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Criminal Appeals Nos. 43 and 41 and Murder Reference No. 95 of 1981, decided on 7th April, 1984.

--S. 402/34-Murder-Prosecution witnesses related inter se and also to deceased-Eye-witnesses did not give names of assailants but mentioned their features only-No reasonable explanation given by prosecution for delay in holding identification parade-Accused raised objection at time of identification parade that they had been shown to prosecution witnesses and Magistrate conducting such parade had noticed their objection in his report-Statement of wit nesses that they bad seen occurrence from a distance of acre in moonlit night made identification highly doubtful-Eye- witnesses, having had a momentary glimpse of accused persons in moonlit night from distance of acre in very short duration of occurrence and their recollecting features of accused persons for such a long period not appealed to reason-No motive for occurrence given by prosecution witnesses-Common intention of murder of deceased by accused persons not proved as one of them was empty-handed --Roll assigned to co-accused appeared to be artificial-Other wit nesses said to have also witnessed occurrence not examined by prosecution-Trial Court disbelieved recovery of wrist watch and golden ring, belonging to deceased, from accused-Recovery of crime weapon from kotha of accused also doubtful, such recovery having taken place nearly two months after occurrence-Witness testifying recovery was disbelieved by trial Court with regard to recovery of ring and watch belonging to deceased from accused-Other witness of recovery given up by prosecution-Held, circumstances appeared to have been introduced to involve accused after arrest by planting watch and ring on them which trial Court rightly disbelieved-Identification in moonlit night and torch light was a very weak type of evidence which should not be relied upon in absence of confirmatory circumstance-Prosecution, in circumstances, had therefore, failed to bring home charge to accused beyond reasonable doubt- Conviction and sentence of accused was set aside and accused acquit ted by giving benefit of doubt.-[Benefit of doubt].

Sahibzada Farooq Ali and M. Sultan Alam for Appellant.

Khalid Alvi for the State.

Date of hearing: 7th April, 1984.

-Muhammad Shafi son of Hassan Bakhsh, aged 40 years, and Allah Bakhsh son of Rahim Bakhsh, aged 30 years, were tried by the learned Additional Sessions Judge, Multan for the murder of Muhammad Bashir deceased on 31st August, 1979, at 8 p. m. in the area of Mauza Kot Rab Nawaz, Police Station, Makhdoom Rashid with a stick and were convicted on 23rd February, 1981 under section 302134, P. P. C. and sentenced as under:

(a) Muhammad Shafi to death and a fine of Rs. 5,000.

Allah Bakhsh to imprisonment for life and a fine of Rs. 5,000 or in default to undergo further R. I. for 2 years. Half of the recovered fine was ordered to be paid to the heirs of the deceased.

We have before us the appeals as also the connected murder reference.

2. The prosecution case is that on the fateful night Faiz Bakhsh (com plainant) P. W. 11 alongwith Muhammad Afzal was watering his fields. It was a moonlit night and they were having torches with them. On hearing an alarm they rushed towards the spot and saw a person of medium height and stout built catching hold of Muhammad Bashir deceased and another person of tall height holding a bamboo stick. The latter inflicted a blow on the head of the deceased, on receiving which he fell down whereafter the said persons ran away. The P. Ws unsuccessfully chased them. Muhammad Shafi and Muhammad Rafiq (given up) also reached the spot and witnessed the occurrence. Faiz Bakhsh P. W. 11 left for the police station where he lodged the F. I. R. Exh. P. C. with Safdar Hussain Nazir S. I. on the same night at 9 p. m. while he was present at pull Chatta. The distance between the police station and the spot, being 7 miles.

3. The S. I. proceeded to the spot and on reaching there prepared the injury statement Exh. P. R. and inquest report Exh. P. R./1 of Muhammad Bashir deceased. He took into possession the torches pro duced by the P. Ws before him which they were allegedly carrying at the time of occurrence. He took moulds of the footprints P. 6 to P. 9 from the spot. He arrested the appellants on 4th October, 1979. A pair of shoes P. 13/1-2 worn by Muhammad Shafi appellant was removed from his feet. Likewise the shoes P. 14/1-2 were removed from the feet of Allah Bakhsh appellant and made into sealed parcels. Allah Bakhsh appellant was wearing a wrist watch P. 11 belonging to the deceas ed which was taken into possession through memo. Exh. P. N. On the same day Muhammad Shafi appellant got recovered golden ring P. 12 of the deceased from his kotha from a box. Muhammad Shafi appellant also got recovered blood-stained dang P. 15 from his residential kotha through memo. Exh. P. Q. The S. I. submitted application Exhs. P. K. and P. K/1 to the Magistrate for conducting their identification parades which were held in the premises of the District Jail, Multan on 4th November, 1979 under the supervision of Muhammad Aslam Arshad, M. I. C., Multan P. W. 13.

4. Muhammad Aslam Arshad, M. I. C. who conducted the identification parade stated that before the commencement of the proceedings he had enquired from the appellants if they had any objection to the identifi cation parade to which they replied that they had been asked to walk at the police station at the time of their arrest and that their footprints had been shown to the trackers, According to the Magistrate Muhammad Shafi and Shahra trackers correctly identified the footprints of the appel lants. Thereafter Faiz Bakhsh, Muhammad Afzal, Muhammad Rafiq and Muhammad Shafi P. Ws. were called upon to identify the appellants who again objected that they had been earlier shown to the witnesses and further that they knew them well because they were, residents of the same place. Faiz Bakhsh, Muhammad Afzal and Muhammad Shafi correctly picked up the appellants one after the other. Muhammad Rafiq, how ever, failed to identify either of the appellants. Exhs. P. L. and P. M. are the reports of the two identification proceedings.

