ATAUR REHMAN, J.--- By this common judgment, we propose to dispose of two Criminal Appeals Nos.62 of 1995 and 68 of 1995 filed by the appellants against the judgment, dated 15-5-1995 passed by the Special Court No,II, (Suppression of Terrorist Activities), Hyderabad, in Case No,12 of 1992, under section 302/149, P.P.C. Convicting each of them to suffer imprisonment for life and also to pay fine of Rs,25,000 or in default to suffer R.I. For two years and acquitted co-accused Muhammad Sharif.
2. On 7-11-1991, one Mehmood Ahmed son of Rafiuddin lodged at Police Station Jamshoro an F.I.R.
No,81 of 1991 under section 302/147/148/149, P.P.C. And stated therein that on the day of the incident he, his brother Arshad and cousin Habib, went on a motorcycle to visit their land on the bank of the Indus River. They parked their motorcycle near the water pump machine which was installed on said land. They roamed over the land and at about 5-30 p.m. Arshad went to fetch motorcycle which was parked at a little distance. As they were waiting for Arshad to bring the motorcycle to them they heard noise and Lalkara from the direction where the motorcycle was parked. He saw five persons, whom he could identify if he saw them again. The five persons were armed with guns, rifles and kalashnikov. They fired on Arshad who after receiving the bullets fell down on the ground.
The complainant and his cousin raised cries whereupon the accused ran away from the scene of offence. The complainant and his cousin Habib reached the spot and found Arshad lying dead.
They found injuries on his body and he was bleeding. According to him he had no known enmity with any person but he stated that Arshad might have been killed due to some conspiracy. They arranged for a Suzuki and shifted the body to Petaro Dispensary.
3. Muhammad Ismail, S.H.O. Police Station, Jamshoro registered the F.I.R. Lodged by the complainant and then went to the Petaro Dispensary and saw the dead body of Arshad, prepared the inquest report and then sent the dead body to Medical Officer, Kotri for post-mortem examination. The police arrested the appellants Rahim, Achar son of Jan Muhammad and Sharif (the acquitted accused) on 11-11-1991, whereas the appellants Achar son of Umar and Muharram were arrested on 19-11-1991.. The feet of the appellant were traced on 8-11-1991 and tested on 19-11- 1991, The identification parade of the appellant was conducted on 19-11-1991 when the acquitted accused Sharif was in custody alongwith the appellants, but he was neither put to foot print test nor to the identification parade which look place on 19-11-1991.
4. According to prosecution, blood-stained earth, 6 shell of rifle, 3 empty cartridges were recovered from the place of incident by Inspector Ismail in presence of Mashirs Umaid Ali and Allah Dino: that on 11.-11-1991, Inspector, S.-I. Ayoob in presence of A.S.-l. Ghulam Abbas and A.S.-I. Ali Gohar recovered a K.K. 200 bullets, 4 K.K. Magazines each containing 25 bullets on the pointation of the appellant Rahim: that on 13-11-1991 Inspector Ismail in presence of H.C. Abdul Latif and H.C.
Muhammad Nasir recovered a double-barrel gun on the pointation of acquitted accused Sharif; that on 25-11-1991 A.S.-I. Khali Hussain in presence of Constable Muzafar Ali and Constable Allah Warayo recovered a single barrel gun on the pointation of appellant Moharram; that on 24-11-1991 the police got the P.W. Habib Channa and Hakim Ali examined under section 164. Cr.P.C. Before the A.C.M. In presence of the appellants and Sharif the acquitted accused. After investigation, police submitted challan, dated 15-11-1991 against the present appellants, showing accused Wali Muhammad and Sharif (the acquitted accused) as absconders in column No,2.
5. On 12-4-1992, the trial Court framed against appellants and Sharif, (the acquitted accused) the following charge to which they pleaded not guilty:- "That you on or about 7-11-1991 at about 5-30 p.m. Alongwith absconding' accused Wali Muhammad, on the land of complainant Mehmood situated in Deh Reti Petaro on the side of Indus River formed an unlawful assembly duly armed with K.K. Rifles and guns in furtherance of your common object did commit murder by intentionally causing death of Arshad son of Rafiuddin brother of complainant and thereby committed an offence punishable under section 302, P.P.C.
Read with section 149, P.P.C. And within the cognizance of this Court."
