1. Kh. Muhammad Sharif, J.--This judgment will dispose of Crl. Appeal No, 59/J/2000 filed by Muhammad Hussain appellant and Crt. Appeal No, 233 of 2000 filed by Mubarak Ali @ Makha appellant who were convicted and sentenced by learned Addl. Sessions Judge, Chunian, vide his judgment dated 15.2.2000 as under:-- Muhammad Hussain, appellant; Death u/S. 302(b) PPC with the further direction to pay Rs, 10,000/- as compensation to the legal heirs of the deceased or in default six months RI. u/S. 458 PPC 10 years RI with a fine of Rs, 10,000/- or in default six months RI. Mubarak All @ Makha, Appellant; Imprisonment for life u/S. 302(b) PPC with the further direction to pay Rs, 10,000/- as compensation to the legal heirs of the deceased or in default six months RI. u/S. 458 PPC to years RI with a fine of Rs, 10,000/- or in default six months RI. Murder Reference No, 92 of 2000 for confirmation of death sentence of Muhammad Hussain appellant or otherwise shall also be disposed of through this single judgment.
2. 2.Brief facts of the case as narrated by Perviaz Iqbal complainant are that on 20.9.1994 complainant, his brother Javed Iqbal (deceased) Abdul Rashid, Muhammad Shoaib Abid and their father Muhammad Siddique, were asleep in the house alongwith other family members, at about 3.00 a.m two persons armed with fire-arms scaled over the well of their house but they woke up, the trespassers hastened to open the door to run away when the complainant party chased them.
3. One of them fired with his gun .12 bore hitting the neck of the complainant's brother Javed Iqbal, who fell down. After this the trespasser also fired with his gun on Javed Iqbal hitting his right hand fingers. The complainant, Abdul Rashid and Muhammad Shoaib escaped unhurt. In the meanwhile the neighbourers came over there and the accused fled away. The complainant suspected that some enemies had trespassed into their house and had killed his brother due to some grudge.
4. 3.After registration of the formal FIR, the investigation of the case was carried out when it transpired that the accused were the above noted persons, who were so traced by the tracker, arrested and subsequently identified by the eye-witnesses. The weapons of offence were recovered from them and thus, they were challaned to face the trial.
5. 4.At the trial, prosecution in order to prove its case produced 17 witnesses in all, thereafter, learned DDA tendered in evidence report of Chemical Examiner Ex. PA and closed the prosecution case, then, the statements of the accused-appellants were recorded u/S. 342 Cr.P.C., in which they pleaded innocence. Raja Bashir Ahmad Magistrate 1st Class was examined in this case as DW.1.
6. After conclusion of the trill both the accused were convicted and sentenced as mentioned above by the learned trial Court.
7. 5.Learned counsel for Muhammad Hussain appellant submits that Identification Parade of Muhammad Hussain appellant took place about 5/6 months after his arrest, so it was impossible for the witnesses to have identified the accused in Jail, that in the FIR no description of any of the accused was mentioned, that only word fire-arm word has been used in the FIR, that no description of weapon has been given in the FIR, that occurrence took place in dark hours of night, that no source of light has been mentioned in the FIR and even in the site-plan, that recovery has been planted on the appellant and that is one year after the occurrence, that both the eye-witnesses are related to the deceased; that there is violation of Section 103 Cr.P.C. that statement of the tracker cannot be taken into consideration, that there is no fire-arm report, that no empty was recovered from the spot, that prosecution failed to prove its case against the appellant and he is entitled to acquittal.
8. 6.On the other hand, learned counsel for Mubarak Ali @ Makha appellant adds that he was attributed an injury at the hand of the deceased but the doctor during cross-examination admitted that it could be the result of one fire.
9. 7.On the other hand, learned counsel for the State submits that eye-witnesses have no enmity with the appellants, so there was no question of false implication of the appellants in this case. He supports the judgment of the learned trial Court.
10. 8.We have heard learned counsel for the parties at a great length and have also gone through the record very carefully. In the instant case, occurrence took place on 20.9.1994 at 3 a.m. and the matter was reported to the Police at 7.30 a.m. on the same day at bus stand Chunian by Pervaiz Iqbal through written complaint Ex. PC and formal FIR Ex. PC/1 was recorded by Muhammad Akbar Head Constable at 7.40 a.m. though the distance between the place of occurrence and the Police Station was 12 miles. The name of the accused-appellants was not mentioned in the FIR. Even no description of the accused was stated in the FIR. The source of light was also not stated in the FIR. In the month of September, at 3 p.m., there is dead dark. During the trial, the complainant appeared before the trial Court and did not state that it was Muhammad Hussain who fired first shot and the second shot was fired by Mubarak Ali at the deceased. The only statement made by the complainant was that both the accused fired on the person of the deceased. He was star witness of the prosecution being inmate of the house where the occurrence had taken place. On such shaky evidence, conviction cannot either be awarded or maintained. Muhammad Hussain accused was arrested on 1.10.1994. His identification took parade took place on 23.2.1995, that is, five months after the occurrence. After such a long delay, it was not possible for the PWs to have identified the accused when in the FIR, no description was given. Similarly, Mubarak Ali accused was arrested on 14.10.1994. A carbine was alleged to have been recovered from him but no crime empty having been taken into possession from the spot by the Investigating Officer, mere recovery of the fire-arm does not advance the case of prosecution any further. It is also note worthy that Mubarak Ali accused was arrested on 14.10.1994 but astonishingly the said accused got recovered the carbine on 16.8.1995, that is after more than nine months. It also smacks of mala fide on the part of the prosecution. The other eye-witness namely Muhammad Sohaib who is first cousin of the complainant could not give any plausible explanation for his being present at the spot at the relevant time when he had his own house in the same vicinity. This witness introduced the story before the trial Court stating that Muhammad Hussain fired the first shot while the second was made by Mubarak Ali, which hit on the hand of the deceased. We disbelieve his evidence being not resident of the house where the occurrence had taken place. Having seen the case from all angles, we are of the considered view that the prosecution has miserably failed, to prove its case against the appellants beyond any doubtful drought rather case of the prosecution is full of doubts. So while extending the benefit of doubt, we accept both these t3 appeals filed by the appellants. The conviction and sentence recorded against both the appellants are set-aside. Death sentence of Muhammad Hussain appellant is not confirmed.
11. Murder Reference is replied in negative. Both the appellants are in jail and they shall be released forthwith if not required to be detained in any other case.