' SH. MUHAMMAD ZUBAIR, J.--- Zulfiqar Ali was tried under section 302, P.P.C. By the learned Additional Sessions Judge, Islamabad, for the murder of Muhammad Hanif, who vide his judgment, dated 18-1-1988, convicted him thereunder and sentenced him to death plus fine of Rs,10,000 or in default to undergo further R.I. For two yeaRs, He was further ordered to pay Rs,10,000 as compensation to the legal heirs of the deceased or in default to undergo further R.I. For six months.
' The convict has appealed and the learned trial Judge has also referred the case to this Court under section 374, Cr.P.C. For confirmation of death sentence. We propose to dispose of both the matters by this judgment.
2. Brief facts of the prosecution case are that on 17-9-1985 at 8-30 p.m. Liaqat Ali A.S.I. (P.W.17) made statement Exh.P.S. Before Muhammad Aslam A.S.I. (P.W.23), alleging that on the same day at 6-00 p.m. He was on duty at Kock Pull, alongwith certain constables when at about 7-45 p.m. a driver of a bus coming from Rewat side informed him that at a distance of about one mile from there, a man was lying on the Highway of Islamabad. Liaqat Ali A.S.I. Alongwith Sarang Khan and Sardar Khan (P.W.8) F.Cs. Proceeded towards Rewat side from Kock Pull. When he reached at a distance of one mile, he found a dead body lying on the road. He examined the dead body and observed that it had received two fireshot injuries; one on the back under the right shoulder and the other on the thigh of left leg on front side. From the pocket of the deceased, a driving licence (Exh.P.G.) was recovered from which the name of the deceased revealed to be 'Muhammad Hanif son of Mir Zaman, resident of Punjgran, Post Office Sagri, District Rawalpindi'. He alleged that somebody after murdering Muhammad Hanif had thrown the dead body on the Highway. On receipt of this complaint, formal F.I.R. Exh.P.R. Was recorded by Taj Mahmood S.I. (P.W.16) at Police Station Sihala at 9-00 p.m. The same day.
' Muhammad Aslam A.S.I. Took into possession driving licence P.G. Produced by Liaqat All A.S.I.
(P.W.17) vide memo. Exh.P.H. He prepared the injury statement Exh.P.K. And inquest report Exh.P.L.
And sent the dead body for post-mortem under the escort of Ghulam Muhammad F.C. (P.W.13) and Sarang Khan F.C. (not produced). Muhammad Jehangir (P.W.28) and Fazaldad (not produced) also came there. They identified the dead body of Muhammad Hanif. Muhammad Aslam A.S.I. Also sent them for identification of the dead body before the Medical Officer. He took into possession blood from the spot through cotton vide memo. Exh.P.I. He got prepared site plan Exh.P.Y. And Exh.P.Y./1 by Maqsood Ali Patwari (P.W.27). Thereafter the investigation of the case was taken over by Niaz Muhammad Inspector (P.W.26).
' The said Inspector partly investigated the case. On 18-9-1985, Ghulam Muhammad F.C. (P.W.13) produced before him the blood-stained clothes of the deceased (P.1 to P.3) and a pair of Chappel (P.11/1-2), alongwith postmortem report, inquest report and injury statement. The Inspector took the clothes into possession vide memo. Exh.P.O. He also took into possession a sealed phial containing one led vide memo. Exh.P.Q. He also recorded the statements of the witnesses.
' On 27-9-1985, Ehsanul Haq Inspector C.I.A. Staff (P.W.30) took over the investigation. He took into possession stolen car, recovered by Police Post Race Course, Rawalpindi, on 24-10-1985, vide memo. Exh.PAA. On minute search of the car, he took into possession bank papers relating to the appellant, Daily Report Faisalabad, a Sikka of bullet and pieces of cigarettes. On 18-11-1985, on secret information he arrested the appellant from Mohallah Rajgan in the presence of Ghulam Rasool Si., Police Station Kahuta (P.W.2), Muhammad Banaras (P.W.4) and Pervaiz Akhtar Councillor of Kahuta (not produced). At the time of raid, the appellant climbed upon the roof and from there he fired, out of which two fireshots hit Ehsanul Haq Inspector, one on his arm and the other on his belly.
' Safeer Hussain Shah Inspector C.IA. (P.W.31) also partly investigated this case. On 21-11-1985, the appellant while in police custody pointed out the place where he had thrown the dead body of.
