1. ' RAJA FAYYAZ AHMED, C.J.--This appeal under section 410, Cr.P.C. Has been directed against judgment, dated 30-6-1999 passed by the learned Additional Sessions Judge-V, Quetta in Sessions Case No,33 of 1998 whereby the appellant has been found guilty for the offence under section 302(b), P.P.C. And sentenced to death penalty. Murder Reference No,5 of 1995 has also been made to this Court for confirmation of death sentence awarded to the appellant vide abovementioned judgment, accordingly; we intend to dispose of the appeal and the murder reference by this common judgment.
2. The brief facts of the case are that pursuant to Fard-e-Bayan of P.W.1 'Haji Khudai Nazar (Exh.P/1- A) Case Crime No,1 of 1998 was registered with Police Station Pashtoon Abad, District Quetta on 5-1- 1998 at 11-30 p.m. Wherein Haji Khudai Nazar has alleged that on the aforementioned date the family members and children of his relative namely Ahmed Shah Khilji had come to their house and at about 9-30 p.m. His son namely Ahmed Shah alias Gulai took the children of his said relative to their house at Tareen Road and; after about half an hour son of Ahmed Khan Khilji namely Mehmood informed to him in his house that his son after leaving the children to their house left back for his home who after some time returned to their house (Mehmood's house) and told to them in injured condition that he (Ahmed Shah alias Gulai) was injured at the crossing of Kachra and Tareen Road by 3/4 unknown persons by means of Revolver or Pistol firing and have run away from the spot. It has been further disclosed in the Fard-e-Bayan by Haji Khudai Nazar that Mehmood also told to him that his father has removed Ahmed Shah Khilji for treatment to the Civil Hospital. So P.W. Khudai Nazar statedly rushed to the hospital on receipt of the information given to him by Mehmood and found his son Ahmed Shah alias Gulai lying unconscious having suffered a bullet wound on left side of his ribs.
2. ' P.W. Khan Gul S.-I./Police Station Pashtoonabad conducted investigation in the case, who inspected the place of Wardat, prepared memos. And recorded statements of P.Ws. Under section 161, Cr.P.C. And also conducted the identification parade of the accused and in his presence statement of injured produced as Exh.P7-A was statedly recorded, subsequently; investigation of the case was entrusted to S.-I./S.H.O. Of the same police station who prepared challan produced by P.W. Khan Gul as Exh.P/8-B. The learned Sessions Judge, Quetta on submission of challan and papers of the case, sent the same to file of the learned Additional Sessions Judge-V, Quetta. The learned trial Court indicted the appellant for the commission of the abovementioned offence under section 302/34, P.P.C. On 5-5-1998 to which he pleaded not guilty and the prosecution to substantiate the accusation produced eight witnesses namely Haji Khudai Nazar (P.W.1), Bor Muhammad, Police Constable (P.W.2), Mangal (P.W.3), Muhammad Aslam E. A .0 . -VIII/M .F.0 .
3. (P.W.4), Dr.Muhammad Murad Marri, Medico-legal Officer, Sandeman Provincial Hospital, Quetta (P.W.5), Mir Hussain (P.W.6), Muhammad Umar (P.W.7) and Khan Gul S.I.P./Investigating Officer (P.W.8). After close of the prosecution case the accused was examined by the learned trial Court under section 342, Cr.P.C. In the light of the incriminating pieces of prosecution evidence who denied the same in toto. The accused did not opt to record his statement on oath within the purview of section 340(2), Cr.P.C. Nor produced any defence evidence. After close of the parties' case, the learned trial Court vide judgment impugned herein convicted and sentenced the appllant as herein abovementioned.
3. Substance of the prosecution evidence is given hereinbelow:-- ' Haji Khudai Nazar son of Haji Muhammad Din Caste Achakzai (P.W.1)
4. ' He is the father of deceased Ahmed Shah Gulai. According to him on 1-5-1998 the family members of Ahmed Shah Khilji had come to their house and at 9-30 p.m. His son deceased Ahmed Shah took the family members of Ahmed Shah Khilji to their house and after half an hour son of Ahmed Shah Khilji namely Mehmood came to him and informed that Ahmed Shah alias Gulai returned back to their house in injured condition and told to them that 3/4 persons attacked on him. According to P.W. Khudai Naiar, he was also informed by Mehmood that they had removed his injured son to the hospital and that his son was injured by means of firing. The witness added that he alongwith Mehmood went to the hospital and found that his son had received a bullet wound below his left ribs and thereafter police came there and recorded his statement which he produced as Exh.P/1-A bearing his signature. The witness further deposed that for two days his son remained hospitalized and on 7-1-1998 in his presence the police recorded statement of his son and at that time according to the witness Haji Abdul Razzak, Haji Abdul Jalil and Muhammad Umar were also present. P.W. Khudai Nazar further stated that his son disclosed in the statement recorded by the police that out of four one of them spoke in Pashto that " I, i,e, Gulai turn your face' and when he turned his face he identified Ismail who had fired on him and a bullet hit him while the remaining bullets did not hit him. According to the witness, his deceased son in his statement further stated that he had identified Ismail son of Juma Khan as the culprit. The witness added that his deceased son made the statement three hours before his death and he died at 1-00 a.m. On night between 7th and 8th.
5. ' Bor Muhammad son of Mandai Police Constable (P.W.2)
6. ' According to him on 5-1-1998 he reached the place of Wardat being the crossing of Tareen and Kachra Road and in the street at the brink of drain three empties of pistol were found lying and the same were secured by A.S.-I. Khan Gul vide memo. Prepared by the Police Officer and sealed into a parcel. The witness produced the memo. As Exh.P/2-A and identified the parcel prepared in his presence which he produced as Article-I containing three empties which he produced as articles.
7. The witness further stated that on 10-1-1998 he was present in the office of S.H.O. And Haji Khudai Nazar produced a pair of bloodstained clothes to A.S.-I. Khan Gul by stating that the same belonged to his son Ahmed Shah Gulai accordingly; the blood-stained clothes were taken into possession by the A.S.-I. And sealed into a parcel prepared in his presence. He produced the memo. Of clothes as Exh.P/2-A and the parcel which contained the blood-stained shirt and Shalwar produced by the witness as articles.
