' IJAZ AHMAD CHAUDHRY, J.--Shahbaz appellant has preferred this appeal against the judgment dated 27-4-2004 passed by learned Additional Sessions Judge, Sheikhupura through which he was found guilty under section 302(b), P.P.C. And sentenced to rigorous imprisonment for life with direction for payment of Rs.1,00,000 as compensation to the legal heirs of Allah Ditta deceased or in default of payment thereof to further undergo S.I. For six months. Benefit of section 382-B, Cr.P.C.
Was also extended to him.
2. On the basis of statement (Exh.P.E.) made by Muhammad Akbar (P.W.10) real brother of Allah Ditta deceased which was recorded by Rana Muhammad Amin, S.-I. (P.W.6), F.I.R. No.878 of 2002 (Exh.P.E./1) was recorded by Muhammad Ashraf, A.S.-I. (P.W.12) at 5-30 a.m., under section 302, P.P.C. At Police Station, Saddar Sheikhupura.
3. Concisely, the facts of the prosecution case are that Muhammad Akbar complainant (P.W.10) was employed in icr Factory. His younger brother namely Allah Ditta aged about 22/23 years was residing in a house consisting of two rooms and he used to lend VCR Cassettes etc. On rent. Allah Ditta deceased brother of the complainant was alleged to be bachelor. On 29-11-2002 at 12-30 a.m.
(night) complainant was sleeping along with his family members in a residential room while his brother Allah Ditta was sleeping in another room. On hearing noise he came in the courtyard and saw three unknown persons duly armed with fire-arms present there. Out of them, two were of medium height while the third was of tall height. They were grappling with his brother. The complainant raised Lalkara and tried to catch hold of them. In the meanwhile, Muhammad Yousaf son of Imanat Ali caste Malik also came at the spot. One of the accused, made a fire at his brother Allah Ditta which landed on his left flank. The complainant and Yousaf tried to catch hold of the other accused but one from the other two accused made fire. On this, complainant and Muhammad Yousaf by scaling over the wall went in the other house. The accused persons along with weapons fled away from the spot. They saw Allah Ditta who had died at the spot. It is also alleged in the F.I.R. That an electric bulb was also on and they saw the accused in the light of the bulb and they could identify the accused if confronted with them.
' Subsequently on the same day, the complainant got recorded his supplementary statement in which he nominated Shahbaz Ahmad appellant along with Fakher son of Daim and Shamim son of Ismaeel.
4. Rana Muhammad Amin, S.-I. (P.W.10) after receiving the information of the occurrence visited the place of occurrence recorded the statement (Exh.P.E) of the complainant and after sending the complaint for registration of the case he prepared the injury statement (Exh.P.G.) and Inquest Report Exh.P.F. Of the deceased. Thereafter, he sent the dead body of the deceased to mortuary for autopsy through Muhammad Ijaz 1783/C and Muhammad Javed 629/C. Then he took into possession blood-stained earth vide recovery memo. Exh.P.C. And also collected two crime empties of cartridges of gun .12 bore which were also taken into possession vide Memo. Exh.P.D.
5. Subsequently, the investigation was taken up by Mirza Muhammad Latif Baig, S.-I. (P.W.8) who on 16-1-2003 arrested Shahbaz Ahmad appellant. On 4-2-2003 identification parade was held in District Jail, Sheikhupura. On 26-2-2003, the appellant while in police custody made a disclosure and led to the recovery of .12 bore gun from his residential house which was taken into possession vide recovery Memo. Exh.P.K. The other accused Fakher and Shamim could not be arrested and their warrants of arrest were obtained and proceedings under sections 87/88, Cr.P.C. Were initiated at the instance of P.W.8, Muhammad Latif Baig, S.-I.
6. After completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court and copies of documents required under section 265-C, Cr.P.C. Were supplied to the appellant.
Then charge was framed which was denied by him and the prosecution in order to prove the guilt of the appellant produced as many as 15 witnesses.
7. The ocular account was furnished through the statements of P.W.10, Muhammad Akbar and P.W.11, Muhammad Yousaf while P.W.14, Muhammad Anwar is the witness of Wajtakkar.
Identification parade was conducted by Wajid Hussain, Civil Judge/Judicial Magistrate (P.W.15) while the recovery of gun .12 bore from the appellant was witnessed by Muhammad. Rafique (P.W.9). The medical evidence was furnished by Dr. Aftab Iqbal (P.W.13) who conducted the post mortem examination on 29-11-2002 at 11-00 a.m. While the investigation was conducted by Rana Muhammad Amin, Ex. S.-I. (P.W.6) and Muhammad Latif Baig, S.-I. (P.W.8). The remaining witnesses are more or less of formal nature.
8. After close of the prosecution evidence, the appellant got recorded his statement under section 342, Cr.P.C. In which he professed innocence and to a question that "why this case against you and why the P.Ws. Deposed against you" Shahbaz Ahmad appellant replied as under:-- "I have been falsely involved in this case due to doubt and suspicion. The P.Ws. Are closely related with the deceased and are inimical with me. They have deposed against me under the influence of Ch. Khalid Mahmood Virk, a landlord of the village Bado Muradey.
' However, neither he opted to make any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
9. After hearing the arguments of learned counsel for the parties, the learned trial Court has passed the impugned judgment of conviction and sentence which is being assailed through this appeal.
