JUDGMENT IJAZ AHMAD CHAUDHRY, J.- Through this single judgment I intend to dispose of Crl.
Appeal No. 11-2004 filed by Shahzad Ali and Muhammad Nadeem appellants and Crl. Appeal No. 398-2004 filed by Muhammad Abbas appellant, against their conviction and sentence, as in both the appeals judgment dated 19.11.2003 passed by learned Additional Sessions Judge, Ferozewala has been assailed through which the appellants in both the appeals have been convicted under Section 302(b), PPC and sentenced to imprisonment for life. They were also directed to pay Rs.
20,000/- each as compensation under Section 544-A, Cr.P.C, to the legal heirs of the deceased.
Benefit of Section 382-B, Cr.P.C, was also extended to them.
2. Succinctly the history of the case is that Bashir Ahmad, Muhammad Nadeem, Muhammad Abbas and Shahzad Ali were sent to the Court of learned Special Judge, Anti-Terrorism Court No. Ill, Lahore, to face trial where the above-said persons were formally charged on 12.2.2001, but afterwards the case was transferred to the Court of learned Sessions Judge, Sheikhupura, which was entrusted to the Court of learned Additional Sessions Judge by the orders of the learned Sessions Judge, Sheikhupura dated 22.10.2001.
3. Precisely the facts of the prosecution case are that Muhammad Ramzan complainant (PW-8) moved an application (Ex.PG) to SHO Police Station, Ferozewala, on the basis of which F.I.R. No. 606 (Ex.PG/1) was recorded by Muhammad Inayat, S.I. (PW-10) on 19.8.2000, wherein the complainant has stated as under:-- "I and Haji Muhammad Iqbal son of Rehmat Ali and my son Muhammad Iqbal deceased while boarding in a Rickshaw No. LXO-9616 were going on Wandala Road on our way to Barkat Town, at about 4.00 a.m. When we reached near Ijaz Park, Wandala Village, unknown accused fired at my son Muhammad Iqbal deceased with the intention of committing his Qatl-e- Amd which hit my son near the left ear and exited from the right side and my son fell down from Suzuki Rickshaw. I and Muhammad Iqbal saved our lives by hiding in a nearby plot. My Son Muhammad Iqbal succumbed to the above-said fire shot. Un-known accused have murdered my son Muhammad Iqbal. The occurrence was witnessed by me and'. Haji Muhammad Iqbal PW The =>any Rickshaw No. LXO-9P Rickshaw was found. I ana Haji Muhammad Iqbal can identify the un-known accused on seeing them who were wearing Shalwar and qameez and were of youth age about 24/25 years.
A case be registered against the two un-known assailants and they be arrested."
4. Muhammad Inayat, S.I. (PW-10) had partly investigated the case who after registration of the case, visited the place of occurrence where the dead-body of the deceased was present; prepared the injury statement (Ex.PK) and Inquest Report (Ex.PL) and then got prepared the site plan (Ex.PM). He also took into possession the blood-stained earth from the place of occurrence, vide recovery memo. Ex.PH. Thereafter, he sent the dead-body of the deceased to mortuary for autopsy through Ansar Ali and Amjad Abbas, Constables. He also took into possession motor-cycle rickshaw 'bearing Registration No. LXO-9616 from a distance of about half mile from the place of occurrence, vide recovery memo. Ex.PJ.
5. Subsequently, the investigation was transferred to Saleem Ullah Khan, S.I. (PW.12), who on 13.10.2000 got transferred Bashir, Nadeem and Abbas, accused who were arrested by the Lahore Police. On 27.9.2000 the investigation was transferred to Rai Ihsan Elahi, Inspector (PW-11), by the order of the SSP, Sheikhupura. On 6.10.2000 during interrogation offence under Section 392, PPC was added.
6. After completion of the investigation report under Section 173, Cr.P.C, was submitted in the Court and copies required u/S. 265-C, Cr.P.C, were supplied to the appellants and charge was framed which was denied by them and the prosecution in order to prove the guilt of the appellants produced as many as 12 witnesses.
7. The ocular account has been furnished through the statements of Muhammad Ramzan, complainant (PW-8), and Haji Muhammad Iqbal (PW-9). At the trial PW-8 added that at the time of occurrence he was not in sense and on recollecting memory he identified the accused who used to visit his deceased son. According to him he got recorded his supplementary statement the same evening while nominating the three appellants and fire of Bashir Ahmad had hit the deceased. The medical evidence has been produced through the statement of Dr. Bilal Ahmad Malik (PW-7), who on 19.8.2000 conducted the post-mortem examination on the dead-body of Muhammad Iqbal deceased. The investigation was conducted by Muhammad Inayat, S.I. (PW-10), Saleem Ullah Khan, S.I. (PW-12) and Rai Ehsan Elahi, Inspector (PW-11)- The remaining evidence is less or more of formal nature.
8. After close of the prosecution evidence, the appellants got recorded their statements under Section 342, Cr.P.C, in which they professed their innocence and on a question that "why this case against you and why the PWs deposed against you" they made the following reply:-- "It was a blind murder. Since the file was pending before the police and to save Gul Khan and other family members, the I.O. With mala fide intention of one Eisa Khan, Smuggler of Ghazi Kakka, being relative of Gul Khan, changed the direction of investigation from the Pathan refugee and they have been involved in the instant case just to complete the challan of instant case whereas they were arrested at Lahore and when this fact came into the knowledge of local police, they involved them just to show their- efficiency. PWs are deposing against them just due to party-faction in the village and opposite party, in connivance with the complainant has involved them with mala fide intention." ,
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 appellants contends that the appellants are not named in the F.I.R, and the supplementary statement which allegedly was made by the complainant on the same day of 8.30 a.m. While nominating the appellants as accused as never placed on the record nor copy of the same was supplied to the appellants., it is further contended that both the eye-witnesses namely Muhammad Ramzan (PW-8) and Muhammad Iqbal (PW-9) were not resident of the place of the occurrence, but they were residing 2 miles away from the place of occurrence, it is next contended that nothing could be recovered from the appellants during the investigation, who were falsely implicated in the present case just as scapegoat so that murder case should not untraced.
