2001 PLP 505 (YLR)

5. During the course of trial, the prosecution has examined P. W.1 complainant Ghulam Muhammad at Exh.6, who has produced the F.I.R. as Exh.6/A, as eye witness of the incident, P. W.2 Ghulam Muhammad at Exh.7, who has acted as Mashir of Wardat and inquest report and has produced the same at Exhs.7/A and 7/B respectively, P. W. Fida Hussain was given up by the learned A.P.P. vide his statement at Exh.8, P. W.3 Khadim Hussain at Exh.9 as eye-witness of the incident, P.W. Ghulam Abbas was given up by the learned A.P.P. vide his statement at Exh.9/A, P.W.4 P.C. Rustam Ali Exh.10 the corpse bearer and produced such receipt of delivery of dead body to the complainant after the post -mortem examination at Exh.10/A, P. W.5 Tapedar Lai Muhammad at Exh.11, who has prepared the sketch of Wardat by showing the distances directions and marginal notes therein and has produced the same in triplicate at Exh.11/A, P.W.6, Investigating Officer/S.D.P.O. Agha Muhammad Tahir at Exh.12, who has, produced the Mashirnama of arrest of the accused and recovery of blood-stained knife from accused Shahzado at Exhs.12lA and 12/B respectively, P. W.7 Dr. Aijaz Ali Tunio at Exh.13, the then Medical Officer at C. M. C. H. , Larkana, who conducted the post-mortem notes over the dead body of deceased Mst. Mumtaz Khatoon and has produced such notes at Exh.13/A, P. W.8 Asadullah at Exh.14, who has acted as Mashir of recovery of blood-stained knife, P.W.9, H.C. Ashique Ali at Exh.20, who has acted as Mashir of the arrest of accused, P.W.10 Ali Sher Exh.25 the then Assistant Mukhtiarkar and T.C.M. Larkana, who held the identification parade of the present accused and has produced such memo. at Exh.25/A. Thereafter, the side of the prosecution case was closed by the learned D.D.A. vide-statement at Exh.28.

6. Both the present accused were examined in terms of section 342, Cr.P.C. at Exhs.29 and 30 respectively, in which, they have denied the prosecution allegations levelled against them and claimed their innocence and falsely implicated at the hands of police and also denied their identification by the eye-witnesses. So far as the recovery of incriminating weapon is concerned, they alleged that the same has been foisted upon them. They, however, did not lead any evidence in their defence nor examined themselves on oath.

7. Learned trial Court formulated the points for determination as under:-- (1) Whether deceased Mst. Mumtaz Khatoon died as unnatural death as a result of knife injuries? (2) Whether the above injuries were caused by the present accused? (3) Whether complainant Ghulam Muhammad and P.W. Khadim Hussain are the only eye-witnesses of the incident? (4) Whether both the present accused were put to an identification parade held before Assistant Mukhtiarkar and T. C. M. Larkana and the present accused were picked out by both the above named eye-witnesses in presence of the Mashirs? (5) Whether incriminating blood-stained knife was recovered from the possession of accused Shahzado at his pointation in presence of two Mashirs? (6) What offence, if any, has been committed by the present accused?

8. After having gone through the evidence adduced by the prosecution and other material available on the record, the trial Court has passed the judgment in terms as stated above.

9. Mr. Ali Nawaz Ghanghro, Advocate for appellant No.2 and Mr. Safdar Ali Bhutto, Advocate for appellant No. 1 have argued that the motive in the F.I.R. has not been assigned by the complainant and even the complainant has not stated before the trial Court with regard to the motive. According to them, there are two witnesses namely Ghulam Muhammad complainant and Khadim Hussain and they are interested witnesses and independent corroboration is lacking in the matter. Mr. Ali Nawaz Ghanghro and Mr. Safdar Ali Bhutto have also argued that P.W. Khadim Hussain was not examined by police under section 161, Cr.P.C. who has admitted in examination-in-chief that he was not examined by the police. Both the learned counsel have argued that the appellants have been arrested on 2-3-1991 and thereafter on 10-3-1991 they have been subjected to identification parade which was supervised by Assistant Mukhtiarkar and T.C.M., Larkana. According to them, the recovery is doubtful against the present appellants. Mr. Ali Nawaz Ghanghro and Mr. Safdar Ali Bhutto have argued with vehemence that the material witness namely Ghulam Abbas who is son of the deceased and complainant was examined by police on 1-3-1991 stating therein that a week ago prior to the incident there was scuffle between the deceased and the accused with Abbas to which deceased objected. Such statement is available with the prosecution and yet such witness has not been examined by the prosecution and there is no explanation whatsoever in this regard. Mr. Ali Nawaz Ghanghro and Mr. Safdar Ali Bhutto have further argued that there is only a piece of evidence against the present appellants in the shape of identification parade which has been held on 10-3-1991 after the delay of 8 days and during the identification parade no role ascribed to the appellants by the witnesses who claim to have seen the accused persons during the commission of the offence and such identification parade looses the sanctity and it is joint identification parade under the supervision of Assistant Mukhtiarkar and T.C.M. Larkana which was held after 10 days. Both the learned counsel have argued that the numbers of dummies are sixteen with two accused less than the ratio which is against the law as held by Honourable Supreme Court in Lal Pasand's case. Finally, both the learned counsel have argued that the case is doubtful and benefit of doubt goes to the appellants and prayed for acquittal.

