' RUSTAM S. SIDHWA, J.---This is a judgment which will dispose of criminal appeal (Cr. A. No, 110 of 1989) filed by Waqar Zaheer appellant against the judgment of a learned Division Bench of the Lahore High Court dated 13-121988 dismissing his appeal jointly filed with his co-convict Muhammad Arshad and criminal appeal (Cr. A. No, 111 of 1989) filed by Ghulam Bari appellant against the same judgment seeking the enhancement of the sentence of Muhammad Arshad convict and payment of compensation by Waqar Zaheer and Muhammad Arshad convicts in addition to the fines imposed on them as substantive sentences.
2. The occurrence took place on 24-12-1986 at about 8.00 p.m. Outside the house of Col. Ghulam Murtaza Khan deceased situate in D-Block, Peoples Colony, Faisalabad, 2-1/2 kilometres away from Police Station Peoples Colony, Faisalabad. It was reported at the police station on the same date at 10.00 p.m. By Ghulam Bari P.W.13, brother of the deceased, vide F.I.R. Ex. PI, which was recorded by Muhammad Masood Tariq, Inspector P.W.14, the then SHO of the police station.
3. According to Ghulam Bari P.W.13, he on 24-12-1986 at 8.00 p.m. Was going to the house of his brother Col. Ghulam Murtaza Khan situate in D-Block, Peoples Colony, Faisalabad. When he reached near the house of Mr. Javed Niaz Manj, an Advocate, the deceased passed by him in his car. The deceased stopped his car in front of his house and as soon as he got down from his car, a shot was fired. From in front of the house of the deceased two unknown persons, whom he could identify, fled away on a motor-cycle. The deceased fell down unconscious on account of a fire-arm injury on the back of his left shoulder. Imran Murtaza, a son of the deceased, and Abdul Khaliq, another relative, came out of the house of the deceased. They took the deceased in an injured condition in a car to the hospital, where he succumbed to the injury. He further mentioned that the deceased had no enmity with any one.
4. After recording the F.I.R., Muhammad Masood Tariq, Inspector P.W.14 proceeded to the DHQ hospital, where, after preparing the necessary papers, he sent the dead body for post-mortem examination.
5. On 25-12-1986 Muhammad Masood Tariq, Inspector P.W.14 visited the place of occurrence and recovered a Chadar P9, vide memo. Ex. PJ, and one .30 bore crime empty P10, vide memo: Ex. PK.
6. On 25-12-1986 at 10.00 a.m. Dr. Muhammad Ajmal P.W.1 conducted the post-mortem examination on the dead body of Col. Ghulam Murtaza Khan and found a circular fire-arm wound of entry on the back of the right side of the chest over the scapular region. Death was due to shock and haemorrhage resulting from the said injury, which was sufficient to cause death in the ordinary course of nature. One bullet was also recovered by the doctor from the body.
7. On 26-12-1986 Muhammad Masood Tariq, Inspector P.W.14 recorded the statement of one Malik Mansha Khan P.W.10, who deposed to have seen on 24-12-1986 at 8.00 p.m. Waqar Zaheer and Muhammad Arshad accused pass by Hamid Chowk on a motor-cycle, immediately after he heard a fire-arm report from the passport office side. He also stated that the two accused were known to him.
8. On 27-12-1986 Muhammad Masood Tariq P.W. 14 recorded the statement of Saood Ahmad P.W.11, who deposed to have seen on 24-12-1986 at 8.00 p.m. Waqar Zaheer and Muhammad Arshad accused pass by Chowk Passport Office on a motor-cycle immediately after he heard a fire-arm report from the eastern side. He also stated that the two accused were known to him.
