SHER KHAN Versus STATE
1. The appellants above‑named, being aggrieved by judgment dated 8th March, 1982, o: the learned II1rd Additional Sessions Judge, Karachi, in Sessions Case No. 173/77 by which the appellants in both the appeals have been convicted under section 302/34, P. P. C. and sentenced to suffer life imprisonment and also sentenced to pay a fine of Rs. 2,000 each or in default in payment of said fine to suffer further R. I. for six months, have preferred the above two appeals on the following facts and grounds :‑
2. The prosecution case as unfolded at the trial is this that P. W. Mst. Rabat was residing in house No. C/28/4, Federal B' Area, Karachi, alongwith her father and mother‑in‑law. Deceased Iffat was also residing with them. On 8th January, 1977 Mst. Rabat, deceased Mst. Iffat and accused Naseer who is the domestic servant of these ladies were present in the house. Mr. Rabat and Mst. Iffat were watching television programme, when two persons armed with chchuris entered the house. Both the persons attacked theta. One of the culprits caused chhuri injury to Mst. Iffat and the other culprit attempted to cause injury to her, but she saved herself. Both the culprits ran away from the wardat. P. W. Ishtiaq brother‑in‑law arrived there. Mst. Rabat informed him of the incident. Mst. Iffat was taken to Abbasi Shahecd Hospital by Ishtiaq, Mst. Rabat and other people of the locality. Mst. Iffat died in Abbasi Shaheed Hospital.
3. A telephone call was made by one Mumtaz and Gulberg Police was informed, therefore P. W. Abrar Hussain A.S.I. went to the hospital at 7.30 p.m. and found dead body of deceased Mst. Iffat lying. He prepared the inquest report over the dead body in presence of Tawakal Hussain and Man---Mehdi. In the mean while S.H.O. Malik Ghulam Hussain arrived at the hospital and the investigation papers were handed over to him.
4. P. W. Ishtiaq was present in the hospital and therefore S.H.O. recorded statement of Ishtiaq under section 154, Cr. P. C. and sent the said statement to the P.S. for recording FIR. The SHO verified inquest report prepared by A.S.I. Abrar Hussain. Thereafter the I.O. visited the vardat and secured a muffler on which Sher Khan was written. He also secured blood‑stained articles from the scene of offence and prepared mashirnama of wardat and deputed an expert to collect fingerprints from the wardat. The I.O. recor ded 161, Cr. P. C. statement of Mst. Rabat, Tajlay Hussain, Farhat Ali, Muhammad Naseer, Tausawar Hussain, Syed Sarfraz Hussain, Syed Tawakal Hussain, and thereafter the I.O. arrested accused Naseer who was a private servant in the house of the deceased and found absent from there. On 9th January, 1977 Sher Khan was arrested in presence of mashirs Ali Ebsan and Syed Asif Ali and a chhuri was secured from his personal search. Thereafter the 1.0. proceeded to Musafrabad Colony and in presence of mashirs Abdul Rehman and Syed Agha arrested appellants Naseer and Khursheed and on personal search of appellants Khursbeed a bunch of keys were secured and blood‑stained clothes of appellant Khursheed were secured and sealed in presence of same mashirs. Appellant Khursheed led the police and the mashirs to Peoples Colony and produced a chhuri from the box. The chhuri was blood‑stained therefore it was sealed in presence of the same mashirs: The I.O. also took the finger‑prints of all the three appellants and sent to the finger prints expert, Karachi, for opinion. Thereafter all the three appellants were produced before A. C.M. No. VII Mr. Ahmed Ali Khokhar for identification test. In the identificatiou test P. W. Mst. Rabat, P. W. Mubin and P. W. Sarfraz Hussain correctly identified the present appellant as persons who had entered the house in question and committed murder of Mst. Iffat. P.W. Ishtiaq Hussain identified the bunch of keys which were secured from appellant Khurshid in presence of the mashirs. According to the opinion of the finger prints expert the prints taken by him from the wardat are identical with the prints sent to him by S.H.O. Gulberg of appellant Muhammad Khurshid son of Kaley Khan. The blood‑stained articles were sent to Chemical Analyser and according to report of chemical analyser Exh. 39 all articles are stained with human blood except article No. 8 on which the blood has disintegrated. The blood is not detected on articles Nos. 10 and 11.
5. After usual investigation the case was sent to this Court for trial.
6. All the three appellants in their 342, Cr. P. C. statements denied each and every allegation of the prosecution and claimed that they have been falsely involved.
