' MUHAMMAD ASHRAF BHATTI, J.--Nasir Mehmood, Muhammad Ifzal, Muhammad Riaz and Sami Ullah, convicts/ appellants were involved in case F.I.R. No,647, dated 25-12-2000 registered at Police Station Saddar Jalalpur Jattan, District Gujrat under sections 459/380, P.P.C. On the statement (Exh.P.D.) of Nasir Hussain, the complainant for committing dacoity in his house and for causing fire-arms injuries to his father Allah Ditta who died on the very next morning of the occurrence.
They were charge sheeted under section 396, P.P.C. And after conclusion of the trial the learned Additional Sessions Judge, Gujrat vide his judgment, dated 26-6-2002 convicted and sentenced the appellants as under:--- CONVICTION SENTENCE Under sec- tion 396, P.P.C.Each of the appellants were sentenced to death each with fine of Rs.1,00,000 each and in default thereof to undergo further imprisonment for six months each.They were also directed to pay compensation of Rs.1,00,000 each as envisaged under section544-A, Cr.P.C. to the legal heirs of the deceased which shall be recoverable as arrears of land revenue default of thereof to and in payment undergo further imprisonment for six months' S.I.
The remaining accused, namely, Haji Nasir was declared as P.O. And his perpetual warrants of arrest were issued by the learned trial Court.
2. According to the prosecution brief facts of the case are that Nasir Hussain, the complainant, a resident of village Bhokiki, is a Taxi Driver and plies car bearing registration No,SAC-6768 (White Colour) Model 1986. On 24-12-2000 at about 11-00 p.m. (night), the complainant, his wife and children, brother Mirza Khan, mother Muhammad Bibi and sister Rubina Kausar, were sleeping in their respective rooms separately. His father Allah Ditta was sleeping in the Varandha. Suddenly, he heard the alarm raised by his father and with that there was a fire shot. All of them came out of their respective rooms and saw there three persons near the cot of his father, two of them tall, and the third one was of shorter height. All were wearing Shalwar-Qameez, with muffled faces and equipped with fire-arms who had caused fire-arm injury to his father, and later succumbed to this injury. They also raised `Lalkara' that any one raising noise would be done to death. According to the complainant, they had not only taken out Rs,2000 from his pocket but also got from him key of the car, its papers and then snatched the gold ornaments from his wife, Mst. Farhat Bibi, his sister, Mst. Rubina Kausar and Mst. Rukhsana Kausar, wife of his brother. Statedly, while leaving the premises they locked all the inmates of the house into a room and took along with them VCR and car of the complainant. The complainant and his family members managed to come out of the room by break opening its door. In the meanwhile the police also arrived at the spot and the matter was reported to it. As to the description of the gold ornaments, the police was informed that the same would be provided to it on the next morning.
3. Later, in his supplementary statement the complainant disclosed the details of stolen articles including gold ornaments and also nominated the appellants Sami Ullah and Nasir. One Imran Ullah, resident of the same village, also got recorded his statement but in a different manner. He stated that the accused were five in number and before the above said occurrence they had trespassed into his house too by opening the main gate at about 10-00 p.m. When he along with his mother and sisters. Mst. Nasim Akhtar, Shagufta Tahir and Shumaila were asleep. He saw five armed persons standing with muffled faces who commanded him to open the door and every thing be handed over to them otherwise they all would be done to death; but he did not do that upon which while, hurling filthy abuses the said persons tried to remove apart the iron grill and then started firing on the doors and so one fire penetrating through the wooden door hit him on his right leg. Imran Ullah father disclosed that he took the courage and fired twice with his father's double barrel gun whereafter all the five persons fled away making aerial firing.
4. Allah Ditta, Investigating Officer (P.W.14) during the course of investigation added section 396, P.P.C. The police recovered car No,6768-SAC whereafter the investigation was conducted by the S.H.O. Who, on 7-1-2001 entrusted the investigation of the case to Muhammad Inayat, S.-I. (P.W.12).
