MUREED vs THE STATE

1. ' ALLAHDINO G. MEMON, J.--- The appellant Mureed son of Mitho Khoso has been convicted under section 302/34, P.P.C. By the learned Judge, Special Court for Speedy Trials Sukkur Division, at Sukkur, and sentenced to death and to pay fine of Rs,50,000 (Rupees fifty thousand) or in default to suffer R.I. For two years vide judgment, dated 29-11-1988.

2. The brief facts of the prosecution case are that on 28-2-1987, complainant Arif Niaz P.W.3, lodged a report at Police Station Kazi Ahmed, which reads as under:-- "I and my father Chaudhry Niaz Ahmed after attending open Katchery of D.C. Nawabshah, came from village Sukhio Manahejo in our car at Kazi Ahmed as my father had to talk on telephone. After parking car outside the exchange we both came inside Exchange Office, Electric light was off and there was dark of the night, therefore, I took up a torch. My father booked call for Karachi at 6-37 p.m. At 6-45 p.m. Call was matured but there was no reply from Karachi number. We took permission from Incharge Exchange and at about 6-45 p.m. Came out of Exchange room. My father was ahead of me. I flashed torch and was going on left side of my father. On the light of the torch I saw that two persons armed with pistols were standing at the side of pillars outside the Verandah. Out of them one person fired pistol shot at my father which hit my father on the right side of his chest below nipple, who fell down on the back. Thereafter both the accused started running outside the Exchang. On the light of the torch I also saw that one accused re-loaded the pistol while running, and empty fell down on the Wardat. I had seen the accused carefully and would identify them as and when saw them. In the meantime, on the fire-arm report Aijaz Ahmed with torch in his hand, Riaz Ahmed and Ashraf came there and told me that they also had seen the accused firing on Ch. Niaz Ahmed and thereafter running away, and that they would identify the accused as and when saw them. My father on receiving fireshot injuries went unconscious and I, with the help of above witnesses, removed him in car to the hospital at Kazi Ahmed, where my father breathed his last. I left the P.Ws. To guard the dead body, and have come to lodge report. My father was known as social worker and Nekmard of middle class people. Muhammad Akhtar Asadullah and other friends of my father may be knowing about the enmity of some body with my father and they would tell about it. The accused with great conspiracy have murdered my father by firing pistol shot at him. I pray for justice.

3. ' The above F.I.R. Was recorded by S.H.O. Ghulam Kabir and the same has been produced as Exh.17.

4. Thereafter S.H.O. Accompanied the complainant to the hospital at Kazi Ahmed where he saw dead body of deceased Ch. Niaz Ahmed lying in Verandah. He prepared Mashirnama of dead body in presence of Mashirs Aslam and Nazir at 7-50 p.m. He also prepared the inquest report in presence of same Mashirs, thereafter he gave letter to the Medical Officer for post-mortem. The inquest report has been produced as Exh.38. The S.H.O. Had found fire-arm injuries on the right side of chest below the nipple of the deceased. He went to the place of Wardat which was shown to him by complainant Arif Niaz and the same was situated in telephone exchange office. He secured blood- stained earth from Wardat and one empty cartridge. He sealed the same in separate parcel and prepared such Mashirnama which has been produced as Exh.39. On 1-3-1987, he went to Roshan Abad where he examined P.Ws. Aijaz Ahmed, Riazul Haq, Muhammad Ashraf, Asadullah and Ch. Akhtar under section 161, Cr.P.C. Complainant Arif Niaz and P.W. Aijaz Ahmed produced their torches before him which he secured under Mashirnama and the same has been produced as Exh.40. On 3-3-1987, he examined P.W. Muhammad Aslam and Abdul Hameed at Police Station Kazi Ahmed, P.W. Abdul Hameed produced a torch before him which he secured and prepared such Mashirnama in presence of the same Mashirs. The Mashirnama has been produced as Exh.41. On 19-3-1987, he arrested accused Mureed from his house in presence of Mashirs Ahmed and Ata Muhammad under Mashirnama which has been produced as Exh.43. The accused Mureed after arrest volunteered to produce crime weapon/pistol and voluntarily led him and Mashirs to heap of dung lying in the courtyard of his house. He dug out the pistol from the heap and produced the same before S.H.O. Who secured and sealed the same under Mashirnama, which has been produced as Exh.44. It was found loaded with one live-cartridge. He then brought the accused and property to Police Station Kazi Ahmed and lodged report under section 13-D of the Arms Ordinance against the accused as he had no licence for the pistol. The F.I.R. Has been produced as Exh.48. He recorded statements of P.Ws. A.S.I. Muhammad Ramzan, Head Constable Ata Muhammad and Muhammad Ilvas under section 161, Cr.P.C. He had examined the Mashirs at the Wardat in the above case. Thereafter he produced the accused before the Head Munshi and Second Class Magistrate Sakrand and sent a policeman to the witnesses to bring them to Taluka Office Sakrand for identification of the accused. On the same day, after the identification test was held, he produced accused Mureed before the Mukhtiarkar and F.C.M. Sakrand for recording his judicial confession. On 21-3-1987, he produced P.Ws. Aslam and Abdul Hameed before the Head Munshi and S.C.M. Sakrand for identification test of accused Mureed. On 28-3-1987, he received spy information that the accused Azizullah Mari was available at Umer Kot. On that day, he alongwith his subordinate staff went to Umer Kot and arrested accused Azizullah Mari at bus stand in presence of Mashirs Ishtiaq Ahmed and Muhammad Tahir. The accused was on motor-cycle which he secured in presence of the same Mashirs and prepared such Mashirnama which has been produced as Exh.46. He then produced accused Azizullah Mari before Mukhtiarkar and F.C.M. Umer Kot for recording his judicial confession. He then came back to the police station. On 29-3-1989, he deputed A.S.I. Muhammad Ramzan to produce P.Ws. Before the Head Munshi and S.C.M. Umer Kot for identification test of accused Azizullah Mari. On 31-3-1987, he arrested accused Mooso from his house in presence of Mashirs Muhammad Rafique and Muhammad Ali and prepared such Mashirnama of arrest which has been produced as Exh.49. On 1-4-1987, he produced P.Ws.

5. Muhammad Ashraf, Aslam, and Abdul Hameed before Head Munshi and S.C.M. Sakrand for identification test of accused Mooso. On 26-4-1987, he submitted final challan before the Court. He had sent blood-stained articles to the Chemical Analyser and crime weapons and empty to ballistic expert for examination and report through Superintendent of Police Nawabshah. He has produced the chemical report and ballistic expert report as Exh.50 and Exh.51.

6. ' A formal charge was framed against the appellant and co-accused, to which they pleaded not guilty.

7. ' At the trial, prosecution examined S.H.O. Aftab Ahmed, who had received N.B.Ws. For service against accused Gulo, but the same could not be served. He has produced the non-bailable warrant as Exh.1-A, statements of Nekmards as 'A', 'B', 'C' and 'D', his own report as Exh.I-E'. P.C. Meer Muhammad P.W.2, he had handed over dead body of deceased Ch. Niaz to Medical Officer for post-mortem examination. After post-mortem examination he had received the dead body which he handed over to its relatives after obtaining receipt and the receipt has been produced as Exh.15, while the bloodstained clothes of the deceased were deposited in the Malkhana at police station.

8. Complainant Arif Niaz P.W.3, he has produced his F.I.R. As Exh.17, Aijaz an eyewitness P.W.4, Riaz Ahmed P.W.5, an eye-witness, Mcer Khan the then Head Munshi and Assistant Mukhtiarkar at Sakrand, who had held identification test of accused Mureed, through P.Ws. Arif Niaz, Aijaz, Riaz and Muhammad Ashraf, he has produced the Mashirnama of identification test as Exh.22. He had held another identification test of accused Mureed through witnesses Abdul Hameed and Aslam under Mashirnama, which has been produced as Exh.23. He had also held identification test of accused Mooso through P.Ws. Abdul Hameed and Muhammad Aslam and Mashirnama has been produced as Exh.24. Mr. Abdul Qadir P.W.7, the then Mukhtiarkar and F.C.M. Umer Kot, who had recorded judicial confession of accused Azizullah Mari and the same has been produced by him as Exh.26.

9. Dr. Fazal Muhammad, Medical Officer, Kazi Ahmed P.W.8, he has produced the post-mortem report of deceased Ch. Niaz as Exh.28. Tapedar Abdul Karim P.W.9 he has produced the sketch as Exh.30, Abdul Hameed an eye-witness P.W.10, statement of public prosecutor giving up P.W. Ashraf and Aslam as Exh.32. Asadullah P.W.11 Krishan Lal, the then Mukhtiarkar and F.C.M. Sakrand P.W.12 he has produced the judicial confession of accused Mureed as Exh.35 Mashir Muhammad Aslam, he has produced Mashirnama of dead body as Exh.37, inquest report as Exh.38, place of Wardat as Exh.39, production of torches by complainant Arif Niaz and P.W. Aijaz on the following day Exh.40, production of torch on 3-3-1987 by P.W. Abdul Hameed Exh.41, Mashir Nasir Ahmed P.W.14, he has produced Mashirnama of arrest of accused Mureed as Exh.43, production of Mashirnama of pistol by accused as Exh.44, Mashir Ishtiaq Ahmed P.W.15, he has produced Mashirnama of arrest of accused Azizullah Mari and recovery of motor-cycle from him as Exh.46. S.H.O. Ghulam Kabir P.W.16, he had carried on investigation of the case and challaned the accused. He has produced the F.I.R.

10. Registered by him under section 13-E of Arms Ordinance as Exh.48, Mashirnama of arrest of accused Mooso Exh.49, Chemical Report Exh.40, report of Ballistic Expert Exh.51, Muhammad Suleman Assistant Mukhtiarkar and S.C.M. Umer Kot who had held identification test of accused Azizullah Mari through complainant Arif Niaz P.Ws. Aijaz Ahmed, Riaz, Muhammad Ashraf and Abdul Hameed, he has produced Mashirnama of identification test as Exh.54.