9. During the investigation of another criminal case arising out of F.I.R. No, 655 dated 28-12-1986 registered at the instance of Muhammad Arshad Javed P.W.9, which related to a dacoity at his shop in which three persons had come to his shop on a motor-cycle while armed with fire-arm and had forcibly taken away cash from his cash box and his gold ring and watch from his hand, the said complainant happened to see the said three dacoits on 1-1-1987 sitting in the ground behind the Radio Station, Faisalabad. He accordingly informed the police about it, whereupon Muhammad Masood Tariq, Inspector P.W.14 alongwith another Police Inspector and other policemen arrested Waqar Zaheer and Muhammad Arshad accused alongwith one Sabir All from the D-Ground, Peoples Colony. From Waqar Zaheer accused revolver P.7 alongwith three cartridges P.8/1-3 were recovered, vide memo. Ex. PH. From Muhammad Arshad accused 7 mm rifle P.4 and 15 cartridges P.5/1-15 alongwith bandolier P.6 were recovered, vide memo. Ex. PG. Two separate cases under section 13 of the Arms Ordinance were registered against both the said accused. Both the accused were arrested the same day and sent to the judicial lock-up on 2-1-1987.
10. On 3-1-1987 the Investigating Officer submitted an application Ex. PC to the District Magistrate for the identification parade of the two accused. Vide order Ex. PC/1 the District Magistrate marked the application to the Duty Magistrate Mr. Salahuddin Sumbal P.W. 2 for necessary compliance. The Magistrate issued summons for the witnesses for 6-1-1987, but it being reported that they were not available, he fixed 12-1-1987 for the identification parade.
11. On 12-1-1987 Salahuddin Sumbal, MIC P.W.2 conducted the identification parade, wherein Ghulam Bari P.W.13 identified both Waqar Zaheer and Muhammad Arshad accused.
12. On 17-1-1987 Tanvir Azhar accused visited All Haider Pasha P.W.12 at his house, where Abdul Ghani Cheema was also present, where he made an extra-judicial confession that he had prodded Waqar Zaheer and Muhammad Arshad accused, who were his fellow friends and committing minor robberies on the roads, to commit a bigger robbery by robbing his neighbour Col. Ghulam Murtaza who used to keep Rs,40,000 to Rs,50,000 with him on his person in the evenings, in consequence whereof both the said accused had committed the murder of the said deceased on 24-12-1986. Since All Haider Pasha P.W. 12 was going to Rawalpindi, he told Tanvir Azhar accused to see him on 20-1-1987 upon his return, whereupon he would help him. On 20-1-1987 Ali Haider Pasha P.W. 12 waited for Tanvir Azhar accused. Ch. Abdul Ghani Cheema also came to see him that day.
Thereafter, All Haider Pasha P.W.12 alongwith Abdul Ghani Cheema went to Police Station Peoples Colony, where they met Muhammad Masood Tariq, Inspector P.W.14 and reported the matter about Tanvir Azhar accused's confession. On 2-2-1987 Tanvir Azhar accused came and met Ali Haider Pasha P.W.12 and informed him that the police was after him. Accordingly Ali Haider Pasha P.W. 12 took him to the police station and produced him before the Investigating Officer.
13. During the investigation, the crime empty P.10 recovered from the spot was found to match with the pistol P.7 recovered from Waqar Zaheer accused by the Forensic Science Laboratory. On completion of the investigation, challan against Waqar Zaheer, Muhammad Arshad and Tanvir Azhar accused was sent up.
14. At the trial, the prosecution produced Ghulam Bari complainant P.W.13 in support of the ocular account, Malik Mansha Khan P.W.10 and Saood Ahmad P.W. 11 in support of Wajtakkar evidence, Mr. Salahuddin Sumbal P.W. 2 and Ghulam Bari P.W. 13 in proof of the identification parade, Muhammad Arshad Javed P.W. 9 in support of the arrest of Waqar Zaheer and Muhammad Arshad accused, Ali Haider Pasha P.W. 12 to prove the extra-judicial confession of Tanvir Azhar accused, Muhammad Arshad Javed P.W. 9 and Masood Tariq, Inspector P.W. 14 in support of the recoveries and Dr..Muhammad Ajmal P.W.1 to corroborate the medical testimony.
