1. SAJJAD ALI SHAH, J.---Criminal Petition No. 75-K of 1989 for special leave to appeal was filed on behalf of Shah Hussain alias Papu while Muhammad Rasheed filed from J.P.L.A. No. 7-K of 1989.
2. Since both these petitions arosefrom common judgment of Sindli High Court doted 3-5-1959, both petitions were allowed and leave was granted vile order dated 2-11-1989, converting petitions into appeals bearing Cr. Appeals Nos. Fib-K and fi7-K of 199tI. Initially vide judgment dated 4-8-1955, trial Court of Ist Additional Sessions Judge (Central) Karachi, in Sessions Case No. 2321 of 1985, for offence under section 302/34 P.P.C., tried three persons namely, (1) Muhammad Rasheed, (2) Shah Hussain alias Papu, and (3) Abdul Karim alias Billa, convicted and sentenced them each to life imprisonment and fine of Rs.5,000 or in default R.I. For 3 years. Each was further directed to pay compensation under section 544-A, Cr.P.C. Of Rs.7,000 to heirs of deceased Muhammad Hashim alias Laloo, or in default to suffer R.I. For 6 months. By same judgment trial Court, in connected Sessions Case No. 2322 of 1985 acquitted Muhammad Rasheed for offence under section 13(E)
3. Arms O dinance, 1975. Against judgment of trial Court, two appeals were filed in the High Court of Sindh, one Cr. Appeal No. 127 of 1988 by Muhammad Rasheed and the other Cr. Appeal No. 136 of 1988, jointly by Shah Hussain alias Papu and Abdul Karim alias Billa. Both these appeals were heard together and dismissed vide common judgment dated 3-5-1989, which is impugned in these two appeals. Convict Abdul Karim alias Billa has not filed petition for leave to appeal in this Court.
4. Briefly stated relevant facts are that incident took place on 12-7-1985 at about 11 p.m. Near Pan Bidi Stall Gujarnala, near bus stop No.3, Nazimabad No.2. Rasheed called deceased Hashim, who was held by Shah Hussain alias Papu and Abdul Karim alias Billa, while Rasheed inflicted injury with dagger on the left side of his chest. Hashim fell down injured and assailants ran away. Incident was seen by complainant Muhammad Israr, Abid, Shaukat and Arshad, who were nearby. Complainant Israr and P.W. Arshad took injured Hashim to hospital. On being informed by hospital at 12.45 a.m.
5. (13-7-1987), ASI Rehmatullah of PS Gulbahar, made entry in daily diary and went to Abbasi Shaheed Hospital where he recorded statement of complainant Israr which was incorporated in 15.1, Cr.P.C.
6. Register as F.I.R. For offence under section 307/34, P.P.C., as injured Hashim was still alive but not capable of making statement. It may be mentioned here that in F.I.R. While name of assailant Rasheed is mentioned, names of other two are not mentioned but they have been described as friends of Rasheed, whose names were not known to the complainant, but he knew them by faces.
7. Motive is stated in F.I.R. That 2/3 days before incident there was exchange of harsh words between Hashim and Rasheed as Hashim had informed complainant. Said ASI took in hand investigation and visited scene of offence. He prepared mashirnama of wardat and sketch. He received information from hospital that Hashim had succumbed to his injuries at about 5 a.m. He went to the hospital and prepared inquest report of dead body and informed SHO Mehboob Khan, who took over the investigation. Offence was converted into section 302, P.P.C. SHO went to the spot and verified progress of the investigation. Three' assailants named-above were arrested by Sub- Inspector Noor Elahi who had also recovered one dagger and one knife. From which dagger, being stained with blood, was put into a sealed parcel and sent to Chemical Examiner. Blood stained clothes of deceased and other articles seized by Rehmatullah were also sent to Chemical Examiner. Since names of Abdul Karim and Shah Hassain were not mentioned in F.I.R, steps were taken and identification test was held under the supervision of A.C.M. All the three assailants Were mixed up with dummies and made to stud in a line and one by one complainant and three eye- witnesses, named in F.LR., were called, who correctly picked out all the assailants. After completion of investigation challan was presented in the Court.
8. In trial Court prosecution examined in all 11 witnesses from whom four were eye-witnesses.
9. Remaining were mashirs, police officials, who took part in investigation and the Magistrate, who supervised identification test and doctor, who conducted post-mortem examination. Trial Court also examined Aftab Ali P.C. As Court witness, who testified that P.W. Muhammad Ahmad had expired. Accused persons during trial, in their statements under section 342, Cr.P.C., denied prosecution allegations and proclaimed innocence and false implication. Rasheed had alleged that complainant Israr has involved him in this case falsely, while other two accused persons claimed implication due to suspicion. Furthermore, all the three accused have examined themselves as defence witnesses.
10. Trial Court has convicted all the three accused persons including two appellants before us and non-appealing convict Abdul Karim alias Billa for offence under section 302/34, P.P.C. And has sentenced each to life imprisonment etc. As stated in the first paragraph of this judgment.
