' MUHAMMAD FARRUKH MAHMUD, J.--- Muhammad Rafiq, Muhammad Arif and Muhammad Ramzan were booked in case F.I.R. No,163 registered at Police Station Hujra Shah Muqeem, District Okara, on 22-4-1998, for offences under sections 460/302/380, P.P.C. Muhammad Ramzan/co- accused could not be arrested and was, thus, declared proclaimed offender. However, Muhammad Arif and Muhammad Rafiq were tried by Ch. Mushtaq Ahmad, learned Additional Sessions Judge, Okara. Vide judgment, dated 30-10-2001, the learned trial Judge convicted and sentenced them as follows:--- Muhammad Arif and Muhammad Rafiq
(1) For offence under section 460, P.P.C. To undergo R.I. For ten years each;
(II) For offence under section 380, P.P.C. To suffer R.I. For three years each plus payment of fine of Rs,10,000 each, in default whereof to undergo further R.I. For six months each; Muhammad Rafiq
(III) For offence under section 302(b), P.P.C. To death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.I. For six months; Muhammad Arif
(IV) For offence under section 302(b), P.P.C. To imprisonment for life plus payment of Rs,50,000 as compensation to the legal heirs of the deceased or in default thereof to further undergo S.I. For six months.
' All the sentences were to run concurrently. The convict Muhammad Arif was granted the benefit of section 382-B, Cr.P.C.
2. Muhammad Rafiq and Muhammad Arif, convicts-appellants, have challenged their above noted convictions and sentences through Criminal Appeals Nos.104-J of 2003 and 222-J of 2002 respectively. Murder Reference No,732 of 2001 seeking confirmation or otherwise of death sentence inflicted upon Muhammad Rafiq appellant has also been placed before us. We propose to decide all these matters through this consolidated judgment.
3. The facts of the case per F.I.R. Exh.P.A. Recorded at the instance of Liaqat Ali, complainant/P.W.1, by Ibrar Ahmad Khalil, Inspector/P.W.14, in brief, are that the complainant along with his brothers Shaukat Ali, Sadaqat Ali, Mubarak Ali and Basharat Ali lived in the same house. On the night in between 21/22-4-1998, the complainant and his brother Sadaqat Ali/P.W.2 slept in their respective rooms, while Shaukat Ali (deceased), Mubarak Ali/P.W.3 and Basharat Ali slept in the courtyard of the house. At about 4-00 a.m. On hearing the noise "thief" "thief" they came out and saw three persons standing in the compound of the house. One of them with middle height, strong body and round face, who was wearing brown coloured Shalwar-Qameez, was armed with pistol. The second person with middle height, strong body and having beard on his face, dressed in Naswari Shalwar- Qameez, was armed with .12 bore gun. The third one was also of middle height and active body.
The complainant and his brothers could identify the said accused. The P.Ws., while raising alarm, tried to apprehend the accused, who attempted to run away by scaling over the wall. One of the accused was caught by Shaukat Ali, while the other two scaled over the wall. On the alarm raised by the apprehended accused, his companions resorted to firing with their respective weapons. The accused who was armed with pistol caused successive fires on Shaukat Ali, who, resultantly, got injured and fell down. The third accused also succeeded in fleeing away from the spot. Shaukat Ali succumbed to the injuries at the spot. The accused, while leaving the scene of occurrence, took away the .12 bore licensed gun of the father of the complainant. However, the accused left a pistol and Butt of the gun at the spot.
4. On 22-4-1998, after registration of the case, Ibrar Ahmad Khalil, Inspector/P.W.14, went to the spot and collected blood-stained earth which was taken into possession through memo. Exh.P.E. The Investigating Officer collected six empties of bullet P.4/1-6 and four empty cartridges P.5/1-4 which were taken into possession vide memo. Exh.P.F. The revolver .32 bore P.6 and Butt of the gun P.7 were also taken into possession from the spot through memo. Exh.P.G. The Investigating Officer prepared injury statement Exh.P.L. And inquest report Exh.P.M. Of the deceased and sent the dead body to the mortuary for post-modem examination. He also prepared rough site plan of the place of occurrence Exh.P.Q. Blood-stained clothes of the deceased, i.e. Shalwar P.8, Shirt P.9 along with a sealed phial P.10 were taken into possession through memo. Exh.P.H. The Investigating officer got prepared the scaled site plan Exh.P.B./1 from Riaz Ahmad, Patwari/P.W.4. Both the appellants were arrested on 28-4-1998 and were produced before the Ilaqa Magistrate on 29-4-1998 for sending them to judicial lock-up for the purpose of identification parade. On the same date, they were got medically examined from R.H.C. Hujra Shah Muqeem. On 12-5-1998 the identification parade was held at Central Jail, Sahiwal, under the supervision of Magistrate, Depalpur, On 13-5-1998, the investigation was entrusted to Atta Muhammad, S.-I./ P. W.12. On 24-5-1998 Muhammad Rafiq, while in custody, led to the recovery of .32 bore pistol P.1 along with five live bullets P.2/1-5 loaded in its magazine which were taken into possession through memo. Exh.P.C. On the same date, Muhammad Arif, while in custody, led to the recovery of .12 bore stolen gun P.3 which was taken into possession vide memo. Exh.P.D. After completion of investigation, both the appellants were sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced fifteen witnesses. Ocular account was furnished by Liaqat Ali, Sadaqat Ali and Mubarak Ali, P.Ws.1 to 3. They also stated about the identification of the accused during identification parade held at Central Jail, Sahiwal.
