' FAZAL ILAHI KHAN, C.J.--This appeal by Abdul Hameed Khan son of Akbar Ali Khan, the convict, is directed against the judgment and order of the learned Additional Sessions Judge, Lakki Marwat, dated 20-1-2001, whereby he was convicted under section 302-B, Pakistan Penal Code and sentenced to suffer life imprisonment with tine of Rs,100,000 as compensation to be paid to the legal heirs of deceased under section 544-A, Criminal Procedure Code. The said amount was ordered to be recovered as arrears of land revenue.
2. Briefly stated the facts of the case are that Amir Nawaz Khan, A.S.-I. (P.W.7) alongwith other police: personnel, was on routine gusht at Adda on 23-4-1999, when at about 1.30 p.m. Pir Ghulam complainant met him and reported to him that Bashir Khan (deceased) was his son who used to drive a taxi car. He further stated that on the night of occurrence two persons had hired his taxi car for taking them to village Jang Khel. The two persons deboarded at ,village Jang Khel and on the way back to their village when they reached near village Kuti Khel at about 11-00 p.m. Two persons standing on the road side signalled them, the complainant told his son not to give lift to them but when he stopped the car the said persons requested them that they had done some harvesting and that they would be highly obliged if they were taken to their village Mash Mansoor, with them those persons boarded in the vehicle. The complainant was already sitting on the rare seat of the car while the said two persons also sat with him on both sides in the rare seat. When they reached Algada known as 'Rora' one of the said persons put his hand on his shoulder and ordered him to bow down and aimed his pistol at him and took out money from his pocket. He further stated that he did not remember the exact amount as to whether it was Rs,800 or Rs,850. That both the accused were armed with pistols. The complainant told the accused that if they want to snatch the car, they should do so but requested them not to harm him and his son. The accused then ordered his son to stop the car but he did not stop the car at which one of the accused fired at him and killed him. He was unable to saw as which of the two accused fired at his son. He became semi- unconscious. In the meantime when the car stopped both the accused decamped from the spot.
After a while he regained consciousness and started for the Police Post Shahbaz Khel on foOt. When he reached Police Station Shahbaz Khel he was told that the police had left for the gusht duty and would be available at Adda Shahbaz Khel. He proceeded to that place where his report was recorded by an A.S.I. In the shape rlf Murasila (Exh.P.W.7/1), which was read over to him and got his thumb-impression on it as a token of its correctness.
3. The A.S.I. After recording the statement of the complainant in the shape of a murasiala, sent it to the Police Station for registration of the case and himself alongwith the complainant proceeded to the spot and took up the investigation. The vehicle bearing Registration No,3I97/LEU was parked on the spot with the deceased partly lying on the driver seat and partly on the adjacent seat. The deceased was removed from the seat with the help of other police officials. He prepared his injury sheet (Exh.P.W.7/2) and inquest report (Exh.P.W.7/3) and sent the dead body to the mortuary for post-mortem examination. The Investigating Officer found one empty of 30 bore and four live cartridges of the same bore lying on the back portion of the car, which were taken- into possession, vide recovery memo. (Exh.P.W.6/3) in the presence of the marginal witnesses. The empty shell was sealed into a parcel in presence of its marginal witnesses. He also cut down a piece from the blood-stained cloth seat of the car, sealed the same into a parcel vide recovery memo. Exh.P.W.6/2.,He also took into possession the Motor Car No,3197/LEU, vide recovery memo.
Exh.P.W.6/1 in presence of the marginal witnesses. He also prepared the site plan Exh.P.B. With all its footnotes. Thereafter, the S.H.O. Reached the spot and took up the investigation. He produced the accused before the Magistrate for recording his confessional statement. On completion of the investigation, complete challan was submitted in Court against the accused. Formal charge was framed to which the accused pleaded not guilty and claimed trial.