Muhammad Hanif. The Inspector prepared memo. Exh.P.T. Which was got attested by Muhammad Jehangir (P.W.28), Muhammad Ramzan (not produced) and Liaqat Ali A.S.I. (P.W.17). On the same date, the appellant also disclosed the place in Dhowk Chaudhrian, where he had left the taxi. The Inspector prepared memo. Exh.P.CC. Accordingly which was attested by Muhammad Jehangir (P.W.28) and Muhammad Ramzan (not produced). The appellant also pointed out Petrol Pump Gulpairra situated on Mandra Road from where he had obtained petrol and memo. Exh.P.DD. Was also prepared by the Inspector, in the presence of aforesaid Muhammad Jehangir and Ramzan.
Asghar Shahid (P.W.21) and Muhammad Bashir (P.W.22) were present at the Petrol Pump. They identified the appellant there. The appellant got recovered from his house situated in Mohallah Rajgan Kahuta, number plates P.16 and P.17 of the taxi (RIM 4542) and its key P.18 which were taken into possession through recovery memo. Exh.P.BB. In the presence of Muhammad Taj (P.W.24) and Muhammad Jehangir (P.W.28). Muhammad Taj P.W. Identified these articles as belonging to him.
The Inspector prepared the identification memo. Exh.P.GG. And also the site plan Exh.P.HH. On 15-3- 1986, Maqsood Ali Patwari (P.W.27) produced before the Inspector, site plan Exh.P.Y. And Exh.P.Y./1. He recorded the statements of concerned witnesses under section 161, Cr.P.C. Allah Ditta Si. (since dead) prepared recovery memos. Exhs.P.E., P.N., P.X. And P.FF. The Inspector identified his handwriting and signatures on these memos. After completing the legal formalities, Safeer Hussain Shah, Inspector submitted the challan in the Court.
3. Dr. Iftikhar Hussain, Medical Officer, Central Government Hospital, Islamabad (P.W.9) conducted the post-mortem of the dead body of Muhammad Hanif on 18-9-1985 at 11-45 a.m. And noticed the following injuries thereon:--
(1) An entry wound oval, 1 c.m. x 0.8 c.m. At back of right shoulder in post axillary line. Margins were inverted and lightly blacken. No wound of exit was present.
(2) An entry wound (circular wound of entry), 0.4 c.m. x 0.4 c.m. At the middle of front of left thigh.
There was visible blackening and tattooing around the wound with clinical evidence of fracture of left femur underneath. No exit wound was there.
' The doctor opined that the deceased died of haemorrhage and shock due to injury No,1 which was sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and caused by fire-arm weapon. Probable time between injury and death was within an hour and between death and post-mortem was within 24 houRs,
4. The appellant in his statement under section 342, Cr.P.C. Professed innocence and denied the incriminating evidence against him. He stated that the witnesses had deposed against him at the instance of the police. No evidence was produced in defence.
' The appellant also made statement under section 340, Cr.P.C., wherein he stated:-- "I am innocent. I have been falsely implicated in this case. I did not point out any place in connection with this case. Most of the recoveries are planted on me. The cheque books etc. Were recovered from my house at Bakramandi. In fact, I have been roped in this case as my parents were residing in a rented house at Kahuta Mohallah Rajgan and P.W.30 at the instance of Councillor Ishtiaq forced my parents and other relatives to vacate the house. My cousin Tikka Khan resisted the vacation of the house and fired at Ehsanul Haq who was injured and who in retaliation got me involved falsely in this case."
5. Placing reliance on the prosecution evidence, the learned trial Judge convicted the appellant under section 302, P.P.C. And gave him the sentence as indicated above.
6. The learned counsel for the appellant vehemently contended that there is no direct evidence on the record to substantiate the charge of murder against the appellant. He urged that the learned trial Judge while recording conviction in this case heavily relied upon the evidence of pointation of various places by the appellant while in police custody, such as, where he threw the dead body and where he left the alleged stolen car, the appellant also led the police party to the places from where he got the petrol after committing the murder of the deceased, without making any payment to the salemen of those petrol pumps situate on G.T. Road Mandara and Samundari Road, Faisalabad. According to the learned defence counsel, this piece of evidence is inadmissible, as this evidence has not led to the discovery of any fact, in view of the provision of Article 40 of Qanun-e-Shahadat and placed reliance on 1978 P Cr. L J 529, PLD 1957 Lah. 956 and PLD 1976 SC 404.
' The evidence of Asghar Shahid (P.W.21), Muhammad Bashir (P.W.22) and Muhammad Shahid (P.W.29) is of no avail to the prosecution, because they were not asked to identify the appellant in a test identification parade in jail as is the requirement of the law. The incriminating articles allegedly recovered from the stolen car, cannot be used against the appellant in view of the statement of Sikandar Azam (P.W.10) Inspector, who at the relevant time was posted as S.I. Incharge of Police Post Race Course, Rawalpindi, because when he took the stolen car into possession under section 550, Cr.P.C. On 24-10-1985, he did not observe these articles in the said car, which were recovered from the said car on 25-10-1985 by Ehsanul Haq Inspector (P.W.30).
