JUDGMENT ABDUL RAHIM KAZI, J.- This appeal has been filed by the appellant challenging the judgment passed and conviction awarded by the Court of Special Judge for Suppression of Terrorist Activities, Larkana in Special Case No. 104 of 1991 whereby the appellant was convicted under Sections 302, 396&149 P.P.C, and sentenced to life imprisonment and to pay a fine of Rs.10,000/- or in default suffer further R.I. For one year. The appellant was also convicted and sentenced under Section 307/324 and 149 P.P.C, to suffer R.I. For Seven years and to pay a fine of Rs.5,000/-. He was further convicted under Section 395/397 PPC. He was a sentenced to R.I. For six months each in case of non-payment of fine. The appellant had further to pay compensation under Section 544-A Cr.P.C, of Rs.10,000/- to the heirs of deceased A.S.I. Mohammad Khan and Rs,5,000/- each to injured P.Ws H.C. Mohammad Nawaz, H.C Allahdino and H.C. Ahmed Khan All the sentences are to run concurrently. Appellant has also been granted benefit of Section 382-B Cr.P.C.
The appellant had been arrested in case on 3.1.1991 and had been in custody till the judgment was passed on 8.1.1992 and has remained in custody till the hearing of this appeal. The case against absconding co-accused has been kept on dormient file.
2. The prosecution case briefly is that on 5.9.1990 at 0315 hours. H. Constable Wali Mohammad of Special Force Jacobabad lodged an F.I.R. At P.S. Saddar Jacobabad registered as Crime No.158 of 1990 under Sections 302396,353^07332 and 333 P.P.C, read with Section 13-D Arms Ordinance to the effect that on 4.9.90 he along with member of Special Police Force Jacobabad namely HC Mohd: Nawaz, HC Ahmed, Khan, HC Allahdino, HC Khan Mohammad and HC Sarfraz Ahmed, headed by ASI Muhammad Khan left their headquarters for road patrol at 2345 hours in a police vehicle while recording an Entry in diary under No.16. It is further alleged that they were patrolling along Shikarpur-Jacobabad road and when their vehicle reached near Pir Musafir on Bachai canal, they saw some trucks stopped on the road-side and 5/6 culprits duly armed with kks and guns were getting in and getting down from the trucks. It is further stated in the FIR that police party also saw three culprits on one side of the road while two on the other side who were holding fire arms in their hands. Therefore the police party stopped the vehicle and all the personnel got down challenging the culprits, on which the culprits started direct firing upon them and in their defence the police party also fired towards culprits, after taking positions. It is further stated that during firing cries were heard from the side of police party as well as from the side of trucks. It is alleged in FIR that due to darkness the culprits made good their escape after continuing firing for some time and then they went towards the cries and found ASI Mohammad Khan lying injured and was dead besides HC Mohammad Nawaz, HC Ahmed Khan and HC Allahdin were lying injured. It is further alleged that then they went towards the side of trucks and found Imam Bux, Shah Nawaz and Muhammad Aslam lying injured and they were the occupants of the said trucks which were parked beside the road, and said injured persons complained that they have been robbed of their cash worth Rs.1,000/- and Rs.4,000/- and Rs.1,000/- respectively. It is further alleged that those injured persons also told the complainant that they were robbed by the culprits who escaped from the scene of offence. Thereafter the complainant leaving the P.Ws HC Khan Muhammad and HC Sarfraz over the deceased and injured want to police station Saddar, Jacobabad and lodged the FIR, which was recorded under Section 302396 307 and other Sections of PPC, which is on record at Ex.3-A.
