' ABDUR REHMAN KHAN KAIF, J.-- Abdul Hamid alias Hamida son of Boota aged 31 years, cultivator, resident of Chak No, 18/MB, P.S. PipIan, Amanual Masih son of Said Masih, aged about 35/36 years, cultivator, resident of 17 M.L., P.S., Piplan, Ahmad Khan alias Khani, son of Muhammad Khan, aged 35 years, cultivator, resident of Wahota, P.S. Piplan and Asif Javed son of Barkat Masih, aged 36 years, cultivator, resident of Chak No, 17/M.L., P.S. Piplan, District Mianwali, were tried under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and under sections 460, 307/34 and 302/34, P.P.C., in a case registered vide F.I.R. No, 28, dated 23-2-1985 of P.S., Piplan in District Mianwali, by the learned Additional Sessions Judge, Mianwali, on the allegations that they committed lurking house trespass into the house of Muhammad Bakhsh, deceased, for taking away his property and for committing dacoity and in furtherance of their common intention, they committed the murder of Muhammad Bakhsh and attempted at the lives of his daughter and son, Mst. Alam Khatoon and Falaksher, P.Ws., on 22-2- 1985 at about 7-30 p.m. Vide his judgment, dated 3-5-1988. The learned trial Court found the accused guilty of the above-mentioned charges and convicted each of them for offences under section 394/397, P.P.C., 460, P.P.C., 307/34 and 302/34, P.P.C. Each of the accused was sentenced to ten years' R.I. And a fine of rupees one thousand or in default to further undergo R.I. For three months each under section 394/397, P.P.C. Each of the accused was further sentenced to ten years'
R.I. And a fine of rupees one thousand or in default to suffer further R.I. For three months, under section 460, P.P.C. Similarly, under section 302/34, P.P.C. Abdul Hamid, appellant, who was attributed the fatal shot at Muhammad Bakhsh, deceased, was sentenced to death and a fine of rupees five thousand while his co-accused were sentenced to imprisonment for life and a fine of rupees five thousand each or in default to undergo R.I. For one year each under section 302/34, P.P.C. Similarly, each of the accused was further sentenced to five years' R.I., and a fine of rupees one thousand or in default to undergo R.I., for three months under section 307/34, P.P.C. All the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C., was, however, extended to the convicts. The amount of fine, if I 'alised, was to be paid to the legal heirs of the deceased and the injured P.Ws. Under section 544-A. Cr.P.C.
2. Feeling aggrieved, the convicts have preferred two separate appeals wherein the judgment in question by the learned trial Court has been challenged on the grounds mentioned therein. A criminal revision was also filed by Sher Muhammad, the complainant, with a prayer for enhancement of sentence of the convicts and for payment of compensation under section 544-A, Cr.P.C. We propose to dispose of Criminal Appeal No, 160/L of 1988 Abdul Hamid alias Hamida v. The State, Criminal Appeal No, 183/L of 1988 Ahmad Khan alias Khani and 2 others v. The State, Criminal Revision No,66/L of 1988 Sher Muhammad v. Abdul Hamid alias Hamida and 4 others and the murder reference for the confirmation of the death sentence by this judgment.
3. The facts of the case as stated in the F.I.R. Briefly stated are that the complainant who was residing in his house in front of the house of Muhammad Bakhsh, deceased, at a distance of a few Karams, was present in his house at the eventful time. The deceased Muhammad Bakhsh, was the uncle of the complainant as well as his father-in-law. He heard an alarm from the house of the deceased. He attempted to open the door of his house in order to help his father-in-law, but he found the door of his Kotha chained from outside. He broke open the door and came out and proceeded towards the house of Muhammad Bakhsh, deceased. There he saw four persons duly armed inside the Kotha of the deceased in the light of a lamp burning there. The description of the four persons was given in the F.I.R. As (1) thin built, height medium, wearing Shalwar and Qameez, armed with rifle, (2) medium built, with small beard, wearing Shalwar and Qameez, armed with .12 bore shotgun, (3) medium built, medium height, wearing white clothes armed with .12 bore shotgun and (4) medium built, medium height, armed with Chhura (dagger). The accused were threatening the deceased, Muhammad Bakhsh to hand over whatever he had. In the meanwhile, Sultan, brother of the complainant, and Mst. Norai, wife of the complainant, also arrived at the spot.
