1. ' MUHAMMAD HALEEM, ACTG. C. J..This appeal, by special ,leave, arises from the judgment of the Lahore High Court dated the 7th of October, 1978, by which the appellant's death sentence was confirmed and his appeal was dismissed.
2. ' The prosecution case was that Rauloo, maternal uncle of Ismail, was ill and the latter had come to his house to look after him about 15 or 16 days before the present incident. Mst. Sardaran daughter of Rauloo was married to Sher Muhammad, the real brother of Nazir, and as he suffered from some illness which interfered with his matrimonial life, he left her some two years before this incident.
3. Rauloo, accordingly, brought her without Nazir's approval to his house situate in village Rorhi.
4. Thereafter Nazir and his father Jamala visited him several times for taking her back to their house, but Rauloo did not agree to it. Lastly, Nazir came for this purpose on Eid-ulAzha day, but was again disappointed. Nazir thereupon threatened to take revenge.
5. ' On the night between 27th and 28th June, 1974, Ismail was awakened by the barking of a bitch as the door opened, and he saw Nazir coming towards the cost of Rauloo with a lighted torch while Mahi stood inside by the side of the door. As Rauloo wanted to rise from the bed, Nazir questioned him as to whether he would send Mst. Sardaran or not, but again Rauloo refused. Thereupon Nazir fired a shot from his pistol which hit Rauloo who fell down and expired. This incident was witnessed by Mst. Sardaran, Azmat Bibi and Khushi Muhammad, a neighbour. Nazir and Mahi, however, decamped from there firing shots in the air.
6. ' Ismail lodged the F. I. R. At Police Station Mananwala at 8-30 a. m. The deceased suffered a fire- arm injury on the back of the right side of his head, 4" above the right ear, and a bullet was extracted during his postmortem examination.
7. ' The appellant, on his arrest, produced a revolver on 8th of July, 1974, and from its chamber three empties and one missed cartridge were taken out: On examination, it was found that the three empties matched with the revolver. The Courts below, however, did not rely on this recovery ; similarly a pair of "jootis" allegedly worn by the appellant and left at the spot was not established to be his, and the conviction rested on the ocular testimony of Ismail (P. W. 1), Mst. Sardaran (P. W. 3), Azmat Bibi (P. W. 4), the widow, and Khushi Muhammad (P. W. 5). The first three witnesses were closely related to the deceased while the fourth was a tenant of the deceased.
8. Leave to appeal was granted to consider whether the conviction rested on a correct appraisal of the evidence.
9. ' The appellant had denied the occurrence and so also the recovery of revolver. Apart from conceding that Mst. Sardaran was married to his real brother some 6 or 7 years before the occurrence, he imputed his implication on account of suspicion.
10. ' Although Ismail was a resident of Lahore yet the trial Court found his presence beyond doubt as he had lodged the F. I. R., which fact, by itself, showed that he could not have been summoned within such a short time to act as a witness. The trial Court, accordingly, accepted his evidence. As for the testimony of Mst. Sardaran and Azmat Bibi, the trial Court held that they were natural witnesses as they were the inmates of the house. Khushi Muhammad's testimony was also accepted as he slept in the same Ahata. Further, in the opinion of the High Court, Mst Sardaran would not have falsely implicated the appellant as it was natural for her to side with her husband's family. The trial Court also noticed the fact that she had not filed any suit for dissolution of marriage which also supported that conduct.
11. ' As regards the testimony of Khushi Muhammad, the trial Court held that he was not related to the deceased, and, therefore, he was a disinterested witness. Being a neighbour he was likely to have identified the appellant as he resided in the same Ahata and the appellant was already known to him because of his visits to the house. As for his identification, the trial Court held that in the circumstances, there was no room for holding that he would have wrongly identified the assailant even at night time.
12. ' The High Court ruled out any delay in the lodging of the F. I. R. For the reason that it could not have been possible to procure any means of transport at that hour of the night for proceeding to the police station ; and as for the ocular testimony, the High Court held that it was impossible to hold that there was faulty identification so as to prompt the witnesses to substitute the appellant for the real culprit. As for another grave feature in the testimony of Ismail, namely, that at the trial he gave out that he did not properly identify the companion of the appellant who was earlier named by him in the F. I. R. As Mahi, the High Court held that as the accomplice had not taken part in the commission of offence, his failure and that of the witnesses to identify him did not have any effect on their identification of the appellant, who had come close to the deceased while firing the pistol shot at the deceased.
