' TARIQ PARVEZ, J.---Nazir Ahmad, the appellant, has been awarded sentence of death when convicted under section 302 (b), Pakistan Penal Code. He has filed the instant appeal while the learned trial Judge has sent the Murder Reference as required under section 374 of Criminal Procedure Code.
2. Shortly stated facts of the case are that Ghulam Habib Khan, S.H.O. Police Station Cantt: D.I. Khan (P.W.6) while on gusht at 9-00 a.m. Of 5-10-1996 reached near the road running in-between the two portions of District Headquarters Hospital D.I. Khan was then informed by Muhammad Ayub Khan, D.F.C. (P.W.7) that, a man after committing the murder of another person is running and has escaped through motorRikshaw bearing Registration No,DNC-3972. The S.H.O. Was in the official vehicle chased the Rikshaw and at some distance apprehended the so-called , assailant who disclosed his name to be Nazir Ahmad. The said person was brought back to the spot where the dead body of Nowsherwan was still lying. The rikshaw-driver was also instructed to follow the S.H.O.
Who did reach the spot.
' On the spot the S.H.O. (P.W.6) drafted the Murasila (Ex.P.A./1), prepared the injury sheet and inquest report of the deceased and produced the deceased for .Postmortem examination to the Doctor Rashid Ahmad Khan (P.W.4).
' On personal search of the deceased, articles given in memo. Exh.P.B. Were recovered including the National Identity Card of the deceased which became the first source of information as to -- identity of the deceased.
3. During the investigation, the Investigating Officer has recovered one empty of 30 bore from point 'B' as shown in the site plan while on the very day when the occurrence took place, i,e, 5-10-1996, Nazir Ahmad, the appellant, while in handcuff is said to have led the police to the nearby dirty water-drain and on his pointation pistol of 30 bore (the crime weapon) was recovered for which memo. (Exh.P.B.) was prepared.
' No motive could be collected during the investigation nor could be shown at the trial.
4. In this case the learned trial Judge while relying On the statement of Muhammad , D.F.C. (P.W.7) who has given somewhat ocular account of the occurrence and finding corroboration and support from the testimony of Ghulam Habib, S.H.O. (P.W.6) regarding chase, the pointation made by the accused of the crime-weapon and its later matching with the empties recovered from the spot as given in the Forensic Science Laboratory ' s' report (Exh . P. W.6/3) found the material led by the prosecution sufficient for conviction.
5. Learned counsel appearing for the appellant has argued before us that it is a case of misidentity, that the investigation from day one is tainted with dishonesty and that the T is no ocular account and that the case being one of circumstantial evidence, the prosecution was bound to prove beyond any shadow of doubt that each link of the chain of circumstantial evidence is connected.
' Highlighting the main point referred to a!,ove, it is argued that the occurrence took place at 9-00 a.m. On 5-10-1996 and the murasila is recorded at 9-20 a.m. By Ghulam Habib Khan, S.H.O. Who has recorded in the Murasila that the dPqd body of the deceased was lying on the spot at the time of making the, report, whereas according to medico-legal report of Nowsherwan deceased who was produced before the Doctor at 9-00 a.m. And was not yet dead but was un-conscious and that he has died at 9.10 a.m., therefore, the Investigating Officer is wrong and his timing given in the Murasila are inconsistent with the medico-legal report prepared by the doctor.
' It is argued that the dishonesty of the investigation is manifest by taking a look of the injury sheet prepared by the S.H.O. Wh. Re he has initially recorded Nowsherwan to , be dead but has later on added a note describing his opinion as to the condition of the deceased whether dead or otherwise.
' It is also submitted that according to the site plan (Exh.P.W.6/1), deceased was at point No,1 while the assailant at point No,3 and the distance between the two points is about 9/10 feets which would not conform to the medital report because per doctor's report, the sole entry wound --- on back of the neck of the deceased had blackening, whereas in case of use of pistol such effect can only occur if the firing is made within a range of 6 to 9 inches. It is contended that in the site plan, Muhammad Ayub P.W. Is shown at point No,2 who would be proceeding towards the north, therefore, he would have his back towards the assailant and by the time he would have turned around the assailant would be running towards the south, therefore, the question of identity of the assailant was of utmost importance but no test identification parade has been held in this case.