Muhammad Bakhsh, deceased, refused to comply with the demand of the accused and resisted them. The complainant raised Lalkara and on hearing the Lalkara, the accused started firing which hit Muhammad Bakhsh, who fell down. He was dragged out from the Kotha by the accused.
Meanwhile, Mst. Alam Khatoon, daughter and Falaksher son of the deceased, intervened in order to rescue their father. They were also attacked by the culprits causing them injuries. The complainant, Sultan Ahmad, and Mst. Norai, P.W.s, did not dare go near Muhammad Bakhsh due to fear, but they raised alarm from outside and as a result of the alarm, the accused ran away towards south.
Muhammad Bakhsh, deceased succumbed to the injuries at the spot and leaving him under the supervision of Sultan P.W., the complainant reached the police station on the following day in the morning alongwith the two injured P.Ws., namely, Falaksher and Mst. Alam Khatocn, and lodged the report there, wherein it was explained that the report was delayed on account of non-availability of any transport during night time for reaching the police station.
4. The report of Sher Muhammad was recorded by Allah Bakhsh, A.S.I. (P.W.18) on 23-2-1985 at 7-30 a.m. He prepared injury statements of Falaksher and Mst. Alam Khatoon, P.Ws. (Exh.P.P.) and (Exh.P.Q.) respectively and sent both of them for medical examination under the escort of Ghulam Hassan, F.C. He then proceeded to the spot and prepared the injuries statement (Exh.P.R.) and inquest report (Exh.P.S.) of Muhammad Bakhsh, deceased. He sent the dead body for post-mortem examination under the escort of Ghulam Rasool, F.C. He collected blood-stained earth vide recovery memo. (Exh.P.L.) and picked up the live cartridge (Exh.P.6) and (Exh.P.6/1) from the spot which were taken into possession vide recovery memo. (Exh.P.J.). He also got prepared moulds (Exh.P.W./1-4) of the footprints of the culprits and recorded the statements of the injured witnesses in the hospital after getting a certificate of fitness from the Medical Officer. On the same day Ghulam Rasool, F.C., produced before him the clothes of the deceased which were taken into possession vide recovery memo. (Exh.P.B.). The clothes of the injured witnesses were also taken into possession vide recovery memo. (Exh.P.A.). On 27-11-1985 Amanita' Masih, accused while in custody, led the police to a Khola from where an unlicensed gun (Exh.P.7) was recovered which was taken into possession vide recovery memo. (Exh.P.M.). Similarly, at the instance of Abdul Hamid, accused, a .12 bore shotgun (Exh.P.8) was taken into possession vide recovery memo. (Exh.P.O.) Ahmad Khan, accused, while in custody, also led to the recovery of a rifle (Exh.P.5) from his Kotha which was taken into possession vide recovery memo. (Exh.P.G.) and after the usual investigation the Investigating Officer submitted a complete challan for trial against the accused.
5. At the trial, the prosecution examined 19 witnesses in support of its version.
' Ghulam Hassan, F.C. (P.W.1) escorted Mst. Alam Khatoon and Falaksher, injured P.Ws., to the hospital. Altaf Hussain, A.S.I. (P.W.2) kept the sealed parcels in safe custody and on 3-3-1985 handed over the said parcels to Ghulam Rasool, F.C., for its delivery in the Office of Chemical Examiner, Lahore. Ghulam Rasool, F.C. (P.W.3) accompanied the dead body of Muhammad Bakhsh, deceased, for the post-mortem examination and also took the sealed parcels to the Office of Chemical Examiner on 1-3-1985 in tact. Lady Doctor Gulshan Shaheen, (P.W.4) medically examined Mst. Alam Khatoon, P.W., on 23-2-1985 at 10 a.m., and found the following injuries on her person:
(1) A wound of entry of fire-arm 7 c.m. x 5 c.m. At the top of right shoulder.
