' The appellant above-named, being aggrieved by judgment dated 29th March, 1981, of the learned IIIrd Additional Sessions Judge, Hyderabad whereby the appellant has been convicted under section 302, P. P. C. And sentenced to imprisonment for life has preferred this appeal on the following fact and grounds :-
2. The prosecution story is that complainant Ibrahim is driver and used to drive Jeep of Ali Bux Junejo. Ali Bux used to reside in village Naoon Kot and he had also a bungalow at Sanghar. Ali Bux was Khalif of Pir Sahab Pagaro. In 1970 election, he left pir Sahab Pagaro group and joined another party in those days called Peoples Party. About 7 years ago, at about 9 a. m. Ali Bux accompanied with complainant Ibrahim driver and one P. W. Janoo left his bunglow and boarded a Jeep. They went to cattle Piri, where they stayed for fifteen minutes. Ali Bux had a talk with his servant there.
Then they returned. At their return, on way they reached near shop of Abdul Karim Leghari, in Shahi Bazar. His Kamdar Ranjho met him and demanded money for payment for labourers, where on Ali Bux told him to go to shop of Arz Muhammad and then the complainant started the Jeep. Hardly he covered 4 or 5 aces, then, they saw 5 persons wearing Ajaraks round their shoulders, ho came in front of Jeep. Their faces were open. The complainant saw their faces, One was wearing Gheroo clothes and having a small beard. That man came in front of the Jeep and wished Ali Bux and gave indication for stopping the Jeep. The complainant did not stop the Jeep as speed was already slow. That man took out a pistol from Ajarak and fired shot, which hit Ali Bux on the chest. Ali Bux fell down on shoulder of complainant. Complainant stopped the Jeep. Complainant and Janoo immediately got down from the Jeep and tried to catch the culprit and also raised cries. All the five persons aimed pistols at complainant party and two of them fired one shot each in the air. Ranjho, Majho, Loung and Roopa came there and saw the incident. All the culprits then took to their heals and went away in an adjoining lane. It was Friday and except few shops, all the shops were closed and there was no crowd in the bazar. The complainant gave the facts to the P. Ws. And found that Ali Bux was alive, but not able to speak. Complainant asked Ranjho to go to Karim-dad and inform him of this incident. The complainant alongwith Roopa, Loung, Janoo and Majnoo took deceased in the Jeep to Sanghar Hospital. Doctor examined the injured and informed, that the injured had succumbed to injuries. The complainant left the witnesses in the hospital and himself went in same Jeep to Sanghar Police Station and lodged F. I. R., which was registered as crime No, 91 of 1973. Then the police officers, viz. Yaqoob Khan, Fazalur Rehman and Mir Muhammad investigated the matter and then the case was challaned.
3. The prosecution has led the evidence, of complainant Ibrahim Exh. 12, eye-witnesses Janoo Exh.
14, Exh.,15. P.W. Loung, Exh. 16 Mashir Haji Khan, Exh. 18 P. W. Majnno, Exh. 20, P. W. Ali Muhammad, Exh.
30 P. W. Hamzo, Exh. 32, P. W. Ooor Muhammad, Exh. 39, P. W. Ghulam Jeelani, Exh. 41 the process- server P. C. Mehran, Exh. 48 P. W. Muhammad Yaqoob head munshi, Exh. 52 S. H.O. Yaqoob Khan, Exh. 53 P. W. Sardar Ali, Exh. 55 P. W. Mir Muhammad, Exh. 66 Dr. Nabi Bux Qazi, Exh. 70 P. W. Abdul Rashid Exh. 71 C. W. Ranjho, Exh. 73 P. W. Faiz Muhammad, Mukhtiarkar, Exh. 79 P. W. Ghulam Muhammad Mukhtiarkar, Exh. 81 P. W. Maqbool, Exh. 87 P. W. Muhammad Ismail, Exh. 88 P. W.
Bakadar.
4. The appellant in his statement under section 342, Cr. P. C. Denied all the allegations of the prosecution and further stated, that the prosecution witnesseli are interested and as such they have deposed against him. The appellant further submitted, that he was innocent and involved due to political enmity and further stated, that P. W. Janoo and Ranjho know him previously. The appellant produced voters five list of Choteyaroon as Exh.
94.
5. The learned trial Court, after the appraisal of the evidence produced by the prosecution and for the reasons given in its impugned judgment acquitted 4 co-accused and sentenced the appellant as mentioned hereinabove and since one of the co-accused Khattan was made approver, his case was separated from the rest of the accused in trial Cort.
6. The appellant above-named being aggrieved by the impugned judgment has preferred this appeal on the grounds mentioned in the memo. Of appeal.
