' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1160 of 2002 filed by Zafar appellant and Criminal Appeal No,1036 of 2002 filed by Munir Ahmad appellant, who were convicted and sentenced by learned Additional Sessions Judge, Jhang, vide his judgment dated 17-5-2002 to undergo imprisonment for life under section 302(b), P.P.C. Plus fine of Rs,20,000 each or in default one year's S.I. They were also directed to pay Rs,100,000 each to the legal heirs of Noor Muhammad deceased as compensation or in default one year's S.I. With the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as narrated by Zulfiqar complainant in F.I.R. Exh.P.A. Are that at 1-30 a.m.
(night) on 5-2-2000, thieves scaled over the wall of the house of Manzoor alias Maila and effected their entry into his house with the intention to commit theft there. One of the three thieves stood with a gun pointed at Manzoor whereas the other thieves searched the articles of the house. When Manzoor tried to interfere, they beat him. No sooner did the thieves come out of his house, Manzoor raised an alarm which attracted Noor brother of the complainant who came out of the house empty handed. When they reached under construction house of Muhammad Ashraf on the Kacha road going from "Koh" to Abadi Kalerwala, three accused were present there. Two out of the three who were present with their faces muffled fired shot with their .30 bore pistols at Noor one after the other hitting him on the left side of his chest and near his right eye, as a result of which he fell down on the ground. On his hue and cry, attracted the complainant, Mst. Fatima Bibi, his sister-in-law.
Haq Nawaz and Mst. Mumtaz Bibi wife of Haq Nawaz and witnessed the occurrence with their own eyes. In the meantime, Noor succumbed to the injuries sustained by him.
3. After registration of the formal F.I.R. Amir Ali, S.I. P.W.15 reached at the .Spot prepared inquest report Exh.P.D. And injury statement Exh.P.C., took into possession blood-stained earth from the spot vide recovery memo. Exh.PL also secured two crime empties from the place of occurrence vide recovery memos. Exh.P.M. And Exh.P.N. Respectively, also secured moulds of the foot-prints of, the accused vide memo. Exh.P.E. Recorded the statements of the witnesses under section 161, Cr.P.C. On 11-2-2000 he arrested all the four accused and on 11-2-2000 he got prepared the moulds of the foot-prints of the accused and took the same into possession vide memo. Exh.P.F. On 12-2-2000 Mujahid Hussain accused while in police custody got recovered 7-MM rifle P.4, which was taken into possession vide memo. Exh.P.Q. Also took into possession four live bullets P.5/1-4 through the same memo. On 19-2-2000 Zafar (appellant) got recovered pistol P.7 and Munir Ahmad (appellant) got recovered pistol P.8, which were taken into possession vide recovery memo. Exh.P.T. And Exh.P.T./.1 respectively. After completion of the remaining investigation, accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 15 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report .Of Chemical Examiner Exh.P.V. That of Serologist Exh.P.W., report of Forensic Science Laboratory Exh.P.X. About moulds, report of Forensic ' Science Laboratory about the pistols Exh.P.Y. And closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for Zafar appellant submits that nobody was named in the F.I.R., that no identification parade had held in this case, that occurrence took place at 1-30 a.m. On the night of 4/5-2-2000 while the matter was reported to the police at 7-15 a.m. On 5-2-2000 by Zulfiqar complainant and the formal F.I.R. Exh.P.A.
Was recorded at 7-35 a.m. On the same day by Muhammad Akram A.S.-I., that there is no mention in the F.I.R. That complainant could not give the names of the accused due to fear that prosecution also concocted extrajudicial confession of the witnesses who were closely related to the complainant party, that said extra-judicial confession was joint one and the same is not admissible in evidence, that there is clear conflict between ocular account and medical' evidence, that tracker was called and foot-prints were taken into possession but it shows that complainant was not assured about the names of the accused persons, that all the recoveries were effected from the house of Mujahid acquitted co-accused one by one on same cot, which is also not believable, that according to prosecution case, two crime empties were recovered from the spot but there are two recovery memos. Exh.P.M. And Exh.P.N. Showing the recovery of one crime empty each, that Zafar appellant has been falsely implicated in this case, as his maternal uncles was P.W.
