' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--- Appellants Muhammad Siddique, Nasir and Sajjad along with 4 other accused namely Muhammad Hanif, Zahoor Ahmad, Muhammad Nawaz and Zulfiqar were tried for the murder of Mst. Faheem Akhtar, Mst. Kishwar Ashfaq and causing injuries to Mst. Kiran and Mst. Maria, the injured P.Ws., in case F.I.R. No,206, dated 27-8-1996 registered under sections 148/302/324/149, P.P.C. At Police Station Cantt. Sargodha by the Additional Sessions Judge, Sargodha, who vide judgment dated 15-6-2000 while acquitting their co-accused, convicted appellant Muhammad Siddique under section 302(b)/34, P.P.C. And sentenced him to death on two counts as well as to pay compensation amounting to Rs,50,000 each to the legal heirs of both the deceased or in default whereof to undergo six months' S.I. Each. He was also convicted under section 324, P.P.C. And sentenced to ten years' R.I. For causing injuries to Mst. Kiran P.W. As well as to pay a fine of Rs,25,000 or in default whereof to undergo one year's S.I. He was also convicted under section 337-D/34, P.P.C. And sentenced to ten years' R.I. As Ta'zir and to. Pay Arsh to Mst. Kiran P.W.
Which would be 1/3 of the Diyat amount. He was also convicted under section 337-F(ii)/34, P.P.C.
And sentenced to three years' R.I. As Ta'zir as well as to pay Rs,20,000 to Mst. Kiran P.W. As Daman.
He was further convicted under section 324/34, P.P.C. For causing injuries to Maria P.W. And sentenced to ten years' R.I. As well as to pay a fine of Rs,25,000 or in default whereof to further undergo one year's S.I. He was further convicted under section 337-F(ii)/34, P.P.C. And sentenced to three years' R.I. As Ta'zir and to pay Rs,20,000 to Mst. Maria P.W. As Daman. Nasir and Sajjad appellants were convicted under section 302(b), P.P.C. And sentenced to life imprisonment each for committing the murders of Mst. Faheem Akhtar and Mst. Kishwar Ashfaq on two counts each.
They were also directed to pay Rs, 50,000 each as compensation to the legal heirs of both the deceased or in default whereof to further undergo six months' S.I. Each. The sentences of all the three appellants were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to them.
2. Challenging their conviction and sentence all the appellants filed Criminal Appeal No,921 of 2000 while the trial Court had made a reference (Murder Reference No,414 of 2000) seeking confirmation of death sentence awarded to Muhammad Siddique. Both these matters are being disposed of by this judgment.
3. Precisely the prosecution story as gleaned out of F.I.R. Exh.P.N./1 recorded on the complaint Exh.P.N. Made by Muhammad Aslam, Inspector P.W.20, is that on 27-8-1996 at 3-00 a.m. He along with Muhammad Iqbal, Muhammad Anwar, S.-Is., and other police officials was on patrol duty and was present at Adda Chak No,47/NB when he received a message on wireless that there was a fight in the house of Dr. Bashir Ahmad Khan situated in Pir. Muhammad Colony, Sargodha. After hearing the message, he along with his officials proceeded to the house of Dr. Bashir Ahmad and when he reached at the corner of said street he saw five unknown persons armed with daggers and Chhuris, in the light of electric bulbs, running away from the house of Dr. Bashir Ahmad Khan through its main gate. On reaching the house of Dr. Bashir Ahmad he deputed Muhammad Anwar, S.-I. Along with constables entered the said house where he found the dead bodies of Mst. Faheem Akhtar wife of Dr. Bashir Ahmad, Mst. Kishwar Bashir lying in the courtyard. He also saw two mirror girls namely Mst. Kiran and Mst. Maria lying at a short distance in injured conditions. Some persons of the Mohallah also gathered there but no one from the family members of the deceased and the injured girls was present there. Thereafter, he prepared injury statement Exh.P.B. And inquest report Exh.P.C. Of Mst. Faheem Akhtar and that of Met. Kishwar deceased as Exhs.P.E. And P.F. Respectively and sent their dead bodies to the mortuary for post-mortem examination. He also prepared injury statement of Mst. Maria Exh.P.J. And that of Mst. Kiran Exh.P.I and sent them to the hospital for medical examination. Thereafter, he recorded complaint Exh.P.N. And sent the same to the police station for formal registration of the case.
4. Thereafter the said witness (complainant) started investigation and collected blood-stained earth from the place where the dead body of Mst. Kishwar was lying and made into a sealed parcel vide memo. Exh.P.Q. And that of Mst. Faheem Akhtar deceased vide memo. Exh.P.O. Last-worn clothes of both the deceased were produced by Shan Muhammad constable which were taken into possession vide memo. Exhs.P.T. And P.U. On 2-9-1996 this witness recorded the statements of Muhammad Saghir, Abbas Ali and Safdar Ali under section 161, Cr.P.C. And that of Muhammad Saleem Draftsman on 15-9-1996. On 11-10-1996 he arrested Muhammad Nawaz and Zulfiqar accused and Muhammad Hanif and Zahoor Ahmad accused on 12-10-1996. After complying with all legal formalities the Investigating Officer submitted challan before the trial Court where prosecution produced twenty witnesses to prove the charge against the appellant and their co- accused.
