1990 P Cr (PLP)

Unfortunately, the learned Judge himself excluded the evidence of P.W. Abdul Hameed from consideration and, therefore, the same could not be relied upon for the purpose of proving motive in the case. It will be pertinent to mention the observations made by the learned trial Judge regarding P.W. Abdul Hameed at pages 272 and 273 of paper book:‑‑ "Subsequently, on third day of incident i.e. 3‑3‑1987 when the incident is said to have taken place on 28‑2‑1987 the S.H.O. has examined under section 161, Cr.P.C. P.Ws. Adam and Abdul Hameed. Their names did not transpire in the F.I.R. This fact is admitted by S.H.O. Ghulam Kabeer Exh.47, in his deposition that on 3‑3‑1987 he examined P.Ws. Aslam and Abdul Hameed at Police Station Kazi Ahmed. These witnesses Abdul Hameed Exh.31 and Aslam (not examined) have alleged...according to P.W. Abdul Hameed Exh.31, he and P.W. Aslam had come to the Wardat immediately after the incident and had seen Ch. Niaz being removed by complainant Arif Niaz and P.Ws. Aijaz, Riaz and Ashraf. In these circumstances they would have defiinitely informed the complainant party that they had also seen two culprits armed with pistol running away on motor‑cycle and three culprits armed with pistol running away by foot and it would have definitely been introduced (mentioned) by the complainant Arif in his F.I.R. In view of these facts I find that the evidence of P.W. Abdul Hameed Exh.31 is available and identification of accused Mooso through Abdul Hameed and Aslam is unreliable." The appellant has retracted from judicial confession. Therefore, his statement in confession about revenge cannot be relied without corroboration. From the above discussion it is clear that the prosecution had failed to c prove motive against the accused and, therefore, this piece of evidence is ruled out of consideration. OCULAR EVIDENCE. The ocular evidence consists of complainant Arif Niaz, P.W.3, Aijaz P.W.4, Riaz P.W.5, and Abdul Hameed P.W.10. As far as evidence of P.W. Abdul Hameed is concerned, the same has been excluded from the consideration by the learned trial Judge as pointed out above and for cogent reasons. We have no reason to take a different view so far as treatment of evidence of P.W. Abdul Hameed was concerned. As far as evidence of complainant Arif Niaz, Aijaz and Riaz Ahmed was concerned, the appellant/accused was not known to them and his name does not transpire in the F.I.R. as well as in the 161, Cr.P.C. statements of the above P.Ws. nor any description of the assailants was mentioned. According to the prosecution, the appellant was picked up in the identification test by the above witnesses, which was held through Head Munshi and Assistant Mukhtiarkar, Sakrand on 19‑3‑1987. 1t is an admitted position that the night of incident was dark and the light had gone off at the time of incident. The complainant and P.Ws. claim to have seen the appellant firing at deceased on torch light. On the other hand the case of the appellant before the trial Court was that he was arrested on 2‑3‑1987 and was kept in wrongful confinement by the police till 19‑3‑1987 for which the appellant has alleged that he had moved an application to the learned Sessions Judge, Nawabshah on 2‑4‑1987: It is also the case of the appellant that the complainant and the above P.Ws. were residents of village Roshan Abad. The complainant has of course stated in Court that he was resident of Roshan Abad but P.Ws. Aijaz and Riaz Ahmed have denied this suggestion. P.Ws. Aijaz and Riaz have admitted that they used to reside at Roshan Abad but had shifted to Kazi Ahmed about four years before they were examined in Court. They were examined on 10‑10‑1988. It is also admitted by the P.W. Aijaz that he possesses identity card in which his residence is shown as Roshanabad but it was prepared in December, 1984, and is old one when he was living there. P.W. Aijaz has further stated that he and Riaz reside in Sardar Colony Kazi Ahmed which is on the western side of telephone exchange at the distance of about 1‑1/2 furlongs. He has further stated that Jamil Medical Store is also situated on the western side of the exchange. According to this witness he was going to take medicine from Jamil Medical Store and when he reached in front of telephone exchange Riaz Ahmed met him to whom he asked that after taking medicine from Jamil Medical Store they will go to the house. In the meantime Ashraf also made there. Since there was no light, he had taken torch with him. While they were standing near the telephone exchange they saw the incident. If these witnesses were residing in Sardar Colony, on the west of the telephone exchange and the Medical Store from where P.W. Aijaz had to purchase medicine was also situated on the western side of the telephone exchange there was no reason for them to go towards the telephone exchange. Even otherwise, when Aijaz was having torch in his hand there was no reason for them to stand outside the telephone exchange nor any reason has been given by them in their evidence. According to above witnesses they had taken the injured alongwith complainant to the hospital at Kazi Ahmed and they were present in the hospital till the dead body was removed. Surprisingly enough they were not examined by the Investigating Officer on that night. Even the Investigating Officer Ghulam Kabeer P.W.16, has stated in his evidence (at page 186 of paper