(2) A wound of exit 7 c.m. x 3 c.m. At the back of top of right shoulder.
(3) A wound of exit 3 c.m. x 1 c.m. At distance of 2 c.m. Below No,2.
(4) An incised wound in the centre of chest 6 c.m. x 3 c.m.
' Injuries Nos. 1, 2 and 3 were caused by fire-arm while injury No,4 was caused by sharp-edged weapon. Probable duration between the examination and injuries was shown to be 12 to 14 hours.
Rabnawaz, Retd. H.C., tracker (P.W.5) joined the police investigation on 23-2-1985 and prepared moulds (Exh.P4/1-4) of the footprints found on the spot. Zahur-ud-Din, Inspector, (P.W.6) arrested Abdul Hamid, accused, on 15-9-1985, who was in the custody of Police Station Kalur Kot in District Bhakkar, and got him transferred from that police station. Amanual Masih alias Mana Masih, Asif Jawed and Ahmad Khan, accused, were also arrested by him on 23-9-1985. Zafarul Hassan, Patwari (P.W.7) prepared the site plan (Exh.P.F.) and (Exh.P.F./1). Dr. Saleem Akhtar (P.W.8) medically examined Falaksher son of Muhammad Bakhsh, and found the following injuries on his person:- "(a) An incised wound 3 c.m. x 1 c.m. On left (?) interior surface 7 c.m. From left elbow above side 2 c.m. Deep by probe test.
(b) A wound of impact 1/4 c.m. x 1/4 c.m. On left nipple."
' The injuries were found to have been caused by sharp-edged weapon and firearm and the time of duration between injuries and the examination was found to be 12 to 13 hours.
' On 24-2-1985 the same Medical Officer conducted the post-mortem examination on the dead body of Muhammad Bakhsh, son of Ghulam Hussain, deceased, and found the following injuries on the dead body:- "(1) A wound of entry 3 c.m. x 2 c.m. On the mid line on the root of the neck.
(2) A wound of entry 2 c.m. x 1/2 c.m. On the mid line 14 c.m. Below injury No,1.
(3) A wound of entry 1-1/2 c.m. x 1-1/2 c.m. On the right hypochondrium 13 c.m. Towards right from umbilicus.
(4) A lacerated wound 3 c.m. x 1 c.m. On the base of left thumb."
' In his opinion, injury No,3 was found sufficient to cause death in the ordinary course of nature.
Injury No,4 was found to be caused by blunt weapon while the remaining injuries were caused by fire-arm. The probable time that elapsed between injuries and death was shown immediate i,e, within half an hour and the stomach contained 2-1/2 ounces of digested food. Sultan Mahmood (P.W.9) identified the dead body of Muhammad Bakhsh, deceased, at the time of his postmortem examination while Eid Muhammad, F.C. (P.W.10) is the recovery witness of memo. (Thdi.P.C.) vide which a rifle (Exh.P.F.) was recovered from the Kotha at the instance of Ahmad Khan, accused. Sher Muhammad son of Ghulam Hassan (P.W.11) who is the complainant of this case, has reiterated almost a similar version as stated in the FIR. According to him, after seven months of the occurrence he joined the identification parade in Central Jail, Mianwali and correctly picked up the four accused persons. Falaksher son of Muhammad Bakhsh (P.W.12) had received injuries during the occurrence, has supported the version as stated in the F.I.R. According to him, when his father was taking his meals at night and a lantern was burning inside the Kotha, four persons of middle height and one having beard, arrived there and asked his father to hand over his belongings to them. According to him, the deceased, his father, showed his inability and the bearded person fired with shotgun at his father who fell down. He and his sister intervened and they also received injuries at the hands of the culprits. He deposed that subsequently he participated in the identification parade held in the Central Jail, Mianwali, under the supervision of a Magistrate and correctly identified the accused. Sultan Ahmad, H.C. (P.W.13) is a recovery witness to the memo. (Exh.P.G.) vide which a rifle (Exh.P.5) was recovered at the instance of Ahmad Khan, accused, while Sultan son of Ghulam Hassan (P.W.14) has also furnished the ocular account of the occurrence. According to him, when he was present with Sher Muhammad, complainant, he heard an alarm coming from the house of the deceased and since the door of the Kotha was bolted from outside, they broke out the door and proceeded to the place of occurrence where he saw four persons in the light of lantern out of whom two persons were armed with .12 bore shotguns, one with a rifle and the fourth with a dagger. According to him, the accused started firing and Muhammad Bakhsh sustained the injuries and fell down. Mst. Alam Khatoon and Falaksher, P.Ws., who intervened also received injuries at the hands of the culprits. According to him, he joined the identification parade in the Central Jail, Mianwali, and correclty identified the accused. In his cross-examination, this witness has deposed that about 20 days after the occurrence, about two hundred persons joined the investigation whose footprints were obtained by the police, but out of the abovementioned persons, none was found the assailant.
