (P. W. 8) is the star witness in this case, He claimed his presence with the deceased when the accused appellant on the relevant day and time approached them for engaging them for the work of digging of `Lakhti'. He narrated almost the same story at the trial which he had narrated at the time of making the first report. He admitted that the accused appellant was not known to him before the occurrence. For that reason, probably, he had not mentioned his name to the police in his first report. All that he had stated in the first report was that a person aged 19/20, wearing `Malesbia' clothes and having a black colour approached them and took Alam Gul deceased with him. He had also stated in that report that after Alam Gul deceased went with that person, he heard a report of fire and Alam Gul crying that he had been killed. He further stated that the same person was charged by the deceased for firing at him in his oral dying-declaration made before him (Gul Rahim P. W. 8). At the trial, however, Gul Rahim (P. W. 8) named the accused- appellant as the person who had committed the murder of Alam Gul, without explaining as to how he was able to name him at the trial and who told him his name.
10. As already observed, the prosecution mainly relied on the statement of Gul Rahim (P. W. 8). It was he who claimed that he was present with the deceased when the accused appellant approached them and took the deceased with him for the purpose of digging `Lakhti'. It was he in whose presence the deceased had allegedly charged the person who took him for the purpose of digging `lakhti' for effectively firing at him. It was he who identified the accused appellant as the person who had taken the deceased with him for the purpose of digging `lakhti'. It was he who made the first report of the occurrence to the police on the basis of which the police had initiated action. The main question to be determined in this case, therefore, is whether or not what was claimed and stated by Gul Rahim (P. W. 8) at the trial was a reliable account of the occurrence and could be accepted by the Court as trust worthy evidence for convicting the accused appellant on a murder charge.
11. The presence of Gul Rahim (P. W. 8) at the place where some time before the actual incident he and the deceased had started digging 'lakhti' for Ghulam Nabi alias Nabi Bakhsh .(P. W. 12), which place was at a distance of 570 paces from the place of occurrence, stands established on the record by the statement of Ghulam Nabi alias Nabi Bakhsh (P. W. 12), a totally disinterested witness.
This witness bad engaged the deceased and Gul Rahim (P. W. 8) for digging `lakhti' on contract basis. He had also supplied them with lunch at about `Peshin Wela' time and it was about half an hour thereafter that Gul Rahim (P. W. 8) had informed this witness in his house about the occurrence. Although we have no doubt in our mind that on the relevant day Gul Rahim (P. W. 8) was present at a distance of 570 paces from the spot some time before the occurrence, but this fact alone would not constitute sufficient evidence to prove that the charge laid by him on the door of the accused-appellant was correct or that what he had stated at the trial was nothing but a truth, Gul Rahim (P. W. 8) had not seen the occurrence with his own eyes. His charge that the accused appellant was the person who bad committed the crime depended on the oral dying declaration of the deceased made before him and his identifying the accused-appellant at the identification parade. We have, therefore, to see whether or not in this case the prosecution was able to establish on the record beyond reasonable doubt the facts that the deceased had in fact made oral dying declaration before Gul Rahim (P. W. 8), as claimed by him, and that the identification by this witness of the accused appellant at the identification parade was reliable.
12. It has come in the statement of the Investigating Officer as well as mentioned in the site plan (Exh. P. B.) that the place where Gul Rahim (P. W. 8) was working at the relevant time was at a distance of 570 paces from the place where the deceased was-allegedly teed at Sugarcane crop and the gardens were intervening between those 6vo places, which would mean that a person standing at one place could not have been seen by a. Person working or standing at other place.
Being a day time silence must not have been prevailing around the place of occurrence or the place where Gal Rahim (P. W. 8) was working. In such circumstances and at such a distance it was unbelievable that Gul Rahim (P. W. 8) would have been able to hear the deceased calling out his name, or to have recognised- his voice. His running towards the deceased, therefore, was jf not out of question, at least doubtful. So was doubtful his version that the deceased had made before him dying declaration charging the accused appellant for the crime.
13. Dr. Liaqat Ali (P. W. 9), who had done autopsy on the dead body of Alam Gul, gave a probable time between injury and death as 10 to 20 minutes. In cross-examination he admitted that in such like cases the injured person could remain in his senses for 6 to 10 minutes. The deceased was allegedly fired at from point No. 1 and from point No. 2 to point No. 3 there were found on the ground the drops of blood. Point No. 3 in the site-plan was the place where the deceased had fallen on the ground. The distance between point No. 2 and point No. 3 was 270 paces, which the deceased had covered after having received injury on the right leg (upper thigh). Such a distance with leg injury - must have been covered by the deceased in about 8 to 10 minutes, which would mean that when the deceased had fallen on the ground at point No. 3, he must have, by then, lost his senses, and would not have been in a position to make any dying-declaration, as claimed by Gul Rahim (P. W.
8). The version given by Gul Rahim (P. W. 8) at the trial in this regard, if not unbelievable, is highly doubtful.
14. The medical evidence also does not support the testimony of Gul Rahim (P. W. 8). It was stated by him at the trial that the accused appellant had approached him and the deceased when they were busy taking their meals. He also stated that the deceased was taken by the accused- appellant with him for digging 'lakhti' when the former had already finished with his lunch. The medical evidence, however, suggested that the stomach of the deceased was empty. This was a material contradiction between the statement of Gul Rahim (P. W. 8) and the medical evidence, which remained unexplained. This circumstance leads us to the conclusion that the deceased must have died much earlier than the time shown by the prosecution and being an unwitnessed occurrence the story of the decease making a dying-declaration before Gul Rahim. (P. W. 8) was only a concoction.
15. In the first report made to the police Gul Rahim (P. W. 8) had not mentioned any significant feature or mark possessed by the assailant on the basis of which be could identify him later. All that he had mentioned in the report was that the assailant was wearing `Malatia' clothes, appeared to be 19/20 years old and was having a. Black colour. These things were not so significant as could enable him to identify the assailant after some days of the occurrence. At the trial Gul Rahim (P. W. 8) also did not utter a word in his statement that he had, and if so on what basis, picked out the accused appellant as the real assailant at the identification parade, which was also held after many days of the arrest of the accused appellant in doubtful circumstances.
We, therefore, attach no importance to the identification parade held in this case, nor to the identification of the accused appellant by Gul Rahim (P. W. 8) at that parade.
16. For the reasons aforesaid a doubt has arisen in our mind as to the truthfulness of the testimony of Gul Rahim (P. W. 8) furnished at the trial. Once that testimony is kept out of consideration, there is no other evidence on the record to connect the accused appellant with the crime.
17. We are, therefore, of the view that the prosecution has not been able to prove its case against the accused appellant beyond reasonable P doubt and giving him the benefit of doubt, we, while accepting his appeal, hereby acquit him. He shall be set at liberty forthwith, if not required in any other case. The notice in suo motu revision is discharged.