Sabir Ali/P.W.5 stated about the recoveries effected at the instance of the appellants. Nazir Hussain/P.W.6 stated about the recoveries effected from the spot. Dr. Muhammad Yahya/P.W.10, while observing six fire-arm injuries of which four were entry wounds and two were grazing wounds, found sixth, seventh and eighth rib on back and left side of the chest of the deceased fractured. He recovered three bullets from the chest cavity. According to the doctor, the cause of death was .Haemorrhagic shock due to perforation of vital organs by injuries Nos. I to 4 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. In the opinion of the doctor, the death was immediate, while the time which elapsed between death and post-mortem examination was within six to eight hours. On 29-4-1998 the doctor/P.W.10 also medically examined Muhammad Rafiq appellant and while finding three injuries on his person, each consisting of multiple healing abrasions, opined that the injuries were Ghair Jaifah Damiah and were caused by blunt weapon. The duration between the injuries was within one week. On the same date, the doctor medically examined Muhammad Arif appellant. He, while observing three healing abra'sions on his person, opined that the injuries were Ghair Jaifa Damiah caused by a blunt weapon within the duration of one week. Ibrar Ahmad Khalil, Inspector/P.W.14, stated about the registration of the case and the investigation thereafter. Atta Muhammad, S.- I./P.W.12, also partly investigated the case. Muhammad Rafiq, Special Judicial Magistrate/P.W.15, stated about the holding and supervision of identification parade wherein the P.Ws. Identified the appellants as culprits. His statement is in line with the identification parade report Exh.P.U. After placing on record the reports of Chemical Examiner Exh.P.V. Serologist Exh.P.W. And Forensic Science Laboratory Exh.P.X. Closed its side.
6. In their statements recorded under section 342, Cr.P.C., the appellants pleaded their, innocence and false implication in the case due to previous enmity with the P.Ws. They further stated that they were shown to the P.Ws. Before the identification parade. However, neither they appeared as their own witnesses under section 340(2), Cr.P.C. Nor did they produce any witness in defence.
7. Learned counsel for the appellants submits that the occurrence took place in the darkness of the night; that there was no source of identification; that the P.Ws., who are real brothers of the deceased, have contradicted each other on almost all the material points; that the identification test had no credence as the accused were already shown to the complainant party; that the identification parade was held after unnecessary delay; and that the complainant party had ample opportunities to see the accused while they were in custody.
8. Conversely, the learned counsel appearing on behalf of the State have contended that the witnesses were natural, as they were inmates of the house; that they correctly identified the appellants during identification parade; that the ocular account is supported by the circumstances of the case; that the eye-witnesses account is further supported by the recovery of pistol at the instance of Muhammad Rafiq and tallying of the empties with the pistol recovered.
They support the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the entire record with their assistance.
10. According to F.I.R., Shaukat Ali deceased and his brothers, who are P.Ws. In the case, lived in the same house. On the fateful night, the complainant Liaqat Ali and his brother Sadaqat Ali were sleeping in their rooms, while Shaukat Ali deceased, Mubarak Ali and Basharat Ali were sleeping in the compound of the house. The occurrence took place at about 4-00 a.m. By three accused who were not previously known to the P.Ws. The case of the prosecution rests on the identification of the accused/appellants. According to P.W.15, Muhammad Rafiq/Special Judicial Magistrate, the identification test was held on 12-5-1998, while he was deputed to do the job on 5-5-1998.