' Muhammad Amin Khattak, Magistrate 1st Class (P.W.15) supervised the identification parade on 5- 10-1985 in the Central Jail, Mianwali. According to him, the eye-witnesses picked up the accused correctly in the identification parade. He, however, stated that Mst. Norai, P.W., correctly identified the three accused, but was unable to identify Asif Javed, accused. This witness has deposed that after the conlcusion of identification parade, the accused objected that they were shown to the witnesses at the police station before the identification parade. In his cross-examination this witness has deposed that the accused changed their position prior to the identification, but this fact was not mentioned in the proceedings. He further deposed that some bearded-persons were also included for the purpose of identification, but that fact was not mentioned in the proceedings.
Similarly, he was unable to mention the purpose of identification parade in his proceedings. The addresses of the dummies who joined the parade were also not mentioned. He has also stated that he did not ask the accused since bow long they were in custody and for how many times they appeared in Court prior to the identification parade.
' Ubaidullah Khan, A.S.I. (P.W.16) attended the identification parade proceedings. Muhammad Sarfraz Khan, S.I. (P.W.17) has deposed that on 27-111985, Amanual Masih, accused, while in custody, led to the recovery of an unlicensed gun (Exh.P.7) which was taken into possession vide recovery memo. (Exh.P.M.). Similarly, on the same day Abdul Hamid, accused, while in custody, led him to the recovery of an unlicensed gun (Exh.P.8), which was taken into possession vide recovery memo.
(Exh.P.O.). In his cross-examination this witness has deposed that father of Sultan, P.W., was murdered wherein Abdul Hamid, Unas and Amanual Masih, accused, alongwith others were charged. Allah Bakhsh, S.I. (P.W.18) has investigated the case as already stated. In his cross- examination he has admitted that he did not mention in his inspection note the presence of lantern at the spot. He also admitted that no features of the culprits were mentioned in the report.
He further admitted that some more persons were suspected for the crime and those suspected persons were Jinda, Haq Nawaz, Majeeda and Pashu. He further deposed that the investigation of the case remained under him from 23-2-1985 till 13-6-1985 and during that period hundreds of the suspects were joined in the investigation. He further stated that those suspects were joined in the investigation in the presence of P.Ws. And the trackers. He further admitted it as correct that at the instance of the complainant and other P.Ws., suspicion had been raised about the involvement of Jinda, Raza, Oasim son of Faiz, Atta Muhammad son of Ghulam Muhammad, Said son of Usman Muzaffar and Bashir P.O., in this case. Muhammad Masood, Inspector (P.W.19) has stated that on 31- 12-1985 Ahmad Khan, accused, led him to the recovery of a rifle (Exh.P.5) from the Kotha which was taken into possession vide recovery memo. (Exh.P.G.). In his cross-examination this witness has further made a clarification to the effect that Ahmad Khan, accused, was mentioned in the conviction slip as about six feet in height.
6. When examined under section 342, Cr.P.C., the accused denied the allegations and stated that being innocent they were falsely involved in this case. Abdul Hamid alias Hamida, accused, has furnished the following explanations in his defence:- "I was never arrested by the police in this case. I was with police of P.S. Kalorkot a month before 16- 9-1985. The police had shown me to the witnesses in P.S. Kalorkot adjoining P.S. Piplan. My physical remand was obtained by the police from Kalorkot Court from 16-9-1985 to 17-9-1985. My physical remand was obtained by the police of P.S. Piplan and was taken to Piplan Police Station where my remaining co-accused were already present. The witnesses were called in the P.S., and we were shown to them.