7. The prosecution examined the following witnesses in support of its case: ‑‑
8. P.W. 1, Syed Ishtiaq Hussain Rizvi Exh. 4.
9. P.W. 2, Mst. Rabat Exh. 6.
10. P.W. 3, Syed Sarfraz Hussain Rizvi Exh. 7.
11. P.W. 4, Syed Asif Ali Exh. 8.
12. P.W. 5, Tawakal Hussain Exh. I.O.
13. P. W. 6, S. Mubin Ahmed Exh. 13.
14. P.W. 7, Abdul Rehman Exh. 14.
15. P. W. 8, Syed Tajlay Hussain Exh. 17.
16. P.W. 9, Dr. Ali Hussain M.O. Exh. 21.
17. P.W. 10, Dr. Abdul Majeed Khan M. O. Exh. 23.
18. P.W. 11, Azizullah Qureshi A.S.I. Exh. 27.
19. P.W. 12, Abrar Hassan ASI, who recorded entry in roznamcha Exh. 28,
20. P.W: 13, Hamid Hassan Khan, finger‑print expert Exh. 30.
21. P.W. 14, Muhammad Siddique P. server for P.W. Muhammad Asif Exh. 34.
22. P. W. 15, Ghulam Hussain I.O. Exh. 37.
23. Appellants led no defence.
2. The learned trial Court taking into consideration the evidence adduced by the prosecution, convicted and sentenced the appellants above‑named by impugned judgment while acquitted co‑accused Muhammad Naseer and consequently the appellants filed the above two appeals separately, on the grounds mentioned in their respective memo. of appeals. Since the conviction of the both the appellants is based on common judgment. I propose to dispose of both the above appeals by this common judgment. The learned Advocate for the appellants in support of the above appeals submitted as under :‑
(a) That the names of the appellants were not mentioned in the F.I.R.
(b) That the Chemical Examiner's report is negative in respect of knife alleged to have been recovered from the appellants. The P. Ws. are interested and inter‑related.
(c) That the identification test in respect of the appellants cannot be relied upon as the numbers of dumees mixed in the said test were far below the one, laid down by this Court as well as the Supreme Court in respect of the identification test dated 22nd January, 1977.
24. 1n addition to this the learned Advocate for the appellants submitted that the mashirs for the identification test before the Magistrate, who conducted identification test were not examined before the learned trial Court. Even names of the mashirs are not mentioned in the mashirnamas of identification tests.
3. In view of the above submissions the learned Advocate for the appellants submitted, that the prosecution has failed to establish its case against the appellants, beyond reasonable doubt.
4. That the learned Advocate appearing for the State submitted, that he was not supporting the impugned judgment, as the identification tests cannot be relied upon for the reasons already given by the learned Advocates for the appellants and since the names of the appellants are not mentioned in F.I.R, the identity of the appellants have not been established beyond reasonable doubt.
5. I have carefully considered the above submissions made by the learned counsel before me and have gone through the R & P of the learned trial Court very carefully. It is an admitted position, that the names of the present appellants are not at all mentioned in the F. I. R. and as such only piece of evidence to connect the present appellants, with the crime in question, rests upon identification tests of these appellants. Exh. 43 is a memo. of identification test held in respect of the above two appellants and acquitted co‑accused Muhammad Nasir Khan. According to this memo. P. W. Mst. Rahat identified both the appellants and co‑accused from a row of 15 persons. Exh. 43 shows, that only 12 persons were mixed as dummies with the three accused persons in this test which clearly shows, that ratio of dummies mixed with the appellants and the acquitted co‑accused was far below the one laid down by this Court and Honourable Supreme Court in various cases. In addition to this the Magistrate, who conducted the identification tests in question was not examined before the learned trial Court on the ground, that he was removed from service and his whereabouts were not known. Furthermore it may be noted, that the names of the mashirs of the identification test are not at all mentioned in Exh. 43 nor such mashirs were examined before the learned trial Court. The second identification of the present appellants and acquitted co‑accused Muhammad Nasir Khan by P.Ws. Syed Mobeen Ahmed, Syed Sarfraz Hussain. and Syed Ishtiaque Hussain was held down on 28th January, 1977 vide Exh.
42. In this test also appellants and acquitted co‑accused were mixed with only 11 dummies. Neither the Magistrate, who conducted the identification test nor the mashirs of identifi cation test were examined before the learned trial Court. It may further be noted, that the appellants were arrested on 9th January, 1977, but the first identification test was held on 22nd January, 1977 and the second identification test was held on 28th January, 1977. 1n spite of this, the learned trial Court has relied upon these identification tests, in orders to connect the appellants with the crime in question. The learned Advocate appearing for the State rightly conceded, that, no reliance can be placed on identification tests and once these identification tests are discarded, there is nothing on record to connect the present appellants with the crime in. question, as the recoveries of the blood stained knives, in view of the negative report of the Chemical Examine cannot be used for purposes of corroboration, against the appellants.
25. Keeping in view observations made by me regarding the identification tests in question, by which prosecution seeks to connect the present appellants with crime in question, in my opinion, prosecution has failed to establish its case against the present appellants beyond reasonable doubt.
26. Therefore, I allow the above both appeals and set aside the convictions and sentences awarded to the appellants and acquit both the appellants, by giving them benefit of doubt and direct, that they may be released forthwith, if not required in any other case.
27. Appeals allowed.