8. ' Maneol son of Nazar Muhammad R/o Chaman (P.W.3)
9. ' He deposed that on 5th day of Ramzan he alongwith Mir Hassan (P.W.6) reached Quetta from Chaman and they both left to the house of a friend of Mir Hassan from Taro Chowk and heard fire reports. According to the witness at about 10/10-15 p.m., he added that in front of them there was a firing and they saw 2/3 persons standing in front of them who went into a narrow lane and accused present in Court remained at spot who had a pistol in his hand and they proceeded ahead and the accused also entered into the aforesaid lane. The witness further stated that the injured went towards Tareen Road and; they stayed for a night in the house of and in the morning, when they left the house, people told to them that in the evening at 10/10:15 p.m. On the same place a person was fired upon and; according to the witness, thereafter they went to the hospital and he told to the father of the injured that at the time of occurrence they were present at the place of Wardat and in the evening the father of the injured, according to the witness took them to the police station and they made statement whereafter they left for Chaman. This witness stated that after 7/8 days they again went to the police station at about 12-00 noon/1-00 p.m. And sat outside and in the meantime a Magistrate came to the police station and he was asked whether he can identify the accused from amongst the 8/9 persons standing in a queue to which he answered in affirmative. The witness stated that he identified the accused and also by pointing out towards the accused in Court identified him. According. To the witness for the second time he again identified the accused and similarly.Also for the third time he identified the accused in identification parade.
10. ' Muhammad Aslam son of Muhammad Yusuf E.A.C.-VIII/M.F.C., Quetta (P.W.4)
11. ' According to him on 14-1-1998 on the written request of the Investigating Officer of Police Station Pashtoonabad under his supervision identification parade of accused Muhammad Ismail was carried out in the Police Station Pashtoonabad. He stated that eight persons having similar features as that of accused Muhammad Ismail were arranged for carrying out the identification parade and the witness Mangol was kept outside the police station and before identification parade accused was allowed to stand in the queue of eight persons, wherever he liked and after that, witness Mangol was called on to identify 'accused who identified, the accused Muhammad Ismail from amongst the persons standing in the queue and twice again the process was repeated.
12. According to the witness, thrice the witness identified accused Muhammad Ismail whereafter identification memo. Was prepared which he produced as Exh.P/4-A bearing his signature. He also identified the accused in Court.
13. ' Dr. Muhammad Murad Marri, Police Surgeon, Sandeman (Provincial Hospital, Quetta (P.W.5)
14. ' According to the Medical Officer on 5-11998 at about 10-55 p.m. S.H.O. Muhammad Arif of Police Station Gawalmandi brought Ahmed Shah alias Gul son of Haji Khudai Nazar to the Casualty Department of the hospital with the history of gunshot wound. He examined the injured and found the following injuries on his person:-- "Lacerated wound (entrance wound) oval in shape size 2 c.m. x 1 c.m. Cavity deep on lateral part of right side of abdomen. Tattooing on inner margins. No exit found. Patient referred to Surgical Unit-II after X-rays of abdomen from Casualty Department. Patient was admitted in M.S.U.-II on 5-1-1998 as case of gunshot abdomen. Operation = ' Laproctmy (repair of liver laceration + Nephrectomy right side.
15. ' Surgeon = Dr.Abdul Qayyum, Associate Prof. (Assisted-Dr.Shafiq + Dr.Iqbal + Dr.Lal anasthesit Dr.Sajan + Dr.Shah Muhammad.
16. ' Ward Notes: According to expiry note: on 8-1-1998 his condition became serious. Doctor on duty provided life saving treatment but patient expired at 1-05 a.m. On 8-1-1998.
17. ' Cause of death: Probable cause is injury to abdominal viscera caused by fire-arm.
18. ' Mir Hassan son of Nazar Muhammad R/o Chaman (P.W.6)
19. ' He deposed that on 5th of Ramzan, also being the 5th of the month, murder was committed and at 5-15 p.m. He left for Quetta from Chaman and reached Quetta at 7/7-30 p.m. Alongwith Mangol.
20. He further stated that they were coming from old Adda and after crossing of Taro Chowk at 10/10- 15 p.m. They came towards Tareen Chowk where he saw 3/4 persons who allegedly made firing out of whom according to the witness, he identified one person and the remaining persons went into the narrow lane. He added that he had identified the person who made firing and he is the accused, present in Court. P.W. Mir Hassan further stated that the bullet fired by accused, hit the deceased who tried to stand on and fell down. The witness explained in his examination-in-chief that there was a shop with an electric bulb on, and also there was a street-light in which he identified the accused.
21. ' Muhammad Umar son of Sadar Din R/o Chaman (P.W.7)
22. ' According to him he visited the patient in the hospital when police reached there and Ahmed Shah made statement to the police that murderous assault was made on him by Muhammad Ismail son of Juma Khan of Pashtoonabad with a pistol, The witness added that such statement was made in his presence and also he affixed his thumb-impression on a paper which he isclentified and produced the same as Exh.PM-A. Dying declaration of the accused .Exh.P/7-A recorded in vernacular (Urdu) is reproduced hereinbelow:-- {{URDU TEXT}} ' Khan Gul son of. Hail. Mir Gul S . I . P: /Investigating Officer (P.W . 8)
23. ' On 5-1-1998 he was appointed as Investigating Officer in the case and according to him during investigation lie prepared sketch map of Wardat and inventories and also recorded statement of P.
24. Ws. And arranged for the identification parade of the accused. The witness stated that on 7-1-1998 statement of the injured was recorded and on 30-1-1998 under the orders of the police department, investigation of the case was entrusted to S.-I./S.H.O. He further deposed that challan was prepared by the S.H.O. He produced the sketch of Wardat and the memos. Prepared by him respectively as Exh.P/8-A, Exh.P/2-A and Exh.P/2-B. He also produced dying declaration of the accused recorded in his presence, bearing his signature as Exh.P/7-A and the challan as Exh P/8-B .
4. After close of the prosecution case the appellant was examined by the learned trial Court under section 342, Cr.P.C. Wherein he denied the case of the prosecution in into in the light of incriminating pieces of evidence. The accused did not opt to record his statement on oath within the purview of section 340(2), Cr.P.C. The learned trial Court after close of the parties case vide impugned judgment awarded death penalty to the appellant under section 302(b), P.P.C. And also forwarded reference for confirmation of death sentence, to this Court.
5. We have heard the learned counsel for the appellant and Mr.Ghulam Mustafa Mengal, the learned Assistant Advocate-General besides Mr. Muhammad Aslam Chishti who appeared for the complainant (father of the deceased). Mr. Akhtar Zaman contended that:--
(a) The ocular cited witness i,e, P.W. Mangol does not appear to be a natural witness of the alleged incident who also made material improvements in his evidence, besides his version coupled with his stated conduct cannot be believed who also appear to be an interested witness hence no reliance can be placed on his evidence. Also it was contended by the learned counsel that statement of this witness was recorded after one day under section 161, Cr.P.C. And no explanation in such behalf was furnished by the witness and even by the Investigating Officer. The learned counsel strenuously argued that in the given facts and circumstances of the case it abundantly apparent that he is a planted witness and the other cited ocular witness P.W. Mir Hassan has been disbelieved by the trial Court hence the prosecution case hinges on the remaining evidence.
