Ghulam Mustafa (aged 17 years) and Bashir Ahmad (41 years) were tried for the murder of Nasir- ud-Din. Mian Ghulam Ahmed, Additional Sessions Judge, Sheikhupura, convicted them under section 460, P. P. C. And sentenced each of them to life imprisonment and to pay a fine of Rs. 2,000 or in default of payment to suffer further rigorous imprisonment for two years, vide his judgment passed on 25-8-1973. Out of the fine, if realised, 2/3rd amount was directed to be paid to the legal heirs of the deceased. The convicts have come up in appeal.
2. Briefly, the prosecution case as disclosed in the F. I. R. Is that on the night between 4th and 5th January 1971 Nasir-ud-Din deceased slept at his Chah Tibbawala in the area of Village Dilawarian, district Sheikhupura to guard his cattle. On the morning of 5-1-1971 Muhammad Ashraf (not examined) informed son of the deceased, Maqsood Khaliq complainant, at his house in abadi of the village that the deceased had been killed by firearm at mid-night time. The complainant alongwith his mother went to the spot and found the deceased lying dead on cot with firearm injury on chest. Maqsood Khaliq P. W. Then left for the Police Station, Muridke but met Ch. Rehmat Ullah, S. H. O. (P. W. 13) at Police Post, Joyan where his statement (Exh. P. A.) was recorded at 9 a.m.
On which formal F.I.R. Was registered at the Police Station, at 10-30 a.m. On 5-1-1971.. The distance between the spot and the Police Station, Muridke is 8 miles.
At the trial Muhammad Hussain P. W. Deposed that the appellants visited his dera in village Bhayanwala at sunset time in January 1971 and made an extra-judicial confession. The appellants told Muhammad Hussain P. W. That they had visited Village Dilawarian for committing theft of cattle and they stole away a buffalo from the tube-well of the deceased, the deceased got up and was shot at by Noor absconder according to one of the appellants and by Mushtaq absconder according to the other appellant. The appellants further stated that when they were taking away the buffalo, Noora and Mushtaq absconders joined them and told them that they had murdered a man upon which the appellants left the buffalo.
After sending statement (Exh. P. A.) for registration of F.I.R. At Police Station, Ch. Rehmat Ullah (P. W.
13), who was then S. H. O., Police Station Muridke, visited the spot. He prepared injury statement, inquest report of the deceased and sent the dead body to mortuary for autopsy. He secured from the spot blood-stained quilt, chadar and gadda (Exhs. P. 1 to P. 3) and a cot (Exh. P. 4), vide memo.
Exh. P. D. And also secured blood--stained earth from the spot, vide memo. Exh. P. E. He took into possession one bullet (Exh. P. 5) and brass (Exh. P. 6) after extracting it from wall of the cattle-shed, vide memo. Exh. P. F. On 6-1-1971, he secured blood--stained clothes (Exh. P. 7 to P. 9) of the deceased and also prepared moulds (Exh. P. 18/1-2) from the spot, vide memo. Exh. P. H. On 10-1- 1971, he joined Bashir Ahmad appellant in the investigation and after getting removed from his feet he secured a pair of gurgabi (Exh. P. 19), vide memo. Exh. P. J. And sealed it into a parcel. On the same day Ghulam Mustafa appellant also joined investigation and produced a pair of gurgabis (Exh. P. 20), after bringing it from his house which was secured, vide memo. Exh. P. K. On the application (Exh. P. W. 13/A) submitted by the Police to the Itaqa Magistrate, identification parade of tracks was held in the District Jail, Sheikhupura, on 2-2-1971, in which Ismail P. W. Identified the foot- prints of both the appellants. The appellants were arrested, on 23-1-1971. The Investigating Officer got prepared the site plan. On the application of complainant the investigation of the case was transferred to Agha Abdul Ghani Khan, D. S. P. (not examined). The Investigator did not arrest the appellants on 10-1-1971 because he had asked them to locate the remaining two accused who were absconding.
3. Dr. Shafiq Ahmad (P. W. 1) conducted post-mortem examination on the dead body of Nasir-ud- din (aged 40/45 years) on 6-1-1971 at 9-15 a.m. And found the following one gunshot injury :-
1. A gunshot wound of entry --' x --' on the left side of front of chest --' above the left nipple and 4' lateral to the sternal border. There was a communicating wound of exit 1-- x --' on the dorsal spine 12' below first cervical vertebrae.
