Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 589 of 2000 filed by Shahbaz Ahmad alias Shahbazoo, appellant, who was convicted under Section 302(b) PPC and sentenced to death with further direction to pay rupees one lac as compensation in default, six months RI. The conviction and sentence was recorded by learned Additional Sessions Judge, Gujranwala vide judgment dated 17.4.2000.
Murder Reference No, 214 of 2000 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 6 a.m. on 30.11.1997 in mohallah Rehmanpura at a distance of 6/7 furlongs from Police Station Gurjagh, District Gujranwala while the matter was reported by Ilam Din at 7 AM on the same day at Qadafi road through written complaint Ex.PD and formal FIR Ex. PD/1 was recorded by Liaquat Ali, Head Constable.
3. Briefly, stated the facts of the case are that the complainant Ham Din was a vegetable seller. On 30.11.1997 at 6 a.m., he alongwith Bashir Ahmad son of Allah Rakha was going on Qadafi Road for purchasing the vegetable. Liaquat Ali son of the complainant was going ahead of his father.
Sooner, the complainant and his son Liaqat Ali reached near the ihata of Ghulam Muhammad, two unknown persons wearing Shalwar and Qameez with smart bodies grappled with Liaqat Ali. One of the accused fired a shot, which hit on the chest of Liaqat. In the meanwhile, Muhammad Iqbal came there on a tractor-trollery. Liaqat Ali while in his way to house sccumbed to the injury.
4. Investigation of the case was carried out by Juniad Mohsin SI (PW-5). He after recording of the formal FIR went to the place of occurrence, prepared inquest report Ex. PH of Liaqat Ali deceased.
He also prepared injury statement Ex. PI of the deceased. The blood stained earth was taken into possession vide memo Ex. PB. A led pellet was also taken into possession vide memo Ex. PC. The supplementary statement of the complainant was recorded on 15.12.1997 alleging Shahbaz to be an accused of murder of son of the complainant. The said accused was joined with the investigation after being brought out from the jail, as he was already in custody in another cause.
No recovery was affected from Shahbaz accused. Thee other unknown accused was never arrested. Finally, challan was submitted against Shahbaz, accused.
5. At the trial, prosecution in order to prove its case produced six witnesses in all; then the learned DDA tendered the report of the Chemical Examiner Ex. PR, report of the Serologist Ex. PS and closed the case of the prosecution. The accused in his statement under Section 342 Cr.P.C. pleaded false implication. After conclusion of the trial, the accused was convicted and sentenced as stated above.
6. Rana Muhammad Arif, the learned counsel for the appellant after having read the prosecution evidence on record submits that two unknown persons were named as accused in the FIR but their description was not given and that Ham Din, PW-2, complainant had admitted before the trial Court that prior to the occurrence, the appellant was not known to' him. According to learned counsel when the assailants were unknown and even their description was not given in the FIR, it was obligatory for the Investigating Officer to have got the Identification Parade held which he failed. Further submits that nothing incriminating was recovered from the appellant and moreso the other two witnesses namely Muhammad Iqbal and Bashir were given up by the prosecution. In nutshell, learned counsel and he is entitled to acquittal.
Ms. Eram Sajjad Gul, Advocate has also adopted the arguments advanced by Rana Muhammad Arif, Advocate.
7. Learned counsel for the State opposes the submissions made by learned counsel for the appellant. He submits that it was a case of promptly lodged FIR, the occurrence had taken place in broad-day-light, the PW Ilam Din had no enmity whatsoever with the appellant so there was no question of his false implication and that the prosecution has proved its case against the appellant. He in fact supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 6 a.m. on 30.11.1997. The matter was reported to the Police by Ilam Din, father of the deceased at 7 a.m. on the same day and formal FIR was recorded at 7.30 a.m., the same day. Out of three witnesses only Ilam Din (PW-2) father of the deceased Liaqat appeared before the trial Court. The remaining two witnesses namely Muhammad Iqbal and Bashir Ahmad were given up as having been won over. In the FIR, even no description of the accused was given. No weapon of offence used by the assailant was mentioned in the FIR. If this was the position, it was incumbent upon the Investigating Officer to have got the Identification Parade held. No Identification Parade was held. The identification test becomes necessary whereas names of the culprits are not given in the FIR and holding of such a test is not only a check against false implication but is a good piece of evidence against genuine culprits. For this proposition of law, reliance can safely be placed upon the case of Farman Ali versus The State (1997 S.C.M.R. 971).
No recovery of any fire-arm was affected from the appellant. In fact, it is a case of no evidence. No doubt, one person has lost his life but the Court has to see whether the prosecution has been bale to prove the case against a person who has been charged to face the trial on a capital charge, which is missing in this case.
For what has been discussed above, we are of the considered opinion that the prosecution has not been successful in proving its case against the appellant rather it is a case of no evidence.
Resultantly, by extending the benefit of doubt, we accept the appeal filed by the convict appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. The death sentence of the appellant is Not confirmed and Murder Reference is replied in the Negative.
Shahbaz Ahmad appellant is in jail. He shall be released forthwith, if not required to be detained in any other case.