(b) For the abovementioned reasons the evidence of P.W. Mangol who alleged to have identified the accused in the identification parade needs be scrutinised with great care and caution, and; the identification parade is worthless for the reasons that no description of the features of the accused was earlier mentioned by P.W. Mangol in his statement recorded under section 161, Cr.P.C. And all the P.Ws. i,e, Mangol, Muhammad Aslam E.A.C.-VIII and the Investigating Officer contradict to each other on material particulars in respect of the conduct of the identification parade, and; even if to be believed that P.W. Mangol .Identified accused in the identification parade yet; for want of necessary description about the context in which the accused was allegedly identified by the witness, identification parade becomes inconsequential and the rule including the purpose for which an identification is held was completely frustrated due to the manner in which the same was statedly conducted.
(c) No implicit reliance on the attributed dying declaration of the deceased statedly recorded on 7-1-1998 can be placed in the circumstances of the case and the entire facts relevant in the matter sufficiently indicate that the same cannot be believed rather; appears to have been fakely prepared/subsequently introduced in order to cover-up the lapses in the prosecution evidence, inasmuch as; Exh.P/2-B, was not initially filed and was subsequently managed and produced by the complainant's counsel through miscellaneous application and even the author of the alleged dying declaration was not produced by the prosecution in evidence. According to Mr. Akhtar Zaman in the overall facts and circumstances of the case the attributed 'Dying Declaration' of the deceased appears to be highly improbable and unconvincing in view of evidence of the prosecution witnesses on the point who made substantial improvements besides is contradictory on material particulars. P.W. Muhammad Umar also appears to be as an interested witness whose presence at the relevant time is also doubtful and thirdly; in view of the peculiar facts and circumstances of the case it was obligatory for the prosecution to have had produced medical evidence that at the relevant time deceased was in his senses and was capable to make statement.
(d) The prosecution has failed to establish the charge against the accused beyond shadow of any reasonable doubt but the learned trial Court on wrong appraisal of evidence and by omitting to consider material aspects of the prosecution evidence improperly and illegally convicted the appellant, although; was entitled to earn acquittal. Mr. Akhtar Zaman in support of his contentions placed reliance on the reported judgments i,e, 1993 SCM R 585; 1992 SCMR 2008; 1987 PSC 717; 1997 SCM R 449; 1978 SCM R 38; 1995 SCMR 550; 1996 PCr.L.J. 130; 1999 SCM R 1138 and 1999 SCM R 52. The learned counsel in view of his contentions and arguments submitted that the murder reference is liable to be rejected and the appellant be acquitted of the charge.
6. Mr.Ghulam Mustafa Mengal, learned Assistant Advocate-General argued that the prosecution successfully established the charge against the accused through ocular witness believed by the learned trial Court; supported by the identification parade, dying declaration, medical evidence and recovery of empties from the place of Wardat and on all material particulars, evidence of P.Ws.
25. Is consistent and credible. According to the learned Assistant A.-G. Presence of P.W. Mangol and P.W. Muhammad Umar respectively at the place of Wardat and at the time of making of the statement of deceased in hospital is quite natural and the evidence of P.W. Muhammad Umar cannot be brushed aside lightly because of his being related to the deceased.
7. Mr.Muhammad Aslam Chishti, contended that the evidence of P.W. Mangol does not suffer from any material inconsistency and is supported by the recovery of empties from the place of Wardat, medical evidence, dying declaration which if to be believed also discloses about the motive of crime besides securing of blood-stained shirt of deceased containing bullet hole further lends support to the prosecution case. According to Mr. Muhammad Aslam Chishti, P.W. Mangol also identified the accused during the identification parade which could not be dislodged by the defence hence the learned trial Court appropriately believed this piece of evidence as well. The learned counsel argued that the deceased only a few hours after making statement expired in the hospital and there was no reason for him to substitute an innocent person for the real culprit and mere relationship of P.W. Muhammad Umar would not be enough per se to discard his evidence.
26. The learned counsel strenuously argued that P.W. Mangol was not even the relative of the deceased and his presence at the place of Wardat with P.W. Mir Hassan was quite natural and identification of the accused by the said witness stands substantially corroborated and proved even independently by P.W. Muhammad Aslam, Magistrate 1st Class who is not related to either of the parties and is an independent and impartial person. The learned counsel further argued that a particular conduct of a person in the given situation, varies from person to person and, therefore, P.W. Mangol cannot be treated or termed to be a planted witness, whose evidence also does not suffer from any material contradiction or omission. The 'evidence of the prosecution, according to the learned counsel has been appraised in its true perspective by the learned trial Court. To supplement his contentions that the prosecution evidence does not suffer from any material contradiction or omission, he cited reported judgment in the case of State v. Zulfiqar Ali Bhutto reported in PLD 1978 Lah.
27. 532.
8. We have considered the contentions of the parties learned counsel and the learned Assistant A.- G. In the light of the record of the case which has been gone through carefully including the impugned judgment and have also re-appraised the entire evidence independently as well. The case-law cited by the learned counsel for the parties has also been gone through and considered.
28. The case of the prosecution comprises of:--
(i) Circumstantial evidence i,e, medical evidence, recovery of empties, site plan and identification parade.
(ii) Ocular account.
(iii) Dying declaration.
29. ' F.I.R. Was registered pursuant to the Fard-eBayan Exh.P/1-A of P.W. Haji Khudai Nazar (father of the deceased) who disclosed that he was informed by one Mehmood son of Ahmed Shah Khilji that his son Ahmed Shah alias Gulai has already been removed to the Civil Hospital, Quetta for treatment, so he immediately reached the Civil Hospital and found his son lying unconscious having suffered a bullet wound towards his right ribs. P.W. Khudai Nazar in his deposition stated that he alongwith Mehmood reached hospital on receipt of information as given to him by said Mehmood and found his son having suffered one bullet wound below his right rib and thereafter, police reached there and recorded his statement which he produced as Exh.P/l-A. In order to prove violent death of deceased, the prosecution has produced Dr.Muhammad Murad Marri as P.W.5 and according to him on 15-1-1999 at 10-55 p.m. Ahmed Shah alias Gul son of Haji Khudai Nazar was brought to the Casualty Department of Civil Hospital, Quetta by S.H.O./Police Station Gawalmandi with this history of a gun shot wound and he examined the injured and found that he had suffered a lacerated entrance wound oval in shape size 2-1/2 x 1/2 cavity deep on the lateral part of right side of the abdomen and the patient was referred by him to the Surgical Unit No,II after taking X-rays of the abdomen of the injured. The Medical Officer opined that the patient was referred to Male Surgical Unit as a case of gunshot wound of abdomen and according to him as per operation notes leproctomy was carried out by the Surgeon and as per ward notes, the injured expired on 8-1-1998 as his condition had become serious and the duty doctor provided to him life saving treatment.