book) that he did not see P.Ws. Riaz, Aijaz, Ashraf, Abdul Hameed and Asadullah in the hospital upto 8‑30 p.m. These witnesses were examined by the Investigating Officer on the following day at village Roshan Abad, although, they claim to have been residing at Kazi Ahmed. According to Investigating Officer he had not fixed time with the complainant Arif Niaz for coming to Roshan Abad on the next day of incident. He had gone there of his own accord. He has further deposed that P.Ws. were produced by the complainant Arif Niaz before him at Roshan Abad after he reached there. If these P.Ws. were residents of Kazi Ahmed, and if they could not be examined on the night of incident they could be examined in the morning at Kazi Ahmed but their examination at Roshan Abad makes their evidence about residence doubtful. (1) In the case Mauladad alias Maulo v. Emperor A I R 1925 Lah. 426; wherein rive appellants were convicted under section 395 P.P.C. out of which one of the appellants, namely, Ditta was convicted on the basis of evidence of an approver, recovery of property, and identification test, while the rest of the appellants were convicted on the basis of evidence of identification test. The appeal of appellant Ditta was dismissed by the High Court and the remaining appellants were acquitted with the observation that:‑‑ "Since their description was not given by the witnesses before the identification, their evidence regarding identification was unworthy of credit." (2) In the case of Lalpasand v. The State P L D 1981 SC 142 wherein the witness had not given any description of assailant in his statement to the police but had stated in Court that he had identified the accused because he had green eyes and a thin neck. It was observed by their Lordships of the Supreme Court that: ‑‑ "In this part of the world there are so many people with green eyes and thin necks and, further we do not know whether this explanation of the witness was a form of rationalisation after the event, because he had not given any description of the murderer in his statement to the police. It was further observed that if the murderer had any physical features which distinguished him from other people whether it be green eyes or a thin neck, it was duty of the witness as a retired police officer to give description of the assailant whatever it be in his statement to the police and as he did not, this cannot but react against the entire prosecution case: and the appellant was acquitted. (3) In the case of Ramzan and others v. Emperor A I R 1929 Sind 149 it was observed that:‑‑ "The recognisation of a dacoit or other offender by a person who has not previously seen him is, I think a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases." (4) In the case of Abdul Sattar and another v. The State 1981 S C M R 678 their Lordships of the Supreme Court were pleased to affirm the observations made in the case of Ramzan and others v. Emperor and it was observed that:‑‑ "We agree with these observations and, therefore, the evidence of identification of stranger must always be scrutinized very carefully and since there were discrepancies in the description of the assailants given by the witnesses their evidence was not relied upon." and the appellants were acquitted. (5) In the case of Gul Baig and 2 others v. The State P L D 1964 (W.P.) Kar. 275; wherein the incident took place on 29‑12‑1902 but the identification test of the appellants was held on 18‑1‑1903, it was observed that:‑‑ "This delayed identification test based upon a momentary and partial glimpse of the faces of the assailants is such that we find it extremely difficult to accept with implicit reliance. Besides, identification evidence has been considered by various Courts to be a weak type of evidence, a form of evidence which is always to be taken with a considerable amount of caution as held in the case of Ramzan and others v. Emperor A 1 R 1929 Sind 149." Moreover, the learned trial Judge has not relied upon the evidence of identification test of the complainant and above witnesses in respect of co accused Azizullah, as according to the accused he was in custody from 4th March, 1987 and this fact was supported by the copy of application moved by him to the learned Sessions Judge, Nawabshah and by cuttings from newspapers. As regards appellant Mureed, the learned Judge has observed that:‑‑ "He had also stated in his statement that he was arrested on 2‑3‑1987 but he has failed to produce any evidence including the copy of application alleged to have been moved by him to the Sessions Judge, Nawabshah." In fact the accused had produced the photo copy as well as certified copy of application dated 2nd April, 1987 moved by him to the learned Sessions Judge, Nawabshah alongwith application Exh.64, but it appears that through oversight, the learned Judge has failed to consider the same. Even the application Exh.64 and its annexures were not printed in paper book. It has been the case of the appellant, right from the initial stage, that he was arrested on 2‑3‑1987 and this fact is supported by the certified copy as well as photostat copy of application which was also stated by Assistant Superintendent, Central Prison, Sukkur. The contention of Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellant has considerable force that the appellant was arrested on 2nd March, 1987, and the witnesses had ample opportunities to see him before the identification test was held. No doubt, the complainant and witnesses had no enmity with the appellant as argued by Messrs Ch. Iftikhar Ahmed and K.M. Nadcem, learned D A.