6. At the trial, prosecution examined P.W.1 Muhammad Soomar, the foot print tracer, P.W.2 Mehmood Channa the complainant and brother of the deceased, P.W.3 Habib Channa, P.W.4 Hakim Ali a friend of the deceased, P.W.5 Allah Dino Khan, P.W.6 Muhammad Yaqoob, Inspector, S.H.O. Police Station Jamshoro, P.W.7 Dr. Muhammad Ramzan, P.W.8 Ghulam Abbas, A.S.-I. P.W.9 Nasir Khan, Mukhtiarkar, P.W.10 Mir Khan L. Naik P.C., Police Station Jamshoro, P.W.11, Abdul Majeed, P.W.12 Walidad, Tapedar, P.W.13 Khalid Hussain A.S.-I. P.W.14 Abdul Latif, H.C. P.W.15 Shah Nawaz H.C.
P.W.16 Muzaffar Ali, P.C. And P.W.17 Muhammad Ismail, Inspector and the Investigation Officer. Then the prosecution closed its side vide statement of Special Prosecutor Exh.31.
7. The appellants in their statements recorded under section 342, Cr.P.C. Denied the allegations of the prosecution. The trial Court framed the following points for determination:--
(i) Whether deceased Arshad died as a result of the injuries sustained by him?
(ii) Whether appellants, absconding accused Wali Muhammad and co-accused Sharif caused the said injuries to the deceased?
8. The trial Court answered the point No,1, in affirmative and point No,2 also in affirmative to the extent of the present appellant and acquitted the accused Sharif under section 245(i), Cr.P.C. In support of the point No,1, the prosecution relied upon the evidence of P.W.7 Dr. Muhammad Ramzan, who conducted post-mortem examination on the dead body of deceased Arshad. On external examination of dead body he found following injuries:--
(i) Lacerated punched, entry wound 1 c.m. In diameter, oval in shape on the front of left side of chest just close to the left nipple.
(ii) Lacerated, averted, exit wound 3 c.m. In diameter, irregular in shape on left side of back chest, making the tunnel with injury No,1 and damaging the intervening parts.
(iii) Two lacerated punched, entry wounds close to each other, each measuring 1 c.m. In diameter, oval in shape on the right upper arm anteriorly.
(iv) Lacerated, averted, exit wound 4 c.m. In diameter irregular in shape, on right upper arm posteriorly making the tunnel with injury No,3 and damaging the intervening parts and resulting the fracture of right humerus bone.
9. On internal examination the Medical Officer found fracture of 5th rib on left side of chest anteriorly, fracture of 5th and 7th ribs on the left side of the chest posteriorly under injury No,1, pleura of left lung damaged under injury No,1, left lung damaged under injury No,1, pericardium and heart damaged under injury No,1, and right humerus bone damaged. In the opinion of Medical Officer, the death of Arshad was the result of hemorrhage and shock due to injury No,1, individually with rest of the injuries collectively, and that injuries were ante-mortem and appeared to have been caused by the discharge of fire-arm and the deceased died instantly.
10. In support of the point No,2, the prosecution led the following evidence against the appellants.
(i) Ocular evidence of complainant P.W.2 Mehmood Ahmed and P.W.3 Habib Ahmed.
(ii) Corroborative evidence of P.W.4 Hakim Ali.
(iii) Circumstantial evidence--
(a) Recovery of crime weapons from the appellants Rahim, Moharram and Sharif, (the acquitted accused).
(b) Ballistic Expert's Report.
(c) Chemical Examiner's Report.
(d) Identification test of appellants Rahim, Achar son of Jan Muhammad, Moharram and Achar son of Umar in the presence of Mashirs P.W.11 Abdul Majeed and P.W. Nabi Bux before P.W.9 Nasir Khan, Assistant Mukhtiarkar, Kotri.
(e) Foot print test of appellants Rahim, Achar son of Jan Muhammad, Moharram and Achar son of Umar in the presence of Mashirs P.W.11 Abdul Majeed and Nabi Bux before P.W.9 Nasir Khan, Assistant Mukhtiarkar, Kotri.
