1983 P Cr (PLP)

ASLAM RIAZ HUSSAIN, J.-Sikandar, aged 30 years, was tried along with Ghulam Hussain, Nazar Muhammad, Shamsher and Haq Nawaz by the learned Additional Sessions Judge, Sargodha, for offences under sections 148 and 302/149, P. P. C. The learned trial Judge by his judg ment dated 31st January, 1973, acquitted the four co-accused but convicted Sikandar under section 302, P. P. C. and sentenced him to death. He also convicted him under the Arms Ordinance for keeping an unlicensed rifle and sentenced him to one year's R. I.

2. Sikandar has filed Crl. Appeal No. 100 of 1973 against his conviction and sentence under section 302,.P. P. C. and Cr. Appeal No. 160 of 1973 against his conviction and sentence under the Arms Ordinance. The matter is also before us under section 374, Cr. P. C. for considering the question of confirmation of the death sentence awarded to him. We propose to dispose of the two appeals and murder reference by a single judgment.

3. The occurrence in this case took place in the cattle-shed of one Muhammad Khan on the night between 13/14th December, 1970 in village Ghangwal, Police Station Jhawarian, where Safdar Hussain deceased, who was the tenant of Muhammad Khan was sleeping. At the time Muhammad Feroze, P. W. 16, was also sleeping with him in the cattle-shed. The information given by him to Balley Shah P. W. 17, and as recorded in the F. I. R Exh. P. G. at the latter's dictation is as follows :- At about 10 p.m. when Safdar Hussain deceased and Muhammad Feroze P. W. 16 were sleeping in the-cattle-shed, some one knocked at the door. Muhammad Feroze P. W. woke up and thinking that it was some one whom he knew and who used to visit them, he opened the latch, whereupon a person, whom Muhammad Feroze P. W. did not know, came in and caught hold of him from the neck. Two other persons whose names Muhammad Feroze P. W. did not know also came into the kotha. One of them was armed with a hatchet while the other with a gun. Yet another person came and stood near the door of the kotha. His name was also not known to Muhammad Feroze P. W. On seeing them he raised an alarm, on hearing which Safdar Hussain deceased also woke up. The person who had caught hold of him, shouted to the person who was holding a gun, to shoot. Thereupon the latter shot at Safdar Hussain deceased, who died as a result thereof. All the accused then ran away. Muhammad Feroze P. W. also went out of the kotha and woke up Allah Bakhsh P. W. 14 and Attaya (not produced), who were sleeping, Gehna (not produced) and Muhammad Saadullah A. S. I. (P. W. 21).

4. After preparing the necessary documents, the A. S. I. sent the dead body for post-mortem examination. During the autopsy a lead bullet P. 5 was recovered from the dead body which was placed in a phial by the doctor who sent it through Noor Muhammad F. C. to Ch. Imam Ali S. H. O., Police Station Jhawarian, who took it into possession vide memo. Exh. P. F. All the five accused are said to have gone to Mammu, P. W. 10, one morning at sargiwela and confessed their guilt before him. Thereafter they were arrested on different dates. Sikandar appellant was arrested on 29th January, 1971. Ghulam Hussain and Nazar Muhammad (acquitted accused) were arrested on 9th February, 1971. Haq Nawaz (acquitted accused) was arrested on 16th February. 1971, while Shamsher (acquitted accused) was arrested on 21st April, 1971. At the time of his arrest Sikandar appellant is said to have been carrying his rifle, P. 7 which was taken into possession by Ch. Atta Ullah S. I. P. W. 22, alongwith a bag containing eight live cartridges and one missed cartridge, P. 9/1-9, vide memo. P. W. 20/A. The memo. was attested by Muhammad Khan P. W. 20, Ch. Atta Ullah P. W. 22 and Khuda Bukhsh (not produced). The rifle as well as the empty cartridge were sent to the Ballistics Expert. Sh. Abdur Rashid (P. W. 19), the Ballistics Expert who examined the same opined vide his report Exh. P. W. 19/A that the empty cartridge P. 6 bad been fired through .303. rifle P. 7 recovered from Sikandar appellant.

5. After the completion of the investigation all the five accused were challaned and were ultimately committed to stand their trial before the Court of Session.

6. At the trial the prosecution produced 23 witnesses in support of its case. The prosecution evidence consists of the evidence of motive, the ocular. evidence, the evidence of Wajtakkar witnesses, the evidence of extra judicial confession, the evidence of recoveries, inter alia, of rifle P. 7 and an empty 303. cartrige P. 6 together with the report of the Ballistics Expert that they matched with each other and the medical evidence.

7. The accused, however, pleaded innocence and simply stated that they had been involved due to enmity. They produced no evidence in defence.

8. We have heard the learned counsel for the appellant as well as the learned State Counsel and have also gone through the entire record with their help.

