' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No.577 of 2002 filed by Muzammal Hussain, who along with Sohail Masih faced trial in case F.I.R. No.294, registered at Police Station City Daska, on 27-7-1998, for offences under section 302/34, P.P.C., before learned Additional Sessions Judge, Daska, who after conclusion of trial, vide his judgment dated 8-4-2002 convicted both of them under section 302(b), P.P.C. And sentenced them to death with compensation of Rs.1,00,000 each or in default six months' S.I. Each, Both of them were also convicted under section 324/34, P.P.C. And sentenced to ten years' R.I. Each with fine of Rs.25,000 each, or in default six months' S.I. Each, The learned trial Court also convicted both of them under section 337-D/34, P.P.C. And sentenced them to ten years' R.I. Each with Arsh amounting to Rs.96,000 each or on default six months' S.I. Each.
' It is pertinent to note here that Sohail Masih had challenged his conviction and sentence by filing separate appeal (Criminal Appeal No.660 of 2002), which was accepted on the basis of compromise and Sohail Masih was acquitted by this Court vide order dated 27-9-2006.
2. Murder Reference No.300 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.PE/1 registered on the statement of Muhammad Saleemcomplainant are that during night in between 26/27-7-1998, while he was sleeping on a cot and his other family members were sleeping on the ground on mattress, on the roof of his house, at about 1-30 a.m. Two persons armed with firearms came on the roof. One of them pressed the neck of his wife Naziran Bibi, .She raised shriek. Thereupon complainant and son Yasin woke up. Yasin pushed one of the accused. The other accused made a fire which hit on the back of head of Yasin.
The accused, who was pushed by Yasin, fired at the complainant, which landed on his right shoulder and arm. The other accused again fired, which hit Yasin on his right hand. Both the accused were of 5/6 feet height and were wearing tracksuits. On hue and cry of the complainant party the accused fled away and the residents of the locality gathered there. The complainant and Yasin went to Civil Hospital, Daska, where they were medically examined and due to serious condition Yasin was referred to Civil Hospital, Sialkot, who later on succumbed to the injuries there.
4. After registration of formal F.I,R., the investigation of the case was taken over by Muhammad Boota, Inspector/P.W.15. He proceeded to the place of occurrence, collected blood-stained earth from the spot vide memo. Exh.PK. He also collected two empties and one missed bullet of .30 bore pistol from the place of occurrence. Thereafter he went to Civil Hospital, Sialkot, prepared application for postmortem examination Exh.PM and also inquest report Exh.PN. On 18-5-2001 Qaisar Mushtaq, S.-I./S.H.O./P.W.17 arrested Sohail Masih and on 7-6-2001 he also arrested Muzammal Hussain. After completion of investigation, the accused were sent up to face trial.
5. At the trial, the prosecution in order to prove its case produced 18 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PO closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. However, Nisar Ahmad, Head-constable appeared as D.W.1. After conclusion of trial, the learned trial Court convicted and sentenced Sohail Masih and Muzammal Hussain-appellant as stated above.
6. The learned counsel for Muzammal Hussain-appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that it was a night occurrence; that it was impossible to identify the assailants after two years and ten month that there was no source of light; that no other incriminating evidence is available against the appellant; and that the learned trial Court has wrongly relied upon the pointing out of place where the weapon was thrown, as the same is inadmissible in evidence, similarly extra-judicial confession being joint was also inadmissible.
7. On the other hand, the learned Additional Prosecutor-General submits that both the P.Ws., who have no previous enmity with the appellant, have correctly identified him in the identification parade; that the direct evidence was reliable and even if .The evidence of extra-judicial confession was not to be believed, conviction could be recorded on the direct evidence,
8. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
9. According to prosecution case during night in between 26/27-7-1998 the complainant and his family members were sleeping on the roof of the house. The complainant was sleeping on a cot while his. Wife and children were sleeping on the mattress. During mid night at about 1-30 a.m., two persons, who were armed with fire-arms and were not previously known to the complainant, emerged. One of the accused tried to press the neck of the wife of complainant, who screamed.
The complainant and his son Yasin-deceased woke up. Yasin pushed the accused aside.
Meanwhile, the accused, who was standing and armed with pistol fired, which hit on the back of Yasin. Thereafter the accused, who had been pushed, fired with his carbine, which hit on the right shoulder and bicep of the complainant. The accused, who had earlier fired at Yasin, again fired on the right thumb of Yasin. Both the accused were wearing tracksuits and were of the height of about five feet and six inches. Neither any source of light was mentioned in the F.I.R. Nor did the witnesses mention the same fact in their statements recorded before the learned trial Court. The source of light has also not been mentioned in the rough site-plan or in the scaled site-plan. The occurrence did not last more than few minutes. In the darkness of night it would not be possible for the P.Ws. To have close look at the faces of the assailants. It is for this reason that no feature of any assailant has been mentioned in the F.I.R. Or in the statements. Even the complexion .Of the accused or type of their body whether they were slim or stout was not mentioned in the F.I.R. The description mentioned in the F.I.R. Would fit on the millions of citizens A and it would not be possible for the P.Ws. To identify the assailants on the basis of description given. The complainant and Naziran Bibi P.W., both stated before the learned trial Court that they did not know any feature of the accused nor they could identify or recognize any other feature of the accused except the description given in the F.I.R.
