IBADAT YAR KHAN, J.--- The three accused namely Mehr Khan son of Said Amir, Habibullah son of Mukarab Khan and Khan Bahadur Khan son of Taj, had been challaned and sent up to face trial under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 They were tried by Mian Muhammad Nawaz Naikokara, learned Sessions Judge, Bhakkar. By judgment dated 30-4-1989 accused Khan Bahadur Khan son of Taj has .Been acquitted of the charge and the two appellants have been convicted by the learned Sessions Judge under section 392, P.P.C.And each of them has been sentenced to suffer R.I. For ten years and to pay fine of Rs.5,000. In default of payment of fine to further undergo R.I. For one year each. Both the appellants have fled these appeals against their above conviction and sentences.
2. The prosecution case is that on 26-7-1983 at 11-30 p.m., in the night a passenger bus with passengers on board was coming from Multan and was on way to Mianwali. When the bus reached at a place known as Daduwala M.M. Road, within the area of Police Station Kallur Kot, District Bhakkar, P.W.10 Muhammad Nasir, who was driver of the bus, noticed two persons standing on the mettled road. Thinking the two men as bona fide passengers, he stopped the bus to take them on board. He immediately noticed that the two men were armed with pistols. In the meantime two more men arrived to join their companions. They were also armed with pistols. The four highway men asked the driver to take his bus aside the road on the Katcha. The driver had to obey under threat of his life. The four robbers then took over the driving licence of the driver and currency notes in the sum of Rs.200 and an Omega watch. They also took over from Muhammad Sarwar, the conductor of the bus, a sum of Rs.2,600 and a tape-- recorder with three cassettes.
Then they robbed the passengers of the bus relieving them of their cash and the watches. It is consistent case that all the four highway men had muffled their faces with veils. Their names and addresses were not known.
3. On 27-7-1983 at 1-30 a.m. Driver Muhammad Nasir lodged an F.I.R. (Exh.P.A./1) in the Kallur Kot Police Station, District Bhakkar. The same day at about 7-00 a.m. The police started the investigation.
4. Ghulam Hassan Khoji (P.W.6) who was a tracker, was called on 27-7-1983 by the S.H.O. And on `reaching the place of occurrence he followed the foot-prints of the four robbers and prepared moulds (Exh. P.D.) of the foot-prints.
5. After about one and half years the police claimed that the present appellants were involved in this crime. P.W.11 Faqir Muhammad, S.I./S.H.O. On 4-4-1984 got transferred appellant Mehr Khan from Gujranwala Jail (where he was already confined) to judicial lock-up, Bhakkar. On 5-5-1984 Habibullah accused was arrested from Sialkot Cannt., where he was serving in the Pakistan Army, brought to Bhakkar and confined in the judicial lock-up.
6. On 14-4-1984 appellant Mehr Khan led the police party to a place from where he produced a wrist watch (Ex.P.4) concealed in the bushes. The watch was taken into possession under recovery memo. (Exh. P.E.).
7. On 28-5-1984 appellant Habibullah, while in custody, led the police party to his house and from a box lying in the- house produced a wrist, watch (P.3), which was taken into possession under recovery memo. (Exh. P.B.).
8. On 11-4-1984 P.W.6 Ghulam Hassan Khoji was called and foot-print identification parade was held under the supervision of Ch. Inayat Ullah, M.I.C., Kallur Kot. Accused Mehr Khan was made to walk with six other persons and the Khoji on the basis of the moulds he had taken on 27-7-1983 from the scene of occurrence correctly identified the foot-prints of appellant Mehr Khan.
9. The above facts reveal that the evidence against the two appellants consists of (1) two eye- witnesses of the occurrence namely P.W.10 Muhammad Nasir and P.W.12 Ghulam Yasin, (2) the recovery of wrist watches from the possession of the two appellants and (3) the foot-prints.
10. Taking up the evidence of eye-witnesses, P.W.10 Muhammad Nasir and P.W.12 Ghulam Yasin, it is to be noted that both of them have repeatedly stated in their statements in Court as well as in the F.I.R. Lodged by P.W.10 Muhammad Nasir that the incident had occurred at 11-30 in the mid-night on a highway. That at the time of occurrence all the four accused, who stopped the bus and committed dacoity, had muffled their faces. There is force in the contention of the learned counsel for the appellant that no reliance can be placed on the versions of the two eye-witnesses, who have identified the two appellants without giving any reason how they could identify them when they had not been able to see the muffled faces on the night of the occurrence. P.W.12 was taken to the judicial lock-up and there he identified Habibullah, in presence of Faqir Muhammad, S.I. This witness has frankly admitted in his cross-examination that `the Thanedar had told me that the present accused were actually culprits of my case at the time of identification parade'. We have no hesitation in rejecting this type of identification and feel that this identification cannot be taken to be the basis for conviction.