' Muhammad Hussain Lambardar of Ahmad Shah Wali is originally resident of Bilot Sharif District D.I.
Khan. Ata-ur-Rehman is his relative Jinda, Pashu, Majida Faqeer resident of Gari Shahu P.S. Pahar Pur District D.I. Khan and others were the real culprits and Muhammad Hussain and Ata-ur- Rehman aforementioned saved Jinda and others and named, Ahmad Khan, Amanual. And Asif Javed my co-accused. Abdul Majid Member District Council was politically opposed to me and they falsely implicated me in this case as they all belonged to same party. The police was pressurised by the high officials to trace out the case and to get rid of this case. The challan has been submitted against us."
'Amanual Masih son of Said Masih, accused has furnished the following explanations in his defence:- "The eye-witnesses are under the thumb of Muhammad Hussain Lambardar and Ata-ur-Rehman Sajjada Nasheen of Balot Sharif, Jakab Masih, Member District Council of my Chak is deadly against me, Asif Javed and Ahmad Khan accused as we always voted against him and supported the opposing candidate so I have been falsely implicated in this case at the instance of Jakab Masih Abdul Majeed Chairman District Council Hafizwala P.S., Piplan and the aforesaid persons because they belonged to the same party and in collusion with the police the real culprits have been let off who were Jinda etc."
'Similar and identical explanations were also furnished by the remaining two accused in their defence, namely, Ahmad Khan son of Muhammad Khan and Asif Javed son of Barkat Masih. The accused, however, declined to make statements on oath as required under section 340(2), Cr.P.C., and have further failed to produce any evidence in their defence.
7. We have heard the learned counsel for the parties and have gone through the material available on the record with their assistance.
8. In the instant case the prosecution case was based on the ocular account furnished by Sher Muhammad, complainant (P.W.11), Falaksher son of Muhammad Bakhsh (P.W.12) and Sultan son of Ghulam Hassan (P.W.14), the recoveries of the weapons allegedly used in the commission of the offence, the medical evidence, the evidence of the tracker and the identification of the appellants by the eye-witnesses in a regular identification parade held under the supervision of Muhammad Amin Khattak, Magistrate 1st Class (P.W.15). So far as the recoveries of the rifle and shotgun allegedly used in the commission of the offence are concerned, they have been totally discarded by the learned trial Court and for good reasons. Copies of the judgment of the Court of the learned Additional Sessions Judge, Mianwali, dated 3-5-1988 in cases under section 13 of the Arms Ordinance 1%5 further show that the accused were acquitted in all the mentioned cases relating to the mentioned shotguns and rifles. It, therefore, follows that the above-mentioned recoveries have no evidentiary value in the instant case. The evidence about the footprints has also remained inconclusive and it has nowhere been proved that the foot impressions of the present appellants tallied with the impressions found at the spot. Perusal of the F.LR. Reveals that none of the accused was either named or properly described in the report. Some description of the persons was mentioned but the description given can be applied to numerous persons. The occurrence took place admittedly at night time and the accused were allegedly seen by the eye-witnesses in the light of a lantern which was stated to be available in the Kotha. Although there is a mention of a lantern in the Kotha, but neither the lantern was taken into possession by the Investigating Officer during the investigation nor the same was shown in the site plan. It has been stated that the occurrence took place when the deceased was taking meals, but the post-mortem report reveals that the stomach of the deceased contained digested food. It therefore, follows that the time of the occurrence is not the one as given by the witnesses, but the occurrence appears to have occurred late in the night. Sher Muhammad (P.W.11) has stated that he broke open the door of his house which was locked from outside while proceeding to the house of deceased for help, but this version has nowhere been substantiated through any cogent piece of evidence as neither the plank was indicated nor the same was taken into possession by the Investigating Officer the version as stated by Sher Muhammad (P.W.11) is, therefore, not trustworthy. According to the version stated by the eye-witnesses, the deceased as well as the injured witnesses were fired at from a very close range by the culprits, but neither any charring or burning nor tattoo marks were detected by the Medical Officer during their medical examination. Mst. Alam Khatoon, one of the injured wintesses was not examined as a prosecution witness for reasons best known to the prosecution while the presence of Sher Muhammad (P.W.11) at the spot at the relevant time also appears highly doubtful when the entire material available on the record is taken into consideration.
