' MUHAMMAD FARRUKH MAHMUD, J.-Aurangzeb alias Kala, Nadeem, Riaz, Ijaz, Nawaz and Zulfiqar were booked in case F.I.R. No.732 registered at Police Station Factory Area, Faisalabad, on 20-12- 2000 for offences under sections 460/302, P.P.C. During trial Riaz, Ijaz, Nawaz and Zulfiqar were acquitted by the learned trial Court under section 265-K, Cr.P.C. Vide order dated 26-2-2002.
However, vide judgment dated 28-2-2002 handed down by Mr. Ishtiaq Ahmad, learned Additional Sessions Judge, Faisalabad, Aurangzeb alias Kala and Nadeem were convicted and sentenced as under:
(i) Aurangzeb for offence under section 302(b), P.P.C. To death plus payment of Rs.20,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. For one year;
(ii) Aurangzeb for offence under section 459, P.P.C, to suffer R.I. For ten years plus payment of Rs.
10,000 as fine, in default whereof to further .Undergo S.I. For two years';
(iii) Nadeem for offence under section 302(b), P.P.C. To imprisonment for life plus payment of Rs.20,000 as compensation' to the legal heirs of the deceased, in default whereof to further undergo S.I. For one year;
(iv) Nadeem for offence under section 459, P.P.C. To suffer R.I. For ten years' plus payment of Rs.
10,000 as fine, in default whereof to further undergo S.I. For two years'.
' The sentences awarded to Nadeem were ordered to run concurrently.
2. Aggrieved by their above noted convictions and sentences, Aurangzeb alias Kala and Nadeem, convicts/appellants have filed Criminal Appeals No.529 and 355 of 2002 respectively. Murder Reference No.340 of 2002 seeking confirmation or otherwise of death sentence awarded to Aurangzeb has also been placed before us. We propose to decide all these matters through this judgment.
3. The facts of the case, in brief, as per complaint Exh.PE, recorded by Faiz Ahmad, S.-I./P.W. 13, at the instance of Rasheed Ahmad, complainant/P.W.8, which based the registration of formal F.I.R.
Exh.PE/1, are that the complainant was resident of Street No.l of peoples town, while his brother Nazeer Ahmad was residing in Street No.3 of the same town and was running a grocery shop in his house. On 20-12-2000- during night, the complainant Muhammad Ashraf/P.W.9 and Abdul Majeed slept in a room of the house of Nazeer Ahmad, while Nazeer Ahmad slept in the Baithak when at about 1-30 a.m. On hearing the hue and cry emanating from the courtyard, the complainant and his companions opened the door of the. Room and saw in the light of electric bulb that two unknown persons wearing masks on their faces, armed with pistols, were grappling with Nazeer Ahmad. Both the accused, while aiming their pistols towards the P.Wg., threatened them with dire consequences in case they came forward. Within the view of the P.Ws, one accused caused a straight shot which hit Nazeer Ahmad on his chin, while the second accused shot a fire hitting Nazeer Ahmad on his neck, in view whereof Nazeer Ahmad fell down. The two accused ran away by scaling over the wall. The P.Ws. Then attended Nazeer Ahmad who had succumbed to the injures at the spot.
4. On 20-12-2000 at about 2-40 a.m. When Faiz Ahmad, S.-I./P.W. 13, along with other police officials was present at Madni Chowk in connection with patrol duty, the complainant appeared before him and got recorded his statement/complaint Exh'.PE which was sent to the police station where formal F.I.R. Exh.PE/1 was recorded. Then the S.-I./Investigating Officer (10) went to the spot; prepared injury statement Exh.PA/3 and inquest report Exh.PA/4 of the deceased and sent the dead body for post-mortem examination. He then collected blood stained earth from the spot and sealed the same into parcel through memo Exh.PH. The Investigating Officer recorded supplementary statement of the complainant wherein both the appellants were mentioned as culprits. He prepared the rough site-plan of the place of occurrence Exh.PJ. He also got prepared the scaled site-plan Exh.PB from Aurangzeb, Draftsman/ P.W.2. Both the appellants were arrested on 26-12-2000. On 2-1-2001, Aurangzeb- appellant, while in custody, led to the recovery of pistols P- 4 and six bullets P-5/1-6 which were taken into possession vide memo Exh.PF. On the same day, Nadeem got recovered pistol P-6 and seven bullets P-7/1-7 which -were taken into possession vide memo. Exh.PG. After completion of investigation, both the appellants along with their co-accused (who were acquitted during trial) were challaned to face the trial.