He arrested Sami Ullah and Nasir Mehmood, appellants on 16-1-2001 and then on 20-1-2001 arrested Muhammad Ifzaal and Muhammad Riaz, appellants and recovered from them stolen properties which were identified by the complainant and the P.W. Mirza Khan (not produced) whereas their co-accused Haji Nasir and Maqsood alias Sooda became fugitive from law and after necessary proceedings taken under sections 87/88, Cr.P.C. Were subsequently declared as P.Os, On 27-2-2002 by the learned trial Court. However, Maqsood alias Sooda, appellant appeared, later on, before the learned trial Court.
5. After completing the necessary formalities, challan was submitted in Court where the aforesaid persons were formally charge sheeted to which they pleaded not guilty and claimed trial.
6. In order to prove charge, the prosecution relied upon the ocular account provided by Imran Ullah P.W.8, Nasir Hussain, the complainant, P.W.6 and Mst. Farhat Bibi P.W.10, Munir Ahmed, P.W.9 is the witness of Waj Takkar. Dr. Muhammad Rafique, P.W.1 provided the medical evidence who conducted the autopsy on the dead body of Allah Ditta. He testified the factum of preparation of sketches of the injuries i.e. Exh.P.A./1 and Exh.P.A./2 in his own handwriting as well as medico-legal report (Exh.P.B.) having been conducted by him when Allah Ditta was alive. The remaining P.Ws., namely, Mirza Khan, Mst. Rubina Kausar, Mst. Muhammad Bibi, Mst. Rukhsana Bibi, Mst. Nasim Begum, Muhammad Sharif, Zulfiqar Ali Shah, Muhammad. Ilyas and Bashir Ahmad were given up, as being unnecessary. After tendering in evidence report of Chemical Examiner, Exh.P.D.D., report of Serologist Exh.P.E.E. And report of Fire-arm Expert Exh.P.F.F. The prosecution closed its evidence.
7. The accused-appellants were examined under section 342, Cr.P.C. All the appellants denied their involvement in the commission of offence and took the stance that nothing was recovered from them and all the recoveries have been planted upon them falsely. None of the appellants appeared under section 340(2), Cr.P.C. To record their statement nor they adduced any defence evidence.
8. The learned trial Court after hearing the arguments of the learned counsel for the parties recorded the conviction and awarded sentences of the appellant as mentioned in the opening paragraph of this judgment. Hence, through this common judgment we propose to dispose of Criminal Appeal No,243-J of 2002 filed by Nasir Mehmood, etc. Convicts/appellants, and Criminal Appeal No,1152 of 2002 filed by Sami Ullah, convict/appellant. Along with these matters a Murder Reference No,666 of 2002 has also been filed for confirmation of death sentence awarded to Nasir Mehmood, Muhammad Ifzal, Muhammad Riaz and Sami Ullah, convict/appellants by the learned trial Court.
9. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor-General appearing for the State assisted by the learned counsel for the complainant.
We have also gone through the record very carefully.
10. The learned defence counsel's main arguments revolve against one major feature of the case that it was an unseen occurrence which took place during a pitch- dark night. He has further attracted our attention to the statements of the eyewitnesses, one of whom Nasir Hussain, the complainant/P.W.6 is also recovery witness of the stolen articles, to point out that not only there are major discrepancies and inconsistencies in their statements but also to show that the recoveries effected were fake and the proceedings thereof conducted at the police station with mala fide of Muhammad Inayat, I.O./P.W.12 who hails from the same area and resides just two miles away from Sandha, village of the complainant party. It has further been contended that no identification parade was conducted in this case and so the mere identification of the P.Ws.
