1975 P Cr (PLP)

6. Dr. Muhammad Aslam Arshad (P. W. 1) conducted the post‑mortem examination on the dead body of Rajwali on 14th April 19-0 at 12‑15 p.m. and found the following injuries (1) A lacerated wound 1/1/3 x ' bono deep on the right side of head 3 above the ear on front side. (2) A diffused contusion 2' x 1/ ' on the left side of head 3' above the ear. (3) Both eyes were contused and swollen along with forehead. (4) Three contusions 3' x 1' to 2' x 1' on the back of left chest on inner side of shoulder blade on lower part. Frontal bone on right side and right parietal bone on front side were fractured and frontal suture was separated. Membrane and brain were congested. In the opinion of the doctor the deceased died of internal haemorrhage caused by injury No. 1, which had been caused by a blunt object. The time between injuries and death was about two to three hours and between death and post‑mortem examination about 42 hours. The same doctor on 13th April 1970 at 7‑25 p. m. medically examined Yaqoob P. W. and found five injuries, which were all simple. The same doctor on the same day at 7‑30 p. m. medically examined Gul Zaman P. W. and found the following two injures:‑ (1)A superficial lacerated wound 1' x " on the front of right ear. (2) A contusion abraded 1' x ' on the top of right shoulder.

7. It may be mentioned here that the names of the accused are not mentioned in the F. I. R. and only their description has been given therein. The accused appeared before S. I. Nematullah (P. W. 12) on 16th April 1970, who arrested them and sent them to Jail on 17th April 1970. The reason for not sending the accused to Jail immediately after their arrest was that the D. S. P. had come to village Mohr Jung on 16th April 1970 for the verification of the case.

8. Mr. Muhammad Nawaz, Magistrate Second Class, Rawalpindi (P. W. 5) received an application Exh. P. T. on 18-4‑74 bearing the order of the Assistant Commissioner (Exh. P. T./2) wherein he was directed to conduct the identification parade and he held the identification on the same day at 11 a.m. in the District Jail, Rawalpindi. Muhammadji (P. W. 6) was called in first and he correctly identified Nigah Ali Shah and Channan Shah appellants besides Shabbir Shah and Muzammil Shah (acquitted accused). Muhammad Yaqoob (P. W. 7) correctly identified both appellants but not the other accused. Mst. Roshan Jan (P. W. 10) correctly identified both the appellants and none of the other acquitted accused. Wali Jan (P. W. 9) only identified Nigah Ali Shah appellant and nobody else.

9. The prosecution case against the appellants rests on the ocular evidence of Muhammadji (P. W. 6) a nephew of the deceased, Yaqoob (P. W. 7) and Gul Zaman (P. W. 8) sons of the deceased. Wali Jan (P. W. 9) belongs to the brotherhood of the deceased and Mst. Roshan Jan (P. W. 10) is the widow of the deceased, besides the identification parade as discussed earlier.

10. The appellants denied their guilt. Nigah Ali Shah appellant stated that he was shown to the witnesses when he appeared before the D. S. P. and so he was correctly identified in the jail by them. Both the appellants stated that they have been implicated on account of suspicion. They did not produce any defence.

11. I have heard the learned counsel for the appellants and the learned State Counsel. I have also gone through the evidence on record.

12. The learned counsel for the appellants contended that the appellants and acquitted accused were not named in the F. I. R. and that the identifi cation parade was a farce in this case. I sea force in this contention of the learned counsel for the appellants. It was frankly admitted by the counsel for the State that neither the appellants nor the acquitted accused were named in the F. I. R. and the accused, who was armed with a hatchet had a golden cover over his tooth. S. I. Nematullah (P. W. 12) has admitted in his cross‑examination that when the accused appeared before him none of the tooth of the accused had a golden cover on it. So the presence of Nigah Ali Shah appellant at the time of occurrence becomes highly doubtful. The eye‑witnesses are related inter se and they are also related to the deceased a discussed earlier. There is no independent corroboration of their testimony. Moreover I find that Muhammadji (P. W. 6) has stated in his cross‑examina tion that he did not remember if he stated before the committing Magistrate that when he produced Yaqoob, Mst. Roshan Jan and Wali Jan P. Ws. before the D. S. P. the latter asked the Sub‑Inspector to produce the accused and he was duly confronted with his statement where it is so recorded at portion D to D. He further stated that he did not remember if the Sub- Inspector only produced two or three prosecution witnesses before the D. S. P. and the rest were sitting outside and whether he stated so before the committing Magistrate but he was duly confronted where it is so recorded at portion E to E. He further stated that he did not remember if the witnesses were in the room when Sub‑Inspector brought in two accused, namely, Nigah Ali Shah and Channan Shah and he did not remember to have stated so before the committing Magistrate, but he was duly confronted where it is so recorded at portion F to F. In view of this testimony of Muhammadji P. W. it is quite clear that both the appellants had been shown to the witnesses and the identification parade held by Muhammad Nawaz Magistrate 2nd Class (P. W. 5) was a farce. I also find that Muhammad Nawaz (P. W. 5) has stated in his cross‑examination that Channan Shah appellant was having beard while Nigah Ali Shah appellant had a conspicuous mark on his right cheek because this fact was not pointed out by the appel lants to him nor he made any note about that in his report. He has further stated that he cannot refute the suggestion that none of the under‑trial prisoners was having beard though he had noted at the time of identification parade that Channan Shah appellant was having beard. He has further admitted in his cross‑examination that Nigah Ali Shah appellant bad objected that a day earlier in the morning the witnesses travelled with him in the bus and therefore they knew him. Even the learned Sessions Judge had admitted in his judgment that the identification parade was not held strictly according to the prescribed rules and it was due to the fact that the Magistrate had not properly gone through the prescribed rules and authorities on the subject.

13. In view of the above discussion the prosecution case against the appellants becomes highly doubtful. I, therefore, accept this appeal, set aside the conviction and sentences of the appellants and acquit them. They shall be released forthwith if not required in any other case. Appeal allowed