3. It is further the case of prosecution that ASI Mohammad Akram was incharge of the Police station at the relevant time who recorded the FIR and then proceeded to the scene of offence which he inspected on pointation of complainant where he found dead body of deceased Muhammad Khan having bullet injuries. It is further alleged that a service revolver and some empties were also recovered beside deceased, including blood stained earth. The I.O. Further found three police personnel lying injured and three other private persons lying injured beside the trucks which were parked on road-side. He inspected the persons of injured and held inquest on person of deceased and recovered empties and blood stained earth from wardat and prepared such mashirnama. The injured were sent to medical officer for treatment, examination and certificate and deceased for post mortem. He also recorded statements of witnesses. He sealed the articles which were recovered from wardat.
4. The appellant is alleged to have been arrested by the same Police on 3.1.1991 in another case under Section 307 P.P.C and has put to identification in the present case wherein he was correctly picked by the P.Ws and their statements under Section 164 Cr.P.C, were recorded and after receiving opinion of Ballistic Expert the appellant was challaned in this case on 2.6.1991. Charge has been framed against the appellant on 16.1.1992 while five co-accused were shown as absconders.
Prosecution examined 11 PWs. Statement of the appellant was recorded under Section 342 Cr.P.C, wherein he denied the charge and also that any identification parade was held or that statements of PWs under Section 164 Cr.P.C, where recorded in his presence. He claims that gun has been foisted upon him. The appellant did not lead any evidence in defence nor he examined himself on Oath through chance was given. The trial Court after hearing the arguments passed the judgment convicting the appellant as above answering the following points for determination in affirmation:- POINT.NO.1: "Whether ASI Muhammad Khan was murdered on the night of incident at the hands of culprits by causing him fire arms injuries with kk and other weapons?
POINT.NO.2: Whether P.Ws: Muhammad Nawaz, Allahdino, Ahmed Khan, Mohammad Aslam, Imam Bux and Shah Nawaz were caused injuries with intention to commit murder of any of them by the culprits on the night of incident?
POINT.NO.3: Whether P.Ws: Shah Nawaz, Imam Bux and Mohd Aslam were robbed of Rs.1000/- Rs.4000/- and Rs.1000/- respectively on the night of incident by the culprits who were more than in number?
POINT NO.4: Whether the culprits caused death of Muhammad Khan ASI and injuries to PWs: Shah Nawaz and others while commission of robbery from Shah Nawaz, Imam Bux and Mohammad Aslam with kks and guns?
POINT.NO.5: Whether the accused along with five absconders formed an unlawful assembly at the aforesaid date, time and place and what offences if any?"
S. We have heard the learned counsel for the appellant and the learned AA.G. The learned counsel for the appellant has not disputed the death of the Police Officer or injuries caused to the three Head Constables and the truck drivers but he has argued that the prosecution has failed to prove the case against the present appellant and that the present appellant has been falsely involved in the case. He has also argued that the taking place of the incident as alleged has not been proved by the prosecution. The following is the evidence relied upon by the trial Court:-
(a) Medical
(b) Ocular
(c) Recovery
(d) Circumstantial We will discuss the said evidence as hereunder:
(a) MEDICAL EVIDENCE: According to the evidence of Medical Officer Dr. Raheel Aijaz (Ex.6) the three Police Head Constables had suffered injuries from Gun Shots and deceased A.S.I. Muhammad Khan had one wound of entry on his right buttock and a wound of exit below Abdomen on left side. There is a miner inconsistency about the timing of his death. As per post mortem notes the post mortem started at 5-10 A.M. i.e. 2 Hours 40 minutes after the death considering the same to have been caused at 2-30 A.M. The P.M. Notes show the time between death and post mortem to be about 5 and 6 Hours. However since the fact of death ASI Muhammad Khan and injuries to three Head Constables are not disputed by the appellant, we will not go into this question.