13. ' While re-appraising the evidence, we have come across certain features in the prosecution evidence which render it highly improbable that the appellant was, in fact, identified as the actual assailant of the deceased. At least one person was falsely implicated in the F. I. R. And as regards his identity the witnesses merely stated that they had a suspicion that another person was also involved in the crime. This obviously would go to show that they were not in a position to say as to how many persons had come inside the house because of darkness. As for Nazir it was said that he had a lighted torch which facilitated his identification apart from the fact that he had come close to the deceased before firing the shot, and had entered into a dialogue in the course of which he had given out his name. Apart from the lighted torch there was no other light to facilitate identification. Although emphasis was laid on the lighted torch for his identification yet that was not all as Ismail, in his cross-examination while asserting this fact, stated that he had identified the appellant from his voice. As for the second man he give out that he had a suspicion that it was Mahi though he was not able to identify him. He admitted in his statement before the police that the giving out of his name was a mere guess on his part. He also admitted that his eye-sight was temporarily impaired by the light of the torch thrown at the deceased, and, therefore, he was not able to identify the second man. It appears to us that his identification rested on two features, namely, the lighted torch and the dialogue entered between him and the deceased in the course of which the appellant had given out his name Added to it was also the fact that the assailant had come close to the deceased before firing the fatal shot.
14. ' Similarly Aist. Sardaran while narrating the incident disclosed that the appellant entered through the window of the house and as the bitch barked, Rauloo got up and enquired as to who he was, upon which Nazir lit his torch and gave out his identity that it was "Nazir". In cross-examination, she disclosed that she identified him for the first time when he lit the torch and for the second time when he talked to her father. Apparently her evidence was also not on any higher footing than that of Ismail.
15. ' Mst. Azmat Sib while repeating the same story stated in cross-examination "I had pacca shak that Nazir accused had murdered the deceased."
16. ' Considering the evidence of these three witnesses the element of identification of the appellant appears to us to be doubtful. If at all Nazir had come to commit the murder of Rauloo he would not have proclaimed his identity in the manner stated by the witnesses, nor would he take any step to make it obvious as by lighting the torch. In all probability there was darkness as Ismail himself.
17. Stated that he had guessed the identity of the second person as Mahi. Added to it is the assertion of Mst. Azmat Bibi that it was her "Pacca Shak" that it was Nazir who had killed the deceased. If there was certainty in his identification then there was no room for "pacca shak" as that conveyed a different impression converging on suspicion.
18. ' As for Khushi Muhammad, his identification of the appellant was also based on the same pattern.
19. His evidence also does not inspire any confidence as in cross-examination he stated that it was on the barking of the bitch that he woke up, but did not rise from his cot and from there "he saw some person with a torch moving about in the courtyard". This is not all, he further stated that: "The torch carrying person had passed to the west of the mulberry tree in the direction of south" his shows that he had not identified the assailant otherwise he would have given out his name. Again he wants us to believe that he had identified him by voice when the appellant entered into a dialogue with the deceased. This appears to be a padding as it is not possible for him to be familiar with his voice when according to his own showing he had only seen him once in the house of the deceased talking to him and that too on Eid-ul-Azha day.
20. The Courts below while appraising the ocular testimony did not lay proper emphasis on the aspect of identification by voice and also to the grave doubt as to whether it was, at all, possible to identify when in particular a B wrong person was named as the second assailant who was later dropped on the own showing of the witnesses that they were not able to identity him as such. As to whether Nazir would carry a torch is a doubtful feature in the' context of the whole case, when he had stealthily come at night to commit the murder of the deceased. We have also found no reason as to why he would inculpate himself by giving out his name if he had come at night to commit the offence for the obvious reason to hide his identity. Further the reason for the delay as accepted by the High Court is also not convincing as Ismail could have proceeded to lodge the report on foot to the police station, which was about two and a half miles away. The delay intervening obviously shows that there' was deliberation in comprehending the identity of the assailant which is evident from the above features in the case ; and we are inclined to believe that such facts as the torch and the dialogue were surreptitiously introduced to facilitate his identification. The Courts below have not given due consideration to these salient features of the case, which leave a room for doubt as to the identity of the appellant.
21. ' In this view of the matter, we would allow the appeal, set aside his conviction and acquit him.