11. P.W.2 Mehmood Ahmed Channa and P.W.3 Habib Ahmed Channa are the eye-witnesses of the incident. P.W.2 Mehmood Ahmed deposed that on 7-11-1991 he alongwith P.W.3 Habib Ahmed and deceased Arshad went near the bank of river on a motorcycle. They parked the motorcycle at the Otaq like but near the water pumping machine and then took a round of the land. At about 17-00 or 17-30 hours, they started coming towards the place where the motorcycle was parked. The ground where the motorcycle was parked was uneven and not fit to ride with three persons; hence deceased Arshad went to bring the motorcycle upto the smooth land and shortly thereafter, they heard some shouts like Lalkara. They looked towards the place where the motorcycle was parked and saw five persons, out of whom one was armed with K.K., another one with another type of rifle and the remaining three armed with guns. Appellant Rahim was armed with a kalashnikov type rifle and the rest were armed with guns. The person who was holding another type of rifle was not present in Court and is absconding. Appellant Rahim fired upon the deceased with his K.K. Rifle and thereafter, absconding accused fired with his rifle and then the appellants armed with guns also fired upon the deceased and he fell down. They raised cries and the assailants ran away alongwith their weapons and while running away they were raising Lalkaras. They went to Arshad and found him dead. P.W.3 Habib then went and brought a Suzuki pick up and the deceased was removed to the hospital of Cadet College Petaro and P.W.2 Mehmood Ahmed lodged the F.I.R. Exh.9-A. Police came to the hospital where the dead body of the deceased was lying. Police removed the dead body to Taluka Hospital, Kotri. On the next day, P.W.2 took the police to the scene of the crime. Foot- tracker came to the Wardat, who in his presence, tracked the foot prints which ultimately disappeared at the hutment of appellant Achar Khaskheli and no man was visible around the said hutment. On 19-11-1991, P.W.2 was called to Kotri, where an identification parade was arranged at the office of Mukhtiarkar and out of 20/25 persons, he identified four who, alongwith absconding accused committed, the murder. P. W .2 identified them in the Court also.
12. The next eye-witness is P.W.3 Habit) Ahmed Channa. He deposed that on 7-11-1991 he and his cousin P.W.2 Mehmood and deceased Arshad went on a motorcycle to their lands situated in Deh Petaro and reached the river bank where a water machine was installed and by its side, there was a hutment. They parked the motorcycle there and then roamed about on the land. At about 17-30 hours they returned towards the place where the motorcycle was parked. He and P.W.2 Mehmood stayed at a distance of 40 paces from the place where the motorcycle was parked whereas Arshad went to fetch the motorcycle. He then heard the noise and burst of rifle and saw the deceased Arshad falling on the ground. He found five persons out of whom one was armed with a kalashnikov rifle while rest were armed with rifles and guns. They raised cries whereupon the assailants ran away towards the north. They reached the spot and found Arshad lying dead. While P.W.2 Mehmood stayed there, he went on motorcycle to Petaro Goth and brought a pick-up from there and took the dead body of Arshad in the pick-up and brought it to the hospital of Cadet College Petaro. He their went away to his house. Later on, he identified four persons in the identification test conducted at the office of Mukhtiarkar, Kotri. He was also examined before the Magistrate under section 164, Cr.P.C.
13. P.W.4 Hakim Ali deposed that in the evening of 1st November, 1991, while he was standing at bus- stand of Petaro College for going to Hyderabad he saw two persons sitting in the Musafir Khana, whereas. He was standing by the side wall thereof. There were holes in the wall of the Musafir Khana in the form of windows and he over heard conversation of those two persons. One of them was saying to another that unless Mr. Channa or his son were killed or murdered, they would not be able to acquire the disputed land. Since there was only one person known as Channa who was the father of the deceased Arshad. P.W.4 Hakim Ali immediately returned to the house of Arshad and informed him what he had over heard. Deceased Arshad and P.W.4 came back to the bus-stand but those two persons had already disappeared. He returned to Hyderabad and after six days Arshad was murdered. On the third day after his murder, P.W.4 went to the house of the deceased and narrated the conversation of the said two persons. When he came to know that some suspects were arrested by the police, he went to the Police Station Jamshoro, and identified two of them, namely Achar son of Jan Muhammad and Sharif, who appeared to be the same individuals whose conversation was overheard by him at the bus-stand.
14. P.W.6 Muhammad Ayub, S.-I. Deposed that after his arrest, the appellant Rahim led the police to his house and produced the crime weapon K.K. Rifle alongwith 200 live bullets in a leather bag and four magazines, each containing 25 live bullets. He prepared a Mashirnama of recovery of Exh.13/B in presence of Mashirs, P.W.8 A.S.-I. Ghulam Abbas and P.W. A.S.-I., Ali Gohar. P.W.8 A.S.-I. Ghulam Abbas was examined to corroborate the recovery of the crime weapon from appellant Rahim.