(b) OCCULAR: The incident is alleged to have been witnessed by 6 members of Police force and three truck drivers. Three Head Constable and three truck drivers are said to have been injured. Of these PWs three injured Head Constable have been examined in addition to complainant HC Wali Mohammad and HC Sarfraz while P.C. Abdul Ghafoor has been examined having acted as mushir of place of incident. All the Eye Witnesses have supported the general statement made by the complainant in FIR. They are unanimous on the point that encounter had taken place and the culprit had fired at the Police and vice versa and that three Head Constables and three truck drivers got injured and ASI Muhammad Khan did in encounter. However, the point to be resolved is whether the present appellant is one of the culprits. Admittedly, the appellant was arrested on 3.1.1991 i.e. 4 months after the incident in another Police encounter for which FIR was registered at the same Police Station as crime No.2 of 1991. The evidence relied upon by the Police is that of identification test. All the eye witnesses examined by Police state that they had identified the appellant The learned counsel for the appellant has challenged this identification on any grounds.
He has pointed out that the mashirnama of identification does not mention the time when the same was held. This fact is admitted by Magistrate Riaz Mustafa the Mukhtiarkar and FCM, Jacobabad. However, in his cross- examination he has stated that the test was held at 10-30 A.M.
On 6.1.1991. This witness is belied by P.W. Muhammad Nawaz the Head Constable of Special Force who has said that the test was held at 2.00 or 230 P.M. There is another aspect which affects the evidently value, of this identification test. Ex. 12/A dated 5.1.1991 and Ex.12/B dated 6.1.1991 are the two letters written by Investigating Officer to the Magistrates for recording the 164 Cr.P.C, statements of PWs and for holding the identification test of accused respectively. Both these are done on same day i. e. 6.1.1991. Now if the identification test is held at 2.00 PM as stated by the PW Muhammad Nawaz then the statement under Section 164 Cr.P.C, is recorded in the morning which are the office hours of the City Magistrate who has recorded these statements in presence of the appellant.
Again PW Allah dino in his cross- examination has stated that he and other witnesses were called by the S.H.O, to Police Station before the test was held and at that time the accused was present in the office of S.H.O. When the PWs reached then. All these facts show that the appellant was shown to PWs before the test. The learned counsel for the appellant has further pointed out that the Investigating Officer has stated in his evidence that the accused was arrested on 3.1.1991 in another encounter with Police and that in this second encounter Soof, brother of the appellant was killed and that at that time all the eye witnesses of the present case were shown the killed culprit they were present there and identified the dead culprits. Thus obviously they had seen the appellant also on 3.1.1991. Pws Muhammad Nawaz, Sarfraz, allahdino, Ahmed Khan and Khan Mohd: in their statements under Section 164 Cr.P.C. (Ex.7/A, 9/A, 13/A and 13/B) have stated that they had identified the appellant on 3.1.1991 at the time of his arrest in second encounter on that date. The learned counsel for the appellant has also argued that the identification after delay of three days cannot be relied upon. In the case of Ghulam Rasul vs. Stale (1988 SCM R 557) it has been held:- "The second piece of evidence which has been relied upon by the prosecution is the identification parade the perusal of the record shows that besides suffering from other legal infirmities which have been alluded to by the learned trial Court, the identification parade also carried an inherent defect and that is that Abdul Majid P.W. Did not describe the role played by each of the appellants at the time of the commission of the offence. The same, therefore, has lost its efficacy and cannot be relied upon. Reliance in this respect is placed on the case of Khadim Hussain v. The State reported in 1985 SCM R 721."
6. Also in a Single Bench case of this Court va State vs. Bashir Khaskehli (1992 M LD 432), it has been held that identification test after recording statements under Section 164 Cr.P.C, takes away the entire evidentiary value of such identification test. In the judgment the learned trial Judge has observed that the Police Party had been seeing the culprits firing at the Police for more than 10 minutes in the Head light of three trucks but yet the description of the accused is not given in the FIR nor it has been mentioned as to how many of them had klashinkovs and how many had shot guns. It is also surprising that seven policemen, who are highly trained had been Bring at five culprits who were fully visible to them in the Headlights of three trucks for continuous ten minutes yet the Police Party could not cause injury to any of them. This is the efficiency of Police. It may further be observed that there were three truck drivers. The prosecution has not examined them no any reason has been assigned for their non-examination. This fact further create a doubt and inference for with-holding such independent evidence is to be drawn against the prosecution in view of the provisions of Article 129(g) of Qanoon-e-Shahadat order 1984.
