P L D 1988 Karachi 637 (PLP)

This appeal is directed against judgment dated 7‑12‑1986 of learned Additional Sessions Judge, Thatta, whereby appellant named above is convicted and sentenced as stated under:‑ (1) Under section 447 P. P. C. sentenced to R.I. for three months and fine of Rs.200 or in default R.I. for one month; (2) Under section 364 P.P.C. sentenced to R.I. for ten years and fine of Rs.2,000 or in default R.I. for two years; (3) Under section 302 P.P.C. sentenced to life imprisonment and a fine of Rs.5,000 or in default R.I. for five years. (4) Under section 544‑A Cr.P.C. ordered to pay compensation of Rs.5,000 to the complainant or in default R.1. for five years; (5) All sentences directed to run concurrently with benefit under section 382‑B Cr.P.C. It would be pertinent to mention at this stage that appellant was put on trial alongwith two other co‑accused namely Saleh son of Umer and Achar son of Ali but both these co‑accused have been acquitted by the same impugned judgment and State has not filed any appeal against such acquittal. Briefly stated the prosecution case as per version contained in F.I.R. Ex.10‑A is that Complainant Abdul Ghafoor Memon owns and runs General Store at Town Darro and lives in Village Lakha of District Thatta as such he attends to his business during the day time and comes home late in the night alongwith his two brothers. In the early morning of 22‑9‑1984 complainant woke up and saw that his son Faheem Ahmad aged three years was not present on the cot. He awakened his brothers Abdul Qadir and Ali Mohammad and they made search for the child. They found baby Najma aged seven years also missing but subsequently she was found to be sleeping on the mound of sand. Main door of the house was found to be closed as usual. Inside the house near the wall on the sand were found shodprints of one person and on the other side of the wall four bricks were found lying over one another and shod prints of one person were found there also. Neighbours were informed and they helped in search. At about 6‑30 a.m. Abdul Sattar Memon came and informed that dead body of a child was lying in water at the bridge. Complainant and other witnesses went there alongwith Abdul Sattar and found dead body of Fahim Ahmad in the water. At 7‑30 a.m. complainant filed F.I.R. at Police Post Daro which was at a distance of three miles. On the same day at 9 a.m. formal F.I.R. was incorporated in the register under section 154 Cr.P.C. at Police Station Mirpur Bathoro. In the F.I.R. complainant had lodged suspicion on Gul Mohammad alias Guloo Mirbahar and his relatives due to dispute with them over plot of land. In the result whereof three days before Guloo had threatened complainant that he would see him. A.S.I. Ali Murad who was Incharge P.P. Darro after making entry into Roznamcha, sent its copy to P.S. Mirpur Bathoro for registration of formal F.I.R. ASI thereafter proceeded to the Vardat and found dead body of boy. Fahim in Mahmooda Wah. He prepared Mashirnama of dead body and inquest report Exs.19/A and 19/B. He inspected place of Vardat and prepared such memo Ex.19/C, after which investigation was taken over by SHO Khalilur Rehman, who recorded statements of witnesses. SHO has deposed in his statement Exh.22 that on 23‑9‑1984 he called Gul Mohammad, Achar, Saleh and Ismail who were suspected and he detained them in Police Station for investigation. On the same day footprint test of these suspects was held through trackers Maloo and Achar which was supervised by Assistant Mukhtiarkar in which footprints were found out to be of Guloo, Achar and Saleh. During investigation Achar and Saleh produced hatchets from their houses and Guloo produced Lathi which was secured vide Mashirnamas Ex.19/D, E and F. Subsequently Guloo, Achar and Saleh made judicial confessions before Mukhtiarkar Mirpur Bathoro. After completing other steps of investigation, S.H.O. presented challan in the Court. In the trial Court prosecution examined as many as thirteen witnesses in support of its case. In this case there is no ocular evidence. P.W.1 is Abdul Ghafoor complainant who filed the report in the circumstances stated above and suspected Gul Mohammad and others as culprits. P.W.2 is Abdul Sattar who found the dead body and saw footprints. He is cousin of complainant. P.W.3 is Umer, who brought tracker Malloo from Golarchi. P.W. 4 is Abdul Qadir brother of complainant and he has corroborated the complainant. P.W.S is Achar tracker, who saw footprints of three persons near the house of complainant and then he participated in the footprint test and picked out footprints of appellant and two acquitted co‑accused to be the same as were