' JAVID IQBAL, J -Muhammad alias Mammi son of Darvai, aged 40 years, Muhammad Nawaz son of Mohia, aged 25 years, and Muhammad Shafi son of Raja, aged 45 years, have been convicted under section 302/34, P. P. C. For having caused the murder of Niaz Muhammad Khan and under section 392/34, P. P. C. For having committed robbery in the house of Niaz Muhammad Khan deceased vide judgment dated the 21st of January, 1971, of the Sessions Judge, Lyallpur. All the three were sentenced to death on the first count and each of them was sentenced to ten years' R. I.
Under the second count. The sentence of imprisonment was to become operative if the death sentence awarded to them was not confirmed. Their appeal as well as reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.
2. The occurrence is reported to have taken place on the 16th of July, 1969, at 2-00 a. In. In the haven of Niaz Muhammad Khan deceased situated at Chak No, 27/J. B., at a distance of 14 miles in the direction of North from Police Station, Thikriwala, District Lyallpur. The F. I. R. (Exh. P. G.) was lodged on the same day at 8-50 a. m. By Chiragh P. W. 13, brother of the deceased at Police Station, Thikriwala and it was recorded by Zafar Abbas Shah A. S. I. P. W.
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3. The occurrence is reported to have taken place in the following manner Niaz Muhammad Khan and his brother Chiragh P. W. Were asleep in their haveli (which was without a door) for the protection of their animals, namely, two buffaloes and two oxen which were bound in the said haveli. At about 2-00 a. m. On the 16th of July, 1969, at night, three persons entered. They untied an ox and a young ox and when they were about to move out, Chiragh. P. W. And Niaz Muhammad Khan woke up on hearing the noise of the movement of animals. They called on the intruders asking as to who they were Niaz Muhammad Khan raised an alarm and at the same time advanced in order to apprehend one of the intruders. In the mean time the other intruder fired at him. The fire shot hit Niaz Muhammad Khan at his chest and he fell down. At the same time were attracted to the scene of occurrence Sharif P. W. 14 who had torch P. 6 with him as well as Muhammad Ali and Iqbal (given up as unnecessary) who witnessed the occurrence but out of fear did not go near the intruders. The intruders went away along with two oxen, namely one white ox of Hisari breed and the other young white ox of Desi breed. It was further stated that the intruders were identified by the P. Ws. In the light of torch P.
6. The fir3t was wheat-complexioned medium height and young in age, carrying a gun; second was also wheat-complexioned with stout body and mature age carrying a sota; and the third was wheat-complexioned with thin figure, medium height and young in age carrying 12-bore pistol.
None of the P. Ws. Went near them because of fear. When they had departed the P. Ws. Attended to Niaz Muhammad Khan and found that he had died.
4. The three appellants were arrested on the 26th of August, 1969, i. e. 41 days after the occurrence by Ch. Ali Muhammad S. I. P. W.
15. The relevant recoveries in this case are as follows :
(1) Crime empty P. 5 recovered from the place of occurrence and taken into possession vide memo. Exh. P. E., dated the 16th of July, 1969, the attesting witnesses being Sharif P. W. 14 and Muhammad Ali (not produced).
(ii) Torch, P. 6 produced by Sharif P. W. 14 and taken into possession vide memo. Exh. P. F., dated the 16th of July, 1969, the attesting witnesses being the same.
(iii) '12 bore pistol P. 10 recovered from the person of one Muhammad alias Mammi son of Chawa by Amir Hussain Khan S. I. P. W. 8 and taken into possession vide memo. Exh. P. Q. Dated the 21st of October, 1969, the recovery witnesses being Umar Din son of Ahnaad Din and Umar Din son of Allah Din (given up as unnecessary). It may be noted that this recovery had been made from the person of not Muhammad alias Mammi son of Darvai who is the appellant in this case but from some other person. There is no explanation forthcoming as to how the said recovery connects Muhammad alias Mammi son of Darvai appellant with the commission of offence. According to Bashir Ahmad P. W. 2, Fire-Arms Expert crime empty P. 5 matched 12 bore pistol P.
10. If that was so then the person from whom the said pistol was recovered should have been involved in this case. But the person from whom the same was recovered, -according to the statement of Amir Hussain Khan P. W., was separately challenged under the Arms Ordinance XX of 1965 for illegal possession of the same.
(iv) White hide of one ox P. 3 recovered at the instance of Muhammad Shafi appellant and taken into possession vide memo. Exh. P. D. Dated the 3rd of September. 1969, the attesting witnesses being Aziz Khan (given up as unnecessary) and Nazir Ahmad P. W. 11, and
(v) One white young ox recovered at the instance of Muhammad Shafi and Muhammad Nawaz appellants and taken into possession vide memo. Exh. P. B. Dated the 26th of August, 1969, the attesting witnesses being Aziz Khan (not produced) and Nazir Ahmad P. W.
5. Dr. Ghulam Rasool P. W. 1 performed the post-mortem examination on the dead body of Niaz Muhammad Khan, on the 16th of July, 1969, at 6-00 p. m. And found on his person the following injury : (1) 12 fire-arm entrance wounds with margins scorched on the front of the middle and lower part of right chest in an area of 8" x 7". According to him the cause of death was due to shock and haemorrhage and injuries to the lungs and liver caused by injury No, (I) which was sufficient to cause death in the ordinary course of nature. The injury was caused with a fire-arm. In his cross- examination he stated that this injury could possibly be caused by a fire shot from a distance of 3 to 5 feet.