7. The learned Advocate for the appellant in addition to the grounds raised in the memo. Of appeal submitted before me, that approver Khatten was not at all examined by the prosecution before the trial Court. He further submitted, that the identification of 4 other accused by prosecution witnesses was not believed by the learned trial Court but in the case of present appellant identification by the said prosecution witnesses has been believed, without any cogent reasons. The learned Advocate for the appellant further submitted, that the name of the appellant is not mentioned in F. I. R. And he has been convicted only on the basis of evidence of prosecution witnesses, whose identifications in respect of the co-accused was not believed. The learned Advocate for the appellant further submitted, that there was delay in holding of identification test of the appellant and as such no reliance can be placed on such identification. In support of these contentions the learned Advocate for the appellant relied upon cases reported in 1976 SCMR 695 and 1978 P Cr. L J 579 and submitted that prosecution has failed to establish its case against the present appellant, beyond reasonable doubt.
8. The learned counsel appearing for the State has not supported the conviction of the appellant.
9. P. W. 1 is a complainant, who in his deposition before the learned trial Court has repeated the version given by him in F. I. R. Exh.
13. And has further stated, that he clearly saw the faces of all the five assailants, when they attacked his Jeep, in which deceased Ali Bux was sitting by his side in the front seat. He further stated, that P. W. 2 Janoo was sitting on the back seat of the Jeep at the time of the incident. He further stated, that one of the assailant fired shot, which hit deceased Ali Bux on the chest, and the deceased fell on his shoulder and as such he stopped the Jeep and he and P. W. Janoo got down from the Jeep and tried to catch hold of the person, who had fired at the deceased and they also raised cries. He further stated, that two of the assailants fired one shot each in the air, while running away. He further deposed, that Ranjho, Majnoo, Loung and Roopa came on the site and saw the incident. He further deposed, that he took the deceased in his Jeep to the Sanghar Hospital, where deceased was declared dead, and as such he left the body of the deceased at the hospital, alongwith Roopa Loung, Janoo and Majnoo and he went to Sanghar Police Station and lodged F. I.
R. Exh. 13, Which he produced and stated the same to be correct. This witness in his deposition has further stated, that after about one year of the incident, he was put to the identification test in respect of the present appellant and he was made to sit in the office of W. H. C., from where the Mace of identification was not visible and he was called through mashir, whose name he did not remember and therefrom line of 9 persons, he identified present appellant, as the person, who fired a pistol shot at deceased Ali Bux,
10. P. W. 2, Janoo in his deposition before the learned trial Court has corroborated the statement of P. W. 1 fully in respect of the incident in question and further deposed, that he had clearly seen the faces of all the five assailants and consequently in an identification test, he identified present appellant as a person who had only fired a shot at deceased Ali Bux. He further deposed that this test was held after about 2 months of the incident.
11. P. W. 3 Loung in his deposition before the learned trial Court also corroborated the statements of P. Ws. 1 and 2 regarding the place and the manner in which the incident took place. He further deposed that he clearly saw the faces of all the five assailants. He further deposed, that after 18 months of the incident, he was put to the identification test of the present appellant, at Sanghar Police Station and he had picked up the present appellant from row of 8 to 9 persons, as a person who was wearing Gheroo clothes at the time of the incident and also had a beard. He further in his deposition stated that he was not told identification or description of the person who fired at deceased Ali Bux by P. W. 1 and P. W.
2.
12. P. W. 5 Majnoo has corroborated the statement of P. W. 3 Loung, about the place and the manner in which the incident took place and has further stated, that he clearly saw the faces of five assailants and one of them was wearing Gheroo colour clothes, who gave indication to the Jeep to stop and then he fired shot from revolver, which hit deceased Ali Bux. He further stated in his deposition that after I/ years he was put to the identification test of the present appellant and he picked up the present appellant as a person wearing Gheroo clothes and who had fired at the Jeep.
13. Court witnesses 1 and 2 namely Ranjho and Roopa, who were given up by the prosecution, as according to the prosecution there were won over, did not support the prosecution case.
14. P. W.
21. Muhammad Ismail, the allege mashir of the identification test of P. Ws. Jummo, Loung, Roopa and complainant Ibrahim, in his deposition before the learned trial Court stated, that no identification test was held in his presence and he further stated, that Exh. 82, the mashirnama of the said identification test did not bear his signature. He further stated, that Exh. 83 as well as Exh.
84 mashirnamas of identifications test and the foot print, also did not bear his signatures. He further stated, that he never acted as a mashir for any identification test. It may be noted, that this witness was not declared has tile. The second mashir of the said identification test was Baqadar P.
