' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,276/J of 2000 filed by Muhammad Arif, Muhammad Saleem and Muhammad Wazir, appellants through jail and Criminal Appeal No,1817 filed by Muhammad Arif, appellant through counsel. It is to be noted that Muhammad Arif is also an appellant in the appeal filed through jail. Criminal Revision No,122 of 2000 filed by the complainant for enhancement of sentence of the convicts shall also be disposed of through this single judgment.
' All the three appellants were convicted and sentenced by Special Judge (STA) Court, Mianwali vide judgment, dated 22-1-2000 as under:-- ' Muhammad Arif: Death and to pay compensation to the tune of Rs,20,000 in default six months SI under section 302(b) read with section 34, P.P.C.
' Muhammad Saleem and Muhammad Wazir: Imprisonment for life and to pay Rs,20,000 as compensation, in default six months SI under section 302(b) read with section 34, P.P.C.
' All the three appellants were also convicted under section 324 read with section 34, P.P.C. And sentenced to undergo Five (5) years RI and to pay a fine of Rs,10,000 each, in default one year RI each.
' The sentences of Muhammad Saleem and Muhammad Wazir appellants were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts of the case are that on 4-6-1997 at evening time, Nazir Ahmad, complainant went to the. Dera of Muhammad Ramzan and Muhammad Amir his cousins in connection with an urgent work. There, the complainant came to know that his cousin Muhammad Ramzan along with his mother had gone to Lahore. Muhammad Amir, the other cousin of the complainant, asked the complainant to stay with him for a night because the complainant had got late. On the asking of Muhammad Amir the complainant stayed at the dera of Muhammad Ramzan and Muhammad Amir. The complainant along with Muhammad Amir and Mst. Bakhtan and Mst. Hameedan went to their respective cots after putting the same from western to eastern side in courtyard of the house. Muhammad Ismail aged about 6/7 years son of Muhammad Ramzan also slept along with Mst. Hameedan. The complainant woke up early in the morning. At about 4 a.m., three person armed with firearms came there. One of them was aged person having small beard and moustaches while other two were quite young. The accused asked Muhammad Amir to wake up. Muhammad Amir grappled with them. On alarm, the complainant, Mst. Bakhtan and Mst. Hameedan also woke up. A .12 bore licensed gun was lying near Mst. Hameedan. She intended to fire upon the accused but one of the accused snatched the gun from her and other two fired shots which landed upon the neck of Mst. Hameedan. She fell down. One bullet hit upon the forehead of Muhammad Amir due to firing made by the accused. One of the accused gave a butt blow on the face of Mst. Bakhtan due to which apart from upper lip, her four teeth were fractured. Muhammad Saleem who was sleeping on the cot of Mst. Hameedan sustained a bullet injury upon his head. The complainant took shelter under a Chappar in order to save his life. The people residing in the Dera situated nearby attracted to the place of occurrence on hearing the sound of fires. The accused on seeing the people decamped from the spot. It was alleged in the F.I.R. That the complainant and other injured witnesses could identify the assailants if brought before them. The injured namely Mst. Bakhtan, Mst. Hameedan and Muhammad Ismail were being removed to the hospital but Mst. Hameedan succumbed to her injuries in the way.
3. Investigation of the case was taken up by Kashif Masood, S.-I. (P.W.19). The deceased and the injured were present in the Police Station. The Investigating Officer prepared the injury statement and inquest report Exh.PU and Exh.PV in respect of Mst. Hameedan (deceased) as also the injury statements of the injured. After that, he proceeded to the place of occurrence and there he recorded supplementary statement of the complainant. Blood-stained earth from the place where the deceased Mst. Hameedan received injuries was taken into possession vide memo. Exh.PL. Two empties of .30 bore pistol, one empty of rifle 7-mm, one bullet of rifle 7-mm, two empty cartridges of klashnikov and one bullet thereof along with pair of naylon Chappal and one Chadar were taken into possession vide memo. Exh.PH. Blood-stained earth from the places where the injured received injuries was also taken into possession vide memo. Exh.PJ. The P.W./Investigating Officer also prepared the site plan. Maula Bukshsh SI (P.W.16) also investigated the case. He, on 11-7-1997, arrested Muhammad Arif and on his pointation recovered a klashnikov P.13 from his residential house along with 7 live bullets and the same was taken into possession vide memo. Exh.PM.
Muhammad Wazir accused was arrested on 18-7-1997 and he while in custody led to the recovery of .30 bore pistol which was secured vide memo. Exh.PF. Ahmad Sajjad, S.-I. (P.W.17) also conducted the investigation in this case. He arrested Muhammad Saleem accused on 14-8-1997 who was already in custody in connection with an other case registered with Police Station Harnoli District Mianwali. This accused while in custody got recovered 7-mm rifle which was taken into possession vide memo. Exh.PA. After completion of the investigation, all the three accused were sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced 19 witnesses in all. The learned ADA tendered in evidence report of the Chemical Examiner (Exh. PZ), report of the Serologist (Exh.PAA), report of the Forensic Science Laboratory (Exh. PAB) and closed the case of the prosecution. In the statements, recorded under section 342, Cr.P.C. The accused claimed false implication. After conclusion of the trial, all the three accused were convicted and sentenced as stated above.