11. ' After close of the prosecution case, the statements of the appellant and co-accused were recorded in which they denied the allegations. It was further stated by the present appellant that his confessional statement was got prepared by Sub-Inspector and he forcibly obtained his L.T.I.

12. On it, he has further stated that P.Ws. Are residents of village Roshan Abad and not of Kazi Ahmed.

13. They have been set up. That injustice has been done to him by the prosecution. He has produced the copy of voters' list of P.W. Riazul Haq as Exh.56-A Aijazul Haq as Exh.56-B, photostat copy of electoral roll of Unit Dch Golo Dhahiri in fourteen leaves as Exh.56. According to him, he was arrested by police on 2-3-1987 from his house, his womenfolk were also brought to police station.

14. They used to coerce him to give judicial confession of murder of Ch. Niaz but he used to refuse.

15. They also maltreated his ladies in presence of Nekmards of locality, namely, Mooso Mchar, Shahenshah Mehar, Haji Khan Lakho, and Piral Chandio. After maltreatment he was produced before Mukhtiarkar and F.C.M. Sakrand on 19-3-1987, and he obtained his L.T.I. Forcibly. He is a literate person and knows how to sign. On 24-3-1987, Ghulam Muhammad Butt, Sobedar, brought him at Police Station Nawabshah, detained him at the police station for the night and on 25-3-1987, he was brought to Central Jail, Sukkur. On 2-4-1987 he sent an application to Sessions Judge, Nawabshah from Central Jail, Sukkur that he had not given judicial confession and that his L.T.I.

16. Was obtained forcibly. In the list of defence witnesses he had given four names who were later on given up. Co-accused Azizullah had further stated that he was arrested on 4-3-1987 and was kept in wrongful confinement. His L.T.I. Was forcibly obtained on judicial confession. He is a lame person and cannot run. He has been implicated falsely. He has produced photostat copy of application sent to Sessions Judge, Nawabshah, from District Jail, Mirpur Khas, as Exh.57-A. He has also produced copies of newspapers Daily Aman, dated 16-4-1987, as Exh.57-B, Daily Ibrat dated 9-3- 1987, Exh.57-C, Daily Ibrat dated 27-3-1987, Exh.57-D and Daily Ibrat dated 18-10-1988 Exh.57-E.

17. ' Dr. Fazal Muhammad P.W.8, had carried on post-mortem on the dead body of Ch. Niaz Ahmed.

18. According to him, he found the following injuries on the person of deceased on external examination:--

(1) Punctured type of fire-arm wounds of entrance of 1 x 1/4 c.m. In diameter on right side epigastrium margins inverted irregularly charred.

(2) Laceration charred 1-1/2 c.m. x 1 c.m. On right side abdomen 3 c.m. Below injury No,1.

19. (superficial).

20. ' On internal examination he found the following damage.

21. ' Left side of heart was empty, right side of heart contained dark red blood, right side abdomen was punctured and ruptured. Peritoneum punctured on right side abdomen at nine places, abdomen cavity full of blood. Stomach contained fluidy food matter and blood. Stomach punctured at two places. Small intestine punctured at many places. It contained fluidy food matter. Large intestine punctured at many places and contained faecal matter. Four big size pellets extracted from intestine and muscle of abdomen. Right lobe of liver punctured at two places. Spleen punctured at one place. One big size pellet extracted from spleen, bladder was empty.

22. ' From external as well as internal examination of the dead body, he was of the opinion that the death of Niaz was caused due to injuries to vital organs as liver, stomach, spleen and shock and haemorrhage. All the injuries appeared to have been caused by fire-arm such as gun or pistol and were anti-mortem in nature. Injuries Nos. 1 and 2 individually and all injuries collectively were sufficient to cause death in ordinary course of nature. Probable duration which elapsed between the injuries and death was within thirty minutes and between death and post-mortem 1-1/2 hours.

23. Pellet extracted from the body was sent to the police in a sealed bottle. He has produced the post- mortem report as Exh.28.

24. ' Complainant Arif Niaz P.W.3, has supported the contents of his F.I.R. And has produced the F.I.R. As Exh.17. He has further deposed that after recording his F.I.R. S.N.O. Came to the hospital. After post- mortem examination dead body of deceased Niaz Ahmed was delivered to him. He had shown place of Wardat to police. The police had secured blood-stained earth and empty from the Wardat and sealed the same. After showing Wardat to the police when he went back to the hospital P.W.

25. Abdul Hameed, who is working in Cotton Ginning Factory informed him that he and Muhammad Aslam were coming from factory, he had torch in his hand and in the light of the torch he had seen 5 persons with pistols in their hands out of which 2 went on motor-cycle and 3 went by foot. He further told that he had seen those culprits clearly and would identify them. On 19-3-1987 a policeman came and told him that S.H.O. Had called them at Taluka Office Sakrand for identification of a culprit, Then (complainant) P.Ws. Aijaz, Riaz and Muhammad Ashraf went to Taluka Office Sakrand. They were produced before Head Munshi, who made them sit in the Office of Clerks, from where they were called for identification test one by one. There was a line of ten persons out of which he picked out a man standing at Serial No,3 in the line. He was the person who had fired pistol shot at his father. (The witness pointed out accused Mureed, who was picked out in the test). He was not previously known to him but he had seen him on the day of incident. On 28-3- 1987 a policeman came to inform them that S.H.O. Had directed them to come to Umer Kot for identification test of a suspected person. On 29-3-1987 he, P.Ws. Aijaz, Riaz, Muhammad Ashraf, Abdul Hameed and Muhammad Aslam went to Umer Kot. A.S.I. Muhammad Ramzan of Kazi Ahmed Police Station was present in Taluka Police Umer Kot. They were produced before Head Munshi, who arranged the identification test in the fort. They were called one by one and he had picked out a person standing at Serial No,7, who was present with the person who had fired at his father. (He has pointed out accused Azizullah). He was not known to him previously. He had come to know from his elders that accused Azizullah had declared that he would take revenge from Niaz Ahmad as there had been raid at his Pathary' during M.R.D. Movement and he had received bullet injury on the leg.

26. He had come to know about the above facts from his maternal-uncle Muhammad Akhtar and cousin Asadullah. About two months prior to this incident Nazroo Khoso had come to commit theft in the house of Chaudhry Khalid and while committing theft he was murdered. Khosos alleged that Nazroo was got murdered by Chaudhry Niaz and they will take revenge. This information was also given to him by Muhammad Akhtar and Asadullah. Nazroo Khoso was brother of accused Mureed.

27. He had come to know about it subsequently. He had produced his torch before the police on the following day. In cross-examination he has deposed that P.W. Asadullah had come in the hospital.

28. He did not tell him anything in hospital. His father did not tell him that accused Azizullah had issued threats to him. He did not know that accused Azizullah had received injury. He had not seen motor- cycle on which the culprits had run away as stated by Abdul Hameed and Muhammad Aslam. He had seen accused Azizullah and Mureed going out of the exchange office immediately. He had not given description of the accused in the F.I.R. As police had not inquired from him about the same.

29. His father did not tell during his lifetime if he apprehended any danger at the hands of any body.

30. He has admitted that Ch. Khalid was also joined in the investigation of this case as one of the suspected culprits. He came to know subsequently that accused Azizullah was apprehended while going on motor-cycle of Ch. Khalid. There was no light in the exchange office. He has admitted that P.Ws. Aijaz, Riaz and Muhammad Aslam are Punjabis. Zafar is his brother-in-law. But he did not know what was the relationship between Zafar and P.W. Aijaz. The name of Ashraf was disclosed to him by P.Ws. Aijaz and Riaz. He did not state in his F.I.R. That Ashrars name was disclosed to him by Aijaz and Riaz. His clothes were not stained with blood. Mashir Isthiaq is Punjabi. He did not know if Mashir Muhammad Tahir is also Punjabi. He has admitted that they were produced before Head Munshi, Sakrand by the S.H.O. His uncle is in police service and is posted as Superintendent of Police at Bahawalpur. His uncle who is Superintendent of Police had come to them after this incident. He has admitted that other Inspectors apart from Inspector Dal used to come for investigation of this case. He did not know if accused Mureed was arrested on 2-3-1987. He has denied that after his arrest the accused was maltreated by S.H.O. In his presence. P.Ws. Riaz, Aijaz, Ashraf, Abdul Hameed, Muhammad Aslam and Asadullah were also present in the hospital when they had removed the dead body from the hospital. He has denied a suggestion that he was not present at the time of incident and had not witnessed the incident. He has further stated that the dead body of his father was given to him at 9-15 p.m. And thereafter he made arrangements for its removal.

31. Till then he was in the hospital. He had seen Abdul Hameed and Aslam in the hospital at about 8- 30 or 8-45 p.m. His father Niaz Ahmed knew driving. He has denied that on the day of incident he had not accompanied his father to Kazi Ahmed. Niaz Ahmed had driven the car himself.

32. ' Aijaz P.W.4 has deposed that he knew deceased Ch. Niaz Ahmed and his son complainant Arif. On 28-2-1987, at 6-45 p.m. He was going to purchase medicine from Jamil Medical Store, Kazi Ahmed.

33. There was no light in the town and when he reached in front of Telephone Exchange P.W. Riaz Ahmed met him whom he asked that after taking medicine from medical store they will go to the house together. According to Riaz Ahmed P.W.5, on 8-2-1987 at 6-45 p.m. He was coming from the hotel of Ghulam Rasool at Kazi Ahmed after taking tea. P.W. Aijaz met him at Chowk of Dairah Road, Aijaz asked him that he should accompany him to the medical store for purchasing medicine and threafter they will go together to their house. When they came at the gate of telephone exchange P.W. Ashraf met them, at that time electricity was off in the town. They have further stated that while they were standing in front of the gate of telephone exchange, they saw light coming from telephone exchange which diverted their attention. P.W. Aijaz had torch in his hand which he flashed, they saw Ch. Niaz and Arif coming from Exchange Office and they were at Veranda of the exchange office. They also saw that two persons were standing at the pillars of the door of the exchange office armed with pistols. Within their sight one of them fired pistol shot which hit Ch. Niaz Ahmed who on receipt of pistol shot fell down on the ground. The accused who had fired the pistol reloaded the same. Both the culprits had countrymade pistols, their faces were open and they had seen their faces clearly. Thereafter, they came quickly from the exchange and went away.

