' ASIF SAEED KHAN KHOSA, J.---Ansar Ali, Akhtar Nawaz and Iffat Iqbal appellants were convicted on three counts of an offence under section 302(b), P.P.C. Vide judgment, dated 18-1-2001 handed down by the learned Additional Sessions Judge/Judge Special Court, Gujrat, Camp at District Jail, Gujrat and were sentenced to death each on each count and to pay a sum of Rs,1,00,000 each to the heirs of each deceased by way of compensation under section 544-A, Cr.P.C. In default of payment thereof to undergo rigorous imprisonment for two years each on each count. The appellants were also convicted for an offence under section 392, P.P.C. And were sentenced to rigorous imprisonment for five years each. The appellants have challenged their convictions and sentences before this Court through the present appeal.
2. The necessary facts giving rise to the present appeal are that at about 10-00 p.m. On 8-2-1997 Shabbir, Naseer Ahmad and Babar Shehzad deceased were done to death by three unknown persons in village Qasba situated within the area of Police Station Sarai Alamgir, District Jhelum when the said three unknown persons were fleeing after committing a robbery. The said occurrence had allegedly been witnessed by Tayyab Hussain complainant (P.W.1), Naeem Sajid (P.W.2) and Ehtzaz Taj (P.W.3) besides others. Upon arrival of the police at the spot a statement was made by Tayyab Hussain Complainant (P.W.1) in respect of the said incident before Nazar Hussain, S-I./S.H.O. (P.W.15) and subsequently formal F.I.R. No,55 was registered at Police Station Sarai Alamgir, District Jhelum at 2-00 a.m. On 9-2-1997 for offences under sections 382/302/34, P.P.C. In respect of that occurrence.
3. The investigation of this case was conducted by Nazar Hussain S-I./S.H.O. (P.W.15) who got the dead bodies subjected to post-mortem examination, recorded the statements of witnesses, arrested the appellants and recovered different weapons from their possession. After completion of investigation a challan was submitted before the learned trial Court.
4. At the commencement of the trial the learned trial Court framed a charge in respect of offences under sections 382/392/ 302/34, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as fifteen witnesses in support of its case against the appellants. Tayyab Hussain complainant (P.W.15), Naeem Sajid (P.W.2) and Ehtzaz Taj (P.W.3) furnished the ocular account of the incident in question. Dr. Shahid Tanveer (P.W.7), Dr. Sajid Mehmood (P, W.8) and Dr. Syed Islam Zafar (P.W.16) provided the medical evidence. Nazar Hussain, S.-I./ S.H.O. (P.W.15) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
However, they neither opted to make statements on oath under section 340(2), Cr.P.C. Nor produced any witness in their defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, their convictions and sentences recorded by the learned, trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have observed that the occurrence in this case had taken place at night and the night in question had been described by the eye witnesses themselves as a "dark night". The place of occurrence was a deserted canal bank with no habitation in its immediate proximity.
According to the F.I.R. Itself the culprits perpetrating the alleged offences had remained unidentified at the spot and admittedly no test identification parade had been held in this case so as to positively incriminate the appellants. The appellants had been arrested in connection with this case on 12-2-1997 and according to Tayyab Hussain complainant (P.W.l) he had been summoned to the local Police Station on 14-2-1997 "and then the police told me about the accused that they were their accused". The position regarding Ehtzaz Taj (P.W.3) is also the same as he too had stated before the learned trial Court that on 15-2-1997 he was summoned to the local police station and after showing the appellants to him thereat "Nazar Hussain, S-I. Had informed me that these were the accused of my case". This clearly establishes that Tayyab Hussain complainant (P.W.l) and Ehtzaz Taj (P.W.3) had never identified the appellants on their own as the actual culprits but they were only told by the local police to implicate these appellants in this case. As far as Naeem Sajid (P.W.2), the only remaining eye-witness produced by the prosecution, is concerned we have noticed that he had never identified the appellants either at the local police station or in any test identification parade and he had identified the appellants for the first time while making his statement before the learned trial Court after about two and a half years of the alleged occurrence. His statement made under section 161, Cr.P.C., if any, had never been brought on the record of the learned trial Court. This witness was admittedly a chance witness who had failed to establish any plausible reason for his presence at the scene of the crime at the relevant time. He lived in a different village situated one furlong away from the place of occurrence and according to him he had visited the village of occurrence during the fateful night in the month of February and had sit with the other eye-witnesses "without any rhyme or reason". At a subsequent stage during (the making of his statement before the learned trial Court he had maintained that he had come to purchase meat at the village of occurrence but it was unbelievable that any Meat Shop would be open at about 9-00/10-00 p.m. During that cold winter night. Thus, the reason set up by this chance witness for his presence at the spot at the relevant time has appeared to us to be unacceptable apart from the fact that the said reason had remained far from being established.
This witness had claimed that at the time of the alleged occurrence he was sitting in a car next to Babar Shehzad deceased. Babar Shehzad deceased had received fire-arm injuries from various directions but admittedly no injury whatsoever had been received by this witness nor his clothes had been stained with blood of Babar Shehzad deceased. Naeem Sajid (P.W.2) had claimed before the learned trial Court that he had become unconscious immediately after the occurrence and he had been transported to a nearby Hospital by some unknown persons. No such person was produced by the prosecution before the learned trial Court., Dr. Syed Islam Zafar (P.W.16) had deposed before the learned trial Court that Naeem Sajid (P.W.2) had not received any injury whatsoever and at the first visit of the police to the Hospital this witness was "perfectly fit" to make a statement. In these circumstances the claim of this witness regarding becoming unconscious at the spot had never been independently established. We have already observed above that this witness had never identified the appellants at the police station as was done by the other two eye- witnesses at the bidding of die police, no test identification parade had been held in this case and this witness had identified the appellants for the first time before the learned trial Court after about two and a half years of the alleged occurrence. The claim made by this witness regarding good acquaintance and familiarity with the present appellants is a claim which had never been independently proved or substantiated. For all these reasons implication of the present appellants by Naeem Sajid (P.W.2) has also been found by us to be not free from serious doubt.
10. No motive had been set up by the prosecution prompting the appellants to murder the three deceased in this case. The alleged recovery of weapons from the appellants during the investigation of this case was legally inconsequential as the weapons recovered from their possession and the crime-empties secured from the place of occurrence had never been sent to the Forensic Science Laboratory for their comparison. Thus, the prosecution had failed to receive any corroboration from any motive or from the recoveries. The medical evidence, by its nature; could not identify the culprits perpetrating the alleged offences in a dark winter night and, thus, the same was of no avail to the prosecution in this case, especially when identity of the appellants as the actual culprits was seriously in issue in the present case.
11. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required in any other case.