10. Learned counsel for the appellant contends that the appellant was not named in the F.I.R. And no description of age or complexion etc. Were mentioned in the F.I.R., which was got lodged with the delay of five hours. It is next contended that P.W.10, Muhammad Akbar had stated during the cross-examination that the appellant was arrested on the same day and he along with other witness Muhammad Yousaf had gone to the police station for arrest of the accused whereas P.W.11, Muhammad Yousaf claimed that he was arrested after 2 days of the incident. It is also contended that in the supplementary statement made on 29-11-2002 the appellant was implicated without any source of his identification and even in the said statement no role was attributed to any of the accused but before the learned trial Court it was wrongly claimed that fire was made by the appellant. It is next contended that in the statement under section 154, Cr.P.C. Two fires allegedly made during the occurrence at the P.Ws. And the other hitting the deceased were attributed to two different accused, but at the trial both the fires were alleged to have been made by the appellant dishonestly. It is next contended that the complainant (P.W.10) had given minute details of the occurrence and forgetting the names of the accused who committed the occurrence in their presence was not believable, who were falsely implicated in the present case so that it might not go as a blind murder. It is also contended that in the supplementary statement it was alleged that purse, I.D. Card and ring of. The deceased were also taken away by the accused but nothing was recovered from the appellant and the gun which was allegedly recovered from his possession did not match with the empties and the report of Forensic Science Laboratory was not brought on the record by the prosecution due to this reason, hence, the impugned judgment of conviction and sentence is liable to be set aside as the prosecution evidence is wholly unbelievable.
11. Conversely, learned counsel for the State opposes this appeal on the ground that the witnesses had no enmity or grudge to falsely implicate the appellant in the present case and the case was proved beyond any shadow of doubt. It is further contended that the appellant is very much connected with the offence as in the identification parade the witnesses had correctly identified the appellant as one of the culprits who had participated in the occurrence.
12. I have heard the learned counsel for the parties and also perused the record with due care and caution.
13. The occurrence in the present case had taken place at 12-30 p.m. (night) on 29-11-2002 while the F.I.R. Was got lodged at 5-30 a.m. About five hours after the incident. In the F.I.R. Complainant Muhammad Akbar (P.W.10) had not given any description of the three accused who allegedly had participated in the occurrence though he claimed that he had witnessed the occurrence along with Muhammad Yousaf (P.W.11). On the same day, he allegedly made the supplementary statement stating therein that he had forgotten the names of the assailants as he was worried and he remembered that Shahbaz Ahmad appellant who is resident of the same village along with two other accused namely. Fakhar and Shamim had participated in the occurrence. Even in the supplementary statement (Exh.D.1) no specific role was attributed to the appellant, who at the trial was alleged to have made two fire shots during the occurrence with .12 bore gun. Moreover, make of weapons the accused were carrying at the time of occurrence was not mentioned in the F.I.R. Or in the supplementary statement. All these are improvements on material points and are sufficient to declare the witnesses wholly untrustworthy. It cannot be believed that the complainant had given minute details of the occurrence, but forgotten the names of the assailants.
14. The identification parade was held on 4-2-2003 in the supervision of Wajid Hussain (P.W.15). I have perused the report of the identification parade according to which all the three witnesses had identified Shahbaz Ahmad appellant as one the accused but had not described any role played by him during the incident. However, at the trial they specifically mentioned that the appellant had fired at the deceased and the witnesses during the occurrence. No sanctity is attached to the Identification Parade (Exh.P.N.) as the complainant (P.W.10) on the one hand allegedly had recorded supplementary statement on the same day wherein he had mentioned the name of the appellant as one of the culprits along with Fakher and Shamim. When the accused were named by the complainant then there was no need for identification parade. In spite of that the identification parade was conducted and even at the time of identification parade the appellant had raised objection that he was resident of the same village and the witnesses were previously known to him, which version is borne out from the evidence on record. P.W.10 during cross-examination admitted that the appellant was resident of the same village and was known to him for the last 2/3 years.
Had he seen the occurrence or had the appellant participated in the occurrence, there was no reason for not mentioning the name of the appellant as real culprit who fired at the brother of the complainant. He also stated during the cross-examination that the appellant was arrested on the same day when the occurrence had taken place but the police claims that he was arrested on 16- 1-2003. P.W . 10 Muhammad Akbar claimed that when the appellant was arrested he along with his brother Muhammad Anwar accompanied the police at that time, but Yousaf P.W.11 was not present at that time. On the other hand, P.W.11, Muhammad Yousaf claimed that the appellant was arrested after 2/3 days of the incident whereas according to P.W.8 Muhammad Latif Baig, S.-L He while posted at Police Station, Saddar Shiekhupura on 20-12-2002 was entrusted the investigation and on 16-1-2003, he had arrested the appellant. In these facts and circumstances the identification parade is of no help to the prosecution and cannot be relied upon to connect the appellant with the commission of the crime.
Similarly, recovery of .12 bore gun from the appellant is also of no consequence as the empties allegedly recovered from the spot though were sent to the office of Forensic Science Laboratory yet the report was negative, which was not tendered in evidence by the prosecutor. Even the articles i.e. Purse, I.D. Card and gold ring belonging to the deceased allegedly taken away by the assailants after the occurrence were not recovered from the appellant. Moreover, no motive was attributed to the appellant or the other co-accused for committing this occurrence.
For the foregoing discussion, I am satisfied that the prosecution has not been able to prove its case against Shahbaz Ahmad appellant through any cogent piece of evidence beyond any shadow of doubt. Hence, this appeal is accepted, the impugned judgment of conviction and sentence is set aside and Shahbaz Ahmad, appellant is acquitted of the charge by extending him the benefit of doubt. He shall be released from jail forthwith, if is not Health Sciences, Lahore through Vice- Chancellor, and another 2005 M LD 1130 ref. Required in any other case.