‑G. but it does not necessarily mean that what they have stated is nothing but truth. 1n this connection it will be appropriate to refer to a Division Bench decision of this Court (of which my Lord, the present Chief Justice of Pakistan, Muhammad Haleem, J.‑ was a member), in the case of Peer Muhammad Khan and 2 others v. The State P L D 1970 Kar. 399; wherein it was held that:‑‑ "Simply because the witness has no enmity and appears to be independent does not necessarily mean that what he states is not untrue. Indeed the absence of malice is a factor which assumes importance in assessing the credit of the witness and placer him in a favourable position but by no means it is the sole criterion. The truth or falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief." Mr. Chaudhry Iftikhar Ahmed has relied upon the following decisions:‑ (1) Ashraf v. The State 1982 S C M R 113; wherein the incident took place in the morning during day time and the accused were known to the eye‑witnesses. They were acquitted by the trial Court but Ashraf was convicted by the High Court in acquittal appeal. The appellant filed an appeal before the Hon'ble Supreme Court but the same was dismissed with the following observations:‑‑ "observing that the eye‑witnesses were most natural witnesses and their evidence was corroborated by motive, medical evidence and also by the fact that the appellant had absconded after occurrence and therefore, the appeal was dismissed." With utmost respect there is no cavil with the principles enunciated by their Lordships in the above case but the facts are distinguishable and the above decision is not applicable to the facts of the present case inasmuch as the present incident took place during dark night, the appellant was not known to the witnesses and they had only a momentary glimps of the assailants on torch light. Moreover they have not been relied upon in respect of co‑accused, while the incident in the reported case took place during broad daylight and the appellant and co‑accused were known to the eye‑witnesses. There was also a motive and the appellant had absconded after the incident, and therefore, the above decision is not applicable to the facts of the present case. (2) Ali Muhammad and another v. The State 1985 S C M R 1834; wherein a dacoity with murder took place during broad daylight and the evidence against the accused consisted of evidence of two approvers, and its corroboration, eye witnesses account, identification test, and recoveries of all other articles which were accepted by both the Courts below. The accused were convicted, their appeals before the High Court failed, before the Honourable Supreme Court, it was contended that the identification test was held after long delay, it was observed that:‑‑ "There is no hard and fast rule that a delay parade due to late arrest /discovery of the culprits is always to be rejected. 1t depends upon a host of circumstances including the type of witnesses and other factors, it was further held that it is not uncommon that even fleeting glimpse of a person, specially placed in a position of immense importance, would be revived in memory after long time, provided the bond of event and embedding in memory were of permanent character. In this case they were so and the contention was rejected. With utmost respect the above decision is distinguishable inasmuch as on one hand the incident took place during day time and on the other hand since two of the eye‑witnesses were accountants and the 3rd was driver, the Honourable Court was impressed by the qualification of the above witnesses and it was held that mere delay in holding identification test was not sufficient to rule out their evidence from consideration. In the present case the incident took place during dark night, the description of the assailant was not mentioned in the F.I.R. and the appellant was kept in police custody for 17 days before the test was held and therefore, the above reported case is distinguishable and does not apply to the facts of the present case. (3) In the case of Sharif and another v. The State 1973 S C M R 83; wherein: the incident was witnessed by the witnesses who were interested and partisan and therefore, it was contended before their Lordships of the Supreme Court that since the witnesses were interested and partisan their evidence could not be relied upon without strong corroboration, it was held, by their Lordships that:‑‑ "For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested Witness. Corroboration may be afforded by anything in the circumstance.; of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstance relied upon must have a bearing on this question It was added that:‑‑ "In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing. Circumstances corroborating the eye‑witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject‑matter of the proceedings; (2) that the persons named as culprits were such cis would be expected to join in the attack." (4) In the case of Muhammad Ali v. The State 1985 S C M R 203, it was observed by their Lordships that:‑‑ "Even otherwise, it has time and again been observed by this Court that there is no inflexible rule that the statement