MUHAMMAD HALEEM, J.--Appellant Shaft Mohammad stands convicted under section 396, P. P. C. for causing the death of Rustomali while committing dacoity and also under section 13 (d) of the Arms Act for being in possession of an unlicensed fire-arm and sentenced to death on the first count and two years' rigorous imprisonment on the second count. Ghulam Mustafa was also tried along with the appellant but he was acquitted vide judgment dated 16th April 1970. The appellant has filed this appeal to challenge his conviction while the learned Sessions Judge, Larkana has also referred the case for the confirmation of his death sentence. This judgment will dispose of both the appeal as well as the reference.
2. Ijaz Ali, who resided in Warah, engaged on hire a jeep from Ghulam Murtuza Khan for bringing onions from a place known as Lalu Raunk. While returning from there at 8 p. m. on 8th March 1969 on the public road near the bridge of Sodhar Wah, he saw seven persons sitting on the bridge armed with weapons. No sooner the jeep reached the bridge these persons shouted to stop the jeep and fired at it; one of the bullets struck the driver, Rustomali who slumped in his seat and died immediately and the jeep then stopped. Thereafter these persons surrounded the jeep and ordered the occupants to come out, whereupon they alighted and at the point of the rifles, they took a watch and Rs, 65 from Ijaz Ali, Rs, 2.50 from Gulsher, cleaner of the jeep and also removed the watch of deceased Rustomali. They then left the place. Ijaz Ali raised cries which attracted the residents of village Kando who saw Rustomali lying dead in the jeep. Besides Ijaz Ali, Gulsher and the deceased, there were two other occupants, namely Khudabux and Muhammad Haneef. None of these dacoits were known to Ijaz All or any of the occupants. Leaving these persons at the spot Ijaz Ali proceeded to Warah and informed Ghulam Murtuza as to what had happened. He then went and lodged the report (Exh. 13) at Police Station Warah at 10-45 p.m. the same night. In the report, Ijaz Ali also gave the details of the articles taken away by the dacoits. The appellant was arrested on 12th March 1969 from his but in village Kumbh, which is 4 miles away from the place of incident. Wazir Muhammad S. D. I. Nasirabad, noticed the incoming prints to the place of incident and tracked them, which ultimately led to the but of this appellant and the one acquitted. The appellant was put to identification test on 13th March 1969 and he was picked out by Ijaz Ali and Gulsher in the presence of Head Munshi, Muhammad Bux. On the same day, tracker Mitho (P. W. 6) picked out his naked prints on 14th March 1969 in the presence of mashir Dhingane (P. W. 5) he produced a watch from his but which was lying hidden in its roof. This watch was alleged to belong to the deceased and was picked out by Ghulam Murtuza (P. W. 8) in the identification test held on 20th March 1969 from amongst four other watches. This watch was of Camy make and was described as such in the F. I. R.
3. The autopsy on the dead body of Rustamali disclosed two bullet wounds, one of entry and the other of exit and the cause of death was opined to be due to the internal damage caused by the injuries which were sufficient in the ordinary course of nature to cause death.
4. In defence, the appellant denied the prosecution case and alleged that the watch was foisted on him and the witnesses had deposed falsely against him though he did not give any reason why they were doing so. He led no evidence in defence.
5. The conviction of the appellant rests on the ocular testimony of Ijaz Ali and Gulsher, recovery of the watch belonging to the deceased and the identity of the naked prints. Ijaz Ali when examined in the trial Court stated that the faces of the dacoits were muffled and he did not recognise anyone of them. He also expressed his doubt as to whether the appellant was a member of the gang of dacoits who committed dacoity. He also denied having picked out the appellant in the identification parade. The learned Public Prosecutor did not cross-examine him with the contents of the F.I.R. with a view to impeach his credit and to get him declared hostile. He was also not cross- examined by the Defence Counsel but the trial Court appended a note in his deposition that "he appears to have been tampered with". Similarly Gulsher also did not support the prosecution case as to the identity of this appellant. He softened his testimony by admitting that the dacoits had partially covered their faces and that he had seen the faces of only two of the dacoits in the light of the jeep though earlier in his statement he had stated that he had a torch with him. He even denied the fact that he was asked to identify the appellant and after repeated questioning he halfheartedly admitted that he picked out two persons in the test and one of them was the appellant. He again stated that he cannot say whether the appellant and the other, whom he had identified in the parade were the persons who had committed dacoity. He was then declared hostile and cross-examined. Again he stated that the faces of the dacoits were muffled and when the jeep stopped its light went off; it was a dark night and he could not identify the appellant as one of the persons committing dacoity. His lower Court deposition was transferred to the Sessions file under section 288, Cr. P. C. and even in this statement he has admitted that the faces of the dacoits were muffled and he could not recognise anyone in the darkness as the light of the jeep- went off as soon as it stopped. This statement is also not helpful to the prosecution. The other two occupants of the jeep, namely Khuda Bux and Muhammad Haneef, were given up but no reason Was assigned, However, before the trial Court the learned Public Prosecutor stated that they were also won over and were not examined for this reason. In this state of evidence it is not possible to hold that the appellant was identified beyond reasonable doubt as one of the persons concerned in the commission of dacoity.