5. To substantiate its version at the trial, the prosecution examined as many as thirteen P.Ws. And after tendering in evidence the reports of Chemical Examiner Exh.PK, Serologist Exh.PK/1 and Forensic Science Laboratory Exh.PL closed its side. Thereafter the statements of the appellants under section 342, Cr.P.C. Were recorded, wherein they pleaded their innocence and false implication by making somewhat similar statements reading as follows.
"The P.Ws. Are closely related inter se. In fact it was unseen occurrence. The I.O. In order to aggrandize his performance while acting collusively with the complainant falsely embroiled us in this case. In a vacant plot nearby the house of the deceased I and my co-accused had been 'playing cricket. The deceased and the P.Ws. Were annoyed over it. They also stopped us many a times from' playing cricket, but we did not yield to their pressure. Later on, this occurrence took place which was a blind one, however, the complainant on account of grudge and suspicion and to extort money implicated us falsely in this case. "
' Neither the appellants made their own statements as enjoined under section 340(2), Cr.P.G, nor did they produce any witness in their defence.
6. Learned counsel for the appellants submits that the occurrence took place during mid of a winter night; that there was no justification for the P.Ws. To be present in the house of the deceased; that the assailants could not be identified as stated in the F.I.R.; that they were wearing masks; that their identification at Thana is worthy of no credence; that the complainant made dishonest improvement before the learned trial Court by stating that the masks were removed during the scuffle; that wearing of masks was not supported by the other P.Ws.; that the recoveries were of no consequences; that it is in evidence that four other accused were also arrested in the case and a dagger was recovered from Zulfiqar which means that the P.Ws. Were not sure as to who were the assailants; and that the prosecution case is replete with doubts.
7. On the other hand, learned Additional Prosecutor General for the State submits that the eye- witnesses were natural witnesses and their' statements were supported by die medical evidence; that the acquittal of the rest of the co-accused would not benefit the appellants, as none of the acquitted co-accused had caused any injury to the deceased.. He supports the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the record of the case.
9. Undeniably, the occurrence took place in the house of the deceased during the mid of a December night. The matter was reported to the police by Rasheed Ahmad/P.W.8, real brother of the deceased, at Madni Chowk at 2-45 a.m. Where Faiz Ahmad, S.-I./P.W.13 was, per chance, present along with other police officials. In his Fard Biyan Exh.PE, it was stated that the two assailants, who were armed with pistols, had covered their faces with masks and after causing injuries to the deceased in the compound of the house, they left the house after scaling over the wall. Since the assailants were wearing masks, they could not be identified and their names were not mentioned in the F.I.R. Rasheed Ahmad/complainant and his brother Muhammad Ashraf/P.W.9 appeared before the learned trial Court and furnished the ocular account. Rasheed Ahmad made dishonest improvement before the learned trial Court by stating that during scuffle the masks of the assailants were displaced, therefore, the complainant identified the assailants as the appellants. He also tried to introduce motive by stating that on 19-12-2000, Rs. 15,000 were given to the complainant after draw of pool money {{URDU TEXT}} The complainant introduced these facts for the first time through supplementary statement. It is in evidence that the complainant left on bicycle to report the matter to the police after remaining 10/15 minutes at the spot. He also admitted that by then 70/80 persons of the neighbourhood had assembled and he and other P.Ws.