15. All the accused at the trial denied all the accusations that were levelled against them including the recoveries alleged to have been effected at their instance. Waqar Zaheer accused and Muhammad Arshad accused in their statements under section 342, Cr.P.C. Stated that they had been falsely involved in the case at the instance of Muhammad Arshad Javed P.W.9, as he alongwith his co-accused Muhammad Arshad and one Sabir Ali had given him a beating on 27-12- 1986, whereupon on the same night at 11.30 p.m. Muhammad Masood Tariq P.W. 14 alongwith the said Muhammad Arshad Javed PW had raided his house and arrested him in the presence of Prof. Muhammad Amjad, D.W.1, Malik Abdul Majid Farooq and Navid Ashraf his neighbours. At that time on their inquiry the Inspector had told them that they were required in an accident case. In their evidence under section 340 (2), Cr. P.C. Waqar Zaheer and Muhammad Arshad accused repeated the same story. Tanvir Azhar accused in his statement under section 342, Cr.P.C. Stated that he had been falsely involved in the case on mere suspicion on account of the fact that he was an employee of a neighbour of the deceased at his place of business. In his evidence under section 340(2), Cr.P.C. He confirmed the said statement. The accused produced Prof. Muhammad Ajmad D.W. 1, Muhammad Ikram Sethi D.W. 2, Safdar Bukhari D.W. 3 and Mehtabuddin Nishat D.W. 4 in their defence.
16. The learned trial Judge, relying upon the ocular testimony, the identification of Zaheer Waqar and Muhammad Arshad accused in the identification parade, the Wajtakkar evidence, the recovery against Waqar Zaheer accused and the medical testimony, convicted Waqar Zaheer and Muhammad Arshad under section 302/34, P.P.C., but acquitted Tanvir Azhar accused. He sentenced Waqar Zaheer accused to death and Muhammad Arshad accused to imprisonment for life. Both were ordered to pay a fine of Rs,20,000 each or in default thereof to undergo further R.I for four years each. Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was withheld from both the accused.
17. The learned Judges of the High Court, relying upon the ocular account, the identification of both the convicts in the identification parade, the recoveries from both the accused and the medical testimony, affirmed the finding of the trial Judge and dismissed their appeal.
18. Leave was granted by this Court to Waqar Zaheer appellant to examine whether there was sufficient evidence as required by law to uphold his conviction and sentence and also to Ghulam Bari appellant to consider whether the sentence of Muhammad Arshad convict should not be enhanced to death and whether compensation should not be paid by Waqar Zaheer and Muhammad Arshad in addition to fines imposed as part of their substantive sentences.
19. On behalf of Waqar Zaheer appellant it is submitted that the ocular testimony of Ghulam Bari complainant P.W. 13 cannot be accepted, as he was neither present at the spot nor saw the incident nor recognised Waqar Zaheer appellant, Muhammad Arshad convict or Tanvir Azhar acquitted accused. In this connection it is submitted that the statement of the said witness made in the F.I.R. And that at the trial are highly discrepant and that even assuming, though not admitting, that he was present at the spot at some distance when he saw his brother murdered, he could not have had more than a fleeting glimpse of the assailants and in any case he would not have been in a position to recognise them later in an identification parade conducted almost 19 days after the occurrence. It is submitted that the mere fact that the said witness is not inimical to any of the accused does not imply that he spoke the truth when he gave evidence, for the acid test of any statement made by a witness is the he rent merit of his testimony. In this connection the learned counsel has retied upon Muhammad Farooq v. State PLD 1976 Lah. 1403, Pir Muhammad Khan v. State PLD 1970 Karachi 399 and Bashir Ahmad v. Muhammad Azam PLD 1969 SC 469. It is next contended that the identification parade was held contrary to the rules in that the ratio of 9 or 10:1 between the inmates of the jail and the accused was not resorted to by the Magistrate conducting the identification parade, with the result that the same cannot be relied upon. It is also submitted that instead of separate identification parades being held