30. Probable cause of death according to the Medical Officer was the injury to the abdominal viscera caused by fire-arm.
31. ' From the medical evidence it transpires abundantly that deceased Ahmed Shah was brought to the hospital in injured condition with the history of gunshot wound and was examined by Dr.Muhammad Murad Marri and found that he had suffered a gun shot entrance wound cavity deep on the lateral part of right side of his abdomen and in order to repair the internal damage leproctomy was carried out by Surgeon Dr.Abdul Qayyum and on third day, condition of the injured became precarious, to whom life saving treatment was provided by the duty doctor in Male Surgical Unit No,II but he could not survive and expired at 1-05 a.m. On 8-1-1998. According to the medical officer the probable cause of the death of the deceased was due to the fire-arm injury suffered by the deceased on his abdominal viscera. This witness was cross-examined by the defence, but his evidence remained firm and consistent and thus; in our considered view the prosecution successfully established that the deceased died on account of the gunshot wound suffered by him on vital parts of his intra abdominal organs which in the ordinary course was sufficient to cause death and, therefore, the learned trial Court appropriately concluded that the deceased met with a violent death. OCULAR ACCOUNT
9. P.Ws. Mangol and Mir Hassan are the cited ocular witnesses produced by the prosecution, out of whom evidence of Mir Hassan has been discarded by the learned trial Court whereas; P.W. Mangol has been believed who deposed that on 5th day of 'Ramzan' he along with Mir Hassan (P.W.6) reached Quetta from Chaman and they both left to the house of a friend of Mir Hassan and heard fire reports, according to the witness at about 10-00/10-15 a.m. In front of them there was a firing and they saw 2/3 persons standing in front of them, who entered into a narrow lane and the accused in Court remained at the spot, who had a pistol in his hand and they (P.Ws. Mangol and Mir Hassan) proceeded ahead while the accused also entered into the aforesaid lane. He explained that the injured went towards Tareen Road, and they stayed for a night in the house of a friend and when in the morning they left the house, people told to them that in the evening at 10- 00/10-15 on the same place a person was fired upon where after, they went to the hospital and he informed to the father of the injured that at the time of incident they were present at the place of 'Wardat' and in the evening father of the injured took them to the police station and they made statement where after they left for Chaman.
32. ' According to P.W. Mir Hassan on 5th of 'Ramzan' at 5-15 p.m. He along with P.W. Mangol left for Quetta from Chaman and reached Quetta at 7-00/7-30 p.m. He explained that they were coming from old Adda and after crossing 'Taro Chauk' at 10-00/10-15 they came towards 'Tareen Chauk', where he saw 3/4 persons, who allegedly made firing, out of whom he allegedly identified one person, whereas; the remaining persons entered into a narrow lane. The witness further added that he had identified the person, who had made firing, and; was the accused present in Court. The witness further explained that the bullet fired by the accused hit the deceased, who tried to get up but fell down and that there was a street light and a shop nearby with an electric bulb on, in which he identified the accused.
33. ' Bare perusal of the evidence of P.W. Mangol reveals that his version as per his own showing appears to be hardly convincing as well as against the normal human conduct for the reason that if he be believed that he had seen' the victim being fired upon by the accused at the relevant time and also allegedly noticed that 2/3 _persons standing in front of them went into arrow lane and the accused present hi Curt still remained at the spot with a pistol in his hand; who also thereafter entered the said laife, but; he along with P.W. Mir Hassan left for,the house of a friend and stayed.
34. There -for- a night and when in the morning' they, left the house, on being informed by the people that on the same place a person was'fired upon, they decided to go to the hospital and disclosed about the past event to the rather-of-the injured that at the time of occurrence they were present at the place of Wardat, supposing it were to be believed that these P.Ws. Had in fact, seen the occurrence then in the given situation at least-they should have either talked to the injured or at least to have managed to remove the injured to hospital for medical aid or at least to have informed someone about the alleged occurrence, but they chose to go ahead in order to stay for a night in the house of a friend. It is also astonishing to note that on the next morning when they statedly left the house of their friend and reached the spot where the incident had allegedly taken place in their presence, were informed by the people about the firing incident, they abruptly decided to go straight to the Hospital and to narrate about their having witnessed the incident to the father of the injured, but the reason which according to the witness motivated to the witness to go to the hospital on next day appears to be that they were told about the firing incident by the people, although; according to his own showing he and P.W. Mir. Hassan had by themselves witnessed the incident, but did not act as aforesaid nor can it be expected from an ordinary person to conduct himself as such.
35. ' Secondly; it is very strange to note that as to how they came to know that the injured was still hospitalised and that too in the Civil Hospital and had not died and thirdly; since the witness did not go even near to the victim of the offence therefore, it was hardly possible for him to assume that the bullet caused any injury on any external part of the body of the victim such as on legs, arm or even had caused any minor injury or otherwise, so as to take it for granted that the victim must have had been under treatment in the Civil Hospital and therefore, they must necessarily to go to the hospital first and thereafter to the police station for making statement in order to disclose about the truth, and; had it been so that the witnesses wanted to disclose about the stated witnessed event, instead of going to the hospital they should have directly gone to the police station for disclosing about the occurrence, but; they did not choose to do so. From the evidence of these P.Ws. It appears that neither deceased was known to them nor they had any acquaintance with the father of the victim, but this witness stated that he along with P.W. Mir Hassan no sooner was informed by the people about the 'Wardat', went to the hospital and he disclosed to the father of the injured about their presence on the place of Wardat; creates serious doubt about the truthfulness of the witnesses as it reflects that either the father of the deceased was known to them earlier and they had some acquaintance or relations with him therefore, they on 2nd day decided to approach to him or that they had in fact not witnessed the event and subsequently; on account of having connections with the deceased or his father envolved a strategy to become witness of the 'Wardat' by justifying their arrival on the spot and about the reasons that motivated them to disclose about the event to the father of the deceased on the next date, but all the stated facts deposed by the witness and about the subsequent acts on their part even at their face value seem to be highly doubtful, unconvincing and improbable as well as against the normal conduct of a person. Moreover; on scrutiny of evidence of the ocular witnesses it appears that in the morning they proceeded to the hospital and disclosed about the alleged event to the father of the injured and on the same day in the evening made statement to the police officer under section 161, Cr.P.C.