of an interested witness can never be accepted unless corroborated. Corroboration in case of interested witness need not be of the same probative force as in the case of an accomplice" (In the reported case the incident had taken place in the Kotha of deceased and therefore, it was observed that presence of wife of deceased at the time of occurrence could not be doubted as the culprits were known persons). . (5) In the case of Muhammad Yousuf Zai v. The State P L D 1988 Kar. 539, he appellant was convicted under section 403, P.P.C., in appeal before the High Court it was contended that the identification test was not reliable but the contention was repelled by the Division Bench with the following observation:‑‑ "In the present case, the appellant had visited the Karimabad Branch at the time of opening of account and had also visited the branch five times while withdrawing the amount through live cheques during the period from 5‑9‑1984 to 17‑9‑1984. It was observed that there is no legal requirement to the effect that there should be an identification test of an accused person, if the eye‑witness can identify the accused before the trial Court that is enough:" The above observation indicates that since the accused was already known to the witness as he had been visiting bank, therefore, identification test was not necessary. Otherwise the law is very clear on the point that where the accused is not known to the witness before the incident and no identification test is held through him before he is examined in Court, the evidence of such witness as to identity of accused is not of much value. Reliance is placed on a Division Bench decision of this Court reported in Kak alias Abdul Razzak v. The State P L D 1965 (W.P.) Kar. 31 wherein it was observed by their Lordships that: ‑‑ "Where the witness did not know the appellant, nor the appellant was put up in any identification parade for his identification, his evidence is not, therefore, of much value with regard to the identity of the appellant:" In the case of Sahdeo Gosain and another v. The Emperor 1946 Cr. L J 317; wherein four accused were named by the witness as they vX‑ere known to him, whereas the fifth accused, namely, Sahdco Gosain was pointed out in the Dock while the witness was being examined in Court, it was held by their Lordships of the Federal Court that:‑‑ "Since no identification test of appellant Sahdco Gpsain was held through the witness before his examination in the Court, no reliance could be placed on his evidence:" In the case of Ismail and another v. The State 1974 S C M R 175; it was observed by their Lordships‑ of the Supreme Court that:‑‑ "It is only when the accused are seen for the first time, at the place of incident by a witness when it becomes necessary to put up such a witness at test identification parade. If the accused is already known by face although not by name, it is unnecessary to put up such witness to a test identification because at the parade he identifies by face and not by name:" In view of the above factual as well as legal position we are of the considered view that no reliance could be placed on the evidence of complainant Arif and P.Ws. Aijaz and Riaz regarding the identity of the appellant and the same is ruled out of consideration. JUDICIAL CONFESSION. According to the prosecution, the appellant was arrested on 19‑3‑1987, and had made judicial confession before the Mukhtiarkar and F.C.M., Sakrand on the same day. In this connection Mr. Krishanlal, Mukhtiarkar and F.C.M. has been examined as P.W.12 and he has produced the judicial confession as Exh.25. The evidence of Mr. Krishanlal shows that the accused was produced before him at 11-00 a.m. and he got his handcuffs removed and asked the police to go away. He informed the accused that he was Mukhtiarkar and F.C.M. and that he was produced before him for recording his confession. He warned the accused that he was not bound to give confession and that he would not be given back to the police whether he gives statement or not. However, the confession does not show that the learned Magistrate had informed the accused that he was Mukhtiarkar and F.C.M. while administering first warning to him before the time for reflection was given, to him. Even the fact that he informed the accused that in case he is not inclined to make confession he will not be remanded back to police custody, has been written in English on the top of the confession alongwith few other facts and there is nothing in the confession to show that the accused was explained the above warning in his own language i.e. Sindhi. The learned Magistrate did not ask from the accused whether he was induced to be made as an approver in the case nor he was asked as to whether his womenfolk were brought to the police station. The confession shows that the body of the accused was examined with his consent but no objectionable article was recovered during the search of his person. Even in Court, the learned Magistrate did not state that he had examined the body of the accused and did not find any marks of violence on his person. From the above facts it is clear that the Mukhtiarkar did not make real endeavour to find out that I the confession was true and made voluntarily. In this connection it will be I appropriate to refer to a Division Bench decision of this Court in the case of Abdul Haleem v. The State 1984 P Cr. L J 611; wherein