SARDAR MUHAMMAD RAZA KHAN, J.---Leave to appeal was granted to Adrees son of Muhammad Sarwar, resident of village Dharwa, Police Station Jalalpur Jattan, District Gujrat, to file an appeal against the judgment dated 12-11-1998 of an Hon'ble Division Bench of the Lahore High Court, whereby the death sentence awarded to Adrees was confirmed and his appeal against the judgment dated 20-12-1992 of learned Additional Sessions Judge, Gujrat was dismissed.
2. Yasin son of Ghulam Hussain, his brother Muhammad Yaqoob and their companion Sarwar son of Jhandey Khan used to work in powerlooms at Jalalpur Jattan. On 11-7-1988 at 10-30 p.m. All the three on two bicycles started for their village Thimkey. When they took a turn for Katcha road leading to their village, two persons emerged from the culvert, one armed with .12 bore shotgun and the other with a carbine. They commanded the three companions to stop. Yasin grappeld with the man holding carbine while Muhammad Yaqoob and Sarwar grappled with the man holding shotgun. The man with the shotgun fired at Muhammad Yaqoob which hit him on the chest.
Complainant Yasin snatched carbine from the other one who took to his heels. Sarivar and Yasin hit the other accused with the snatched carbine on his head. The latter left the spot and ran away leaving behind his shotgun.
' Muhammad Yaqoob died on the spot. Yasin went to his Dera at a distance of two furlongs, informed his father, brought a cot and placed the dead body thereon. The description of the accused was given to the only effect that one holding the shotgun was wearing a Kurta and Tehband (loin cloth) while the other with carbine was dressed in Shalwar Kamiz. During grappling the Tehband of the accused and Puna (scarf of large size) with which he had muffled his face fell loose on the ground. Both the accused also left their footwear in the shape of Peshawari Chappal and Nylon Slippers. The two fire-arms were snatched by Yasin and Sarwar.
3. Muhammad Ashraf, S.-I. Of Police Station Jalalpur Jattan, who had reached the spot at 12-30 a.m.
The same night had recorded the report of Yasin complainant which subsequently was incorporated into F.I.R. No,249 at 1-00 a.m. On 12-7-1988. All the recoveries aforesaid were made on the spot. The injury sheet and inquest report was prepared whereafter the dead body was sent for post-mortem examination. After indictment of Adrees appellant and Basharat and upon conclusion of trial, the two Courts below placed reliance upon the ocular testimony of Yasin, complainant (P.W.6) and Sarwar P.W.8. Adrees was said to be the one who had fired from his .12 bore shotgun at deceased Muhammad Yaqoob and hence was awarded death sentence while Basharat was sentenced to imprisonment for life which, we are told, has been served out. It appears that the police had traced the assailants because the slippers of one were identified by a cobbler who had mended those few days earlier, while the other was identified by another witness who had sold Kohati Chappal to the accused and had demanded the money due from him earlier to the occurrence at Jalalpur Jattan.
4. Both the accused were arrested six days after the occurrence on 17-7-1988 and on 20-7-1988 they were identified by the eye-witnesses in an identification parade conducted at District Jail, Gujrat. In nutshell the prosecution relied upon the ocular testimony of Yasin and Sarwar duly supported by all the recoveries, identifying witnesses, post-mortem report, healed wound on the forehead of accused Adrees and the identification parade.
5. After going through the evidence on record, we believe that the prosecution story cannot be appreciated without a pinch of salt. The very manner of occurrence seems to be doubtful at the very outset. It is quite unbelievable that the two assailants duly armed with lethal weapons and after killing one Muhammad Yaqoob would leave the spot so easily by leaving both of their weapons in the hands of the complainant party. When they were capable of killing Muhammad Yaqoob, it was all the more easier to kill anybody at whose hands their lives had become at stake.
Instead of leaving their weapons to the snatchers they could easily have killed them. This part of the story does not appeal to the common sense.
6. The F.I.R. Seems to have been recorded with considerable delay. Arshad Mehmood, Head Constable P.W.2 states that when the police party was at same Chowk, two persons came there and informed the police about the occurrence. P.W. Sarwar, the eye-witness, states that the had gone to inform the police on his bicycle. In both the cases it was incumbent upon the police officer to have recorded the F.I.R. There and then specially when the alleged informant P.W. Sarwar was an eye-witness as well. Arshad Mehmood HC has stated that the accused were arrested the next day.
If so, their detention up to 17-7-1988 was unlawful and unaccounted fora The possibility cannot be ruled out that during this period they could not be linked with the commission of offence.
7. Muhammad Sadiq Cobbler (P.W.4) is said to have had mended the slippers of one of the accused which he identified on the spot. According to him, his statement was recorded 10/12 days after the occurrence but it is not reconcilable as to when the accused were arrested, according to Arshad Mehmood, H.C. The next day and according to the Investigating Officer. Six days thereafter.
P.W. Muhammad Sadiq admits that such-like slippers were generally available in the market. His statement qua identification is extremely doubtful.
8. Sher Muhammad (P.W.5) runs a hotel at Chowk Hajiwala where the two accused had taken a cup of tea at about 7-00 p.m. In the evening the same day. He could not disclose as to how he knew the names of the accused. He only identified the wearing apparel of the accused which is generally worn in the villages by everyone. There was no specific mark of identification alleged by the witness distinguishing such clothes from others. His statement is also full of doubt.