11. Turning to the recoveries from the possession of the appellants, we have two watches. One was recovered from the bushes at the instance of appellant Mehr Khan on 14-4-1984 vide recovery memo. (Exh. P.E.). This watch as well as the watch recovered from the house of appellant Habibullah at his instance on 28-5-1984 vide recovery memo. (Exh. P.B.) were shown to the driver P.W.10 Muhammad Nasir, who was deprived of his Omega wrist watch on that night, but he did not claim any of the two watches. None other from among the passengers or any of the occupants has been produced to claim these watches. Thus, these two recoveries though very important in themselves do not establish any nexus with this particular crime. This piece of evidence, therefore, remains of no consequence so far as this case is concerned.
12. The third circumstance,, which can be of any use to the prosecution was the foot-prints of the appellants. Unfortunately the moulds, which are said to have been taken, have not been exhibited nor were brought to the Court and placed before us though asked for. There is force in the contention of the learned counsel for the appellants that without these moulds how can it be possible for the taker to remember the impressions he had taken on his mind on 27-7-1983 and compared with the foot-prints on the day of the identification parade. Moreover, the trackers evidence carefully pursued shows many loopholes in his testimony. He has not disclosed what was the size, the shape of the foot forming grooves on the earth. Whether it was a hard, soft or grassy surface from where the prints were taken. Whether the accused was walking bare footed at the time of the occurrence or he was wearing a shoe. Without disclosing all these details the comparison of foot-prints taken on the day of parade with the mould would be a bald statement and not evidence of an expert worthy of much credence.
13. In a similar case the observations made by Ali Hussain Qazilbash? J., in his leading judgment in Ghulam Rasul v. State reported in 1988 SCMR 557 are reproduced below: "The third piece of evidence furnished .In this case is that of Wahid Bakhsh (P.W.7), the tracker.
According to Exh. P.H., the tracker had identified only the foot-prints of Nabi Bakhsh and Sikandar appellants. At the trial, however. He deposed that he had identified the foot-prints of the two accused but he had conveniently forgotten to name the two particular accused. Besides, he has also admitted at the trial that: the place of occurrence is a main road, there is always traffic on the road, the foot-prints were on Katcha road and the place of occurrence is adjacent to the Pakka road.'
There is nothing on the record that the tracker inspected the place of x occurrence when the traffic had not started. Further, it is the case of the prosecution that soon after the occurrence the police party consisting of seven persons headed by the S.H.O. And two other witnesses, namely, Habibullah (P.W.8) and Allah Wasaya (not produced), reached the place of occurrence where the report Exh. P.B. And the statements.Of P.Ws. Under section 161, Cr.P.C., were recorded. These persons who were nearly a dozen in number must have been walking and sitting on or around and adjacent to the place of occurrence, as a result of which the foot-prints, if any, must have been trampled and obliterated. Under the circumstances, therefore, there is hardly any possibility that the foot--prints of the appellants, in particular, would be available. Thus, this evidence is hereby discarded."
14. Whatever may be merit of this evidence on facts the learned counsel has further argued that the tracker's evidence is weakest type of evidence to rely upon for the purposes of conviction. The tracker's evidence may be used as corroborative evidence. By itself it cannot be used as satisfactory and sufficient to justify a conviction without other supporting evidence. In the present situation there is no direct evidence and indeed no recoveries to connect the accused with this crime. The tracker's evidence alone, in our opinion, cannot form basis for conviction.
15. In support of his argument the learned counsel has relied on Mehr Ali and others v. The State 1968 SCMR 161. This was also a case of murder and robbery. The accused had succeeded in escaping from the scene of occurrence and were arrested later. There were different pieces of evidence against one of the three accused and his conviction was confirmed by the Supreme Court. The evidence against the remaining two accused was the evidence of the tracker who had prepared the moulds of the foot-prints. Setting aside their conviction the Supreme Court observed as under: "The only circumstance on which the prosecution relied in support of the evidence of the witnesses against these appellants, was that of the tracker Muhammad Azim. His evidence is based upon the comparison of the shod foot-prints found near the scene of offence with the bare foot-prints of these two appellants. Of all kinds of evidence admitted in a Court this may be regarded as evidence of the least satisfactory character. Hence, there is considerable force in the contention that it will be very unsafe to rely on tracker's evidence. At the most, it may be said that the evidence led against these two appellants disclosed grave suspicion of guilt, but it did not raise that high degree of probability on which a conviction should be based. They are, therefore, entitled to get the benefit of reasonable doubt."
16. The case against the appellants -is, therefore, highly doubtful. Giving benefit of doubt to the appellants, we allow both the appeals, set aside their conviction and sentences and acquit them of the charge. They shall be released forthwith if not wanted in any other case.
17. These are the reasons for our short order, dated 18-12-1989.