found near the house of complainant. F.W.6 is Haji who is Mashir of footprint test Ex.16‑A and arrest Ex.16‑B. P.W. 7 is Hussain Bux, Constable who is corpse‑bearer. P.W. 8 is Abdullah, Mashir who has attested Mashirnamas of dead body, Inquest Report, Vardat and recovery of weapons Exs.19‑A to 19‑F. P.W.9 is Dr. Mohammad Ayub, Medical Officer, Mirpur Bathoro who conducted post‑mortem examination of the dead body and produced such report Ex.20‑A. P.W. 10 is Mr. Mohammad Hanif, Assistant Mukhtiarkar and Third Class Magistrate, Mirpur Bathoro in whose supervision footprint test was conducted through trackers Malloo and Achar in presence of Mashirs. Finding was positive in respect of appellant and two acquitted co‑accused. Such Mashirnama Ex.16‑A was produced. P.W.11 is SHO Khalilur Rehman who has partly investigated the case as stated above. P.W.12 is Mr. Lutf Ali, Mukhtiarkar and First Class Magistrate, Mirpur Bathoro who recorded confessional statements of Saleh, Achar and Gul Mohammad and produced them as Fxs.23‑A, 23‑B and 23‑C respectively. Lastly P.W.13 is ASI Ali Murad who made entry of report of Roznamcha of P.P. Darro and partly investigated the case. In the trial Court in his statement under section 342 Cr.P.C. appellant Gul Mohammad denied prosecution allegations and asserted that there was dispute between him and the complainant over plot of land which originally belonged to grandfather of appellant and on that account appellant has been implicated falsely in the case. Acquitted co‑accused Saleh proclaimed false implication and further stated that SHO called to the Police Station his father and mother and pressurised him to make confession and he was beaten up. He denied having made the confession. Likewise Achar also stated that Police demanded money from him which he could not pay, hence he was involved in this case falsely. Subsequently statements on oath of appellant and two other acquitted co‑accused were recorded. I have heard at length Mr. Shaikh Rehman Bux, Advocate for the appellant and Mr. S. Sarfraz Ahmad, A.A.‑G., Sind for the State. In this unfortunate case, there is no ocular evidence. Whole prosecution case depends upon three pieces of evidence relating to shodprint test, motive against Gul Mohammad and retracted confessions of appellant and other two acquitted co‑accused. With regard to shodprint test, evidence produced by the prosecution is replete with contradictions and inherent defects, which make this evidence unsatisfactory. In this respect the very first mention with regard to footprints or shodprints is made by complainant in the report which he filed at P.P. Darro and is available in the record as Ex.10‑A. According to this report, complainant made postitive assertion in unequivocal terms that he and other witnesses found shodprints of one person inside the house on the sand as well as outside the house. When complainant was examined in the trial Court, he made improvement in his evidence and stated that he and other witnesses noticed footprints of one person where Mst. Najma was lying but there were footprints of three perspns outside his house. This was so stated by the complainant in his examination‑in‑chief. P.W.2 Abdul Sattar who is cousin of complainant deposed in the trial Court that he saw the dead body of Fahim in Mahmooda Wah and further claimed that he was shown footprints of one person inside the house of complainant and footprints of three persons outside the house. Achar and Malloo trackets were also shown the footprints. In cross -examination, this witness stated further that footprints of two persons were in slippers and third was naked. P.W.4 Abdul Qadir brother of complainant deposed before the trial Court that there were footprints of one person visible on the sand inside the compound of the house. Outside the house also there were footprints of one person near the boundary wall where four bricks were placed on top of each other. Footprints were got covered and were seen by trackers. This witness has further stated in his examination‑in‑chief that trackers found footprints of three persons. He further stated in the cross‑examination that footprints on the sand were shod and those outside the house were also shod. This witness further admitted in his cross‑examination that in his police statement he had stated that he had seen footprints of one person on the sand. He further stated that he did not remember whether he had stated in the police statement that he had seen footprints of one person near the bricks laid alongwith the wall. At this stage, it would be pertinent to mention that in the Mashirnama of scene of offence Ex.19‑C with regard to footprints, it