' MUHAMMAD AHSAN BHOON, J.--- This judgment shall dispose of Criminal Appeal No,24-J of 2004 filed by Shabbir Ahmad and Criminal Appeal No,519 of 2003 filed by Shafqat Masood Arif against their conviction and sentence and the Murder Reference No,151 of 2004 submitted by the learned trial Court, as all arise out of the same judgment, dated 31-10-2003 passed by the learned Additional Sessions Judge, Rawalpindi, Camp at Adyala Jail, Rawalpindi, whereby he convicted the appellant Ghulam Shabbir under section 302(b) read with section 34, P.P.C. And sentenced him to death as Ta'zir and also directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased. The learned trial Court vide the same judgment convicted the appellant Shafqat Masood Arif under section 302(b) read with section 34, P.P.C. And sentenced him to undergo imprisonment for life along with compensation of Rs,50,000 to be paid to the legal heirs of the deceased Saeed Ahmad. Benefit of section 382-B, however, was extended to Shafqat appellant in case F.I.R. No,559 dated 9-11-1995, offence under section 302/34, P.P.C. Registered at Police Station Rawalpindi.
2. Precisely, the prosecution story as alleged in F.I.R. (Exh.P.D.) is that the complainant's brother Saeed Ahmad had office of Motor Dealer where he had employed one Shaukat Mahmood. On 7-11- 1995 the complainant along with Saeed Ahmad and Shaukat Mehmood had gone to Peshawar to sell Suzuki Pick-up RIR No,7141 but sale could not be done and they returned from Peshawar at about 5-00 p.m. And came from Airport More towards Tipu Road, Rawalpindi. After a short distance due to repair of road traffic was blocked. Saeed Ahmad was driving Suzuki Pick-up while the complainant and Shaukat Mehmood were sitting on front seat, who stopped the same and on the rear a Carry Dabba CD-4280 of light green colour also stopped, in which besides driver there were four young persons. Two bearded persons out of whom one was of fair colour having height 5'-8" of about 30 years wearing white Shalwar Kameez and second brown colour of normal height of about 27/28 years wearing green Shalwar Kameez, alighted of Carry Dabba who coming forward, asked Saeed Ahmad to remove his vehicle or keep this mother one side, Saeed Ahmad responded to be shut up, upon which both the said bearded persons brought him out fetching from vehicle, gave him slaps and abused, then they went towards their vehicle. Saeed Ahmad went to them and asked the reason why they had beaten him without reason, while he was President of Suzuki Union, the other two young persons sitting in Carry Dabba, in which one had brown colour and height of 5'-7/8" about 28 years wearing light blue pant shirt, while the other of white colour height 5'-8/9" aged 28/29 years wearing gray trousers and green shirt came out and they raised Lalkara that driver of Suzuki Pick-up be killed, upon which both bearded persons bringing out pistols from their respective dubs, started firing on Saeed Ahmad hitting him near the right armpit, back, right thigh, right buttock, right arm and right shoulder. Saeed Ahmad fell down. Accused persons sitting in their vehicle ran away towards Sir Syed Chowk. The complainant and Shaukat Mahmood witnessed the occurrence and brought the injured to RGH, who after a while succumbed to the injuries.
3. After due investigation report under section 173, Cr.P.C. Was submitted against the appellants- accused. Charge was framed against the appellants-accused, who denied the charge, pleaded not guilty and claimed trial. To prove the charge the prosecution produced its evidence. The appellants-accused were examined under section 342, Cr.P.C. In answer to Question No,18 Shafqat Masood, accused/appellant stated as under:--- "Local police illegally arrested me in different untraced cases on just unfounded suspicions as a scapegoat because the alleged above occurrence was unwitnessed by anyone (P.Ws.)and actual culprits were not traced out and unidentified, hence the local police and the Investigating Officer of the said alleged case on just unfounded suspicion involved me in the instant alleged case without any cogent reason and evidence on basis of false story. Being this reason no any P.Ws. Identified me and also no any person from locality; when alleged occurrence took place, associate as P.W.
Has also identified myself as culprit. Hence the above referred P.Ws. Falsely deposed against me on the instruction and with collusion of complainant and local police/ Investigating Officer just for proving prosecution case."
' Co-accused Ghulam Shabbir also stated the similar reply in answer to question as to why this case against him and why the P.Ws. Deposed against. None of the accused either opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. Nor did he produced defence evidence. The learned trial Court after hearing the learned counsel for the parties passed the above said judgment, which is being assailed through this appeal.