5. P.W.1 Dr. Muhammad Afzal conducted post-mortem examination on the dead bodies of Mst.
Faheem Akhtar and Mst. Kishwar Bashir. P.W.2 Dr. Muhammad Azam medically examined the injured P. Ws. Namely Mst. Kiran and Mst Maria. P.W.3 Ahmad Yar and P.W.4 Muhammad Yar and Iftikhar Ahmad P.W.7 while deposing before the trial Court were declared hostile. Muhammad Saleem, Draftsman P.W.5, prepared the scaled site plan Exhs.P.M. And P.M./1 of the place of occurrence. Muhammad Anwar, S.-I. P.W.6 was present along with Muhammad Aslam, Inspector (complainant) when on hearing the wireless message, reached the place of occurrence and saw the accused running from the spot. Bahadar Khan H.C. P.W.8 kept the parcels containing dagger/Chhuris in the Malkhana and later on handed over the same to Mukhtar Ahmad constable P.W.10 for onward transmission to the office of Chemical Examiner. Khan Bahadar H.C. P.W.9 recorded formal F.I.R. Exh.P.N./1. Farooq Ahmad, Inspector P.W.11 deposed that in his presence accused got recovered Chhuri P.9 which was taken into possession vide memo. Exh.P.S. Shan Muhammad Constable P.W.12 escorted the dead bodies of deceased to the mortuary and after the post-mortem examination produced last-worn clothes of both the deceased ladies to the Investigating Officer Iqbal Ahmad Farooqi P. W.13 and Iqtidar Hussain Shah P.W.14 were the witnesses before whom the accused confessed their guilt. Abbas Ali P. W.15 deposed that he saw the accused armed with Chhuris at the place of occurrence. Muhammad Akram S.-I. P.W.16, Ghulam Jafar, S.-I. P.W.17 and Muhammad Aslam, Inspector, P.W.20 (algo complainant in this case) conducted investigation in this case. Mst. Kiran Ishfaq P.W.18 and Mst. Maria P.W.19 (the injured witnesses) were the eye-witnesses of occurrence. Both of them narrated the circumstances under which appellants and their co-accused committed the murders of the deceased and caused injuries to them.
6. Trial Court also examined the appellants and their co-accused under section 342, Cr.P.C. All the accused while denying the charge pleaded their innocence. None of the accused made any statement under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
7. The trial Court after appraisal of evidence available on record, vide judgment dated 15-6-2000 convicted and sentenced the appellants as narrated earlier.
8. Learned counsel for the appellants in support of this appeal, submitted that the appellants were not known to both the prosecution witnesses namely, Mst. Kiran P.W.18 and Mst. Maria P.W.19; though the name of Muhammad Siddique appellant was mentioned in the statements of both the injured witnesses recorded under section 161, Cr.P.C. But the said statements were recorded many days after the occurrence upon the instigation of Iqtidar Hussain Shah P.W.14, who had enmity with the appellants; that after their arrest appellants were never put to the test of identification parade to rule out the possibility of their false involvement; the trial Court while disbelieving the entire prosecution case accepted evidence of the eye-witnesses who were minor children and the Court without observing the legal formalities for relying upon the evidence of a child erroneously convicted and sentenced the appellants. Learned counsel for the appellants in support of his arguments placed reliance on PLD 1995 SC 1. On the contrary, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the arguments raised by the learned counsel for the appellants.
9. After hearing the learned counsel for the parties at length and going through the record, we have observed that Nasir and Sajjad appellants were not known to both the eye-witnesses namely Mst.
Kiran P.W.18 and Mst. Maria P.W.19. The names of both the said appellants do not figure anywhere in the statements of these witnesses recorded under section 161, Cr.P.C. It is admitted fact that after their arrest, none of these appellants was put to the test of identification parade and for the first time after three years of the occurrence these appellants were identified by the said witnesses before the trial Court. After such a long time the identification of the appellants in the Court is not free of doubt because at the relevant time, ages of both the said eye-witnesses were 9 and 7 years. Only the trial Court had also disbelieved the prosecution evidence to the extent of extra- judicial confession of these appellants and the recovery of incriminating articles at their instance.
In this view of the matter, we are persuaded to extend the benefit of doubt in their favor.
Accordingly, the instant appeal to their extent is accepted, their conviction and sentence is set aside and they stand acquitted of the charge. Both of them (Nasir and Sajjad appellants) shall be released forthwith if not required in any other case.
10. As far as Muhammad Siddique appellant is concerned, the presence of both the eye-witnesses at the spot who had received injuries during the occurrence stands established from the record.
While making statements under section 161, Cr.P.C. Which were recorded on the day of occurrence they had specifically nominated this appellant who was known to the witness prior to the occurrence. Before the trial Court both the eye-witnesses while supporting the prosecution case narrated the circumstances, mode and manner under which Muhammad Siddique appellant along with other co-accused had committed the murder of Mst. Faheem Akhtar and Mst. Kishwar Bashir and caused injuries to the said eye-witnesses. The medical evidence also supports the ocular account. These eye-witnesses who are minor children had no reasons to falsely implicate Muhammad Siddique appellant against whom none of them had any enmity or grudge. Both the eye-witnesses are innocent, trustworthy and truthful. The statements of these witnesses are impressive, reliable and we are persuaded td rely upon the same to uphold the conviction and sentence of Muhammad Siddique appellant. Accordingly to his extend finding no force in the instant appeal, the same stands dismissed.
' Death sentence of Muhammad Siddique is confirmed and the murder reference is answered in the affirmative.