ASLAM RIAZ HUSSAIN, J.----Sikandar, aged 30 years, was tried along--with Ghulam Hussain, Nazar Muhammad, Shamsher and Haq Nawaz by the learned Additional Sessions Judge, Sargodha, for offences under sections 148 and 302/149, P. P. C. The learned trial Judge by his judgment dated 31- 1-1973, acquitted the four co-accused but convicted Sikandar under sec--petition 302, P. P.C. And sentenced him to death. He also convicted him under the Arms Ordinance for keeping an unlicensed rifle and sentenced him to one year's R. I.
2. Sikandar has filed Crl. Appeal No. 100 of 1973 against his conviction and sentence under section 302, P. P. C. And Crl. Appeal No. 160 of 1973 against his conviction and sentence under the Arms Ordinance. The matter is also before us under section 374, Cr. P. C. For considering the question of confirmation of the death sentence awarded to him. We propose to dispose of the two appeals and the murder reference by a single judgment.
3. The occurrence in this case took place in the cattle-shed of one Muhammad Khan on the night between 13/14-12-1970 in village Ghangwal, Police Station Jhawarian, where Safdar Hussain deceased, who was the tenant of Muhammad Khan was sleeping. At that time Muhammad Feroze, P. W. 16, was also sleeping with him in the cattle-shed. The information given by him to Balley Shah P. W. 17 and as recorded in the F.1. R. Exh. P. G. At the latter's dictation is as follows t - At about 10 p. m. When Safdar Hussain deceased and Muhammad Feroze P. W. 16 were sleeping in the cattleshed some one knocked at the door. Muhammad Feroze P. W, woke, up and thinking that it was some one whom he knew and who used to visit them, he opened the latch, whereupon a person, whom Muhammad Feroze P. W. Did not know, came in and caught hold of him from the neck. Two other persons whose names Muhammad Feroze P. W. Did not know also came into the kotha. One of them was armed with a hatchet while the other with a gun. Yet another person came and stood near the door of the kotha. His name was also not known to Muhammad Feroze P. W. On seeing them he raised an alarm, on-hearing which Safdar Hussain deceased also woke up. The person who had caught hold of him, shouted to the person who was holding a gun, to shoot.
Thereupon the latter shot at Safdar Hussain deceased, who died as a result thereof. All the accused then ran away. Muhammad Feroze P.W. Also went out of kotha and woke up Allah Bakhsh P. W. 14 and Attaya (not produced), who were sleeping in a nearby kotha. The accused had, however, made good their escape. Muhammad Feroze P. W. 16 went to Balley Shah P. W. 17 and informed him about the incident. Balley Shah P. W. Thereupon went to Muhammad Bakhsh Chairman and then went with him to the place of occurrence and saw Safdar Hussain lying dead with a gaping gun- shot injury on his right shoulder. A hatchet was lying at the spot. Leaving Muhammad Nawaz Chowkidar at the spot Balley Shah P. W. Accompanied by Muhammad Bakhsh went and lodged the report Exh. P. G. At Police Station Jhawarian at a distance of four miles from the spot It was recorded by Muhammad Saadullah (P. W. 21) A. S. I. It will be noticed that no one has been named in the F. I. R. As an accused person, and Balley Shah (P. W. 17) complainant has merely stated therein that he suspected that the murder had been committed by Chan Pir Shah because he had been promised the hand of Mst. Anwar Bibi by her father Nazar Hussain, but subsequently this engagement was broken and negotia--tions were proceeding for the engagement of the same girl with Safdar Hussain deceased. After recording the F. I. R. Muhammad Saadullah A. S. I. Went to the spot and made the following recoveries from there:-
(1) Diya P. 1 vide memo. Exh. P. A.
(2)Hatchet P. 2 (which was not stained with blood) vide memo. Exh. P. C
(3) An empty '303 rifle cartridge P. 6 vide memo. Exh. P. B.
(4) Some blood-stained earth from the spot vide memo. Exh. P. D.