4. The prosecution in support of its case produced Sher Ghulam (P.W.1), who stated that the deceased was his nephew and that he had identified his dead body before the police and also before the doctor at the time of post-mortem examination. Mir Sahib Khan, M.H.C. '(P.W.2) stated that on the receipt of the murasila he registered the case vide F.I.R. Exh.P.A., which bears his signature. Muhammad Ishaq Khan, M.O. (P.W.3) stated that on 23-4-1999 at 6.00 p.m. He conducted the post-mortem examination of deceased Bashir Khan son of Sher Ghulam of village Shahbaz Khel, brought by Naseer Khan constbale. According to him the deceased sustained firearm injuries on the base of his skull, vertebral column and blood vessels resulting into haemorrhage, shock and death. He verified the post-mortem report Exh.P.W.3/1 to be in his handwriting and signed by him. Muhammad Riaz Khan, F.0 . No .317(P. W .4) stated that he was entrusted with the warrant under section 204, Criminal Procedure Code issued against accused Hameedullah (absconding accused). He returned the warrant unserved with his report. Jehanzeb Khan Shinwari, Judicial Magistrate (P.W.5) stated that on 28-4-1999 he recorded the confessional statement (Exh.P.W.5/2) of accused Abdul Hameed, after observing all the required legal formalities. The memorandum of inquiry is Exh.P.W.5/1 and the certificate is Exh.P.W.5/3, duly signed by him. He got the thumb-impression of the accused on the confessional statement. The accused was then sent to the judicial lock-up. Pasham Khan. F.C. No,196 (P.W.6) stated that the Investigating Officer in his presence took into possession the motor car (Exh.P.1) through recovery memo.
Exh.P.W.6.1. Similarly in his presence the Investigating Officer took into possession the bloodstained Cloth lExh.P.2) cut by him from the cover of the front seat of the car, vide recovery 'memo. Exh.P.W .6/2. He also verified the recovery memo. Exh.P.W.6/3, vide which the Investigating Officer in his presence took into possession an empty of 30 bore (Exh.P.3) and four live rounds of the same bore recovered by him from the rare portion of the motor car, sealed the same into a parcel in his presence. The Investigating Officer recorded his statement under section 161, Criminal Procedure Code. Amir Nawaz Khan, A.S.I. (P.W.7) stated that on the report of the complainant he drafted the murasil a ( Exh P.W .7/1 and investigated the case to some extent. He is a marginal witness to the recovery memo. Exh.P.W.7/4, vide which the Investigating Officer took into possession one blood- stained shirt (Exh.P.5) belonging to the deceased Bashir Khan, sent by the doctor through constable Naseer Khan, and sealed it into a parcel. He has also recorded the statements of the P.Ws. Under 161, Criminal Procedure Code. Mir Alam Khan S.I. (P.W.8) has investigated the present case after its registration. He deposed that when reached the spot Amir Nawaz Khan, A.S.I. Was already present at the spot. He took into possession blood-stained shirt (Exh.P.5) of the deceased sent by the doctor. He arrested Abdul Hameed accused on 27-4-1999 in village Malla Khel with the help of the co-villagers and searched him. During personal search of the accused, he recovered one purse (Exh.P.6) from the side pocket of the shirt of the accused which contained Rs,1,087 (Exh.P.7) consisting of different denomination of currency notes, and prepared the recovery memo.
