' SAAD SAOOD JAN, J.---The respondents, namely, Shah alias Shana, Jafar Hussain alias Kala, Raham Din alias Rehmat, Ahmad All and Nazar Hussain, together with one Ramzan alias Manna were tried by the Special Court for Speedy Trials, Gujranwala at Lahore, on charges under section 17 (4), Offences Against Property (Enforcement of Hudood) Ordinance, sections 302 (3 counts), 307 and 460, read with section 149 and section 14S, Pakistan Penal Code. The learned Court acquitted Ramzan alias Manna but convicted the respondents of all the charges. For the offences under section 17 (4), Offences Against Property (Enforcement of Hudood) Ordinance and section 302 it sentenced them to death. In respect of the other offences it sentenced them to suffer different terms of imprisonment. In addition, it also directed them to pay fines.
2. From the judgment of the learned Court the respondents filed an appeal in the High Court. After reappraisal of the evidence the High Court accepted the appeal, set aside their convictions and sentences and acquitted them of the charges against them. From the judgment of the High Court the State has come in appeal by special leave of this Court.
3. Leave to appeal was granted to the State as there was some doubt about the forum where the appeal from the judgment of the Special Court lay, that is, whether the appeal should have been preferred before this Court or the High Court. Now that the High Court has disposed of the appeal on merits and the matter has come in appeal before this Court too, learned counsel appearing for the parties have not pressed the question upon which leave to appeal was granted.
4. The occurrence took place in the early hours of 1-4-1987 in Mohallah Rasul Nagar of Kamoke Town. At the relevant time, Haji Muhammad Din (P.W. 17) was sleeping in the courtyard of his house together with his wife Mst. Nawab Bibi, his daughter Mst. Yasmin (P.W. 15) and other children. His son Liaqat All P.W. 16 was sleeping in a room with his wife. About half an hour after mid-night a stranger armed with a carbine jumped into the courtyard after scaling over the wall and opened the door from inside. Immediately thereafter nine other persons who were armed with guns entered the courtyard and demanded keys of the house from Mst. Nawab Bibi. They also threatened to kill her in the event she raised an alarm, Mst. Nawab Bibi woke up her son Liaqat Ali who was also told by the intruders to keep quiet. The strangers then started collecting the household goods and removed Rs.700 from the inside pocket of Haji Muhammad Din P.W.
17. As the strangers were taking the booty out of the house Liaqat Ali (P.W. 16) started raising an alarm. It attracted his cousin Hafiz P.W.19 and Basharat Ali (P.W. 18) to the house. The strangers started firing. As a result Mst Nawab Bibi, Liaqat Ali (P.W. 16), Mst. Yasmin (P.W. 15), Basharat Ali (P.W.
18) and Hafiz (P.W. 19) were hurt. The report of the firing attracted the residents of the surrounding houses to the scene of occurrence. The strangers started running. They were given a chase by the residents of the locality some of whom were also armed with guns. There was an exchange of fire between the two parties. As a result one of the strangers, namely, Liaqat Ali, was seriously hurt.
From the side of the pursuers Murad Ali and Irshad were wounded. Murad Ali died at the spot. The other strangers were able to slip away in the darkness of the night leaving their companion Liaqat Ali at the scene of crime. They took away the gun which Irshad was carrying.
5. Soon after the occurrence Mst Nawab Bibi, Irshad and Liaqat Ali were taken to the hospital, Mst.
Nawab Bibi died before any medical aid could be given to her. Liaqat Ali expired on 6-4-1987 while Irshad lingered on till 11-4-1987 before succumbing to his injuries.
6. While Haji Muhammad Din P.W. 17 was still in the hospital on 1-4-1987 with his dead wife, Sub- Inspector Zulfiqar who was Station House Officer of Police Station City Kamoke arrived there. He made a statement before this officer at 1-30 a.m. On the basis of this statement the first information report was recorded at the said Police Station at 1-40 a.m.
7. Mst. Yasmin (P.W. 15), Liaqat Ali (P.W. 16), Basharat All (P.W. 18) and Hafiz (P.W. 19) were examined by a Medical Officer who found fire-arm injuries on their bodies. The post-mortem examinations of Murad Ali, Mst. Nawab Bibi and Irshad left no room for doubt that they had died as result of fire-arm injuries.