6. The trial Court has held that both these witnesses were won over; nevertheless it placed reliance on their identification of the appellant in the test held 5 days after the occurrence and accepted their testimony. It is the identification of the appellant in Court, upon which his participation in the crime can be relied on and not his earlier identification in the parade. The latter is merely corroborative evidence and cannot by itself establish the identity of the appellant. It only goes to strengthen the identification of the appellant in Court. We are unable to accept the appraisal of the evidence of these two witnesses by the trial Court and once this evidence is eliminated the presence of the appellant becomes doubtful.
7. The next piece of evidence is the recovery of the watch at his instance. This is sought to be established on record by the evidence of Dhingano, before whom it was alleged that the appellant had taken it out from the roof of his hut. This witness in his cross-examination disclosed that he was a private servant of the S. P. and also a contradiction has been brought out to the effect that this witness had seen the appellant for the first time in his village, though in his examination-in- chief he stated that appellant Shafi Muhammad was under arrest and he volunteered to produce a watch and thereafter took him and the police to his village which was 4 miles away from Warah town. We fail to see why a servant of the S. P. should be made a recovery witness and even otherwise he has not supported the prosecution case if his admission was given due effect. There is also no distinguishing feature in the watch of the deceased. In the F. I. R. it is merely described as "one watch of deceased Rustomali of company with white dial and black belt". This watch was not mixed with other similar watches of the same make and it could not have, therefore, been difficult to pick out this watch from amongst the other watches of different makes. If the identification of the watch was to be given any effect, then it should have been mixed up with the other watches of the same kind with a view to ensure its identification as the property of the deceased. No other evidence was led to establish that this watch was purchased by the deceased or that there was any identification mark to establish its ownership. Under the circumstances it is not possible to place any weight on the identification of this watch by Ghulam Murtuza. The trial Court gave weight to the identification of the watch upon the ground that Ghulam Murtuza had seen the deceased wearing this watch for the last 8 months. It, however, did not consider the flaw in the identification of the watch but merely acted on his apse dlxit. It also accepted the evidence of the mashir without weighing the features pointed out by us. The recovery and the identification of the watch is thus not free from suspicion.
8. The last piece of evidence against the appellant is the' identification of his naked footprint. This is a very weak type of evidence and by itself carries no weight. No cast of the naked footprint found at the place of incident was prepared and accordingly we are inclined to view that points of similarity cannot also be determined with any reasonable certainty, by merely looking at the print in the test.
9. The trial Court has relied for the conviction of the appellant upon the cases reported as Billmoria alias Muhammad Husain v. State and Qasim v. State . We would, however, like to point out the observations of Cornelius, C. J. as he then was, in the case of Hamida Bano v. Ashiq Husain at page 123 of the report :-- "They have supported this opinion by reference to two recent pronouncements of this Court in the cases of Rahmat v. The State PLD 1959 SC (Pak.) 109 and Niaz v. The State PLD 1960 SC 387 and the citation indicates that, speaking with due respect, the learned Judges have not borne in mind the principal consideration which governs the use of the decision in one case as guidance in another. Everything said by this Court in a judgment, and more particularly, in a judgment in a criminal case, must be understood with great particularity as having been said with reference to the facts of that particular case."
Viewed in this light, no guidance can be had from precedents in criminal cases.
10.For these foregoing reasons we are of the view that the prosecution has failed to establish its case beyond reasonable doubt against the appellant. We would accordingly set aside the conviction and the sentences imposed therefor and acquit him. The reference is accordingly rejected and the appeal is allowed. The appellant is ordered to be set at liberty forthwith unless1 2 3 required in some other case.
11.At the conclusion of the hearing we had announced the above conclusion and the above are the reasons for it. PLD 1958 SC (Pak.) 313 PLD 1967 Kar. 233 PLD 1963 SC 109