7. The upshot of the above discussion is that we have come to the conclusion that no reliance can be placed on the alleged identification test.
(c) & (d) EVIDENCE OF RECOVERY & CIRCUMSTANTIAL EVIDENCE: The prosecution is relying on the evidence of recovery of empty cartridges and the double parrel gun. The appellant in his statement under Section 342 Cr.P.C, had denied the recovery and has stated that these are foisted upon him. The gun is alleged to have been recovered from the appellant in the case crime No.2 of 1991 but neither the FIR of the said case is produced nor the mashirnama of recovery showing the recovery of gun is produced. It was the duty of the prosecution to have produced the mashirnama and also to have examined the mashir of recovery of gun who had also to submit to cross- examination. Here oral statement of the Investigating Officer without corroboration from the mashir in the absence of mashirnama can not be accepted as corroborative proof of recovery of the gun.
A reference to mashirnama of place of evidence (Ex.1O/A) shows that fifteen empties of kk bullets and for empty cartridges have been recovered by Police. This fact is belied by the I.O. Himself. He was recalled for production of ammunition and weapons. He has produced one kk rifle 15 empties recovered from near the dead body of Soof. This is obviously in crime No.2 of 1991. As regards the present case he produces only one empty of kk and 4 cartridges. This shows that the distinguish the two cases and have mixed the recoveries in two cases. The mashir P.C. Abdul Ghafoor (Ex.1O/A) has stated in his examination- in-chief that the ASI did not secure anything from the scene of the offence. Thus, this fact also has not been proved if the empty cartridges were recovered from the place of incidence. Now coming to the report of the Ballistic Expert, a reference to the same (Ex.12/) would show that the Gun and Cartridges were sent to Ballistic Expert on 21.4.1991 after 7 1/2 and 3 1/2 months of recovery thereof respectively. This itself renders that the report reliable. In the case of Muhammad Sharif vs. The State (1991 P.Cr.L.J. 1992), learned CJ. Of (Shariat Court) AJK disbelieved the report of Expert where empties and weapon were sent to him after 26 days of recovery.
Similarly in the case of Younis Masih vs. State (1989 P.Cr.L.J. 103), a Division Bench of Lahore High Court has held: "The matching of the crime empties with carbine P.2 is of no significance because both of them were sent to the Forensic Science Laboratory simultaneously. The crime empties were recovered from the spot on 13.5.1984 while carbine P.W was recovered on 6.6.1984 It is not understandable as to why the crime empties were not sent to the Laboratory soon after their recovery. A serious doubt is created in keeping the same with the police for such a long period and sending the same along with carbine P.2 on the same date as stated by Rashid Khan constable P.W.
3. R.I Mohd: Ameer Inspector P.W. 9 had kept the parcels of crime empties with him till 6.6.1984 and delivered the same to Niaz Ahmad Head Constable P.W.7 along with the parcels of carbine. There was thus a possibility that the crime empties might have been prepared from carbine P.2 after its recovery independent witness was examined to prove the recovery of carbine P.2 at the instance of Younis Masih appellant."
8. The facts about recovery of empties and weapons in the above cited case are identical to the present case. In this view of the matter we have no hesitation in holding that the prosecution has not been able to prove the case against the appellant.
9. The inconsistencies in the evidence of the Police Officials and omissions on the part pf the Investigating Officer and prosecution as pointed out in above discussion has helped the lacunae to creep in the case having the effect of destroying the case of prosecution. In this view of the matter we accept this appeal, set aside the judgment passed and conviction awarded by the trial court against the appellant. He shall be released forthwith if not required in any other case.
10. Above are the reasons for the short order announced by us in Court on 8.8.1994.