' SAGHIR AHMAD, J . ---Qari Muhammad Akram alias Checha and Ejaz Ahmad alias Farooq Ahmad (appellants) after their trial in case F.I.R. No,118 of 2002, under section 302/34, P.P.C. And section 7-A of Anti-Terrorism Act, 1997 Police Station Civil Lines, Bahawalpur were convicted and sentenced by learned Judge, Anti-Terrorism Court, Bahawalpur vide judgment, dated 29-6-2006 as under:-- ' Under section 302(b), P.P.C., both sentenced to death on two counts for causing murders of Muhammad Arif and Muntizar Mehdi; further directed to pay compensation of Rs.1,00,000 on two counts each to the legal heirs of both the deceased under section 544-A, Cr.P.C., in default to suffer six months' SA., each; ' Under section 7-A of Anti-Terrorism Act, 1997 both sentenced to death and also ordered to pay Rs.1,00,000 each as fine, failing to further undergo six months' S.I., each.
' Criminal Appeal No,29 of 2006 has been brought on behalf of the accused appellants challenging their above conviction and sentence, whereas, Murder Reference No,8 of 2006 has been sent by the learned ,trial Court seeking confirmation or otherwise of the death sentence imposed on both the appellants.
2. The prosecution commenced with the lodging of complaint (Exh.P.E.) by Muhammad Amin P.W.9 to the effect that on 30-3-2002 at about 7-30 p.m. He (complainant) along with his brother Muhammad Arif (deceased), his nephew Muntizar Mehdi (deceased), Shabbar Abbas and Tanveer Abbas P.Ws., was sitting at the shop of deceased Muhammad Arif, Meanwhile, two persons came there on a motorcycle. The person sitting on the rear seat of the motorcycle aged about 23/24 years with a height of 5.7 feet and having a small beard, alighted, took off Kalashnikov from his shoulder and started straight firing at Muhammad Arif. His son Muntizar Mehdi tried to rescue his father but he was also fired at. Both the accused persons thereafter. Decamped on motorcycle, the injured were shifted to hospital but they succumbed to the injuries.
3. After usual investigation, the accused appellants were sent up to face trial before the Court. The learned trial Court framed charge against the accused appellants to which they pleaded not guilty and claimed to be tried. During trial, the prosecution examined nineteen witnesses which include the statement of Muhammad Ashfaq A.S.-I. P.W.2 who registered the formal F.I.R., complainant Muhammad Amin P.W.9, Shabbar Abbas P.W.10 eyewitnesses and brother of Muhammad Arif deceased, P.W,6 Sajjad Hussain and P.W.7 Muhammad Munir Sub-Inspectors who partially conducted the investigation, P. W.8 Tariq Javed Judicial Magistrate who conducted identification parade of Qari Akram accused and P.W.11 Sarfraz Ali Mirza Judicial Magistrate who conducted Identification parade of Ijaz accused, P.W.15 Khawar Zaman Lodhi DSP, P.W.16 Jan Muhammad Inspector, P.W.18 Rao Muhammad Farooq Inspector, P.W.19 Arshad Inspector who all conducted investigation at various times and Dr. Abdul Rasheed Malik P.W.11 who conducted post-mortem examination of both deceased Asif Ali and Muntizar Mehdi, whereas, the remaining witnesses are all formal in nature and deposed about the various functions performed by them towards completion of investigation. On close of the prosecution evidence, the accused when examined under section 342, P.P.C. Denied the prosecution case and attributed their involvement to falsity.
They also produced one Muhammad Hanif D.W.1, Abdul Lateef D.W.2 who both contradicted the date of arrest as shown by the prosecution and one Rahim Bakhsh D.W.3. After conclusion of the trial, the learned trial Court vide impugned judgment convicted and sentenced the accused appellants as detailed in the opening paragraph of this judgment.
4. The learned counsel for the accused/appellants initiated arguments by contending that in fact the appellants had been falsely involved in the offence; that no independent and impartial witness has been cited to prove the case; that recoveries also do not advance the prosecution case; that both the witnesses were closely related inter se as well as with the deceased, therefore, they being highly interested witnesses, their testimony could not be lightly, believed unless there was some strong corroboration, which was missing in the instant case; and there was specific plea by both the appellants that they had been arrested by the police much earlier than their shown arrest and were also shown to the witnesses before the conduct of their identification parade and that even during identification parade the witnesses did not assign them specific role, which itself was a sufficient ground to discard the identification proceedings. The next contention of learned counsel is that per prosecution case itself the occurrence took place in a Bazar, where naturally lot many persons must have gathered but neither any witness was offered to become witness nor was ever associated with the investigation and there is no reference by the Investigating Officer that he even asked any person from the locality to become witness and he/they refused. Their last contention is that though the prosecution itself had mentioned in the F.I.R. That one Jind Wadda a shop keeper was also present at his shop at the time of occurrence, but said independent witness was also not produced in evidence. According to the learned counsel the prosecution had badly failed to prove the charge and that it was an unseen occurrence, wherein, the appellants were falsely involved.
5. Conversely, learned Law Officer assisted by has opposed the above contentions and contended that both deceased were the real brother and nephew of the complainant as well as other eyewitnesses, as such there was no occasion for them to have substituted the real culprits and that the learned trial Court rightly convicted and sentenced the accused appellants after proper and correct appreciation of evidence.