for Waqar Zaheer and Muhammad Arshad, a joint identification parade of both of them was held where at least 18-20 jail inmates were not joined as required by the rules. In these circumstances, it is submitted that the identification parade has no validity in law and must be rejected. In this connection it is also submitted that though Waqar Zaheer appellant and Muhammad Arshad convict were admittedly arrested on 1-1-1987, the identification parade was not held till 12-1-1987 and this abnormal delay by itself vitiates the proceedings. It is also urged that Ghulam Bari P.W. 13 not having earlier given some description of the two accused in the F.I.R. And admittedly also having seen the two assailants in a momentary flash, no sanctity can attach to his having allegedly identified Waqar Zaheer appellant and Muhammad Arshad convict in the identification parade. With regard to Wajtakkar witnesses, namely, Malik Mansha Khan P.W. 10 and, Saood Ahmad P.W. 11, it is submitted that though they came to know of the occurrence on the very next day they did not immediately go to the police to inform them of what they had seen the night before and their statements having been recorded late, no evidentiary value attaches to their statements. In this connection Qabil Shah v. State PLD 1960 (W.P.) Karachi 697 at 708 and Muhammad Sadiq v. State PLD 1960 SC 223 at 226 are referred. It is also submitted that their testimony is neither here nor there, for the prosecution has not been able to show exactly how far they were from the actual place of occurrence when the incident took place and whether they were on the same road i,e, Maulana Roomi Road, where the incident took place, or on one of the side roads and, if so, at what distance from the place of incident. As regards the recoveries it is submitted that though the crime empty P.10 was recovered by the police on 25-12-1986 and the pistol P.7 recovered from Waqar Zaheer appellant on 1-1-1987, neither the crime empty nor the pistol were sent to the Forensic Science Laboratory immediately after the recoveries, but were sent together to the Forensic Science Laboratory on 4-11987. In these circumstances it is urged that the crime empty sent to the Forensic Science Laboratory was one which was secured after firing a live bullet from the pistol which was recovered and therefore no evidentiary value attaches to the said recovery.
20. On behalf of Ghulam Bari appellant/complainant and the State it is submitted that the ocular account furnished by the complainant is that of a natural and truthful witness, which inspires confidence and since it is admitted by the two convicts that he had no enmity or motive to implicate them, the evidence is reliable and can be acted upon without any fear. It is submitted that the said witness was only ten yards away when he heard the fire-arm report and saw his brother falling on the ground and in the meanwhile two persons who were riding a motor-cycle pass him by, going in the direction from which side he had come, and which two persons he identified. He also saw the person who was sitting on the rear seat holding the rifle in his hand, while the person who was driving was not holding anything. It is submitted that he saw all this clearly in the light, as there was enough electric light on the main gate of the residence of his brother as well as at the bungalow in front of his residence which was under construction, in addition to the light of the deceased's car which was still on and the light of his own motor-cycle, which was also on. As regards the identification parade, it is submitted the non-compliance of the Police Rules does not vitiate the identification parade, unless prejudice was caused to the convicts and since none has occurred, the said evidence cannot be brushed aside. It is submitted that fourteen jail prisoners were joined with the two accused at their own request during the identification parade and therefore their objection to the procedure has no legal validity. It is contended that Ghulam Bari P.W. 13 having clearly identified both the accused in the identification parade and his having also mentioned to the Magistrate conducting the said parade that they were the two assailants whom he had seen on the date of incident who had murdered his brother, the said evidence lends strong corroboration to the ocular testimony of Ghulam Bari P.W.