36. Most probably after going through deliberations with P.W. Khudai Nazar, therefore, for such reason as well; implicit reliance on their testimony cannot be placed, inasmuch as; their presence also on the place of Wardat seems to be doubtful and secondly; even if it be believed that they happened to pass through the place of Wardat at the relevant time, in the given circumstances at best indicate to suggest that they happen-_ to be chance witnesses and therefore, their testimony require strict scrutiny and caution. As herein fore observed, the disclosed conduct of the ocular witnesses and their presence at the relevant time on place of Wardat being highly unnatural and contra to the ordinary conduct of a prudent person leaves no reason to believe them unless corroborated by any independent evidence which is lacking. Also it is noteworthy that P.W. Mangol on cross-examination stated that he never before visited the house of a friend where he stayed for a night on reaching to Quetta nor even visited Pashtoonabad and that about the name of the 'chauk' and 'road' he was told by the people. He admitted that for last 25 years he was acquainted with P.W. Khudai Nazar (father of the deceased) and thus; these answers given by the witness while in the witness-box, would further go to show that he had suppressed real facts thus; no implicit reliance can as well be placed on his testimony and secondly; had he been present at the place of Wardat and was acquainted with the P.W. Khudai Nazar for the last about 25 years, in the ordinary course he must have had been familiar to his son, who was allegedly subjected to firing by the accused therefore, he instead of conducting himself in helping the injured or reporting the matter would not have gone to stay for a night in the house of a friend and further the fact of his being acquainted with the father of the injured since long suggests that had he in fact witnessed the occurrence he would have necessarily either helped the victim in removing him to the hospital but he did not follow either of the aforesaid courses which leads an ordinary prudent person to believe that he was not present at the place of 'Wardat' at the relevant time, else he must have had acted in either of the ways. Also the witness was confronted to his earlier statement recorded under section 161, Cr.P.C. And it has been noted by the learned trial Court that he did not state that the accused remained standing on the spot with a pistol in his hand and that when in the morning they left the house people told to them at the place of 'Wardat' a person was hit by fi ring in the preceding night at 10-15 p.m. P.W. Mir Hassan stated that 3/4 persons made firing and the remaining persons entered into a narrow lane and he recognised the accused, who made firing.
37. The witness also added that a bullet hit the deceased and there was a shop with its electricity on, including street-light in which he identified the accused. He also admitted on cross-examination that father of the victim was known to him for the last about 20125 years and when confronted with his statement recorded under section 161, Cr.P.C., it has been noted by the trial Court that he did not mention that out of 3/4 persons, who made firing, he recognised one of them. Evidence of this witness as well for the foregoing reasons and discussion, is not capable to any reliance in absence of independent corroboration, lacking in the prosecution evidence, hence; we are of the considered view that the learned trial Court rightly discarded the evidence of P.W. Mir Hassan However; on improper and wrong appraisal of evidence P.W. Mangol was believed by the trial Court by ignoring all the material aspects of his evidence requiring due consideration, consequently; we find ourselves unable to place any reliance on the evidence of P.W. Mangol which is liable to be discarded. DYING DECLARATION
10. Another piece of the prosecution evidence believed by the learned trial Court is the 'dying declaration' of the deceased and in order to prove the same, the prosecution produced P.W.
38. Muhammad Umer, P.W. Khuda-e-Nazar and P.W. Khan Gul S.I.P./Investigating Officer. According to P.W. Muhammad Umer he was sitting in the hospital with the patient when police came there and Ahmed Shah gave statement to the effect that he was attacked/assaulted by means of pistol by Muhammad Ismail son of Jumma Khan of Pashtoonabad. The witness reiterated that in his presence, statement was given by the injured and the police got affixed his thumb-impression on a paper which he identified and produced the document (Dying Declaration) as Exh.P/7-A. Perusal of Exh.P/7-A reveals that the same is dated 7-1-1998 and; according to the medical evidence of P.W. Dr. Muhammad Murad Marri injured died on 8-1-1998 at 1-05 p.m. On cross-examination P.W.
39. Muhammad Umer stated that on 6th he received information about Ahmed Shah having suffered injuries and on the same day at about 5-45 p.m. He reached the hospital and at that time father of the deceased and other Mohalla people were sitting with the injured. The witness further stated that when he visited the injured who was unconscious and on the next day when he paid 2nd visit to the hospital, the injured was in his senses and according to the witness on 7th he came to the hospital at 7-30 p.m. And besides him brother of the witness namely Abdul Karim and one Haji Abdul Razak were also present there. P.W. Muhammad Umer also explained in the cross- examination part of his statement that he besides the Mohallah people also asked about the well- being from the injured and at the time when police arrived in the ward neither doctor nor any nurse was present. The witness further responded that police came to the hospital at about 10-00/1015 p.m. And at the same time statement of the injured was recorded and hereafter, his statement was not recorded by the police. The witness admitted that Ahmed Shah was his sister's son. P.W. Khan Gul, S.I.P./Investigating Officer simply produced the dying declaration of the deceased bearing his signature as Exh.P/7-A by stating that on 7-1-1998 statement of injured was recorded. This witness on cross-examination stated that investigation of the case was entrusted to him at 10-00 p.m. And he left for the hospital, where he found Ahmed Shah as unconscious and thereafter visited the place of incident and; on 7th, he went to the hospital at about 10-15 p.m. Where P.Ws. Mangol and Mir Hassan were present. The witness explained that Doctor was also present but he did not obtain any verification from the doctor about the fitness of the injured to give statement or otherwise, nor he obtained signature of the doctor on Exh.P/7-A. He admitted that Exh.P/7-A was not reduced into writing by him, rather; is in the handwriting of Abdul Raul Barech, S.H.O., and; that stickers on Exh.P/7-A (cross-marked by the Court) were not pasted by him. He also admitted that he did not record statement of P.W. Muhammad Umer under section 161, Cr.P.C. And denied that the alleged 'dying declaration' was prepared after 10-1-1998 in consultation with P.W. Khudai Nazar. Haji Khudai Nazar (p.w.1), father of the deceased deposed that on 7-1-1998 in his presence and that of Haji Abdul Razaq, Haji Abdul Jalil and Muhammad Umer his son, (injured) Ahmed Shah Gulai gave statement to the police three hours before his death and on the night between 7th and 8th his son died at 1-00 a.m. P.W. Haji Khudai Nazar further stated that his said son stated to the police that out of those four persons, one had stated in Pushto (Gullai turn your face) where after, according to the witness, his son further disclosed to the police that when he turned his face, he identified accused Ismail who fired at him and a bullet hit him, while the remaining bullets were missed and his son, according to the witness, his son in his statement to the police disclosed that he identified Ismail son of Jumma Khan. On cross-examination, P.W. Haji Khudai Nazar stated that on 6th his son was in senses and he asked about the well being from his son. The witness further responded that he had not seen as to whether any doctor or nurse was present at the moment when the statement of his son was being recorded. P.W. Khudai Nazar when confronted to his earlier statement (Exh.P/1-A), it has been noted by the trial Court that he had maintained that he was told by Mehmood that injured had disclosed to him (Mehmood) that 3/4 persons had injured Ahmed Shah alias Gulai by means of pistol firing. There is no medical evidence available on record to conclude as to whether the injured since his arrival to the hospital on 5-1-1998 until his attributed statement recorded by the police officer was in senses or after intervals he underwent unconsciousness or regained senses nor even the treatment chart of the injured was produced in evidence by the prosecution or by the defence even. Also the Medical Officer attending the injured in the ward was not produced by the prosecution nor any request in such behalf was made by any of the parties, inasmuch as no question from P.W. Dr. Muhammad Murad Marri was asked by the defence about the state of senses of the injured. Also the prosecution has not produced any verification of the duty Doctor about the condition of the injured or of his capability to make statement, hence; in such circumstances evidence of P.Ws. Khudai Nazar, Muhammad Umer and Gul Khan, needs be appraised with great care and caution pertaining to Exh.P/7-A.