These recoveries were attested by Muhammad Bakhsh P. W. 6, Gehna (not produced) and Muhammad Saadullah A. S. I (P. W. 21)
4. After preparing the necessary documents, the A. S. T. Sent the dead body for post-mortem examination. During the autopsy a lead bullet P. 5 was recovered from the dead body which was placed in a phial by the doctor who sent it through Noor Muhammad F. C. To Ch. Imam A.I S. H. O.
Police Station Jhawarian, who took it into possession vide memo. Exh. P. F. All the five accused are said to have gone to Mammu P. W. 10, one morning at Sargiwela and confessed their guilt before him. There--after they were arrested on different dates. Sikandar appellant was arrested on 29-1- 1971. Ghulam Hussain and Nazar Muhammad (acquitted accused) were arrested on 9.2-1971. Haq Nawaz (acquitted accused) was arrested on 16-2-1971, while Shamsher (acquitted accused) was arrested on 21-4-1971. At the time of his arrest Sikander appellant is said to have been carrying his rifle, P. 7, which was taken into possession by Ch. Atta Ullah S. 1. P. W. 22, alongwith a bag containing eight live cartridges and one missed cartridge, P. 9/1-9, vide memo. Exh. P. W. 20/A. The memo was attested by Muhammad Khan P W. 20, Ch. Atta Ullah P. W. 22 and Khuda Bakhsh (not produced).
The rifle as well as the empty cartridge were sent to the Ballistics Expert. Sh. Abdur Rashid (P. W. 19), the Ballistics Expert who examined the same opined vide his report Exh. P. W. 19/A that the empty cartridge P. 6 had been fired through 303 rifle P. 7 recovered from Sikandar appellant.
5. After the completion of the investigation all the five accused were challaned and were ultimately committed to stand their trial before the Court of Session.
6. At the trial the prosecution produced 23 witnesses in support of its case. The prosecution evidence consists of the evidence of motive, the ocular evidence, the evidence of wajtakkar witnesses, the evidence of extra---judicial confession recoveries, inter alla, of rifle P. 7 and an empty 303 cartridge P. 6 together with the report of the Ballistics Expert treat they matched with each other and the medical evidence.
7. The accused, however, pleaded innocence and simply stated that they had been involved due to enmity. They produced no evidence in defence.
8. We have heard the learned counsel for the appellant as well as the learned State counsel and have also gone through the entire record with their help.
9. It may be mentioned at the out-set that there is only one eye-witness In this case, Muhammad Feroze P. W.
16. There are also two wajtakkar witnesses, namely, Ramzan P. W. 12 and Lala P. W. 13, who have deposed that they had seen the five persons running away from the spot but they had only identified and named Ghulam Hussain, Haq Nawaz and Shamsher. They did not name Sikandar appellant as one of the five persons. The learned trial Judge has disbelieved the solitary eye-witness as well as two wajtakkar witnesses. Having gone through their testimony we find that he was justified in doing so. We too, therefore, do not rely on their testimony. Even the learned State counsel at first said that he does not wish to rely on their testimony but subsequently made a half- hearted attempt to contend that they should be believed. But as already observed, we are not inclined to rely on their testimony for the same reasons as given by the learned trial Judge.
10. As none of the accused has been named in the F. I. R. The prosecution got three identification parades held in this case to get the accused identified by the witnesses. One identification parade was held by Ch. Asghar A.I Khan Tehsildar P. W. 8 on 4-5-1.971 and two were held by Mr. Muhammad Nawaz Tehsildar Magistrate 2nd Class (P. W. 11) one 12-2-1971 and 18-2-1971. In the identification parade held on 4-5-1971 Shamsher Khan (acquitted accused) was identified by Muhammad Feroze P. W. 16 as the person who had fired at Safdar Hussain deceased. In the identification parade held on 12-2-1971 Muhammad Feroze, Ramzan. Lala and Allah Bakhsh P. Ws. Were to be identified.