5. Dr. Riazuddin P. W. 1 conducted autopsy on the dead body of Muhammad Bashir deceased (16/17) and found the following injury on his person

A contused wound 6 c. m. x 1 c. m. x bone deep on the right side of head 6 c.m. above the right eye-brow fracture of frontal bone gabing through the wound with the brusing of right eye.

There was a fracture of frontal left temporal and left parietal bone. Right side of anterior cranial fossa and left side of middle fossa were also fractured. The injury was ante-mortem caused with blunt weapon and fatal. Death occurred due to compression of brain and shock. The time between injury and death was 1 to 2 hours and that between death and post- mortem 24 hours. Exh. P. A. is the post-mortem report. Exh. P. A./1 is skiagram of the injury.

6. The appellants pleaded not guilty to the charge and denied the prosecution allegations. As regards their identification they stated that the police had associated them in the investigation 7 days before their arrest and that the P. Ws. had been meeting them at the police station as also at the spot. They did not call any oral evidence in defence but produced the copies Exhs. D. A., D. B. and D. C. of the statements of Muhammad Shafi, Faiz Bakhsh and Muhammad Afzal made by them before the police during the investigation.

7. Faiz Bakhsh P. W. 11 and Muhammad Afzal P. W. 12 furnished the ocular account. Fazal Din P. W. 14 and Safdar Hussain Nazir P. W. 15 proved the recoveries from the appellants. Muhammad Shafi P. W. 8 and Shahra P. W. 10 trackers identified the footprints of the appellants. S. I. Safdar Hussain Nazir P. W. 15 investigated the case.

8. The learned trial Court disbelieved the identification parade of footprints, recoveries and the motive. However, it considered the ocular evidence coupled with the identification parade and the medical evidence sufficient to warrant the conviction of the appellants and relying upon these pieces of evidence convicted and sentenced the appellants as stated above.

9. Learned counsel for the appellants contends that the evidence of identification parade is not worthy of reliance and that the alleged eye witnesses being interested, inimical and chance witnesses should not have been relied upon without any independent corroboration. It is further stated that Muhammad Shafi and Muhammad Rafiq P. Ws. named as eye witnesses in the F. I. R. were given up without any reason.

10. Admittedly, Faiz Bakhsh P. W. 11 and Muhammad Afzal P. W. 12 are related inter se as also to the deceased. According to them they were watering the field and were in possession of the torches when the occurrence in question took place. They claimed to have noted the features of the appellants in the moonlight and with the help of torches. In the F. I. R. they did not give the names of the appellants but mentioned their features only. According to them they identified the appellants subsequently in the identification parade. According to the learned counsel the appellants were arrested on 4th October, 1979 and that there is no reasonable explanation for such a long delay in holding the identification parade. He states that the appellants had raised the objection at the earliest opportunity that they had been shown to the P. Ws. and the Magistrate conducting the parade had noticed their objection in his report. Since there was a considerable gap between their arrest and the identification parade, the possibility of their having been shown to the P. Ws. cannot be ruled out.

According to the site plan the witnesses were present at the distance of 5J acres from the spot when they heard the alarm raised by the deceased and that they had seen the occurrence from a distance of 1/2 acre. This makes the identification highly doubtful. The occurrence took place or the night of 31st August, 1979 whereas the identification parade was held on 4th November, 1979. Because of the very short duration of the occurrence the P. Ws. would have had a momentary glimpse of the appellants and their recollecting the features of the appellants for such a long period does not appeal to reason. Learned counsel for the appellants has cited a number of authorities to show that the identification in moon light and torch light is a very weak type of evidence and should not be relied upon in the absence of other confirmatory circumstance. No motive for the occurrence has been given by the P. Ws. If both the appellants had come to the spot sharing common intention of murdering the deceased Allah Bakhsh would not have come empty-handed. The role assigned to him of clasping the deceased appears to be artificial. Muhammad Shall and Muhammad Rafiq who had also witnessed the occurrence were not examined by the prosecution. The recoveries of wrist watch P. 11 and golden ring P. 12 of the deceased from the appellants have been disbelieved by the trial Court. The recovery of blood-stained stick P. 15 from the residential kotha of Muhammad Shafi is also not free from doubt. This recovery had taken place on 4th October, 1979 nearly two months after the occurrence. The appellant could not be expected to keep the blood stained stick in his house for such a long period when he could have easily disposed of the same. Fazal Din P. W. 14 who testified to this recovery has been disbelieved by the trial Court with regard to the recoveries of wrist watch and golden ring from the appellants. Abdul Shakoor the other witness of this recovery was given up by the prosecution. The falsity of the complainant is apparent from the fact that in the F. I. R. he stated that the deceased was wearing a golden ring and Romer wrist watch with white dial bearing the words R. W. which according to him the appellants had taken away after the occurrence. It was a night occurrence, how could he know about the make of the watch and the words appearing on the dial. It appears that this circumstance was introduced to involve the accused after arrest by planting these articles on them which was in fact done but the trial Court did not take this circum stance into consideration against the appellants and disbelieved the pro secution version in this respect.

11. For the foregoing reasons the prosecution -has failed to bring home the charge to the appellants beyond all reasonable doubt and con sequently we accept their appeal, set aside their conviction and sentence and acquit them of the charge by giving them the benefit of doubt.

They shall be released forthwith if not required in any other case.

The death sentence of Muhammad Shafi appellant is not confirmed.

M. Z. M. Appeal accepted.

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