W. 22, who also in his deposition before the learned trial Court denied, that he acted as a mashir and further stated that, no identification test was held in his presence. However, he stated, that police had obtained his signatures on certain papers, without disclosing the nature of the said papers. It may be noted, that even this witness was not declared hostile.
15. P. W. 20 Maqbool Ahmed in his deposition before the learned trial Court stated, that on 30th April, 1975 he was H. M. And T. C. M. Sanghar and had held the identification test of the present appellant through P. Ws. Ibrahim, Janoo, Loung, and .Roopa. He further stated, that he did not remember the names of the mashirs, through whom the witnesses were called. He produced Exh. 82, Exh. 83, Exh.
84, and Exh. 85 as the memos. Of said tests, and further stated the same to be correct and bore his signatures. In his cross-examination he admitted, that the mashirnamas in question of the identification tests were written by S. H.
0. After the conclusion of tests. He further admitted, that he did not keep any notes with himself, when the tests were being held. He further deposed, that the said mashirnamas were read before him and when he found them correct, he signed the same. He also admitted, that mashirnamas were not being written progressively as the tests proceeded. He further stated in his cross- examination, that at the time when these identification tests were held, even police constable was not present, but only mashirs, appellant, dummies and prosecutions witnesses were present. This witness was unable- to point out the present appellant in Court. However, this witness denied, that he was exempted from Revenue examination as price for falsely signing these mashirnamas. In his cross-examination he also admitted, that he could not read and write Sindhi but again corrected himself, that he could read Sindhi and understands Sindhi. The learned trial Court has put a note, that the witness with great difficulty and incorrectly read the mashirnamas in Sindhi. He further admitted, that he does not remember, who asked him to supervise these tests.
16. It is an admitted position that the names of the five assailants including the present appellant were not given in the F. I. R. And the present appellant is found to be guilty and responsible for the murder of deceased on the basis of the identification of this appellant by P. Ws. Ibrahim, Janoo, Loung and Majnoo. It is also an admitted position, that incident in question took place on 5th October, 1973 and the present appellant was arrested on 22nd April, 1975 and the identification test of the present appellant by P. Ws., Ibrahim, Janoo, and Loung was held on 30th April, 1975 and by Majnoo on 3rd May, 1975. It may be noted that P. W. 21 and P. W.22 who are allege to be the mashirs of the identification test of present appellant by P. Ws. Ibrahim, Janoo and Loung have denied the fact that they acted as mashirs or that any identification test was held in their presence of the present appellant, by these witnesses.
17. P. W. 20 Maqbool Ahmed, H. M. T. C. M. Sanghar who is supported to have held an identification test of the present appellant by P. Ws. Ibrahim, Janoo and Loung, in his examination no doubt produced Exh. 82, 83, 84 and 85 and identified his signatures thereon and stated the said Exhs. As correct, but in his cross-examination he admitted, that he could not write Sindhi and according to the note of the learned trial Court, he was not even able to read Sindhi correctly. This witness in his cross-examination further admitted, that the mashirnamas in question were written by S. H.
0. After the conclusion of tests and he has not taken any notes of the tests, while they were in progress and he further admitted, that mashirnamas were not written progressly, as the tests proceeded. In the face of these statements of P. Ws. 21 and 22, the mashris of the identification test of Exh. 82 and in the absence of examination of the mashirs of identification test Exh. 85 of P. W.
Majnoo and in view of the statement of P. W. 20 Maqbool Ahmed, who held the identification tests and his admissions in the cross-examination, that the said mashirnamas were prepared by S. H.
0. After the conclusion of the tests and as such were not in his handwriting and since he is unable to read Sindhi properly, no reliance can be placed on these identification tests. Once these identification tests are removed from consideration, then there is nothing on record to contact the present appellant with the crime in question and the evidence of P. Ws. 1, 2, 3 and 5 by itself, without proper identification of the present appellant by them, in the identification test, would not establish prosecution case, against the present appellant. The learned advocate for the appellant has relied upon cases reported in 1976 SCMR. 473 and 1978 P Cr. L J 579, that on account of delay in holding of identification tests after the arrest of the appellant, no reliance can be placed on said tests. In my opinion it is not only question of delay in holding of these identification tests, but the manner in which said identification test were conducted by P. W. 20, no reliance at all can be placed on these tests. Therefore, in my opinion, the prosecution has failed to establish, that appellant was one of the assailants, who actually fired at deceased Ali Bux, in the incident in question, beyond reasonable doubt,
18. Therefore, I would allow the above appeal and set aside the conviction and sentence awarded to the present appellant and acquit the D appellant by giving him benefit of doubt and would direct, that the appellant may be released forthwith, it' he is not required in any other case.