9. The statement of Yasin complainant (P.W.6) is highly unnatural. He says that he had hit one of the accused, subsequently turned out to be Adrees, on his forehead. It is quite unnatural because if he was capable of so hitting, he could equally have fired because his brother Muhammad Yaqoob had already been fired at. From his statement as well as from the contents of the F.I.R., it was not clear as to what the assailants had come for. No such demand is disclosed in the F.I.R. The witnesses are discrepant over such demand. Some said that they wanted to extort money while the other said that they wanted the complainant party to remove their clothes, as well. According to Yasin, the police had arrived on the spot 10/15 minutes after the occurrence, whereas, the F.I.R.
Reveals that it was recorded at 12-30 a.m., two hours after the occurrence. According to him, the dead body was sent to post-mortem examination at 8-00 a.m., whereas Muhammad Sarwar P.W.12 having reached the spot at 5-00 a.m. Disclosed that the dead body had already been despatched. Such discrepancy indicates that the eye-witness was not present on the spot.
10. The most irreconcilable version of the case is that Yasin complainant admitted during cross- examination that he knew both the accused for 1 or 1/1-2 years prior to the occurrence and that he had identified them when during grappling their faces got unmuffled. It is shocking to note that in spite of having known the assailants for quite a long time and in spite of having identified them, they were not named in the F.I.R. After all what was the impediment in the way of complainant in ,mentioning the names of the accused. The simple answer is that had he been present at the spot and had he seen the assailants, he must have disclosed their names. His presence on the spot is totally excluded by his own statement in Court.
11. At this stage, we are also of the view that as the assailants were known to the complainant and were identified on the spot, as admitted by Yasin complainant, the conduct of identification parade is totally illegal. The identification parade is never conducted about culprits who are already known to the witnesses. The identification parade loses significance and is not a corroboratory piece of evidence, in the circumstances. The statement of Sarwar P.W.8 is also full of doubt and does not furnish an account appearing to the common sense. He, for the first time, came.Out with the version that the person who had placed carbine at his neck had demanded money and belongings. This was never disclosed in the F.I.R. By Yasin, who in his Court statement came out with the version that the assailants commanded them to remove their clothes. This is not supported by P.W. Sarwar. The latter never uttered about the placing of carbine on neck in his statement under section 161, Cr.P.C. In such statement, he also did not disclose about the snatching of gun. Both the witnesses have not even proved that they worked at some powerloom. Sarwar says that an attendance register is maintained at the work place while Yasin says that no such register is maintained. No owner of the powerloom was produced in support. Sarwar also had known the assailants since prior to the occurrence and he had identified them on the spot as well but still their names are omitted in the first information. Muhammad Anwar is P.W.9 who rendered circumstantial evidence to the effect that while he was returning from the brick-kiln, he at about 12-30 at night heard the report of a fire shot 2 to 4 minutes after the fire shot he saw two persons running along. One of them was without the lower garment. It is again unbelievable that if the occurrence had taken place at 10-30 at night, how could Muhammad Anwar see the assailants running away at about 12-30 at night and that too, without Shalwar or Tehband. According to his version, the occurrence seems to have had taken place at about 12-30 at night while the complainant himself alleges the time to be 10-30 p.m. Muhammad Anwar immediately rushed to the place of fire where many persons had already gathered; whereas, all the other witnesses have stated that no one from the village had gathered on the spot for quite a long time.
12. Another evidence which the prosecution relies upon is to the effect that the licence of the shotgun in question had been recovered by Farrukh Hussain, S.H.O. (P.W.10) from one Ghulam Qadir, a relative of accused Adrees. It is strange enough that said Ghulam Qadir was never produced and is interesting to note that he was never associated with the investigation as a witness but was arrested as an accused and never indicted. This is a clear indicator that by putting him under arrest, he was subject to coercion and some licence was thus taken from him. P.W. 12 Muhammad Sardar claims that he had sold a pair of Chappals to Adrees in credit. His conduct is highly doubtful because he keeps the record of all the debtors but has not kept any record about Adrees. He is the same witness who reaches the spot at 5-00 a.m. But had not seen the dead body.
13. Adrees appellant was having a healed wound on his forehead which is said to be the one caused by complainant Yasin with carbine. This is not helpful because, as discussed earlier, the very presence of Yasin on the spot has not been proved, rather, it has been disproved through his own version. Thus, the prosecution cannot derive any premium from the injury on the forehead of Adrees. Moreover, this by itself is not a conclusive proof of guilt because anyone having such injury in the village could easily be involved on that score.
14. The upshot of what has been discussed above is that, we are of the firm view that it was an unseen occurrence, that both the eye-witnesses were not present on the spot, that the manner of occurrence is highly implausible, that the names of the assailants were not disclosed despite the fact that they were known to the witnesses and were identified on the spot and above all that the identification parade is totally immaterial, insignificant and uncalled for. Both the Courts below have utterly failed to appreciate the evidence and to attend to material aspects of the case that rendered the story to be highly doubtful. Accordingly, the appeal is accepted, the impugned conviction recorded and sentence of death imposed by both the Courts below are set aside and appellant Adrees son of Muhammad Sarwar is hereby acquitted of the charge under section 302/34, P.P.C. If not required to be detained in any other cause, he be released forthwith.