2008 PLP 1419 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Umaid Ali son of Mangle, with leave of the Court, has filed this appeal against the judgment dated 10-2-2000 of Lahore High Court, Bahawalpur Bench, whereby his appeal was dismissed and conviction under section 302, P.P.C. and sentence of imprisonment for life along with compensation under section 544-A, Cr.P.C. recorded by learned Sessions Judge, Rahim Yar Khan vide judgment, dated 27-4-1998 was maintained.

2. The occurrence took place on 11-4-1995 at 12-30 a.m. at night at the residence of Dilawar Hussain who lodged the F.I.R. at 2-30 a..m. He stated that he along with his wife Mst. Safia Begum and his son Asif Mehmood was asleep in his house at FFC Township, Machi Goth, when at 0030 hours the call bell rang. His wife Mst. Safia Begum went to answer the call. When she opened the door, three persons entered the house whereupon his wife raised hue and cry. Dilawar Hussain complainant and his son Asif Mehmood rushed towards the lady. Seeing them, one of the assailants commanded the others to fire and one of them opened fire at Mst. Safia Begum, which hit at her face. She fell down and died on the spot. The assailants were not known to the complainant and, therefore, the only description given about them was that their ages were between 22 and 25 years, that they spoke `Srieky' and that they were wearing `Shalwar Qameez'.

3. The investigation started and people including the appellant Umaid Ali were arrested on 22-4-1995. They were subsequently identified in an identification parade, conducted on 26-4-1995. The .12 bore shot pistol recovered from Umaid Ali matched with the empty of .12 bore recovered from the spot. The prosecution version was said to have been supported by post-mortem report as well, in addition to the foot-prints, the moulds whereof were picked up by Altaf Hussain, A.S.-I. (P.W.8). The learned trial Court as well as the learned High Court concurred that the prosecution had proved its case beyond doubt and hence conviction.

4. It is an admitted fact apparent on the face of record that the assailants were not previously known either to the complainant or to his son Asif Mehmood. They had not given their facial description hence the prosecution obviously relied upon the identification parade, conducted four days after the arrest of the accused i.e. 26-4-1995. It is categorically admitted by all the witnesses to the identification parade that it was conducted at the police station and that the names of the accused to be identified by the witnesses, were clearly narrated to them by the Magistrate as well as the Investigating Officer. Such an identification parade cannot at all be placed reliance upon, more particularly, when no facial description of the accused was ever given to the police. The identification parade totally goes out of consideration.

5. The next reliance is placed upon the recovery of .12 bore empty that matched with the .12 bore carbine, recovered at the instance of Umaid Ali appellant. This also a fake recovery and fake matching at the laboratory because as per admission of the witnesses, the police had recovered no empty from the spot when it visited the spot on the night of occurrence and that subsequently it visited the spot only on the day of identification parade on 26-4-1995 whereas the occurrence had taken place 15 days ago on 11-4-1995. Meaning thereby, that no empty was recovered from the spot. It is quite a miracle as to how one come to existence and even matched subsequently with the gun.

6. It is admitted on the spot that the assailant fired only one shot at the lady on the spot. It is so, the known fact is that a .12 bore shotgun does not eject the empty when only one shot is fired therefrom. The Investigating Officer says that he recovered the empty from "Ganda Nala" but it cannot be attributed to the spot or to the assailants beyond doubt, particularly, when the complainant never alleged that the assailant fired any shot while in the process of running away. The recoveries made on 1-5-1995 that is almost 19/20 days after the occurrence, cannot be safely relied upon.

7. There are few things, which do not appeal to the common sense. The assailants, if dacoits, were supposed to have made demand for money or ornament but they did not do so. This factum was improved upon by P.W. Asif Mehmood in his Court statement when he stated that they had demanded money and ornaments. It is also unreasonable that the assailants would kill a lady but spare the husband and son. So far as the evidence of footprints is concerned it was picked up with lot of delay and moreover the assailants also resided nearby in the colony.

8. Be that as it may, the substantial reliance placed by the prosecution is on identification parade as well as the recovery of empty that matched with the gun. Both these have already been discussed and altogether discarded. In the circumstances nothing remains on record to connect the appellant with the commission of offence beyond any shadow of reasonable doubt. The two Courts below have not appreciated the case c in its true perspective, with reference to the evidence on record. They have utterly failed to apply the principles of benefit of doubt, which overwhelmingly was available on record.

9. Consequently, the appeal is accepted, the impugned conviction and sentence recorded/maintained by the learned High Court vide judgment, dated 10-2-2000 is hereby set aside and the appellant Umaid Ali son of Jhangle is hereby acquitted of charge under section 302, P.P.C. It not required to be detained in any other case, he released forthwith. N.H.Q./U-34/SC Appeal accepted.