is mentioned therein that there were shoe prints at two places which were covered. One was inside the compound wall and the other outside the wall. Outside the compound wall shoeprints of one person were clearly visible. P.W.8 Abdullah is Mashir who has attested this Mashirnama Ex.19‑C and produced the same in the Court. In his deposition in the trial Court he stated in very unambiguous terms that he saw footprints at Vardat and they were footprints of one person. P.W.5 Achar tracker deposed before the trial Court that he was shown footprints at the Vardat and he found footprints of three persons. He tracked footprints which led on Ganjbejar nali and there the prints had vanished. Malloo Koli tracker also came and saw the footprints and agreed that those were footprints of three persons. Later during the investigation this tracker participated in the footprint test and picked out footprints of appellant and two acquitted co‑accused. Admittedly footprint test was held on the following day of the report i.e. 23‑9‑1984. Before I go over to cross‑examination of tracker P.W.5 Achar, it would be pertinent to mention at this stage that in F.I.R. Exh.10‑A, complainant Abdul Ghafoor specifically named Guloo and his other relatives as suspects because of dispute of complainant with Gulloo over the matter of plot of land. In this context, ASI Ali Murad deposed before the trial Court that after filing of report by complainant at the P.P. he went to the spot where he prepared Mashirnama of dead body and inquest report and then prepared Mashirnama of Vardat Exh.19‑C after which SHO Khalilur Rehman took over the investigation from him. P.W.I1 SHO Khalilur Rehman has deposed before the trial Court that on 22‑9‑1984 he went to the Vardat and took over investigation from ASI Ali Murad. He recorded statements of trackers Achar, Malloo and P.Ws. Umer and Hussain Bux. He also examined complainant. On 23‑9‑1984 he called Gul Mohammad, Achar, Saleh and Ismail who were suspected and he detained them at the Police Station for investigation and on the same day he got the footprint test held under the supervision of Assistant Mukhtiarkar and Third Class Magistrate. Perhaps at this stage it was decided by the 1.0. that real culprits were three persons, hence direction of the investigation was changed and witnesses who were concerned with footprints also started making positive assertion that the prints were not of one person but of three persons and in that attempt discrepancies and contradictions have crept up in the evidence of these witnesses. On this point as to shodprints or footprints were of how many persons at the spot, there is no consensus or unanimity of view amongst the witnesses. According to the Complainant in F.I.R. there were footprints of one person in shoes and in evidence he has stated that there were footprints of one person where Najma was lying and of three persons outside the courtyard. In this context ASI Ali Murad in his cross‑examination before the trial Court has admitted that complainant had stated in F.I.R. that shodprints at the spot were of one person visible at the heap of the sand. To a categorical question ASI replied in positive terms that there is no mention in F.I.R. that there were footprints of three persons at the Vardat. P. W.8 Abdullah Mashir deposed before the trial Court that in his presence Mashirnama of Vardat was prepared and at the Vardat there were found footprints of one person. P.W.2 Abdul Sattar stated in his evidence before the trial Court that at the spot he was shown footprints of one person inside the house and footprints of three persons outside the house. In cross he stated that footprints of two persons were in slippers and third was naked. P.W. 4 Abdul Qadir deposed before the trial Court that there were footprints of one person on the sand and footprints of one person near the boundary wall where bricks were lying. Subsequently, he improved the statement and stated that trackers came and he found footprints of three persons. In cross he stated that footprints on the sand were shod and those outside the house were also shod. He was confronted with his police statement in which he claimed to have seen footprints of one person. In Mashirnama of Vardat Ex.19‑C he has stated that at two places there were shodprints of one person. P.W.5 Achar tracker has stated in his evidence that he found footprints of three persons. In cross examination he stated that the prints which he had seen at the Vardat were made by rubber, boots. The same prints were inside the house as well as outside the house. It is very clear that all the witnesses have given different versions and have contradicted each