10. The identification parade was held on 29-5-2001 after two years and ten months of the occurrence. The period lapsed between the occurrence and the identification by itself shows that the identification was almost impossible. Both the accused, prior to identification parade, stated before Rana Abdul Shakdor, Magistrate, P.W.14, that they had been shown to the eye-witnesses previously and the Magistrate admitted it to be correct that Sohail Masih raised objection that the police party tortured and compelled him to confess the murder in presence of a Baba, Baby and a young person. It is also .Admitted to be correct that Muzammal Hussain also raised objection that the police took him from the Jail and provided a chance to sit with the complainant. The objections raised by the accused find support from the statement of the complainant himself, who during cross-examination stated that 8/10 days prior to the identification parade they were informed by the police officials of Police Station City. Daska that accused of murder of his son had been arrested. He further stated that he along with his wife went to the police station on the day of identification parade and he along with his wife also visited the police station on the day of receiving of information of arrest of the accused through constable. He also stated that they stated about one hour and forty five minutes in the Police Station City Daska. The Magistrate, who conducted the identification parade was totally unaware of the procedure and precautions necessary to C 'adopt before holding of identification parade. Firstly he did not get the accused identified separately; secondly he did not mix the required number of dummies with the accused; and thirdly he did not ensure that the dummies should be similar to the accused. Perusal of the proceedings of identification parade Exh.PG reveals that Muzammal Hussain was aged about 23 years while five of the dummies were of the ages of 30 years or more. The Magistrate also did not ask the accused whether they would like to change the places after they had been identified by one of the witnesses. The Magistrate did not mention any special feature either of the accused or of the dummies. In the above noted circumstances no reliance can be placed on the identification parade at all. It is obvious that identification parade had been D manoeuvred by Qaisar Mushtaq, S.H.O./ P.W.7 and the accused were shown to the P.Ws.
11. Fahim Khalid P.W.16, who is related to the complainant and Zafar Iqbal P.W.18 were produced by the prosecution to prove extra-judicial confession having been made by the accused before the two witnesses. It may be noted here that according to P.Ws. The confession was made on 18-5-2001 the day when both the accused were arrested. According to Zafar Iqbal, he had gone to Police Station City Daska, Fahim Khalid P.Ws. Also reached there to know about the accused, who according to him had been arrested by the police. Both the accused called the P.W. And requested him that he should persuade the complainant party to pardon them, as they had committed blunder. He added that thereafter they returned from the police station. During cross-examination he stated that P.W.17 Qaisar Mushtaq, S.H.O., already knew that the offence was committed by the accused. He further stated that S.H.O. Was sitting in his office when he had gone to the police station. His statement clearly shows that the confession was made jointly at the police station, while the S.H.O. Was also present there. Extrajudicial confession being inadmissible has no evidentiary value at all. On the same point Fahim Khalid P.W. Stated that on 18-5-2001 he and Zafar Iqbal were sitting in the drawing room of. Zafar Iqbal, at about 9/9-30 a.m., while they were talking, Sohail Masih, who was known to Zafar Iqbal, reached there and confessed his guilt of commission of murder of Yasin, while taking Zafar Iqbal in a corner of the drawing room. The confession was not made to him. He just overheard it. He claimed to be a friend of Zafar Iqbal but he was not able to tell the number of children of Zafar Iqbal, the name of his wife or any of his children. He also did not know that how many brothers and sisters Zafar Iqbal had. He is related to the complainant. He has come out with a story which totally contradicts the story put forward by Zafar Iqbal P.W. The statements of both the P.Ws. Are mutually destructive. The evidence of extra-judicial confession was obviously introduced by dishonest police officer Qaisar Mushtaq, S.H.O./P.W.17 by F 'way of padding and, persuading Fahim Khalid to be a witness, who was related to the complainant.
12. The prosecution failed to prove any motive against the appellant. As far as the medical evidence is concerned, the same would be of no consequence against the G appellant. No weapon was recovered at the instance of the appellant during investigation.
13. The upshot of the whole discussion is that the prosecution case is replete with doubts. Hence, while extending benefit of doubt in favour of the appellant, this appeal is accepted and H the judgment passed by the learned trial Court is set aside. The appellant is acquitted of all the charges. He would be released from Jail forthwith, if not required in any other case.
14. Resultantly,, murder reference is answered in the negative and the sentence of death is not confirmed.