1989 P Cr (PLP)

(3) An abrasion about 2 x 1/2 c.m. on lateral aspect, of left arm, blackening of the edges present and corresponding hole on clothes were present. (4) Multiple small abrasion on anterior aspect of nose: (5) A wound about 1.5 c.m. x skin deep on the anterior aspect of left ankle. Blackening of edges present." Injuries Nos. 2 and 3 were simple. Injury No.4 was by blunt weapon and the rest were caused by fire‑arm. On the safe day he examined Asghar Ali P.W. and found the following injuries on his person:‑ (1) "A circular, wound about 1 c.m. in diameter on left side of face over mandible about 5 c.m. lateral to left angle of mouth. Blackening of the edges preset. (2) A circular wound about 1/2 c.m. in diameter over left side of neck about 2.5 c.m. below the left ear, blackening of the edges were present. (3) A roughly circular wound 1 x 1/2 c.m. on the left side of neck about 5 c.m. below injury No.2. (4) A roughly circular wound about 3 x 2.5 c.m. on the anterior aspect of left shoulder just above the lateral 1/3rd of clavical. Blackening of edges were present and corresponding hole in the clothes present. (5) A roughly circular wound about 1.5 x 1 c.m. on the lateral aspect of left shoulder. Blackening of edges present and corresponding hole on clothes were present. (6) A circular wound about 1/2 c.m. in diameter on the back of chest about 3 c.m. lateral to the medial border of scapula. Blackening of edges and corresponding hole on the clothes were present." All the injuries were caused by fire‑arm. Injuries Nos.1, 2 and 3 were declared dangerous to life and the rest were simple. On the same day the doctor examined Atta Ullah and found following injury on his person:‑

"Multiple small circular wounds about 9 or 10 in number, each wound about 1/2 c.m. in diameter on the right half of back of chest on the lower part of scapula. Blackening of the edges were present and corresponding hole in the clothes were present. The injury was caused by fire‑arm and was found simple. The appellant was arrested by Sana‑ul‑Haq, Inspector, P.W.15 on 14‑5‑1988. On 15‑5‑1988 parade for his identification was held under the supervision of Abdul Majeed, Naib‑Tehsildar P.W.19. Muhammad Aslam P.W. 12 and Manzoor Ahmad P.W.13 identified the appellant correctly. The appellant was produced before Sajjad Hussain Shah, M.I.C. P.W.7 for recording confession. The appellant made confession Exh.P.O./5 before him. Nothing incriminating could be recovered from him.

6. The charges against the appellant were that:- Firstly: He alongwith his co‑accused armed with kalashnikoves, rifles and guns stopped Tralla Bus No. 1250/LHB, Truck No. 7175/FDA and Truck No.1068/AJKB and robbed Muhammad Aslam, Driver of wrist watch, Conductor Ashiq Muhammad of Rs.4,000 and wrist watch, Ahmad Bakhsh of Rs.1,250 and wrist watch, Ali Ahmad of Rs.25 and wrist watch, Muhammad Ashraf of Rs.400, Sajjad Ahmad of Rs.300, three suits and bag, Ghulam Mustafa of Rs.250 and clothes (two suits) and injured the P.Ws. with deadly weapons in the course of dacoity; Secondly: He and his co‑accused conjointly murdered Abdul Karim, a passenger. Thirdly: Launched murderous assault on Arshad Ahmad, Liaqat Ali, Asghar Ali and Ata Ullah P.Ws. by firing shots on them; Fourthly: Committed robbery by looting Manzoor Ahmad of silver Tavees and identity card, Peeran Ditta of `Dholen of silver', Khuda Bakhsh of Rs.100 and wrist watch and Karim Bakhsh of Rs.200 and wrist watch; He denied the charges and claimed to be tried.

7. To prove its case, prosecution produced as many as 22 witnesses. P.W.10 Amir Khan, Driver, Irshad Ahmad P.W.11, Muhammad Aslam, Driver, P.W.12, Manzoor Ahmad P.W.13 and Ashiq Muhammad, Conductor, P.W.16, are the eye‑witnesses of the occurrence. Amir Khan, Driver, P.W.10, Irshad Ahmad P.W.11 and Ashiq Muhammad P.W.16 have not named the appellant in their statements before the Court. In his examination‑in‑chief, Muhammad Aslam P.W.12 stated that:‑

"I had correctly identified the accused present in Court (Hakim alias Manthar) during identification parade held in the District Jail, Rahimyar Khan. He had a rifle at the time of occurrence." In cross‑examination, he stated:‑

