' MUHAMMAD MUNIR KHAN, J.-- This criminal appeal arises from the judgment of learned Judge, Punjab Special Court for Speedy Trials No,VI, Bahawalpur, whereby he on 6-6-1988, while acquitting him of the charges under section 412/307/149, P.P.C. Convicted Sahaba alias Shehzada appellant under sections 396/395 and 397/395, P.P.C. And sentenced him as under:-\ Under section 396/395, P.P.C. for the murder of Abdul Karim during dacoity.Death and a fine of Rs.20,000, in default thereof 5 years' R.I., with the direction that the fine if recovered, half of the same be paid to the legal heirs of the deceased.
Under section 397/395, P.P.C.Imprisonment for life and a fine ofRs.40,000 in default thereof 7 years' R.I. with the direction that the fine if recovered half of it be paid to the injured P.Ws. in equal shares.
2. The occurrence took place on 12-10-1987 at 10-30 p.m. In the area of village Adamwali, P.S. Saddar, Rahimyar Khan. The F.I.R. Is statement Exh.P.I. Of Muhammad Aslam P.W. Which was recorded by Raja Muhammad Bisharat, Inspector, P.W. On the spot, on the same night at 11-00 p.m. Formal F.I.R. Exh.P.I./1 was registered at 11-30 p.m. At P.S. Saddar Rahimyar Khan.
3. On 17-10-1987, Dr. Shahid Naeem P.W. Performed post-mortem examination on the dead body of Abdul Karim. He found following injuries on his person:-
(1) "A lacerated wound 2" x 2" muscle deep, margin inverted on anterior part of middle of left thigh.
(2) A lacerated wound 1/2" x 1/2" on outer side of middle of left thigh.
(3) An incised stitched wound on the inner side of left ankle.
(4) A stitched mid-line, incision on the anterior wall of the abdomen extending from lower 1/3rd of chest upto umblicus about 7" long.
(5) A stitched wound 1" long on left side of wound No,4 at upper 1/3rd.
(6) A stitched wound 4" oblique direction extending from anterior exillary line to the middle of left lower chest anteriorly.
(7) A stitched wound 1/2" x 1/2" on right lower abdomen.
(8) A stitched wound 1-1/2" x 1-1/2" below the left costal margin in hypochondria."
' In his opinion, the death was due to internal hemorrhage and shock caused by the injuries collectively and by injury No,8 individually, which were sufficient to cause death in the ordinary course of nature. The time between injuries and death was 5 days and between death and post- mortem was 3-1/2 hours.
4. On 12-10-1987, Dr. Rashid Ahmad had medically examined Irshad Ahmad P.W. He found following injuries on his person:
(1) "A roughly circular wound about 4 x 3 c.m. On the back of chest about 4 c.m. Medial to the left scapula. Blackening of the edges of wound present. Corresponding hole on the clothes was present. Kept under observation advised X-Ray chest.
(2) A circular wound about 1 c.m. In diameter on the back of the left shoulder present. Blackening of the edges present. Corresponding hole on the clothes present.
' A roughly circular wound about 5 x 4 c.m. On the front of the (Rt) knee. Bone exposed. Blackening of edges present. Corresponding circular hole on the clothes present."
' The injury No,3 was grievous and the rest were simple.
' On the same day, he medically examined Liayst All P W. And found following injuries on his person.
(1) "A roughly circular wound 3 x 2 c.m. On the medial asps l If left thumb, blackening of the edges were present.
(2) An abrasion 2 x 1' c.m. About 2 c.m. Lateral to right nipple. Blackening of the edges were present and corresponding hole on clothes was present.
(3) An abrasion about 2 x 1/2 c.m. On lateral aspect of left arm, blackening of the edges present and corresponding hole on clothes was present.
(4) Multiple small abrasion on anterior aspect of nose.
(5) A wound about 1.5 c.m. x skin deep on the anterior aspect of left ankle. Blackening of edges present. Injuries Nos. 2 and 3 were simple. Injury No,4 was by blunt weapon and the rest were caused by fire-arm. On the same day he examined Asghar Ali P.W. And found following injuries on his person:-
(1) "A circular wound about 1 c.m. In diameter on left side of face over mandible about 5 c.m. Lateral to left angle of mouth. Blackening of the edges present.
(2) A circular wound about 1/2 c.m. In diameter over left side of neck about 2.5 c.m. Below the left ear, blackening of the edges were present.
(3) A roughly circular wound 1 x 1-1/2 c.m. On the left side of neck about 5 c.m. Below injury No,2.
(4) A roughly circular wound about 3 x 2.5 c.m. On the anterior aspect of left shoulder just above the lateral 1/3rd of clavical. Blackening of edges were present and corresponding hole in the clothes present.
(5) A roughly circular wound about 1.5 x 1 c.m. On the lateral aspect of left shoulder. Blackening of edges present and corresponding hole on clothes was present.
(6) A circular wound about 1/2 c.m. In diameter on the back of chest about 3 c.m. Lateral to the medial border of scapula. Blackening of edges and corresponding hole on the clothes was present."
' All the injuries were caused by fire-arm. Injuries Nos.1, 2 and 3 were declared dangerous to life and the rest were simple.
' On the same day the doctor examined Atta Ullah and found following injury on his person:- "Multiple small circular wounds about 9 or 10 in number, each wound about 1/2 c.m. In diameter on the right half of back of chest on the lower part of scapula. Blackening of the edges were present and corresponding hole in the clothes was present."
' The injury was caused by fire-arm and was found simple.