40. ' P.W. Khudai Nazar in the cross-examination part of his statement admitted that on 6th his son was in senses and he had enquired about his health/well-being; and if it be so then one has to conclude reasonably that the injured must have had disclosed about the incident and some thing about the identity of the culprits, and thus; it cannot be safely assumed that had the injured recognised the accused as the assailant, he must have had told to his father (P.W. Khudai Nazar) who therefore, to have had immediately disclosed about such fact to the police, but it appears that during such conversation on 6th nothing was disclosed by the injured to his father otherwise, there was no reason for P.W. Khudai Nazar to have had withheld nomination of accused, coming to his knowledge for the first time through the mouth of his own son. In the Fard-e-Bayan (Exh.P/1-A) P.W.
41. Khudai. Nazar has stated that Mehmood son of Ahmed Shah Khilji informed to him in his house that Ahmed Shah alias Gullai after leaving the children to their house left back, but after some time he returned in injured condition to their house and disclosed that 3/4 unknown persons injured him by means of pistol/revolver firing at the crossing of Kachra and Tareen Road, who further disclosed to him that his father (Mehmood's father) namely Ahmed Shah Khilji has removed his son to Civil Hospital for treatment and thereafter, as has been mentioned in the Fard-e-Bayan, P.W. Khudai Nazar immediately rushed to the Civit Hospital and found his son Ahmed Shah alias Gullai lying unconscious. Whereas; according to P.W. Muhammad Umer on 6th after receipt of information about Ahmed Shah having suffered injuries, he reached to the hospital at 6-45 p.m. And found Ahmed as unconscious and on the next day when he visited the injured in the hospital at 7-30 p.m.
42. He found Ahmed Shah in senses. P.W. Muhammad Umer stated that at that time he asked about well being from the injured and also the Mohallah people enquired about the well being from the injured, but none of the Mohallah people has been produced by the prosecution nor even Abdul Karim (father of P.W. Muhammad Umer) and Haji Abdul Razak has been produced by the prosecution, although; these two persons according to P.W. Haji Khudai Nazar happen to be his relatives. It appears from Exh.P/1-A that on 5-1-1998 when P.W. Khudai Nazar reached the hospital on receipt of information, he found his son lying unconscious in the hospital and according to his testimony on 6-1-1998 his son was in senses, but according to P.W. Muhammad Umer when he visited the hospital he found injured Ahmed Shah unconscious, but according to this witness on the next date the injured was in senses. Note recorded by the Police Officer/S.H.O., Police Station Pashtoonabad below the Fard-e-Bayan also reveals that when he along with Khan Gul, S.-I. (P.W.8)
43. Investigating Officer reached the Casualty Department of the Civil Hospital, Quetta he found injured Ahmad Shah alias Gulai in unconscious condition and statement of his father was recorded. From these pieces of oral evidence it abundantly appears that on 5-1-1998 injured was unconscious in the hospital, whereas, the evidence of P.Ws. Khuda-e-Nazar and Muhammad Umar about the condition of the injured as it stood on 6-1-1998 is conflicting and contradictory, while according to P.W. Khan Gul he did not visit hospital on 6-1-1998. It appears from the evidence of P.W. Muhammad Umar that on 7-1-1998 at about 7-30 p.m. For the second time he came to the hospital alongwith his brother Abdul Karim and Haji Abdul Razzaq, where they found father of injured present there, who was asked to leave for his house as they had come to attend the injured and the witness further explained that when they reached hospital, police was not present nor any doctor or nurse was present and; at about 10-00/10-30 p.m. Police arrived there and recorded statement of the injured. If the version of P.W.7 Muhammad Umar is to be believed that when they visited the injured on 7-1-1998 at about 7-30 p.m. Father of the injured left for his house then the evidence of P.W. Khuda-e-Nazar has to be excluded that his son in his presence on 7-1-1998 gave statement to the police in hospital and in case P.W. Khuda-e-Nazar is to be believed on the point, one has to conclude that P.W. Muhammad Umar did not speak truth because according to him the father of the injured after their arrival left for his home.