Narrated 'the details of the incident to those persons but in the same breath he added that he did not expose the names of the assailants to the persons who had assembled there nor he discussed the identity of the assailants with his other brothers. There is no doubt that the complainant has resorted to such like statements in order to justify his supplementary statement introducing the story that the faces of the assailants were uncovered during the struggle. It has been held in a number of cases by the superior Courts that mostly the purpose of supplementary statement was either to fill in the lacunas of the prosecution case or to add in the number of the accused. The judgment passed by the apex Court in the case of Khalid Javed and another v. The State (2003 SCM R 1419) may be referred here, wherein it was observed that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with F.I.R. Nor read as part of the same and the value of the supplementary statement would be determined keeping in view the principles enunciated by the superior Courts in. This behalf. On the point of identification, Muhammad Ashraf/P.W.9 stated that the identification parade was conducted in police station after two days of the occurrence. Then he modified his statement by stating that after 6/7 days of the occurrence. He further modified his statement by adding that the accused were arrested 5/6 days after the occurrence and the identification parade was conducted 2/3 days after the arrest of the accused- In case the assailants Jiad been identified by the P.Ws. On the very first night, then there was no need for the witnesses to go to the police station and identify the accused there. Further-more, if the assailants were known to the P.Ws., then there was no need for any identification. Conscious of the fact that the assailants were not named in the F.I.R., Muhammad Ashraf also told a lie before the learned trial Court by stating that he and other witnesses did not disclose the names of Nadeem and Aurangzeb to any one before the arrival of the police. This conduct of the P.Ws. Being opposed to common-sense cannot be accepted. It is in evidence that not only the appellants but 4/5 other persons were also arrested in this case. Riaz, Ijaz, Nawaz and Zulfiqar along with appellants were sent up to face trial. They were acquitted by the learned trial Court vide order dated 26-2-2002 during trial. According to P.W.6 Faiz Ahmad, S.- I./P.W.13, Zulfiqar led to the recovery of a dagger. In case the witnesses had identified the appellants, then there was no need to arrest any other person, as, according to the prosecution case, only two persons had entered into the house of the deceased and caused injuries to him.
Both the P.Ws. Admitted that they and the deceased lived in separate houses. The houses of the deceased and Muhammad Ashraf were adjacent to each other and were situated in Street No.3, while the house of complainant was in Street No.
1. The witnesses miserably failed to justify as to why on the fateful night .They slept in the house of Nazeer and did not sleep in their own houses. The complainant also suppressed the fact in the F.I.R.
That the deceased was living along with this wife and sons. In the above noted circumstances, no reliance can be placed on the direct evidence.
10. As far as medical evidence is concerned, it supports the prosecution case only to the extent that the deceased lost his life due to fire-arm injuries but does not lead to the assailants. It may be added here that the post-mortem examination was conducted at 3-30 p.m. After more than twelve hours of reporting the matter to the police. According to doctor, he started conducting post- mortem examination the moment he received the dead body. The delay denotes that the assailants were not known to the P.Ws.
11. The alleged recovery of pistols at the instance of the appellants is of no consequence in the absence of their tallying with the empties. Apart from that, no independent witness was produced to prove the recoveries and the complainant who was an eye-witness also stated about the recoveries. Abad Ali who was other witness of the recovery was not produced during trial. Required in any other case. The death j sentence awarded to Aurnagzeb alias Kala appellant is not confirmed. The Murder Reference is answered in the negative.
12. So far as motive is concerned, it was an afterthought. Perhaps, it was introduced on the advice of the I Investigating Officer to strengthen the prosecution case.
13. In the above noted circumstances, we have concluded that the prosecution case is replete with doubts. Both these appeals are accepted and the judgment passed by j the learned trial Court is set aside. Both the appellants are acquitted of all the charges and would be released forthwith if not required in any other case. The death sentence awarded to Aurangzaib alias Kala appellant in not confirmed .The murder reference is the negative.