other. Presumption is unavoidable that initially footprints of one person were seen at the Vardat and subsequently during investigation four persons were detained and. it was decided that wintesses should support the version that there were footprints or shod prints of three persons. On this account the evidence of the witnesses on this point is discrepant and unsatisfactory and cannot be relied upon. There are innumerable defects in the method of conducting. footprint test. P.W.5 Achar tracker stated in his evidence before the trial Court that he did not take measurements of footprints and of space between the paces. The prints were of rubber boots. He singly tracked the prints and subsequently Malloo tracker also came and he 1 did the same thing. This witness has not said anything about preparation of moulds. On the following day he participated. in the footprints in which 16 or 17 persons took part.I Footprints were either in Chappals or shoes but there were no bare footprints. Police was present when he indentified the footprints. Out of the prints which he had seen at the spot, two were of size No.7 and one was of size No.8. This witness in the cross‑examination admitted that he did not state size of boots before the Police because neither the Police asked him nor he divulged it. He further admitted that such types of size are sold commonly in the market. P . W .6 Haji Mashir has stated in his evidence before the trial Court that in the footprint test 16 persons participated including appellant and acquitted co‑accused, who were correctly picked out by tracker at. Sl. numbers 6, 9 and

16. In cross‑examination he stated that he lived in. his village which was seven miles away from Mirpur Bathoro and he came to Police Station for his own work where Assistant Mukhtiarkar was present and he asked him to act as Mashir in the footprint test. He admitted that Police and SHO were present at the time of test. Both trackers had come together to pick out the footprints. P.W.10 Mr. Mohammad Hanif, Assistant Mukhtiarkar and third class Magistrate deposed before the trial Court that both trackers jointly picked out footprints correctly at Sl. Nos.6, 9 and

16. In cross‑examination he has admitted that police had produced accused persons, Dummies, trackers and Mashirs. Test was held in the backyard of Police Station. Sixteen persons were made to stand in a row. He was unable to say that how many dummies were bare footed, wore leather boots, rubber boots or Chappals. He gave no details as to who wore what in Mashirnama. In cross‑examination, this witness admitted that he had been Magistrate only six months before the test. Section 45 of Evidence Act, 1872 and its corresponding Article 59 of Qanun‑e‑Shahadat Order,‑ 1984 relate to the opinions of third persons and their relevancy in evidence. According to the provisions mentioned above when Court has to form an opinion upon, a point of foreign law, or of science, or art, reliance can be placed on the opinion upon that point of persons specially skilled in such foreign law, science or art. Footprint test in all its co‑related forms is part ~ of rudimentary science and is weak type of evidence. It was held in the case of Pritam Singh and another v. State of Punjab 1956 PCr.LJ 805 by the Supreme Court of India that result of identification of footprint test cannot be relied upon by itself as it would not be enough to carry conviction in the minds of the Court but such tracts evidence can be relied upon as a circumstance which, alongwith other such circumstances would point to the identity of the culprit. It is held by the Supreme Court of Pakistan in the case of Ghulam Nabi Shah v. Crown 1969 SCMR 629 that evidence of footprints having been traced and identified by itself is not sufficient to prove case against accused. So far as shod print test is concerned, it is held I by Division bench of our High Court in the case of Ghulam Mustafa and another v. State 1971 P Cr. L J 775 that such test has no evidentiary value and must be excluded from consideration. With regard to footprint test in the same decision it is held that result of such test based on comparison by the tracker with footprints seen at the spot is not acceptable for the reasons firstly that such evidence by itself is not sufficient to hold that accused participated in the crime and secondly according to the complainant all dacoits were wearing rubber sole shoes and it was not known how bare footprints of ones person appeared at the scene of crime. In the instant case evidence of witnesses shows that in the beginning assertion was made that there were shodprints of one person and subsequently improvement was