' The investigation in this case was not conducted fairly and honestly in view of the incident that took place on 18-11-1985, in which Ehsanul Haq Inspector (1.0.) received fire-arm injuries on his person at the hands of the appellant. He further submitted that the present case is the classic example of dishonest investigation and police paddings, thus no reliance can be placed upon the evidence so collected, apart from other material contradictions appearing in the statements of prosecution witnesses.
7. The learned Law Officer supported the impugned judgment. Placing reliance on 1985 P Cr. L J (Karachi) 609, he submitted that pointing out of the place of murder of the deceased, is a fact proved in term of section 27 of the Evidence Act. The learned Law Officer frankly conceded there is no direct evidence on the record with respect to the murder of Muhammad Hanif deceased by the appellant, but contended that the circumstances brought on the record do prove the charge of murder against the appellant.
8. We have carefully examined the respective submissions of the learned counsel for the parties and have minutely gone through the record with their able assistance.
9. Admittedly the places wherefrom, the dead body of Muhammad Hanif deceased was recovered and the alleged stolen car, were already in the knowledge of the police, this can hardly be admitted as evidence in the case having regard to the provisions of Article 40 of Qanun-e- Shahadat, because no fresh discovery was made 'in consequence of the information received' from the appellant. It is the case of the prosecution that the appellant was previously not known to Rab Nawaz P.W.19, Asghar Shahid P.W.21, Muhammad Bashir P.W.22 and Muhammad Shahid P.W.29, in the absence of any evidence that these witnesses correctly recognized the appellant in jail, the evidence of these witnesses cannot be relied upon, as it is contrary to the dictum of the superior Courts of this country. Reference in this connection be made to PLD 1965 (W.P.) Kar.
31. It is settled principle of criminal jurisprudence that a witness must recognize an accused correctly in the identification parade, held under the supervision of a Magistrate, before his evidence could be relied upon for conviction and mere identification of an accused before the Court per se has no legal value. In addition to this, the evidence of these witnesses also suffers from material contradictions, which are fatal to the prosecution case.
Accordingly to Asghar Shahid P.W.21, the appellant procured petrol without payment on 21-9-1985, whereas according to Ghulam Mustafa Head Constable P.W.3, this incident took place on 17-9-1985 as per entry No,2050 (Exh.P.B.) Asghar Shahid P.W.21 deposed:- "I alongwith one other person chased the accused on a petrol tanker --" whereas Muhammad Bashir P.W.22 stated: "One Hamid and another person came there on a petrol tanker owned by our Petrol Pump", but they failed to apprehend the appellant.
We find great force in the submission of the learned defence counsel that in presence of inventory of articles prepared by Sikandar Azam Inspector P.W.10, vide memo. Exh.P.M. On 24-10-1985, the recovery of other incriminating articles on 25-10-1985 vide memo. Exh.P.AA. Loses its sanctity, because Ehsanul Haq Inspector (P.W.30), had motive to fabricate the evidence against the appellant in order to take the credit of solving the mystery of an unwitnessed crime. This recovery was not witnessed by any independent witness, as both Muhammad Taj P.W.24 and Muhammad Jehangir P.W.28 had their own interest to depose falsely as Muhammad Taj (P.W.24) was getting the alleged stolen car without the proof of its ownership on the recommendation of Ehsanul Haq, Inspector (P.W.30). It is the salutary principle of law, that one tainted evidence cannot corroborate other tainted evidence. In the presence of the prosecution evidence, mentioned above, the defence plea seems to be reasonable and plausible.
' According to Dr. Iftikhar Hussain (P.W.9), the deceased met his death from two different types of weapons, which completely demolishes the prosecution case. We have ourselves examined the two pieces of bullets recovered from the dead body of the deceased at the time of post-mortem examination and found that the opinion of the doctor is based upon sound material.
' In Allah Ditta v. The State 1980 P Cr. L J 163, a Division Bench of this Court while allowing the appeal of the convict observed that the circumstances cannot lie but can mislead and that conviction for murder cannot be allowed unless fact of death be proved either by direct evidence coming from unimpeachable source or by circumstantial evidence of exceptionally strong character, but mere suspicion is not sufficient to justify conviction. The consistent view of the superior Courts of this country is that circumstantial evidence is sufficient to sustain conviction in a murder case, provided the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than the guilt of the accused.
11. The uphsot of the above discussion is that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the conviction and sentences of the appellant and acquit him. He shall be set at liberty forthwith, if not required to be detained in any other case. Resultantly, the reference is rejected.