Also contends that it was a blind murder committed during odd hours of night and close relatives of the deceased were later on imported as witnesses, who also did not involve the appellants as accused, but the police mala fidley got them involved in the present case and the prosecution has miserably failed to prove the case against the appellants beyond any shadow of doubt, who may be acquitted of the charge.
11. Conversely, learned counsel for the complainant opposes this appeal on the ground that the appellants were named by the complainant through supplementary statement on the same day at 8.30 Rs.. After gaining senses which he had lost as his young son was murdered within his view, it is next contended that recovery has been effected and the weapon was recovered Garhi Shahu Police which corroborates, it is also contended that the eye-witnesses had no enmity to falsely implicate the appellants in the present case and they are not interested witnesses they had gone to do their job at the factory where they were employed on the day of occurrence, it is also contended that the accused are desperate persons and they are involved in other cases as well and the prosecution has succeeded in proving the case against the appellants.
12. I have heard the learned counsel for the parties and also perused the record with due care and caution. On the basis of written application (Ex.PG) present case was registered at the instance of Muhammad' Ramzan (PW-8) father of Muhammad Iqbal deceased wherein Muhammad Ramzan only stated that he alongwith his son Muhammad Iqbal was going on Suzuki Rickshaw bearing Registration No. LXO 9616 from Wandala Road towards Barkat Town and when they reached near Wandala village, from the front side, unknown accused came forward to murder Muhammad Iqbal and fire made by one of the accused hit Muhammad Iqbal on left side of head and exited from the right side, who fell down while complainant and witnesses had saved themselves by hiding in open plot. However, the assailants succeeded in running away on the said Suzuki motorcycle rickshaw.
Lastly it was stated that they could identify the accused on confrontation who were wearing Shalwar qameez and they were about 24/25 years of age. It was specifically claimed that two unknown accused had committed the offence.
13. Later on PW-8 Muhammad Ramzan nominated the appellants as murderers of his son, who according to him were known to him even prior to the occurrence, but the reason for not mentioning their names in the F.I.R./application written by him that he lost his senses due to murder of his young son is not acceptable as he had given the time, place and the manner in which the occurrence had taken place plus names of the witnesses, who witnessed the occurrence, but only missed the names of the assailants. Moreover, the claim of the complainant (PW-8) that on the same day he had got mentioned the names of the accused in the supplementary statement at 8.30 p.m. Is also not acceptable as PW-12 Saleem Ullah Khan, S.I., who had investigated the case admitted during the cross-examination that prior to 13.10.2000, the complainant was not in the knowledge of the names of the culprits. So the story introduced during the investigation that their names were brought on the file through the supplementary statement of the complainant (PW-8) and the statement of PW-9 u/s. 161, Cr.P.C, is belied. Moreover, it was also admitted by the three Investigating Officers i.e. PW-9, PW-11 and PW-12 that no efforts were made for the arrest of the accused till 13th October, 2000.
14. All these circumstances clearly indicate that before 13.10.2000 the appellants were not nominated as accused in the present case and subsequently when the appellants were arrested by Garhi Shahu Police in some other case of dacoity, they were involved in this case as well. Even otherwise, no identification parade was conducted and in the absence of such procedure which could be an important piece of evidence, there does not appear any reason that how the three appellants were nominated, when according to the complainant's on. Version contained in the F.I.R, that two unknown accused had committed this crime.
15. Besides the above, PW-8 Muhammad Ramzan and PW-9 Muhammad Iqbal were residents of the place two miles away from the place of occurrence and they have failed to establish their presence at the spot during the odd hours of night at 4.00 a.m. Alongwith the deceased. They had not uttered even single word in their statements before the police about the reason of their presence at the spot at such time with the deceased. Both of them also admitted during the cross- examination that they did not accompany the deceased usually, In such circumstances, possibility cannot be ruled out that-the witnesses were not present at the spot, but were subsequently summoned from their houses after identification of the dead.-body of the deceased and case was registered against the unknown assailants. Then after the arrest of the appellants in some other case, they were also involved in this case. The statements of the eye-witnesses are not confidence inspiring and I do not find any reason for relying upon them to maintain the conviction.
16. The prosecution has also relied upon the recovery of weapon which was allegedly recovered during investigation of dacoity case by Garhi Shahu police, but the said weapon was never produced before the learned Trial Court. Moreover, no empty was recovered from the spot. Such type of recovery cannot be considered as corroborative piece of evidence to the ocular account, which even otherwise has been found to be untrustworthy.
17. For the foregoing reasons, I have no hesitation in holding that the prosecution has miserably failed to bring home guilt to the appellants beyond any shadow of doubt. Hence, both the appeals are accepted, the impugned judgment of conviction and sentence is set aside and all the three appellants are acquitted of the charge of Qatl-i-Amd of Muhammad Iqbal deceased. They shall be released from jail forthwith, if are not required in any other criminal case.