made in the evidence that there were shod prints of three persons. P.W.2 Abdul Sattar stated that there were footprints of three persons, out of which two were shod prints and print of third person was naked. P.W. 5 Achar tracker stated that he saw shod prints of three persons and those were prints of rubber boots. He further stated that in the test footprints were either in Chappals or shoes but there were no bare footprints. In mashirnama of footprint test Ex. 16‑A on the record no details are given as to who was wearing what on the feet when the test took place. At the spot prints of rubber shoes were seen but in the test what shoes were worn by appellant and other two co‑accused is not ascertainable. In the circumstances, this evidence is defective and cannot prove conclusively the fact that culprits were same who were at the spot particularly in the absence of relevant L details as mentioned above. This evidence cannot be accepted to prove connection of appellant in commission of crime. Even otherwise as held by the superior Courts time and again the track evidence is[ weak type of evidence and by itself is not sufficient. So far motive is concerned, according to the prosecution there was dispute between complainant and appellant Gul Muhammad over plot of land. Appellant has also admitted that such dispute existed between them. Now if the relations between the parties were strained on account of such dispute and if it can be used as motive to sav that appellant had grievance and on that account he has committed offence alleged against him, the same motive with that background of enmity between the parties can be used for false implication as well that is why it is said that motive is a double‑edged weapon. In any case motive itself is not sufficient and if proved it can be used as corroborative evidence and in the instant case it cannot be used against the appellant. The third piece of evidence produced by the prosecution is judicial confessions of appellant and other co‑accused. These confessions are retracted. Trial Court has not believed these confessions and excluded them from consideration. Trial Court has acquitted two co‑accused persons. Retracted confession can be acted upon without corroboration if such confession is found to be true and voluntary and in such case there would be no need to look for further corroboration. Reference can be made to the case of State v Minhun alias Gul Hassan (PLD 1964 S C 813). If retracted confession does not appear to be truthful and made voluntarily, then it is essential to look for corroboration and such confession can be acted upon only when there is corroboration available in material particulars t of that confession. In support of this proposition reference can be made to the case of Nadir Hussain v. Crown (1969 SCMR 442). In the instant case incident took place on the night between 21/22‑9‑1984 and report was lodged on 22‑9‑1984 at 7‑30 a.m. and the appellant and his other two co‑accused were arrested on 23‑9‑1984 and the confession was recorded on 24‑9‑1984. Before the recording of confessions during investigation weapons were recovered and footprint test was held. Recording of confessional statements was the last act in the investigation hence no steps were taken to collect any evidence in corroboration of what was stated in the confessions. Since whole investigation was complete before recording of confessions hence no corroboration is available by way of confirmation of the material particulars stated in the confession. Evidence of shod print test has been disbelieved and cannot be used as corroboration. Likewise, motive also cannot be used for the benefit of prosecution. P.W.2 Lutf Ali. Mukhtiarkar and . First Class Magistrate has recorded confessional statements in this case and it appears from his evidence in the that all the three accused were present in the Court jointly when their confessional statements were being recorded. Their statements were not recorded separately. Perusal of all the three confessions shows that they were not dictated voluntarily by each accused separately but the contents are invariably‑ same in each statement. These confessions cannot be relied upon for conviction. Prosecution has failed to prove its case beyond doubt against the appellant as is required under the law. I give benefit of doubt to the appellant and set aside impugned judgment of the trial Court. Appeal is allowed and the appellant be set free if he is not wanted in any other case. On 8‑6‑1988 after hearing Advocates for both sides, by short order, I had allowed the appeal for reasons to be recorded later, which have been written now. M.Y.H./G‑76/K Appeal allowed.