11. Trial Court has ruled out of consideration evidence of recovery of dagger from the custody of appellant, Rasheed and evidence of identification test. In appeal, High Court of Sindh reappraised evidence in the light of contentions raised by the counsel for appellants and in conclusions agreed with the trial Court and in the result appeals were dismissed.
12. We have heard at length Mr. Azizullah Shaikh, learned counsel for appellant Shah Hussain alias Papu and Mr. M.A.I. Qarni, learned Advocate-on---Record for A: G. Sindh for State and with their assistance, have gone through the record. Ocular evidence is assailed on the ground that there are inherent inconsistencies in the version of eye-witnesses at different stages. Complainant Muhammad Israr stated in F.I.R. That at the time of incident Rasheed came with his two friends, whose names he did not know, but could identify them by face, took his brother Muhammad Hashim alias Laloo at a distance of 7 or 8 paces, when both friends of Rasheed caught hold of Muhammad Hashim and Rasheed inflicted injury with dagger to Hashim on his chest with the result that Hashim fell down injured and Rasheed and his two friends ran away. Complainant improved his version at the time when his evidence was being recorded and he stated that three accused persons present in the trial Court were known to him and he took their names specifically.
13. Complainant further added voluntarily that name of Abdul Karim was not known to him at the time of incident, but he was known to him by face, as he used to reside in his neighbourhood. Saying so at the beginning of deposition, complainant proceeded further to narrate the facts of the incident in accordance with contents of F.I.R., describing assailants as Rasheed and his two companions. In so doing, complainant saved himself from resiling from F.I.R. In cross-examination on this point, no further question was put to this witness except one, to which he replied that in F.I.R. He had not given descriptions of two: accomplices of Rasheed. Second eye-witness P.W. 2 Arshad Akhtar deposed before the trial Court .That he did not know accused persons present in the Court at the time of incident. He narrated the facts of the incident, fully supporting the case of the prosecution.
14. On this point no further question was put to him in the cross-examination. Third eye-witness P.W. 3 Muhammad Abid deposed that he knew accused present in the trial Court and also took their names specifically. While narrating the facts of incident also, he described the assailants with their names. In cross-examination he denied suggestion that he stated in his police statement that he came to know names of accused persons as Abdul Karim alias Billa and Shah Hussain alias Papu.
15. Lastly, fourth eye-witness P.W. 4 Shaukat Ali deposed that he knew Rasheed prior to the incident but did not know remaining two accused who were present at the time of incident and whom he correctly picked out in identification test which was held during the investigation. In the deposition, while narrating the facts of the incident, he has referred to the assailants by their, names. There is nothing in the cross-examination of this witness to suggest that he did not know Rasheed before incident. To that extent his claim remains unrebutted. From the four eye-witnesses, three namely, complainant Israr, Abid and Shaukat claimed positively that they knew Rasheed before the incident and identified him at the time of incident as the person who stabbed Hashim with dagger. Eye- witness Arshad further claimed that he did not know all the accused at the time of incident. Further eye-witness Arshad stated that he did not know accused persons at the time of incident but picked them out at the time of identification test during the investigation. From what is stated above, it appears that case of appellant Rasheed is distinguishable from remaining two co- accused for two reasons. Firstly, that active part of causing injury with dagger to deceased on the left side of chest is assigned to appellant Rashecd, while to the remaining two, role of holding deceased to facilitate attack by Rasheed is attributed. Secondly, appellant Rasheed, prior to the incident, was known to eye-witnesses Israr, Abid and Shaukat when on the other hand, remaining two co-accused were not previously known to any eye-witness.
16. Now it is to be seen, whether prosecution has proved its case against both sets of accused persons, as mentioned above or not. In that context, it would be necessary to consider evidence of identification test. While agreeing with both the Courts below, we feel no hesitation in rejecting evidence of identification test straightaway for the following reasons. Firstly, complainant Israr and eye-witness Arshad should not have been made mashirs by prosecution to witness arrest of accused persons as Israr was supposed to identify two from them while Arshad was supposed to identify ell three as they were seen by these witnesses at the time of incident and were not known to them previously. By making these eye-witnesses as mashirs of arrest, prosecution has done great damage to the case because subsequent participation of these two witnesses in the identification test becomes absolutely meaningless and futile and is ruled out of consideration.
17. Secondly, whole evidence of identification test is questionable on the ground of inordinate delay between arrest on 13-7-1985 test on 18-7-1985 for which no valid and convincing grounds have been assigned by the prosecution. It is stated in the evidence of P.W. 11 Mr. Muhammad Ahsan, A.C.M. That test to be held on 17-7-1985 had to be postponed to the following day as witnesses and accused were not produced, but no other reasons have been put forward to explain why identification test was not held on 13-7-1985, when all the three accused persons were arrested jointly and why not on three days consequently after that. Thirdly, according to the Magistrate, nine dummies were mixed up which is disproportionate with number of accused who were three.