it was observed as under:‑‑ "Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariable act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for their guidance. Magistrate would be well advised to follow the procedure which is given below:‑‑ As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock‑up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:‑ (i) For how long have you been with police? (ii) Has any pressure been brought to bear upon you to make confession? (iii) Have you been threatened to make confession? (iv) Has any inducement been given to you? (v) Why are you making this confession? (vi) Have you been maltreated by police? After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim. Apart from the above lacunas, there are two other important factors which go a long way to show:‑‑ "That the confession was neither true nor voluntary. Firstly, the confession is in conflict with the prosecution case inasmuch as according to the confession Ch. Khalid had told him that Ch. Niaz had 9one to the 'telephone Exchange Kazi Ahmed in his car and he should reach there then Ch. Khalid and Azizullah went to the Telephone Office. So he went there. Ch. Khalid and Azizullah were present there. By that time, the electricity was off in Kari Ahmed Town, where Ch. Khalid took out a local‑made pistol and gave the same to him and told him that it was loaded. In the meantime. Ch. Niaz emerged from the door of the telephone exchange and was moving towards his red car when Ch. Khalid told him that, that Ch. Niaz. Azizullah also told him that Ch. Niaz has got his leg fractured and now he should fire at him. He opened fire at Ch. Niaz from close range, then went away alongwith nearby street opposite exchange while Ch. Khalid and Azizullah also went away on motor‑cycle. He went away to his house." The above part of the story has been found to be false and Ch. Khalid was let off by police while Azizullah was acquitted by the trial Court. There is no allegation from the complainant and P.Ws. that Ch. Khalid was present alongwith the. accused near telephone exchange. According to P.W. Abdul Hameed, he had seen Azizullah and Muretrd running away on motor‑cycle. The confession does hot show that accused had reloaded the pistol or that he had produced pistol before the police after his arrest nor the confession speaks about the identification test, and therefore, it is definitely in conflict with the prosecution case. Secondly, the case of the accused right from the initial stage has been that he was kept under illegal confinement by the police from 2nd March 1987, till 19th March, 1987, when he was produced before the Magistrate and that his womenfolk were brought to the police station and were disrespected. He was pressurised to make confession. This allegation of the appellant/ accused is supported not only by application which was made by him to the Sessions Judge, Nawabshah on 2‑4‑1987 but by the circumstances also. It will be worthwhile to mention here that the incident took place on 28‑2‑1987 and according to S.H.O. Ghulam Kabeer he arrested the appellant on 19‑3‑1987 from his house. The SR.O. has not said a word as to whether he made any efforts to arrest the accused/appellant in between the date of incident and the date of arrest, if so, what efforts were made by him. His silence on this point goes a long way to show that the appellant was in police custody since 2‑3‑1987. as alleged by him. In the case of Tooh v. The State 1975 P Cr. L J 440, it was observed by a Division Bench of this Court that:‑‑ Where the confession was recorded on the, third day of arrest of the appellant, the delay in recording the judicial confession was fatal and, therefore, the same was ruled out of considerion. in addition to the circumstances pointed out above, it will be appropriate to, mention here that the confession of accused Azizullah was ruled out of consideration by the learned Judge on the ground that the accused was kept in wrongful custody for a long time and was produced for recording confession after a long time. The learned Judge has also taken note of the application made by accused Azizullah and the newspaper cuttings. In the case of Qadir Bux v. The State 1985 P Cr. L J 2375; relied upon by Ch. Iftikhar Ahmed learned counsel appearing for the complainant wherein the incident took place on 28th January, 1983, the accused was arrested on 29th January, 1983, and his judicial confession was recorded on 2nd February, 1983, it was, held by a Division Bench that:‑‑ Since the rule of admissibility of a confession in prescribes no time as to the recording of the confession the simpliciter delay in recording of a confession will not be fatal. The Court is to examine the circumstances of each case and the nature of the confession and if the Court is satisfied that the confession is voluntary it can rely upon the same notwithstanding that there may be some delay in recording of he confession. No doubt, apart from the confession itself the other circumstances including the corroboration available in the case, have to be taken into consideration and there is no cavil with the above proposition, but with utmost respect, the facts of the present case are different and, therefore, the above decision in the reported case is distinguishable. Inasmuch as, in the present case we have held that the appellant was arrested on 2‑3‑1987 and he was produced for