15. P.W.8 A.S.-I. Khalid Hussain deposed that on 25-11-1991 appellant Muharram led the police to "Satdari" and took out crime weapon i,e, a single barrel gun from the hushes and produced the same before him. He prepared the Mashirnama of securing the gun Exh.26-A in presence of the Mashirs. P.W.16 Muzaffar Ali was examined to corroborate the recovery of crime weapon on the pointation of appellant Muharram. P.W. 17 S.H.O. Muhammad Ismail deposed that on 13-11-1991 he recovered the unlicensed double-barrel gun on the pointation of acquitted accused Sharif in presence of Mashirs, P.W.14 H.C. Latif Naseer under Mashirnama Exh.27-A.
16. Ballistic Expert's Report produced on record at Exh.30-A shows that the empties were fired from the said K.K. And two shot guns. Chemical Examiner's Report Exh.30-B shows that the earth sent to him was stained with human blood.
17. P.W.1 Muhammad Soomar deposed that on 7-11-1991, he accompanied the police to the scene of the crime and there .Found foot prints of five persons which went towards the north. He followed the foot prints which ultimately led them to the house of appellant Achar Khaskeli. Again on 19-11-1991 he was called at the office of the Mukhtiarkar, Kotri and was asked to identify the foot prints of suspects. He was shown foot prints of about 25 to 30 persons. He identified the foot prints which were found by him at the Wardat and which were tracked up to the house of Achar Khaskeli.
18. All accused were examined under section 342, Cr.P.C. Wherein they denied the story of the prosecution and stated that they have been falsely implicated in the case, Muhammad Sharif, Muhammad Rahim and Muharram also examined themselves on oath. Acquitted accused Sharif further stated that the witnesses were related inter se and interested. They deposed at the instance of A.S.-I. Amjad Channa, brother of deceased Arshad Channa who was posted at Police Station Jamshoro at the time of the incident. He stated that he had enmity with A.S.-I. Amjad Channa and the police of Jamshoro Police Station. He had also taken plea of an alibi and stated that at the relevant time of the incident, he was available at Kotri in the marriage ceremony of Muhammad Umar Khoso. He produced the Nikahnama in which he acted as witness. He also produced other documents in proof of enmity with the P.Ws. And the police of Jamshoro Police Station. Appellant Rahim adopted the statement of his brother the acquitted accused Sharif. Appellant Muharrim stated that he had been implicated due to his friendship with co-accused Sharif and appellant Rahim who are his co-villagers. Appellant Achar son of Jan Muhammad stated that he is a Hari of the co-accused Sharif and appellant Rahim, hence he had been implicated falsely in this case by A.S.-I. Amjad Channa who is on inimical terms with his Zamindars. Appellant Achar son of Umar stated that he had been falsely implicated by the police in collusion with P.W. Allah Dino Samoo who is on inimical terms due to party basis. Muhammad Umar, Hazoor Bux, Chutto Khan and Muhammad Siddiqui, D.W.1, to D.W.4 respectively appeared as defence witnesses. After hearing the counsel for the parties, the trial Court passed the impugned judgment.
19. We have heard Mr. Allah Bachayo Soomro, Advocate for the appellants Rahim son of Ahmed Khoso and Achar son of Umar Khaskheli in the Criminal Appeal No,62 of 1995 and Mr. Hidayatullah Ghulam Abbasi, Advocate for the appellants Achar son of Jan Muhammad and Muharram son of Muhammad Ibrahim in Criminal Appeal No,68 of 1995 whereas Mukhtiar Ahmed Khanzada, Advocate appeared for the State. We have also gone through the evidence brought on record of the trial Court, indeed with the assistance of all the Advocates.
20. The evidence of P.W.2 Mehmood, P.W.3 Habib and P.W.5 Allah Dino are contradictory to each other. P.W.2 Mehmood and P.W.3 Habib in the cross-examination stated that no Hari or pump man was available on the lands and that they themselves did all the work over it. P.W.5 Allah Dino who claimed to have land adjacent to the lands of the deceased stated in the cross-examination that one Arab alias Gedo is employed by Channa on the water pumping machine which is located at the Wardat. He further, stated that the said employee usually remains present at the Wardat. P.W.3 Habib stated in the cross-examination that he did not know if the P.W.5 Allah Dino had any land adjacent to the lands of Channa. P.W.12 Walidad, the Tapedar, had in the cross stated that all the points shown in the site sketch lie within 16 acres of land not belonging to the Channas, i,e, the complainant and deceased. Arab has not been examined in the Court.