Sikandar appellant and Ghulam Hussain and Nazar Muhammad (acquitted accused) Muhammad Feroze P. W. 16 could not identify any of the accused. Lala P. W. 13 correctly picked up Sikandar appellant but the latter objected that he had been shown to the witness by the police at the police station on a number of occasions. Ramzan P. W. 12 identified all the three accused correctly. The accused raised the same objection against this witness that they had been shown to him by the police at the police station. Ramzan P. W. Denied this fact, during his cross-examination at the trial.
But when he was confronted with his statement before the Committing Magistrate it was found that he had stated there that the accused had been shown to him by the police for 3/4 days. Allah Bakhsh P. W. 14 correctly identified Ghulam Hussain (acquitted accused) and Sikandar appellant but he admitted that he knew them beforehand. Moreover, his testimony is only to this effect that Lala and Ramzan P. Ws., the two wajtakkar witnesses had come to him on the following day and told him that they had seen Ghulam Hussain, Shamsher Khan and Haq Nawaz (acquitted accused) along with two other persons going away from the spot. But since the two wajtakkar witnesses have been disbelieved, the testimony of Allah Bakhsh P. W. 14 does not advance the case of the prosecution, although this witness had correctly identified Sikandar appellant. In the third identification parade held on 18-2-1971 MuhammadFeroze P. W. 16 identified Haq Nawaz. Since that no importance.
11. As to the evidence of identification parades the learned counsels for the appellant rightly pointed out that the solitary eye-witness in the case has not identified him. Allah Bakhsh P. W. 14 had identified him but his testimony does not implicate the accused or advance the prosecution case against him and that although Ramzan and Lala P. Ws, the two wajtakkar witnesses identified him during the identification parade but as alleged by the appellant he had been shown to them by the police at the police station prior to the identification parades. Ramzan P. W. 12 has, of course, admitted this fact in so many words. If this was the conduct of the police, we can quite believe that they must have been shown to the other witnesses also. Moreover, these two witnesses have been disbelieved by the learned trial Judge. Therefore, the identification of the appellant by them is of no consequence.
12. It will be noticed that the motive rests only on surmise and none of the accused was mentioned in the F. I. R. Moreover, the only eye--witness in the case as well as the two wajtakkar witnesses have been disbelieved by the trial Judge and are not being relied upon by us either. The learned trial Judge only relied upon the testimony of Mammu P. W. 10, before whom all the five accused are said to have appeared and made extra--judicial confession. He also believed the evidence of the recovery of the empty cartridge P.W.6 from the spot and the recovery of the rifle P. 7 from Sikandar appellant at the time of his arrest which, coupled with the report of the Ballistics Expert, showed that the empty cartridge matched with the rifle P.
7. But although the learned trial Judge relied on the testimony n of Mammu P. W. 10, yet he considered that his statement about the alleged extra- judicial confession made by the accused before him should not be relied without independent corroborative evidence and since there was no such evidence on the record with regard to Ghulam Hussain, Nazar Muhammad, Shamsher and Haq Nawaz and he acquitted them, but believing the recovery of cartridge P.6 from the spot and the recovery of rifle P. 7 from Sikandar appellant coupled with the report of the Ballistic s Expert, he felt that there was such (corroborative) evidence against Sikandar appellant, and as a result he convicted him under section 301, P. P. C.
13. What is left, therefore, to be considered is whether the evidence of Mammu P. W. 10 and that of the recovery witnesses is worthy of reliance. The learned counsel for the appellant took us through the testimony of Mammu P. W. 10 and pointed out that, according to him all the accused bad made a joint confession before him which is not admissible in evidence. The exact words used by Mammu P. W. In his statement are :----- ---I inquired from them that wherefrom they were coming. They told me that they had gone to get back their money from Allah Bakhsb of village Ghangwal as price of the bullock and that they killed a person by firing at him there.--- It is evident that the alleged extra-judicial confession is a `joint' confession, and it is now well established that such confession is not admissible in evidence. Refer Vanzoor v. State (PLD 1957 Lah. 1023) and Mir v. State (1971 P Cr. L J 1214). As such the testimony of Mammu P. W. 10 is of no use and the result is that there is no evidence left on the record which can be said to be corroborated by the aforementioned recoveries. The appellant could be acquitted on this ground alone.