Exh.P.W.8/1 in the presence of its marginal witnesses. He applied to the Illaqa Magistrate for arranging the identification parade of the accused through the complainant. After conducting the identification parade the memo. Was handed over to him, which he placed on file. Thereafter, he produced the accused before the Illaqa Magistrate and applied for recording confessional statement of the accused. He also got issued warrant under section 204, Criminal Procedure Code against accused Hameedullah as well as the proclamation notices under section 87 of Criminal Procedure Code against him. He sent the blood-stained shirt of the deceased to the Forensic Science Laboratory for analysis through his application Exh.P.W.8/6. The result of the F.S.L. Is Exh.P.W.8/7-. He recorded the statements of the P.Ws. Under section 161, Criminal Procedure Code and on completion of the investigation submitted complete challan against the accused/appellant on 12-5-1999. The name of the absconding accused was disclosed by the accused in his confessional statement. Pir Ghulam, (P.W.9) is the complainant, who reiterated the contents of his report. He correctly identified the accused/appellant in a regular identification parade held by the Tehsildar Bannu. He charged the accused/appellant and the absconding accused for the offence. Ahmad Khan, Tehsildar Bannu, (P.W.10) stated to have arranged and supervised the identification parade held on 28-4-1999 at 10.00 a.m. In which the complainant correctly identified the accused/appellant. He prepared the memo. Of identification (Exh. P.W. 10/1).
Amanullah Khan, A .S. I. (P.W.11) has witnessed personal search of the accused and the recovery of Rs,1,087 in a purse at the time of his arrest, vide recovery memo. Exh.P.W.6/1. He is also witness to the recovery memo. Exh.P.W.7/4), vide which the Investigating Officer took into possession blood- stained shirt belonging to the deceased Bashir Khan, produced by Naseer Khan sent by the doctor.
5., After close of the prosecution evidence the statement of the accused was recorded under section 342, Criminal Procedure' Code; the accused denied the allegations levelled against him in the prosecution evidence and pleaded innocence. He neither produced evidence in his defence nor made his statement on oath in rebuttal of the prosecution case. The learned trial Judge on appraisal of the prosecution evidence came to the conclusion that the prosecution was successful in proving its case against the accused. Convicted and sentenced him to the term of imprisonment and fine mentioned above.
6. It was contended by the learned counsel for the appellant that there is considerable delay in lodging the report and in order to cover it up instead of recording the F.I.R. In the police station, the same was incorporated into a murasila. That from the evidence on record it is established that the complainant was not present with the deceased at the time of occurrence and has not witnessed the occurrence, but Investigating Officer dishonestly after deliberation and consultation made the complainant as an eyewitness to the occurrence. It was further contended that there was material contradiction in the statements of the prosecution witnesses which have not been taken into consideration in appraising the evidence. As far the identification of the accused is concerned, no description of the accused is given in the F.I.R. So as to make the identification of the accused possible. Morest, the accused were already shown to the complainant several times in the police .Station whereafter the identification parade was held. That in fact no regular identification parade took place, rather the Tehsildar endorsed the dictation of the Investigating Officer. That the medical evidence does not support the version of the complainant that the accused fired at the deceased from rear seat. That the circumstantial evidence does not support the prosecution version of the occurrence. That the confessional statement is highly doubtful and unreliable as the same was recorded at the dictates of the Investigating Officer.
' The learned counsel appearing for the State, however, in support of the Judgment of the trial Court argued that apart from there being ocular evidence furnished by the complainant, the accused has been identified in a regular identification parade held by the Tehsildar (Magistrate-III Class) and the accused having confessed his guilt no exception could be taken to the finding of guilt.
7. After hearing the learned counsel for the parties and perusal of the record, I find substance in the contention of the learned counsel for the appellant. The report is alleged to have been lodged before Amir Nawaz Khan, A.S.I. At Shahbaz Khel Adda at about 1.30 hours on 23-4-1999, which was reduced into a murasila Exh.P.W.7/l, incorporated in the F.I.R. No,75, at 2.45 hours. However, in the inquest report Exh.P.W.7/3, the time of occurrence is 9.30 hours on 22-4-1999. Reference can also be made to the medical report and the statement of doctor Muhammad Ishaq (P.W.3), who conducted the post-mortem examination on the dead by of the deceased on 23-4-1999 at 6.00 a.m. .The time between the death and post-mortem examination is given as between 8.00 to 10.00 hours, wherefrom it can be worked out that the occurrence has taken place sometime between 8.00 p.m. To 10.00 p.m. On 22-4-1999, which is in conformity with the entries in inquest report.
