1977 P Cr (PLP)

2. The occurrence took place on the night between the 12th and 13th of August, 1969, at about 8-00 or 2-00 a. m. in the house of Mohammad Yaqoob Patawari (P. W. 13) situated in village Pidu Basharat, Police Station Pakpattan. The deceased was one Burban who was caught by Muhammad Yaqoob Patwari (P. W. 13) and others when he bad come to commit theft in the house. According to the first information report (Exh. P. E.), which was lodged by Muhammad Yaqoob Patwari (P. W. 13) on the morning of the 13th August, 1969, the complainant on the night of occurrence was sleeping with his '12 bore gut) when his son Muhammad Ashraf raised an alarm of "thief" The complainant rushed to the spot. The complainant found the thief grappling with Muhammad Ashraf. The complainant and Muhammad Ashraf along with Muhammad Afzal another son of the com plainant overpowered the thief and snatched the hatchet with which he was armed. The thief called his companion by the name of Saidu on which somebody fired a shot from outside the Haveli. Some shots were fired in reply with the result that the thieves decamped. The thief who had been overpowered by the complainant and his sons gave his name as Burhan. He was bound with ropes and was made to sit there On interrogation by the persons present there Burhan disclosed that he had come alongwith his companions Rafiq, Saidu and Imam to commit theft. He further disclosed that he had at some earlier occasion also stolen a buffalo-calf from this place He further threatened that his companions were so dangerous that they would not mind murdering the person who had captured him for fear of his companion making a disclosure of their crimes. The other persons who had been attracted to the spot left after sometime. About half an hour later, a shot was fired from outside. Two shots were then fired by the complainant on which the person who had fired the first shot tan away. After the firing the complainant found Burhan to have sustained some wound. He died after 15 minutes. Dr. Farooq Ahmad (P. W. 1) conducted the post-mortem examination, which revealed that the deceased had nine gunshot wounds. The death was due to sock and haemorrhage on account of multiple injuries, which were sufficient .in the ordinary course of nature. The doctor removed three pellets, which were found in the muscular layers of left chest and neck.

4. It is not necessary to give the details of the recoveries made in this case because none of tae recoveries have been made from or at the instance of the appellant. Reference may, however, be made to the recovery of a pistol from Imam co-accused of the appellant but it has not been produced. This pistol was sent to the Fire-arms Expert but even big report has not been proved. There is also no evidence that the pistol was delivered by the appellant to his co-accused Imam before it was taken into possession from him.

5. The prosecution case rests upon the ocular testimony of P. W. 13, Muhammad Yaqoob Patwari and P. W. 14 Muhammad Ashraf, P. W.16. Rana Muhammad Salim Akhtar, Magistrate conducted the identification parade of the appellant in jail where he was identified by both the P. Ws.

6. P. W. 13 supported the prosecution version. He clearly stated that the face of the man who fired the pistol soon after Burban was apprehended was not clearly visible. Regarding the second incident of firing, he stated that after about 20 or 25 minutes three persons entered the Ihata. Two persons stool at the door whereas one came near Burhan and fired at him with the pistol. But he nowhere stated that the man who had fired the pistol was Saidu appellant, or that he had identifier him. It was only at the end of his examination-in-chief that he states as follows: - "After two months, identification parade was held in jail. I picked up Saidu accused correctly. I have given my thumb-impression on the proceedings" He had admitted in cross-examination that it was dark night and there was no electricity at the spot. He was confronted with different portions of the first information report in order to prove that he had not identified any of the thieves. The defence has succeeded in showing that the statement made in the identification parade was an improvement on the part of the complainant. Muhammad Ashraf also did not state in the earlier part of his cross-examination that he identified any of the accused persons. It was only at the end of his examination-in-chief that he made the following statement:- "There was identification parade. I had picked up the culprit who fired at Burhan deceased. The name of the culprit was Said, I had correctly picked him up." In his cross-examination he admitted that he did not state before the police that the person who had fired at Burhan was Said. He stated that he bad made a statement before the Committing Magistrate that he had picked up the person who had fired at Burhan. He was confronted with his statement but it was not so recorded there. It is clear therefore that he has also made improvement in his statement although he did not identified any of the thieves.

7. In order to make out a case of identifying said appellant it was stated by P. W. 14 that there was a lantern but he admitted that this lantern was not taken into possession by the police.

8. I am not satisfied that either of the witnesses had seen Said or identified him at the spot, at the time of occurrence; therefore give benefit of doubt to the appellant and acquit him. He shall be released forthwith if he is not required in any other case. Appeal allowed.