' ALI NAWAZ BUDHANI, J.-This is an appeal against the judgment and order of the learned Sessions Judge, Sanghar dated 10th September, 1979 whereby he had acquitted the two respondents namely Sikandar Ali son of Haji Amir Ali and Naboo alias Nabi Bux son of Allah Dino. By our short order dated 26th October, 1982 we had dismissed the appeal for reasons to be recorded later.
Following are the reasons :-
2. The incident of this murder took place on 8th November, 1978 at 2-30 p. m. In a Bazar of the Town Shahdadpur, District Sanghar. The deceased was an Advocate and also Amir of 'Jamat-e-Islami', District Sanghar. Case of prosecution is based on an F I. R. Filed at 3-00 p. m. On the same date at the P. S. Shahdadpur by one Muhammad Umar. The F. I. R. Reads as follows :- "Complaint is that I am resident of Shahdadpur Town. Abdul Qadeer Baig son of Khairullah Baig is my real Bhanja. Who is also Advocate and Amir of Jamat-e-Islami for Sanghar District. Today on 8th November, 1978 I and Abdul Qadeer Baig went to the Court of Senior Civil Judge, Shahdadpur with our work. After completing the work there at about 2-45 p. m. Abdul Qadeer Baig set out from the Court and after a short while I also went out of the Court towards my house. Abdul Qadeer Baig was a little ahead of me, when two persons met near Fruit Market, Shahdadpur and one Tonga was stopped and they got into that Tonga. Abdul Qadeer Baig was sitting in the front seat. Off tonga and those 2 persons sat in the rear seat of that Tonga. After covering a short distance when the Tonga reached in front of the house of Mir Muhammad Wassan suddenly there was a shot of firearm and Abdul Qadeer Baig cried. The tonga-driver stopped the Tonga. I saw that from amongst the 2 persons, sitting in the rear seat of Tonga the man on the right side was armed with revolver and he fired shots in quick succession and the other man had 12 bore country-made pistol. I raised cries that "don't kill the man". On which the accused issued threats that anybody who would go near would be killed by them. In the meanwhile accused got down from the tonga and started running towards north from the street near the house of Mir Muhammad Wassan. It was 2- 30 p. m. This incident was seen by Muhammad Ashraf Pathan, Mukhtiar Punjabi, Shabir Ahmed and other people of the town and neighbourhood out of whom Muhammad Ashraf Mukhtiarkar and others chased the accused but the accused made good their escape. I saw Abdul Qadeer Baig was profusely bleeding from the head and other part of the body. Who went unconscious. Whom I and Shabir carried in the same Tonga of Muhammad Ramzan Soomro towards hospital but Abdul Qadeer Baig succumbed to the injuries and died at the gate of the hospital. I leaving Shabir Ahmed and Muhammad Hassan over the dead body of Abdul Qadeer Baig in the hospital have come to file report. The 2 unknown persons while travelling in the tonga alongwith Abdul Qadeer Baig have murdered Abdul Qadeer Baig by firing revolver shots at him. Whose names I do not know. But I will be able to identify them if shown whose description marks the man with revolver was wearing green colour shirt and trousers and towel was bound over his head and he was of wheat colour of normal size in body with thin moustaches and the other accused was wearing white trousers and shirt and a white turban, wheat colour with big moustaches. The accused has given challenge in the Sindhi language. I am complaining. Justice may be done."
3. The A. S.-1. Incharge one Muhammad Shafi recorded the F. I. R. He searched for the culprits but did not find them. However he noticed footprints on the land of Sattar Memon and a pair of shoes and one live cartridge, were secured from the land of Sattar Memon. One set of footpprints was in shoe while the other set of footprints was bare. The mashirpnama of the footprints was prepared in presence of Abdul Razaq and Ahmed Din. At 3-30 p. m. S. H.
0. La! Muhammad appeared on the scene and he investigated the matter further. S. H.
0. Lal Muhammad went to the hospital at Shahdadpur and prepared the Inquest Report and the mashirnama in presence of the mashirs Abdul Razaq and Ahmed Din. The dead body of the deceased was delivered to the Medical Officer for autopsy. The Investigating Officer then examined Muhammad Hassan Tongawala and Shabir Ahmed. He inspected the Tonga and secured both the blood-stained seats, and six empty bullets of .32 bore and two pieces of lead and sealed the same.