4, We have heard the learned counsel for the parties, gone through the evidence and record available with their able assistance.
5. Ocular account in this case was furnished by Pervaiz Khan, P.W.6, who is real brother of the deceased Saeed Ahmad and complainant of the case. According to version of F.I.R. The occurrence took place due to exchange of hot words, between the accused and the deceased, when the complainant and the deceased were coming back at Airport More towards Tipu Road, Rawalpindi, as due to blockage of traffic and repair of road, four unknown accused asked them to remove their vehicle or keep this mother one side upon which both the accused and deceased had exchanged of hot words and then two accused having beard came out from Carry Dabba and started firing on Saeed Ahmad which hit him on the different parts of his body and thereafter Saeed Ahmad fell down and the accused went away in their vehicle towards Sir Syed Chowk. Admittedly none of the accused was nominated in F.I.R. Or was previously known to the complainant and the P.Ws, according to the story of prosecution. No identification parade was held to identify the appellants- accused. However, the complainant deposed before the learned trial Court that he came to know about the accused namely Shafqaat Masood and Tariq Inaam (since P.O.) afterwards but he was unable to tell that how he came to know about their names. He also stated before the learned trial Court that it was the accused-appellant Ghulam Shabbir and Chan Mehboob (since P.O.) who drew their pistols and then both of them started firing at Saeed Ahmad, deceased, his brother and firing made by Ghulam Shabbir and Chan Mehboob hit at the different parts of the body of the deceased. Even from the bare reading of evidence no role was ever attributed to the appellant Shafqaat Masood convict. The complainant admitted that when firing was made by the accused both of them slipped away and did not make any effort to apprehend the accused. The complainant also admitted that one Amjad Shah was also joined in the investigation of this case. It was also suggested by the defence that Basat son of Haji Ahmad, Farooq son of Muhammad Din and Ghulam Ali son of Siraj Ali were joined in the investigation of the case by the Investigating Officer on suspicion of the complainant but that suggestion was denied. However, the complainant volunteered that they had been visiting the police station but he never suspected upon them. The complainant also stated that the police interrogated one Tariq alias Gudoo that as to whether he being partner of the deceased could tell and whether there was any money dispute with anyone.
P.W.6 Pervaiz Khan deposed that he was driving the vehicle wherein the accused were boarding at the time of occurrence as the same was hired by the accused and it was stated by the said witness that according to the register of Taxi Stand the accused-appellant Shafqaat Masood got entered his name as Ali Jawad and said entry was recorded in the relevant register by Ishtiaque Qureshi driver but he was unable to justify what was the reason of wrong entering of name in the register when it was not a premeditated or planned occurrence, particularly, when the accused and deceased had no enmity with each other and the occurrence from the version of the F.I.R. Itself took place at the spur of moment, and similarly the said Ishtiaque Qureshi, who, according to this witness, recorded the entry in the register of Taxi stand was never produced by the prosecution.
This witness stated in his cross-examination that on 19-4-1996 he had identified the accused Shafqaat Masood on College Road while he had alighted from the Taxi at 4-00 p.m. And thereafter on 20-9-1997 has also identified the accused Ghulam Shabbir while he was present at Police Station Civil Lines, which fact itself would show that the accused were shown to the P. Ws. Prior to their deposition or appearance before the Court which makes the whole story of prosecution as doubtful.
6. As far as accused appellant Ghulam Shabbir is concerned, there is no report of Forensic Science Laboratory qua the matching of pistol recovered with the empties collected from the spot and the report qua appellant Shafqaat Masood is also of no avail to the prosecution when he was not attributed role of firing'the deceased.
7. In view of what has been stated above, we are of the considered view that the prosecution has failed to establish its case against the appellants-accused to connect them with the commission of crime beyond any shadow of doubt. Consequently, Criminal Appeal No,24-J of 2004 filed by Shabbir Ahmad and Criminal Appeal No,519 of 2003 filed by Shafqaat Masood Arif are allowed, conviction and sentence recorded by the learned trial Court vide its judgment, dated 31-10-2003 is hereby set IF aside and they are acquitted of the charge. They are in jail and they shall be released from jail forthwith if not required in any other case. Criminal Revision No,20 of 2004 filed by the complainant having no merits is hereby dismissed. Murder Reference is answered in negative.