During trial of the case after eight months of the occurrence would not help the prosecution case to stand on its own legs. It is also argued that Munir Ahmed, P.W.9 was purposely introduced in the prosecution story to lend support to the prosecution case as a `Waj Takkar' witness and that he apart from being a close relative of the complainant, he resides at a distant place (20 miles away) from the place of occurrence and so presence of such a witness during the night at the spot is highly doubtful and that his credential are not worth than that of a chance witness. He further goes on to say that the statement of Imran Ullah, P.W.8 from whose house empties (16 in number) were recovered vide Exh.P.S. Have no bearing on this case. He has also taken strong exception as to the veracity of the complainant (P.W.6) regarding recovery effected in this case on the simple ground that no independent evidence has been brought on record to support him. We have been taken to the relevant portion of his statement to get highlighted the dates of recoveries effected from Muhammad Ifzaal, Sami Ullah, Muhammad Riaz and Nazir Mehmood, appellants i.e. On 19-1-2001 and 24-1-2001 respectively when the complainant, of his own, had statedly gone to the police station without having been informed by the police as to their prospective visits on those specific days to the places of recoveries. Learned defence counsel is of the view that it was all arranged by the aforesaid police officials/I.Os . Just to entangle the appellants by planting fake recoveries upon them as the complainant could not be believed to have pre-supposed the recoveries to be effected or the plan of the police to get the same effected on those particular days when he, of his own, had gone to the police station.
11. Further, if Munir Ahmed, P.W.9, a witness of Waj Takkar, had seen the appellants while boarding the car of complainant at odd hours of the night he, being a very close relative of the complainant, must have been worried and concerned as to how come the appellants, some of them strangers to him, were present there and taking away the complainant's car. On the other hand, he behaved in a different and unnatural fashion by remaining dormant and instead of informing the complainant went to the place of his stay for the night. Our attention has also been invited to the statement of Mst. Farhat Bibi, P.W.10 who made specific mention of a fire shot given by Muhammad Ifzaal upon the person of his father-in-law Allah Ditta, deceased. She stated that there were three persons standing near the cot of Allah Ditta, deceased but in the next breath again said the 4th was standing near the main gate about whom the complainant did not utter a single word.
12. Similarly, learned defence counsel referred to the contents of the F.I.R. Exh.P.D./l wherein there is no description of the ornaments, etc. Allegedly recovered later on from the possession of the appellants.
13. In contrast to the above arguments when on having taken into consideration the arguments of the learned Additional Prosecutor-General who had defended the conviction and sentences awarded, we feel no hesitation to observe that mere identification of the appellants by the P.Ws.
During trial carries no weight in this case because prior thereto there was no instance or opportunity made available to the P.Ws. To see the appellants and so when the appellants were very much present in the Court on the call of the case one can infer that tutoring the P.Ws. In this respect cannot be ruled out. Necessarily there should have got held identification parade which was not done in this case despite the fact that the I.O. Knew that the culprits had muffled their faces at the time of occurrence. Reference is made to Farman Ali's case 1997 SCMR 921. Again this is a case where there is no description of the culprits made in the F.I.R. Except making mention of their height, the parade if even had been held, could have hardly advanced the prosecution case.
Reliance is placed upon State v. Subharo's case 1993 SCM R 585.
14. Coming to recoveries of gold ornaments etc., the record does not show that there was held a separate identification of these articles before a Magistrate as per dictum laid down in Allah Ditta's case 1977 SCM R 251. The statements of the both I.Os. Make it very clear that no independent person including Lumberdar of the village was associated with the recovered articles. Even the empties recovered from the house of Imran Ullah, P.W.8 have not been proved by any independent evidence to chow that the same were fired from the weapons recovered from the appellants. There is also nothing to show that any legal action was taken by the police regarding the aforesaid firing made in the house of Imran Ullah, P.W.8. It is possible that in a bid of dacoity fires might have been made in his house but without any evidence to connect the said firing with the commission of dacoity in the house of the complainant solitary statement of Imran Ullah would be of no use or value to support the prosecution case with a view to involve the appellants in this case. Strangely enough to note that during the process of all the recoveries effected, Nasir Hussain, complainant had been standing throughout in the courtyards of the houses/premises but did not enter the room concerned wherefrom recoveries were effected meaning thereby no recovery of gold ornaments or weapon, etc. Were recovered within his view on the pointation of each appellant.
Therefore, in such a situation, the veracity of his statement stands demolished and it appears that all these recoveries are highly doubtful.