He seized further blood-stained files, documents and diary of the deceased and prepared a mashirnama for the same. The Sarzamin was inspected in presence of mashirs Ali Sher and Qamar Din. He further examined Uris, Ibrahim, Abdul Ghafoor, Mukhtiar Ahmed and Abdul Haq. He verified the statements of Mukhtiar and Ashraf already recorded by A. S.pI. Shafi Muhammad. On 9th November, 1978 he examined Muhammad Khan, The Police Tracker Feroze Khan was examined on the same day i. e. On 9th November, 1978. Son of the deceased one Tanweer Ahmed was also examined on the same day. On 10th November, 1978 he visited the land of Sattar Memon where he saw the footprints of which he prepared the mould in presence of Simon and Sain Bux. On 14th November, 1978 he examined Chanesar, Yaqoob and Dodo. On 23th November, 1978 he arrested respondent Nabi Bux from his house. On 25th November, 1978 he held identification test of the respondent Nabi Bux through complainant and P. W. Ashraf, Shabir, Muhammad Hassan and Mukhtiar Ahmed who, it is alleged, had correctly identified Nabi Bux in presence of IIIrd Class Magistrate. Foot tracker Feroze Khan identified the footprints in shoes in the test. On 28th November, 1978 identification test of Nabi Bux was held through P. W. Chanesar before the same Magistrate. It was not until 6th of December, 1978 when the respondent Sikandar Ali was arrested from Hyderabad by one Abdul Khaliq, S. H.
0., Sanghar Police Station. On the same day Sikandar was produced before the S. H.
0. La! Muhammad. Thereafter on 7th December, 1978 Sikandar and Nabi Bux volunteered to produce the weapons used in the crime of the offence. The police took them into the jeep from Chowdagi to a place where respondent Sikandar took out .32 bore pistol wrapped in a handkerchief from the sand dunes. It was secured and sealed. Thereafter respondent Nabi Bux led the police to a brick kiln and after digging the earth took out a country-made pistol which was secured and sealed. Both of them had no licence for the weapons, therefore S. H.
0. Lal Muhammad took them to Shahpurchakar Police Station where the cases were filed under section 13-D, Arms Ordinance. Then an identification test of respondent Sikandar was held through complainant and P. Ws. Who are alleged to have identified the respondent. The footprint test of respondent Sikandar was also held through Pagi Feroze Khan who correctly identified the bare footprints of Sikandar. He was made to wear the shoes secured from the land of Sattar Memon and the same fitted in his feet. The S. H.
0. Thereafter further got recorded the statement of the witnesses under section 164, Cr. P. C. Before the Mukhtiarkar, Shahdadpur. Police had further interrogated the driver of Suzuki pick-up one Muhammad Hassan in whose Suzuki it was alleged that the respondents travelled. The Ballistic Expert's report was positive.
4. The respondents in their statements under section 342, Cr. P. C. Have denied allegations and have alleged that they are the victims of the enmity and they are innocent. They have further stated that their footprints were shown to the Pagi before the footprint test was held. Respondent Sikandar alleged enmity with Pir Khalid Serhandi and his family. He has produced several documents to support his point of enmity. S. I. P. Lal Muhammad is person who is under the influence of Serhandi Family. He alleged that Pir Muhammad Serhandi was directly involved in a case of murder of his (Sikandar) relation Mir Hassan Mangsi and in that connection he was arrested but S. H.
0. Released him. A direct complaint was filed against Pir Serhandi. The process was issued. He further stated that co-respondent Nabi Bux is actually the person of Pir Serhandi and is inimical to him (Sikandar). The respondent Nabi Bux has stated that on 12th November, 1978 he was produced before the police to give evidence against the respondent Sikandar. He refused to do so and therefore he was put in lock-up and was involved in this case.
5. On behalf of the State the appeal was argued by Mr. Imam Bux while Mr. Muhammad Hayat Junejo and Mr. Usman Ghani Rashid argued on behalf of respondent No, 1 and Mr. Qurban Ali Chohan argued for respondent No, 2.
6. The circumstances under which the incident of murder has taken place in the broad daylight in the Sabzi Market of Shahdadpur are that the assailants were known to the deceased and they were in the 'Tonga' sitting on the rear seat. Complainant Muhammad Umar who is also an Advocate and partner of the deceased was at a short distance from the tonga when firing attracted his attention.
Those who were immediately attracted to the scene of offence besides the Tongawala Muhammad Hassan were Shabbir, Mukhtiar and Ashraf. These are the witnesses who are important from the point of view that they have seen the assailants either firing or running away. Abdul Qadeer Baig was shot dead by the assailants and he was Amir of Jamatpe-Islami for the District Sanghar. No motive is specified either in the F. I. R. Or during the course of investigation as to why Abdul Qadeer Baig was attacked and killed. There is no hint regarding the motive in the entire course of evidence conducted by the police although the murder of such an important person had attracted lot of public attention. The witnesses on the point of recovery of weapons are believed to be the persons belonging to Pir Muhammad Sarhandi and Pir Khalid Sarhandi. The respondent Nabi Bux has stated that he was being roped in to give evidence against Sikandar Mangsi and that when he refused to do so be was involved in this case, while respondent Sikandar Mangsi has produced several documents to show that he has enmity with Pir Sarhandi.