13. As regards the Wajtakkar witnesses, it is contended that both Malik Mansha Khan P.W.10 and Saood Ahmad P.W.11 being residents of D-Block, Peoples Colony, where the deceased also resided, and both having no enmity with or motive to falsely implicate the three accused, their evidence is that of disinterested witnesses, which lends strong support to the instant case. As regards the recoveries, it is submitted that pistol P7 recovered from Waqar Zaheer appellant having matched with the crime empty P.10 recovered from the spot the very next morning after the night incident, clearly proves the participation of Waqar Zaheer in the occurrence. It is further submitted that Muhammad Arshad accused also having led to the recovery of a rifle, which also was noted by Ghulam Bari P.W.13 at the time of incident, which fact stands recorded in his evidence, his participation also stands established. In these circumstances it is prayed that the conviction of Waqar Zaheer and Muhammad Arshad accused should be maintained and that Muhammad Arshad should be given maximum sentence, as no mitigating circumstances appear which entitle him to the lesser penalty, and both the convicts should be saddled with the payment of compensation.
21. We have heard the arguments of the learned counsel for the accused, the complainant and the State and have perused the record. The most important witness in this case is Ghulam Bari complainant P.W.
13. His testimony therefore requires to be examined in some depth. According to F.I.R. Ex PI which was recorded within two hours of the occurrence, which took place on 24-12-1986 at 8.00 p.m, the complainant P.W. 13 stated that he was going to the house of his deceased brother situate in D- Block, Peoples Colony, Faisalabad. When he reached near the house of Javed Niaz Manj, Advocate, which was close to the house of his deceased brother, his brother passed by him from behind. The car of his deceased brother stopped in front of his house and his brother had just got down from his car, when he heard the report of a fire-shot. He then saw in front of the house of the deceased two unknown persons, whom he could identify, flee away on a motor-cycle. His brother fell down, whom he tried to assist. His brother who was unconscious had a fire-arm injury on the left side of his back. Imran Murtaza, a son of the deceased, and Abdul Kahliq, a relative, came out of the house of the deceased. Other Mohalladars also reached the place of occurrence immediately. They took the deceased in an injured condition in a car to the hospital, where he succumbed to the injury. He also mentioned that his deceased brother had no enmity. It is not mentioned in the FIR. That he was also on a motor-cycle, or that after his deceased brother had passed him by near the residence of Niaz Manj, Advocate, he had proceeded forward and was at a distance of about ten yards from the gate of the kothi, when he heard the fire-arm report, or that one of the fleeing assailants who was sitting on the rear seat of the motor-cycle was holding a rifle in his hand, or that there was electric light on the main gate of the residence of his brother as well as at the Kothi in front of his residence, in addition to the lights of the deceased's car, which were still on or that the deceased was hit on the right side of his back. However, in the evidence at the trial, the complainant mentioned that he was also proceeding to his deceased brother's house on motor-cycle at the relevant time, that he was at a distance of about ten yards from the gate of the Kothi when he heard the fire-arm report and saw his brother falling on the ground and two persons who were riding a motor-cycle pass by him and going towards the side from which he had come, whom he identified. He also mentioned that the person who was sitting on the rear seat was holding a rifle in his hand, while the other who was driving had nothing. He also stated there was enough electric light on the main gate of the residence of his brother as well as at the Kothi in front of his residence, which was under construction, in addition to the lights of his deceased brother's car, which were still on. He also mentioned that the deceased was hit on the right side of his back. The statement at the trial appears to be an improvement over that made in the F.I.R. The site plan Ex. PD shows point No,4 in black ink as the place opposite the house of Niaz Manj, Advocate, where the deceased passed by the complainant in his car. The same site plan also shows point No, 3 in red ink where the complainant saw the two assailants pass by him on a motor-cycle. Point No,4 in black ink and point No,3 in red ink are side by side. This clearly gives the impression that the point from where the complainant saw his deceased brother pass by him in his car and the place where he saw the two assailants pass by him on motor-cycle, after committing the crime, are actually one and the same place. In short it would appear that the complainant was on foot and not on a motorcycle, as alleged by him later at the trial. Since the occurrence took place on 24-12-1986 at 8.00 p.m., which would be a cold and foggy wintry night, the possibility of the complainant being able to clearly see what transpired 240 feet away from the point where he was i,e, opposite the house of Niaz Manj, Advocate, would appear to be almost remote. Likewise, the possibility of his being able to clearly see with some degree of exactitude the features of the two assailants when they passed him by on a motor-cycle in that fleeting and momentary epoch of time, appears to be almost nil. Evidently, according to his testimony, he never saw the two assailants in any standing posture near the place of occurrence at or about the time he heard the fire-shot. He, therefore, could not have noted their build or height. Since the two assailants passed him by on a motor-cycle, it is also not likely that he could have even seen their faces, with the headlight of the motor-cycle shining in his eyes. There is not even the remotest possibility that the complainant could have been able to see or even give any form of description of the two assailants who passed by him on a motor-cycle, as alleged by him, much less to have been able to identify them at any later stage 18 days after the occurrence.