recording judicial confession on 19‑3‑1987 and, as such, there was delay of about seventeen days in recording confession for which no explanation has been offered by the prosecution. On the contrary, the S.H.O. has dishonestly shown the arrest of appellant to be on 19‑3‑1987, and looking to this fact, and the fact that the trial Court has held in respect of co‑accused Azizullah that he was arrested earlier but was shown to have been arrested after a long time and the confession was, therefore, ruled out of consideration. The accused has alleged maltreatment and that his womenfolk were kept at police station and disrespected, and he was forced to put his L.T.I. on confession although he can sign. In this connection reliance has been placed on Vakalatnama and the photo copy of application made by accused to the Sessions Judge and his statement in Court which have been signed. In view of the above circumstances and other infirmities pointed out supra, the above decision is distinguishable. From the above factual as well as legal position, we are of the considered view that the confession w neither true nor voluntary and, therefore, the same is ruled out of consideration. RECOVERY. According to the prosecution, the accused after his arrest on 19‑3‑1987 led the police and Mashirs to his house and produced a country made pistol from the heap of dung which was secured by the police in presence of Mashirs Nasir Ahmed and Ata Muhammad. The empty recovered from the place of Wardat and pistol produced by the appellant/accused were sent together to the ballistic expert on 14‑5‑1987. Mashir Nasir Ahmed resides about a mile away from the Police Station Kazi Ahmed on its south. He was picked up from a brick kiln which was about two miles away from the village of Mashir Nasir Ahmed. It has been admitted by S.H.O. that there were 7/8 houses in the village of Mureed but no efforts were made to pick up Mashirs from there. According to Mashir Nasir Ahmed the village of accused Mureed was situated on the southern side of Kazi Ahmed but according to S.H.O. Ghulam Kabeer the village of accused Mureed was situated on the western side of Kazi Ahmed. There must be labourers available at the brick kiln but no one from them was picked up to act as Mashirs. The empty cartridge was recovered from the place of Wardat on 28‑2‑1987, and the pistol is said to have been recovered on 19‑3‑1987. We have already found that the accused was arrested on 2‑3‑1987 and, therefore, the delay in production of pistol makes the recovery as doubtful. So also the selection of Mashir Nasir Ahmed, and Ata Muhammad who were admittedly Punjabis, so also, the deceased. The S.H.O. has been cross‑examined on the point of sending the pistol and empty cartridge to the ballistic expert and according to him, after recovery of both the articles they were kept in custody of W.H.C. at Police Station Kazi Ahmed. He could not say for how many days the pistol and the empty were kept at police station and; thereafter sent to the ballistic expert. He did not remember the date of letter when these articles were sent to the Superintendent of Police Nawabshah for sending the same' to ballistic expert. According to S.H.O. Ghulam Kabeer Police Constable Meer Muhammad was with him at the time of arrest of accused Mureed and recovery from him. He was the same Police Constable Meer Muhammad who was the corpse bearer but Police Constable Meer Muhammad has not said a word in Court about the recovery of pistol from the appellant. The fact that the empty and pistol were sent together to the ballistic expert makes the recovery of pistol doubtful. In the case of Yousuf v. The State P L D 1988 Kar. 521; it was observed by a Division Bench of this Court that: ‑‑ Under the law if crime empty is recovered b fore the recovery of weapon, then the same should be sealed at one and sent to ballistic expert even without waiting for recovery of weapon because this would be the base precaution to minimise the chances manipulation. In view of the above discussion and the fact that the trial Court has found that S.H.O. Ghulam Kabeer had not carried on investigation honestly in the case of co‑accused Azizullah and we are also of the view that the investigation carried on by S.H.O. Ghulam Kabeer was dishonest and there arc further allegations to show that he was under pressure of the complain4nt party which is clear from the fact that number of Police Officers were associated with the investigation as admitted by S.H.O. Ghulam Kabeer, in cross‑examination at page 187 of the paper book. Even the complainant Arif Niaz has admitted in cross‑examination at pages 54 of the paper book that his uncle who is Superintendent of Police had come to them after the incident. He has further admitted that other Inspectors apart from Inspector Dal used to come for investigation of this case. We have also found that S.H.O. had shown wrong date of arrest of accused Azizullah and appellant Mureed and, therefore, no reliance can be placed on the evidence of recovery. In view of the above discussion we are of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and, therefore, the appeal is allowed, conviction and sentences of the appellant are set aside and he is acquitted, of the charges. He shall be released forthwith if not required in any other case. The reference for confirmation of death sentence is declined. N.H.Q./M‑966/K Appeal accepted.