9. It may be mentioned at the outset that there is only one eye witness in this case, namely, Muhammad Feroze P. W.

16. There are also two Wajtakkar witnesses, namely, Ramzan P. W. 12 and Lala P. W. 13, who have deposed that they had seen the five persons running away from the spot but they had only identified and named Ghulam Hussain, Haq Nawaz and Shamsher. They did not name Sikandar appellant as one of the five persons. The learned trial Judge has disbelieved the solitary eye witness as well as the two Wajtakkar witnesses. Having gone through their testimony we find that he was justified in doing so. We too, there fore, do not rely on their testimony. Even the learned State Counsel at first said that he does not wish to rely on their testimony but subsequently made a half-hearted attempt to contend that they should be believed. But, as already observed, we are not inclined to rely on their testimony for the same reasons, as given by the learned trial Judge.

10. As none of the accused has been named in the F. I. R. the pro secution got three identification parades held in this case to get the accused identified by the witnesses. One identification parade was held by Ch. Asghar Ali Khan, T6hsildar P. W. 8 on 4th May, 1971 and two were held by Mr. Muhammad Nawaz Tehsildar Magistrate 2nd Class (P. W. 11) on 12th February, 1971 and 18th February, 1971. In the identification parade held on 4th May, 1971, Shamsher Khan (acquitted accused) was identified by Muhammad Feroze P. W. 16 as the person who had fired at Safdar Hussain d6ceased. In the identification parade held on 12th February, 1971 Muhammad Feroze, Rehman, Lala and Allah Bakhsh P. Ws. were to identify Sikandar appellant and Ghulam Hussain and Nazar Muhammad (acquitted accused). Muhammad Feroze P. W. 16 could not identify any of the accused. Lala P. W. 13 correctly picked up Sikandar appellant but the latter objected that he had been shown to the witness by the Police at the police station on a number of occasions. Ramzan P. W. 12 identi fied all the three accused correctly. The accused raised the same objection against this witness that they had been shown to him by the Police at the police station. Ramzan P. W. denied this fact during his cross-examina tion at the trial. But when he was confronted with his statement before the Committing Magistrate it was found that he had stated there that the accused had been shown to him by the Police for 3/4 days. Allah Bakhsh P. W. 14 correctly identified Ghulam Hussain (acquitted accused) and Sikandar appellant but he admitted that he knew them beforehand. Moreover, his testimony is only to this effect that Lala and Ramzan P. Ws., the two Wajtakkar witnesses, had come to him on the following day and told him that they had seen Ghulam Hussain, Shamsher Khan and Haq Nawaz (acquitted accused) alongwith two other persons going away from the spot. But since two wajtakkar witnesses have been disbe lieved, the testimony of Allah Bakhsh P. W. 14 does not advance the case of the prosecution, although this witness had correctly identified Sikandar appellant. In the third identification parade held on 18th February, 1971 Muhammad Feroze P. W. 16 identified Haq Nawaz. Since that accused had been acquitted, this identification is of no importance.

11. As to the evidence of identification parades the learned counsel for the appellant rightly pointed out that the solitary eye-witness in the case has not identified him. Allah Bakhsh P. W. 14 had identified him but his testimony does not implicate the accused or advance the prosecution case against him and that although Ramzan and Lala P. Ws. the two Wajtakkar witnesses identified him during the identification parade but as alleged by the appellant he had been shown to them by the Police at the police station prior to the identification parades. Ramzan P. W. 12 has, of course, admitted this fact in so many words. If this was the conduct of the Police, we can quite believe that they must have been shown to the other witnesses also. Moreover, these two witnesses have been disbelieved by the learned trial Judge. Therefore, the identification of the appellant by them is of no consequence.

12. It will be noticed that the motive rests only on surmise and none of the accused was mentioned in the F. I. R. Moreover, the only eye witness in the case as well as the two Wajtakkar witnesses have been dis believed by the trial Judge and are not being relied upon by us either. The learned trial Judge only relied upon the testimony of Mammu P. W. 10, before whom all the five accused are said to have appeared and made extra judicial confession. He also believed the evidence of the recovery of the empty cartridge P. 6 from the spot and the receiving of rifle P. 7 from Sikandar appellant at the time of his arrest which, coupled with the report of the Ballistics Expert, showed that the empty cartridge matched with the rifle But although the learned trial Judge relied on the testimony of Mammu P. W. 10, yet he considered that his statement about the alleged extra-judicial confession made by the accused before him should not be relied without independent corroborative evidence and since there was no such evidence on the record with regard to Ghulam Hussain, Nazar Muhammad, Shamsher-and Haq Nawaz accused he acquitted them, but believing the recovery of cartridge P. 6 from the spot and the recovery of rifle P. 7 from Sikandar appellant coupled with the report of the Ballistics Expert, he felt that there was such (corroborative) evidence against Sikandar appellant, and as a result he convicted him under section 302, P. P. C.