Though much has been said by both the Courts below about the fact that he had no enmity with any of the accused or any motive tb implicate them falsely, the fact still remains that the acid test of his veracity was the inherent merit of his own statement and not the fact that he was not related to the deceased or inimical to the accused. If any authority is required for this rule, Bashir Ahamd v.
Muhammad Azam PLD 1969 SC 469 may be referred. I would therefore have no hestitation in rejecting the testimony of Ghulam Bari complainant P.W. 13 as it is unnatural and hardly has any basis in truth.
22. The evidence as regards the identification of the two convicts is also of no assistance for reasons already given above. Ghulam Bari P.W. 13 did not give any description of the two assailants in the F.I.R. He did not mention in the F.I.R. That there was any light around the place of occurrence, when he heard the fire-shot. As held above, he could not have also seen with any degree of clarity the two assailants who passed by him on a motor-cycle, because the headlight of the motor-cycle would be casting its light in his face. In a fleeting moment it is hardly possible he would have been able to see even anything. The evidence of Ghulam Bari P.W. 13 and Mr. Salahuddin Sumbal MIC P.W. 2 regading the identification of the two accused in the identification parade is of no value and must be rejected.
23. The evidence of Wajtakkar now requires examination. Malik Mansha Khan P.W.10 and Saood Ahmad P.W.11 both claim to be residents of D-Block where the deceased also lived. Malik Mansha Khan P.W.10 stated that his house was situated near Hamid Chowk in D-Block, whereas the house of the deceased was on Passport Office Road which was towards the south of Hamid Chowk. On 24- 12-1986 at 8.00 p.m. He was present in Hamid Chowk when he heard a firearm report from Passport Office side, when he became alert and saw a motorcycle with two persons coming from the side of the Passport Office. He noted that they were the two convicts. He knew them previously. According to the site plan the house of the deceased is not on the Passport Office Road, but on Maulana Roomi Road. Assuming that Hamid Chowk is to the north of the deceased's residence, there is no evidence to show how far north the said Hamid Chowk is or whether it is on the extension of the Maulana Roomi Road or some other road. There would be a number of roads criss-crossing each other in D-Block. Malik Mansha Khan P.W. 10 may be at some place north of the place of occurrence, but how far north and in what street or road would make all the differences, if one is to properly assess his testimony. Since this evidence is not there, the fact that he saw the two convicts on a motor-cycle on 24-12-1986 at or about the time of occurrence, cannot be treated as incriminatory in any way. The police statement of Malik Mansha Khan P.W. 10 was recorded on 26- 12-1986. Surprisingly, the Investigating Officer in his examination-in-chief did not refer to the fact that Malik Mansha Khan P.W. 10 appeared before him on 26-12-1986. Had the said statement been recorded on 26-12-1986, the Investigating Officer would have immediately looked forward to the two accused's arrest. The fact that he is silent in his testimony as regards what he did between 26- 12-1986 to 28-12-1986, shows that Malik Mansha Khan P.W.10 is only a trumped up witness. The circumstances in which the said witness came to make the deposition before the Investigating Officer also appear to be unnatural. According to him he was passing through Passport Office Chowk on 26-12-1986, when a constable stopped and asked him to see the investigting officer, who was sitting there, whereupon he contacted the said officer, who asked him whether he knew anything about the incident of murder of the deceased in the case, whereupon he told him of what he had seen. The peculiar circumstances in which this witness happened to meet the police and gave his depositon to the investigating officer leaves much to be desired. The evidence of Saood Ahmad P.W. 11 is no less peculiar. On the relevant