10. On the other hand learned counsel for the complainant Mr. Ghulam Hyder Baloch has contended that admittedly there is no motive being advanced by the prosecution but both the appellants have killed deceased with knife and the recovery blood-stained knife have been effected front the possession of the accused persons and there is delay in holding the identification parade but the same cannot be brushed aside on sole reason that there is delay in holding the identification test parade. He, has further contended that no doubt Abbas has not been examined, but the appellants to connect them with the alleged offence and has supported the impugned judgment Mr. Gul Hassan Solangi, Advocate for Additional Advocate-General for the State has also supported the impugned judgment and has not controverted the contentions raised by the learned counsel for the complainant.

11. I have heard the learned counsel for the parties and have gone through the depositions of the prosecution witnesses and have also gone through the material available on the record.

12. Admittedly the accused persons were not seen by the complainant Ghulam Muhammad and Khadim Hussain and they were not known to the afore-named witnesses. Admittedly on 1-3-1991 the statement of Ghulam Abbas has been recorded by police under section 161, Cr.P.C. wherein he has stated that a week ago there was a quarrel between the accused and the deceased Mst. Mumtaz as the accused wanted to have friendship with Abbas, but she objected and he has further stated that he has suspected that they might have killed the deceased. Admittedly the statement of Khadim Hussain was not recorded by the police under section 161, Cr.P.C. who has also admitted in examination-in-chief. The amazing part of the case is that whole case depends upon Abbas who is son of the complainant and yet he has not been examined by the prosecution and there is no such explanation whatsoever in this regard as to why this witness Ghulam Abbas has not been examined by the prosecution. Reliance can be placed on PLD 1988 Kar. 523 and 1972 SCMR 286.

13. Admittedly there is inordinate delay in holding the identification parade and there is no explanation whatsoever on the part of the prosecution as to why the identification parade has been held after inordinate delay and there is every possibility that the appellants who were thrown in lock-up and were taken out for remand might have been seen by the afore-named witnesses when both the witnesses who claim to have seen the accused persons during the commission of offence were easily available at the place of Wardat and yet no efforts made by the police to put the appellants to identification parade immediately, on the contrary it has been consumed sufficient time in holding the identification parade and the same has been supervised by the Assistant Mukhtiarkar and T.C.M., Larkana who is not competent to supervise the identification parade. Reference can be made on PLD 1996 Kar.

246. The mode of identification and rules have been described in. the aforementioned authority. It is startling to note that since accused were not known to the complainant party and Khadim Hussain and there is no evidence with the prosecution that when they were arrested, they were brought at police station with veiled faces and thereafter when they were thrown in lock-up where any curtain was drawn over the lock-up to minimize the chances of being seen the accused by the witnesses and when they were taken for identification parade whether they were veiled faces or not and no such efforts have been taken by the police and in these circumstances the identification parade looses the sanctity. No marks of identification of the witnesses have been noted down by the Assistant Mukhtiarkar and T. C. M., Larkana. Admittedly the identification parade is not reliable under the law. As far as the recovery is concerned, the Mashimama of recovery is said to have been prepared at police station. Moreover, during the identification parade no role has been ascribed to the appellants when the witnesses namely Ghulam Muhammad and Khadim Hussain claim to have seen the appellants during the commission of offence. It was their duty to point out at the accused persons by saying that it is he who caused knife injuries to deceased and it is he who I held the deceased, but no role has been ascribed by the aforenamed witnesses during the identification parade and on this score the sanctity of identification parade is lost. Reference is made to the case of Mehmood Ahmad and 3 others v. The State reported in 1995 SCMR 127, wherein the Honourable Supreme Court has held that no role has been ascribed during the commission of offence and the sanctity of identification parade by the witnesses is lost. The prosecution has miserably failed to bring on record the motive and the motive is shrouded in mystery. The evidence against the present appellants is in the shape of identification parade which is a weakest type of evidence as held in 1994 SCMR 137 by the Privy Council. The Honourable Judges of the Privy Council have held that three pieces of evidence cannot be relied from all the angles (i) Evidence of children (ii) evidence of an accomplice and (iii) identification. Since the material witness has not been examined by the prosecution namely Ghulam Abbas and the motive is shrouded in mystery and the piece of evidence against the present appellants which is the weakest type of evidence and the same is not held in accordance with the procedure laid by the superior Courts giving benefit of doubt to the appellants and accordingly the impugned judgment is set aside. In result, the appeal is allowed and the appellants be released forthwith if not required in any other case. N.H.Q./A-156/K Appeal accepted.