13. What is left, therefore, to be considered is whether the evidence of Mammu P. W. 10 and that of the recovery witnesses is worthy of reliance. The learned counsel for the appellant took us through the testimony of Mammu P. W. 10 and pointed out that according to him all the accused had made a joint confession before him which is not admissible in evidence. The exact words used by Mammu P. W. in his statement are: - "I inquired from them that where from they were coming. They told me that they had gone to get back their money from Allah Bakhsh of village Ghangwal as price of the bullock and that they killed a person by firing at him there." It is evident that the alleged extra-judicial confession is a joint confession, and it is now well-established that such confession is not admissible in evidence. Refer Manzoor v. State (P L D 1957 Lah. 1023) and Mir v. State (1971 P Cr. L J 1214). As such the testimony of Mammu P. W. 10 is of no use and the result is that there is no evidence left on the record which can be said to be corroborated by the aforementioned recoveries. The appel lant could be acquitted on this ground alone. Howaver, on going through h. evidence of the recoveries we feel that the recovery of the empty crime cartridge is itself very doubtful. In this connection the first thing to be noticed is that in the F. I. R. which was lodged soon after the occurrence, at about 2-30 in the night, it is clearly stated that the person who fired at the deceased had fired with a gun (and not a rifle as revealed by the autopsy). Moreover, although it was clearly mentioned in the F. I. R. that a hatchet left by the accused was dying at the spot, yet no mention whatsoever was made about the presence of an empty rifle cartridge at the spot, notwith standing the fact that according to the memo. of recovery (Exh. P. B.) an empty cartridge was lying at the door of the kotha in which the murder took place. Nor was any mention made about the presence of this cartridge anywhere near the spot in the relevant column of the inquest report which is prepared before the dead body is sent to the mortuary for post-mortem examination. It will be useful to reproduce here the words of Mr. Muhammad Saadullah Khan A. S. I., P. W. 21 : I had not mentioned the recovery of crime empty in columns Nos. 22 and 23 of the inquest report." It is pertinent to note that the doctor who performed the autopsy found a lead bullet P. 5 in the body of the deceased which he sent to the Investigating Officer through a foot constable, which was taken into posses ion vide memo. Exh. P. F. The learned counsel for the appellant argued that it is only after this recovery that the Investigating Officer got wise to the fact that a rifle had been used in the commission of murder and, as such, thought it fit to show that an empty cartridge had been recovered from the spot. He pointed out further that while, according to the recovery memo: Exh. P. B., the empty cartridge is said to have been left at the door of the kotha in which the incident took place, according to Muhammad Bakhsh P. W. 6, one of the recovery witnesses, it was recovered from near the cot of the deceased towards its leg-side which, as it is apparent from the site plan Exh. P. I/1, is very much inside the korha. He said before the trial Court that it was incorrect that it was lying outside the kotha but when confronted with his statement before the Committing Magistrate he had to admit that he had said there that it was lying outside the kotha.

14. Considering all these facts we feel that the recovery of the empty cartridge is not above suspicion and if this recovery goes away, the recovery of the rifle as well as the report of the Ballistics Expert also goes away with it. But on going through evidence of the witnesses about the recovery of rifle P. 7, namely, Muhammad Khan P. W. 20 and Ch. Attaullah P. W. 22 we feel that even that recovery is not above suspicion. Muhammad Khan P. W. has admitted that he lived in village at: a distance of one mile from the place of recovery and about same distance from the village of occur rence as well as the police station. He first said that he, as well as Khuda Baksh (the other recovery witness who has not been produced by the pro secution) had been summoned to the police station to join the investigation and had reached there at 7/8 a. m., but again said that he had gone to the police station alone and Khuda Bakhsh had joined him at village Bherth. As already mentioned the second witness of the recovery of rifle P. 7, namely Khuda Bakhsh was not produced and was given up by the learned A. P. P. as unnecessary although he was present outside the Court. Had he been examined, more discrepancies might have come out between his testimony and that of Muhammad Khan P. W. Moreover, the fact that he has not been produced raises an adverse prosecution against the prosecu tion, namely that if produced he would not leave supported the recovery at all.

15. In this state of the evidence we consider it highly unsafe to main tain the conviction of Sikandar appellant. As such we accept the appeal, set aside his conviction and acquit him.

16. As to the appeal under the Arms Ordinance we notice that the sentence of one year's R. I. has already expired. That appeal has, therefore, become infrucstuous and is disposed of as such. In any case, we have found that the recovery of the rifle is doubtful and he could not have been convicted on that evidence.

17. This disposes of the two appeals (Crl. Appeals Nos. 100 and 160 of 1973) and the murder reference. Appeal allowed.