21. P.W.2 Mehmood in his cross-examination stated that P.W.3 Habib came back to the Wardat with a Suzuki pick up with two persons but he did not know who they were. P.W.3 Habib in his cross- examination stated that he had first gone to the Otaq of P.W.5 Wadero Allah Dino and then they had engaged the pick up. He further, stated that four persons namely himself P.W.2 Mehmood, P.W.5 Wadero Allah Dino and driver of the Suzuki picked up the dead body. P.W.5 Allah Dino in examination-in-chief had stated that when he was in the village he learnt about the incident. He stated that he went to the dispensary of the Petaro College where the dead body of Arshad was lying. In the cross-examination he had stated that apart from a number of persons, Arab had told him about the death of Arshad. The Suzuki driver has not been examined as a witness to corroborate the statement of the P.Ws. Mehmood and Habib.
22. The P.W.3 Habib in his cross-examination stated that he had also assisted in the picking up of the dead body and placing it in the pick up but according to him his clothes were not stained with blood. He was also not able to say as to whether the clothes of other persons were stained with blood. According to the facts, the earth was stained with blood. P.W.2 Mehmood had also assisted in picking up the dead body but his clothes with stains of the blood had not been produced in Court.
23. Another factor which is to be taken into consideration is that the incident took place at 5-30 p.m. Both the eye-witnesses reached at the spot immediately, thereafter, Allandino came at the spot within one hour's time; yet according to post-mortem notes eyes of the deceased were half open. Rigor mortis starts setting in after one or two hours of the death and it starts from the teeth and chin. Had the witnesses been available with the dead body within one or two hours they would have closed the eyes of the deceased. The above fact creates a doubt about the presence of the three witnesses near the deceased immediately after his death. In view of the above, the ocular evidence of the witnesses cannot be relied upon. The cases of Fahimuddin v. The State 1996 PCr.LJ (Karachi) 727, Ashique Hussain v. The State 1993 SCM R 417, Mudasir v. The State 1996 SCM R 3 support the above view.
24. The evidence of P.W.1 Soomar, the foot print tracker is important for the prosecution case. It was this tracker who had for the first time led the police upto the suspects. According to him, he had inspected the Wardat and there he had found the foot prints of five persons which led him to the house of appellant Achar Khaskheli. Thereafter, he had identified the foot prints of four persons in the identification test. His evidence is not trustworthy for the reason that he picked up foot prints of the five suspects only whereas according to the facts of the case there had to be foot prints of at least ten persons and also the marks of tyres of the Suzuki and the motorcycle. He failed to notice the foot prints of (1) deceased Arshad (2) P.W.2 Mehmood and (3) P.W.3 Habib and the two persons who had come in the Suzuki; to take the dead body of Arshad. This P.W. Categorically stated that he picked up foot prints of five persons only. He also failed to notice the imprints left by the deceased where he fell and also the tyre of the motorcycle and the Suzuki. It is also not explained as to how at the time of tracking the foot prints, he came to know that the house where the foot prints disappeared belonged to appellant Achar. He thereafter, identified the foot prints of the four suspects at the foot print identification test held on 19-11-1991 in the office of the Mukhtiarkar, Kotri.
He neither prepared any documents at the time of tracking the foot prints on 8-11-1991 nor at the time of identification test of foot prints held on 19-11-1991. The evidence of this witness does not create any confidence and cannot he relied upon.
25. From the case as placed by the prosecution it appears that the police had been able to reach to the suspects through the evidence of foot prints which led the police party to the house of Achar Khaskeli. It is however, to be noted that no evidence has been brought on record to prove that the house where the foot prints ended was actually owned or occupied by Achar Khaskheli. The prosecution was satisfied by merely making some witnesses say that the foot prints ended at the house of Achar Khaskheli. In the absence of any satisfactory evidence to that effect all subsequent actions of the police are rendered doubtful. Even otherwise, foot print identification is a weak type of evidence. The case of Guloo v. The State PLD 1988 Kar. 637 is referred to.