Reliance can also he placed on the statement of Sher Ghulam (P.W.I), who is the uncle of the deceased and who identified the dead body of the deceased before the police as well as before the doctor at the time of post-mortem examination, which support the contention of the learned counsel that the complainant was not available either at the time of the occurrence or at the time of post-mortem examination. It is relevant to point out in this context that Sher Ghulam stated in Court that he got the information about the murder of Said Bashir Khan in between 12.30 and 1.00 hours at midnight at his village Shahbaz His house is separate from that of Pit Ghulam. He and many people of the village were present with Pir Ghulam at the time of lodging the report. He has further stated that he remained with the dead body at the hospital throughout the night. He further stated that Pir Ghulam did not accompany the deceased to the hospital as he was not feeling well.
The above statement was rightly highlighted by the learned counsel for the appellant during his arguments concluding therefrom that nobody was present with the deceased at the time of occurrence and that the news of his murder reached the village sometime at about 12.30 hours.
That on receipt of such information the complainant with his brother Sher Ghulam and the villagers went to the police station for lodging the report. As stated by the complainant his report was not recorded at the police station as according to him he was told by the official at the police station that nobody was there to record his statement and he was directed to contact the police party on gusht. Such being the case, .The presence of Pir Ghulam complainant at the place of occurrence is not proved beyond reasonable doubt. The medical evidence further suggests that the deceased was not fired at from the rear seat of the motor car rather the injury indicates that he was fired at by a person occupying the front seat with driver. It also does not appeal to reason that the two persons who wanted a lift both of them could have occupied the rear seat with the complainant and the front seat with the driver was left vacant. As far as the identification of the accused is concerned, he was arrested on 27-4-1999 in village Mala Khel by residents of the village suspecting him to be a thief and not by the S.H.O. As put to the accused in his examination under section 342, Criminal Procedure Code. The accused while explaining his arrest has stated that he was on his way to the house of his sister, who is married in the same village, at night time when passing through the house of one Subhan on suspicion caught hold of him, beat him and handed him over to the police. The police illegally arrested him and involved him in the present case. Reference can also be made to the application Exh.P.W.87/2, made by the Investigating Officer to the Tehsildar for arranging an identification parade of the accused, relevant part whereof reproduced as under:- ' The contention of the learned counsel that the identification parade is fake and an exercise in futility has not been Rebutted by the learned counsel for the State in view of the above. As such no reliance could have been placed on such evidence. As far recording of the confessional statement of the accused is concerned, the same has been challenged on the ground that apart from it being exculpatory, pit was the result of torture and coercion. The confessional statement is also not certified by the learned Magistrate as required under the law. The certificate subsequently placed on the file is the result of dishonest investigation. From the perusal of the record it appears that the original confessional statement Exh.P.W.5/2 is recorded in Urdu and thumb-impressed by the accused is verified and signed by the Magistrate. There is sufficient space left but no certificate is available on the original recorded confessional statement. There is, however, placed on file a certificate typed in English, which is Exh.P.W.5/3, and on the top of this certificate there is the thumb-impression with the word "thumb-impression or signature" of the accused. These words are upertluous as there was no necessity of getting the thumb-impression of the accused on it and more so on the top of it when the accused had already thumb-impressed the original confessional statement. The certificate is also not in conformity with the provisions of law.
8. For all what has been stated above, we are of the view that it is an un-witnessed occurrence and that the report was lodged after consultation and deliberation. The identification parade, as already stated, has no evidentiary value and no reliance can be placed on it. The retracted confessional statement is not properly certified and is not corroborated by any independent and reliable evidence. The prosecution has, therefore, failed to prove its case against the accused beyond any reasonable doubt, hence extending the benefit of doubt to the accused, this appeal is accepted, the judgment of the learned trial Judge is set aside and the accused/appellant is acquitted of the charge. He shall be released forthwith, if he is not required in any other case.