6. The prosecution has produced two eye-witnesses in this case, namely, Chiragh P. W. Brother of the deceased and Sharif P, W. a neighbour. Muhammad Ali and Iqbal who were mentioned as neighbours in the F. I. R. And who had seen the occurrence were given up as unnecessary. Besides this the prosecution also produced Ahmad P. W. 10, tracker, who is stated to have identified the footprints of two appellants in a footprint identification parade. The appellants are also stated to have been identified by the aforementioned two eye-witnesses at an identification parade held by Akhtar Yousaf, Magistrate Section 30, P. W.
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7. The appellants denied having participated in the occurrence. Muhammad Shall appellant denied the recovery of hide P. 3 at his instance and stated that he had been shown to the eye- witnesses and the tracker at Police Station, Thikriwala where he was kept for 13 days by the police.
Muhammad Nawaz appellant also denied having participated in the occurrence. He also stated that he was shown to the eye-witnesses and the tracker at the police station where he was kept for 16 days. He also denied the recovery of young ox from him. Muhammad alias Mammi appellant also stated that he bad been shown to the eye-witnesses and the tracker. He too denied participation in the occurrence.
8. We have carefully gone through the record and heard learned counsel for both the sides. The story of the prosecution is not free from doubt due to numerous reasons. Firstly, the occurrence had taken place in the haveli of Niaz Muhammad Khan deceased at 2-00 a. m. At night when the deceased and his brother Chiragh P. W. Were asleep. It is probable that they were woken up by the noise of the movement of the animals. It is also probable that Niaz Muhammad Khan sustained a fire-arm injury at the hands of one of the intruders. But it is difficult to believe that the intruders could have been identified in the light of torch P. 6 stated to have been carried by Sharif P. W. It appears from the site plan (Exh. P. J./l) that Sharif P. W. Lived in a house towards the South-East from the place of occurrence. According to the prosecution on hearing the alarm he rushed from his house to the. Eastern wall of the haveli which is stated to be five feet high. Again according to the prosecution he is stated to have thrown his torch light and identified the appellants after having scaled over the wall. According to the site plan the other two eye-witnesses, namely, Muhammad All and Iqbal who had not been produced seem to have heard the alarm at a distance of 400 feet from the place of occurrence. The site plan indicates that they saw the occurrence from a distance of 200 feet. The site plan indicates that the doorless haveli where the occurrence took place has kacha walls on the three sides, Eastern wall being five feet high, Northern wall being six feet and Western wall also being six feet high. Iqbal and Muhammad Ali according to the site plan witnessed the occurrence at a distance of 200 feet while they were on the North-Western side. It is difficult to believe as to how they could see the occurrence when there was an intervening wall six feet high between them and the point where Niaz Muhammad Khan was shot at. At a distance of 200 feet, it is also improbable that they could have identified the appellants in the torch light of Sharif P. \V. Furthermore, according to the prosecution besides these three eye-witnesses, namely, Sharif P. W., Iqbal and Muhammad Ali many other persons also arrived at the scene of occurrence. Nevertheless they are not stated to have chased the appellants who had left along with two oxen and would be probably going at a slower pace. At any rate, Iqbal and Muhammad Ali were given up as unnecessary and only two eye-witnesses, namely, Sharif and Chiragh were produced but it is unsafe to place reliance on their testimony to the effect that they managed to identify the appellant in the torch light. Secondly, the recoveries in this case are not of any material use. '12 bore pistol P. 10 which is stated to have matched crime empty P. 5 recovered from the place of occurrence, was not recovered from any of the appellants. The prosecution could not explain as to how the said pistol connected any of the appellants with the commission of offence when admittedly it was recovered from the person of one Muhammad alias Mammi son of Chawa and not from Muhammad alias Mammi son of Darvai appellant. It is the case of the prosecution that the appellants were arrested on the 26th of August, 1972, i. e. 41 days after the occurrence. According to the prosecution one white ox was recovered at the instance of Muhammad Shafi and Muhammad Nawaz appellants on the same day. In other words, this recovery was made after 41 days from the day of occurrence. The oxhide P. 3 is stated to have been recovered at the instance of Muhammad Shafi appellant even later i. e. On the 3rd of September, 1968. So much time had elapsed between the date of occurrence and the dates of recoveries of young ox and ox-hide P. 3, that it would appear doubtful as to whether C these recoveries were genuine or faked. Thirdly, it is doubtful if the footprints identification parade as well as the identification parade of the appellants are of any help. Ahmad P. W. Tracker, had admitted in his cross-examination that the three appellants were present in the police station and that they were shown to him as well as to Sharif and Chiragh P. Ws. Upon this h was declared hostile. He further stated that he did not identify the footprints of the three appellants, that before the track identification parade was held he was shown the appellants and their foot-prints at the police station. According to Akhtar Jousaf Magistrate Section 30, P. W. The appellants had objected to the parade saying that they were shown to the witnesses at the police station, Chiragh P. W. Identified Muhammad Shafi and Muhammad alias Mammi appellants but failed to identify Muhammad Nawaz appellant. Then after ten minutes he correctly identified Muhammad Nawaz appellant.
Sharif P. W. Is stated to have identified all the appellants in the parade. In the circumstances when there is a probability that the appellants or their foot-prints had been shown to the witnesses the track identification as well I as other identification parades as pointed out earlier are of no help.
9. Since the case of the prosecution against the appellants is not established beyond reasonable doubt, we are of the considered opinion that they should have been given the benefit of doubt. In the light of what has been discussed above we give the benefit of doubt to the appellants. Their convictions under sections 302/34 and 392/34, P. P. C. As well as sentence there under are hereby set aside and they are acquitted. They shall be released from Jail forthwith if they are not wanted in any other case. Their appeal is accepted.
10. Reference for the confirmation of death sentence awarded to the appellants by the trial Court is rejected.