8. According to the prosecution the respondents were arrested on 26-4-1987 at about 6-00 p.m.
While they were sitting in a nursery behind a hotel on the main Lahore-Rawalpindi Road. They were all carrying guns. Sub-Inspector Nazir Ahmad (P.W. 26) took.Into possession their guns. The gun recovered from the possession of Jafar Hussain alias Kala was later found to be that of Irshad, deceased. One of the crime empties found at the scene of occurrence was declared by a fire- arm expert to have been fired from the gun recovered from Shah alias Shana. The respondents were also carrying certain other articles such as bed spreads and watches. However, there is nothing on the record to show that these articles were in fact stolen from the house of Haji Muhammad Din (P.W. 17).
9. On 5-5-1987, Sh. Iftikhar Ali, Magistrate, held an identification parade in the Central Jail, Gujranwala. The respondents alongwith 40 other persons were made to join the parade and the eye-witnesses were called upon to pick out the culprits. Mst Yasmin (P.W. 15), Liaqat Ali (P.W. 16) and Arshad (P.W. 22) and Ali Asghar (P.W. 23) were able to pick out all the respondents whereas Haji Muhammad Din (P.W. 17). Basharat Ali (P.W. 18) and Nathey Khan (P.W. 20) could not identify some of them.
10. According to the prosecution besides the respondents three other persons, namely, Nazar, Akbar and Sharif, had also taken part in the occurrence. They absconded soon after the occurrence and were thus not available at the trial.
11. The respondents pleaded not guilty to the charges against them. They denied that they had taken part in the occurrence and alleged that local police had falsely implicated them to save its own skin consequent upon the processions and hartal which followed the occurrence. They appeared as their own witnesses in defence.
12. Admittedly, the strangers responsible for the occurrence were not known to the eye-witnesses prior to the occurrence. However, their names were mentioned in the first information report.
According to Haji Muhammad Din (P.W. 17) the particulars of the strangers were provided to him by their companion Liaqat Ali who stayed back at the spot after being seriously wounded. The trial Court thought that the first information report which included the names of the respondents and had been promptly recorded furnished strong confirmatory evidence for the ocular account. It also took notice of the fact that one of the empty cartridges recovered from the scene of occurrence had been fired from the gun recovered from Shah alias Shana respondent and that the gun found with Jafar Hussain alias Kala belonged to Irshad, deceased. Accordingly, it held the respondents guilty of all the offences with which they were charged. On the other hand, the High Court was not satisfied if the first information report was recorded with promptness and if Liaqat All had given or was physically in a fit condition to give the names of his companions to Haji Muhammad Din (P.W.
17). It also thought the story with regard to the recoveries of the guns from the possessions of Shah alias Shana and Jafar Hussain alias Kala was attended by dubious circumstances. Accordingly it gave the respondents the benefit of doubt and held them not guilty of the charges against them.
13. The law with regard to appeals against acquittal has been recapitulated at some length in the judgment of this Court reported as Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11). One of the principles reiterated in this judgment is that this Court would not interfere with a judgment of acquittal merely because on a reappraisal of the evidence it comes to a conclusion different from that of the Court which acquitted the accused provided that both the conclusions are reasonably possible. The fate of the appeal before us hinges on the question whether the prosecution has been able to satisfactorily establish the identity of the persons who were responsible for . The occurrence, for there seem no reason to doubt that the occurrence took place in the manner stated by the eye-witnesses.
14. Neither the trial Court nor the High Court relied upon the proceedings of the identification parade held by Sh. Iftikhar Ali (P.W.2), and for good reasons. It appears that some days before the parade was held Sub-Inspector Nazir Ahmad (P.W. 26) had the heads of the respondents shaved off. Quite obviously he had done so to help the eye-witnesses in identifying them. It appears he was not sure if the eye-witnesses would be able to pick them out. Although, Sh. Iftikhar Ali did state that he had joined a number of persons in the parade whose heads were also shaved off but the trial Court as well as the High Court did not accept his statement on the ground that he had made no mention of his having done so in the record of the proceedings. It may also be mentioned that his statement was at variance with the statement made by Mst. Yasmin (P.W. 15) who took part in the parade. She stated: "The hair of the accused had been shaved from head. They had small hair on the head. Some other persons who had joined the parade had long hair. Only the hair of the accused were short."
By getting the heads of the respondents shaved off Sub-Inspector Nazir Ahmad did incalculable damage to the case of the prosecution, for, by his overzealous act he destroyed a possible means that could have been available to the prosecution to establish the identity of the culprits.