34. Thereafter the witnesses went inside the exchange office and found Ch. Niaz Ahmed lying unconscious and injured having fire-arm injury on the right side of the chest and was bleeding from the injury. Then they removed injured Niaz Ahmed in his car to the hospital at Kazi Ahmed.

35. Immediately after reaching the hospital he breathed his last. They remained as guards at the dead body whereas Arif went to lodge report. The police had come to the hospital. According to P.W.

36. Aijaz, police had examined him on the following day morning at about 10-00 a.m. And also secured torch from him. Whereas according to P.W. Riaz Ahmed police had come at the hospital but had not examined him. He had given facts to the police there in the hospital. On 19-3-1979 P.W. Aijaz was called by police through Police Constable Mir Muhammad at Taluka Office Sakrand for identification test of accused whereas P.W. Riaz Ahmed was informed by a man of Arif who is Munshi of Ch. Niaz Ahmed to go for identification test of the accused at Taluka Office at 9-00 a.m.

37. Complainant P.W. Aijaz Ahmed, Riaz Ahmed and Ashraf went to Taluka Office and had picked up appellant Mureed in the identification test. According to them the identification test was held before Taluka Mukhtiarkar and the appellant was mixed up with nine other dummies. The accused was not known to him previously. Again on 28-3-1987, they were informed by police to come to Taluka Office Umerkot for identification test. On 29-3-1987, complainant, P.W. Riaz Ahmed, Aijaz, Muhammad Abdul Hamid and Aslam went to Umerkot in Datsun car. A.S.I. Muhammad Ramzan produced them before Assistant Mukhtiarkar who took them to the Court where identification test was held by Assistant Mukhtiarkar. They were able to identify accused Azizullah in the identification test. In cross-examination P.W. Aijaz and Riaz Ahmed have deposed that they originally belonged to village Roshan Abad. They resided at the distance of about 1/2 furlong away from the house of Ch. Niaz Ahmed, in village Roshan Abad. P.W. Aijaz could not say whether his name was mentioned in voters' lists at Roshan Abad while Riaz Ahmed had admitted that his name is entered in voters' list at Roshan Abad and he has been casting his vote there. However, they have denied that they and other witnesses reside in Roshan Abad. The witnesses have further admitted in cross-examination that in the National Identity Card their residence is shown at Roshan Abad. They had not given description or mark of identification of the culprits to the police in their 161, Cr.P.C. Statements. P.W.

38. Aijaz has further admitted in cross-examination that they were examined by S.H.O. At Roshan Abad not at police station. There is no police station or police post at Roshan Abad. He was examined by S.H.O. In an Otaq but he could not say as to who was the owner of Otaq. P.W. Ashraf had gone together with him. Ashraf had gone to his house and asked him to come for giving statement before S.H.O. At Roshan Abad. He, Riaz and Ashraf reside in Sardar Colony Kazi Ahmed. Sardar Colony is on the western side of telephone exchange at the distance of about 1/1-2 furlongs. P.W.

39. Aijaz has further admitted that Jamil Medical Store is also situated on the western side of the exchange. His face is to the west. He has not cast his vote at Kazi Ahmed. The complainant Arif did not follow the culprits. None of them followed the culprits but they sat near the dead body.

40. ' Mr. Mir Khan, Assistant Mukhtiarkar and T.C.M. Sakrand, P.W.6, has deposed that on 19-3-1987 he was Assistant Mukhtiarkar and T.C.M. At Sakrand. On that day, Kazi Ahmed police produced accused Mureed before him for identification test through P.Ws. Arif Niaz, Aijaz, Riaz and Muhammad Ashraf. After complying with the formalities the accused was mixed with 8 dummies and the identification test was held in judicial lock-up. He called the witnesses one by one through peon and they were able to pick up accused Mureed in the identification test. He prepared such Mashirnama in presence of two Mashirs, Waryam and Muhammad Anwar. He has produced the Mashirnama as Exh.22. Again on 21-3-1987 Kazi Ahmed Police produced accused Mureed before him for identification test through P.Ws. Aslam and Abdul Hamid. He arranged the identification test in judicial lock-up and mixed the accused with eight dummies. He called the witnesses one by one through his peon and they picked up accused Mureed in the identification test. He prepared such Mashirnama in presence of Mashirs Waryam and Allah Ditto. He has produced the Mashirnama as Exh.23. Again on 1-4-1987 Kazi Ahmed Police produced accused Mooso before him for identification test through witnesses Muhammad Aslam and Abdul Hameed and Muhammad Ashraf. After complying with the formalities accused Mooso was mixed with ten dummies and the identification test was held in front of Taluka Office on its southern side. He called the witnesses one by one through his peon and they were able to pick up the accused in the identification test. He prepared such Mashirnama which has been produced as Exh.24. In cross-examination he admitted that the names of the dummies and their residence are not mentioned in the Mashirnamas. The dummies were arranged by him through his peon from the people available in the office. He has also admitted that about 10/15 days after the identification test of accused Mooso was held, Ch. Khalid, and Ghulam Nabi Maree were produced before him by the same police for idenitfication test, through the same witnesses. He had made accused Mureed to sit on the southern side of the office near Mosque after he was produced before him, and the identification test was held at 10-00 or 11- 00 a.m.

41. ' Mr. Abdul Qadir Abro, Special Magistrate, Abkari, Hyderabad, P.W.7 was Mukhtiarkar at Umerkot on 28-3-1987. On that day, Kazi Ahmed Police produced accused Azizullah son of Hayat Mari before him for recording judicial confession. After complying with the formalities he recorded his statement verbatim and the same has been produced as Exh.26.

42. ' Tapedar Abdul Karim P.W.9 had prepared sketch of Wardat and the same has been produced as Exh.30.

43. ' Abdul Hameed P.W.10 has deposed that he knew Ch. Niaz Ahmed. About 2 years and nine months back at about 6-45 p.m. He and P.W. Aslam were coming from Cotton Factory along Deran Road and were going to their village. When they reached near Raees Sher Muhammad Street they heard fire-arm reports coming from telephone exchange side. They also saw light of torch from exchange side. He had also a torch in his hand and on flashing the same he saw that two persons came on motor-cycle and both were having pistols in their hands. They saw those two persons at the distance of 13/14 feet from them. Both were not known to them previously. Their faces were open and they went along Deran Road. There were three other persons armed with pistols and running from exchange side. They were on foot, and went running through Raees Sher Muhammad Street.

44. They came to telephone exchange and saw that Ch. Niaz had fire-arm injuries on his person. His son Arif Niaz, Aijaz Ahmed, Riaz Ahmed and Ashraf were trying to remove him in car to the hospital and they also followed them to the hospital. There was heavy rush in the hospital and, as such, they stood out. Subsequently they narrated the above facts to Ch. Asadullah. They had seen those three persons clearly on the light of torch. Police had examined him on third day of incident. About 21 days after the incident he was called at Taluka Office Sakrand for identification of accused. P.Ws.

45. Ashraf and Aslam were also called. They were made to sit in the office of Mukhtiarkar and were called one by one for identification test. There were eight persons in the line. He identified one of them. (There is a note from the Court that he pointed out accused Mureed who was picked up by him in the identification test). He was going armed with pistol on the motor-cycle. About eight days thereafter he was called at Taluka Office at Umerkot. P.Ws. Arif Niaz, Aijazul Haq, Riazul Haq, Muhammad Ashraf and Muhammad Aslam were also there. They were produced before T.C.M.

46. Umerkot by A.S.I. They were made to sit in the office of the Chairman Teshil Council, from where they were called one by one for identification test. There were eight persons in the line. He picked up one person whom he had seen at the night of the incident going on motor-cycle and driving the same. (There is a note from the Court that the witness pointed Aziz who was picked up by him in the identification test). Again he was called at Sakrand alongwith Muhammad Ashraf and Aslam, and he had picked accused Mooso in the identification test who was one of those persons who was seen by him running away on foot. In cross-examination he has deposed that he resides at one furlong from Kazi Ahmed, Arif son of Chaudhary Niaz was not known to him previously. He has admitted that he did not state in his 161, Cr.P.C. Statement that two persons were riding on motor- cycle in his presence. But they were coming on motor-cycle when he saw them. He has admitted that he and Aslam are Punjabis. Arif, Aijaz and Riaz were not known to him previously but he came to know about their names subsequently. He works in Cotton Factory on daily wages. He was frightened on hearing fire-arm report. He had put a torch light off, when the culprits passed by his side. He has not given description of the accused in his 161, Cr.P.C. Statement. He had gone to Taluka Office Sakrand for identification test of his own. He was taken to Umerkot by Arif Niaz. He had produced torch before police at about 10-00 a.m. When his statement was recorded. He had taken his torch from his house to the police station. Most probably policeman who came to call him had asked him to bring the torch also. He has denied that he is a man of Ch. Asadullah and has been set up to give false evidence. He has not got identification card prepared. He does not know if his name is entered in the voters list anywhere. He has not cast his vote throughout his life. He and Aslam had gone together for identification test at Sakrand. Identification test of accused Mureed was held in the ground in front of office of A.C.