18. Fourthly, Magistrate, who supervised the test, did not produce before the trial Court original documents in respect of test, but had produced photocopies stating that originals were lost and were not available. Prosecution failed to explain how original papers were lost and were not available.
19. Likewise, we approve that evidence of recovery of crime weapon with positive finding of Chemical Examiner against appellant Rasheed is not reliable for reasons, firstly, that mashirs were not taken up from locality. In this context, evidence of Sub-Inspector Noor Elahi, who is P.W. 8, is to the effect that he received spy information that accused persons were present in the house of Rafiuddin, so he set out to make the arrest. While he was coming, out of the gate of police station, he met complainant Israr and P.W. Arshad, and took them alongwith him. On the way, he picked up Mukhtar. In cross-examination, this witness has admitted that he had called Mukhtar at the police station and further, he did not call any person from the locality or adjoining houses to act as mashir of recovery. No reasons have been assigned for not taking mashirs from the locality as is contemplated; under Section 103, Cr. P.C. Secondly, there is inordinate and unexplained delay in sending crime weapon to the laboratory of Chemical Examiner. Arrest was made and crime weapon was recovered on 13-7-1985 and weapon in sealed parcel-was received in the laboratory of Chemical Examiner on 2-2-1986 and in between a period of 7 months and 11 days had expired during which it is not ascertainable as to where the sealed parcel was. No explanation whatsoever has come from the prosecution in this regard.
20. We are in agreement with findings of two Courts below which are concurrent in nature on the question of reliability of four eye-witnesses examined in this case. We are inclined to believe these eye-witnesses for the reasons, firstly, that they did not bear any enmity against accused persons and have no reason whatsoever to implicate them falsely. In the cross-examination these witnesses have admitted friendship inter se or with complainant and deceased but that does not disqualify them from being witnesses to the incident because otherwise, they have stood the test of cross-examination and nothing adverse appears against them to show that they have not seen the incident. They have explained their presence at the spot and have given valid reasons for that.
21. From them Arshad and Shaukat have admitted that they did not belong to the locality where incident took place but explained how they were available at that place at that particular moment.
22. Both Arshad and Shaukat stated that they had come from zeenat Square to Liaquatabad where Shaukat had to meet his maternal cousin. After doing that, while they were coming back and reached near Imam Bargah, deceased Hashim met them and offered them Pan. Testimony of these two witnesses stands further fully corroborated by other eye-witnesses and medical evidence. Beyond dispute, this fact is borne out from the record that Arshad accompanied injured Hashim to the hospital. Evidence of the eye-witnesses is further supported by medical evidence which shows that deceased had sustained one injury by dagger on the left side of the chest as was claimed by the witnesses to have been seen by them. According to the witnesses, appellant Rasheed gave one dagger blow to Hashim on his chest while his two accomplices namely, Shah Hussain alias Papu and Abdul Karim alias Billa caught hold of him. Perusal of cross-examination of the eye-witnesses clearly shows that from the side of defence there is no serious challenge to the credibility of the witnesses nor their presence at the spot is called in question. Complainant Israr has testified about the motive that some days. Before the incident his brother Hashim had informed him that there was exchange of harsh words between Hashim and Rasheed and that altercation took place in Liaquatabad.
23. As against the prosecution evidence, in the statements under section 342, Cr.P.C. From the side of accused persons there is only denial simpliciter of prosecution allegations and uniform stand is taken that they have been implicated by complainant Israr on the basis of suspicion and other eye-witnesses have been set up by him. All the three accused further examined themselves as defence witnesses and reiterated the same stand.
24. We are of considered view that incident has taken place, as is claimed by the eye-witnesses in their evidence. There was one other eye-witness namely, Muhammad Ahmed Panwalla near whose Thela incident took place but he could not be examined for the reason that he had died as stated by Arshad and confirmed by process-server Court witness No. 1 Aftab Ali, police constable.
25. Since on technical grounds evidence with regard to identification test and recovery of crime weapon has been ruled out of consideration, we have to consider remaining evidence available on the record which is sufficient to prove case against appellant Muhammad Rasheed who is the main accused in the incident and has caused dagger injury to the deceased which proved fatal.
26. Against him there is evidence that he was previously known to eye-witnesses complainant Israr, Abid and Shaukat. Evidence of these witnesses is further supported by medical evidence and that of motive. So far appeal of Shah Hussain alias Papu is concerned, we are of the view that case against him has become doubtful on account of and in consequence of ruling out of consideration evidence of identification test. Since none of the eye-witnesses knew this appellant before the incident and we are not believing evidence of identification test as two Courts below also have done, remaining evidence is insufficient and inadequate to prove case against him beyond doubt.
27. We, therefore, give benefit of doubt to Shah Hussain alias Papu and acquit him. His appeal is allowed and he may be released at once if not required in any other case. Appeal of Muhammad Rasheed filed from jail, for reasons stated above, is dismissed.