1992 PLP 2255 (MLD)

(5) Fire‑arm wound of entry 1 x 1 cm from front middle inner aspect of right thigh. (6) Fire‑arm wound of entry 1 x 1 cm on upper front of right foreleg 13 cm below right knee joint. (7) Fire‑arm wound of exit 3 x 3 cm on inner aspect of right foreleg. opined injuries 1, 3 and 4 sufficient to cause death in the ordinary course of nature; all of firearm origin; death caused due to shock and haemorrhage; probable duration between injuries and death soon, post‑mortem whereof was conducted within 12 to 14 hours with four hours margin on each side.

5. Dr. Abdul Khalil P.W. 10 on the same day at 9‑00 a.m. examined the complainant and observing the following injuries vide medico‑legal report Exh.PF, referred him to the District Headquarters Hospital, Sargodha for further management and X‑Ray: (1) Fire arm wound of entry 1 x 1 cm on middle aspect of right buttock going deep into buttock. There was blackening and margins and edges of wound were inverted. There was corresponding hole on shalwar. X-ray was advised, and injury was kept under observation. (2) Lacerated wound 2.5 cm x 1/2 cm x skin deep 2 cm above right ear. injury No.1 was opined to be of firearm origin while the second of blunt weapon, neither was caused by friendly hand and were of 5/6 hours duration with one hour margin on either side.

6. The complainant deposing to the prosecution story though initially stated that the tallish person fired at the deceased but hastened to correct that the three persons fired at him whereafter he fell down; the occurrence consumed 10/12 minutes; they came out of the fields 1‑1/2 hours later and found the deceased 15/20 paces away; on 14‑2‑1988 alongwith Muhammad Asghar P.W. identified the appellant during identification parade conducted in District Jail, Sargodha as one of the culprits for which they were summoned by the police 2/3 days ahead; on 15‑11‑1987 identified Truck No.7325/AJKA Pl bearing fake registration mark PRA/9003 at Police Post Attock; culprits were not known to him prior to the incident; the night was dark, truck's engine remained on throughout the incident; two of the culprits were tallish of which appellant was the one who caught hold of him while the remaining started beating up the deceased who splashed shots at the deceased; pleaded ignorance of the appellant having been arrested prior to 14‑2‑1988 and shown to them prior to the identification parade; he remained conscious after the gun shot which kept on bleeding and frankly admitted that he couldn't distinguish as to which one of the culprits was speaking in Punjabi, Pashto or English.

7. Muhammad Asghar P.W. 4 narrating the incident stated that the deceased and the complainant were beaten up by all the four culprits; the deceased proceeded towards the West where he was fired at; alighting from the truck through the rear he ran towards paddy fields hearing fireshots and also testified to the identification parade.

8. Musheer. Ali Shah Inspector P.W. 15 vouching the appellant's arrest on information and pointation of an informer from G.T.S. Bus stand on 9‑2‑1988 and the identification parade repelled the suggestion of the appellant having been shown to the P.Ws.

9. Raja Zaheer Ahmad M.M. P.I. Attock P.W. 17 deposed as to taking into possession two trucks bearing registration mark 9003/PRA and 9826/RIN while on patrol duty for traffic violations near Police Station, Attock, amongst which the former was identified to be that of the complainant o 13‑11‑1987 bearing fictitious mark.

10. Abdul Qadir Jasra MIC P.W. 19 testifying to the identification parade tendered report thereof Exh.PN and responding to the questions stated that the P.Ws. were present outside the jail prior to his arrival to whom the appellant stated to have already been shown by the police in addition photographing him at the police station.

11. Sher Muhammad Inspector P.W. 12, who partly conducted the investigation stated that Muhammad Afzal P.W. 13 a timber merchant and Noor Khan, a transporter (not produced) came forward with the appellant's extra‑judicial confession but their statements under section 161, Cr.P.C. were not recorded; while according to the former Jehanzeb Khan on 9‑11‑1987 introduced him to 4/5 Pathans in his shop at Peshawar namely Noor Agha, Ghulam Hazrat, Saeed Nur Jan etc. revealing looting of a truck carrying pulses and ghee on Mianwali‑Sargodha Road for which they were being chased by the 'police, factum whereof was divulged to Haji Ahmad Khan, Inspector at Bhalwal Police Station on 11/12‑11‑1987:

12. The Public Prosecutor tendered in evidence positive report of the Chemical Examiner and that of the Serologist qua earth Exh. PQ and PR respectively while rest of the evidence was of formal nature; whereas the appellant entering the plea of denial opted not to depose under oath.

13. The learned trial Court disbelieving extra‑judicial confession and placing reliance on the ocular account coupled with the identification parade pronounced the judgment under appeal, legality whereof has been assailed by the learned counsel for the appellant urging that there is no reliable piece of evidence available on the record connecting the appellant with the offence charged identification parade is not creditworthy; being a dark night occurrence it is a case of doubtful identity because as per, complainant the assailants approached through the side windows thus remained out of the beams focus; the identification parade was conducted after 5 days of the appellant's arrest which remains unexplained, additionally not only with a lapse of 4‑1/2 months memory gets blind but also the appellant on the first available opportunity pointed out .to the Supervisory Magistrate of his having already been photographed by the police and shown to the P.Ws.; neither the appellant's role was particularised by the P.Ws. at the trial nor at the time of identification parade; the Magistrate's report is not a substantive piece of evidence thus implicitly can't be relied upon in the absence of Magistrate's deposition qua the mode and the mannerism thereof; the complainant has not only improved at the trial contrary to the reported version but also failed to particularise the appellant's role and felt contented by generalising the allegation as to causation of fireshots by the assailants at the deceased and, lastly, Muhammad Asghar P.W. has not at all testified to the firing by the appellant while learned counsel appearing on behalf of the State supported the judgment.

14. Having perused the entire evidence we are of the view that n is a case of doubtful identity being a dark night occurrence; veracity of the identification parade is amenable to grave doubts on account of the unexplained delay of 5 days coupled with the appellant's prompt revelation on the first .available opportunity of having been photographed and shown to the P.Ws. by the police and non‑particularisation of the alleged role; extra‑judicial confession seems to be too much of a coincidence utterly bereft of credence and convenient police padding; the complainant's narration is waivery while Muhammad Asghar has not at all deposed to appellant's firing; consequently, giving the appellant benefit of doubt the appeal is allowed, his conviction and sentence is set aside and is acquitted of the charges. He shall be set at liberty forthwith if not required in any other case. The sentence of death is not confirmed. N.H.Q./I‑31/L. Appeal allowed.