7. The complainant Muhammad Umar averred that the deceased sat on the front seat of tonga while two persons sat on the back seat of the tonga. He has observed that the deceased boarded the tonga near the Fruit Market. The tonga had hardly proceeded few paces when one of those two persons took out a pistol and fired 3 or 4 shots at Abdul Qadeer Baig which hit him and he fell down. Both these persons got down from the tonga and further shots were fired at Abdul Qadeer Baig. He ran to the scene of offence and the culprits were followed on a cycle by Ashraf and Mukhtiar. He has seen the faces of those culprits. He reached the tonga and saw Abdul Qadeer Baig lying unconscious. He has further stated that he alongwith Shabbir and tonga-driver took the injured in the same tonga to the hospital. At the gate of the hospital Abdul Qadeer Baig succumbed to the injuries. He did know the assailants previously. He has further averred that he identified Nabi Bux the respondent on 25th November, 1978 in an identification test while on 7th December, 1978 he had identified Sikandar in an identification test.
8. The complainant has seen the culprits from a distance and the incident was over within two or three minutes and not more than that. The evidence of Muhammad Umar regarding the identity of the culprits is questioned by the learned counsel for the respondents.
9. The most important witness in this case is the tonga-driver Muhammad Hassan. The tonga- driver Muhammad Hassan at Exh. 12 deposes that near the Bakra Mandi Advocate Abdul Qadeer stopped him. Two persons were also with the deceased. They all boarded his tonga. One of those persons asked Qadeer Baig to sit on the front seat and he did so while these two persons sat on the rear seat. He then drove the tonga and after covering some distance he heard firing of shots and saw that one of those persons was firing from pistol at Abdul Qadeer Baig which hit him and he fell down. Those assailants made good their escape. A crowd collected and he took the deceased in the tonga to hospital. It is only at the gate of the hospital when Muhammad Umar and Shabbir met them. The deceased died at the gate of the hospital. The culprits were seen by him several times because they had hired his tonga on previous occasions. After 17 days of the incident he was put in an identification test. He was forced by the complainant Muhammad Umar to put his hand to one man i. e. Respondent Nabi Bux. One another Suzuki man was also forced to identify respondent Nabi Bux as accused. Similarly respondent Sikandar was made to stand alongwith other nine persons but he was forced to point out that respondent Sikandar was one of those two persons although he was not the same person. At this stage the prosecution declared this witness hostile and he was cross-examined. In the cross-examination he states that it is not a fact that Muhammad Umar and Shabbir took Abdul Qadeer deceased to the hospital in tonga. Muhammad Umar met him at the gate of the hospital. Then in a question from the D. P. P. He replied that Haji Amir Ali Mangsi Zamindar is the father of the respondent Sikandar.
10. Next is the evidence of Mukhtiar Ahmed who is alleged to have seen the culprits. He deposes that he was attracted to the scene of offence on pistol shots. He saw two persons got down from the tonga and also saw Shabbir, Ashraf and Muhammad Umar coming running towards the scene of offence. He followed the persons on his cycle who were running away from the tonga. One of those persons pointed out pistol at him in order to prevent him from chasing the culprits but he says that the faces of the culprits were muffled and that he has not seen the faces clearly. They are not known to him. In the identification test he was forced to pick out the respondent. This witness is also declared hostile. In cross-examination he denies the suggestion that he is influenced by Amir Ali Mangsi. He states in the cross examination that complainant and Shabbir came at the vardat after the culprits had run away. Pir Sarhandi was seen by him attending the Police Station. This witness does not support the prosecution case that the respondents were identified by him.
11. Then there is evidence of Shabbir Ahmed. He is vegetable shoppkeeper and was attracted to the scene of offence at the report of revolver shots. He saw two persons the culprits. Abdul Qadeer Baig was lying unconcious in the tonga. Both the culprits then ran away and Ashraf and Mukhtiar followed them. He and Muhammad Umar took the injured in the tonga to the hospital. Further stated that he identified the two respondents in two different identification test on different dates.
12. Then there is evidence of Chanesar Zamindar. He was in the Bazar of Shahdadpur when at 2-30 p. m. He heard the noise of running. He saw two persons running away. He saw pistol in their hands.
He saw their faces from the side. His statement was recorded 3 or 4 days after the incident. 20 days after the incident he was put to an identification test where he thinks that respondent Nabi Bux was one of those persons. Then in another test he identified respondent Sikandar whom he thinks to be one of those two culprits. He is not declared hostile. He says that he had not seen clearly those two persons who were running alongwith pistols. He admits that Pir Sarhandi has enmity with Haji Amir Ali father of respondents Sikandar Ali. He identified respondents in suspicion. He had seen the culprits running away from their back side.