47. ' Asadullah Arain P.W.7 has deposed that deceased Niaz Ahmed was his maternal-uncle. One 28-2- 1987 he, Niaz and his son Arif attended Katchery held by Deputy Commissioner, Nawabshah at Sukhio Manahejo. After Katchery was over they came to village Mashaik, from where Ch. Niaz Ahmed and his son Arif Niaz went to Kazi Ahmed as Ch. Niaz had to talk with some body on telephone. He went to attend a feast at village Rind. At about 7-30 p.m. He came back to his village Roshan Abad where he came to know about this incident. On receiving information of this incident he came to Kazi Ahmed Hospital where about thirty persons were present. Abdul Hameed and Aslam also met him and informed him that they were going from Cotton Factory through Deran Road when they saw three persons running away by foot and two persons on motor-cycle. They further informed him that on the light of torch they had seen pistol with them. He found Ch. Niaz Ahmed lying dead with fire-arm injuries. P.Ws. Riaz, Ashraf and Arif also met him in the hospital. Arif gave him facts of the incident. About 2-1/2 months prior to this incident some thieves had come to the village of Ch. Khalid to commit theft and while committing theft Nazar Muhammad alias Nazro Khoso was murdered. He was brother of accused Mureed. Later on Ch. Niaz had told him that Mureed issued threats to him through Moula Bux that Nazro was got murdered by him, and that they would take revenge from him. He suggested Ch. Niaz to be cautious who told him that nothing would happen. Sub-Inspector Madad Ali Khokhar had arrested Azizullah Mari in the year 1985 in M.R.D. Movement case of 1983. Azizullah was in police lock-up. When they passed by police lock-up Azizullah abused Ch. Niaz Ahmed. On commotion Sub-Inspector Madad Ali Khokhar came out of his office and took away Ch. Niaz Ahmed to his office, where he inquired from Ch. Niaz as to what had happened on which Ch. Niaz had told him that while he was passing from judicial lock-up, a person from judicial lock-up abused him. On this Sub-Inspector Madad Ali told him that he has arrested Azizullah Mari in M.R.D. Movement case and that Azizullah had disclosed that he was got arrested by Ch. Niaz. Azizullah issued threats to Ch. Niaz that he will see him. He had narrated these facts of threats issued by Mureed Khoso for taking revenge of murder of Nazro and the threats issued by Azizullah to complainant Arif when he met him in the hospital. In cross-examination he has deposed that he did not know Azizullah before the day when he abused Ch. Niaz at Kazi Ahmed. He did not know, if Niaz knew accused before. Accused Azizullah was shown to him at Umer Kot but no identification test was held through him. He had gone to Umer Kot on the day on which Arif Niaz and other witnesses had gone. Accused Azizullah was shown to him when he was being taken away by police in the office of Mukhtiarkar and F.C.M. Umerkot. He could not say, if accused and other witnesses had seen accused Azizullah being taken from the office of the Mukhtiarkar and F.C.M. Umerkot. He knows Ch. Khalid, a Zamindar. He does not know if accused Azizullah is Kamdar of Ch. Khalid. He had given the above story about threats issued by Azizullah to Ch. Niaz in his 161, Cr.P.C, statement. He had not seen Azizullah in the Katchery of D.C. On that day. He had not stated before police that Azizullah and Ghulam Nabi followed car of Ch. Niaz on motor-cycle from Katchery. He had stated before police that they followed car of Ch. Niaz on motor-cycle, when Ch. Niaz proceeded from Mashaik to Kazi Ahmed. He has denied that P.Ws. Riaz, Aijaz, Ashraf and Abdul Hamid were his men. He had given the story regarding information given to him by Abdul Hamid in his 161 statement. He did not know Nazro nor Nazro was murdered in his presence. His statement was recorded by police on 1-3-1987 in the Otaq of Ch. Niaz. P.Ws. Riaz Aijaz, Ashraf, Abdul Hamid and Aslam were present in Otaq when his statement was recorded. Complainant Arif was also present there. He was orally informed by S.D.M. About Katchery of Deputy Commissioner. He has denied that he was giving false evidence due to relationship with the complainant.

48. ' Mr. Krishanlal, P.W.12, has deposed that on 19-3-1987 he was Mukhtiarkar and F.C.M. Sakrand. On that day Kazi Ahmed Police produced accused Mureed before him for recording judicial confession at 11-00 a.m. He got the handcuffs of the accused removed and asked the police to go away from the premises of the Court. He introduced himself to the accused and informed him that he was produced before him for recording his judicial confession. He warned him that he was not bound to give confession and if he gave confession it might be used against him as evidence. He also informed him that he would not be given back to the police whether he makes statement or not.

49. The accused did not complain of any maltreatment by police. Thereafter he gave two hours time for reflection to the accused. He called him again at 1-00 p.m. And repeated the same warnings. He had asked him as to why he was giving confession and the accused replied that he had taken revenge of murder of his brother. He then recorded his statement verbatim, read out to him and obtained his L.T.I. He appended his certificate to the confession that the same was voluntary.

50. Thereafter accused was remanded to judicial custody. He has produced the confession as Exh.25.

51. In cross-examination he has deposed that he had asked the accused if he was maltreated to which he replied in the negative. After confession of accused was recorded, the S.H.O. Gave letter for remand of accused to the judicial custody. He has denied that he had simply signed the statement of accused under pressure of the then Deputy Commissioner and it was prepared by police. He has denied that he had copied the statement of the accused from the statement of the accused prepared by police. He did not remember if it was Thursday. He has denied that he had obtained L.T.I. From the accused forcibly. He has denied that accused had sent application to him retracting from confession, and on this he had transferred the accused from judicial lock-up to Central Jail, Sukkur.

52. ' Mashir Muhammad Aslam P.W.13 has deposed that police had seen dead body of Ch. Niaz in the hospital at Kazi Ahmed in his presence and that of co-Mashir Nazar Ahmed and prepared such Mashirnama which he has produced as Exh.37. Police had prepared inquest report of dead body in his presence which he has produced as Exh.38. Complainant Arif had shown place of Wardat situated at Telephone Exchange Office, Kazi Ahmed. There was blood lying on the Wardat. Police secured blood-stained earth and sealed it. There was one empty lying at the Wardat which was also secured and sealed by police and such ashirnama was prepared, which he has produced as Exh.39. Complainant Arif and P.W. Aijaz had produced torches one each before police in his presence which were secured by police under Mashirnama, and he has produced Mashirnama as Exh.40. About 2/3 days after visiting place of Wardat, P.W. Abdul Hamid produced a torch in his presence and that of co-Mashir and the Mashirnama has been produced as Exh.41. In cross- examination he deposed that he lives in village Fateh Muhammad Gujar about 1-1/2 furlongs away from Kazi Ahmed. He is Jat by caste. They originally belonged to Punjab but he was born in Sindh.

53. He was working as labourer at Octroi Post Kazi Ahmed. He was called from octroi post to act as Mashir. There were 5/6 other persons available at octroi post. He was again called by police from octroi post when P.W. Abdul Hamid produced torch before him. He did not know the name of octroi clerk who was posted at octroi post in those days. He did not know the name of any employee of Municipality posted at octroi post. Police did not know him previously. Police had seen the dead body in the hospital at about 8-30 p.m. There were 20/25 persons available in the hospital. He did not remember the time when P.W. Abdul Hamid had produced the torch before the police. Arif and Aijaz produced the torches before the police in Otaq at village Roshan Abad at about 11-00 a.m. On the next day also he was taken away by police from octroi post. He was at Roshan Abad for about 1/2 hour. He had never visited Roshan Abad before that day. He was not asked by the police on the place of Wardat when they visited Wardat to come again on the next day for securing torches. He was working at octroi post for 24 hours. P.W. Abdul Hamid was already present at the police station when he was called.

54. ' Mashir Nasir Ahmed P.W.14 has deposed that police had arrested accused Mureed in his presence and in presence of co-Mashir Ata Muhammad from the village of Mir Muhammad Khoso such Mashirnama was prepared which he has produced as Exh.43. The accused after arrest voluntarily led the police and Mashirs to his house. There was a heap of dung in the courtyard of his house on the southern side. He dug out a pistol from the heap and produced before the police. The Sub- Inspector opened the pistol and found one live cartridge lying in the barrel of the pistol. It was sealed and Mashirnama was prepared which he has produced as Exh.44. In cross-examination he has deposed that his village will be about a mile or so away from Kazi Ahmed. Co-Mashir Ata Muhammad resides about two furlongs away from him on the same direction. They both are originally Punjabis but are now re-settlers in Sindh. He had gone to brick kiln of Piral Chandio. Co- Mashir was also with him there, when they were picked up by police. The brick kiln was about two miles away from their village, on south-west corner. S.I.P. Did not know him previously. He had gone to purchase bricks at brick kiln. There was Munshi available at the brick kiln. Police had not called the accused but had raided his house and on seeing the police accused came at the door of his house when he was arrested. There were 5/6 houses in the village of accused. The police after arresting the accused prepared Mashirnama of arrest and thereafter interrogated him. He volunteered to produce pistol about 1/2 hour after his arrest. After recovery police left them at brick kiln and sent away. The village of the accused would be about two furlongs away from brick kiln. He did not purchase bricks on that day. He purchased 4,000 bricks on the next day. Punjabis had filed murder case against him in which he was not challaned by police, therefore, a direct complaint was filed in which he was acquitted. He did not know if Azizullah was accused in counter-case. He has denied that he was witness against accused Azizullah in the counter-case of Punjabis. He has denied that accused did not produce pistol in his presence and his signature was obtained at the police station.

55. ' Ishtiaq Ahmed P.W.15 had acted as Mashir of arrest of accused Azizullah. He has produced the Mashirnama as Exh.46. In cross-examination he has deposed that he works at petrol pump of Raja Abdul Ghani at Umer Kot. Abdul Ghani originally belongs to Punjab. He also originally belongs to Punjab. He had come to take petrol bill from the bus owners at bus stand when he was made Mashir.

56. ' S.H.O. Ghulam Kabeer P.W.16 had recorded the F.I.R. Lodged by complainant Arif Niaz and had carried on investigation, which has been mentioned in the earlier part of this judgment. In cross- examination, he has stated that on 22-3-1987 he had searched the house of Ch. Khalid as his name was disclosed by accused Mureed in his judicial confession. During investigation he came to know that motor-cycle secured from accused Azizullah belongs to Ch. Khalid. He came to know during the investigation that accused Azizullah was connected with Ch. Khalid but he did not know if he was Kamdar or body guard of Ch. Khalid. He has admitted that the complainant and P.Ws. Have not given the description or mark of identification of the culprits in the F.I.R. And 161, Cr.P.C.