On internal examination he found that chest cavity was punctured on left side, left pleura was punctured, left lung in its middle part was shattered, the heart was injured and was empty. The stomach contained 4 ounces of semi-digested food, large and small intestines contained faecal matter and the bladder was full of urine. In the opinion of the doctor death resulted from shock and excessive internal bleeding and injury to the heart, injury No. 1 was caused with firearm fired at from front and was sufficient to cause death in the ordinary course of nature. The death was instantaneous and the time between death and post, mortem-examination was about 36 to 40 hours.
4. At the trial prosecution examined 13 witnesses in all. Muhammad Hussain (P. W. 10) proved the extra judicial confession of appellants before him while Muhammad Siddique (P. W. 12) deposed that he saw the appellants standing and talking to each other immediately after he heard the report of firearm and gave their description. The identification of footprints in the parade held in Jail was proved by Irshad Qutub (P. W. 3) Magistrate Second Class and Ismail (P. W. I1), tracker, besides Ata Muhammad (P. W. 8) and Ch. Rehmat Ullah, S H. O. (P. W. 13) who proved recoveries of shoes from the appellants and all other recoveries. The recoveries of Moulds from the spot were proved by same Mohammad Siddique and Ata Muhammad while Muhammad Shafi (P. W. 7) proved other recoveries from the spot. The complainant, Maqsood Khaliq (P. W. 9) proved the F.I.R.
Other formal witnesses were also examined. All the witnesses supported the prosecution case. The statement of Dr. Shafiq Ahmad before the committing Magistrate was transferred to the Sessions record.
5. The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. They denied the allegations and recoveries at their instance. They stated that they had been falsely implicated due to enmity. They further stated that identification parade was held in Jail but they could not say if any footprints were identified by the prosecution witnesses.
6. The learned trial Judge believed the testimony of Muhammad Siddique P. W. And also believed the recoveries of shoes from the appellants, moulds from the spot and the identification parade in which Ismail P. W. Identified footprints of the appellants which connected them with the crime. He was of the opinion that although offence under section 302, P. P. C. Had not been made out appellants had committed the crime under section 460, P. P. C. Because they caused death of the deceased at the time of committing lurking house trespass by night. The learned counsel for the appellants has urged that the evidence of extra judicial confession is not admissible in evidence because it was made before a Lambardar who is person in authority and actual words of the confessional statements were not stated which confession was made jointly by two appellants, there were discrepancies on material points in the confessional statements which did not tally with rest of the evidence on record and had been disbelieved by the learned trial Judge. He has further urged that Muhammad Siddique P. W. Is not a reliable witness because he is related with the deceased, is not a truthful witness when he denied his marriage with sister of the deceased and did not name the culprits in various statements made by him except at the trial Court, he did not know the appellants previously and no identification parade was held and that the other witnesses who allegedly saw the appellants after the occurrence, named, Barkat and Ghulam Qadir were given up as unnecessary while Ashraf was given up as won over. He has also submitted that identification of footprints cannot be relied upon because recovery of shoes is doubtful which were not sealed into parcel, short footprints have no evidentiary value and that P. W. Ismail tracker is not worthy of reliance because he identified the footprints after one month, had kept no notes and had not seen the moulds, the appellants were made to wear the shoes supplied by the Police and that proportion of the parade party was 1 to 5 and not 9 to 10 which is required in each case of identification. The learned counsel for the State has submitted that identification of footprints in parade by Ismail P, W. Is reliable and is corroborated by the testimony of Muhammad Siddique P.
W. And the evidence of extra-judicial confession. He has further submitted that the prosecution witnesses were not inimical towards the appellants and their convictions and sentences be maintained for the reasons given by the learned trial Judge. I have read the entire evidence and have considered it in the light of submissions made by the learned counsel for the parties.
7. The prosecution has produced evidence to prove that the appellants were seen at the spot at the time of occurrence, they made extra-judicial confession and their footprints were identified in the identification parade.
