MUHAMMAD AFZAL CHEEMA, J.-Gulab appellant, was separately tried by the learned Sessions Judge, Rawalpindi, as one of the three accused who bad allegedly committed triple murder of Sher Zaman an old man of about 70 years, Gulab, a middle-aged man, Muhammad Screed, a young lad of about eleven years, as also for the attempted murder of Muhammad Azim, complainant, P.
W. 13, and Mst. Diljan, P. W. 14.
According to the prosecution case, the co-accused of the appellant, namely Gulzar and Dildar, were brothers, who had a direct motive to kill Gulab deceased, and having been arrested in tire first instance, both absconded. Subsequently however, Dildar was arrested and his trial ended in conviction. His appeal was dismissed ride this Court's judgment dated 9-2-1968. Gulzar is still at large, while the present appellant was allegedly arrested in May 1968, and on trial and conviction by the learned Sessions Judge, Rawalpindi, for offence under section 302/34 of the Pakistan Penal Code, on three counts, was awarded the sentence of death on each count, ride the impugned judgment dated 29-11-1969. In addition to this, he was also convicted under section 307/34 of the Pakistan Penal Code, with an award of seven years' rigorous imprisonment, on each count, which was directed to run concurrently in the event of non-confirmation of the sentence of death. He has appealed against his conviction and sentence, and his case has also been referred to us under section 374 of the Criminal Procedure Code for confirmation of the sentence of death. This judgment will dispose of the appeal, as also the murder reference.
2. The case of the prosecution as revealed in the initial report lodged by Muhammad Azim, P. W. 13, a brother-in-law of Gulab deceased with Sub-Inspector Sardar Nasim Akhtar, P. W. 18, briefly is that after the death of Muhammad Azim father Lai Khan, his mother Mst. Nishan, re-married one Godhar. In this wedlock, she gave birth to Muhammad Hussain, a step--brother of Muhammad Azim P. W. Who being an Army personnel, was killed during World War II, leaving behind two minor sons, Dildar and Gulzar the two co-accused of the appellant. Having lost their grandmother, Mst.
Nisban, who lived with her nephew and son-in-law, Gulab deceased, in village Dhok Bandi, Police Station Murree, District Rawalpindi. Mst. Nishan being sole heir of Muhammad Hussain, father of Gulzar and Dildar co-accused in this case, as also the guardian of his minor children Gulzar and Dildar, received the pension of her deceased son Muhammad Hussain. When Dildar and Gulzar came of age; they left their village in search of jobs, Gulzar, however, used to send monies to Gulab deceased, who was the husband of his father's sister, in the hope that the latter would give him the hand of his daughter Mst. Mazloom Jan, which he had allegedly promised: Subsequently, however, Mst. Mazloom Jan was married to another person Dedar as Gulab deceased was not satisfied with the conduct and character of Gulzar. Having been frustrated in his hope, Gulzar demanded return of the money that he had been paying off and on to Gulab from time to time, amounting in his estimation to Rs. 1,600. Gulab deceased allegedly went in putting him off on one pretext or another.
This incensed him. Having been disappointed, Gulzar threatened Gulab deceased with dire consequences.
3. On the morning of 30-9-1965, at 7 a.m., Gulab deceased sent for Muhammad Azim, complainant, P. W. 13 and expressed to him the danger to his life at the hands of Dildar and Gulzar. The situation having taken a serious turn, Gulab deceased and Muhammad Azim, complainant, P. W. 13, Left for the Police Station Murree at 7 a.m. Muhammad Azim, P. W. Also carried with him his '12 bore licensed Sun, as a precautionary measure. As they readied towards the north-east of the house of Sher Zaman deceased near the metalled road going to Glehra Gali, suddenly they were tired at from the top of the hills. They took shelter behind some bushes, and could see Dildar and Gulzar accused, sons of Muhammad Hussain, accompanied by a third unknown person, firing towards them from a distance of 50/60 paces from above the hills. Dildar accused and the unknown assailant was later on identified as the present appellant, carrying rifles with them. Muhammad Azim also fired at them in self-defence with his .12 bore rifle. After some time, Muhammad Azim, complainant, and Gulab deceased managed to come down to the house of Sher Zaman where Gulab deceased hid himself in the middle room and chained the door from inside. Muhammad Azim P. W. Took shelter behind a heap of rubbish and fuel-wood lying in the court--yard of the house. Dildar. Gulzar and the third accused came in their wake m the house of Sher Zaman deceased, who happened to be present in his courtyard. On inquiry, be expressed his ignorance about the whereabouts of Gulab deceased whereupon Gulzar accused allegedly fired at him with his rifle who fell down dead instantaneously. In the meantime. Mst. Diljan, P. W. 14, widow of Sher Zaman deceased, emerged from the house. She was also fired at by the unnamed accused and fell down by the injured. Mst.
Zubeda Begum P. W. 15 another lady in the same house, wife of one Abdul Rashid, who happened to be in the verandah, got aside out of fear. All the three assailants first entered the southern room where Muhammad Screed deceased, a young lad of eleven years, had taken shelter. Having entered the room they started firing, then went to the middle room where Gulab deceased hid himself. Then, after breaking open we door, they entered the middle room where Gulab deceased hid himself, and fired several shots. All the three accused then left the spot hurling abuses.