57. Statements. According to him, P.W. Asadullah has not stated in his 161, Cr.P.C. Statement that P.W.

58. Abdul Hameed and Aslam told him that they had seen the accused while they were coming from Cotton Factory. Asadullah had not stated in his 161, Cr.P.C. Statement that when he and Ch. Niaz were passing by police lock-up Kazi Ahmed, while coming to Police Station Kazi Ahmed accused Azizullah had abused Ch. Niaz and on commotion S.H.O. Madad Ali came out of his office, took away Ch. Niaz and asked Ch. Niaz as to what happened, to which Ch. Niaz replied that accused Azizullah had abused him. P.W. Asadullah has not stated before him that on this Madad Ali told that he has arrested accused Azizullah in M.R.D. Movement case and the accused had declared that he was got arrested by Ch. Niaz. Voluntarily stated that P.W. Asadullah had stated that accused had given threats to Ch. Niaz that he will not spare him as he had got him arrested in M.R.D. Movement.

59. Asadullah has not stated in his 161, Cr.P.C. Statement that accused Azizullah had issued threats to Ch. Niaz in his presence. P.W. Abdul Hameed has not stated in his 161, Cr.P.C. Statement that faces of the accused were open. He has not stated that he came to know about names of Aslam, Arif, Aijaz and Riaz in the hospital. He has denied that he had taken ten persons in custody upto 9-3-1987 and the said news was published in daily Ibrat. He was not prepared to disclose the name of spy who gave him information about the presence of accused Azizullah at Umerkot. He had not recorded statement of the Operator who was sitting at the time of incident. He did not see the attendance register if any kept in the exchange. At the time of incident Operator Gul Muhammad was said to be living in the exchange. He did not record further statement of complainant Arif Niaz. He did not see P.Ws. Riaz, Aijaz, Ashraf and Abdul Hameed in the hospital. He also did not see P.W. Asadullah in the hospital upto 8-30 p.m. He had not fixed time with complainant Arif for coming to Roshan Abad on the next day of incident. He had gone there of his own. He did not know if brother of Ch. Niaz is D.S.P. No D.S.P. Had contacted him in connection with the investigation of this case. When he visited place of Wardat electricity was available at that time. He had no torch with him at the place of Wardat. He had called Ch. Khalid as suspect in this case. He has denied that upto 27-3-1987 he had released seven persons out of ten persons. Complainant Arif did not produce torch when he came to lodge report. He had recorded the statement of Operator Gul Muhammad on the next day of incident. Mashir of Wardat had come with him to the place of Wardat from the hospital. The P.Ws.

60. Were produced by the complainant Arif before him at Roshan Abad after he reached there. He had taken away Mashirs from Kazi Ahmed to Roshan Abad. He had not directed Mashirs at the place of Wardat to come to police station on the next day. Inspector Allah Bux Leghari the then S.H.O. Moro, Inspector Lal Muhammad Abro, the then C.I.A. Police Inspector, Nawabshah, Agha Tahir S.I. Of C.I.A.

61. Police Nawabshah and Noor Muhammad Jalbani the then S.H.O. Daulatpur were also assigned duty to supervise the investigation of this case. After recovery of empty from the place of Wardat it was sealed and kept in custody of W.H.C. At Police Station Kazi Ahmed so also pistol. He could not say after how many days the pistol and the empty were kept at police station and thereafter sent to ballistic expert. These articles were sent to S.P. With a letter, which record is available with him. He did not remember the date of letter when these articles were sent to Nawabshah for sending to ballistic expert. He has denied a suggestion that the pistol and the empty were not sealed by him and that the same were sent by W.H.C. After sealing. There were 7/8 houses in the village of accused Mureed. He has denied that there were 50/60 houses in the village of accused Mureed.

62. Accused was handcuffed when he produced him before Mukhtiarkar and F.C.M. For identification test. (Note: it appears that through mistake M.K. And F.C.M. Is mentioned otherwise identification test was held by Assistant Mukhtiarkar and T.C.M. Sakrand). The accused was made to sit by Head Munshi, on the southern side out of his office. The witnesses also came there after about 5/10 minutes. They also met him outside the office of Head Munshi. He had also produced the P.Ws.

63. Before H.M. After the identification test was held he rearrested the accused and produced him before Mukhtiarkar and F.C.M. Sakrand. After confession of accused was recorded he gave letter to the Mukhtiarkar for remand of accused to the judicial custody. The judicial remand was granted from 19-3-1987 to 25-3-1987. He had produced P.Ws. Abdul Hamced and Aslam before Head Munshi on 21-3-1987 for identification test of accused Mureed. He had not taken judicial remand of accused from A.D.M. Sukkur. After seeing letter, dated 26-3-1987, he has admitted that he had obtained seven days' remand of accused Mureed from A.D.M. Sukkur, on 26-3-1987. He had called Ghulam Nabi Mari on 15-4-1987 in the investigation of this case. He had produced Ghulam Nabi and Ch. Khalid before Head Munshi S.C.M. Sakrand for identification test through P.Ws. Arif, Aijaz, Ashraf, Abdul Hameed on 16-4-1987. On 20-4-1987 they were again produced before the same Magistrate for identification through P,W. Aslam. It is correct that Ghulam Nabi and Ch. Khalid were let off. He has denied that accused Mureed was arrested on 2-3-1987. He has denied that he had brought women folk of the accused at police station and had maltreated them to force the accused to make confession. He has denied that he had also maltreated the accused in presence of complainant. He had attended the Katchery held by Deputy Commissioner on that day but had not kept any record of the same. He has denied that judicial confession of Mureed was prepared by him and given to the Mukhtiarkar and F.C.M. Sakrand, He has denied that Mashirnama of identification of accused Mureed was prepared by him and that Head Munshi and S.C.M. Had simply written 'before me'. He has produced the chemical report as Exh.50 and report of ballistic expert as Exh.51.

64. ' Mr. Muhammad Suleman P.W.17 has deposed that on 2-3-1987 he was Assistant Mukhtiarkar and S.C.M, at Umerkot. A.S.I. Of Police Station Kazi Ahmed had produced P.Ws. Arif, Aijaz, Riaz, Muhammad Ashraf and Abdul Hameed before him for identification of accused Azizullah through them. He held the identification test and prepared such Mashirnama which has been produced as Exh.54.

65. ' After close of the prosecution case, the statements of the accused were recorded under section 342, Cr.P.C. In which they denied the allegations. Accused/appellant Mureed has further deposed that his L.T.I. Was obtained on the confession by force. He has further stated that P.Ws. Are residents of village Roshanabad and not of Kazi Ahmed, the witnesses have been set up. He has produced copies of extracts from voters' list of Riazul Haq as Exh.56-A, Aijazul Haq as Exh.56-B, and the photostat copy of electoral roll of Unit Deh Gol Dahri in fourteen leaves as Exh.56-C. Police had arrested him on 2-3-1987 from his house and had also brought his womenfolk at the police station.

66. They used to force him to give judicial confession but he used to refuse. They also maltreated his ladies in presence of Nekmards of the locality, namely, Mooso, Shahenshah, Haji Khan and Peral Chandio. Ultimately, after maltreatment he was produced before Mukhtiarkar and F.C.M. Sakrand on 19-3-1987, who obtained his L.T.I. Forcibly. He is a literate person and can sign. On 24-3-1987, S.I.

67. Ghulam Muhammad Bhutto brought him to police station Town Nawabshah, and detained him there for the night and brought him to Central Jail, Sukkur on 25-3-1987. On 2-4-1987, he had sent an application to Sessions Judge, Nawabshah from Central Jail, Sukkur, that he had not given judicial confession and that his L.T.I. Was obtained from him forcibly. The accused had given list of defence witnesses but the same were given up later on. However, he did not examine himself on oath as envisaged by section 340(2), Cr.P.C.

68. ' The learned trial Judge while relying upon the evidence of motive, ocular evidence, judicial confession and recovery of pistol has convicted the appellant as described above and the present appeal is directed against the above judgment of conviction.

69. ' We have heard Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant, Mr. Ch. Iftikhar Ahmed, learned counsel appearing for the complainant, Mr. K.M. Nadeem, learned AA.-G.

70. Appearing for the State and have also gone through the R&P of the case.

71. ' It was contended by Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant that the evidence regarding motive was unreliable and interested and, therefore, no reliance could be placed on the same. He has further contended that the alleged eye-witnesses claim to have seen the assailants on the torch light and had failed to give their description in the F.I.R. And police statements and, therefore, no reliance could be placed on their evidence. Specially, when the witnesses did not belong to Kazi Ahmed where the incident took place, and they have not been relied in respect of co-accused Azizullah. That the appellant was in illegal custody of the police for a long time and the witnesses had opportunity to see him before the test was held. In support of his contentions the learned counsel has relied upon:--

(1) 1970 P Cr. L J 633;

(2) 1983 P Cr. L J 829;

(3) PLD 1981 SC 142;

(4) 1978 P Cr. L J 579;

(5) PLD 1963 Kar. 1010

(6) PLD 1964 Kar.

72. 275.

73. ' He has further contended that as far as recovery was concerned, the appellant had licensed gun, and therefore, it was unnatural that he would take country made pistol for committing murder. It was further contended that Mashir of recovery was the man of complainant and no independent witness/person was picked up to act as Mashir. The empty alleged to have been secured from the Wardat and the pistol were sent together to ballistic expert for examination, after a long time for which there was no explanation from the prosecution and, therefore, the evidence of recovery could not be relied upon. In support of his contentions he has relied upon:--

(1) PLD 1968 Lah. 869;

(2) PLD 1988 Kar. 521 ' He has further contended that the judicial confession was neither true nor voluntary inasmuch as the appellant was kept in illegal custody for a long time which is clear from the application made by him to the Sessions Judge, Nawabshah on 2-4-1987 and photostat copy of which is available in the miscellaneous record of this case. That the judicial confession was retracted immediately, and it was in conflict with the prosecution case as well as judicial confession of co-accused Azizullah.