15. It is also very important to note that statedly the complainant on hearing some disturbance in his house come out of his room without suggesting that any other member of his family had also been attracted towards the scene of occurrence i.e. The place where the cot of Allah Ditta, deceased was lying as stated by Mst. Farhat Bibi, P.W.10.
16. As regards the role of Muhammad Inayat, S.-I./I.O./P.W. 12 he admitted that his place of permanent residence was two miles away from the place of occurrence. So, this shows that both the complainant and the said I.O. Were known to each other prior to the occurrence and there is strength in the arguments of the learned defence counsel that mala fide on the part of the said I.O.
Cannot be ruled out in this case specially in view of the presence of the complainant of his own every time when the recoveries are shown to have been effected from the appellants on two different occasions.
17. Both the complainant and Mst. Farhat Bibi, P.W. 10 are literate as admitted by them. So, it can be well supposed that they could have narrated about the act of firing of Muhammad Ifzaal, appellant before the police prior to the registration of F.I.R. Or while recording their statements under section 161, Cr.P.C. If all of the appellants had muffled their faces and Ifzaal also not known to her, how could she nominate Ifzaal when according to the complainant, Allah Ditta had received injury the moment he (complainant) came out of his room. He does not mention presence of any other inmate of his house at the relevant time who might have followed him. It appears that all other inmates must have come out thereafter.
18. The car allegedly taken away by the appellants was admittedly traced on the next morning. It was statedly parked near a poultry farm but the complainant failed to disclose the particulars of owner of that poultry farm. Therefore, recovery of the car without having been testified by any independent witness appears to be doubtful. Similar is the case of the recovery of pistol (Exh.P.L.) from underneath a bridge planted upon Muhammad Ifzaal, appellant which is also not proved by any independent witness.
19. While summing up the above discussion we have come to irresistible conclusion that the prosecution case is not supported by any sound, firm and evidence of unimpeachable character.
On the other hand, presence of five persons at the scene of occurrence, as alleged by the prosecution, has not been proved beyond reasonable doubt. The involvement of Nasir Mehmood, Muhammad Riaz, Sami Ullah and Muhammad Ifzaal through supplementary statement and on the basis of 'Waj Takkar' witness provided by Munir Ahmad, P.W.9 is also shaky and unreliable in the given circumstances of this case. We have further found number of improvements have been made by the prosecution witnesses as highlighted during their cross-examination through confrontations viz-a-viz their statements recorded under section 161, Cr.P.C. There is also no evidence to show that the recovered articles including the wrist watch (Exh.P.K.) were mixed with other items of similar kind or make nor any specific identification marks thereof were given to be proved through reliable evidence that were available on the wrist watch or the gold ornaments shown to have been recovered from the appellants, therefore, no reliance can be placed upon such recoveries. In a similar case though identification of the above nature was held but found short of required standard and so not relied upon. Reliance is placed on Shafi Muhammad's case PLD 1971 Kar.721.
20. The identification of the appellants by the P.Ws. During trial of the case is also of no help to the prosecution after considerable lapse of time. Further there are number of circumstances found in this case leading us to infer that the prosecution has failed to make a case free from reasonable doubt whereas even one circumstances creating reasonable doubt in a prudent mind about the guilt of the accused makes the accused entitled to such benefit not as a matter of grace and concession but as a matter of right. Where there is specific attribution of role to any specified accused, which is not proved on record, benefit of the same shall go to all the other accused also even if one of them is guilty. Reliance is placed on the case of Tariq Pervez v. The State 1995 SCM R 1345 and Riaz Masih alias Mittoo v. The State 1995 SCM R 1730.
21. So, therefore in the light of the above discussion, we conclude that the prosecution has failed to prove its case beyond any reasonable doubt. Accordingly, Criminal Appeal No,243-J of 2002 filed by Nasir Mehmood, Muhammad Ifzaal and Muhammad Riaz, appellants and Criminal Appeal No, 1152 of 2002 filed by Sami Ullah, appellant are accepted. They are acquitted of the charge. The judgment of the trial Court is set aside. They are directed to be released from jail forthwith, if not required in any other case. Their death sentences are not confirmed and the Murder Reference No, 666 of 2002 is answered in the negative.