13. The witness Sawan Exh. 23 is a person Jakhro by caste and is supposed to be the owner of Suzuki Pick-up driven by Muhammad Hussain. P. W. Sawan in his evidence denied the fact that he was owner of the Suzuki Pick-up. Muhammad Hussain was not his driver. He was forced to make statement against respondent Sikandar and Nabi Bux involving them in this case but he refused to do so upon which he was maltreated by the police and was put in lock-up for 15 days. He was cross-examined by the D. P. P. But nothing worthwhile has been brought on the record. Similarly Muhammad Hussain Exh. 26 states that he was never a driver of Suzuki Pick-up and Sawan was not the owner of the Suzuki Pick-up. His evidence was recorded on a piece of paper and he did not know that what police had written.
14. The evidence of eye-witnesses in the broad daylight is an important piece of evidence. The most important evidence is that of Muhammad Hassan tongawala. He was declared hostile. Then Mukhtiar Ahmed who has given a chase to the culprits has also not identified the culprits as he says that the faces of the culprits were muffled. Chanesar has seen fleeting glimpse of the culprits and in the cross-examination he states that he had seen the culprits while running, with their backs towards him. He also does not support the prosecution case wholeheartedly. He admits that there is enmity between Pir Sarhandi and Haji Amir father of the respondent Sikandar. Similarly the assertion of culprits having escaped in the Suzuki Pick-up of Sawan driven by Muhammad Hussain is not borne out from the record as P. W. Sawan and Muhammad Hussain both deny that the culprits ran away by using a pick-up of witness Sawan. That leaves us with the evidence of complainant Muhammad Umar and P. W. Shabbir alone so far as the ocular testimony is concerned. Muhammad Hassan, tonga-driver has deposed that Muhammad Umar came at the gate of the hospital while he had already taken the injured to the hospital. Adverting to the evidence of recovery of pistol said to have been made at the instance of the respondents, prosecution has examined mashirs Khadim Hussain and S. I. P. Lal Muhammad to prove this fact Mashir Khadim Hussain is undoubtedly the man of Pir Sarhandi. Pir Khalid Sarhandi has acted as his Advocate in criminal cases, not only this A but in one case Pir Khalid has acted as surety while in another case his brother Younus Sarhandi has acted as surety. S. I. P.. La! Muhammad is the same Police Officer who has released Pir Sarhandi in a murder case of one Mangsi related to Haji Amir Ali Mangsi. Case process was issued by Additional Sessions Judge, Sanghar against Pir Mahmood Sarhandi. In view of this fact no reliance can be placed on this witness and therefore the recovery of weapons is doubtful. The trial Court has so held and in our opinion he has rightly assessed this piece of evidence. Respondent Sikandar has produced several documents to show that Pir Sarhandi family has got enmity with Sikandar and his father. Material on record has convinced us that there is enmity between accused Sikandar and his father on one side and Pir Sarhandi family on the other side. Documents produced by the accused Nabi Bux have established that he is man of Pir Sarhandi family and his relations have filed criminal cases against father of Sikandar and that his relations are also involved in criminal case filed by Mangsi family. These facts lead us to believe that while it is fact that Pir Sarhandis have enmity with Sikandar and his family it is also fact that accused Sikandar and accused Nabi Bux can never join each other in committing any crime.
The case of the prosecution becomes doubtful when seen in this background. The statement of respondent Nabi Bux is that because he did not give evidence against Sikandar he was roped in the present case.
15. The incident took place on 8th November, 1978 while the first. Identification test was held 17 days thereafter. The second identification test took place in the month of December on 17th December, 1978. The witnesses have seen the faces of the culprits in a glimpse and the duration may be about 3 to 4 minutes. It is difficult to retain in memory, the features and the other points of identification of the culprits for number of days i. e. 17 days. Similarly on 17th December, 1978 second identification test was held and the same has suffered from inherent weakness that the features of the culprits may not be kept in mind of the witnesses who have seen their faces for fleeting moments i. e. 2 or 3 minutes. In a moment of excitement and in a moment of fear, it is difficult to retain the features.
Identification tests on this account suffer from inherent weakness and are not on the face of the reliable. Some of the witnesses have deposed that they were forced to identify respondents Nabi Bux and Sikandar to be the accused. This sort of investigation to bring the innocent people instead of true culprits is reprehensible. Rightly therefore the learned trial Court has not believed the identification test held either of the footprints or of the culprits. The learned trial Court has held :- "I am therefore of the opinion that this evidence is not of convincing nature."
These two pieces of evidence on account of enmity and the identification test on account of inherent weakness are discarded and are worthy to be discarded. There remains only the evidence of Muhammad Umar and Shabbir who are alleged to have identified the respondents but they had not seen the true culprits clearly and correctly. In one way or the other the hands of Pir Sarhandi are lurking in every piece of investigation. The enmity is proved between Sarhandis and Mangsis.
16. There is no substance in this appeal and we accordingly dismiss it.