MUHAMMAD HALEEM, J.-Appellants Malik Jamshed Iqbal and Humayun Javed in Criminal Appeal No. 336 of 1973 and appellants Abdul Kader and Shamsuddin in Criminal Appeal No. 4 of 1974 were tried for the murder of Khuda Bux, convicted under section 302 read with section 34. P. P. C. And each of them sentenced to imprisonment for life by the learned VI Additional Sessions Judge, Karachi vide judgment dated 18th December 1973. They have appealed as aforesaid to impugn their convictions and sentences.
2. According to the prosecution case there was quarrel in the hall of Nayab Cinema on 31st December 1971 between appellant Abdul. Kader and his companions and unknown persons who had come to see a movie, 'Naz' which was being exhibited. At the Intervention of Khuda Bux and Mazhar the fight was averted and Kader and his companions were turned out of the hall. On the next day at 9-15 p. m. Abdul Kader alongwith four other persons again visited the premises of the Nayab Cinema and there they gave fist blows to Taj Muhammad and Gul Muhammad followed by blows with knife and churnto Khuda Bux, who being injured fell down. The incident was witnessed by Sabir, Zahir, Abdul Ghani, Taj, Gul Muhammad and others who had come to see the movie. After causing the injuries Abdul Kader and his companions escaped while the deceased, who was in a serious condi--petition, was taken to the Police Station Golimar. The first information report was lodged by Zamiruddin at 21-40 hours the same day, in which the com--plainant gave out the name of Abdul Kader alone but for others he stated that he would be able to identify them.
3. Raja Fazlur Rahman, Inspector of Police, after recording the report sent the deceased to civil hospital for treatment and thereafter repaired to the wardat which he inspected and found blood on the ground, He secured tile blood-stained earth vide mashirnama Exh. 12 and thereafter recorded the statements of Muhammad Sabir, Zahir, Abdul Ghani, Taj Muhammad Ihteshamuddin and Gul Muhammad. He then arrested the appellants the same night. Nothing was secured from Abdul Kader. From Shamsuddin, a blood-stained shirt was seized from his person and a blood- stained knife was recovered from under the pillow from his house in the presence of Mushtaq Ahmad and Nasiruddin who have not supported the prosecution case. From Malik Jamshed Iqbal nothing was secured but on the third day a blood-stained shirt is said to have been produced from his house in the presence of Mashies Chand and Sultan Haider, who have not been examined in the case. As for Humayun Javed, nothing was secured from him but he had injuries on his person. He was, therefore, sent for treatment to the, hospital on 2nd of June 1971 at 10 a.m. According to Dr. Abdul Haseeb the injuries were caused with a blunt weapon which were simple in nature and their duration, was between 48 to 72 hours.
4. The appellants were put to identification test on 11of June 1971 in the presence of Mr. Saleh Muhammad Kazi, A.C.M., Karachi, in his cham--bers. The appellants Malik Jamshed Iqbal and Humayun were identified by Muhammad Sabir alone and appellant Abdul Kader was identified by Gul Muhammad and Abdul Ghani while Shamsuddin was identified by Zamir--uddin. Zahir did not identify anybody while Zamiruddin did not pick out Abdul Kader though he had named him in the F.I.R.
5. Autopsy on the dead body was performed by Dr. Muhammad Umer who noticed the following injuries;-- "(1)
1. W. Left side chest ----- lateral to mid-sternal line on 5th inter--costal space vertical oblique 1' x ----- x cavity deep/cutting a protion of sternum on (L) side.
(2)
1. W. Left side chest 1' lateral to mid-sternal line at 6th costal cartilage cutting it vertical oblique 1' x ----- x cavity deep.
(3)
1. W. Left temporal region cutting a portion of left (sic) (car) transverse 1----- x ----- bone deep cutting portion of zygome," which, in his opinion, were caused by a sharp-edged instrument and that while injury No. 1 individually was sufficient, injury No..2 collectively contri--buted to the death of the deceased.
6. The appellants denied the prosecution case and alleged that the witnesses were set up by police. Besides, the recoveries of the incriminating articles were not put to any of the concerned appellants for enabling them to give an explanation in regard to them. The injury, if at all it could connect Humayun Javed, was also not put to him for his explanation.
7. The learned counsel for the appellants has taken us through the evidence and has argued that this is a case of want of evidence, and that is so. P. W. Zahir did not identify any one at the parade, nor did he name any--one in the committal Court deposition. Although he implicated Javed Iqbal, but he did not identify him at the parade. Gul Muhammad had picked out Abdul Kader but in his testimony at the trial, he stated that he did not see anything. Mere picking out in the identification parade is not substantive evidence but is merely corroborative of the fact that the witness had earlier picked him out if that witness again picks out the same person at the trial, which is not the case here. His evidence is, therefore, useless. Latif has not picked out anyone of the four assailants and has stated at the trial that he saw nothing. Saber has picked out Malik Jamshed Iqbal and Humayun Javed, but again at the trial neither he picked them out nor implicated them. His version is also that he saw nothing. Mere picking out, therefore, of the appellants is of no avail and it cannot be given any weight. Abdul Ghani has picked out Abdul Kader but again his evidence is on the same footing as that of Muhammad Sabir as he also gated that he saw nothing. Taj Muhammad has not picked out anyone of the appellants and his evidence is on the same footing, that is that he did not see anything. As for Zamiruddin, though he has mentioned Abdul Kader in the F.I.R. Yet he failed to pick him out in the parade and instead he identified Shamsuddin. He himself says that he lodged the report at the instance of the cinema owner. His evidence, therefore, is also of no weight,th for it is not established that he knew Abdul Kader at all. Again, he stated that be saw nothing which statement cannot incriminate Shamsuddin in spite of the fact that be had picked out Shamsuddin at the parade. As for incriminating recoveries, none of them have been-put to either Shamsuddin or Malik Jamshed Iqbal and accordingly they cannot be taken into consideration. As for the injury on Humayun Javed, it cannot be linked with the incident which had taken place 12 hours before, while the opinion of the doctor about the injuries is that they were 48 to 72 hours old, which necessarily implies that they were suffered much earlier than the incident. They were also not put to appellant Humayun Javed and, therefore, they have no evidentiary value even other--wise. The prosecution has failed to establish the guilt of the appellants beyond reasonable doubt. While accepting their appeals, we would acquit them. They are on bail and their bail-bonds stand discharged.