"I identified the accused as the person who had committed the occurrence alongwith the other dacoits on account of my suspicion. I cannot say with certainty that it was Manthar accused present in Court who had committed above occurrence." Manzoor Ahmad P.W.13 stated:‑

"I correctly identified the accused present in Court (Hakim alias Manthar) as one of the dacoits. He had kalashnikov at the time of occurrence. I had identified him correctly in District Jail, Rahimyar Khan. In cross‑examination, the witness stated:‑

"It is correct that I cannot see from my left eye. My right eye is alright." The witness further stated that the night of occurrence was dark. Sajjad Hussain Shah, M.I.C. P.W.7 has proved Exh.P.O./5 made by the appellant before him. Abdul Majeed, Naib‑Tehsildar, P.W.19 has proved the identification parade. Dr. Shahid Naeem P.W.5 has proved the post‑mortem examination report of the deceased. Dr. Rashid Ahmad P.W.6 has proved the medico‑legal reports of the injured P.Ws. The rest of the evidence is more or less of formal nature.

8. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He did not produce any witness in defence. He did not make statement on oath in disproof of the charges against him.

9. Believing ocular evidence, confessional statement Exh.P.O./5, identification proceedings proved by Abdul Majeed, Naib‑Tehsildar, P.W.19 and the circumstances of recovery of crime empties, judicial confession made by the co‑accused, medical evidence and the abscondence of the appellant, the learned trial Court has convicted and sentenced the appellant as stated above.

10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubts; that the eye‑witnesses other than Manzoor Ahmad P.W. have not correctly identified the appellant; that Manzoor Ahmad P.W. has not identified the appellant in the Court and his statement that he identified the appellant as one of the culprits in the identification parade is of no evidentiary value; that the confessional statement is too vague to connect the confession with the incident subject‑matter of the charges against the appellant; that the appellant is an infirm person with crippled arm; that he is squint eyed and was not capable of carrying kalashnikov and that the trial Court has not properly appreciated the prosecution evidence. Learned Assistant Advocate‑General has supported the judgment of the trial Court.

11. We have anxiously attended to the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statement of the accused/appellant recorded under section 342, Cr.P.C. and the circumstances appearing in the case, carefully. From the state of affairs, it is very much obvious that the judicial confession Exh.P.O./5 and the ocular evidence furnished by the four eye‑witnesses namely Amir Khan P.W.10, Irshad Ahmad P.W.11, Muhammad Aslam P.W.12, Manzoor Ahmad P.W.13 and Ashiq Muhammad, Conductor, P.W.16 are the main pillars of the structure of the prosecution. Taking up the judicial confession first, we find that the same is too vague to connect it with the occurrence of this case. In the confession, the date of occurrence, the name of the deceased, the names of the injured P.Ws. and the names of the persons who were robbed of cash, etc. are not mentioned therefore, it cannot be said with certainty that the appellant had confessed the charges against him. This piece of evidence has, therefore, to be excluded from consideration.

12. Taking up the ocular evidence, we find that Amir Khan P.W.10, Irshad Ahmad P.W.11 have not named toe appellant in their statements before the Court. In cross‑examination, Muhammad Aslam P.W.12 stated that he had identified the appellant on account of his suspicion and he could not say with certainty that the appellant had committed the crime. Ashiq Muhammad, Conductor, P.W.16 has also not named and identified the appellant as one of the offenders. There remains the evidence of Manzoor Ahmad P.W.13. He had not identified the appellant as one of the culprits in the Court. He simply stated that he had correctly identified him 15 days before in District Jail, Rahimyar Khan in the identification parade. This, to my mind, is 'not a clear evidence of the identification of the appellant as laid down in P L D 1950 Lah.

271. After having discarded the crucial piece of evidence i.e. ocular evidence and judicial confession, there remains the circumstances of his abscondence, judicial confession by the co‑accused, medical evidence and the recovery of empties from the spot, which accepted at its face value do not furnish satisfactory basis for convicting the appellant under sections 396/395 and 397/395, P.P.C. nor these can rehabilitate the judicial confession or the ocular evidence. It is, by now, well -settled that whenever independent corroboration of the ocular evidence or of the judicial confession is required for the safe administration of justice, that is always with regard to the story of the prosecution as well as to the identity of the offenders. The 'circumstantial evidence relied upon by the trial Court does not furnish any corroboration with regard to the identity of the appellant. For all these reasons, we are of the view that the prosecution has failed to prove its case beyond reasonable doubts. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant, he is acquitted of the charges. He shall be released fortwith, if not required to be detained in any case. M.Y.H./H‑107/L Appeal allowed.