74. That the confession was obtained under coercion which is further clear from the fact that the accused did not put his signatures on the same although he was literate and can sign which is evident from identity card and Vakalatnama produced in the Court. That the proper warnings were not given to the appellant before the confession was recorded and, therefore, even on this score, the confession could not be relied upon. In this connection he has relied upon 1984 P Cr. L J 611. It was further contended that the dimensions of the injuries show that two weapons were used for which there was no explanation from the Medical Officer and this belied the ocular evidence. In this connection reliance has been placed upon 1983 SCMR 1991 and unreported judgment of Supreme Court in Criminal Appeal No, 63 of 198(sic) Mushtaque Ahmed v. The State.

75. ' Ch. Iftikhar Ahmed, learned counsel appearing for the complainant has contended that the confession of the co-accused Azizullah could not be used in favour of or against appellant Mureed.

76. That the ocular evidence was independent and reliable. That even if the complainant and P.Ws.

77. Were not relied upon, still judicial confession and the recovery were sufficient to form basis for conviction. In support of his contentions the learned counsel has relied upon:--

(1) PLD 1988 Kar. 539;

(2) 1985 SCMR 1834;

(3) 1982 SCMR 131;

(4) 1985 P Cr. L J 2375 and

(5) 1973 SCMR 83.

78. ' Mr. K.M. Nadeem, learned A.A.-G. Appearing for the State has contended that the acquittal of co- accused Azizullah was of no help to the appellant as no overt act was assigned to him. There was no recovery from him and he had produced documentary evidence to show that he was arrested on 3-3-1987, which falsified the date of arrest as shown by police. He has further contended that appellant Mureed also claims to have been arrested on 2nd March, 1987, but no evidence was produced. That the ocular evidence was disinterested and non-mentioning of description of culprits will not affect the probatory value of evidence of eye-witnesses. In support of his contentions, he has relied upon 1985 SCMR 203.

79. ' We have considered the contentions of the learned counsel. In view of the above submissions made by the learned counsel it will be appropriate to consider each piece of evidence separately, and we would like to deal with the evidence of motive first.

80. MOTIVE: ' On this point, prosecution had examined Asadullah P.W.11. He claimed to have been present with Ch. Niaz when he was abused by co-accused Azizullah at Police Station Kazi Ahmed. He has also deposed regarding murder of Nazro Khoso brother of appellant Mureed and the threats alleged to have been issued by appellant through Moula Bux Khoso. However, in cross-examination he has admitted that he did not know Azizullah prior to the incident when he abused Ch. Niaz at police lock-up Kazi Ahmed. No identification test of accused Azizullah was held by police through him. He has admitted that deceased Ch. Niaz was his maternal-uncle. According to him, S.I. Madad Ali Khokhar had informed him and Ch. Niaz about the name of accused Azizullah but Madad Ali Khokhar was not examined. He has also admitted that Nazro Khoso was not murdered in his presence and he did not know Moula Bux Khoso. He has denied that Nazro was got murdered by Ch. Niaz Ahmed. He is further contradicted by S.H.O. Ghulam Kabeer P.W.16 who has stated that P.W.

81. Asadullah did not state before him in his 161 Cr.P.C. Statement that accused Azizullah had issued threats to Ch. Niaz in his presence or that when he and Ch. Niaz were passing by police lock-up Kazi Ahmed going to Police Station Kazi Ahmed, accused Azizullah abused Ch. Niaz and that S.H.O.

82. Madad Ali Khokhar had given them the name of accused Azizullah. No other witness has been examined to support P.W. Asadullah on the point of motive. Moreover, no question has been put to appellant in 342 Cr.P.C. A statement in order to afford him an opportunity to explain this circumstance. Even there is no evidence to show that Nazro was brother of appellant and he was got murdered by Ch. Niaz Ahmed. Even no question was put to the accused, whether Nazro Khoso was his brother, if so, whether he supported that Nazro was got murdered by Ch. Niaz. For accepting motive against the appellant it will be pertinent to quote passage from the observations of the learned trial Judge made by him in his judgment which appears at page 289 of the paper book:-- "Of course, this motive does not find place in the F.I.R. And has subsequently been introduced by P.W. Abdul Hameed Exh.31. But accused Mureed also in his judicial confession Exh.35 has said that he was informed that his brother Nazro alias Nazar Ali was got murdered by Ch. Niaz hence he murdered Ch. Niaz by firing pistol shot at him in order to take revenge from him."

83. ' Unfortunately, the learned Judge himself excluded the evidence of P.W. Abdul Hameed from consideration and, therefore, the same could not be relied upon for the purpose of proving motive in the case. It will be pertinent to mention the observations made by the learned trial Judge regarding P.W. Abdul Hameed at pages 272 and 273 of paper hook:- "Subsequently, on third day of incident i,e, 3-3-1987 when the incident is said to have taken place on 28-2-1987 the S.H.O. Has examined under section 161, Cr.P.C. P.Ws. Aslam and Abdul Hameed.

84. Their names did not transpire in the F.I.R. This fact is admitted by S.H.O. Ghulam Kabeer Exh.47, in his deposition that on 3-3-1987 he examined P.Ws. Aslam and Abdul Hameed at Police Station Kazi Ahmed. These witnesses Abdul Hameed Exh.31 and Aslam (not examined) have alleged ....

85. According to P.W. Abdul Hameed Exh.31, he and P.W. Aslam had come to the Wardat immediately after the incident and had seen Ch. Niaz being removed by complainant Arif Niaz and P.Ws. Aijaz, Riaz and Ashraf. In these circumstances they would have definitely informed the complainant party that they had also seen two culprits armed with pistol running away on motor-cycle and three culprits armed with pistol running away by foot and it would have definitely been introduced (mentioned) by the complainant Arif in his F.I.R. In view of these facts I find that the evidence of P.W.

86. Abdul Hameed Exh.31 is available and identification of accused Mooso through Abdul Hameed and Aslam is unreliable."

87. The appellant has retracted from judicial confession. Therefore, his statement in confession about revenge cannot be relied without corroboration.

88. ' From the above discussion it is clear that the prosecution had failed to prove motive against the accused and, therefore, this piece of evidence is ruled out of consideration.

89. OCULAR EVIDENCE.

90. ' The ocular evidence consists of complainant Arif Niaz, P.W.3, Aijaz P.W.4, Riaz P.W.5, and Abdul Hameed P.W.1O. As far as evidence of P.W. Abdul Hameed is concerned, the same has been excluded from the consideration by the learned trial Judge as pointed out above and for cogent reasons. We have no reason to take a different view so far as treatment of evidence of P.W. Abdul Hameed was concerned.

91. ' As far as evidence of complainant Arif Niaz, Aijaz and Riaz Ahmed was concerned, the appellant/accused was not known to them and his name does not transpire in the F.I.R. As well as in the 161, Cr.P.C. Statements of the above P.Ws. Nor any description of the assailants was mentioned. According to the prosecution, the appellant was picked up in the identification test by the above witnesses, which was held through Head Munshi and Assistant Mukhtiarkar, Sakrand on 19-3-1987. It is an admitted position that the night of incident was dark and the light had gone off at the time of incident. The complainant and P.Ws. Claim to have seen the appellant firing at deceased on torch light. On the other hand the case of the appellant before the trial Court was that he was arrested on 2-3-1987 and was kept in wrongful confinement by the police till 19-3-1987 for which the appellant has alleged that he had moved an application to the learned Sessions Judge, Nawabshah on 2-4-1987. It is also the case of the appellant that the complainant and the above P.Ws. Were residents of village Roshan Abad. The complainant has of course stated in Court that he was resident of Roshan Abad but P.Ws. Aijaz and Riaz Ahmed have denied this suggestion. P.Ws.

92. Aijaz and Riaz have admitted that they used to reside at Roshan Abad but had shifted to Kazi Ahmed about four years before they were examined in Court. They were examined on 10-10-1988. It is also admitted by the P.W. Aijaz that he possesses identity card in which his residence is shown as Roshanabad but it was prepared in December, 1984, and is old one when he was living there. P.W.

93. Aijaz has further stated that he and Riaz reside in Sardar Colony Kazi Ahmed which is on the western side of telephone exchange at the distance of about 1-1/2 furlongs. He has further stated that Jamil Medical Store is also situated on the western side of the exchange. According to this witness he was going to take medicine from Jamil Medical Store and when he reached in front of telephone exchange Riaz Ahmed met him to whom he asked that after taking medicine from Jamil Medical Store they will go to the house. In the meantime Ashraf also made there. Since there was no light, he had taken torch with him. While they were standing near the telephone exchange they saw the incident. If these witnesses were residing in Sardar Colony, on the west of the telephone exchange and the Medical Store from where P.W. Aijaz had to purchase medicihe was also situated on the western side of the telephone exchange there was no reason for them to go towards the telephone exchange. Even otherwise, when Aijaz was having torch in his hand there was no reason for them to stand outside the telephone exchange nor any reason has been given by them in their evidence. According to above witnesses they had taken the injured alongwith complainant to the hospital at Kazi Ahmed and they were present in the hospital till the dead body was removed.

94. Surprisingly enough they were not examined by the Investigating Officer on that night. Even the Investigating Officer Ghulam Kabeer P.W.16, has stated in his evidence (at page 186 of paper-book) that he did not see P.Ws. Riaz, Aijaz, Ashraf, Abdul Hameed and Asadullah in the hospital upto 8-30 p.m. These witnesses were examined by the Investigating Officer on the following day at village Roshan Ahad, although, they claim to have been residing at Kazi Ahmed. According to Investigating Officer he had not fixed time with the complainant Arif Niaz for coming to Roshan Abad on the next day of incident. He had gone there of his own accord. He has further deposed that P.Ws. Were produced by the complainant Arif Niaz before him at Roshan Ahad after he reached there. If these P.Ws. Were residents of Kazi Ahmed, and if they could not be examined on the night of incident they could he examined in the morning at Kazi Ahmed but their examination at Roshan Abad makes their evidence about residence doubtful.