44. ' P.W. Muhammad Umar about the attributed statement of the injured stated that Ahmad Shah disclosed to the police that Muhammad Ismail son of Jumma Khan of Pashtoonabad assaulted/attacked by means of pistol, but he did not mention about any details of the attributed statement of the deceased. According to P.W. Muhammad Umar when he along with his brother visited the hospital, he found the injured in his senses and it is noteworthy that as per his evidence he came to the hospital at 7-30 p.m., whereas, the attributed statement of the injured was recordedat 10-00/10-15 p.m. And prior to that according to P.W. Muhammad Umar he had already enquired about the well being from the injured ( j to) but; it is very strange to note that during the stated conversation, the injured did not disclose about the name or identification of the accused to him, though he happened to be his maternal uncle. It is also important to note that all of a sudden on arrival of the Police Officers abruptly the injured for the first time made statement to the Police Officer (S.H.O., Abdul Rauf Bareach, not produced) disclosing about the details of the incident and about the name and parentage of the accused, who allegedly injured him by means of firing wherein even the motive of the crime has also been allegedly described in detail. About the disclosed motive as contained in Exh.P/7-A none of the aforesaid P.Ws. Has uttered a word even and also the evidence of these witnesses about the presence of the duty doctor or the nurse at the time of recording of the statement of the injured is inconsistent and; ordinarily it can hardly be believed that no duty doctor or nurse was present in the ward at the relevant time. P.W. Khan Gul/Investigating Officer is also not the author of the dying declaration of the deceased, and according to the medical evidence and P.W. Khudai Nazar the deceased died at about 1-00 a.m. i,e, about three hours after making the alleged statement to the police officer namely Abdul Rauf Bareach/S.H.O., who too was not produced by the prosecution. In view of the foregoing discussion of prosecution evidence, we feel inclined to hold that in the peculiar circumstances of the case it was obligatory for the police officer to have had obtained certificate from the Medical Officer of the ward or from the duty doctor about the capability of the injured to give statement or at least the treatment chart primarily indicative of the condition of the patient should have been produced in evidence by the prosecution or in the alternative the Investigating Officer could have easily procured attendance of the duty doctor or nurse to witness the said proceeding or to have obtained their verification on Exh.P/7-A. The Investigating Officer in cross-examination stated that the stickers on Exh.P/7-A were not pasted by him and the same were marked as 'X' by the learned trial Court. In view of the question so put to the witness and answer given by the Investigating Officer we consider it appropriate to deeply examine as to why stickers are available/affixed on Exh.P/7-A. Dying declaration (Exh.P/7-A) appears to have been written with a ball point comparatively on a thin paper and the entire impression of the writing is quite visible on its reverse, therefore, in order to satisfy ourselves as to what for the purpose, the stickers were affixed on the document at the end of the dying declaration; we minutely and carefully concentrated on the impressions appearing on the reverse below the stickers. The entire contents of Exh.P/7-A except the words on which the stickers appear, can be read easily with the help of mirror placed below the impression of the contents of Exh.P/7-A (appearing on the reverse of the document) however; with a bit difficulty the impression of the words appearing below the stickers on the reverse of the document can be read with the mention that the alleged dying declaration was also verified by the doctor, whose signature was also obtained, but these words were subsequently covered by affixing the stickers, inasmuch as the particular place where the date on the document was put, further confirms that the words already written on the document were covered by the stickers; otherwise the same should have been put immediately after the last word/end of the contents of the document and; the place where the date appears on the document looks to be most improper. We feel that as per routine, the words suppressed with stickers about the 'verification of the doctor and inscribing of signature of doctor' was mentioned in Exh.P/7-A because most probably the concerned doctor might have refused to verify about the contents of the dying declaration who also refused to inscribe his signature on Exh.P/7-A therefore, such words were covered by affixing stickers.
45. ' It is astonishing to note that on 11-7-1998 the learned counsel for the complainant for the first time submitted a miscellaneous application in the trial Court mentioning therein that dying declaration of the deceased was recorded, but was not sent to the Court with the final report and, therefore, direction of the Court was sought to be made to S.H.O. To produce the same/place it on judicial file presently available on the police file. This application was seriously contested by the defence by filing rejoinder and the learned trial Court after hearing the parties allowed the application filed by the complainant's learned counsel, subsequently; on 14-9-1998 the complainant's learned counsel submitted another miscellaneous application in the trial Court whereby the attributed dying declaration of the deceased was produced and request was made that the same may be allowed to be proved through the witnesses. This application was also contested by the accused by means of reply dated 22-9-1998 and ultimately, the learned trial Court granted the request and P.Ws. Were examined. The accused feeling himself aggrieved of the order of trial Court dated 25-8-1998 allowing the application of the complainant for placing on record the dying declaration of the deceased and proving the same through the P.Ws. By filing Criminal Revision No,4 of 1998 and the honourable Single Judge of this Court vide judgment dated 3-11-1998 dismissed the criminal revision with the observation that the dying declaration cannot be excluded at the present stage of the proceedings, whereas; its admissibility, authenticity, genuineness, legal implication, if any, and evidentiary value shall be determined on the basis of evidence being recorded by the trial Court. It is also pertinent to note that supplementary statement of P.Ws. Khuda-e-Nazar and Muhammad Umar was also not recorded by the Investigating Officer about the alleged statement of the injured as having been recorded in their presence by the S.H.O. (Abdul Rauf Bareach). On account of the lapses, inconsistencies, improbabilities and inherent doubts existing in the prosecution evidence of the P.Ws., the genuineness and truthfulness of attributed dying declaration of the deceased for the foregoing reasons is since seriously questionable, therefore, no reliance can be placed on such piece of prosecution evidence, consequently; the same is liable to be discarded, and; in our considered view the learned trial Court wrongly and illegally appraised the evidence on the point and drew conclusion favourable to the prosecution within a very limited subjective compass by ignoring all the relevant material aspects from consideration, hence, the findings of the trial Court for believing the dying declaration of the deceased cannot sustain. IDENTIFICATION PARADE OF THE ACCUSED
11. In order to substantiate the accusation, the prosecution has also produced P.Ws. Muhammad Aslam EAC/VIII/MFC, Mangol and Khan Gul, S.I.P./Investigating Officer to prove that the accused was identified by the ocular witness (P.W. Mangol) in the identification parade conducted under the supervision of Magistrate First Class. P.W. Muhammad Aslam EAC-VIII/MFC deposed that on 14- 11998 pursuant to the written report of the Investigating Officer of the case, identification parade of accused Muhammad Ismail was conducted in the Police Station, Pashtoonabad under his supervision and in the queue eight persons having similar features to that of accused were arranged besides accused Muhammad Ismail who was also present in the queue and the proposed identifier (P.W. Mangol) was kept outside the police station whereafter, P.W. Mangol was called on for identification, who from amongst the persons present in the queue picked up and identified the accused and twice again the same process was repeated and the witness correctly identified accused Muhammad Ismail and after such exercise, identification memo. Was prepared which he produced as Exh. P/4-A bearing his signature. The Magistrate also identified the accused in Court as the person identified by P.W.Mangol in the identification parade.
46. ' According to Khan Mangol S.-I./ Investigating Officer on 5-1-1998 investigation of the case was entrusted to him, during the course whereof he prepared sketch of Wardat and memos. And also arranged for identification parade of the accused. Version of the identifier ocular witness, P.W.
47. Mangol has been mentioned in para. 3 supra and his evidence as ocular witness of Wardat has been discussed here in fore in para.
9. He alleged that on 5th of Ramzan he along with P.W. Mir Hassan were on their way to the house of their friend and when they were ahead of Taro Chowk it was a 10/10-15 p.m. And there was a firing in front of them and he saw that 2/3 persons went into a narrow lane and accused present in Court remained standing on the spot having a pistol in his hand and they passed on while the accused also entered into the same lane and the injured went towards Tareen Road. According to the witness after 7/8 days he and Mir Hassan again went to the police station at about 12 noon/1- 00 p.m. And he remained sitting outside the police station and in the meantime a Magistrate came to the police station where after he was asked as to whether he can identify accused from amongst 8/9 persons standing in queue, to which he answered in affirmative. The witness added that during the identification parade he picked up and identified the accused present in Court and similarly twice he again identified the accused from amongst the persons standing in queue. The learned trial Court also believed this piece of evidence. In cross-examination P.W. Mangol stated that he cannot mention as how many Pathan and Baloch persons were standing in the queue arranged for identification parade and how many out of them were wearing turbans or caps nor he can state as to how many were handcuffs. The witness admitted that he did not disclose about the features of the accused in his statement recorded under section 161, Cr.P.C. Nor can he disclose about the features of the other persons standing in the queue. This witness when confronted to his earlier statement recorded under section 161, Cr.P.C. Resulted into a note by the Court that he did not mention in his said statement that accused remained standing on the spot with a pistol in his hand. The witness denied that he is not closely related to the father of the deceased.