According to the prosecution 4 persons saw the appellants standing outside the haveli immediately after the report of fire-arm was heard by them. Of them, Ashraf was given up at the trial as won over and he was declared hostile before the committing Magistrate while Barkat A.I and Ghulam Qadir were given up as unnecessary. The learned trial Judge was wrong in taking into consideration the statements of Ashraf, Barkat A.I and Ghulam Qadir recorded under section 162, Cr. P. C. Which were not substantive evidence and could not be used and considered except for con--tradicting them. As such those statements are ruled out of consideration. It is the testimony of Muhammad Siddique (P. W.12) which is available on the point that the appellants were seen at the time of occurrence as alleged. This Muhammad Siddique admitted in cross-examination that he did not know the appellants before the occurrence. The admitted position is that the appellants were not put up in the identification parade but were rather joined in the investigation from 10-1- 1971, till they were arrested during which period Muhammad Siddique P. W. Had the opportunity to see the appellants. The appellants belonged to village Khairpur Malia and did not belong to the village of Muhammad Siddique P. W. The incident is of night and Muhammad Siddique deposed that he saw the appellants through a hole of door of his cattle-shed but did not come out of his cattle---shed till next morning. Muhammad Siddique P. W. Denied his relationship with the deceased but Muhammad Hussain (P. W. 10) deposed in cross---examination that Muhammad Siddique P. W. Was married with sister of the deceased. Therefore, Muhammad Siddique P. W. Is not a reliable witness. The prosecution has not proved that the appellants were seen at the spot at the time of occurrence.
The occurrence took place on the night between 4th and 5th of January 1971, but the footprints were noticed on 6-1-1971. Ismail (P. W. 11), tracker deposed that he saw footprints of 4 persons with shoes on and of one buffalo outside the haveli of the deceased. He correctly identified the foot-- prints of both appellants in the identification parade which was held in jail, on 2-2-1971. He admitted that there are certain peculiarities in foot prints with bare foot but there is none in case of tracks of shoes worn by persons. The parade was held after about 28 days of the day when Ismail P. W. Observed the tracks. The defence suggested that footprints of the appellants were observed by Ismail P. W. During the time the appellants were made to join investigation. In the circumstances of the case, the evidence of identification of footprints of the appellants is of a doubtful character and cannot be relied upon in the safe administration of criminal justice.
The extra-judicial confession of the appellants has been proved by Muhammad Hussain (P. W. 10).
He is a person in authority, being a lambardar. He deposed in his examination-in-chief that he promised to help the appellants if the appellants disclosed real facts before him. He is cousin of Muhammad Siddique P. W. Who is married with sister of the deceased. The extra-judicial confession is alleged to have been made by the appellants jointly. This piece of evidence was rightly rejected by the learned trial Judge. It is not admissible in evidence and is not worthy of reliance.
At the time of identification of footprints before the parade the appel--lants raised objections as noted in the report (Exh. P. W. 3/B) of Irshad Qutab (P. W. 3), Naib Tehsildar, who supervised the parade when the appellants took up the position that the shoes (Exhs. P. 19 and P. 20) recovered from them were produced by them but the same did not belong to the appellants and the appellants had stated at the time of recovery that the same belonged to the accused who committed the murder. At the trial the appellants suggested to Muhammad Hussain (P. W. 10) that those shoes belonged to Mushtaq and Noor Muhammad, absconders. However, the appellants did not state so in their examination under section 342, Cr. P. C. This much goes to show that the appellants had some connec--petition with the accused who were absconders and were probably with the absconders at the spot at the time of occurrence but I do not consider it safe to find them guilty in the absence of prosecution evidence connecting the appellants with the crime.
On the evidence on record and in the circumstances of the case, the prosecution has failed to prove guilt of the appellants beyond reasonable doubt.
9. The investigation by Ch. Rehmat Ullah, S. H. O., in the case was not conducted honestly, and the A.
P. P. Conducted the prosecution inefficiently. I agree with the observations of the learned trial Judge and hope that the Inspector-General of the Police will take suitable action against the delinquent and will ensure proper investigation in the criminal cases.
10. As a result of above discussion, the appeal is accepted, the con--victions and sentences of the appellants are set aside and they are acquitted.
The appellants shall be set at liberty forthwith if not required in any other case.