' This judgment will dispose of Criminal Appeal No,369/J of 2002 filed by Tariq and Criminal Appeal No,410/J of 2002 filed by Falak Sher, appellants through jail who were convicted and sentenced by learned Additional Sessions Judge, Samundri vide judgment dated 30-7-2002 as under:-- ' Tariq, appellant.
' Imprisonment for life and to pay compensation of Rs,50,000, in default six months' S.I. Under section 302(b), P.P.C.
' Falak Sher appellant.
' 1.0 years' R.I. Under section 460, P.P.C. And five years' R.I. And a fine of Rs,20,000, in default one month's S.I. Under section 380, P.P.C.
' The sentences 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 (sic) at 1-00 a.m. (mid-night), Ranjha, the complainant along with Sajjad Hussain and Bashir Ahmad woke up on hearing the noise of "thief- thief" and saw in the courtyard where Ramzan, brother of the complainant was sleeping, that an armed person was standing facing towards other side whereas the other accused person came in the courtyard after taking T.V. Set from the residential room. Ramzan tried to apprehend the person carrying the T.V. By raising Lalkara whereupon a straight shot was fired at Muhammad Ramzan which hit him on his back, the accused took away the T.V. Set, the complainant and his accomplices who were on the roof top, came downward, attended Ramzan but he had succumbed to his injury.
3. Investigation of the case was taken over by Naeem Hassan, S.-I., injury statement Exh.P.C. And inquest report Exh.P.D. Were prepared by him and bloodstained earth was taken into possession vide memo. Exh.P.E. But he was not produced before the trial Court because of his non-availability.
Investigation of the case was partially conducted by Inspector Asadullah Khan and Tariq Mahmood, S.-I. P.W.10. Supplementary statement of the complainant and Mst. Naziran wife of the deceased was recorded by P.W.10. Tariq accused after his arrest while in police custody on 30-10- 2001 led to the recovery of rifle .7-MM which was taken into possession vide memo. Exh.P.G. After completion of the investigation, both the accused Falak Sher and Tariq were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 13 witnesses in all. The learned D.D.A.
Tendered in evidence report of the Chemical Examiner (Exh.P.K.), report of the Serologist (Exh.P.L.)
F.I.R. Nos.644, 642 and 392 (Exh.P.M. To Exh.P.Q.) and closed the case of the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication.
After conclusion of the trial, both the accused were convicted and sentenced as stated above.
5. Learned counsel for the appellants submits that the appellants were not named in the F.I.R.; no identification parade was held, no crime empty having been recovered from the spot, mere recovery of rifle on the pointation of Tariq appellant is inconsequence and that statement of Mst.
Naziran, wife of the deceased and supplementary statement of the complainant were recorded on 17-10-2001, that's, seven months after the occurrence without stating any source from where they came to know that the appellants were the accused. In this background, learned counsel submits that the appellants are entitled to acquittal.
6. Learned counsel for the State submits that the complainant and Mst. Naziran wife of the deceased have fully supported the case of the prosecution and had no enmity to falsely implicate the appellants. Further submits that fire-arm was also recovered on the pointation of Tariq appellant.
7. I have heard learned counsel for the parties and have gone through the record. The occurrence took place at 1-00 a.m. In between the night of 26th/27th of March, 2001 and the matter was reported to the police at 2-00 a.m., the same night. No description of the accused whatsoever was given in the F.I.R. What to talk of names of the accused. Neither Ranjha complainant who is brother of the deceased nor Sajjad, who is first cousin of the deceased, are residents of the house where the occurrence had taken place. Both these P.Ws. Had their independent houses and in the normal course of nature, they should have been present in their house at such odd hours of the night. So, I disbelieve the presence of both Ranjha and Sajjad P.Ws. At the spot. Now we are left with the statement of Mst. Naziran wife of the deceased. The police recorded her statement on 17-10-2001 when the occurrence had taken place on 27-3-2001, that is, seven months after the occurrence.
The fact of recording the statement of Mst. Naziran on 17-10-2001 has been admitted by Tariq Mahmood, S.-I. P.W.10 in 19th line of his examination-inchief. She had not even told any source from where she came to know about the names of the accused. Even she did not identify the accused in the identification parade. Her statement has got no value in the eye of law. The evidence of Mst.
Naziran is therefore ruled out of consideration.
' No crime empty having been recovered from the spot, recovery of rifle on the pointation of Tariq appellant is inconsequence.
' Having examined the entire dictions prosecution evidence from all angles, I am of the considered opinion that case against both the appellants is of doubtful nature and while extending the benefit of doubt, I accept both the appeals filed by convict appellants, set aside the conviction and sentence recorded against them by the trial Court and acquit them of the charge. Both the appellants are in jail. They shall be detained in any other case.