5. The appellant was arrested on 16-3-1988 by Muhammad Sadiq Inspector, P.W.21. He got recovered four cotton suits Exh.P.16/1-4 of Sajjad Ahmad P.W.22 buried underneath bushes in the jungle, which were taken into possession vide memo. Exh.P.Q., attested by Pathan Khan P.W.15 and Abdul Aziz P.W.16. The recoveries were effected by Muhammad Sadiq, Inspector, P.W.21. On 2-4-1988, the appellant was produced before Abdul Matloob, M.I.C. P.W.I. He made confession Exh.P.A./4 before him.
6. The charges against the appellant were that: Firstly: He along with his co-accused armed with Kalashnikovs, rifles and guns stopped Tralla Bus No,1250/LHB, Truck No,7175/FDA and Truck No,1068/AJICB and robbed Muhammad Aslam, Driver of wrist-watch, Conductor Ashiq Muhammad of Rs,4,000 and wrist-watch, Ahmad Bakhsh of Rs,1,250 and wrist watch, Ali Ahmad of Rs,25 and wrist watch, Muhammad Ashraf of Rs,400, Sajjad Ahmad of Rs,300, three suits and bag, Ghulam Mustafa of Rs,250 and clothes (two suits) and injured the P.Ws.
With deadly weapons in the course of dacoity.
' Secondly: He and his co-accused conjointly murdered Abdul Karim, a passenger.
' Thirdly: Launched murderous assault on Irshad Ahmad, Liaqat Ali, Asghar Ali and Ata Ullah P.Ws. By firing shots on them; ' Fourthly: Committed robbery by looting Manzoor Ahmad of silver Taveez and identity card, Peeran Ditta of `Dholen of silver', Khuda Bakhsh of Rs,100 and wrist watch and Karim Bakhsh of Rs,200 and wrist watch; ' Fifthly: He was retaining dishonestly, two stolen suits of Sajjad Ahmad P.W.22. He denied the charges and claimed to be tried.
7. To prove its case, prosecution produced as many as 23 witnesses. Liaqat Ali P.W.7, Karim Bakhsh P.W.8, Muhammad Aslam P.W.9, Irshad Ahmad P.W.10, Manzoor Ahmad P.W.18, Muhammad Aslam son of Sultan P.W.19 and Sajjad Ahmad P.W.22 are the eye-witnesses of the occurrence. The witnesses other than Manzoor Ahmad P.W. Have categorically stated that they had not identified the culprits as they had muffled their faces. They have not named and identified Sahaba appellant as one of the offenders. Manzoor Ahmad P.W.18 claimed to have identified the appellant at the time of occurrence. In cross-examination, he stated that the appellant was not known to him previously and no parade for his identification was held. So, his evidence does not take the case of the prosecution any further. Abdul Matloob, M.I.C. P.W.1 stated that after having all the precautions, he had recorded Exh.P.A./4, the confession of the appellant. Pathan Khan P.W.15 and Abdul Aziz P.W.16 have supported the recovery of the suits of Sajjad Ahmad P.W.22 from the appellant. Dr. Shahid Naeem, P.W.2 has proved the post-mortem examination report. Dr. Rashid Ahmad P.W.3 has proved the medico-legal reports of the injured P.Ws. Raja Bisharat Hussain, Inspector, P.W.20 had recorded the F.I.R. And has also proved the circumstance of the ascendance of the appellant. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He did not produce any witness in defense. He did not give statement on oath in disproof of the charges against him.
9. Believing confession made by the appellant before Abdul Matloob, M.I.C. P.W.1, medical evidence, the circumstance of ascendance of the appellant, the recovery of the empties from the spot, damage done to the bus and the recovery from Hazoor Bakhsh and Khawand Bakhsh co-accused, the trial Court has convicted and sentenced the appellant as stated above.
10. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubts; that the eye-witnesses have not named the appellant; that the confession allegedly made by the appellant before the Magistrate is too vague and that there is no independent corroboration of the confession qua the appellant. Learned Assistant Advocate- General has supportel the judgment of the trial Court.
11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statement made by the appellant/accused under section 342, Cr.P.C. And the circumstances appearing in the case, carefully. We find that the eye-witnesses other than Manzoor Ahmad have not named and identified the appellant as one of the offenders. Although the appellant was not known to Manzoor Ahmad P.W. Before the occurrence yet no identification parade was held to ensure the identity of the culprit. So, the ocular evidence is of no use to the prosecution.
12. Adverting to the confession Exh.P.A./4, we find that the same is really too vague to connect the appellant with the incident which took place at 10-30 p.m. On 12-10-1987 in village Adam Wali. In the confession, the date of occurrence, the time of occurrence, and the names of the persons robbed of have not been mentioned. So, it cannot be said with certainty that the confession made by the appellant relates to the charges against him. This piece of evidence, therefore, has to be excluded from consideration.
13. Taking up the circumstance of ascendance of the appellant, the recovery of the 40 crime empties from the spot, the damage done to the bus, the recoveries from the co-accused Hazoor Bakhsh and Khawand Bakhsh relied upon by the trial Court, we find that the circumstances other than the ascendance of A the appellant may corroborate the factum of the incident but do not corroborate the identity of the culprit. It is well-settled that whenever rule of prudence requires independent corroboration of a judicial confession or of interested g witness, that should always be with regard to the story of the prosecution as well as the identity of the assailants. Since judicial confession Exh.P.A./4 has already been discarded by us, therefore, conviction cannot be based on the circumstance of ascendance, alone. For all these reasons. We are convinced that the c prosecution has failed to prove its case against the appellant beyond reasonable doubts.
' The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction, the appeal is allowed and the appellant is acquitted of the charges. He shall be released forthwith, if not required to be detained in any other case.