26. The next important piece of evidence is that of the identification parade of the four appellants.
According to prosecution case the appellants Rahim, acquitted accused Sharif and Achar son of Jan Muhammad were arrested on 11-11-1991, and Achar son of Umar and Muharram were arrested on 19-11-1991. Appellant Achar son of Umar was arrested from the office of Petaro Cadet College where the father of the deceased is the Vice-Principal. It is not explained as to why the acquitted accused who was under arrest since 11-11-1991 was not put to identification in parade alongwith the other appellants. It is also not explained as to why P.W.11 Abdul Majid an employee of the Petaro College was made a Mashir of the parade and why the Mashirs of the locality were not associated to witness the parade. The other Mashir Umaid Ali who has not been examined was also not from the locality where the parade took place. The P.W. Mehmood who lodged the F.I.R., had not mentioned the description and the features of the suspects. The incident took place in the month of November at 5-30 p.m. When the days are short and sun sets at about 5-30 p.m. And thereafter it is not easy to identify the features of strangers from 50 to 60 paces in dim light. The ratio of dummies at the parade was also not according to the laid down practice. Normally the ratio is to be of 10 persons per accused, but in this case only four persons per accused were made to join the parade. It is admitted that Amjad Channa is a brother of the deceased. Amjad Channa at the relevant time was a S.-1. Of Police Station Jamshoro. The appellant Rahim and Achar who were arrested on 11-11-1991 were kept in the police custody before they were put to identification on 19-11- 1991. It is most probable that they may have been shown to the witnesses before the identification parade. At least one witness namely P.W.4 Hakim Ali stated in the examination-in-chief that after he learnt that some accused have been arrested he went to Police Station Jamshoro where he saw the appellant Achar son of Jan Muhammad and acquitted accused Sharif. The reason for delay of 10 days in holding identification parade in respect of appellants Rahim and Achar son of Jan Muhammad has not been explained by the prosecution. The appellant Achar son of Umar was arrested on 19-11-1991 from the custody of Petaro Cadet School where the father of the deceased is a Vice-Principal. In the absence of any details of precautions taken by the police the probability is that he was shown to the witnesses before being handed over to the police custody and thereafter, the identification parade was conducted. On 24-11-1991 P.W.3 Habib was examined under section 164, Cr.P.C. When the appellants were present in Court. At the end of his statement he deposed that "... If I will see the five persons again 1 will identify ..." The above statement shows that he either was not present at the place of incident or he had not seen the assailants at the time of the incident.
The above facts create a doubt as to the authenticity of the identification parade of the appellants.
27. The cases of Lal Parsad v. The State PLD 1981 SC 142, Ghulam Rasool and others v. The State 1988 SCM R 557, Kirir v. The State PLD 1996 Kar. 246, Muhammad v. The State 1974 PCr.0 433 and Meer Hassan and others v. The State 1997 M LD 1663 support the above view.
28. The next piece of evidence is the recovery of crime weapons. On 11-11-1991, after his arrest.
Appellant Rahim produced a K.K. 200 bullets, 4 K.K. Magazines each containing 25 bullets. Mashirs were P.W.8, A.S.-I Ghulam Abbas and A.S.-I. Ali Gohar (not examined). P.W.8 A.S.-I. Ghulam Abbas in his deposition did not say that the crime weapons were sealed. On 13-11-1991 acquitted accused Sharif produced a double-barrel gun. On 25-11-1991 appellant Muharram produced a single barrel gun in presence of Mashir P.W. 14 Abdul Latif and H.C. Muhammad Mansoor. According to P.W.15 Shah Nawaz, the two guns were sealed on 25-11-1991 at 6-20 p.m. By S.H.O. Muhammad Ismail Solangi at Police Station Jamshoro. By not sealing the crime weapons at the place of recovery a doubt as to their production by appellants has been created and such quality of evidence cannot be relied upon.
29. The report Exh.30-A of Criminalistic Division has been produced to show that empties picked up from the scene of the crime were fired from the weapons recovered on the pointation of the appellant. There is no evidence to the effect that the bullets which caused the death of Arshad were fired from the said fire-arms. In the absence of such evidence, even a presumption cannot be drawn against the appellants. The medical evidence even if taken to be genuine cannot be made basis of conviction of the appellants. It is pertinent to note that ocular evidence in respect of acquitted accused Sharif was discarded but the same evidence was relied upon by the trial Court for conviction of the present appellants. There seems to be a glaring inconsistency in the impugned judgment and the same is liable to be set aside.
30. For the facts and reasons stated above we are of the considered opinion that benefit of doubt can be extended to the appellants. Since the prosecution has failed to bring home guilt of the appellants we, therefore, set aside their convictions and sentences and allow their appeals. All the appellants are set at liberty, if not wanted in any other case.