15. As already noticed, the learned trial Court was impressed by the promptness with which the F.I.R.
Had been recorded and the fact that the names and details of all the respondents were mentioned therein. The case of the prosecution was that the names and other particulars of the respondents were provided to Haji Muhammad Din (P.W. 17) by Liaqat Ali. On the other hand, the High Court found both the considerations which weighed with the trial Court to be of questionable validity. In this context, it took into account the contradiction in the statements of the witnesses as also the nature of the injuries of Liaqat Ali. The doctor had examined Liaqat All at 2-50 a.m. He was unconscious at that time. Sub-Inspector Zulfiqar (P.W. 24) reached the hospital at 1-30 a.m. He too found Liaqat Ali in an unconscious state. It was not the case of the prosecution that he ever regained consciousness till his death on 6-4-1987. One of the fire-arm injuries suffered by him was 5 c.m. x 5 c.m. On the front and outer side of the right chest. In addition, he also had a lacerated wound on his head. Considering the nature of his injuries the High Court does not seem to be unjustified in thinking that it was unlikely that soon after the occurrence he would be in a position to give particulars of his companions in such details as have been given in the first information report.
Obviously the detail and perhaps even the names of the culprits were added much latter. This circumstance by itself is sufficient to compromise the authenticity of the first information report.
16. The eye-witnesses made contradictory statements with regard to the extent of the particulars provided by Liaqat Ali in respect of his companions. Thus Liaqat Ali P.W. 16 stated: "Liaqat deceased-accused disclosed his name only. He also disclosed the names of his co- accused. He did not disclose the parentage, caste and place of residence, the police station or the District of his co-accused or himself."
' Haji Muhammad Din (P.W. 17) stated: "I gave names, parentage, caste and residences of the co-accused of Liaqat accused in my statement Exh. PU. I gave the details about accused as Liaqat accused had told me."
' Basharat All (P.W. 18) deposed: "When Liaqat, deceased accused, was giving description of the accused I wrote down the same. I gave that writing to police. I did not take down the parentage, castes and residence of the accused narrated by Liaqat accused. I took their names only. I had taken down the name of Jafar Hussain alias Kala."
' It is to be noticed that the document given by this witness to the police was not produced by the prosecution at the trial. On the other hand, Nathey Khan (P.W. 20) deposed: "Liaqat did not disclose to me the names of the co-accused. In my presence he did not tell the names of his co-accused to others."
' It may be mentioned that this witness had stayed at the spot throughout for he was one of the persons who took Liaqat Ali to the hospital.
17. At this stage it may also be mentioned that though according to the prosecution Liaqat Ali gave the particulars of all his companions in great details yet it is somewhat strange that he did not give his own particulars to the witnesses for the doctor who examined him did not record even his father's name in the medico-legal report as initially prepared by him.
18. The recoveries of guns from the possessions of Shah alias Shana and Jafar Hussain alias Kala were effected by Sub-Inspector Nazir Ahmad (P.W: 24). He is the same officer who had the heads of the respondents shaved off before the identification parade. It seems difficult to place any reliance upon the recoveries with which this officer was associated. However, that may be, the assertion of the prosecution that all the respondents were arrested on 26-4-1987 does not appear to be correct. The case of the defence was that two of them, namely, Shah alias Shana and Jafar Hussain alias Kala, were arrested by the police on the day following the occurrence. In support of its version defence referred to a news item which appeared in the Daily ',Tang'. Although we are not prepared to take notice of the newspaper report we find support for the defence version from the statement of one of the witnesses produced by the prosecution itself. Thus, Liaqat Ali (P.W. 16) stated: "It is correct that two co-accused of the present six accused were apprehended by the police on the following morning. Those two accused were apprehended by Rana Mumtaz of Salar P.W. They were produced before the Police by him at the spot."
' In view of this position the story of the prosecution that all the respondents were arrested on 26-4- 1987 from the back of a hotel on the Lahore-Rawalpindi Road and that at the time of their arrest they were carrying guns must be rejected as unworthy of credit.
19. Considering the state of evidence as it is, the High Court was justified in taking the view that there was no satisfactory material on the record to establish the identity of the culprits and in the circumstances it was difficult to hold that with any measure of certainty that the respondents had taken part in the occurrence. We find no basis for interfering with the judgment of acquittal recorded by the High Court. This appeal is without any merit and is hereby dismissed.