4. After their departure, Bostan Khan, P. W. 17, a resident of the same village, who also hid himself close by came to the spot. Muhammad Azim, complainant, and Bostan KhanP. W. Found both Gulab and Muhammad Saeed lying dead in their respective rooms Muhammad Azim, complainant, then prepared for the Police Station, and happened to meet Sub-Inspector Sardar Nasim Akhtar P. W. 18, Station House Officer of Police Station Murree, and lodged report, Exh. P. A.
With him, at about 10 a.m, at Glehra Gali, on the basis of which formal First Information Report, Exh: P.A./ 1, was drawn up at Police Station Murrew at 11 a.m., which was recorded by Assistant Sub- Inspector of Police, Sajjad Hussain P. W. 10.
5. As stated earlier, Gulab appellant, was arrested in May, 1.965. Although the specific date of his arrest has not been brought on the record yet it appears from the Police record that he was arrested on 11-5-1968 by Pabbi Police of Tehsil Nowshera, District Peshawar. It is in evidence; as also admitted by him in his statement under section 342, Cr. P. C. That he was an Army personnel having been employed in 3 Engr. Bn. And was a Mily. Deserter as stated by Muhammad Nauroz, P.
W. 12, Hav. Clerk, Eng. Centre, Risalpur, who placed on record his Desertion Report, Exh. P. W. 12/1. His identification parade was held by Mr. Haleem Sher Khan, Magistrate 1st Class, Rawalpindi, P. W. 1 on 28-5-1968, I.e. More than a fortnight after his arrest although, according to the Magistrate made on the basis of his Identification Parade Report, the appellant way identified by Muhammad Azim, complainant and Mil. Diljan Mst. Zubaida Begum, P. Ws. This evidence is completely wiped, out by the admissions of the two ladies themselves. Namely, Mst. Diljan, P. W. 14, and Mst. Zubeda Begum, P. W 15, who categorically stated that the appellant had been shown to them at Police station Murree before the identification parade was held.
Another incriminating piece of evidence sought to be relied upon by the Prosecution in this regard was the recovery of rifle Exh. P. 8 with butt No. 32, wrongly mentioned as No. 52 in the relevant Recovery Memo. Exh. P. O. Dated 2-10-1965, body No. 2649 along with a belt Exh. P. 51 containing two chargers, one having five live rounds, and the other having three live rounds which were recovered from the possession of Gulzar accus--ed at the time of his arrest who subsequently absconded and is still at large. This rifle was rent to the Forensic Expert along with the crime empties but the Report of the Expert was withheld by the Prosecution presumably because it did not support its case.
Besides this, another element of doubt is introduced by the absence of the relevant No. Of the rifle in the Desertion Report, Exh. P. W. 12/1. For all these reasons, the learned trial Judge did not rely on the evidence of recovery, and very rightly so.
The prosecution case principally rested on the ocular testimony of Muhammad Azim, P. W. 13, Mst.
Dilian P. W. 14, Mst. Zubeda Begum P. W. 15 and Bostan Khan, P. W. 17.
6. When examined under section 342 of the Criminal Procedure Code, the appellant denied the allegations except that he admitted having deserted his unit in the Engineering Battalion. Placing reliance on the ocular testi--mony of eye-witnesses, the learned trial judge came to the conclusion that the offence was fully brought home to the appellant and accordingly convicted him,
7. It was contended on behalf of the appellant before us that with the exclusion of the evidence of identification parade coupled with the conspicu--ous absence of the description of the appellant in the police statement, of eye-witnesses, including the First Information Report lodged by Muhammad Azim, complainant, P. W. 13, it would be difficult to correctly identify the appellant as the third unnamed assailant mentioned in the F. I. R. The contention is not without force. Having been taken through the statements of eye-witnesses, we cannot avoid the impression that in order to justify their claim to the identification of the appellant, the prosecution witnesses tiled to improve on their police statements and asserted that the appellant used to visit the place of Dildar and Gulzar accused, and bad paid his last visit three or four days prior to the occurrence. If this were really so, there is no earthly reason why a description of the appellant should not have been incorporated by Muhammad Azim, complainant, in his initial report or by any of the other so-called eye-witnesses in their police statements. It appears to us that after his arrest a little less than three years after the occurrence, the appellant had been shown to the eye-witnesses in order to make sure that nobody missed to pick him up during the identification parade. As stated earlier, Mst.
Diljan P. W. 14 and Mst. Zubeda Begum P. W. 15 had categorically admitted this position which even otherwise can be Clearly spelt out from the delay in holding the identification parade which was conduct--ed more than a fortnight after the arrest of the appellant. Of course the police, statement of Mst. Dilan P. W. 14 was not brought on the record as she does not appear to have been confronted with the same, but there is a vague reference in the police statement of Mst.
Zubeda Begum P. W. 151 that the third unknown assailant appeared to be a Pathan. This per se is hardly good enough to establish the identity of the appellant as the third assailant. The appellant was a resident of a distant village in Tehsil Nowshera, District Peshawar who appears to be a complete stranger to the prosecution witness otherwise he should have been specifically named in the F. I. R. Or at least elaborately described in the police statements. The evidence of recoveries having been discarded, and the evidence of identifica--petition parade having also been disbelieved, we are of the view that the ocular testimony does not sufficiently establish the identity of the appellant as the unknown assailant. In the circumstances, therefore, we are clearly of the view that the prosecution has not been able to establish the case against him beyond reasonable doubt. Accordingly we allow this appeal, set aside the conviction and the sentence, and direct that the appellant may be released froth jail if not required in any other case.