9. Perusal of the impugned judgment reveals that the learned trial Judge has based conviction in the instant case mainly on the identification parade held in jail under the supervision of Muhammad Amin Khattak Magistrate 1st Class (P.W.15). We find a good deal of force in the contention of the learned counsel for the appellants that evidence of identification per se is a weak type of evidence and is not to be believed having little evidentiary value. No doubt, in some cases under some peculiar circumstances, the identification may be considered quite reliable, but in the instant case it suffers from more than one defect. The admitted position in this case is that the identification parade was held after more than seven months of the occurrence. The appellants were not known to the witnesses and in the F.I.R. Some vague description and only a glimpse of them in the dark night has been mentioned. This fact coupled with the intervening period considered in the light of the definite allegations by the appellants that they had been shown to the witnesses prior to the holding of identification parade makes the evidence of identification extremely doubtful and unacceptable. It is further evident from the statement of Muhammad Amin Khattak, Magistrate 1st Class (P.W.15) that the purpose of identification was also not explained to the witnesses at the time of holding of their identification. Such identification has no evidentiary value and cannot be relied upon.
' This question was considered in Gulbeg and others v. State PLD 1964 Kar. 275 in a case of murder where the witnesses had a momentary and partial glimpse of the faces of assailants in torch light and the parade was held after twenty days of the occurrence. In that judgment their Lordships observed as follows:- "This delayed identification test based upon a momentary and partial glimpse of the face of the assailants is such that we find it extremely difficult to accept with implicit reliance. Besides, identification evidence has been considered by various Courts to be a weak type of evidence a form of evidence which is always to be taken with a considerable amount of caution, as held in the case of Ramzan and others v. Emperor AIR 1929 Sind 149. Monk in his law of Evidence, Vol. I at page 43 has remarked that:- Identification at night during a dacoity when the people are terrorised is generally of very little value." and again-- `Chances of error in identification become greatly increased when the identification is based upon a momentary gilmpse in the confusion and excitement of the moment at night though it be a moonlit night."
10. Since the identification parade in this case was field after more than seven months of the occurrence in the stated circumstances, the possibility that the witnesses had already seen the appellants before the mentioned identification parade cannot be excluded. No reliance in the circumstances can be placed on the evidence of identification and we have, therefore, no hesitation in rejecting, the evidence of identification on which reliance was placed by the learned trial Court while passing the order of conviction.
11. It has also come in the evidence of Allah Bakhsh, H.C. (P.W.18) that since the occurrence and before submitting a complete challan against the present appellants, hundreds of persons were joined in the investigation as suspects in the presence of P.Ws. And trackers and ultimately the present appellants were picked up on the basis of suspicion and as a result of the identification parade in the manner stated, were shown as the real culprits.
12. The learned counsel for the State submitted that the defence set up by the appellants was false and unacceptable, but his argument does not carry the case of prosecution any further. The prosecution have to prove their case beyond any reasonable doubt and any infirmity in the case of the defence will not lend support to the case of the prosecution.
13. On consideration of the entire material available on the record, we feel that the case against the accused was not free from doubt and the benefit of such doubt shall have to be extended to them.
We, therefore, set aside the conviction and sentences passed on Abdul Hameed alias Hameeda.
Son of Boota, Ahmad Khan alias Khani son of Muhammad Khan, Asif Javed son of Barkat Masih and Amanual Masih son of Said Masih, appellants, and acquit them of the charges. They shall be rleased forthwith if not required in any other case. The result is that, both the appeals are allowed.
The sentence of death passed on Abdul Hamid alias Hamida, appellant, is not confirmed. The connected revision petition filed by the complainant, Sher Muhammad, ipso facto fails and the same is dismissed accordingly revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.