date and time he was present in Chowk Passport Office in D-Block when he heard a fire-arm report from the eastern side and just thereafter he saw the two accused pass by him on a motor-cycle which was without any number plate, whom he recognised, as they were previously known to him. In his police statement Ex. DA he had stated that the two accused had come from the western side. He also does not mention how far Chowk Passport Office is from the place of occurrence and whether the said Chowk is on the extension of Maulana Roomi Road or on a different side road. Apart from the fact that the distance between Hamid Chowk and the Passport Office Chowk is stated to be 2-1/2 furlongs, no other particulars are available to show how close Saood Ahmad P.W. 11 was to the place of occurrence. The police statement of this witness was recorded on 2712-1986. According to his testimony he was going from his house to Dhudiwala. When he reached the Passport Office Chowk, he found the police there who were inquiring about the murder of Col. Ghulam Murtaza Khan. He was also interrogated by the police, whereupon he revealed what he had seen on the night of occurrence. The circumstances in which he made the disclosure to the police is as unnatural as that made by Malik Mansha Khan P.W.
10. He also appears to be a trumped up witness. Their statements are not only unnatural, but also do not inspire confidence. I have no hesitation in rejecting their testimony.
24. As regards the recoveries the only incriminating evidence that calls for examination is the recovery of the pistol P.7 from Waqar Zaheer appellant on 1-1-1987, which appears to have matched with the crime empty P.10 recovered from the spot on 25-12-1986. In recovery memo. Ex PK relating to the crime empty and in the further statement of the complainant Ex. DC the crime empty recovered was stated to be of .25 bore, which appear later to be corrected to .32 bore.
Unfortunately, the crime empty was not sent to the Forensic Science Laboratory immediately after its recovery . The crime empty was sent late on 4-1-1987 and that too with the pistol P.7, which was recovered on 1-1-1987. The circumstances in which the crime empty was detained by the police till the recovery of the pistol leaves much to be desired. Since this is a case of circumstantial evidence and almost all other important items of evidence have been found suspect, the present recovery cannot be accepted with any degree of safety.
25. Since the prosecution case has not been accepted, I need not discuss the defence evidence.
26. The upshot of the above discussion is that neither the ocular account nor the evidence as regards the identification of the two convicts in the identification parade, nor the evidence of the Wajtakkar witnesses, nor the recoveries, bring home the charge of guilt to Waqar Zaheer appellant or Muhammad Arshad convict. The chain of circumstances adduced in this case do not exclude all reasonable hypotheses which are consistent with the innocence of the two convicts. In these circumstances, the convictions and sentences of Waqar Zaheer appellant and Muhammad Arshad convict not being based on a proper appraisal of the evidence on the record and the law on the subject, deserve to be set aside.
27. Muhammad Arshad convict has not appealed in this case. In line with the rule laid down by this Court in Muhammad Aslam v. State 1972 SCMR 194 and Mohabbat AN v. State 1985 SCMR 662, the benefit of acquittal can also be extended to the non-appealing convict for purposes of doing complete justice,. Muhammad Arshad convict is therefore also entitled to be acquitted.
28. For the foregoing reasons, criminal appeal (Cr. A. No, 110 of 1989) filed by Waqar Zaheer appellant is accepted and the convictions and sentences of the said appellant and Muhammad Arshad non-appealing convict are set aside. They shall be set at liberty forthwith, unless required in any other case. Fines, if any recovered from them, shall be refunded to them.
29. There being no merit in criminal appeal (Cr. A. No, 111 of 1989) filed by Ghulam Bari complainant, the same is dismissed.