However, on going through the evidence of the recoveries, we feel that the recovery of the empty crime cartridge is itself very doubtful. In this connection the first thing to be noticed is that in the F. 1.
R, which was lodged soon after the occurrence, at about 2-30 in the night, it is clearly stated that the person who fired at the deceased had fired with a gun (and not a rifle as revealed by the autopsy). Moreover, although it was clearly mentioned in the F. I. R. That a hatchet left by the accused was lying at the spot, yet no mention whatsoever was made about the presence of an empty rifle cartridge at the spot, notwithstanding the fact that according to the memo of recovery (Exh. P. B.) an empty cartridge was lying at the door of the kotha in which the murder took place.
Nor was any mention made about the presence of this cartridge anywhere near the spot in the relevant column of the inquest report which is prepared before the deadbody is sent to the mortuary for post-mortem examination. It will be useful to reproduce here the words of Mr. Muhammad Sadullah Khan A. S. I., P. W. 21 :- "I had not mentioned the recovery of crime empty in columns Nos. 22 and 23 of the inquest report,"
It is pertinent to note that the doctor who performed the autopsy found a lead bullet P. 5 in the body of the deceased which he sent to the Inves--tigating Officer through a foot-constable, which was taken into possession vide memo. Exh. P. F. The learned counsel for the appellant argued that it is only after this recovery that the Investigating Officer got wise to the fact that a rifle had been used in the commission of murder and, as such, thought it fit to show that an empty cartridge had been recovered from the spot. He pointed out further that while, according to the recovery memo Exh. P. B, the empty cartridge is said to have been left at the door of the kotha in which the incident took, place, according to Muhammad Bakhsh P. W. 6, one of the recovery witnesses, it was recovered from near the cot of the deceased towards its leg-side which, as is apparent from the site plan Exh. P. I/1, is very much inside the kotha. He said before the trial Court that it was incorrect that it was lying outside the kotha but when confronted with his statement before the Committing Magistrate he had to admit that he had said there that it was lying outside the kotha.
14. Considering all these facts we feel that the recovery of the empty cartridge is not above suspicion and if this recovery goes away, the recovery of the rifle' as well as the report of the Ballistics Expert also go away with it. But on going through the evidence of the witnesses of the recovery of rifle P. 7, namely, Muhammad Khan P. W. 20 and Ch. Attaullah P. W. 22 we feel that even that recovery is not above suspicion. Muhammad Khan P. W. Has admitted that he lived in village .At a distance of one mile from the place of recovery and about same distance from the village of occurrence as well as the police station. He first said that he, as well as Khuda Bakhsh (the other recovery witness who has not been produced by the prosecution), had been summoned to the police station to join the inves--tigation and had reached there at 7/8 a.m. But again said that be had gone to the police station alone and Khuda Bakhsh had joined him at village Bherth. As already mentioned the second witness of the recovery of rifle P. 7, namely, Khuda Bakhsh was not produced and was given up by the learned A. P. P. As unnecessary although he was present outside the Court. Had he been examined, more discrepancies might have come out between his testimony and that of Muhammad Khan P. W. Moreover, the fact that he has not been produced raises an adverse presumption against the prosecution, namely that if produced he would not have supported the recovery at all.
15. In this state of the evidence we consider it highly unsafe to maintain the conviction of Sikandar appellant. As such we accept the appeal, set aside his conviction and acquit him.
16. As to the appeal under the Arms Ordinance we notice that the sentence of one year's R. I. Has already been expired. That appeal has, therefore, become infructuous and is disposed of as such.
In any case, we have found that the recovery of the rifle is doubtful and he could not have been convicted on that evidence.
17. This disposes of the two appeals (Crl. Appeals Nos. 100 and 160 of 1973) and the murder reference.