(1) In the case Mauladad alias Maulo v. Emperor AIR 1925 Lah. 426; wherein five appellants were convicted under section 395 P.P.C. Out of which one of the appellants, namely, Ditta was convicted on the basis of evidence of an approver, recovery of property, and identification test, while the rest of the appellants were convicted on the basis of evidence of identification test. The appeal of appellant Ditta was dismissed by the High Court and the remaining appellants were acquitted with the observation that:-- "Since their description was not given by the witnesses before the identification, their evidence regarding identification was unworthy of credit."

(2) In the case of Lalpasand v. The State PLD 1981 SC 142 wherein the witness had not given any description of assailant in his statement to the police but had stated in Court that he had identified the accused because he had green eyes and a thin neck. It was observed by their Lordships of the Supreme Court that:-- "In this part of the world there are so many people with green eyes and thin necks and, further we do not know whether this explanation of the witness was a form of rationalisation after the event, because he had not given any description of the murderer in his statement to the police. It was further observed that if the murderer had any physical features which distinguished him from other people whether it be green eyes or a thin neck, it was duty of the witness as a retired police officer to give description of the assailant whatever it be in his statement to the police and as he did not, this cannot but react against the entire prosecution case." ' and the appellant was acquitted.

(3) In the case of Ramzan and others v. Emperor AIR 1929 Sind 149 it was observed that:-- "The recognisation of a dacoit or other offender by a person who has not previously seen him is, I think a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases."

(4) In the case of Abdul Sattar and another v. The State 1981 SCMR 678 their Lordships of the Supreme Court were pleased to affirm the observations made in the case of Ramzan and others v.

95. Emperor and it was observed that:-- "We agree with these observations and, therefore, the evidence of identification of stranger must always be scrutinized very carefully and since there were discrepancies in the description of the assailants given by the witnesses their evidence was not relied upon." ' and the appellants were acquitted.

(5) In the case of Gul Baig and 2 others v. The State PLD 1964 (W.P.) Kar. 275; wherein the incident took place on 29-12-1962 but the identification test of the appellants was held on 18-1-1963, it was observed that:-- "This delayed identification test based upon a momentary and partial glimpse of the faces 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 he 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."

96. ' Moreover, the learned trial Judge has not relied upon the evidence of identification test of the complainant and above witnesses in respect of co-accused Azizullah, as according to the accused he was in custody from 4th March, 1987 and this fact was supported by the copy of application moved by him to the learned Sessions Judge, Nawabshah and by cuttings from newspapers. As regards appellant Mureed, the learned Judge has observed that:-- "He had also stated in his statement that he was arrested on 2-3-1987 but he has failed to produce any evidence including the copy of application alleged to have been moved by him to the Sessions Judge, Nawabshah."

97. ' In fact the accused had produced the photo copy as well as certified copy of application dated 2nd April, 1987 moved by him to the learned Sessions Judge, Nawabshah alongwith application Exh.64, but it appears that through oversight, the learned Judge has failed to consider the same.

98. Even the application Exh.64 and its annexures were not printed in paper book. It has been the case of the appellant, right from the initial stage, that he was arrested on 2-3-1987 and this fact is supported by the certified copy as well as photostat copy of application which was also stated by Assistant Superintendent, Central Prison, Sukkar. The contention of Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant has considerable force that the appellant was arrested on 2nd March, 1987, and the witnesses had ample opportunities to see him before the identification test was held.

99. ' No doubt, the complainant and witnesses had no enmity with the appellant as argued by Messrs Ch. Iftikhar Ahmed and K.M. Nadeem, learned D A.-G. But it does not necessarily mean that what they have stated is nothing but truth. In this connection it will be appropriate to refer to a Division Bench decision of this Court (of which my Lord, the present Chief Justice of Pakistan, Muhammad Haleem, J.- was a member), in the case of Peer Muhammad Khan and 2 others v. The State PLD 1970 Kar. 399; wherein it was held that:-- "Simply because the witness has no enmity and appears to be independent does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief."

100. Mr. Chaudhry Iftikhar Ahmed has relied upon the following decisions:--

(1) Ashraf v. The State 1982 SCMR 113; wherein the incident took place in the morning during day time and the accused were known to the eye-witnesses. They were acquitted by the trial Court but Ashraf was convicted by the High Court in acquittal appeal. The appellant filed an appeal before the Hon'ble Supreme Court but the same was dismissed with the following observations:-- "observing that the eye-witnesses were most natural witnesses and their evidence was corroborated by motive, medical evidence and also by the fact that the appellant had absconded after occurrence and therefore, the appeal was dismissed."

101. ' With utmost respect there is no cavil with the principles enunciated by their Lordships in the above case but the facts are distinguishable and the above decision is not applicable to the facts of the present case inasmuch as the present incident took place during dark night, the appellant was not known to the E witnesses and they had only a momentary glimps of the assailants on torch light.

102. Moreover they have not been relied upon in respect of co-accused, while the incident in the reported case took place during broad daylight and the appellant and co-accused were known to the eye-witnesses. There was also a motive and the appellant had absconded after the incident, and therefore, the above decision is not applicable to the facts of the present case.

(2) Ali Muhammad and another v. The State 1985 SCMR 1834; wherein a dacoity with murder took place during broad daylight and the evidence against the accused consisted of evidence of two approvers, and its corroboration, eyewitnesses account, identification test, and recoveries of all other articles which were accepted by both the Courts below. The accused were convicted, their appeals before the High Court failed, before the Honourable Supreme Court, it was contended that the identification test was held after long delay, it was observed that:-- "There is no hard and fast rule that a delay parade due to late arrest/discovery of the culprits is always to be rejected. It depends upon a host of circumstances including the type of witnesses and other factors, it was further held that it is not uncommon that even fleeting glimpse of a person, specially placed in a position of immense importance, would be revived in memory after long time, provided the bond of event and embedding in memory were of permanent character. In this case they were so and the contention was rejected.

103. ' With utmost respect the above decision is distinguishable inasmuch as on one hand the incident took place during day time and on the other hand since two of the eye-witnesses were accountants and the 3rd was driver, the Honourable Court was impressed by the qualification of the above witnesses and it was held that mere delay in holding identification test was not sufficient to rule out their evidence from consideration. In the present case the incident took place during F dark night, the description of the assailant was not mentioned in the F.I.R. And the appellant was kept in police custody for 17 days before the test was held and therefore, the above reported case is distinguishable and does not apply to the facts of the present case.

(3) In the case of Sharif and another v. The State 1973 SCMR 83; wherein the incident was witnessed by the witnesses who were interested and partisan and therefore, it was contended before their Lordships of the Supreme Court that since the witnesses were interested and partisan their evidence could not be relied upon without strong corroboration, it was held by their Lordships that:-- "For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstance relied upon must have a bearing on this question."

104. ' It was added that:- "In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing. Circumstances corroborating the eye-witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject-matter of the procedings; (2) that the persons named as culprits were such as would be expected to join in the attack."

(4) In the case of Muhammad All v. The State 1985 SCMR 203, it was observed by their Lordships that:-- "Even otherwise, it has time and again been observed by this Court that there is no inflexible rule that the statement of an interested witness can never be accepted unless corroborated.

105. Corroboration in case of interested witness need not be of the same probative force as in the case of an accomplice" (In the reported case the incident had taken place in the Kotha of deceased and therefore, it was observed that presence of wife of deceased at the time of occurrence could not be doubted as the culprits were known persons).

(5) In the case of Muhammad Yousuf Zai v. The State PLD 1988 Kar. 539, the appellant was convicted under section 403, P.P.C., in appeal before the High Court it was contended that the identification test was not reliable but the contention was repelled by the Division Bench with the following observation:-- "In the present case, the appellant had visited the Karimabad Branch at the time of opening of account and had also visited the branch five times while withdrawing the amount through five cheques during the period from 5-9-1984 to 17-9-1984. It was observed that there is no legal requirement to the effect that there should be an identification test of an accused person, if the eye-witness can identify the accused before the trial Court that is enough."

106. ' The above observation indicates that since the accused was already known to the witness as he had been visiting bank, therefore, identification test was not necessary. Otherwise the law is very clear on the point that where the accused is not known to the witness before the incident and no identification test is held through him before he is examined in Court, the evidence of such witness as to identity of accused is not of much value. Reliance is placed on a Division Bench decision of this Court reported in Kak alias Abdul Razzak v. The State PLD 1965 (W.P.) Kar. 31 wherein it was observed by their Lordships that:-- "Where the witness did not know the appellant, nor the appellant was put up in any identification parade for his identification, his evidence is not, therefore, of much value with regard to the identity of the appellant."

107. ' In the case of Sandeo Gosain and another v. The Emperor 1946 Cr. L J 317; wherein four accused were named by the witness as they were known to him, whereas the fifth accused, namely, Sandeo Gosain was pointed out in the Dock while the witness was being examined in Court, it was held by their Lordships of the Federal Court that:-- "Since no identification test of appellant Sandeo Gosain was held through the witness before his examination in the Court, no reliance could be placed on his evidence."

108. ' In the case of Ismail and another v. The State 1974 SCMR 175; it was observed by their. Lordships of the Supreme Court that:-- "It is only when the accused are seen for the first time, at the place of incident by a witness when it becomes necessary to put up such a witness at test identification parade. If the accused is already known by face although not by name, it is unnecessary to put up such witness to a test identification because at the parade he identifies by face and not by name."

109. ' In view of the above factual as well as legal position we are of the considered view that no reliance could be placed on the evidence of complainant H Arif and P.Ws. Aijaz and Riaz regarding the identity of the appellant and the same is ruled out of consideration. JUDICIAL CONFESSION.