6. We have considered the arguments of learned counsel for the parties and have also gone through the entire record with their assistance.
7. First of all we would like to take up the ocular account of the incident. Admittedly, the occurrence took place in an open Bazaar at 7-30 p.m. When naturally lot many persons must be available all around and according to the prosecution one Jind Wadda a neighbouring Shop-keeper was also available on his shop, but surprisingly, neither said Jind Wadda was associated with the investigation nor any other independent witness from the area was joined with the investigation.
The complainant Muhammad Amin P.W.9 and Shabbar P.W.10 both are admittedly closely related to the deceased, as such to place reliance on the testimony of such interested witnesses, it was imperative for the B prosecution to have got their statements corroborated by producing cogent and impartial evidence, which, to us is badly missing in the instant case. Reliance is placed on the case Munir Hussain Shah and 2 others v. The State NLR 2006 Criminal 618.
8. Although the prosecution produced Dr. Abdul Rasheed Malik P.W.11 who conducted the post- mortem examination of both the deceased and he made a detailed statement in Court about the nature and seat of the injuries, but there is no dispute that the medical evidence may show the seat, nature of injuries and the weapons used during the occurrence, but in no way helps the prosecution to identify the real culprits. Reliance is placed on the case The State v. Muhammad Sharif and 3 others 1995 SCM R 635.
9. As regards alleged recovery of crime weapon i.e, Kalashnikov at the instance of Ijaz accused appellant, although he is shown to have been arrested on 12-10-2003 but according to the prosecution evidence itself he led to the recovery of Kalashnikov on 23-11-2003, whereas, the occurrence took place on 30-3-2002, i.e, after mofe than one and a half year of the occurrence and such recovery has been sought to be proved against by the statement of Shabar P.W.10 who admittedly is closely related to the complainant as well as the deceased, whereas, said weapon of offence is shown to have been recovered from an open place, therefore, association of some independent witnesses had become all the more important. Further, it is not believable that accused having, committed such a gruesome offence would keep the weapons of offence intact for such a long period for its subsequent recovery and ultimate use against themselves.
Furthermore, the said articles were dispatched to the Forensic Science Laboratory for matching on 7-1-2004 i.e,, about forty five days for their alleged recovery and there is no explanation of, withholding these articles for such a long period, which delay is self-destructive for the prosecution.
A part from above, as stated above no independent witness was 'jointed in recovery proceedings and the witness who attested the alleged recovery was admittedly interested. On this score also, the recovery evidence becomes highly doubtful. Reliance is placed on the case Muhammad Tasneem v. The State 19851E SCMR 160.
10. Apart from above lucunas in the prosecution evidence, there is yet another aspect of the matter which has deep rooted effect to destroy the prosecution case i.e, conduct of identification parade.
According to P.W.16 Jan Muhammad Inspector accused Qari Muhammad Akram was arrested on 27-5-2003 at Jail Road leading towards Bus Stand, but .Admittedly this arrest was not shown in the police post of bus stand, which post was available. Similarly, Ijaz accused appellant was arrested by Khawar Zaman Lodhi DSP P.W.15 on 12-10-2003 from General Bus Stand, Bahawalpur but about this arrest also there is no entry at Police Post of Bus Stand. It has also come in the prosecution evidence that identification parade was got conducted 'after twenty five days of their arrest, which delay remains unexplained and unexplained delay of even one week F has been held to be against the law and accordingly disbelieved in case reported in State through Advocate-General, Sindh Karachi v. Farman Hussain and others PLD 1995 SC 1. On the other hand, the accused appellants in their statements under section 342, Cr.P.C. Specifically stated that they were arrested much before their shown arrest and were also shown to the witnesses even before their identification parade.
Their statements were also supported by D.W.1 to D.W.3 who were quite independent witnesses.
There is yet a drastic admission by P.W.15 Khawar Zaman Lodhi DSP that photographs of the accused were flashed in the newspaper in a proclamation. He also admitted that suspicion was also laid at one Zahid Hussain. It thus becomes obvious that the plea taken by the accused that they were already shown to the complainant party before their identification parade is substantially proved. In these circumstances, where even the identification of both the accused appellants becomes highly doubtful, it is not safe to maintain their conviction, especially when according to the statement of the DSP, some other persons were also investigated under suspicion.
11. The accumulative effect of all what has been discussed above is that when the prosecution story is juxtaposed with the defence, the same appears to be more plausible and credible. In such circumstances the Hon'ble Supreme Court of Pakistan in the case Ghulam Hussain alias Hussain Bakhsh and 4 others v. The State and another PLD 1994 SC 31, held that when there were two conflicting. Versions for consideration before the Court, the one agitated by the prosecution and the other by the defence and both were probable, the one favouring the defence was to be preferred, more so when it got corroboration from the circumstantial evidence available in the case. The conviction and sentence cannot be recorded merely on probabilities and prosecution is to prove its case beyond any shadow of doubt, but in the case in hand the prosecution has not been able to prove the charge against the accused appellants, therefore, by following the rule of abundant precaution and extending the H appellants benefit of doubt as held in Mohsin Abbas v.
The State 2004 PCr.LJ 497, we allow this appeal and by setting aside their convictions and sentences, order immediate release of the appellants from jail, if not required in any other case.
' Murder Reference on both counts is answered in negative.
' Sentence of death on both counts is not confirmed.