5. Mr. M.A. Zafar, learned counsel for the appellants, submits that there was no source of light at the place of occurrence; nobody was named in the F.I.R. In spite of the fact that parties were known to each other being from the same village; at the time of registration of the F.I.R. The witnesses along with the complainant were present in the Police Station; for the first time, name of the assailants came into knowledge of the P.Ws. Including the injured P.Ws. On 29-6-1997 while the occurrence had taken place on 5-6-1997 and that supplementary statement of the complainant was recorded on 29-6-1997. According to learned counsel, supplementary statement has no evidentiary value in the eye of law.
' As to motive, learned counsel submits that it was introduced for the first time by Mst. Bakhtan and injured P.W but that has been disbelieved by the learned trial Court.
' The recoveries from the spot and the fire-arms on the pointation of the appellants do not strengthen the case of the prosecution in absence of report from the Fire-arms Expert.
' With the above submissions, learned counsel for the appellants concludes that prosecution having failed to prove its case against the appellants, they are entitled to acquittal.
' Mr. Muhammad Anwer Khokher, Advocate appointed as defence counsel at State expense in Criminal Appeal No,276/J of 2000 has adopted the arguments advanced by Mr. M.A. Zafar, Advocate.
6. Mr. Abdur Rauf Farooqi, learned counsel for the complainant who had also filed Criminal Revision No,122 of 2000 submits that it was a broad-daylight occurrence; F.I.R. Was lodged with promptitude; the four injured witnesses have fully supported the case of prosecution; the injured witnesses were so frightened that after the occurrence they left their houses and ran away to Bannu (N.-W.F.P.) and the day they came back, got recorded their statements under section 161, Cr.P.C.; they had no enmity whatsoever with the appellants, so there was no question of false implication; the injured witnesses being inmates of the house were the natural witnesses of the occurrence and that the recoveries from the spot and fire-arms from the accused were not sent to the office of the Fire- arms Expert due to mala fide of the Police.
7. Mirza Abdullah Baig, Advocate representing the State has adopted the arguments submitted by learned counsel for the complainant.
8. We have heard learned counsel for the parties at length and have gone through the evidence on record with their able assistance. The occurrence in the instant case, according to prosecution, has taken place at 4 AM on 5th June, 1997. The matter was reported to the Police at 6-05 AM on the same day. Nazir Ahmad, complainant is not resident of the house where the occurrence had taken place but was resident of a place 15 acres away from the place of occurrence. In his first statement recorded by the Police on 29-6-1997, the complainant did not name any person as accused. The complainant while appearing before the trial Court as P.W. 11 admitted that there was no source of light at the place of occurrence. This witness also admitted that the appellants belong to the same village and were known to him previous to the occurrence. The injured witnesses namely Mst.
Bakhtan etc. Have admitted before trial Court that they had gone to the Police Station before going to hospital but statement of none of the witnesses was recorded by the Police on that day. Their statements for the first time were recorded on 29-6-1997, twenty-four (24) days after the occurrence. It were recorded at a very belated stage. In fact, the accused persons could not be identified at the time of occurrence. Had the appellants committed the murder of Mst. Hameedan deceased and caused injuries to the injured PWs, the complainant and the injured P.Ws must have named the appellants as accused in the F.I.R. When both the parties being resident of the same village were knowing each other. Despite the fact that unknown assailants were stated in the F.I.R., no identification parade was held.
' Recovery of empties from the spot and fire-arms on the pointation of the appellant is of no avail to the prosecution in the absence of report of the Fire-arms Expert. The empties and the fire-arms were not sent to the office of the Expert for the reasons best known to him.
' The motive was introduced for the first time on 29-6-1997 by Mst. Bakhtan but the same has been disbelieved by the learned trial Court.
' The complainant and the injured P.Ws and the appellants being residents of the same village and admittedly known by the complainant, but their names were not mentioned in the F.I.R., statements of the injured P.Ws. Having been recorded 24 days after the occurrence, the appellants having been introduced as accused in the supplementary statement, there being no report of the Fire- arms Expert although crime empties were recovered from the spot and the accused also got recovered the firearms on their arrest and the motive having been disbelieved by the learned trial Court, we are satisfied in our mind that the defence has been able to make dents in the case set up by the prosecution. So, while exceeding the benefit of doubt, we accept the appeals filed by convict appellants and by setting aside the conviction and sentence recorded against them by the learned trial ' Court acquit them of the charge. All the three appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.
' Criminal Revision No,122 of 2000 filed by the complainant is dismissed.