According to the report of Magistrate Exh.P.U., both the accused were mixed with eighteen imnates of the jail. It is in the report that prior to the identification test, both the appellants raised objection that they were detained in police station for five days and during that period they were shown to the P.Ws. By the S.H.O. It is also in evidence that the appellants were arrested on 28-4-1998. They remained at police station during night in between 28/29-4-1998. They were taken to the doctor for their medical examination, as both of them had injuries on their persons. It is also in evidence that mother of Muhammad Arif appellant filed a writ petition before this Court against the S.H.O. For improper detention of the appellants and both the appellants were produced before the High Court on 30-4-1998 in compliance to the order passed in the writ petition. P.W.14 during cross- examination insisted that he had instructed the accused/appellants to muffle their faces. He was directed by the learned trial Court to look into the relevant Zimni dated 30-4-1998. After going through the Zimni, Ibrar Ahmad Khalil, Inspector/P.W.14, admitted that it was not entered in the Zimuni that the accused were instructed to muffle their faces. In the circumstances, the objection raised by the appellants that prior to identification parade they were shown to the P.Ws. Earlier is not without substance. The identification report Exh.P.U. Does not reveal that the accused were mixed with strangers who were similar in physique, age and features. During cross-examination, the Magistrate admitted that both the- appellants had scares on their left eyebrows. He further admitted that he did not instruct the appellants to hide the scar nor he made any attempt to hide the scar by placing some Chit on it or otherwise. In the presence of distinguishable marks, which were not hidden, the identification, test would lose its value, especially when the report was totally silent, whether the strangers had similar physique, height or not. The statements of the eye- witnesses also suffer from material contradictions. Most importantly, according to F.I.R. The deceased and the P.Ws. Were sleeping in the same house and out of the P.Ws. Liaqat Ali/complainant and Sadaqat Ali were sleeping in their rooms. During cross-examination, Liaqat Ali/complainant admitted that it was correct that he was residing in the house with a courtyard, while Shaukat Ali Deceased was residing in the house with a school, at the time of occurrence.
According to site plan Exh.P.B./1, the dead body of Shaukat Ali was lying in the compound of a house which was adjacent to the school. The site plan does not show rooms where the P.Ws. Were sleeping. These facts knock out the story of the prosecution. The P.Ws. Also made dishonest improvements during the trial and were fully exposed. For example it was alleged in the F.LR. That the accused, while leaving the house, took with them the licensed .12 bore gun of the father of the deceased. During trial, Mubarak Ali/P.W.3 stated that he had not seen the stolen gun in the hands of any of the accused. Sadaqat Ali/P.W.2 on the same point stated that he came to know about the stealing of gun after the occurrence and he did not know as to who had stolen it. It was suggested to the P.Ws. That Sher Nasir Ali was their maternal-uncle whose water pump had been stolen and suspicion was laid against the appellants. In reply to the suggestion, Mubarak Ali stated that he was not on speaking terms with his uncle. He further stated that his maternal-uncle did not attend the funeral ceremony of the deceased but in the same breath admitted that his uncle attended all the marriage ceremonies. About the theft of water pump, he stated that it was stolen but he did not know, when? On the same point, Sadaqat Ali stated that water pump was stolen but he did not know whether the case was registered or not or whether the accused were arrested or not. On the contrary, the complainant admitted that the theft of water pump was committed in April, 1998, and a case was registered. He further admitted that both the appellants were arrested in that case. In the above noted circumstances, no reliance can be placed on identification test and the statements of the P.Ws.
11. As far as medical evidence is concerned, it does support the prosecution to the extent that the deceased lost his life due to fire-arm injuries but it does not lead to the person who had caused the'fires.
12. The learned counsel for the State have laid much stress on the recovery of pistol and its tallying with the empties recovered from the spot. We have thoroughly scanned the evidence relating to recovery of pistol. It has been noticed by us that the occurrence took place on 22-4-1998, while the empties were received at the Forensic Science Laboratory on 12-5-1998, after three weeks. There is no explanation as to why the empties were kept at the, police station for such a long time and why the same were not sent to the Laboratory promptly. It is also significant that the appellants were arrested on 28-4-1998 and remained with the police initially till 30-4-1998. The factum that the empties were sent after the arrest of the accused cast doubt on the evidence of recovery. It is also noteworthy that a .30 bore pistol which was allegedly left by the accused was recovered from the spot on 22-4-1998. After the registration of the case, this recovered pistol was never sent to the Forensic Science Laboratory; that reflects on the dishonesty of the Investigating Officer. As per F.I.R.
Only one of the accused was armed with a pistol. As noted above, a .30 bore pistol which was left by the accused was recovered from the spot. Then the recovery of some other pistol at the instance of appellant Muhammad Rafiq indicates padding on the part of the Investigating Officer and such-like evidence cannot be relied upon.
13. It may be added here that the site plan does not reveal any source of light which further makes the identification of the assailants doubtful. The factum of recovery of stolen gun at the instance of Muhammad Arif appellant is also not free from doubt, as during the recovery proceedings, the provisions of section 103, Cr.P.C. Were violated despite the fact that the Investigating Officer had ample time to associate respectables of the locality during the proceedings.
14. For what has been said above, we are of the opinion that the assailants were not identified by the P.Ws. And the prosecution case was replete with doubts. Hence, we allow both these appeals and set aside the judgment passed by the learned trial Court to the extent of appellants. They are acquitted of all the charges and would be released forthwith, if not required in any other case.
15. The death sentence inflicted upon Muhammad Rafiq is not confirmed. The Murder Reference is answered ill the negative.