6. Learned counsel appearing for the complainant and the learned State counsel, however, disagreed to the submissions made by the learned counsel of the appellant. They argued. That report is made within twenty minutes, i,e, with utmost promptness, that neither P.W. 6 nor P.W. 7 has got any illwill or enmity with the appellant to bring a false charge against him. That the empties recovered from the spot has matched with the pistol recovered at the pointation of the appellant and the apprehension of the appellant by P.W. 6 during the chase would confirm the involvement of the appellant in commission of the crime.
7. We have considered the arguments of both the sides and have gone through the entire case record including the evidence.
In a case of circumstantial evidence it is the bounden duty of the Court to be on I A guard while appraising the evidence and to see that each circumstance is proved independently and is so- connected with the other circumstances that it constitute an unbroken chain and leads to no other inference but to the guilt of the assailant.
8. We will first take up the recovery of pistol taken through Exh. P . B . /2. The two witnesses of the recovery are both police constables though the recovery is effected on a thoroughfare allegedly from a drain. Fazal Elahi Constable appeared as P.W.1 where he has totally omitted to state that said pistol was recovered at the pointation of the accused/appellant. To the contrary he says that it was he who recovered the pistol from the drain. Second witness of the recovery was not produced. We are of the view that although Ghulam Habib S.H.O. (P.W.6) in his statement has stated the recovery on the pointation of the accused/appellant but the status of P. W.6 in the recovery process would remain as the Investigating Officer whereas the attesting witnesses would be the eye-witness of the factum of recovery. Where an eye witness has not stated a fact which allegedly took place in his presence, the statement of Investigating Officer would not be sufficient for believing such recovery. Moreso, according to Fazal Elahi (P.W.1), the recovery of pistol was made from a distance of 3010 40 paces from the place wherefrom blood was recovered but the site plan of the pointation memo. (Exh.P.W.6/2) would show that such distance was 200 paces. This irreconcilable distance would not support the prosecution case. We may here refer that the perusal of original of P.W.6/2 would show that initially the distance given was 400 paces but has later been changed to 200 paces though initialled.
9. In absence of any motive between the Parties and where ' no evidence either during investigation or at the trial is led regarding motive, an inference can be drawn that it can be a motiveless killing and if it was the appellant which can be termed as an act of hired assassinator. If this be so, then keeping in view the presence of Muhammad Ayub, D.F.C. Who was in uniform and was proceeding a few paces ahead of the deceased, it is unexpected of a hire assassinator to dare to commit the crime when there would be every likelihood of his apprehension and when there is every likelihood of retaliation at the hands of uniformed constable.
10. The mere apprehension without sufficient connection of the person apprehended with the crime and where according to P.W. Ghulam Habib, S.H.O. He took Muhammad Ayub alongwith him for the chase of the appellant but Muhammad Ayub in his statement is silent, the apprehension of the appellant on misidentity cannot be ruled out. In the. Murasila, Ghulam Habib has given no specification given to him by Muhammad Ayub regarding the person who escaped from the spot, therefore, it was incumbent on the Investigating Officer to have arranged an identification parade.
' There is yet another unprecedental fact in this case where Shakeel (P.W.7), the Rikshaw-driver from whose Rikshaw the appellant is alleged to have been arrested was though present on the spot during investigation on the very day of occurrence but was examined by the police after seven days. His driving licence was neither taken into possession nor the Rikshaw belongs to him.
Even the trial Court had fallen into an error while examining the accused under section 342 of Criminal Procedure Code by putting two questions with reference to motor-Rikshaw bearing No,4572 instead of 3972. Similarly the question put to the accused that it was he who has thrown the pistol in the drain is not the evidence of the prosecution because none of the witnesses have said that they saw accused throwing pistol in the drain.
11. Where the first document of the prosecution, namely, Murasila is inconsistent with regard to timing as given in the injury sheet prepared by the doctor and when there is no eye-witness account of the occurrence and when the recovery of pistol at the pointation of the accused is open to serious doubt, the positive report of the fire arms expert with regard to crime articles received by him after about sixteen days of the occurrence would be of no legal value to sustain the conviction of the appellant.
As a result of our above discussion, we accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge brought against him in this case. He shall be set at liberty forthwith if not required in any other case. The murder reference is answered in negative. .