48. ' P.W. Muhammad Aslam, M.F.C. In cross-examination has disclosed that the dummies were called on from outside the police station and he cannot say as to how many out of them were Balochies and Pathans nor he can mention how many out of them were having turbans or caps on their heads. From the scrutiny of the evidence of these P.Ws. It transpires that P.W. Muhammad Aslam M.F.C. Reached the police station when already P.W. Mango! Was present outside the police station and thereafter the dummies were called on from outside the police station and thus in such view of the matter emerging from the evidence, it can be safely concluded that P.W. Mangol might have seen the dummies and taken into police station where after; the identification parade was arranged and the witness was called on to identify the accused and secondly it is apparent from the evidence of these P.Ws. That the dummies and the accused were not dressed equally such as; with turbans or caps nor they were having similar or identical features because according to P.Ws.
49. Mangol and Muhammad Aslam, as expressed that they cannot state as to how many out of them were Balochies, Pathans or how many out of them were wearing turbans or caps and; thirdly even if it be believed that the accused was correctly picked up by P.W. Mangol by identifying him but he did not mention as to in what context he identified the accused from amongst those persons present in the queue nor any such fact has even been mentioned in Exh.P/4-A (identification parade memo.) hence mere picking up or identifying a person by a witness will remain inconsequential, unless it is shown that the accused was the person to whom he earlier saw or witnessed as having committed any illegal act or crime. Admittedly the accused was riot previously known to identifier who allegedly saw the accused present on ' the place of Wardat having a pistol in his hand and, therefore, in view of such disclosed fact it was obligatory for the Investigating Officer to have had arranged for the dummies beforehand prior to arrival of the identifier to police station but in the instant case as noted hereinabove, the dummies were brought to the police station subsequent to arrival of the witness who was already present outside the police station and therefore, there remained every possibility that the witness had already seen the dummies coming, to the police station and thus; there could not have been any difficulty on his part to pick up a person in queue other than the dummies. Moreover; the object of the identification parade also becomes worthless, in case the dummies and the accused were not equally/uniformly dressed or do not have similarity in features but in the present case it appears that all the persons were differently dressed and also were having different features as well, hence such kind of identification parade loses the importance for the purpose for which the same was held. Also for the reason mentioned in para. No,9 of the judgment P.W. Mangol has been found to be not a truthfulness witness, inasmuch as; his presence at the place of Wardat has also been found to be doubtful, therefore, for the foregoing reasons the prosecution evidence relating to the identification parade, is also liable to be discarded. The learped trial Court in a very mechanical manner without adhering to the principles of appraisal of evidence considered the evidence of the prosecution about identification parade and failed to assess the evidence in its true perspective which consequently render its findings on the point, as not sustainable.
' RECOVERY OF EMPTIES AND SITE PLAN
12. It appears from the note of police proceedings recorded below Fard-e-Bayan of P.W. Haji Khudai Nazar that Khan Gul, S.-I. Was appointed as the Investigating Officer of the case, who on the same date prepared sketch of Wardat produced by him as Exh.P/8-A but it is not ascertainable from the evidence of P.W. Khan Gul and from the contents of Exh.P/8-A that as to on whose instance the details pertaining to the incident including a subsequent event were incorporated in the sketch of Wardat i,e, the exact site of alleged 'Wardat' and about the narrow lane through which the accused stated to have made good their escape after commission of the alleged incident. No blood- stained earth or any other article except empties from the place of Wardat was secured by the Investigating Officer and according to the cited ocular witnesses for the first time on the second day of Wardat i,e, 6-1-1998 in the evening they went to the police station to disclose about the Wardat, out of whom P.W. Mangol stated that the accused subsequently to the incident went into the narrow lane and :they-also passed ahead through the same lane but it is very strange to note that as to how prior to any such disclosure made to the police or by any other witness, it was pointed out in the sketch of Wardat prepared on 5-1-1998 that the accused after commission of the alleged offence made good their escape through the narrow lane nor any explanation has been offered by P.W. Khan Gul about such a fact and the subsequent event incorporated in the sketch.
50. ' As per sketch of Wardat at about 'D' three empties of a pistol were found lying which were taken into possession vide memo. Prepared by P.W.8 and were sealed into a parcel. The prosecution has successfully proved that through evidence of P.W. Bor Muhammad, Police Constable and P.W. Khan Muhammad that during inspection of the place of Wardat three pistol empties were lying near to the place of incident and were taken into possession vide memo. Exh.P/2-A, produced in Court as articles. It appears from the evidence of P.W. Bor Muhammad that on 8-10-1998 P.W. Khudai Nazar father of the deceased produced clothes of the deceased through S.H.O. To P.W.8 Khan Gul, S.-I.
51. Who took the same into possession vide memo. Exh.P/2-B but P.W. Khudai Nazar did not mention that he had handed over the blood-stained clothes of his deceased son to the police officer nor even P.W.' Khan Gul stated specifically that he secured the pistol empties and also took into possession the blood-stained clothes of deceased produced to him by P.W. Khudai Nazar except stating that memos. Exh.P/2-A and Exh.P/2-B were prepared by him. Recovery of pistol empties from the place of Wardat and; the bloodstained clothes of the deceased even if be believed that the same were handed over by the father of the deceased to the police officer at best coupled with the medical evidence indicate that the deceased suffered fire-arms wound as a result whereof his clothes were stained with blood but independently these pieces of evidence cannot warrant into conviction of the accused unless through other pieces of prosecution evidence it were successfully proved by the prosecution beyond shadow of any reasonable doubt that the accused committed the crime but; in the instant case as discussed hereinabove the prosecution miserably failed to bring home the guilt against the accused consequently; we are of the considered view that the conviction of the accused recorded under section 302(b), P.P.C. By the learned trial Court vide impugned judgment being not sustainable is liable to be set aside.
52. Thus; in view of the above discussion and reasons the impugned judgment passed in Sessions Case No,33 of 1998 is set aside and the appellant is acquitted of the charge. The result is that Murder Reference No,5 of 1999 forwarded to this Court for confirmation of the death penalty awarded to the appellant, is rejected. Appellant be set at liberty forthwith, if not detained in connection with any other case.