110. ' According to the prosecution, the appellant was arrested on 19-3-1987, and had made judicial confession before the Mukhtiarkar and F.C.M., Sakrand on the same day. In this connection Mr. Krishanlal, Mukhtiarkar and F.C.M. Has been examined as P.W.12 and he has produced the judicial confession as Exh.25. The evidence of Mr. Krishanlal shows that the accused was produced before him at 11-00 a.m. And he got his handcuffs removed and asked the police to go away. He informed the accused that he was Mukhtiarkar and F.C.M. And that he was produced before him for recording his confession. He warned the accused that he was not bound to give confession and that he would not be given back to the police whether he gives statement or not. However, the confession does not show that the learned Magistrate had informed the accused that he was Mukhtiarkar and F.C.M. While administering first warning to him before the time for reflection was given, to him. Even the fact that he informed the accused that in case he is not inclined to make confession he will not be remanded back to police custody, has been written in English on the top of the confession alongwith few other facts and there is nothing in the confession to show that the accused was explained the above warning in his own language i,e, Sindhi. The learned Magistrate did not ask from the accused whether he was induced to be made as an approver in the case nor he was asked as to whether his womenfolk were brought to the police station. The confession shows that the body of the accused was examined with his consent but no objectionable article was recovered during the search of his person. Even in Court, the learned Magistrate did not state that he had examined the body of the accused and did not find any marks of violence on his person. From the above facts it is clear that the Mukhtiarkar did not make real endeavour to find out that I the confession was true and made voluntarily. In this connection it will be appropriate to refer to a Division Bench decision of this Court in the case of Abdul Haleem v. The State 1984 P Cr. L J 611; wherein it was observed as under:-- "Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. Before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for their guidance. Magistrate would be well-advised to follow the procedure which is given below:-- "As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given hack to the police who had produced him before Court but would he remanded to judicial lock-up. He should then he given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:--

(i) For how long have you been with police?

(ii) Has any pressure been brought to bear upon you to make confession?

(iii) Have you been threatened to make confession?

(iv) Has any inducement been given to you?

(v) Why are you making this confession?

(vi) Have you been maltreated by police?

111. ' After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim."

112. ' Apart from the above lacunas, there are two other important factors which go a long way to show:-- "That the confession was neither true nor voluntary. Firstly, the confession is in conflict with the prosecution case inasmuch as according to the confession Ch. Khalid had told him that Ch. Niaz had gone to the Telephone Exchange Kazi Ahmed in his car and he should reach there then Ch. Khalid and Azizullah went to the Telephone Office. So he went there. Ch. Khalid and Azizullah were present there. By that time, the electricity was off in Kazi Ahmed Town, where Ch. Khalid took out a local-made pistol and gave the same to him and told him that it was loaded. In the meantime, Ch. Niaz emerged from the door of the telephone exchange and was moving towards his red car when Ch. Khalid told him that, that Ch. Niaz.Azizullah also told him that Ch. Niaz has got his leg fractured and now he should fire at him. He opened fire at Ch. Niaz from close range, then went away alongwith nearby street opposite exchange while Ch. Khalid and Azizullah also went away on motor-cycle. He went away to his house."

113. ' The above part of the story has been found to be false and Ch. Khalid was let off by police while Azizullah was acquitted by the trial Court. There is no allegation from the complainant and P.Ws.

114. That Ch. Khalid was present alongwith the accused near telephone exchange. According to P.W.

115. Abdul Hameed, he had seen Azizullah and Mureed running away on motor-cycle. The confession does not show that accused had reloaded the pistol or that he had produced pistol before the police after his arrest nor the confession speaks about the identification test, and therefore, it is definitely in conflict with the prosecution case. Secondly, the case of the accused right from the initial stage has been that he was kept under illegal confinement by the police from 2nd March 1987, till 19th March, 1987, when he was produced before the Magistrate and that his womenfolk were brought to the police station and were disrespected. He was pressurised to make confession.

116. This allegation of the appellant/accused is supported not only by application which was made by him to the Sessions Judge, Nawabshah on 2-4-1987 but by the circumstances also. It will be worthwhile to mention here that the incident took place on 28-2-1987 and according to S.H.O.

117. Ghulam Kabeer he arrested the appellant on 19-3-1987 from his house. The S.H.O. Has not said a word as to whether he made any efforts to arrest the accused/appellant in between the date of incident and the date of arrest, if so, what efforts were made by him. His silence on this point goes a long way to show that the appellant was in police custody since 2-3-1987, as alleged by him.

118. ' In the case of Tooh v. The State 1975 P Cr. L J 440, it was observed by a Division Bench of this Court that: "Where the confession was recorded on the third day of arrest of the appellant, the delay in recording the judicial confession was fatal and, therefore, the same was ruled out of consideration."

119. ' In addition to the circumstances pointed out above, it will be appropriate to mention here that the confessin of accused Azizullah was ruled out of consideration by the learned Judge on the ground that the accused was kept in wrongful custody for a long time and was produced for recording confession after a long time. The learned Judge has also taken note of the application made by accused Azizullah and the newspaper cuttings.

120. ' In the case of Qadir Bux v. The State 1985 P Cr. L J 2375; relied upon by Ch. Iftikhar Ahmed learned counsel appearing for the complainant wherein the incident took place on 28th January, 1983, the accused was arrested on 29th January, 1983, and his judicial confession was recorded on 2nd February, 1983, it was held by a Division Bench that:-- "Since the rule of admissibility of a confession prescribes no time as to the recording of the confession the simpliciter delay in recording of a confession will not be fatal. The Court is to examine the circumstances of each case and the nature of the confession and if the Court is satisfied that the confession is voluntary it can rely upon the same notwithstanding that there may be some delay in recording of the confession."

121. No doubt, apart from the confession itself the other circumstances including the corroboration available in the case, have to be taken into consideration and there is no cavil with the above proposition, but with utmost respect, the facts of the preseent case are different and, therefore, the above decision in the reported case is distinguishable. Inasmuch as, in the present case we have held that the appellant was arrested on 2-3-1987 and he was produced for recording judicial confession on 19-3-1987 and, as such, there was delay of about seventeen days in recording confession for which no explanation has been offered by the prosecution. On the contrary, the S.H.O. Has dishonestly shown the arrest of appellant to be on 19-3-1987, and looking to this fact, and the fact that the trial Court has held in respect of co-accused Azizullah that he was arrested earlier but was shown to have been arrested after a long time and the confession was, therefore, ruled out of consideration. The accused has alleged maltreatment and that his womenfolk were kept at police station and disrespected, and he was forced to put his L.T.I. On confession although he can sign. In this connection reliance has been placed on Vakalatnama and the photo copy of application made by accused to the Sessions Judge, and his statement in Court which have been signed. In view of the above circumstances and other infirmities pointed out supra, the above decision is distinguishable.

122. ' From the above factual as well as legal position, we are of the considered view that the confession was neither true nor voluntary and, therefore, the same is ' ruled out of consideration. RECOVERY.

123. ' According to the prosecution, the accused after his arrest on 19-3-1987 led the police and Mashirs to his house and produced a country-made pistol from the heap of dung which was secured by the police in presence of Mashirs Nasir Ahmed and Ata Muhammad. The empty recovered from the place of Wardat and pistol produced by the appellant/accused were sent together to the ballistic expert on 14-5-1987. Mashir Nasir Ahmed resides about a mile away from the Police Station Kazi Ahmed on its south. He was picked up from a brick kiln which was about two miles away from the village of Mashir Nasir Ahmed. It has been admitted by S.H.O. That there were 7/8 houses in the village of Mureed but no efforts were made to pick up Mashirs from there. According to Mashir Nasir Ahmed the village of accused Mureed was situated on the southern side of Kazi Ahmed but according to S.H.O. Ghulam Kaheer the village of accused Mureed was situated on the western side of Kazi Ahmed. There must be labourers available at the brick kiln but no one from them was picked up to act as Mashirs. The empty cartridge was recovered from the place of Wardat on 28-2- 1987, and the pistol is said to have been recovered on 19-3-1987. We have already found that the accused was arrested on 2-3-1987 and, therefore, the delay in production of pistol makes the recovery as doubtful. So also the selection of Mashir Nasir Ahmed, and Ata Muhammad who were admittedly Punjabis, so also, the deceased. The S.H.O. Has been cross-examined on the point of sending the pistol and empty cartridge to the ballistic expert and according to him, after recovery of both the articles they were kept in custody of W.H.C. At Police Station Kazi Ahmed. He could not say for how many days the pistol and the empty were kept at police station and, thereafter sent to the ballistic expert. He did not remember the date of letter when these articles were sent to the Superintendent of Police Nawahshah for sending the same to ballistic expert. According to S.H.O.

124. Ghulam Kaheer Police Constable Meer Muhammad was with him at the time of arrest of accused Mureed and recovery from him. He was the same Police Constable Meer Muhammad who was the corpse hearer but Police Constable Meer Muhammad has not said a word in Court about the recovery of pistol from the appellant. The fact that the empty and pistol were sent together to the ballistic expert makes the M recovery of pistol dobtful.

125. ' In the case of Yousuf v. The State PLD 1988 Kar. 521; it was observed by a Division Bench of this Court that:-- "Under the law if crime empty is recovered before the recovery of weapon, then the same should be sealed at once and sent to ballistic expert even without waiting for recovery of weapon because this would be the base precaution to minimise the chances of manipulation."

126. ' In view of the above discussion and the fact that the trial Court has found that S.H.O. Ghulam Kabeer had not carried on investigation honestly in the case of co-accused Azizullah and we are also of the view that the investigation carried on by S.H.O. Ghulam Kabeer was dishonest and there are further allegations to show that he was under pressure of the complainant party which is clear from the fact that number of Police Officers were associated with the investigation as admitted by S.H.O. Ghulam Kabeer, in cross-examination at page 187 of the paper book. Even the complainant Arif Niaz has admitted in cross-examination at pages 54 of the paper book, that his uncle who is Superintendent of Police had come to them after the incident. He has further admitted that other Inspectors apart from Inspector Dal used to come for investigation of this case. We have also found that S.H.O. Had shown wrong date of arrest of accused Azizullah and appellant Mureed and, therefore, no reliance can be placed on the evidence of recovery.

127. ' In view of the above discussion we are of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and, therefore, the appeal is allowed, conviction and sentences of the appellant are set aside and he is acquitted of the charges. He shall be released forthwith if not required in any other case. The reference for confirmation of death sentence is declined.