In a Zina case registered against the near relations of the complainant party.
6. Learned counsel for Munir Ahmad appellant adopts the arguments of learned counsel for Zafar appellant.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that due to fear of accused party, names of accused persons were not given in the F.I.R., that there was no previous background of enmity between the parties, that there was no question of false implication of the appellants in the case, that ocular account is fully corroborated by medical evidence, that two crime empties recovered from the spot match the pistols recovered from both the appellants, that all the circumstantial evidence is against the appellants, that three other witnesses, namely, a Manzoor, Haq Nawaz and Mst. Fatima had named the appellants in their statements recorded under section 161, Cr.P.C. And fully supported the prosecution case. This supports the judgment of the learned trial Court.
8. I have heard learned counsel for the parties at a great length and have also gone though the record with their able assistance. In the instant case, occurrence had taken place, between the night of 4/5-2-2000 at 1-30 a.m. Matter was reported to the police at Add Nulka at 7-15 on 5-2- 2000 and the formal F.I.R. Was recorded at 7-35 a.m., the distance between place of occurrence and the police station was 7-1/2 miles, nobody was named in the F.I.R., no source of light was mentioned in the F.I.R., no identification parade had held in this case and above all three accused were mentioned in the F.I.R. Having muffled their faces but in a so-called supplementary statement, four accused have been mentioned and their names were also mentioned. Complainant while being cross-examined made dishonest improvement and he was duly confronted with his earlier statement. During cross-examination he stated that he .Knew all the accused prior to the occurrence. If this was the position, then, why he did not give their names in the F,I.R. He further stated before the learned trial Court that due to fear he could not give their names while lodging the complaint, although an Inspector had told that he should not fear and he should give the names of the accused. He also admitted in cross-examination that he remained at the spot along with other P.Ws. For 4/5 hours after the occurrence but in spite of that he did not tell the names of accused persons in his' complaint. I my considered opinion, it was a case of mistaken identity for the abovesaid reasons given by this Court, it was an unwitnessed occurrence, nobody had seen the same, presence of the eye-witnesses at the spot at the time of occurrence is highly doubtful. If the prosecution had got ocular account in the shape of four eye-witnesses, then, what was the need of extra-judicial confession or that of tracker, this shows that there was apprehension that ocular account is not of the type, which can bring the conviction to the accused persons. Even extra-judicial confession is a joint one, which is not admissible in evidence. The doctor, who conducted the post-mortem examination on the dead body of the deceased gave the duration between injury and death shortest possible time and between death and post-mortem 4 to 6 hours, which also against the time of occurrence of 1-30 a.m. When the matter was reported to the police at 7-15 a.m. Post-mortem, was conducted at 12-30 p.m. And the time between death and post-mortem, which comes is 11 hours, which is also fatal to the prosecution case.
9. As far as recovery of crime empties is concerned, according to the prosecution case, two crime empties were taken into possession from the spot but there are two recovery memos. Of each crime empty. I do not know what was the reason with the Investigating Officer to do the same.
Moreover, accused was arrested in this case on 11-2-2000 and on the same day, the said crime empties were sent to Fire-arm Expert through P.W.3 while recovery of, pistol according to the prosecution cases was effected on 19-2-2000 and were sent to Fire-arm Expert on 24- 2-2000. If the crime empties were recovered from the spot on 5-2-2000, then why those were kept with Moharrar till the arrest of the accused, which shows that after their arrest, shots were fired from the pistols allegedly recovered from both the appellants and then crime empties were sent to Fire-arm Expert.
10. I may mention here, that in this case, the learned trial Court had acquitted Mujahid Hussain and Haq Nawaz co-accused of the present appellant and against their acquittal complainant had also filed Criminal Appeal No,1459 of 2002, which was also dismissed in limine by a Division Bench of this Court on 28-2-2005.
11. For all what has been discussed above, I am of the considered opinion that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. It is a case in which there are so many doubts, benefits of the same always goes in favour of the accused not as a matter of grace but as a matter of right, so'while granting the same benefit of doubt, I accept both these appeals set aside the conviction and sentence recorded against the appellants by the learned trial Court. They are in jail and they shall be released forthwith if not required to be detained in any other case.